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in 2010 with funding from 
CARLI: Consortium of Academic and Research Libraries in Illinois 


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160 = 30419 


M, SS. BRUMETT, Doing Business as ) 

» S, BRENHTT COMPANY, Not 
Incorporated, 

Defendant in Mrror, 

BRAGK TO GIARCUIY covat 
ve, 

GF COOK COUKTY. 
GHIGAGO MOTOR CLUB, « Corporation, 

Plaintarr in Error, 


WA. PRESIDING JUSTICE MeSURBLY 
DELIVERED THE OPINIO“ OF THE COURT, 


Plaintirr brought suit to reaover the value of cere 
tain services said to be rendered by him to defendant wider an 
alleged verbal agreenent. “pom trial the jury gave him a verdict 
ef $734.23 and futgwent war entered for this asount, By thie 
writ of error 4efendant secke a reversal, Plaintiff’ doee not 
appear in thie court te defend the jutgeet. 

Plaintiff's slaim was said to be for services in 5 
investigating the theft of an autemebile ond making ® repert om 
sane, together with moneys advanced and expenves ineurved in — ) 
making the investigation, sounting te $1064.25. Defendant '»/ 
affidavit of merits denied that it at any time engaged oF gue . 
therisea plaintiff te perform any work im and about the theft of ri 
an avtomebile or at any time tequeasted plaintiff te perform any 
services whatever for defendant; denied that plaintiff had per 





formed any euch vervices or expended or advanced © sny moveye 
in connection with the alleged imvestigation; denied that he at om 
any time performed any services for or on behail of defendant, 


denied that defendant owed him any money whatsoever. 





elearly against the preponderance of the evidence. 
The aase for plaintiff was mupported w ig teetineny 








Reh AIORTE Or wove |- 
‘yeramray 009 Mo 1a 
aS 










Jee 2 A. zs & 


ie gente a mene ah al | 









onan Ont pavonon af $866 Mt ERO 


wr 2 ate oem ht babes apa toons tate apne 
ten ona ‘mteaie st 3 aleweinns a nroet. a kaharen ane ae i 
eee ae eppnanpiatasmtbelnccb tesco! 
co wot wend ddim eer ele atientadt 


of himself and one ether witness, Pluintisf was running « private 
detective agency in Chicage. Those witnesces way that they went to 
the office of the defendant and there met a kr, Jacks and w Ur, 
Brown, who, the witnesses any, wore the claim manager and preaie 
dent, Peapectively, of the deFenjant; that they teld My. Brown and 
tir, Jacke that @ certain autosiebile which had been ineured by 
defendant had been Aldden by Or, Hamsay, the owner, for the pur- 
pose of defrauding the defendant, and plaintdff would be willing 
te s@li thia information ta the defendant; that hie charges would 
be a flat rate of 936 o day per man, including expences, or We 
will guarantees te return the car te you for a stipulated amount, 
or we 4e net went soything;* that Br. Brown told them te go te 
work, whieh they 414, They 214 met locate the stolan car ond never 
feun4 it. Plaintiff knew that the defendant serverntion never ise 
sued or carried any inewrence ané that there wan snolher oo rperae 
tien lecated in the game building which 41@ iseue automebile ing 
@uYance, and that thie latter company wae entirely separate and 
@istinet from the defendant ecorpany, 

ae, Brom, tentifying for the defandent, said he was 
the general manager of defendant omrparantion snd that it 444 met 
@igage is inauranee ef any Kind, that there wan ancther eorporae 
tion located in the sane bullding whieh 114 ineue ontomoebila ine 
Surance; that the kr. Jacks referred te wan nat an offieer of dete 
Tendent compacy, tut wae the claim maneger of this insurance come 
pay; that he, Brow, never had any conversation with the plains 
tisr or bin witness with reference te working for the defendant 
company and never kad any eonversation with anyone with reference 
te deing work im ond shout the Lese of tr, Rameny'n automobile, 
mor 414 he hire any 4etective agency with reference te finding 
said automobile, ner have any converantion with ay detective 


ageney with reference to that matter, 











stestee * ashorwrs, ane vera veesnoty wnt e080 ee 
of sim yous sino we vase ie enone 


Or, Rameay testified that he waa the owner of the 
gar in question; frat te wen «© physielan and surgeon; that the ear 
was inevred fin the Inter Ineuranas “Sxshenge, and was leet in May, 
19° and reeovere4 in August, 1°71, a month scfer te the tien 
Plaintiff claimed he made his wonteact with the defendant; that 
the insurances cempary pid him for the lose of the car, but when 
the automobile waa reeovere’ ant turns? ever to Aim he refunded 
the money to the ineuranee Goxmany, Or, Ramsay aleo testified 
te an ettempt ef the plaintiff to extort $2,690 from him because 
ef aeme alieged inerimineating tnforuntion relative to the lows of 
the car, 

A poliee officer testified that he lecated br, 
Rempanys car in Figin, Illinois, ty meane of «9 telovhone gall ree 
eetved from the ebie? of police of Uigin; that he went there and 
recovered the ear tn Anouwt. Tsare wes further evidence tending te 
prove that it wan recovered August %, 19%, end brought back from 
Bigin the next day. Plaintiff «lates that 012 the work wildh he 
4i4 wae fering the sont: of Septerber, 1971, 

The mere reeltal of tre evidence feumnetrates: Tuat 
the verdict against the defendant wee not Justified. The defandte 
any vas net tn the Pusiness ¢f ineuring automobiles and gowld have 
had me wetive in making « contract with plstetiff to recover the 
stele: cer, The feet thet platistiff alleges that his servierts 
waxe rendered seme tine gutaequent io the reeevery of the nutonoe 
bile ie, ta sey the lenst, very singules and pinintiff'e evil denes 


fm thie reepsct 1a net eanvinuing., Xr. Brewm'se sategorios] fentel 


ef the alleged verbal contrect of caployvont fe in harmony with 
ell the eireumstances, 
There is slse merit im the coptention that there is 


me evidence to sustain the verdict of $734,235, The value of the 


alleged services war net in igeos. 30fendant dented that it 


te 









Sad Te Tees HA met em dade ha te henge qomant rt 
‘ao ot ant :sonqrene ise moieiecde enw at so ‘ 
ial at Soot axe hae _ epnetne, comment want oe 


Ree one 


‘ae + ai cd eben ston Fi AoE owed Rs 


“bn : a 
gga ts eee aus on 320 


i... axel ens ‘pe setdaten seddsoratad a es 


are SS BiG seen 





fn a 


§ De 


mie ou 3 ed wages 


enployed vlaintif?. Under wueh olraunstaiges plaintiff wae ene - 
titled either te the amount claimed, 1064.94, or nothing, and ao 
finging oF any intermediate sum is vittually a finding that there 
Was No such agreement as cantended fer by piaintit?. pgweg 

: i i. tervin, 107 Thi, App. 620; & 
ka Boake, 85 Tl, agp. 637, 


The general manager of tiie defendant corporation 





attempted te testify that the inter inguranee Eughange in the same 

building was organized for previt aud dealt ia autemobli¢c ineuranee 
Objection to tiie line of teatineny waa sustained, Ordinarily, 
testinony ae te » toliateral matter is isreievant, bul wider the 
present cirewietaiees thle testisuny wae perwissible ap tending 

to shoe that tae contrast of employnont, if any, of plaintisr was 
not with the defendant eospany but «len wether corporation whi ch 
dealt im autempbile insurance, Mvidenee as to facts should not 
be excluded whieh raises a rensonstile inference or pr counption 

aa te the matter in isaue, Them a fact iu, in 4 Legal. sone, 


Televant to the losue, it ie mot to be excluded although apparently 








eOliatersl, tei» DPiair, 69 111, 642; RAE AAO. SORE 
So. te Getten, re? 14, 6365 5 OVE Ei walt, eb ie, 142 





ema other anaes, 
it waa ales arrer, sensidering tha onaracter of the 
dafenes, to poradt the plaintiff te teatify that Jocks war the 
elain manager ond Brewn the president af the defeniant corparte 
tion, sutherized te make « contract ef ampleyment with ploimtirr, 
the court alus improporly adedittie’ testiwony tending 
te intixate that the defendant's witners, Dr, Nameny, hod been 


invelved in some criminal prosecution. Bartholemey vy. Zeoples, 104 — 


-T11l, 601, 


, 






- wan basins 


puke Oy aie “iawn 7 y nauk aba * wit 
ete bias Sad si ceca et sor 









The court imorceeriy gave instruction fo. % on behaif 
er the plaintiff, =hieh asvume¢t as a feat that "the defendant had 
ieened one of ite policies againet euch theft.” Tahir anmantion 
is equarely contradicted by the evidence of the cave, Heuty 1. 
Peophe, 177 TLl. 806; 0. & Ae Be Bs Go, ¥. Rewbern, 283 TRI. 290, 

There wore other errare wsen the trial with @434 
hardly oceur agadete 

Yor the reasons abeve indicated tha Judgment ie 
reversed und the eause remanded, 

HRVERSED AND WEMANNED, 


Batchett and Joumetun, J7., ooneur, 





4. + 51153 


SIDASY SCHRAYER & GORPANY, } 
a Corporation, 
Appellea, 
APPEAL YRGOM MIMICIPAL COURT 
va. 
} OF CHICAGG, 
HARRY KORSHAK, } 
Appellant, } Quaar 
(Pes ee, of Hi eet 
ott — «a go [ As ,.¥ Fd 


GR, PRESIDING MISTIGCR Mesine.y 
DELIVERED THE OPINION OF THE COURT, 


On Decexber 51, 1925, Judmuent was entered against 
defendant by confension Sor 17650.46 under a power of attorney 
in a judgment note, Jonuery 19, 1996, which wae within the 
term at whioh judgment wae entered, the defendant Tiled a metion 
te vacute and set aside this Judgment, supporting the same by an 
affidavit. ‘This sotion wae denied, and @efendant aypeale from the 
order denying bia mation. 

The plaintiff hee seved thie court te strike from the 
statutory record the motion of the defendant to vaeate the Judge 
ment with the supporting affidavit on the greund that they are not 
preserved by any bill of exceptions, certificate ef evidence, or 
stenographie repert of the trial, wherein only they ean be properly 
preserves for review, 

It hae been Keold fm many (deoigiona tust such motions 
and affidavits heave no plese in the statutery record. Peter Mand 
Brewing Co, v. Baneeda, 710 11. App. 163; Fleckles for use of 
sreembaun Gene iim Co., 169 t11, App. 321; Beyhea ve 
Chytraus, 175 111. 370; Hern v. Heu & Gintg, 63 1121, 539; Patton 

Xs Young, 235 11. App. 515; gai cameagummancagngsamne 185 
Til. App. 581; En! © Ck a : ¥. 
0 «BAM LL. App. 460; Pecple v. Gowan, 285 111, 308; People v. Kitseher, 


aN 











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ie 
POS 


ise 






YARN MONEE OMNI: SIRE Hak Dame 
sTRGOD DIY Mo aonares SY CRAVE te eae 





_tanhens homme Rise rege, ae, vanes ® weaaest i ‘niois tone 
wees! te Ye pomac a Soho Bb 088 aot “wotens'ta00 wt a é 


esta akishe aww shio Mathe WOE a nt wes 6 










ad moet aden orn santinsiat Aine as er saw aerdow ett 
sno} vom wd au 
oat ao rt dbase of iaBoo y Las bev od tad vileatete oat 
“abut eats blouse ot danban'teh oct Yo sobtem eat pee Y 
tes ote dca tail Sawomy ould te eval Ye sane - yon 











eo bt om owe taut aaote toot west Ped ‘pie eee acd ll 

| howl wp te! sitoees rodents ods mh one le on ernst oe. 
| Ue aA ta sade peas ad aot a ’ i 
aL RasKAS 186 vk SO 1s = 
aaddat 10 Ath 3 a 10,8 an aw, 
ar ,. iy RAPED ae 


302 Ill. 40; Young v. Jamenan, 307 522, Tl; Peeple v, Levin, 518 
M11, 227; Lilly v, Liddy, 240 TLL. Av, 449; Reoehe ex re. 
Raftzmer v. Arnett, 317 111. 425; People +. Nordmeyar, 305 111.289, 


Befendant replies that, as there are ne formal proceed. 
inge in the Sunietpal court, defendant's affidavit becomes eubstitu. 
ted for @ pleading and in thus preperly preserved for review by ine 
corporating the same in the statutery record, Tale would be true if 
the trial court had civen defendant leave to defend and hed antered 
an order pormitting the affidavit to stand ae his aryvidavit of 
merits; but the motion was denied. 

; It ia next said that under the amendment of 1912 of 

Section 31 of the General Practice Act, mattera not properly in the 
record may be preserved eliher by bill of exeeptions, certificate of 
evidenos, or stenegraphie report or the trial, (Spieghs vy, Ine), 
276 Til. 184) and that the “repart of trial” inoluder 91] matters 
whieh were before the sourt. “se do not eo construe Section 81 as 
asended, This merely gives a cheice of metheda of preserving matters 
for review an4 is net intended to shange the general rule that all 
matters not properly within the common lav or statutery record must 
be etherwisn preserved for review. People vw, Ritechar, 301 T11l. 40; 


Milier vy. Anderson, 269 111. 603; Viliage of Bradley v. N.Y .CeRsieGg., 
296 111. 383. In the laet cited case the court maid: "It ie inma- 


terial whether the method adopted ta incorporate the proceedings in 
the record is by bill of execentions, certificate of evidence, or 
stenographic record of the trial." This has been held so many times 
as to require no argument. 

Thie ie not an independent proceeding te vacate a judge 
ment under Section 1 of the Municipal Court Act as considered in 
imbrie v. Bear, 230 Til. App. 158. ‘Yhis was 2 motion made within 
the term, 

The motion of anpellee to strike will be allowed. 





















as em wogh fEE)OMR. 
ate ht woe. r 





oft an wolves ack boveeno-n epeneonn sagas ak ate : 
at mee es bduere wit baeot ytususore one ah acne ot 


Beta wae oneemess ous ann eh 

te ELBE “te San sch ameter sus Tobiut dase lew haem ial a 
ee ak Yroqor tou anced ge fas 0 dtaecrs icant ae . : 
he © wtder it istos sansniewore La asia ee tate R cabbnpsicinas 


at He bea our i rronen 8 | 








_ is nel roee aurtene: “9 toa ob & tue emt 


sip 


enue drone eromusere + 19. wk nocecas ty abst by 
10% ars: roe 


Hae Bs? 










y Tie 


tat ‘ox 7” “than rxw09 ne ues beats apes s sid at 


a {ean 





Pa oan hs 


at agrtinewore aie stateqr coat ad hotaehe hexvo wad 


» ae Meee 


*6 «ooehhve ‘ke eteeitisues eemeraaorad to ani f ak 
“eval a oe io and ae mast * tales ose we 0908 


es A ee 





fe 


A wey 


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paul a 
eee ga Nay ie 


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This Leaves nothing properly presented fq) ue for review, and in 


thie condition ef the record the Judgment must be affirmed, 





Matehett and Johneton, J7., conenr, 





49 = 32167 


Tis PSOPLE OF TRA stare } 
OF TLLiNOls, 
Sefendent in Srror, | 

SRRGR YO GRisival COURT 
va, 

; GOGk GOUNTT, 
Ak NOTLOT, F 
Plaintiff in Error, 9 


BR, PRASIOLEG JUGTICR MeiURELY 
DELIVERED THE OFIEION OF THY COURT, 


Defendant was charged vith sacadlting Koay 2, Jicka 
with a deadly weason sad won ivial by Jury wae found guilty and 
gentencest te ninety faye im the county Jail, Te tenkes 2 reverwal. 

& petition fer changes of wenne wae dented, avd this 
ection of the trial fudge la ageigned for orror, Bo valid reagen is 
presented way the patition shewld not have been granted. The only 
reply made by the State in that nelther the petition ner the evie 

dence te support it is preserved by bilL1 of exeeptiona, but this 
ig om error; they are proeerly preserved by bill of exceptions, 

the agvault eceurred om the evening of Oetebor 17, 

1928, It is not elaiwed that defendant hiaself committed the 
aesault, but it is eaid that he was om acceswery defore the fact 
and therefore guilty as a principal, Defendant is « poltoa offi- 
eer of the Village of Lyons, im the evening of October 17, 1925, 
at about slewen o'clock, be and wnethes officer, Yuffek, then om 
suty, received « te) ephene complaint of a dLeturbunee et a eoft 
arink parler eslied tetlowkal's place. The two offiears went to 
investigate, Defendent Vetlow wae in wilfers md wore o police 
officer's ater. 

the evidenee ae to the nature of the disturbance is 
somehhat contusing, but apparently ‘the complaining witnees MNoka 
with two ether men were in Jetlouwkal's plage collesting evicence 

















My 


sonia 


os, on * eee: Y's i i ai) i . | 
sais oo) a na “’ ‘elias | 
rages on to AEE Ue COMET 


“190 #1 - be ¢ 


amt ek gRbUtoames ete bey carts sav Preihaedet a 

Bis “getty Brandt saw exert ee Keted wees showy eoyaee «ibs 6 ) @ ati 

rtewraree « eifeon of Etat irons ort! ad wesh ytente ot Denes 
“ahae bam boned new euney tn ayaecin wt umtitiog A a 

7 sonst bhiee ot storm t0 bonglene ok ‘egiet Lutes nit te 

ino est stadnaree anee svat sea bewedy noes Aaa es ew, bo ti 

obve ad) sem eaithvey sce cadtiou dude oh agmee one ad om : 

kate tod yewotiqnaae Yo Litt eS deempmory a2 aad 

“saiiad toa Ye tihe af Rewrite virageeg oe oa 


mag" mage Smiles 


Ay: sip ¥e wets C7 aa be tae ee fi) 





Sips FI W 


oe it ot a 


soneerning liquor law visiationsa, The police officers were told 
that some persons were exhibiting guns. They saw seme people 
standing in front of Setlowkel'a ond commenced te avared them for 
gums. At that time Jicka and his two sowpaniona came out of 
Setloukal's ond the officers searched thew for weapens, 

The complaining witnese, Jicka, says that the dee 
fendant, iotloy, atket him Bis name, which Jick gave him, That 
he then noticed “from the corner of my ave" that the defendant 
“pointed with hie thumb ty « fellow directly behind me,” and that 
the latter grabbed Jieka by the shoulder and that he wae etruek 
in the facie with @ gm or Wlack{aek, 

The witness Roore, who wae one of the men with Jick, 
said that ae Jicks walked ever ond eponed the door ef hie automo. 
bile sone man + not the defendant - wtruck him; thet he A414 not 
hear the defendant any anything. That he 41d not eae whet the do- 
fendant war doing. 

The other man with Jieka testified that he did net 
know whe struck Ticks ver how he was etruek, and that he was not 
positive where Hotiow was when the agsvault cocurred; the last 
time he saw the defendant he walked serose the atreet about five 
minutes before Ticks was wtruck. 

| Three witnesses an? the defendant testified that the 
defendant left the eume before Sicka wos atruck, The defendant 
ona Duffek searched everybody around there, and that the officers 
left before Ticks was struck, It var Saturday evening and, as 
usual at thie time, there were « great many people around there 
talking lowd. It wae a dark night. 

Motlow testified that he was a police officer; that 
he was on duty this evening, He and Sargeant Duffek responded to 
the eall and were told that there were some follows over there with 


gums; that he searched a bunch of fellows but found nothing; that 














ad oe onde & 


AP Rs 






tae i, 


| tom sb wa tase neh vert ‘alos a0 


be & oe 








‘, an 


Lo 


aid taahuntah wt hae 


I ee 


heats: sure ies rete amen, dae 











ys hd fs “f 
% > = 


Psat Jee 


he and Duffek them left and drove te the station where they ree 
ported what they had dene; that after he had been to the station 
about ten or fifteen minutes a gull came in saying that somebody 
had been elugged; that they then wane detloukai's place, but 
found nothing. Defendant says that he did not see Jicka slugged 
that evening; that he 4i¢ net know him before that evening; he 
dentes that, softer searching the men, he pointed with nie thumb 
tewardea Jicka or by any geeture direetod attention to him, He 
414 not see anyone struck there that evening, 

The evidence is ten tenuous to suepert the verdict. 
It iw hardly eredible thet Tiekn sould gee defendant make a noe 
tion vith ie thud on such a durk might. He du the only ene whe 
teatified to any geeture by the defendant indicating Jicka ae one 
to be aseaulited. Jicke's own companione say that they saw nothe 
ing of the sort, and except for Jicks neerly 211 the witnesses 
testified that the aguault teok plage after the defendant had 
left the seene, ‘the verdict not only did aot satebligh defend- 
ant‘'s guilt beyond a reagonubhle doubt, but 16 wan manifestly 
againet the welghkt of the evidence. 

Conniaint ie made of the action of the court with 
reference to giving and refusing instructions. Some of the re- 
fused instructions might well have been given, but we do mot thimik 
it neeessary te particularine av to these. pen a sesand trial, if 
there should be one, such errore will not be likely te oeour. 

the oreo? failed to sustain the charge, and the 
Jadement ie therefore reversed an’ the cause remanded, 

REVERSED ABD REMARDED, 


Batehett and Johnaton, JJ., concur. 





“0% add eset aaktata ad) of srath bam dal a, ‘MeYtg bae od 


Mae (bet aes ee a HOS 

‘melted off of ahead bon 8 age anes nen beut asta sate | “ ; 

eheweniGe iit) gibyss at eam Lise « aodunta “aoagitt ap any al aed teed 
sot itt w* tkaieshel” GNaew potoik ras pagan 


basadta eveth oro dea Mb sa sake awe Snphne OR -gabsts ~~ wee we. Sans 
yak awwe tasty eroted wit weal fon ake mi fast raaioye fast 
dius aks tw kebatoe 9a oti 6a sadsesese wots Bc ss bread 
ot add at walrieste petuont® oxedeon, wo ‘We te 9 mle Gare me. 
oe uathoeve dorks went dose sag 98 fem Bhp 

stettcey ost Seeure ot nmonens oot at “tononive icing ey 


aon a gel ‘yaahie v0& eee binao stent sant aati 


wes wee 






















bis ak dt taiek Sos Seaton, oN Sid - 
, S csquead oa eheurnascmk Sheena... | 





sbinteh eaisnvnn sou 92s vlan tga Painane apt saves 9a as 

"yb tk a fast iad shlanennos as eet 

Asie fare ‘see otava eet oe ma at tanta an ae a 
sot oat Te ana smooleerntand Bitiawter nn gate | 

$08? on ob ow ted 0d a8 MRL Law fon oe Ps 

‘Sk fobrd hawpna © seat somes of a Ondtasnoss tog at hil it 
a ‘enti ChOsht of Hom Lem cee se oe hiesde wnat 


gh iy Shee f Be a eee 
















ey Pp ivik oneal 
iach eoncneie ab Hone hs pene a 

Sie Saas Sh ig peas a Habib ee ig Sea pe AE ted hh aid pond gil 

ee r ne .. baa oan trea ime | ae i 


a ee AN j r ; oe ne PHY et Spun me 
iit SN cavaak. HAR Re Sa Ee eo a baaiaie | iu wi rad 
Me a yee . mg 





73 = 31197 


PSOPL2 OF THY STaTe OF TLLIROIS } 
ex rel. @GLIaAk, } 
Sopelied, 
‘EPEAL PROM SUPERIOR COURT 


GF COOK COUNTY, 


vs, 
WiLilam &, DIVER, Bayor of the 
Gity of Ghiecago, 42, ¥. GRAN, 
Gity Clerk of the vity of Chicago, 
THOMAS FP, ESAKE, City Gellecter of 
the City ef Ghicage, amd BORGAR 
CULLEN, Superintendent of Police 
of the ity ef Chicage, 
Appellants, 


2 A4].A.697 i 
WA, PRESIDING JUSTICH MesURELY 
DELIVERED THR OPINION GY THe couRT, 


Thie le av appeal by the defendants from an order ene 
tered wron a petition fer aundamue en belinlf of Serafin Goliak 
for the tranefer ofa retail bewerage desler's license, The 
eauee was heard by the court, which found the femues for the 
relater and entered ite order and judgaent directing thet the 
writ of mandanus issue aguinat the respondent Willian &. Dever, 
Mayor, The appelles doce net appear in thie court te defend this 
Judgment, 

Several pointes are made by the defendants, but one is 
sufficient to justify « reversal. There ie a fatal variance be- 
tween the relief sought in the relater's petition and the judgment 
entered, . 

The relator aseerted that he bought ea certain piace 
of business and afterwarde applied for a trenefer of the license, 
that Willian F. Dever, Mayer of the Oity of Chicago, refused said 
transfer of License te petitioner and the petition prayed that the 
writ of mandasue be iscued directing Dever te grant sald transfer 


ef license, The Judgment orders that the writ of mandasue iesue 





against Williem &, Dever, Kayer, ond “he is hereby ordered te 
iasue a Retail Beverage Dealer's License, Claes 'A' te Gerafin 
Goliak. * 

This judgeent wae erroneously entered. The petition 
does not allege thet the petitioner ever agplied for a retadL 
beverage dealer's licenet, oni no facts are set forth therein 
to establish his right ts any such license. ‘The petition is 
predicated solely uwpoen the dexand and refusel te trenafer a 
retall deverage denier’s Lieaise, The Judgaent is not responsive 
to the iseue made by the petition and snawer., Tt le welk es- 
tablished that a judmaient wet conform to the shiegatione ef the 
petition and precst, and that a materiel varionce between the 
relief sought and that awarded is fatei te the Judmeent., Belford 
ve Vondward, 198 T11. 192; Berty Ures Pelakow, 181 Tll, App. 





Yor the above mentioned reason the judguent is 


reversed, 
REVERSED, 


Matchett and Johnston, JJ,, coneur, 


Tay: 


Ae 





104 «© 31943 


a 
THE PEOPLE GF THE STATS 
OF TLLIF0IS, 
hefendant in Rrror, 
va. 


ALLAN VEGELL, | 
Plaintisy ia Srror. 


RAROK To THE MUNKOLPAL COURT 
G¥ CHICAGO, 


Ai, al 
9AAT.A. 62 yy 


43. “kt ‘i ofhe 


WR, PREBIDING JUSTICN MeeuHaLy 
DELIVSRED THE OFISION OF THR GOWRT, 


My information 1t wan charged that the defendant 
with an automobile wiifuliy ond molialensaly wade on enaanlt apon 
Denonick Cusamene #ith iautent to infliet ween him bedily injury. 
Yeon trial ty the aeurt defendant wan found gublty and Sines $25, 
He secke the reverend of thie Juignent, 

The seeldent happened on Jone 17, 1986, at shout 
9330 o'clock in the evening, nt the fiterasotion ef Longley eve. 
mee and 78th street in Chicage, Defendant wae golmg south on 
Langley evenue driving an cutemebile, ond Susamene ves coing 
east on 75th etreet sn a metereycie, | 

Surameno tenet fie? that ae ke aperagenhed the intere 
section ke wae going ot the rate er ten or fifteen miles an beur, 
when suddenly the ¢efondant shot in front ef him et the rate of 
seventy-five miles an hovr withont secumding any geng er tignal 
er giving any warning; that the trafvig at the intersection ras 
*eretty heavy,” whieh prevented hia fron seeing the defoudant's 
nex, "It was not very light,” clthoug) wie street lights were 
Lit, Cusanane's sotereyole struck the autemobile and he wae 
threwn to the ground and infuret. On crore-oxunination he endd 
that the defendant wes about four or five feet way from hin when 
he first saw him and thet he wes mneble te state how fast the 
aefendant wae going. 


“esa As ae 





The defendant testified that he wan going south on 
Langley avenue st about ten or Fifteen miles wm hour: that when 
he came te 75th street he came te «= "new stop" ad looked first 
weet ond saw nothing exeept sonething nearly « bleck sway meving 
oantward; thet 1% wag quite dark at the time ond he could not aee 
hew faet it wae coming; that he saw an oantommbile coming from the 
eaet and put hie car inte second gear and cleared it; that when 
his driver's seat was about on the aoutherly street car track he 
agein leoked west and sav a motereyole about ten feet sway going 
what he considered "pretty fact"; that be stepped @ Little harder 
on hie autemebile te get over, but hie machine did net plek up 
fast ond it wae etrusk by the moteorcyele om the side; that ofter 
the accident he eteopoed bie car end saw Cugamane on the pavement 
and a man picking him wo; that be then went to the drug store on 
the corner and gslied wp the police department, smi then saked 
for the names of sone witnesses, Ke remained on the scene of the 
accident until the selice can, 

There was other evidences tenting to shew that the 
street intersection was not well Lighted, 

The fugte in this ease come squarely within the 
decisions in People v. Adame, 269 111. 336; and People v, Anderson, 
SiC Ti2, 300. It ia net the lew that « person is oriminally liable 
for every act of mere negligence. Keekless md wanton negligence, 
as applied te the rumming of meters ond vahicles, implies a positive 
disregard of the rules of digence and a reckless heedlessness of 
consequences, Ordinary negligence merely denotes a negative quality 
im a person im attending or discharging a duty. 

Asnuming that the collision tock plaee because of the 
negligence of the defendant, the evidence does not prove — than 
this, The only evidence tending to show recklesmens wag/otatement 
of Cusanane that the. defendant's oar wae running at the rate of 
seventy-five miles an hour, dut he subsequently adisdtted that he 


fy 





ae stuen ptiing wav oe sans soll seo raahaatek eee cea ‘tuk 
fae tat Penk Be ohm ORES x8 He junda de ancove eo Syiced 

| iE beato i *oone wisn" © 2) wmne out Soente 20 of sae oa 
gay ec os Sooke elem yulifenae dqtome paditen mam haw Pepe 
oa fan Pderne od baw oul nis fs Seah Bikup ser 01 taut thumntane 
At et gates: ath amerue ne wR oe smelt igartaon sme ot dent wed 
anaiw tact jak pewaaty. me sion Seen onmk 08 ete fom ban tea0 
aif Hons tay JonTIN Uledtvon nai ap tutgda aww dams atyovinh abd 








aeivg Kome Feskt awa sind sforwrotsn «ous hem deny Dinleod mga oe 





teem ASE LE w oydoesy wat Sekar {Medhek eeaeny” Byleehaem 

| te tos at Be ‘stibsivets ate aed eons bey ot whisen . : 

ies peer bine ait a bed Fucnianed wt oa smirntis ert et 
ce idl me Atanas tsen » on o etna” Sas wet 


cls ait file 

















wae wmoble te state how fast it wae going, We must therefore ace 
eept the testimony of tue defeniant that av he apsroached Langley 
avenue Be Yae going only ten or fifteen miles an howr. The darke 
ness and traffie evidently prevented either sarty from seeing 

the ether im time te ewol4 the collisian, The defendant's senduct 
after the acoldent aieo meretives any wanton er wakieloué intention 
en hia part. fe mtayed on the seaene end teleghoned te the neolice 
department, regerting the aceifent and ressining until the police 
appeared, 

We ahowld not be utideratood am holding that the cele 
aivien ocourred seleig through the magligence of the defendant, 
Se area expressing ne opinion on that point. «6 de hold that the 
evidence fuils to prove the gaarget in the information, namely, 
that defendant unter the ¢lreuetences showed “an abandoned and 
malignant heart" ond “unlawfully, wilfully oni maliciously" made 
an aaeankt in and ueen ome Genonieck Cumamate with intent then and 
there te infiiet upon the pereon of said Domonick Gusamano a bodily 
injury. 

The fudament ie therefore revereed with « finding of 
faet. 

RIVERSSS VETN «4 FIPCIRG OF FACT, 


Matonett on4 Jonneten, 77., eoncur. 


¥ 


i 


tN 


% 





104 » 312353 PIRVING GF FACT, 


We find ae of ultinete fagt that the defendemt dia 
mot om the 17th day of June, A. D. 1926, ot the City of Chicago, 
in esid State of Giineis aforesaid, with « certain inetroment 
eoomonly called an automobile, cald sutemobile being a dmmgarous 
and deadly weapon, *ithout any considerable prevocntion whatever, 
and wader eirauwmetaness gheving ah abundened and malignant heart, 
wilewfwliy, wilfully and maliciously make an aecenht im and wen 
one Deneniok Cusumano with intent then and there to infliet upon 
the paraon of sald Domenick saseecniel 0 NS injury, contrary te 
the Statute in such oswe cade and provided, and against the pesea 
an4 4ignity of the People of the Gtate of Thidneois, 





115 » 31248 


PROPLY OF THR GATE OF ILLINOIS, 3} 
Defendont in Srrer, 
BRAOR TO MUNICIPAL coURT 


WD es 
Bie O¥ GHIGCAGS, 
AICHARD &. PARKER, 
Plaintiff in Srror, 
§ A OE fh {2 Sy ¢ y= 
2 A vA A. AW a » ead Kasi! 


eS od ow 


WR, PRESIDING JUSTICE mesuNRLy 
DELIVAHED THR OPINION OF THR coURT. 


Kury Hampton flied «a eompleaint charging defendant 
With wilfully ond wilarfully keeping and carrying om on amploy~ 
ment agency in the City ef Chicage without firat procuring a 
lisense so to ¢o frem the State Board of Commissioners of Labor. 
Yeon trial by the esurt he waa fownd guilty and fined $200 and 
costs. He seeks a reveraal. 

The abstract does aot purpert to centain ol) the 
evidence heard on the trial, We must therefore ereeume that the 
evidones, Lf completely stetracted, wowl’ sustain the judgnent. 

weki, “18 TLL, 104; Glos «. Shedd, “28 122, 00; 
epeft, 9049 113, 203. A reviewing court will net ax- 








awine the record in order to reverse a onse, eines the abstract 
meet contain sufficient evidence te Justify the court im auch 
Sity of Chisage, 902 ILL, App. 139; 
mam, 170 Til, Avy. 7%, 

tery Hampton, the eemplaining witness, teetiniod that 
she ei « eign over the d4efentant's office which said "Jobe." She 
tol4 Parher thet she eas locking for a job, and defendant told her 
if she gave him $5 he would put her to work in the morning; that 
he gave her » paper to sign, which she signed ( tte paper does not 
aopear in the abstract); that she did not get a job, and he again 
promised te get her a fed, but she neither get # job nor her money 


baek, 






Am eA ene tates A ee ne 





Thomas Rouchier, on inepocter of private ompleynent 
ageneles, called upem defendant's plage of business and made a 
Fequest that the complaining *itneas' money be repaid te her, 
Defendant told the agent te get eut. On the ineide of defendant's 
place ef tuniness war o large pleeard stating persone were wanted 
for different Kinds of work, Defendant told Bowuskhier that he wae 
the preclident, seeretary, treasurer, and everything that went with 
the concern. Seychier testified that Parker had no Licence. 

It de geneudet that ¢eferdant hed no lieenee, but he 
Claims that he vae acting fer - sorveration which secured jobs fer 
mesbers only; that the nome of the servoration of whien he was 
president and generesl mansacer wes the Americmn Unity Yelfere League 
and Labor Tmlen, and thet Mery Faseten paid her five deoliscre te 
Join the organization; that he vas acting for thie cerveratiaon and 
mot ae on individual, The trial court wae eridentiy of the epinion 
thet this alleged corveration, the exictence ef which does not ap- 
pear to be proven, wae waréiy o Sleeuier by whieh defendant carried 
On the Gusloeas of an eopleyrert agency. The veserd bevere us amply 
justifies thia conclusion, 

It in said that dafendant is charged with ome offense 
and fowad guilty of spether, Tha abotract saye that the court found 
the defendant “guilty in senner wt fore as charged in the inforwa- 
tien," We 49 not widerstend the baste of the contention that there 
ie a variance betveen the futigient ond the charge. 

It is aeserted that the fine is exereeive, but there is 


RO evidence to support thie. The court might well believe thet the 
defendant's alleged corporation vas merely a blind te conduct am 
employment ageney through which he wight fleeoe ignorant and une 


suspecting people, 
fhe Judgment ie affirmed. APFIAMED. 


Matchett ant Jehneton, 33., conour. 













Re} 


ovo at + haa vd ypicem: + earn tn estaiecaae: a teste 
at tuniae ten te haved one ag i seus oe ne Adee 


tbat. 


at tet. sone UE a san bate, 


et ane iieh get si se: scr oe: A 8 me ne 





rae A nae ae Be Mia ome i ve oy 
ete 


Wy 
r 


Jills ee 5 Heide di 


, ON ae oe aa NT, RP CRE ee ’ sa wpa 
MRE BER NE cae tbat pe ll! ie oA 





137 = 31267 


R, 7. DYYRA, Trustee, } 
Appellant, } 
ua APPRAL PROM MUBRIGIPAL copper 
OF GHIGAGO, 
ROYAL IRGRMNITTY Cueeany om a 
oF SEY YORK, PAA '.A D 2 
Appellee. ; ieee riers 


UR, PRRSIDING JUSTION MegURELY 
MMLIVERED THE OFINIO OF THE coun, 


by this appea) plaintiff eeeko a reversal of an 
adverse judgment in a case tried by the court, im which plaintiff 
sought te recover en a burglary inevrener pelicy iseued by the 
defendant. Plaintiff ever in the trvetes for the benefit of the 
ereditors of the Cooper & Pellock Bootery, o eartacrahip eaxpened 
of Rert 2. Pelleck ond Kenjawin Geaper, hereinafter sailed plaine 
tiffe, engeced in the retail shoe business af 5610 Test Nadieor 
etroet, Chicago, 

Piaintiffa claim that « burglary was committed on 
seid presises on Hay 19, 1925, by reason vhereo! they suffered a 
Loss in merchandise to the amount of 049791.20, for which defend. 
ant, under the terme of Lt poliey, ie ebliguted to indemnify them. 
The defendant denied that any burglary tock place as claimed and 
denied’ thet the plaintiffe kept books and seccounts as required 
by the policy ae s canmdition of liability. Upon the trial the 
Court was evidently of the opinion that the alleged burglary wes 
net genuine an¢ sleo thet the insured had not kept the required 
benke of account se that the exact smeunt of loss could be gem 
Qurately detersines, ané found for the defendant, We are of the 
opinion that the evidence fuotified this conclusion, 

Wee there a real burglary? The partners, Polleck and 

Cooper, were conducting = lesing »usiness in the spring of 1925 


ae 


Ts 


saree NONI IME SAE 
bcs ga ~~. 
4G 0 “ALI A MES S" 














gay ue ie aie iineaailes 
GER Yo! atone eat VEX, —r as ea {het ies 
hae ah Hi detextaer oe 
ele bi fen tee watered eile / it tk: 
Dcigeaccia ata ito ani ‘nhtigss: ener 
npr ner com tte veseiunie, 
ere eer mere ww RE 8 em ue. 





and their erediters were oentinusily pressing then fer maney, 

On April 15th tuatnese wae eo poor that after consulting with 
their largest eretitor they determined te Liquidate their buniness 
and s#1i the steck ef geode on hand, Gm April 28th they proeured 
from the defendant the burglary inwurance policy upen which this 
mult ia based. A olesing out sale was commenced about May Let and 
continued until May 16th, It wae claimed that on this night or 
the morning of the LOth the burglary oscurred, in which about 
@leven hundred paire of shoes were stolen by burglars, 

the atere wae equipped with a Kelianee Alarm system, 
whieh consisted of a twelve inck gong lvocntied on the outeide of 
the stere over the front sie windew. The windows amd glass door 
were lins4 with tinfyil in such « way that the breaking of the 
glass completed an sleetrical centact whieh omured the gong te 
ring, ‘here wae « ewiteh for turning this slarm en and otf, near 
the rear door of the store, about vorty feet from the front of the 
building. The fron? deer wae on the Left side, im a sort of ene 
trance, about four fart deep. To the right of tha door, and exe 
tending te the main front window, wae a wialler shew window with 
& glees about eight feet Kign. Lack of thia windew was « display 
S9ace separated (rem the rest wi the store by a wooden partition, 
in wich there were two auali deere opening inte the store reom, 
which were fastened on the inside or store side of the partition 
by catches. 

Polloek testified that as elesed the store at ten 
e'vleck on the evening of Way 14th; that he locked the baek and 
frent doors, turned on the burgler alerm switch ent turned off 
the lights; he knew the <larm system wae in working order; that 
when he renched the store about nine o'eleck the next morning he 
found a hele in the glass of the small shew windew, te the right 


eof the front door, «nd a brick lying on the fleer of the show 





ay watz oxane MOE ent Tame. 98 ane nN wails ot e 
avanieod rhe tpabhephe of Shainnttor eect sea kbons ¢ ace: ihe “ 
DetTORTE baal eee Liega eo hited a6 whois to. sane at “a bee a 

vidt aebdie now wiing aonaieRs YHOKuUAT O62 tenbaa TAD nae” 

pax tn ad Yooun Sessoms aw akan fue walnaie bana 9 Sah 

te tiytn aditt no Sede halnty or, a tet, vg ph gi . ; 
rota wns a 2 shane ad ate 















” ates we nin worse oa a ies ie 
ay eos Vie Be: Be ites sity iistwe 9 
ots w Ltt a id cid ot the . 


wien a propemer) ou ele te ‘puted panini ee 
sa ine i Me pe il 


window with broken glass on the entrenee floor and the inelde of 
the window; that the hole wae jagged, sbeut « foot aad a helt 
equere end twe aid a hal? feet trem the ground, ie found the 
burglar alarm switeh turned off, the baok tooar open, and the 
shoes mineing, The shees hed heen taken oui of the boxes bet meat 
of the texee were in their plages on the shelvea, although nome 
were on the Mlecr. Ne netifiet the police, 

Pauley, the jeniter of the tuliding, testified that 
he swept tue sidewalk im front of the store at seven o'aloek on 
the morning of Bay 19th; thes he sethoed a anies sign in the 
email show winder and etepred te rend it, ond that the glesm in 
that vintew wae not breken at tint tine; that he swept owt the 
entrance and was within « few inches ef that windew, After finish 
fug he went heme fer breakfast snd returned showt nine o'clock; 
he then neticed the sign was off eud e kel« had been out in the 
glass as if it had been out by & glass cutter; that it vas a square 
hole, one wide of which wan jagged. That he went inte the store 
ond telked to Pollock ond « Ur. Simenson whe wan rumoainy the gale 
for the pertuere, Pollecy telg Simeneon to clive Pauley a pair of 
shoes which wee ¢ene, Sixoncom saying, “If anybody comes eround 
and asks yeu whet you seen, tel) thee ne, you didn't see anything. * 
Polleck wae etem4ing right beside hic when thie wae esid, 

tuhe was « boker where chen was four doors from 
Plaintiffe' wetore, fe testified that he wae werking in his 
bakery from twelve midaieh?t of the 14th wetll twelve o'clock noon 
ef the 19th; that he wae in the back part of the bakery with 
anether wan, They had a deg tied to the back door, All the 
doers of the bakery wore open. They worked about fifteen feet 
from the back 4oor. one of the machinery wae runsing, and the 
Witness’ hearing was good; he did not hear er notice anything 
unusual that night or merning. ‘That it was necessary to pass 
his shop in order to get from the rear door of plaintiffs’ store 










gee Ren . 
«de oaet ‘elu cha "sl erry 
git heer ynote eh and Sa), Nomaut Me 
“Hata hs weed wit Ye see 


Yo dee anaes vet boat wwe 0 


5 eR: 


a 












“gest matt idord Poe wi bepoers ae 
aa oni! owes te an at t er at dome 0 
Rio) 


Cr 








Ponsa mat fal ae = te? sy ee Gags 


etre 9 al cant foe hast a “teagan sad . 





to the alley; the partageway was tepmarrow for an automobile te 
pase; that he heard no gong. 

Collie testified that he and hie ‘amily vived die 
rectly above plaintiffs’ stere; that he was home From 1O:3¢ p. m. 
op the 19th until shout 7:00 «. m. om the lth, Mo slept in the 
front reem. Hoe did not sleep very seundly, fe heart ne gong 
sound mor 414 he hear spyoms walking im the store belew, When he 
left abont five or tem minutes after seven in the morning he saw 
Pauley eveeping the ui dewalk, 

Officer Surke teatified that nene of the eatches on 
the partitien deere from the window te the atere was broken, The 
back 4oar wae epen, but there were no marke of forge on it. He 
tentified that he theught that a man wveuld ve taning a great chance 
to get through that bole im the window. Yhe ewpty shee boxes, with 
the exeevtion of a for, wers im oxder ov the alalves, 

Amotaer efficear testified that grior to the 18th of 
Bay he suggested te Yelieck that he leave ao light in his etore at 
night e¢ that polies officers could wee Af anybody was in there, 
to which Yelleck reyliod, "1 sheuld werry, i om covered by insure 
ance,” 

Peliosck'’s tewiiseny wae contradictory in many reese 
pects. For invitees, he siated Sant as soon as he came te the 
doer he noticed the window wae broken, aitheugh in the statement 
whieh he signed just after tae slleget burglary he seid he epened 
the stere in the woul way and did not knew that there was any- 
thing wrong witil he went te turn off the olerm and saw that the 
store wan littered with boxes, That he then investigated and 
fount the window had been eracked. 

It de wighly deprobable taat «a burglar woul’ cut s 
hele in the glaes window or could Aave crawled through & hole 
Plased as this was ahd 8G wmsll. Also, how could he get inte the 


: awe bana oe “sae cone one ta ote om 





estore through the partition dcore betwean the shew windew ond the 
etore reom without breaking the cateheat from Fauley's undentied 
evidenom, the alleged burglary must have taken place ia duyligns 
between 7:50 and $260 o'eleck in the morning, it is tooredible 
that burglare could in this short time have rewoved over one 
thousand paire ef shoes from their boxes or would have replaced 
the boxes on the shelvee or could carry the shees away through the 
back door without the neighboring baker or hie helper knowing any- 
thing about it. 

¥rom theae and other clreumstances we eannet oay that 
the conclusion of the trial court that there was no genuine burge 
lary *ae manifestiy contrary to the evidence. 

The peliey 41d mot cever lows “unleas hooks and age 
counts sre regularly kept by the insured and are kept in ouch man- 
Her that the exact asiownt of loss gan be agcurately determined 
therefrom by the company.* That sueh a gondition io a reasonable 
one and that the failure of the insured te comply with it wild 
relieve the company from liability, has been held in German ineure 

nce Ur oe & Up., 67 IL, App. 370; Merehante Kationg) Ine 
Surence So. v, Dumber, 36 111, App. 574; Bingars 
Ye Forehand, 169 111, 626; wee aloo 14 A, OC. L. 1140. 
Plaintiffs kept no inventory records whatever nor 








any other books from which the exact amowst of less om Kay 19th 
eould be accurately 4e‘ermined, There wae an attenpt te obviate 
this failure by intro¢ucing a so-enkled balance sheet or finenctal 
staterent, but 4t wae shown that this statement was made and given 
te the Flersheim Shoe Company for the purvese of obtaining eredit, 
Purthermore, it wae dated May lst and not Bay 19th, the date of 
the alleged burglary. All original sales slips from the easn 
register and all invoices were destroyed by Polloek and he was 















dines ne Bek oe ‘i ‘gaat Shier as vaxtabien ina tee ol 
sivinerwal ok NY Qwkictom ote al mnie ee ew bekndl hows 
‘one wawe eee ‘evan @aly ey sist ah bes waste wit a 

one ide avail -btede ve Wexed Ceaity swore aso te antag b expe a 

it Aupotatt queen ‘pone wai eee laa to rw" bal ie ns nef ® | 
“ye wanelies omen ake 8 tind wat Mewidgten (awit ne weak tae 








Sie’ ud dkktieded ge an vast bate” tei “anti ae eet propre s om? 


Lt Xi 4 he Bic a 











cee bee aati fap nee iss sad si bn ! sy 
“wai Baie “ah tows « ote Ante herinwind ote ur a eteetusne pepe i 4 

S oaseasmaas Ssaionagnal td he ae » scan one ad aca «s 

‘ ‘tte 3 a ‘ste vititen ae | den at vi we ae eer ae a 















“gee on He eek tn ad Se $8 


| tatomints 0 fence wanted on yaon # artad 
-#hoes » neiatuoee ‘ee iain arate, aia ah wo 2 at Lees dome « 


vot yo) ae ty a Bie PARE 


er Sd bee a 


PRY. tye # $i; 


wnable to prodiee any of them at the trind. lie adwhtted that the 
decks contained only figures and did net tell in detail “wast the 
stuff was." The court was sustified in concluding that the 
Plaintiffe 414 not Keen the required becke and sceountes, 

Gouneel for plaintiffs complain that their action 
for a non-svit aheuld Have been allowed. Such & motion shewld 
have been wade before the court states Lte finding. Municipal 
Geurt Ast, chap. 37, ene. 413 (Oshi2l); Wedge wv. Comm, 202 Tai. 

» S02 Ill. App. 230; 


eRe, 174 Lid, app. 273; Doube wv, suppenhelmar, 
272 ila. Si. The receréd bere shows that the plaintiffs’ metien 








fer a noneselt wae wade too late, 
The Judgeent is sorrest ond ia arfiraed. 
AFVIAKED. 


Matehett and Jennoten, J7., coneur. 





My 





* he 
heel a 
hi 4 


267 = 351793 


MORRIS PSLDBAM, NATHAR RK, FRLGWAR, } 
DAVID I, FELDMAN and ABRASAM FELDUAN, ) 
Deing Business as &. Feldman 4 Bonw, ) 
Apooliants, } 
ce APPEAL VROM MYNICTPAL COURT 
Y OHY CAG. 
00m aommen, OF CHL CAGO 
Appell ee, 


ie < - pe Cal 
A a’ fe BP DH 4 
; f i 4 ED J oi 
5 & oite NP Ad ae 
= 4 ; 


BR, PREGIDING IVGTICN NesvneLy 
WRLIVERRD THA OFTHION OF THE COURT. 


thie in an attachment auit tried by the court, which 
fousd fer the defendant, Pisintiffa sppealed from the Judgment on 
the finding. | 

The affidavit ofor attachment alleges that Aefendant 
owed the plaintiffe $174.50 Yor goods sold and delivered and that. 
the place of residence of defencant was Philadelphia, Perneylvania, 
and that ‘paid defendant sae departed from this state with the tie 
tention of having hie effects removed, and that he le about to 
reaeve hin vroperty from this etate, to the injury of the plain« 
tiffs, Defendant filed no plea traversing the allegations or the 
affidavit, 


The eaee was tried in a logse manner, Defendant ate 


mitted that he owed piaintiffa the amount glaimed and apparently 


the ¢eniy content wage the attachment. 

Plaintiffa' attorney in his brief says tuat the 
Judgeont must be reveraed for the reason that ae defendant filed 
no plea traversing the facte stated in the affidavit upen which 
the attachment issued, suck facts are therefore adimitted, Chap. 


11, fac. 27, Ill. Stat.; Gone y. Lincoln Stare, 209 Lil. App. 400; 
Lloy4 v. Lingoln Stare, 209 I11, App. 422, 


Refendant's brief makes no at .enpt te controvert this 


eHOAUTED TO 


VOSS AT Ks 





{ee i 
oe a 


ara eae of le i 
doki~ , ewok ani ed peaas cis damastone te a ab ote oo 
NS eS AD 


Be Faery bork, sad oan agentes avttinte rt stauhao tee ond tex ‘paw 
ee patna oat 






dain tian Sa: 0S EN Aele , sieneen OAT aR 





tnaeales’ ‘fans enue gawmwioetia ote divabivha eet 

gatt baw betevlieb baa bion whe iy, Tod Ot aeE wvrbintate aly endl 

biaar hyase ts  aiaaaanniataosaail maw faavaorod to weaohions . ‘ uh ig 
«ak ant? ate sgeoe abet soe hesnuceh ames taahan ter phew bade: oon 
oF swede at ot fxd baw doves oiee'tte wld antead Yo sotdemt 
wake ty one ie esked wae ov podeas white mort yteegeta ht oven 

isnad te anodtage tin nit gaterewer? alg om belt: fsa haan tot n't 
snivasrtta 








nhs naben vert sasumnabenenm lic cesshadlynisl ged egal 
se wae han heateLy Smmowe ote ave daatete “bewe ost rast eden 
-tamcionitha Lon — deosaoe eda sell 





point. All the casenm cited by him are cases where a plea wap 
filed by the defendant, As the point of plaintiffs ia apparently 
coneeded, the grounds wtated in the affidavit for attachment must 
be considered as admitted. 

The judgment is therefore reversed and the cause 


remanded, 
RAVEHSED AND REMANDED, 


Matchett and Jonnaton, 7),, onneur, 





198 = 31327 


JACOB NMERLEUSOH, ) 
Appellee, : 
APPEAL PROM SUPERIOR courT 


vs. 
OF COOK couHTTY., 
HENRY A, KEYLBUSCA, 9) . ee } 
ao Appellant, w@A4 iA. OK d 
a | 2 


BR, PRESIDING JUSTICN MeSURELY 
DELIVERED THE OPIBION OF THE COURT. 





This is an appeal by defendent from an adverse judg- 

“ ment for 95572 in an setion brought on a check for $4400 dram by 
him and cashed by plaintifY. The verdict ef the jury was fer the 
amount of the cheek with interest. 

Plaintiff deelared on the common counts, to which 
@erendant riled ‘ plea of the general ieuve and aleo asserted that 
the check was given te plaintiff as consideration for an illegal 
transaction, and filed a plea of set-off, claiming that he had 
made loane te the plaintiff after his check was cashed aggregating 
more than the amount ef thia check. 
Defendant's counsel agserts that this is a controversy 

between brothers, and that the transactions between them arose 
out of ynlawful deals in liquor. ‘hey are described as “boot- 
leggers."” Plaintiff testified that he received the cheek from 
his son (defendant's nephew) and « man named Getty, a “boot- 
Legger,* and that he took the check down tc the bank and got 
it cashed and paid the money over to Getty; that he cashed the 

- gheek because his von told him thet the defendant said he should 
cash it; that he asked why the check was not made out to Getty 
and was told that defendant did net want Getty's neme on the check; 


that he, the plaintiff, knew what Getty's business was at the time 


he took the check. 








Tags ROLAMMA OKT TANT 
“epuros Bod to 


ESd AT AAS 


xagneen exten SULCTeGHS =. Aw 
Rie) we TO waTELen aRY CAMRY LASKY 











eis ser sav ‘ean ent te pails amt .Ytidetate nt ba 
ae .tuensdal dehy towdo vit to | 
Kodsw Md ,Atiatoo aguiaiog OTe ne bei iveh “eticate feet 
tens ‘beltepns obfe bas oneal Lexsaey 909 tp ete a “Bel, jouw 7 
“Hoyeitt sme 202 aot ohienee na Yetsatase oF aorty saw oesia at 
had oct doit shintete ,Yreatee to wola a Be flt ham ooltoeonee 
| atten tage bated pew “oare ole Sed'ta Thidabete ont of easel eben 
toads okt to Pappa ade nats oxen 
Udteverines 6 al eG InXt asaeene Donawos at dacbaetet : lage 
ohola meet werted anotisawnexd ocd fedd ban ere aosmeed 
 adoed" a2 bedivseeh ors gal .xeuphd mi eiand tote tn te tee 
Se ee odd Lovdrost oh tase hottidued Ythente rt ‘oan Welty 
nbede™ 6 gtde0 homme cae 6 bin (wesiqae a taabasted) aoa okt 
| fy Bm nes we ot cas doen act Sot ok fad mw * eenaN 
bee sae aala nena ot ee ee a sr re * 








195 + 31327 


JACOB NERLEUSCH, ) 
Apnelise, ) 
APPRAL, VAOM SUPIRTON cover 
¥S,. 
OF COOK somrry, . 
HBERY A, MERLEUVSCH, 
Appellant, 


MA. PRESIDING JUSTICR MeSURALY 
DELIVERED THR OPTION OF THR cOTAT, 


Thie is an appeal by defendant from on adverse fudge 
ment for $5877 im an aetion brought om « cheek for $4400 dram by 
him and eashed by plaintiff. The verdiot of the jury was for the 
amount of the cheek with interest, The olaintiff does not appear 
in thie court te defend hie Juctgmeont. 

Plaintiff ¢eelared om the comeon counts, to which de- 
fendant filed a plen of the general teene on? aleo sanerted that 
the cheek wae given te plaintiff ae caneideration fer an illagel 
transaction, and flied a plea of seteoff, claiming that he had 
made loane te the plaintiff after hie cheek war cashed aguracating 
Bore than the imawnt ef thie cheok, 

Defendant's counsel asserts that thie in a controversy 
between brothers, an¢ that the transactions betwee them arose out 
of unlawful deals in liquor, ‘They are deseribed as “bootleggere.” 
Plaintiff testified that he received the check from his som (de- 
fendant's naphew) and a man named Getty, a “bootlegger,” and that 
he teok the cheek down te the bank and got 1% cashed and paid the 
Money sver to Getty; that he cashed the cheek beeeuve his son told 
him that the defendant eaid he should gash it; that he asked why the 
check wae not unde out to Getty and wae told that defendant aid not 
want Getty's name om the oheck; that he, the plaintiff, knew what 


Getty's business wae at the time he teok the gheok. 





It is claimed that this transaction aross out of the 
"“bootlagging"* business and that it was reversible error for the 
‘gourt to prevent the orase<«examination of plaintiff as te hie 
knowledge of thie fact. This exuuination shoulda hare been allowed, 

The dafendant tertifies that he leaned various sume te 
the plaintiff, aggregating 24400, whlch were newor repaid, and supe 
ported thie by introducing ehecke given te plaintiff. Plaintirr 
gays that he was “pretty sure” these checks were for merchandise 
whish he had sold his brother, Yo negative thie, defendant tes. 
tified that he had given plaintifr a nuwber of other checke for 
various sums, which vere for merchandise, and offered euch checke 
im evidence, whieh he eald contained notations wiich distinguished 
them from the cheeka given to plaintiff fer Leena; but the court 
refused to allow theee checks slleged ta be for merohandise to be 
intreduced in evidenee. 

These cheeks ehowld heve bean admitted and the defente 
ant permitted te testify ae to now he identified then from the 


be 
ohecke alleged te /eiven to plaintiff for loane. Thie vould have 


tented te suppert defentunt’s plea of atteo?f and alas to refute 
Plaintiff's denial that ®e wes in the Liquer business, 
For the reapone abeve indicated ,the Judemeant ie ree 
versed and the cuuese renancded, 
AZVERSLD ABT) NEMARTRD, 


Katenett and Johnatoen, 77,, concur. 


hawolsa ouisatilia phe 


as — r aolaey none ef ect 


cairn as tor ete | mina ile oo % 


Wik eee 





R04 « $1436 


VRARK KRAUas, 
Comp. ainment, 


TR. 


VEROBICA KRATSE, 


»inhibtmnsataly APPRAL FROM supaaton COURT 





OF Cook counyy. 
VEROSICA KRAUSS, 


ie it rene ei ge a a a ga on A Sie Rit agar tan ea Neer tg 


Cre en-Complainant, 
Ve. 
PRANK ER AUSS 9) " A [ t t fhe 6) ) o~ 
Gre se-Defendant. (ed) A. eh. @: pd 3 


wR, PRESIDING INSTICR MeSuURELY 
DELIVERED THA OPINION oF THe CouRr. 


This Le a appesl ty Vereniea Krause from an order 
denying the prayer ef ner petition, im whiek she agke that Frank 
Krause, her forner husband, be held in contempt for failure te 
pay srrearsges amounting to some $3,000 ararted te her by « de- 
eree of diverce for the susvert of tee miner children. Ne ree 
plied by affidavit to the erets-compiainaut's petition and the 
eourt after hearing evitemce entered ite negative order, 
| The parties were warried in April, 1910, and Lived 
together until June, 1917. ‘Twe children were bern to them, and 
wers fourteen and twelve years old reepectively at the time of 
the hearing ¢f thie petition, in fume, 1917, ‘rank Krause 
joined the United States “avy and was in this service until 
August 25, 1919. When he sought te return te hie wife he found 
that she had moved {rem their old addregs and was openly Living amd 
cohabiting with one Hike Sulec., Ne thereupon Tiled a bill for 
divorce sguinst her, charging adultery. By subsequent agreement 


ef their respective attorneys ond in order, he aaye, nei te caune 













TiS. co persne wot tateras 
ga 8 “PRINS Bh Ho” 


RSo4.1 DASi. 


We 





Sie ty +5 
Bay Daas, Soo 


wh 7 — reas au too a pen as ik all 
at bg eae Maen iss rnobtisng. nase da aya 









\ 


598 perry aba sere evans, wikia iil 0 oii | 
et Bee Wiciniins Ot mle Lonep nae, ot ef. Fhean ENE eo hak cg RY 


dite tine aaee iil wt nda eae sinitiene hdl i ia ‘peal 


- Hine «moat OF chee waww seRhLen owt pest tentoxet 
Dic. -aeapommaprpesienmetonrietie: 





any scandal te his miner shildren, Mre, Krause filed «a cree. 
bili and preevred the diveres with the underetanding that no 
Support should be asked for hernelf. The deeree ras entered 
June 16, 1920, end $10 a week wae ordered to be pald for the 
support «7 the twa ehildren, 

Myre, Krause was marrie¢ to ike Bulee in 19%, and 
hse had the children in her eustedy all the tiwe, rank Krause 
hae remarried and hee twe children by hie second wife, He teatie 
fied that he earne? from #90 te 9156 a month, and that he has ne 
Savings; thatihe worked as gardner, There was also before the 
oourt a report oriticiaing Sre, Bulee'sa reputation for honesty and 
her conduct as a mother, 

Tas chancellor was evidently «ef the epinion that 
under a1. the clrowetusces the petitioner had net shew: that 
Frank Krause had wilfully refused to comply with the dacree with 
reference to the payments to be made tuerewder., We sre of the 
opinion that the ewidenes Justified thie cenclusion, und the 
order appealed from ie affirmed, 

AFFIRMED, 


Matchett and Johneten, 77,, ooneur. 







Karcuaes ear saowh pat nr wish bentess of hve, 
— vonheh tow ad o€ hertehte maw sows : * 





oniienh daar’ outt ode She wbedaue me ot ba pe as , 
~Heet on _anithy Ninosoh wht yd wert Leto ond teat bas sere ot en 
aw dm son neo isan a Wea ot O00 mom | 


ef 
. pees 








a aa ae 





235 « 31367 


THN AUDOLPH WURLITUGH GONPARY, 
se Corporation, 


) 
Appelies, ! 
APPEAL FROM MUNICIPAL court 
vo. 
} GP CHICAGO. 
LILYAN VALERA, ) 
Appellant. ) 


aN, F) 

@ Yew 

jl 

FG! 
> 

@ 

(ez 

ws 
Gs 


UN, PRRAIDING FVGTICN NoesUASLY 
DELIVERED THE OPINION OF THR COURT, 


Plaintiff teck Judyment by confession against deo 
fendant on a proud seury mote with a power of attorney eigned by 
her, Gn motion she was granted leave te defend, the fudgment te 
stand as seourity. Upen trial by the court the judgment fer 
$1644.15 with attorneys’ fees of $149.47 was confirmed. From this 
defendont appeals, 

Defendant's acte ras given plsintLi? ae part ef the 
purchace price of a plano and her defense ia (1) that there was a 
breach of the implied warranty thet the piane should be reason- 
ably fit for ite purpose; (2) that the contract of sale was sube 
Jeet to her apprevel within thirty days; and (3) that there wae 
an independent eontract te reseind the transaction, 

My, Fenton waa owployec by plaintiff ae & #aleaman. 
In July, 1925, he wae in charge of a branch of plaintiff's bust- 
nes¢ located near defendant's residence and called upon her and 
negotiated a sale of an¢ dolivered a grand pisne te her subject 
to her eppreval. This piane proved uneatiefactory because of 
ite size, and defendant requested tte resoval and the sane was 
Fenoved, August lOth Mr. Fenton took the 4efendant to the 
Wabash avenue store ef the plaintiif where there wae a wider 
selection of pianos, Defendant had no exporience in mueieal 


TAY GORLO TN, MORE Uae 
-OBADTHD 9 





{ | “Pansina 
one & @ a) ahi ‘ wiih i 
Petia teh ) nota ane £ comers Scat wih 


hag a 


Sa TEE a 





meh teehee aolane Tires wt ‘Pape bart, sero PUR ethane yt 

(RH Demis goat otsa. "to err, re aby ogon rons ion a a Fg Oke 
ob sasmabut end busted of evans degnamy, aay oie ction tok ie 

yihe™ Sanauhat, ent Segoe ont et false oq - Hada ee hailte 
eR. sbeanatane, gan So. ghae ze aver Tamenite an astaaaalll 






Sh 










a eae ona sass (&) dese eve conte, ahio tr faronaan x08 98 B08 
— etehtoen and o89 Kakosen of tomtdeon tnebpeqebat aa 
‘sain Sat #6 Tesdtnte ys hevotene ane aetaet a Om 
“hed WPA AbtALy To, Memed 8 TOs at wa a RE NE ‘ 
Lid ts NoGh botian bite mo mebtnet attanrawiad saom betaned poe | 
teases ted 09 orate tant, @ hexovdlod hae Yooninn a hedenee a 
te eauoned (reteo%2eonne hovers stake Ad8T .karvonagn 0d oo 
heal ost hin davon BHP Reduouper dunhuntad Aas ante ag2 
me of sac aml ash ailaticlahel teil blige sbovenes 














inatruments of that kind, dif not play the plane and hed never 
orned a plane before. She selected one whieh seemed satisfactory 
and Fenton told her that if it shevld not be watiefactory it might 
be returned, With that understanding ahe paid $290 on aceount and 
executed the note in question, secured by chattel mortgage on the 
piane, 

Defendant anys that a day or so after the piene was 
Aeliveret 1¢ eanowded “lLeud and bangy." Yhereupen she called Yentean 
by ‘phone and he promised to send « tuner, saying it wae always 
Recestary to tune an inatrument of that kind with reference to 
the room in which it was used, 4 wae atill unsatisfactory and 
Venton sent a factery expert to put it in order, but this failed 
end defendant requested that the piace be removed. Fenton asked 
leave te have tse plane romain in defendant's apartment and that 
he be permitted te bring prospective purchasers te the apartment. 
Such leave wae granted ond prospsete were brought by Fenten to the 
aoartaent te exacine the sianc, Featen then examined the tnetru- 
ment and etated that he "didn't realice what bed shane the plane 
was in; I couldn't sell that piang in that cendition,* and that 
he would have it returned to the plaintiff, 

A Bins Hartman, who wat o profersoeional mugiclan with 
fifteen yoors' experience, teotified that she exanined the piane 
and that the tone wea Lagking in “quality snd beauty;* that the 
“tone ie dead. It Ase no resonence or overtone, *** I don't 
think tuning would tmwprove the quality of the tens, ** It would 
appear to me that the action of that piano was smong the cheapest 
I have ever tried. I mean tae cheapest in price and the poorest 
in quality, ** Some of the keys would atick.” In a goed piano 
after you strike a Key you tear the ring for a certain length of 
time, “This was like » thud," She testified that ehe neard 
thie plane before and after 1t was tuned, "I would renk the plane 
a8 one of the cheapest I have heard, * 





xovan bos hie ommlq pais lg tom ohh hadi tentt ‘te atuemectent 
Crogeetelton Seneax se biw wero bandon foie ae Sth se 
trig kay tt Wiesontadtee od dest far gete Ce ca ate sane hed oom cote Oe 
“hae Preoage a ie mise tie in gecih ans eration tage eee. Amceneton ad 
ott mo eBeKI Kb tet ada, yd heawous amg at 2 ace ate Dawoen 








enw on ta Loe tovte. oe to hn 8 Sait wyas | Pantene fA 
maton’ Ratieg, ete seqyaxest Titeed Dea Ayek*dotaur a dormer hind 4 
emda naw 22 pelyae, pn A sa08, oa erin °6, bo cnodet yt 
iP eenetetns dake bakh tee ‘to. Senate te Wie Of vineaoea ae a 
haw icdea takin Lite ww oT teow ee a ak mot ute ae 
pebteh wh Hat yeehae abet awe 08 sue werent 2 J 
Posen Hore Ldiemio€ of pth aK Kad ~s  Pnahe 
teat bas Peneonace: it nahin ian. dae akset ips 9) att wee 













ome: ae ciptee T ie sas  etue atorpien: bas mbrath we 
sehen i enittoaain meat date’ snciwby ale ry et ej y dona ener 
natn it oewir Hoek Satin wa Lsand aA EEY bd Ry Reece mi ie 9 
sastt tine, aoe Hino dade: a annke Hash fea ehihue or 
He PE Snatch ok Reet a ret ia es “pit 
Kobe nsbeeine tiacteae'tor et dae eile, nemeiek wale ae ing wi took 
pate ent bectamee pao: baits: peket eens x eon oie ‘eawow ong 
ee tnt: sepnenet fron go tana ad enliven k ‘hae Onet walt Hatt po 
aetna ne See ty whomMDOET putiows bl poner 
ment He voted wake to YO Mine ont oveergiy Blwiow fpaiienntll 
wordy na gra anie owe sony te waktoe od shi 4 














wartin Marvinac, a piane tuner of thirty yeare ex+ 
perience, exaxined the piano with two men from plaintiff's office. 
He saye the plane “leeks quality in tene;" that “it hae ail the 
parts necessary to make an instrument, but they are not assembled 
in such a way ae to make if # firet-clasea inotrument. It has no 
carrying quality « no tene-aerrying quality. In my estimation it 


de net conetructe4 to have a geod toneecurrying quality. ** Thie 
piano is unlike a plone of ite value and class ond cort and appear. 


anee and everything im gemerel. *** It ie not constructed for a 
high-grade piane in any way. You cannot get very much result as 
far ans music peasitbiiity is concerned.” That while the hammers 
could be “velced,” wuich means pricking the hommers, it would not 
“stand uwp.* That it te a “commercially made pinne, one made to 
Bell quickly." 

This testimony ise net substantially denied. The tro 
men went by plaintiff testified that the piano needed vcioing; 
that the *yump” wake . Slight neise. 

3 See. 15, chap. Lia, 111. Stat., provides that where 
it appeare that the buyer relics on the aclier's skili amd judge 
ment there is an implied warranty thet the goods sold shall be 
reasonably fit for the purpose for whieh the goods are sold, 

Tn J. 2, Seeburg Piano Co. v, Lindneg, 221 T11, App.94, 
it wae hel4 that there was an implied vrarranty that a pipe organ 
gould be satisfactorily played oni used in the service for which 
it was beught, ond that if the evidence showed o breach of sueh 
warranty the buyer could net be held Yor the purchare price, We 
hold that in the inetant ease there wun an implied warranty that 
the piane weuld be reasonably satisfactory to the purchaser for 
the purpese for which it wae bought, ond that the evidence amply 
proved that it failed in this respect and there was a breach of 
the iuplied warranty. 





» edu 











ee aheey “et had “we seca eontat kee a santa think? 
obtis oritealehe mett une owt Ava pew he etd batindik’ od . 
“ett hee nat 8 tend “temo at Yetiare woot ‘pew bey dd oven oe 
ba rdomnns $4 wie Yad? Teil , tonmrsea) ‘he leat ee inane i eden 
“wi eed et Former bee wean tind os et lew ae ‘ss “Gina Fags cays . 
Ph Gnlawcttem ya al eee btu gaterensasted os eit any ead : x 


ata on jya tiene eck great abt ‘how a oved “ hedoundeaeo fon ee 
wenn: btw dado how wHely bac gudav ast Yo ermde #odtine 22 "oae | 


aU hetowadaden tag ab gt) ee ral hci hihi seo ota Mi 
en rueor li iad te danews aot a ean enn ‘at ‘tami te obeying ht ae 
wimrwail wa otive duet * yhwarounas a geettikemad  otuwel ll oo 
tom River 74 Breast end ebbing anes debe * peo tns® od Wi Be Hs 
et whew wae “oui ‘etm a * oh a gue ier aah on uo 
Banat ieiet NR ah wath pages! rele Bip 4 ae 
oe oat aba bin itn 8 cut ae eres ‘gqiami teed iain 05 a edie | 
omits hebaoe icy wale San ae aoaNe ‘Vetanie te ye te 0 
Se ae 
etete taxi wantvers anes SED goth esate OE cede” Aye head at oy 
“att Siw £8 aransiee | i weit git d deas wnsiin hee 








efi 











Je cltepaaee” aa) 
Sian ty we eh ate 


Paige sok ae: tee wn 
dkvoo / 
ia OS 


venue wewD » dantunk a se 





Fantom teetified thet the "sale wns negotiated on 
the dDagia that 1t was toe be on thirty 4aye trial.” It ia not de- 
nied that defendant netified him within thirty daye that the siane 
Was vneatiafactory and requested ite reneveal and that he agresd te 
have it removed, There is no convincing evidence te contradict 
this, kr. Fersival, plaintiff's general manager, wae present only 
part of the time while defendant was examining planes in the Fabash 
avenue store and did net hear ali that wae sald between Fenton and 
the defendant, 

Fenton's awtierity to make oveh conditional sale is 
attacked, He wae the general sales agent in sharge as the braneh 
store of the Plaintisr una Was recognined a8 a general agent. If 
there wae any limitation om bis authertty to nexetiate and make 
terns with o purchaser, gust Limitation wae mown anly te his 
principals ait simsel?. Se far ae the public was oonecornad, he 
had apparent authority te negotiate the terms of sales, Bwen if 
he exceeded hie private inatructione, yet if he acted within the 
apparent scove of hie authority, the plaintiif will be bound, 

mer, 206 Ili. ADD. 432; Parker wv. Griliy, 133 £11. 
App. B00; Ue 8. Life ins, Ga, ¥ _Advenee Co., 8 T1l. 849. 


The evidence eetablished a reagiesion of the contract. 





Fenton repeatedly told defendant that plaintiff woyld take the 
piano out of her apartment. He se requested Percival, the general 
manager, who promised to "piek it up.° Later when Percival and 
Venton were discussing « commission which Fenton claimed on the 
sale of thie piano, Percival refused to ellew the same, saying 
“that pianc 1s coming back and you 40 not get any eredit fer it,” 
and that it would positively be picked up. It wae suffi olentiy 
established that the plaintiff agreed to take the plano back, 

The defenses asserted by defendant were sufficiently 
established by the evidence and the trial court was not Justi fied 
in finding against her, The judment will therefore be reversed 






to kodaidoner eer wina® an? tadt be Priveed nile : 
o¢h tema! PE OR Raledomed heey ae ee ee oe eR duct alnad i 
pita ond gad? ayeh «tide abiekwmtd betiven ssatantoh dad beta 
ad aannye art sanstd Pee Te ee <qiodoa te lteaay eae i 
totietiaon 4 esaetivs gatondvnse oe et ated? ssevount thvowad 
{Ane Cmhaoig One TAO uM, esaieg a! Thisakede ~Lewlone’, 6B wehds 
Kasia add nd soneky gatntanne ape dasatooow "tab wbabe. oaks od 9 aaa 
fae agtant mente: siti wae sett Lhe teed: sad bh een PAID Mae 
oe . | Paatan tab baa ay 
ni eise tao ay 2bikeb “fo ase atom ed eth oridu Babel ee ie an | : 
douetd #639 to eysede ‘at fone an tga Fonenng ost ene is abe 
a tema tee $99 & Me aemaReseT sew pax Fett pe 
wes “son bese atattoven of ethrovtne eke te woking bia f ae, sae ated 
| ‘ote oe ive vee eae HOLIel RehL cows taaniotng «te ameed 
= i «beesonaine honial Hissin eon me gee dil ahem Me hee a 








¥ Pee EOF ae a 
, Ty bogh mh oa 


towtaaes: ne ‘te dokanivect | rs pmathiaacan 4 sonnbare dt ee: 
eye lie Rib a th Pee 
ae bor Vadentece « sate tgnan ah noe einedance sos ee 





ae t nthe Beso sip Se gokesdonew 4 @ pale spe a 
Ce RS as eee mse tke | 


Gms 











Screed 


ey ony whales hy A 


ay ft 








with a finding of facte and judgaent of nik eapieat will be en- 
tered in thie court. 


REVERSED PITH FIRDIBG OF FacTs 
ABD ITOOMGMERT OF BIL CaPlar, 


Watehett and Johnetan, I°., coneur. 


ite sak ony cane i yak 





235 «= 31367 PIRDING OF PASTS, 


Ya find as vitimate facta that there was an implied 
warranty that the piene in question would be in playing qualities 
Yeasonably satiefacteory to the defendant, aid that there was a 


breach of such implied warranty. Ya sieo find that the sale wae 
conditioned upon a thirty days trial of the plane by the def onde 
ant, and that within gaid time the piano proved to be uneatiefac. 
tery, and that plaintify wae s¢ notified and agreed to reneve 


the piane from defendant's apartment. Ve also find that plaintiff 
agreed to reacind the contract and take buck the piano, 


yay ae 
: a 





295 = $1427 


GARULINE LEDEMER, Executrix of 
and Trustee Under tne Ti11i of 
Samuel Lederer, Deceased, 


) 
\ APPRAL FROM MUNICIPAL COURT 
va. 
OF CHICAGD, 
aaa GOLTMAN, alias SAuT 4, 
Dae AB Tk ¢ 
Appelice, 4 AZ eae Oe eo Qf 


N\ 
\ 


BR, PRESIDING TuMTIlce BesuRELyY 
DELIVERED THR GPINION OF THR GoURT, 


This fs an appenl by plaintiff from an adverse Judge 
ment in a auit te recover rent. Under a written lease with power 
ef attorney, Judgement ty confession was first entered against de- 
fendant, but om his motion this was set aside and upen hearing by 
the court the judgment was against the plaintiff. The defendant 
does net appear in this court to defend this judgment. 

The leasa provided for rented at $125 « wonth and 
expired April 30, 1925. Uelendant remained in possession of the 
premises and paid pisintiff rental at the same rate fer May, June, 
_Faly, August ond Septexber, 1025, He soved Septexber 2th, and 
this suit ie for rental for the senths of Goteber, November and 
Decenber, plaintiff claiming defendant te o nold-over, 

Defendant claimed that he had sn agreement te pay 
rent only fer the time he aceupied the premises, The trial court 
foun against him on this fiseve and held that he was a holdeover 
tenant, but 4uring argument rained the question whether plaintiff 
had proved Aasiages for the months in queetion, A witness who 
rented the property for the slaintiff wee etili in court, and 
Plaintirr offered to recali nim te prove that plainti7f 414 not 
rent the prewises after the defendant moved out; but the sourt 


Fuled that it had me diserecticn to aller thre witness to be reealied 





et ni ae a 
ash Sales: nae 





acta aneteg uti won oie 
, «sorta , aiid 


é iO vo i veel” 





x ae Kibale se ME od 


Ephahee 4 ia, Sa #5? 


" fr ae in lat SOS a se RE a 
ae K vel, Svat Q SR ORE: SER: 
“yooh wo reer euretamrt ca ACH HN, 
' f witty EM rami ws EA: ORR |: ate 





toe ‘wer & worH EEO m.. re 


" a 
oy ge 


oe ee, aa, 


#phert saxovha gy opt Thidale te wi deonge aa 9h PMR isis ae n 
wtoweq ddiv seaet aetiiaw a whe Jie aeveeet af Sive a oe ton q 





op ana maa x0 a Fp 


ash teateya Rixota souk) saw cokene tase qt taramdet ,comretee . i 
ed gabtaed moqe des ghine ooo wav what agkiom ait ae tue etnabaet : 


tmabiote oat .Thtvalate ent tactuge com Invmyhwt oat tude ont 


steve abeis: bow'ted ad Purae eli md woncus son ash Be 


bike amo 4 BLE Be kadeex Vol bedirore wasnt wut 


edt Ye aptenaesom ad buatower Semhen tee OR 0L (6 ins Dexter: ie 


,ovust. yall ok oat wn acd te atawe TRRatete blew ban asadnong 


bao ,#0t xodavtqod baven wt 2K tedueten® haw eavamh ih 


bee wedew vot wodoseo ‘Ho emawou od so Kind em vo, aa dawn ahas 
-ToVOMb Lost oat tae 20 0b pakatete Vittale te stdnaood 

wae of Inaaeo rye fn bout oe dyste beatais snaran ted 
deen fated pet phon tunre ott bodquoes od vat? ost 10% cing dno 
wh tom « sew vit suite bio hae uent ality mo utd doatage beer? 
 Vibemts te westtone metteoug ot Reale Povanate patie ted trons 
ow aneatiw A i tase at ndtane oat x0 Beghnad bovorg ba 
a be tiwa0 at Soke nate WARS te | 
; fag me Mtsniese aaa vena of aid Lines <p brwtte vinentetg 














aia one tat uoqore ead beteeet | 


after the plaintiff had put im her case. In the absence of any 
evidence as to the rental vale of the property end the fallure te 
prove that no one olee had paid rent for the onthe in gueretion, 
the court entered a finding for the defendant. 

The court was in error in not allowing the plaintiff 
to supply further proof. The court has discretion te allow 
parties to introduce vets An * jury trial after the arguments 
are completed and the jury has been inetructed. Indieng, ». # W. 
Ry. So, v. Hondeian, 196 111. 601; Chicago City Ry. Ge, vy, 
Sarroli, 26 T1l, 318; Stivers v. Conklin, 105 T11, App. 283; 
iyberg Automobile Werks v. Dovaym, 159 T11, Apo. 95. 





The proof established « hold«over. Sefendant, 
failed te prove the alleged agreement te be relieved of rent when 
he moved from the premises, Yhe trial court so found, as follewa; 


“The court finds from the evidence that the defendant, 
Samuel Goldman, held the dasised premises after the expiration, 
by ite terua, of the lease in evidence without any valid and 
binding agreesent with the landlerd Sanuel Lederer inconeistent 
with the exercise by eald Samual Lederer of hie right to treat 
the tenant Goldman as a bold-over tenant for the year commence 
ing Key 1, 1925, under the same rent and provisions as the 
Lease in evidence which by ite terme expired April 50, 1925; 
and that Samuel Lederer slected te and did heid sald Goldman 
as such holdover tenant; and that sald Goldman paid to said 
Lederer, or hia agents, or the agente of the executrix and 
trustee witer his will, rent cf $128 per month for the months 
ef Mey, June, July, Auguet end September, 1925, which rent 
the said Lederer, his agente, efo., accepted,” 


Bo ebjeetion or exewption wae taken to thie, The 
holdeover was on the same terma as the written lease. Clinton 
Wire Cleth Ce. y. Gardner, 99 Til,, 101; Geldshorough vy. Gable, 
140 Tll, 260; Bopstein v. Kulm, 225 12. 115. 


The oevenant te pay rent ie an independent eovenant, 
and plaintiff was entitled to recover according to ite terme unless 
the defentant shews ite teruination by eviction, relense or sure 
render er a reduction by set-off or reeoupment. Sela vy. Stafford, 


264 111. 610; Jones on Landlord and Tenant, p. 77. The abandon- 


ee TE CRREN AE ENO a aus act vebatata oat s we . 





OF mello? ott ban yonegene one ‘to lew xoowe wait 98 ‘a6 ovsmbaye 
spedeenen, at cia gi8 one ‘te omnes Blog final nde ate om ands ovora 





stow dco tod wie to gabhast 2 henadas feweves , 





atsndass ats pitwo te de si teyse wh ww Pua waht peer 
i BOR f 
(wed se ot moda com tir ‘Rall eeegp edt Heute weadgeages hogue “ 


9v9 


 atwemmgtea «4 xothe Labst yoot, "eh oenahonn sowhotind of nokitag Ne 
Seamnmucine itis ewe Met FON Sieh ee ham bese Lames ” a 


stl ALE, hoe. Att ORE oth 
sen eee (43 00x -ablsaa?_ st amavAtt evel +a, oor oe 
-tiiaettest cinrann tod ry 6 Seven tenes say wath % Be ho 








Mohd Heine Th Hwa Let wd oF Femniodtije Mnf Be dal dente vo ‘Macias af 


teweher'ee vannaeon dewos Latie we” a 


| woibs i eae cae oe hed so cai 
= ead MO 
iy ge ‘ua b ot ye a sreas 3 are. 
wend : ment cote 
‘Pal bx WE Sis neotht te! dure wcntees ane ae kw 





7 ot aoe A & OA Mamhiow ¢ 

ee ee ae ae aemise fnaant Mt 
hae ptagie? tovebiod nl 
wey ceniegy ye elt ee a 


Ps 4 % hi tan 
™ eke 


ne pes "We aa ey, ce ve 






* ,hesquose « sete Sahin aa yamnet 5 


hind ae ad 


one “3 veils 00 solat saw noliguoms xo noltenkde of 


| ene OPT bo pu mac marr one eid nO gow | 
| hoe Ae ag ee 





7 








CRNA ‘ic SS tamed 


sacar eit a 1 Imre 9, cada. Sean i 


Wt of Dutt itan war THRntale bap 
een y, opus fnphoatan, pp 








MiEayer a ws idspnahas 


ve 983 LUE gh i 






Adoubex sxe xobame 
% Ono {th Oa 


Fe ae y one oa 





ment did not terminate defendant's liability to pay the agreed 
rental, P Co» Ve Shiemgs, Nh. Tt. & Pag, Ry, Co., 164 
Tll, 26, The proof of the lease wae prima faele proof authorising 
the recovery of rent therein reserved, Jone on Landlord and 
Tenant, p. 770; Cohen wv. Pluwtree, 170 T11. Avo. 3A1; Weddkneoht 
a, Clark, 215 Thl, App. 364, There was sufficient evidende before 
the court to justify « judgment for the plaintirr. 7 

We are aaked bo give Judgient for the plaintiff in 
this court, end we have the power se to do. ee, LiO, ehap, 110, 
Practice Act, Ill. Stut.; Sherriff vy. Kromer, 25% 111. App. 880; 
Trustees v, Hoyt, 318 111. 6). 

The jJudgsent is reversed with a finding of facts 
and judgment for the plaintiff ie entered here for $375. 


REVERGSD YITH VINOLNG OF ¥aCTS 
4AKD JUOGURET WERE, 


Mateohett ond Johnaton, 77., concur. 













tacroreipan” ane At Se ae aa Bidi ds 
oxsttad ennnh tre dive eke ait all 


ua 





aden't ‘to githalt 2 atin ‘he 


ar ret ‘wenn Sushma ial weiner ae xo fas amg art, hae. 
Tr ee Eh: ub 








Sel Ga Sa 
it » aa hah 
A Ne Same 
a wea se 
S ney brew 
we “ hintete me 
4 OR Beas 
1h ap Wea tc 8 ee 
sods ot jh ee ya } 

Pe hve weer iis. 









bie tit ey WA UE aa sya re ary pak tend 


eh, iets even 

; h ‘i ji ty 4a a ORAS, ae We 
x; + ¢' s ‘ 5 t read 

eRe SA, RON ap SRS A RR tee ae SMI gh At ch Hae 


Da a RAS A aa aD 





Md SRS NIRA: CRE she i 0 Oe ts eae 








295 » 31497 WINDING OF FacTa, 


The court finds se wltimate facte from the evidence 
that the defeniant held over from the lease expiring April BU, 
1925, and that defendant becuse and was bound to pay rent at 
$125 a month for the year commencing Kuy 1, 1925, under the same 
terns as contained in the written lease, ont that the plaintirr 
ies entitied to rent at the rate of 9125 a wonth for the months 
ef Cetober, Kovember and Decewher, 1925. 








£ Pasive 

ea! Hy 

Os > 
* Y 
ras a 

ir, 
* ai 
. ae 


Nem ENutaist 


























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i 
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is 
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Pb Tad 
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DASA oe 
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317 = 31449 


AUTHORS PRESS, a Corvoration, 


) 
Appellee, ) 
APPEAL FHOM MIIRICIPAL comet 
76. 
OF CHISAGO, 
GEGRGR FP, KILLINGRR, 
Appellant, } 
QaAATA poaens 
Kes Lie Fae. One 


UR, PENSINING JuSTICR HesuReLy 
DELIVERED THY OPINION OF PAR couNT, 


By this appeal defendant seeks the reversal of a 

| Judgaent against bim for $178, representing the balance claimed to 
be due on a twenty volume ant of Authors Digest sold by plaintirr 
to him, 

The gaase wae Piret tried by a jury whieh returned a 
verdict in favor of the defendant. On motion this wae set aside 
ané a new trial granted. Thereupon the parties agreed that a jury 
be waived and the cause submitted te the court. The evidence 


heard by the Jury wea considered by the court, whieh found for the 
Plaintirr. 
Defendant's attorney in his brict argues the case on 


the theory that the procesdinga om the trial by the fury are bee 
fore us for review, This te o misconmeeption ef the situation. 
Then the verdict of the jury was set aside and the wotion for a 
new trial granted, tiose proceedings were wiped out as far as this 
court is concerned. It ie for us only te consider whether the 
evidence justified the finding of the court, 

Defendant *as apyroached by HK. Mighaeleon and a cone 
versation wae had Looking te the purchase by defendant of a twenty 
volume set of the Authors Digest. A written contract of sale was 
signea which apn tained the specifications of the volwaes, The only 
one in issue ie specification #4, which deseribed the binding as 
*full leather," 


a 
















» sagan ase Ie 
200890 e 


noe 





RARER 








“ 


i x sayrores et “pas ‘Yank oie ia ca 
‘git bomba Lo poite kad ads ad for ‘ot mis: 
‘Wibemdncs mF. bhow toogde eroritih te ‘the f oemnkor a 


ue 





7 % ws Hake uh & we, hota fords tow eens ae 
ones a naw wails ‘tebe: Lapeer a6) %H rowe't pre to 
oma 4 fast bewxpe ‘wont swig sal mowmmr oat? -betaaty, Leaked: wena ae 
agrees. watt «Paavo ont oe andtinewe eouko oat bow Seeker 


oe 402 aad sone FaHH08, wed we hwrphdaies aut ea wt iil 


y 











Se an 


ine said ae, - oteabonion dn « pers ues 
nape isd out ite bien gen tow fries ait iit 





Defendart claims that vhon he purchased the books 
Michaelsen showed him « Lime leather binding and defendant bought 
the set with the underatanding that 1% would come im limp Leather 
binding; that Miockaelson gaia that thie type ov binding wae « 
*fyli leather” binding 28 specified by the contract; that when the 
vocks were delivered he Afiseovers4 that the binding was “net in 
aceurdance with the binding on aid beok as deseribed and exhibited 
te him by" Mionaeleen, Defendant wrote plaintiff two letters ree 
fusing to accept the booke Tor the reason shat they were not as 
represented by the agent, although in aelther of these latters is 
it specifically stated in what reapact they differed from the 
eontract specifications. There ia no definite evidence as to how 
the books received by defendant were bound, but it seene to be ase 
guned by beth parties that the binding wae leather ovar a pasto- 
voard back. 

Ur, Beiland testifying for the plaintiff said that he 
had been a ee book binding buelnoss for twonty-five years and was 
familisr with all kinds of bindings; tint atiff leather binding is 
Leather over » pastebowrd back, and thie style of binding le known 
in the trade as “full leather’ binding; thet limp leather binding 
is aleo knewn as full leather binding. 

Michaelson testified that he had ne limp Lesther bind- 
ing with him when he ealied en defendent, but did have eo pasteboard 
back covered with Leather binding, whioh gan knewn @s the trade as 
full leather binding, The seeretary of the phaintirye testified that 


the company 4id not pessess ner furnish to Kichrelson eny samples 


of limp Leather binding. 

Upon this record the trial court properly held that the 
leather binding over a pasteboard back met che vequirenents of the 
eontract eslling for full leather binding. ‘The judgnent io there- 
fore affirmed, 

AFFIRMED, 


Matehett and Jehneton, 77,, conour. 








ateoos edt Anectouwe ot aoe fed? ia Amahae tH, .. ey 


geywod fumtaeteh bun aaliekd wettwot rs “ wie hevede uesitnanadts 
caigant quaht wi ones Dover ob Sead gathonrewateiy wf std bee ied “ 


a) 





# sav “Yalbold he eed oto tous 5 bane aoe Pestle EM fate ‘spatbate 

art? seve fade pinettnes oft oO bol? Lowes ee gated “waded Chee” 

at dow* paw qatiiead one bev? heveronats of boterlioh enow ateed 
fativitee bus Sodhseewh ea weed bide’ ao gina wt So hw SOnabtosee 
oon geatsek ows Ctdtide lo aheuw dak sine "tied ‘sia Daas as "et ata of 
ae fon etee wad tet sonact eat xo) ahded ot Vgione ‘of patoy? 

af ornaees eens to Mitten AL Mpa de tai Me > yl besceewnget 
pera vor pore Vhs wae foogeet cate ah dodude. UllaalVeosqge $t 

wb of ne Oonebles eskattoh om of oree? camettasd roses Iqatsasa 
on ot ad enone 1 dud ,btarod nuoe teabae toh yt hovkawet alood ot 

otsse a ‘wove wesigees ear wathiane ald giwat, ab bitug aod aspooienste . 

ox tad bhaw reas abese outs ‘on eantiniens: pawster AM ie Wate 08 
eae baw arene orb tagtnows wot naoak aed Babee weg on at cement teaoat 
ef yathurs toctsest Thae err piyothatd ‘te obedt fia sew, thinner! 
wrens ah yakiote te ohyte stad haw yan’ dneoteteag oe sore Tesitned 
seins rarisank wii fast yaadhatd "resdtand List! ee ehewt me i 

| epakhate Tosianl Lit wa awed oa ke wh’ 
e k gid am heat od aailt te Azad ame dnade ds ig wena 

besedadare ® vad ste tod a foabae' bob ae bellon st amate sink il 

ae Y atheret ont ab oromk now do det 1wathadd wedtes f itd bye pertevae saad » 

pads balrttnns ‘qubbatate wad x0 ctatotee, wee op cao nge 


gehew 
Le RE. RE RE Ee dO ME TREE INS Pa a 
, =i eit 











arena ‘a Sh gah aa Sant Ra cer tie LAER 
A.4. ‘ | 
Gai ey TOE i tee ete eD gh Ly. : 





Deen ha ne dal aa K 





328 = 31460 


ae 
W. C, HARULEY, 


} 
Appellant, } 

APPTAL. FRGE RURICIPAL couRT 

¥e. 
i ) OF CHISAGO, 

JAazzz I, S0V6E ard OFTILIA } 
EQEIESE , } 
Appellees, } 


RE, PRESIDISG FUCTICR KestRELyY 


DELIVERED @ME GPIEICN GF THE couRT. 


Defendant Jeyee gave Sis nete seevred by 2 chattel 
sertgage and guaranteed by fsfendant Ottilia lebinski as payment 
for an autosobile purekesed fron tie “eak Zetor Sales Company. 
Plaintiff Gandley claiming to ba a Helder in due course brought 
suit and ween trial by « jury «a verdict was return«d fer defend- 
ante and judgeent of Bil capist fcllewed, from which plaintiff 
aoveals. 

The defendant elsiaed that he bought the car upen 
the eondition that if st 444 not prove satisfactory it eould be 
returnae4, and that it 414 net preve eatisfactery ond was returned. 
Yeon this issue, the fury could sroperly believe that before Joyce 
Ppureheset the sutemebile he requecic4t persiasion te use it a esuple 
of faye so 22 to detersine ite contition; that he vas advised that 
it vas net necessary to 40 so, a8 the Pask Company etood back of 
every sale it made; that Joyce requested 2 cuaranty of the ear 
but was advised that no quaranty rae neceasary because the Pesky 
Company Would back up ite sales, ani if the car was net in good 
condition Jeyee could returns it; that Joyoe ealled the attention 
of the salesuan te the clutch end was informed that that was the 
Mature of the eluteh in the type of car he was buying, & Dart, 
and thet euch cluteh waz peculiar tc the Dort esr and that se 


Seen as Joyce got the knack of runcing « Bert he woul4 have no 





ition meet oe ‘tone aah 
cea - ae 


rads 80. be CPSs. 


os Beer 


0g at wo xonetBD 



















: sree sede sot sas eg seek a r 
ad 8 ag a8 palate , 


- sates xo by set ase to tivev 8 uh o ve int ow a 












i, demote, aabn abe tab oe ia 


: a hoy 2 eteseetey aan. arene Se. PIn22.38 tale sot i 
<Spalabaia are ee: prenmetietne lepine gf | 





Cr oitekehenmanianmestaannnted orl 
Ce ee | : 
iy Waa eherenne 





treuble with it. por tuease recresentationsa the nete was exe. 
euted by Joyee, guarantee’ by ors. iobinski, and delivered te the 
Pesk. Company and the car delivered to Joyee. 

When the cur head gone about a bleex and « half it 
steoned and it war negersary te teow 4% te Zayee's Nome. He 
ealled up the feak Company, e¢xelaine) the situation, an’ was teld 
‘theta mechanie would eali an4 make the neeentary resaire. ‘The 
mecharie 414 net come for several daye, but finally arrived and 
trie’ te etart the car, but failed. Ths ear was tewed to the 
Peak Company, where it has remained sver since, After the de- 
fendant r eceived the car it was found that the sletch vas breken 
and there was @ knock in the wster. The brakes were worn, the 
geer enirt lecked, and there oouid be ne shifting of geare withe 
eut stoppine the car, All this was reperted to the Feak Hetor 
Company. 

From thie and «ther evidence the jury could preperly 
eonmolude that the sale was made em condition that the ear could 
be returned if it wae not satisfactory, and that Jeyee had reason- 
able grounde fer being Aiesatisfied with it and returned it. The 
condition wren «hich the ear sag ecld having failed, the considera- 
tien fer the mete alae failed, an¢ the jury properly found that 
Joyce vase net Liste, 

There wae alec evidence frem shiek the jury cowl 
properly conclude that Sanatley, the plaintiff, (di% net receive the 
mote until after defendant hat netified him thet the ear had been 
returned te the Peak Company, 254 that there was se corsiteration 
for the rote; but in any event, as the note was secured by @ 
chattel mortuage, which facet avpeared on ita face, & pur cheser 
“fer value before maturity is net a holder in due course, ond euch 


a note &s subject to any defenses existing between the payee and 


the payer, Cook vy. Augustus, 202 ill. App. 195; Bpstein v. Ft. 
Dearbern Cartage Co,, 267 111. App. 321. 


















~ese Gee gine oil nacidnscmewnee gees seat wt éste @: duet 
out of buteviiol bam ,bineided .ogi yd beesenseeg Dadi we bode a 
saa eGR oP SemN EOD tae Say Rae ymemeod sheet 
12 Und » ban ADI # suode omg Sask tne 0s ons tds 
ei ,emai atoeyst of $3 «ot of casemteea mee 2 eae 2% 
bLof nwt Dae ,notsagtte add be nte deme sxabqsed Met ad? qu betfee 
emt lexteses wehsogNs ani iem ban Shao Riuow ginesoom 4 
bas bevinte thiesit tnd .eyel. soso van 302 gmeo ton BEE a . 
edt af bewod Qn ted ag? feakiat ted, ee. oat tats a? beans y 
ooh eda ueets “onte 298 ea cans end a2 sensi seamqnna oh 
setett saw catyie eid 2am? bavet eae tt tao 9? ry os ” 
eal inter ote Heist GEY stolen ont al aed 7 sae OE 
atte ene Re gadrthte oa ot Kibo wanes haw” “a ices (ise 1689 


Sa 











eieneaey bien aah, 2d ecenbive tH dae ede mee 
bites tee edt sed? anlsituas me hen sew okes ont Bash 
 aagmewt bad peget taiiy bas. Juvegnstokion tau aie 55°14 hewmen of 
Sef oh Seatytet das vi dete tel tebtaeslS ‘gated wet shimeny ofa! 
<atebloson si? sti’ waived Khor ase ahs et Keddr segt mote thmes! 
iheeaiescpeivenaiizdnantandambingeainsicanpeniesteons 
" pie fh neningeers” one foie aad 9 -< 
oD iuey eink Ae Hole aot sone ws cna: ew Bese et oe 
ss ertsed ton oth nabs each Sat tiene tedeedt 

















PlaintiifY aaserts that, even if the originel saker 
eannot be held on the hete, the guaranter may be Held, but the 
eases cited in suppart of tile pronesition are net in point, 
Zhe rule in te the contrary. Failure of consideration of the 
principal contrast is a good defeiee on behalf of the guarantor. 
26 Gyc, wp. 1418; Paton vy. Stewart, 73 Ili. 491; Harte ¥.. Yorler, 
Si Ill. Amp. 612, affirmed in 149 Z11. 992. 

We eannet eay that the verdict ef the fury ie mani- 
featly agsinet the eight of the evidence, It follewn therefore 
that the Judexent should be affirnet. 

ABV IRICED, 


Watehett and Jehneton, 37., concur. 









at * : at am 
SaNSR OCS SaaS eet mare tere Seo as ee ee 
Se ee pe. Gers Seas eee 3S 34 eee ey? ees Roe Ser 
MEMES BES BEES. sees. ba a ee Pow thee 52-92 kare od 
eo Se ees Se SN ae fee Sweex yt int ee SRR 5 Eta : 
ae Dee SE tee BR ae rae See pee dy ane 
a Sah SaaS = Ri aah we, ape ae ee P 
SOS NS eA a eee ni ge ei 
F Z re 
rf YN 


& Sages CE ORE BE eS padi ape: ust Ge ew gece 
banal eee Sea PRES ( REG ce. ee ca Preset bend sealed bi sth 


dinoeidiencal head mer wits a2 ee raik, éy 





346 6 S1L47S 


EDVaRD J. O'HARA, 
Ssrelice, ‘ 
APPEAL FROM CXLRCUI?T COURT OF 
va, 
SOok Sourvy. 


yen Soe ence aca” “mma Maar 


COMETY OF COOK OF fH% sTaTE 
oF ILLINOTS, 


Appellant. ies si eae 


AATA. 624 


cote i time 


ER. PRESIDIZG JUSTICRN MeSuRELY 
BELIVEREG THE OF LEIOK OF THE Gos’. 


Piaintiff filed his devisoration in aesuepeit, te 
which defendant filed pieas. The case came on For trial in 
Pecenber, 1924, but defendant waa not present smi the court 
instructed the fury to find = verdict in Paver of pl¥intirr 
for $3556, and fudgment *as ontered on the verdict. Before 
the term expired a moties vac entered on behalf ef 4efandant 
te vacate the Judmment aud set acide the verdict. fThie motion 
was supperted by affidavits. It is eaid the trial eourt kept 
this metion weter sdvireene:t for s year an¢ a half and then 
denied it. Defendant apsesia. 

The motien te vacate wae susported by affidavits 
whieh showed that defendant was not present when the case was 
ealled for trial fer the rearen thet it eas misled by an an-~ 
mouncement in the Law Bulletin. ithewt reeiting the cireum~ 
stances in ¢etail, we are of the opinion that the affidavits 
ehowed a neriterious defeneas and alsc an excusable eistake on 
the pert of the defendant, <bich expisined its absence then 
the case was ealied for trial. in the exercise of sound diese 
eretion, the trial court sheuld have allewed the sotioen te 
vacate the verdict end set aside the Judguent. 

Defendant, horever, etresses the point that the 
declaration is fataliy defective ani tuat this may be asserted 


at any time, 





Plaintiff wae empleyed by the County of Cosk under 
civil service, as a relief investigater, Investigating poor paopie 
applying fer help. It im etste4t that the number of thease inveatis 
@atere varies with the seasans; in the swamer enly ten er tyeive 
are retained and in the winter the number runs ae high as ferty. 
When the warm feather arrives, tcoze vot needed ere inid off by 
the sivil service conzission, wig when the eeld weather eomes they 
are put back on auty. Plainiiz? had been one ef theese inyestigs- 
ters fer shout ten yeare, during which time he was lais eff in 
the summer. in i980 he coemenced this suit for $7,000 whieh he 
Glaims should have been paid te Kim during the perieds ke was laid 
eff, the declaration sone net allege thai © ‘Hara performed any 
services fer the County during the tine Khe warm laid eff, 

A @ivision of this court had oceagion te soneider a- 
similar ease in Golda vy. Seunty ef Gack, 731 Til. app. SOT, in 
which very thorough fonel deration of the points presented was 
given. It vas there hel’ thet, «here the eivil service empleyee 
Was iaid eff smd ali moneye apgropriated ter the pesition hed been 
pais te other apreintees during tne entire peried, the supleyee is 
Rot entitled te racever any pertion ef hie claim, the ¢meral rule 
being that, if the payment of salary or other compenaatian by the 
gevernzent is made im geod faith ic an officer de fasts while he 
4s stili in possession of the office, the goverment cannet be 
compelied te pay a meeond time to the officer 4e jure. This is 
Supperted by a large number of decided cases. 

The instant declaration allegss thai the defendant 
paid to othere the selary aprrepriated fer the position, hence for 
the reasons stated in Golden vy. County of Cook, supra, which we 
feller, Plaintiff cancet recover. 

#mether fatal objection to plaintifr's desleration 












tehes, decd To yraved sH¥ qd begefess sew visser” Se ARE we e 
elosee teey ~xtdes Seswat thdegt teavet talfet a ae seolymes ivi oe 
wtiesvnl ones? 16 tds edd tase Mahate . at tet ut = 

evieet xo aed «fine seme sit sf janceees alt aoe abet . 


ee ‘tte ict om hetebe ton stead ,weTites teifeer ataw otis ie a 
We mean Terteow Biss ois ate tn a ‘eoleres flvie ade 

anyiteowsé anes ‘Ne sae nosed bon Pikvatard  Jehe® ae asad jug ote 

at Tie biel wat of emis sols satu ey 998 suede = t exo : 


ad dasa Bet, ate anid a iad meas <. Tee eo oatd 














7 





eee i Sikes Sait eo Mees as are 
pe ook 


ie that it dees not aseear that after he bad been lds off he efe 
fers4 tc render any services or sade any attempt by mandamus or 
ether 4ireet action to determine the question waether ar net 

he hed been legslliy isid off. Burrie vy. Seard of Mducat 

Tll. Avp. 397; Eenyor vy. City, 135 Ili. app. 827; City v. Luthardt, 
191 Thi. M4; & 


Plaintiff's attorney does net gainsay this, but 





argueer that, se the declaration included the commen counts, one 
good count ie sufficient te ayatain tre verdict. The sffidavit ef 
elaim attached to plaintiff's desisratien i« fer aslary appre. 
priated end 2ue from the defeniani. Thie affidavit eliminates the 
eouton counts, because « verifies statement of siatntiff's chain: 
must state all the fsaets nHeceenary te support plaintiff's action 
and plaintiff is limited im hie ereef and reenvery to the facte 
set up in his affidavit af clais. Hedjig v. iooney, 205 111. 

App. 4153; Geddaré Teol Go. ¥. Crow | oa 
app. 34; EKeime v. Shue, 2345 f11. App. B19. 


Plaintiff argues that sleading ic tae merits is a 


219 iil. 





waiver to devurrable fefects, citing Pittsburg, ¢. ¢. & St. i. 
Ry. Cc. ¥, Robeon, 24 113, 284. Thia ease, herever, decides that 


Bieading to the merits ie «a waiver unless the declaration is ao 
defective that 414 wiki net eustain the Judgment. It has been 
resestediy hel4 that the fret that « declaration dees not state a 
eause cf action is uet waived by filing a pica of the general is- 
eue, and the point may be raised fer the firet time on appeal, 
B. By ¥. Pecole, 217 ill. 164; Giliman vw. Caieage 
Bys. Co., 268 fil. 305. 
Pisintifr'e declaration vill net supeort the verdict, 
Which is reversed and judguexnt of nil gapiat entered in this court. 
RSVERSsD AbD JunoMenT OF BIL CAPLAS. 
Matchett and Johnston, JJ., concur. 





ae ts & ea i 





Se tnatnse ys @quolis YS thax To eeoiecas yas tah get oft Bg 
feu xe am, Haktaes: 982 calviateh #7. seltes ork A eed ae 

fie pono .« give .Yae bhed niabeiias had pa 

FRE sand. ALE SEL 4; 








ee poh 
as 75 


as 


PL nL eS Tate. on wt es 


Ane ,eist one fea = eariette Herr 





ee Saae 


te, g@eHese saunes ae hogeisat BER IR LORS net sd vist 
re og ae og sae the 


te saveh tite edt .gekhosy 2n7, ite dane “ oe to Tue ot a —_ 
wets Yee ae. iat ai Bos fetkioah ath ak» he o sesvesae isto 






eit setentutio 2 sivebitie Bast 
sahete stMusalese ‘he sume iaes bet! tres a wecened setae 
meites e"Tulesiete o% cei oF unten aioet ous iis eters been 
Btoet eas of gaareset bee testy ein at sorbate at Unt tot Lo 


’ ‘Mint ts strah IP ats <v 
i eh ae ¥ Re Jao Bae 













ae nak a2txan wif of aatients, saws ae ta tester 
| ds $23 anisio. .Bdeetat A Baarsah 09 
tants essen stevered. ,enae elit? Bf .ifT 1 





of 1 bd 


ee a garners its 1 ptotene toa ie. es seat ee 
# saat $a. oe, meen & tae deat, ne jet Sion . 





~a1 iptansy od? ei 3 gosta © galLI ye Review tm at mation Ye 
tenque 0 ents ge Mo pera ys it 3 2s 


ee Be < ee ter 








369 - 31501 


GEATRAL AND PACIVIC IMPROVES She 


) 
GGRPOGRATICnS , } 
Appellees, } 

' APPRal. PRON MUNICIPAL comer 

ve. 
} @F CHICAGO. 

MARCUS HK, HUEESCH, } 
Acpelians. ) 


WK, PREGICISG JUCTICH REOUASLT 
DELIVERED THE GFILiOn OF THE SOmAT, 


Befendast sgpeania from = Judgment against him ene 
tered apen a direeted verdist fer $1532.12, upon trial ef = enit 
for the eoliection ef 4 note. 

april 19, 1924, defencant gave Plaintifr g1000 
eanh and the note in suestion fer 515099, te seeure an allaged 
eptien te surchase resl eutut>s from the oleintiff. The evidence 
tends te shew that defendant, #hiie in Les Angeles, Califernia, 
wae intre¢nucet te Samuel Graweern whe wae in the real estate business 
in that eity, ond alee 4irester of pisintiff corseration. Grauman 
showed defendant property em Hain ond 16th stireeta in Los Angeler, 
and pursuant te negetiations 4efendant cave nie note, together with 
his cheek fer $1600, te Graucam wid an eption eontract “se entered 
inte as feliews: 

"GEETHAL & FACIVIC ImPROVRURRT 
CAPITAL $2,000 ,00l 


123 WEST FARULRETGK STRELT 
PHORE 285-735 


Siresters Bireetors 
R. 3. Saphael, President. H. Eooh 
&. Spencer f » ist Vice iL. Goldwater 
pres. G A. Milier 
Jules Kauffman, 2né Vice- Joshua H. Barks 


pres. oc, Rey Kekeon, Seeretary 
B. J. Louis, 3ré@ Vice Pres. arthur ¥right, Atterney 





: ae on am tite aude 
<n athe saakoye saomibar « aaot eiesece ae wong 
five = Ye fotet aoge PA ee 

. _ ete ae etn See wht. $9 
" goeas vuasetere aves dusbantes shSet ok fie. ado ks : ‘ie as 
Bese hie: a : vee “ omg net —. a8 tea 8 tn sane : 
















died tana oe ai oli i hae Oa 


ease Siky cH det to 


 Sanateed otacee tes 96h a ne wt meen ona at Dante mew oe 





c. Specht 
Jsecb Stern 
Horris Cohn 
LOS ARGELAS, GAL. 
april 19, 1924 

REGSIVED from &. &,. ‘mebsch ORE TROUGAER DOCLIARS 
($1,060.60) im cash and a note for FIFPNEK HuRORED 
DGLLARS (31860.060}) due in four (4) months’ time, as an 
eption te purchase the Aertiwest corner of Fifteenth and 
Kain Street sixty (450) foot front by one hundred twenty. 
five (125) feot in desth, more er less. Thie eption to 
be fer a period of ene hundred end twenty (120) daye. 
The purehagse price ef this property to be <iGugTyeri ye 
THOWBARD DOLLARS ($86,000.00). 

This acteement eubjcct tc the confirmation of wr. 
BR. &, Raphael, President of the Central @ Pacifie Ime 
Prevenent Corseraticn. 

Central an¢ Saeifie Iuyrovrement ters. 
BR. 3, Haphael, Pree, 
C, Rey Eeteon, Seey. 
San Greumen 
#,. X, Huetech,* 


Defendant 4id net exercises Ale option te purchase 
within the ene hundred twenty day ifimit, and this enlt fellewad 
to eoileet the amewmt of the mete. 

7 Befendant asrerte that the property is indefisite and 
wheertain in that the ostion sgreesasnt does not shew in vhat city 
and state it is leesate?, ‘The parties were negotiating Tor preperty 
in iss Angeles, @aliforsia, end the gption was eigned there in 
plaintiff's effice. The inatrument on ite fase reverse to oreperty 
in Los Angeles, Galifernia, acd anyone weading it weuld se under- 
atené. Fe held that the feseriptien ef the property is sufficiently 
definite, 


Ameng the eases tending te supsert eur conclusion are: 


Milepercer vw. Beyer, 217 111. 962; Seber vy, Adher, 321 111. 547; 
Heyes +. ©*Brien, 149 Til. 403; Evans V. Gerry, 174 111, 505. 


It is eai4 thst the meswrandum foes net satisfy the 
Statute of Prauda, being indefinite ant wumeertain as te the property. 
Plaintiff eroperly says that this centract made in Californie muet 
be governed by the Statute of Frauds, if any, of that state and 


that mo such statute is either pleaded or proven, Sven tested by 















corer aorret seas “gang (3ecace, 
tsk He @ § 0. 900,2 
ae 2° Menta Yaddnes it} tet at egh 92,504. GALLS 


es te terre: fapritiss 
| herrhomsd ene yd fae? fect 
See a ee 
yak eis Ge ce 
3  BETinTOke od oF “rvencig #! 


“Ete apisemniiues acts supsgetsa Bhd? 3 
= aFiien & Ieufeas woe So Soci eng ionaeae = my 
<e7re0 etinavercgat artisens baa Lax diteS 

-abetees 2% 8 
eee prone =9 wi ad 


_* dlasetenhs. e7 


the Tliineis Statut> of Frauds, the contract ig aufficient. Bee 


Competi_v. Briiihert, 17 Til. S84; Glleperger ¥. Beyer, 17 T11. 
262; Goesitt v. Hebhs, $6 Til, 251; Spangher y. Denforth, 65 11, 
52; Evans v. Gerty, 174 12. 885. 


The agreement wee binding en the plaintiff. 1 ese 
eignea by ite prewident «84 eeeretary., Plsintify was the emer of 
the property and was im « gositien tg cumvey the some at any time 
upon the payment ef the purcluase price. It is net neeessary te the 
validity ef an eption contract thet that there be an express agrete 
ment by the evecr to 3211. 46 option contract gives one the 
privilege of becesing @ Burchaser, any @ufficiet consicteratian 
will make aych a contract bindixng. 

“A wuilateral contrast af this kind, im which one party confers 
em option woon the other, is in reality « sonditienal agresnent;: 
and upon the hagsening of the contition, that is te say, when 
bee — given ig deciared or the election provided fer is 


the agreesen’ becomes abaclute wid the obligations ef the 
sareten beesme sutusl, ({Pomerey on Centrsnte, sec. 169.)* 


fxn 3. Yarnen. 176 13, 426, 


The somtract vac exeeuted by the president and secrete 
tary of the plaintiff scorseration, and in Betartney +. Clover Valley 
Lena & Stoek Ce., 235 Pet. S97, it was hel4 that the seetion ef the 
Galifernia Code requiring an agent's sutherity te execute a cone 
tract to be in writing, 4c*e net spply te the exeeutive afficers ef 
& eorseration. : 

By Gee. 2510 of the California Cede it ie held that 
Patification ean be made by « ecorperstion by accepting er retaining 
the benefit of the set. Fisintisf reesived and kept the $1000 and 
the sete in question. In Domest! 

Til. 22%, it was held that by aeceptiing the cash deposite the 
building asseciation rvetified the action of its officers. 





Sose point is attempted beeauce the name of Gam 
Grauman is siged te the entier esrtract, but we ¢o ret eee that 








fan Vat sed RTE wat os eer 
of sate oct 









ost of cuantwena. dome? 43 | : 
oS6 IQS aaetgrs see ot areds pa seus doandiase q 
oid sue sevtn faeztaes mpleqo oe i eee ae | 
aolisrehtenes gmvkstttes ys -tasessteg # yahososd te egeliving 
ix ssatialt Soenecoe © dawe siom ithe 
sretney Xitag 920 sigtoy ok bubs © hid ‘te smwtdaes Lomete ita 4° | 
) Yssaes Ch ek yt MES poy: ae 
aoe Seu ‘ 





e009 * ateoene oe ehveatue of tasze ane anteiupee ane : : 

4, pre : £ 

: bs estore evisuoone ce of toe tom ase8 reais cee a : 
sill, Set 8 8 cine atenntaen ott v0 08, ee Berson | 





: =" = “a See s 





thie weuldéd Save an important bearing ote way or another. It eere 
tainly would not inralidate the agressent. 

The mete previdead fer the payment of 31506 with ine 
terest anS ten per cent af the principal ae attorneys’ faeg. The 
mzegunt of the judgwent dooce net seem te be sericuely questioned, 

The ebiectiens te the walidity ef the oetien cent ract 
are net @wabetential, snd upon the evidenee the trial court was 
Suetified im inatrusting the dary te fina for the plaintiff, 

The futement is affirmed, 

AFYIAEED, 


Hatehett and Johnston, J3., coneur, 


woSEY 










Siete 





pie. ees sce sey aticee” | Brel 8 Se At 


ree ee a Soe ee ee ee. 








& 


ee sean ad Pete ge tae" 
wea ts mensenn aa? eee * cut wee oh * oe 


oy a ae SN 





se i we si ae ere st ee tis vals ‘i scan aspen oe 








ea | apes ox nna aes ae Er fae Eee Re: s¥ 





tea hae vail BE adhd ummaeieei at Sil GE TEM  gtetenl & 


Ae) 





Mea a 


ae a + one ee smteaoge at we shes ad is ~— 










| a oe ets. hae re ites eae s od ek 


P as a we ee 
FPF Sev zy, ‘, wa, ie eh 
Ls = ae ~ a i ie 7 4 b . " 


le b anioete 3 






387 = Si8ls 


HICK PETROPOULGS, } 
Agpelles, } 
} APPEAL FROM BUNICIPAL count 
VSe 
: ; OF cHIoAGe, 
THEODORE KARATZIAPERIS, 
appellant. ; 
244 1 eo2at 
w ee ollie UW ta & 


BR, PHESIGIEG IVUSTICN KMescne_y 
BELIVEREDS THE OPIRIGE OF THE COURT. 


Plaintit?, the lesser, brought suit againet the 
lessee for rent under « written iease. A jury gave hie a verdict 
for 21296, stid from the jJudgrent of this amount defendant appeals. 

The leses was for a tere beginning Bay 1, 1920, amd 
ending April 3, 1925, at $100 a wenth, Oefendant cocupied the 
precises but vacated the leased storercom thereef im April, i924. 
This suit is fer rental fer the balance of the term, 

: Befendant slaime that by « separate deouwsent oleintiff 
agresé te revair the water vipes, gas pipes, doors and windows 
wherever such repaire are needed, aud the testimony wae concerned 
with the fact ¢f these repsire, the defendemt aseerting that the 
plsintiff hea net made them and the plaintiff introducing teetixeny 
tending to shor that Ke hed eomplie? with his undertazing in this 
ressect, There was some comfliet in the evidence, but we sre not 
pretares te say that the conclusion of the jury that pleintiff hed 
wade the repairs which he had sgre-d to woke if manifestly against 
the greater weight of the evidence, 

Defendant sise claimed that there was « surrender of 
the presises and on seceptance theresf by the lenaierd. This sine 
wae a question of faet for the juty to detersine, and we cannet sold 
that the verdict in thie respect +as not justified. 

it is eeaigned ap error (hat the court i=preperly 









emulate Bae swe vasa oe eet le cota aay 





haatecane ae gia 82 asia hue ababas x ots @iieget seas 
ods y st setae joa, eats ‘alae ontt wes os 





se ab satundeota eke aitte at tqmen fact od tats — _— a 
: cata Vali Sh inn oF meg Sa ei oni a ebes 

eee ee ee y 
i Teomeraws a caw weeny ted Neutate oss + taencotac pee a ns : 











restricted defendant's eross-exsmination with reference te the 
thirteenth prevision of the lease. ‘this was a provision that, in 
the eonnt the buliding was condemned by the City, the landlord 
Would not be subjecte’ to any dmeszget io the tenant. As there is 
mo evidence that the presises were condemed, fre do nat think the 
question relating to this provision wae impertant, 

The verdict wae based upom the rental of 3200 a sonth 
for twelve months, fefendant was entitied te eertein eredits, 

The lease shees that the éeferntant siade @ A4enoeit with his lara. 
lors ef $600 fer the purrors of being applied “by the serty of 
the first part (the lan‘lord) upon any dasage sustained® by him by 
Fearon of any default ef the tenant. ‘There is no evitence of any 
demages except the rental. ‘The Jury showld have civan defendant 
eredit fer thie angunt. 

There is sleo in evidence that plaintiff alter defende 
ant vacated the premises leased a portion of same fer $20 & month, 
and defendant's attorney asserts that he is «ntitied te a eredit of 
$240. Plaintiff's ceunsel doce not eantrovert this, 

The verdict is therefore tea large by 3740. if plaine 
tiff will file a remittitur ef $746 in thie court within ten days 
from the date of the filing ef this opinion, the judgment will be 
affirsed for $496; otherwise the jud-ment will be reversed and the 
cause remanded, 
AFPFIREED UPOH REMITTITIM OF $740; 
OTHSRVISE REVURGED AED RSMANDED, 
Eatehett an4 Jehnaten, 77., cencer. 





git 02 eunetstet dilv avigeniacassewo se 
, tedd sears &: aay aict seat oad. te 












ae 


ag eit ms pees as Pe eanenab eu of tndestom 0 > 
ad? init? teu 96 8% vibanicks em seaiueng nal id 20-50) 

etaadvoqel sae agseivera whet e- % deatex ae 
item SSS Yo fatowt act wbeu beaed sew ta feeey ont. 


.eoithete aiedise of Badiiowe cee tantow tel. atin 


te wise ons o We iLogs aniad e scnetug edt ast oone tw! 
ist Rd Seal aren ogeaws eas osu isqodhe 


Re Seaete ; ’ hes ie ‘aie 


tect asta te a 











i bas 


<atein uw Oe ow wana ad exotersst ‘ai ésimey 
Mamie ss Ue ES oR? spi ae 


axes we: + alse iw txw00 abs a ai te saiisdhed 3 a 





Beer see 4 









wai ed ce dues hut, et 


|B cscses Ses iiger ay 


Geran hee wey Ry 

er ae ee ERB E: REE Ramee Se eieee. Stabe sus Sas 

Pies seRlnwe & ay Be Seep see SAS Sets ah Die pa Sepa eng e 
ewe: Jen ae Rey PRE pe Wye Bey E SOR Be mek seney & ne 
OL Roh, ea ae eed al od at Pa inet salt ay ria 

@ianoeness : essen Sait deake al “Ri Reninse. ed oe 





19 = 30657 


GEORGE GLELOG, } 
Defendant in irror, } ERROR TO SUPARIOR couRT, 
Ve COOK COUNTY. 
VASILIOS GLEZOS, 
Plaintiff in orror. ¢> , A Po pw! 


eS £K : Si ~~ 
Rete ket QD 


WRe JUSTICR JOHNSTON DEALIVERSD THA OPINION OF THE COURT, 


This is a writ of error prosecuted by Vesilios Glesos, 
the defendant, from a judgment in the Superier court of Cook 
county, in favor of George Glezos, the sleintiff.  n appeal in 
this case also was proseonted te thic court by the defendant. 
In the appeal, Ho. 27934 mot reported in full (250 Ills Appe 
647), we reversed the judgment and remonded the cause. After 
@ csreful review of the evidence we held in an opinion written 
by tr. Justice Meturely, tht the evidence showed convincingly 
that the olnim of the plaintiff had been compromised and settled 
by a written stipulstion, which was filed in « former eetion 
between the parties in the Municipal court ef the “ity of 
Chicago. The written etipulation was intreduced in evidence 
in the case ot bar and showed that the plaintiff hea signed it 
by his mark. The stipulation is a» feliows: 


“tete of Illinois 
County of Ceok 


ae 
Im the “unicipal Court of Chi¢ago- 
George Glesos 
VB» 
Vesilios Gleses 
STIPULATICN. 


Ae It if hereby stipuleted and agreed by and 
between the parties hereto that the ebeve entitled 


Bos 212, 723. 















soo sonsarrse or aoc | 
“ETEMOD 3000 


ug 5 ‘hi 


@s 9 LI EES “soonest mata esteeie 


ene : 


| hee tl 


Rigo st WO eoneree mar suave woreAnt aORTeUt +i 


pest Le 

saGnet® wits adil net Show 8 Ob wbAiBoo: ant. i 
Me 
| hao oh ANG es LonsMEO vynese 20 saben at ysane 
| ctunitaes0d se WS Yue0 obKd oF Seswooning ae bao Saat | 
“eames 14d OBA) 5 mi bod Te od , 
teats soramee eile dodciomas tue canes, ead” nedae al 
“sie sale on. lato bin tt 5 Ses a 
“ easihouthymes nomosa onadrve vat ould yvlomvall oe lek 


$2 CE Gare ike 


‘patevns oe faery coer a Soest an Ste 








ie Sopa if & We bigs 
motion weme? 0 ah ALE caw sod moi tadua bea me 
to wee ats Yo save fagtntqed oad a4 aateung, 


Pee We ove , wok 


ore, beouborsmk wor wobinkisy hie aodster bo. sie i, 
bare te Tate at asta weostn oma wad én nae 


% 
s 


irc wey somededotauagenide 


- pis *) 








eause be and the sume is hereby dismissed without 
eoate, all mattere in controversy between the 
parties to said cause having this day been fully 
compromised and adjusted by the execution and 
delivery by eadd cefendant to eeid plaintiff of his, 
anid defendant's promissery note for one thousand 
aollars, payable five years after date, with interest f 
at six per cent per annum, paysblie semi-annually both | 
principal and interest secured by deed of truest on 
real estate in Cock County, illimeia. 

Dated Chicago, May 7, 19138. 


His 
George A Glesos 
Mark 
Plaintiff 
Vag¢ilius Gleses, 
Defendunt.s 


itedman ond Soelke, Attorneys for Plaintiff, 
MeInerney & Powers, ‘ttornoyse for Vefendant.* 


Om the present trial the plaintiff testified that he 
@id not omke his mark; thet Ke known how to write; thet he did 
not know the contents of the stisulation end that the stipulation 
Wage never reed or explnined to him. 

The evidence om thie writ of orrer is substantially 
the same ae on the former appeal, with the exeeption that an 
additional witnese in the present casé/on behalf ef the defend<- 
ant in regard to the compromize anc settlement of the action 
in the Municipal court. The additionsi witness, John P. Power, 
was the attorney for the defendant in the aetion in the Municipal 
Court. VPewer tectified that “he waw the plaintiff make his 
mark on the atipuletions amd thet he olse saw the defendant sign 
the stipulation. 

. Fe gee no reason to change our opinion expressed on 
the appeal. Om the contravy the additional tentimony of Yvower 
strengthens our conclusion that the claim ef the plaintiff was 
compromised and settled im the former action in the Municipal 


Court. " 
Yor the reasons stated the judgment is reversed ond the 


Cause remanded, REVERSED AMD KEMAWLDe 


Mesurely, P. Jo» and Metohett, J., concurs 





tuned be seme daue.t yoxwed Of ams ots be od we 
os Seewrred Yrievectaoe of anotdnm Ihe .ate 
qitut mood yh girls re ghia blag oo &®. 
here Holigenke ats yd petettps bee beak 
es Bei _ ie debate Se oo tna f ro ww 
geet aes eden cieeatae Ste kos 













; i fe Bis 
ge tearre te Seek xe js Rpg tue ait nly 
setenmiiil ,yeawe? teed ak 


eB LOL a P yal segoe dda: b 


aif 
soul) xX geet | 
ttivnlelt 
apnoret® Sn ad 


yyaaidiert 10 was met sialte@s dove Hoty 
"qs mmbety “78. stm Ph 4 ane 


ad teats | nar thsees ‘vhdaMtaby ane Sates “engenng| ete 0 er 
scx ast anda pediaw e weak nero on tant rire “eld 6 ‘e oxen dom ‘the 
wotdakuyste ede tad? oe ao rsatugtés ets “a etanane ad a iia 








Tews ADise S PE ‘paws ey ‘ 





i eval oan 
ett of heatalexo ve . boon tevin saw ‘ 


‘ Ulataned ven a tox xe 3% ats eked ma it ar _ ae 
i es tase so Ltqsone end datw sbeogae xearvot odd me 

“ hawtee add Xo nae f BeQpea0 tayaang eas at susie 

‘andees ah To teimosisin’ ‘hae emlaeonguine ostd od 

etewo 6 cabot seeentie Lowe 28900 owt sobs setae ol flat 
fegte baat ouid mt aotvos sis wt sedasts’ ‘add sok qoare ee : 
altel atom Peismbaty ote wor wt asta, Res inad cowel “loebeD : 
mgie stnduered vid wan sala ot sods bas ‘taehseloniet oi i he 


goat Ba %: 





Ayo sir 









is usd ianei ainicaiag ane 2 al 
rows ‘ko YMomtt ead Laupltthne eit “goonsene ale Bib tame ots 





SAN, TENE MRD a oS one ia ll is a 


td hen tania a 
A ae aR 





f; ; Y sat i ts 
- aah ie Th 

ty ty is ae NUAEIN RY 
i rey 





R6 « 30812 


MARIS . 

Defentant te Brrer, 

“ BRROK TG SUPZNXOR COURT 
ee | 


| 
} oF cook couNTY. 

CHEGaG@ TITLE & tHusT company, | ee ONeeen 
. 


Adwinietrater et 
the Estate of Ren a 
Peceased. 
BatLY SPICKA, 

; Pisintily in Arrer, 


ES S 

fi A K fe GY far ~ \ 
Lae. 4 ~~ ee is 
ae) Dnt ae erticee ar a 9) 


edhe, 


BH, SUSTIGH JORWNTOR DELIVERED THX OPINION OF THR coURT, 


Taie ie a writ ef errer prescouted by Emily Snieka, 
one of the defondanta, to raview a dosres aonfiretug the Lneter's 
report in fever ef karie Straka, the cemplainwt, in « anit brought 
by the complaivant againet the Chienage Title ond Yrust Company, ade 
wminietrator ef the antate of Robert Fatyet+, Beiiy Spieka, ond 
others, te eovpel the epecifie serfaermance of an wLiegad contract 
betwoen the complainant and Fatveta in shies, according to the 
aversentes of the couplainunt, Batyata agreed to give to the come 
Plainent all of hie property, either at the time of hie death or 
befcre his death, The defendant, Suiiy Gpieka, wae a vister of 
Batysta. , 

tno srineipel comtentiorse? the defendant, Bmily 
Syicks, are (1) that “the claim of the complainant i» barred against 
inventeriea sexete by virtue of hex Failure to Pile her bLlL until 
more then one your alter the grant of Letters of administration; © 
and (2) that “the existence of the alleged contract has not been 
proveé «ith that certainty reeuired in onees of thin character, * 

There in very little diepute ss to the material facte, 

Mm outline of the evidence to, in wubetanee, that the 
complainant is a naturel daughter of Hotyata, snd vas born in 
Austriaeliungary on Septenber 23, 1404; thet st the time ef her bisth 
Batysta wae « citizen ef Austria-Hungary; taet one year after her 





birth Fatyeta cane to the United States, Located in the eity ef 
Chicage end engaged in bueiness; that the complainant remained in 
AustriasGungary with her grandeether; that in the early part of 
the year 10912 Batyeta went inte business with « Mire, dmoa faaue, 
who testified in the cuse wader the mene of Amma Aynes; that she 
Lived with him ae hie housekeeper; that about this time Ratysta 
was anxious for the compisinant, whe was 17 yearn of age, to come 
te Chicage and live with him; teat ot firet she refused te come; 
that he wrote to her agking her to come, and told her that he was 
going to leave her ali of hie property after his death; that he 
gent her a steamship ticket and money te cover her oxpensesg that 
she enme te Chieags oad lived for « time with Katyeta; that ahe 
Left Satysta'’s howe ond worked ae 4 maid servant, giving as her 
reason for leaving that her father's housekwerer wae very mean to 
her; that while she wae semloyed as « weld servant Ratysta visited 
her, on¢4 their relations were plasegant; thet en Kevesber 15, 191¢, 
Batysta was adjuiged imeane, oid that en Secexbor 2, 191°, he died; 
that in the early part of Mevexber, 1019, before he was a¢ judged 
ingane, he consulted an attorney in regard te his affaires; that he 
told the attorney that Ae was Living with a women to whom he waa 
not married; that Patysta asked the attorney to prepare a will for 
him bequeathing hie property te this woman, but afterwards decided 
mot to wake # will; that on November 5, 1919, the aticrney vent to 
eee Batysta, wro wae ther in « hospital, ond that Batyeta said te 
the attorney, “I want this oreperty we own together te go to Era, 
Hanus, and you draw up some kind of a paper so that I will sign 
4%, amd ahe will heve it in her posseneion in ease something hap 
pene to me before thie deal ts clowedy™ that the attorney prepared 
the follewing document, which Patyeta signed: 

head eas gy y oye that Rebert Batyata ond Anna Kanus 


are in parteerahip, an joint tenants, and have bean for the past 
nuwber of years, sack contributing hie or her services to the 





A is Me 
Se Ra eH 


te wth? ent af veswcod qmatads hea sat e@ aae atexted aenke 
ak oentenet tacwloiguos ext fee) - salnisial wd Nanna 89 am ay 
to Pag oe wat at Gade sealegeieng ans ot de yey * ns a. 
cin ain Larch wearin one Seow wtuytad eat may ont 
sia fact cuoayls aaah Lo wan net sabi an mit mE ho Fi Tiled gabe 
eteytol seks whit twos Fats “shawl thd we whet a sy | avid 
Shon of WHA he Hiboy TK aew ete oboe ss Serer ‘nt a amas om 
pomes ad Beaeter Gite dunt de pant parka adie geht box eueota of 


ene nit tana wa Lae tele viisine of hak ithe sean nso it tay 














"at gat ttineh ale wea! wesogwen att No He He come o en : oF 





er yesnae ae wat xaoo of decid Sete. facie kd ahd 4 
eile tas janariwt sie, auly Siu paw tem pare’ api 





Jeint tenancy partnership a4 sharing equcliy in the frauite 
thereef; that is, each io entitle? te oneehalf of the property, 
real or personel, smd upon the denth or ineapauity of the one 
or the other 21} the property akall become the sele preperty of 
the surviver te held ae hin or heres forever, I now give to 
Anne Manue ali the my oreperty aituated im douth Yout State Bank, 
Slat & Ashlinnd, Chiengo, ad deliver te her the keys te the sane; 
and all my other vroperty i gituated, 
Mebert Batyets (G4 

Fitnesses: Fae Seana 

Leom Andel ( Signed} 

Vaclav Keuteeky (Signed,)* 

the avidenee further shows that Batyata did net give 
the complainant any of hin property befere bine death, amd thet he 
died witheut making a will; that at the tiae of Bie death Batyeta 
left personal preperty of the value of approximately $22,000. 

The cantention of eguneel fer the defendant, Bmily 
Spicka, tant the failure of the semplainant to file her bill for 
epeolfiec performance witil more than one year aftexy the grant of 
Letters of administration, cara ker right te the inventoried estate 
of Batysta, te beend on Seotion 7), “Mapter 3 of the Tilineis 
Statutes relating te the Administration of Seintes, The vertinent 
part of section 76 is as follows: 

“All demande against the estate of sony tesiater er intestate 
ehali be divided inte alasves in the manner foliowing, toewlt:*** 
Sixth, All other debts and dewands of whatever kind without re- 
gard to quality er dignity whieh shell be exhibited to the court 
within one year from the granting eof Lettere aa aforesaid, and 
all demands not exhibited within ons yoor ow sforeanid shall be 
forever barred unleas the oreditors skal) find other estate of 
the 4eceaned net inventoried or acoowmted Tor by the exocuter or 
aduinietrater. * 

Counee) for the defendant, Buily Spicka, maintains thet 
the euit of the complainunt is a debt or demand ageinat the estate of 
Satyeta within the meaning of paragraph 6 of segtion 70. 

In our opinion the suit of the compleinsnt does net 
constitute « debt or deaand against Batysta's evtate. The complaine 
ant is net proeeeding on the theory that she has «a dedt or demand 


that should be paid out of the estate. The scope and purpose of the 


oomplainantts B121 ix te resever the entire setate. She te not 















SS ual te a Me 


te on Ny else ot we by as 
ot wren wor Ty oi eevee 
Ramet wrath Rook aan et od Sate: ie 





ike tare’ wt ot Sasa set 4 ae Taare au 


ot ones ‘pine pen «ls ated cae gO eke 1% we - mh Ae 
aitexted ASawd obs %e aside wet bcs Haves ie ow aatsen ase J te 

| eda Beg eErtenteos ie te owas ant “We eiwogeey ka . 
etbes ptaad.na'emd mith 29% Paco 6 aekrenitans ont ‘ ia a wae 
wet eis mot ectt e Semis Sean wale ta’ etude? oat sa ail qe 
Ro Pemey, out waite tas emo ad? one eto sscsinvtasg atts 
etaton beknornarih eat 09 Frnt ta Geet 1b idee Lesbo ® pied 
_ stentist ott Yo F motel oF selsvet, me vane 9}, s | 

nt 






P ; ~ ah oo. 


ta 
on MR Hea aR 


asking the court se & claimant against the estate te allew a debt 
OF deoand aguinut the estate, She le invoking the ald ef a sourt 
of equity te obtain the entire estate, wien she sliegas ehe is 
entitied te by virtue of « contract. Ghe is not claiming that she 
has o debt or dewand for « epecifia amount sagainet the setate, the 
ie severting a right of ownership to the entire estate iteeif, The 
Felationesip exiating between the estate wid the complainant is not 
merely the strict relationship ef debter od eraditer, It te a 
Telationsnip based on equitable principles growing out of the ale 
ieged contract between the coupiscinent end Satysta. From the 
views that we have expreased, it follows that the right of actlien ° 
of the compl eiaant reseonatiy sheuld net be tersed a debt or denond 
Within the meaning of paragraph @ of section 76, 

The genclusion that we have reached is supported by 
the follewing anslogous onses: Evens vy, Moore, 247 ILi, 60; Giliett 
Me MiekLing, 16 221. Avy. 392; les vy. Siison, 37 Cele. 246, 

Counsel fer the defeniant, Emily Seiecka, relies om the 
feliewing cases: nd Co., 184 Ti. 220; Morge v, 
Basific Ky. So,, 191 t11. 5846; Balee v. Hedland, 92 Ill. 494; Borage 
¥. Gidrette, 9S Lil, apo. 24; and Batata ag, 236 Lil. 
Ape. 168. Wo do not think these vases are in peint. itn none of 











them was there any claiu of ownership of the stire estate. The 
tight of action im ali of thes proceeded on the theory of a claim 
againat the estate and payable out of the evtate, In all of them 
only the strict relationshic ef debior ond ereditor existed between 
the ectate end the claimant, ond ne equitable rights such as are 
shown in the ease at bar were imvoived. 

In considering the contention of cownsel for the de- 
fendant, Bally Gieka, that the contrast has not been clearly and 
wnequivocaliy proved, it will be necessary te state the evidence tn 
detail, as each enne of specific performance must be determined 













wae eae nites! #08 nt eat tensinee ‘te ohoete ge * gat | 
ot odcter BAP Senteys Yrrone WE itoee: «tot been to Re neal 
edt .Uieat) oderss ertiay wis oe qtse taste: . Ee sntiecte at 
ton ak taemialauty wai ie otoies ost qonwded, ‘yeteo bes isnnobtn _ 
WAL GL cap lbete fine chase te alimentos tele se tena 
wha asd to dae paiwemy Releivatrn nies hip es sone bisa : 
| ond wer’, ebaGes®. Press dieeide sow oils mpweted ee ) ; a 
" wettem Ye seyde exit tows wwutie tk ,buaeenoe veut wo + tat jos : 
bance uo deb « et ag ton byes: oe wel 








aie 06s 98 _ i 





ane 18 a cat 8 





Largely on ite om sproial faates, giae, 838 Lil. 424, 
431, 

The sentrast on which the auit of the sonpiwinant ia 
baned was net a formal written decummt, I6 was partly written ond 
partiy oral, The written part ef the contrast consisted of a lete 
ter frem Datysta te the gemelainent, The letter was not produced, 
The only direet evidunee of the existence of the letter ie the tage 
timeny ef two vitneases for the complainant « Vincent 7. Klaus and 
Sarie Orahwnkebil. However, there ara foots and cireweteances in 
evidenee which tend te correborate taeir teatiweny: amd there is ne 
evidenes whieh direetiy eontradici« thelr teetinony, 

Vingent J. Alaus teatified on behalf ef the eomplainant 
tast he war engaged tn the eteamahip business, feraign exchunge 
ond Tire insurances business at 45th and Ada streete; that by the 
steaietip business he meant that when a mani wanted te come te this 
country from Zureps ke, Alans, arrenged for the pasenge acrose the 
egeam and for railroad tiekets for the commecting company; that he 
wan well acquainted vith Eutyeta; that he hed known him for about 1% 
yeers; thet he was net related te Batysta and hed no intereet, peeu- 
eiary or otherwise, im tuia auit; that DSatyeta had = meat market 
Just on the next sermer te Hin, snd vas in business there about & or 
40 years; that ™~aus wae in hia, Flaws’, piace several times a day; 
that he telket te/aue, shout his fasily affaire; that he sald he hed 
enildren om the-other side; thet he talked about the complainant at 
least six times; that on one occasion his, Klaus’, eistereinelew, 
Marie Urshenkebil, was present; that at that time Batysta said that 
he wanted te send 950 for traveling expenses for hie daughter; that 
befere that he had bought steanchip tickete; that Batysta seid that 
she 41d not sanewer hie letter; that “she was funny;* that he, Elaue, 
eaid, "Wait wotil she anewers;* thet Batyste said, "He, I write her o | 
letter; hore it is, Give me $50 and gend 1t te Burope and you can 


Alt fKk EH smite at Answig, a Gn, Ladee ey ey bid, 


ab, tupttn iggne, nad, Te ddun oh, Ro.kibn mp tuantnen, oa ange 
ae sadphae eexey vow FL staminged sotpiee Lowe # tout aw 





ohet # We beds Lames, Toa sda aatt Se aha sete har aah, sa ie oa 


neh I Ian A xa 


shooubatg toa anv wrtek ant , tees hase walt, at 





fh memereien tn. sha. in. eH LS 4 nell ah sens 


wanktnnd, chess scexotoense of hel Mp4 = . mhhvo 


= ae ahi ts ara we 








" a 7” | 


took over 1t;° that he, Kiaus, looked at the letter ond sata, "F 
think that she come;" that this wae im May about 1) or 11 years 
age; that Satyste said te him, “Here is the address," ond gave him 
the money te send to her for traveling exenses and tela hin te 
look over the letter; that Satysta had previously waid that he had 
® daughter in the old cowntry and that he would Like te have her 
here but that she 414 net answer hie lettere; that he said that 

if she was here she cowld stay by Him and that after his death 

he “would leave sli the property to her;" that Batyeta said, “Hew, 
I think thie Letter brought her wo here quicker because I erote 
here I got mebedy here in this ecuntry, only she be the only one 
whe le going te get ali my money, my property after I am dead;* 
that Paytete aiowet him the letter; that he, ELaus, reed the Lete 
ter and aaid, “I think she will eeme;* that he gave Satyate a five 
eent stamp; that Batysta put it om the letter and put the letter in 
the box; that he, Biaus, went with Batyeta to the door snd saw hin 
mail the letter; that the mail boa was right on the corner; that on 
one secasion when Batysta wae going to Califernia he some te his, 
Kleus', effiee and said, “Here de G6060; i on going to make a trip; 
in cuee comething hayyened to me 1 don't want te lese the money, 1 
get enough for my traveling expenses. Incase seme accident hap- 
pens to me cive the $6000 te my daughter,” that the complainant 
had at that time left Batyeta'ts home and wae working ae o maid in 
hie, Eiauws’, fauily; that he, Zlaun, said, “I want to onli her;* 
that Batysta eaid, “Wo, thet iv «11 right. When 1 come back I want 
te take the money for my buvineas;" that Batysta stayed in Galle 
fornia 4 or { weeks and that when he oame back he, Bleaus, gave him 
back the $6,006; that Satyeta woul4 come to hia, Kiavet, heuse and 
ask, “How ia sy dnughter;" that he, Klaus, saw Matysta kies his 
daughter; that the complainant told him, Klaus, that the reason 
that she left Batysta's home wae thet iirs, snus, datysta's house- 





a pine hw shade On? #0 Bhinat stoaen ae pede “9h vere: too! oe 
sueaia © Speer std aids” 
ee ee oe | 





ait wre, baa *aalbtbhe wait t+ seilt std of Dhow mioueaX saat tae 





- ie bat heed bute anus Lor ened sida al ot oma iw Paro 





‘‘pbeew f daveund nso dp ween oy wee! conwand wudenk eine sah ; 1 
hs RS eee oa: fi 
—_ vine oof nat ‘eda gino tdeven aha at seve sehestone tam i 





Ws phe ae T sere etaogeiy we a jupoaber 9" 3 






| ate bd news geet aid Santo prodded aah she sowara aye 
welt tee fice 8H 2b) * jonny io wits ant 2 bie am 
sh sporangetoneyssieetle abonshpmeremoet sy | 








aol ina  plelisadl iis "pene iy vineoevaal ele 400d sy pre syti , 





keeper, was mean te her; that then the compleinant cane te Chi cage 
from Austria-liugary, Batystea told him, "Kine donghter ia herey* 
that he, Eleus, talked With Satyeta about hile property beth before 
end after the complainant came, sad that Batysta would say, "Whate 
ever I got, I don't want myself teo much, I got no children, 
whatever i ieave is for my daughter;" that at the time Batysta 
sent for hie daughter, Batyeia told him that he was werth con} 
siderable property; that Setyete hud » farm and thet he was making 
$26 te $36 a day in hie business; that he had two clerks, 

kavie Oreahankebil testified en behalf of the complains 
ant that she waa not related tg the complainant, ond waa net in+ 
terested in any way im the owit; that she is the sisterein-law of 
Klaue and Lives is the seme building in which Kieue Lived; that she 
knew Satysta for about eeven yearsson’ saw him nearly avery day; 
that she rexesbers hearing « conversation in March or april, 1912, 
oF 1913, between Datyeta and Kisue in Kiana’ ploee of business in 
Yegar’ to batyeta’s sending money te the o14 country; that Batystes 
came there with a letter; that he enld that he had sent traneporta- 
tien for hie dewghter but that she waa not coming; that he aaid that 
he wes oll upeet because she was net @oming when he hed paid trens- 
portation for her: that he was now sending a latter asking her to 
come and thet when she should come that he wili give her every+ 
thing that he owne; that she did not see the contents of the letter; 
that Batysta did net show it to her or offer te show it to her; that 
he showed it to Alaa; that she saw Batysta put a stamp on the let- 
ter and seal the letter; that she was present when Batyeta gave Klaus 
$6000 before Batysta went to California; that Batyeta said, "Well, 
Eleud I om going away, 1 have a daughter here, se I wili leave 
$6000 for her, if anything happened te me give the money to her, 
Should nothing happen i wili take the money back again;” that she, 
the witness, said, “Don't give the money to Dr, Klaus, give it to 





a 


gape LOR wt soma taenth damien att motte wmtt pas of nant ew | 
* raed wt tedriguet. seth stabs pitat sete dak exegeurfinateteark wee 
neotnd dot qoundeny etd wads ateeted waite nd nt seve yet fad oe 
«tne yi: Ahuew ategted text sam jeaine seo ate deme cl ool tN 
tet Dee ot fom, A ee owt hima dina # ecw y tog Tam a | 
atayse® ‘ee watt ta fasts * yamecguiet ge tet ek svank © torr wa 
eee Aieom, ous ad Want wih Bdod aieghad cevtaes i a : 
gakian sem oe wwe aan: ao om saion Sasits Shenstone “e - oo 
wats canoe, al Ba si pate Lisedinet arta 





























pies Coat ehhahk ilk nies binglaetink dice tana ohh bh Aan ae 
SHE08 AI2QA 20 seran baat iawn 6 aazasd wxsdannt wile tite oe 
mh anqnlaud Ye stase ‘ane ct yaddh han oteutes anowtes (ENOL 
asayia tect (ewlaares Ao ony 92 wen gation waserta nw 
east hane fad a dante bah cd raved «ashe Oe ae 
Sete tn te we ok 





reoaged pat 90 Rémotnen, ot one Soe DLE ose dade: SB) 
dott jamie ot 22 moda od wee x9 eM of #2 wose fon bth ateytal 
etek Ott 0, quate tug wdeeaet aM nds dant jaNOX of #2 ROwE 
sabia matenniaandbunanenahunians ieotes eat nil ' 


her. You are without any other;* thet latysta wald that in amerion 
it in net customary te give children anytoing untid after death, 
Lydia Keoseka tentified on behalf of the complainant 
that ehe knew Batyete; that che hud a daughter shout twelve years 
old and batysta used to say that he had a daughter about that age; 
that she wae in Caecho-lovakia and that he would bring her here 
and that if she wowld some everything would be here; that his 
property was going to be here; that after she came Datysta told 
the witnese that she was hie dewghter; that she heard her call 
Batystea "Pa," On crose-exemination the vitnoas wae seked this 


question: “And didn't he alse tell you that he wanted her te 
come here to Coleage eo an to do housework?’ The witnese anewored, 


"Ko, he ditdn't say that, he said he wowld bring her here ao that 
sinee he 4i4n't have her when ehe was young he could have hey in 
later years for hia joy.* 

Louise Keseka testified an benwif ef the complainant 
that she wae the daughter of Lydia Kosaka; that Katysta's place of 
businese was ricit across the alley from ner father's; that she 
saw Latysta nearly avery day willie her father was in duginese there; 
that she heard Batysta tell her mother that he had a daughter in 
Burope and that he was going te bring her hore; that ofterwards 
he shoved ue some bille and esid he hed went Yor her and that 
eveyyhhing would be here; that after ehe came Latysta introduced 
her as the davgster he sent to Burope for; that she, the witness, 
hearé her eall Patyste father; that during the aix or seven weeks 
that che was living with him Batysta elwaye gaid that he was coing 
te give her hie property. 

On behalf of the defendants, Anna Hynes (also referred 
to ae Anos Hanus) testified that from March 12, 192%, to December 2, 
1919, she was the housekeeper and business partner of Katyeta; that 


the complainant came to Chicago from the old eountry in June or 























= 


waives sah wuscid bine sipyiae Jai yen ose AOS wom aE 
tH wos be. ree) gas hg st fete, ate ar ee toms yl 
anata tases elt, Be heated ge bauadenns atone engl HVE 
axeme Oriamd, Quote tndcasnd a dest up Maul papaeeee, wom on 9 ‘ 
{soa Jedd deady “MERGUAL a bat OS Lede OR OF Deew a gait baw 
oan toe poked Idwwy oa cae bite aiiewebieaisend af oar OMe 


fuk dadt paved of tntiwe gate vcore eioe btgow ad ah at | & 

Died wieytell suns ony tote Sood yased of oP gation sow yoeeqen 
Eno, inc Brkt, onsit sateen abe say mie gnat sage oat 

“$0 Od Madmen ph 106) ee, Lien wae 0 rene ae? inottvenp 
boven hicahiadill watt * Pate cmertnaroet o ad oe O8 gel of wes 4 neo 
tect ou ered mA gabey Ainew ost b2ke ail yet we “ath oil -“ 
Casi bkioe sh gear, aw ee waste uodl wwaat Oath A gente 
voce att 30 a 

" faantatgne ots te tkaried 3 ao hodtneaed adpecit oe lipd — ; 
_ te wade areata saith b weieast atid ce + rel heats 









Wik Gee x 


7 Es 2 on 


|p oo an sae a a 


July, 1912; that Batyeta sent her o stesunkip ticket; that when she 
firet came te Cnleags she Lived at the home of Batysta; thet che 


was there only a fer days and then left because of «a quarrel that 
ehe hed with Batyste about doing housework; that she returned tre 
er three monthe later, stoyed only six weeks ond left again, when 
he, the vitnese, aeked her te wash some clothes, 

frank Pich, * wituese on behalf of the 4efenterte, 
testified that he wae working for Katyeta when the somplatmant 
game to Ghicage; that she ease to Batyata’s houve fren the depot; 
that he foes not know hor long she stayed: that before she came 
Batyeta told his that he vas going to pay bie daughter's way from 
the eld seuntry; but taat he “did want to pay the money ond she 


Bhoul? come gouty" that that wae ali he gald; that “then Ae say 
he received a letter she isa eombngs* that "the mail gen came and 


gave him a letter an¢ he opened it snd eaid, "Here ie a letter from 
the girl, whe ie eoming.' ‘That f# 211;" that when she came be sald 
he was glad that she wae here: that he eadd that she was tired 
after the trip; that «ne ghowld “Lay off from the work for sa faw 
days, get rested wp, ireceed up, wached up” and then te “work sbout 
the howae;” that the complainant maift elther te him, the witness, or 
hie wife, that she 4i4 not come here te werk; that he naver heard 
Batyeta aay that he was goime to clive the cooplainont anything out 
of his property. ‘The viinese was asket thie cuertion: "Did you 
see the letter that he [vatyata]l reeaived from hin daughter?* The 
witness anevered, “I aaw the letter but i never got o change te 
read the Letter,“ 

Bick Zerka, a witness on behals of the defendants, 
testivied that he Wan aequainted with Batyete and the complainant; 
that he knew the couplainant before he knew Batyeta; that on one 
occasion he ssid te Batyata, “Your dauguter she lived at my house 
on the west side and boarded in my house;" that two or three yeare 
afterwards, slong in 1004, he heard Istysta wanted to sell his 














Ody fait? jateeted to unos oxide barks male, ome datt +. pana os 
art fomana a te spinsed Sek we hae aah 0% 0 hwo exedt aew ae 
od Rumen oth ert pltomowed gabon muede etwetet athe hel ede 
amie ptheye Pek bre tawr ute knw Megose vevak aatans BORE Ye, 4 
eactele sme Mey ad yp heise gamens ae ge: 
-pisiesginaaibad wine tlecaneune + AAOES. BOO sg), nls bee 



















«ane 


~ wer ates on aaa sate sae ce tes ata oh a on o 


a sem i Km 0% ps "ean a oe stv» bt ek .. 
meet Medtet «, 4 weit aie bo $k peas on, ha mint dane Atak 


Anta 


‘shes ah teancgahs ned saell ideiale Wins wl jane 4 
dunia angst ot. 20:9 pe Sam bedinem ges Danceat gus boson Hip. Fel 
OIE EF: nT BE OES Ades Puente faenme. edt tah * joi ‘isla 

Rota, aA oh tat es ee eae 


16 


butcher shep and he went te see him, Batysta asked, “Where is my 
daughter mew; fon't you know smything about her?* that he, the wite 
nees, said, "No, sot for about o year;” thet Batysta said, "If she 
worked end stayed with me I give her everything, ond if she don't 
stay with me she don't get anything;” that Batyeta aise said, *2 om 
#0 wick last week and I have tee dectere and { ealied wy for her 
aid ahe 444 not show wp. * 

Sooeph ©, Loney, on tebalf of the defendante, teste 
Tied that he wae a lawyer; thet om Seteber 21, 19%, he was called 
te Batyota's home to see Satyata; that Batyota wanted him te pre 
yore «¢ 4121; thet he wanted brs, Kerns Tadao referred te an tre, 
Hynes] to get Wl of his money because she was entitled te it: that 
he wae not marfim to her but thet they Aad lived tegether for aight 
years; that she head gone inte business with hin snd het put money 
in the businwes; that the buainess wae « sugvesa; that they had 
agreed that upon the death ef «ither the pronerty wae te co to the 
Survivor; thet ho, the viiners, wae eslied to Ratyetats home the 
next morning snd that Satyete said he wae feeling better ent hed 
shangea’ nie wind; that tnetesd of making s 7121 he would tuy o form 
and leave that te Ber; that ke bowgnt the farm end told Eres, Usnue 
im the presenoe of the wliness that the farm was for her; end thet 
he heped that she was sativtied; thet when Satyeta wae in the hose 
Pitel he said be wanted all of his preperty te co to Bre, Banus, 
ent reguetted the witmess te 4rew up the dooyment that we have pree 
viously set out. 

Jones A. Galek om behalf of the defendants teetified 
that he wae the vice«presivent of the Southwest State Bank; that he 
had known Batyete about fifteen years, thet about Nevember 3, 1929, 
Batyeta eame te Bie of¥ice with » young lady whe Batyste seid wee 
hie devghter; that Batysta hed some segurities in « package; thet 
he signed an agreewent for a rental box, put the securities in the 


hae onA aatA Hhat ks the witnane ashawiA narmit Mea. Hasse fe on 






NP eR ROEM iain nrwg set anaes aadvadina ‘ si pata Oar 
ine RE" hibae see anid rye 6 bbe ee toa ale ‘alle ween 
Pah octe UE hao .ondsteners wea aly T aa Are Mager ban ele 
ee iY kan made abegent Tene “a_alilingas dag Peek th seth eth’ 


8. 


sed 49% cy Rod tne hese weintck ond: oma X Sik a Dhak Seuiodl : 














attend yatuatre'toh att te ‘wivind ie 3 sok oY crag’ 


ies Chae yaar tet ROE th witatet ae inane anew * nom ot of halt hn ' Ph 





as: n2 ae nenetan wah ide RS oa 
freate C0 sitteiah NRHA Gk Yad Fait et tnd ad bedzxo all 
sonal Mia pie GAs wehw deastous ofmt rainy, ed eae eat vag : 

© beth wes tend jumewn a nai weemtens adi tao pensutt ¥ 
da 0h of OF a atARaiGa ont aeaely Le hen os anew 4 ws ote 
nity Whine eh antghat OF Ima tee Awe powemete ORE ye pes os ‘ 
aajeoonsghrvonmdedelonid yc ty tooten 
weet a Ca Biibowr St by 2 be som ; 





eh he A 
Sh 


to the bex as & cooranter; that Batysta said ne intended to marry 
Mre, Hanus to protect her rignts, because she helped nim to eave 
his money; that Netyete alee said ke was going to buy hie daughter 
® coat. 

Jered tartinex, a witness on behalf ef the defendants, 
testified that he had known Batyets for many years; that Batysta 
sald re, Hange wae a good housewife, oid that when he get hor 
they made money; that Eutyseta sald he ean going to bring hie 
deughter te thie country; that when ehe cane Datyata tel4 him many 
times that he was going to eae Ale daugiter; that om one ceeasion 
ke gaid he wan going to buy her « coat md he wae goimg to fix her 
wp; that he heard Datysta say that he wae goine to give Kre, Banus 
the biggest pert of Kis property aid wae geing to fix wp hie daugh- 
ter; that he was geing to take care of those two women, and that 
he sliwaye favored Mre,. Hanus; that 2% the time hie daughter same te 
this country Batyeta had s cottage at Brighton aid a Little money 
in his business; that he was probably worth about $5,000; that this 
ie his, the *itnece’, notion; that Batyeta never told him just ox 
actly how auch property he had. 

: Eéward Blinenbverg om behalf of the defendants teatified 
that Patyetea told hie that be had « dsugiiter in the o1¢ country and 
aske? him the beet way te bring the ehild ever; that at thin tine 
Satyets was living with Mre, Hanue; that Batyeta sald he wanted his 
é@aughter te help hin in the purines and te help Mra. Hanus; that he 
dees sot think that there wae ever « tise that he saw Satyeta thet 
Batyeta 414 net say something about his daughter; that om ome ocene 
sien he said he had Dought her « cout and 4isforent things; that 
Batysta told bin that the girl had had trouble with wre, Henus ond 
Left; that Batysta never tol4 “im in what manner he would dispone 


of hie property. 
6. D, DeWitt, a witness on behalf of the defendante, 
















— ce Bavausad od Blan ataybee dao) pretawenes | 
eda o¢ @Et HeQiad oda somvged  wtAght wal Seasoug at we 
thdigueh ah —ws of gabon degisssbgee ti de awe i ome eee ot 
vavnatoin tae ils Wi thn ae tectele a eee ee, OO a rs wl ane 

obngiat gett pemeey eon ve) Reagent cibrgad Baek wat tat Netthined — a 
Tot ton od mele tee San Sibeadaed howy a ane emeel et Nhe a ve 
ee beeen eben: oth 
(ide eh NESS acetal nuns soto owite teal pigtain ee ow aa 
déldadds oan he dad) pawetorab ofa whe oF ywheg pant gil Me 
wet ct 69 yutoy Gov oe tite tam ote yd OF aiod one ad ied a hae 
don ,o0 oty OF uadig aow nt Hee ge ‘wget Bene wit silly a 
‘atigueh Bis qe x01 of yatioy moe le Yeeeqg aa te Og tangle 
aids Sev jamie ent wool? “to we9e wat of Bien vaw nt tank FRR: 
od one Totiqoad whl wats ede tn OMN fava set hewn sieht ane 
ve etethe s ue saraceuaniens seated ¢ Re nowy oe ae 
se tat wh Stor se ati at ion to 

















snibeanine sini il ee sen ) a 
nite tention ‘a ats WE Wessun «nie at hae ae Bt tee 


42 


testified that he was a poet office elerk in charge of the records 
where the eslicetion boxes wore ‘seated; that prior te August 26, 
1923, there wae no sell colicetion bex at the corner of 48th and 
Ade streets in Chicago; that ths clesest bom wae a block away at 
igomie and 44th strevts. 

The gompleinant tastivied in regard toe receiving the 
letter in question, but the court exeluded the testimeny on the 
ground that wider section @ of chapter 1 of the Jllinois statutes 
relating te Evidence and bepositiens, the complainant was mot « 
ecupetent witness, 

It ie eentended ty eounedl for the defendant Eally 
Sticks that “the alioged sontract stands unon no better basis than 
if 1% were om oral contract;* and *that aulficient proof has not 
been shew,“ 

S&sencing for the aake ef argument that the contract 
shoulé te sonsidered an oral aontreaet, and that unter the rule ree 
lating to the specific performance of auch a contract, 211 of the 
terms of the contract must be clearly and eatiefactarily proved. 
(Aldeich vy. Aldrich, 267 121. 215, 228), yet it fe aleo the rule 
that the contract way be proved by other than direct evidence; and 
that Where focts, including the act ef the partios, raise 2 convince 
ing implication that the contract was setually made, and satisfy 
the court thet its terms aud provisions are sufficient te justify 
ite enforeesent, the sontract sheuld be upheld. Abdries v. Aldrich, 
supra, (p. 222); Willie v. sorger, 268 T11., 574, 575, 57. 

in the cose ot war we are of the opinion that the cone 
tract has been clearly and satisfactorily proved ond that the one 
plainant ia entities te nave it apecifienlly enforeed. 

Gowisel for the defendant Maily Spicke has cited 
Bumercve eseen te support his contention that the evidence in the 
ease at bor is insufficient, The ease on whieh he principally 


aircoeax odd to open at teeter ertew avy @ ‘ine oil niet bet tpuns ie 


OE theawh of tolte bald piwison! exe Sorat wilthe thew aut enter 


ee ta a eg merge wed ie of mottcsitteg Edam a baw wage: ener 
ite te tooké « wae mod fegueln slo death syers te wl stones ahh 


seteoen ore 0 ehinwod 
ori? gil riasey oF pica uit: rataimee detaches iegnes ‘eae? j 





Silt ta qMenttshet ott Hobn tone goers oat penesibeatt i000" ee 





aagutoty Blank sit oie te Jt eatgaise Ae sabagen choca Saat biol 
@ Seal wae deante Lome ects canals bam somebhve ot si a6 . 













viet i amano vith 00% 





_feantace itt ds senaenes ‘ie sien ot ee atin ae 
“anton wet? “‘apbon Sanit Nat jtunevaeD Tere ow meebo ed 
ed te cia 2 Seerndetes e Howe Ve woman WRrtange Hat OF a 

sborety ebivenanwatsae eau eens da 8 town ‘ie ~ ow many 

i i ae of 5H oe (8k RR - 






oi en van et ilk ye ‘aie | = aed A 





13 


relies ix the ease of Davigx v, Kniser, 260 Ili, 334. Ye think that 
the fnete in ol] of the cases are materinliy different from the 
facte in the ense at bar, 
in the case of Seupe) vw, Hughes, 255 111, 404, the 
gourt waid (p. 453): 
“So inflexible rule ean be Laid down to eontrel the ep ecifie 


enfereesent of cantracta in equity, Owery case must necessart 
fepend and be determined on ite om speaiah Saete,* " 


sugrea, clted by ocoune 
sel for the ¢defentent Geily Sokekn, the court held that the terme 


In the ease of Davier v 





of the contract were wnreaserarie and winatural, ta the ease at 
bar we think that the terms of the contrast are reasonable and 
natural. 

Counses fer the defendant Beiiy Gpicka Surther contends 
that there is ne adequate consideration te euysert the contract. We 
think that the soneideration for the euntract wae that the complaine 
ant should leave hor some in Austria-Hungary and ceme to Chieage te 
Live, | } 


Im the gage of Eygne v. Moore, eypre, in dlecussing 





the question of the consideration, the court said (p. 69): 
wae 
“The consideration for the agreewent/that complainant should 

Leave hie parents, brothers, sisteers and other relatives, re- 
neownee allegiance te the land of his birth, some te this country 
to live and beens a citizen of the United Steten. It was not a 
ense of « promise to make « gift without consideration, but was 
am agreement made mo legal, velid sonsideration, and when 
ertaraed by comlainant the agreement became binding upen Devid 
se Brene and the lew tapesed woon him the obligation of performin( 
it. 


Counsel for the defendant Emily Spieka further contend 
that the evidence 4oou not shew that Batysta's Letter to his daughte 
wee aAéreere4 and mailed; that the testimony of Klaue that he saw it 
matled is contradicted by the teatinony of the postal clerk, De¥itt, 
whe testified that there was ne collection box at Ada and 48th 
streets at the tine in question; that the closest box was a bloek 


away at Leomis and 45tk satrexts, 


be 
garit shade? oF «DER til O68 «Rnedak ut weios Y¢ vend oat oh pebinn | 
wid moet tunes Tedd yliairetom vial etewe ode Yo hla ad eae oat 


Ake aye v “he : 


‘sted Gn pono aitt at at 
eb Ah A OP ata tt same ak | 











as 





$e anne: oat at. dass oie Spe ee 


Ss " Ng aa aa 
wind noomenile st Syeasane edt te iste seed ad  aakee - — oe 





Bhuntenoe soda “asl Mes qb! aalincn'¥alb ‘on <a : tveeua open eeu 
Oo .fhercdaoe vit Fxeqne 63. ) wottenwb tena stanvebs ond owas | Aa che 





14 


We think that the reasonable inference from all of the 
evidenee is that the Letter was properly addressed and mailed; and 
we do net think that the evidence shewa « contradietion of Klaus! 
testimeny in regard te the mailing of the letter. Kisue 414 not 
testify that he sar the letter mailed in the box at Adm and 48th 
streets, He teagtified that he eaw Batyets drep 1% in the mail box 
"en the next corner.” Furthermore, independently of Alaus' tastineny 
in regard to seeing the letter mailed, we think that when all of the 
ether evidence ix considerad, the inference is clear that the Letter 
was in faet mailed, The evidence beth on behulf of the compladnent 
and the defendants shove that Batysta wae constantly talking about 
getting the complainant toe come to Chienge to live with him; that he 
told hie friends that Ke hed seked her ta come, but thet she weuld not 
do mo; that later he told bie friends that the was coming; that she 
414 eome, Clearly, Betyeta must bave dome something to induce her to 
ehange her wind, The only probable method by which Hatyeta sould 
communicate with her was by mail. Frank Pick, 2 witness ror tha dee 
fendants, testified that he saw Patyeta receive a letter and that 
Patyets opened 14 and sald, “Here is « Lotter from my girl; ohe is 
coming.* ‘The only probatle inferences from the receipt of thia Letter 
by tatysta are that the letter was in snawer to a letier she had ree 
eolved from BRatysta and that Batysta's Letter promising tc bequeath 
hie property to her had induced her te come, It 1s a fairy inforence, 
even frou the evidence on behals of the dafendante, that she éid not 
come with the expectation ef assisting lire. Hanus in jolmg the house- 
work, tincse the evideuce on beliaif of the defaudants shows that she 
left Eatysta's home because of « quarrel with Urs. Konus in regard to 
the housework. ‘The probuble reseon why the complainant changed her 
mind and osme, in our opinion may be found in the tvatimeny of Klaus 
and Merle Prahankebil that Batyeta told the complainent that he would 
bequeath her ell of his property if she came. 

We de not think that the strength of this coneiuesion 





e8s te tie sont. goarvelal othe A 
fe (MLA kee pares ol eam, xotend oe fod? a) aoaebive 
'mwogh “te madtelbawingo « wars somntiem met toate, auras son 9h 9 
fom G8 aged credited wat. Be ye gow te, Bt RURQRE at nna eos 
HOGh bar. abA te aod a8 KL Hotlow wedseL ot paw oat tens ei ae | 

tes bon nett ae re nenn ee te sonore _ 
gaan tant ‘ae Ete pein « * agree socom : 





















 Saiate antahtnt ettantenoe aa weayee® tec woe 4 Sate tuee te bm 2 me 
ea tmsly jake. se dw evil ee cancel ot ain oe taunt Se = oa ’ taki 





ooh ed? 40% menaite o ere nae thaw eo age rast hte otwo! ae a9 | 
aed ra KO IRL I YOON Mt Mer Mh OHAD MeETAIODD gaPembinwt 
es aati cries nikon: Maasunenetnn tye pies ha Me — 


“ten nib wae taalt vodeahattnod tile ‘bo Uluded ou ecanbive Sill be vam 
ss aiaelaeaRpsmginetng som aertentane 2 otsesonge one 








i6 


ig weakened by the evidenes whieh the defendants intredused te show 
thet there wae an eetrangenent between the complainant and totystea 
after the somplainant ¢ame te thin cowntry, and Wy the further evie 
denee introduced to show that at the time he wrete the Letter in | 
question Satyrte intended to bequeath his property to Kre, Honun. 
In our view, the evidence shows that there was no extrengement bee 
tween the complainant and Satysta, and there wae no intention on the 
part of Natysts at the tine that he orete the letter in aueation te 
the complainant te bequeath any of aie property to Ure. Hanus, 

Counse) for the detendant Bediy Soieks further eontonds 
that at tho time thet 14 ie alleged that Hatyeta wrote the Letter in 
qaestion te the complainant, Batyete "had little or ne fyunde;" that 
when he fied he had "“s considerable eatate;" and that on the awtherity 


of the eawe of Waliage 8, 103 211, B2b, tie changed ci rewn- 





etances betweer the time of making the alieged contract and the tine 
of hie death constitute sufficient growunde te defent tha right of the 
complainent toe have the alleged contract epecifierliy performed, 

Since we are oF the opinion that the evidence clearly 
ené eatisfactoerily shows that datysta cade the coitract, and since we 
further think that the eontract wae fair and equitable, 1+ is toma 
terial whether there was a material change of Batyeta's iinancial 
aondition after he made the contract. in the case of Aldrigh v, 
Aldrich, supra, in tieuseing s question simtlar to the one in the 
oare at ber, the court maid (p.%%): 

“Counse! for apeclieee claim it [the property in controe 
versy) was worth $100 an aere at the time ef the trial, while 
couse) fer epceliant insist that it was not worth that anount, 
but argue that even if it war worth that amount at the time of 
the trial 1% was worth much lees at the time the contract was 
entered ints, and that this court has held that if o contract 
wae fair and table when it wae made it could not become une 
fair and i table by clroumetances which might afterwards 
arice,* 

¥urtherwre, the evidence in the case at bar is not 


Glear as to Batyeta's finencial worth when he wade the contract. Ve 






d . Bi 
: Bae, 
yeaa 
ot iyi 


: wae ‘ef , os i" a ' 
git ale Hel ee a Se Vee Pee ea 


Rae 
‘ 


wee 63 beoulorta? sseuseeiricet wae 













athe Sanaa nace oe nae sol : | 
“as ei avec ‘on sad wear fae . ste bag 








| asia ‘ya tke 
west wei v iiaade i ies led ig ts . 


err wae aw aed paw” “N Galledih Yel : 
2 a! ei pa ate ee “eer eu ee ‘i enn a es ia 
adi igi ot textos ar ehaos, contortion bait etteo 








ow Weil one /Pumrenes ‘ae tees s ‘alls ini gnitt ee nob 
et AE UE gehenvines ba» eb ew icine yt tattle 


Digidave whek ve ‘Meee 





a6 


think that at that time on « fair interpretation af the ewidence 
it may be soi4 that he had substantial meons fer a men of hin 

etation im Life; am4 that the change im bie finencial sondition was 
net of euch propertions ae te defeat the complainant's right te 
specific performance, In the case of Yalisee v. hangleye, supr: 





cited by counsel for the defendant Yaily Spieka, the value of the 
property at the time the contract waa made was $12,000 and at the 
time qf death about $360,000. the court said in that ease that 
the alleged contract was set satiefacterizy proved by the evidoues, 
and that the conelderntion for the contract vas inadequete. 

Vewnsel fer the dovandeaut Saliy Gpieka further eene 
tend@ that the chamneslier erred in erdering that the expenses and 
soliciters’ fees of the guardion ad Litem should be taxed in the 
bii2 of coste, Cowneoi waintuine that the chaneelier should have 
@irected thet the expenees and solicttera’ fees eheuld be paid out 
of the estate of Satyeta. 

Ceunesi fer the complainant contend thet under the 
equitable juriediation of the ahanvelier, the question was one for 
the exereiee of wie disereiion end thot he he» not abused his dite 
eoretion, 

Helther counge) for the defoudant Selly Soieka, nor 
counsel) for the cemplainent has argued the quastion fully ner cited 
ony sutheritier on the question, im this eitumtion we think thet 
we are Justified im holding tuat the question has been waived. 
Boarding v.. The Peonke, 202 Lil. 12%, 124. 

Yor the xensons stated the deerse ie affirmed. 

APF LRWED, 
NeSurely, P. J., ond Katohett, J., concur. 


















sommdive oft ye aettatearetal 1% « me ants dase tm Sth ie 


wat Vo wae m tee nanos Tatvandoded tak at Beate en ts is te : 








et te be Miedema te 
bat eee fons ah ae Pane oa? 1 WOE 
ssornbiwe ofa Xi Sevens, Gi nndew'tnksne seve ssibanisin 
: wiappehiak saw teastags oy te) neh tenable 
boon cost’ sito Legs RiLaN Setehap teh git ora, ts lll 
ee 
oats of haxnd of Admode mnags bo. 
tek Reale RB Ldweathe gat “a 
: ileal Leone at 

















PL MMR a a eat” Rw 





36 + 30840 


MINA KAPLAR, 
Defendant in urror, 
BRRGK £6 CIRGUTY GOURT oF 


COOK COUNTY, 


ve. 


JGRUPH RAPLAR, 
Plaintit?’ in Brror, 6} ide 
Fel i Sy i 1 i o> wed 


Aelhe Kes oD 


EDD 
) 


BR, TUSTICE JOHNGTGN OMLIVERSD THY OPIRION OF THE couRT, 


Thien is a writ of errer prosecuted by Joseph Kaplan, 
the defendant, to review a deeree in fauver of Kins Kaplen, the 
eomplainent in « sult fer separate maintenance, 

The defendant agke for a ravereal af the decree on 
two grounds; iret, that the chanesllor committed reversible 
error in allewing the original bill of complaint to be amended te 
ehov that the defeniant was a reeident ef Geok county, Dilineis; 
apd second, that there is no cortifieate of evidence, und the deo 
eres does net reoite the facts. 

The asendeent in question wae sliewed and wae aade 
before the entry of the Pinel deeree. In tile state of the record 
the asieudnent wae properly allewed by the court. It te unnecessary 
to diveurs this question, se the preciee quoetion has been decided 
adversely te the contention of couneel for the defendant by this 
court in twe very recent oases in carefully considered opinions 
written by Mr, Justice Hatchett. Piotnitaky v. PMiotniteky, ?42 112. 
App. 166, 168; Bellewgn vy. Nellesen, 239 111. App. 622. 


in regatd to the question whether a certificate of the 
evidence was neesssary, we are of the opinion that a certifleate ef 
evidence was not necessary, os the decree contains findings of fact 
which are suffichant. ‘Yae findings of fect in the decree which we 


consider sufficient are as fellews! 












= nena. a: 7 


= ey ; A th Pes 
ESO aed: 7 


aga fiction: ot 2 tagetese Sh te | 
johoni ist .yrawen does te saonsenn & aa, oe recy 

et en dew yawns 28 wtaog iowa Ho OOM equ ga a, 
‘ale enw Rae penne nae onan: a tenetinsn in honda, ae 


menet 902 to ndate Bint of weetowh feats eat Ye cutae wld 
erneeeiae ot #8 .oeeee eco yt hewelte. yheews 


shincihinge ‘Aicvidbn ones gene nt nen a0 
csiltttamemegunapmpecegel 
a ee eee ae ee 


si a etn inhibin Silane anata edd Mt Wega | 
“Ne eiaalhiome @ ivased Rate Mosh Oi ce aA, 





“and the eourt doth further find that the parties here 
were lawfully joined in marriage en or about the firet day of 
June, 1903, at Foland, Russia, ond that as a result of sada 
marriage there were born two children, Leon, now abowt sixteen 
years of age, ond Hyuan, now about thirteen youre of age, beth 
living ond who have bem and are now under the gare, custody 
and contrel of the complaint; 

"and the ecurt does further find that eubsequent to their 
intermarri on or wbowt the 16th day of April, 1921, the 
defendant, Joseph Kaplan, wilifsliy deserted wid abeented him 
self from the complainant witheut reasonable caues for the 
gsonae ef over two yearn immetisiealy prier te the filiag of the 
bili in this cause ond that the sald cemplainent, Mina Keplen, 
hae been ond ie now Living separate aid avort from the said 
defendant, Jereph Kaplan, withont favit on her part ae charged 
in the complainant's amended bi11 of complaint. 

"and the court does further find that the said defendant, 
Joveph Kaplan, 4i¢ om April, 1971, wilfully abandon, desert and 
abaent Kiseehf frem the complainant at Akron, Ohio, where the 
complainant and the 4efendent were living ae hueband ond wife; 
ona thet the said defendsnt, Joaesuh Eeplan, at onid time came 
te Chieage, Cook “ounty, Tliineis, ani that gince that time 
he hae been living in the said City ef Shicags, where he has 
been engaged in business, and has been alnoe the filing of the 
amended bili ef complaint aid vas upon the Gate of the hearing, 
a resident of Chicago, Cock County, Tiinele; 

“and the court doom further find that the eaid Joseph 
Koplen is well able to eappert and maintain tae complainant, 
ina Kaplan, and ner sald ehtidren; 

"and the eourt does further find teat there is new past 
due ond owing te the complcinant, Mine Maplan, from the dee 
fendent waéer an order of sceurt heretofore entered for temporary 
ahimeny, the eum of $65.00 ond the further eum of 936,00 Tor 
temporary seliciters'’ fees.* 


For the reasenea stated the deores of the chancellor is 
affirmed, 
A¥? TARED, 


Moturely, P. J., and Ustehett, 7., soneur. 









etesed wotdzey ont sacs aCe weeheet me 
Ye vad doult sa? tyede io ay age bene os 
ee oso ae tact . einai itm 


prnie eek oe ae 
‘ths: ee ee taki cay beivaad a | 

















coe ae mer Fees bats ateteg ° sohtead eat 





tesa ot siencotet a * “ts 


oe eit f: mie A Sy : i . yh aN A ete Ke oe SR ae a zh if 


ym 


ih 4 icf 5 # Su Vee ha Me Oar cent he iy th 
BM viel HOR Aint Pee ee any agi cores noe RE SRM CA Me AA BA 


m y a * By We, 4 








4 by ae i all a! ce bs Os) whe He 
SM ay Mea a ee Vices Snag a ey 

ab ie soca ci ee a i a Renae Boa 8 Pas ae WOR CBE NRG ke 
Wie Ga Macks ae eM a) t At: fen Seeopeoaen A 


ORE a eal ae VN RR Be Bek baouananeee hg baad poet hte at ee 





228 - 31047 


JACOB J, MENUELGONN, PHILIP 
BEN DELSORN WEYER 
Complainants, 
ve APPSAL PROM CLINCUIT Home 


) 

: o¥ GooK couNTY, 
MORRIS GOLD and KICHOLAS J. ccs: 
PRE | 

) 


‘ Defendants, 


BiCHGLAS J, PRITZEUR 
Appellant. 


2441.4. Gos! 
= eee ae PE OK GD 


9 ie 


BR, JUSTICE JGHRSTGH DELIVERS THA OPINIOR OF THR COURT, 


Thin ie an appeml by Bichelee 7, Pritsker, one of the 
defendants, from a dearee in faver of Jacob J, Mendelsohn, Pailip 
Merndelsemm and Keyer Selemen, the oseplainantea, in a suit in 
equity brought by the complainante sgainst Priteker and Kerrie 
Geld. 

fhe suit was brought te enjoin the forseloaure of a 
chattel mortgage given Wy the cemplainente te Gold for the pure 
pose of securing the payment of 36 promissory notes of the come 
plainantes payable to Gold, agersgeting $20,500, the mortgage and 
notes huving been delivered, a6 the complainants allege, in @s- 
erew to Pritzker; further te enjoin the assignwent or the trann- 
fer of the notes and morteage; further te compel the surrender 
ef the notes for cancellation; end further for an sceounting. 

The decree of the chancellor adjudged that the chattel 
mortgage ani the notes are void as againet the com@elatinante, and 
erdere’ the defendants to deliver those instruments to the come 
Slaimente; the deeree further adjudged that Pritaker ia inderted 
to the complainants in the oum of $6534.57, ont ordered Pritaker 
to pay that amount te the complainants; the deeree further found 
that Geld is indebted to the complainants in the eum of $1000 
which was paid by the gomplainants to a broker on behalf of weld, 





2 east somos out o> sbeuertgeh ered vate 


iors yt { 







‘ ast apse Sa {0420 Sane. a woten ea: 
? dotted ion. oe cong seine, oat, bg > eran oud era 











and ordered told te pay thet sarunt toe the complainants; that decree 
further adjudged that the bill of sale wae void and ordered it 
cancelled; the deeree further ordered Pritaker and Gold to psy the 
gents and expenses of the sult, smowiting to 5720.00, omesholf te 


be paid by Pritaker and oneehnlf ty Gold. 
An outline ef the uncieputed evidence Le as fellows: 


Gol@ and hie wife were the owmmerse of 211 of the steok im a corporne 
tion by the newe of the Somerset Neto) Pharmacy, with the exeeption 
of one share of stock whieh wae held by A, B. Pritaker, a som of the 
defendant Pritsker. The pharmauay was located in the building of 
the Somerset hotel wider a lease from the imershem Geotel Building 
Company, the owner of the Gomerset Uptel. in the lease the drug 
estore was referred to as “the eorner store in the Senexest Ketel." 
Negotiations were begun between the campicinonts and Geld and his 
wife for the purchase of the drug atore by the compleinantes. The 
fivet meeting was hela at the drug store May 11, 1923. There were 
present the complainants, the defendant Geld, the broker in the 


transaction samed John Arone, Berman K, Kendelsoln, brether of the 
Cemplainsxte Juesb 7, ont "hilic MendeAschn, ang sise their ettor- 


ney, A written agreement was antcred inte for the purchase of the 
4rug etere an4 the lease fer the sum of $70,550, Om the aligning 

ef the sereement the compiainante paid 91590 as o fepealt to Krone, 
$1200 of which was to be retcined by Krone aa his soul sion. 

After the mesting at the drug store all o7 the parties on the same 
day went to tae Govenunt Club wid there met the defendant Prituker 
and Peter Siseman, an attorney representing the complainant Solesenm, 
From the Covenent Club sl of the parties en the sane day went te 
the office of Herman &. Hendeleohn. ‘the agreement was eubmitted te 
Pritzker and Giseam:, Pritzker stated that a modification would have 
te be msde; that Gold had $8000 on deposit with the lesser of his 
lease as a guarantee for the performance of the lease wd that the 


p gadionany hina Khos wn is ne te oor vet 
ast goa vt pied heee sasoasiaa bruwnte 8 0 


sateen pote aid bw pid erat teysncoe oe ca oann ont 
7 Ss cane are ee 





$2000 should be adfed te the purchase price ond showld be paid as 
the ensh pareent, Thin war agree’ te by all the parties, I¢ 
was further agreet that arrangemente rowld have te be wede to com 
ply with the Bulk Sales Law, All of the parties wet agein on the 
evening of the anes day at the drug store. At thie meeting 
Pritzker atate’d that he bad been Im consultation with Hrs, Gold, 
that she ebjeecte4 to the gale, and that as fur ae he was soncerne 
ea the deal was eff woless her concent was obtained. The next 
meeting, at which all the parties were present, was beld Kay 
14th at Pritazker's office, Gold stated that his wife had agreed 
te the sale at the purchase orice of $25,060 with a cash payment 
ef $8,000, At this seeting the plan of traneferring to the come 
Sleinsnts the stock ef the Somereet Hotei Pharmney wae discussed 
and the neceseary corsorate minutes and other papers were pre- 
pared, 

On May 25th sil tne parties exeapt Geld, whe was 111, 
met at Priteker'’s effies, At thin seating it was decided te abane 
fon the plan of transferring the stoek of the Somerset Xetel Phare 
macy te the eemplainante ani te make the sale ae an individual 
exle snd mot a corporate mule, The papers were changed accordingly. 
Aleo at this meeting Pritesker wrete em the buok of the lease the 
form of the agviguuent of the lease by Geld to the complaints, 
and aleo the form of the acceptance of the aevignuent by the come 
Ploinanta. 

On the night ef Hay 15th Pritzker took the lease with 
him te Gol¢'s home and had Gold execute the sasignment of the lease 
te the complatcunts, That night Gold wae taken to a hospital ehere 
he rewained wetil June Md, 

fm May 16th there vas a meeting at Pritsker's office, 
at which Pritsker, the complainants Mra, Geld, Siaonan and Herne 
W, Mendeloohn were preeect, The complainant Jacob J, vendelsohn 





wae not present at the first part of the conference, but arrived 
before the conference closed. Krone and Gold were not present, 
At this meeting it was eyreed that Pritzker should hold the notes 
and chattel mortinge, eleo the cash payment ef $6500 to be made by 
the comelaiaants and alme $566 te be pald to Pritsker ty Krone 
of the $1500 previcumty deresited with Krone by the eompisatnente; 
end the neoter, mertonge and the 6560 thereupon were delivered te 
Priteker, ©n the next day Krone jelivered to Pritsker the $560. 
At the meeting of May 16th Priteker prepares? the following re- 
seint: 

Reeeived ef Failig innhan sae nat  eeee Soiomen, snd 
eS a eiat aswantits Ukcck me tet katie 
Muntases Motel Vusswasy have been unde.” It is undeostesd 
that I may use cash or notes as tie case may require in pay- 
ment of wadd obligations frau the amount so deposited with me," 

Although: the reoeipt suews the sum of $3438,10, 
Pritsker in feet received only $7000 ooeh. Ineladed in the amount 
of $6434.10 was the $2060 remaining in Krone's bonds and §435,10 
for which the complainents were to be eredited in connection with 
the sdjustuent of rents, electric Light bills and water bills, 

It wae agreed at the mecting on May 16th thet Pritsker 
eould use the money in hie Hends to pay the erediters of the drug 
store in compliance with the Bulk Seles Law. Pritsker lumediately 
began to pay the erediters with the soney, Among the payments 
Pritzker made te erediters vas a payment uade to himeelf on May 
16th of $5119.61, which anvunt Gold oved to Pritsker on a note of 
Gold fer $5000 with interest, «siek Pritzker bad endorsed and which 
wae secured by 4 chattel sorignags on the Chateau Pharagacy, another 
drug stere owned by Gold. The note was held by the Home Hank & 
Trust Company, which on Hay 14th had charged Pritsker's account 
with the note, 

on Hay 17th or Leth Pritsker sent the bill of male 












 firaena duel papmen taps: «Kt To deg uty at te 
ineawuy Fon anew hie} 2am oMeTh sheonde ese 

acto aa Atel Playas wedar eek sea iltnaaiaenaiii 

i annie ne ae a ees 


forse epugalsghicine wis 
“dearvin etd at toboson’ pepom hosing: 
DEON baw ahten von ab by 


ea NeW 7 


tte pesca ca sap ee ca ot news hi mine 


and the loawe to Giseuen, who im turn sent them to Herman K, Bendel 
somn, Gold's ageigueamt of the lease te the complaisent wag on the 
Leage, but the lease comta'ned tie gesiguaent to the eemplainants 
by the leweor, the Thorcham Motel Buliding Corperation, 

Philip Yendelsebn had taken over the eanagunent of 
the drug etore about Yay ifth, He resalned as manager wmtil about 
Fume Srd. It wee ogreed om the hearing of the cause that Frank 
Seward, vhe had been the manager of the drug store for Geld, would 
testity if he were press that om or shout Any 1éth Philip Bendele 
goha asked him if he would work for him “half time;* that Seward 
agreed to do 9¢ a4 sentinged to werk for Pailio Bendelsomm until 
@ euetotian towk charge of the drug store under the chattel morte 
esge. “a MayZlat or ®?ad federal prohibition officers seized 
some iatexicoeting Idauer that waa in the drug atore, This affair 
is referred te ae @ “reid,* 

on Bey 24th all of the wartiesn exeent told, whe was 
still sick in ao heepite], weet ot Pritsker's offier, Priteker 
stated that the atiterreye for the Shoreham Hetel Building Corpora. 
tion were “dinguieted shout the rata” and that the hetel company 
Was going to terminate the lease, It war agreed at this meeting 
that the complainants shewid pay the June rent for the drug stere 
amounting te $6°%. The complainants gave a check for that amount 
but the check wae mot paid, as the couplainsnts’ account at the 
bank on whten the oieok waa dram was closed by the complainants. 

On Jume 3r4 or 4th some one representing Gold took 
possession of the drug store under the chattel mortgage which had 
been given to Geld by the compininanta, 

On dune Oth the ¢rug store wae sold under the chattel 
mortgage. The sale wae contucted by Pritzker's sen, A, 5. Pritze 
ker, The trug atore waa bid im by A. . Pritzker on behalf ef Gold 


for Fl4, 504, 





The principal questions ef fact in dispute are (1) 
whether Pritaker er Gold agreed to obtain the consent of the 
lesser, the Shoreham Neotel Building Corporation, to the assign- 
ment of the Lense by Gold to the complainente; (2) whether it 
was agree? that the aale of the drug store was to be a conditional 
@ele d4evending upon the obtaining of the conrant of the Sherehan 
Hotel Building Corporation to the assignment ef the Lease; (3) 
whether the goney, totes ond chattel mortgage were delivered in 
enerov to Pritsker ta be held by Sim wntii the sale was consume 
mated; (4) whether Phikip Kendelechn tock over the management of 
the store under « conswimated sale or merely pending the consummae 
tion ef a sale; (5) whether the "raid" of the federal prohibition 
agente wae made because of the violation of the prohibition laws 
while Gold was in poseension of the drug store or because of the 
vielation of the prohibition laws whila Philip Mendelechn ras 
Heatiaging the drug store. 

. fo state and diseuss the avidence in detail relating 
te the diaputed issues of fact weuld unduly extend this epinion. 
It te eurficient to say that the evidenes is direetly eonflicting 
om all of these teeues and cannet be harmonized; that if the evie 
dence on benal’ of the complainants te saceepted as true, the sale 
Was a conditional ene, descending upen the obtaining by Pritzker 
er Gold of the consent to the lease of the Shoreham Hetel Building 
Corporation, and the money, notes and chattel mortgage were de- 
livered te ?riteker on condition that Pritsker weul¢ held them | 
wntil the sale was consummated, previded that Pritsker might use 
the money to pay debte of the drug store in order to comply with 
the Bulk Gales law; that Pnilip Mendelechn took ever the manage 
ment of the drug store fer the convenience of ali the parties, 
pending the consummation ef the sale; that the raid by the federal 
prehitition agents wae brought about beesuse of the sale of ine 















sui ee neern vant te — 2a os oak 


madlorpett ekt Te Paswebe xeg 0 peantiiene ou? agey gah 
(8) sonnet sue to dnnsiigtone vas of MODE UNE TET J “fat 

ee ee ee 
evens Re ete ont Thies wht ea Pol ed ae weweeras oF ” oer 
te: Fireseaipaeninis aly selva Hee? aaanaanes abt sent nw oy : sd 





abe Nektar Setaeet Mt Te “tay wate “gedtvedt= GF) qatbe ae ‘e be ; 
amet wetP LI’ edt Xe te iene ity” Te onbaeel hai | ate! vs 
ony Xe waimeed te wate nsaiast shy %% Soong Ab a tte ° ae 


“tings tar Sh <NNBNE a a we! ite ou ot 
| gabty ketene YEewThh at sols ive eat tees yun olf ‘tote Reve ea 
ee fanie U Senimas an woisne t awastt Ye Ike 

bashed 80H ea eCyHOON 82 wInCUts igkOD ent Re "Riaaye a9 da 
| RY geagedead srmegniee sat eben tie Lened omanienede ‘eit 


| 3 










oe pi ‘dain en teRe oad 8 
i ie foe ils a sa ta wo oe sna catal 






toxicating liquors by Geld while he was still in csarge ef the 
¢rug store. 

On the other hand, if the evidenge en behalf ef the 
defendants ie scecented as trac, the sale was net a conditienal sale 
but a consummated wale; that there eae bo agreement that the come 
gent of the Shoreham Hotel Building Corveration to the santgnment 
eof the lease by Gold would be obtained for the complainante, either 
vy Priteker er by Geld; that there wae Ke aygrounuit thet Mriteker 
would hold the money, notes and chattel mortgage until the sale was 
coneumunted, but that om the contrary they were delivered te Prits- 
ker unconditionally; that Philip cerdelechn took ever the manage~ 
ment of the Grug etore far the complainants ae the rorvit of « 
consummated gale of the drug store tc the compicinante; that the 
raid wae due to the sale of intexieating Liquere by Paiiip Mendele 
seohn while he wae munaging the drug stere. 

¥e are gonfrented with the neoeseity of determining as 
an original question which vereies ef the evidenes we shall aceept 
as correct, nines in a chancery ereceeding, secording te the case 
ef Cheehik vy. Koleteky, 311 111, 454, 454, the master’s repert, 
while uring facie correet,is of an advisery natura only, and “all 
the facts are open, lor consideration, in the firet inetanee, of 
the trial sourt, afd in caas of ati appeal. by the reviewing court. *® 

The principal testiseny on besalf of the complainants 
consisted of the te¢ctimeny of the three complainants thesselvesa, 
and the testinony of Sigeman, Zrone and Herman &. Mendeleohn. The 
chief witneewciay the defendants were the two defendants Pritaker 
ana Geld. ‘There wae wlso documentary evidence introduced on bee 
half of the defmudante, 

After a careful consideration ef all of the evidence 
we hava decided to accupt the testimony of the complainants as the 
Gorrest version of the tranauction, netwitistonding the feet that 














okey canine Hiotne de he: ae Rap td ene in chagaeaet 
eee: needs gas Sate cape aaa peri ichbaaen bot 





Seiten wens 
ies wt tare 00. Pannen aE hegavabt ke 


wie aia que | eR HE os 
fimo webs We eames. Qui seoteormh We ahi wat wt a 

: : iy “ie Riehl Low i ili ie Se Pe penne os cemadenlieale i 
“wo aittinnonedes "to Yeteennnn wilt cele Kndhonttend dial % 
Dh shtal Eihaioe ow tho neh bee msi ty ne heeviow Reh 
dial ot yaticbown. ,maainwonsy scremtnge a ah % 
cinebase nies ane ae ee eg oe, 











there are clrownmetances in the testimony of Pritzker ont aleo docu. 
mentary evidence om behalf of the defencants which tend to support 
the defendants! theory of the case, Tas only ¢riterton that may 
be used in determining the credibility of legal testimony ia that 
of probsbilities. <Ané on probabilities we ore constrained te hold 
that it ie highly improbable that the complainants would have ob- 
ligated themselves by a written sagreesent te purchase the drug 
etore for $24,860, ond te pay $9,000 ef that amount in cash unless 
they had been positively ageured by sither fol¢ or Priteker that 
the Gherehaw Hotel Building Corseration would consent te the ase 
signment ef the leawe to the coxmoelainuite by Geld, The somplalne 
antes were net buying merely the steck of gooda and the fixtures of 
the drug store; they were buying the good will ef the business as 
well. Thie in shown by the coroorate minutes that were prepared 
by Pritsker, in which it was expresely reeited trat the good wil 
was part of the seset« ta be purchased. the chief value of the 
good will depended woon the locality of the drug store. The faet 
that the drug store wae iecated in the building er the Somerset 
Hotel wndeoubtedly enhanced the value of the business. The eoue 
Plainants manifestly expected to conduct the business in the 
building of the Somerset Hetel, where the businesa wae located. 
The lease clearly wan the principal agset of the purchase, In 
the cirewistences the conelueion ia irrevintible that the ecomplain- 
ants contracted for the purchase of the drug store only on eonfti- 
tion that they could seoure a valid lease to the promises, 

| Yt is net dented by the defendant Pritsker that the 
lease was on important aseat, but he contends that the complainente 
themselves undertook exclusively to secure the consent of the leas- 
or, the Shoreham Bote) Building Cerseration, to the assignment of 
the lease. Such » contention is opposed to probabilities. It 
seene unreasonable to suppess that the compleinents actually would 


eee ee a: a be woman out we in | 


aie 





pay $9000 in eagh, would ogres te pay 826,500 move, and would da~ 
pend upon their own effertx exclusively te obtain sensent ef the 
Boreham Mote) Building Corveration te the agelormont of the Lease; 
iu other words, that they would actually buy the Ascug stere and 
take a chance on getting the consent of the Ghorehan Zetel Butiding 
Goervoration to the lenge, It way be that Paellip and Berman Kendele 
sehn apoke to Jertener, the eceretary ef the tiherehaa Hete}), Builde 
ing Corperation, in reYereaae to securing the consent of that come 
pany to the aasignment of the Lease; but the probabilities are 
that the Bendelwohns (14 this gratuitiously, mot as part of the 
agreement. fhe testixeny on belay of the complainants is that 
Biemnan said he would not be watiefied with Gertener's consent or 
signature te the ageigusent; that Sieaman iovieted that the cone 
gens and the ¢igneture to the aaeignnent of Growen, the preaidant 
ef the Shereham Hotel Building Cerreration, showl4 be secured by 
the defendente, Thies teatimeny geen highly probable, wad accords 
with Sisamen'’s tostinony that Ke stated to Pritaker that the lease 
wan the pringigal seset, Pritaker, hevever, tertified that at the 
firat meeting he stated that since the leave to Gold Srom the 
Shoreham Neotel Building Cerporation provided that the Lease could 
be acelgned te « corporation by tue mane of the Somereet Neotel 
Phermncy, ant since Gold had changed the mane of the original cere 
poration te the name of the Somerset Hotel Pharmacy to comply with 
the lease, the consent of tha Ghoreiem Hotel Building Corporation 
Would not be necessary if, instead of purcansing the drug store 
from Gold ws on individual traneaction, the complainants would 
"take over" the Somerset Hotel Pharusey Corveration mid have Gold 
ageign the lense to that corporation.  Bven Af Pritsker's construc 
tion of the lease us state? in his testimeny were correct, re 46 
not think that bis testimeny weakens the probable inference that 
either he or Geld agreed to secure the consent of the Shoreham 


Hotel Building Corseration te the amsigument of the lease, The 


te en oemantae mdse 5 berrataee, ot é jon at 
rene 38 Sete rote dnnt ii Seth. hema me 


pooner ia aii mm 





16 


only safe course for the complainants to have pursued would haye been 
to inelet as a condition precedent to the conaummation of the sale 
that Pritzker or Gold should obtain the agtual consent ef the Shere. 
ham Hotel Building Gerperation tc the asevignment, wid not te depend 
upon Ffritzker's legel opinion that the consent of the Shoreham Hotel 
Building Corporation to the ansignment wae umecessary if the com 
Plain wte would “take over" the domerset Hotel Pharmacy Goxperetien. 
Counsel for the defendant Pritsker argues thet the 
undisputed evidence shows that the failure to get the consent te 
the assignment of the lease wae due solely to the raid by the 
federal prohibition agente; that the raid was meade because of the 
violation of the prohibition laws, oot by Gold, but by Philip 
Mendeleohn, and thet therefore the complainants consistently can 
not maintain that the fatlure te get the consent of the Shorehan 
Boetel Building Gorporation to the sesigoment of the lease was due 
to the fault ef Priteker or Gold. Ye ie not think that the evie 
dence shows that the ratld was made because of the gale of intexi- 
eating liquors by Philip Mendelseebn. As we view the evidence the 
probable inferenve ie that the raid was brought about by the viola 
tiens of the prohibition lowe while Gold was in the possension of 
the drug stcre aud net while Philip HMendelechn wae managing the 
drug store. *urthermore, even if the failure te get the consent 
of the Shoreham Hotel Buliding Corporntion te the assignment of the 
lease was due solely to the raid by the federal prebibition agents, — 
and even if the raid was caused by violatien of the prohibition laws 
by Philip Mendeleehn, and not by Gold, the defendants consistently 
gannot argue that the efforts of Gold and Pritzker to get the consent 
of the Ghereham Yotel Building Corperation te the assignment of tae 
lease were frustrated by the raid, since Gold ond Pritaker have taken 
the positive position that they 4i¢ net agree to seeure the | 
eonsent of the Ghorehem Hotel Building Ceorseration to the assign- 
ment of the lease, If, ac the defendant Pritsker contends, the 
complainants theneelves agreed to get the consent of the Shoreham 
Hotel Building Corporation to the assignment ef the lease snd 


failed, it is wholly irrelevant why the complainants failed. 
















afeo eit to wok Rsmepeaseo ax? at bhai ‘itn’ & ‘$ fet ‘ jae 8 
were alt “te teens Leutes ony wineda sLarede ake xe puisy 
 Seegeh aF 20a fee ,taomeylons one et awaeortoes ed. poids cu ost ai 
feted medoted: ot ta sarknoe aad uth aotalae ingest este et 
akoy add Th Coninsnenay ane Smmame Vdd OF KoktererTO Babe 
Makiwrseto® yaswEedt Iofed genteel a “Tere wolat® iver atte 
OH? scald epayth waked tet dnebaoteh ade yok tence See 
gt tnemans wh fey od ovntie’s edt tad weet combive. dosages a 
| ait wt Lit oot 9¢ Woden wb gal wasn d oa Yo Cummmphane elt 
ett hy senaned nes BAK wie eae Jot hinge nelly tikaoty he ct ot 
GbLiEt yt ted bLOdws Foe jownd melee Mem ad he eokteteny 
fea Eftunte bends etansiniques ede ata tenad? tad han mbontehegt — 
mane tes Cx? Le SiteaRer ed? Teg oF omihel oft dod st tisteitem - Pon 
oh tow wasnt od Yo trnmntone odd et in traseqeed ‘puibitot shen 
atwe woe sadd tarde fom ab of ited to codetiet te eine at ot 


ntcetet Xe ofed acl Te command abet ane Blew oct Catt mete ooaeb 
oy sonphive wat ede ay me. sagan BEAN wf ave tae 
nedply edt yd. droda tquand anv dint sat tact ot commne tal | i a 
Ye aa tenonn sy pad mh eae Died SLIMW deed aol thd idety oat rt whet 
ederintapbandaines scence hnagelamnientstasileslag inl: 
teosnap eff toy 4 vtudiet 87 2h asve patentee Shee gat 
ad? 4 Seemaytaes ody of asltexerral gabbsin® fosell andpreds ott te 
é vetman aeons pwvoniees ont ington ant, Cul vor, uel — a 













el eo! na jae Ae elie’ eae ortt 1 ef ttn vi ‘ie 
git xeon 99 ones rom SRK yet tndd wade? kev ett 

ncpiat Of) 68 mabtarneiag publ itl Kote aatorads ests tw monn 
est jebindnon eadee tert Sand Lap ae shane wit te tan i 

< let oe ba tonesen, ae. + ek: 4, boone. fortunate ctu 








a2 


In ether words, if the compleinants agreed te get the consent of 
the Shoreham Yotel Building Corporation to the ansignment, it is 
immaterial te the defendant friteker whether the Sherehem Kotel 
Building Corvoratiom put ite refusal to censent te the seatgmment 
of the lease on the grownd of the raid sr on any ether growid. 

Couneei for the defendant Pritwker contends that the 
BALL ef complaint dees not state « cause of aetion in equity, and 
im support ef hin contention relics on the ease of Vanatta vy, 
dAndiey, 198 211. 40, 48. Im that cause the complainants were 
seeking the cepcellation of a single promiasory note slleged te 
be fraudulent or forged, md aise seeking an injunction ageinet the 
entry of a Judgment om the mete, The court held that the facte 
in that case were not sufficient te Justify a resort te = court 
of squity; that the remeiy at lew ras adequate. 

The general rule i# toat in « proper onme, ehere the 
defense at Lavy ie inmudesuate to sromete the endo of Justice and 
afford complete relief, « ecurt ef equity vill require the sure 
render and ¢erecliation sf written inatrunents, Blusk vy. Miller, 
173 Tl1, 489, 49%. 

ta the ease ot bar there are 34 promissory notes ond 
@ chattel mortaege, If the notes suould be transferred er aola 
by the defendants to different parties, « multiplielty of actions 
Bight be brought om the motes by the various owner sgainet the 
complainants. Vurtheruere, the faste alleged in the bili ehew 
that there ie no sonsideretion for the notes; that the contract 
wae not consuemated ond that the netes atid the chattel mortgage 
are vold; and the facta alleged im the Dill aise show that it 
Would be inequitable in the circumstanees for the defendants te 
Olsnim ownership of the netow ond chattel mortgage. Voereover, 
the bill prays for an accounting from Pritsker ae te the dis- 
dursemente that he made of the $7900 delivered to him, omd sles 





teats BES 


Se eins 
te dee mes ent toy a? Snertge gtdentde Dging att FE 1 gemvee ante a 
a et pinay tite ‘el? ” notiwtogta) wath tint tere! nite ve ite | 
oosit gsi nat ae rwltaste sadn? ta% ‘fast eater a ‘ole wadamak 

mosesytana sii of tuonupe 6 dame ik ee fiat danas re) ARR ta 
ee ee ee ms rag ; oy 
oat tos? chunsees wkad Let duahas'Des sale 0% sears 
| sali nstaiddeoel we bhee: ad neces wlemneninstiousnt a 
A she rte 4 alin bead bad hostel neh dé 















= i. aT as Tt Pe ee 
Se age ats an eae da al pele ce es. iy a ae 
Se A Se pair ge a SE Oe Te MT me Cy one ’ 











to oes ncn wane 8 ab Pa * tt oe i 


mann eons shat a ial tale tase 42 
anid wliunpedeunintnmenmnansaina: oat wi 





a2 


fer an ateowsting on the part of the complainonte for the moneye 
reovived by them while Philip Mendelechn managed the drug store, 

We are of the opinion that the allegations of the 
bill of complaint stats a caver of action in equity. The epeotfie 
grountea for aquitable relief, a shown by the bill of complaint 
ape (1) the right of the soumhainonte te have the notes and | 
ghattel mortgage caneelled; ond (%) the right of the complainante 
to have am acesunting from Priteker of the money that waa delivered 
to him in trust. 

Tae eameellation of instruments t» classed in the axe 
giusive Jurisdiction of equity. & Gyclepedia of Law and Procedure, 
p. 286. Ye recognise the rule thet squliy will net exereise this 
power wlece substantial equitable reasons are ssowm. 6 Cyclopedia 
ef Lew ond Procedure, p. 286. In the case ot bar in our opinion 
the substantial equitable reseons alleged wy the bill of complaint 
are (1) that the 36 netos on’ the shattel mortgage ore void be 
gaune the contract between the serties was never consummated; (2) 
thet the complainants may be gubjected te 2 multiplicity ef suite 
en the notes; (4) that there ie ne consideration for the notes and 
mhattel mortgage; (4) that the notes end chattel mortgage having 
bean delivered to Friteker in eserew, Pritzker holds them in trust 
for the cowelainante; (4) that the compleinanta cannot obtain 
adequate relief at Law, 

Agvording to the authorities the reacens ve have 
atated constitute equitable reasons in the oirewstances fustifying 
the interposition of a court ef equity te cancel the notes and the 
chattel mortgnge. 4 Ruling Case Law, section 5, p. 490; section 
Ll, p. 499; © Gersus Juria, section 70, p. 1196; 6 Cyclopedia of 
Law and Prosedure, p/ 289; Bouse vy. Bolan, 147 Pac. (Arizona) 

736, 737. 
We further are of the opinion that the bill of come 





13 


plaint shows os an independent ground of equity that the complain. 
ants ate entitled to an accounting from Pritsker as trustee of 
the money delivered to him, The People v.Bordeaux,242 Ill. 327,334, 

Counsel for the defendant Pritaker contends that the 
"bill is fatally devective in not tendering back the drug store, 
the bill of sale and the lease, as well aw Pritsker'n receipt and 
agreement to ast as everaw,* 

In auprert of this contention souneel cites the case 
of Huiller v. Ryan, 306 111. 96, 93. in that oase the wourt held 
on o dewurrer te the bill of complaint that the bill wae defaetive 
in net making a suffictent ten¢er of the consideration reeeived 
under a contract whieh the somplsinunte were sookiny te reseind. 
In the enwe at bar Af the objection im question had been urged on 
demurrer, the objection would have been well taken. Sut me de. 
murrer wan interposed by the defendents, in the present state of 
the record we think that the objection isa witheut merit. The evie 
dence shows that Geld is in pessenecion ef the drug etcre and that 
before he tock poseession the complainonts offered to give him 
possession, The bili of sale wae adjudged void by the decree, ond 
Was caneelied. The lease wae ordered by the deoren to be delivered 
to Geld upon demand by hin ox hic duly authorised agent or attor- 
ney. ‘The failure to tender Pritzker's receipt ia obviated by the 
provisions of the deeree requiring Pritsker to account for the 
money for which the receipt was given. in the clreumetances, 
therefore, it would be usreasonable to reverse the decree because 
the bill of complaint is defective in the respects complained of 
by counsel for defendant Pritaker. 

It is further contended by counsel for defendant 
Priteker that "the bill having been brought te enjoin the fore- 
closure of the chattel mortgage, thie was a re-affirmance of the 


purchase by the complainants of the drug store in question;* and 


anbasases cd Fast ware to bart, sranmeqebind ie ae 


aD 


ene. wwe ort senses wontindnes, asa te even stn 
tied ares are one dost wt .80 Bb tet a ! 5 
ovitaetos, oa AEd8 oot Sat tata lanes te 5AM, eat 
__ Brekepes seo Leeranh hanen pit, Te tehand ftp nhs a. grtt 
states ae met anew oat ‘as aii oo we é; . 


oa 


tof ey teatoe ta oon ae - 





14 


that "the cormpletnantes are now estopped from asserting the eons 
trary and claiming relief imeonsirtent therewith, * 

We are of the opinion that these contentions are withe 
out merit.  Simes the eerenee of the bill is that there was ne 
purehase of the drug store by the complainants because the sole 
Wae never conewosated, we de not think that yvessemably it ean be 
contended that the prayer of the bill for on injunction against the 
fereclocure of the chattel mertgegs implies a "re-affirmance of 
the purchase of the drug store by the complainants.” Furthermore, 
the deere 414 not grant the grayer for an injunction, The com- 
plainonts, therefore, have mot obtained any relief that is incon- 
sistent with the aliegations in the bill that the drug store waa 
net purchased by the souplainant«. 

The quaation of eeteunel ia not invelved, an 1t does 
net appear either fram the clandings er the evidenes that the da- 
fenidantes eufferet any injury by yeanm of the alleged incensieteney 
in the bili of compiaiat., If the sbjection in question had been 
urged on decurrer a 4. fferent question might be presented, 

Counesi for the defendant /rigsker contends as 
feliowa: “Sven if Pritsker had made asewrances to the complain- 
ants that the lesser of the drug stere weuld consent te the as- 
sigument of the lease to the compluinantea, this was merély a state- 
ment of am expectation, or the expression ef an opinion, or at most 
& promissory representation, aii the failure to realize it was not 
ground fer rescinding the sale of the drug store nor to oancel the 
chattel mortgage and notes,” 

We do not think that the evidence justifies this con- 
tention. In our opinion the preponderanee of the evidence shows 
that Priteker neresd to seoure the consent of the Shoreham Hetel 
Building Cerveration to the assignment of the lease an’ that the 
purchase of the drug store was not to be consummated unless 


ge 


eae a oe snow 0 ae dsoee + cabinuas ee 


tox aur ot wabiaes oi wishes ite | 
edad catdabueeioaial nate "twa 





15 


Priteker obtained such consent, 

Cowmises for the defendant Pritaker further makes the 
follewing conteition: “All the parol teetimeny that Prituker hea 
promised ta held the money, metas and mertgage on any conditions 
other than as stated by him in the writing by him eigned and de. 
livered te dompiatsenta © * wae incompetent under the parel avi-~ 
Aenee rule, and showkd be édavoqardet, even if 1¢ were net denied 
by Priteker ond others, * 

it is srened by counsel fer the defendant Sriteker 
that Priteker wus the agent only of Hold; that the rule is that the 
delivery of s dead or promissory note to an agent constitutes an 
abeolute delivery te the principal; taat an exerew can be dolive 
ered only to « stranger oer third person not a party te the con- 
treet; that the delivery of « deed or promissory note te the 
agent ox priceipa, entmot be treated as a delivery in eserew, but 
ie om absolute delivery; that whore the delivery Lo to the agent 
er principal the rule ia inflexible thet pare] testiseny is ine 
admigeivie te shew «4 eontexoorancous agreement to the effeet that 
the delivery of the deed or note ahowld be treated oe a delivery 
in eeerew, Couneel sites nuvercus avtheritiow to suspert his 
position, 

Granting, for the gake of arguaent, that counee) has 
stated correctly the rules of Law, these rules in our opinion are 
not applicable te the esae «t tar for the reaven that ln our ope 
inion the presendermece of the evidence shows that Pritsker was 
mot the agent only of Gold, but the agent ef a11 the parties; and 
that the delivery of the 4ocueents in question to Pritsker wee a 
delivery im exerow for the benefit of eli the parties, In bie own 
testimony Pritaker adwittet ue vas heiding the notes in eserey. 
He anid; “I am only an eserowee, You got to deal with the 
principal. I om holding these only for the benefit of al] perties, 












i ‘ities ea ae oReys re bie vedo ein cea + 
A, “7b dew boat Lentudanseeotnag at medead seein: le 


‘ a Re Say. “pan ii 

“aes ipeawilens’ ed POY Leeogtoe Wa ‘heanppion- eh oh 
sath Yasté bl ston one wine HAKOE To hoe Sr te mma 
ab Cosudideaes tiesye do Oe odaes tcout iy te homo te eee 
ee en ee een 





Pearcy Aa 








"qui 6 bbw wc an atte 
” at Laima ad outa reat: sat tennsbupinlinnads 


uy ea er ¥y 


ae “aa Kosnee bad’ rome “ie asia ach a canner 
es “oe ‘mokatige ‘tie WE Wein aia) pene te ween aNe ok 
gd ae) 8 Fale gona ker <a seni de eniew WH ne 


Shc aamnneseod seni Hom Ve oath ts 








16 


not for any one particular party, hewever good « friend of mine 
he may be.” We think that the evidence shows he was sleo holding 
the money and chattel mortgage in asero*, 

Counsel for the defendant Pyritsker further contends 
that parol teatimony was inadmissible ts shew that the bill of 
sale and lease were delivered to the complainants “neon a condi+ 
tion not expressed on their face;"* that the rule is that "all 
conversation contexperanesus with or preceding the exeeution of a 
written inetrument are all werged in the writing end ore net come 
petent evidence,” 

Ve 4¢ not think that thie rule is applicable to the 
case at bar, The recerd does not show that the complainants, as 
parties to the lease an4 to the bill of sale, attempted te con- 
tradict or wary the terme of these insirusents by parel testimony. 
The pursese of the parel testiseny was te show that the bill ef 
sule and the lease wire te be held by Priteker in eserow witil the 
sale was consummated. The evidence doen not show that the com 
Pleinante aecepted the bill of eaie ond the lease as an absolute 
delivery. The test in each case waother there hag been an acsepe 
tance is the intention of the parties, wd each case munt be 
Judges by ite own facte. Hil} v. Breiger, 230 Till. 408, 412, 

It was held in Mitchel) vy, Glen, 25 21, 180, 183, in regard te 
the question of the delivery of « deed, that it le competent to 
show that « deed, eltheugh in the hands of the grentee, had never 
been Aclivered, but something else was to be done before 1% should 
take effect. 

In the case at bar it is « fact that Pritsker did send 
the bill of ssle and the lease to Giseman, whe in turn eent them to 
Merman %, Mendelechn; but we think that the preponderance of the 
evidence shows that it was the intention of all the parties that 
Pritaker should held these inatruments in escrow, together with 


“Ye SE6 ne deat ote , annem 
eta. 8 sean abtOnte FeNeD aad 99 neonerbben wen 
_ ft tot ok okie actt saat betes et us 
a wo saitenaxe sat gotseunte to ad ‘ 


“ 


inns. set a hag, ste ey eet oe 


t len le past soe: esol pti eh a wd. 
piety epee | 
OE EE RN NN 





iv 


the money, moter ont chattel) mortgace, wantil the consent af the 
Shoreham Hotel Bullding Corporation to the areigueent of the lease 
had been obtained by Priteker or Gold. The evidence shewe that in 
@ conversation between Sissuan and Pritaker in regard te the bili 
of gale and the lease, Siegen stated that he had reesived the 
lease but that the lease di4 net contain the conaent of the Ghore- 
ham Hotel Suilding Corporation to the assignment of the lease by 
Gold. Pritzker admitted in Ale testimony that the notes were dee 
livered to him in everew. We think that the evidence shows that 
the money ond diattel mortgesce were delivered to bim in eserow; 
and we alee think that the evidenee shows tiat there was an agres= 
ment that he wae te hold the b111 of sale ond the lease om the 
game conditions thet he held the money, notes ont chattel mortaage. 


In thin view parol testiseny was stuisaeible to prewe euch an agreae 


ment, Goby v, Reynelis, 260 11), $76, 893; Hitehed 
Jordan v, Davie, 106 Ili, 336, 342. 


Cowivel fer the defendant further contends as fellewa: 





AES 


"The failure to obtain the convent of the Lessor te the assigament 
of the lease did not effeet the chmpletion of the transfer thereer 
te the complainents, nor 414 it violate ony of the covenante in the 
assignment er bill of wale, but at moat gave the Leaver a right ef 
election to declare it forfeited. ‘the lesser alone could take 
adventage of that breach in terme of the leagse,* 

These contentions of comeel may be granted to be 
true, but they are not pertinent te the case at ber since we are 
of the opinion that the prepondersnee of the evidence showe that 
the sale of the drug store was not te be conewmnated until the 
convent of the Ghereham Hotel Building Corveration to the aenignment 
of the lease te the complainante hed been obtained by Pritsker or 
Gold, 


Sewnee] for the defendant Priteker further econten4ts 


ms guste eros sanieiiee os ney or) 


| “pwotes eh sax me hecherntn ni ye 
Paap sant eee ctanad cals fase, 





18 


that the introduction im evidence by the complainente of certain 
documents executed by Geld after the filing of the bill ef enme 
Plaint, vere not adwiscwible ageinet Priteker and showld be dis- 
regaréed, even if it should be held that they were admiesible ae 
to Gold. 

In anewer to thie contention it may be sel’ that we 
have reashed our conclusions on the evidence tadepeandently of the 
foeumantary evidence complained ef, 

Counes] for the complainants have assigned os a orore- 
error the metho’ by which the chanesilor cemputed the ammunt whieh 
he ordered Pritsker to pay to the complainants. 

We are of the opinion that the computation of the 
chancellor wae Justified by the evidence, 

Yer the reneons stated the deeree of the chancellor 
ie of firmed, 

AFFIRRED, 


BeSyrely, P. 7., snd Vatehett, 7,, concur, 









; i rn 








1) aie CNAME. «TOSS AROS Fa 
ai me ie , sh a vr ‘ 
yf! i P —a y 
+ i a \. ; ip 
nan Uy © Pa Lo 
| | 
\ t i - { , cf yi] a Sw é al 
{ oe. 4 | fulitee | 
a 0 sca: \ i] : i i j 
3 | tt fi La 
2 wid VW 





BO 31118 


SANUVEL STROBAL, 
DeYendant in Errer, 
x ) BRROR TG COUETY COUKT 


Ve. 
GF COOK COUR*Y. 


v7. 3, 1uezis, 
Sei 4. = ak OA By @ J) ks @ ® : 


Plaintiff ia Urrer. 
SYUPPLYAMSTAL OPINICK BY WA, JUSTICE Jounera, 


6m the petition fer researing the only objection that 
need be noticed is that under seations 85 and 56 of the Prustice 
Aet the trial sourt wae actherised to exter judgement on the plaine 


tiff’s affidavit of claim witheut the taking of testimony. We de 
mot think that the plaintiff's affidavit of sislw is outficient. 


The declaration eonsiots of two divtinet eauses of auction, - one on 
the commen seurite wd the ether on o brenek of oontragt, in that 
the machines were vet in accordance with the sawphe, In the 
special count the plaintiff alleges a8 a apecifie elenont of 
damage the ‘380 whieh he expended for repairing the machines; and 
ales alleges @ total damage of $660, The affidavit of claim slieges 
that the total umeunt due to the pinintdr fe 9650, The affidavit 
of claim gould mot be Yer a liquidated amount in exeuss of $290. 
The difference, therefore, between that unoint und $68) vowld be 
whliquideted dasages woleh could only be angertained by testimony. 
In our view, seeticns 62 wid 56 of the Practicae Act contemplate an 
affidavit for liquidated danagea, 


ss si 


a ee 


















Opeth rae Yr mom 
ap gs i a ade he sg et 


‘ Fe ee 


2 a 4 


sie 
ee 





CC Pe LAS | 


eer goxtern: re ™ MereRdg: sarecaeeeme 


vy 


me O80 © moan twee sense dant oe t6 pa 2 39, vate 


Ae itaauee’ eae het 2 


“tet at tounge te donmes @ ae tothe nati Ene, BEMOS 
“Mt at om Lopate ord sit bv eoaabrooe: all ritershane | 





ie ; see Ve ee Meee 
at 


he Homann » oe — sot beams wate satin alt ou 






BivabiTNe out “oooh ot wabitedy aa oF 2 


cpror hla Sydreksyes seh & 


20 + $1212 


GAN TEL ETROBL, 

Defendant in Brrer, 
BRROR TO COUNTY COUNT OF 
vo, 


7. 7, THGRLS, 
Plaintiff in Srror. 


COOK GOUNTY, 


Aer ee Set inn Nea eaten ea 


RR, FURTICH JoUMGTH DRLIVERSS THE OFINTON OF THR COUNT. 


This is a writ of error proseented by the defendant to 
reverse « judquent by default ebtained aguinst the defendant by 
Gamyel Ctredl, the plaintisT, 

The Judgment order shewe that the defendant wae de- 
faulted fer failure to file om affidavit of merite; that after 
the default the ecurt proceoded te aseesa the plalnabiff's damages; 
that after hearing the ovidenes the court seseseed the plaintiff's 
damages at the gum of $650. 

The record shows that the defendant had entered his 
appearance before the fudewent of default wae entered, 

According to the rule, the defendant wae emtitied te 
be present at the presending to assene the danages ond te particl- 
pate in thet proceeding. Straus v, Kiewsgn, Ne, 30064, Firat Divie 
gion Appellate court, opinion filed Nevewber %, 1926, not yet 
reported; ¥iliiaue v. Horton, 135 11. Apo. 112; Ostrobramy v. 
Bargunitie, 139 T1l. App. @5. In the case of Straus v. Nigsean, 
in on opinion written by Mr. Justice NeSureiy, the court said: 

“The defendante were not in complete default. Their dee 
favlt admitted the cause of action, but not the amount of 
damages, Consequently, wider the rule, they were antitied to 
anieese gi the entecelines. In'viow of the Baber ef waite 
in this county and the voluwe of businens, this is a reason- 
atle application of the rule,* 

On the authority of the ease of Ostrobrany vs 


Barezaitis, supra, ve are of the opinion that the defendant's 


ees le oo te 








ein ane" hed worn mn inca Laacseeiapaned woreni ‘mates va 


oa sonar tt a evoconenn, seats. “te, vena 1 a wa pi 






spe ie 











ate decade ha: fastinettoly oe tie area 
ean | 
Gd bed Oe caw Haat ne Gh ect pate oats we Pei ieitind 

ola ding oa hah cogent ante Dacsar talus nsgaccuentied Scoala 

ahve tec kt ,PetOR sgt li 
gable 18 eer tna meses otros —_ } 











appearance became part of the reaerd proper by the mere act of 
Filing it; that a bill of exeentiens was not negensary to shew 
the filing of the appearance; and that it will net os prasuaed 
on the record in the cave ot bar that notice eaa given te the 
defendant to sppear at the ansenement of the plalatiff's damages, 
#or the reasons etated the Judgment is reverged and 
the cause remanded. 
KREVEAGED AND REMAKDRD, 


Keturely, FP. 4., wd Katenett, 7, , coneur. 





70 = 31204 


VRAEK P, COOH, 

Apoellant, 

; ) APPRAL VO MUNICTPaL cour 

¥e. 
OF CHICAGG, 

JANO7S & ERAWEK CO,, o 
Corporation, 

Appellee, dates a gomee oaremy 

~_ is ' i* es WD 


t 


— 


WA, FUSPICK JONNSTOR DELIVEARD THE GPINIOn oF Yee covRY, 


This is an action brought by Frank P. Goan, the 
Plalntis?, aguinet Janews & Lramer Go,, the defendant, te recover 
$2194.52 alleged to be due to the plaintifr under « writien con- 
tract between the piaintiff and the defendant in regard to the 
e¢lleetion of claise by the plaintiff fer the defendant, 

Om the motion of the defendant the trialk court struck 
the plaintiff's acuiawent of claim from the Piles om the ground 
that it waa inev{fieilent in leew, The plaintil® lected te abide 
by the statement of claim, 

Briefly stated, the etatesent of claim alleged that 
by the terns of a written contract the plaintiff was to hendlie the 
Aefendant's evllections for “ea comission of 207 on claims older 
than one year and on 44fficult claims; 80% on traced claime,* and 
that “claiwe withdrawn” by tie defendant “after date of entry are 
Chargeable with" the plaintiff's "“sexmiecions as above;” that the 
defendant placed five claims with the plaintiff for aclleetion 
[tne epecific amount of each claim being stated]; that the defend~ 
ant withdrew these five eleime from the plaintiff; that by the 
terme of the contract the plaintiff wan smtitled to a commission 
on each claim [the amowit of oneh comsiasion being specified], the 
total of sald comsiasions amowiting te $1224.11; that the defendant 
Placed with the plaintiff fer collection a eleim for $34.15, which 
wae a 4ifficult claim, which the slaintiff cellected, thereby 





ve 











peeing entitles te a souwsiesion of $5.53; that the defendant is 
autitied te @ eredit of $25,606; that the total umount due to the 
plaintiff is the difference between $1924.11 and 925,60, nawely, 
$2298, Si. : 

It ie eontended by the defendant that the trial seurt 
proverly struck the etatesent of cleim from the files, se the 
Plaintiff was not entitles te recover on the contract wines the 
contract is veid on the ground of publis peliey, for the reagen 
that by the terrae of the contract the sisintiff underteck te 
Practice law ant the atutement of claim does met alleze thet the 
Plaintiff hed the right to »ractice law in tne state of TDiduoie, 
In guppert of their contention seuasele for the defendant rely on 
the sase ef Bidland hey, S49 TLL. 
App. 271, 275. , 

We do not think thet the contentien ef couseel fer 
the defendant om: be muintained, ae the contract in the case af 





bar expressly provides ae Toliewsa: 

*Priexs to the signing of thie agreement 14 ie understood 
by a2] eoncezred ond by al) that hereinafter aay be concerned 
that Agency ithe plaintiff) dost not render er purpert to 
render legal services or practice lax," 

In the gase of Bitiand Gre lit Adjustment Go. 3 
Domnelley, suora, in which it appourad that tae sentract provided 
fer the sellection of seesunte eltheut suit aad with sult, the 
‘eourt eatd (py. 276): 

"She biLL aw smeoded states a ease waerein the corveration 
Complainant wan engaged with ite esecomploinant in the praetice 
of law, This oleerly sppears from theis hoving eontracted to 
make collections with or without legal procesdings.* 

Geuneel for the defendant further contend that the 
statement of claim ie insufficient in thet it faihe t» allege that 
the plaintiff had performed ali the conditions ef the sentract req 
quired to be parfermed by him, or that he was ready, able and wilie« 


ing to perform thon, 















a cs al ae iW 


os saben ate saat: a ™ Ao ndveonagmgth @: i saree, naint ; 


tiles (ine Mal sess | 
- tirid katie oat hack? vendowted aff Ge BoP he 
ne sa great oath ‘eet ate fe ee tnedntese or issn we me 
eit soaks fosttnn ene ay weroat at — ‘a0 dia we 
won le ‘eat eels ote wal to 
oe showtyet om Chitade te, aad sae Rs ire 
AO? punt, baie cai sees Cea " eed 


© shen ate 


inti S snitle BS 





Ya agras with gis contontien, 

Counsel) for the plaisiiff, Sewerer, maintain that the 
aotion “wae net brougit to recover for services alok the plaintitf 
wewld have te perform as « condition preeedent te rogever;" that 
“the eauee of setion as eet cyt in the statement ef olaim wae for 
the ateust agre<d ty the fefendent te be pei? te the plaintiff when 
Glaime siewld be withdrawn br the defendant frum the plaintifr's 
hands after the Aste of their anteys" that “the ntatemont of claim 
eet up that the «laioe im question were entered by thes Aef endant 
te the plaintiff under the contrast, an¢ the elaine were wi tharamn 
by the defendant after the date of their extry whereby the plains 
tiff Geeame emiitied te the axount claimed;" that “there was nothing 
in the sontract require’ to be done by the olaintiff se « aentition 
precedent te the racowery ef the wate ta 6 im couse of withdrawal of 
Glaise after the date of their entry unier the contract;* that “the 
SETeUROUL to pay tas eontsivemionsa to the phaimsirf an slaisie withe 
érawn after iate of ontry wae on independent agreement snd upon the 
Withdrawal ef the claime the amount begame due te the plaiasifr,* 

Asuwelmg Ser the sake of argument that the contention 
of vounwel for the plointiff that the clause of the eontract in 
regeré to the ainime whieh thy defovinns ol grt witharer, ig/tmans 
Penient egreement, then it Feliews that that egreemont is anenfereee 
able for wait ei wutusiity. by the terme of that agreament, as cone 
etrued by eouneei fer the plaintifr, the 4¢fendant Le obligated te 
Pay the slaimtiff commissions om elaime which the defendant might 
withdraw from ive pininiis’, al iough Sho claintiff ia ander ne 
edligation te perform any services whatever in reepect ef sugh 
Claies, The rule in that “here one party is bound te pay but the 


other is met hound to perform, tne contract is leeking in mutuality 
and fie therefore wenfercestic, 13 Corous Juris,oec., LS, 9. Mi. 
For the reasons stated the Judgment of the trial court 


is affirne4, AFF IRUED, 


MeSurely,?.J,, and Watehett, J., concur, 














Tete TAOS ke eR ON: 

$A ire nigt anton peoreved JERE! sete es oe mae 
YUL ehaky awh Moder navigees TET nh emER OF tvigeeyed Ege. eet entten 
game “ iuereders at #imiosseg mebtibaps « a etin se bind yi ord 7 








mtete -" severe sais 6p dacoa: we tet a: eae 0%: vis ‘ 

tnabar'igt dt xt Narn dnD Oxem maktwone pe eitand iikeaastonsins ) 
feast kw ater vacha fd aid Lae , tommhee welt ophome WEL a 
uate nat 0% its tle stein he Katoh ad den avai 











*ontads nt men seated Hoe a in . 








yi ri ad ita onda te inant 5 Sri 
sdensedinataaticriue) “seetiiren v0 ow 





BB - 31716 


THE PROFLE OF THR GRATE OF 
TLITNOIS ox ral. BARY G'TOOLE, 
Defendant in Srrar, 
ae BARON TO MUNICIPAL com? 
OF CHLOAGO, 
WiL-1AM Hakaw, 
Plaintiff in Krror., } ies ~ PIX 


I, 


WA. JUSTICE JOMNSTOR BALIVERED THE CHTRICN GY THY corer, 


Thin is a writ of error preseeuted by Yilldwa Naren, 
the defencant, to reverne a Judgmest sgeinet him in a proceeding 
in bastardy in the Bunbeipal court ef Chicas, 

The defendant wae tried before the court ant « fury; 
the fury fowed the ‘defendant callty: the court ordered the defends 
ant te pay 21100 for the supnert, aainterance ont education ef the 
@hild; and further the cowrt ordered the defendtant to give bond 
festanter in the eum of $9206, end in default of bend te he come 
witted te the county jail, The defendant failed te give bond and 
Wae committed to the county jail. 

Ap the defendant hes sevigned mo errey on the evie 
dence it wlli met be neaeasery to etete or dinguse the evidence, 
it wlll be sufficient to say that the evidence Le couTileting. 

Tae only ground on which the defendant aske for « ree 
versal of the Judgment is that the court orved ia instructing the 
jury as follers: 

*fhere in « rule ef Law that abides here that if any wite 
neon, that is, that if you beliewe that any witness nas testified 
faleely te fact material to this issue, then you can dis- 
See's cach chmaes ing’ ave bean’ varvevevates by tear aredi¥ae 
testimony or by facta and cireuzstaneeas in evidence, * 

Gounesel for the defendant contends that in view of 
the conflicting evidence the jury should have been accurately 
inetructed, but that in the part of the court's charges te the 


Jury complained of, the esventisl elewent of wilfully and hnowingly 


RARER BOs 





“Oe “e8 AT baa oi 


Bo be 


stabil: tachi Nt Monnaies oe ree a aha 


er re cree tno sn nea 


gee He aren Lee, sh wh : 
2 ahr ae anu ren eat wanted: be Dre. moe Scab eee Oke 


abhialcah sy Meee Prone ane Geter le Sauee eah, lh 
wit Te RODEN tR Mm Reet ctresoue acle SHE ARISE yam ae cl 





‘asad piete ot tmachsia'ea att: acaenn. Se ae pebepeBy deo bate 
















testifying falsely was omitted. 

Ve think that on the resord the defendant is net in a 
position te agsign errer on the court's charge to the jury. From 
the record it is evident thet the court instructed the Jury erally, 
in such oane the record must show taat the defendant objected 


specifiesliy te the charge. Pagarare vy. Halberg, 246 Ill. 98, 96, 
97. Im the case at bar the defendent did net make the opeeifie 
objection now urged against the court's charge. At the conclusion 
of the charge the folloring soliloquy took please between the eourt 
aad the attorneys: 


"The Court: Te there acy chieetion by «lther side te any 
dnetruction clven? 

Trial Attorney fer the Defendant: Bay I suggest you ine 
etrust the fx ome 

The Court: ust anever that particular cuertion, As te 
any part ef the inetractions given, are yeu stating eny objeeq 


tien? 

Trisl Atterney for the Feople: Egq,i am net. 

Trial Atterney for the Defendant: © am ebseeting. 

The Court: Are you objecting? 

trial Attorney fer the befendant: I an objeeting, 

fo the giving of each of suid inetructions the deo 
fendent then and there duly excepted, 
wre Court; Be you desire me to instruct the jury on any 

Tried Attornoy fer the Defendant: Yes. On bebwif ef the 
defendant i wish you would inetruet the Jury that the fact that 
the defendant hee tertifies im hie own behalf should be taken 
as @- be given an fair convideretion ag any other vitneas, 

Triel Attorney fer the People; Beth sides should be ine 
eluded in the instruction se given, 

The Court: I think 1°24 40 that. 

Trial Attorney far the Pecsle; It is covered already, 

The Court: Yes, it ie covered but 1 #142 say a littie 
more, In this case, gentlemen, beth this complaining witness 
ant the defendant hove testified in this case snc the fact that 
one is the complaining witnerse and the ether is the defendant, 
444 net stop thom from being competent witnesses here te testify 
on their rassective sites, Navirg widortaken te testify, they 
are just witnenees here, and their testimony in te be Jutged 
the same an any other witnesses’ tratiaeny in Judged ond welghed. 
The fact that she is the complaining vituess aud he te the defend- 
ant are facts which you may take inte cometderstion, You have ne 
Fight to diaregard the testimeny of either one of them just from 
the mere fnet thet one is cemplaining and the other defendant, and 
you should treat them just as you de oll other witnesses in cone 
sidering their testimony and determining where the greater weight 
er preponderance Lies «nd Just vhat the truth of the matter is. 
a your verdict on the evidence here and sign it and return 

t te me,* 


ee ere 


CS yah oy ‘peduwtiand txaew wale Iect eapbiwe eae 





ai a: tom wt eectnn ted wo cone eae ne sais’ ‘las peg 
next .geet Het at analy af Sapee ers Re pega 

















adage somalia aiid gaa = Seve Sreeet sed von dows a | 

108 a ote ae a ee ways f fine 8% bo 
vtiioney td phate et 4h abel our aed “ ome ont £ ee 
solpvtivtes, pat Be baer et Saagee aye foweve Laue sais wo 
tah tt “et nnn one: ree i 


ee oA enanela om ae ot, 
et wey dawned te aitebew tes gid’ ‘eet 


at ah: savleneiy wedesretie tet waoda Peal 40h 
ioe nasi dP ae Cuaniben! "aeoldncateat eh 


| A sais 








Gevunaml for the defendant contends that speeifie abe 
Jeetione te orni instructions in the Moniciyal court ore required 
by rule Gof that onwrt; that that rule dees not evnear in the 
Fecord, sn that the epurt cannot take Judieial notive of the rule, 

Ye are net deciding the question on the sanwention 
that the 4efendant faiied to comply with rule $ ef the Kunteipal 
eourt. Ixresrestive ef a rule of sourt, 1t te @ general rule of 
law that where the court inetructs the jury orally, in order that 
an exception ts the charge may be saved for review, a specific 
ebjection must be sade, a, (po. 99); 

ag, 67 tli. 446, 
Course] for tae defendant eaintaine thet the oral: 








charge must be tata a8 & #aele an¢ thet if would net be groper 
"to pick out vertein gortione of the charge, oultting the other 
pertions wich Limit and qualis’y tae sane.* in eeppert ef hie sone 
tention counsel cites the anesen of Groenb ore Colids & Geuoarn 
R42 TAL. 1G, LLG, and Sersas imeri¢an Union, 263 111. 304, 


BLS. 






The cententions of seme, are gorreet, but « 41fferent 
question iw presented om the record in tae eave at bar, Vhe reeord 
shews that me egecifie objeotione were made te any porte of the oral 
charge; thst enly the following general ebiectilon was made: “Yo the 
giving of each of eaid imetructions the defendant teen and there 
@uly excested.* uch am exception, sceording to the esses of 


Feoarsre vy. Hahberk, ouprs, und liggking v. linskine, supra, te ine 
sufficient te save the question of the osrrectnera of the oral 
charge for review, 

Fer the ressons etated the Judguent of the trial court 
is arfiraeda, ANFLRBED, 


MeSurely, P. de, ond Runtehett, J., coneur. 


~~ 
Ne 











é 


ode aitinnwt Jax ebuetaca Shahn t0k og ai ae rt itemise: 
Bentoner oun drmre Dette oc ot Bea haatent mere oF empkineh 
russ ak ane fam BOP pet mild Kauit pANOND, tad 8 Oke AT 
mis pes wo op lian delottwl, ove) dpotem eves otf tree, am, shone “ay 
nidtauoon tit se metivony ot abiinwh om ames 4 
| dagighses 960 10. & ade Abbe plement Pcie Arahat a tat 
Wy ott Kenalog a x2 TE cue Te eae | | 
taut tates ch , whsete geet, byt 
BESO, 8. gee kese ta boway. 14 em eae soit: 
ri? .4) orem yaeeien » poems otha pe tes 
Tu eas dl ts 8 : 
aren ery waste # onsptatem anv teh se 2h, Leno 
| meen #8 fom Doce aR tlt hee aaah Pt ae shad 











(107 - 31236 


BERTHA B, FORRNSTOR, Administratrix 
of the Eetate of Joseph Forrester, 
Deecenved, 

Defendant in Srror, 


vs. 


CHAPLYS €, ADSIT, 
Plaintisy in Zrvror. 


) 

) | 

RRROR YO SUPSALOR GoURT 
| OF COOK Coury. 


3 
, = Fr Pp 
A Aj | A f, é) ~~ 
y > Gy UP 
i ee 


2h. oe § fie 


MR, JosTICR JomRETON DELIVERED Tm OPINION OF t= couRT, 


This f29 so writ ef errer preseouted by Gharles ¢. 
Adit, the defendant, to reverse tro deorees in favor of Bertha %, 
Forrester, administratrix ef tho estate of Joseph Forrester, deo 
ceased, the compl ainant, in & sult in equity brought by the come 
Pleinant.igainet the defendant, 
Persensl service was had upon the defendant, but he 
failed te enter his sppearance in the euit. Gn Fobdruary 4, 1926, 
& deeree Was entered ageinet him defaulting him Ser want ef an 
appearance, ordering that the bill be taken pro sontesgo against 
him for want of an anewer te the bial of complaint, finding facta 
: @ubstantinily as alleged in the 6121, and referring the cause to a 
| Master to take am accounting, 

The only evidence that was adduced before the hoater 
wae the teatimeny of one witness, The waster found that @l1 of 
the material allegations of the bill ef semplaint are true; and 
further found that the defentant awedt te the compleinant the ewe 
of $15,404.61. On February 10, 1996, the chancellor entered a — 
deeoree approving and confirming the Muater’s repert. Subsequently 
the complainant filed a petition slieging that the defendant had 
“wilfully megiseted and refused" te pay the money which the decree 
direated to be paid, and praying fer a rule requiring the defend- 
ant to show cause why he should not be punished for conteupt, 





% The court entered an order 4iveeting the defendant te shew cayse 


» 





why he sheuld not be punished for eontenpt, The hearing an the 
potition was continued, ant war still pending at the time the 


present writ of arrer was progeented, 


The only question to Be determined on thie writ of 
error is whether, when every legitimate and reasonable intendment 
and presumption is indulged in euppert of the allegations of the 
bill of complaint, there are wufficlent fecte alleged in the bill 
of complaint to juatify the deerees, 

The bi11 of complaint ie in substance as follewa; 


"Your oratrix further represents unto your Honore that 
one Charles 0. Adseit of the City of Chicage in the County of 
Cook and State of TLiineis, whe is wade o party defendent to 
thie bill ef complaint, nad in hie poseeseton on, to-wit, the 
26th Any of December, A. DT. 1919, se a trustees for the @aid 
Josevh Forrester « large ow of money, the exact amount of 
whieh ie unknown te your oratrix, and which your oratrix has 
been unable te ascertain, but aniownting te not lege than the 
eum of Pifteen Thousand Bight Hundred Twenty-alx Dollars and 
forty cents, which awowit of meney the sald defendant, Charles 
CG, Adeit, then an¢d there in writing acknewledge4 and sromised 
te pay te the ania Joseph Forrester; that aftervards on, to- 
wit, the seventh day of Januery, 4. 3. 1991, during the life- 
time of ti@ sald Joseph ferresater, the aald defendant, Charles 
G, Adeit, eaueed to be paid om Bin behalf’ to the said Jeseph 
Forrester, a portion of said money amounting to the eum of 
One Thousand Five Hundred Sighty«twe Dollars and Gixzty-four 
oente and sfterwaria, on to-wit, the L?th day of Marah, A”. 
1921, during the lifetime of the said Joueph Forrester, the 
said defendant, Charlies ©, .deit, saveed to be paid on his 
behal? to the sald Jeseph Forrester a pertion of sald money 
amounting to the ovum of One Thousand Five Gundred Sighty-two 
Deliare and sixty«four oents, and aftervarda, on to-wit, the 
L7th day of July, Aw 0, 1922, during the Lifetime of the said 
Joseph Forreanter, the said defendant, Charles ©. Adeit, caused 
te be paid om Bie benelf te the eaid Joseph Vorreater a vere 
tien of eaid money amounting te the awa of One Thousand Five 
Hundred Bighty~two Dollare and #imtyefour cents, md afterward, 
to-wit, om the ind day of December, A. 0. 192%, during the 
Aifetine of the ealdt Joseph Forrester the sald Charles C, 
Adeit caused to be paid on hie benelf to the said Joseph 
Forrester a portion of said money amounting to the eum of 
One Theusand One Hundred feven Dollars and eightyetwo cents, 
but hae never paid, or caused to be pald, either to the said 
Joeeph Forrester in hin Lifetime, or te your oratrix, the 
balance of the enid money aid the Interset thereon, or any 
| ye thereof; that the woney firet hereinbefore mentioned was 

part woney whieh the anid Joseph Forrester in his lifetime 
had delivered to the said defentant Cherlea ©. Adeit to held dn 
trust for the aei4 Jonenh Forrester and in part the proceeds 
oF sale of certain ohares of the oapital etock of certain core 
porations theretofore held in trust by the ssid defendant, 


Charles ©, Admit, for the said Joseph Forrester, the exact 





elt aa galing at  tqeedann 0? nce Bee o€ tom | ite a, or 


edt emit sd? Sa gmbhiog if) fe ve hte. vonmok mae saw mene tég, ‘ 

fe daonmeng: aw eeree Le shaw senaons a 
te eee eld? ao biaduroonn a8 of agktoonp ‘haan att: fe Ss 
dovnt a 3982 okdanone ink pave Os amit Sle L ree any ssesnedw at wrne ny 
oe to eagitay nite aly Ye smoqanie bb bo pdiad at aol ryawaeng bas 
Ate ee suk neue ita atout fos de rage 6% 7 weode alasqaae ‘te tra 
SO a sntacque ve 


ewe ttert ee ea aks EN a ad $5 kad eraoe te bene oat 


s igtae: 


sate deanel troy eo ay etneeexony satan’, atutero ‘muot® | 
te uiadwe atid ak ogead Se sito ont To dhebs & ee dat 
oF Shiatusteh yr tae fo wba oh adr whookist Yo atats vet 
7 Pagerngh te Aeteteeean #40 vt bet appense none Se at hid 


3 iat one xot obtortt « we , 820k of oA xe 

A cyl SeaKe wit Remnant: te cow opie lw dcnaed te yf nr Te 

me ‘gittere tee Helier ite ye ieiete seoy ot. awentay ah dpitiw 

ne wekk Reel ted ak ‘gander, tut ~abodeneng ot ntdene sind * 

a Gtr Lh owt Kid mies oT tubeatiaaeh tiligh Deewana ety - MOSEL Ee: yt =. 

a , Sinko teh Ned 06h ee 

feiss Ink heghelvoniga yatiixw at wundt haw meat 9? ee -A 

Ske se whnarrment Mens: pReisertat dgenel ioe adi ed ong ae 

Be tk ens pnd teh Sh SL oS ok yg Cee Yo yeh eeeven watt: ft ‘ 
G eae eb Kiar al? xetee? “nat Seopa ida mod ‘gre ni 

aot bine ed at “tate whe pe She at oak homuiow Ae ek 

te. sue pal ae. wake ou an aoe Aheo an ns pe ae or 














ae 





‘ht eta fits Gee Elod SWMVG IA baxte exoadt i ray Ue 
eek 9 Aes. ke wae SUe iL one sRetogd OR per sn “Page th ee ius Re ce 
gee  tedeeiret myeech hive ek¢ To euldet Lf ole cor OY: S| ee ae: 

okt sear Bhat od os beacen, eT ER: Sot l ia bake ee 





 Yhawe hae Ip Misiog « Le reewiet deanot haa. welt od tod 
partway birdbaylt welt dauiged™ i ee eat ae pa oxen 
ode ,diteal ao wheats ic bao ,adaed vote ginko haa ratio’. 
bise att to wie lito) amlagh RSL of ak . goes te $e a 
oa ane Pinna .0 sobtads , Sune io'teb biome 980 .hedsarcs 

et ano aotonnro't ita et. ‘phe: wht of Thoved wid.ae bing od yenenyn Wis 
aril ine pa a “i bed et gpd qonws bhtee to mle 
. Rha awin 125.068 awe aprgta Ane acee erty f hethael.. it 

re hy ott gathive (S002 of WA tedeaaed to ca Fe ele me Phenyl 


ce 


40 gre bhoa ace. erat pr eo Bho wed te ; 
sgpa a bins vB. of Veved ehd nd bing vd of braume & Bn 
0 mi ad 0 i yes advan renege Boss FS 
phdanw OWa—iiyle hae ouml ig Gerold hove elt gaat Asenwedt ae 
am ae eH aie. abbey. of ot Lemme we they mira mt ied 6 
 aefaica tise dat rete Ses ata: 
AY og PhO NC GE t ich 

ond haaatiaae oso tein tense Jax #t “hat dnite peewee ats 






‘ : 













ROLES, tet ah cpdaanmat 

wh ios hid yo ghl a pen See 
’ ade Rhee wr yh essed Ab Wout a ae SRO 
tae oat nape anew 9 pen ott aor taba 2 pr psa sf 


Aen EN at Myalys rs bry: ag HA si: | ORR 


i 








RR ya igs DT ea, ie ee 


Humber of shares of steak and the namea of the companies Lasue 
ing the same being unknown toe your oratrix and your oretrix 
having been wmable to agoertain the same, 

"Your oratrix further represents unte your Honore that 
she is informed and believes, and so charges the fact to be, 
that during the lifetime of the sald Joseph Forreater the enid 
fefendant, Charlee ©. Adsit, aseauwmed te and 4i¢ deal with the 
gaid shares ef ateck and money of the said Joseoh Forrester in 
the hands of the #ai4 Oharles ©, Adolt and in such dealings 
aid make divers and sundry aeeret prefite whieh were unknown to 
the sald Joseph Forrester an’ the particulars of which are én- 
known te your eratrixa, and that 14 woulda ac appear if the 
said Charles ©. Adeit would render a true and complete aceount- 
ing of his acts and dealings vitn the eald Joreph Forrester and 
with the shares ef stock and soney of the said Joaeuh Forrester, 

*¥orasmuch, therefore, as your oratrix ie witneut venedy in 
the premieos exoept in a court ef equity, on4 to the end that the 
anid Charles ©, Adeit, whe ia hereby made a party defendant te 
thie bill ef complaint, may be esepelied to enewer the tame, but 
not under oath (hie anewer under oath being hereby exoreasly 
waived); that an secount may be taken herein by or under the 
directions of the court; that the said Charles C, Adeit may be 
Tequired to particularly and ayeoifleslly set forth and state the 
amount, nature and deaeription of all the meney and shares of 
atock of the said Joweph Forveatexy waich were evar in the hands . 
of the eaid defendant, Cheries ¢. Adwit, or by him held in trust 
for the sald Joseph Sorrester, giving the dater af all trencace 
tions, the person er parsene from whem euid shares of stock and 
Boney were received, wiat was done with all of the same and with 
the procesde and availe theres? and speelfiealiy and exactly whet 
autherity the said Charles ©. Adsit had for eo dealing with the 
game; that your cratrian may heave «a dooree requiring sald dafende 
ant, Gharles ©, Adwit, te pay to your oratrix whatever may be 
found to be due to her uoon the taking ef such account, together 
with the costs of this proeseting, by a short day to be mined by 
the eourt; ant that your oratriz muy have ouch other and further 
relief in the premiser as aqulty may require snd to your Henere 
may sean meet, * 


The pertinent oarts of the deeree of February 4, 1925, 
are as follown: 


"and the court hereby finds that the court bad jurisdiction 
of the parties and aubject matter herein; that the naid Joseph 
Yorrenter disd on the sixteenth day of November, 1925,intestate; that 
Lettere of Aduinistration of Lis Sntate were issued to tue seid 
complainant on the twentieth day of November, 1925, by the Prebate 
Gourt of Cook County, in the State of I[llineie; and on the sane 
day the eni4 compiainant accepted the eald appointment as ade 
ministratrix and filed her bend a@ such and ever since has been 


and is new aeting ae the duly qualified and acting adwintetrae 
trix of the salé estate of Joseph Forrester, decessed; that on 
oF sbout the twentieth day of December, A. D. 1925, toe sald deo 
fendant had im his possession as Trustes ie the yer fone 
Yerrester, a large eum of money, the exact amowmt of 

not less then the gus of vifteon Thousand Sight Hundred twenty- 
six Dollars and Ferty Cente ($15,826.40), whieh the said defend- 
ant then in writing acknowledged and promised te pay to the eald 


ie ieee 





owed pelaequns ett to seane wit ban Beate to setadn Moi tod 
xivders thie fay abies wey at eeartag goked woma oad gp 
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ade CH? Nekaem of hiveow 2 fecs hee peter 
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a ne OF Seite rien tine et epee gus! act oF Seiter 
‘aiteear oer a 


RE ~e smashes ‘Ye aetens wer te aeiex srematene PAE Coulag 
i “wrote oe ote 












fee 


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eB 4 PRAGOMLLLT “te pvogd aby af yximral dood Va ae 5 

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saad ‘eel Pons Tave daw Mond pa had moat fede now 


weteteiate gmites doe che BAR Gaung huh ont oe palree: se af bas 
ty ait prearaned ,toteante’l sigengh Lq@ wdacas hina oat @ 3 eo 
ooh Mika sae cpth ee aive eae “gedaan. te yah Keds news Me oat ee 
atau? Ge. s ssingvaces, aw Bak atl Louhee't 
ae rope te: rnc tomy bar Lah ty oP aT 
Br mney Kovh sal daly ht dasee | ‘par 
abieiwh blew etd dehy (Od 
ae ow ‘on espa nh boasneng ine” 





EO" INS. iii: os Set Hg 


Joueph Forrester, a portion of which eoney with interest there. 
on has never been pala either to the ankd desesh ¥Yorrester ni 
hie 1ifetine, or to the said complainant; that the soney Firet 
hereinbefore mentioned was, im part, money which the eatd Jeveph 
Forrester, in nie lifetine, had delivered to the suid defendant, 
to hold in trust fer the said Joseph Forreater, and in part the 
preoaeeds of gale of certain shares of the eapital stock of cere 
tain corverations theretofore held in trust by the oaid defend. 
ant for the seid Joseph Forrentor; that duving the Lifetioe of 
the said Jceseph Porrester, the said defendant asswasd to and did 
deal with the seid shares of oteck ond money of the sald Joneph 
Forreater in the hands ef the eaid defendant and in ouch donl. 
ings did make divora and sundry seeret profits which were une 
known to the aais Joseph Forrester. 

"It te thurefore hereby ordered, stfudge?t and deoreed that 
the b41] of complaint of said complainant be an4 the same horehy 
fe referred to Wirt %. Humphrey, one ef the Kastere in Chance 
of thie ecurt, to take am secowrt herein of the money so mala by 
the sald Sefendant tn trust for the sald Jeseph Porrastar and of 
the procesda of gale of the enid shares of eanpital eteok ana of 
the seeret profite te made by the said deTandant, tegether with 
interest thereon, lees the amount of the paymente made by the 
said defentant on seceunt of the aawe, to state the wepaid bale 
ance of said money and interaat ant to repert thea same te the 
ecurt, together with the evidenes taken on anid accounting; that 
upon the making of the enl4d raport of sald ausounting by the said 
Mester in Chancery and upon the appreval thereef by the court, 
the said defendant, Charies ©. Adsit, do Sorthwith pay to the 
@aid cemplainent the ameunt of sald umpaid balanee of principal 
aud interest so found by sald report, together with complainant's 
eoets herein; that the sald cemplainant thereupon have execution 
therefor as upon a Judgment at lav; and that the conplataant 
have aueh other remedies Ter the wmlforomamt of the 4ecrem here- 
in, and te onvorse the paywent of the sald goney, ae pertain te 
the practice and procedure of Courts of Chancery, * 


The pertinent parts of the deerse of February 19, 1926, 
are an follewa: 


"and the ceurt being fuliy adviaed in the premises, en cone 
eiferation thereof, 4eth find that the esld defendant purchased 
for the eaid Joseph Porresitar, deceased, during his lifetime two 
hundred and twenty-five (725) shares of the capital stock of 
Inapiration Genselidateda Conger Company, which the eald Joreph 
VYorrester fully paid for; that the said defendant eollested divi- 
dende om ald stock te which the eal4 Joeeph Yorrestoer was ene 
titled; that the defendant subsequently seld said steek; thet in 
addition thereto the defentant bad the own of Thirtyetwe Hundred 
Two Dollars and Sixty+two cents (°5209,.62) belonging te the sald 
Jouenk VYorrester; that thore Le now 4ee to the said complainant 
fer principal so due frow the said defendant to the said Joseph 
Yorrester in hie lifetine om acoount of sald money, shares of 
stock and dividends, together with interest to the Third dey of 
February, A. 2. 1926, the total ews of Thirteen Thousand Pour 

dour Polings wid Gixty~one cente ($15,404.61), 

"It ie therefore hereby ordered, adjudged and deereed that 
the said defendant, Gharies 0. Adiat, do forthwith pay te the 
said complainant Bertha B. Yorrestor as Administratrix of the 
estate of Joseph Porrenter, deceased, the said sum of Thirteen 








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ee “i eo Lee te ote, 


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mitetit ube peiiah .hersgamb. eye teneaat Aiyoaws Bee OXF Te 
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te 2 4 pam ast et sewte sal Behe Raids: fed ahi lw hie re 




















MAT ay e 
oye ot. > Te 


Thousand Your Bundred Your Dollars and Sixty-ons cents ($25,404.61) 

together with the complainant's eests of sult herein; that the anid 

complainant have execution therefor as upen a Judgment at Law; 

and thet the sompiainant have sueh other remeties for the anfora 

momt of the decree herein and to enforse the payment of the said 

money as pertains to the practice ond procedure of sourts of 
cory,* 

There is ne subetantial dispute between counsel fer 
the defendant and couneel for the complainant in regard te the gen- 
eral rules of plending applicable to the ease, 

Couneo, for the complainant maintain that “in testing 
the sufficteney of a bill ater a deoree pro contaseg 21] matters 
weloh sould have been reached only by soncial demurrer or metien te 
make more definite, m4 many that could be reached by general 4de- 
murrer ure regearde! ae walved, and the most libersd rule of cone 
etruetion ie adopted in. fever of the complainant ond overy intend. 
ment in availed of that #111 make the pleading good,” Ceuneel for 
the defentant concede the correctness of these contentions, but eon- 
tend that these ruler “are of no practical for¢e unless the allegae 
tions are ambiquous er susceptible of twe aenstruetione;* that %4t 
fa not #0 much that the bili in the instant ease ia anbigueus in ite 
allegations, as that it Le lacking in sesantial allegations of Paste 
to establish « trust.” 

Counsel for the complainant further maintain thet "while 
a decree pro sonfenso concludes » defendant only ae te the feete 
properly alieged in the bili and not us to sere comelusione of law, 
yet he fe eongluded se to the allegations of ultimate feate which 
may consist, as in the instant case, of conclusions of faet draw 
from the evidentiary fscts.” Counsel for the defendant conceded the 
familiar rule that the ultimate facte and net evidentiary facts should 
be pleaded, but maintain that in the aase at bar the bill ef comp) aint 
does not "allege sufficient facts under the well settled rules of 


Pleading te sustain the decrese,” 


MAN 


ee 








It is on elementary rule that a decree can not be 
broader than the bili; that a complainant must recover on the case 
made by hie bill or he cannot recover at ali. Gregory v. Gregory, 

323 Ill. 38, 385, 

In regard to a suit in equity brought te establish and 
enforce a trust, the general rule ie thet the bill must allege with 
oertainty and distinctness all the facts relied wnon to shew the 
erention and exiatence of the trust. 39 Cyclopedia of Law and Pro. 
eodure, p. 621. It is alec the rule that in a suit ageinet «a trustee 
for a breach of trust the bill wust allege facts showing a breach or 
violation by the trustee of hie trust, or that he has deelined or re- 
fused to carry out the trust according to ite terme, or that he hae 
denied the trust. %) Cyclopedia of Law and Procedure, pp. 623, 634. 

In the ease of Crear vy. Farmers State Bank & Trust Co., 
206 111. 454, im discussing the sufficieney of the allegations in ao 
bill to establish and enforce o remulting trust, the court sala (p.468)3 

"The law ie clear that chore a resulting trust ie seught te be 
established an4 enforced ‘the trust must be clearly alleged in the 
bill mot only in terma, but all the facts must be set out from which 
the trust is claimet te reault;' ** that the pleader showld state 
in hie bill the speeific faucets conetituting the aubstantial ground} 
work of hie case, ani set loose or general cencluetons from those 


facts nor mere matter of argument; that the avercente should be 
positive, certain and wiaebiguoue,*- 


In the ease at bar, an we conatrue the allegations of 
the bill, no facts are averred which show the nature of the trust 
betweon the 4efendant and Jeseph Forrester, The terme of the agrere- 
ment between the defendant and Yorrester which created the trust are 
met averred; and there are no facts alleged which would shew the 
mature of the original tranesction between the defendant and Vorrester, 
out of which the trust arose, Whether the agreement sreating the 
trust was written or oral doce not appear from the bill. No facts are 
alleged from which reasonably it can be determined an to how the de- 
fondant hono med te hold in hie possession, as trustee for Forrsater, 
the sum of $15,926.40, In other words, the bill doos not allege the 






om ton mao neweh « fede odue Wie saeien F me ot a7 ROL TO A 
‘ean a0 as arabes dot aneaeeend Fy sal othe an eed 






“ort bam vai to naseaiton? on ase wee wate te ta ye A wt ioe r tC 
pettune @ tondenye re ae | want ‘tus ott ‘ead of fhe « ivuses i 
to dnnetd a guiveds bse pyolio tema ‘Lite one aayed Yo space add ter | 
wn 8 pemtlews ved of tae? m0 “eewtd old te oe tound coal ‘ed fold tdty i 
god wh ima 1a ,warcid 4e 8 ot Anihtebon Past ‘eat sue so “a ‘baal 
nt bed bank “alsapeniade baw wma Bo ahiegetoes dunes one “bw Laed 
. coe a wt nes a nl eh cdl 






















pIe Ost gah? Roane t oMtlesee eft LOS 4 
pelo omy ena terran 
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etn tavondan ot wttnsne we 9 tet Meena oct at, 
awed oat Yo aundea, oft wots, dotaw Sereere ae, 9200 om ohtps, ott 
ed 
ote thud ode dodente Hedin woanerso% ban fawdantph acty. movies ve 
onilt ae dhwow ae. poge ttn, nec lail Pm, omaAH Daw IDeEIEN. 






f TEM ccs 
Rarer an Nise aa (Uh eas 
Ana aera ¢ 
te nN Os) 

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ttt owe perth ey ag 


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faete surrounding the transaction by whieh the $15,426.40 oame inte 
the defendant's passeasion; nor does the bill «allege the terme ma 
gond4itions on which the defendant held the $15,926.46 o8 trustes of 
Forrester, The bill alleges that the defendant seknowletced in 
writing “which Tete] anount of money" and “promimed to pay to Tote} * 
Yerrester, Preewsatly these sliegationa ure intended te mean that 
the 4efentent acknowlseiged in writing the receipt or possession of 
the money and prowieed to pay the money te Forrester. Fut the 
written inotrument referred te in the bill te not set out in the 
bill mor attached to the bil) as an exhibit. Kor ie the eubatance of 
the written instrument stated in the b123. It ia alleged in the bill 
that part of the 315,426.40 held in trust by the defendant for For- 
rester consisted of *the proceeds of sale of certain shares of the 
eapitel steck of certain ¢orcorations theretefere held in truat* by 
the defendant for Yerrester. Hoe facts sre alleged to show who made 
the sale, nor te shew the mature of the trust for which the defendant 
held the proceeds of the sale. The b121 further sllegea that the 
4efenftant “assumed to and 414 deal with the eaid ahares of stock and 
money* of Yorrester, "and in uel dealings did make divers and sundry 
seeret profits whieh were wskreown te" Forrester, “and the particulars 
of which are unknown*® te the coripbalnant; "and that it vould so ape 
pear tf the”® defendant *wouwld render « true and complete accounting 
ef his acts ant dealings with” Yorreeter “and with the shares ef stock 
an@ money of” Poerrester, There ore no allegstions in the bill, howe 
ever, which would anew the natere of the trust by which the defende 
ant received the uwoney snd obtained the shares of stock; snd there 
are ne allegations from which 1t would appear that the defendant was 
guiity ef a breach of truet in doaiing with the soney and the shares 
of stock, Wurthermors, since the bili does not state the length of 
time that the trust was to continue, reasonably it cannot be presumed 
thet the defendant hae violated hie truet or that he ta under a legel 


 ebLigation to render an acecwnting to the complainant in regard te 





ated omnn Ob GOO, 0L8 ent cabin gt sebaiesnciouned out ‘junk wero-tewe pan 

eg heenwwe /ehaiipsaneiet : 

te wadared ao Oh ctieegncts atte Bent Huatatten nth il tone ‘nha alah, Moab 

ab boytefronian funbae'teb ext Catt weyetie Efhe wat detownedt” 

eee Re es ee ee ae ad ants ew , 
duel? adem o¢ hohuwsat om naehtage Lfe omit’ qiitdinlewdt” vasteweeet 

te selentatog we M4laseT ear hd Ed fogbe fwomtan Somatinus"ob eit” 

ad? tua .Yotapsxet ef yonem ot yale OF Kelibtody few to iol wit 

ens ah fae tee Gon ot fnid our AF of howraton Sematdeist iedilhew 

fan do Nd tod oben ce es Ce el nici reel en 

Lite site nt fieig ttn Se ee aes Por ot 
atte tot dimtco'toN ould qe guia it Bteet ee sae ditt 

bd ew se eM niger ae Ss iia twncy tetas 

“gets eh ete dois iledaciaiaeai ail nse Monte rte 

vse ar Oo nee te al hana owteedaet aot , 























palletes otecats be ny a webs hie ae , 


| Moots Ye npracin ad, if to bas, 10s dae reek Sa a . - DM 





Bec AER +t ab “ode $0, on mM, a aaa sna a da : : yeaa i . 
S90 8 I, 1% 108 o¥ 


batt ‘ x Wes 


the trust. Horeover, since the Bill 4oes not show that a demand 
has been made on the defendant for an aca ounting, fairly it can 
not be presumed that the complainant hae treated the trust ap 
having been terminated. 

With the exoeption of sueh phrases as “trustee for 
the eaid Joseph Forrester, * "to hold in trust for the asdd Joseph 
Vorrester," “held in trust by the said desendant, Charles ¢. Adeit, 
for the sal¢ Joweph Forrester,* there are no other allegations in 
the bill that ressonably could be construed as alleging a trust. 

In our opinion the allegations that we have Just quoted are mere 
conclusions of law and net allegations of witimate frets. Alexander 


&e., 140 Yea, $i, 625 Re et, bat Bae I % iy ; , 


a4 





rust Co, vy. Colymbys, Sandyeky 
Soymour vw, Hechanios & Metals 
wk of City o fork, 177 HB. ¥. &. 403, 405, 

In the case of Young v. Mercantile Tryst Co., supra, it 
wae alleged that the complainant delivered certain securities to the 


& Mocking B.A, Go., 9% Fed. 629, 099; 





aefendant as trustee and depesitery, te held and thereafter distri- 
bute ac firected and autherized by the complainant; that the defend- 
ant received the seaurities and accepted tha trust; that the defend- 
ant violated the rights of the complainant and violated ite duties 
as trustee to the complainant, The court gald (pp. G1, 68): 


“How the securities were dissesed of, whether by wale or 
distribution, what complainant's wishes or directions were, or 
in what particular hie rights had been vielated, dees not ape 
pear, *** A sourt of equity doubtless has plenary pewer to 
determine the rights and liabilities arising between ao trustee 
and the beneficiaries of a trust. It ia evident, however, that 
the general allegation of trust or trusteeship, together with 
the object and purpose of ite orestion, 1s not here distinetly 
or sufficiently averred. 4 ia pertinent to inauire, what did 
the defendant undertake to do other than become depositary or 
bailee? The character of the trust, its #xtent or purvose, 
andéd whether in writing or by parel, is not disclosed, The essen- 
tial olements of a trust, viz., ® beneficiary, a trustee other 
than the beneficiary, the subject-matter of the trust relations, 
ané surrender of the property and transfer of the title te the 
trustee, are not well pleaded,* 








pleut bay) wile Sie ee hake wt ope, 
‘nae “We yieae't bet Panties ca. x0% sobaates waht, noon m0 20 
ee soves wile ‘seed: net a wake ee 
cot betnire >” Be ehamety von ee aoteanexe ode. om, shot cate | 
sania stew mitt we saws ma Si - * bpesmreasyn ae , 








Sa a tel ee SE 


ro 


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% ; 





+ ws 
it ere ‘ we. 


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neal at dokt ;tuiem. mis nsenege, bag sees a 











or dake ee 
ot sosaues aa 
anh ng amen. 









Peed tee) ‘vo xedtanetoe kiya 
went #0 eteas oa} he moteaane. one: , we 
A Nee. oY Hip) aie KH i iMate " (0 yo D8 4 pa ¥ ’ i 

' ; Healy " Awl ad Raz ie 98 7 


A AE A i oa ine: roth Si A a side” ei iA be 





Rae een ees ts , 
Sm) arth) es 





In the @ase eof Alexand 
the court smld (pe 74); 





"The avernent "held in trust' ta a Legal conclusion, not a 
facet. The fact of whether the trust is an expreras or conetruce 
tive trust, and, if the latter, the fucts out of which the ine 
plication of a trust arises should be etated.*® 


In the gare of Bi 






"It ia eaid that the avernent that Seherst wae a truetee in 
holding the legal title is the averment of a Legal conelueton. 
I think that this obiection ie well tuken, The bill io in thie 
sepect an action to declare ant enforse a truat, ané the facts 
upon whieh the alleged truet ta asserted, whether by reason of 
an express declaration or by olreumetances, should be set forth." 


In the ease ef Seymour +, Meckanies & Metels Neti onal 
Bank of the City of Mow York, supra, the following svercent was held 
to be a conclusion of law (po, 498): 

“That the interest of the estate of Themes Wiliiawe, deq 
eeased, in the iiechactes’ Bank, by the terne of the various 
agreasents of aoquisition snd consclidation, was received by 
the Kechanics’ Bank of the City of Hew York, ond, through the other 
predecessors of defeninnt, by defentant in the capacity of an 
agent, truetes, or PMdnelary.” 

In the gare at bar the deerees are bused on the theory 
that « trust relationship existed between che defendant and Porras 
ter. In our opinion the sllegstions of the bili of complaint are 
not suffielent to fuetify the deoresse, 

Por the reneens that we have atated the deereen of 
the Chsnceller are revereet oni the cause remanded, 


REVERSED ABD REMANDED, 


MeSurely, Pp, v., and Batenett, Tes Gonmeur, 


| power one Pte aed sal ‘eseteah ‘oat Bah 


PAL la Sie ¥; . * 


aia ENS ea 


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179 ~=6- «631521 
AAROGH KUEN, 
Appellee, 
Te 
YSLLOF Cab COMPANY, 


Ae KBAL PROM 
AUHICIPAL CQURT OF CHICAGO. 


D 


+r U 


a corporation, o a | eye 
. ko A 4 Leite w) fw O / 


Appellant. 


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ee ta Pe Re A ee eee 


Mi, JUSTICR JOMNATOM SALIVERED THE OPINION OF THE couRT, 


Thies is an appenl by she Yellow Cab Company, the 
Gefendant, from a juiguent on tho verdict of a jury in the cum 
ef $200 in an action brought by Aaron Aukn, the plaintiff, to 
recever the cost of repodring om autemebile, which, the pleintiffy 
Alleges, was owned by Kim ond which he allegea wes damaged in a 
eeliision with em autemebile mmed by the defendant. 

Ia ite affedavit of merits the dufendent everred 
epecifically that the pleimtiff was not the owner of the automobile. 

Gimee we are of the opinion that the prepomderance of the 
evidence shows thet the plaintiff was not the owner ef the automobile, 
it will not be necesoury to state or to discuss the ovidenee in 
relation to the queetion ef negligence. 

At the time of the sovident the automobile which is 
Slleged to have been owned by the plointiff, wae driven by a 
chauffeur named Dwight Semich; ani the occupants of the sutomodile 
| were Car] Yeil, the son-in-law of the plaintiff, and ‘eil's wife, 
the daughter of the plaintiff, Weil and his wife had gone to the 
theatre in the sutemobile.  fter their return from the theatre, 
the chauffeur took the nursemaid te her home in the «utomobile. 
“hen the chauffeur wan returning from the home ef the nursemaid 
om his way to the garage the scceident occurred. The state 


‘shan th Me a 


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oho 

license for the sutomobile was in the name of Yell. The repairs 
were paid for by Teil. Wo bill fer repairs woe ever rendered 

to the plaintiff. Bemieh testified thet he wae wired by the 
plaimtiff to work for him, and that ®efl asd his wife ware procent 
at the time. Bemish also testified that at the time the plaintiry 
hirea him, she plaintiff gave him “the keys“ ond teld him the 
sutomebile was 2% the ‘ilierd Garage. 

Z. Ss “Gimh, the driver of the defendant's automobile, 
teetified that after the coliision he ssked Semish for the nome 
of the owner of the sutomobile thet Mewish rae driving, and that 
Bemich gave bim the meme “ofl. in hie testiuony Bemiek admitted 
thet he told Gnleh thot ‘e112 wan the auner off the automebiie. 
There ia no tevtimeny «whatever cx te vhe poid Bemish for hin sere 
vices. he plaintiff dic mot tectify. Be wes in Sermany at the 
tine of the trial, 

Counsel for the plointiff contend thal th: ovidence is 
sufficient te show that the plaintiff wae either the ownar of the 
automedile or wae a Wailese lawfully in peceeasion ef the automobiles 
We do not think thst either sentention is correct. As wo interpret 
the evidence, the plaintiff was neither the owner of the automobile 
nor a bailee lawfully in poxseersion of the sntomobile. 

Yor the rensons atated the Judgment ic reversed and the 


Cause remanded. 
BEVERHED AMD BUMARDIED. 


Neturely, $s Je, amd Matohett, Jo, conours 





298 = 31430 


WORERT EB, HICKS, 
Appellant, 
ie APPEAL ¥RCK SUPERIOR CovRT 


WRIGHTSTILi. FOODS, &. 7. 

HeCARTHY, HARRY &. ALEXANDER, 

JOSEPH HAGH and WALTER b, NANRIS, 
- Appellece, 


OF COOK COUNTY, 


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Fe “i “t ZLeolle UD) & 6 
BR, JUSTICR TWHRSTON WELIVRRED TH4 OPINION OF THe COURT. 


Thie ie an appeal by Robert BE. Hicks, the plaintiff, 
from a Judgment againet hin in an aetion ef trespass on the ease, 
brought by him against Yeightatill Foods, &. 7. HeGarthy, Harry G. 
Alexander, Joseph Nagn and Yalter 5, Harrie, the defendants, to 
recover damages allege’ ta have been sustained as the reenlt of 
wrong?ul acts committed by tie defendants in psurauance ef an 
walavful conspiracy. 

The defendant Harrie was net served with summons and 
4id not enter his appearance, The sase proceeded only as to the 
other defendants. 

To the declaration of the plaimtirr, ae smended, the 
defendonta filed a general demurrer, ‘he court overeruled the 
demurrer, and the defendants filled a plea of the general tesue and 
a special plea. The plaintiff filed a general desurrer te the 
especial plea, The court overeruled the plaintiff's dewarrer te 
the speoial plea, The plaintiff’ eleeted to stand by the denurrer, 
and the court entered fudgmont in faver ef the éefaniante. 

The substance of the asended deelaration, as stated by 
eounsel for the plaintiff, ie as follows: 

"Taunt in Decesber, 1022, and for a long time prier thereto, 
the Robert &, Hicks Cornoration, au Illinois eorveration, having 
@ capitel stock ef $10,060.00, of which $7,450.60 was terued and 
outstanding, was engaged in the business of publisalng & maga- 
sine which had a large circulation; that many persons, firus and 
eo ations advertised in said aegurine; that eaid corperation 

ved great gaine and profite from the sale of said magarine 
and for advertieemente publisied therein; that the principal 


Place of business of said corporation was at South Whitley, 
Indians; that said corporation was prosperous and solvent, 





“i asa eo ae 
eam ey 4 





"That the charter of sata aorperation provid : 
directors; that the plaintitfr oened 631 sh Soturiny akuee 
2 shares, Alexander owned 61 shares and Joweph Magn owned 20 
shares of the capital stoek, and that all ef sald steckholéers 
were direstere; that olaintise was the president, Hagm the vice. 
president and Alexander the treasurer; that plaintirf was the 
editer of asid magazine and manager of the business ef the 
eorporation and had @xelusive charge of ali of its af'faire: 
that hie salary for 1922 and 1022 was fixed at the sum of 
rire. per a 

at said delarthy head been the seeretary of eaid cor 
tion; that in dareh, 1922, he reaignet an nish weakdhary wan hs 
resignation vas acveptied and thereupon he e¢azed to act as such 
seeretary; that said Alexander had been empleyed by sald corpoma 
tion and had worked under the direction of the plaintiff; that 
im June, 192%, sald Alemanier quit hie said employnent and 
thereuven ceased to work for said corporation. 

"That the term of office ef all of the directors ana offi- 
eere expired om the firet Tuesday in Pevruary, 1922; that ne 
direetorse or officers were then alected; toat they all held 
ever wntil their euscessore should be slected and ghould guabify. 

"That during the entire poried that defeniants koCarthy, 
Alexander and Magn were directors or afficers of said corpora. 
tion, they 414 not take any active part in the management of 
the affairs of esi4 correration, but with their consent the 
Plaintiff had exclusive charge thereof an¢ of sll persone doing 
business “ith antd esrooration knew that platntiff ued long 
been ite president and general manager and the editer of eaid 
magazine, and hie cemneetion wlth sai4 eorseration was of grout 
value to said corporation and to himsriff; that all persons deale 
ing with eaid corceration traneacted their bueiness with olnaine 
tiff, and #11 remittandes were wade to anid corporation at 
South Whitley, and were deposited in banks there, and ell of 
ite business wae trenesctet an@ eli of tt@ beoks of aeeount 
Felating to ite said business were kept at South Yhitley; that 
none of the defendants, except Alsxandeb, at any time hed any- 
thing te ¢@o with the wmanagenait of said ousineas and mene of 
them was known in connection therewith. 

*Tiat in November, 1922, the defendant Harries, through the 
efferte of said Yooda ond Alexander, purchased eleven sharee of 
the esteck owaed by Alexander, net for an investment, but Tor 
apeculative purposes, and with @ view to eelling the smn to 
plaintiff at a price in excess of the amount he paid therefor 
and in excess of its value; that all of the detendante were 
desirous of welling their stock; that there was no market 
therefor and they requested plaintiff to purckuse the same and 
he refused to dv oo; that thereupon defendants McCarthy, 
Alexander and Hagn employe? the defendant Woods, who was a 
Lawyer practicing in Chicage and had been and was then acting 
as attorney for a persen “uo was plaintiff in certain auite 
goin wt 4 sorporation, to assist them in making sueh sale to 

aintifrf. 

"That before he wae reseved an president of maid corpera- 
tion as hereinafter allege?, the plaintiff ee sueh president 
Called a special meeting of the stockholders to be held on 
Decenber 30, 199%, for the purpose of electing direstors to 
eucoeed thoes whose terme of office had expired and those whe 
had become disqualified. , 

"That the defendants Srautulently an’ wickedly conspired 
and eonclused together “or the purpose of cosrcing or inducing 
the plaintiff, agsinet hie i131, te purchase endd stock so 
Owned by them at a price largely im excess of the actual value 





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theresf; that in purmvance ef euch conspiracy said defendants 
@aliciously, vilfully and »rongfully committed the following 
evert scte: 

"{3}) ‘They agreed with each other that sefther would 
gall his steck vithout the consent of the otters am¢ that all 
of it shewl4 te descaited ~ith aid held by Yuoeds subieet te 
their joint order, an¢ that neltver would oe1] bia eteek te 
Plaintiff wilesa plaintiz’ purchased the steck ef the ethers; 
that the three defendants “he constituted a majerity ef the 
beard of direstors of wai eorseration *ould seeume contre] of 
ite affairs and cust plaintizY frem the management thereof, 
notify all employees, creditors, banks and ether pereens deai~- 
ing with sald cerserstion of euch changes in its managewent, 
and etherwice interfere vite the affuire of said corporation 
and vex and harfass plaintiif se that he would thereby be 
coerced 264 induced te purchase eald ateek of the defentants, 
and that they at ence entered upon the serferusnece of said 

ement. 

"(2) They delivered said stock te said Woods and he ree 
tained possession theresl. 

se 3. BRetarthy seeumei the effies of seeretary and seted 
as such; the defendants whe were direetor@ end of fivers of eaid 
corperation eslled mestings of the ‘ireuters and at auch meet- 
ings they removed olaimtiff ae prasicent, elected Sarris a die 
rector, employed Yoods ae attorney for said corporation, es- 
tablished the office of the corseration at Yoods' office, de« 
manded ef plaintiff that he surrender te thes all the reeorde 
an4 beeke of the earcoration, reduce4 the selary of sieintiff 
ae etitor ef sai4 sagazine te 215060 fer 1992, after his ser- 
vices had been rendered’, directed thet the debhtere of sald core 
poration be notified te make payment to then at eaid new effice, 
that all banks ot South Whitiey art «11 empleyees an¢ other pere 
@one the had 4enit with eai? eorceration be notified of the said 
acts of the direetors; and im sil reepecte said defendants exer- 
cieed exelusive contrel sn4 menacenent of the affaires ef said 
corporation; an4 that they sent or caves’ to be sent all the 
notices abeve mentioned. 

"(4) After thay receivei notice of the epocial meeting of 
the stockholders ealied by the pisintiff as sforesaid, the deq 
fendants KeCarthy, Alexander, dagn and #ocde wits the knowledge 
and approval ef #214 Harris vrepsured umd filed a bill in the 
Cirevit ecurt ef Cook county, in whieh keCarthy, Alexander, 
Hagn and the said serperstion were ecmplainante; and asid Foods 
aeted as their soliciter, and the plaintiff and his proxies were 
memed as defendants; that said bill was verified by the affida- 
vit of Alexander, ond therein it was faiseiy alleged that the 
Plaintiff had, in many reepects detailed taertin, siemansged the 
business of the corporatien; bad cenverted its funde to hie own 
use; that he was indebted tc it in the sum ef $5000; that after 
his receval aa president he asd continued to ast as such; that 
the notice of the special meeting ef stockholders was without 
effiecial sanction and could not luvfuliy be held; that if the 
meeting should be held the plaintiff would remeve and seerete 
and 4iecipate the funds of the eorvoration; that he had resoved 
and @ecreted the bocks, records, property and effaire oF said 
eorveration; that by reason therenf the property, powers and 
fights of eai4 corporation were in danger of destruction and 
irreparatle lees would result to complaints and complainants 


prayed for an injunction, etc. 


——i a Oe 


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*(S}) The complainants in said bill ebtained as injunction 
as therein prayed, *ithout motiee ts the defendants therein, re- 
straining the kelding of said eteekholders meeting, and reatrain- 
ing the plaintiff frem interfering with the wanagesemt of the 
business of the corporation, #t¢., atid caused it te be served 
en the defendants nasied im the bili, 

(6) ‘the 4efendent Sarrie, with the knowledge, anproval 
and consent ef the other defendants herein, caused te be pre- 
pared ané filed in said cause an intervening petition agatast 
all of the parties te the original bill, wherein it was falsely 
@lleged that the plaintirf had been guilty of missanagenent, 
@igheresty and corraption, substantialiy es charged in said 
eriginal bill, and orayed for the eepeinteent of 4 raceiver 
and that the affaire of the ecrperntion be wound wo an¢ the 
eorperation 4isesived. 

' #07) The defendant Ycots thereuven prepared and filed 
the anewer of YcCsrthy, Alexander, “aegn and suid serpsration te 
sai4 intervening geetition, in and ts which anewer it was admit 
ted that all of the aliegations of said petition were true and 
that a receiver shovwl4d be apoointe? for the cormeration and ite 
Business wound wp ant the cerperation 4isasived. 

®It is further alleged in anid amended declaration that all 
ef eaid allegations made in #214 bill and petition were false amd 
that the defeniamte knew them te be faise; that Weods oretended 
to te acting im the interesia of suid sorperation, wheress in fact 
he represented only said KeCartay, Alexander end Hagn; that said 
Gill, affidavit, petition and answer were filed and ssid injune- 
tion was erecured for the pursese ef enabling LoCartay to continue 
te act as seerstary, and KeUarthy, Alexander, Hagn and Harris to 
eentinue te act ac directors and efficers of sid cervoration, so 
that they might deectroy it and impair the lnvesteent ef the plain- 
tiff in ite eteck and continues te harass and vex hia in the manner 
aforesaid, an4 thereby cserce ané induce him to ourchase the, said 
ateck owned by defendant; that the said acte ef defendants: caused 
eenfusion in the affaira sf said correration, its empleyeea vere 
hampered in the discharge of their ‘uties, persons dealing with 
the corseration were thereby annoyed and said cerseration thereby 
suffered great joes in ite susiness; that said cause was referred 
to a aster in Chaneery and evidence wan introduced by the parties, 

“It is further alised in said amended declaration that all 
of sais acts ef the 4efentante vere committed in furtueranee of 
gaid wrongful eonesirscy on4 agreement, that as the reeult of asid 
sete of the defertants said plaintiff wae compeiled to ané 412 
said ateck and paid 87500 fer steek ef the face value of 

10; that thereupon «aid defendants ceased further te presecute 
gaid bill and intervening petition an? that they vere both dis- 
miese4 for want ef equity 284 the defenitants thereupon ceased te 
amney an4 vex the pisintiffT. 

"That by means of which several premises the plaintiff has 
been injured and has sustained jassces, the business and eredit 
ef the esreeration vase impaired and thereby plaintiff sustained 
damages ag s stockholder an¢ as an officer and «spleyee of said 
gpg ea te the damage of the plaintiff in the eum ef 

000.00, 


The special plea of the defendants is ae folieve:. 


"ana for a further plea in this behalf the defendants, 
Weightstill Yoods, &. J. kcCarthy, Harry 3, Alexander and Jeseph 
Hegn, say the plaintiff ought not to have his aforesaid aetion 


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bia apet evew aaitiseq Ales Re seeltepadia wt te. ee ee 
a¢i Bas mek fatectag wit tet hetatecas od Sd acts fg ederenginrte eae 
bas tenndh oubtasaes Oo _ Rap qe Armee Ee 






















shee pam atey grees fae. ‘ iid bles ad errs 7 sod aye Efe hina 
hove sexe whoo! gadd p9edect od, ft secs ‘eect tambon Dah eee 2 


tect 2h enasea (ptei tex anu bine ie efse: adak oie cart nating a Dey 


bites @228 games int tetuoweds..piiseved ttee ghee sedis 23 Ges, Be 
~wmital bdee San bella etew gevens rae sods idoq <davabs sVie .ffia, 
analfaes of vdtueted gauiicase te scecury eae xoi. botgeesg: prea et 
Pu aire feo. ayell .ceinemeda ywisiales ban , tiadawees Ba. 
hee) keds 5s ROTTS teen ax-eseenl om: SOAP § i 
alana 83 ke fapainevnl ayit. zlegud dun 424 yoreook berger: ae 
team 262 af mbti nor Bee gan a? smuliaee nan deeds e382 at Whe 
dia’ cell gtaiexu: oo whi eevbel ban eetees Yeread bus ,dlsesteta 
BAG iSee tn ult bisa wi? ¢ads j{enehae ted eA heave aaete. 
eter. ARS YO Be efi , sph taxadeas Abies to 2xte Yin o0f al valsueaee 
a Se Getiions® eaomeeg , weigh sigs to epresivg Sb OFS aL a 
intedt aeiiavernes Stes tux heceaas qdeieds evau aeliewertes | 
locas tee gate ones biee ¢edd geeeeies aff ak eeep teers betes tives 
ositteg edd ed Seeutws? ai see seneiiee fae aonanenl ai tetec4d « af 
ide teeiz acisate ine Sedesos bea at Hegiis- poser rae ows SP asn8t 
%. ssusterdue! af fatdiexce eter sfaehentet afd te aise bier : 7 
Blas to éfveet 83 an gad? ,dopaecige fae gee theese Lot .) a 
bid hage of Saitngaes ace. gee bise ataphastep ef? te atew 
"te auicr. seat «xt te. sande-ons qnavt ateq tae spate flew - eon ag 
eiuneearg of tadéiet feanee soamone lei bina anquwtedés Jadh 2G. 
sth ated etme <eds fac Mae seit toe: gael owen deed: ae 14h B 
ot teanea smoquerindtt cdarharieh o%, ba Eetepe Te gaa anh be 
. -Mteetetea ect mew & <a 
east mr toate ke out ane baer Soruvres: tndsie “ie ane yd SackS* 
Sthet b02 ceenieg! af? .eoanunt Aeadetewe ead baa. do k stsed 
teningeus Vittainle gdeies? jee betiagal oa pelgotectas add - 
shan: te ewyetae: bas. Sudcle nit ts <a ne eee 
re ee ee ee ee 


















i pee ae ee 


* aawecio’.. ae ad ntaabas tem ois. a ae lane a fae ee 






_ 9 gitinbassh exte Riadeg. tae ab asia = ; 
meet bas tehsareia i 
/ qeiten Bhenetete eit ered oe Sad 


against them, the ssi4 defenianta, or any of them, teeavee, 

gay, that 46 several suppesed causes of action mentioned 
im sald amended declaration were duly released, satisfied and 
@ischarged by the deerse in ait injumetion suit, mentioned in 
@ai4 declaration, wich decree orovided that ali and every lia- 
bility upon the injunction bend given in exid injunction auit 
ia eased, satiefied and discharged, the pertinent paragragh 
of said deeree being as follewe: ‘and it is further ordered 
that the bond approved Gecexber 3¢, 192%, be eamoeciled and all 
Liabilities thereunder be discharget. Ira Ryner, Judge;' and 
this the said defendants are ready te verify; 

“Gherefore they pray juizment if the plaintiff ought te 
have hie aforesaid sation sagsinat thee, ete.* 

it ie the eomtantiecn sf sownael for the nlaintiff thet 
the special plea of the defendante is inaufficient in that it "pur- 
ports te suswer the whois d«claretion, whereas 11 appears from an 
imepeation of the plea that it attempts to answer only one of the 
geven overt acts of the defentant consuiraters, vis: tne filings 
of the ©1233, the procuring of the infunetion and esucsing the ine 
Junction te be served;* that “sll the esther wrongful sets ef the 
4efendente set forth in the Aeelaration, viz: the wrongful agree= 
ment, the delivery ef the stcek te Feods, the wrongful and illegal 
aets of the defendants aa directors and officers, the filing ef the 
imtervening petition ané the filing ef the anewer of the corperae 
tion to the petition, ressin unanerered.* 

Gouneeli for the 4efendeante maintain thet the ¢eciara- 
tiem of the plaintiff does sot state 4 cause of avtion; that “the 
emly act, which wider any theory, could be claimed te be a cause of 
action, was the injusotion srecesding;” and that whatever liability 
that might have resulted fro= that sereceeding was discharged by the 
order which, as alleged in the special ples, cancelled the imjunetion 
bond and discharged “all liabilities thereuncer;* that furthermore, 
in ne event ean the plaintiff preserly contend that the defendants 
comaittes seven wrongful acts, eines four ef the acts alleged by 
cowneel fer the plaintiff te be wrongful, namely (a) the filing of 
the till ix the injunction creeecdting, {b) the obtaining ef the ine 


Junction, {¢e) the filing eof the intervering petition in the injunction 





bee got eg “aaaaior 

ai Sens iesen- sone 

«ait ‘yteve fe. “656° > babavoss ae stools siekete 

shee Boktocrtad idee at ayvig geod ad 
cg Imenigise off bog. id 

ge dobro SET i? i evade iad alee sotoes 


(Ae Ae ome ine sovaee oP stqmton st ot ca 2 : 
| cae Saale 


g —s 5 tetacowe ate pante , aah dorcetese esis nt ar rp: ee 
| tage kha tae kita nde “eee at ie: waa vee Betas. Te: : — Re 
= ane to gaa sae ewtae rte ‘tg exeteet2® se adanh oh = oat ws 


erate to mown eae: 3o gah eam mad stbed a 
a. ( Seseweanas stance aatedion 4 






ieee Bee tes aig a a ae 
He? taste jaotton Yo wees = siege tas coon abtaaty at Ye 


Re senae & 8 Pa bontede of ieee bain eteeatce "y : 2 
ost ¢6 begtedentd aor suthoosert jaas , net Sateen » 


a eoveiics seh Snag B85 - ; 
soitooctal | ats be Leones sabe Aotonge eile at kepedt = anianamace : 


ae ¥. Ree. 








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proceeding, (4) the anever te the intervening petition, @id net con- 
stitute separate sete but were merely parts of one act, namely, the 
infarction preeseetineg. 

The Firat ausation te be determined ia tke question 
Whether the 4Aselaration states a eaurse of aetion, 

feumes! for the elaintiff comtandte that the 4efencantea 
Raye Waive! tust auesticn by pleating ever after their ¢eaurrer te 
the declaration was cvereruied} that in euch enee the plaintiff's 
demurrer te the 46fendants* epecial plea camnet ke vearriea back to 
the declaration. In wepoert of his centention coumeel celiter the 
Teliewing cases: phe Fecsie, «10 133. 84; Fish v, #arvell, 
186 Thi. 236; Stearns 169 Ili. 346; Carieon v. The Peovls, 
118 Til. Apo. 802; 











The rule steted by counsel for the plaintiff ia unques- 
tiomatly correct. Eut it ix alte the ruie that if the declaration is 
ao fefective aa net te suscert the fucdgment, the question ef the suf- 
ficteney ef the declaratien may be cancitered, eren after a dewurrer 


to the declaration has teen svereralie4 ant ths warty demurring has 





Dees the 4eclaration siate » esuse of actien? 


Counsel for the plaintiff states exslicitiy in his brief 
that the setion “ie met fer libel, sor fer malicious preseottion;* 
that “it is an setion on the ease te recever damagen sustained by 
the plaintiff as the result of wrengful acts committed by the de- 
fendents in pursuance ef or unlawful combination er conepiracy.” 

According te the well settied rule (Sidred vy. Ripley, 
97 Ill. App. 805, 908) the action coul4 not be maintained by the 
Plaintiff in his own behalf against the 4efen4ants, on the ground 









-aec toa bbb. aoidiveg yalmewsndal ode at Temeem, ont 4h) mhhoone 
er Saas 
2 ode chomem tee +0 + ated vivre oe bool ate sete» Hse 


oe 






wae ca ae ue ‘ 
“pakzenue cd pt poate 290 « at naddonwn or i 









eee He Boss 


Ht : ae eo .: papenetion +g ee 
atnehastat eft 3. re tees ee . 


Lee. retreats ateds San’ ere ‘pbibatin “ ‘ a as as 
a Witaakele sof same doen ol sag? jhetet~Tee9 | 
ee sand babrane 9g aeanes aoe ieiseqs 'esanoeets 

at anthe beacees Maks nes e908 ke. We. pa 


























“ah gataemees Prana Seca. ah 
ehh 9tet obs se 5 


_tandiien, 26. anne, = hana, EH UALS: 
=) 4 atdab aman sodin X2EAabALn i ‘lh animal state asi 
ie 20 2on gfedht wr dom at* a id tes 
poet of mame, agit aaa. cdl 


that the acts of the defendant ave injured the corporation, unless 
the directere of the corne¢ration hsd refused te bring an agtien. 
and there is no allegation in the declaration of any euch refusal 
ty the directors, 

the Pole is eli s#teblished that at ecmmen law in a 
eivil section of conssirsey, the consciracy of itwelf does net cone 
etitute = eause of actios; that wnlese the eonapiraters commit sets 
Whieh result in damage, me civil action will lie; that the gist of 
the esuse of action is the damege and aet the conepiracy. Deremys 
Ms Hemmensy, 176 111. G8, 614; Lasher wv. Littei2, 202 Til. 882, 
ete, 144 11. App. 164, 107; Hartin ¥. Lesiie, 





93 i111. Anp. 44, 45. 

Tae preeize question then te be decided is ehether the 
@eelaration alleges thai in pursuance ef a conepiracy the defendants 
eomeitted any wrongful set ehich resulted im damage to the plaintiff. 

The object of tie cmeapiracy 8 slisged in the declara- 
tion eas te eceree or induce the plaintiff against his will te pul 
chase the stock of the 4efendantse “at ea priee lareely in excese ef 
the setual value thereof.* fhe declaration alleges that the plain- 
tiff was compelled te puresan« the stock, but the declaration dees 
met aver tant the price that the plaintiff? sald fer the steck vas 
largely in excess ef the actual value ef the enh, er that it was 
im emeess ef the eetual value of the stock, or that 1t was net the 
actual value of the atcock. ‘The ebjcet of tne conspiracy, therefore, 
Was net accomplished. 

Tae first specifie acte of the defendante thich counsel 
fer the plaintiff contends were vrongful acte committed in pursusnce 
of the conspiracy are the acts alleged in paragraph (1) of the 
summary of the declaration made by counsel fer the plaintiff, mma 
set out above in our epinien, The gist of tne paragraph ia that the 
defendants agreed with each other te sell their steck te the pisintiff 








| mA I 


— eetan csatsaxocine wilt Romubak ovsd tanboetan adi ie wh 
(—— tett0a ae nan ot tenetox best aaldatortoe Seif 16 | 





ne Side tee eee Ee re Te en ee ee ee 


ihe ieee ge tae 


: ; Bose tas Se kts, 


rudatete ons a coed ab febionss deise ten BG ta 
= neue toed os at ‘begs Lie ee epattenees odt Yo pores wae "900% iin 






meee 


se - Stke odd somtans Wiitainte wad ‘aeckak ‘we ‘Vaws 4 | 
Ye ansoas on at qleptar welte e Ro ‘wtiaat soon cal 3 | Nene, 
nates nid fest : ated press sa oar mene ~ ses | 








. 
1 
! 
be 
h 


Ss hes oe Yee ie 


ae ieee C0 rm Pe 


ee Se iN cas eh, ‘ D wre be t ~ ep a 9 fy PEE. 
PRESSE ee sae oh Baa ee, 





oniy ae awit, it is not alleged, hovever, that the defendants 
agresé with each other to seil their esteesk te the plaintiff at a 
price in excess of ite value, mor ie it allessd that the defends 
ante agreed with each other that they would sell their stock only 
toe the pleintiff and net to any one alee. Yhe mere agreesent on the 
part of the defendants to #¢11 thelr etowk as a woit war net unis 
fal. In eur epiniean the sete clieged im paragraph (1) do net cone 
stitute oa: acticnable wrong seainet the slaintifr. 

The @@livery of the ates: te Woods, se alleged in 
paragraph (2), 4i¢4 not, in our view, amount te an actionable wrong 
agsinet the plaintiff. 

the asmwaption of the effiee of seeretary by EeCarthy 
after he resigned, s5 alleged in paragrach (3), doen not sonstitute 
ah actionabic wrong agsinet the plaintiff, in our opinion. The 
@eclaratien dos not allege that « sueseaser to keCarthy was ever 
eppeinted. He was net therefere usursing the plaee of a lawfully 
elected secretary. Purthersore, the acts of the directors, se al- 
leged in paragraph (3), are not sllege¢ to have been wlawful or 
wujustified, There are ne sverments thai the direotores meetings 
were net lerwfully bel¢; nor thet the directors unlawfully exercised 
@xelusive contre] and manage ant of the affaire of the serperation, 

It ia eontended by couneel fer the vlaintiff that while 
an act done by an individual) may net be unlart'ul, yet the same act 
when committed by a combination of individuals may constitute an 
actionable wrong, It is true that there may be cases in which the 
facts would justify the application of such a rule. Kewp vy, 
Bivision Bo, 242, 255 111. 715, 223; Fxrankiin Union v. The People, 
220 Tll. 355, 376, 377. Ye 40 not think, however, that the sects 
alleged in the deciaraticn in the case at ber are such that, sitroud 
Mot wrongful when done by am individuel, they become actionable 
Wrongs because of being done by a combination of individusis. 








‘) "t-te ie Pee ee oe 0. ee oe, are 
i =e d Ua gh 
ie 









seater « ins laced srorowod — toa oe a : Reger * 


araemtese » ad? tutes aoe aa om 





es ae 


aor otiedotso: ax oF twee way “we at fon 


> Spare “= <= 



















eee ce no ae 


beetotexe Eine toe Sp wet sess xen ome ae : 
aatseneetoe as te existe eae ae tee ogame fd pnionaiy 
okie sais Ttatete ait as fowasan we tshen teen a2 3% 





ees) a o St cee ad “i be gig 





t ae yd | 
asso bee ke 


“mt advilianeo wo sieubinthat Y aettent ine « a xd 


ee ee ROeTe ae 


aoe oerens oer 









dal Pee 









Soaks eye a a Sotee oa 


Gis nt Pipe tay - see wh wee 4 


_ fomeT ie a ehoo® ot gots edt ts caevdion me eid a 


eae ee Spi ae * . ine wantin ae acon —— salook 
: : : ere td “Ce ae 






















ee ee 2 es = 





§ 


al 


The allegations in paragraphs (4), (5), (6) and (7) 
im our opinion properly should net be vongidered as separate, ine 
fependent acte#, a8 @suneel for the plsintiff sentenas, In our 
view, these acts aii reiate te the injunction suit and, in effeet, 
econetitute ene set. “hether these acts constitute an agtionable 
wrong, it is net neerecary te decide, ae in our opinion, aseuing 
for the sake of argunent thet they were unlawful, the seectel slea 
ef the 4efendants is 2 sufficient defense. 

Couneai for the plieintiff contends taet it is net ale 
legged in the special plea, exeept infsrentialliy, teat aay bend wae 
given on obtaining the injunction, *s de nat think the centention 
is correct. Im our wiew it apesare direetly free the reeltel of 
the part of the 4eares, quoted in the epecial plea, that a bond was 
give in the injunction srogeeding. ) 

Cowunse: For the elainéiff further contends that the 
averment in the especial ples that the ennse ef action vas released, 
satisfied and 4ieeharged by the deeree in the injunction proeeedq 
img, ie a coneslusien ef law, Fe do not think thet this contention 
is correct. The special plea apecifically quotes the deeree as 
orderisg that all Liabilities under the bond be disaherged. 

Yer the reacens stated the judgment of Bae trial sourt 
is affirued, 

A¥Y?PIRNES. 


EeSurely, FP. J., aid Eatehett, J., concur. 



















me ak 
storie 2 tae fue moldomtat ond ov o@aten Tia tne 
! aidenei tee a out i¢eteu ates seast Tekteee 
“ gutmense ysofadge suo at oa ahtosd of ‘ 
ot Rete a ente ee oH tect 





oie ton etait test etna tien vultataty nets py ima. 


all smo ee tet pelle tacmee'tat Senamn panty tela 
eters asg deh fea of «fF a6 ldnactet ot aii & a 





ea. 





st tes ohamemae merset enema oat 


ee Sh, 








cinate ot = we ot 


hu ane 







wie ost cpbae reaped 


Pe Rk eee ee n * Bs Me 
ae a a oe ae 23 * sre ~ v 2 


fee gue mes fee sR SS ae ee Me 
ees ites qe aia nts thak Ye agtaecd ts aie ae ba sams, pape iA 
REZ SHB? couse at wet mre ad ane, iP Se : : 
SiS yee Sh PRESS - S Ritredice as Ye 


ms a Rae we ie ilk is 
: SIRO. DE pttok SE Ie Eo Sd = a a awe tail 







SP wise Seenst Sei hdicichais ebb S ica ea cane 


Pigicn 


ar ee Oe Fe atin “aaa a social el ey met ata 


ora 


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; aisha 
4 








che mS vidio as —— 


320 <- 31452 


@ILLIAM De MURDOCK, ) 
Appellant, ) A#PRAL PROM 
Ve } CIRCUIT COURT, 
; F 
BELLE VIMALALE et ale, COGK COUNTY. 
Appellees. } : ii 


" tite -, 4 
_ Gp f / Cw tea: 
a p f a ‘Ss § raf 
Fa H i b- » f 
rus! 7 Tr #t eLlhe J & 


MR. JUSTICE JOMNSTOM OLLIVERED THE OFINION OF THE SovURT. 


This is an appeal by Yilliam &. Murdeck, the plaintirr, 
from an order cigsmissing am action brought by him on a promissory 
note of the defendants on which » judgment by confession was 
entered, and subsequently vacated. 

On motion of the defendants the judgment was vacated. 
The plaintiff declined to proceed further in the cause ond the 
court diemiseed the action. 

Bo bill ef exceptions has been filed in the cause. In 
the record proper an affidavit of the defendants in support of 
their motion to vaects the judgment is set out, and aleo twe 
eounter affidavite of the plaintiff in opposition te the motion. 
None of these affidavits however, cam be considered ae they are. 
not properly preserved for review. They could be mde part of 
the record only by being embodied in a bili of exceptions. 
Thompson v. Chieage City Ry» Co+, 205 Lil» \ppe 471, 4725 
Tindall v» Chieage & Northwestern Ry» Co-, 200 Ill+ Apps 587» 
560, 561. 

Purthermore the counter «affidavits of the pleintiff, 
which controverted the defense of the defendants, properly 
could not be considered on the defendants’ motion to vseate the 





wile Laas 4 
| sited arvois ; 
| “cea ce nxig ) 
| |FREa mw EDO MF SA EAMG A J 
soa Rehtmtada eine eBLER eS Kaogan mn ab eds | beans 


aatnent baal mie al Seigared motton as phasing) 





abateoae anv Smommdst, wild ataahneted pry no. hten, 5 peeing ; 
Ce eee OD SA 





— same te ai 6OLEY aeoe ait samleenne 0: £54 OR! Per 
“te pmoggie at adinehes'voh wt Lo stvabktiw ae xogete bab: ; 

* We clan. Dir aut t06 Gt vitamin; Hee etnndet eo tara as 
smonie ont of Wh2eivogyo at Titehiarg sity te srhvabn ves: tettioe 
pts yi’ ea detebtemes ou mad pcowewe adtynbitte exade Yo eek 


ee ee ee a a ee ae 
‘ iy 








to sumq ghar od Siwee yat? .welves t0% novroaemy efragerd bon 
andhiquone Te LLid » at hetsedae yaied ye vino brese ed? 
AE GEM A OR OR +7929 TARO ene 0 ay osumedT 


a eee ae ee 





— hbO 008 

eWRtsmbele edt Ye otbvantvie wedmos oy srossedtiutt is 
yhiag ong vadartastod mid Ye ¢eneted wkd berevenseee dele 

ot? otenny eo molicm ana e AAete ete Oe 


| 





“20 


judgment. Gilchrist Tranaportation Co» v» Northern Grain Ger, 
204 Ills 619, 5135 Kioepher v. Osborm, 177 Ill. Apps 394, 393. 

in the absence of a b111 of exceptiona the question 
whether the court erred in vacating the judgment cannot be 
reviewed. 

We do mot think that the court erred in dicmissing 
the action after the plsintiff declined to proceed. Brown v» 
Atwood, 200 Ill. Appe 210, 215. 

Por the re«sone steted tha judgment is affirmed. 

AYP TRIED « 


MeSurely, Pe Joy and Matehett, J., concur. 














agi 


4, ae ey 


al Ye RRR 















BA ms 
Ne Ne NS ay Aa 4 
Ee ys eS ss Sy iueg 


em anes H ees “Bee aoa Oe Rye ag 
é $usieednns BUR ee ren Sak eae ashen Bhi) ae ti: ai tea rd SORE Ae ose He 
en Mee 





ay a Ee on SHRI Cee BS TS CE CW eer ND POMONA a yes ber AN TY Ema 
a, ok hE a eo Rikmiatguas” agi Spat deans aR i Rae eee ae eS 





wee mae iat 





eS a 











nti renee Sh) AREY ao) OR Odie yeah Ht Nate 


HE EN Ce ee ee Ca eee 
= PRG raat «bee e 





hnanioni awn! ‘Kee aobbviviak hee Bawiciieh Ok — 
, eobprg outa va bah 
wait ‘Apdo 98 a ape ena . 





~s 


372 — 31504 
TYTUS KOCHAP SEL, } 
Assellee, 
APPEAL PRON BORICIPAL coma 
wR. } 
OY SHIGAGS®. 
PORY PLANTS and AERA PLASTZ, } 
Aeeeliante, } 


GS 


eS # 


ott, 


i 
s 4 a © 


BR, JUSTIGH JOMNETOR BELIVSRED THE GPINIGH OF THE sotmr, 


this if am appeal by Tony Plantz and Anns Plants, 
the defendants, from « judsnent ef $900 against thee in an action 
brought by Tytua Kochucski, thie plaintiff, te recover damages from 
the defendants for an alieged refusel of the defendants te perform 
their part eof a written sentract fer the purchase of sroperty 
frex the pliaintifr, 

The subsiance cf the affidavit of merite af the 4ee- 
fendente is that they were intucet ta szenute the sentract through 
the frau4 of the pisintiff; that the ¢itle ts the property was not 
@xasined ty their atterney; that a dst© fas ont ast te close the 
@eel; that a2 sson as they beeame aware ef the fravtubent sets of 
the plaintiff they resecindet the contract and eetified the plain- 
tiff of the reseieion; that the picintiff nas sustsinet no damages 
by reason ef the alleged failure ef the deferdants te carry eut 
the contract. 

Three witnesves testified on behalf of the plaintiff. 
The defendants intredueed ne evidence to eupsert the allegations 
ef their affidavit of merits. 

The substance of the evidence is that Antheny Kytye 
aeted ae a real estate broker far the plaintiffs, and that the 
plaintirr pata him 3200 28 «a commission for precuring the defend- 
ants as purchasers; that the plaintiff and the defen¢ants met in 
the offiee of Eytys an¢ entere4t into a written sentract, in which 




















ar re ‘ete cant aes © iiss ie 


i Sate ahs Goole ts arta 6 sar 


“9¢ a NTN } “Ke | 
| Ed Sey fe eoraree may easy i ne ae" 
E staal weiM Bae wT 


fetien ax ak mais senteye GOTE Te ein laa bee 
(eee angen even Ee \PEalaty sat , Haaitioel shal 
ka mtetasg af efensieteh vale to Leav'ten Sepeite ae set atnebanke 
ee ‘ghteqoie to sasiorye sf? itt toettaso meadive o Te . ; 





. “ah ort te etiam re stent tte 24% Ye countedee et 
sigsrotsid fomrtane ait stunske at tanwhot etow yond sant we ts 
| aon anw ydtsqote em? ef ef2i) iad Patt ‘?Tikataly este *. ® 
ee ot tes Sen wae ora e dealt rwarodte 7 











oad tastt bas jessie en ai ate 
A A ST ae or 
: at tem RomNestOs art Kae fotete aay 
anti at sfanraaoy sett ber aera nt Be od. 











the defendants agreed to purchase certain orocerty from the plaine 
tiff; that the contract reeites that the defendants hat pald $800 
as @¢arnest woney; that a day wae fixed on whieh te oleee the 
deals that the plinintiff employed an attorney whe bad the abe 

. stract of the property breught down te Aate and whe examined the 
title to the property at the request of the dofen‘ant Tony Plante; 
that im the opinion of the attorney the sitle was good with the 
exeeption of s judgwent against « party of the same name ae the 
Plaintisf; that ae to this objection, the stiomey etated that it 
could be obviated by on affidavit by tie plaintiff; that the plaime 
tiff and the defendants met in the office of the attorney to come 
Surmate the sale of the property; that the defeniant Tony Plants 
left the effies, stating that he waa golng out to get "the money® 
from “some many" that he 414 net return; that subsequently when he 
war asiied what he intended te 4o about the d@al, he stated that he 
4i4 met care te ge through with it. 

I@ ie contended by eounsel for the defondunte thet the 
Plaintiff’e etatewent of claim dees net allege that a deed was ready 
for delivery, nor that the plaintiff was ready, able and willing 
to perform hie part ef the centraet; and geunsel further ecentends 
that the evidence does not show that any tender of performance was 
made by the plaintiff, nor that the paaintirs was ready, able and 
Willing to make a conveyance, 

in our opinion, none of these contentione Le sound, 
The statement eof claim alleges in effect that the defendants repudi- 
ated their contract and thereby rendered performance of the contract 
by the plisintiff iepessible. fTheee allegations are sufficient. 1% 
Corpus Juris, paragraph 346, p. 727. The evidence shows that the 
Plaintiff wae ready, shies and wiliing to perform his part of the 
contract, but that the defendante refused to carry out their part 
of the contract. 






wii sock bm me Wrretta ww an hhwreelbinen’ jaca a 
ost bomdnane heal tits ata Oe awreb vituuwes eneeore vend 


err wa itn ‘ails Rae eaeennyy putt tate, TT thioh aot 
ne seit winapi Sommraa hase HL meoneaeeonei : eg ot 







Paetar ee 
Sree SETS 


i ~1awaer bigs ate tant teers wh 1 eas cie mace 20 sa me 


a 





Gouneol fer the defendants further contends that the 
Mames of the plaintiff and hie wile appear in the body of the gone 
tract, but that the contract is eigned only by the plaintiff; thet 
the contract provides that the plaintir? and hie wife agreed te 
gonvey a good titie te the wroperty; thet unless the deed to the 
property was exeeuted by the wire oF the plaintiff, 14+ would be ine 
effactual to cenvey the inewate right of dower of the plaintiff's 
wife; that since the plaintiff's wife did net sign the contract, the 
plaintiff would be wnable to convey a complete title to the defendante 
The contention of counsel for the defentants presuppeses 
that beesuse the wife of the plaintiff 4i4 net sign the contract, 
ehe vould not slg the dee4 of eonveyance of the proverty, aid thaty 
therefore, the plaintiff could not convey a goo’ title, Pe de not 
think that the contention is sound, Gm the present racert the cone 


oe 


tract was ywnousstionably binding on tke plaintiff, even though his 
wife aid not sign it. Bretiing v. Hybl, 167 £21. App, 165,167,168, 
and we are of the opinion that, asnwalng for the pakke 
ef argument that by the terme of the contract the plaintiff wae 
obligated te give the defendante a deed aligned by Lin wile, it may 
be presumed from the evidense that he weuld havea been able to do gO. 
The evidence exews that the wife was present st all of the meetings 
of the parties, including the meeting on the day when the deal was 
to be conaummated. The only reasenable inferences, therefore, are 
that she wae ready and willing om her part to do whatever was 
necessary to give the defendants a goed title; an‘ that the purpose 
of her being present on the day the desl was to be consummated was 


te sign the deed of conveyance of the property jointly with her hute 


band, 
Ver the rvansuns state’ the Judgment is affirmed, 


AFPTRAED, 


MeSurely, P. J., and Metanett, J., concur. 













: wht tat abapt nop, spear, shambow tad Lind wot foncwed 


iS aaee ant te ehad eet at nage ottw alt So vittmlate oa 


: taxis prhheaiat@ wed we yktio bombo ef Seed ne ait teat tes ) 
i OF, Spats Whim, nih ban Tbr ate te ost sand aobiver pertd: 6 


at pt Qeeh qd samioy sade pyrmnong e's oF obet doog yf 

“tt wa. higox 24, Tiksateke eit to etiw amd gd neadianne oat: wrtoqot 

e' Yistale da ont te sewed to dtyis steotont nats worse at Lantoo ' 

asd gtawatcoy galt mpky tai bab @'tkw a eltataty oat —e bam 

— etawhaw'y) ody oF Lik saoigans a. seven, ae ofSne od, rae " ida cour: all 

soangquaary, wee tata wag sok ihe ahead Yo Rattant me nat te fe wes ve : : 

Pentiaee ach mye fon hth Yiksmtete alt Yo ek ont emma 

eta, Rite CARMTENG, O04 Yo onayerace Lo toot mt eae 8 toa | : Bo fal 
tom, ab,o8. 0kett howp.# Warnes ton higas Thttele la pin ‘ 
















wien, pad, 108 pakiw sags | tant pointy, se, 29, 9%, pa o 
mga TRA a Se, sities nad to mereed oat ik fee? 





nom, kas, os, asin, yas oh. suigoos ott, ge thotons — #3 
ote ete lo esd? men Ahan commer EM ee 









2 <- 30535 


MERPURT UB, SEARS et al., ) 
Bxreeuters, 
Defendants in Srrer, 
BRROR TO OIACGNIT cou? oF 


ve. 

COOK COMNTY, 

CITY OF CHICAGD, a Munisipal Lee 

Cerperation, AT A eee 
Plaintiff in Orrer, tt A ot ie Oe & 


BR, JUGTICN MATCHETT DELIVERED THE OPINION OF THE coUHT, 


the City of Chieago eued out this writ of errer te 
review a decree entered woon a bill for an seeounting. 

The deoree recites taat the cause was heard upen the 
bill of complaint and the answer of the defendant, ity of Chicago, 
af emended, ween replication to said onewer, "mud wpen the preafe, 
oral, documentary an¢ writion, taken ont filed in eaid cause, * 

The decree finds that on April 22, 191°, the dee 
fendant ty ite council paseed a certain ordinanes vacating certain 
streets end alleys in eertain property therein demeribed, and that 
said ordinanee provided: 

Vacation herein provides for is wade ween the express 
eondition that Francia Bartlett abali within alxty days after 
the paseage of thie Grdinenee pay to the City of Chicago the 
eum of $40,863.08 toward a fund for the paywent and eatiefae. 
tien of any and 01) claims for damages which may ariee from th e 
vacation of said streete ond alieya,”* 

It further finds that Hartiett made the payment of 
said sum pureuant te the ordinance; that the defendant accepted the 
same and agreed to held it ae o deposit to indemnify Leeks, /pree 
vided in the ordinance; that the five yeare within which suite for 
famages reeulting frem the cloging of the streats and alleye could 
be brought against the defendant mad expired, and that the defendant 
is no Longer in fear of any such proceedings and ne longer liable 


fer sny cleins, nor subject to court proceedings filed prier te May 


«45, 1917; that the compiainants snd de’endant have waived a refers 


hi aie na ts choles 


©) Behl Re 





ence of the cause to % manter in chancery to take an aeeount and 
4iseovery of the moneye axeenind or far ehieh the cet endunt Pegame 
Aiable on ascot of claime for ¢amagee arieing frem the vacation 
of said etreets anf slieye; thet the defendant having presented te 
open court a statement ef the moneys oo expended, which statewent 
was admitted by the sonplainanta to ~~ and aprreet statement, 
and it appenring to the court that defendant did expomd in gatie~ 
faetion of claims for damages the ows of §7160,28, and that ne 
other claime for danngee were pending or hed been made against the 
@efendent, the said defendant City of Chicage was entitled te a 
eredit againat eaid $40,965.08 of roid om of $7155,95, leswing a 
balance due to the cempilvinant executors of the will of Francia 
Bartlett @f the mm ef 935,374.05, which swe it war adfudged dee 
fendant should pay te the aomplsinantse within five dave with lawe 
ful interest from thet 4ate, 

The right of the couplatnents to reeever in o auit at 
lew upon a etate of facte och ae the decree Tinda,seane te have 
been definitely established by the Supreme court in the case of 
Lockwood & Btrieklend v. Chicago, 779 Ill, 44%, smi that decision 
has been followed in the subsequent cases of John MB, Gmythe Co, we 
QGhicage, 294 111, 136, ena Curt ioage, 96 I31, 498, 
This seene to be conentad by the defendant City, which, however, 





contends that » bill in aquity will not Lie upon the etate of facts 
diselosed by the revord. 

It is urged in the firet place in opposition to the 
ight ef the complainants to resever that the executors came inte 
court with wiclean hands, ani fer twe reaconea; ist, because the 
Dill set up an alleged understating and contract, which @4d not 

exist, thereby deceiving the court; and, @nd, because the compl ain« 
3 ante are seeking to take advantage of an illegal act of their ine 


| testate, thereby profiting by their own wrong doing. 








Bs oR Tp Bi ud ‘he. alta als Ore gS 
i ede sat teaosenn owe rot baw | eae’ ues 







et 


hime Parsons mn sine OF yrmnnety af tPese @ OF onmen ont Ye nme : 
saaded domdan'teh nt votse ty? xo hobawexw’ Wewmam Od te te ove) O 
molteney if mot gitinina request vot wale fe Yo terveoe a9 nok 4 
at batvenere gabrad ¢enbne'toh oft dace payn ita daw stopiibe Bias bal | 
 Refeainte ete spate: ay wenn ott tnsnmate ae ioe noee 

« Horned 2 6 tomas bas ee as ateowte tgmen add “ poretnte oon 

athiae ai baw one Sie Soke ter goes dueo od? of satracqan. ot hme 
‘oe dss ban AR .LBLH Yo amd vel enyondd cor amkade V6 bobsos 

eh Jamhoge shes aang Sat xe grhiaog oxew aagenmeh, set ontake waste 

aod SwStionm na gyaoddd Ie ye Saedve teh blew sat » samban ted 

de QSL GAR WRUNG Ye owe tins Te BOER, Biee tantege steno 
ghetto kien one ko snerioinn tamale taue oct at, ah pommted 
eS ee ee ee ee 
aman ate ye orl mhltin stant Leap, mtd Seailanepniss ane 

ae pe bl Aerantntanen oat. Xe, jp ail “4 Siiaialte! 
Wad 02 MRARR APOE aetowh att ga dame aren't a neem mem mae 

Yo wane odd wh Ixson contend a7 yt bade lidates ylaet 

a nr yar elit? hE — 
























_tovowod Ao be ven Saoban'tns, one w iekeouns: ot 





; eR a tae fe “ ne i 

“adont to « osage erie noua wit £ ten Bade otupe al thd ont) abana 
ol a a ack a ie “\inowen ont hee | 
su, Sth NS saa alta beds Ce ae 









"pat 
mie 


‘nels tecee, ‘at ovate ‘test sual at dog ah: OE) eee): 
ea pai ash Re Ae HAY ay vont LY baud Sa éuiak 155) “YS ae Sf ¥ ih 


vy 18>) 















eae a WTR GER WAN ROPER en LO RBH tuts 


a way i. 84 
tle shout te toa tego 
Gi yr “yi ~ Faia ES Oe ale ON ea ait aM 


it ia a saffieient reply te the firet rensen stated 
that there is se proof in the record that the contract set up in the 
bi21 was not in faet made, or that the court was deceived by the 
complatnanta, 

The defendant anys that the ordinanee providing fer 
the wreation of the atreets and salieye in queetion wan in faet the 
result of « bargain and sale; that somplainantet teetater paid fer 
the land vacated at the rate of the sasesser's average valuation 
for the property listed om the veecrds of the Board of Aesessore and 
Beard ef Heyiew. It further says that while it Le true that the 
Ordinance recited that the strects and alleya vacated were ne longer 
required for public use, and tueat the public interest would be bert 
served by their vacstion, this reeltal en ite fuoe is contrary te 
reason and a mere attwpt to evade the Law with reapeet te vacations, 
and it is urged that the court shewld teke judicial notice ef the 
fact that the vacation of territery of sere than a Rhelf mile square 
Gannet be fer the ouwblie good, 

We are not arare ef any case where it has been Bo 
held, nor of any principle upon which « seurt could take Judtieial 
metice of any such « situation, The fetontant cites People ox red. 

Cow, 286 TL. 226, to the propoaition that 





the recital in the ortinenee ia not binding on the court; but that 
@ase foce not guetain thin contention, It wan there held that e re 
@ital in an ordinance fer vacating a street or perultting the erece 
tion of an obstruction in it to the effect that 1% wae passed for the 
benefit of the city wae net conclusive upon the courts. fhe court 
there held under the facts “hich were mada to appear thet the eity 
@oune®l dia not have the pewer to pass the ordimonce which was than 


whder consideration, It io net argued here that the city counei) 
| Was without power to pases the ordinance upon which the eult ef com- 


f 
. 


D 
- d 


Uj 
bs 


‘Plainonte is based; and if 4¢ had such sower, 1% is, as the Supreme 









dateds Somers Cet lh ome of “loos fame bo kam ae iui a yr ve ea8 
nde wk coe ine doardac 8% and Wwone uh: ek Reon oe an vom dads 


Panes iar 


wit: ae a ea aoitaane ah same tn has ate@nde dite Minis : 
tol ker saleiee? 'simnaieamee dant aten ta alegued a %e Otaqnt 
noktanioy syriora a xonenene oi) ta aden edt to hetmban teak ate 
ine wipessenh Qo Med est te abtoant one so detedd cupping 





oA? fans ewnt ob $2 ahdeiy saris exon cate a. wade Medea 
Sepnok va eee hudogay aywile one adyowte wre ands hethown gromabine 
deed od binew taeue tal atidem wat tet, ed ohdug 0% hata 
xtengaeo of, sgnk fk. wp fatten eat emabsnoay ube ath ey pew van 
enabannat at Manama: CRA silts dati emg, oun a han moRMe 
eid Xo walvon twlnthal sted Biwone demme, sh paula bora abet ho 
Seee oie Lod ©. ond, pine Yo qmettene? to aehtegey oot tomy tea 
is ie ee sot ed tomas | 
of apad tol fh. orn ogee. yne ‘Lo MmeW. doe Ome AF, 8 as to eet : 

sehoteet tiled bivom: tomene Matin nomen teneebn ype Smt | 

heoes wwtle sant om teh sat mobsters, 
sats. mtd taoaese | ont ae Fes Rt atmo 

fact gus s4r0p, 960.9 watbay. ton a2 9 wl 2 Lationwn, ot 
=9%,@ tad bio erst soe. 4, smodeatnO® 109. tespue ten enohonen 
mone od oulieinetanin we setts a rr 49%, sont $0.4 ne 






















court enid im Curt Telas vy. Chigago, supra, estepped beth in law and 


equity to nov ansert the contrary. 

As te the further contention of defendant that the 
complainants are seeking to take advantage of an illegal set of their 
intestate, and thus profit by their own wrong doling, defendant, in 
suppert of thig, arguee that on account of the sige of the traet of 
land in which the etreets an? silieye were spened by thie ordinance 
(4% being more than a balf mile square), the sane was uplowful bee 
gause fone for the benefit of « private party and againgt the publie 
intereat. 

; if the ordinance, upon ite face, disckosed that the 
intention of tre council in passing 4t was eolely te confer rights 
and privileges upom orivate persona, then the ordinance would be 
iliegal because, a9 already stated, not within the power ef the 
couneil to pass. (fee Peonle v. Abking, 295 113. 166.) 

There is, hovever, nothing in thie reeord which would 
guetify auch » finding, eit the oriinanee upon ite face appecare te be 
one which the sowteil had a right te paos and wileh, under the facte 
whieh appear in the reeerd, it will be presused wae pasend in the 
public interest. 

It ie next contented tuat the deeree Le srroneous bee 
@ause, ac it is seid, the complainante having some into equity are 
bewn4 te de equity; and it io wait that this principle demands that 
there te a restoration ef the vacated streste and alleys berore 
there can be a recovery by the complainants, 

The emewer ef the defendant, as suended, relied upon 
@ statute passed by the legislature in 2091 and in foree July let 
of that year, which in sutetance provided that sults, such s@ ¢ome 
Plainante’, could net be maintained without such restoration of the 

“Vacated streets and alleys, ‘That statute was not, however, appli- 


| Gable te thie erdinanee, and it was repealed by the legislature in 


i 





‘wate etaes vies on 7 ettalibe a 2 flemmen sat ny 
| adver qocnmtiny | ott mete .eneez0q edar tag moe sage, ! vag, 
_ at Ye tewen paid ahds ay oq ,bededn yhaenis ma. ie ve " faye 
wepunne wit SAM EER AR on on). ote ahd 
anes dohie Seonos abies st publ on eer rari ok Eo nate wal pres 















~ 










“of auonacres, at ‘eonoed ante tant henna, si oe veesuion 
_ gt etae oad naan gntyad minonte igmme nat shine a2 #2 99 amen, 
ideation ekgtoatng | abst snes hing of a8 Aes Atm, * *. poi 

¢ wetio haa spoons petaney Ov, bi prey Na | 


ay ae aes Mae 










ee Vie: ie hk ORY sale” pe oe 


ba it wren. rir PSNI rah i He Rees 
aot Sota ‘= maudnde tyes ox 





AT 


1923, 

Horecver, the equitable maxim which the defendant ine 
vokes is net arplicatle to the recerd here presented, since it kaa 
mot been mate to appear that the vacation of the streets and alleye 
im question wae made for the benefit of complainants’ teetater. The 
atatute ef 1922 could not have been intended te apply te ordinances 
passed and depesita made prier to ite enactment, 

It 4a alee urged that the ult was prematurely brought, 
and Section 21 of the Btatute ef Limitations Le relied on in this 
Feepect. The finding of the decree, however, on this point was euf- 
ficient, 

No reason having been «ade te appear which would ree 
quire a reversal, the deeree ia affirmed. 

AFFIRMED, 


Ne®urely, P, Je, and Johneton, J., conour, 





; hist + Sac 


ee BE SRP 
SIRS Y HPF wives 
sty 2 Ads 7 
SD ak oR AR Maen. He 
yea : j Reptye Ae: Ae yea 3 
€ L GR RN Ha. fe BREE MARR. '85 


“e eet mers : Vmaatiid aah ed soi Be kA a 
y Lap ve he 


me as ee: 


wh ‘Kae 





36 - 31146 


THE PEOPLE OF THE STATE ) 
oF ILLINOIS, ERROR , TO 

Defendent in Brrer, 

) MUNICIZAL couRT 
a. OF CHICAG 
MI o> 

DAN PETRIZZO, DA vig oS 

Plaintiff’ in Error. 2 1A. 627 


MA. TUSTICH WATCHETT VALIVERSS TH OPINION OF THE GoURT. 


The fects whieh appear in this case are similar 
to the fncte whieh appesx in the ease of The feople of the 
State of Illinoie, defendant in error, w+ Dan Gentile, 
pisintiff in error, Gen. No. $1146, in which an opinion 
has been thie day filed. The recerd im that cose is 





similar to the record here. Yor the reasone there Age 
stated, the judgment in this case iad firmed. es Zin 
AFP IRWED, f A Ys 
ra 4 f 93 
i j ; f\ Vv A 
Medurely, Pe Je, amd Johnzton, J., concure / x a 








$6 - 31147 


THE PEOPLE OF THE STATE j 

oF ILLINOIS, } 

Gefendant in Srvor, %, SRROR TO MUNICIPAL 
} 

Ve COURT oF CHICAGO. 


Plaintift in Error. A, 6) ” 
oy. * ea 


se 


We JUSTICE MATCHRTT DXLIVERND THe OPINION oF PHU COURT » 
The facte which appear in this case are similar 


. to the facts which appear in the cove of The People pf the 
Seate of illinois, defendant in error, ve Das dentle, 
plaintiff in error, Gen. Hos 51148, in which an opinion 
has been this dey filed. The record in thet ease is 
similar te the record here. for the reusens there stated, 


the judgment in this ecace is affirmed. 
AVFIEMED, eo 


MeSurely, °. Je, and Johneton, J., concurs \ “us Biel 





uy 


tet 
Vinee 





36 - 31148 


THE PEOPLE OF THE sTaTts 
GF ILLIBOIC, 
Defendant in Srror, 


BRROR TO 
MUBICIPAL GOURT 
OF CHICAGO. 


Ve 
DAW GENTLE, 


e 


1AT A Pow’ 
ai.. a ~—.. ai 3 » ha 


MR. JUSTICE MATCHETT DELIVERED THR OPINION OF THE coURT. 


eee Rg ott age a ct 
3 


ae 


Plaintiff in irrer. eh 


The plaintiff in errer wac the defendant im the trial 
court on a charge of violating section 5 of the Prehibition Law, 
(see Smith-Hurd I11. Revised Statutes, 1925, see. by pe 1098.) 

ALthough duly “woxrned, he waived trial by jury, and 
upon trial by the court exe found guilty im memner and form as 
charged, und the court, overruling motions fer a new trial and 
in arrest, imposed « fine of $200 and cosets, which judgment the 
defendant secks te reverse. 

A similar informetion wae filed againet Kike Seongomano 
and another of the same kind sgeinst Dan vetriaso, each of whom 
alee (waiving trial by jury) wae found guilty ami a like judg- 
ment impesed. The transaction which reowlted im the filing of 
these informations was one in vhich these three defendants 
participated. The records «re similar, and the ceuses have 
been consolidated in this court. ‘The rules of law applicable 
to ¢ach case sre substantially the same. 

The language of the information in exch case wae that 
the defendant “on the 12th day of Jomuary, 6+ + 1926, at the 
_ City of Chiesgo, sforesaid, did then and there unlawfully posses, 
q sell, transport, deliver, furnish certain intexicating liquors 
4 containing more than one-holf of one per cent alcohol by 


 YOlume, which was then and there fit for use for beverage 


4 g; 





oY Rone 
gee Lad NL 
 lopeo tie «6° 


eT a a a a mn a I i in NS a 





Latas wee ah: teabow as 
9 wad make Aa ahet ahs 20 % mahsese gaddaloty hy ili / 
(.800k «a ot nnn AK seperate same AEB ‘ we 








sah bik, 0 Whi heidi (em eb dake attend one 
20 HALT ond at doe Kwowr doldw modiomanend ont «hesoqmk sues 
etmphee toh veud? svods doltde at ono saw enoltsmve tah ened? 
ovad Heed od bm yrokioks exe above oft + be onda i 
eldestiqges wal te avkex salt -22ubo eis mi Setebikesmoo med 
women outs widehonctudue oun gune done of 

dads vow onwr done at modsamnomt wid to egawyaot oT a ee 
edt fm ORO oo) sguauinal Ie Yad AVSE odd ao” Satehmotoh oat | 
cnuseneg Usual wrod? bar meds BED »oLosoxet» ~ogaokd? YO YL 
exONPLE gmtsnokosus aketrve dated «xovtfod .sroqenmnt qten — 
WS Sedat cane sa one 10 Hino add ora pba 


PA 


caecoved <0 eat x02 44% exnild bax wets ow A 








purposes. itaid intoxicating liquor them and there in the 
possession of the said * * * not being possesced in hie private 
dwelling while the some was kept and used by him ac a private 
dwelling only. The said intoxicating liquer not then ond there 
being in his possession by virtue of any permit iseued by the 
attorney general or the office of the Commissioner of Prohibition 
ef the State of Illimeits., aid intoxicating liquor not then and 
there being used for sacramental, medicinal, scientific, 
mechanical, chemicol or manufacturing purposes, not otherwise 
legally authorized.” 

Said section 5 is az follows: 

“Ho person sholl on or after the date when this 

Act goes into effect, manufacture, sell, barter, 
tranmspert, deliver, furnish or possess any intoxiesting 
liquor except as authorised im thie Act, and all the 
provisions of this Act shail be lihersliy construed 
to the end that the use of intexiceting liquor as a 
beverage may be prevented. Liquor for non-beverage 
purposes ond wine for sacramental purposes may ba 
manufvetured, purchesed, sold, bartered, transported, 
delivered, furnished and pousessed, but only ae herein 
rovided, and the Attorney General may, upon application, 
asue permite therefor, but in case the office of 
Comalasioner of Prohibition shell be ereated, then such 
Commissioner shali issue seid pormite; Provided, that 
nothing in this Act shell prohibit the purchase and sale 
of warehouse receipts covering distilled spirits on 
deposit in covernment bonded warehouses.” 

Motion was mate im cach case to quash the informetion, 
which wae denied, and this ruling of the court is aeosigned as 
error. However, it will be noticed that the informetion sub- 
stantially charges the offense in the language of the statute, 
perhaps with unnecessary verbinge, but under the rule leid down 
im People vy. Tate, S16 Ill. $2, we hold the information was 
euffieient. 

It is further orgued thot the evidence failed to prove 
certain mterial allegations of the information beyond | reason~ 


able doubt, 





f 
fl 





iG, 





ate 


nade mh wrestle ome not resepee geitnalxoval bine . ot Hy 
wtaweng ei mk hevaeneng witted ton * 8 bene ate ‘0 motanedoon 
otertny a nemik ue dear bus seek nom omne ‘wee oth ” gil a 
ora) my mode Son woOMpAL gubdab trodes besa Ge te watibinds 
oe PO beReeh Ikateg YMe to estuty yd sekeanaeaq aiid nt auted 
works kddetors 2 ce) xonte tow hemo eid Te. eokite wde 30 karan wares . 
i bene peont fom soupit pukioodnosnt beat ianaceoaeaeh % sdate ‘oe to 
<oktRaetod «tnatothon  iadnouinrese x67 ‘boas 0 
Webenwite ton ,omanesy eaieaiieomual 1 Lonkunde idmehnatoen 
“bontonine yihayeh 
 PaMeLLO® an ‘its & souiaiaaiud ait tt vn) 















RH 


dina Mokineratmt old duit peotenn od Lite th yxowe 
sedutate etd Yo egewpanl silt mi sachs ear | 


PEN 


an ‘aaratann, ah xyes one ie ~ i it 










¢ 


t oe vigy hy nly «e 


orerg one 4d temps vata 
hf Lae OU: A a Psi iat oth | ee Bis 4 iS Pt 


snbeinnntind ele ae LI: 
ted Dy) ‘Soaoye he ty b ‘tthe 


Se Sa a BT ed 








ORT, RE IN RA HR onan? man sett one: i tl « MR: 


=e 


1% ds said im the firet place that the evidenee failed 
te show that the liquid in cucstion was fit for beverage pur- 
poses. it in true that the information mace this avemaent, vhich 
we do not think was a neo¢nenry averment but on the contrary may 
be regardeé as surpluesge. Indeed, the whele theory of the act 
in question is thet intowienting Liquor is unfit for beverage 
uses. The intention of the defendant in this, os im all ether 
criminal cases, ic the controlling question. It is net argued 
that the alcohol which wae seized was not intended te be umed an 
® beveruge, and the evidence shows beyond « rexaeneable doubt that 
such was the intention. 

in the mecond place, it ie urged that there woe no proof 
of the allegation that the liquor fount in possesreion of the 
¢efendante hed an alehholic content grenter then one-half of one 
per cent by volume. The proof showed without question that the 
liquor was aleohol. There wie undmlied proof of the admission ef 
this fact by one of the ¢efendunts in the presence of the otherae 
This fact could «leo be inferred from the teatimeny of one of the 
officers vho tasted liquor from oth the reeeptacles which were 
seized. 

The evidenes fer the People tended to show that at about 
9:35 in the evening, police officers sav an eutomebile atanding 
om the left sid« of Mo. 5055 Federal atreet, im the city of 
Chiesago, and that as the officers approached, this automobile was 
épiven away at a high rete of speed; that there was thrown from 
it two bags, which were seized by these three defendante, and taken 

“ to the rear of the building which etocd there, the officers pursuring 
the éefendants as the bags were enrried aways; that the police caught 


the threes defendants, opened the toy of the cane which were found in 


.. bags, and asked what they contained, when one of the three de- 








batict.omaspbye ald sade ee eee ae ah i nn 
| “ti eRSTE VO WOE S27 nom Bokeanay me Rhwsl ond sods yoda oF 
i siokdn »taamots wild ebom ich pe iy 1 ol i 
Wien YENI MT NO HT SORMTHTE ERveRKORR & aw Mme sit iat 
tou odd te “mone whale ee head. eM sae at 
RN a8 Hew ed memes, mares a 
| a Sip em ae ai enpumate “At, a ennaage 
| bearyss dom ot 4 en howeuy iil snaa 
t batt temas pin we 


















ict 





: re wee os bs Me Wi i 
tention ta Soakt an me SeBmog ado ont et sane otve tt i, @ 

piaebanamiitin detuned eo rER RRO 2a es : 
| Epicannerpmnumngncieaay gape | mi “? 


Bi dy case PA eae aie 












moos bye aaneatan 5 canoe veaeune peat ap oo 
Binet weSltio aff ,oved? hooda Molow autbtiud ut 


Wetiiis hain i nf, poy atin to mie 







Fe (ahi viah 








fesdente answered, “Aleohel;" that the officers tasted the liauer 
and thet both caneatasted alike; that the cans in cuestion vere 
Tive-gsilon eane. 

There oan be no rensonable doubt of the defendtantet 


guilt. Aside fro=e ether evidence in the regert, the faet that the 


three defestarts ren away frem the of flowre carrying the cans of 


Sicehol indicates guilt. Tao defendants, availing themselves of 
their senetitutional privilege, 414 net testify. A ds6ferndant whe 
hed rm avay from police officers carrying a ham under simiier 
eircusstances, might be inferred te be guilty of as intent te eat 

er sell the hes. These defendants, whe wider similer ¢ireumstances 
flea from éfricers “ the lew with baga eontalnuing cans ef alechol, 
Bay Pell be euppones /in tended te drink er sell the liquor. 

It is further urged that the sans ef alcohol sheuld 
net have been regelved am evidence, becaues the same were taken in 
Wiclatien of the eonstitutional rights ef eleintiffe in errer, A 
motion te Sueprese the evidenes was made en that grown’ and preperly 


@enie4. The eases which defendscts elite, an4 upon which they rely, « 


» B21 Thi, 392, Peooda v. Frail, S14 111. 818, 





‘People vy, Reid, 318 Til. 7, Pecvie vs. Coda, 235 11). Avs. 587, 
are easily dietinguiehstie, 





The fudement is affirmed. 


SRE ES 


MeSurely, 7. 3., an4 Jehneten, 7., concur. 


1 


ae ., Cen 


Poe 








a eee ee 








aster saaonvab & spoon om LER “ancien tat 
ei e. + sana eile: eect ed a8. henxetad: onthe 













4 oT] 
en tie 


p SU wer 


- Rie eet sob sony oe st 


ee fit BO ek 2 dees bo 


eLpeesigee FRR aee:- somite, at cage 


Ste FO AR 


eee. See 


be witp ad. me. « SO RRR A 
‘ ae 2 ae * 
Geese. Aes. & Se taeee = ol ae 
wit), PROS Lae Pos 

; 


Beit ete ARR Opes 1 5 


a Lee a. 
* : 





84 + 31166 


gee oo for use 
of O8CAR Z t BEROR MO BURTOL? 
Defendant in irror, , — 
a COUNT OF Chicahe, 
e 


DOWALD V. FERGUSON, 
Plaintizf in Error. 


a iene areal 
@ 3 


MR. JUSTICK MATCHETT DRLIVERED THE OPINION OF THE couRT. 


The garnishee, “%omald VY. Ferguson, has sued out this 
erit of error to Bocurs the ru.veresi of « judgment im the sua 
of $261.44, entered ageainet him on the finding of the court, 
which secms to nave been besed UpoM the onawer of the garnishee, 
ne evidence having been offered or received by either party. 

The oxder of judgment provided that execution should 
be atayed “until twenty days after such date us onid garnishee 
ehell heave im hie possession or cGuntrel any of the effects ef the 
said Kebert E. Ferguson.” 

The garnishor hee mot appeared in this eourt to dofend 
the judgment entered; and it 1s aadce te appear that the judgment 
order was entered im the absence of the garnishee; that although 

; the cause had been continued watil 11100 a. me om Friday, the 
: 16th dey of April, 1926, the garnishee uppesred at that time 


4 omly te learn that judgment hud Yee previously emtered. A 


% stenographer also makes affidavit that she appearcd im court on 
thet date prior to the time set and remained there until the 


et ee oP 


ee 


* 


¥ @ourt adjourned, but that the cumse wee not called for hearing 


during that timee 
es ‘ 
The answer of the gernmishes disclosed that the garnishee 







ad am agreement with the judgment debtor whereby certain 








ett Uo ateovie edi to wee Loxdaey ue ab) 


SRLOLEGH, OF HMR 
ROTA MO TAYES 


8&8. ie we at 


OOD ane * HORHTiO ‘att aust Bi i 








set leah ennai Neha centage Wb ssiiiihes 

ae edd ek daoeeigawt, a te Iowiorst act oumee of wont te abe 

oa Liwi9e eit Yo qutbate odd wo ak temteye docodNe abdARSG YO 
nin tna oid Ye tovens ost mbes Suaod Hand eva o8 -emeRN Molde 
“wig seddLe Gd Hevkoved so beet ved nalvat eonbive on 

| hbo moktuwexe aad Debtor seaaqout te” esbuo° eH eo Fo | 

| enitatetes bikes an adad dove ted 






















Be Giese Ak ReUEONyS, On, ey shvant%ts » oa - ili 

ad? Litas oveds Kotte: ban fou omke ‘eo a aor 
waked 107 belles ton ax eauso oie toad tad ¢bomees ates . 
sons a “ve 


bagi 
ay fs Mi Sei 


"cert mt es 


pea ee cai eau: 
Poe? eo Te i 


comminsions in connection with esles of seal estate should be 
paid to the debter ac and only when the same were collected, but 
that mothing wae in fact due from the garnishee at the time of 
the service of the writ or ot the time of the filing of the 
angwer. 

it hae been uniformly held that judgment debter by 
process of garnishment ean only recover such indebtedness aa 
could have been recovered by on action of debt or indebitatua 
assumpsit in the name of the attochment or judgment debter 
against the gurnishee. In other words, an indebtedness which 
is uncertain and contingent cannot be reached by this process. 
A few of the onses which so hold sre Webster ve Steal. 75 Lil. 
5443 Swope v. weClure, et ole, 259 Ili» Apps 578. 

The judgment is therefore reversede 


REVERGED. 


MeSurely, Pe de, and Johnston, J+, concure 


Wh 


‘6 studs stesso Lees 20 aotse div wokdownen at 
AE ROORINE: SEN MERE NEON I 


‘ eibeteellbis: ERE hs AER BEER NTH 
hb he wees 


tara ih ou? Panna ase 


apg Ris en Re! Re TArtiet, wiely SSE. ad bey 

oi _ lane tate capers see eed tag het, baal 
ieee Pitios Vid. aI. eae vay th BAT an eles w 

od shen Heit eamaiet Satie Ram caw eahp ay 


aabwone nee, nhac Fan HLT weeNte att! geek ee y 





| 
| 
q 
; 
: 








71 - 32195 


TELLER CORPOR TION, 
a gorporation, 

Appellee, AGVEAL FROM MUNICIPAL GOURT, 

Ve 
} OF CHICAGO. 

Le Js LEON MANUPACTURING 
COMPANY, ® corporstion, : : oh 

Agpeliant. iP . 4. y '@) 

rot Sp Si ( 


Mie JUGTICK MATCHETT DeLIVERED THE OPIBICN OF THY court. 


This is an appeal by the defendant frem an order 
entered in the Sunicipai caurt denying ite metion te yvacate 
and epen up 4 judgment theretefore entered by confession 
upon a written lense fer the sum of $437.16. 

The plaintiff has not appeared in this court in 
support of the order entered. 

The wotion to eet acide the judgment was supported by 
two affidavits executed by the treasurer of the defendant cor 
poration, whe sverred therein that plaintiff nad no authority, 
right or power to make the lease upon whieh judgment was con~ 
feseed without the written consent of the .mericen Furniture 
Mart, ond that such written consent had not been secured. 

The affidavit oleo uvere thot defendent’s by-laws 
provide that the president and secretary ehali exeoute 211 
leases, and thet defendant's seoret»ry shall sign with the 
president or vice-president in the name of defendant and with 


| authority given by the board of directors so to dog thot such 
authority was not givon to execute the lease upon which judgment 





SMtI0% AS 0 NOE BARA 


-opi01tD * zi : cs "areata si 


| wi | Spmersat 
“So fT PRs: ope OAM 0 xan 


Sinan sort et eiaahial may SKE FRA NOTE mt 


aes Be we newbs Ae 
, One, mee, Amano ver. wuld ro dnequs a0 eat. oe 
ie wi ct peel “hee 


steer 9b neliga 924 suewien fuse Lag toimus dd ab, —- 
Lae Seavie shes repo, eh 


Oe NE Renee axeleae xeds sasagbul qe mK bse 
si able Peg Yo awe vad seh onaed, meseier "2 oq 
(Gk frave oleld Mh Goreegae, fon ceed Thaae cher de tiene ane 

m shotadee 19h was a 30 erage 

yd Bedtegqua saw sanmntur od ebhee Joa of nation ost et | 
“460 Imabno%eo see te Pacman ond hid sosivoore aft ‘bya 7 
eWhvordve on hee Thlvmiatg toate niwneds heekews ody \eldoreg 
“HOO aw amid Modcw sages noqu Sane out wala of toMOg 30 lads 
oumsieuet aeekvem otf) Yo Smeames mbetinw oft tuodtie Dbenaet 
sherwoee noed fon had snoeues meds bee down snd baa eat 


ately u'éaches teh grft suevn eo ke Ghredl te ext 






















is 


Wat 332) 0 |) eh eta ea 


fhe séwoexe tlode Yidewee ban Inobiewrg odd seats ebiverg 

odd dtiv mia {Lado yutonove u'dachanted dade baa enaned 

aiie tea tenbaoted to oma od af dmobhaerq<oety 20 daodoorg | 
Mowe Soaks t9b 02 06 sxpsoexts Yo brsod ould ye aovky yslredine 4 
Pmangih Moly wequ oot odd edwomne o¢ novly Jom caw Ystvedéue 4 


40? nosoqung vate ody fuelt exONe Oude StvobLTIe od it 
Aeecorrun set tuoqxs 102 ww Doaw OF Auer Smeol euaqe Odd 5 


He iaaN TAC hae i iiss le” 


that defendant did not use it, but that the president of defend- 
ant had a few pieeas of furniture moved inte the epsce and the 
same remained there from Januory, 1925, to April, 19253 that for 
thie use of the space, defendant poid the sum of $460, which was 
more than & ressoneble and fair rental fer the use of the said 
premises during anid time. 

The lease upon which judgment was confessed purported 
to be exccuted by ite prevident, «nd wines the affidavit of 
merits denied his authority to exeoute x lesse with power to con- 
fess judgment, ve think « meritorious defense woe etated. 

The lease is net under senl, and the reeerd faile te 


show «ny circumstances from which such power of the pmesident 


might be inferred. Snyder Broa. vy. Bailey, 165 Tlie 4475 


Ghiesgo Tire Coo v. Chiongo Not'l Bank, 176 111. 224; State 
Bonk v. Holine Steel ce., 263 (11. 581. 


For the error indiested the order ic reversed and 


the cause remanded. 
REVERGED AND RRMANIED. 


Mofurely, P. J+, and Jehnaton, J., concur. 








ri te bg a ice 





abet tnh ‘Yo amebhewny wild dnnd dud 4tt wow tom BRD 

wdt ten oooge eat stad hover eueiows to ssoolg wet : 
ae? sate pAOOL pLbage oo 820k pve mont omnes Remken 
ee ee ye davouston «soa aad? woe 










ae) an } zon + anda want 
of ses watt a 


Re 
nee 2 


wR Rats OY Mn ED TOE ey" ak, sae waite 


2 REE Oita eee ou 


PS Suc ea: Liha ey tidy hes 


aed meio poiy + Ad 
hietah Tae ee OF sith bai Hi . 















PA eR AM MRM Le Sih 
WERT orga s ONS 
Bie oy” 


Bo ee ARRAN aN Sune havens 
ad ete ade. Ley oom soli havent eg ben saonntl pi 
thhy tas SROs Wo WA wild Mh rekon ngomedy “0 Br eS aa 
eee ROS GAR BE GO ARP NOE Qe Ono ent ve ous ki 


Champa, Hots a tee he BRR a Beh Bee inane! ga Dia o 


Keg’ Koisan ge sslaey gee uae aa RRR Pweo ez wode he tet i 
grown, wedi aneyne wah Rot evn ¢ Kibee Moonee goat 


Pe ee ee ——-_ 
= eee a 2 


4 
; 





Hida hg LA 


110 = 31239 On eo, Ly 
ae ge" 
MoINSRNBY KOTOR GO,, a nee # {\ 
Corporation, } \} 
Appellant, by 
nN APPHAL YHOM SUPRAION COURT 
OF cook coumty, 
AUTOHOBILE UNOERWHITERS oY a 
Appellee, 24 vA | | f \, @ ( y ke 8 


See NER opinren) 


WR, JUSTIG? BATCHETS DRLIVERED THR OPINION OF THe couRT, 


The plaintiff gerveration sued the defendant in age, 
Swmpett on a Tire trawrance policy, the deslaration in ite seweral 
counts wlileging a contract of imeurance entered inte on Sevewber 
30, 1933, and ales alleging the cediflestion «ef thie sgontract on 
Maren $, 1924; thet the contreet was for a tern of one year from 
ite date; that on July 5, 1924, while the pelley was in feree 

ning sutomobiles covered by the contract end leeated at 2469 South 
LaSalle street were destroyed by fire; that on July Sth pleintirr 
gave notice ef the loes, aid om July 10th thereafter delivered a 
particular aceownt theres? to the defendant and performed all the 
conditions preeedent eontained in the policy of ingurance; that 
the defendant refused te pay ani? danger won the eole wrownd that 
the policy had theretefore been aaneelied. 

The defendant filed a plea of the general leeue and 
notice of special defenses stated to be that it aid not make or 
Aeliver 4 poliey ef insurance te the plaintirr as silleged, but that 
on Kovesber 30, 1993, 1t iesued a certain policy of insurance te 
Jemes T. Kelnerney and Joseph UB. Kelnerney, co-partuere, doing 
business as Melnerney Metor Company; that it was then represented 
te defendant that the property covered by the policy was sole and 
wneonditional in these co-pertners; that at the time of the slleged 


_ Lees there had been 4 change in the nature of the ineuratle interest 






avos ao LER Cod sae is 
| +yriares agg ” 


BSod AT h [hag 


fx foc So ye ol 


Wane wet ak, saith 


en ne tn ee ee 


ene ‘ee. Beh Be ae. ad. a 


| _ aon ome &e worKrto or ounar. nase s TIT 1 ‘ 

(ohn Of Heke teh o6f page aobtetontos: Mebrdtede eat ’OO |, nae x 
kavovng ab} al mehtccaseoh. acit eating soaetvedt oust # ite singere 
Todneyeh so aiut Dorian sranqueEl he Inatteom conn stcutoo 

we tuatauce pti? te aekewad then, Mt, , 4 
mutt tay wAe te ae oe 8O't a: Sem 

eongt ai aew yas koa aed eitete es he eae 





a Vhichskbede ae sgeig ern prin we peanuts eeiasini'd mite 













# honevideh wt iawent A20L yhyh me bow ,ee0L wet Te wi ove | 
ee iin bomotseg fie cuabse kod ast oF rnonee avin were 2 ead be) 
| tad? jeorexesad te ynttey WAY a tohtoy aos tambsoote tne 

f Sasd Deurers ohn 26d meme emynnmh Dhan yaq oF heuuten Jaws ‘inh Ce 
| sbetiecnns rowd wortarerete Bact, witee om i 
bas gual Invensg edt to aolq mw fell srahaeteh eG? . | dea 

to oven #04 bth 24 toes od of Sotade eenaetwh tntowgn to’ ane : 


sia ny a 





tard dud ,bowetia aa Widuheke oa0 af eonewent te colteg a 







( ed wonmaond Yo goto mbetroe # havent Jt ,RROL 98 xesuaver mo 
gatoh .auperwegens .rouoaleld Mh dqnwel fae yoorwated .F enmwh 
| ceniaeedmaima eased wsrllvichde shaves anebsnnsir yews 
ie atom mate eo ksen wat et | | 


ene te ous Po omde as te tn Iwinas tenes x0 











of the eubseriber; that Paragraph "5" of the poliey provided: 

*G, Ke action ehall Lie agninet the attorney or any af 
the subscribers at the Exchange toe recever fer any less under 
thie contract unless brought by the eubseoriber himeelr, * 

That defendant woulda shew that the aubseriber wan a 
Go-partnerehip and net « cerseration, an’ that olaintiff had no 
ineuratie interest and mo right of action under the policy, 

Seoondly, that defendant would shew by way of defense 
that the poliey wae iasued to said coepartnerehip in consideration 
of a premium which the sceportnere thereafter falled and refused to 
pay, wid that by reagen of snid fallure and refusal defendant, on 
er about April 19, 1974, cancelies and rescinded the sald contract 
of ineurance and, in scoordance with the provisions of the poltey, 
netified the co-vartnership by regiatered tani that because of the 
failure of the seid coevartnerehip to pay waid preniun the = 
Wae cane@elied and deoclered void an4 of ne effeet within five days 
from April 19, 19%, an’ that eaid peliey of insurance continued 
an@ remained cancelied and void and of ne effect, 

Thirdly, tuat by the terns of the polioay defendant was 
fable for a loses only if suetaine’ within the gontraet peried, and 
that © the less by fire on April %, 1924, wae net sustained eithin 
the said contract period, beamuae said policy of inauranee had been 
Gancelied om April 19, 1924, and aot relistated or put back into 
foree or effect. 

Fourthly, said leas by fire occurred on the morning 
of July 3, 1924, and that thereafter either the plaintiff er James 
T. Melnerney and Joseph K. Melnerney, concealing the faet of the 
#aid fire and less from the dei'endont, paid te on employee of the 
@efentant a certain sum ef woney for the reinstatement of said 
policy of ineurance and en, tonvit, the afternoon of July 3, 1994, 


; an4 that the alleged lees by fire ccourred before the rink, said 


a loss being knewn to Janea T. Ketnerney and Joneph M, Solnerney, and 


a 





















i sbebivess Wunees att ee POO" ides 
‘: Th Yan te el dl est tantega ht ‘thoy’ ‘tiie hy yh 
—— MENLIEGAD Seettanane alt <P ence eesti Gear 
8 maw toi troade sil acs woth Kiwew en ‘hail we ie iy 
on had Wthatedy tease fan stinkegoouy ei #e er ne’ iil sd “3 
te bdog ant Rete * ‘ite beon ¥e ey da oa Sik deere tak py Sa care 

uns ted ta ar ete hiker fahueee tue edie” ui vilase 
| Mahteredlianos of qhimancnégeny Stax ot foumat enw yolteg oit 
at heaton bine baLin't Ned teonady enmattaqees od pa a 
\ © ae , Pika tet Liew tex nom diet Slee “te seeaee gd tats ‘had! 
i. ‘Powetitee Line oft MObalsaet han Ne (hwnd eCOL (Oe! hata sri 
i OL fog S09 Yo waetwtrese one ae seeentetedinall. ond pi 
tit Heine wHRe Line Densdelyot Yoh Game aa tqeed 
: WR boig bike ttrsterg nhae Big 09” Liew . “ene 
q ene: ‘Wo? BIAS ie Hon'tto an Te Bae - eer sdiicuaisiinall 

eaten leserseamaiiis Lanand bhae wralanlpsrii 











wih? bana Postiash e6d atiete seakereus seoretuibeaiians: “tov dea) 
whist Seaistewm gon saw pONet {Or Liam ae Erb RT ewes ame am 
‘edd Kinet wonmwoRt TO YOLkew bios seonaed jHalteg seattne 
: odat toad tua xo heterenden sen bine Aula 1G be Ltoonea 
: eon anend Bowe Ee We ee be ay Hwee GER ston tts x0 e760" 
ee ee rec ey atc ‘ tinal 
ais a A ke Hb eat to a NNN CORE So {HEN i bi 


Lnidasnapatelpatecteyenhgnonn!s ex sedancpamnen ‘bie oft 
Lhauelindcumenannehstond eb 0a canal 0 


fas tae te» re 


witneut being disclosed ty the defendant; that thereafter the dee 
fondant, having learne’ the facta, tendered the return ef sadd 
amount te the piuinti?r, 

The cause war subsittad to « Jury, which returned a 
verdiot for the defendant, and setien for a new trial belng over- 
Pulled, Judgment was entered woon the wertiot. 

Tae alleged errere asuigned and argued are that a new 
trial showld have been gronted because the verdict wae againet the 
manifest weight ¢f the evidence; om saccunt of erroneous inetruce 
tions givn on behalf ef the 4efendant ant proper iaatruetions 
Fequested by the plaintifY refuses, and beenuse ef the aded aston 
of improper evidence om behalf of the defendant reesived over the 
objection of plaints ” 

The uncontradicted evidence shows that the policy wae 
isaued by the defendant on Nevember 40, 1923; that the defendant 
then had ita principal place of business ot Dallas in the State of 
Texec, with a branen office in Chicage, vhich was in charge of one 
Curtis as agent for defendant, | 

The evidence alee discleses that from April 16, 1923, 
wntil Rovexber 28, 192%, Josenn Nelnorney, Tamen Meinerney, wid 
their mether, Rowe Melnermey, were pertners in the business of melle 
ing automebiles, the sother, however, net being actively engaged 
therein; that on Hovewher 25, 1923, these partnere organized a core 
poration whieh teok ever the business of the partnership, an4 James 
and Joseph beeanes officers of the company; that theae two, with 
q their mother, held all the stock in the company; that the partnere 
4 ship 414 business under the name of Melnerney Koter Company, and 
_ the corporation aise uset thet name. 

4 On Bovember %, 1923, two isys after the incorporation, 
a Joxeph elnerney, ae eeoretary, made application for the insurance 
in Question; Kr, Gurtia filled out an appliieation for insurance 








| a saneinie oe gua at, tetegnan sar ene, ot SM ea 
i “1986 gaint LO2Ts OR a TO. cMpitom hae , tahoe ron onit 50% stoke 
gfe tia 962 man Derm ing gay, tmauh 
| ie byte hae Demwhonm amore Den hte pee 
ad Jontens cam Soihiey add seuqund hedaeyy mood, Bybee Qe nt “ 
soyrtonh exoetonze te seal a isauehive 10 a ‘sacha’ othe 

















neues ome, ae peste, reg pare ke el 
ene to spies a saw dake yoame tao 


a RON RS MIO S| Fae (8 ment TRIS | GRR 


a 


from information given him by Josesh MeInerney, wha testifies that 
he sat in « postition from whieh he gould not sae what was being 
written, s¢ the blonk wae Pilied, wid that after it had been filled 
out it was shoved across the table to Aim by Gurtile, ut vhose ree 
queat he wigned it. and passed it back te Curtis, witheut looking 
at it or knowing its contents. Gurtis testified that ae did not 
tna whether Moinersney read the applieation; thet he had ne reeele 
lection upon that subject. The application vee, however, incore 
porated in the policy wider the Senedule of Warranties, and as se 
inoorograted teeited that the “subscriber was a partnership. * 

Joeeph Nelnerney further towtified that when the ape 
plication wae being filied eut ke told Gurtie that the business was 
a partnership but was then incarperated; watle Curtis, eon the gone 
trary, teatified that he 414 not ask Molnerney who the partners 
were; that this was imeeterial; that it was lomaterial whether er 
not it was a corperation; that it wowld have been gubmitted Just 
the same; thet the rate would have been the aaue, and that there 
Was net any difference in the risk. 

ir. Hynes, an underwriter for tas seme office, aise 
testified that 14 would net have been of any consequence in the 
@ase whether the Melnorney Kotor Company wae o portnership or a 
eorperation; that the rate wee the game, and that if they ieaeued 
insurance they would iseue the sume one way or the other. 

It in guggeeted im the argument for the defendant that 
the verdict may be sustained upon the theory that the yneontradiocted 
evidence showed that the policy was for the benerit ef the partners 
ship while the loss was eusteined by the corporation, 

The vertict cannot be sustained on that grow:¢. There 
is no doubt here ae te the identity of the real parties, and it ia 
always permissible to imtretuce oral evidence for the purpose of 


i@entifying the real parties to a written eontract, A mere erronce 













tate estan ite ecm TM shot Ge tat avy Mehemarotal me 
naked: we Teste han dom Pika ott Go Rete sieet ‘attbeon “ll nae 
HatLs? oeod hawt Fh vod te aed dam , better sat le | ae 
oot patie ts jwhiany yi aie’ ot hited oie anottea be poh 


“wie aie! a eo sland’ #E dievgsinde ped hak ra stot * of 


oheowe ae hed on tute (ooltonticgn eat baow ‘sith a vomt 
edad sas ‘eae heosrmeageed socal me SE : ay ' : 





| ae eee se A < am s me 
tit tte bic Wibiabie cce ie a es ye ht an : 


ih naw Condes” 9 es tenth ‘gape xed i i edd Me cn & hips 
wae wes te eleied o Lhe inetarcartowad - i's : sibecd te 
reseed ait eee tel aes Fon Bes oa saith bol tone il 


cot ae 


i ee i ee 8 yer 64 





——— 


i 








pecan win i ll agrraror x avert — ‘ 





—— — 


ous deseripiion of plaintiff will net render an insurance poliey 
void, It has been umiformiy so held in thia and other states. 
(Lumbermnen's Mutual Ine d Mai, 164 (11. 400; Kolieable tren 
Range Co, wv. Pusey, %44 111. 164; Prignd v, Geldewhth, 407 Tia. 

2 oe Ta as ah otis Coe, 210 TLi, App. S23; Davis vx, | 
233 TLl. App. 566; Lanning y. Fire Ins, e., 199 Minn, 66,) 


The uncontradicted evidence tended ta ahew that the 








policy was iscue? without the payment of the premium, and that the 
Plaintiff, although often requested se te do, failed te pay the 
premiwua, which amounted to S175, Tt seems that 9214.44 was padd on 
seceount some time prior te April, 1954, and Ourtis wrote plaintiff 
atking in substance whether defendant might not have plaintiff's 
eheck for at least a pertion of the prewium at that time, fhe 
evidence further shewe that on April 19, 19024, at Dallas, Texas, 
defendant wrete a letter addressed, *“Kkelnorney Koter Co., 271% B. 
Sisere Avenue, Chicage, Lilinois, calling attention te the provie 
sion in the poliey with refereice te eanceliation, and steting: 

"The Autowobile Underwriters of Aweriea herewith givee rive 
days’ formal netioe of the gumeelletion ef Pelisy He. 71281 Le- 
sued to Melnerney Motor Co,**#*%o¢e Please take speeial notice 
that a1] liability eof suid Bxchange wader eaid policy will abso} 
lutely oease at noom on the 24th day of April, 1974, Wa enelose 
our statement for 991.54 eovsring the earned premdiwa due in full. 
Please mail the abeve policy in the snelose4 stamped adéreesed 
envelope te somplete our files," 

A eontrolling question in the esse ts whether this 
notice amowited in lew to @ cancellation of the policy. 

The provision in the polley with referener to cancel- 
lation was as follows: 

*“Thie contract may be cancelled at any time by the Emchange 
by giving to the subsacriter five days’ written notice of cane 
@eliation *ith or without tender of the exeese of paid premium 
above the pro rata premiwe for the expired term, which exoces 
if net tendered whall be refunded om demand, Hetice of cane 
eellation msiled to the address of the subscriber stated in the 
eontract shall be « sufficient notice.” 


Even if comeeded that tae netics ef cancellation was 


Properly pleaded (which piaintif? denies on the authority of 





ee ri IS 
FOAM. Goo ’ 













ikog shaMMNTh Ae TObANT don LEI TE AteLa eRe we ware 
ii sire tema hats a bToMt etree eee co into 
ene akieed iets eee ae ane 43 mo 249 Goad 





edt teas were 0) pes nd: piece tebe pment bisa eva wos Cl 

_ i Saba! Hit guar Rratrens kt Se denonyom ott favwal ge bate b san oihtog i 

wild Nun a wate yo 9d. 10 hnioocrint m8 styaros 2 he om on ake 

¥ ao hhon naw bb OLE tari? anwne 21 et ES ot sont roan. sip ate aw dne ta s | 
 Wekdeehate adore adie tome, SED tee. 08 xedtg Male once savowos 
VR faiaie avert ton tegde tanbee tee vesdnade, eranendue, ater sentl 
EL. elt tate te maekonug 8h tte ta iouog a toned 4a 10 hoota, 
MANY me Lost dm RAL 4 9E Chek oe tnsid awee ecieah wORehhOm 

se BAND 408 odes morse nln? dovwewthem - unttel w stom 4 : ke A 

nbeatg wit at anlvontts gabhiog paikeabtck yopen tad ounor eteato 

agettate bee ,mekicieones 9s aaah iebw yadion walt ry 

wri’ Tenet At brated aa krear to omg tawte bert otidenatin on™ iat ~~ 




















monda 4Lbe oe ‘bias rei te 

seolome oF 6 ah 

sig ai awh pati po ng rT 
peeps te hacmats tesaionn « 










uo pefenoe 98 re. 

widueie'§. ean iit OSE We ae tee Saud Sima 
bitte cid a0 t ean  aete a wo he 

ro ton a . ‘ nae a aaa me A 0 doraeaeinnd | 


veoh ion Per) te won ze favane a er we od irre wearin 

ang AR dae RR RAE FS Ty ROMMEL as iors ; ig OMT b We 
" i ome re tex ste Bae one Fay molatvoug eft vee mer 

nate teed a ae ee ‘nal om ne ae ae Thali: at 


, # rf 
Bek SRE SN bi taut 















z ¥ x i ey, ) . ONS 
we > ba WR Ye Hy? % Ds ae BN Weld Buoy 





ty sds ene 


aN to és isvoane % 
etre te Warigg & bs | et 








116 TLL. App. 347), we do net think the 





preef is euffictient te sustsin the contention ef defentant that 
the geliey wae cancelled’, It will be observed that the notice 
ia dated at Dalian, Temes, on April 19, 1074, and stetes that 
the Linbiiity of defendant uncer the poliey ehall eoase ot noon 
on April 74, 194, whieh would be five daye after the mailing 

of the notice at Dalles, Texas, Vorfeitures are not favored by 
eourtes, and they #1il net be deslared if such declaration ean be 
reasonably avoided, Construing the section of the policy recital 
abveve in the manner moat faverable to the pluintifr, as it ie our 
duty to ¢do, we think 1% must be Beh¢ that the five day notice, 
which is required in order te avoid the policy, meane at least 
five dayo from the time the notice te reeelved or would in due 
course of the walle be reeeivedt by the party to whom 1% ie 

given, Any other construction might in some onses mean that 

the policy woul? be ferfelted before the netice would in due 
eourse of the maile reach the policy holder, A somewhat simile 
lar provicion im « by-law of an inaurance company hae been to 
conatrues by the Supreme court of thie state tn UY, 8, B. 

Vueller, 181 TLL. @84. 





There yan therefore ne evidence in the reoord 
tending to shew that the policy bad been ganvelied at the time 
this less eccurred, and it was therefore error for the court 
te subsit that question to the jury. 

the conclusion at which we have arrived on this 
point will make it waneceessary to tiseuss other errore as- 
signed snd argue?, although we will aleo etate that an examina- 
tion of the record divalones errors am to the adoiosion ef 


evidence and in several instructions given at defendant's ree 


guest, 
Yer the reasons indicated the Judgement will be 


reversed and the emo remanied, 
MeSurely,P. Jr andWehnson,. J/,- cone ANT ABHARDAD, 


a 









“eeton ‘ont he fe hevenade a titre et Aiettooeins | ‘ 
sade totats ‘baa, heme et fea ae nant Aas: ik 
“neon ts ‘senao. ftove vo Loe oe ant mw bachantos Ye “quits 
gadiion a2 ied%e weed eves ee \ teow 9 hie 
. heravat pene ate aorews Je Taet nanet onthe ta oo iten ast t 
“ed suo aottaxsiood sous 12 beresend vd faa Lite yodt bat 8 tine 
Ration: we hhoq out ae Aohiven orig gahystened sbebtove ‘ldanoneet 


BUM A OM fc ME OM ana ape 
we ot a ue Mvadete eit ad a idasovar tan seaness eit uh eveda 


Pes 


soiton we wat oats sauats p kes od 4 agra at salad poy wh ot @ ‘ ee " 

drew £ ts ann rye tseg out biore o aebt0 th Borkuper ef 6 a, ‘ea | 
outh ty biwow te | ev iow a an tgon oat outs le ‘sett yeh ori | 
| si " #3 aoste ar me aus ee oetone oa oftam oul te amie m— 


: hs i ee ‘get . 
“fast? na on eeann ono at bey hee aot towssaaas nosh eu ner 


rt ae: Eee sete if 
| nub at b kee ov iton eit anata bag erro? of hewow yor. ee sa | 
| Py ee) a 

“a state taviorasxon A xb Lert ‘witen ont Ageot ‘shtam edt ‘te etree va 






ee gu stings er: Oy is gel We sy dip) 

; OR MAGE mass yreeaton waeerntd fo 80 woturd mb nabe vote (at ) 

Ls a meriteeuvergiviar +s 

hatin ah alt mk ofan whet te tee sora ae hl peegeeor-on-d Ware 

eee ea Dy P ouien al | 
fais Bs ae “ohita es, teide wt oe 

" Kv at 4 be, Ag PL say ant y pee ? 


brooen sds wa dommbive om wxateer dp saw anna erie son Va 8 

oak? odd to be ieamen Mond hed yobleg oy Pash ware ot authaed a ad 
Srar0m entd eh nee erelwinds any 22 dae yteenvaes anak, Abs ; 
hein i: oxcnnvliien eta oHld of cobtonap. tact? sade ee 
aed ae bevinss eras, ow sto kiw te moleuLe ann with 
tt ie nig ony en ‘tasloy emmonth ot 


a bee UM BE) Rane BERS snd mage 
mbt owe Ak kee ow 4a 
| ‘eae a ast Oy i A ees i 
Ne en geenee 
<TR aa sep ghagh 
Toh so movky 






















eh an oes 
hae 


2% 








Z Veg reaffeed Aecn < Caf tescietal Gure—-t 


Filed alone Febry. 21, 1927. 
116 + S31 2%9 SUPPLEMENTARY OPIEION, 


A iA ’ me 
MeINERERY ROTOR CO, a so i ia 
Corveration, 

Appellant, 
APPRAL FROM GUPEHION COURT 
OF COOK COUNTY. 

AUTOWOHILE URDERWRITERS OF ig 
AMERICA, 


vs 
. } 
Appell ae. | 


BR, JUSTICE RATCGHETT DELIVERED THE OPINION OF THR CoUKY, 


Sinew the filing of the epinion heretofore rendered, 
the plaintiff, appellant in thie court, has moved that the order 
reversing ani remanding the cauee be modified and that Judgement 
be antered in this court in faver ef plaintiff, appellant, and 
against defendant, avpellee, fer the sum of $435,09, 

The undiaputed evidence shows that the actual lees at 
the time of the fire was $4899; that that sum became due on the 
17th day of September, 1924, and that interest at five per cent 
wpon said emeunt from that date wntil the date of the opinion 
here, Vebruary 7, 1927, at five per cent amounts to $886,02, 
making a tetal sum of $5495.02, " 

it was contended by the plaintifY in the trial court 
that, even if it were conceded that the notice of cancellation 
Was valid and suffielent, nevertheless the uncontradicted evidence 
shoved that it had been in fact waived, Thia court, belng of the 
opinion that the netice of sialic atta was not sufficient, found 
it unnecessary te decide that question. 

Ae the amowt of deeages suetained ie not disputed, 
there i» no question in the cane for = jury, oid we think, upon the 
authority of re nena SAMARAS SS + S12 Thi, 365, ane 


GOs, 9193 Ill, App. 84, the motion 


of the siaiatit? sauna be gvented. That part of the order renand- 
ing the sause will be set aside, Judgment will be entered here in | 
favor of plaintiff, appellant, and sgsinet defendant, oppellee, for 
the sum of $5485.02. 


 SeSurely, P.J., and Joinneton, 7., conour. 














Re 


- 
te 







FESS Yo hasaQhS A mses WAI 


WSer ,fS .yrde@ enmole belit 


MOLETNO YwaTonomcoete 
Ce ha ee 


ORL @) 2 ed £5 ws 
Tas AOL Mott Rta © 


| Pics esr aM br? 


ee 





eo Een tee 
» RIND. ait *o entarso ome “coast ax ‘remota ovo 


” henetities exstetered wekmtes ot to gaily dod eonke sty 
Celts add tans beviw ett ,Jeueo Gist ot set togad crvitatate ons i 
“ goomghst tat See felt then @ ‘saves sat yathisadt baa anteteven: ’ 
fine ,fxattroes ,tridatety te coed! at daewoo eat at | betstian oe 
20.80a28 to mea adt ot [ontioagh ,dteh hae o toh , tacitoge | 
$s ones Kawton wilt dedd aweem ‘woawhi ee, Setewotionar ‘oa oh ond : 
od do oub sctoed Ane Peay sedd [OeBRd vaw xT das sane i 
fites tou ort? os Pontegnk dead bes tet” _ rohan Fo ro is nae a 
nabatqe out “te osah ont Ki Paw "oteh Puctt moet Valdas ‘Whew ‘noew i 
capes ot adnwons tee me ovitt da ver pra tie ered : 
ROLUBNE Ne ait ator a Gita 
Hueg kote sco ot “TeTratnky sue qe eetmnitile Haw OT seis on 
aeitssinones Be valven osit david Sebeaton Wrew #1 32 Howe (tad: 
soaphive bets thareneots est wae texteuereg (theherrtve bans bitter one na 
itt 6 pelted .seuow WAHE LNvvliw owt ad Howe ‘Nad #E daild Hewede | 
bee? dine true on ‘dail Nida Lada “80 wekven ody “daily "wa te 
arpa’ todd osioad of cladter 
ee yane Dol “— nih a 



















162 - 31282 


MARTIN LUO, } 
Appellant, ) APPRAL FROM MUNICIPAL count 
ve OF GHICAGO, 
CHARLES JUSDALE, } 
Appellee. 


on 
ey A 4 af NK & . iD] s i : 5 
fe 4 SE Leo FA @ VJ Fed Rat” 


MA. JUSTICE MATCHETT DULIVERED THE OPINION oF THY coURT, 

The plaintiff’ sued on » elsiz for money alleged te have 
been loaned the defendunt with interest thereon, the loan, as 
alleged, veing evidenced by an I. OG. Us of the defendant, signed 

_ and delivered on November 23, 1914, and «cknowledging an indebted- 
nees due on thet date of $510. From further memorandse made there- 
on, it appeared that other sume were adwaneed and oredite given, 
end that there wae a total belance cloimed duc to the plaintiff 
at the time of bringing suit, including interest, of G477.22. 

The affidavit of morite »lleged oy way of defense that 
the plaintiff advanced these aune of money to the defendant, pur- 
suent to the terms end conditions of a written contract mate between 
Plaintiff and defendant on ‘sptember %, 19145, in and whereby the 
Plaintiff had agreed to furnish the necessary woney to cefray 411 
expenditures for the application and proscoution of claims fer 
patents on a steel cound box and rotary steel] wound box machine, 

_ and to defray a1) expenditures neccesary, plus $1,000, fer the con- 

| struction of the said retary steel vound box mchine to be built 

‘ by the defendant, in consideration of which defendant assigned to 

' the plaintiff « one-half interest in al) the patente to be issued. 

| The trial was by the court without a jury. At the con- 

: : @lusion of the evidence, the court expressed the opinion that the 

mt of Geptember 9, 191%, was in the mature of a partnership 








and constituted a partucrehip between the plaintiff and 















PHO TAGYENWR MONT, Lai A 

® . : ES aa ae, Bis i Mong o 
sODAHiAD kh ‘i _ oa 
8S oO. A.l. ok aN & ‘ Rial a MAE 8h 
tion Gur Ye Were meh | nny 4 

| ons oo Sometla Yekor Te) athlo b ae bewe Vkeetadg ont 
; ah sina odd owtads Gietedad Bahr thohaw te! site betel eet 
; pomyle «fanbaeleh o€9 te 00.0 10 me We peemebive pike (iy 4 
| shoddohe? ris ghikgivrswomile ome @ACUL « 88 ‘enim vet mo: bomwwil : 


Psnioed oben abitvrencn tottiwt wort .ored wh each a ana 
norte 4 we ivoxs fm baoamvas tow wind dts Paty botaegga #2 ono 
“witntatg ante ‘oo bub vwmluto evmatad faded a ndw ovens Wiki tine 4 

“18S. THRE Yo vduowwial patbulsike y ¢tere qatiattd to ‘emind ould on 

sent “apmmete® te we w ‘oupaity ethton te dn EP Wad Mowe 
~tq panadamieb odd oF Youom to noun poadd Séorinvie “Wtbatat “One 
mowied sha santétus mteiav a Yo enotsibnes bua eared oud 80 Faire 
“ outa xdorade bas mt .OEOL 49 “tedsetge! m0 incianso « besa — 

Ma wate os omen pLsssooen an aa sanurt steraw't re o07 | 

tot antate 1% motemeono%g 5 baa aotssehtegs ode 

ae ot wh Samal ky seems oA fiat silt ‘bet 

_ thud o€ 98 sntdorm noe “hawoe Looe wredon base an job ours 


Laas bea Ke 
he noddwrobiane 





= oe ioe 












Phas 





ie 


remedy 
the defendant, end upon the theory that plaintarr’s vA > Wee in 


® court of chancery where an accounting might be had between the 
pertners, the court made « finding for the defendant, upon which 
the judgment, in favor of cefenient, was entered, from which 
judgment pleintiff has taken this appeal. 

The defendant has not appeared in this court to support 
the judgment entered, and we have therefore been obliged te eon- 
sider the case without assistance as to hie views of the record. 

Upon the trial, plaintiff testified in hie own behalf as 
to the execution of the £. 0. Ue,the correctness: of the memoranda 
thereon, and the «mount due, and the instrument was admitted in 
evidence. He further testified that this money was loaned to 
defendant after the exeoution of the written contract on 
September $, 1913, andi thet there was no reason for its execution 
except that defendant owed plaintiff money; that the money ad- 
vanced was not used by defeniant in making a mechiney thet defend- 

. amt teld plaintiff he wanted the first lean to pay taxes on his 
house which was to be sold. 

The defendant testified in his own behalf odmitting the 
execution of the Is G+ Us, ami, over the objection of plaintiff, 
he was permitted io testify that «t the tine of executing the 
Ie O. Ue he had some rent to pay for the shop he worked in and 
had to pay for power, light and cool to keep the place warm so he 

| could work, and that he csked plaintiff for money to get slong 
: with for the advancement of this work; that pleimtiff replied, 
“We have sold this thing; we have entered inte a econtreet and it 
_ i all settled now with the Nepublic Box Company. There ie no 
i use of my ac¢vancing more money becouse you will get it sll back 
— the Republic Company. * * * You give me a note for Garo, 
and I wil. cance} thet as seon ae we make this deal.” Further 










~~ tke 
























; eee 
a sas Us a Se vetentely sad? quosds: ats mequ bate iuabaetad as ; 
oct meswtod mel od titgta yasimueooR mm osnatw ervonadts te i wid t 
tiokdy moge «iundnoked say xo yadamst a obam Su90 ond, 9 erent i 
shee beta ne bnw ptmodme tes eo set aE seaman, ome 
sLasqge ohtd madad gost migemiate } Seed Oa 
dxoaqne of JipO RANY Be SurREqGM fom ond tus ‘aia , 2 aarinty 
| ae setgiade Said ” . wash ) 
Oe bere saw yRmom abide, » inde nthaoeetin rire 





epee AO Menten, mOdthee Vibe 0 montueane eK 10879, tapbaaten 
Be kenoexe ohh Tok MOHNAE OR Bum oKOME Sat om (DEOL 48 rodmnsgee 
abs. Yomas 240 ode TYRMOM THLRLOdG fume Saohetot det dqonne, 
“dno ted set) ceektiown a punter ab Jamieson Yo bnew sen aaw dooney 
BAK fg Based Yay Qe Maed taut? sae AT A ee ee 











a sulaehine: Seat: shines, aie aL tektiveat sandra tod, om . i bins i ; 
sVsataty. 26 peter Ann Tome, ple well an hail an ante 








3= 


that plaintiff said, “You know I promised te give you $1,000 
on this mchine, ond we cen alse take care ef that.” 

Lefendent further testified, “I used the money I got 
from him for expenses such as wood for patterns, for drawing 
material, fer time i put im there «es I had ne other occupation 
~ im waking the mohine and box mentioned in this contract. 

He did not advanee eny other moneys except this 9390. He sew 
me working on the machine after he advoneed the money. I did 
not complete the mchine. I had no money. He paid no more 
moneys I gave him on assignment of the patent ot the time he 
mace the contract." The defendant seys thot he used absolutely 

mone of the money for psysent of taxes on his home, but deed it 
te pay some of his current expenses durins that peried on the 
shop and his living expenses, and “I borrowed money from Mr. 
Tunew for living expenses while i was working om the box. Im 
the agreement Mr. lanow agress to pay all expenees." 

M The contract between plaintiff and defendant is in evi- 
Gence. In Parvgraph 2 thereof, plaintiff agrees “te furnish ail 
necesenry money to defray o11 expenditures for the applicotion and 
prosecution of patents for the erid ‘teel Bound Box ome the said 
Retary Steel Bound Box Mechine.” In the third parograph, plain- 
tiff agrees “to furnish to the said Charles Jeadale sufficient 
funds to defray a1] expenditures neceseary, plus $1,000, for the 
construction of the said Hetary Steel Bound Sox Machine to be 
built by the esid Charles Jexdiale.” 

| We think this contract cannot be construed to require 
the plaintiff to pay the current living expenses of defendant, 

| and thet the fact that defendant gave his I. 0+ U. for the money 
5 “advanced shows clearly thet the parties did not adopt any such 
: “Construction ef these clauses as defendant elaimed. 


The plaintiff «rgues persussively that the evidence 








L 


\ 
i 
j 
{ 





ae 





0.48 wor wwdy ed pestuonty: 1 wont nod" sbhae Tibimtate aa ‘ 
"tad? "th one oted oeln MoD ow dma yentitoms atte ae 
tog Toginew edt Xoaw T° pRoIdewod sedeewt tunbeoted + “nag 4 
ytiwerh «ot pamnatdog tok boow ll aewe ‘eeamomR® ro} ms monk 
Sehiaqanen vento om ke Lowe ekads gel tay £ wenkd 20% ctekaedoe 
stowztneo shit ot demeiesom wed hem entdncm te pation mt = 
Wem a WORE ake Sqopam: wept rede. ae omerda Jom 028.08 
“bth 1 ogomos Ot bemanvbs ot cette emkdpain eis mo yeksron om 
often on dhsy of estes on Sd Ly embsionm oat stoLqne ton 
Wi MOS OSE Fe Meio wna, aes 20 snaapivne oe atl oveg i aeons 
Cistolonsa rou so dod SYN SuebNOres oT", 2e0TImeD od. 908 
#2 c9eh ous jouer wie ao wemad Ww sreawen set qomam, odd YO ome 
ped std DOR OG Hote gainers seemngKe smov UO Ube Te sabe eam Od : 
0S mote Bored Lanowted I bee qeounNDgA® amit wht dom pate 
C vie onty ney gece mat Del tebe connogun oakvil xo? wamssl 
| xo LL Yom of eeOagN wom VM JroRmOTO Os 
ave at dt taninored se viteniale emewsed tumditrtos wilt 0! oe 
iin dutenv? of” ancige Vbtekely tootidd & gegen At’ .onmed 99nd 
bres motsvatiggn Wd TOT ROME Liemgate Lhs estes oF von easnooen 
‘bina odd het net nome fomae she ws S02 eomodey 20 wotaunoneRE 
antite ,dqeryvdag ventt oat ut “vdaddoat x0 newee (Koona ngentelt 
‘aie fd Yat “SLabinwt ceksnd? btn oft OF sta terewy “9h” emetiga OTe. 
“edd vot (000 kG aely erdvendon aun Lhadogne poe 
vo hondlgesusislocadhene obra iguana: woh. ‘ 
Simi hk Olareak e@iroto ste sane athe 
artuper od bawredenon od FOLRAS SoMUONED Bhd ands “Woe wr airy | 
WRabACRIS LO wOkeigxe QmbyEL dmwrtOD esd banaticgans ast oa 
eerom ads wot st 66" panes mundi 
‘tom sh ~— ely bend pals tag 0. 


"vat more 




















obo 


of defendant was inadmicsible to vary the terme of the I. 6. U., 
citing Mumford v» Tolman, 157 Ill. 256; Murchic v. Peek Bross & 
Co., 160 Ill. 175; Feinstein ve “prints, 234 Ill.» Appe 494, and 
many other cases, but whether sduiesible or not, this evidence 
is wholly insufficient in our opinion to establish the defense 
relied on. 

The trial court too, we think, erred in construing the 
eontract (which was simply one in substance whereby pleintirr 
agreec to advance certain someys to the defendant, an inventor, 
in consideration of the transfer of om interest im the invention) 
ae a partnership. indeed, the contract provides for the organi- 
sation of « corporation te manufscture the articles covered by 
the patents ond to #¢1i righte under the same. 

fhe “miform Partnership Act (chapter 106a, Call.ghan's 
Tile Stat. Amnos, vol. 6, in sec. 6 thereof) which defines a 
partnership aleo states: 

"Joint tenancy, tenancy in common, tenmaney by 

the entireties, joint property, common property or 

part ownership, dose not of itechf establish a par- 

tmenchip whether such ce-owners do ox do not share 

in the profits made by the use of the property.” 
See algo Hand v. Allen, 204 I11. G5, and Townsend ve Gregory, 
132 tll. ‘pp. 192, where om similar faete to those which here 
appear the courts held « pertnership was not created. 

it follows in our opinion that plaintiff was entitied 
to recover, end the judgment is therefore revereed with a 
finding of facts and judgment here for the amount of (477.22. 

REVERSED WITH FINDING OF PACTS 
ABD JUDGRENT HERE. 


Johnston and & 
Meturely, 7. J., and Johnoton, J., conoure 


























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«Se 


152 - 31282 


PINDING GF PACTS. 


We find ag ultimate facts in this case that the 
defendant is inégebtec to the plaintiff for money loaned to 
é@efendont by plaintiff at defendent's request in the sum 
of $384, together with interest thereon from Octeber 15, 
1920, at the rate of five per cent per annum, amounting 
to $93.22, and making «» total sum due from defendant to 
plaintiff of $477.22, for which sum we find the plaintiff 
is entitled to judgment. 


























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‘ 
* 


182 - 413124 


Re Co LABOAN, 


i 
Appellee, APPRAL FROM 
ve GIRGUIT coURT, 
PRANK LOVELL ond GOQK COUNTY. 
G. P. LAMBERTON, ~ 
Appellants. 


Ze Pal 5 ie | 
Fey a. tole J) Fi @ 


MRe JUSTICE MATCHRTT OOLIVERED TAK OPINION OF THE COURT, 


The plaintiff sued im acsumpeit upen = promiagory note 
and upon trisl by jury « verciet wae given in his favor for the 
sum of $1,559.65, upon which the court, overruling motions for a 
new trial amd im arreat, entered judgment. 

The defense relied upon wag that the note wee given 
without consideration, and it iv argued that the verdict of 
the jury is ageinst the manifest weight of the evicence. 

The plaintiff upon the trial produced the note, and 
the same wae offered and received in evicenee. Ne further 
testified thet payment had boon demanded, thet he eaw Mr. Lovell 
and Mr. Lamberton sign the nots, and that it was given for 
$1,235.29, which the Model Auto Company owed plaintiff’ for the 
rental of a gurage. 

The defendant tectified that he told plaintiff "Tt 
Would give the note temporsrily, until the Medel suto Company 
made collections on open accounts te pay this indebledneas. 

My. Langan sgreed to this and I told him to have Mre Lamberton 


eign it with me.” 
On cross-examin tion, defendant testified that 


lemberton, the other signer of the note, and he, defendant, 


Were in the cutomobile business together at Clinton, Lowa, 
| from 1912 to 1923, and thet they ¢id vusiness under the 





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ete toe metre waked ni movig gow subindy «sua we paren nat | 
a 10% adohtos galiavrers .2iueo aed iota age. (BBD, ms . aie 
a Renee oat hewedon rAd a si , ake Si 
sovts uaw stom out dodge sac Moqy belLox aanoten oat sh eal 




















seonentve wit te seytew Geatioam ofe: tembege ‘i et oa 

| hts «oten exit nmowberg Lait act avg Pddmiely al Pe 
oiidtt OM .anmebdvo od SovLeooT Hae boveTRo ws new ome odd 
Lhovel .1M wus on Jodo «heduamed seed tad dmouyeg dads beth ot 
WE wovig vow eh Gee bee ,otom ot min aod redmal es one 

ed tot Vikimialg Sows yroqaiod ous Lobe’ od Mo taw 188 868¢. 


i sy & te tates 
I" ttasmtatg Atos en foetd Dok ths ome émehootod aT 


Said bektituat Pmeane tes. eRO58  MiuaEx 9+ 6 BORD roe 
ednanee teh roa hee cate od: BO sate. menttn at 
sawol pam? dee end 

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mame of Model Auto Company; that om July 19, 1992, he sold out 
and didn’t give thie note until he was out of the company; that 
at that time the Medel Aute Company owed Mr. Langan four or five 
months rent, and that the Medel Auto Company afterwards went 
into bankruptey. 

Defendant further denied testimony of plaintiff te the 
effect that plaintiff has eald he would attach the seceunte of 
the Model Auto Company unless he received the note. 

The burden of proof was upon the dcfendant to establish 
the defense of want of consgider«tion by * preponderanee of the 
evidence. leHicken v. Sofferd, 197 tlie 5493 Sehlotter v. 
Triebel, 284 111. 412. We think the jury coule fairly infer 
from defendant's own evicenee that the note was given for an in- 
debtedneas of the mekers. ‘ven if this were not so, the jury 
nevertheless could believe from the evidienee that plaintif? re- 
frained from exercising his legal right to attach the occeunte 
of the Model auto Company. In either enne, there would be 
ample consider:tion for the note. The defense ia without merit 
and the judgment is «ffirmed. 

AFFIRMED. 


MeGurely, FP. J+, and Johnston, J+, concure 








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ov Wgidwtding AON WALL. a 

A AN ER SE TANS A ‘ 
















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&. @. BLTIEG, 
Agpeliant, 
APPR. FRR Gthevkt come 
¥8. 
Y COOK cOmirr, 
ARSX SIPARY, oa gal 
3. €. ZERECHER COEPAEY, a 
Gerveration, and —% “s. PERECHEE , 
Appellees. 


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BH. JUSTICR RATCHSTS DELIVERED THE OPXEIOR OF THRE Comer. 


This iw an sepeul by the seupiaitiant from an order 
which guetained the generai and epesisal desurrera of defendante, 
3, &. Zernchen Company, « corseration, and J. €. Zernchean,to the 
BL1i a2 amended, held the plea ef the defendant Arex Company te be 
Legally sufficient in subctauce and ferm, and wen somplainent 
@iectines te abide by hie bill as awended, dimsineed the same fer 
want ef equity. 

The bik aa onenitsé wae basset goon the Follewing 
written instrument: 

"September 4, 1990. Mr. A. ©. Bh‘ing, i917 Arthur Avenue, 
piece Ili teeis, Sear Sir: In agsordance with our verbal 

& of thie ante, we hereby appoint you te the position 

Zanager of the Arex Company, oh a basis of a yearly 

dreving neowunh ef $10 200.00 paysble monthiy. Thies esmpencas 
tion te be aoplied againet the gress aalse ef thie company, at 
the rate cf 94% eoemission om the first $250,000.00 end 5S come 
mission om ever this atiount. Yours truly, Arex 
vcoupuiticl “By J, & Kermesen, President. <Aseepted: 4.0. 8iting.* 

The BiLA ae smendead avers that imaedistely thereafter 
complainant entered upon hie euployment aid acted aa such general 
Manager wmtil the 22nd dey of January, 1922, during which time he 
Pegeived an4 eredited the sum of $16,950, “being the compensation 
Peeslved from the esi4 7. €. Kernchen and the Arex Company te 
Sate ef filing hia Gill ef complaint. * 

It is sles averret that Eernchen wae during all thie 
time the scle evner ef the capital stock of the Arex Company, =4 


that furine that time Eorncher, through steck ewnershiz, ease te be 









t 
¥ th 

. % wise sete. 4° 

] 


| Tae TESTS MONE A 
seers oot es 





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— sa basen baw ae — st _ te | * = i 





E 
4 





the owner and in control of the 7, 0. Aernchen Company, an Illineie 
eorperation; that he leeated the company in the effiess of the Arex 
Company snd slaced the management andecentrel thereof in the hande 
ef coeplainant, an¢ that cemplainant acted as general manager of 
the J, ©. Kernohen Cerpany from the witdie of December, 1920, until 
January 22, 1922; that coemmlsainant sesumed that Rernechen, heing the 
evner of beth seppanices. "a8 autvorised to extent the contract of 
eapleyaent and be aid, 4 that cempisinaent performed faithfully 
ali duties conmecte? with the function cf general manager of the 

7. &. Eermchen Company for ssid perict of time, but received no 


- further compensation therefer, anc that he was induced ac te do 


by the understanding that the written contract covered hie expiey- 
ment as such. 

The bill furtser allegee tinnt the contract ie anbigue 
ows an4 eapable ef tee or sore menninge as applicable tc payments, 
in that drawing acecwit asy be construed as advances in the way of 
leans, or say be construed ae fixed lisbility a6 seisry, but avers 
that beth parties construe? the saze to mean salary; that upem such 
@enstruction, there was 4ue te complscinant the aue of 92509 from 
the Arex Company unter said aontract; that the beeks, sales records 
an@ secounte, whereky he oould show sconey duc ant oving for services 
in the conetruction of the contract a5 advances by vay of loans, were 


in the posression of the aefaendante, ait that he had ne meane of 
showing the same, and therefore aske¢ that the defendants make 


@isecevery of the same; that he usd from time to time requested an 
Secounting, which had been denied, 

By am amendment to the bill it was averred that the 
account ef complainant was entered upon the becks of beth the 
Arex Company ana the 7. C, Kernehean Company, in regard to services 
Tendered under said contract, as evidenced by payments of sane by 







4 eicatitt as ,ycugact oecpared rs E eat % Lets ace at 1 ote 
Li [i BERS Riga: Serna 
mets OF3 to obs EtTs eet a? Gongude ond betavel ox tase 


ebaieat eas ud teerens fon) noe bap sania ro05 ad@ Jr . ‘ 





Se om iene | : | 
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; te tooxtaen le sandae 8} Bemlzertes ase 2a i ee ie Spade 





aes a Se 


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PES ORRG ARS BE ie Hg 


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beth companies; that complainant rendered such services to bath 

companies concurrently, uwiderstasding that the percentage bazed on 
hie contract as sedified covered the sales of beth companies, and 
that it was necessary te wdjust the amount of sales ef both companies 
fer eaid term ar ce-partners in the empleyment ef complainant wider 
the arrangesent ercated between them by the sald J. ¢. Kernehen, the 
other defexrtant, sam¢4 between then and him as te #aid arrangement, 

It was averreé thet the sales of each company amounted 
te n eum exeeeding $75,006; that a large sumber of sales had net 
been entered im the tecke witil after the termination of eesslaine 
ant ‘es smpleyment, which sales shouwlk< heee heen ereiited te the come 
Pisinant; that compisisant wae cherged with large sume of money paid 
@ut for the esnduct of the bupinesa, ich sheul4é have been charged 
te the businese; sii ef which made the acceuntisg ceaplicated and 
4iifieult te praesent to a jury; 

That during complalimant's eupleyment beth defendant 
companies cesuried tie esme offices under eciplainant'’s supervision; 
that éuring that time complainant reserted and applied te J. &. 
Kernchen as the scle owner ané direster ef the speratione of the de« 
fendant companies; that at the time ef the execution of the contract 
Rernohen tol4 scomplsinant that comslainant was respensible te him; 
that he expected him te take up sll satters in conmmestion with the 
operation of the companies <ith aim; 

That the contract wae vitheut the seal of the defendant 
corporation and was tx fact made with the said Kernchen in the name 
or sai4 defendant eorseration to be paid out of the funds of the 
| #aid corporation as operation expense and Was xe sonetrued with 
Teference to the J. ¢. Kernechen Gompany alas, 

@he prayer of the bili was that the defendante should 
ahewer ond om accounting defendants, or one of then, be decreed ts 


Pay the amount found due. 





er aN es, oS es 
— aoa one 





aged ef aenivrse Aoye SoeebaT: Jaeaielquos tans jecimeques shed a 
. ben ee inegnoe Hing to sedan ad? hexevee SERA RPNONEEE 
sh hte sel talline Jawinn of Tinesegem ea at fest 
Tet tansiosgnen Lo ¢amacesgne adi ak aventrsecee se.amee hha TOT 
ait. ,aacionued «0 .b Biwe od? yd ans neewied badcess, dammegneTTages 
Asanopaicte: han 4b 00 st. hee sath anit, dite semanas 
befayean yaeamcs Hous To eedae acit sacd torrewe gee. 8E so. % to ere 
Jon Sed arise Yo sedewe agtad # ies {000,898 gathoosne me ie-od 
-sisiqase te salteaiwne (952 ands Lhsm aead pdt) bewstas sand 
209, dd 04 Ae9igete ved aves Since anton dese. q2uemvetene a tne 








blow xoasu Ye some anvad dete bemsad> sae dewalatesos tact. rtanotate 


bequests Gnd orad Biwe@ia ded v ,sasaious ed% te doabaceodd B02 ame 
han tedentiques gals noesa ect ohen Apkaw te ife iaanaincd onto 

ie aah reist 4 of aasaene of Seo tEat 

_Amatenn sites, FeO A Gas * tanate igace antiaeh BaM 2+ bess one 
caked H aenintan webay ecaitio veal : 





tana oh 04 Loe sao tent am senion We | oO satinns og it BX 







The defendants, J. C, Kerneohen and J. ¢, Kernchen 
Company, assigned as reasons for a special demurrer thet the bill 
Was Gultifarious and that it aspeared therefrom that the comolainant 
had a full, sdequate. an4 complete remedy at lav. 

the Arex Ccmpany fied ite silva, in eadeh Lt alleged 
that pricr to the begicring ef this suit, om Jume 26, 1922, in the 
Superior court ef Ceek County, complcinant brought am eetion in 
escumpsit an slaintiff ageinst said defendant, a6 sole defendant, 
@leiming damages against the defendant in the sum ef $3,000, and 
filed a 4eeleratias in this ise suit consisting of the eeamen counte 
with an affidavit cf claim, sliecing that after allowing all credits, 
fefendant wae indebted ie hin in the sue of £2866,66; thet that suit 
was Gased upon the sauce sentract Which ia here suc en; that the 
APO Company Filed ite plea ¢f the gomerel igeue ta sald declare 
tien, together with ax affidavit ef merita denying liability; that 
4 the Cause came on ic be heard on Barch 25, 1925, before a judew and 
#@ jury woom evidence offered by the purtias, and tast at che sone 
@lusiou oF aii the evidences a werdicé was returned in sen eourt 
by the jury upon te direction of the eceuxrt, Tinding tse aseuee in 
faver of this defendant upon ine merita thereof; that aevieas fer a 
mew triai and in arrest of jwiguent were beard and over-ruied by the 
eourt and judjuent entered upon the verdict on the merits ef the 
cause in favor ef dé widant od ageinet the ecompisinant as plaein- 
tiff, ond that thereby the identical rights, eclnims, interests and 





demanés asserted, aliccet and averred by the complainant in his 
bill of complaint, were fully and completely determined, adfudicated 
amd established agsines Sim and in fsver ef the defendant, end that 
«the nid former action ut iav, the several proceedings had therein, 
and the fine] judgment «tilt rerained in full foree ani effect, 
unrevarsea, wanppealed from and not vacated, 

| It is quite 4ifficult te underetand upon what theory the 








-— 


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LELE oct? Jess wert) feleoqe a tet eaoeaet ae hengieme ‘vehmemon 
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ad te eboner weebenes hin gouge Leen ee 
“Rege2th £2 Wpbde @k eee OOF Bosty cmegeAD me SME STS hey TOT 
ed? Bi URGE {OS set ne \fie eles te yeinwiged ea SEE eee 
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f 





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ee ee ee 
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(sae YS RoUTere bas Pied onee Feeagint “Is seeeN 
| gsi Ws stiaea was ao to beer ont? sage 





rere Sane 













vesalifietie™: ieabbdioie wisoe tones Se eter ove 8 

Sead hak {YoatiYuk nt Le RGwaE AE Be sical 
, ab otactt best anni boven tercived 
; viel or _ae 











bill ae amended could be sustained, and it certainly sete up ne 
esuse of notion as te J. &. Kernehen personelily, for the contract 
wpon “hich it is bseed shows clearly that he seted eniy in o 
representative capsuity. There is a wealth sf authority te the 
effeet that an officer sf a corveraticn is net personally liable 
wbern an inetrusent wich is exeauted by him in the nome ef the 
eorverstion. A faw of the many canes which alghi be eited are 
Biers et 82. v¥. coutea, 37 111. Avo. 216; Thommeon vy. Yaseelman, 
231 Til. App. 257; smstafeon, 151 Lili, App, 282; Eorth- 
Tyrrell, 133 11. aps. 472. 






it ie slear from the averwents of the bili that 7. ¢. 
Bernchen acted only im a representative capacity, and that he is 
mot persomally liable on the contract. He wes therefore improperly 
joined ae a defendant ic the bill. 

It fe ales clear free the facts set wp in the plea, 
Teolieation te which was waived by the complainant, that coaplaine 
ant hes mo cause of action againet the Arex Company; that ke electe 
ea to tring suit at law unen the contract with remeet tc the same 
matters which he seeks te litigate here, an4 that these matters 
Ravine been litigsted and determine’ in the forum of his sen choice, 
he eannet suceessfully now sainteain a suit in = court of equity unem 
these matters. if he bad receversd in the suit at law, his eontract 
Would have bean merged in the judement, and net having recovered his 
Tighte against the defendant Arex Coseany unter this contract, have 


been finally adjudicated. Flewing, Truster, v. Hess, 125 I11. App. 


265. 
It follews of course that if the defendant J.C. Kernchen 


Company owee complainant enything for the slleged services rendered 
te it by Kim, hie recedy at law would be siple and complete, 


fi de 
The decres is affirue a : 


KeSurely, P. J., and Johneton, J., concur. 





ees 


eee 





a? 








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SE A Ra et CNS bon cn 














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eb oS ten? San Fiosgne evitetasne wet « at ine Seton mone 





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esti eit 62 foscest Milv Yexstase SAF sege wet dn stele jae 
| eden Seed? felt te 5 sesashooncntnsles! wien oe wit @ 2mm 
forrtees eit leet Or *tex ‘sith ‘af heteraeet e* 
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a teg tithe” bo eA aee 2 ee Pea ee eee. 8 iced cid ical see 











314 ~ 51446 


PRESTOR W, BARDIN, CHARMS LL, 
HAMILTON and JAGOB &, LEVUAK, 
Cepartners, Trading as HARSIB, 
HAMILTON AED LEWuaK, 
Appallante, 
mn APPHAL FROR CLNGUET court? 


SAK VELDERAMP, 


Appelina, ‘244 1a E99” 


RR, FUSTICH RATCURTY DELIVERED THE OPINION oF Tie coURT. 


OF COOK COURTY. 


The plaintiffs aued in trever for one thousand saecke, 
368 pounds of onion seed anf 1446 bushele of eniens, of the Yolue, 
as alleged, of $5,600, 

There wae a gles of not guilty, triad by Jury, ond at 
the close of wll the evidence the court inmotructet the Jury to find 
the defendant guilty and asaesese the danages at $40, The verdlot 
was Teturned as dAiresied, a motion of plaintiffs fer « new trial 
Oversruled, ond Judgment ontered on the verdict. 

The evidenom tended to show that pleintilts ere in 
business at Loulevilie, Kentwuoky, buying and selling enion seta, 
a burinose in whieh they have been engaged for thirty years; that 
the defendant is a former ot Lansing, Cook County, Ditineie; that 
in March, 1924, Br. Menigernburg, casting as agent fer plaintiffs, 
delivers’ ta the defen tant 20¢ pounds of enion seed and told dee 
fandant that plaintiffs would give him five oente sere per beshel 
for onions growm from thia wand than the oustemery orice pald by 
other dealers. In compliance with that agreement the seeds were 
furnished by the plaintiffe to the defendant. 

Later in the sucmer one of the piaintiffe, Xr. Hamile 
ton, tegether with ur. Renigenburg and ir, Dillner, went te the 


farm of the defendant to inapeat and look over the growing erep 
4 Faised 4 from thie seed, At that time kr, Rawiiton asked tae de 


haben one <. werent a 1 bean abRdaated net 
aes VE th Rees 


v7 & ® aud 2 
on liens Ne ganntns Yo, ev nO bap y Sth woo, .6 


aus i , ape sinha wi ras pA spay hy RAGA RS ‘a pd iy i ee 9 

ena ie *% 
te baw a, soit outs eh rie : mes for erat cnn 
batt es ed yarl od? hevourteal sxyco. out lonestve, Mca he. oe en eke. 


‘1 
Me eA hog Pps WAAR Si 


tutdioy ont ObE. oa gopnenah acid agene Bue yeti 


weet hs oh > age’ Rama aarti we rue Pi 
hated v0 # 10% aMtaintg 9 wos on # 


a edt 
yee be hs call ue ie 


erases gant woe et Pe pamensen : ae 
sone aS OY Fae Wee Ee Re Bae smth “ie wake ee 
8 toa vine patios bam yniyud pMlawsaed yo Ltivm hey, 
BCID a waited, AREY Ga fe Re Uh! eee GeeRe ree Pd Raed 2) 
edt tetane hed <0 Deye gem mond wed wodd. 
war it "sab ex yd iP) ee sk & wn ies Eo apadl See 
omticx ‘ubwod. Mae te 
satael etre rnd’ a eS eS 
ttl tea ‘tet ed Crd pain 
‘ 7 * Taio $4" 
te A givhoes ff tees 


sll) balay as 
Paes ane 





fendtant where the erop wee, and the defendant teok hie inte the 
field whore the particular erep from this seed was indicated by 
@takes and eald, “Here le yours.* “efentant alas stated that at 
that time he thought the crop would produce between seven mad eight 
bushels te the pound. 

In October, 1924, (that being the time te harvest the 
enione), Sr. Nanilton and Mr, Reigenbarg again went to the farm of 
defendant, and. the evidence skows that kr. Hamilton teld the dee 
fendant that he had come to reesive the onlens, Defendant replied 
that he knew nothing about it, and upon being reminded of the 
faet that he had before thin shown te the agent of the plaintiffs 
the onion sete srowing im the field, replied that he knew nothing 
about it. Plaintiffe sent defendant one thoueend sacks to be used 
im sacking the onions, ont sftervardea visite? the ¢efendant and 
made a demand for them, After reading this demand, the plaintiffs 
tendered Sim in woney $1724.40, ehich defeniant refused to necept. 
Mr. Benigenburg teetified that at that time he aaid to the dee 
fendant, “I told him I 4tan't want to get Aim or anyone elise in 
trouble, but that he wane't going the rigit taing, sand unless he 
eame up an4 ¢i4 what wae rigit he was golng te get in trouble; then 
he sald, ‘I never have refused to deliver those seta.!' He waid, 
'Sive me two duys to think this over, ** 

The evidence further tended te show that the market 
Value of onions in Ostober, 1924, was two dollars a bushel. The 
market price of the bags waa four cents each, and it is apparent 
that the inatruction given by the court was upom the thesry that 
the defendant was liable for the value of the bage but that “he 
was? not 4able in thie action fer the son-delivery of the onions. 


ie, 
Bre 

— 

t 







The controlling question im the ease le whether the 


4 “Plaintiffs are mtitied wdier the evidence to recover the value of 


! beet 
be tiga oumpierod Yates os aveeeen ad sme : ok ott test ¢ anh en’ 
Rcediend behetain waked wma bie th susie gntison oe on 


theseys Peatraeat at Bieta ye een: fae & were ote os 

.tq0en OF Roar deer aw'toh banker (28. 60108 sro ~— t nerwst 

(th oe) Of ban mul wunte eh -te wee DAT HeeNt g : : at 

a eo Seay We tet doy od Fume hae hy Etat Bit m «tas 

aa ate Lens dione gates Pride oath gutting atwnaw ont Saute ean “ | 
ss eanogeh ad toy of withew anv ee aa Suite bkh be bet nae 


we fasit 404 cand Soot : 





¥ 


Thie agtion was in trover, and in order to maintain that 
aetion 1t 1a necessary te show a right of property and pessemsion in 
the plaintii? whe nues, There le no doubt thet growing srope, #t422 
apnexed to the ecil, may be sold ae pavnenal property and that en 
ae@tual ganual delivery ia not nesessery in erder to veet the title 
in the vendes, I¢ was so held in Bul}, v, Grteverg, 49 Lil. 651; 
Graft yv, Viton, 58 T1l. $73; : @, 82 TAL. 386, 022 


of which cases were decided priser te the aaotuent of tha Mmiterm 





Sales Act approved Tume 2, 1915, seo SeltheYura’s Tiiinete Rev. 
Stat. 1925, chap. 1914, ». 8261. Ya do not find anything in the 
vriefe which indicate that the statute mm why changed that 
general rule. These decisions eld (am the statute elee declares, 
gee sees. 17 te 16) that im contracts of aule no property in the 
goods is traneSerred to the buyer wileaw or until the goote are 
ascertained, ang that whare there is a contract te sell weecifie 
oT ascertained goods, the vroperty is transferred te the buyer at 
such times ax the partics te the contract intend to be transferred. 
these seaticna further provide in substance that fer 
the purpose of aseertaining the istentian of the parties, regard 
shall be had to the terse of the contract, the conduct of the pare 
ties, usages of trade an4 the sirewusetonces of the case. The aacq 
ond rule for ascertaining the intention is: “Where there is @ sone 
tract to sell epecific gocda ant the seller ts bownd to do something 
te the gooda, for the ourpone of putting them inte a deliverable 
atate, the property dees not pase until euch thing be done,” 

Ae the defondant pointe out, the avidenee here does not 
4isalese whether the crop pointed out waa ever harverted, or if it 
Was, how many bushels or crates wore produced. The proof also as to 
the contract iteelf ia very indefinite in that it dees not appear 


when or where the orep purchased wan to ba delivered, nor is there 














wa sotaanareg tan  tegeng, ‘ tea. & zosse, ot ™ wn ssn 
aches AO pabreRy dads, Chao 98 4h MRORT ow =e be 
te tal han YEgeTG sanewieg Be bine od Kam yhhom ete 
‘ecine eat gone of rete wk yuaosons Peer werites win 
Sd paed .LEk Of hy fad bios 08 ro a: cote 
“Ha ee Pe =| ~ 








rant eats 4 aia, ata, poi Shoe | nantabhels sania ok Lrg. a 
st mh xtaegerg on ofan, te eipaatane at, Jadt (a oo TL, 0098 oom | 


Nive Ran ae 


ote aboog ot Sitow tH weekam worm eae 98. bensele and ab ehe 


ea! 


Piguet s 


thee ine pt soowage # af Heesd, weary, oP ae 
ta towed ond ef tain teaers at qrueqong nat, .whooy bombed ; 
beete'taaert od oF Bunter fantduce Om? od velitag oe gama ae 
‘sot tease ova adie a4 sbivote usigurt saoisoon mead® 5» tg dantaoet | 
brwgor ieoltung oc? Ye apidantas od¢ garadadoonn, to enom er 

see oe te somhaoe pfowttiice ot Xe wmeod wat ot hak of kasi 
daring Ost .g0R0. ats %, ee Tee oh beet baat te, aezave yaokt ; 
noe # wt rindi oni" tek wolgows ad exe gatalerteoss na? ete dae i; 

_ BabAtonos oh 92 Hewes gh rotten aid hon adann oMitoagn flow of Ponte 

ieee ten maint mad? qaltieg 2o pe aynug met COX. aho Mp MANOR 

siti ga SRA: ME, AAAS, Aree AR RA ape dom ape xereqote nat yatnde 

) tem eaeh gant, eomeh smn 988 y tH AE MLag Aah AOD .eMF Meso yeo0id dente 


|) Gk UR ap ,petaowsad, teve gow fy. tegatem, qoxe rat oriensivenatoed 
| ot ae me dents 0, sept el vapid 


Oe Or es 











4efinite evidence of the priew that waa to be paid, 

if the title sn/ right of porsearion passed te the 
Plaintiffs,then in ease the crop was dewtroyed plaintifis would have 
been the losers, Ye fines it 417fiewlt te believe that if thie erep 
hed been doetroyed, piaintiffe would have admitted the lose wae upon 
then, 

Plaintiffs may save hud a right ef aetion fer the falle 
ure of defendant to deliver the crop of onions am agreed, but the 
property not having been deflnitely ascertained and there being ne 
@videnoe in the record tenting te show that it wae the intention of 
the parties that the right of preperty and scasession should pase 
prior te the aewand, their remedy, if any, wae not by any of trover 
for conversion but ween the contract fer fetlure to deliver seserd. 
ing to its terme, 

The fudcment te affirmed. 

A¥YPIRMED, 


MeSurely, P, Fee and @ohnaten, Jas OER OUT» 





wn oie 1 nit voila of stoornese vb beta 


PN, Sq etl 


be Cet ae Ae eee u nt 
aT aN ES Tinh Saas Oe SS 


Pi ella ee eee 


ee , 
RR a sr Wee te amy Pes 
RNS 


Cabal inte ee a 
‘ Wy 2 ts 


‘ah: Week a thai ei as ey 
ee Ce tm i 


one tpe ee, of, Hee AYA ed bo oe ame tree 
Mose vt =a On ere aie ae en bit 





386 = 31458 


OTTO BACH and OTTO A, 
PORMTETR , 
Appellee, } 
} APPEAL FROM BURICIPAS COURT 
v8, 
GY ONICAGO, 
KRATHENIA PATTER, 
Appellant. <a us — . 
CD ae Faas rm 6) ©) 
a A of uk © E ae \ 1 t 


WA, JUSTICE MAPCHETS WRLIVERED THE GPIETON OF THE goURT, 


The plaintiff aued im foreible detainer to recover the 
possession of the prenises describes as 87 Vout Wlmw atreet, Chicago. 
The cause was heard by the gourt, there was o finding against the 
Aefendant and Judgment therecn, frem #hich this sopeskh has been pare 
feetes, 

The plaintiffs have not appeared in thie court te supe 
port the Judemant, 

The evidence tends te ahew that one of the plaintiffe, 
Rostaker, was in ponserston af the gremiaes Jointly with defendant 
a8 & GOelencen; that he and defendant were econdueting a reoming- 
house buginese together; that defendant gave Boeedeker a chattel 
mortgage covering her interest in the Lleose and futniture te secure 
& note of 91400; that althougn the business was apparently orespere 
Ouse and the rent as it came 4uo woom the lease ould by the defendant 
and her note was not yet due, Beedeker, upon the pretense that he 
felt ineeoure ond wisafe, took possession under the chattel mortgage 

_ wad pretended to mali the lease to his eowplaintifY, Otto Sach. 

a ‘fhereafter Beedeker and Bagh Jointly brought this ace 

; tion to secure exelusivs poesession, 

Fs oi Dafendan} contends that the statute does not give a . 
right of aetion for poseession in such case, on¢ that the court was 
therefore without furiadiction; that there ta a missoinder of 






















vase gates pie wore taceen i sat 


fa tg Be Th shee 


<naaee eT BO cranny: cee CMT et rE 1 nyt 





at. selene: ti iphaehhAbielees ak:teue Tebeababgoddtanht 
vant gues wee sna eu had Ptoweh eon samrg ostt Re A 


“Tag ‘nant nd tenes ent Ho bie meh yron-tunle seman ae 





OTA ALO le att ‘Ye one tH? were We @hoind “were 
thohucrwh Msiw ~Lontot eomkwnne On Ye nodeneeneg ak naw 4% 





q | ketusts A tHishoal ovay Hanidw ren Gach | end ent 
aS omose oF @mud toe? bas sont ade at Seotndah vod aalsevos syage 





parties plaintiff, and that » jeint tenant eannet maintain an age 
tion te reoover exeluaive possession from his esetenant, 
This last proposition we have held reeently te be the 
Agki, 219 Til. App. 334. 





| There are many reasons (unnecessary to diceupa) 
which would justify tae reversal of this fudgment, end it ie 
therefore reversed, 
: REVERSED, 


MeGurely, P. J., and Johnwon, 7., concur, 


Ae gue 






ee ea ae 





yevibratese mr) on i AQ we We 
oh UNO HRB eccrine ty fits: gr cone eNO a 
bs nun i ae. deenioms ener ce ee nets 
Oe 
anes we —e ah boas ant ae aero ee 
















pesnene wait on hue wind: aailt wikdinle e spans: Rk ne | 

od se acme itt stoi eet, to ek one oun 
aR Sas dose ade aati A beotewog ‘hone ye hema bee 
etal wea 1 Vhatanw oon eR oh ‘pense ali el 
al mitt soaniae ein mane ‘eer "a 








a 
31628 
REXBRANDT LAKP CURPORATION, 
a Gorporation, IB URRLOCUTORY 
Apoellaee, 
‘ APPYAL FROM CIRCHIT Com? 
ve. 
OF COOK ConEeTyY, 
WIiLTsi ABRAMS et al., 
Apoollanta, >) 


Fey 4 T A f S ) } | 
<elhe 8) es 


ER, JUSTICE JORNSTON DELIVERED THE OPINION OF THES couURT. 


This is an appeal by Yilliam Abrams, Jack ¥, Cohen, 
Lewis Isaacson, Ben Ieaaesen, Hebert Bloom, Benjasin Lerman, and 
the Metaleralte Corporation, the defendants, from an interloeutory 
order granting an injJywnetion against the defendants in a euit in 
equity breught by the Rembrandt Lamp Corporation, the complainant, 
The questions presented fer review are raleed by a 
general dewurrer ef the defendants to the b111 of complaint. 

The substence ef the allegations of the bill are that 
the complainant ie an Tliinele eorperation with a paid capital stock 
of $789,000, engaced in the business of manufacturing floer snd 
table lawns of wooed, wrought iron, ete... and lawp shades of silk and 
other materiale; that ite prineipal plaee of business is im the 
ity of Chienga, state of Tlilneia; that a good wiki and trade 
Teputation hae been developed in the lavup induetry that de of 
ereat value; that it has 6 well trained orgamilzation of employees, 
lsborers, durverns an’ mechanies; that it hae 408 empleyecs in its 
feotory and shipping departnent, more than 50 euployees in ite 

Office ané more than 20 salesmen; that the loyalty end devotion of 
the employess to the business are factors eesantial te the success 
nad the development of the business; that the confidence of the 

iz employees that they will be treated fairly by the complainant is an 







t of considerable value to the complainant; 


% ‘ 
~— Oi i ke 


defendants William Abrams, Jack Wg Cohen, 


— i 5 es 


te Gl, oF “2%. 












ae, nrmer9 0m, is cilia cee Geen eee 
REM m99.%0, ee Cor ae ft aang 


kor 2 5 Aapabaabe 


mn ro ete Me ce so 


ine eee 


“in: ee soa saneeds ms bree w tase 8 vo aude 
has er duel ney , AOR 





is 

2 
> 
. 












on ot Tn ea 


ad ee he 





ohert | San fiiw. hoow a said roxpntiter te: taki: _ . 
te o vad wiennat, sare anit at i raagginsies 


Leuls Ienseson, Ben Leaaceon, and Robert Bloom were st one time in 
the employ of the compiainant, but that tueir empleymest is new 
$erainatad; 

That durray li. we@wis ie in the saploy of the complaine 
ant in the capacity of advertieing men and ssles manaver; 

That the defendants William Abrams, Jack ¥. Cohen, 
Louis tsasesen and Ben Ieaucson mtered inte a conspiracy, beginning 
in February, 1926, te infure and ruin the business of the complaine 
ant by “actively, maliclowsiy and whlawfully endeavoring te persuade 


eertain exployees ef your axvater to leave the employ of your orator 
and by interfering ond molesting your orator ant its emplayees by 


the false, fraudulent, malisiouws mesons herelnafter set forth, fer 
the sole purpose of obetrueting ant ¢iserganizing your orator's 
businers and hareing and injuring your orator and ite steckholdere; 
that sald fefendante ai4 unlarfully enter inte a combination and 
Conspiracy te injure yeur crater, in wdermining the confidence 
Feposed in your orater by its azployces and by destroying their 
spirit ef loyalty towards your orater and endeavoring te entice 
avay the suployeen from your orater and inducing and endeavoring 
to induce then to leave your orater's empley;" that Robert W. Bloom 
subsequently foinea the coneotracy. 

The bill them sets ferth in detail epecifie acte of the 
defendants slleged to be vrongt'vl, which the defendants committed 


i Pureusnt te the coreniracy, the last of these acts having been come 


“mitted September 17, 1926, The alleged wroncful sete consisted of 


‘ ‘Statenents made by the defentants in conversations with certain em- 
ba Bloyees ef the complainant to the effect thet the employees would 








situates oat 6 cosas ett ad al giwek 4 A worst satel Lie Sib 
jtegeitom be kag esti cnet Baie Laceewiaas Ti gp ee oe, 

hy _ pttedod .% Mow jalin tia ie 2428" feat tes ond suit Ae f 
gaiantyed Sgiatterinen & oink boubsar aeevesel asd teu sosoaeet ne 
otis lems 648 to exeniawd ott m@bretne omenen ae diethiionis ue at 















asad bode od! Kine rer Se 
“baie wo bboattuos n 390! setae Ulhitmetod BEE 


sommbet08 ‘anit anki Ls ann vfs me sta 6 














a dope pee ind re hi dua” syowrtes s ne" 

te teow SENS Tee ‘eget! ear saree wen ® sini 
san sidmd-tnn KG ea taersiviion” wit walnahantten ' 
iP 1G te ss at oor ta 
AUP RAL aa —— te how i iiss. aaa , 


Ce Re hi: 











MAR OR ee Ce By. ? 


plainant and that 1t would be better if they left at once; that 
Abrams was glad that he had left the employ of the complainant; 
that Abrame, Cohen, Louis and Ben Isaacson had organized a Llomp 
and shade businese and “intended to induce” many employees of the 
gomplainant te accept eeployment with the new organization; that 


"dirty deale” had been “pulled of f* in the factory of the complains 
ant; that Lewis was a “ereok;" that Lewis and Abrame had been 


holding meetings with some of the employees of the complainant for 
the purpose of getting so large number of the employees of the come 
Pluinant te leave the complainant's employ and to join Abrams and 
Lewis in a new business; that Lewis “*had cancelled seme order in 
anticipation of going into business «ith one Koos,” sm employee 

eof the complainant; thet Lewie wae doing this to build up a followe 
ing of bis own; that Abrams wanted some salenmen ond asked on em= 
Ployee of the complainant “to help him out," and “to induce several 
of the salesemen*® of the complainent to leave the somploinant; that 
the organization establiehed by Abrams, Vohen, Isaaceen and ethers 
"head a line of merchamAise that «as far better” than the “merchan- 
4ise affered by the complainant;"” that the cempleinsnt had been 
"skinning" people and had been treating their employees “very we 


generously and unfairly;* that the sompinainent treated its em- 


‘ployecs in a “very niggardly and esifish manner and that the 


employees woul’ be much better off if they would leave the employ” 
ef the complainant; that the complainant's methods of deing busi-s 
ness “were not clean,” and that the men at the head of the com- 
Pleinant's organization were "not white;" that Abrame ond Ieaaceon 
took some of the employees of the complainant in on sutomebile te 
their factory and endesvored to persuade them to aecept employment 
with Abrams and Issseson; that some of the defendants atated that 
the employees of the complainant “would not get a square deal;* 
that Abrams said if he “could get some one to take care of the 


fF 
| 
! 
| 


_ hen giles Yo abwidom a eanakelgnon oad sald :sanahacene ah 10: 

























tt penne te POR yest TL messed od bhwow FF Peds hewn! Pelee late 
jw ate Leen et Le yokamr vat el teow detd Baty aa inet 

qed a Senbdgté bik wetenent at te cheek adel vomaeda 7 
phe, a aseye fame ‘ene te ‘euphat at tebon oh poe seentend ehede | 

tactd (Motteninepre won a cote Peele Speen od : _— 


sake lqmoe ait “te -etadee hs: eelh ah Mrte het ceg need haut "aloes aus? 
: Shed tat ammntA hae aie gece "sdeete® #& saw ebwad, tase hme, 
- Janes ba Scere ot le enogedqme en? To. amon ddde anak toed g mH Laat 
ation itt 0 onoyelaam os 10 tedana outed # ymbtaey Xo, eneetng, et, 
Ae EN AO, at fees Cit a! emote aman, ONE, A 
ai sehxe Hawe bel igeten bad” gtwed said jetonteyd: wir a at hwo 
eeyodiongs te * babi eae athy aseatend otal antes 0 uizontiasnd’ 
owotiet a at bdied of alent gutet sew eiwet seald: {nemo temy: sult 6) 
om Aa busine bath Momwntee ome betnew bamwetA tome powe eb % > an 
ieteven soubud oo" bine “y ho mbt qd oe deorithotenae: side eee 
tate pdewwletqnes edd ovde o¢ thewtatemon sat re Mano one £98 ae 
etedte ben abenmes? yeeros ,enntda yd bere tidarne nottestongre ody" 
-nastonon” it madd Methited Ht Haw tort weRbaniteee ee 
mtup Yee eeeqoken ates gathewte mo hed tan etgose *gaban ita 
amo aft hedawnt haus be Lepnon OMe seate Syele taltaw baw ouike ro 
itd tout bn xenon Anthea bow ytbmagate grows ab enegole: 
“eokony edt overt biwee yout Uh 116 wohted downed ptuew aoyatenn’ 















| niten Oc RO Baws ot Oe MoM Odd todd Sow *medtD- lalla 
soareast han amarda dad *yedtaw son" ox0w wot sentuoyto at day abet’ 
of efhdenotse on ab Penal lesen ea ‘iareaincntee andi ace ood 








selling end® of hie business he would “virtually put’ the complains 
ant cut of business; that the complainant “was about te break ite 
eontraet with Lewiea; that Lewis would be discharged; that ae goon 
as Lewie had devoted all of his time and attention te* the com- 
Plainant's business, and had given comelainont "the benefit of his, 


Lewis’, recommendations and ideas” the complainant “would discharge" 


Lewis; that Abrame “was warning” Lewis “merely as a friend;" that 


Lewis had “many enemies" in the organization of the complainant; 
"wae disliked by the officer’ of the eonmlainant, and that Lewis 
"had better make arrangements for cther employment before he war 
Gischarged from® the conplainant's employ; that "the officers” of 
the complainant were "tricky" and “ercoked;" thet “particulariy* 

A. A. Bitz, the prevident, “was tricky and erooked,* and that Lewis 
“would be discharged;" that 1% "would be much better* for Lewie "to 
leave the complainant at once and te take comloyment with the ore 
ganization of Abrams and Cohen;* that moet of the employees of the 
complainant were goin to leave; that the exployees were not loyal; 
that many of them were ready to leave ae goon a8 Abrams and Cohen 
“gave the word;" that they “vould offer" Lewle o desirable comneee 
tion with their organization; that “they knew that Lewis could come 
mand at least one helf million dollars” of the compiaineantts busi- 
ness; that if Lewis would “agscciate himself" with Abrame snd Cohen 
he would make very much more money fer himeelf;" that he was “wery 
foolish not to leave? the complainant; that Bloom stated to Lewis 
that he underetood that he, Lewie, was “going to join the Cohen and 
Abrams organization and congratulated him upon his plen;* that 
Abrams “was determined to cet” Wits “sere against Lewis,” ond “would 
Ret stop at anything;" that Abrams “had no reason* up to the date of 
July, 1926, “to take any of” complainant's “help,” but that “the 


Minute the season commenced and the market conditions warranted, 


Por he 














as! dawns od sil Baw dtieli ill “gate fae 
avon ae tastt thepradests ov hiwow wiver dens phe ati Oe 
_ ane oat "98 mmol tre te 2 ‘ba omit add vo the satovah te ato 
ake 39 toned ext ‘dnote kame wowky faut hou 'S'walel 
"eatacignth & binow™ tants toe09 out “anoht Ans soot tatuonadoes ates 
ag?" ihenie & ae qotoat ‘etwed *putinay eau" anerdA ‘va Bpiend 
—pattgnnte ee ves ‘) no: tontanyro ul at “es tao ‘Cuan ae ot 
shed tort, bas tigate Feros ade ‘te ‘rexuolvto ot? ed beditelt rn 
Pam, oa org Setncege gees texte ‘aot adonumyuartie 6 oe Eg ina otto “hb _ 


Ye. eee er". B yee teeta » Pawel fom08 oat “ae nee : ‘m 4 ! bi 
































‘ei ye 


ost a teed x0 vapdaed oun of ‘Maser n ‘tat 


CL RMS cg 


WR rE 


Fae , ton, =r eas teas torent Co ri is stem 
a: ht Léaxtioe . a adn “matte ‘bien was 2 “eh 

ome etmek soe wee wut * adit ) strate: 
sant at taante iqmoe ect V9 "axel Lod monte tind ono daaok da bike 
sg), baa aa sswadA sto "eosutsl 9 ‘etalocena* biwer sorely 











ia i hd 








oy we Hg Peat ghimeea dat Ka Rerain: PRLS Fait dhs 
ae. 0 ta ‘*yMognta 29 yeaa « orton aomn eter 
CERAM Ae Any Here be " 


:  abvedt 98 bode 29 toe Li taut _1onam be lenne eas eens | 9 


seamen vai #f, — for] sili cum gee oH dee si ons a8 i ° e « i 





a eee, a eer faa oH he ane, 
milod hepa i a ir petaeone rt 
praia ante ae URE sae 2 












he would take as many employees as he desired’ from the comphain- 
emt; that Abraws, Cohen and the Teasnenons “were planning on building 
MP an organization of considerable prepertione end using ae many of* 
the complainant's “*esployees for that purpese an they might find 
conveniont;" that one of the efficers of the complainant was not 
friendly with a cartain employee of the complainant ond wae using 
the employees ag an “easy mark;* that certain moneys te the amount 
of $2800 that the employee had invested with the complainant 
“were not safe" and that the empleyee “had better ask fer the re- 
turn” of the money femediately; that the complainant would go inte 
bankruptey; that the employee “had better quit” tne employ of the 
complainant; that Abrane i614 Wite that the complainant's em- 
Ployecs “were not faitinful to nim,” Wits; that Rens “wae deliber- 
ately holding back production for the purpose of injuring" the com- 
Plainant’s business, and thet other employees vere not preceeding 
as they should in the course ef their employment; that Abrams and 
Cohen told Wits that Lewin snd Hoss "suggested to said Abrame that 
they enter into business;" that Lewis had “double ecroesed® Abrame; 
that Lewis was wifaithful te the complainant and that the complain- 
ant “ought to @iseharge him forthwith;" thet Lewie had been working 
wpon a certain 4eal on which a tale of merchandise smounting te 
about $100,006 was in prompect and that when the organization with 
Abrams was propesed by Lewis, he, Lewis, cancelled the deal so that 


the complainant “would not get the benefit ef it;" that J, mM. Genlif 


kin, an employee of the complainant, “was offered various inducement 
to join the organization of Cohen and Abraus “in the capacity of 

& sales manager;” that Uohen told Schlifkin “it was hie intention 
ond the intention of Abrane to induce many people employed” by 

the compiainant te leave the complainant's employ; thet Schlifkin 
and Abranas hed a “conversation lasting over four hours, in which 









-mialiqacs eit mort “oweteeh eat aw woeyetque’ ‘yee Bar awe ' 
gthiiod a yalenntg otew* atetenes? et bas tested 5 meee tas” gina! 
| “te yom ee goled bee stutitedexe eidoupbianas Yo wobtentang16” . 
| Anat digke yous ae seoaney Jed? vol soegolqam*. otemmaie Lqmee' ei 
| fea aan Jomsio Leino odd te wapetTie odd To.e0to: band: gone) ave oe 
| gabe saw hee towaly lames ect te sayedion adedeeo a nitiw ethas ; vi 
tas aie ‘ef at arena HIRED fads ° paieee yaee ate ne weave ann add | 
‘i SHantnlewon wo? Kee BatnovAL bea once lavin esd tartd gone br! 

sos ont a0 far dotted Bed” eayataee, emit, tmutd. teem “otom tom oxewh 
ajuk om biwew tnonteiqnos gst fade py sete thoommh eon exit ee Mente 
od? Yo veda ont “tiny xegted ba” soyetams. odd tatid: retevetind 
ms “a! deat Lao ate Saas, Behe bles nana tyald. gdm 
eeshioh way" aged toms enue “mh of detent, doa coo aebeee 
“non att “gaiwwtak te ewoguice old 9) apt iouberg Sead. ambs anistomysegan” 
yathovvore ton o20w ERE oLemy rasid 0. tats im, scoonlnud at saunta te” | 
fate asa tt tant * ;datonmgo Lemme Shot te amego ons aplasia —* 





















ante feo ant pais, ota hives oat, " 4 hac all or sini 
pabixor aed bot a kwet tngld * ait dimtits 9 mist mgmenign ths of sigue ta a 


4 Gri , A 


ot anitea ome eu thowstorpm to sine sede so Leet nino a 16. f 


ashe nottents ene ot Lone: toe, Me, toegnete nea ote, Salt oe . 
ae a aR a aa 





i "tenon ada : 

Fe a bakes Seerdsn | ve P 

te ‘Piosaee wast ak” gnats 
Paes FP Se oy. ' 


er ie ond aw on Bs ae 
ee *bewo.Lam edqong we 


niset tciod taste teat ryotqne ‘et uated 
ih Ae Beh pai np ‘ i i Bid, 
‘inhi un! een eet xev wit ont ne 
Listy anaes ale te iE SON MRS Da ity iT 


Abrams made many slandexvous resarke about the complainant and the 
complainant's organization, and ‘endeavored to induce” Schlifkin 
to leave the empley of the complainant and Join the organization 
of Abrams; that Bloom ‘endeavored to induce" Reed to Leave the 
employ of the complainant and to jein the erganisation of Abramn 
and Cohen, ; 

The bill states that the allegations in referena te 
these “acte, statements and conversations,” exeept the converma- 
tions of Abrass with its and Abrame and Cohen with Tite, ere made 
on information and belief and are stated to be true, 

The G11) alleges on information and belief that the 
defendants Abraus, Gehen, Blieom, and Louie and Ben Isanenon have 
from time to time “endeavored to induce" other employees ef the 
complainant te leave the employ ef the complainont, and“in that 
connection have used slanderous, mealicleus, false and wnfair means." 

The bill further aliggee that in waking the statements 
and doing the acts complained ef, the defendants were not acting 
within the scope of legitimate trade competition, but were actuated 
Solely with the (ntent of injuring the business ef the complainant, 

in respect of the defendants Benjamin Lerman and the 
Metalerafts Gorvseration, the bill allegee as fellows: 

*That one Benjamin Lerman has been doing business as Glace 
Lamp & Shade Co. and that in December, 1925, he beeame presle 
dent of the Lervan and Marke Lasy Corporation, and that abeut 
Way, 1926, an application for incorporation was filed with the 
Secretary of Gtate by said defendants, or some of them, fer a 
charter for the company by the name of 'Metalerafts Corporation,* 
in which said Lerman is designated am President, the said Abrame 
as Vice-President, and tie said Cehen as Seeretary and Treasurer, 
whieh business is that of the defendants, or some of them, and 
that said Lerman has jikewise, with the other defendants, been 
actively associated us one of the conspirators for the purpose 
of committing the wrongs hereinbefore aet forth, * 
The bili further allegee that the defendants have not 
_ «- @@ased their improper an4 unlavful conduct but that they are con- 
% tinuing to pursue a course of conduct similar to that hereinbefore 


* 


hae 


7 


‘ 








a 





wIStilelet *ecrbak ef borevashes*® bow tobtantsoene “ J mt e 
odt eves of boot “eouha? a2 Berovaehaa” stot dant ip : 
"eee, Ww repamacagen tn weld Wtet of hae Haunt Sew 


lent 4 NEAR ORRIN BG i 2 Me ae Re ey i il 

















i “¢# eoneneton at nei daigiittet ‘ets tH netads Mid ws «ve tiv eh 
ii meeterass pits foomte *,eneltensdvace fen etsemmdate vata ent 
than oxo ,aSEY MO80 aadOd hee weer tne RORY Ad DO noertthte: + 
| oii ‘etd 6d of Hofats ots bas “toklod baw — 


\: gett MAF ek ted Bat ‘ad ttemtotad ae ‘aoge lis Litd edt eeulegoration 

ea foweadet mat han shied bad’ .wooke’ nt yarn cess 
9 re neegotgan ide *Ueunwk: ‘oo hotovAsHaO* ants ot embtn 
at n tte a Sie’) asap ‘wits €e ad sat ovael od 4 















Ry 






wit “pat patted wi Patt wogeste teatro Lene ware’ cots om 
 yitkten Yon aabw erin iam teh ORE te Den! etebied! atbn ont heltone be ¥ 

Dine osnghenadiongl nesmiaeencdlimasenslontnr name ibestneuis?s:: ile te 

ne) Saree Sania: sadhinatettataenied fe: | 





ee Wr oie LRA weit aeeslloedca 
“aga i nati sate ‘id ait sinew wt sesh aoa saul 
3 : on ager em ah tat ~o0 
“g Ldiaed pies wise bt ena a 


tase phates 
peg tw pee 





Mae 


¥ 


set forth. 

The bi11 further alleges as foliews: 

"That the sald William Abrams, Jack ¥, Cohen, Louis Imaace 
son, ben Isaacson and Kebert Bloom and sald Metaloraftes Corpern= 
tion are not of great financial means and that a judgment againet 
them for the large sume of money which would be justified if the 
comduct of which your orater heretofore complained, 1s continued 
unrestrained by the order of thie court, and by reason thereof 
the wnlewful, malicious and wilful purpose of said defendants 
is carried out, to the extent that your orater's damages would 
os to s large swn of money, Would not be eclleotible against 

BG» 

The bill further alleges that the complainant is sul'- 
fering and will suffer irreparable damage and injury em account of 
the acts complained of, 

The only aueetion to be determined is whether the bill 
states a cause of action in equity. 

The subjects to which the bili relates are (1) con- 
spiracy, (2) slander, and (3) attempting to entice employees to 
leave their employment, It is obvisue that none of thease subjcets 
Comes within the speoial province of @ court of equity. In other 
words, equity has. no exclusive jurisdiction of the subjects te 
which the bill relates, The only posaible ground on which equity 
Jurisdiction could be maintained would be that the remedy at Law is 
inadequate. Te asewne jurisdiction on that ground, it is manifest 
that the bill must allege facts which show # cause of action at Law. 


158 Ho. 272, 2%. 





After alleging a cause of action at law, the bill further must 

state facts and cirewnstances which, aseording ‘oe the well ecetablished 
Tules of equity, would Justify the interposition of a court of equity 

on the cround that the remety at law is inadequate, % Corpus Juris, 


sect ton M4, PR. 39, 40. 
The giet of the bill ie that the defendants entered inte 


&® conspiracy to injure an’? to ruin the business of the complainant 


by making false and slanderous statements in regard to the complain- 


a 





= 


ae 


ob te POPP Par 
aberrant 































h Sk 


pen algod. , wail, Y doa gon 
“BOLT Bilaty Lado hlaw baa ome bate 
eae St bettie feveabert,.« tote bem astern. . te ta. 
peti iveut 6d Sinow so bshe is % gion te 

cy genie Scot olnwes Toate saoy te 

‘Loe tan genes yd baw ,dty0e OY te tahte walt 5 
Be ngontans Ag ik erautee ies <2 ogee Bae 
e'eeteceo tw Bas ssatee OA? oF yh 
Pi nae nn oe dow o eeRourt Tha. syn. gtk 


: PRD SB. tig: atime 
tee at tsi gene aid Yasia eegad ke nosis cad ont ae 
ee it Si Lt & abe 
t0 dewoags ite, etubal hots onan Wrcomeeorat Thue pe Poca 


ie out rests ut bantemser ed ot nottevd ant 
ot hope re ra sess 
er Perak aaa laa sagt! oS 
~n00 (1) ove + wonton rend ost? pete ot _Mtootten ont Y bia 
mn ot eeoyotaae sod tute of uateame tts ) baw raha ta His 
vy “adele sands ve snon batt ayotrde od v amy Lem * 
“aad al “elie hc tawoo rs te goatvong fatoaga ont atid iw 
“ae adowtdes sie %e “noideibs but evinwtoxe on ead i 
wise fa kein ay bawworey ots neon vitae oat venteler Lhd ef ei 


ey ‘oan ante : 
ab ead ‘o ‘eho ae veds ot plage bontatatae oe b 


ot) eRe ws i 


rns nae ed th nena aa 7 _nodde tbatwt mass or 


cae ae Pom RR ies Hea 





| | entation dive ont 6° 9 


& 1 eR 


where 26 taoa 4 te aolsteeeratad ant x 


Na) FORER ws yea eee haar pany “9 aed Mh ROA 






RP ia. AE 






Cue @ Rigg wns Aste ip fy, ai 
ia 4 " 
Pa is irk pe rag tan ik fh 





——- EF 
jg 
i 


and its officera and exployees in order to entice the employees te 
leave the euploy of the complainant. 

The rule ia well eetiled that oat commen law in a civil 
action ef coneriracy, the aonepiracy of itself does mot constitute a 
cause of action; that unless the conepiratoers semmit wrongiul acte 
which result in damage, no civil action will lie; that the gist of 
the eause of action is the tamage and mot the consviracy. Doremus 
@, Hennesey, 176 TLL, 609, G14; Lasher v. LittelL, 202 Tl. 882, 
$84; Dy anberg, 144 11), App. 103, 107; & 8 
935 Til. Apo. 44, 48. The wrongtal acts which were committed by 






f 


> Ba 
= 


the 4efendants pursuant te the conspiracy, aceording to the cone 
tention of counsel for the complainant, were slander and attempting 
te entice the employees of the comp .ainant te leave the complainant. 
Counsel for the complainant reaognize the rule that a court of equity 
Will net grant relief for the commiesion of a slander; (Midkand Frege 
Ns F. 3%. Compton Go., 204 Tl), App. 216, 217; 21 Gorpus Juris, see 
tion 36, p. %); and they do net rely on the slanderous statements 
as an independent, substantive greund fer relief, They merely maine 
tein that the slanderous statements may be considered as one of the 
means by which the defendants attempted ta entice the employees of 
Complainant te leave the ¢omplainant's employ. The only cause of 
action at Law on which counesl for the complainant rely, and for 
whieh they contend that the remedy at law is so inadequate as to 
Justify the intervesition of « court of equity, is the attempt of 
the defendants to entice the employees of the complainant te leave 
Complainant's employ,’ 

Ye doubt extremely whether on attempt to entice em- 
ployese from their employment constitutes = cause of setion at law, 


But without deciding that question, and asewuing for the sake of 


aFgument that an attempt to entice employees from their employment 
constitutes a cause of action at law, we are of the opinion tha} 









ot epeyolque ond solinn of tehte of eooyotame baw anne 38 wah 
Semake Lame ast ‘te. xttqnm - : 
ftvto « a3 sak momo to, teat beleive Lge #2 an. Fon Heal 





: olin » we o¢ yMPiYoReR .yoetiqanas ‘et? a¢ rian : 

gabtquedia has atreta wee jdond le fomen wet ‘tot Tentiirge 

stonalsiques ot? omwot od Immads. gibi wae Le eomyo tenn” wm” OA 

<i2upe te Mwoo » dai? owe oad ORdomooNT Pantin tyme HF OT Lor 

genet pieipte) yeohne te » be eis bik dias oad 4Oe THe dite ‘ F ct os 
ch eernetas a ae ae om: aatiacoal hb ak 













wokass yle neat — ste dfet <6 hago wvbiiitted, | iat 
psf Re ome en honed henivo od (am ateran tate evviindiite’ ‘sae + 7 hiked 
te norecan ad Hioxtie ot foment ‘wont ree a ut 








Aa a eh. th. pnd AE ling . 

To dame te ome ot (ete Yo Mies te mere are 
tie. of ammmtetgame AGF te mene er eee ‘ot ahadbna tee we 
whinipe: "te Mana he wolata RATA! pier AON, Naga tamitte Lemoe 










y 
e.: 


the bil. of cowpinaint does not state a esuse of action in equity. 
The only theory on which cewn#el for the complainant maintain that 
the bill states a cause of action in equity is that the allegations 
ef the bill elearly ghew that the remedy at law tea net adequate. 
If the allagations of the bii1 oo show, then the contention ef 
eoumeel for the complainant ie correct. We think that for the 
completed wrongful acts it ia elear that the remedy at law, if any, 
Would be adequate. The general rule le thie respect is that in 
Gasee of completed torts, damages at lew usually conetitute ada} 
quate redress. %1 Corpus Juris, section 36, p. 66. It te alee 
the general rule that imfunetive relief ia preventive and is net 
granted to correct wrenge already porpetrated. Menard v. Hood, 

68 Ih]. 171, 122; Mead v. Cleland, 62 111. App. 294, 300; Come 

of Hi chway Debce, 42 111. Apo., 85, 30; Widlond 
Proes v. 7. 5. Compton & o., 204 Til, App. 216, 217, (supra). 


The question whether the cemplainant will suffer irreparable 





famage if the fefendante sre not rastrainad Trem pureuing in the 
Tuture « course of conduct elmilar te that pursued in the paet, 

is the precise question tn determines. In considering thie question 
it must be berne in mind that the injunction should not fesue 
merely to allay the fears and ancreneneions of the complainant, 
whieh may saist without any substantial foundation, 32 corpus 
Juris, section 22, p. 423; | .Ge., 268 Tai, 








299 Ill., 324, 365, 366. There cust be at leaet a probobility 


of injury tefore an injunction should be granted, 32 Corpus Jurie, 
section 22, p. 42, in the case of Yule 

Glair, 315 Tl. 46, the court aid (p. 44): “In order to entitle 
one to relief by injunction against wilewful interference with his 





Dusinesr, positive and substantial injury must be shown, * 


In the ease of Vanner v. Chicago City Ry. Co., supra, 









ietinge a2 aotten te seven a 


wee welt toute antia 9%. detctinincated eh Sanat 


ha eh te (oe wat sokeuss oat oe } 


ee) oe en eee 
wagaaa): ene otra tab wed , 








‘> awakens: et tp sno2acnsienane baw eran peng 
i, ederted 86), <tneibtintonwert pompedinintads suasts te xe 
ee ae as «at E18 0 BR 73 









; inigudvacneie wrtanet te od dayne sxoatt nO 7 
| abet sacnlgfe shetamxy od biwesin ava | 








10 
the court said (p. 550); “Zhe act to bs enjoined must be expected 
with reasonable gertuinty if set mijoined.” 


in the case of Gglesby Coal & fe wasen, 7 Thi., 





164, the court said (p. 17%) that even if the cemplainait had ia 
the past euffered injury, “it sheuld appear te justily a court of 
equity in interfering by way of Injunction, that the continusnee 
of the injury is threatened and ite danger teminent.* 

In the case of Rernard v, Commtiauionore of lilghways, 
172 Tll. 391, the court said (pn. 394): "There sre caseu rhere a 
person threatened with an injury of the kind alleged here will net 
be required to wait, if he cen demonstrate that the injury te 
reasonably certain te folle*, but if that question te lett in deubt 
and wneertainty the court shewlA not interlerd.” 

Aseuming, at we lave done for tae sake of argument, 
that the bil. of complaint ateates o eaunse oY setion at law, in 
Feapect of attempting te eaties the eotplainant'a emaleyees te 
leave the expley of the complainant, we are ¢f the epinion thet 
the bili does set show that the cempisinant Bas net an adequate 
remedy at law. We do not think that from the sliegations in tne 
bill we may conclude #ith reasonable certainty that the defendante 
Will damage irreparably the business of the complainent If the ine 
Junction showld not be granted. The bill wae filed Oetober 1, 1996. 
According te the allerations of the bill the leat wrongfol act of 
the defendants specifically referre? te scosurred on September 17, 
1926, Tn our opinion the allegations of the bil) fo not establish 
the fnet that the complainant has suffered any positive aubotantial 
injury. The bill does not allege a single inetance in which the 
4eTendante sueceeied actually in enticing any of the employees to 
leave the employ of the complainont, Ani the matter ef the at- 
tempted enticenent, according to counsel for the complainant, is 
the eesence of the bill, From the allegations ef the bill it is 









acne et sum benke has od at jon. ow «(one 4) ‘ ER 
bis natotme Fou ae Wistaro0 


ee ee ‘ cy 
vee aren Pepe RS 


at ne Sitaesones « bial te seve tnt eee +a) aie Fee 








/ one 
ENE a2 


son Lite ones hege £40 ‘ake ont Le wut as dt te seiibane 


ae dap iE Sn cae 
is egy all ict ‘stirte iin 88 ot 7) thaw haw of 





ne - sae e 


fhe ood alt ~ oe wl tial 






oat of Bite ctaoe id 88 salen 
ene a aps ae Py ae os a 4 : 
tet ba 





> 





12 


apparent that the efforts of the delendants in reapeet of entice. 
went amounted only to wisuccesttul attempts, Judging from the 
past acte of the defendants it muet be premumed fairly sad reason 
ably that in the future the defendants wilhi be a8 unsucteceful in 
their attempte te entice the euployess ef the complainant to Leave 
the complainant's employ as they have been in the past, The affi- 
cere and employees of the conplainant seem to be loyal to the 
complainant and envilling te join the organinetion of the 4efand- 
ants. Ae we view the past acts of the defeniants, they were 
principally of such o nature az to cause personal annoyance to 

the officere an’ employees of the sonplainant rather than to cause 
any substantial injury to the property righte of the sompl sinent. 
In sueh case the general rule is that equity erdinariiy will not 
interfere, 32 Gorswea Juris, soation 430, p. 272; | 





212 Ih1, App. 75, 75. Gur conclusion is thet the domplainant can 
get complete relief for the past wrongful acts cowplained ef and 
ample protection againet their reeurrenge in the future by suite at 
law for conspiracy, slander and enticing empleyece te leave their 
employment, asewing for the sake of argument that the allegations 
ef the bill state such causes of action at Lew, 

Im our view the aliegatione of the bili in regard te 
the ineslvency of the defendants are not sufficiently definite and 
@ertain te renter our Genclusion fim reepeet of the adequacy of the 
Tenedy at lew unwarrantable. 

We are of the opinion that tha injunction should not 
have been granted, Im reaching thia conelusion we are not unmindful 
or the rule that the issuance of an interlocutory injunction rests 


in the sound diseretion of the chancellor. High om Injunctions, 
“Vel. 2, section 1696, pp. 1645-46, (4th od.) 


Fei \ 


In diseussing the sufficiency of the bill of complaint 
jo far we have considered the allegations ef the bill in respect 
























‘ieiahala siento cegton ‘sett Yo aogwatons out entse 

<erte wat dane ‘eit eh ciwed ame woe. a ote a 
eit oF ‘ang: adod paew Banas mat at emote | , 

‘vena 'ad auld To aoLtond amass alt abel ot eeecbidh dneatehqmoo 
ee ee ee ee woly. 96 oA, .6the 
at soneyonae Leiomtes ganee of an exude.» dou te yhtagbontey 
onsen of sett Teter tpatolenso og Ie eeegetgme haw eee te 0 98 ; 
ime LeeG ett eatin de eRmeTS, ght 08 peeked soteg $n: : a 
adpseadbvataat uns udtipe fast ot Len ii ogy: 
: er SR ve Che mottos ,otiwh emeeD RE .euetandad 
Hao PHM LAOd ost FoR a2 aodentases mw , BT, eT we el 











a 


die “Ye hoaie iqiew Bee Sutganre dang edt got Wehtar fe Lemep, 20% 

te whine QF ovutut Bett al eoneraaT aed? deakepa. modt on tone, 9, i 
vito liegelin eae dase vasa Ae wa aia ‘ie iin | ee te 
ROLE ETE NSE SE NR mutton, dial une ave nao peak ds aon 


oe: pant oodattas satlibiidantebiall atm ba 
ath te abana ant Te teegeet al ate 





a fu ee boned ha aie at 9 
co RB ced atoms per te msc | 


e. MeSurely, *. 7., and Eatavett, J., conewr. 


ef all the defendante jointly. We think, however, that the alle} 
getions in regard to the defendante Renfemin Lorman, doing busi- 
ness as the Glace Laep & Shade Company, and the Metalerafts Uvor- 
poration are so utterly vague and inconclusive that an independent 
question is presented as to them; that irrespective of the quertion 
whether the injunction showld have teen iseued agsinet the other 
defendants, in me event should it have been iseued againet Lerman 
and the Ketalerafte Corporation, 

Yer the reasens steted the deeree of the Chanceller 
ie reversed. 

REVERSED, 








Seen 


NTT? CNY Cocmeety o  mN fs 
Tae Rh Pre AM 


ai ica 


aid br 





13 = 30898 


HORTENCE ROSENBLATT, by 
SARAH ROSENBLATT, her mother 
and next friend, 


) 
Plaintiffs in Error, 
ERROR TO 


SUPERIOR COURT, 
COOK COUNTY, 


Va 


ISADORE GLABMAN and MORRIS 
GLABMAN, doing business under 
the name of GLABMAN BROTHERS, 


a gail 
3U 


Opinion filed March 2, 1927, 
MR, PRESIDING JUSTICE TAYLOR delivered the opinion 


Defendants in Errors 


of the court. 


This is a suit for damages for personal injuries 
alleged to have been caused by the negligent driving of a 
motor truck belonging to the defendants, About 5 PeM., June 
19, 1918, Hortence Rosenblatt, a child nine years of age - 
who sues here through her mother, and who for convenience 
will be called the plaintiff - was playing a game called 
“German Spy” with some other children in the backyard of a 
house where she, the plaintiff, lived; and inthe course of the 
play, taking the part of the spy, she ran out into an alley —- 
which ran east and west past the back of the lot on which 
they were playing, and, almost immediately, was struck by, or 
in some way fell against, the defendant's truck, which was 
being driven west in the alley, and was seriously injured, 
the tissues on the back of the left leg from just below the 
buttocks to near the junction of the upper and middle thirds 
of the leg being extensively torn away. 


| 


imme ease has been tried three times, What was done 
if 





sesos ~ EL 
rae RRR mals Sie 


wraaaaoos gourtnow’ 0° 
sala asd <TrAL@Uaaor HARA sie 


<towed al @Ttivaisft | 


OF SOARS ‘ 7 Be, Die a ee 
.TAUOD ROLE ont owl ad make onaeelaloden 
.YTHUCO 1000 


@IRsOM ae WAM@AGO @Rogaet ~*~ 
rates one anentaud od saaweD 


080 6 AT i pnlqnereee ct etasbaetet 


»TSOL .S dota boilt aciaigd 
motatqo edt betevifeb NOJYAT TOITSUL OULGLaIAt . AM 


»ttyoo edt to 


eeirytat Isnoersq tot eezsmsb tot tius « at elidt 
a # to gaivixbh tasgiigen edt yd beevso meed svad of begelis 
| cal eMod @ tuodd sttaebasted edt of yatgmoled doutt toto 
~ 9g8 to etasy emia biito s ,tteldaeeof somettoH .B10L CL 
soneingvaeo tot ofw bas .redtem tad dgvotds oted seve odw 
beliso smag & gaiysiq asw ~ Yiitatalq eit befiso ed [fiw 
8 to breytosd edt mi mexbiide wadte emos atin “yq@ memrep" 
edi to setw0o edtat bas ybevil ,Iitaialq edt .eda exedw sevod 
~- yells ne otat tuo ast ede .yga edt to t1sq odd gnidet wealq id 
doidw no tof edt to dtoed odd tasq taew bae tee sen dotdw 
TO .YO doutse cow .Yistsibemmi teomis .bas ygaiysiq erew yedt — 


Bes saw dotdw .xourt a'taabacteh ed? qteniegs [fet yew emoe at 
beottat ylevotres eew bas ,yolie edt at taew novith gated 
odt woled taut mort gel titel edt to dosed edt mo eovestd edt 
ebtint eibbim bas xeqqu ett to aoksoaut sit teen of atoottud 
-Yews atot (levienstxe gated aa edt to 
— emeb asm tadw wasnt contd beixt anod eat tess eft) Se 
ae " Maat" WA oe BAP 8 


es . . Ae 
ar Li es a SS ate ea a 


weds 
in the first two is not disclosed. At the last trial, 
the one here for review, there was a verdict and judg~ 


ment for the defendant. 


For reversal, the principal contention for the 
plaintiff is that the verdict was clearly against the weight 
of the evidence, However, after careful consideration of 
all the evidence, we are impelled to the opnclusion that we 
are not justified in overriding the verdict. It is true 
that there is testimony as to a somewhat excessive speed in 
the driving of the truck, especially considering that the 
alley was rough and uneven and only 15 feet wide ~ the 
truck itself being 7 feet wide - and that the plaintiff, 

@ child of tender years, ran backwards and forwards in a 
zigzag way in front of the truck trying to save herself; 
stibl there is testimony for the defendants that no child 
ran across the alley in front of the truck; that the truck 
did not zigzag; that the truck was only going four or five 
miles an hour; that the first intimation they had that 
anything unusual had taken place was when they heard a knock 
against one of the wheels, and that they stopped the truck 

at once, Whose testimony should be Relieved? In such a 
case of conflict, to whom credit shall be given is a matter 
peculiarly apt for the jury; and they found for the 
defendants, Counsel for the plaintiff has endeavored to show 
certain discrepancies and inconsistencies in the evidence 
that suggest that the plaintiff was strhek, by the truck, 
at a point in the alley some distance west of where she « 

ran out, and that strong evidence of that fact is that her 
‘pody was found lying along side of the front wheel of the 
truck, But such facts and others were in controversy, and the 


subject of conflicting testimony. As to where the plain- 








































~G= 
isitt test edt A .bseofoeth tom ei owt tarlt edt ak 


<gbut bas toibrev s aew oxedt ~wolvet jxot sted emo edt 


stasbereteb' Sec: iid 


eyie bee 


ait 20% aoidast noo iagioaixg oat inerove: tet 
tdgiew act tentags ylrseio 5" tolbxev ad tadt at thitatelg 
to moiversbiecco fcteras te¢ta .revewoH ,eoasbive edt to. 
ow ted? motetionas odd of befioqmi ots ow .somshive edt tis 
eutt ei sI1 .totbrev sat galbirsove mi beititent tom one 
ai beéqe evicssoxe tedwomoe 6 ot 88 ysomitasd ef eredt tad? 
ede tact gairobiance yifetoeqes per edt to galivich edt 
‘edt -~sbiw test 3f ylno bas asveny bas dguot asw yelis 
wthigmist sit tect tae - sbbw tect ° gated tlestt douxt 
@ wt ebtserct bas ebtseioot asx .axeey tobadd 40 able 2 
__ etieated evee of gaiyid aowrd edt to taort ai.ysw geugia 
biiso on tadt efaabmetsh edt rot yaomtzaot at oxedt Sdtte 
touxt edt tedt jtontt est to taortt ai yells edt ssotos,set 
evi to tuot geiog Yime asw dowrs edt tadd jasagis, toa ae 
_ tet bed yodt sottemtiat tertt ot tadt jrved as, softs 
Abend 6 brsed yd? node easy 9oSlq soxst bad Laveumm ggtddyne 
dou? edt beqgots yedt tect bas ,efoedw edt to ene tanisge 
& dove ol  Theveliéd od bivede yaomttest evodt,..eom,.2e 
. Seaan 4 Ot wovts of tiade tthe. sede ot tos see 20 Oe 
_., Sat sot bavot yodt bus jyytut ode rot tan vinetiuneg 
rota of bozevsehas ead 2litaislg edt rot feequcd. .etagbasteh — 
7 ls edt ct ssinastatencont bus aetonaqetoeth atetreo 
plostt edt yd dodtte saw Titimtelg ods tedt teogaue tas 
. Apsiebig inghatigadl ome yolie edt ot tate ste 
4 fads at tos? ton? to conshive goorte tat pan ytuo, aes, 


| “Mh 30 Saode duos out, 30 abe gnoia gakxt bawt sem, ybod, 
a - hat <Xerevorsaco at stow etadte bas atest dows tua ptount 





~3— 


tiff was when struck, the defendant Isadore Glabman and 
his associates both testified that she was found lying 
along side of the rear wheel, There were several conflicts 
of fact, and the jury evidently did not credit the story of 
the plaintiff and her witnesses, 


There is still such an oteurrence as a pure 
accident, where no participant is legally Liable in tort, 
The’ jury may have concluded that this was such a case, or 
it may have concluded that the defendants were not guilty 
of any negligence, or that the plaintiff was guilty of 
contributory negligence, Whatever the source of their 
final judgment, however, we do not feel warranted in holding 


contrary to their verdict. 


It is contended for the plaintiff that error was 
committed in giving for the plaintiff instruction numbered 
13. That instruction is as follows; 


"The court instructs you that one of the defenses 
relied upon by the defendants in this casd is that 
of contributory negligence on the part of the plain- 
tiff, Hortense Rosenblatt, 

'Oontributory negligence’ as applied to this case 
means a failure on the part of Hortense Rosenblatt 
to exercise such care for her own safety as a child 
of her age, intelligence, capacity, discretion and 
experience would have exercised under the same cir=- 
cumstances, which failure proximately contributed 

to bring about the injury complained of, 
tProximately' as used in these instructions means so 
Closely connected with the injury, that, Bot for the 
contributory negkigence, the injury would not have 
happened, 

Unless Hortense Rosenblatt has proved by a preponder~ 
ance or greater weight of the evidence that she was 
not guilty of contributory negligence as herein de- 
fined, then you must find the defendants not guilty." 


A quite similar instruction was given in Johnson v. 
Gustafson, 233 Ill. App, 216, and it was held to be good, 


The argument that although the plaintiff was required to 





“i 


bae nendaip erobesI taabaeteb oft <dowtte more eaw thir 
gaiyl bavot asw ode tadt boititest ated eetetoonss aid 
atoiftaos fetevee stow stedT .loeenw meer odt to sbte gaols 
te yrose edt ¢ihexo ton bib yltaehive yl ond bas etost to 
.2enecat iw ten _- titataty of edt 


Ging @ es Sénetrneso me dowe I[fite ei exsdT > 8 ils 
‘ ft0# at ofdsil yffegel ei smaqlotitaq on oredw qtasbt 


to jSe80 © deve sew atdt tad? bsbulomwoo evad yas eet or 


viting toa oTsw sinéiasted sit tadt babstidnoo avad yam OE 

6 With saw Wiss tate one tade wo yooneg tien —as Yo 

\ gbedd Yo eotvos sit vovefed® joonegifcen yrofedixeaee 
gatbior ni bednerraw [set tow ob ew prevewod (trompbnl Lamtt 


+t0lbrev tisds of Yratdads 


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beredsuin aolsouttant Tridaieiq ode zo? gaivis mi po Sieg 


ames S, wear bah 
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bie AO, Aba. ak dea 


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-miksia¢ edt to tteq edt mo pees rp rye hy ae 
yp aaa eanettoH ,tt 


Pog @idt Of Bolfeqa eb shoyu ayeatenatabna sol aha 
esnetroH to tree edt mo otutist & ensem 


bas moiteroeld .ytiosgso .sonegififetal # ted te 
“rio sust od} tebay beelotsxs ovad bivow 


_ betudtttmes qLetanixorg exits? te tae ‘ante 
“Yuutet eft suode gaitd of >50 


ivoustaat sesdt al beaw as 'yietseaixzord! 
ois" ‘fot tot dads ok edd dtiw ‘hesheany: se ya orn el 


evad ton biuow. yutal. ‘od? .someg Ligon Te eagaed : 
' Amat 


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aE tata tataee 20 yest Foe 









0, 96.98, Blak mew 28 be one 





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4 


prove affirmatively that, at the time in question,she was in 
the exercise of ordinary care for her own safety, she was 
not bound to prove that she was not guilty of contributory 
negligence, is mot sound; and the reagon is that proof of 
the exercise of ordinary care is the equivelent of proof 


that she was not guilty of contributory negligence, 


Objection is made to defendants instruction 
numbered nine; that the werds, "from the evidence," which 
were used in the first sentence of the instruction, should 
have been repeated in the second sentence, Reading the 
instruction as a whole, it is quite obvious it has refer= 
ence to a belief based on the evidence. Coulter Ve 1, G 


Re Re Gos, 264 Ill, 414, 425. 


Finding no substantial error in the proceedings 
at the last trial, we are bound, even though’ the plaintiff 
has suffered an unfortunate and irremediable injury, to 
affirm the judgment. fhe judgment will be affirmed, 


AFFIRMED. 


O'CONNOR, J. AND THOMSON, J. CONCURs 


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a abt pez “ 


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if ei 2 Ribas pot Gon 
—eORae: nF XS AR ES 


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Seg s ee eg Reus Ls shee 


= shia Hom “s 


pees zulse © 








282 — 31102 


EDYTHE DICK, 
Appellee, 
APPEAL FROM 
Vo SUPERIOR COURT, 
COOK COUNTY. 
ALBERT DICK, 
Appellant. 


Opinion filed March 2, 1927, 
Fe ors 
MR. PRESIDING JUSTICE TABLOR delivered the 
opinion of the court. 


This is a suit, in the Superior Court, by the 
plaintiff, Edythe Louise Dick, against her father-in-law, 
Albert Dick, defendant, for damages for the alienetign of 
her husband's affections, There was & trial before the 
court, with a jury, and & verdict and judgment, in favor 
of the plaintiff and against the defendant, in the sum of 
$5,000.00. This appeal is from thet judgment. 


The plaintiff, Edythe Louise Dick, and Willis 
Dick were married in Des Moines, Iowa, on September 27,5 
1919, Prior to her marriage to Dick, she was married to 
George Pe Jackson, from whom she was divorced on September 
12, 1917. She was about twenty-one years of age when she 
married Jackson, and about twenty-nine years of a ge at the 
time of the trial, Willis Dick, also, had been married be= 
fore he married the plaintiff. The plaintiff first met 
her father-in-law, the defendant, Albert Dick, end his © 
family, at Quincy, Illinois, on her wedding trip. She and 
her husband, at that time, spent sevemel weeks with the 


defendant and his wife. Shortly afterwards, on OF about 


a 
MORE EAST 
<ERHOO KoTsEIUB 
e¥THUOS AOCSe 





staelleaga os 
sVS@I .& dots Bbolit molaigd 


Oe: aG shiek TRS i dai ES 
edd bevevlish SGA¥aP WIPAUL. oMLCISIsE AB” Se ae 
stot odd Yo aokmige 


- aaigeits: Sas 
adt yd ed tu00 xofreque out ee tive & et eid? : 


out~at—redéat ted tesiass (oie eebved dra e 
Yo aOitemelie edi rot eegomab ret  tasbected ‘eit erecta 
__ edt ateted Ieitt s say ered? ,snoitositis. atbaodaud ‘ted “ a 
‘tovet at <toongis} bas gokbuey s bas wut s d¢kw genio’ , 

te mua edd ai ,tasbacied edt tesiags bar vhitelalg-edt 20 
- stmompbut todd mort ef Ineqqa stat. sestesate 


. arcs 









LT AO OO eee) eee Be a Be ee 





of if2e bas glold setued edtybs .Titvaisic a 
<7E xedmotqss ao .awol ,eemtcl aed ai hoittes crew on 
ot Beinsan ecw ede ia ot egsinztse red of SO ae 
tedsetae® ao beo revi acw sie pode mort emoadont 4 eg10sD 
ode aady ons to atasy saowytasmt tds aew sie tser a 
ede te @y 2 te REROY entawyt nowt tweds due <toetost beitiea 
~od botvzem ased bad oats tol ef itty eisiz? ot to omit 
tom text? wtatela oft Ten babeen od ord. 





edt détw exeoe pes meet oe oa 





wBeo 


March 80, 1920, the plaintiff and her husband took over 

and conducted a candy store in Chicago, The defendant, at the 
solicitation of the plaintiff and her husband, signed two 
promissory notes, aggregating $11,500.00, which notes were 
also signed by the plaintiff and her husband, in order to 
purchase the candy store, In the end the notes were paid by 
the defendant. The plaintiff worked in the store off and 

on for a year or more, until some time in 1922, During 

1923 and 1924 her husband took charge of the store. In 

1983, the plaintiff made a trip to Bismarck,and was gone 

some time, When she came back she again lived with her 
husband, at the Willrae Hotel, Ghicagoe Oy, January 23, 

1924, she filed a bill of complaint for divorce in the 
Superior Gourt, on the srovnd of cruelty. The acts of 
cruelty were alleged to have taken place on December 15, 
1928, February 13, 1923, August 1, 1923, and January 5, 

1924, The instant case was begun on January 26, 1924, 

On June 21, 1924, she gave birth to a child, During the 
latter part of January 1924 and from then to January 16, 
1925, she and her husband lived together, On February 1, 1925, 
the bill for divorce just mentioned was dismissed, On Febru» 
ary 15, 1925, she filed a second bill for divorce against 
her husband, and in April, 1925, obtained a decree of divorce 
on the ground of cruelty, The decree recites the acts of 
eruelty as having taken place on December 15, 1922, February 
13, 1923, August 15 and December 25, 1924. 


The declaratioy consists of four counts; they charge, 
substantially, that the defendant wrongfully induced her hus- 
pan to desert and live apart from her, and as a result, 


Zon 


evo woot haedecd ted Sea tWisaielq odz 08BL, os = 





adt t3 ,gasbastsh eft +9599 .i00 al etote ybeso. 4 Mibeiidlin Sas eet 


owt beagts cbasdasst me bas Pitalelq sad to apeneenacn 
exew eston te beer 4000008 L58 gaisvegorygs .caton Yroasimon 
ot tebzo ak ,hasdeui red bas Ytitaisle ot We pengia cate 
WW blag svev setea adit Bae edt of sStota ybaso edt sesso tm 
> Bae tie stote et Bi Sedzox Btitcisiq eff .fasbasteb edt 
esivei ,862i at omit smoe Livny .otom 10 Teey S TO ae 

sl seeete odd te egusd> oct haadeud wed BGR bas BSCL 

aucy Gee bae.jotemeif of qiti & shen Thitesalg odt . <BS8s 
Bric asiw bevit singe eds toad omna sde sedt salt omoe 
ee ‘veauaat, o angen ie f9d08 ont ilie edt te 











oat sk sexovid zet $atekaeeo to iti s Belit t a shee : 


te sos gt ee ewrt0 to baniong sat 0 Ps > 
at Boat “Ee 
Bt radius ze soa asiiss evad of beyeLia exew 


<a yrsunat bas EARL ai faupuad S86! BE ite rot 
geese °F, 
*bSSL 88 ‘Xtevash 20 suged age 88D Sastent edt 


eat paige bitte & of drtid SF SQ aie S88. IB 92 mit a0 







ot Cisne. Ot nod} Bort baw Ager yuagast te greq redtsl . 


288i I yrmvrdst 40 ,retiteger bevel suedusd ton See ede geheL 

—wrd3t 90 ,bezetnelth es¥ Semettaen feu, sotevih tek Led ent 

“Feainges sevevih tet [lid bacbee o belit sae .OSOL Thee 

serorif to sstooh # bentetée WSEL .fitaA ct dae phamdend cod 

Ye atne out eat tect sexoeb ear yu fewre to bewowy add ao 

eave’ Lape = redmevst so eoaly aeiai gaived ea xd Leute 
sions ee iat tense: tenged SEAL ce 


Pd 





ie viscous a eel 


cea 2edo we patios x0} te e atatance Logos en 
od ott tae fier 7 
is 





2 ae 


Lee phe bate a 





aa hg __ Yr wh setae 





ee wy ee! se PO 






















ronal 


alienated and destroyed her husband's affections for her, so 
that she was lost and been deprived of her husband's society, 
and his assistance in her domestic affairs, The declaration 
sets forth that the misconduct constituting the tort charged, 
occurred on January 1, 1921, and on divers days subsequent 


thereto, prior to the beginning of this suit, 


For reversal of the judgment, the chief contention 
ef the defendant is that the trial judge erred in ruling 
upon certain matters of evidence, In the view we take of the 
ease, this contention is well founded, Wo brief has been 
filed on behalf of the plaintiff, The brief for the defend= 
ent enumerates fifty-two, so-called, points, Inasmuch, how 
ever, as the judgment must be reversed and the cause remanded 
for a new trial, owing to the errors mentioned, it becomes 
unnecessary to set forth the evidence in detail, and we shall 
limit this opinion merely to a consideration of some of the 
contests which arise concerning the admissibility and re= 


jection of evidence, 


The evidence introduced on behalf of the plaintiff 
to make out her allebad cause of action, before resting, 
consists of her testimony, which covers nearly 300 pages in 
the record, and certain exhibits, made up chiefly of letters 
written by the defendanf to his son, the plaintiff's husband. 


On redirect examination, the plaintiff was asked 
why she ceased working continuously in the store, and she 
answered, "Because my husband * * * said, ‘How, my father 
does not want you to work in this store, and you are going 
to get out, and you ere going to stay out.'!" In Fox v, Fuchs, 





te 





eYsetoos s!dandend vent te beviageb aged Sas seoL, ‘est ode sadé 
aedters lesb ant verted he elveeseh cod gi sonst sien Feta 


bag ado x07 ait gatiaditencn, steubacoets a8? | ade stzet atee 
Sass sentir BYSD auevib ne pas A801 oh yrsunah 


os .ted sot sanrtost ta a'basdesd sed boyortneb: ‘baa be tam 








ethos abd to yataniges ed@ of. teisg and 


ecigwesate teddo eff fasesbuy edt Yo Lenteves wt TRE 
gailex ai B@iee agoet ‘sive odd fact ot tuapaeTal 
arid to-eaad aw-wely ot) HE \enaeb ive te weod¥an ‘abibeds dene 
coud gad Réird ‘ek “Ghebaie? Clow of sortestade bie Maas 
~—astob sdf 16% teied est .tiéenieatg on Yo tater SAGE 
~vod pdoimasel .etntog ,fo{fso-os .ows=ys 12? sevezenims fas 
bebassst eeuae eit bac hoorsver of tacm epoca wee rove 















-ssocabivs to i atl 
5 Sees ead tat : 


js Sualats 5 ect te Liadod ae p beosbortat cons ave oat. saedge garnet 

weatteor oreted mottos te esnes hogeits sed tuo eten oF: 

ak aegeg OOF yizasa exeven dotdw stiemiieet sed Je ee 
erettel ‘te tetas ee sham attidiane alatrso oem opm 

vtasdad eIERivatalg od? go0e wit ot taabagtes ot yo aettene. 








manetieekyenthanlisaniapeonnartetedapen a =@ Co keute 
ods bas vorode radial feuov pie yi 








~4~ 


241 Ill. App. 2428, this court, after analyzing the decisions 
on the subject, used the following language, "It follows 

that the rule of the common law still applies to any ad- 
missions or conversations of the other, and that such ade 
missions and conversations are not authorized or permitted 

by the statute '6xcept in suits or causes between such husband 
and wife.'*" Sec. 5, Chap. 51, Cahill's Rev. State, 1925, I+ 
follows that the testimony above referred to was incompetent 


and inadmissible, 


The plaintiff was asked, on direct examination, 
what, if anything, her husband said to her at or about the 
dates of certain letters which had been received by her in 
September, 1921, and she answered that her husband said, 

"I feel exactly as my father does about this situation. 

You are positively no good; I believe exactly what he has 

said to me, I want you to get out of the house, i don't 

want anything more to de with you," She was further esked on 
direct examination, whether she hed any conversation with 

her husband about December 7, 1921, indicative of his feelings 
toward her, and she answered that her husband said, "I am going 
to do as my father said; I am going to be firm with you, andi 
am going to be the cock of the walke" Those questions and 


eanewers, under the ruling of this court in the Fox case (supra), 


were incompetent, 


When the plaintiff was asked whether in the first 
year of their married life her husband told her anything 
about his attitude towards her, she was allowed, over defend- 
ant's objection, to answer as follows; “He said 1 was a 


very loving wife and considered me all a wife should be, @ 





= 


ed 


saciaioe® oct geizylats retis ,stv00 eidt ,&S .qgk .ff1 188 
seo ffet 2i* Uaghugaal gxtwolfot off been .sootdue’ ee me 
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“whe dowe teri dan aS ro stetectm 
 $etdisxeg ro bexdre 
beaded dpa meenfed ecuvac to etive at deste seen 
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soitsziagxe foorit mo .beder esw einadener: sapere al 
ide vite Bi Fe ek WET tntteed 284 Gant baie 

~ ei Ged qe Bevteset weed Hed do ble exedse! ntatiéo to deta 
| {bias Siadend gor eadf Berdweae one bas ,18eE | +08 
 neEtans ie ath ted “ook voitean or ou ‘erteaed 208E* 
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a0 bedbe sterut dee ode ~ *"{goy d¢iw od of 9765 suki toe 


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agatfeet eid te evitestbat , 1801 .v redmeset jueds bnoahst the 
galog me [* iss Susdeud ted é aalt betowaas esa baa ered bases 
I bas 688. asiw anit sd i ‘gatos aad I poise, rodtat = as “os “ed 
: bas emoiteoup soedt S,tisw ait Yo 4000 oh od of 
(sau8) ga60 x0 edt at Pru09 ands to askin ost shay 1m — 5 










‘tap e004 sodtede potas car 2i8eniaig ost sem . 
, Badr yas r0d blot handeud tod ott! hetrsan tied? te zaex 
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_# Or T Bian on" sevosiot Sf tree, “L.eoaieride ante. 
yonte S08 1" peed aeY 


S * eed were shiv s ‘ies 


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am 


Se 


loving companion. He said a great many things, I, September, 
1921, he was extremely critical and his attitude toward ue 
had changed. Ig September, 1921, he took me by the hands 

and twisted them and said, ‘you will sign these notes, ¢ 

He referred to the notes we had signed in taking over the 
business, He said my father knows the type of girl you = 

are, and I believe him," That was objectionable for the 


reasons we have elready stated, 


A series of letters written by the defendant to 
the plaintiff's husband, which were surreptitiously gotten 
by her from her husband's possession, were introduced in 
evidence by the plaintiff, and it is contended for the 
defendant that, having been obtained without her husband's 
consent or knowledge, they were inadmissible, Where evidence 
has been obtained by violating the law, as, for example, in- 
vading the privacy of a home, without a search warrant, it 
has been held that the evidence may be suppressed, Where, 
however, as here, the letters were sent to and were in the 
possession of her husband, and they were not obtained by 
duress, or fraud, other than being taken without his knowl- 
edge, we feel bound to hold, particularly as they were offered 
in evidenes, not against her husband, but against the defend= 
ant, that they were competent for what they were worth. 


It is contended for the defendant that at the close 
of the plaintiff's evidence, or at the close of all the evi- 
dence, the court should have instructed the jury to find for 


the defendant, There is a large volume of evidence, and an 
examination of it does show some evidence tending to prove 


the cause of action alleged, and that being the situation, 


under the law, the evidence had to be submitted to the jury. 


—<a~ 
«it Te 


etodastqe® li .egaidt qasn gests & Oise oH .mekasquoe galves 
ox brewed shusttts elt bae Lsottite ylonet?xe eer et gfSOL 
‘ebaedt or# yt om soor sf SOL .tedmatqs? gl sbegasdo bad 

+, eetem Saett mia (fiw soy! ,biee ae medt Dedetwe bas 
gif reve gaidad ai bsagie bet ow eeten ott ef berreles ek 

@ oy Dtkg to. says Sit awonx isd@et ye diem o> ,seeateud 

- gdd-wet efdancitestde cow tes? “etd eveiied. 1 bas. ,ems 
batate ybset is, awed, ew enogsexr 


ot gusbasied edt yd setdirw stadiel te aaires.A | 
satiog Yeuctéisgeciwwe orew do ide badegd eft? g edt 
gt beovbortai orsw .nofissessou e'basdaud aotaneth 0A xs 

. off 10% bebmetnco al ti bus tiivatalg edd yd eonehsy 
ethasdaud ted suoctis ceatarde seed galvad 4tedt 7 ashe lob 
sonebivs ered @idiesimbsri oxex yoo? ,eyhefwend t0 2asegon 
~ai aiquexe, rot .e6 "sl odt gaitsioie Wi honiatde, aoed ead 
of qtearies dorsee 6 ivodtiw .emed 6 to yosving edd, gatbay 
<srsds ,bestetacue ed ver sonshive a4} tad bied nasd eed 
gat at erew ban of taee agen atetiel edt <oxed ga grevewod 
yd beaistde ser avon yess 5aa chasdoud Ted 20 BoLenegang 
~Inond etd tuodtiw aedied gaied asd? tedto. shaett To .a8eteb 
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| wbetteb odd tesiage tad asdaud tod Feat sys. tom 9M 8. 


-Stzew oxew yout Paty <eh Santegue Lye. eds. tad tne 


evade oft 20 sae tuabandeh ait sot Snbnateoe ab. 42 

~ive ed? Lie. to oem, ad 28 20 .somebive at iRita! 
cs ban oanbne © maler axel hab net taste) 
vend, of. pathent quaehine aye. pase Seg) $2. to | spieanionee 
Moitautie edt gated tad bas begets mottos 20 seueo sit 
outst “tt ot bastion o¢ ot Nak eg Sa cond: sb ie 



























6 


Substantial error having been committed, particularly 
in permitting the plaintiff to testify to conversations with, 
and admissions by her husband, we are of the opinion, as 
stated above, that there ought to be a new trisl, We re- 
frain from passing upon the question whether the «verdict 
was clearly against the weight of the evidence; for, even 
if we were of the opinion that it was, it would still be 
necessary, under the lew, to remand the eause for a new 


trial. Mirich v, Forschner, Contracting Co., 312 Ill. 343, 


Likewise, as to the instructions. At another 
trial the evidence will be different, and so may give rise 
to different instructions, 


For the reasons given, the judgment will be reversed 
and the cause remanded for a new trial. 


REVERSED AND REMANDED. 


©! CONNOR, Je CONCURS; 
THOMSON,. Je SPECIALLY GONCURRING: 


I concur in the foregoing decision, but in my 
Opinion the fact that there may be different evidence 
presented on the reetrial of the case, does not mean that 
the instructions submitted and given will necessarily be 
different, To avoid possible error on the re~trial, it 
should be pointed out that the third and fifth instructions, 
as given, were clearly erroneous and would be so, no matter 


what the evidence ise 











~~ 


\izeism if 1aq best tamoo asec gatived terse Last 
eitdiw saoiteszevmes of ‘‘Ylitees of Tridatelq. 

aa ,aotaige edt 26 s%6.2¥ -beadeus. nat. ww anclesians bas 

cor of ,feixd wee s sd ot tiguo sted todd ,gtveds betata 

goLbrove ot? tedgots acitesup 9 aeqy gateseq son} atest 

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ed {Lite bivew #£ ,ssw ti tod aotaigs edt Jo exewsewett 

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cig 403 4? tettiawe ae et. 4 waved axe ie o@ gent eit abo 


291-31111 


JULIUS KILOSE, 
APPEAL FROM 


APPELLEE , CIRCUIT COURT 


COOK COUNTY. 
Vs, 


CHARLOTTE HAAG, 


APPELLANT. oh | | j 


Opinion filed March 2, 1927, 


MR. PRESIDING JUSTICE TAYLOR delivered the 
Opinion of the court, 

On Mareh 14, 1924, a judgment by confession, 
in the sum of $1,266.75 - being $1,000.00 principal, 
$216.75 interest, and $50.00 attorney's fees - was 
entered, in the Circuit Court, in favor of the plaintiff, 
Julius Klose, and against the defendant, Charlotte Haag, 
on a promissory note, which was signed by the defendant, 
and payable to the plaintiff, 

About a year laker, on March 9, 1925, an execution 
was issued, and on March 13, 1925, returned, showing service, 
demand, and no property found, and no part satisfied. 

On March 27, 1925, an order was entered based on 
a motion of the defendant, supported by affidavit, that the 
judgment by confession of March 14, 1924, be opened and the 
defendant given leave to plead, the judgment meanwhile to 
stand as security, The defendant pleaded that she had paid 
the note in full. ghe, also, filed an affidavit of merits. 























MOAT Jagged 
TAUOD TIUDATO 
.YTaUOD HOOD 


- Pat nl a a ae 
nae one alee. 


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r* (od ok LN agi THALES on | 
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ang me 
’ 


o> oes, Oot Besevileb HOLYAT dol TAuUL ouLaL anAs a a! ‘ahs i. | 
_ad 1009, dt Bo, 1 
bot .moiseetaoo yd toomebst « .b80L .df do Te 20 gee 
oe | leqtonttg 00.000.1§¢ gated - ev eds iG t0 awe os 1 at a 
sew ~ adel e'yemtotts 00.08% bas fae te tat suai 


etitéaislg edd to tovet ai .s1000 free odd iat 


ayia, 









a rh a0 eR tbo in sedis cadens svost nowty dual 
bisq bsd ede tedd bebselq tasbacteb oat Vuthuese a8 
etitom Yo thvebitte as beltt yoals .ede Lie? at 







am 


Therein she alleged (1) that at the time of the execution of 

the note, the plaintiff told her she would not be reqtired to 
pay any interest on it; (2) that for a period of about three 
years, just prior to September 17, 1920, the plaintiff lived 

at her home, and was furnished by her with board, clothing, 
tobacco and incidentals; (3) that when he first lived with 

her, he paid $8.00 a week for his board, room and services, and 
continued to do so until September 17, 1920; (4) that on that 
date it was agreed that he should pay $15.00 a week, in the 
future, as far as he was able, ‘and that whatever of that amount 
he Was not able to pay, should be credited on the $1,000.00 

note; (5) that between September, 1920 and December 31, 1923, 

at $15.00 a week, $2,580.00 became due the defendant, of which 
amount, the plaintiff paid $1473.00, leaving a balance due of 
$1107.00; and (6) that that balance, when applied on the note of 
$1,000.00, left due her, the defendant, $107.00, There was a 
jury trial, and, on November 18, 1925, a verdict for the plaintiff 
for $1,000.00, and $50.00 attorney's fees, On November 20, 1925, 
a motion by the defendant for a new trial was granted. There Was a 
second jury trial, and on January 9, 1926, a verdict for the 
plaintiff for $1,000.00, without interest, "plus fees,” At the 


_ Second trial, three interrogatories were given to the jury, and 


answered by them, 

(1) Did the plaintiff and defendant make an agreement 
on or about the 17th day of September, 1920, wherein and whereby 
it was agreed between them that plaintiff was to pay to 
defendant $15.00 per week for board and that plaintiff would pay 
to defendant such moneys as he could, and the difference 
between the amount of money paid by plaintiff to defendant and 
$15.00 per week was to be applied in payment of the note sued on, 


i 
kA 








ae 























pa eee oo 


to mottusexe sit to omit odt ts tadt (L) prem? os mtowed? 

ot betiwper ed ton bivow eda ted blot tittaisig edt -weten f edt 2 

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bevil ttttatefq ed¢ ORCL .SL todmetqe® of tobtq tent .atsoy — 

(gaidteld (btsed détw ted yd bodstar?t asw bas .omod ted ts 

dtiw bewti seriit od medw tsdt (%) j;elstmebtoni bas ooosdot . 

bas .seotvies bas moor .btsoed sid tot doow s 00.8% biee of (ted 4 

“tedt mo tedd (#) jOSeL FL to dns tqe8 fi jam o8 ob ot bewnitaos : 

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dotdw to ,tasbsstsh eit exb smsoed 00,088, S$) teow 8 OOLSLG ts — 

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to ston edt mo betiqgqs nedw ,oonsled tadt teat (8) baw © (0O.TOLLe 

8 asw otelt {OO.TOL$ \tasbreteb edd .cod ebb HST 00. 00058 

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8 esw ete? betnsry esw [atts wor & tot tuebreteh eet YO Hot tom s 
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edt ta “a0? untq" teoretat twotittw CO. cOO i} tot ttttatslg 

base . {tht edt oF nevtg brew eetsotegorIetal sent eisitth birod: a’ 

tnemoets# me efor tashnoteb bas MWitntelg edt Bia {L) 

Weoreaw bas niotedw ,OSeL ,r9dwetqee to yeb HIVE od tode tO" a 
og Yaq of eaW Wirmtele teat molt coontad Bawa a #2 

veq bluow Viktatale tes bas brsod YoY vesw req OVE: yveteb 

 @ometsttib edt Bre’ ~bflvod od es ayorom sou aan o 

bas tasbasteb of Ytttalslg Yt DEs¢ Yorom to ton ont 

«fo bene ston edt to tmomyeq mi betlaqs ed ot aaw doow sx 








-3- 


This they answered in the negative, 

(2) Did the plaintiff board with the defendant from about 
September 17, 1920, to about January 5, 1924, This, they 
answered in the affirmative, 

(3) pid plaintiff and defendant, on or about the 3rd 
day of January, 1924, arrive at an account stated, This, they 
answered in the negative. 

Motions for a new trial and in arrest of judgment were 
made and overruled, and judgment was entered that as to the amount 
of $1,000.00, the former judgment stand. This appeal is there- 
from. 

For reversal, the chief contentions are that the 
verdict was clearly against the mi nifest weight of the evidence; 
that errors were committed in ruling upon matters of evidence; 
and that error was committed in regard to certain instructions. 

Was the verdict manifestly against the weight of the 
evidence? Sometime in the year 1916, the plaintiff, a man, at that 
time, about 82 years old, went to board and lodge at 1927 School 
Street, with the defendant. In making arrangements as to board 
and lodging, the plaintiff, according to his testimony, said to 
the defendant, "T got an income of $540.00 a year. If you be 
Batisfied with the money, I give to you $540.00 a year." The defen- 
dant testified that he promised her the interest on $9,000.00, 
which he had, being $540.00 a year. Following their under— 
standing, the plaintiff boarded with the defendant at the house 
on School Street until the defendant, in September, 1920, moved 
to 3711 palmer Street, and lived with her at the latter place 
until January, 1924, when he left. The defendant testified that 
during the time he boarded with her on School Street, she 
received about $8.00 a week. On July 16, 1920, er a few days 











tests | 
ro. 
sevitegen edé mt cutie evar A 

tuode moxt #aabsoteh odd dtiw bised tritmielq edt bea: (Spios ove 
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biS efit tuodgs to mo .tmebasteh bas ttidnielg bia (6) * ‘ 
yedt eid? ‘doveta dmcoos me ts ovtrte ,ASCL yeteMmay tO Yb 


-svistegen edd at: betewans 
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‘ 


tovoms edt of ae isit hetetne esw taomebet bas _beolurzevo bas ebsit “4 
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of olde ton Sgmont } 

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tedt ts mom 9  ttitetslg edt .8L@I teey edt at omttenoe , testebive 4 
foodies SSCL ts egbol bas bisod of tnow .b1o ersey SB toods  fomit — 

. btsod of as atmeomoxmetts eatadem aI.  tasbhae tob edt dtiw yteents | 
ot bisa ,Yoomttaet atd ot gaxkbroses Mitmtelqieds! gatgpolbas — 

: ed poy tl .teey 6 00,0888 to smosat as tog I") .tasbasted ‘ode 4 
; 9 te eAT Magee 8 00,0333 wey of evig I .yomom edt (dtiw bet tetdee 4 
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vaeban -atedd ghiwollol .1s0y 2 00.082} gated (Bad od onde 
PaO edt te taahue teh Sat Atiw bebrsod Wt taksle eds ‘gatbnate 
= Devon 08 «xoduotgs? iat <tnabasteb edt Litnn teette Leode® a6 
——  :otahg TOttel edt te -r9d dttw hovbl bus .teoute xomisg LITE lot 
tsdt betthteed daabneteb ed? .ttel ed sedw <880h cyreumsy Entas 
5 Wile ghee td? Leodes to, sed dbtw bebsncd ait ante edt gah 
































wed 

prior thereto, she, the defendant, according to her testimony, 
borrowed $1,000.00 from him, the plaintiff, and gave him the 
note here in suit; The note is dated July 16, 1920, payable 
to Julius Klose, with interest at 6% per annum, and contains 
a Warrant of attorney. She testified that she borrowed the 
$1,000.00 from the plaintiff, and without interest, 

On September 17, 1920, according to the defendant, 
she had two conversations with the plaintiff, She says she 
told him in the morning that she could not keep him for $8,00 
a Week; that he said he would not pay more than $8.00 or $9.00 
a week, and that he was going to look for a place, and in the 
evening came back and said that he could not find a place; that 
they talked about expenses; that she did not receive all the 
interest that was promised; that she wanted $15.00 a week; 
that he said he woudd pay it, but as he did not have enough 
money, the difference between what he could pay and $15.00 a 
week, should come off the note. On the other hand, the plaintiff 
denied that she told him that she could not keep him any longer 
for the amount of money he was paying. The plaintiff testified 
that he loaned the defendant $1400.00, and that it was evidenced 
by a check, dated July 2, 1920, for $1400.00. A check for 
$1400.00 was offered in evidence. It was for $1400.00, dated 
July 2, 1920, signed by Paul Schulte, payable to the order of 
the plaintiff, and endorsed Julius Klose and Pp, Manes. FP. Manes 
Was defendant's son-in-law, Across the face of the check were 
the words, "J, M. Durgee, Cashier," The plaintiff testified 
that he got the check from Schulte, and gave it to the defen- 
dant to buy a house with, It was admitted by the defendant, that 
in addition to receiving $8100 a week, she was having the use of 
$1,000.00, without interest, Her testimony as to whether, in 





abe 
ewnomitaset ted of aath Tooos etaghacteh sd? .ede ,otetedt toLtq 4 
eat mid eves bas .ttitntelg edt mid mort “90,000, te peworsdd “4 
aie cOERE .BE let beteb et efor adr” bia im at te 
eft bewottod ede tant bettitess of? asa bistearas. 

itaevetni tuodéiw bas .Ytiearale od¥ mott 06,000.18 | 
“adbasteb sat of paibtooos .O8@L (Tf todnstqee WO"Y we 
ede eysa ede ,ttitnisl sft détw anotisetevied ‘owt bad sae" 

: 60.88 <6t min qeex tom bEvoo ene dadt sated oith hE ta blot 
i 90.08 ze 00. 8¢ asdt otod ysq ton biivow on bie rare a ae 
: edd mi bas soele & 10% oor ot goicg ‘asw od ‘Psitd bak? {Rea ? 
tet jeoatq « Batt fox bivoo od sod bie bas tosd oman garnets” ” 
oe add [Le eviecet tom bib ode dad} jdeaheqne suede bedlet youd 
ee “ison 6 00,ar8 bednew ede tedd -{beatmong daw’ isis deoxsdnt?” 
& ‘Agron eved tom oth of ee tud (tf ysq ‘bho ot bib Gi tat 4 
; ‘s 00. are bas ysq bluvoo ef tedw aoawted eomexettib eit e r¢ noi! a 
“Mental edt basa tedto edd nO .eton edt “Yo amod “tb riaile “ eon 4 
: repo ‘us mbit 90 dom biuod wie tadd at d ‘bret bene’ big! rr 1 





















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‘ts, 





boonebive sew ti tet Bre .00.00bL¢ Suabusteb oad wiuaeee e| 

© rol foods 2 00.000 to? ORE \k ytut bewkb’ weRde 8 Ye 

. botsh 100-0088 ror aan 1 asides vel ‘Bete To wai OO. benidll 
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waotan oats or cm ores bas  tasgramg bi thand phe fap toes 








to eeu edt ape i eew ode dHoow s O0l8y iin se Bm bt ei y 
Beh ight. FE ne mgs 
at tase of ee gio act tei “deers wae .00.000.. 


eA i 


oh le Aan ly Tn dade Cm) Oe sO a. Soe: 








-5= 

July, 1920, she was paid $1,000.00 or $1400.00, is somewhat 
confusing; at first she said she did not see the check, and later, 
that she did not remember, In January, 1924, the plaintiff 
left, and stopped boarding with the defendant. He testified 
that when he left in January, she told him to call in March 
for his money; that she had a $2,000.00 mortgage, and if 
she got the money she would pay him; that on March 1, 
1924, he called for the $1400.00, and she told him that 
the man who owed the mortgage had called, but as he had no 
money she could not pay himk the plaintiff, The defendant 
denied that she told him to call in March, or that he was 
there in March, but admitted that she had a mortgage for 
$2,000.00, and that the plaintiff knew of it, She testified 
that when he left in January, 1924, she told him he owed 
her $1,107.00; and that he said he would give her back the 
$1,000.00 note, 

As to the claim of the defendant that the plain- 
tiff agreed to pay $15.00 a week, her daughter testified 
that she heard the plaintiff, in September, 1920, tell her 
mother that he would pay $15.00 a week; anda son of the 
defendant, paul, testified that in July, 1924, he heard his 
mother ask the plaintiff about the note, and that the defendant — 
said, he did not hage it with him, but would bring it in a few 
days, and that as to the $107.00, he would settle that later on. 


From the foregoing recitation, it is obviate that, 
whether a promise was made, by the plaintiff, on September 
17, 1920, to pay $15.00 @ week for his board and lodging, 
depends very greatly, if not entirely, on the credence given 
the different witnesses, particularly, the plaintiff and the 
defendant. The check for $1400.00 is strong evidence that the 
defendant actually borrowed $1400,00, The plaintiff testified 





— | 
. tedwemoa af .00.0081% to 00.000. L$ bisq asw site 08er Seti 
stotel bas .foodo edt coe tom BIb éda Hise oda tert? ts “ pgertaw too 
ttitaislg¢ edt .ASeL .yisiAst at ,2odwems ton bib ede ted? 
betittecd eH .duabasted oft dtiw yathteod baqgote bias yt tol 

Hotel at Ifeo ot mtd bfot ode Yxnunwh bi Stal ba medW dads 

ti bas .ogsst tom 00,000.88 6 bas ode teat © (Xenon sid’ rot 


.l dows no ¢edt mtd yeq bivow ede yemom od¢ tog oda 
tadd mtd blot ode bas .00.008L$ edt toY befleo ed .b8eL 
on bed od as tud .belleo bed ogsgttom edt bere: odw” ae put 
dnebueteh on? .ttitetslq edt ytd yeq fom hives ede .yentm 
asw od tedt to .dotsl at ifgo o¢ mid BLOF ‘eda ted? bolwes 
tot exsation s bed eda tadt bottimbs sud “do relt ai exedt 
bettitast of .tf to wend ttitsisle edt tedé bas .00,000, 
bowo off mtd Blot ede Gel .yxeunet At Pel ed neliw tent 
edt Yosd tod sviz bluow ed bise of tedd bas {O0.T of cg red 
 jeton 003000, 1¢ 
-nielg odt tadt toebaoteb edd to ites ont or ag toe 
bsititast totdgusb ted ,.doew & 00. are ys or ‘bestgs Tite 
mod Lfet .OS@L .rodwetqo®? mt ,ttivatsfq edd bused ede Hedd 
adv to moa s bts jxeew s 00.8f% yer biivow off tad?” teMdtom 
sid Bised of SSCL .ylnt ot tedt bottitesd” fue? \Hnabie ten 
_tasbasteb oft ted? bas .oton st tuode TuHtntely ott ta: Lonton 
Wot B ak $f gotcd blvow tud wid dtiw $f owed ton bib of (bisa 
+f0 total tedy ofttee bivow od 100-018 ode of ua sahde tee eb 


8 Peeene ia Gee 


etadt. pee ai ti mottstioer gaiogerot edt mor gti mate . 
todmstgqe2 oo ,ttitnisiq edt yd .sdbem sew PING, & tod? edw F 
<Bitigbol bas breed eid rot Yoow 8 O0.3l% yaq ot QOBGL TL 
sovig eomsboro edt mo .yLotitae tom tk yylisery yrev anogeb 4 
1 edt boe tiitaisiq edt .yiislvuoittseq (mesesatiw saoretiih edt { 
ie : edt tsdt conebive grotte at COyOORIS tot dosdo edt atasbaeteb : 
beititess Tiitalelq ost .00,008L$ beworzed ‘Uisstoa taahae 20b 3 ) 


ee ATE Le Ve 


aT ee ae, 







G« 


he gave it to her and her testimony shows some vacillation, 
and is quite confusing, It is admitted by both sides that 
the $1J000 note was given, and that no interest was to be 
charged on it, The plaintiff claimed that in January, 1924, 
she told him to call in March for the money on the note, 
and that he did so, and that she said she could not pay him 
because her mortgage debtor was not able to pay her, That 
is denied by her, Of course, we have not had the witnesses 
before us, and 80 we are at @ very great disadvantage, At 
the trial, the plea of the general issue was withdrawn, and 
counsel for the defendant stated that he stood on the plea 
of payment, and admitted that the burden of proof of payment 
was on the defendant, To the interrogatory of the defend= 
ant, was there an agreement for $15.00 a week, the jury 
answered, no, Bearing in mind the issue, upon whom was the 
burden of proof, the evidence, the finding of the jury; the 
fact that credence to be given the witnesses was of vital 
importance and that there have been two trials, resulting 
in like verdicts, we are of the opinion, notwithstanding many 
discrepancies in the evidence on both sides, that we are not 


justified in overriding the verdict of the jurye 


It is contended that the court erred in admitting 
in eviderwce the check for $1400.00, which the plaintiff 
testified he gave to the defendant, That, in our judgment, 
is untenable, The plaintiff was entitled to state in detail, 
if he saw fit, what took place at and about the time that the 
$1,000.00 note was given by the defendant to hime If at, or 
about, that time he loaned or gave her a check for $1400.00, 
he had the right to say so, and produce and put in evidence 


the check, The fact that the defendant admitted the consider 





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onF on 


ation for the $1,000.00 note, did not, per se, deprive the 
plaintiff of showing what constituted the transaction in 
question, Then, tvo, the defendant had testified, before 
the note was offered in evidenee, that she asked the piain- 
tiff for $1,000.00, and did sot ask him for $1406.00, end 
when shown the cheek in question, testified somewhat vaguely 
about it. In reelity, there were quite a number of reasons 
why the check wae not only competent, but very important 
evidence. It wae isporteant, even, sa bearing upon the de» 
fendent's credibility. The defendant undertook no explans<- 
tion of the check, although it was endorsed not only by the 
plaintiff, but by P. Manes, the son-in-law of the defendant 
and Peter Wenes was not osiled, although his wife was. 


It is contended that, ae the defendunt, on February 
25, 1924, sent a statement of sccount to the plaintiff, and it 
wis received by the plaintiff and not seasonably objected to 
by him, it became an xocount stated. fhe evidence of the 
pleintiff shows, however, that a few days after the Letter 
was sent, he come in frou whiting, where he wes living, sad 
visited the defendant, and told her that he had come, aa she 
had asked him to do, for his money, and that in answer to 
his request, she teld him thet « aan who ownd her 2 certain 
mortgnge, ¥ae then unable to pay her, and, therefore, she 
wae unable to pay him, the plaintiff. ‘that evidence prevents 
the inference that the pisintiff, by reason of not answer~ 
ing the @dafendant's statement, had senetioned the written 


account. 
It is contended thet error was committed in regard 


to certain instructions. The ebstract fails to show st 
whose instance or request any of the inetructions wee given, 








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and the record is defective in the same way; nor does it 
show who submitted the instructions that were refuseds 
The court said in Martin ve Cs & Me Blece R- Re Cosy 220 Ill, 97s 
"It is important to know at whose request 

the instructions were given, in order that any 

alleged error in giving same may be properly 

considered. It is not the province of the court 

to resect to conjecture for the purpose of determ— 

ining whether @n instruction has been given at the 

request of appellants. * * * put it is the duty 

of the parties bringing the record to this court, 

to make the alleged errora clearly appear, the 

rule being that the bill of exceptions is their 

pleading, and must be taken most strongly against 

theme" Boyd Vs Schnell, 209 Ill. App. 1875 

It is claimed by counsel for the defendant that 

in some way the plaintiff, while on the witness stand, was 
guilty of misconduct; apparently in answering questions. 
The plaintiff, at the time of the trial, was over ninety 
yearsof ages Counsel cit@ as illustrative of the plaintiff's 
misconduct, that when plaintiff's counsel asked him the 
question, "Did she (meaning the defendant) +e11 you that 
she could not keep you any longer for the amount of money you 
were paying?" the plaintiff answered, "No, she was satisfied 
to get what I gave her," Gertainly there was nothing extra- 
ordinary about that answer; in fact, i+ was quite natural 
that the witness, presumably not having a knowledge of the 
rules of evidence, should answer the question in the negative, 
and then give the reasons fhree or four other instances 


ef alleged misconduct are called to our attention in the brief 


ef counsel for the defendant, but in none of them do we find 


anything of substantial importances 


Finding no substantial error in the record, the 
judgment is af firmed. AEFIRMED: 


O'CONNOR, J. AND THOMSON, J. CONCURs 





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93 - $122) 


PAUL ADAMITIS, 
Appellant, APPEAL FROM 
MUNICIPAL COURT 
OF CHICAGO. 


Va 


NELLIE McARDLE, . | 
Appellee, Pes A [. Land 


Opinion filed March 2, 1927, 


MR, PRESIDING JUSTICE TAYLOR delivered the 


opinion of the court, 


On February 13, 1925, a judgment by confession 

_ was entered in the Municipal Court of Chicago in favor of 

the plaintiff, Paul Adamitis and against the defendant, 
Nellie McArdle in the sum of $412.21, being a balance alleg@d 
to be due on a $1,000,00 note and $36,80, attorney's fees. 


As a result of a motion and verified petition by 
the defendant, the court, on July 16, 1925, opened up the 
judgment, and gavé the defendant leave to make a defense, 
the judgment to stand as security, and the petition to stand 


as an affidavit of merits, 


There was a trial before the court without a jury, 
and on February 20, 1926, the original judguent was vacated 
and a judgment was entered in favor of the defendant. This 


appeal is from that judgment. 


At the trial the plaintiff introduced the note in 


evidence, and rested, The note was for $1,000¢00, dated 
February 27, 1922 and signed by the defendant. It was 


payable to the order of herself and due in 18 months from 





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its date, It was endorsed by her, and also, by M. Albert 
iver, It recites that it was seoured by a junior mortgage 
on certain real estate and was inferior to 18 other notes, 
aggregating $5,000.00, On the back were certain endorsements 
of payment leaving a balance due of $334.16, It is the 


theory of the defendant (1) that the note was paid; and (2) 
that she had a good defense against Iver, who had taken 


the note before maturity, and that the plaintiff (as she 
Claimed) took the note after maturity, and, therefore, he 
was not entitled to recover, The plaintiff's theory is 


that he took it before maturity, and that it was not paid. 


fhe defendant introduced in evidence, over plaintiff's 
objection, what purported to be a memorandum dated May 19, 
1923, and signed by one N. Albert Iver, It stated that it 
was to certify that he agreed to give her for her interest 
in 4911-13 Calumet Avenue, her original investment and ten 
percent in cash including "all payment" on second mortgage 
note at any time within one year from date upon 90 days written 


notice, 


Also, there was introduced in evidence over plaintiff's 
objection, a memorandum dated July 16, 1923, signed by 
N. Albert Iver and Nellie McArdle, the defendant. It 
stated that he agreed to purchase and she agreed to sell 
the Calumet Avenue property for the net sum of $4500.00; 
that he was to assume all mortgages and that if the contract 
was not olosed in 30 days, it would be mull and void, 


She testified that she met Iver at his office and 
received the money which was promised, She further testi 
fied that she made the payments which were endorsed on the 


Sattied , acca ia 


nan 


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back of the note; that Iver had the note there the last 

time, in June, 1923; that when the deal was closed, nothing 
was said about a further payment on the notej that her name 
was not in the telephone book and she did not suppose the 
plaintiff knew where she was, When asked as to what occurred 
at his office, when she received the purchase price, in 
regard to the note in question, she answered, "That was 

to go ing I had no gonvetsation on that note," ‘There was 
introduced in evidence, over the objection of the plaintiff, 
@ warranty deed, dated August 8, 1923, from her to N, Albert 


Iver and Esther B, Iver as joint tenants, 


One Marshall, an attorney, who was the trustee 
in the trust deed which secured, among others, the note 
in question, testified that, on February 9, 1925, the 
plaintiff called at his office and handed him the note, 
and asked him how it came about that he, the witness, had 
executed a release deed which the plaintiff had found, upon 
examination, on record; that he, the witness, said he would 
look the matter wp and let him know; that he asked the 
plaintiffwhere he, the plaintiff, got the note, and the 
Plaintiff replied he got it from Ivers a few months ago, this 
last summer (meaning 1924); that he, the witness, said, 
"You got it after maturity", and the plaintiff answered, 
"Yes"; that the other notes were all paid and cancelled. 


There wad introduced in evidence a letter 
dated February 11, 1925, from the attorneys of the plain 
tiff to the witness Marshall, It stated that the plain- 
tiff was the holder of note 19, the one here in question; 
that it had been given to them to collect; that they found 





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no record of a release deed purporting to be executed 

and acknowledged by Marshall; that they, the plaintiffs, 
had confessed judgment on the note for the bajlancé due, 

and were sending the letter to let Marshall know what 

had been done so he would have an opportunity to investigate 
the matter, as to any liability he might have incurred, 


The defendants there rested and the plaintiff 
moved for a finding in his favor, This was overruled, 
The evidence of the plaintiff is as follows; which, taken 
‘literally, is somewhat confusing; that he had known Iver 
for several years; that he acquired the note on April 30, 
1923; that on that date Iver owed him $5,000,00 which 
was over due; that Iver paid $500,060 on that date and 
later on gave him the mote for $800.00; that he said to 
Iver that he needed the note and he, the plaintiff, asked 
him, what for, and Iver said he wanted the note back and 
he gave it to him and Iver gave him a trust receipt and 
he, the plaintiff, gave him the note and also another note 
and Iver kept that for a few days and after a while he 
gave back the trust receipt; that Iver owed him, prkor to 
April 20, 1923, $7,000.00, andhe, the plaintiff, had a note 
for it; that Iver gave him a note for $800,00, and he took 
back a note for $5700400. 


The plaintiff introduced in evidence a note dated 
April 20, 1923, for $5700.00 signed by Iver. The plaintiff 
further testified that om April 25, 1923, Iver wanted the 
note back and he, the plaintiff, gave him the two notes and 
Iver gave him a trust keceipt. 





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“eid bedaaw tovt (eser af rite ao “tad heititesd redeeat 
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ap guou sdgbeoed taite & mtd oven tour 


NO SOR RP vil 8 Spends 3 a ves 


» Rye 
Ewe 


h: Cys it iy » 9, Aine f ' 
. Wresb sy | A te b 
. . 4 al eh oh iy 





5 


The plaintiff offered in evidence a document re~ 
citing that he, Iver, had received from him a $1,000.00 note 
and a note for $5,000.00 which he, Iver, would hold as 
bailee and turn oWer on demand, or property of equivalent 


values 


The plaintiff further testified that he kept 
asking for the notes; that before the and of June, 1923, 
Iver gave him back one note; that the note in question 
he has had in his possession ever since that date; that 
he first learned of the release of the trust deed when 
he went to Marshall's office in February, 1925; that he 
went to Marshall's office in February, 1925, and asked 
Marshall where Iver was, and Marshall said, he had not 
seen him for a long time, He further testified that he 
had possession of the note from the latter part of June, 
19235 until he entered up judgment on it} that he has 
never received any payment for it; that he did not say 
to Marshall that he got the note after maturity; that he 
never got the $5,000.00 and is out that amount also; that 
he had looked for Iver for over a year but could not find 


him; that he understood he had been indicted, 


He further testified that he gave Iver the note 
in question in April and Iver signed the receipt} that 


it was returned to him 60 days later with the endorsements 
on; that he asked Iver for the money, and Iver said, "I 


will take care of yous" 
There was offered in evidence on behalf of the 


defendant, an affidavit signed by N. Albert Iver and dated 
August 27, 1923, in which Iver deposes and says that "note 


aie 





mot direikvoob s somebitve tt beret te Yeieaselq" ott spain ea 
stom 00, 000.f% o aid sort beviapet bat ,revl yon daa gn keto 
‘ee bhod birow .tevl .od dotdw 00,000,8% tot atoms bas 
taeleviupe Yo yIteqowy ro ~basead mo 23i0. idl bas oelied 
kot shinai 


“ep Sey Due 
“¢qed od sant pottitecs datuens etigmiale “ont 


SSCL. poayt to bac ods oretod tedt jaotom ade rot gaties 

_ mokteeup mh etea odd test yeton ono toed mid @vag tov! 
 tedd jeteh jact soaie reve sofeaceecg eit ai, bed asd on 
sod@ Beeb tauxt odt Yo cmvsias edt to bemesel, tenet: od 
grt tedé 48901 .ytausdet a! sodtte a! Lisdateu! ot: taawredl 
beans boe ,,aSSL .yrevtde% af soltto of Lisdetalied teow 
ten bed ed pbtos Lfadevel bos .2ew cowl: ered IMaderall 

od ted? hoitivest tedtae? of amit gaol a rot sid apes 

i east to treq sottal att mort elon edt to. colessesoq« bed 
ead od tedt, £94 _ teemebut ay borates od I ttm gbhOL 
Yen goa bib od dost ptt vet tremyad yas bovieoesr) seven 
(ed talt wytinutan cette stec eft tog of tadd tiedarel, of 
tsi? josis tavens jedt two ai due 009000,83 odd tog. teveR 
balt.tog bisoo tad asey « xevo 16% “ovl rot bedoel bad, od 
| rbetothat ased bad od bootarebay.ed tadt subd 


‘Sten edd ‘Leer ovag of tad) belttvecd tediaus oe” ! 7 
tedt gqiscer edd demgie revi bat titga at wolseasp at 
ane ath. Mew Bebmcs sasatiadans ot ‘hosruter eam at 





BE CRRA 8 eae to. ER. > eat tte 
“eit to taded’ no ‘eonebive mit’ Bd€OtY6 bow rbilg OO Hoe 


beteb bas revi ¢redra Mm vd somgte!s1venitre as fa : 
ofon™ tad? eyse bas aeacqeb Ttovt ‘tho iste ak .b8@L oe tenga 


Pt 








~be 


No. 19 in the amount of $1,000, mentioned in the trust 
deed from Nellie McArdle to Edward Marshall, trustee, 
dated February 37, 1922 * * * has been paid and marked 
cancelled by me. This affidavit is made for the purpose 
of securing ani indemnifying bond from the American Surety 
Company of New York, indemnifying the Chicago Title @ 
Trust Company against any loss by the presentment of said 
note No, 19 for repayment to any alleged holder." 


The affidavit of Iver made for the purpose of 
securing an indemnifying bond, was purely ex parte, and wae 
inadmissible as evidence against the plaintiff, Iver is 
not @ party to the suit, and what he wrote can not be 
considered as evidence in favor of the defendant and 
against the plaintiff, If iver had been called as a witness 
he could have testified to what he knew, if anything, about 
the fact of payment, and then could be cross-examined, Buty, 
such evidence may not be sugplied by an affidavit in pais. 
Mr. Justice Breese said, in Manny vs Stockton, 54 Illy 506, 
"There was no error in excluding the affidavit of Marshall, 
It was not evidence in the caus@, was ex parte, and amounted 
to mo more than hearsay evidence," Shreve v. Town of Cicero, 
129 Ill. 226, 229; Quinn v, Rawsoy, 5 Ill. Appe 150; Petrea 
Ve» Hediger, 175 I11. ApPe 305, 208, 





We think the evidence for the plaintiff that he 
got the note before maturity, that is, before August 37, 1923, 
is quite overwhelming, It is the testimony of the plaintiff 
that he got it before maturity and that is corroborated by 
the soecalled trust receipt of Iver, which is not disputed, 


and which is dated April 25, 1923, Further, then, as to 


teutt sat ai begotinem .000.L% to ¢avome out at @L vol 
eeetaurd ellederey Srewh@ og. SlizhoM oiilel mort boob 
beitam bas bisg need esi * * * sger Pa YeaundleT bateb 
Seogdiug edt tot ebsm et tivebitie aid? sem YE helilsonso 
Werk asoirems od¢ moxt baod gatytiowebat bos galtwoog to 


& altit ogee Edo & sit gatytiameba t eitoY won To Yesquod. 


biee to ens todas ei edt yd ego! Ys faniegs Vasquod taur? 
ered Oy. Tad 3 . hogs | 
ireplod bee lie wits ot ‘asieyaqer tot @L oH ston 


i: sor Daye 
to saoqusg edt tot shee tsvl to téivebLtte.edP. 4 ooo 4 
aew hos <ottsq xe yleteq ssw ebtod grixlingebas.. unin ase 


ai tevl ,ititaieig sar FEcloyS socehive a8 eld igelmbamt 


S¢ son nao storm ed t.sdw ios tive ed? ot. Yrisg & tea 

bas taghaeres ad to £Ovet at so nebive. 88 Detebienco 
eeontiw 8 es befiao ased bad text Yt etiitalele edt tegiess 
tyods egnidtyas ti .wend ed tsdw. ot beititeed evad. bLuoo ail 
evi = boninexe=eaoro ed blues aedt bas. at OmyeQ %@,toar edt 
*atsg at tiveblite nae yd hoilggue od tom ysm eomebtve udowe 


c908 lil SE .potdooss av Yiteé at .hiea, esoont eohtont, oth 
-tisderay to tivsbitie ody Biibelexzs ci roots wy sew exes" 


hetasoms bas .etisq xe xO. SSW ,0auso edt ai somebive ton sew tt 


<OT8020 to avo? yr SveTie &,sonebtve YSersed made SOM Ont Og 
s9rtez jO8L oad elll @ 2foaw oV_ om eatep Lees <888 »fII @8L 





ed iadt tiitatstg et rot consbtve edt antdt oF... aan 4: 
eSSOL TS deagua oteted .at edd yytinudem stoted ston ed¢ pei 


titvaisl¢ edt to Ytoulteer edt ai +I +gtlmledweevo, stiup et 
vd Setstoderreo ai Higa bas Vi bets emot od wet dog ed tad 


chotuaeth ton at fo tot eter te tqteoor denne boLLso=o8 ode 
¥ Waris 
fot am .nodd tanita eb80r ae Lisa berae > at ‘dotdw bus 


ts Pg Sas Sar ee 


, aut eT en ae Ne eae 
AT SG Re APP RET SAL INC NRRL Ota DOLD Oy RAN Nee ee 





Fe 


payment, eBcluding the affidavit of Iver, of August 37, 19233, 
there is practically no evidence that the note was ever paid, 
The defense set up in the defendant's affidavit of merits is 
payment, and yet the most that can be made of the evidence 

for the defendant is that Iver and his wifejagreed to assume 
it, as part of the tien on the property. That is insufficient, 
It is claimed that the plaintiff was not diligent, but the 
defendant was the maker and it was her obligation to pay it, 


and not the plaintiff to seek her out and make a demand, 


It is true the evidence is conflicting and in 
many Ways cOyfusing, but, after the judgment was opened 
up, it was the duty of thedefendant to prove payment, and, 
in our judgment, she failed to do sO,» 


The judgment will be reversed and fhe cause’ 
remanded with directions to confirm the judgment of 
$416.21 in favor of the plaintiff and against the defendant, 


REVERSED AND REMANDED WITH DIRECTIONS» 


Ot CONNOR, J. AND THOMSON, J. CONCURs 


a 


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end dard etasg ite ton aay ‘Yhidta sede ot tem bemiate én i 





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o: bas ‘gabtott taco at somsbive ody oud af oT sitcese 


beneqe asw toembet ont todte ted ggmtartgeo exer youn 
ebas’ enoureg evoxg of tiabastebedd te eeu ods daw Fh Ogg 


"908 ob il bei bet nani etaoagbuy cuovmt 


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wo + TO tmemghs; edt umptimoo ot srottoerse 


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= AE alge 


227 = 31046 A. £ 1.He O S 0 


FRANK WAISMAN, doing business as 


) 
WAISMAN REALTY COMPANY, 
Appellee, 
APPEAL FROM 
Vo MUNICIPAL COURT 
) OF QHICAGO, 
A. ROOTBERG AND MRS, A. ROOTBERG, ) 


Appellant, 
Opinion filed March 2, 1927, 


MR. JUSTICE O'CONNOR delivered the opinion 


of the court. 


Plaintiff brought an action against the defendants 
to recover #3750. 00, which he claimed was due him as com 
missions for obtaining a purchaser for defendants! property, 
The amount claimed was three percent of $125,000.00, which 
plaintiff alleged was the amownt raceived by the defendants 
for the real estate. The case was tried before the court 
without a jury and there was a finding and judgment in plein- 
tiff's favor for $3735.00, which was three percent of $124,500,00, 
being the amount for which the property was actually sold, 


Plaintiff offered evidence tending to show that 
he was engaged in the real est-te business in Chicago, and 
that on July 15, 1923, he and one of his employes were solicit- 
ing property owners on Jackson Boulevard to list their real 
estate for sale with him; that on that date they called on the 
defendant Mre. Rootberg at her home on Adams street and that 
she authorized plaintiff to sell a piece of real estate owned 
by herself and her husband which was located at the southeast 
corner of Jackson Boulevard and Springfield avenue; that the 
price she asked for the property was $126,000,00, subject to 


hs i ee A eS EW eo Ow 
Vary APs tae) eet t 
i j 





Oe » 6 A TOR {2 
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ve eneoe eh AA S 
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-trslionga it Somtate eee 
41 sPSSL .8 dowsy berit aoLaked iF an Fee eres 


; Set’ ee ata 
motatoo eft berevileh AOwOO'O HOITaUL VAN 


-stve0 ode to 

; Nee eye ae 
"etasbavteb oats taniens moltsa as tidgvend "ttatesd te OR gy 
“son es wid exd ssw bemielo ed do trie 109 O8TER tevooss, of: 
wWhreqory ‘esanbreteb tot teasdexuq ¢ gatatetdo ret enoteata 
de ttl °y00 000 {RELF  tansizeq oot sew bewba li” touoms edf 
etnab ae teh oft YS bevisony tavons et onw begetia tuttatetg 
Stiuoe eit eteted Betts asw seco sat vetotes Inst off “oY 
-~nislq ai Sasmgbut, ‘bas gotbott ¢ eam ovens bas. yxal & tuodtiw 
0b ARIE to tneotsq esttt sew Mo iw 080 BETS vot tovel gt kRt¢ 


-hiow yllastos aew Yreqotq aft doide rot ty 68 Mthonatek, . 


fadt wore ot yathast somebive bexetto Tiitalemst 
bas ,0gs0fd0 mi emeniaud o¢-ta8 Leer edt af Segagne aaw od 
| station erew eeyolqus eit to en0 bas od SOL ar VLG #0 taste 
: «feet Tiedt teil ot Hreveivos nowteg, no exenqo tWreqotg gat 
item bellse Youd eta tart no dat yatd dete ofee 20d epates 
eds bas teorte amabA 20 smod tod ts gredtoos *8tM Saabastep 
bonwo steve Imex to sosia & Lies of tttiatalq bestrodtus ede 
- tasedtuoe oft te botsool few doldw buadeod ted Sas Meeted yd 
i edt dad? jounsve bleitgaixg? bne bravelves noexesk to seaxeo 
OF fwetdue .00,000,0819 aaw yexeyore ed? x01 boxes ode colsqg 

















Re 


two mortgages, one for $57,500 and the other for $20, 000,00; 
that a cash payment of $35,000,00, would be necessary to ef- 
fect a sale, Plaintiff's evidence further tends to show that 
Mrsg Rootberg directed them to her husband who was working, 
on that date, at another address, and that plaintiff and his 
representative called on Mr. Reotberg and informed him of the 
conversation they had with Mrs, Roeotberg and that he ratified 
what she had done, Piaintiff's evidence further tends to 
show that plaintiff listed the property for sale in his real 
estate office and that in November or December, 1923, he 
submitted the property te one Benjamin Rodman; that he had 
taken Rodman to see the property; that Rodman seemed to be 
interested, but stated that he could not then make the pur 


chase unless he obtained a partner who would be willing to 
buy the property with him and that when he was ready he would 


notify plaintiff in the matter. fhe evidence further shows 
that on February 4, 1924, the defendants entered into a cone 
tract for the sale of the property with Rodman; that the pur- 
chase price agreed upon was $124,500.00, and that on March 
13th following, the sale was consummated; that sometime after- 
wards plaintiff learned of this fact and took up the matter 

of payment of his commission with the defendants, but they 
denied all liability, The evidence further shows that three 
per cent was the regular usual commission charged by brokers 
and there is no complaint that the amount of the judgment is 
excessive, The only @mntention is that plaintiff was entitled 
to nothing because he had nothing to do with the sale of the 
property, but on the contrary, that it was sold by the defend= 


ants themselves. 





g~ SOM = PRS 





100.000, 08% tot redto eft pam 008 ¢ Te 362 eno .eeg tye: 
-te o¢ yrseesecen sd biuow 004000888 ts ‘eisinanis pres & tadt 
ted? wode ot ebaet reiitrwt somabive eftttieatel{ ,elsee # toekt 
.gaittow ee odw baadaud tod of wadt betoottS gredtoof sexi 
eld fe Titately tect bas .seethba tedieng 28 , tah dad? mo 
ed? to mid bewretat bus gredteoh .1M ao holian evigstmesetqet 
boitite: od tadt das groddoof .a1K ditw bad yedt aoldantevaes 
ot ebnet tedtawt eonebive a'ttitais!< .eseb bad ede tedw 
{set eid of efse tot yersvotg odd betarl ttivatelq tedt wode 
ef ,S50L ,redmsced «0 tedmevoll at tedt San soltte ‘otates 

bed ec tadt jaambofi ainsi aed eno ot yeeqorq edt bettindwe 

ef od bomsse membon tadt ixfteqorg sat 998 0% emmboR aedat 
TaRs 98 Stan, mas ton blsoo ad Gad betate Jad, sbegRereeRs 


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bivew od ghews. pam. od eo taste bas aid dein yrteqeng. edt wd 


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oR odt tad? jasmbor atiw ytregotq edt to olan. ont cot toext 
RRR #0 RAE, BP PORDEED, 96m, Sony, Deere RehEN oppte 
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| hha ‘oi be brow mandy eae ‘oft ho ted .ybaegoty 
a ri egal Saga epithet "seb v foamed tite 


oF Ceetdae .00.000 B8IF wow vee Gr He? Anaiee Hore sotry ey 
» ; , ; 





4 
as 
ae 





















— 


-3= 


The defendants denied that they had listed the 
property with plaintiff and denied that plaintiff and 
his representative called upon iirs. Rootberg on July 15, 
1923, or at any other time prior to the sale of the pro- 
perty. Both defendants testified in substance that they never 
heard of plaintiff in connection with the sale of the pro» 
perty until sometime after the s2le was made, when he made a 
demand for commissions, They both testified that they had 
never listed the property with him or any of his representa=- 
tives and had no connection with the plaintiff or his ree 
presentatives in connection with the sale of the property; 
that the property was sold to Rodman through a Mr. Stein, 
who was a partner of the defendant Rootberg, and that Stein 


was the one who interested Rodman in the property. 


Rodman, the purchaser, called by the defendants, 
testified that the property had not been submitted to him 
by the plaintiff or any of his representatives; that he had 
walked into the plaintiff's real estate office sometime in the 
fall of 1923 inquiring if plaintiff had any bargains in the 
real estate line and that plaintiff took Rodman to see two 
pieces of property, but not the property in question; that 
plaintiff never mentioned the property in questiom to him, 
He further testified that he bought the property direct from 
the owners whom he had known persoyally and intimately for 
seventeen or eighteen years; that the defendants had built 
the building about two years before, that he knew the build- 
ing from the time it was being built and that he and the 
defendants visited back and forth frequently. 


In addition to plaintiff's testimony a number of 





= 


edt beteil bad yedt ted? betasb ‘atashon teh eat 


oe te * 


ges 
bw winoaorg 
Be at Pay 
~2i eet no prsdtoch .att moqu bel {so ovidasnesorqer 8. 
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; we go Toor ic yi 
rover — sedt somstedve mi beltitess agnshaeteb Bok wet t0q 
ye ge 
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bas Tritaiats ted? beinaob bas “Vebemtala “is iw 


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" te sole gesovrac o] 

bad yodt test bertitest tod wat <2ac tas tmmoo we m4 

(ie hed ete ae i 

Bt 1982 LTT eid to yas to ake ‘thw versqorg out Rarer Saree : 

race ‘wod .: 

“9% sid to titatelq ad ig Sw soltosanos ou bad bas , i 

Mie ee eeu Te * aden ri 
psy ittteqotg od to eiae sag dd iw soitosnaeo me sevitat mouerq 
me at eet best ges i; 
siete .TA 8 MQuort member of bow wav yfwodorq ait tad? : 

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bigs i DOP Bg tos 
eytreqorq edt ad aanboi besser al one ‘tise ie 
se ae % ra Siar Baas 


atnehasteb edt yd belies ~xdeadorg ee saan vit, wee 
bad ad ted? yeovitatosestqet ett td Yoo wo PER REG ede 
gilt nt omtvenos soft Of ates Leer ut Ttigntetq ede ofml Beaty 
oi? Ni antgrad yaw bad Yittatety %2 gettiewet’ ONCE te MEET 
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"Pad Grotteou ai yoroqoxy ond dom tee pytrodoty Yo! aeseity 
hE OF motFesip nt Yxe@s “af ott bent adn eoved TRPaLale 
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af 
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E 
a 
see ea i bin Sr irigh eg tek DS By Ty ee Saad Baal te ek Ra te 


ar mort od Hatt Bis dined: dated te foebeernand 
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—4— 


his employes testified corroborating his version of the 
transaction. We think it would serve no useful purpose to 
analyze the testimony of the several witnesses in detail, 
because it appears fro» what we have ' said that the 
evidence offered on behalf of the plaintiff, and that on 
behalf of the defendants, is in hopeless conflict, There 
is no doubt a great deal of perjury was committed in this 
case, We cannot tell upon reading the record, which side 
is telling the truth, but under the law, we are not warranted 
in disturbing the judgment, unless we are of the opinion 
that the finding and judgment of the trial court is against 
the manifest weight of the evidence, The trial judge was 
in a much better position to determine the truth of the 
testimony of the several witnesses than we are. He saw 
them upon the witness stand, we have only the printed page 
before us, and since we are unable to say that his finding 
is against the manifest weight of the evidenc, we are not 
warranted in disturbing the judgment. 


Counsel for the defendant argue a number of proposi~ 
tions of law as to what facts must appear before a broker 
is entitled to his commission. It would serve no useful pur= 
pose to discuss the authorities cited, because the law is 
clear and well understood that before a broker is entitled to 
& commission, the sale of the real estate must have been brought 
about by his efforts, He must have been the procuring cause, 
In the instant case, if the evidence offered on behalf of 
the plaintiff is to believed, we think, under the law he 
was entitled to the commission, His evidence is to the effect 
that the defendants authorized him to list the property for 
























ed} to solerey eid yattstodortes BePtiveey Weyolqme aid 
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edd tatit Stee |G % oved om tere ott @rso¢ge tf eauaded 
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edt Yo duet odd omivteteh of dott inod tetted ‘do Bt 
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ig _ toa ant ow gonoh ive ada to drigiew dest ines oct mpi 
.oomabut out gaidurtelp at ba 





— mbsoqone To tedmen & eugts tnubwoteh ont To Lewauete” WY Oo" 
| ealond @ oneted nances team atost gate oy ais WEEKS anole 
tug iutees on evted bivow $2 ,nolmetmnoo Wi oF bolt Ane et 





“Se 


sale and to obtain a purchaser for it for $126 (D0, 00; 
that he listed the property and afterwardg showed it to 
Rodman, who later on purchased it for $24,500.00. In 
these circumstances, we think there is no rule of law 


that would warrent us in disturbing the judgment. 


The judgment of the Municipal Court of Chicago 


is affirmed, 
AFYIRME Re 


TAYLOR, PeJ. AND THOMSON, J. CONCUR, 





(7 


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23 = 31129 DAATA € 3 7 


PEOPLE OF THE STATE OF ILLINOIS, ) 
Defendant in Error, 
ERROR TO 
Vo GRIMINAL COURT, 
GOOK COUNTY. 


ADAM BARTOSH, 
Plaintiff in &rror. ) 


Opinion filed March 2, 1927, 


MR. JUSTICE O'CONNOR delivered the opinion of 
the court, 


Adam Bartosh was indicted by the grand jury in 
the Criminal Court of cook Gounty. The indictment consisted 
of three counts: The first charged the defendant with larceny 
as bailee of $500.00, the money of wary Urbanski; the second 
count sharged that he had obtained $500.00 from Mary Urbanski 
by means of a confidence game, and the third was a larceny 
count. The state nolled the second and third counts and 
waived the felony in the first count. The defendant entered 
a plea of not guilty, the cause was submitted to the court 
without a jury, and after hearing the court found the defend= 
ant was guilty of "petit larceny", that the property was of 
the value of $14.00, a fine of $1.00 imposed, and the defend= 


ant sentenced to six months in the House of Correction, 


The evidence shows that the complaining witness 
Was Mary Rapenski; that she was twenty-three years old and 
single; that she met the defendant Adam Bartosh in March, 
1924; that prior to the time she met him she had been employed 
in a restaurant washing dishes and later worked in a factory 
and had saved up $530,00 which she had deposited in a bank, 


‘ae 
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<FRAICD XOOS Ms, a fat 


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to notatgo eA? hereviled AOWMCO'O SDITEUL ft pear 


(extk ai TitaisM: 


Pe 


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ies dark oft ah vaolst ot ” tow 


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The defendant was about twenty-nine years old, and witnesses 
for the people testified that he kept company with the com 
plaining witness; that shortly thereafter he provosed marriage 
to her and was accepted; that he learned that the prosecuting 
witness had the money in the bank and stated that they would 
be married and buy # home and for this purpose he wanted 

to get the money from the complaining witness. She testified 
through an interpreter that she gave him the money so that 

he would help pay for a home for them where they could live 
after they were married, The evidence further shows that 
shortly thereafter the complaining witness learned that the 
defendant was a married man and demanded her money back, but 


was unable to obtain any part of it, 


The defendant admitted that he got the money from 
the complaining vitness, having gone to the bank with her 
for that purpose, but denied that he had proposed marriage 
or that anything was said between them on that subject, but 
on the contrary, he testified that he told the complaining 
witness he wanted to buy a half interest in a soft drink 
parlor; that she loaned the money for that purpose; that 
he bought a half interest in the soft drink parlor for 
$900.00, giving the money, the $530,00 which he had obtained 
from the complaining witness, in peft payment and that he 
paid the balance out of his own money; that upon purchasing 
his interest in the soft drink parlor, he proceeded to assist 
his partner in the operation of it, but a few weeks thereafter 
the place was closed by the city officials on the ground that 
his partner had violated the prohibition law by selling 
whiskey, The defendant further testified that when he borrowed 






















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asaeentiw fac .bfo atasy eaia-ydaent tuoda saw taabasteb edt 
~goo adit dtinw yrsaqeoo tages of tade baltitess siqoeq edt xot 
syairtem beaogotq of rettseredt yltrome tant arta ae gutatelg 
gitdvessorg oat tact bemrael ed tsd¢ yhatgqeoos ecw bas xed ot 
bivow yedt tact betete bas dnsd edt at yeaom od? bed eeontiw ; 
betnew of sseqreg eidt 16ot bee omod 2 youd bas boittsm ed 
bottiveed ade _ Baoat ie agintelenes ett sort yenon oa? tea of 
¢edt oa Yemos oft mid evag ada tads setergzetal aa dy worst 
evil biwoo yeort erode wedt tot omad # rot yaq ‘qled Bivew sai 
geet ewors sedtrut soashive exT «betetem orew yond rotts 
ante tedt beavest asontiv gniaisiqmeo edt vet Laexesdt vitsode 
ted yaned yeuor red bebnaweb bas cam Delt tems vem tasbreteb 
“pene se 2k to seeq yas aletde.ot eidaay gaw 


ity ; : roe a git ieee, Ey eae SP eee ae 
wort yenom edt tag orf tant hett imbe tasbasteb ext seh 


ton dtin dined edt of ence gaived xe ont br ‘aabntesqros od 
sgetrren baseqeta bed of tails betneb tud ea0 i iatoiin Shit tot 
tad ef09,due tadt uo not csowted bite eee ‘shale tadt zo 
, ‘galstalqnos edt blot od tot beititesd ed « crettine 00 Sit mo 
“dattb tte s at tuorstnt Uled o wt oF Retnee od sebas lw 
test jeacerug tant ret yonom oi ‘beaaol ote tedt jxofrsq 
ae oizsg dutzh }tbe sip at seotszat ¥ iad 8 #dguod od : 
0 | bentstde bad olf dotdw 00,0884 edt .yoaon sift ‘aatvty 
el tate arta .seond iw gaintelqnoo to 
nest ‘eine 4 ssodne dake #00 At a snonens ad 





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eh-banen oo mc ulibiatin dinanins sasieter ewccsoiiactih a. 
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the money from the complaining witness it was to be repaid 

by him in six months; that when the soft drink parlor was 
closed by the city officials, he lost the $900.00 which he had 
invested and that later he saw the complaining witness and told 
her of this fact and stated that he would pay her in installe 
ments, but that she refused to accept her money in installments 
and that he hés paid her nothing, He further testified that 
when he first met the complaining witness he was married, but 
was not living with his wife, and that at the time of the 

trial his wife had obtained a divorce from him, There were 
witnesses who testified in bebalf of the defendent tending 

to corroborate his version of the matter, The testimony of 

the complaining witness was also corroborated by other witnesses, 
At the conclusion of the case the court found the defendant 
guilty and sentenced him as above stateda 


We regret that under the law, we are compelled 
to reverse the judgment beceuse of a fatal variance between 
the indictment and the evidence, The indictment charges 
that the defendant obtained the money of Mary Urbanski, 
while the evidence shows that the complaining witness was 
Mary Rapenski, This is fatal. People v. Novotny, 305 I1l. 
549, In that case the court said (p.556) "The person whose 
money was charged to have been obtained was Rapan Manian, 
but the evidence showed his name to be Neananianiany In 
indictments for offenses against the persons or property of 
individuals the Ohristian and surnames of the parties injured 
must be stated if known, and the name stated must be either 
the real'name of the party injured or that by which he is 
usually known; (Aldrich v. People, 225 Iil. 610; Sykes v. 
People, 132 id, 32; Willis v. People, 1 Scam, 399;) ond it is 





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; ree as ps) & 
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Pa Gs ee” Hele “EG 
bad od dotdw 00.0088 add teol aA alate ito ‘ytte ant rc powete 
{xO 087 St SAB LAIG 
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Se Ser Pees a. 
{indent ni ted yaq bivewved t adit hotate bas ‘toast eidt to ted 
wn St: Real age ge tow 
et oom! isteni at yadon red tqsoos8 Gf beautex oda saat gud ,ainem 
SS DOSER OF 


tedt beftisnet redexet 9X .gatdton tad plea bed od tadt bas i 


FS ee aE TE ok No) De ae Peers, ee ey es 


THESIS 


per bo irréa eer: ost sacs? ty gutatadzane ods ton Riviay >’ “ Fray 
sits Yo omit ont ts + sett bas cot he ent dtiw gatvil fom sew 
cmt? led Biwoe ge 7 
sree ora fd got eoxey.th s beatasdo bed etiw eid. euery 4 
. ie! view vee tee 
aatbast asvasien edt 0 tLaded at bettitest orlw goenant tw 
‘eae fae tes ¥: <3] 
r, to wronitaes ont Tots ais ad te mo texev ate af axoterene Rad 
& cot wet geobmwts 
seeevent tv ‘tedto yd beterodorzes onis ean event te aaiarelqnos edt 
ee COGS a ARSE ae 
} teabsasteb edi bavot tives art eves ost to act aus Ios100 odd gA 


ebetate etede e& mid beoaataea’ bas ytilng 
ba ee ses malt 


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* ‘ _ beLLeqnon ots ow val edt reba tsdé forget ow ad kos 
“ serie ta ag 
mowed soasitsy Instat 2 to eeuaosd tasmpbut | hoe faa es 
z ay Yee =o 
aeyrade trsmto tbat st ssomehive alt bas ? 

+ ieee Peter gp nee aS 
eHiennde? yet te remem sdf bentatde tacbast B62: 
x bt Sethe o¢ yoo w 

Baw eeead tv gatnistamos aad tans awode apaehive eft oeLidw 
LSM ae ae 


Lt 808 axaterol v 2hgons fege? ak atdt at 
eRe nowreqnoat (228.¢) bis tro ott 90a tact 


aes pS i) 
mataat aaaah ew dost atdo asad oved of bagtado ann 
my ae Sule Rie Om Soto ony BAieh @ 
oe wastnetnanel 86 03 oxen oid bewode sonsbive eft dud 
Fo ie RABE? APG OM FEE Te hee veces ody blow 
to ytrogqotq re aaoaxeg ett teatege eeenstto rot etnomtotbat 


| SRARSR OF Leneqcesg 2h _SwR Saoth Fie yee RE pany on ay 
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M4, ck Kis 










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oa. 


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bi LOT" PErecs Bsow wok ow eee ee a ii of gocher mee 
raie 7 ao ae avomi ti betate ed tau 
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—4— 


eseential that the name of the party injured should be proved 
as laid, There is no eonflict of authority on this point, 
Davis v. People, 19 I11. 74; Penrod v. People, 89 id. 150; 
MeGary V» People, 45 N.Y.153.) ‘fhe People's answer to this 





objection is, that when the evidence was introduced at the 
trial the plaintiff in error did not object to it and did 
not point out any variance, The same question arose in 
People v. Smith, 268 Ill. 502, and it was held that the 

case presented nét a question of variance but of failure 

of proof; that the indictment charged a crime against a 
certain person and the proof failed to show it, but did show 
the crime, if any, wan against another person. While the | 
offense of obtaining money by means of the confidences game 
is punished as a public crime, the particular offense charged 
is always the obtaining of the property of some individual, 
whose name therefore becomes material to the description of 
the offense as stated in the cases cited. Being a material 
averment it is necessary to be proved, and « failure to prove 
it is not a mere variance but a fatal lack of evidenve to prove 
the crime charged, There is here no question of idem gonans," 
In the instant case there was no point made on the trial that 
the proof varied from the indictment, but under the doctrine 
announced in the Novotny case, the judgment cannot stand. Mery 
Rapenski, the complaining witness, from whom the defendant 
fraudulently obtained the money, is not the same as Mary 
Urbanski as alleged in the indictment. lor is Urbanski and 


Rapenski idem sonans. 


We are yhable to wnderstand why the count is the 
indictment, charging that the defendant had obtained money 
by means of the confidence game was nolled; nor why the 

















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- beverg ed biveda beretai ytrsq edt te enea edt tant thi hebbd 
Wéaiog sti ao YWirettos Yo tobftmoo ob et Sxsitt “ .ptat oa 
{OSE ,bt GB .efqosd .v_boxusg’ wT rt ef lesions tie 

Bhs “whe of “ewans eto tqoss oat (.Se5.v.e ap eigoat sv - 

a ree Tr eT ear ae Se 

‘bib Ane $4 of ¥oStdo gon h4b reve mt Beteniata Site’ Tabet 

; ne at ‘se0ts notteeup suse sit ,ooatiray ye tuo ‘thtog 408 

eae eee bred aw Fi ona (kod Virir Oas jue tag” wh Gs 
etyltst to tud sonstrav to aditeenp « tom badasucrg’ eble 

‘g tentegs omits 6 hoptsdo tnemtethat odt tant jrootg to 

woe kb tid 2 Woda oF beTRAY Yoota Sid bad aoeteq mtatrao 

nite OLEH meereg roMyone semciys’ eaw Lyne tH” lebaD ont 

ae Gaey BeonebITno edt Yo anson YW veaba yntathtco to senotto 

| begteds Senstto tafoltxs¢ oft vendre oiidiq a de beMetag bb 

- faubivibet emes be ytraqoet¢ ede To yatrletdo site ‘eyewis et 

‘te Hoitqizeash eff of {sirs¥am asmooed ototered? ewan eeodw 

teireias 4 galeG § .befio seesn edt at bevate ae sandtto_ ode 

‘a ‘evorg ot orplést 2 bas bevorq od ot weana v9 on at = pisap tg 


"2 


















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: it at ti oat it banter of tau as ot 


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felony was waived, because the evidence is clear that the 
defendant awindled the complaining witness out of her money 
and should be in the penitentiary and not in the House of 
Correction. Our Supreme Court in the case of People v,. 
Gallowich, 283 Ill. 360, defined confidence game to be any 
swindling operation in which advantage is taken of the cone 
fidence repored by the victim in the swindler, and the facts 
in the instant case bring it clearly within that definition, 


For the error above mentioned the judament of the 
Criminal» Court of Cook Gounty is reversed and the cause 
remanded, 


REVERSED AND REMANDED. 


THOMSON, J, CONCURS 
TAYLOR, P,J. DISSENTE. 








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40 = 31152 


PEOPLE OF THE STATE OF ILLINOIS, 


) 
Defendants in Error, 
ERROR TO 
Va ) CRIMINAL COURT, 
) 


COOK GOUNTY. 
JOHN BYRUD AND MILTON D. LIPSHUTE, 


Plaintiffs in Error, 
Opinion filed March 2, 1927. 


ER. JUSTICE O'CONNOR delivered the opinion of 
the court, 


“) 
— ec 
¢ } 
} \ 
de 


The defendants and one Henry Schmidt were indicted 


<3 


by the grand jury of Cook County, charged with the erime of 
conspiracy to obtain $1200.00 of the money of the Royal Drug 
Company, & corporation, by means of false pretenses and by 
means of the confidence game, Schmidt pleaded guilty, Byrud 
and Lipshute entered a plea of not guilty, Byrud and Lipschute 
were tried and the jury returned a verdict finding them guilty 
of conspiracy as charged in the indictment and fixed their 
punishment at imprisonment in the penitentiary and 2 fine of 
$1,000,00 each, The day after the verdi ct Schmidt was placed 
on probation, The court overruled defendants! motion for 2 
new trial and sentenced them te one year in the penitentiary 
and ordered that the $1,000.00 fine imposed by the jury be 


worked out in the house of correction at the rate of $1.50 per 


day. 


It appears from the ewidence that the defendants and 
Schmidt conspired together to make Bromo Quinine pills in 
imitation of pills made by the Paris Medicine Company of St, 
Louis, Mo., which latter pills had been so}d for a great many 








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hedeinas giaw shimdeS yreoeh eno Sas atashas eb out 
Yo anino edt Miw hegtets .yimved xood to vm baoy sat 
aux [eye std to yeomom sdf to Q0,00819 aissdo oF watigas@ 
“yd dme eeeaetorg sala? te exasm yd .sontstoqres s cetequon 
buryd ,vefiwn bebasic sbimdoe@ .amss sonsbitnoo et: ) 
etudosels fas erty -Yilivg tom to seig 8. seTetae te . 
yiieg selt antheit gether a Beata ox Prot wie por botue een 
tied: bazit has taemtegiai sd mi begtado as qwarkqeacs to 

to ealt s bas yisitastinsg edt ai tasegoaitqmt te tromdatase 
heosta Sew #hindos fo Brey odt «etts yab 2s? done. 00,000.58 





# ret aotiom tatnshasteh belutteve txces |dt ortadong 0 
yraitaetinsy edt ci macy seo ot medd poonst nee tos fattt won 
ed yrrt edt yd Seeaqmt omit 00,000 1% edt pede betebse bra 
teq 08.13 %o eter adit ts soivesstoo te seuod add me ess 


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bas adarhastes od dads soasbies eas wet avascae a oe 
ai ailig eetatug parcial Stan id xedsegot bextenmer ‘*tadoe 
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~2~ 


years and were considered by the public te have medicinal 
merit, The scheme or conspiracy of the defendsnts and 
Schmidt was to palm off on the public imitation pills for 
the genuine which could be made and sold much cheaper than 
the pills of the Paris Medicine Company and it was their 
desire or intention te make pills that were of no value 

and to swindle the public. in carrying out their purpose 
the defendants and Schmidt had a die made, lettered the same 
as the pills of the Paris liedicine Company were labeled, 
From another person they had certain engraving work done 
and from a third they had printing, labels and other matter 
made, all of which was for the purpose of s0 labeling and 
pecking their fraudulent pills as to make the public believe 
they were the genuine article. They then manufactured their 
fraudulent pills and sold several gross of them to the Royal 
Drug Company, a wholesale drug concern doing business in 
Ghicago, for €1200,00. This was much cheaper than the 
genuine article could be purchased for, So that they might 
be able to sell their fruaudient pilis and make it appear 
that they were apparently genuine, they went to ilwaukee, 
wrapped up @ bundle of newspapers and had them shipped to 
Chicago, and to show the Royal Drug Company that they had 
purchased the pills, they exhibited the bills of lading 
showing that they had been shipped to the defendants by the 


Majestic Drug Company of Milwaukee, 


Sometime later the Paris Medicine Company, who 
made the genuine pills learned eof the false product and 
employed the Burne Detective Agency to investigate the 
matter, This was done by the detective agency, whose 


employes worked in conjunction with the State's Attorney's 


Ge 


os Soh 


fanio then evad of oliduae odd yd bevedtenco oxew baa exasy 
has atesbasteb adt lo Yoatiqancs to saedoe od > item 

sot ellig noizetial oliduq ad¢ ae Yie miaq ef saw ebhindse 
aeds rweqsedo dous bios Sne odbam od Oiveo doldr extuney act 
‘sied? ase $k Bae yaaqeot satoibell aitet ad? to sffie edt 
asisy on to ots tedt elilq efem of aottaetat wo er baud. 
escqtuq tied? gue paiytise al «oliduy ese etbaiwe of bas 
ease sie betetiet ,ebsm sib a bai thins’ bas estasbastaa sat 
sbeisdsi 915% wesaweo saio lbex eltai odd to ua tay ont 92 

ea ob itor gatvargas aistvee bed yous aoat eg ‘redtoaa more 
veites vedte bes aledei ,yatinizvg Sed yedt Sridt 6 ‘ont ines 
bas axtiades oe.te Saori edt as? sow eka to ifs 20ban 


@talfsd oi Idee edd oiieem @? as alfiq sacivbuash. tiadt: gatinag: 


sh98F beqwtgatsaen seit yer? .efeltits eaiuses ent exo yede 
Laywok wy ot e9nt to geers farevee fice hax aifiq daeivhyss? 


‘ eseaiaud gaiob avenaee grab ezesfoiy # .YusyReD Rant 


ads sed? seqsede dows eaw aidP «60 00819 tot yomae tao: 


- tigin yeas saat ef .wet beasdousy x Diyos eioidis saivaeg 


gases ti ote bas effig tasibussxt tied? Liew ot side ed: 
yooduaenlin ot. tnew yest ,eeisre; yitnmeatscas exer ons 35d 

_ of beggide wect had bas ereqeqewesn io efbaud 8 qu beggars 
bad yout tad? yasqmed guid Lave org soda of bas yogeoddd: 
gatbal to oflid edd betidtdze wes ye liia aaiz- ‘beaatiotag 

edt 4s atashasted wer: os See, seed Bad yo tad gatworia. 
paemmantnn: te yxeqmed gene ‘okteet au” 

seek 

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STATO een te, ee ee ee 


-3~ 


office, When the defendants and Schmidt were onfronted 

with the evidence, they made statement in the State's Attorney's 
office before Assistant State's Attormeys,police officers, 
representatives of the detective agency and others, confessing 
their guilt. As stated, Schmidt pleaded guilty and testified 
for the state, Neither of the defendants testified, nor was 
any evidence offered on their behalf, The jury were instructed 
and afterwards returned their verdict ag abeve mentioned, 

The state offered some thirty odd exhibits such as the die, 

the engraving and printing of labels, etc, but none of them 
are shown by the bill of exceptions, 


The defendants contend that the court erred in not 
permitting them to show that the statements or confessions 
made by them were obtained through promises of immunity. 

The record discloses that when the witness Allen, a shorthand 
reporter, who hed taken the confessions made by the defendants 
in the State's Attorney's office, was testifying for the state, 
counsel for the defendants interposed an objection, and the 
court and counsel then went into chambers and counsel for 

the Gefendants told the court that one McKee, who was an 
detective employed by the Burns Detéebive Agency in the 
matter had told the defendants that if they would tell all 
they knew in the matter, they would not be prosecuted, be- 
cause the only object wae to prevent the further sale of the 
spurious pills; and that relying upon such promise of immunity 
the defendants made the confessions. The court held that 
MeKee had no authority to promise such immunity and would 

not permit the defendants to go into that question, and they 


excepted to the ruling of the courte Allen did not testify 
but the state called Frank G Marshall, an attorney employed 


ie 


hoinortne sxrev thindes bas atazisstes od? sedk _9soitio 


gi yesrottsé at apeta ett ai tusmedsie chae yedd ,sosebire df; athe 
~ersoitie sbiog eyearstié sletagt vcatuioad steted sotto 
saineste@ erento brs yohegs svitestob edt te savitabaeeesqet 
heititee? bas yeiioy hotssly thiado® ,botate BA st fteg ties 
Bae TO pett Het staehbactod oft Yo tetttise® -setete edd wot 
Setourtast Stew ret sit Tiaded ried? ao berstte sonebive yas 
| ,bedoltaer eved@ se ioibtor viedd Sormeter ebrewred ta das 

.0ib off o5 dove atidgdze sho ysuidt smoe Revetie etete edt 

met? to Qaoa gud jefe ,uiedsi lopnitaing Soe gaivenrs ce eds 
eenoitqeoxs to Lit ed?: ‘y@ agode ane 


ey 2. Sa 4 Be ei 
‘tea nt berre, “sro gat dail$ bassaoo atunbasteb én ys 


- 2: JOSIP oe te Pay ee 

env taasteen to adasnod ed ads fant sods of wads — 

‘Xt Levan to aésinota guor ds hoatarde ovew neds Ww ‘shan 

banc? tede & fe Lie apontin sit nedw dailt asecltes tb ‘broo ot | od? 
: ae ET 

edanhacten edt a She anoiese taoe odd aoiet bed ode tor soqer 


ae 4 


estate ieee t0% aadytiv ast ase ysoitto & tyomnedda etedada | oe a 


haat est cite 
ad? baa wtoitsetde RS hesoutagat ai nabasteb edd xet i a, 


rot fegaues Bas arsdas io etal tas sa dt Gane ey prin 

42 BeF ote eater Si0 daft tusoo eds ‘bio? etasbaotes a 
| edt mh yonegd svidooter ears ott x boyolane  (atheatie 
fie Ales bisow yeast ti tende ad nab ra tah ose blot + bad reotan 


Bok Spee? 

~od ‘ebstupsa0ta od ton bivew yedt ettem eid ak wend - 
; ie ge 

on tes sofas xedetst orig sneverg et a&w toskde viao sat et 


Wim? to eetworg dowe coqu gatyler sal bas galthq eno! 
taeda bisa Pwe0e oat onno teestace ode sb em stashaeteh eat 


bivew bas ee tans dove seimorg et virediue on ~ “ 

aes er de ee ras 

ye dt nak eaosteaup tau ovat 2 oe eo anbaeteh ode 2 
sie at Sea, i 


viitesd ica bab seth ysu00 « oat te gation ade oF Bosqroxs 


boxoigua vestosts sa ,bbacexs a ¢ aart bollse Pr gg = st 
SET i a berg. i ye ul ree 















es Se ae eee ae eee 
ae ial i ee 





ss 


—4~ 


by the Paris Medicine Company, who had been assisting in 
investigating and preparing the evidence in the case. He 
testified, inter alia that he was present at the time the 





defendants confessed and that there was no promise of im 
munity made; that the assistant state's attorney, who wes 

in charge of the matter informed the defendants that they 
could make a statement or not as they chose, but that ifthey 
did make a statement it would be used against them, On 
cross-examination of this witness counsel ‘for the defendant 
again sought to show that MeKee of the detective agency 

had promised the defendants that if they confessed there 

would be no prosecution, but the court upon objection refused 
to permit him to question the witness on this subject. Gounsel 
for the defendant then asked the court to adjourn to chambers, 
but this was refused and the court shortly thereafter adjourned 
until the afternoon, When the court again was convened, the 
court and counsel for the defendants then stated that he wished 
to show by q,,estions put to Marshall and to the Assistant 
State's attorpey, who had conducted the questioning of the 
defendants when they made their confession that WcKeey, the 
detective, who had charge of the investigation of the matter 
for the Paris Medicine Company, had promised immunity, to the 
defendants, Theccourt agein overruled counsel and afterwards 
there was considerable discussion between the court and counsel 
for the defendants, during which we think the court made 
remarks that were unwarranted and should not have been made, 

We are also of the opinion that the court erred in not per 
mitting counsel for the defendant to show by cross~examination 
of the witnesses that licKee had made promises of immunity, 

as stated, for the reason that McKee had been investigating the 


sob. 


ai gaiteisas seed bad ose ,¥teqanS saiotbe ebteq.edét yd 
eH .@n60 eat ai eoaabive edt gaitececq bas wattapttasvat 
adt emis oft ts daemetq saw ad dadt ells getak),beltitect 
~ui to seimetg oa gsw acest tadé¢ bos Doneetnee etashasted 
age odw ,geovedia gliatete Gustetesa ods dade ,obem ythaum 
yeds tadt etaebusie® eff bomactal redtes edt te eeareda mat 
SASL dads ted ,seeds yout es tea to iacnet ate s -otem binoo 
20 post teaiaga beau od biveov té dnametete @ siam bib 
taebasteb oii Ver Iesists adsntiw £49 to aedéagtuexe-pact 
Yousgs cyvigooteh sit lo esio¥ ted’ weda ot Pigwon miaga 
s1ed$ hosestsoo yed? ti tard atashasteb ed? heedmotg dad 






beewtet moteant te og Paves ode tod HOt oese tg os ed fisew 
fewsued .testdun aids ao saondie exis aot ssourp at wid ttereq ot 
wtedusds of emwol be ef #rwes att betes sect dasha teb ods et 
“bemtuotbs x82 tsorede eltveda trsoo odd bas boauter age atdt dud 
adit <bosormos gew gigas truco sid sed sagontadts edt ttm 
bedatw ed sede betata asct atasbasteb eft 10% feeauos bas dss 
 gasteiees edt of bas Ifatetsx of tua E0188 yD w < nr 


ad? to gataoit soup etd betoubnen bed eda oyem 





edt oe tok tad no izes'tusco sist? eb2x vous acd edashas sate 
xstien odd to mbitegtvesvat eit Yo egzads bad ede orktoss 
aft ot #et taunt bee imots bed eqaagncd sniobbolt “abtet edt i$ 


De 
abtewredts has Lenavoo beLuriere alage tswesceat ; si en 
Sek Set 
foanweo bas tue adt nooxted aoteanoath efda1sbtaaco eee oxodt 


eer es 

eb aa $xw00 oft Said aw dotda gaits eetnabastod edt rot 

| eden ased oved ton ‘binoda bas betasxeswns orem ‘tadis gen 
a “Tak a 


~T8g tos at berxe éru09 odt dadt soimigo odt te ‘onis ozs 


wot? sntmaxe~eueto xd sone ot tashasteb odt rot Tenaveo aah 


i Peeeg. Pee 
uo Laat te cece ob ax bad oekou dade eeenond tw -_ a 


edt _Battagtsae vat | ned bad omg fede neanet eat to¥” 


£¢ i Ro ger Ss foe t 2 as Stade gt ind 
a “ 














aaa 





Sy, 0 


Ben 


matter and gathered the evidence, and the defendants might 
well have thought that MeKee was speaking with authority, 
and if there were any doubt of the guilt of the defendants, 
these errors would warrant a reversal of the judgment. 

But from a consideration of 21] the evidence in the record, 
the guilt of the defendants is so clear that we think the 
verdict of the jury ought not to be disturbed, Of course, 
it is the law that if a confession is made with promise 

of immunity, it is inadmissible, However, the witness 
Marshall for the state and the Assistant State's Attorney, 
to whom the confessions were made, both testified that there 
Was no promise of immunity, but on the contrary, the def end= 
ants were expressly advised that they need not make a state~ 
ment,but that if they did, it would be used against them, 
The confessioys made by the defendants were taken down in shorte 
hand by @ court reporter and transcribed, but they were not 
offered in evidence, But what took place at the time was 
testified to by witnesses and counsel for the defendants 
states that this was error, because if the confessions were 
inadmissible; it would be the written confession, This is 
Obviously unsound, Any one could testify to whet was said 


and done at the time. 


The defendants further contend that the state 
should have been required to elect under which count of the 
indictment it would proceed, A motion of the defendants’ 
to this effect was made at the close of the case and denied, 
and we think the ruling was entirely proper, because under 
the law, a count cherging conspiracy to obtain money by 


false pretenses is properly joined with a count charging 
conspiracy to obtain the same money by means of the confidence 


aie 


gdgim staabasteb eit bas ,onaesive SF. Setediey Dus tedsse 
cititedtus sitive getdseqe saw selok tad? tdguedt: eved: ffew 
etaabesteb st to dling edd te dduch wus stem eres 34 baw 
stimagist edd to iseveves & faetsae hive atone. aed. 
tees edt ai cosebiva edd [is to meldexabiegane, & moth tuG, 
odd dnkdt oa tad aslo cc at stashastob add te. slug eds; 
wate YO. bedumtels ed af tea sdgue ysut edt, to teLbzey, 
esinorg dtiw shew af sefenetacs = 2i tad? wal edt at 2 
asengie od} ytoveseH .oidieeiabext «fd _—tiaummt, to 
(eeues sa wtStsge dusteless ad? Sox ciate sdf ret sederg@t 
cred ged) boitivees deed .ebaw etew eactesetaeo edt mode ot 
apastos ad gyuntieop od? co dud qytiammi Yo eetmorq oa Raw 
astwa ae eden ton been yedd bast seatvha. elesoraas s1ew stage 
< yatedd fepiess boow ed Slvow ti bid yoss ‘td tadd dud toes 
eftode =i mieh assist orsD etusbested. sa yd sham agoizes taco oat 
tox etos yt fed  bedive enert Se essroget daués & ed baad 
| pan oeif add ta soaiq Soot Sade fut ponabive at gsretio 
agnabgeteh ad¢ tot Leenmsce bos agaecai ty yd of bestitast 
etew ennigastaca sdf T2 sanssed .rovre es etd? ded? sedete 
eb eidy ,noleeslace wetsice edd od blvow 32 Bidtes tnbaat 
biee 329 tate ot. natant biseo smo ys sbavoes ylewoivde 
semis odd anne baal 


““etate edz feds Bactase weieast utcaherten ‘af 


- edt to duseo totde saben goofs cz. borings: aead. = i : 


2 ae reps 
legasbaateb edt to molten A sheen ose: Sivor ef tem 









.beineb bas ea0 ad ‘te ‘sa0io ode ts shan ew toetis ha og of 

2 reba ‘sausosd sroqorg oritne ass gation oa anes } om. bas 
es aon ates of wartgnaos aaigrede ta100 * aeak oe 

cag et -asanosong gala? 


neta redo 3 aw00 s ghe Rant % yAreqe 
pone sie to eneee a ones onan ote porn o¢ yor igesos 











6 


game. People v. Warfield, 261 Til. 293, The state's case 
shows that both counts were based on the same fact » that 
the defendants had obtained $1200,00 from the Royal Drug 
Company. 


A further point is made that the court erred in 
permitting Schmidt, who was jointly indicted with the two 
defendants to testify, because Schmidt was permitted to 
sit in the court room during theprogress of the trial, al- 
though a rule had been entered excluding all of the witness~ 
es, and for the further reason that Schmidtis name was not 
given to the defendants as one who would be called by the 
people, We think the matter was entirely within the dise 
creéion of the court. While it wauld have been proper 
practice to have excluded Schmidt from the court room, yet 
it appears that counselfor the defendants must have known 
that when Schmidt entered a plea of guilty, he would probably 
be called as a witness for the State, but they made no objec= 
tion when they saw him sitting in the court room, We think 
the defendants were not prejudiced by the action of the trial 
court. It is further contended that the court erred in not 
permitting counsel for the defendant to crose-examine Schmidt 
in an endeavor to elicit fxom him the fact that he had been 
promised immunity. This witness testified on direct-examina= 
tion that he had made a statement in the State's Attorney's 
office at the time the statements or confessions were made 
by the two defendants and after testifying at considerable 
length, both on direct and cross©examination, he testified 


On crose-examination he had never received any promises of im- 


munity or reward, He was then asked: "Q. Do you expect to 


“ 


enso eletsts ear .feh . ffl £6R .bieitrary Vv Bggosg J emsg 
tai? & @oe? Seas edt ao heged orew ataven sPod +aHF awolle 
See eyo ott aort er bontetio had @tashastsb ont 

oe. eam sini 


we 3 rad RtEF BSR Sho esate 


at perre }ru00 ettt fade absi a? saree, ‘sodgut, A 


Le Aida eat 


owt ade gee hetotbai yitato, see © se pneaie? Se #3 tare 
ag bossi stoq Bs thimcae Sax 209d <Yite ag? ot _stasbasteb 


“Ls iets oft 2, saomBoTTOEf aaree & Boor F100 oad at é 8 
y ee €= Se si? Chee 
- 2 ifs zs bonedes asec bad 
aneadiw oda 2 grits i slut 8 rf quot 
ton oor ome ‘elsbindoe sent soasez rodeeut out ret oe os 
z baat 
cit xe beflso ea bivow ode eae a3 ‘ad nabaeted odd ot aovig 
. : ee RS Sg 2 ink . 


mete 9 az alagiw qisr ifs 22 xe¢tan edt Acide at is 






Bs eee 
-sgoug, need oved bisoe ti eliae #2009 oat te Bren ake 

tee e007 $2500 od i mort shinee bobs ioxe ors, os tere 
awond svsd Pec etaabesich edt xe Igcnwes tend Lae + ok 
yidaderg bivew sai ete Ligg te slg 8 borod.ag tbtaioa aodte fe w Sade 
soap do oa shea ved? tad cot S78 edd tol sseatie & Be hellso ed 


fate oF shoes FxLGO ads ai guittiv ew 428 oat mode 10. 








fated adt te saltos eit ee beotbutenq ton EOS at asa teh. eds 
toa si Lerte t1v09 ad? tas Sebaetace redtayt et At: gat 8 
thimdo® entmaxs~geors of gachnoteb edt x02 fesnuoo, , sow 
aesd bad ed tect tot add aid mez® tin tts of rovsebae| a8 st 
seul assexgoerih ae hoititest seant tx eiet atihovmant bea inerq 


e'yanroseé eee te etd ai toometsts 6 shan bei ef tady wate 





Fac 


shes Siow eaolsestnos td et nomos ate ott omit bate’ te a itt 
| Sidarobienee sagatytitest retts bas stachactes ont ontt a 
bailivess ed .goitssiaskeeaceto Sus toerts se god e308 
=ai to genimotg ‘Waa bevisost zeven bad sd notdaainsxemasore “ne 
ot deaqxe §0¢ 08. 28" y. hedes aadt ssw sh sbtawer ro yee 


ae Ag eee ‘ shi TS bs ve aa PS me Ra: rhein 











go to the penitentiary in this case?" This was objected 
te and the objection sustained, ‘the court stating that 
it did not make any difference since the witness had 
pleaded guilty, We think the court should have overruled 
the objection and pornitted the Witness to answer, because 
the witness was a confessed swindler and the defendanta 
‘were entitled to bring out any fact tending to show that 
he expected not to bepunished as a reward for testifying 
for the state, However, in view of the fact that the 
guilt of the defendants appears beyond all reasonable 
doubt, we think the error would not warrant us in disturb= 
ing the judgment, 


A further poigt is made that the court erred in 
allowing exhibits to be taken by the jury while they were 
considering their verdict. We have no means of telling 
whether the exhibits were taken by the jury. The record 
is silent on thie subject. In the trial of criminal cases 
the common law rule applies, which permits the court in its 
discretion to allow the jury to take with then, upon their 
retirement, such «papers and documents introduced in evidence 
as in his sound discretion he shall think proper. Dunn v% 
People, 172 Ill, 582-588; Cook v. People, 231 Tl. 5-15. 





In the Dunn case the court after referring to 
Sec. 8 of Division 13 of the Criminal Code, which provides 
that "all trials for criminal offenses shall be conducted 
according to the course of the common law, except when the 
Criminal Code points out a different mode, and the rules of 
evidenes of the common law shall also be binding upon all 


courts end juries in criminal cases except as otherwise pro- 


bsioetde sev eicT “Tease eidt af yettastiagg edt of og 
geal gaitern dunce adi  ,bosistem no igespde edt bas ot 
bed-geandde ac? sogie scnexethib yas saem tom BLb.ot 
befetreve avsd blvods dauco off dnint oF .yefieg bebseiq 
ease 3d towers os eeand ie ait pete iareg baw aoisoe,do edt 
etasbasteb adt bas tefbaive besestaco « ane saantiv ont 
gant wode of guthaet fost yne tue gnitd ee bottitas oxen 
garytisser TOL hiswet © es bedatanced oF jon betooaxe ‘od 
aad tad? fost ent to wety at. cteraued “svete edt 20k 

- @fdeneenes Ifs bacvsd erascas et aabasteb edd to ‘thing 
“exude st ex ¢naview fon bivew torts sat isids ow  (edieb 


taemabt se aa 


at bewze tasoo edt tadt sham ei tgtoy sedtuwt Ae, dove 
etow yout elidw yuh ed? yd medet od ef abidddze wills 
gailied to sasom os ova of ,tolitey siedt, gairal 
bxoost esf .yaut od yt sedst even at idtdxe. on. r9d¢ade 
sense fanimize to {site odt ai .toetdve etd? go taeda et 
ati ai dxuon odd etimteg tide .2eilegs eius wel mommoo.odt 
 thedt aequ .ued? ditw ste? of yxaj 94¢ weLis. of api¢etoesh 
 sonebive at heosboutal atmemvood bas sregeqg dowe. tasmextion 
a? Boe -.tegqerqg daidt {fede ed noliotoagh. basoe, eid nh es 
“eGin@ oft S88 aafvoey «7 tees 888-898. 41 £2 srr gedgoes 





a4 °3 ‘galtzoler t3d te x00 ome seao pee oat at 
“sebévorq do kitw 42100 Jeakatsd edd to Bf noletvig to 8 a 
betoubaoo od fLede asnastto Isainige rot eletié ctu se 
esiy aode dqeoxe eel 180 muneo PY te ‘Br 200 | odd of gatbroooe 
“te ae fun ed? bas ~obor ‘tasvertib e tuo ed ator sbeb ath. 
tie gongs harem ad oats Hades wal shemesgahe ode ‘le 





% 











—e~ 


Vided by law," said (p.588) "Mothing in the said division 
of the Griminal Code purports to direct what shall be taken 
by the jury from the bar of the court. The common law rule 
in criminal cases was, that the jury, when they retired to 
deliberate on their verdict, should take with them such books 
and papers which had been produced in evidence as the judge 
presiding should direct." In the instant case, as stated, the 
record is silent as to whether the exhibits were actually 
taken by the jury, but even if they were, no objection was 
made by counsel for the defendants, but on the contrary 

what was done in this regard seems to have met with his 
approval,,and he is in ne position to now raise the point 

for the first time. Moreover, we think it was entirely 
proper to permit the exhibits to be taken by the jury. They 
were labels, dies, printing matter, etc, and it was proper 
that the jury should consider them in arriving at their 
verdict, In this connection, however, the defendant argues 
that the exhibits were not read to the jury during the progress 
of the trial and that the law requires sll evidence to be 
presented in open court, I, support of their contention, the 
case of People v. Dlark 301 I11, 428 is cited, in that case 
there appears to have been grave doubt in the court's mind 

as to the guilt of Clark, Moreover, the exhibits ther intro- 
duced in evidence and which were taken to the jury room were 
now shown to the jury as counsel for the defendant insisted 
he had a right to do, nor was counsel there permitted to 
exhibit them to the jury. 


In the instant case the guilt of the defendants 
is clear, No objection was made on the trial that the 


exhibits had not been read or shown to the jury, Ho complaint 


sotelvib Bise od? at gaidso@’ (888.q) Biaa “mal Yd bobiv 
aeied od Fisde tedw foorks of @fcoqtmy shed feainlad sd? to 
eivoz wef Howtos sc tives edt to tad sdf mor¥ yrut edd yd 
ot Betivet ydt wode .yrut add tedd jec® eodeo Leatmico at 
asco’ dove rodt dtiw edad bidode  folbrev ciodd #6 edanediieb 
eghut sat BS soadhive nt Beophere weed bad fobdw execs bas 
edi ,bsista ez ,owso tasfani edt ql 4 *.soesid bisode galblieorq 
qicuies eréw atidindve edt sedtodw of ae ‘taolie ‘et ‘breoet 
eaw aoigeside ox yoree voit BE weve dud eet out I usist 
yisitace edd ge tud .8tachastsb ede 108 {eeaseo yd oban 
eid dtiw fom oved of emsee Ba Tane% eit mt ‘aaob aaw dade 
taies eft oaist wos ot acitinoq on af et od has, fs worden 
Vissitne sev $i sinidd of ,sevyoetoR .oméd. tent? ede tot 
yout... syle edd ys assed ad ot stididxe ody timxeg of teqo7q, 
reqorg eat Ji bus .ofe .zetton yaiinirg .apkb~sfedsl exes 
thods ts gaivicxs al mods teblenoo bivodta .qaut eds dad. 
eeugis tashasish 6a? ,tevewe ,acitessaeo aifid. al. atosbzey 
sestgorg est gaisah yxut off oc Best ton mew atididze edt jadd. 
od of sousbive ile sexivps wai oft ésdt bas faint ed | to 

ois. ~<moigaedace. tiess to troqgua x-f st F108 sage al. 027 f a 
caso tedt al ..betie et SSA .{f% [08_sixagy -7_sinet 20 een 

baie aru efit ai dduob every ated evel of eteaqaa 9 on 








~ortal eds atididxe eat ,rsveero¥ ,21eiD to #iing adt os 26 
w9F BOOT eret. edt of neva? stax daide ad sonebive at beoub . 
betetent tasbastoh edt xok feaaveo as est ote ‘of caois wos 


PR fe 


ot bettimreq ered Sensusco asw son eh ot Sulg kx s bad oi 





staabasteh ede to tiling edt ¢eso dasteni edt ia snmeh ees 
edt tad? feivd ed? ao abeu sew meitestde of .,xesfo at 
taisiquco of .qms, sd? of swode 10 bast ased fon bad atididxs 








Dew 


was made that the defendants were not permitted by their 
counsel to exhibit them to the jury, but the record dise 
closes thet the exhibits were @mnsidered by counsel for 
the defendants, and no suggestion was made to the contrary 
until the brief was filed on behalf of the defendants in 
this court, We are clearly of the opinion that the Clark 
case is not in point and there was no error prejudicial to 


the defendants of which they can complain, 


A further complaint is made to the giving of 
peoples! instruction No, 5 and the refusing of defendants 
instruction No. 4. The instructions are not numbered in 
the abstract or in the record and if they are counted it will 
be found that the argument of the defendants does not fit 
the numbers of the instructioye designated by their counsel, 
Moreover, the defendants point out neo specific object ion 
to the given instruction complained of, But, even if we 
take counsel's contentions as stated in their brief and 
apply them to the instruction that he appears to have in 
mind, we think there is no merit in them, nor de we think 
there is any merit in the contention of counsel for the 
defendants to the effect that the argument of one of the 
Assistant State's Attorneys was improper. A reading of 
the entire argu:ent, which is in the record, leaves no doubt 


in our minds that it is free from prejudicial error, 


The further point is made that the court erred in 
not striking the bill of particulars filed by the people 


from the files and in not granting the defendants a continuance, 


In support of the contention that the bill of particulars 


a 


“xiods ee beds taveg fea Stee atmetcetob ‘bate’ ¢edd Star ito 
msif breoet add dud eres ett of wade sidkdas’ oF fonaves 
sol [seauo vd betebisna erew eFididxe elt tact seacte 
yiettade sd? od shew 2b noftasggoe om bac Yerakabtey emt 
‘mf eémabasteh adé Yo tisded so betrt ssw Yokad sit Inti 
ase odd gadf wointyo eff te yitasio ore eM * {Sure ate 
et fete toutor ravts Of sow ereng emt tubo at ton ak | omgp 
"Sets iemce aso ved? de ide mbes y ips: 


“se EOL et 


te. aeivig. oat of Shem af fatateneo sadist 
edastastes te gaierien eat cas & 408 aoitoustant 
te. ersdnivar tos sts saoitowstaci ect of Pus i é 
if ie #2 Setaxog era yond. bz coat breoss edt at *@) 


YS eenbias 






Be 


mddnbincetbionts andes #tn ataaboesed. ae exevoor 
oe RE wave gins 30 Beatsiquoe picid ryMicied 


oe a Set 


Aotds on ob som quads a thase om at scot 1 Aatit ow be 


agit ret feagueo te so itued m0. ome, a estes = # onedt 

e 26 eno io taeaugte ont seas dostie odt ote 2 af aches} 
cee . Le gxthact.a . stegotgal as7 eysarosia siatere tmedateaa 
(#@y0 of sevSei ,hxoost eA7 ai el doldy ate ougts a ng 


Sofog .« wente, talotheterg mort aatt, af an pat re — 








al berze ruc edd fed? Shas oF talog todtent edt d od 
aficoag edt yi BeLit ersiveitrsy to itis aes é | ee aS. 
ssaxecethanisisteancnt eal aiitteaston eh tne. eats dk oa 
eiaivsivacg Yo (iid edt ted9aotsastaco at at 


eet Se BAe seed ge bag 7 i Ghee 














should have been stricken, counsel say that the record 
discloses that the bill of particulars should have been 

filed on May 18, 1925, but that it was not filed until 

June 11, 1925, and therefore, not being in accordance 

with the order of court, it shovid have been stricken, 

and for the further reeson that it did not acquaint 

the defendents with the charges which they would have to s¢et, 
Upon a careful consideration ofthe record there can be no 
doubt that the defendants were fully aware of the charge 

that was to be made against them and the evidence that 

would be adduced, in support thereof, They had made statee 
ments or confessions and they knew that Schmidt, their 
eO-conspirator, had done likewise and heard that he had 
confessed, all of the confessions having been made at 

the same time and before the same parties, it clearly 
appears that they were in no way prejudicied on account 

of the late filing of the bill of partisulars or on account 
of any of its insufficiencies. Nor was there any error in 
the ruling of the court denying the defendants a continuance, 
This contention is baged on the fact that the bill of particulars 
was not filed at the time it was ordered that it be done 

and counsel for the defendants say that they were not pre= 
pared for trial on account of the delay in filing it; that 

it was not filed until a few days before the case was 

ordered to trial; and that this is shown by the affidavits 
filed by the defendants in support of their motion for 6 new 
triel., The record discloses that on the motion for a new 
trial, the defendants were represented by counsel other than 
those who appeared for them on the trial, and each of the defend- 


ants made an affidavit in support of a new trial both of them 
being substantially the same, The affidavits set up that 


Oi~ 

brese eat tsd% yes fosaves ,sedoitia aged erad Sivode 
‘need sved bivods aceinoitieq To iid edd a acts eseoioath 
fidey ball toa aew 2F edt tud .eser “81 sk 20 ‘bolt? 
eomabroces at gaisd ten «sretereds bas B82 olf envi 
gteisigte noad eved bfroda ti ,ttu0 To ‘Tebto ‘onle agin 
fatespos tox 61h ¥t Sad? aoaser se ddcat ort oy bas 
eteae6s gved bloow vont dotiw eeguars edt dtiw ‘admabasteb ‘edt 
ox ef and sxedt Steset s@te moivetoh lanes Ivtetso s noqt 
egzaio siz te atas eink ore" adastce Leb sat Feds “Faisob 
dant sonsbive sit bas wadt taniags chan od of ssw dad? 
tate shan bad yer? stosredt sroqawe at ,beogdbhe o bison 
tied? ,gdimdod t+ads wend yede bas age tasetaoo 32. ataen 

bad ed dadi brsed baw aeiwedif aaeb pad ,tot#727aa00~00 

ts sbex seed gnivad anc tasstaoo 9m te J, gbosas taco 

“ melo n inthe at ese oat oroted bas Sak (Sa8e, vm 
‘tawooos 0 oeio thet org ue on mi grew yodd tadt . 





truo0s BO TO ete ie it ae to fie edd to gmetst tet oat % 

at ore yas exo dd ase oH 80 eas to I twemt eth to. yan to. 
econsunttneo 4 at anbas tab og gaiyash fives sat Xe gariet pas. 
sialvo it 1aq to Eitd ody tadt tost sd? ao beasd at sotimetace aie. 
such ed ti oat hersbre ase fi omit od¢ ta boll? tom eee 

“org tes stor yout tedt Use adaashacteb adt rot _fegsuseo bas. 

: tacit gee gat fit at welled ode te sayocoe se feixt t03, beram, 

een e385 odd oxotad eysh wet s fives belll tom ted rea 

“ea tvabl te sdg vd awoda ai aide ace bas ; eisizt ot. borebre, 

wen 8 tot nottom ttedt to évecque at etxabackab odt i baitt 
wea @ wi soliton edt no tats astoleeis SroosT SAT oieist 

“0 tedto Lssqvoo yd Detapeerqet sisw soastasted ert feted” 
~broleb edé 20 dose bas _istit-edd aemeds rot botseq gs odw eeodd 


mods Yo died Laie? wen @ Ledtogqve at Sivahttta as sb ddd’ 
tas Gs tee etivebitts act ya odd VWistiastedus gaied 








-ll= 


they relied uwoon their cowmesel, who advised them that the 
eourt had entered a rule upon the state to file a bill 

of particulars and that it was not filed until long after 
the time had expired; that it was not filed until about 
dune 12, 1925, and when thie was learned the defendants 
were advised by their counse) that it would be unnecessary 
to be ready for trial on Jume 15th when the case was set 
for trial; thet relying upon their counsel in this regard, 
they did not prepare for trial and were not prepared when the 
ease, over their objection, went te trial on June 15th; 
that at the time they were arrested in April, 1925, an 
Assistant State's Attorney, @ representative of the Paris 
Medicine Company, an attorney for the Burne Betective . 
Agency and a police officer came to the defendant Byrud's 
Plece of business and informed him that they wanted him at 
the State's Attorney's office; thet he went with them 

and was kept thereumtil 8:00 P.M. on the same day and was 
mot allowed to communicate with counsel or any oné else; 
that he was questioned relative to his knowledge of the 
commigsion of the crime in question; that he was told by 
the Assistant State's Attorney that if he would tell 211 that 
he knew no harm would come to him; thet he was alse told 
the same thing by the other parties who had him in custody; 
that he refused to and did not admit his guilt of any crime; 
that thereupon the Assistant State's Attomes ordered the 
defendants taken to the police station, which was done end 
they were held without booking or warrant; that they were 
not permitted to talk or communicate with any persona; that 
they were then taken in a patrol wagon and held until ten 
o'clock the next day without food or drink; thet they then 
Obtained a release on bond and returned to their places 


edt Sune walt BeaivOe of (Leenvés Shedd moqu better vod 
[iis 2 eft oF state oe aeqy efor o bored bad $2000 
notte goof Lites befit tom aaw of tadd bat eratvoldzag to 
jucds Liine Bote? gon eaw #f dads phox tga bal onlt “edi 
sktsbooted od¢ Bomteol eaw el dy aac bas aber 2bt osust 
yissnesseas ef Gloow #2 ted¢ Teenuvo stad? yd bealvbs exsw 





ton eae eco odt cade ddBL sau, ao isizt «ek yboor od of 
Stage: sidt nt [semvoo ties? aoqs gatyiot snald “platre 20% 
e437 astw Setecare tex atew baa Ietis tet oteger¢ ten bib “weds 
1838 anil. mo isitt et gaew yroltostde tiede reve “bes9 

az <286L piiwqa af betmetta sre yadt emit ode te ‘tee 

ete? oat to avitatconexqer é eqearesta stedaee suadeioea 


nea elt eth 
avigoatatt ented ody 19% yaatoite me eeslag0d onto thew 


Pesos 


athertye deabnetet od oF 9m8e “‘geottte ao ikog ‘s bas wonega 


ea 3: PS ty oh 


te wid bedmex youl} tadt wid Bewretat bes cesatecd Yo eoalq 
wedd dtic gaew at fait ‘geadtio a! yemrortA ‘etetase ‘ot 
sae bas yeh sene 3d? #0 ted 6078 Ligquoxsdd ted ‘ear kg 
penle ene yss te feenvae fiw etseiammsco of ‘bewolis tom er 
adit te anbeivont aid of ovivetss honotsse0s eae ‘od tat 
yd Bot ose sé sade acideaus ai scizo ad te pelsetanes 
sad If¢ Ifeg btwow od TE ¢ed¥ YomrosdsA wt etate tustetend oct 
“hitos Wate aw bd sade Bld of tute bicow mxad on wed od 
rietdecis ni ith bei it Vnévied adll ih @ Glde GS 

gentze yas to Fiiwg etd ithe don bid bes of beautor od | pads 
eat hevebto Yearoiss elernes Saetatess, ait soqusredi ? is ast 
‘bas ‘enok ace ds & bo etoldate sot log eng ot aoias starbes 
exe8 wou tede jdaeris 2 ‘gatsood toot = bied een en 
taut jroereq an ateie ote0 amon x0 ‘fat ot ‘pedetexeg soa 
“aed Lites bled baa | sega ‘foxtsq 4 at asist sod exo xo0 yedt 
“ aot wont ‘ted plate petoglon thw yab 3 éxon od¢ fo0lev6 


“ asenig sted? ed bannr hantagos bal | baod mo pe hg he ae 


at 











-12- 


of business; thet about three o'clock in the afternoon of the 
same day the Assistant State's Attorney and other parties 
and a detective from the Burns Detective Agency again 

went to the defendsnt Byrud's place of business; that the 
detective learned that the defendant Byrud belonged to the 
Magsonie Order and told Byrud that if he would tell all the 
truth about what had taken place, no harm would come to 

him and he woubd not be prosecuted; that thereupon Byrud 
stated that if they would do the same for the defendant 
Lipshute, he would make a full statement of all he knew 

in regard to the matter; that the detective then stated that 
both the defendants would be given immunity and would not be 
prosecuted; that efterwards they met the detective as per 
appointment at six o'oloek in the afternoon then they hed 
their first meal in two daya; that the defendants then went 
to the offices of the detective azency and talked over the 
matter, and that defendants told MeKee, the detective, 
frankly and without reservation all that they knew of said 
cause, and that afterfardse in accordance with the agreement 
with MeKee, on the next morning, they went to the State's 
Attorney's office and then repeated their stories there, which 
was taken down by a stenographer; that thie was Gaturday 

and that the Assistant State's Attormey told them to return 
Monday end sign the statements made by them; that they did 
return on Monday but refused to sig the statements because 
¢hey did not contain any promises of immunity, snd thereupon 
the Assistant State's Attorney told them that he did not care 
whether they signed them or not and they then left. The 
affidavits further set up that they were willing upon the 
trial to relate 211 the facts contained in the effidavits 
and sougkt to do so throvgh their counsel, but that the court 


wh E~ 


edt to mponredts ed¢ at dseio'e serie guede tad? jeamatend, to 
aebits teiie bas yeatodtA gtatare taatchesd odd yeh omae 
xisge yoooss evitectsd emu att mor? eviteeteh o bre 
et dad yeaenitaud to conta sthewtya tachosteh off of taew 
oid of begnofed boty tuchnetabh edt tart Seatael evitoatab 
av? Ifa tiet binew o4 Tt gad? Awtes biet daw t9btO etmoneM 
et Smoo bivew mead om gseeiq sedet bad tady ¢uods dtast 
bvave scqworsd? tadt phsdmoeeesg ed ton Sdvow ed One mid 
fnebnstsd sit rot emee edt eb S trow yods TE dedt. hetate 
—'swraged od Lis te tagmedsde Lint « elem bloow ed.,.otudegia 
gad? Sotsts asdt evidgastab edt tad? qrettem edt ot Buaget at 
ed ton Sivew tae yYtidinmenst mevig ed Bivew atashostsh ods . il 
rey es avitseted edt tox yout ebtewretts tadt ghetuc 
bed qedt asd -ecoavetle act of deofo'e aia te tra 
énow asd etachastet oft tad. geyed. owe. oh Laem. tout siods 
ett seve bodist fas Yo 29Es arétoeieb-sdt te coq tite pdt ot 
2avitsets oft soto bfet atashzeteb ‘todd bos. xettan 
bise Yo wend yest tedt ffs noitsvreset tucdtéw bas yldaast 
tapaerhs odd ctiw sonebtosoe si abratwedts tedt pas. .2Engo 
etetat® od? od tus yedt «gsioton dsc ed? mo gsoloMddiw 
coldw ,otedt asixetes «ied? bedseqot nod? bar geltto glysstorga 
‘aebivtel ass eld? gadd yredqangorete « yd mwok medet esw 
‘Mute ef madd biot Yourotth oleterR sastetoes odd. todd bas 
(bah yet ame yood? ye oben afasestats edd apie bas, yebaok 
cnssosd staomedsts edd cyte ot besuIes tud Yebaok 80, mutex 
Hoquetads bas ,ytinugmi te seaimetg yas aistaeo. Fon bED, ods 
orao tom bib od Sedd wedd blot. yormotta etegete. dasteieas edd 
ody othe gedd yodt bas goa. 70 modt, bemgte usdd xodtede 
edie mows gall liv exew yeas sadt wm a9: reditut gtivabstte 
» Sivablitte edd at Sealasaoe atost edg oe EE A 
truce, edt —_ aud. logmuao. Mil Ager } 











-13- 


Tuled that anything thet transpired between them and Hexee 
was immaterial, Thies is rather a novel way of securing a new 
trial. The defendants were present in open court and should 
have then testified or at least an offer should have been 
made by their counsel as to what they would testify to end 
not wait until they were convicted oni then set up by way of 
affidavits the facts that they should have testified to on the 
trial, Moreover, we are clearly of the epinion thet these 
affidevite, as well as the evidence in the record, shows 

the guilt of the two defendants beyond 211 reasonable doubt. 
fhere is ne denial of their guilt in these affidevits, but 

on the contrary, they admit their guilt, There are a number 
of errors in the record and would werrant & reverse] of 2 judge 
ment in a criminal case under many circumstances, but we are 
of the opinion that that/ane not to be the result here where 
there cam be no doubt of the guilt of the defendenfs. People — 
¥. Halpin, 276 Til, 365; People v. Stover, 317 Ili. 191; 
People vy. Thompson, 321 Ill, 594; People v. Kessler, 324 Ill. 
304. 


Although the point is not made, we are compelled te 
reverse the judgment ani remand the cause so that a proper 
judgment may be entered on the verdict. By verdict the de- 
fendants were found guilty end their punishment fixed by 
the jury at imprisonment in the penitentiary and 2 fine of 
$1,000.00, Te sentence should have been an indeterminate 
one in the penitentiary end net fixed at one year as wes done, 
People v. Graves, 304 Ill. 20; People v. Lloyd, 304 111. 23. 
Hor wae the court warranted in adjudging that the fine of 
§1,000,00, imposed by the jury om each of the defendants 
should be worked out in the House of Gorrection, There is no 


=~ i- 





estou bas nostd sanded 4 benigenent att patatyaa, fat, vases 
won 2 galauoan to you ioren & sedtes a4 Shits, 
‘bivade bes FIGS. REGS ai taseetg, O98 ad hao sete 





b edt fabs ! 

aced evad Slzede naFto. ae tenet te 26. belnateot fois eyed 

pas of ¥Btect aivew ved, dadw of es fenayeo shes? xd aban 

to yew ud qu gee sot bee Regeivace etea ods. Att Ae BoP | 

od¢ ng 6¢ BobDides? eved Biueda yedd fait atest ode nena | 

saedt javt solmigs e¢ le yfeacle ots o© .zeveatell 

sroda ,bisett $08. gh, aoapblve. odd. ae tins 04 FAT ABLIES 

stdueb sidszosaer 11s bacyed etanbseteh eed edt i” Bs 

gud .etivshiiis ened? 21. tiing tied? te Istee’ : 
asdsga ¢ ote sxedt .tiieg stest faba vat ott: 






























ie see at. oes adit et se aR ee 
| g$8h itl TIS zzevese «¥_gigoeg 25h .Lit, OPS. eapapesnil 
-fii S58, g8lene8 .¥ Sigess j$e »fii ISS .peegmody. «7 oJ dhe 
2 oan 


tygaeemty S 





“ belfequss ete a7 whee fou wl feioa ed¥ diode in 
soqora, 3 tat oe @aveo ext besees Ga dapephet “oct oozovor 
9b ode toLbtov “i .oibcer od? no hezetne oe vee ‘Poemgbot 
W bextt fmiieiesg tied? bas vel basis sxew  edhabdet 
“te eait s bas yesktnsd 2n9¢ od nt deemmontrgn! ts ext ot 
“ stemterotebat 1 a8 eoed ava bivode sonst ase og “600 8 
.enob eae ae tesy ome ri bext? teu bas westéned ture ‘ode ete, ‘en 
28 tit 208 108 Lf) B08 pevera ov afc 
to exit rome ai bod aertsw ‘bruce Say an 
“etasbastob ods to vn ey he ade i Beesant cous 




















eu an ie 


~14- 


warrant in the law for such a judgment where the defend 
ants are found guilty of conspiracy under Sec, 46 of the 
Criminal Code,and the penalty fixed at imprisonment in 
the penitentiary and a fine imposed, as was the fact in 
the instant case, 


For the error in not entering the proper judgment 
‘on the verdict, the judguent will be reversed and the cause 
remanded to the Oriminal Court of Ceok County with directions 
to the court to enter a proper judgment sentencing the de- 
fendants on the verdict, This is the proper procedure, 
People vs Boer, 262 I11. 152; Wallace v. People, 159 I11. 
446; People vs Goleman, 251 Ill. 497. 





REVERSED AND REMANDED WITH DIRECTIONS, 


TAYLOR, Psd. AND THOMSON, J. CONCURe 















=aI~ 


TO ae ete a dove cot wal odt at daancae 


spacer, iat . Shi 
teompbut xeqous oat etme ten at terse 2 sg tA. sinew dos 





SPAMLRTEIEHSt HE He Bees & zi cals aig 28 68 ‘en 
cet eter ar tane oot 22 SOREN Sa fete qh nidned “4 pees Ree 4 


<3 EOS seers a . oe ate hae 


| ae Mahe ts SB a oe we ‘Gee wi —— "4 
wo He s2eay- et tpeseed “ee Bares * # on hatte ve 





70 = 31194 


CARL LARSON, 
Defendant in Error, 
ERROR TO 
Ve 
MUNICIPAL GOURT 
E. KAHN & COMPANY, @ corp., 


Plaintiff in Error. 


OF CHICAGO, | 


ce Me Ce et Se Nl Cr Cees Nc itt ntl 


Opinion filed March 2, 1927. 


2DAAT.A.63T 


SS 


WR, JUSTICE O'CONNOR delivered the opinion of 
the court, 


By this writ of error the defendant deeks to 
reverse a judgment entered against it on March 7, 1924, 
for $625.00. 


The record discloses that on January 29, 1924, 
plaintiff filed his statement of claim alleging that the 
defendant owed him $625,00 for potatoes sold and delivered, 
The suit was returnable February 5th and on that date the 
defendant's appearance was entered by its counsel as "E, Kahn 
& Co., 2 Oorp. herein sued as E. Kahn & Co." The defendant 
was named in the praecipe and statement of claim and sugmons 
as "E, Kahn & Company." ©, the Sth of February an order 
was entered giving the defendant ten days wibhin which to 
file its affidavit of merits, On February 19th no affidavit 
of merite having been filed, the defendant was defaulted 
and judgment entered for $625.00. This was vacated and set 
aside on February 23rd, by stipulation of the parties, and 


the defendant given ten days within Which to file an affidabit 
of merits, The defendant failed to file any affidavit of merits 





















f | gtorre at ‘tombe tet fous fee ke 
{ 
( 











é oT SOnnE eb 
: TRUGO JATIOLAUM $ 
_ ORADTHO WO | .@t0o @ ,YHATHOD & WHAM »@ : 
, etortd at thisalelt, sai : 
ae SOL (2 détew Oof2t actaiqo® © FPR : 
PRO caTR RS Ore ee 
, to ee eer wes sovKoD"@ wor reUt vm OO” tp 
a ) 2 i ae nya 


ot axiesh tnehasteh edt rottts ‘te thew ‘aide « 
aauae tot 


ie SePUROGT . GBs Rm a eo ttas 
ePSOi .2& yosunst oc tent aseoloalb brooet aiff ay. 


edt tert gaigelis mislo to taometata ald beitt Mtitnislg 
serevileh bas bier esotsteq: tet 90,8883 sid hewo sashasteb 
edt e¢ab tedt co bas d@ yrawedet eldaxiutet asw tive edt 





ePSOL 9 Mote wo tf reriege Setoine te 


oS miei .i" ea [eanvoo att yd berstae sew eons tasgge ettnspasteb 
 ~—s Paabaeteh eff “.00 % anedt .2 as bsve aiered YT OO s 4100 4 
e stomps dos mtslo to tneestste bas ogioeatq sdt mi boman eaw 
cebto as vtawrdel te dda oft 0 ",yunqmod 3 adad a" os pe 
Ot Molde xiidiw aya oat tasbasteh edt gaivig boretae or 
tivebitts em mel yraurdst a0 satitom to tivabitts eth etek 
‘petiuateb esw daabneteb edt ybelit aeed gatvad etizem to 
tee bee botanav sew etdT .00.888¢ rot heretas tomb, bas 


_ ba yaeltteq edt to mssaliniiet yt ybxts waren ao 0 ebies 


«Be 


and on March 7th it was again defaulted and judgment entered 
against it for $625.00, On, May 3nd by stipulation of the 
parties, the default and judgment of March 7th was vacated 
and set aside and the defendant was given leave to file its 
affidavit of merits within ten days from April 30th. on 

Way 14th the defendant having again failed to file its affie 
davit of merits, a defaalt judgment was entered against it for 
a third time for $635,006 On June 12th, the record discloses, 
that an order was entered setting aside and vacating the 
default judgment of May 14th and also setting aside the 
order of May 12th which vacated the default and judgment 

of March 7th, and it was further ordered that the defendant 
be given ten days within which to file a petition to vacate 
the default and judgment of March 7, 1924. Afterwards on 
November 7, 1924, on motion of the defendant, it was ordered 
that the defendant be given leave to withdraw its petition 
to vacate the judgment of March 7th and leave was given 

the defendant to file and amended petition within five 

days. On December 26th, following, an order was entered 
reciting that the matter come on for hearing op the defend» 
ant's petition to vacate the default and judgment, and that 
the court found against the defendant end dismissed its 
petition, from which order the defendant prayed an appeal 

to this court, which was allowed upon defendants filing its 
bond in the sum of $1200,00 within twenty days and bill of 
exceptions within thirty deys. On January 15, 1925 the de=- 
fendent moved the court for leave to file another petition to 
vacate the judgments. The motion was denied and an appeal 
prayed and allowed to this court upon the defendant filing a 
bond of $250.00 within twenty days and bill of exceptions within 
thirty days, and on that date the defendant filed its appeal 





tt 


~- betetme fnewyby, bas bedinateb miage aew ti det doxell no ban 
Nee edt to moissiveite yd be® yak gD .00,883$ set #2 saakags 
bejacey asw dtl dors Yo fnenrghet bas tivated edt ,eelt tag 
3 evi @Lit of evesi nevis esw tascinetoh ont bas bias toe bas 
ae | #O .dtO8 Liega mort eyeb nat alddiw eticen to vivebitts 
: ~tite att efit of bolist alegs gaived dotbhasieb emt: ataL yen 
* | got gf tamtege betstas anew tasmgbey 2 Gated ®& ,eticom to tivab 
‘ | easaoloeth broo st Pale pes want a ear ret oakd buidt s 
edt gnitecev bus shlee giittes baretae eaw zahto as tadt 
ait oblaz gaitiee cele bas dist ysl to tomy but, tusteb 
faemabst bas tigateb edt hetsosv do tide ag 82 su Yo rebr0 
fasbasteh edt ted? berehxo vedtist eaw tt bas ,dz¥ dotad Yo 
eteoey oF MOttived # 12% of Motdw widetw yeh tet mevig od 
so ebtswresta .SSCL ,% dota Yo Fasmpbiit baw ¢lueren ede 
he: berebto eae ti ,tasbmeteh edt te acitom ao SEL PF tedmevoE 


aed a Pine D 
Se aoa a ee 




























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: aolsisequert warbdt in ot evsel aevig od tasbusteh edt tats 

ss _fovig sev evsel bas oY dozen to tmeaghut edt eta0sy ae 

‘3 SVit aidtin gottiteg bebaems bas 9ftt of #aabme eb ot 

= _sernene saw tebze as ggniwol fot tas Todaso a m2 eyed 

ny gebasieb edt go gaitged rot no omen rettax ort Pett gate, ape 

. _tad? dee .taombu, dee tiueteb oft atsoey ot noid kteq ‘stdas 

as LO tg a 

Se (eth beagiveld bas gutasteh ods tentens bauct g2uoo 91 
ys cs BA Oe ‘ 


Laougs as beyate taabasteh sd? xebto so bbw mort grmagseen 
cos ik age Be 


ath gab tt atasbasted Hogs bowoLla een votiw <ixwog eidt of 
) TSS ee ee Bae P 
, te Lite bas ees: yioont, add bw 9.00828 to. sua ode mt hnod _ 
Rear aber ald 
E i Le eset aL Yrauagh, ee eyed, ade abide te 
i | OF mottited rsdtons sf1t. oF ovest ret drs09 ott bevom tanbas 
fseqqe as bas belngh . ui o87 ots a 
« qatcee tasomsteb ent ar feete eidt of bowolia bas. 
o » Ak ie SY wae wees Pet gaeteb s 
eastéevesn to inte ute iw 





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guserce Se 



















% Porat Ts, Ae Pavy | Ae ren SaRe, ue ’ 
il att belt? $ ashas?eb ode > tadt go Das 


ESAs oe. oy NPR ats 


“me 
bond, which was approved by the court, 


Afterwards on January 24, 1925, by stipulatiog 
of the parties the order approving the appeal bond of 
January 15th was vacated and set aside and the appeal bond 
withdrawn, and it was further ordered that the order of 
December 26, 1924, above mentioned, be vacated and set 
aside and leave wae then given to the defendant to file 
an amended petition to vacate the judgment and the defend= 
ant was ruled to answer the same within ten days. On 
February 21, 1925, the court overruled the defendant's 
motion to strike plaintiff's motion to strike the amended 
petition of the defendant, and the defendant's amended 
petition was stricken for want of jurisdiction. From 
this order defendant prayed and was allowed an appeal 
to the Supreme Court upon filing a bond within twenty 
days and bill of exceptions within ninety days. The 
appeal bond was filed and apparently this proceeding was 
dismissed by the Supreme Court. Later the defendant sued 
out a writ of error from the Supreme Court and thet court 


transferred the cause to this court, 


From the foregoing recitation of the facts 
as shown by the record, it is clear that the defandant 
has been trifling with the courts, Three judgments were 
rendered against it end later it filed three petitions to 
vacate the judgment of March 7, 1924, 


The defendant first contends that the judgment is 
wrong and should be reversed because the judguent is against 
E. Kahn & Co. “without BE. Kahn & Cos having been @ party to 
the suit is not a judgment against the defeniant E. Kahn & 


stride 9 ae yd bevorgas esw arin" ° dl 
4 § wri ktegst 
woltsisgite W .gkeL df qtavaab 110 sbrawretta andes 


3 rene 





ten bas betzosy sd bono staen avods von Bs xedn90 00 
orit ot dag aetel ent oF asvig aoe as" sysel, bap, obtep 
“shnoteb edt bas +o xg Burt ort ov. a0a¥ ei sottiteq bebaoms as 
‘gO .eyeb aet alddiw smae ode uewans of hele Het pe Age 
a'iaebaster edt beluttsve trvEo edt 288s 8 / a 

























pebabms off adiute of molto a! ttitatelq eiisie of ¢ motto 
‘Bebaens eltashasteh oat bas stasbaoteb ot a ma stg 
mort saottosbe taut toe aan rot agie inte Rag Ms 


“tesqqe fo bewol is ase bas beyseq taeha9zen ebro. add, 

a Wino mad bw hacd 8 gatit aoqu frurod smorqua aft oF, 
edt ayeb ytonts middie ano itqooxe Xe tii bas. ‘BXSD. 

esr ‘gutkesoorg ait Utnoreqas bas ‘bolit aew , batod, fasags. 

boue tachaster ody rated «F100 onezque, edt yd. Donaluesd 
Fao sit bane $2000 omerque oat moxk torre, te thay, 9, tue. 


oF TG00 etst of Saez 9 ke a 
atest oft to nots eibost gatogetot oat mitt eras ont 


(tnabaated-odt tet teeld ef +f ybtoost sit ve noi a8" 
_ SteR atmsegbdyt eextt’ yetxvoo ot dtiw gutittee need aad 





3 





| OF anottite, serdt belt? $2 setal bie +t temtage Siekan kad” 


i OE Ok ROT torte Ro Premade oa eteeby” 
berm — y 


“a $ nony bu ‘ott ‘parte fia fi sent? tuasnored 


Ree oy ee dee S| eh EF tay 
rents ek taompbut oat a beatavax se btuod 
cus Se sath i Oe ee gg 
bi Wise £ need gutvad +00 & ade . 
enh Ke tee Stene iets ches 
 & adet .2 tua astob one teato 


He PARIS ct Res 5 R geeks ay ih 


- a! \ 
a ae eee a ee 









“Ae 


Company, a corporation." This argument discloses further 
trifling with the court. The suit was brought against &, 

Kahn & Company, and that company was served, Its appear= 
ance was entered as Ey, Kahn & Co., a corporation, There is 


no merit in the contention, 


A further complaint is made that the court was 
without authority on June 12th to vacate the order of May 
B, 1924, which vacated the default and judgment off March 
7, 1924, because it is said the order of June 12th was 
more than thirty days after the entry of the order of May 
2nd, and that the Municipal Court is without authority to 
enter orders after the lapse of thirty days, It is true 
that the ijunicipal Court has no authority to vacate a judg= 
ment or final order after thirty days has elapsed, but that 
rule of law has no g@ppliceation because the order of May 2nd 
Was not a final orderg that order merely vacated the judg= 
ment and default and gave the defendant leave to file an 
affidavit of merits, Such an order is not a final order 
and may be vacated at any time while the suit is pendinge 
Moreover, the defendant is in no position to question the 
order of June 12th vacating the order of May 2nd, because 
the order of June 12th in addition to wacating the order 
entered May 2nd gave the defendant leave to file its petition 


- to vacate the default and judgment of March 7th, and the 


defendant afterwards treated this order to June 12th as 
valid and binding because it subsequently filed three 
@ifferent petitions seeking to vacate the defauvit and judg- 
ment of March (7the Having thus taken the position that 
the order of June 12th was valid and binding, the defendant 
Will not be permitted to stultify itself and now claim that 
























os ia 


fenatpcatt agecloalb taemgue efit " goitearcgreo 2 otasqned 
. .& fumisgs tdguoid sew tine ad? .éxveo odd “Wete ganstins 
; ;  —igeqgs atl .beviee es* yasqmon tant bas aanoD & ate 
i ai ote? .aciterogtoo & ..60 4 Aged sd 06, borat ae ase, soa, 
Sa .moktastace, oft at them jon 


german? Lor 


aaw dro ont tadd chen at ¢atafquoe waders? 2” | 
eat to xebro ast etsosy of Atel ‘ea m0 vibrodtua ‘tuodtie 
_ doait fo sasmphst bas Hirst ab one betsosy do kdw ober *® 
 gew d2Gi soni to Tebro ‘edt bisa ef z sausso od a8er a 
BS ae) te tabro ait Io yetae edd certs eysb wekde add ‘orm 
q ot yirotiue dvedtin et tx00d Lago isis ont ‘edite bas ‘bat : 
outs at 8 § ooh Uiridt te oaqal ont reets erebro retas 
“gbut 2 ‘eta02v ot iiredtus on sad #11700 Log to Lo add ‘fade | 
tadt tud ,beeqafe ead ayeh Yiuidt tetbs rebre, “taatt te ; fies 
bak yak to tobro edt eauaced acites tigqq oa esd wat to Slee 
~gbirt oats betsosy yletow rebro fads jrsbvo Inait s ton eew 
ms efit of svesi tusneted ode evag has divetes bac toon 
i! xobr0 anit » dom wt tubre ma tows satiznes ‘to Fivabitts 
Bt ~gn2baeq ai tive o0¢ aftdw eo it yas $4 bedsoay ed yo Bas 
Eo sf% mottayuy of att ieoq ox at at ¢aebmcteg silt ptevooreli 
ae earsoed chat ye te tabne oat yalteoay del onwt to 26690 
ae rodeo ott galteced os solitons a deat saul, te rebto oft 
a golthieg #tf. Sit ef evse! taabasteb oft evey ba Yau beretae 
; on? Sas ,d¢¥ dorsi to taomghul one piusteb edt etepav.of 
ae dL enh of tobse elit hetsort sbrawnedts. tmsbastah 
sexdt bolit yLtaeupesdye #2 sovsved yalhatd bes BAioy 
| abut bas Husted edt stacey of yatiooe enoititeg snoreTtib 
tad otstece: ott woiee pt gatvet | “ait fore to teem 


ue PS Go aio ceny id 


Ensnaereb oat “eaalbats bas bitsy ow arr ah % xob10. a 



















Dan 


the court had no authority to enter that order, The 
defendant by filing its three petitions to vacate the default 
and judgment of March 7th treated that judgment as being in 
full force and effect and it cannot now advance any contrary 


positions 


The judgment of the Municipal Court of Chicago 
is affirmed. 


SFFIRMEDe 


TAYLOR, P.J. AND O'CONNOR, J. CONOUR, 


SOR eh 


ait) 


wei i 
Jia NE By "4 


ee eas “Ay inte hs 


Ae 
OT ee ee Be Hews 
FR Zo eur et 
eorwl Belch ehtenneedes fh 


- woke con mutg ame ls sana 











84 = 31210 


OLIVE LEITCH and DOLLIE F. LEITCH, 
Plaintiffs in Error, 
ERROR TO 
Ve 
MUNICIPAL COURT 


OF CHICAGO, @ corporation, et al, OF GHICAGO, 





ARMOUR MECHANICAL COMPANY, 


} 

) 

UNICN STOCK YARD & TRANSIT COMPANY 
Defendant in ae ) 


i A. a e, eD Q 1 


OPINION filed " 2, 1927. 


WR. JUSTICE O'CONNOR delivered the opinion of 
the court, 


By this writ of error plaintiffs seek to reverse 
an order entered by the Municipal Court of Chicago on the 
3lst of July, 1924, by which the service of summons was 
quashed on motion of the defendant, the Armour Hechanical 


Company. 


On May 15, 1924, plaintiffs brought an action 
ef forcible detainer against eleven defendants for possession 
of certain real estate in Chicago, They also claimed $394,800, 
due them for the use and occupation of the premises by the 
defendents, Service was had upon all of the defendants, The 
Armour Mechanical Company one of the defendants in the trial 
court and the sole defendant in error in this court, filed 
@ motion to quash the service. The motion was sustained and 
the service quashed, All of the other defendants filed 
their affidavits of merits so that the cause is at issue 
as to all of the defendantay except the Armour Mechanical 


ay gy ae 


orig OY added bas en 
— ‘at attivetite 

gre gi Ae Rai a “omg Rene 

ve nat nase Lig 


YHATHOO TLAKAAT & G@HAY Ar wor: 
<i8 79 ,tolteroqroe @ ,ODA0 


fame maoitonl 
opens sadye Duum 
,OOADTHO 30 


MO OO Oe GR, FOO: i FO, 


J tHAsIOD sso Taam sci 4 


cc ai tesbhosteg 


»2eeL “s £3 beiit Koterqo 


‘ode eo deenietp Yo faved Loutetaut sie et boretas eee a8 
ea" saonmue to soivree sdt doldw yd ehSOL sisi to tals 4 


Qbane 


gettes ae tiyvetd a¥titateiq ~bReE at Yet ‘ wee ct 





Company. The service having been quashed as to it, plain= 
tiff moved the court for a default and judgment against it 
for want of appearance and affidavit of merits, this was 
denied, and it is obvious there was no basis for this motion 
because the service as to the Armour Mechanical Company had 
been quashed. The plaintiffs thereupon prayed for and 

were allowed an appeal to this court, upon filing their 
bond and bill of exceptions, Apparently that appeal was 
not perfected and on July 14, 1926 plaintiffs sued out a 
writ of error from this court making Armour Mechanical dom 


pany the sole defendant in error, 


The defendant contends that the order which is 
sought to be reversed by this writ of error is not 2 final 
order, and, therefore, the writ of error will not lie but 
should be dismissed, ‘e think it clear that this conten= 
tion must be sustained. Sec. 91 of Chap. 110 of our statutes 
provides that "Appeals shall lie to and writs of error from 
the Appellate or Supreme Gourt, as may be allowed by law, to 
review the final judgments, orders or decrees of any of the 
Circuit Courts, the Superior Court of Cook County, the 
County Courts oF the City Courts and other wurts from 
which appeals and to which write of error may be allowed by 
law." And the Municipal Court Act provides only for the 
review by appeal or writ of error of final orders, judgments 
or decrees. It is obvious that the case is still pending 
and at issue in the Municipal Court as to the other ten 
defendants. Furthermore it is not disposed of as to the 
Armour Mechanical Company, because the order merely quashed 
the service of the sugmons as to that defendant, but the suit 


was not dismissed as to it. But even if we assume that there 


x _— 
~wisiq sti ot as bedeavp seed yaived soivrer < ini 


vi teategs sasagbvt bas divested a tot tzuao edt bevom Etus 
i ssw eidt ,atiren to tivebstte bas spaaseeqes to vasw sot 
i ‘geitom atdd xot ateed of eew etedt aveivde wi vi bua .betmed 


bad waeqmes fssinetoe twomtA sift of aa sotvred ‘ont a 
Sao aot beyste noquersay altitntelg edt _sbeitas | eed 
thodd anifit soqu ,ttyves ald? ar laeqqe ae bewotte eTSw 

asw feeqqs tact ultnetacda -enoltgooxe to Le. Pi: bao 
| & tuo bove ettitaisl, S66f .a! ylvl, mo bas betostreq ton 

“ob Asoinadost tvomta a truco ety mor? Torte to. Sine 

re ve wtorys al dmabaetebh efoa ont “yaag 


at dotdw sebxo odd tad ehaatson stmehaehed ad? 
fenit 2 toa at Torco to tiny eldt yd beatever od at, siguee 
tud @if ton [fiw tovcs to tite edt ,erotereny edna yrebro 
: enetmos sivd ted? tasfo +h dnidd ef  boauiemsh od bivode 
& Bias. 
a sotutate a6 %6 OLf .qarO to Ie .o68 -beatateme od foun got 


- 


- te yas to averoeb to etshro .ataemgbert {seit . pee. 
_ St .XtMO Aood to tod Todzequa odd petxved #tuontd 

_, sext gtige tedto Sane atzu9d Win sit Xo. etrwed. YWeewod | 
o howorts od Yam toTTe To atten dotiw ot han. etanggs do tde 
Ot tot Use eshivorg 404 #100 Laqtatmum edt. ictal 

— setebro Laat to torre to ticw xo Iseqas yt wolves 

Bathasq Ilite at e280 act tadt avotvdo at. tL ,a90T99b,10 
wet sedto. OAT of 88 tusg Castoamat on ab emake, das 
a a? a8 to heaogath Jom at #h ovearedea ata 





~3= 


was a final disposition of the case as to the Armour 
Mechanical Company, the writ of error would have to be 
dismissed because the law does not permit the review of a 
case by piecemeal by the Appellate or Supreme Court, In 
People v. Banks, 285 Ill. 137, it was held that where 

a bill was dismissed as to one or more of the eastine for 
want of equity and the case remained pending as to the other 
parties, the complainant could not prosecute a writ of error 
until there was a final dispositiog of the case as to all of 
the parties, and that if a writ of error were sued out 
before a final decree or disposition of the cause as to 

all parties , it should be dismissed by the court on its 
own motions The court there said (p.140) "The decree 

in thie case that we are asked to reverse on this writ of 
error is not a final decree, This court has frequently 
held that if a bill is dismissed as to one or more parties 
for want of equity and the case still remains pending as to 
other parties, the complainant cannot prosecute a writ of 
error until there has been a final decree or disposition 

of the case as to all of the other parties. The reason 

is that such decree is not a final decree within the meaning 
of our Practice Act, and this court has therefore no 
jurisdiction to review it. Under such circumstances this 
court will dismiss the writ of its own motion. (Bucklen v. 
Gity of Chicago, 166 I11, 451) * * * While there are ex- 
ceptions to the rule that this court will not review a 
decree under the circumstances here presented, yet it ia clear 
from the decisions already cited that this case does not 
come within the exceptions but is one that should not be 
reviewed on writ of error until it is disposed of as to 

all of the parties,” 



























«f= 


TuemtA edt oF 26 gaa sit to mo tt feoq th fant? we Gee 


Lite 5 Ste 


ed of oved Siyew torre to tixw adt “—qsequod Lae r 
oe 8 ‘to welver ed? tinreq tea 3006 wal ‘edt ceusced heselma. 
" elk open’ 


ai ,t%eseO emezex? to evel leqga edt va Leonsos ig mers 
? 85 gh 4 oo ae 


Be: ‘erode tale Diod saw si {TEL fit a8 Prone v8 





: bit “ 

} Tot eeltise eit to tow <0 onc Of 82 bscatueth saw at tries 
et sedte edt of es gaihnsg besiswet eeso adds bas ‘ytlyne to  tnaw 
Ns = deine 
; rorrs te titw 8 etuosaotg for hives tnaniatqnce om | 20: 

: bak ie ot @2 eeso odd te #oit taoge th fenit s pte ‘pail “Eitas 

: ” $y0 bewe stew torte Yo tice 6 th tadt bas seolteag ‘edt 
: ot se eeues oft to no tt iaoqeth <0 ‘eatosb Isai? a | od 


ati no tuveo alt yd beseimadh od bivode sf , eeltrsq Lis 
eeroob siz? (ObL.q) bine oradt druon. ed? «aottom smo 
te tixw eiad ae sstevet of Hetee ots. ow tad? eoao ald? ak 
-qivmervpett eet tasoo aii? .seroebh feast « ton al sone 
-o!pehtisy sree 10 ono. ot as becalmeth ef ILid 6 tf tadt bled 
ot 82 gaibaeq satenet {lite gare adt bas ytinpe to tmew cor. 
te tixw # etveezerq sence tasmiatquoe edt .eottraq xodto 
aeitisoqath so eetoeb Laxit. s geed sad ered? (lam tore 
moaCeT sof woitiag vedio sit to Lis ot a8, 9aeo, edt to 
| qakaaen:nt2. miseiw-gonped.tanst & ton af. soxeqh, dosm., test. at 
00 enotezedd eed Frv00 aift Bas .20A sotvouTd 140 Yo 
ss ahd? Booastamuetio dove wha .t2 velvet of uote thetzut 
oa apdalous) yaotton are. att ke tine edt eeimeth Lin tao 
RO. exe otods OLtdY * * * (GD 41ft BOL .onsotdd to ysio 
ae hve dae Shy. temo. etdt Fame, olen ade. 9, BORER 
ae melo at th toy .hetnsestg omed wsomatamoriy srt r9bay soroed 
em, apeb, ven, sAdh. tad? degto ybsezLa anotetood st wort 
wt tog, bimde padt san at tos saplggsoxe ast ah sa 


| sayy ham 20 Doungasd of #4 Lites zonze Yo pay ao Bs 
ae Kicaeangit) oad 


























on den 


In the Bucklen case cited by the court in the 





Banks case, it was stated that an appeal from an order of 
court which was not final will be dismissed in the absence 
of any showing that particular hardship will result from 
such dismissal, Ip the instant case there is no suggestion 
that any particular hardship will result unless this writ 

of error is passed upon by us upon its merits, and we cannot 


see how such a suggestion could be seriously urged, 


The order sought to be reversed by the prosecution 
of this writ of error not being final, the writ of error 
is dismissed, 


WRIT DISMISSED. 


TAYLOR, P.J. AND THOMSON, J. CONCUR, 


to tebro os acxt Iasaqs a6 tadd henabe ecw wat 

- epaeads | Vik nb bedctbah a te tena fen on pany 
plot Hivser [fiw qiteb as ratuebtuag ted? gaiwode yas 

pura’ on af Sted? ee00 tantant ode ge \fsbet ay ete 

a tte eidt eeelny tivast Iliw qidebred tetotin ra Yas tadd, 

ide OW bins yettuba est aoaw ex yt moqu Besesy wl 3 aA <oene, ba 


— ee * ad pies aoitaraaue Pr ape as 


ei ahaa ound 


{ite to sian “ suaeanial peeniotpeapeony rien 
eect 9: shonnhensh al. 


BERR ce. va en tee ene wksd vat 


tee es ae ee ai aree 
7 hy | ea ah he goTARY 
te. wie aon. 
OE “ie 
at Chik, roses 
2% Gee, wae, te 
ag sare tage ak 
tok on Liege Cup ae j 
oe ae 
uy Chm, dee 


a. 
a 
at 


gan Lhin oye aiit Pa ole att et eee 
TR ybhat meat ete weet malate, aed coher, 9eeeee 
enon mat, fads Bad xo ‘et Corr kids mine: co Geis ‘tah 





Q6 - 31224 


ELIZABETH DURKIN, 


Appellant, 
APPEAL FROM 


Vp SUPERIOR OOURT, 


COOK COUNTY. 
EDWARD A. LIGHTFOOT, 


Appellee, : A TA whee 


Opinion filed March 8, 1927, 
MR. JUSTICE O'CONNOR delivered the opinion of 


the court. 


Plaintiff brought suit against the defendant to 
Mi 


recover damages for personal injuries, There was a verdict 


and judgnent in defendant's favor and plaintiff appeals, ad 


The record discloses that about 4:00 P.M. August 
17, 1924, as plaintiff was alighting from a southbound 
street car in Vincennes Avenue at 9lst Street she was 
struck and severely injured by defendant's automobile 


which wes being driven north in Vincennes Avenues 


It appears from the evidence that Vinoennes Avenue 
at the place in question runs north and south and Slst Street 
east and west; 9lst Street intersects Vincennes Avenue on the 
west, but does not extend east of that street, There is @ 
double line of street car tracks on the east side of the road~ 
way on Vincennes Avenue. The roadway for other traffic is 
west of the two street car tracks. There is a space between the 
west street car track and the pavement three feet seven inches 


Swhich is 19 feet, 





in width, West of that space is a Pa 

























word dames ( 
eH sorawge | 
ts 308 1008 


. say aye wien te 
ial ite ts ae 

SAMOS TW BEAR INS aia) * TS PARR Ie saa 

“~~ ¢ ‘st ee ee EE A EN ot et ‘an: 


a oe = a 
8) ‘ Oa Le i Ve ¢ 





) oe a 
.18@ <8 dots pets? etna. pes 
te notmiae “ends hewe¥EEes lchnnd 1p ao teaw iw 

Sea RE aw 


en RM RS ae BE 
od Sadan elt Pantene tive $ dgwond rhivgetst . 


ashaor ® aow orang? Dubie bid fanouseq sot eogamah evooe 


de ncenene Vhiva tesa bas toret atgaabooteb at _taexebut, bas 


deygwA Met OOrD tuoda tatt ical Weil ent son ae 
 fnaehdvow # mort gadtdytia ese Misntels aa PSEL AVL 
sow ode toord® gal ta eunova semmeon?7 nt too soorte 


eine @lidonotnea ettachectah yd becefel ¢loteves be wowrda 
+OUROVA womireoa LY at dtroa aovith wate aew doin 


‘eunova nesionadY tadt sogebtve ade won't ates ges a 

“ goonte tel@ bee dtvoe bas déxon anu aoltagoy nt vont x oni te i 
edt mo @nevA senmesnit atosaredai tees tole ireow bas ane 
gat erent tootte fade to tans baetxe ton seob tot ats 9 
bei ‘edt te ebin tear ott OG einen ‘z80 tooute to ait Loot 
el olttat taddo 10% Vabeor walt t minidin ssansoaiv f, " Re 

eat usawted aoaye # ad viede : 


a 


7 inches in width. This latter part of the street is 

used for vehicular traffic. The evidence shows that 
Plaintiff, a woman about twenty-six years of age, was 

Tiding south in a street oar which was operated on the 

west track in Vincennes avenue. It was @ bright clear 

day. She was to alight from the street car at 91st street, 
and as the car approached that intersection, it slowed 

down and came to a stop at the usual plece = the north side 
of Ylst street, and plaintiff alighted from the rear.or 

north end of the street car. As the street car was approach 
ing S9lst street a Ford coupe was being driven north on the 
east side of the roadway of Vincennes avenue and when the 
driver of that automobile saw that the street car coming 
from the north, was going to stop near the north intersection 
of Sist street he slowed down and stopped near the south 
intersection of 9lst street so that when the automobile 

eame to a stop it was about fifteen feet south of the south 
end of the street car, The driver of the Ford saw that there 
was no one in the street to board the street car and therefore, 
knew thet the street car was stopping to discharge passengers, 
and that such passengers would necessarily, in going to the 
west side of the street, pass across the pavement in front of 
his car, The evidence further shows that defendant was driv- 
ing north in Vincennes avenue some short distance behind the 
Ford and as he overtook the Ford, which was stopped at the 
south side of 9lst street, he swung his automobile to the 
west and passed around the Ford and as he did so, the right 
front fender of his automobile came in contact with plain- 
tiff throwing her to the ground and severely injuring her, 


othe 


si teerte oft To freq netdtet ata? .dthiw nt eedont § 

tedt enode eonshive edt .oltiont taiuottey Tok hear 

gaw gage to exs9Y aie~yoaent éuude. asunerer & stiivaelg 

oi} mo betstage saw doidw xen teexta # at ddio gaibit 

tanto sdigixd & aew #1 ounens eaomoaty at dosnt tage 
eSOorss ‘dae te too toaxta ont. mcr] tagtle ot Ree eff eb 
bowole tk ,noitovoratal. tect botiaonggs 150 edt ge bas 

obia déxoe od? = costa feues adt ts qotu ¢ of aman bas awob 
To.%hos ant west Setdeite Ttittaiela baa ,teenta tel? Yo 
=foxorvgqe Rav. reo toewte sat a4 ©. tho tonrte edt to bee dirom 
edt no dete mevixh gxtod see equoo bred « teottal tale gat 
et sreerty bas auaers eonnenmiV to yauhaot ad %® oble tare 

} “gaknoo z80 teorde oid? auld roa olisonorss sade Pee vacch 
anteonavetat stron oat ‘a80m gota ot gates aow <Atton ‘sat mark 
diterom exit “ome heccots hak mick hometn ex teorte ‘tele r0 
 obitmgtyre ad? gots telt on itente tel@ to mitoeenetal 
dtvoe edd to divoe doo saett 2? tueds saw tt qote 8 Ot samo 


axodt tadd wae Suot edt to teviank ant sean teetee oft to hae 


eStTOTeros? Gas THO Teeuta ad? frsad of teonde ofdomd ome on caw 
‘_otsaneugay og tatoo th te Bilogeda ear uae dwette cat hedd wend 
donnl » asteg ak  parrammaneneicirsd bingw pints abeecvinu: ye 3 tadd bas 

to taor? a gusneveG ent aneros ene deorte outs te able taow 


we DO ae ae 
—rixb Bow Paabm Yep hon eworta odtast sonebtve edt Pid atd 
La if ae 


ote had ded const ath trode amo ounewn aeansoatv th ito gat 
Da at Rea 

ome te beqqota aw io het abrot oda foot rove a ee nae 4 
a & Lae 

“oe ot eitdenotue aid yanwa ed atoexte tere to abies oe 


; tigat oy wor bi od 98 bas brow odd baworts ‘poana b aa faew 
te AeA | a Hae ads os hea Ba] @ ay 
ec do tw toatnoo ah emt ertdonotue ald to taba | 






: ‘ “ae paturtad ton 


a se 








-s 


The evidence further shows that when plaintiff 
alighted from the street car she looked to the south and 
to the north before proceeding west across the street, 

She saw the Ford coming from the south and saw it come 

to a stop, The driver of that car then signalled, by a 
nod of his head, for her to proceed westward across the 
streetZ At that time the strect car had just started 

up, Upon receiving the signal, she started and was some~ 
where near the center of the roadway when she was struck 
by the defendant's automobile as above stated, The man 
who was driving the Ford automobile and his wife who 

was riding with him and two men who were operating a oii 
filling station near the northwest corner of the street 
intersection and plaintiff, herself, testified substantially 
as above stated, Piaintiff also testified that she did not 
see defendant's automobile wntil she was struck, Some of 
these witnesses also testified that defendant's automobile 
in passing around the Ford and when it struck plaintiff 
was traveling at the rate of fifteen to twenty miles per 


hours 


Defendant and his sister-in-law, who wae with him 
in the car at the time, testified on behalf of the defendant, 
fheir testimony was te the effect that as they were approaches 
ing 9lst street from the south they saw the Ford automobile 
stopped in the roadway ahead of them and that she street oar 
passed the defendant's automobile before defendant had 
reached the Ford car; that upon overtaking the Ford car, ; 
which was standing in the street, defendant shifted his ear 
into second gear and proceeded to pass around the Ford at 
about ten miles per har and as he did so plaintiff walked 
into the right front fender of his automobile, They both 





wel me 

Riiteiela wed tadt swore tethrut somebivs adt 
bas dtives eat ct Bewtenlt e4e say rewrite ant sort hotdy tte 
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ae a 


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dene 


testified that they never saw plaintiff until she struck 
the fender, All of the witnesses testified that the motore 
man and conductor of the street car came back to the place 
where plaintiff was injured and that she was taken in an 


ambulance to a hospital. 


This is substantially all the evidence as to 
how the accident occurred and plaintiff contends that 
the finding of the jury in favor of the defendant is, against 
the manifest weight of the evidence and we are clearly of 
the opinion thet thie contention must be sustained. There 
is little or no dispute in the evidence and in omr opinion 
it clearly shows that the defendant was negligent in driving 
around the Ford which had stopped in front of him, and we are 
aleo of the opinion that there is little or no evidence 
tending to show that plaintiff was guilty of any negligence, 
The only dispute in the evidence was to the position of the 
street car when defendant's automobile passed around the Ford. 
Plaintiff's witnesses gave testimony to the effect that it 
was just passing the Ford, while the defendant's witnesses 
testified to the effect that it was a little farther south, 
but we are of the opinion that the version as testified to 
by plaintiff's witnesses is more in accordance with the 
fact, because all of the witnesses testified that the street 
ear men came back to the place where plaintiff was struck, 


Pleintiff also contends that the court erred in 
giving instructions Nos. 9, 10, 13, 14, 15, 17 and 18, on 
behalf of the defendant, Instruction 9 told the jury that 
the burden was on plaintiff "to prove that the defendant 


fours ede ffitne Tevassly wee Teves wat sade bottitest 
mroron edt tat bet ttiteed ROR eatin adit ‘ke LEA sebno® outs 


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we 


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ist bqned id of epasiudus 

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sentogs eh utegbasteh: oit-to coret nf yest edt to gartbakb-eds 
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gongbive on to eiteli ef eredt tedt se tatqe edt-te onde 
sonegitgen ye to ytling ase Viltmiely dadt wede of guthmet 
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is guilty and also to prove that she was in thd exercise of 
ordinary care for her own safety." We think this instrue 
tion should have required plaintiff to prove that defendant 
was guilty as charged in the declaration and that she was 

in the exercise of ordinary care for her ow safety at and 
before the time of the injury by a preponderance of the 
evidence, . By instruction No. 10 the jury were told that 
plaintiff was required to prove, by & preponderance of the 
evidence, "that the ceuse of the alleged injury was the 
negligence of the defendent as charged in his declaration," 
The jury might have been misled because the defendant had 
filed no declaration, Obviously the word should have been 
"her®, Instruction 13 directed a verdict and was inaccurate 
in a number of particulars, It told the jury that if they 
believed from the evidence that the plaintiff failed to 
exercise ordinary care for her own safety and that such 
failure, if the jury believed there was such failure, 
*helped in any way to bring about the accident” she could 
not recover, This instruction should have been given. 
Plaintiff was required to show that she was in the exercise 
of ordinary care for her own safety at and before the time 
she was injured and this must be shown by plaintiff by 4 
preponderance of the evidence, The phrase "helped in any 
way" should have been eliminated as it is inaccurate. Pjain- 
tiff could not be “barred from a recevery on account of any 
negligence on her part unless such negligence proximately 
contributed to the injury, Instruction No. 14 told the 
jury, among other things, that if they believed from the 
evidence that the defendant exercised ordinary care to avoid 


the injury, plaintiff couki not recover, There was no evidence 


pl 


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bad te ytetss avo tet rok Biss wtantoro ‘te ‘ssioxers, oat a 
git to soretehmorerq syd emushmt ant te onte a exoted 
tert Blot oven gut edt Of .oW gotiouttens yl ysonebive 
adt to sonerehsoystq « Xt _—— of betivpet saw Phttareta 
gas’ Gaw ydupak Bage fits oa Re sairey axe done aeomobive 
“,coftersined eid at benteth ae deadhacted edt Te cottog i Bett 
bed ¢abineteb ond sevdoed bafehs need eve titel Yaut edt 
aes oved blvoda brow att efevotvdo” wolters load om bert 
oramredaut suv bust Yolbyey & botoseth EL mottouetand | tno 
“qede Fk tadt Geet owt Biot oY yeast tag tO todeim amt 
OF boftat Tivotste ody fedt sombive ott mort sevedted 
ote ted? bos vette ave too net orem yrmtlore oeinrexe 
cota list fie dew Grodd heveifed yar est Te (esta ibet 
bfvoo' ‘ wite’ ‘Stebigos eft fiode g#ivd ot Yer yoo at beqied" 
‘ttevhg mead evee Afeods acitourtert sid?  revooex ton 
eatstexs oct we" wow ode tem wide of betkwper esa Thigwsels 
emt? O8F edited hat ta Ytetee svt ted cot steg yrastite to 
 g yo ttivately Ww MWote od feww atde one bemwynt enw ode 
vis at boqied” ewerte oof ,eeaebevo odd to sonsrehmogety 
~atart etatuoosni ti ft ee peteriatie aesd ovad btwoderMyan 
yas te tnuboos mo Yroveoor 8 mart horied’ of ton bisee Thtt 
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. est Dtot M .0% sottouttaal _tcempat, oe ot Dogri at 

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-6- 


tending to show that the defendant did anything to avoid 
striking plaintiff, beceuse the evidence all shows that 

he did not see her until she wae struck, Instruction No, 

15 was to the effect that if plaintiff's negligence caused 
er ontributed to producing the injuwy she could not ree 
cover, As stated it omitted she element that hermegligence 
proximately contributed to bringing about her injuries, 
instruction 17 was apt to be misleading, By it the jury 
were told that the law of contributory negligence forbids 

@ recovery by one who by his own fault brings an injury 

upon himself, The jury might understand that there wae 

an implied assumption that plaintiff was injured through 

her own fault and this same idea was emphasized in the last 
part of the instruction, which said that it was not a ques- 
tion of comparison *as to who was most at fault,” Instrue 
tion 18 told the jury that contributery negligence ueant 

the doing of some negligent act by @ party injured which con- 
tributed to “or helps to bring about" the injury, It omitted 
the element that the negligent act must proximately contri- 
bute to bringing ebout the injury and the word "helps" was 


improper in any view. 


The judgnent of the Superior Court of Gook County 


is reversed and the cause remanded for 2 new trial. 


REVERSED ANDRREMANDEDs 


TAYLOR, Ped. AND THOMSON, J. CONCURs 


sale 


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wus. ade +t ve sauibsetete ad ot ning sow isles ag ee i 
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eRrarE Pile Made Uh ied a tie een art ie 





BISHOP-WYATT COMPANY, 
a corporation, 


slid 
APPEAL FROM 


Ve GIRCUIT COURT, 


QOOK OOUNTY, 
J. R. LUDWIG, 


Appellee, 
Opinion filed March 2, 1927, 


MR. JUSTICE O'CONNOR delivered the opinion of a1. 


the court. PAA TA. CS" 


i 
Plaintiff brought an action of assumpsit against 

the defendant claiming $1388,45, being $1000.00 loan and 

the balance due for commissions paid by plaintiff to the de-~ 

fendant which had not been earned by him. ‘The case was 

tried before the court without a jury, there was = finding 

and judgment in defendmt's favor and plaintiff appeels, 


The record discloses that plaintiff and fhe de=~ 
fendant entered into a written agreement whereby the defend- 
ant was employed "to sell our 52 success thoughts and sug- 
gestions with pertfolios and illustrated jim letter service." 
The contract further provided that defendant was to receive 
as compensation a commission of 40 percent of the net total 
on orders secured by him; that the commissions would become 
due when plaintiff had received payment in full from its 
customers; that plaintiff should furnish the defendant with a 
"drawing account on all contracts secured by you not to 
exceed seventy-five per cent (75%) of your earned commissions 


on contracts closed during the week in which the advance is 


a 
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Dm, 80.5 OOOO gated Bb 88LLG gatatato thin, oe 
=o, ott of TBitaiaig yi Dieg anotveiamcs rt.oub game edt 
oy RRR 9080.00 mbt yd hoatee aed sou, Bed, donde taahso? 
gathalt snqw.ezad? qytut.s.dvadtiw, tise git coded att 
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Lae bid 








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“2 


made, Limit drawing account not to exceed One Hundred 

and Fifty Dollars ($150.00) in any one week, The balance 
of the commissions due you after advances as above out 
lined have been deducted shall be paid after we have re- 
ceived payment in full from the customers you sell," 

It is further agreed that the Bishop-Wyatt Company will 

set aside or loan to you One Thousand Dollars ($1,000.00) 
which may be used to make up difference between earned com 


mission and draw of $150,00 for each week," 


After the contract was entered into, thedefendant 
went to work as required by the contract and earned commissions 
amounting to $4490.87, During this period some thirty odd 
weeks, plaintiffs had advanced to the defendant $150,00 a week 
until such advance reached the sum of $1000.00 when such 
advances were discontinadd, Plaintiffs also paid to the 
defendant during this period of time as and for the commis— 
sions which he had earned $4879.32, Sc that the defendmt had 
received from the plaintiff in all $5879.32, while he had 
earned as commissions $4490,87, and the difference between 
these two sums $1388445, plaintiffs sought to recover in the 


instant cases 


Plaintiffs! declaration consisted of special counts 
and the common counts and a copy of the account and affidavit 
of claim was filed with the declaration, This sets up in 
detail the business done by the defendant for the plaintiff, 
the charges made and the commissions earned, eto, The defend- 
ant filed the general issue and affidavit of merits, but there 
Was no contention made by the defendant that the account and 
affidavit claim filed by the defendent was inaccurate in any 


“ge 


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—ox over en rstis hieq ad ilgde hetoubeb seed eved bontl 
t [fee soy axesotaso of} mott [fut al —_— heviso 

fest wt YI 
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“moo bowie’ neetied soumts?t th an Sion of bea od you doldw 
i wal dose 20% ree sig xe — aa soigeim 





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adit of bise oats atti¢aters ~bbonivaooe tb ‘ow Aol 
aeimaoo ove set bas eh emtt to porreq shat gat Ted aA 
bed ¢embaetes ady dedi of .BE.CTSSS beares bad od ene ‘andte 
had od elinw ,S8 @VER$ Ils wt thivatalg sae sort baviocer 
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respect, The defendsnt's position was that after the parties 

had entered into the written agreement, defendant's duties 

were changed so that he was required to spend more money in the 

prosecution of the plaintiffs! business than would have been 

required had the written contract remained unchanged. The 

court expressly found from the evidence that no such change 

in the contract had been made. The court further held as a 

matter of law that the defendant wae not obligated-to repay 

the $1000,00 or any part thereof that had been advanced by 

plaintiff te the defendant, because the contract did not so 

provide. In this we think the court was clearly right, The 

substance of the contract was that the defendant was to receive 

40 percent camissions on the contracts he had obtained, on moneys 

received by plaintiff on these contracts from its customers, 

and that plaintiffs would advance defendant $150,060 a week 

as & drawing account up to the sux of $1000.00. This is 

the testimony of plaintiffs! president, fhe contract then 

provided thet after applying the $150.00 per week advanced, 

on the commissions earned, the balance of the commissions 

Would be paid by plaintiff to the defendant. There was no 

provision that the $150.00 per week advances or any part 
thereof should be refunded in ease the commissions did not 

| equal that sum, It has been held in such case that in the 

absence of an express agreement to pay back amounts advanced 

to an employee in anticipation of expected commissions, or words 

in the contract showing the employee to be persoysily liable 

to repay such advancements, they are not to be treated as 

loans and the employee is not liable to repay this employer 


in case the commissions did not amount to as much as the 


he 


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aativh o'inshooted .¢wemeerga mest aw edt etal betetae aad 

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advances, Felsenths] Bros. & Oo. VY» Gradwohl, 217 I1l. App. 
170; Nelson v¥. American Business Byreau, 241 Iil. App. 432, 


and suthorities cited in those two cases, The fact that the 
written oontract states that plaintiff “will set aside or 
loan’ the defendant $1000,00 to be used to make up the dif- 
ference between his earned commissions and $150.00 a week, 
does not change the situation, The $1000.00 advanced, as 
disclosed by the record, cannot be considered a loan, be- 
cause the contract provided that after the advancement to 

the defendant of $150.00 a week, the balance of the defend= 
ant's commission over and above this sum of $150.00 per week 
would be paid by plaintiff to the defendant when the commise 
sion should have been collected by plaintiff, 


fhe undisputed evidence in the record, however, 
is that phintiff had paid the defendant for mmmissions 
$632.50 more than the defendant was entitled to receive. 
This was brought about by the fact that plaintiff was unable 
to collect the fill contract prices from some of its customers, 
The statement of the account filed by plaintiff showed that 
the amount of these over=payments was $672.50, but on the 
trial @ witnees for the plaintiff testified that since the 
account had been made up, plaintiff had collected $100.00 
more, and that the defendant would therefore, be entitled to 
$40,00 commission. This $40,00 deducted from the $672.46 
leaves a balance of $632.40, This is money which the defende 
ant had received from the plaintiff which in @quity and good 
conscience he ought not to retain, and under the common counts 
filed by plaintiff, the plaintiff is entitled to recover this 
sum, Wo suggestion was made to this effect on the trisl nor 


abe 








<SUS gga LTT ES weed 


oe *en# tout oft adsense ond Seodt ‘a sbi eh eb yeidinn "$08 | 


go Sbtes tee (fiw TRHAES Ia dete e6tere tomtthoo nett ice 
“th out ou Soe of beer od oF 00.000L8 tasbmo%ob odt "gnol 

qasew & 00.0818 Sam escteciumas bernee ated moowted ¢ 
ae ~bebmevhe 00.0007 sa” moltaudle ed¢ apne Fon Boob 
weg —aeot & bevablaaes ad tornnd .btodet ‘ads ‘ed ied bets 
oPsmeneonshY off tote todd Benker tosttace ‘odd Oa: 0 
“hasteb od¢ to eonelad ofe ,Feew a OO.08L$ Yo ‘thin ddtig ‘sal 
doow 1dy O0.0€1) Yo ave stat oveds Kns'se¥o noieatunds tina 
seimmoo edt cade Yoebnetes edt oF YYttatate qW btaq'ad ‘Blues 
WPaLaty yw sities vial wet epi mol 












: ‘etovowod bxcoe: ade AL wnobive beta thas ont. 


set ine 


enotestum co rok Faenaot ab eile diag bed Theat dq ne ek 
ser tooe oF bolt ke om Baw tasbaatob edi aasts or0m, 





oldest aaw ttida tele ¢ sett toast sot yt trode tdyvond, nae | ‘ee 

sbremoteno eet to. smoke mort meg tty. @eaennyene. {tet ost. faation 2. of, 

tect novos tusalelq yi bolt taxonas odd to trometete, adf. 

ott mo tud 08 e8FOG asw atasmyaqerare. oay.ct te te oms, 9d, 

ont opate dads holiitacst Tiivatels st not easativ © Latre. 

00,0018 befoatfoo bed YEttgiaig .qu eben cong dad tavonns, 

* og belt ttae, ac stores ody Sivew tashrateh ott _gadt bam gh TOM, 
Pa , ObaSTRE edt mort, betouh eb on BLet wsdl ng: ‘ 0 














side xevooet oF - bots ten0 See ads, eo 
‘tom faint sit m0 testis aldé ot ebam ase solteeggua off a 








mBe 


is there any such suggestion made in this court, but upon a 
consideration of the record, we think plaintiff ought to be 
given a judgnuent for the $632,40, there being no dispute 

in the evidence, as to the over~-payment, 


The judgment of the Circuit Court of Cook County 
is reversed with a finding of fact and judgment will be 
entered in this court in favor of plaintiff and against 
the defendant for $632,40, Each party will be required 
to pay its or his ow cost in this court. 


JUDGMENT REVERSED WITH A FINDING OF FACT AND 
JUDGMENT ENTERED IN THIS COURT. 


FINDING OF FACT: We find as an ultimate fact that plaintiff 
has overpaid the defendant $6323.40, 


THOMSON, J. CONCURS; 
TAYLOR, J. DISSENTS. 


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“bet tuper e0 | tite Ureq done” 208 5808 70% $ man dees eile 
sities ape tts ant ak’ + on “poe ald to eri” xeq ot 


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BOF SAUCE SPADES RNS SMS NG Ae A hs te Ge anita 
i ee hes ue uth. > * 
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L16 = 31244 


L. VOGEL AND 8. KOHN, ce—partners, ) 
trading as VOGEL & KOHN, 
Appellants, 
APPEAL FROM 
Vs | CIRCUIT COURT, 
COOK COUNTY 
L. Ae GRIFFIN AND J. BENWON, co-~ : 
pertnera, trading as BENNON-GRIFFIN 
60. , ) 
Appellees, 
Opinion filedMarch 2, 1927, 
MR. JUSTICE O'CONNOR delivered the opinion of 
the court. So)» A A f* ¢> ae 


food “fr \ 
F 


Plaintiff brought en action ageinst the defend 
ant before a justice of the peace in the town of dicero, 
and had a judgment by defeult of $109,50, The defendant 
appealed te the Cirowit Court of Gook County, and when the 
case was reached for triel on March 25, 1926, the record 
discloses, that rlisintiffe failed to prosecute their ult 
ani, on motion of the defendants! attorney, it wae dismissed 
at plaintiffs! costs for want of prosecution, Five days 
later counsei for plaintiffs served notice on counsel ‘for 
the defendant that the would appear the following day. 
and move the court to vacate and set aside the order of’ 
dismisses] and ask that the cause be re-instated and in 
support of that motion an effidavit was made by one of 
plaintiffs' counsel, The court heard the matter on Mar oh 
Slet, denied the motion and plaintiff eppeals. 0 that 
the only question before us is did the court abuse its 


discretion in i the motion, 





DORIS itherie 


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Cie} ;  davos odd 
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| “busted add ftenings aoltes as bequest, wetatert 





gosaniy te awot wae a 90.90q, ane to  waatens * 1 


rie 
fuxbacteh od? 0880.8 te $inetop w Poomgbut 9 eis ome 4 has 


est modw bus evened toed to val Pivot odd of a inoqys 
bxroe 97 ads eBRGL .6S doten #6 fetad +98. Dedoase aan a 
tive tledt osu9eBoTE eit bes is atttta tens, tad? ose foath 
beasts eaw gi .yeurcotis tetnnbast ab edt ‘te mottom no fits 
eysb evlt Hoitmssony To guew “ot ad aoe tattteatatq ts 
Tot Lesaseo 20 so tion peveres atiitaiate mot Lopes xetet 
vat gaiwe slot ont reeage | fon - Pas tadt tasbaetsb ot 

. ‘wehto edt shins tes bat eoakan o} grace edt rom bas 
nt bas botstemt-or od sevso ont tadt des boa fanalanin 

to eso ye ebam ew ivabs tte Ee) ao bien tents te froqgue 

ao tett no tettan edt breed dxw00 et «Tecavoe ‘atti ately 
tes of -eLsonge Lite tare bate neivom edi bokneh ete 


ett ouds Prieto ode bib ak es eroind nottooup Uno eat 
to tte: ot re ob ai aihenneth 














-2— 


The only metter the sourt had before it on this 
motion, was the affidavit of one of plaintiffs! counsel; 
that affidavit sets up that the effient was assigned to 
conduct the trial on behalf of the plaintiff; that on 
Maroh 25, 1926, when the cause was on the trial eall he 
appeared in court and at that time requested the said 
cause to be held until 2:30 o'clock P.u. of that day, 
for the reason that at the hour of 3:00 o'clock on said 
day, affiant was scheduled to appear before Judge Friend 
in a foreclosure case, in which case there was @ motion 
for the appointment of a receiver set for 2:00 o'clock; 
that at that time the motion was called before Judge 
Friend and that opunsel was there engaged until 3:00 
@'clock in the afternoon; that immediately upon that 
matter being disposed of before Judge Friend, he went 
to Judge Swanson’s court, where the matter in question 
was pending, and then learned that the cause had been 
dismissed “at 2:30 o'clock P.M. or shortly thereafter 
for want of prosecution," and that affiant was actually 
engaged before Judge Friend at the time of the dismissal, 
We think the affidevit was clearly insufficient. It 
does not state that when counsel for piaintiffs appeared 
in court on the morning the case was set for trial before 
Judge Swanson, and requested that it be held until 2:30 
o'clock of that day, that the court agreed to this re- 
quest. For aught that appears the court might have 
denied the request. However, cowmsel in their briefs 
state that when the matter came on for hearing at 10:00 
o'clock before Judge Swenson counsel for plaiptifis 
appeared and made a recuest ae above stated, and that 


the court "granted said leave," But as we have said, 


ae haw 





eitt oo ¢! ereted bed drvoe aad <ottam yino on? 
pane 
sfonmuon te¥ticniads: tw ono te ‘Cheat ede. toms va 


no tadd {it halete oud te titasiac ie tale orl tovbaoe 
ed Irmo fated oft no now gewen ot codw BBCI .@8 dotaM 
- Bhek ect Detgesper eodt fade ta das tue ab betasag 
evab tedt to 0 toofore O88 tas bred oe 8¢ balsa 
bine co doofe'o 00:6 to xued edd te tat ovat odd tot 
Baeixt ogdut. sroted sa9qq6 ot beluberipe aaw tnattis yyab 
woktes € ote owewih-sad do dveont .eeco exwaodoorot « mt 
plocieto 94:8 not tae teviepat o te drantalogges edt rot 
sgbut, exoted belles saw nottom edt omit tedt, ta. sade 
GO2& kha Segagire eredd ew Leaanres hat anus Saeitl 
hed soos yfedstbount tadt qroeh... +m ont mi Aoolote 
tae ed abae tet enh eroted xe hee wath autted rosa 
“ oktaaup ae ott am ait exedw etrsoo utaoansne opin’ ot 
toed bed sauce off Yast dewraat medt 5.9 “pulbong eae eau 
“tot taste? ettuede +0 Met soos 1g 08:8 te* bonatmetp 
“eilavtes aa tee tt te dsl fee ro tte secon to tase x02 
efeaeiwe.tb ad? Yo anit edt ta baoicl sgbet acoted . begias 
tk .trotottives? yltsets eax tivabttts odt Amtdt ow 
“ boxseges ‘atiivntalg 1ot feameo asitw tedd ctete. ton "ved 
areted iste? rot tee san dame oie gatarom edt a0 ‘Fxbeo. nt 
obee thew bled od oF dade besneuper baa Cesersid eubut 














“ox Bidt of beerye #2000 edt gad yeh soit to sioeto"e 
“eval digie truoo et etesnqe tady Pdgua tot | oR 


‘wteind tleut at Toomseo toveron stesupor ‘ods’ betae! 
ork +6 antrand tot 0 a rotten oat mosie ¢ tacts ait Wate 
‘attivgtela tot feunreo hon mend sabut exotted fo! ‘9 
tedt bas yhotate oveda es teapot a shar ban pervect 
vice oved ew as dea ",ovsel hiss betmeng” treo ont 









—Be 


this does not appear in the affidavit filed by counsel, 
Moreover, even if the court had granted leave and had 
stated the case would be held until 2:30 o'clock, the 
affidavit further shows that counsel did not appear 
before Judge Swanson until after 3:00 o'clock and that 
the cause was dismissed at "2:30 o'clock or shortly 


thereafter,.* 


For failure to make a sufficient showing in the 
affidavit, the judgment of the CGireuit Court of Cook 
Gounty is affirmed, 


AFFIRMEDs 


TAYLOR, Peds and THOMSON, J. CONOURs 





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SLES ayy Pigs Seraenalai taes ae — ebomrtihe ef oytaset 
ih ic fai, bat 
bes fie roa bens feaiet 
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wk wath og) ue pie wR ‘gare Led dian 




























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72 — 30888 


CHARLES O'LEARY, 


Plaintiff in Error, 
APPEAL FROM 


Ve CIRCUIT COURT, 


COOK COUNTY. 
COMMISSIONERS OF LINCOLN PARK, se 


2) 
ae 


Defendant in Error, . “ae ite ae: 3 


4 
RE a¢ ¢ A gi be VW 


Opinion filed March 3, 087. 


MR, JUSTICE THOMSON delivered the opinion of 


the court, 


The plaintiff O'Leary brought this action in 
assumpsit against the Commissioners of Lincoln Park, & 
corporation, to recover salary to which he alleged he was 
entitled, as a Civil gervice employee, from March 31, 1921, 
to the date on which he started his suit, ‘The plaintiff 
filed a declaration consisting of the common counts and a 
special count in which ke set out the various steps by 
means of which he came to be appointed to the office of 
time=keepers pursuant to civil service examination, and 
performed the duties of that office from April 1916 until 
March 31, 1921, since which time he alleged he had not been 
permitted to ocoupy the office nor receive the salsry 
appropriated for its inoumbent; that on the last mentioned 
date the defendant pretended to abolish the office and 80 noti- 
fied the plaintiff, put the plaintiff alleged that said office 
was not in fact abolished, but on the following day, one 
schuidt was illegally appointed by the defendant, to this 
same office, which the plaintiff had heretofore occupied, 
with! te same duties attaching thereto; the defendant having 


it 


i } 



















eee 2) ag, ae es eee 
5 igh, eases } : 


tomsd at Thttaielg 
MORE TARVIA at: 


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eTSOL ,& dota baltt sotatgd 





to motmiqo eff boreviteb WOBMONT SOITTaaL a * 





: ai aoltos sins tiguord yreed'd ttitatelg eT 
& ,ited afoonid to axenoleaimmod ed? tantsgs steqmirens 
new ed begelis od doidw of ytelee teveost of so.Ltertogres 
_f8@r «fé dore mort ,esyelqme soivree Livtd a ee belt time 
ttitaisiq off tive eit bettsiea ei do tdw a0 ‘etsb ‘ed ot 
2 bee Btawoo nommdy edt to yuitefenoo noitsteloeb a petit 
yd eqete avcitay eft tuo tee ef deidw at saves Istoeqe 
to settto sit of Hatalogqs ed of suso ed toldw to ansem i 
bas .sottsnimexe coivres Livio of tasweqq yreqeodmomtt 
Lita £81 Litqd wort soitto saris Yo esttub edt Demrotzeq 
meed toa bad ed begelisa od omti doinw sente ary its do telt 


i 








e0 . (sb yuiwollot eft mo tud badetiods fost at to, me 
sidt of .tasbasteb od¢ yd betategqs Yilsgelii pam 
she lqnane erototersii bed wereetedg edt dotdw ° 






area 


illegally changed the name of the office to “assistant fore 
man”, It was further alleged that the defendant had made 

the usual appropriations for the office of time—keeper; that 
no charges had been preferred against the plaintiff and he 

had always stood ready, willing and able to perform the ser= 
vices and duties of a time-keeper, but the defendant had re= 
fused to permit him to perform such ditties since March 31,1921, 


The defendant filed a number of special pleas, 
one of which was to the effect that the office of time-keeper 
which the plaintiff had previously occupied had been abolished 
on March 9, 1921, and that the plaintiff had never made any 
effort, by the filing of a petition for mandamus or in any 
other manner, to review, vacate or set aside the order abolish—- 
ing said office or to establish his right thereto, The plain= 
tiff demurred to this plea and filed replications to the other 
pleas, The court refused to sustain the plaintiff's demurrer 
to this third plea and carried the demurrer back to the speobal 
count of the declaration above referred to, and sustained the 
demurrer to that count, ‘The plaintiff elected to stand by his 
declaration, whereupon judgment was entered in favor of the 
defendant and against the plaintiff. To reverse that judguent 
the plaintiff has perfected this appeel., In the other special 
pleas and replications thereto the parties had joined issue 
on the question of whether the office of timeekeeper had been 
in fact abolished, as claimed by the defendant but denied by 
the plaintiff. 


In support of shis appeal the plaintiff contends that 
there was no necessity of compelling the defendant, by mandamus, 


to restore him to the office of time#keeper because he had never 


























ae 


esTek tosteiees" o¢ ssitto edt to aman sdz pogasdo yltagel rt 
fi esbsa bad tasdastedb odt tadt begelis reds xalt aan tl 2 ee 
ss tarlt pxeqood~smtt to eofttto edt tot emottsinqotqqs Lavan edt 
r ed bas ttitaisig oft teatese2 bewretetq seed bad aey tsdlo On 

ree od¢ mrotteq o¢ side bas amtilin ,.ybeer boote eyswis bed 

~« bed tasbaeteb at tue etoqesdmonis 8 to geitub bas. ssoty 
eo kSOL £8 dote% eonte settih dove mrotisg of mid $imteq ot beaut 


geeelq Laioeqe to isdmva s belit tassaetebh od? 
weenndnii te sottto ont tadt dostte edt o¢ sew dotdw to sno 
hetiak toda’ need had betquose yieyolverq bed ttitmtafat ot do £ che 
yas sham reven bed tiitmisia edt tedt bas .L8@L .@ Hoteif to 
were at Te evanbase 10% noitised & to gaiitt edt. vd pirolte 
adeifods sebro adt ables fee to etsoev ~weives ot renaas, nedto 
etiisig, edt .,oteredt tigit eld, deiidstae ot to soitto. bise. gal 
tedte od? of emoitsoliqes belit bas selq aint ov. boxramek tats 
reTimeb eftiivaisic edt aisteye ot beastex ¢rua0 oat. yasela 
 Estosqe edt ot dosd rertumeb edt beixas9 bas. selg buine Bid. of 
edt beaiateve Sos ,ot berreter eveds acivazslosb. sit selenite 
i eid W baste ot begoele ttitaislq edT . «aves. add. o¢ norm 
—s ei? Lo Tovst gi Aetetse age taamgbut soquersdw eto lt axs.Lo9b 
tasagbu, ted? eazever of .ititaialg od tania,s bas Aombaeten 
Ieivege tedto edt al »feeqgs ald betostreq aed, titaisle eds 
«Sweet Bomiol bed aelitrag edt otered? anolteotiqe: bas seesa 
: sed bed reqeod~omit, to seitio edd xadtedw. to soitseup. ont. ae 
ol N@ beineb tud tashaeteh edt yd hemislo es neat 
tenis abnetsos ttitaisla edt Lesqas atid) to troague watt rrr 
eee ebasm yd ea ont ant Lfequoo to vites a on ea ost 
se on bad od suuaed eqoodwontt ‘to soko odd ot wid @ 


Mtn sett Aan dat 



















rae 


= 


been out of the office. In our opinion that contention is 
untenable, Whether the office h-d been abolished in fact 


or the defendanthad merely pretended to abolish it, the 
plaintiff by his own pleading shows that he had been out 

of it since March 31, 1921. It is of course true that the 
defendant has a right to discontinue any office or position 
in good faith, if it becomes no longer becessary or useful, 
but neither it nor its civil service board has any right 

to continue the position in force and remove the plaintiff 
therefrom until charges have been preferred against him and 
sustained by the civil sefvice board in the manner provided 
by law, Nor can the defendant or its civil service board 
legally abolish an office or position temporarily for the 
unlawful purpose of later re-establishing it, either under 
the same or another name and installing some other person 
in it. People, ex rel Jacobs v. Coffin, 282 I11, 599 

ll dak, finding himself in the position of this plaintiff, 
has established his right to the position or office involved 
either by mandamus or other proper proceeding, he is not in 
@ position to sue the municipality, and recover his salary 
for the period he claims to have been illegally prevented 


from performing the duties of his position or office. 


It was held in city of Chicago v. People ex rel 
Gray, 210 Ill], 84, that even where an ousted employee filed 
@ petition for mandamus, seeking both to compel his reinstate 
ment end the payment of his s2lery during the time he had 
been illegally prevented from performing his duties in his 
position it was obnoxious to demurrer in seeking two kinds 
of relief, one of which, namely, his reinstatement, must pre= 


cede his right to the other, namely, the collection of his 
















ane 


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goat at Botletfods ased pod soltto edt coitedh eldsnednu . 


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sotto 10 0.19 ts0q etd to aettub entt aainrotreg a oe 
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ond} seyolgue beteve os. oredw. move taddy.98 yLLE- OLB “we 























bad ed emit edt gaitub yrsise sid to raienestediiiinis 
etd of settub aid cet ei mort ne agdiiotie Vitagatee ased 


| eialt owt galieee at Terma ot suotxondo eaw ti aol? teog 

oe oS 2a eriry 

“hog fom HL imaainpivasnes etd vena sette Fe ono etetfex to 
pn 2 : ee 2 €5h2° 22. ees Eos Bey i 

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back salary, Since that decision, however, it has come to be 
held that "no obstacle exists to the granting of complete re~ 
lief in one proceeding." People v. Coffin, 279 I11. 401; 
MoArdle v. City of Chicago, 316 Ill. App. 343. The court 
held to the same effect in the People ex rel McDonnell v. 
Thompson, 316 I11. 11. 


The plaintiff shows by his own pleading that he 
was a civil service officer or employee, He was removed from 
his office or position by the Park Civil Service Board, Before 
he may be in a position to bring an action at law against 
the Commissioners of Lineoln Park, for salary following the 
date upon which he was ousted from his office or position, 
it would be necessary by appropriate proceedings to which 
the Civil Service Board would be a necessary party, to establish 
that the position or office still existe and that he is legally 


entitled to it, and has been,ever since the attempt was made 


to oust him from it, City of Chicago v. People ex rel Gray, 
supra; Gersch v. City of Chicago, 192 Ill. App. 190. 





For the reasons stated, the judgment of the Circuit 


Court is affirmed, 
JUDGMENT AFFIRMED. 


TAYLOR, Ped. AND O'CONNOR | J, CONCURe 







ri ed of e090 asd df yrovewod ,soletosh stadt sonte pire 


























~@t stefamco to gniftasig sit ot ateixe efostedo on” ‘add bee 
,fos Atl ers sittod ¢ i904 wgatbseoorg ‘en0 ai ‘echt 
tryeo ot ENE saga .f11 Bie sons0i@ to v#s0 ~7_sibtol ; 
-¥_LisasoGou ist x9 aiqgces edt at tostte nse ‘ont oe & ‘ad : } 
cp H it are. mosgmost 


Pe, om ted? gnibasiq nwo aid yd awoda Tritatelg ‘edt & thd 

| mort Hevomet saw si .esyolqms To teoltto soivase Livto# aw 4 
etotee bso seivies Ltvid ate? odt yd soitfeoy to eeitte aid 1 
s ahemtege wal ts cotter aa gaixd of soitizog 2 ai ed yan od 
edt gnivolfot yrsiee tot ited sloomii to sremeteatmmol: edt 

scitieog to soltte eid wort bedave asw ed dotde moqy stab 
do tdw ot agnibeecote stainqotgqgs yd Ytssssoen ad pivow dt 
eildstes Of .Ytteq yreessosd # sd bivow brse& sotvres Livto edt 
fegel el od tedt bae ateixe [itte sottie co mobttaog ont tid 
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44 wont td tao of 
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tuoi ext to fomebut, ony sean: 4 anosset oft 10% 
sbomrit ts ai" sadbe 


CEMATTUA THIMOIUE cea tem Lm ct 


- gitiD NOD. vey - sanop9 CHA a somut 
Sa ie Oe ee ch a riProy eo 
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| o™ - 30930 
~ \ 3g = siuae 


LEWIS-SIMAS-JONES COMPANY, 


Appellee, 
Defendant in Error, 


APPEAL FROM 
AND ERROR TO 
CIRCUIT COURT, 


COOK OOUNTY. 


Ve 


PETER PEERBOLTE, 


Appellants 
Plaintiff in Brror, 


Opinion filed March 2, 1927, 


_ 
GY eS 


a bes = Ay wine @& he © be 
MR. JUSTICE THOMSON delivered the Ae O oh 
the court, 


The plaintiff company brought suit against the 
defendant Peerbolte to recover amounts due on three promissory 
notes executed by the defendant to the order of R. 0, MeGill 
& Co., and endorsed by the payee in blank, 


When the case was first tried there was a directed 
verdict for the plaintiff; on appeal from that judgment by 
the defendant, this court held that the issues involved 
should have been submitted to the jury and, because they 
were not, the judgment was reversed and the cause remanded. 
Lewis—Simas—Jones Co. v. Peerbolte, 237 I11. App. 647, The 
case was tried a-ain and, on the second trial, the issues 
were submitted to a jury resulting in a finding for the 
plaintiff and an assessment of damages amounting to $8,451.13. 

Judgment was entered on that verdict against the defendant; 
the latter prayed an appeal but failed to file his complete 
record in this court within the time allowed; he then sued out 





oseok = Aas 
SAS = BS 


ted _ as fad o Set 
iA br eB SE ae 2 “Yots 
.totingaa 
etosrd af pesbeeked oo ilo -V osbxaey 


seine ris oe bled 


wee 


‘ i ae er TPN re ray eat Sh a ; #. nt : 
stores of Tiivateld a 
Pa ES bE Bea me ei Rae fs aaor 


es .8SOL GS doraM beflt moiniqO . .§ «-\htrey len: one 
aw n T ® gehen '@ wk) et Re, ad 
Quirke rtp ay baravites MoeNoMY AO TTaTe Ril AL: a 

SOE NS a Lieven ‘dt 

vimienes od bivew, a 


: 3 8 r tig ord HOO Titais . 
4 ait, oats Ten ta i Aion se Lona ney 
sel sored fie eh iafivingiiig ee a we 3 


bevioval eavaet sat er tient tx woo anes 


tid 








we 


a writ of error to review the judgment and, upon his motion, 
the writ of error and appeal were consolidated for hearing 


in this court. 


The evidence shows that a concern known as 
Peacock & Go.O0f Ghicago, owed a bulance of about #8,500 to 
R. G. MoGill @ Go. of San Franeciseo, Both of these concerns, 
as well as the defen’ent Peerbolte, were dealers in seeds 
and onion sets. In December, 1971 and January, 1923, MeGill 
was in Chicago pressing Peacock for payment of that account. 
The business of Peaccck & Go. wag not doing well end they 
were not in a position to make anysubstantial payment on 
their secount with weGill é& Go, But, Peacock @ Co, held 
two contracts each dated in April 1921, calling for the 
delivery of onion sets to Peacock & Co., in January and 
February 1923. One of these contracts was with Hau é Co. 
This called for the delivery of 106,000 bushels of onion sets 
at a dollar a bushel, The other contract with the Cooperative 
Onion Set Growers Association, of which the defendant Peerbolte 
was manager, called for the delivery of 11,000 bushels of onion 
sets at $1.10 a bushel and 3,000 bushels at $1.25 2 bushel. 
Delivery was due Peacock é Co, under these contracts at about 
the time MeGill was pressing for the payment of his account. 
At that time the price of onion sets had advanced to #1.50 
and $1.60 a bushel. 


After the plaintiff had introduced the notes in 
evidence, and submitted testimony as to the amount due 
upon them, thus meking out its prime facie case, Peacock, 
testifying for the defendant, stated that he told NeGill 





wo Cleo 


pag oF 


ghottow ait wequ .bas tasmgbet edt wotver of sorte 26 gees 


 gatzueed ret Se¢abiloance stew sannae Sane sastanats eaaterds edt 
; Pits BS vag sey 


an sWons wTeO MOD # tad awotia és aah and ont 
eee: 008 ,at duocs te egasisd a bewo .ogaetdl “‘te.08 a sooos0t 
‘3 ywuereon09 seoct to dtoe .opetomert ag to 29 too aera 
absog rT wrelseb otew cnt Ledrae% taneaten att es tiow as 
“fp fanen eee! erreunel bmx reer _ tadeaned at sagen £10 2st0 bas 
stimooee tact te anomese ‘tot ddooget gaiaveng og0.td0 ak ase 
yew ax flee yaior can aaw .00 2 Sopeet YW suostend ost 
mo Fxomeey isitnstedswyas oxkan of molt iacg eat tom ot9w 
Siet .o0 & Aoonset Woh = 60D & EE ipew apie sauces ttedt 
sat tot guitar .166L Léxgd Ri beta’ igo evoattaoe ‘ot 
“bas yeswoat ab 208 § doooeeG aa atee moise to yroviteb 


fi j ami teey Peas tem 
a 4 wad Adiw waw etoscr ae seal to wad of {ravrdet 


ae ees eg Hebuo ee Had 
— seine to etedeud 900,04 20 > wore edd to es aaat 


i de va Pi 


| alae ai te tHomyag oar Aalegununanpaaeetneien ulleall j 
oat ot et ee Sanisainciet ode sake tet sA 
a GAL gLeLER Saas tte BAe see Rete oad 9 OBut bas 


ai Piet 8 Re ber than, are h 
| “bea sus aiq od? * | 
coe x TR eke — ba # 


oat pmvens. 90 te ai re eta Eat 1% 
ops oom sivat anise aft 3 | 


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paneer 





a ee ae ee 


—3— 


about these contracts and suggested that if he would wait 

a little aamae his company would be in a position to liqui- 
date its neienant with MeGill & Go. out of the profits on 

the onion sets called for by these two contracts, but MeGill 
was anxious to get back to San Francisco and was unwilling 
to leave without some definite arrangement covering the pay= 
ment of his account; that MoGill suggested that they enter 
into some agreement coneerning these contracts and he asked 
Peacock to produce them so that he could submit them to 

his lawyer for the preparation of such an agreement and thet 
Peacock accordingly delivered the contracts to McGill for 
that purpose but without any endorsement or assignment 

by Peacock & Co, Peacock further testified that he never 
got anything from MeGill for these contracts and that MeG@ill 
did not credit anything on the indebtedness of Peacock & Co, 
in consideration of the delivery of the contracts, nor did 
he ever return them, but that about the middle of January, 
Peacock found that they had come into the hands of the de= 
fendant, He further testified that both Rau and the Goopera=- 
tive Onion set Growers Association made deliveries to Peacock 


& Co. under these two contracts, 


The defendent Peerbolte testified that on Janvary 
18, 1922, MeGill came to him with the Rau and Gooperative 
contracts, asking the defendant to handle the onion sets 
called for by the contracts and pay MeGill the amount of the 


indebtedness of Peacock & Go., ond divide any profit that 


might be made above the amount of that indebtedness between 
MoGill and himself "fifty-fifty". Apparently, the parties 
made an agreement on that basis, figured the profit involved 
in the contracts over and above the indebtedness from Peacock 


~~ 


thew biucw ed ti tard Dedesguee ae -etomrsaey ‘ded “ttods 
anit ot aciiteoq 6 ai ed bivew yaaquoe eit eae 
ge etitorg odt to tuo 09 4 LiibeM Atte ren att evab 

a Ififowk tud .edeasrince est seeds ve Paced uci’ radical soins edt 
gat! Liwte aaw bas opstons rt ase of sip see 9% ot avo ina a2éw 


oe oh 


| “vad od? yaizevos tromegaeTts atintteb once sos ovens ot 


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; ee Be 
boise ed has e¢osts nso saad gatareomen fmonsorye once ofat 


A2NQ GehaRe 


of’ sadt timédte &Lioo ad tadé of wong ‘souborg | of 500.9% 


ot 


godt bas taemperee ne dooce te nostexeqe ty ont to% . ard 


eRe ELE Busted Be 


zat IL ton or edaent neo oat petevileb “gaibroons 40 doen sed 
trou fear TO tismsetebae yas twoig tm tud seogreg { page 
raven ed tant beitivast vodeeut soo 994 : 00 Ax sep 
Iitpon sadt bass etoatt noo sands tet oom wort  gahdeyne tog 
9 & doooast to asenbetdebal ait 0 umide yan ttbeso 4 ton bth 
‘bib toa <etestiaon adv to enews Im edt te notgexsbiemee > at 
" ekrsunet to sibbis ads tyods test $ asd rd ere eid ie 
oe meh ont to abnst od¢ tai emoo bastl voatt saute | baw? doo ooas 
" mpnoqsoo edt bas vel ted suds bolticess codrtat “teas 
Samah ot lwighdanion oben noitsinoees atowor a8 Bec Beck’ 


; oie 
270.018 900 ont ses cadet 8 


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-4— 


& Co. to MeGill & Go., based on the then market price of 

the onion sets and, in consideration of the assignment 

of the contracts by McGill & Go. to Peerbolte, the latter 
executed the three notes here in suit, for the half of those 
profits due to NeGill & Go. on that basis. Peerbolte fur 
ther testified that, at that time, he was in doubt about 
delivery under these contracts and, for that reason, a 
clause was written in the notes he then gave WeGill which 
made their payment conditional upon such delivery, Shortly 
thereafter McGill came back to Peerbolte with those notes, 
asking him to give him three negotiable notes in place of 
them, as he Was anxious to go back to G2lifornia and wanted 
to be in & position to bank the notes. MoGill made this 
request because he seid *you know there is no question about 
the delivery now", and Peerbolte testified that he thought 
there was no question at that time about getting the onion 
sets and he, therefore, executed the negotiable promissory 
notes here in suit, which were substituted for the original 
three notes, the latter being destroyed at that time, 


The defendant testified further that he did not 
receive delivery of any of the onion sets under the two 
contracts, As to the Rau contract, he said he asked for 
delivery several times but covld not get it and then he 
got in touch with Peacock and the latter told him the onion 
sets called for under that contract were his, Still later 
Peerbolte seid he secuted an extension of the time of 
delivery. Peerbolte testified further that he was the 
manager of the Cooperative Association and the onion sets 


called for by that contract were wnder his control and he, 





4 2 FS 


te soita tedvam xedt otf co bead 4.80 8 LilpoK oF 4008 
inommyiass eit te soligersbhieace at ,hoe atee aime edt 


cottal od? ,etiodzeet of .00 & LLivet yd atoenince edt to | 


genes to That sit sot eine mt oved eeton send edt bedmoene 
=gut etfcdsse® .atesd ¢stt ao .00 & Li ipeu of exh agttng 
tueda gdvoh at exe ad youtt takt ta ydedt. bethivood: rade 

& ,novset tatt tol .bas atoattaes euedt cebay qaevtlad 

ioide £1i0om oveg sedd of agton vd? mi nogd tae acu saueto 
yltrod@ .qretiinh dove moqy Ismotetnnoe ¢aemysq miedd.ebam 
yeoton Sect (tin etfodres4 of Aoed omes LIMON meshen cenit 

te sesiq ui eeton oldsiteges eordt mid arig of mtd gabian 
Setasw bas simrotifad ot seed og of anoizaa new ef. ee quiedt 
eidd abam Sf iioM seston ont! dass oF moitteog anh 96 oo 
erode moltasiie on at sradt wond vox" bisa ed eausosd deoupes 
as ( tdguedt on tans nottitesd atfodreet ban sMwon yxav hist ‘ett 
Gy ‘noine edt gaittey tueds emit tedt te noltaaup On ase econ? 
 “‘Yerelmota sidalseosen si¢ bevvesxe oveteredt get bas etee 

;  Taatig tre any rot betotivedue eroe sto hele ative wi erat ston 
omit? tedt do Seyottesh galed tester ole -qheton sont 

i rth ag hae evit 
ton pib ot dade tadhedk betitteet tasbasves ode 


ba ay 13 6 | 
owt ait tebe etee maine ett to ene te querbtih Svisoet 


et bodes ed biee of .tnerties wet add oh Ok! satosrt nos 
3 ak edt bam th to tox Divoo gut amie Loewen yeerhiod 
one solio edt min blot tertel edt San docoaet Ah be dosed et tog 


Ngai f fit¢e Vale eraw soatrkaoo. tadd <chaw tot beliso ates 


Yo emit ont vo nocanntia te Dunes of km aPtnbrene | 





ey ee ee a ee a a I SR Te ee Pe ee ee, ee 


Se ene a 


of 


himself, delivered the onion sets called for by that 
contract to Peacock & Go., although he had signed and 
delivered these promissory notes to MeGill in payment 
of them and, that he made such delivery to Peacock, 
"because they were actually sold to the company and 
because I found out in the meantime how this contract 


was gotten by McGill from Peacock," 


Fram the cross-examination of the witness Peacock, 
it appears that efter his firm went through bankruptey, 
the defendant succeeded to the businees of that firm, 
Peacock testified that the defendant "took over my former 
business, I stayed there and mwansged it with him." He 
testified further that he had no connection with Peerbolte 
at the time he was testifying. The evidence shows that 
Peacock & Company went into bankruptey in March, 1922, snd 
Peacock testified thet the first thing he did after that 
was to sell pnion sets on commission. He said he sold some 
for Peerbolte, He further testified that he went to work 
for Peerbolte the latter part of June or the first part 
ef July. 


The record also shows that during the cross= 
exanination of the defendant Peerbolte, he was shown @ 
copy of an advertisement which had appeared in the magazine 
called "The Seed World® which advertisement hed incorporated 
in it a letter addressed "To Whom it May Concerns" That 
advertisement appears to advertise the business of Peter 
Peerbolte, "World's Largest Onion Set Grower and Dealer," * * 
"Wain Office and Warehouse, South Holland, Wllinois," and 


“Warehouses at Desplaines, West Pullman, Franklin, Lansing, 
Norwood Park» ®nd South Holland, Illinois." The letter 





i 

tadt wo tet Sefiss stee nélmo edf berovifes firegmid 
Sigs bengis bed od davedsie ,.00 & sone8T oe Fostthee 
daomesq at (ftpo¥ of edten yrosetact” sett berewtleb 
atocoaet of yteviteh doye ahem ed Feit bus modd to 

“Bas yasqude edt of bioe Ytfentos stew Yedf eabeDee* 
fomrdaos elit wod settasew sax at to preot Y oemsoed 
#3905 684 weit Fitpom wt metteg ew 


ah od oe Ngee: ia By 


sioeoss easadiv od? to cnetemtenereene | ont OUI caste saint 
aWoiqurdned dguvetss toow wrtt ei cette tads anapaae, #2 
_ need tenth Te essatend ott of kebeagowe tashaeten, ot 
meer ye tere toot" Snahasteb edt, tant (bertitest, Jooosed 
oR wit dtdv $2 Sepecom dan oxadd beyete 1 .eeontaud 
-pbdodree’ dtir noltpesnos aa bad od tad? radpaut 
tadt arose. sanebixve ect .gaiyiiteat aay od mit edt t 
bas ,S861 ,dotst of yotqutdasd otat tnaw yraqwod 4 does 
a base watts bib od yatsd tax tt ot faded _beptisest soooens 
as ence biog sd hiss eh -aoteeinwon mo stee aetag Lies ool 
drew of Josw ed fait. Heats ites ould eat on, bs sx20' 
Ftaq tert? edt zo emit to sxeq wattat ody bedi <0 
ay Ul Yo 


_swanote adt pe bast esods ocala fueges wma re 
A amtep nam 0d. getfodreed taedaatoh ‘dr Ye motgentonss 
| SRRMOAE OEE 9h AONE had Shin, tenenmdiapene ae be peso 

| *Eoteneqseoat bad tmemesiizeyhs dod “bite beee ee 
tad? Marooned vsK ¢1mod¥ of * beoverbbs costes grind 
TOTO SOMERS OG AEG. Ot STORER. £ i 





“tt gear & a Ry Secs Mesh 


Gn 
above referred to was deted May 1, 1932. It read as follows: 


“Having been well informed as to the position 
and condition of Mr. Everett R. Peacock, and the 
corporation which bears his name, as regards their 
finanbial difficulties, I am pleased to advise 
of arrangements having been made between Mr. Peacock 
and myself whereby I can, and do hereby cheerfully 
guarantee the fulfillment of any contracts or orders 
for onion sets which have been taken for future 
delivery, or which may hereafter be entrusted to his 
Cares 

It is my sincere hope thet Mr, Peacosk and his 
corporation will eventually work out of their financial 
difficulties, and in the meantime, I remain, 

Yours verp truly, 

Peter Peerbolte." 

When asked sbout this letter the defendant testified that 
the letter and announcement were used for the advertisement 
of his business in “The Seed World." He said the letter 
referred entirely to the next year's crop. He was asked 
whether he was concerned about Peacock making deliveries 
and he answered that he had bought certain contracts from 
the receiver for Peacock & Company and had “taken a certain 
amount of bushels for future delivery." Further, on cross= 
examination, he was asked whether he paid for the advertise= 
ment and he said he didn't know but he presumed he had. He 
was asked whether Peacock was working for him at that time 
and he answered: “He worked for me for some time." He 
was them asked to explain to the jury, if he had bought 
onion sets and guaranteed them for future delivery, ‘why 
it was that the adverisement came out under the name of 
Everett R. Peacock Company?” and he ssid he did not know 


why. 


In rebuttal, the plaintiff introduced testimony 
tending to show that when Peacock & Company went into banke 
, ruptecy shortly after the transactions involved in this case, 








-3- 3 ’ 


| gewoflot es beet tI =.SSCL .f yet beteb acw ot berreter rene. 1 
Line SEs qt Laemle "7 
8 






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PR oe St 86 ,Smen et fo f PP seeER: re 
stoke tt beubnte ax f ube: on esi eh 


es docossi .tM spewted sham " peat fyed af. « 
mat Yiiuitesdo ydsied ob bas a t fia Rite 





ae atebte to atoati ace yaa te das £ as ea 
4 sthivt of aedat aesd foams fun tA falne Gat 
a aid of betautiae sd pi, onli wa doida to ASD. or 
: alc bee deoossd «tv sedi sgof exeents.. "en 
ss Setoaantt tiedt To tuo drow YLisetaeve 11} titrate “ 
eB efismer I .omitasem ait ai base seit iuoittle 

r: eYiux t ‘av StuoY eae meee 

s is a ie ve 

ee wise Pf 


tedt bektitass tosbastsbh ed? rettel stot tyods bedae oody 
ss Snemendtrevhs sai rot beey oxew tnamsenvonns bas tattel edt 
tottel sft Biae sk "brow 5ee8 off" af pacqteud Ada te ; 
Sedge eam eH goto a'assy ¢xem ant of lex ites berretes a 
avireviseb gaiten daoooses tvoda bemeeoaeo asw od rodteda 
mort stoatinos atatres tdyuod bas esi tact berowens of bas 
sisizso s ngust” bed bas yeaquonst doeoaet zok novisoe edt 
“28070 mo ,tedtryi ".yrevileh exudyt rot te tavons 





ae ye Peele ae 


a “seitteves odd tot bieq sd redéedw bexan es# ed ,noiteninazs 
Re SH ded of bemueetq sf tud wor tab ib od bisa ot bas fans 
eutt ted? te mid sect 3aidtow ean doooasd taditedw betes eam, 
SH “,omid owoe tot em tot bedrow of ibosewane od bas 
tigeed ba od Ti .ytl odt of akefoxe oF bodes medd ean 
yaw" yeevilob studvt tot ued? beetasrany Bite Wise olso 
le ener edt tebay duo ones taomewteevbe df Pad? ow $F 
| Mont You oth of Bikse od Bas eenendbrstes whine 
Sor eee eer 


sae ies Ses STATES 











ee Se es ee eS Ply Se CMe | 


MM ot todeass 






a 3 
wD ante’ > 
ee ee oe a 


. eet ends a Seviorat 3s 
a. sk S ‘ 


ate 


R. Oe McGill & Co, was not listed as a creditor, nor were 
the onion sets "represented by these warehouse receipts" 
listed as assets, Whether the onion sets referred to in 
that connection are the same as called for by. the Rau 
and Cooperative contracts is not clear, but that is the 
intimation and nothing appears to the contrary, further 
testimony submitted by the plaintiff in rebuttal was to 
the effect that frequent demands had been made uponthe 
defendant for the payment of these notesg and upon the 
occasion of such demands the defendsnt always promised 


to make payment within a few days, 


In support of his appeal the defendant contends 
that the only theory upon which the plaintiff could recover 
is that it was a holder in due course and that when it 
is shown that the title of one who has negotiated a note 
is defective, it becomes the responsibility of the holder 
to prove that he, or some one through whom he claims, got 
title as a holder in due course, Such was the holding of 
this court in connection with the previous appeal of this 
case based on Chap. 98, Par. 79, Gahill's Rev. Stat. 1925, 
This, however, is merely a rule of burden of proof, On 


the previous appeal this court pointed out that there 


was some evidence in the record tending to show that the 


title of McGI1l1 & Co. to these notes was defective, in 
that some evidence tended to show that MoeGill & do. did 
not own and did not have the right to pledge these con- 
tracts and, also, that at least one of these notes was 
negotiated after matutity. Some of the evidence contained 
in the former record, tending to show the latter item of 
proof, is not contained in the present record, There is 
other evidence submitted in this case tending to show 


ms 
} 





ate 


ero ter _xofibers 4 ee betail toa sew od & LLi00% Oo 
‘etqieoat eauorer.ew apeds yd bot nenoxqox® ston nolne ets 


ni of dewrotor afer woino sith codt ed stones am botetl 


uasi of yo rot DeLiao 26 omae os 078 motsoenmee tant 
edt eb tadt ted: yteelo tom st etoart nen evteersqoes bas 


2 LET 


rotited  .yrartaeg edt ct axescan antitton aukimotehe ibn: 


ever tak 


ct sew Letsudex at Midmisty ect “d bodt Ladue qnomtsess 


-edtmoqu abam mgad bar abaaush saowpord tas. toptte edt 
Laney og we) 
edd moqu fre gemton aoodt te daomyeq: ‘ed tot tasbasteb 


heaimotq eyanwis juabnehes odd ebasmsb dows to molascoo 
weyab wet a middiw: tasmysq edse ot 


ae net! Bag 
“ebast.ir00 tmebsasiebh odd tneeee obi te freqque al 
F La LEGG mht 
Taveost blioo Ittatela anit do dw nog yrosds qine edt tas 
ig EE hee yen a ees 
ti node dade bas seturos sub at zebfod b env tt sade al 






oven £ hot altos on sar alw ono 10 ‘eftie ods tadt anode eo 
24 ary % S & ae +e) 

tablod gefit te Wi Lidtemoqest ae e909 90 th evitosteb "a 

‘ od Oe Gers sey eyes 


“te vemisfo sid mow dyvords ono oimoe x0 ‘ot tae svorq of 


Bae ty Sane es 3 wierrosse 
Yo gaibfon odd saw owe 29BTWOD ees) at robLor & es oftit 
AU eis sais sale wit 


Gh Fa ea Taw 

mice stare von eritidee .@v 08 ae asi al boasd eea0 
CASH ASH 

mG .tooxg to nabrwd: to elus s ston ak “grovanod | eld? 
Sap isha a Dien 

eradt sad Pine hataiog tru00 pict Lascqs 





ard tent wore ot gathnes brocer ont at soasbive emoe 
7: Levitate aan nado avedd ot -00 & LILDoM eltit 
bab - & 1L3o0K tet wode oF pebaes yt gle g Beg hls 
‘Taco seeds Ugbtle of #égix ont avad dom bib ‘ae phe ‘ton 
aaw eston aeedt to sao tecol ts stadt ,oets .bas atoatt 
Realetae sousbive sit Yo on08 “tituten 19 %s betsitogen 


oa oi to meet seo athorenenteanane neem mtn 


Ss oH ghitode . 


“ abat Yo Leequs ewolverg ait (tin ottosnmo nit tzve0 6 otdt 


re age e helae ~~ } 


Ce ee ee ee 


Se 


4 








hie 


that MeGill & Co. did acquire title to these contracts, 
In the opinion filed by this court on the previous 
appeal, efter referring to the evidence as set out sbove, 
this court held that the questions involved should have 
been submitted to the jury and, therefore, the trial 
court had erred in giving the jury = peremptory instruc 
tion for the plaintiff. 06, the retrial of the case there 
was again sone evidence tending to show that the title to 
MeGill & Co. to these notes was defective and there was 

. evidence to the contrary. However, on such trial the 
sontroverted questions were submitted to the jury and 

it is not contended that their finding is asainst the 
manifest weight of the evidence, nor, in our opinion, 
could such a contention be made successfully, in view 


of all the evidence in the record. 


However, we are further of the opinion that the 
rule as to the burden of proof contained in section 59 
of the Negotiable Instrument Law (dehill's Rev. Stat. Chape 
58, Par. 79) which the defendant seeks to invoke here in 
his favor is not one of which he may avail himself, because 
he became bound on these notes prior to tke acquisition of 
the alleged defective title in them, After laying down 
the rule as to burden of proof which the defendant seeks 
to invoke, the paragrebh of the statute in question con- 
tinues to say, "but the lest mentioned rule does not apply 
in favor of ® party who became bound on the instrument prior 
to the acquisition of such defective title." Woodlawn Trust _ 


& Savings Bank v. Donaho, 239 [11. App. 158. 





=Qe 










vatoat ten seed? of aftit etivpos bih .od & ‘ftow teey 
avetverq edt ao tisso aldt yw BeriY mo teitgo ed ot 
eves tuo tee as epnsbive ode of yabrrstet’ wenn 
evar bivoda bevioval enciteed edt ade pied Puioo at 
leict ont eorotetadt abae yea, ett oF bedt iad eed 
~ourtent vrorqne red s yu, edt gatviy at Serté “Bat ftleo 
wrodt aseo odt to Lalttex and nO. ttigndatg” auf tot mors 
of eftit ost tad} wode of satbast ‘sonehive ond aléy® toe 
saw oxeds bas ovitostesh ase edton eeédt oF! 00° 8 I Etbou } 
edt Isitd dove ao ,t9vewoH .YTatdade ad? of ‘sonebitve - 
bas yiut edt o¢ hettiadse orew cacitasue betroverties: 
ett Jentezs al gaibatt tiedd tadt del | tou at tt 
‘—amotaigo Tuc ai .ron .soasktve ent. to tgten tical 
waiv af ,vflutessooue, ebsm ed moitastnen « pun, haves 
Hiooet aft at aonb ive edt co ‘te 
























is Mace 


bc re ie 
Te ee er te” Seay Seiad 


rae i 


v 
G 


: 





















RE «¢ 


es “eds fade soiaiqe edt to teaddtut eta’ oy jnutueeneteb eh 
| “ea mottos nt bsaiatneo toorg to ashtad “OHy OF “ee O Lot i 
ano tage os; at iftded) wal ¢abmettank ofdateogon ‘at te 8 
mk ened exovmi of asigsn tnnbnatsh sitf doddw (89 tat 88 : 
‘esuased eMeemt d fievs yam of dois to So fom ab rover” etd 
te moitiatupos edt of tolnq eeton saert ao BaUeE <a od 
_, arob gatyst metta ,modt ai ofthe ovitooted beys ite’ teedt 
| : ailese tasbast sb ade do tde toorg to cobtud of soos 
_— aotgaoup at stutata edt Yo Keforrg ex aq ‘edt exiovat #@ 3 

lees ton aseb olus benolsnem fasr off tud* Vee! be biome . 
‘totzq #noawateat ott 0 haved sweesd ote yttaq # ¥0 ‘cove? at 
gees oritostes fou % nore betta St © ot 


* LOTR BOF wie ios yo ~ 


° 


x Se v i ’ ‘ ‘4 
SNR AS SAAT BL RRO aE a 


WE eet | 


== 


In further support of the appeal it is pointed 
out that the court instructed the jury to the effect that, 
where one takes a promissory note in the ususl course of 
trade for a valuable consideration, before maturity, and 
is not guilty of bad faith or possessed of knowledge im= 
peaching the value of the note, he would become & holder 
in due course and the note will not be subject to defense 
of failure of consideration in his hands, This instruce 
tion then went on to tell the jury that, if they believed 
from the evidence that the notes here in suit were trans= 
ferred in good faith for a valuable consideration, before 
maturity, and without knowledge of facts impeaching their 
validity on the part of the plaintiff, the defendant was 
not in @ position to defeat plaintiff's suit by showing 
that the notes were given without consideration or that 
the consideration had failed. It is contended that the 
court erred in giving such an instruction to the jury be- 
cause there was no evidence in the record upon which to 


base it. 


In our opinion the defendant is not in a posi- 
tion to urge this matter 4n as much as it does not come 
within any error which he has assigned upon thé record, 
Moreover, the defendant submitted and the trial court gave 
an instruction which was the converse of the one submi tted 
by the plaintiff, of which the defendant now complains. 

By the instruction submitted by the defendant, the jury 
was told that, wmless they believed from the evidence that 
the plaintiff became the holder of the notes sued upon 
before they were overdue, and that the plaintiff took 
them in good faith and for value, and without notice of 
any infirmity of the notes or defect in the title from 





~Qe 
























Setatog af ti iesqqe sit to tregqve redtxst af 
waedy gowethe ed? ot qriyt oft Betottent yoo ed? tat tuo 
to saxveo layer oft af oton Yeovelmotg 8 eeiet sno oxeity 
bas .Yirutes sxoted wettevebtenu’ sidavisy 2 tot ehate 
~mi sgheiwonl te beaeveraog co Mette? Bad to yittteg tom ek ig 





f: 





‘ ; ies ti ve" q 
_ | tebLod 8 smeosd hfvew et .ster edt te outer odd galdd seq 4 


i eenetsh ot gastdys ed tom Lliw eter “eit Bas eetwce oub Al 
~ourtegi aidt ,ebasd eld at aditerebience to omilts tt to 

Bevatiod yedt 2 feds yt ode Liey OF dé PhO a 

i ~enet erew tive at sted esten oft t4i¢ eodehive edé moct A 





























4 | stoted .noltarsiiames sidaufsy = tet mt8t boos af Betts? 4 
i. tiett yaidoasqmt stost Yo aghatwort teodéiy bas .yeltwdan j 
a eaw dashreteb etd .ttitetaly ody tw traq ete no YWibtiev ; 
ie aainode Witise e'ititatete testes ot wotvieed ni dae 

tere TO coltsrsbisaon tuoddiw sevig evéw eoton ed} pads : 


odt tact bebastaom at #€  vha list bad aottereptenoo on}. 
~ed YIwl edt of avitouttert as dows ‘gaivig at berre tryoo 
‘ot do i tw sess bressz ent at soasbive on saw ox9dt e6ya0. 
sth gaa 
~iweq s oi ton ef tasbasten aay woinige +96 ‘on naa ina 
smen ten s90b tt es tom we ab rottsn wide yt OF mole” 
 broves mit adqu femyteas asd od dite torte yu Wedd 
8v8g gruon febxt eit bas bett tadwe sesbdetss odd \eevesroM” 4 
battiodue eno alt to serovacs sit ean do tie nottountent as) é 
taielquos won Gnatneteh oft dotde te \ttivaten ede yd 
Vault dt .ousdasteo ont yd dotdingis aotiourdunt edd ya” 
_tadt: sonebive oat mort Devetiog yout eb ta <tadt —, 
_ stoq Dawe aston oat $0 xen Ton ot omsoae roth misty 9c 
Hoot Ititaiesla eft tedd bes pexrbrs one 
to soiten tuodtiw bas ,aulev 20% bas aghest how at aot 
mont eftte sue mi footed ro yates edt to ‘Wim 


bi pas eae es 










-10- 


the one from whom the plaintiff received thea, then the 
plaintiff was sot a holder in due course. In such a site 
uation the defendant may not be heard to complain of the 
instruction on the same subject submitted by the other 


side. 


For the reasons we have given the judgment of 


the Circuit Court is affirmed. 


< 


AFFIRME De 


TAYLOR, P.J. AND O'CONNOR, J. CONCUR. 






CME Se SS aia PRET ae 
Pe es a OL a mn ey sd pane” 4 















em MaRS Roo: eee 
bts he iba de tae ae ie dy tag AG ‘ , ( 
‘bret | BENS gs iy Mets : fies ibs Siti As Wat beso 620 i 

















ee 


ee ee eee ae ee 
ae ie te aS a 
Pee MRE AES SAGER So Seats Seapenni 
PO NR ah bea ap i wa amtntin GN i ie lag pala 


ORE AN SCM BOLE See eh Rae ait ita Me | aA a 





eh ORNS “om i) tent secie: 





Sit Th ein naa sent 


Yo Wh Pate Dann dg Sen cant 


288 = 31108 


FRANK KLANDER, 


Appellee, 
APPEAL FROM 
Vo SUPERIOR COURT, 
COOK COUNTY, 
8. Ae COHN, 
Appellant. 


reoh 2, ve : <p | 
Opinion 54 'F" ‘ 33 


MR. JUSTICE THOMSON delivered the opiniOn of 


the court, 


The plaintiff Klander brought this action on the 
case against the defendent Cohn, in the Superior Court of 
Gook County, to recover damages for injuries received when 
he was struck by an avtomobile being driven by one in the 
defendant's employ. The issues were submitted to a 
jury, resulting in a verdict for the plaintiff and a judg 
ment against the defendant, in the sum of $7,500, From that 
judgment the defencmnt has perfected this appeal, 


Only two points are urged here, First, that the 
verdict and judgment are against the manifest weight of the 
evidence on the issue of contributory negligence, and sedond, 
that the argument presented to the jury by counsel for the 
Plaintiff was improper and prejudicial. 


The accident in which the plaintiff received the 
injuries involved in this case took place abot 10 o'clock 


on an evening in July, 1923, on Irving Park Boulevard in the 


City of Chicago, That street runs east and west and is some~ 


what wider than the average city street at the point where 


this accident happened, It contains a double track street 


ear line. The plaintiff boarded a westbound street car at 








2 . . : sole - see 
Ph oe 
ae : OD ee ELOqAte foot om oat 

be BOWE Jaret : 

: ~ ; 3 : Mh SPN ae x titetate 
ct ePetOo HOLwRaGTE het ih: eh ay Hy 1 
OA j is : owe ae USS 2X aby ee WG LB ges ‘ 

YPHUCO #000 ete fo ray 

a 7 : a 

We stat foqek byrne 
 Pegptr 10 LetierO oe, ake ae 

«SEO. EES 

Sa to a9inigo edt beveviteb ROBHORT ‘worrey sm 

| si Slt 


edt no moites widd tiguord rebmsila Tiltateiq OF. ood ¢ 
to taovod totteqye edt at .adeo tmmastebh aly Faniegs e880 
teny bevtess1 asixutal rot segamab teveces of <¥mUved Food 
edt af sno yo asvith gaied efidemotua as yd sports. o9m94 


s ot bettimdyve ctor asvesi OMT syolgus 8! gashaeteb 3 

~gbut 5 bas ttivaisic oft rot ¢ofbxev & mk gat¢iveor qytwt ; 
taste mort 008,59 Yo ave et at .Paanaatod ont tantegs tom : 
sfesrqe eide Sotosttaq aad tna oetebh oat Sepmapet +4 


4 


eft tedt .¢etii .sted begty ete statog owt tia0 
edt to tdyiew testiasw edt tentage ene tremghst bas totbroy 
ebroves bas .saset igen yrotudixémes te sweet edt mo epnzbive 
eae Tot fsanuos ye yxut sat ot betaseote Fasmagte voi 
-teteipatere bas tagorgnt eeu tite a 


oa, 





Odd bevisost tlitmisly ast dotdw at tmabloos edt ae a 
Mpelo'o OL tumds soala doot 9250 eidt m2 hoviovnt ete | 4 

edt at brevervod ixai yatv2t ao .E8L .efut at antaove , 
: nance ei bas teew bus tess sour teste tant sogeotdD eo 


my 


 oredw Sntog edt te toorts Wie sgarens ont nnd 
priinaeelioentetes -bonsoqs 





-2- 


the corner of Hoyne avenue, a north and south street intere 
secting the boulevard at right angles. The next intersecting 
street to the west is Leavitt street. Midway between Hoyne 
avenue and Leavitt street another north and south street 
known as Hamilton avenue extends from the boulevard south 
but not north, The car which the plaintiff boarded was 
crowded and he stood on the step of the rear platform, Shortly 
after the car left Hoyne avenue, the plaintiff's straw hat 
blew off and at his request the conductor stopped the car 

at the corner of Leavitt street where the plaintiff got 

off and the car went on, The plaintiff then started back 

to find his hat, running at what the witnesses generally 
described as a “dog trot," directly east in the north road- 
way of the boulevard, a foot or so north of the westbound 
street car track, About this time two automobiles were 
being driven west in Irving Park Boulevard, in that roadway, 
One of these westbound automobiles, to which we shall refer 
as the south car, was being driven near the street car 
track, Several witnesses say that it was within the west- 
pound track or straddling the north rail of that track, It 
would seem that the one in the best position to state just 
where that car was being driven was the witness Lunkes who 
was driving that car, He testified that his left wheels 
were a foot or so outside of the north rail of the westbound 
track, ‘The other westbound automobile, to which we shall 
refer se the north car, was being driven over near the north 
curb, That car was being driven by one Clamage, and he had 
two brothers with him in the car, one sitting at his right 
on the front seat and the other on 4 rear seat. The drivers 


of both the westbound automobiles saw the plaintiff's hat 





~S~ 


~ratnt toorde divos bas déton @ .euiieve GiYoH to xemt0o sdf 
gnitoseretat txea eff .eeigae tdgix te brsvelsod ode patsoue 
eryoH asewied yswbili .teoTss tives ef teow odd of sootta 
geottes divoe bus dizeoa tedtens fteerte doivesd bas sumevs 
dtsce Dravelued sit mort ebagdxe evnevs notiing ea awomi 

esw bebtecd ttitatete anit dolnw sao sat -déton ton stud 
yitred? mtottsig tao odd to qate edt mo boove: ed bas bebworo 
fed weste a'ttitmiste od? ,ounevs anyoH ttel #0 ° ‘ot ‘toate 
tao odd baqgote tofeyhaco edt teeupet aif Js bas The wold 

tog ttitnislq edt exedw teorte, tiivaed to seatoo, adt, te 

tosd herrste neds tigaisic saT..20,taew tao edt bas bie 
vileronsy epavcativ ot tate te gataave. bad etd: bath of 
-beor déton od? ai tema yLtesrth *,gort gob" 2 96 bediroaed: 
bavoddzew sit to d¢tom o9 to took &. _btsvelued ent To yew! 


aif Stes aslidomotus owt soig eid? tuoda wtoastt 180 geette» 








a 
i 
we 

+i 
te 
. 

Ve 
et 


Yewbsor sedi af ,hrsveivod ats? gaival ab teew mavith gated | 

aster [fade ow doisiw ot ,ealidomotwa bavodteew eased? To sad 
: wh etaber owt wie 

180 sootta odd 1880 movith gated esw yteo dtuoe edt es 


est 2 foley 
“teow ed? midtiv eew fi tedt Vee “goenont iw ‘Yoxévea a etoszt 


i ie ney somrebive 
$f “saomte tedt to fine dtvon odd gai tbbsris to doart bavod 


ee OF Fats 
taut efste of nottieog teed edt at enc ods fade mgee bivow 


ofw eodoy] esoatiw edt eae asvirb gated ‘a ‘van fae cae 
alveds ttef aid sade beitisact eH .xaw ted? gaiviah eew 
hbovodteew. sit to List dtzon edt to eblatwe of re toot # erer! 
dade ow dotde of ~elidonotus bavodteew tedto ext yaloett” 
titres edt tseq tevO sevith gated saw yrao dtxom edt es tote 
bad od bas ,ogamsI0 sao yd nevVeth gated wew tao tac? dane” 
tigix etd ¢@ gatdtte emo. 4RHO Odd Mt mtdodetw etentord owt’! 
(Stevith edT 2898 za9T # a0 redto odd bam tase taort. eft) 20> 
ted e'ititatels edt wee seLidomotus bavodteon. edt ‘tet te ne 





ade 


blow off and fall into the street, and they both slowed Up. 
The south car had been obliged to stop at Hoyne avenue, by 
reason of the stopping of the street car at that intersection 
and it started up when the street car left that pointe It 
dees not appear thet the other car had stopped at the inter= 
section, It seems from the evidence that as Lunkes was slow- 
ing up, the north car came along and passed the south car 
and came to a stop where the hat was lying, and Clamage's 
brother who was sitting in the rear seat of that car got out 
and picked the hat up and then got back in the north oar, 
Both westbound automobiles then drove on for a distance of 
about 200 feet, at a comparatively slow speed. The testi- 
mony of substantially all the occurrence witnesses was to 
the effect that as the plaintiff came back along the street, 
looking for his hat, he was directly in front of the path 

of the south car which Lunkes was driving. The drivers 

of both cars saw the plaintiff from the time he got off 

the car until the accident happened. He came back along 
the street until he was within a few feet of the front end 
of Lunked@ car, About that time, according to the decided 
preponderance of the testimony, both these cars had come 

to a standstill, They were about opposite one another; and 
Lunkes testified that if Hamilton avenue had extended across 
Irving Park Boulevard he would have been at about the east 
crosswalk of that street. The plaintiff testified that as 
he started back after his hat he did not notice anything 
coming toward him at first, but as he got near Hamilton 
avenue he saw “some machines* coming toward him. One of 
them, apparently referringto the south car, he said was 
coming "pretty close", and he held out his hand and alled 


saa 


ms bewole dtod quit bas ,teette ote oats ist bas Ye void 
F Lie GETS He 
WW ,eumevs saxo ta qote oF beg tide aged bat 3 180 sit wos be 
Pak % is ee Pe) | ae set op 
nottooerad st tedd te tao teente edt te aniycote ont boy Iban 
#1 einiog pede tteL T89 teotte ade asia bod botrate phon og 
ts Cee Te 
=setat edt te beqqote hed tes redte oda tet meas oe 
AS LE Raels w eh hat 
agdai & ade Ssomabive edt woe? paoee #i 4 .moltoer 
“et ba oe weak Tee ou ue Suet 
dove edt be bee ie ons 120 Atson odé 
aad pe cs eae bas goo Moiete Boro A ong 
_atogsass0 bas .guiyt saw sd edd oxo A ai & of wae 
SBS Ge % ; 
duc tog t#o dedt to taee tast addi wi gmige te ase Frey Bi ors 
ag : 
sto doxon dt ai toed tog asdts Sas ue dad ode bhedotg bas 
L Pes SPR Regt 
te sonst aib s tol we sverh ued astionotws bavodseew toa 
ct a0) See De 
~itest edt -beeqe wots visvitesaqnon at geek 008 tuods 
pad adel beet oe 
_ oF saw eseeontiw saaneTiEne oat ita ‘eielensteden to 
ey col* 6 on bettneees 
atoorte, ade gots dos onsio Yetemiale ‘ede ea tadt tostte edt 
ght a ee Tires. the a4 to, pi dl 
ater sult te taort ab Utoszth aay ad etad elec tot 


BOSS TI eee. 
etavisb ott sgaikv heb aan oxen. fo bein tao dtvoe ext 


ee Sete eg 
te tg oul enid eult wort ‘itntetg edt WRE BTLO 


Seog seed ta ews 
gaols toad mao an beneqgad fsb i908 ods fitau sao edd 


cae soho eit es 
bas tnott e4¢ to toot wot « aise ae ace ed Uta 3 ‘teoute ody 


* Soares. gina: 
bebiosh sit o¢ yaibtooos ,euid o seckt toda «eo Sodayd 


2 3 then wap 
emoy bad eiso exeds dios nom #099 ont 


Ad sees. ioe 
bas itedi ons eno st taecgo taeda S199 wat es 


> tah tase & 
le sie bebaes xe bad eunove wot L biwsit tk toad bettizeos Se, I 
ese Asch 23. . 
‘oe suse ode toda te aod aves bisow od poy veh mew 


“98 tae BoLtidac Wisatarg om .soonte i sade % sa 


Hh Pay r sha ea a ae att 
Bait ys so t#on ton bah aut ted etd wee ke 
pene hth pees Re a Rg 


mod {tsi 99.8 tog ad os ¢ud gtertt te wid beet juison 


ca BY oy AC AOE RE: wT: est patient eG | tee crete 
_» 30 ond 58 emt ee he ye 


RR > Seg 


ote 


4» a 








des 


out that he had lost his hat ar@und there somewhere, At that 
moment, as already stated, both northbound automobiles had 

come toaa stop, according to the preponderance of the testi=e 
mony; the plaintiff had either come to a stop also or sub= 
stantially so, and had reached 4 point directly in front of 

the south car and a few feet from it, when he heard someone 
call out "Here is your hat", Turning in the direetion from 
which these words had come, which was to the northeast, to» 
ward the curb, he saw the narth car standing there with one 

of the Olamage brothers holding his hat toward him from the 

rear part of the car. The plaintiff testified that the lights 
on the south car were burning brightly and that it was only 
after he heard someone call from his left, "Here ig your hat," 
that he noticed the north car standing near the curb. He 

then started in that direction to get his hat. When he had 
walked a few fleet, = some witnesses say more and some say less,- 
he was struck by the defendant's car, which was being driven 
west in the north roadway of the boulevard. I+ passed between 
the two standing automobiles, struck the plaintiff and inflicted 
the injuries which are the basigs of this action, The defend= 
ant's chauffeur testified that he was driving 12 or 14 miles an 
hour and that his car did not go more than 5 feet after striking 
the plaintiff, A brother-in-law of the defendant was riding 

in the car at the time and he gave testimony tending to core 
roborate the chauffeur, On the other hand, witnesses for 

the plaintiff testified that the car wes being driven at a 
speed varying from 25 to 40 miles an hour, and the distances, 
given by these witnesses, which the car traveled after strik- 
ing the plaintiff and before coming to a stop, varied from 15 
to 50 feet. It is admitted that no warning signal was given 





ohe 


. todd sk .storwemoe oxed? bayOta ted sid taol Set on tant ‘two 
sed we ttdomotys Sauoddtaen dios berets ybRexti ea gttenoE 
Be wkiges edt to opnsTebmagety adt o¢ gaibtooeg <qote Baot omdo 
: ige te cafe qote @ of emoo Teitie hai Titatsla ett pyaom 
to ¢nort at ylteorth taleq © botioser bad bas (oe Yitelenste 
enoshioe based off codw ,tf mort teet wet ¢ bak x50 dgiios out 
mort pottoorth ad? at gatamyr ."8ait xudy af Stell” ene” Orbe 
-ut ,fansitcon edt of asw doidw .omco bad ebrow onedt Ho tite 
ako dttw oredt gaibaste teo dima odd wee od <dzio ont! btn 
E oa} mort mit brewed Pod eid gathiod aranvotd eyauslO ext to 
sidyil add gant bettitect Ttiteiat eer seed SAF Yo Frey sebt 
sg ite Row FL ted} one Uftdgicd yatnred stew tao Atcoe eit WO 
“ged meg et oced® .ttef aid wort {feo snoomoe Brae’ oi 1he%e 
dR .dtuo eft then gnibsste rao dtxom oft beplrcir ed° reds 
bet Sd nomY fed ott tay oF montserth Fait nt petcase' weit 
“\aeeL Yeh @hoe bad stom Yse Bennentiw suce ~ ,t00R WOT’ s bed Law 
 govtab gaisd sew doidw ..8o sl¢asbasted ond YW dortte eew Oi 
 « aeowted heseag #1 .bteveived edd to yeebseot Afron ect at teow 
boro trtat bis tiitnialg oft foutée .setidomores gaibasts ov Set 
— sbasteh aT mottos atct Yo stead aiff exe Mo tdw wedawtAt’ ot 
 - eollm $1 to Sf gaivind ety od Heit bettitess mwottuads wt tne 
_gatatses tots de0t @ asdd oron oy toi Hkh ‘uso att Acufisas aces | 
ce garbix eew doshasteb odd to wal=nlereitord 4, 

woo ot paibaes Yaoultens evsg od bas euit adt err id id | 
“got eseeent iw ebnadt rote sit gO .nuetiwaio sig wfatode® 
& te mevich gated saw tao oft tad? bobtitesd ‘ttudatate’ ot 
“emepastaib edt bas etsor mis eal tip OR of af moe? gatyray Bega 
wilwe retts « betevent tao ied done aos 


or a abe Ranasbeideaiin 


















Se 


of the approach of the defendant's car, lLunkes and the 
Clamage brothers testified t's t the first intimation they 

had of the approach of the defendant's car was when they heard 
the screech of the brakes, just before it passed in between 


their cars and struck the plaintiff, 


The plaintiff testified that after he heard some= 
one say, “Here is your hat," he took only a few steps before 
being struck; but he also said he thought the right fender 
of the defendant's car was the part that hit him. The driver 
of the north car testified that the plaintiff was just about 
to take his hat when he was struck, ~ "he was reaching out 
to get his hat." This witness also testified that he thought 
it was the bumper that struck the plaintiff, 


The witnesses differ as to the distance between 
the two standingeare at the time the defendant's car passed 
between them and struck the plaintif—. One of the Clamage 
brothers said there was "just enough room between the cars 
to permit another to pass, Another one of these brothers 
said the distance was eight or ten feet. ‘he defendant's 
driver said there was two feet between his car and the south 
ear and three feet between his car and the north car as he 
passed between them, The plaintiff said that as he heard 
the call from the north car, and started over to get his hat, 
® I looked and I didn't see no other car,” He also said 
that the space between the two standing cars, "looked to 
me t@ was impossible for a car to go through." He said he ~ 
did not see the defendant's car until it was three or four 


feet from him. He was then asked: "Go you do not know 


where it came from, do yout" and he answered, *I don't 


el 















edt bas acdnyl 100 e'tashasteb odt te dosoxqgs edd te 
CS a ane ee 
yous aoitanttal textt odd a a beititast esedtour 3 


yraed yoda asse ase t@9 a' dasa tob act to do sorcas ‘ont “Ye 
ae Lae 
asewted al bessaq te ovoted text, aodsrd oat” to fo seh eg 


Gad eeirees 
Titaisie ong sourde | bas saad kieds 


} LaLa Ae Ge 


eat hs Se haa 


samoe bused oc setts tadt boititvest Witasale edt » Pow arts 
‘SxGled agate wot & yinc dood od "sat awoy ot Snel? qyee amo 
— tebaet digit ert tdguodt ed Rise oats ef ted qaounte gated 
-— gemixh oat smtd pid done dxaq edd eow xA0, a! tnsbAOyab, ortt. 20 
«suet tebh wee Baentale wig tate pethidned. cao, désoe sit te 
thre gatdoser asw ed" « .dowtte saw od nedw tad eid ela? ot 
— od Sad? bettivast cule eacutiv sig? ‘ted abt tog ot 
sYiifirialg edd dowwte dade xequud pdt aa ts 


aoonted vonsta tb oat ot es rottia csssamia oa °° *= 


i _ Peaesg | 78D et anhas teh ‘edt emit ode ‘te euaryathaadi ond ‘is 
—_ aganat ont Yo end Beidaialg ‘ods ourste bua wedd negwtod 
ss é _Bts0 ort noswted moor dyvone feut" eam aredt ‘biae exedtord 
| aredtord esedt to esr0 redgonk 2889 ‘ot ‘vedbens ‘ gheceeg’ te 
: a'taabastob art? toot net x0 ‘tdgts saw sonatell edt bee 
“tt aoe ods bas w80 etd naowtod test owt ean ovedd bee oviab 
od ea t20 d¢z0n ed? bas 1s eid neewed test 4 7 } bas 180 
‘i breed od ae tadd bise Yitately et wed soswied fipsang 
tad 8 aid 93 o? tevo berate baa 280 dtton ode mond ‘thse ‘site 
“agi ‘bias osls oH “x80 tedto on S42 ¥tapth 1 baa Beddds'T * 
“ot bedoot* (ess0 gatbaste owt edd avowted soaqe ‘odd Yas 


sin on bioe en ",tguords og of tao = 16? afdtevoqat dew thine 


ws 









sh Btn ee 


" WOrd ton ob ooy eB" shaded odd dw ox Subd dott “Feor 


$9) 


ee ee Ee ae a, en eee 


gst 26 ‘serad bie’ # Lita 00 | a ¢aebaetas bad eat ¥oa “bth 


#*a06 'T # Laptihaanliesl bya one hed apd ities i 


et = = 
gee a 








b= 


know where it could come from." 


The defendant's driver and his brother-in-law were 
the only witnesses who gave any testimony on the course taken 
by his car just before the accident, The driver was not en- 
tirely consistent in what he said on this subject. He testi- 
fied that the south car was in the tracks, and he was driving 
in the roadway and north of the car in the tracks, On cross= 
examination he testified that he was not driving directly 

. pack of the south car, but two or three feet to the side 
of that car, He was then asked: ‘Well, part of your machine 
was back of him wasn't it?" His answer was: “after we had 
crossed Hoyne avenue, yes gir," The next few questions and 
anewers were to the effect that as he followed the south 
oar after leaving Hoyne avenue, part of the defendant's car 
was back of the south care The defendant's driver testified 
that the south car had not stopped but was still moving when 
the plaintiff “jumped out in front of him." He was then 
asked when he drove his machine to the north, and he said he 
didn't turn it to the north, He was then asked how he could 
pass the machine that was ahead of him and he answered, "Well, 
I was along side of him." He was asked if he hadn't stated 
that patt of his machine was back ef the other one and he 
said it was, “at one time," and he then added, "up until the 
time we crossed Hoyne avenue." Ten this subject was gone 
over again and he stated that the defendant's car never was at 
any time back of the o@her car,~ Tt was along side of him 
going side by side from the time we left Hoyne avenue. uy 


front wheels were about at his rear doors* 


It was for the jury to say, on ail this evidence 


meee 
ey ea ay of 


¥ eort sin00 bissco at erode weal 


onto me mee} 
ne orev whl-aieredterd ati bus tavieb eatiaiiiai Mt ac2'te bas 
- a estos edt qo yacmitess yas eveg ode geansatin feo odf 
: “ie 20a sew rovirh oc? .tashioos sdt sreted tas, tao eld yd 
sifeet oH .toetdun aldt wo Stas ed tarw nt herein Ylerit 
i yaivinh esw ef ies ,odeard eft nt dew 130 déuoe ed¢ ted belt 
, “BeOS nO ,edoexd ot ni tas oft to deen bas Yenbaor” edt a 
—«Bitoersh gatvich ton wae ba Head beitivecd on me ke Sy 
ebte edt of test Sette so owt Fie mo dtvoe od to aed « 
entdotn xuoy to traq .ffew" wadee weds bow ot” von ide Ry 
bad ew nesta" yesw csware wp *9$) Jd tage” ‘mid Yo toed aay 7 
hae anoiteoup wok txon vit Mote ey tier “ental ‘bonboxe. 
Atuoe sit bawolfot ef as tadé ay6tte ods of ox ‘e1ew exowena 
he sténsbastep odd to tteq ewer. eaVoH galvsel totte tao 
a beltiteed revizs a'aebasteh an7 amo de y09, sit to doad aw: 


9 tr gat von fitte ear td beqeote ton tad 220 devs sit tent. 


nor + sen Ce 


} " etibel to taort at $99 Deamul* tei afer. exp 
out biae on baw eftton ont of aettoes (bit evorh sd cede bodega © 


blveo ed wor boxes nodt pow oy ides ott 22 #4 omod #apes-> 
fier sotawene od bas mid te beede Baw tarizd. satdoam ade sag: 
ag bot sta + abed od ts bodes So oH "\aehd te ebie gaots aor To 
sakiosm aid to teeg fade 
ett one. Fa". (689% 82 bise, - 
“:8508¥8. opyoH, hessote ew emir « 
tedt bessta. 81 Dns. atage reve. > 


TeFSO T9800 StF 39 tondomsdoyas - 
_seumevs esyor Pel ow ‘SRit Ont matt obta. XE oble gatog: 


OMe #1002 Taor ene Pence nee 


od bas eno rette Sit to aed saw 
amt Site ge eboekbs saat sd ban ©” 
eagy aon toeidua aide sem? 

en Tove 120 eldnabastop axia 
wid to Sbia gaols - a. 
va 





we 


= Ten 


whether, in their opinion, the plaintiff was guilty of negli- 
gence which proximately contributed to the injuries he re= 
ceived, It has been held in a number of cases that it may 
not be said to be negligence per se for one pass over a 
traffic crossing without looking. The questiom presented 

in such situations is whether circumstances were present 
which might reasonably be said to excuse the failure to look. 
In the case at bar the plaintiff says he did look but he 

did not see anything approaching, It might be eonceded that 
the plaintiff was careless when he Left the street car and 
deliberately ran back in the roadway of the boulevard against 
the line of traffic, although he saw the lights ef an autoe 
mobile approaching. But that situation of danger did not 
result in his injury, ‘The driver of the south car came to @ 
stop, according to the decided weight of the evidence, end as 
the plaintiff stood or was walking within a few feet of the 
frogt of that car and when he heard someone call, from the 
north side of the roadway, “Here is your hat." he was not 

in danger. It would seem that the question of whether the 
plaintiff was guilty of negligence proximately contributing 
to his injury, must be judged by what happened after that 
time. After a careful consideration of all the evidence in 
this record, we are of the opinion that this court may not 
reasonably say that the econelusion whieh the jury reached on 
this question was against the manifest weight of the evidences 
In other words we believe that there are circumstances dis- 


closed by this evidence which might reasonably be said to 


have excused the plaintiff in his failure to observe the con= 


dition of the traffic, so as to avoid being struck. He was 
in the glare of the lights of the south car. He suddenly 





oo 







~tigen to ysilug eaw ttitaisl wat ,sotaiqe ttedt at atodtorter 
=O auf eettwital edt ot betudixtmce Vistant xorg. doide soneg 
yom tt std aoaao to tedmur ¢ at bled Aad Bad ar _ sbevigo : 
_ & 29VO eesg a eno rot 98 x99 comapliyen od of hiss ad, ton 


Heiaeserg moiteevp edt .yaidtoos tuodtiw Balasoro odttert 7 
-taegeng Stow asomstemosio tedtedw st enottautte dove at 
aed Of omuLtst off esuoxe of bias od Vidsaoesst tigi do tdw 
ed dud dool bth ad. eyse tiitaisi¢ ode (tad 18 @aao oF odd, at a 
Halt Rebeemen. 2d tytn 41 .gattosorgs gakdeyas ote $00 bth 
ae bas Tso geerte edt diel ed sede ecelotag aaw MWitatelg anit i? 
oF ; punta busvalued ait te yawbsex adt wi doud nox yLoteredt ie 
_ =etee a8 TO etdy il act wen od dgueds fe ottters 20 eat edt 
; | ton bib tegmab to noivautie seit tut PRENTICE 
89 0meo E88. dtuos att to MOESBR, OAR... OREO At eh ee 
(BA RAR. .oomEbEVD edt 20 tdgton bediogd od¥_ of Batbrons ote 
add to,de0i wet @ aidtiw gatdion saw ao boota Witalslg edt 
Ons mort <iisc emoames breed ed aedw bas tao. teat to tgort 
fea sewed ".tad woy al aron" aVerbaot ont to shia déxon 
(9a¢ tedgeda to goltseup edt sede, mess bisow #1 oPee, f+ 
‘Galyudiztmen Yetenizorq soneg tine to yt ling. sor Tiitnes 
stadt ratte beasaqed tsdv ys peybut ed foum tuba etd ot q 
a cogebive edt Iie to soltterebtanco Listers. 70034 pomtt 
ton yeu duos elds tade etn, O48 1, 20m oe NR mkt 
? Me badoson rut, et dati notautonon edt tad¢ Nes. Nidsqopson 
) ntoashive odt.29 ddpion apettnes ott tentena nan smotteeup abst 
_ eameah Ato metamvetto..2te craft tat gvetied on ahsow,xedea at 
8 BERS Od Udanoanes ty.tm dotdy. eae 
(“Heo edd evreado ot etultat Sif at Witnisic edt eit be, : 
Rew On ~tourte gaied biove of es og woltient one te motten 
ic’ Sldetinde bu! leas abide bad aiiy at edt 26 oxaty 
























































Be 


heard the call from the side of the roadway, ~- "Here is 
your hat," and upon looking in that direction he saw the 
north car, from which a passenger in the rear seat was 
holding out his hat. Both these cars were in the north 
roadway at a stand=-still, according to the greater weight 
of the evidence. The question of the space between these 
two stending cers and the position of the defendant's car, 
ae it was coming from the east, is mot entirely clear. 

T,e evidence is to the effectthat the two cars that were 
standing in the roadway were about opposite the east cross= 
walk of Hamilton avenue, As we said in Elliott v. Trandel, 
227 Ill. App. 359, quoting from Stack v. Hast Sto Louis & 
Suburban Ry. Co., 245 11, 308, "It was impossible for him 





(plaintiff) by the exercise of a sufficiently high degree 

of care, to so discover the eastbound car and not have got 

in its way. He had, however, 4 right to rely upon his sense 
of hearing as well as of sight and to expect the appellant, 
in running its car past another car, stopped for the dis- 
charge of passengers, to give warning and observe the ordin- 
ance of the city in respect to speed. While the negligence of 
the appellant did not relieve the deceased from the necessity 
of exercising care for his own safety, it is to be considered 
in determining whether bis conduct was such as an ordinarily 
prudent man might have adopted under the circumstances, and 
that question was properly submitted to the jury." Applying 
that to the facts presented in the case at bar, we are of 

the opinion that this plaintiff had @ right to rely upon 

his sense of hearing as well as of sight and it was for the 
jury to say whether he was guilty of contributory negligence, 


aa~ 


ai s73Hh" ~ ,yawhsot odf to ebia edt most Lleo edt. caneeil 
ets wee of gottoatthh tade of ga@isooLl. Mog bes. Aad wo TOY 
 gaw dees user adt ob teymeeesg « doidw BOET » (THD, - denen 
dtron oft of siox stad s2ant. stot  ,bsi eld $i0 gmbh Lod 


tdgion ressetg oft of gatbrosoa .iitte~basta #6, ts yaahsor 


anedy agentes | e08qs ont te, i eal aa? se ROMh AN? ous te 
giao etiaehastsh ode Fe meitieog eat bas area. salbaste ome 
_wtseto Rleti¢tas tom, 2i .tra® ody mort gatwoo naw tt ‘8 
e7ae tedt ates ows oft tadtdoette oft od at sonsbive ont 
~yaete dace off stieegge tvada atom ysubsoy odt ab gatbacte 
pdobaswh <wg2elL18 at dies ow ah .eusevs sotlinad todiew 
RB gtved 98 toed .v desde mort anitoup C88 -.qqh oL fT VSR 


wid 20% oidiesoqmt asx #f" {908 Li 89S. 20d) UE medeudne 
setyoh dgid eLtaetertive « to eainzexe ode yd (Yhttmtete) 


. #@g oved tom bas 140 davedtese sit reveoeth og ot e749 Yo 
eanse aid aoqa ylet of ddgit a yrovewod bad oH .yew ett at 
stazilongs edt tosque ot das tigi le aa Liew ee qaiteed to 
ald edt rot heqgote 180 tedtens ¢eaq te afd, antame at 
~athuc out evreadoe bas yaintsw oyly oF <Srogaeeesg te egrado 


| Q % seceyiigna ot elidy .booqe o? tesqaez ai ysio. odd Yo e0ns 


Utesecen edt mort heumeeeb ody eveilen ton bib smallecgs: ot 
| bereblanes ad of af tt yutetse ane aid rt one gatedotoxe to 
| Uitantore nm ea dove saw toubaoa sid vedtody gataimreseh at 
e “fies wesonatemgotio en? tebay betgebs evad ig io nee toobsrcg 
4 se ttst edd of battiedse yYinegorq ase soiteesp tadé 

hh onaceetsgund. ea cenee edt at betneserq stost edt ob tds 
| iene kn aA Hei i Aisi 

Shs te) Saw te bas dg te tons Liaw es gaizeed toes 


2. _ ete Fs o - ste 
Rete se 3-2 ° Aus ees 








=e 


under all the circumstances shown by the evidence, it being 
conceded that no warning signal was given and that nothing 
was heard of the approach of defendant's car until the sereech 
of the brakes whin it was a few feet away from the plaintiff, 
One element fo r the consideration of the jury in this connec 
tion was whether the plaintiff was reasonably justified in 
bis thought that there was not room enough for another car 
to come in between the two standing cars, or whether if, 

in the opinion of the jury, the evidence shows there was 
sufficient room for another car to pags, the plaintiff might 
even then be considered as exercising a reasonable degree of 
eare for his own safety when #11 the other facts wete taken 
into consideration, such as, for exemple, the fact that 

the two cars which had come to a stop were at or about the 
east croeswalk of Hamilton avenue, when, in the view of the 
jury, it might reasonably be assumed by the plaintiff that 
the driver of any other vehicle coming up from the east, 
would observe ordinary care and either come to a stop himself 
or if he attempted to pass by the two standing cars, under 
such circumstances, would do so with his vehicle under con~ 
trol, or at least would not be guilty of such negligence as 
the jury would be justified in believing was the case from 


the evidence presented. 


The contention of the defendant relating to the 
argument presented to the jury by counselfor the plaintiff 
is twofold, First, that part of the argument is complained of 
wherein counsel made reference to the defendant's nationality» 
and second, it is complained that counsel's argument was 
inflammatory, in hat it was to the effect that plaintiff's 


~. 











wil) 


be oes p a 
en 


gated tl ,somebive od? yd awode avonstemyotto ot. ts rebaw 
gaidten tseit bas aevly eae fangie gaimzew cn ee 
: poostoe edo (Citas to ettasbseteb to desorqge od a — 
sttitaislg edt mort Yaws vaet vet s sew ef sade esiard oat 0 
~osngeo eit ai yrst edt to soitesehienco ont t & smnole en0 
a mi bsitifert Yidencsaer sew teed isle odd redtedr voy “wolt 
; £0 tedtons sot dgsone meot ten asy erent tadd sdyuosts tle 
“ «ti sodtedy TO ,Bteo gatbaste owe nett neous od al oaco 03 
ie usw sxedt avons oo ash fv ant evtet oat Yo mp kge oat © 
tig ha tiitalale say «8B8q ct TES redtons rot Rety tao2o2 Thue 








on. serged eLdecoaaes 8 gfietoToz® 28 bexobisace od Res Me nye 
Sa 
aa aout etew atost redto edt {la pra vtolse wae ‘eld rot 9ts0 


Gd bad: a or 
tact tos? odld eoigusxs Tot .Ba dove odds 


Pama satay 
ms R. Bika ah he aha 
as eit tueds 10 ta stow gota s of emoo bad fo tetw exso ont ot ot 
edt to wotv od ai ,gedv .sunevs motlimell Yo _XLewa207 tease 
aa a 
‘Sadt Tidsaisic sit yd hommes od idenonset tap in, et aut 


. tae, edt mort qu yalmoo elo idey tendo wma te tevith 
ii Pests ae 


i, ‘tisemtd qote 2 of omen tedtio bas exes vesatbre | 








Be £6 WEES pt ges 

Saba .ateo paibaate owt odt yd sasg ot botquesta od 3 10 

es eee . sla 

_ oteo robs eloidev atd dtiw oe ob bivow 2880.08 fey 
f rt ERG 2 a x iby Og 


_ SB eomegitzgen dove to ytling ad tom biuow tase 3 @ sleet 


es week 4 ed 


- mort eee0 od? aan goivetied ai doftiveyt of biuow yuu ont 


bee senweq sonshive edt 

SR SHAR seg 

Gi of galtaler tnabasted sa) Yo mottastaos easy foe 
oe | PMieeiele edt reRLenmico ‘YS Yret ond of doeaseeTy taommyte 
«Yo bewkelquer ef taommyrs one to dung todd (tenet sbLotowt at 
pean a'tasbasteb off ot beseidbtiibminaiesieantesioninind 
(Raw tnouugts et Leansen $9dt bemksiquos 92 91 <haepea has 
(Nt atele tart toette oft of aww oh ted al gmt fink 


























= 


-10- 


“very life" was at stake; that the case was about to pass 
into the hands of the jurors for a final determination of 
whether the plaintiff "shall walk out of this courtroom with 
compensation for the very, very serious injury that he has 
sustained or whether he should leave this courtroom without 
a nickle and you should consent to acquit the defendant in 
this case, * * * JI say to you that you know this mn is 


placing his very future and his very life in your hands," 


As to the first point urged against counsel's 
closing argument, it is urged that an attempt was being 
made to direct the attention of the jury to the fact of 
the defendant's nationality and "endeavor by subtle means 
to use that fact against him.” As a general rule, it is 
best to avoid all reference to the question of nationality 
of either of the parties to a law suit, We are of the 
opinion, however, that it may not reasonably be said that 
counsel for the plaintiff by what he said, was endeavoring 
to prejudice the jurors against the defendant because 
ef his nationality. In this connection it may not be 
amiss to observe that counsel who made the argument against 
which this contention is made was himself of the same nation- 


aloty. What it would seem, from our examination of the 


- atgument, as it appearsin the record, counsel was saying 


to the jury was that the three witnesses, the brothers 
in the north car, who had come to testify for the plaintiff 
and against the defendant, could not be said to be over 


zealous in the stories they had told in the plaintiff's 


behalf, because they were of the defendant's nationality. 






~as~ 


























apog of tyoda ast ses odt tadt jedste ts eaw “odtt vray! 
«fo goktamtureres Lent? » 10% exo) sit te sbaad ody otmt 
—— sigtw mpoxtuuog aict to tuo Alsw Ifada" Tiitalalg edt sodéedw 
ee esd od geld yrubai evelxee yrov ,yxev oct a0% aolsseans, 
duodtiw moottiuos atdd eval biuode ed tedtedw 10 Bt rl 











: ab iaghaoteh pat, dkenge ot sagacer bivede soy bas biota s q 
ay pi stax eidt wood wor état oy of Wak * *% "seem ehdt 
4 *ebasd iwoy ai eltl yrov eld bas exude? yxev etd gatoata 


At fennuoo tantegs boyww faicg tertt sdf of ek | ae 


gated esv gamoste na tad? boytw at $2 .tasniugté gatsofo 
to toet oa of yrut odd to nottaests edt Yoorth és ‘Cham 
anager Sitdva yd torseioe" bas ytifenciiad tnabasteb ‘silt 7 
ai v2 ,efer fesemeg S oA (“win Gamage tost sade say ‘ot a 
ywilssoitan to noitsexp edt of sogerstey Lis Biovs of tesd : 
sd¢ To ote e® ative wel # ot sattaaq edt ‘Xo ‘redt te To 
vedt baa ed Yidsacrass ton yaw th tad? yrevewod | nolnide 
| «<galtovsebm eaw .bler od fade yo Thivmlelq edt TOF “Lee ativo 
“eavaosd Jasbaoteh edt senisus etext edt Sekhbterg et 
ed ton yeu tf molveemaco aidh ol Wiifenostad’ att Yo 
tetisge Saswiyte eit eben odw Leenves tadt ovreads OF aeitae 
“HOLten omse ott to Meamid eew shsu ak métsitevnen e Mt “do iste 
edt to nviteninexe wo moxt geeee bivow #2 gene Uyetie 
gaiyse esw Ieenvos ,brecst edt atetaeyqe FL es .tasmigts : 
_ Btedterd silt eonsoatiw garde odd teat Dial dt of 
- Mttatedg ont rot vildast of B09 bad one <t80 stron, ont at 
tavo od ot saosin ad ton pier sPashastsh edt teatage, bas 


om e'ititetats ont ak blot bet volt esttote ttt at pyptoge 
. ‘Wthteaoiten e'teabaoted dt Yo ous xed 
i va eae Bae 


RL Dae 


















we owe tte Be ae wale #4 Chee see 





=-lLl- 


We find difficulty in seeing in such an argument any effort 


to arouse the jurors against the defendant because of ie 
nationality. 


| As to the second point urged against the argument 
presented by plaintiff's counsel, we would say that in our 
opinion, no such argument should have been made. it was 
quite contrary to the fact, for plaintiff's life was not at 
stake and he was not putting his life in the juror's hands, 
Counsel should have limited himself to the questions which 
were really for the jury to consider and decide, This was 
auite apparently an attempt to arouse the sympathy of the 
jury, by extending the subject matter which was being placed 
in their hands for decision, beyond # point warranted by the 


facts. However, it is equally apparent that the attempt 


could not reasonably be gaid, in view 
tiff, as 


aid not succeed for it 
injuries received by this plain 
that in awarding bim damages 


of the very serious 


a result of this accident, 
amounting to $7,500, the jury had been unduly inflamed by 


any improper argument. if the jury reached the econelusion, 


from the evidence in the record, that the defendant's driver 


was guilty of negligence, (and the contrary is not contended 


here) and that the plaintiff was not guilty of such ne 
(and as above stated, 


gligence 


as proximately contributed to his injury, 
we do not feel the verdict my reasonably be said to be against 


the manifest weight of the evidence on that issue) there was 


ample reason to be found in the evidence relating to the 


plaintiff's injuries to warant the assessment of damages at the 


amount fixed by the jury, without the jury bein 
anything plaintiff's 


g in any wey 


affected, to the defendant's prejudice, by 
counsel may have said in what may be considered his over=- 





ae W 


5 frotts yao taome te cn dowe af gatess at yeioodt Rh bath we 
aif to seusced tushaetab 20d tamlegs ssowwl edb wavots sot 


Cart: eerter 


tinewgts odt tenisya bogts taiog Baooes oft ot ék* | 
asc ai ted¢ yer biuow ow .foxnvoo efttitaiste yw wonneinns 
sew ff .ebdw need Sved divede taomsyta dove on ynoimtad 
ts fon wie OT SITE nial TOT .toet Sas of yrsatde “ed Evp 
.sined elrogut sd¢ @i stil ald gatetud ¢oa eaw ed Buk elste 
Ho idw anoitesep aia ot tioanid bes iwtt aver biveda fe aaued 
sew aid? -ebloob bas rehlasoo 09 wx edt xo? Ulsor exer om si 4 
ost te iti eqmye ong sauors of tqnotse a8 Utastagge et tup 1 
besalg gnied sew doidw tes ten tostdue et pathanem MM oveat, 
edt yo otnerzew ¢ateq s buoyed «foe tomb ror -eband ated? at 


‘dqmetes oft ted? toarecqe vl Lan at it st SNE oe 


aTovewoH _setoat, 
wolv ai bias ed vidsaosaer ton fisr00 at tot besoowe bem bib 


ee ,ttitaiele etd? va | bovisoor eetxotat evotzea Xtev edt, 30, 
POS ig fh 
eegsenh mtd yatbrews at tent etnebioos etat te » Puree A 
ye benattat Urb need bad 7 
vat ot 008 ¢, ere 
. V8 of pee R ee ket er 


«fo Law Lo1100 “oult bedoser rt edt “a taseugss 
oe zevitbh ‘a*tasbrsteb ang vede brooer edt ) 
ot , a, ‘sonebive a nos 


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4 eoneg igen dowe to Ve Ltug ton ase *titatela ads tat baz Aexed 
3 


A shotate eveds as bas) _eeeat at etd ot betuditta09 Nes, aes 3) 
 teniags od ot bias og ep ony 





a 
ds, 
oe 
oy 






ek. 








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sow erode (ounet ade x0 eonab ive oat to tiat0e ‘tet 


EB a7 cn ate an 


out of gattator eonebtve at at Dawe ed of 
ery eiqua 
AEP RRR DS 


; ait te omar to taoneseoas Co fnew ot eoiwtat taints 
— ra at anted a oat 


Fucitte oust ont Ve Rex? tauone 


‘etMtemteig gatdeyme yt .sotbytera ettashasteh edt of betoents | 
Hi “nove elf betshtenco ed ver tare at bise evad al a fee, a 


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~lz- 


zealousness to impress the jury with the seriousness of 


the plaintiff's situation, 


For the reasons we have given, the judgment of 


the Superior Court is af firmed, 


JUDGMENT AFFIRMED. 


TAYLOR, P.J. CONCURS; 
O'CONNOR, J. DISSENTING: 


In my Opinion there should have been a directed 
verdict for the defendent as requested. All of the evidence 
shows that plaintiff was injured as the result of his owm 
négligence, The two cases cited in the majority opinion 
as sustaining the contention that the question of whether 
the plaintiff was guilty of negligence, was a question for 
thejury, are in my opinion, in no way apt. The facts are 


entirely dissimilar, 


In Elliott v. Trandel, 227 I11. App. 359, a boy 
alighted from a standing street car which had stopped at a 
regular street crossing to discharge passengers. tHe passed 
around the rear end of the car on his way across the street 
and was struck by an automobile traveling in the opposite 
direction in the oparallel street car track, 


In the case of Stack v. East 8+. Louis Ry. Gov, 
245 Ill. 308, a person alighted from a street car which had 
stopped to discharge passengers, passed around the rear end 
of the car and was struck by another street car running on 


@ parallel track in the opposite direction, It is obvious 


to Segepay ieee edt Atiw vrut edt seotqnt ot weg a 

: mo ktawt be etttitn iy edt 
CAS Wan Ses Ge 

te tuomgdut od? ,aavig ovat ew esoaser oft 107 £ Lamekt as 


»bomritts ef tru00 sosxequea ads 
Sy eM id OF De hy 


el 4 


horwee Oey 


PRWALTHA THERDETY, ’ 


gtietirde 
at ytavtnoy ed iep 
{QHOOKOO VL .6T | HOUTAT 
Leusngionapadl ot JIOMMOD4O 


ree clans feb 


| betceribh & s9ed aval blucta oxodt nosnige. . a qe oe ue 
 gwo eit to #iuset ode aa bexupal saw. Phlpelaly, #ah?, aeeep 
moltixo ytizoten ede at bette asaso. ort oft  ,soneg aligen | 

— isided® Te sottesup edt dade soitaednoo edt gatnisteve os 


Si PON ae 
not neiteeyp # daw: omgiizen te ytiiug gow 2ittaisl siq oat 
hic Bl 


Yeev 


ova aveat var ytqe you oa al okelae ve ah OTs .yee 
. rat MD 8 melinteat ¥: shine 


arene 
_ yo & ) 828 aaa ffl 988 Usha wv HORE arses ui 
. 8 te bewaote bad dotdw rao teerte gatbnora act bObdg tte 

: _ besweq ail + eregaacnsg egtedoath ot gataeoto toot e ‘TeLuyor 

* im _teonte edt ‘asoros vow eid ao teo ed¥ Yo bine tHer ont paueta : 
a ettaoage: oat a gatlovers: slideaotis na ‘Vd doutte eae bats vy 


“tosrd ‘x80 e toda’ ny old at mortoorth 


ae #0 Dh eae Say 
. i sR doate, 0 neo ‘itt, i a aan 
7 pan ‘ohabetuhin 140 toette 6 mont betdgt ie as eh ed a” itis 
Bae geen add pavers beseag .etegae aT eatatosth of 1 
" f #. ere e LA, ants tar Na af 
are ab 33, afots 4, it Lig oF ey z 

ee ” ae 














30 — 31140 DAATA C 9a 


CG. Ae OTIS, W, A. OTIS, S. E. KLINE, ) 
G, S. EATON, M. 0, HARNEY, RICHARD 
INGLIS, Co*partners doing business 


as GO. A. OTIS & OO., 
Plaintiffs in Error, ) ERROR TO 
CIRCUIT ODURT, 
COOK COUNTY. 


Ve 


CHARLES T.. KNAPP, 


Defendant in Error, ) 


Opinion filed March 2, 1927, 


MR. JUSTICE THOMSON delivered the opinion of 
the courts 


The plaintiff partnership brought this action 
to recover an amount claimed to be due from the defendant 
Knapp on a subscription for certain shares of corporate 
stock, pursuant to an agreement with certain other parties 
who, with the defendant, entered into a syndicate to deal 
in this stock, with the plaintiffs as managers of the 
syndicate, The case was originally instituted against 
“Charles T, Knapp, personally and as successor to Charles 
T. Knapp & Cos, @ corporation, and as a co-partnership." 
During the trial the plaintiffs, by leave of court, amended 
the praecipe, summons and declaration by striking out the 
words, "as successor to Charles T. Knapp & Cow, 2 corporation 
and as a co=partnershipe” At the close of the plaintiffs! 
case the court gave the jury a peremptory instruction to find 
the issues for the defendant, A verdict to that effect being 
returned, judgment was entered accordingly, and the plain= 


tiffs have brought the case to this court on writ of error, 


OSLis = 08 
\. vipa toes \away 
“ gutaa ae ‘2 -BITO A W «BIT n'y we. 

GAARDIA VRRRAH 8) GM ROTA. 482 uD° 

asontend yatob etant .SlIDUL 

«009 ms aT0 oA * as 

Of ARORAR ( ,rotrs of &tisais(t 
eTABCO TIUOALO 
s¥THUOS AOS 


( 
{ ,xotr® al ¢osbhasted 


oVGRL ,4& fotek haitt noiatd 


te rene edt Sberevitsh “OBMONT OTR fl 


‘ttw09 oat 
aie pets fe 


oites aidt tdguord qiderendieq ttitaisiq ody | thes 
teabasteh odd mort aub ed ot bsmtelo tavoms as revoosT oF 
eterogroo to setada aistreo tot soltqitoadue @ 90 qqscd 


astitsq zedto aistiso dite tuemestgs ae of taawerua foots 


feeb of otsotbnye 8 ofat berate <tashasteb edt At Ewg8 eh 
eft to atessaam 28 ettitaisig ot add iw. ctoote: eae at 
tentege botudivent yleaig ito esw ego esi? 9 | 
soelrssD o¢ Tossesoue ef bas —— acon ame 





The evidence submitted in behalf of the plaintiffs 
showed that they were a co—partnership and were the managers 
of a syndicate relating to the common stock of a corporation 
known as the Producers & Refiners Corporation, Those who 
entered into the syndicate joined in signing a syndicate 
agreement covering the amount of stook which each was to take, 
Under date of January 15, 1920, the plaintiffs received a 
letter signed "Charles T. Knapp & Company" in which the 
writer stated that they had signed the syndicate agreement 
and were enclosing a duplicate copy thereof, showing their 
subscription for $25,000 par value of the common stock 
ef the Producers & Refiners Corporation, On March 18, 1920, 
the corporation known as the Charles T. Knapp & Company, was 
dissolved, A certificate of the dissolution of the corpora- 


tion was introduced in evidence, 


Under date of March 350, 1920, shortly after the 
dissolution of the corporation, the plaintiffs received another 
letter signed by Knapp personally acknowledging receipt of a 
letter from the plaintiffs, stating that the stock syndicate 
had expired on April 1, and that it had been decided to dissolve 
the syndicate at that time, and requesting Knapp to take up their 
participation in the syndicate. In this letter Knapp went on 
to say, “We have been endeavoring to arrange for a bank loan 
which wi]l enable us to carry this stock for a period, but 
have found it totally impossible to do so * ** We can see 
no possibility of taking up our participation at this time, 
though if the stock can be carried for a reasonable time 
until we can get some of our other commitments out of the way 
we will be glad to take care of this." 







x Qo 





ettitatala edgy to tileded al bettindue ana 38: OAT ye ee 
,ewg ne 

aregsiem sit stow bas qidereadteg—op & eT. veitd ta sl 

noitsxogros & te woods mommeo sit oF gaitefot et go tba “a ko 






ow saod? ,aoitsrogtot etsaiteh & atsevbert ed¢ 8s wont 

























atecibave s gnimgts ai bentot eteoibaya sdtotat beretns 


 ,glaé of asw doses doidw dooce to tmroms edt — tromeoTgs 
[RAH 


& bevisost ettitatiaiq edz ,OSer Lote wraunal ‘te pe gp ze9bau 





\ ‘ edt doidw at — 4 qqend it ee lned® beagie retiel 
an $meneotg = et ao ibaye adi bongs bad yodt tadt betste tet icw 
i | tieds saiwode ,tostedt yqoo staoliquk s eerie tnd etew bas 
doote momuos edd to sufsv tag 000,888 ‘sor nottqizosdue 

.O8@L .8f dots 90 .acitarogred eteaties 8 oxvaton nak oe 
BaW .Yasgoo) 2 cqeck .f salvedd ed? es anondt moiteroqroo sdt 
~stogzoo odt to noituloeeia edt to eisoltitass A wheviosetb 
,conshive ai benubortai saw molt 


gRoOTS 





x edt retts yisrode O88! 08 doxay ‘to etab reba oi a 
ie  wedrons bevisoet etlitmtaly edt .s10 88 er0Gr09 ‘odd ta no lewloueth 
wg Yo tqteosr gaigbelwonsos yt Isnoareg a so% ve _Domgis re¢te4 
a etsolbaze Soote odd tart gaitede erhitaistg ont a 
- evfoeeth ot bebloab need bad #f ted? bas ok titqa 2 boriqxe bsd 
en es ost ot qqenst gaiteeuper bas .smit tert ta et oo tb eo 
mo trow casa nettel eid? al .staoibaye fray nt sottstiag as 


“age! aned 8 ret sgcsrts of gairovsshae aed ovsd ha 2 avan of 
8 i gin ae 














Gite Be 


- ‘dud -boiteq # Ot dnote eins yxte0 of ay ofdene Efiw do 


, i ae 
_ eee aso oy ** * On of ot fd texoqmt eiiatot tt 
; x0G8 9h CaS 


cout enat ts nottegtoiinag mye qu aabies te yltdtesed on “¢, 
: Ly BUHRaL Bs 


_ emits oldaccenet s tot betris0 ill 80 oote Fer ibe tk boieien 
ms, i 4 8 OTN SY 


Ԥ od one to t00. etment tum00 redto zu Ey enon e3_a80 2 on Liten 
. abd to exeo sist of bela ed LLiw ow 






ay be 


wm ew 


The evidence of the plaintiffs showed that a 
number of letters passed between the parties relating to 
this transaction. Under date of April 21, 1930, another 
letter was sent to the plaintiffs, signed, "Gharles T, 
Knapp," which was in reply to one written by the plaintiffs 
concerning this subscription, in which the writer said 
“our situation has not at all changed since our last letter 
to yous We find it totally impossible to negotiate any 
bank loan at this time, We will be glad to take some 
action in this matter just as soon as it is humanly possible 
to do so," In another letter dated May 13, 1920, signed 
“Charles T, Knapp & Co., per ©.T.Ke", the writer said: 

*T have been absent from the City for some time, * * *~ 

we wrote you sometime before my departure, stating that 

on account of unusual banking conditions we found it totally 
impossible to take up the remainder of our participation in 
the syndicate now, “** The only suggestion that we can 
offer at the moment is that you figure the balance due on 
our participation after crediting us with our proportionate 
share of the profits of the syndicate, and that we give you 
our note for the net amount, due day in 90 days, you holding 
the stock as collateral.” After receiving this letter the 
plaintiffs addressed a letter to "Messrs, Charles T. Knapp & 
Company," following the suggestiog in the letter just re~ 
ferred to, stating that the amount due was $15,282.80, and 
enclosing a note to be executed for that amount, Plain- 
tiffs next introduced another letter, signed "Charles T. 
Knapp," acknowledging receipt of a letter from the plaintiffs, 
end calling attention to the note which had been sent for 
execution, and in this letter the defendant stated that 







ait 






















s teadt bewede ettisoatsia edt te eonebsve of ) 
ot gnitefexr aeittsq aft ne oud oc beaasg aretiol to redasin q 
wectons ,OS@L .{& fixga to etab rebay 00 Htomenant aide 


e's" 





my 
Tas 


yt esitsdy " ebsmgte att itn ieig “7 OF tase bad “rotter 


attis¢aisiq sdt yd asttixw sao of viqex at asw dot | Ms ' <qq ead 
biae retinx oAt doidw sé woitghzeadss: aide _gutmzs0a00 


any) 


ree ee ae sS a 
are a 


Kk 


“qedtel tas to sonte begasdo {ls ta ton aad nottautte two" 


“28 J 


yas etsitogen ot sidieeoqmt ullatet ti Hast oF «HO 
a once atss ot ~-hals o¢-[ hive -s#° ,omit eidt 28 eos £ and 
sidtesoq Yinsmud af tt es coca as taut rettem aidy ak sottos 
bengte eOS2L .of ysM heteb settet redtons nl ; 1208 ob | oF 
sbige teticw oft . "3.2.0 teq ..00 & gant, a a0! {nant & 
Bikes some eno2 tot wsto edt wert tusads Fay sy Mead fy ad i! 4 
sade guitars ots L8q2b a eroted ont? enoa HOY, - aren on 
Ulistod #i bawot ow agoitibaco gained bone eenlern 4 ie imeee wee. a me 
ai aeiteqioitisq tue to tabaismerr ad? quay eins ye eidiesoqms 
aso ow tt cettesygue ylao sd? * * * Won etsotbaye odt 
m0 aub someisd edt orugit soy tadt ef tasmom edt $a TPte 
etanoitroqerg two déiw ‘ee atts tbox usrts aot satetensg v0 
a goy eviQ ow tedd bos ,8teoibaya ort to etito ty “edd Yo ‘erede 
os gathlod voy e@¢sb 08 af yak ‘ome ainuoms Jan ond to ‘eon 90 
ui nine git wettel side gatvisog: rettA “. Letet eto as abote one 
+ qn +? eeizsn) ,aveaasi" of rettel s besteerbba’ ettitmisiqg: 
vet teu tettel elt at goitesggua edt gaiwoltet™, yasqmod 
has .08,888, 216 exw wh havens odt taid gattste .ot botret 
wmatelt .tavoms dent ret betwooxs od od ston 8 grkeo rns 


. owl eofted0" bengta: tottel redtoas beowbotial txem eth: 


















Bitih 
reat 





mh 


he was unable to find the letter forwarding the note, 
and he concluded something must have happened to it, 
In this letter he asked the plaintiffs to florward a 
duplicate of the letter they had sent enclosing the 
note, together with another note, "and the matter will 
receive our attention." The proof shows that the 
defendant advised the plaintiffs "that the firm of 
Charles T. Knapp & Co. (an I;linois corporation) was 
dissolved and its charter surrendered in March, 1920," 
in a letter signed by the defendant under date of June 
16, 1922, 


The attorney for the plaintiffs testified that 
at a given time and place he had presented a statement 
ef the account between these parties, to the defendant, 
showing at that time a balance due amounting to $5,281.25. 
It appears that at that time the stock which this syndicate 
had dealt in had been sold and the defendant credited 
with his share of the selling price, The statement of this 
account was also excluded upon objection, In our opinion 
it was admissible, The lawyer for the plaintiffs testified 
further to the effect that when he exhibited this account 
to the defendant he asked him whether that was "the account 
between him and Otis & Coe on the P, & BH, stock proposition," 
and he said it was; and further that it was a correct account 


and if he had sixty or ninety days he would pay it. 


The argument submitted by the defendant in support 
@f the judgment appealed from is based on the contention 
“that it was necessary for the plaintiffs to show (generally) 
previous transactions of a mometary character as a founda= 


tion for the proof of an account stated," Even on that basis, 





























bee 


<oten odt gaibtawre?t rettel odt Sait et eldsnoy ecw od 
ati o¢ Beasgqqsd evad teum gaidtenes , Deby loaes, 94, Saal 
gs braewroh ct attisaisiq edt bodes ad aettel eit i 
edt goicofoas tase bad yedt tetteL ‘dt to.etsedfquh 
ifLiw xretden odt baa* ton tedvenn dtiw redtogot ston 
edt ¢sdt ewode toomg od? "sot nosd. 8.10 evheoes 
to grit ont tedt" attitatele of? 2entvba ¢asbseteb a 
asw (noiterogros eiomit i a@) .ed & qgeel .T 7 4 

" O86 ,dotel af bovobnetiwe tettade ati bas be rf 4 
aa to otab 19bay tashbneteb edt yd. ehiaatial xottes, ti al 


SSeS f 1@f ; q 


























feud baftitest etitvnisly sft tot qearotts ‘oat ae ice 





snosetate & bedaeeaxg bad of eoetg bats emtd wi 

etsabao ten adt of ,eeitueg evedt avswted }aiddel Si itd en 
B85 188.88 ot gaitavome out sonslad & omit ted as ‘gatwods 
Re (Staoltbmya eidt doidw doote sit omits tect te sade etzoqqs ‘tt | 


ve oid 

betibeto trabasteb edt bas blo gesd had at ‘#laob bad 
Es ic Milan ee a 2 

iss to teemetate ont okra gatifes aati te oreda ats aigtw 


i og 7} 
Et Ae Weve * 


| mo tatqo 700 gl saoitest de sous bebuloxs oala aa #musoo0s 


R ie ikem hy ah 3) 
_ bettitess gititaieilq edz x0t rToyNel oat 0.0 eeinbs ese t $1 


’ wa eiiy 
paucoos eidé betidides od aadw tat tostte out of edt 


if tauooos ott" eaw tect wediedy mid bedas ex tasbastob od “ee 
+ Baby ore oe wis te . 


ee enOld Leoqeta foots % sf sit mo sod & arto bas mit bemoed 
: yooos tosrree 8 eae ti dadt tedtenvt bas jaow tt oy ‘od ba 


% es ats ato ae 
ati Yeq biuow od auab Loken xO wate eae pe ti bas 


Mi yes ee ieee 
ftroqque al tnahneted eft yddbettindue tusmugrs ef oyn 6) )) 
 foltaetnoo edt ao heead et motk beLsoggn daamghut: adi 30 
lars nea) wore: ot ataata aie odd cet yiseseoen secon 





—5e- 


we are of the opinion that the testimony submitted by the 
plaintiffs was sufficient to make such a showing. All the 
argument submitted in support of the judgment was based on the 
theory of an account stated, whereas the declaration filed by 
the plaintiffs in this case included all the usual common 


counts. 


We are of the opinion the plaintiffs made out 
& prima facie case and the trial court, therefore, erred 
in directing a verdict for the defendant at the close 
of the plaintiffs! proof, 


The judgment of the Circuit Court is accordingly 
reversed and the cause is remanded to that court for a 


new trial. 


JUDGMENT REVERSED AND CAUSE REMANDED. 


TAYLOR, P.J.AND O'CONNOR, J. CONCURes 


ata 
edt yd bods imeie wronttest edt stadt hia’ “ede “te “e " Sele 
eit Ifa gaiwods ¢ doe siam of foto ite ihe inhale 
mo besed asw fromgbert ait to trecqua of barb beand oe r 
i petit noitevslosb od? anetode jbatate feucoos na te eroods 
 pemaie teweu od? tls pebulont aso etdt af ettitmlelg he 


HSS he 4 AT ee 
vedmeo 


Lea dqpehsre Ree 
tuo abem ettitaisle ode panicles odd os ania ne kee 
horte ,oroteiedt ,tavoo sits edt bas aso: Stost smieg & 
. a0 fo ant te dastacteb edt 19% soibaev. # gattoortd, at 

Toor tettigaietg edt) to 


‘Ulgatbroces et txwod sivoti) 90% to ¢aemgbyt, oat 


2 ein paivoits 


’ 


ee Fy wee 3 ye +e Shc & 


diaek bes 


moO 


vas ne tou inhs omy aa 


S 


bait” OF ‘aedtn 
T SURES 3 ob ont ae : 


iit Me td noawt od 


Labey hs fad aq ‘bat 


q : ny Peo yas: y 
LR AB seed Mf <2 bas 


Ny ; - 
Nee é ss é bios i 


aif is ‘ene see Ke iti i a he 





Fd = 


44 = 31156 
GERTRUDE REITER, ) 
Plaintiff in baron, } 

ERROR TO 
ba SUPERIOR OOURT, 

HAROLD J. REITER, } QOOK COUNTY. 
Defendant in Error, ) 

: 3 8° 


Opinion filed Varn 2, 1927, ‘ 


KBR. JUSTICE THOMSON delivered the opinion of 


the court, 


By this writ of error the complainant, Gertrude 
Reiter, seeks to reverse a decree of the Superior Jourt 
of Cook Gounty, dismissing her bili for separate maintenance 
theretofore filed against the defendent, her husband, for 


want of jurisdiction. 


On October 3, 1923, the complainant filed her 
bill for separate maintenance, charging her husband with 
cruelty ani adultery. In her bill she prayed for an order 
of ne exegt and also a writ of injunction. tpon the filing of 
this bill of complaint, summons wee issued and given to the 
Sheriff of Cook County for service. Op, the reveese side of the 
summons the defendant's address wes given as 241 W. Van Buren 
Street, and there was also written the further information 
that the defendant was manager of the “La Rau Fastener Co," 
Summons was duly returned, showing personal service on the 
defendant, by a deputy sheriff of Cook County on October 6, 
1923, Upon the filing of the bill of complaint the court 
ordered a writ of ne exeat and also an injunction writ to 
issue without notice, The complainant filed a ne exeat bond, 
and the record shows thet a deputy sheriff of cook County 
















Baste - oo 











- anne ounnase 
( grows ai whale ra Boe Cette 
“oF “AD : 
a! oe eto ND a, ‘is ue fh. 
(B50 mLAAIE vv 
i wat 
Ber % 3 
on oe : vena aga 
} stOnTe ei fash beth ee mere 
A @ wos ~ bbs rc. | ae 2 i 
© Gear Ele doa MY: so har bg eS Oe Ok ae | 
oe ae Shy nt oa 
to sebatge edt ) betenstos woauont wrra agp 


PR ae sae 


ee re. tae age. his 
shied Ten «taad afoaoe oct sents to stew eldt ‘ 
$2000 voireque ott ‘te saree 8 ovxaver “ot ‘wheos ution 

so memeta tent atetanee ‘got inte od gatusimath .yenued geete bie. pee cay gan he 


apt 
. got eandewn tod ,tnabeteb sdt temieys, botkk éototereds 





roo O9Sft tuentatynon off ERR, .& cada rae 
dtie bradeud t3d akg tee pcitame caeoee etarecoe 08 ithe 
uh Waa tube’ 4" if te ty ay 
TOhHte ws «ot Soeyary one ftke xost at “ted Lobe man ye foure 
a te cia oct noqy .ncttonuiat te tiny » cafe bas seoxe 2a to 
i rte ot nevig baa bouset cae enone tatelqmoo to Ite elds 


ot ‘te apie eesever odd no so lvtes 20% Yraweh aati to _— 


£ 


nome nav WY 188 ea mevin ast eastbhba alte hee’ ® eit e a 
aeitanvotent vedduut att aotdinw als saw otedd bas tue 
5a) Tenntent veh ad” adt to tegsanr aew Parhaereb ony tant 






<B ‘Téa mo Ware Aood Yo Titeeds yom 





“dime tanae an + Da | sal " ; il 
" Bhewap 2900, ko mine ; 





ms te ° tae 


LE ee pe ee a ee 


wit wo eotvres Lenceteq gatwors spoons vib saw enomme 
deb A yt tnebaoted 
traco adit tatetemee biel Ente ett dovchsamieit wd i si m 


=Z— 


personally served the writ on the defendant and took him 
inte custody on October 5, 1923, The writ of injunction 
wae likewise served upon him on the same date, Thereupon, 
also on the game date, the defendant filed hie general appear- 
ance, and on the following day the court entered an order, 
on motion of the solicitor for the defendant, reciting that 
the complainant was represented in court by her solicitor, 
and after a full hearing on defendamt's motion te quash the 
writ of ne exeat, “and it appearing to the court that said 
defendant Harold J. Reiter is engaged in business in the 
City of Chicago and upog his representations to remain and 
gare for sis wife and children,* it was ordered that the 
writ of né exeat be quashed, 


Under date of October 16, 1983, the defendant filed 
his answer, denying the charges made age inst hia by the com- 
plainant in her bill of complaint, Among other things, in 
connection with his denial of the charge of adultery, he 
alleged that in July, 1922, the complainant had caused him 
te be brought pefore the Municipal Court of Chicago on a similar 
@gharge, where the court discharged him. In connection with 
his allegation concerning his property and income, he alleged 
in his answer, “that he is employed as a2 salesman and manager 
of the Chtoago office for his father,* and further, he 
denied *that he would depart from this State and go beyond 
the jurisdiction of the court." On November 13, 1923, the 
defendant filed the affidavit of the treasurer of the *Rau 
Fastener Company’ in which affient ews py ase Mareld 4. 3 
Reiter is employed by said Rau Fastener Com .” This 
af fidavit was apparently filed in connection with a hearing 
On & motiog by complainant for alimony end solicitor's fees, 


se Bre 


ass 


mis soot bu sashaeteh edt ao 2ixw aft. howxes paver 
soltoamiat toe tice oc? Oa .8 aededn ‘to Ybosane ‘eben 
wMoqverent tab sass ai? no mid dome Doves estweals aaw 
tasgqe Lstadeg aid Dellt ganbeeted ode .stab oman oft, mo ools 





eXebeo a6. ered sm Pure ade yab gaiweliat ed? ao bone .S0na 
seid onmitionr ,toxbasteh adz tot cotiolfor ‘aiid to no kt ou to 
wrotiotios red yw tuveo at potamawreot aaw teantalqmoo edt 
aay tasup oF ao kt om, a emule e eh se pauivaod [lot a tetts buns 
Sina gant sxeroo od? of gaineongs id bag* festa an te tine 
edt at eventesd at bogages ‘al ‘weston .& bictee tanbacteb 
bes afar of snoitetnoeetast aid oqw Saez opa iit to ‘to Wi 





ye £0 
edy gedd baxebto eae tL Symenbhitde bas Ode mid cok @tao 
shodemue ad Joey om 20. tine 


Ae ty 
ally iret) ae 


betit ¢mabagtab oat .e8er of redetod Yo otab hat 
hoo add yd wkd teatese oben weg rede ‘oat gained ‘terons ‘eid 

gi ,agnicd testo gacmd 8 ytriafqmes te tke ‘nod at tusaiata 

afd ,ytetives to eytedn ott bo deinet ati mite mos toenneo 

atd houwee bad thanialomon off _. GRRL, tio’ as dadd beyotte 
ealinks a ao ogemadd bo deed Laqtotawd. ott omoted, Iiyvord ed oF 
déiw costoeamen ol ois heguasinedh txame edt oyode », ogtade 
begelie ail ,gmoeai bua Yrones¢ afd gatereome mottegolie afd 
trate bas Aemeles s ee Seyotems al of dec” growaae wid, at 

at redtrut bak. Sgneiteh eid sob ook The oyepdm@,.oft Ro 

baayed eg hae state ofc? mort traced bLuvow gab gadt" heineb 

yi act ,fROL 81 xodnev@liin® “sixwconh edd Yo sottosbabanty odt 
: aka” odd To tenement add To dived tte edt, Hele gashawked 
ib biosait vane _ee faeke ie doide ah. yasqaed saseragy 
ote? Wanted TaMseaMe orAh bikes gf Hegoleme es cokes 
Btiqeod « atte meitosaren ot balit yitaerange mew divebth de 
ao tonmenaiew fine WrOMLie gOk tase Lalgmos: Dl adetaillaaal 
Se “Esdras ict Lt A Re ar ite baat eh i?" hoionad 








wo dee 


The affidavit covered the subject of the defendant's 
salary, on the same day, the court entered an order 

for alimony and solicitor's fees to be paid by the 
defendant, On January 15, 1928, the complainant made 

a@ motion for the entering of # rule on the defendant to 
show cause why he should net be punished for contempt of 
court for his refusal to comply with the order of November 
13, 1923. Tne court found that there wes due the complain- 
ant, under the former order, the sum of $2784,00, and that 
the defendant was in default te that extent, and the rule 
prayed for was entered, On February 17, 1926, there was 
a substitution of solicitors for the defendant, and on 

the same day, on motion of the defendant, the court 
erdered that the cause be dismissed “for want of juris- 
diction of the subject-matter, for failure to allege resie 
dence of the defendant in bill of complaints” 


The statute giving 2 wife the right to bring 
an action against her husbend for separate maintenance, 
provides thet i+ be brought in the county in which the 
defendant resides, The bill of complaint in the suit 
at ber should have conta ined/ juriethensenns allegation. 
But the allegestions of the bill of complaint did not affirma- 
tively state facts showing tha: the defendent did not live 
in Gook County, and the record shows that the fact is, 
we ddes live in Gook County. Thie is not only demonstrated 
by the return of the Sheriff of cook County, upon the sum 
mone, (Raab _v. Raab, 160 I11. App. 554) but it also appears 
affirmatively from the allegetions of the defendant himself. 
This precise situation was before this court resently in 


Plotnitsky v, Plotnitsky, 241 111. App. 166, where it was 


Se” 


_— i = 


ats 


attiakcotobh est Yo sootdne ont Gexoveo Phveha te wet 

xebre of Soxsty degen Sat yeah Rs ete a petition 

ott ye blag ot of vot yl tetint toe Gna yitaats 26% 

Sbke #utrtetawon ot \O80L OF wieonks BO \.dalubadtob 

a} tosbosieh odd a0 ofes & TO yolvetne 667 TOT mEidom Gs 

to vqmasitoo rol beratary ed vor bivede emt Yaw ome’ wolle 
gsdmerot to tebe sit ctae qlee ot loathe ghd teh ubraee 
oni atemen Leah pub pew ayedy taf, barok teuco ary VOL QSL 
fadt one GOCRSNRt to mop ode Lolo Tense em wobete (tas 
etvn odt baa gnats Saat oF ¢bew'tob ab aow dmabeated ode 
ecw onodd 0082 .TE yreundot 00 vheretan enw wor beunte 
£6 See tmebweres act tet avetingvoe to nottudigedue a 
truss ad# Gashceteh odd tw action ae ue onise: ‘eid 
mee To eae Tot" heewtomta od omag ont tadt berebro 
|  wheet wget ts od omar te? wot stent andoot dia, ont 28 moitatp 
“gabelqnoo te sotel mt diminored nas te eons | 





kG 
gtd of sdyls SG atte © gabvky evintets emp Some 
Woereaste tan stevaqee tot Saadeut wed dertape nettos x6 
ont dotte at qWaveo om WE duigvoud ad 42 ede wep trory 
tive om at seancaanae = itid of .eehteow taadaoked 
a ltage ita Lacie tbton dina \VWwatetace owed divede ead ts 
~marhtis doo AL tuialquos te Llid add to enelgagetie ont dum 
oh tom oho tavinetay edt omit gadtwede wtoak wtate yhovat 
ett tent odd dad? ewode broces oat Das oy ydenred’ dood at 
betatiannmed ylao dan Sf aba? sytated aeod hoethl woth md 
“aire side mow _¥tume Hoot ko Wwe och Te mmabeD ede yd 
acon Omar at eae ‘(ane Qa LLY OBL, Bae dae) canon 
stlvents tishyeteb add Ro mmokhaye lie ott moet yLowkhowes Wit 
at: Utmonee t2n60 oade wroteon mae neva 
eee OL onette Gat vw itt LOG vay “hed kere eo 








mies 


held that a bill for separate maintenance, brought by a wife 
who resides in the county where the suit is brought, which 
fails to aver that the defendant is a resident of that 
county, but contains no allegations showing the contrary, 
way be amended so as to aver the jurisdictional fact ree 
quired to bring the case within the provisions of thestatute, 
' The chancellor erred in overruling the complainant's objeo= 
tion to the defendant's motion to dismise, Complaint 

should have been given an opportunity to make the appropriate 
amendment to her bill of complaint. 


The decree of the Superior dourt is reversed and 


the enuse is remanded to that court for further proceedings. 


DEGREE REVERSED AND CAUSE REMANDED. 


TAYLOR, P.J. AND O'CONNOR, J. CONCURe 






foie tfguons #2 Yue oft wren nen tare pee . 
fast Ye ) eaok ee # al tinea ot et se ot af 









ean tnat Inno ntorseaet odd xera of a ow. 
sebutt atest x0 ant tebverg ot aratte wean ode sii ae hee 
~et de et smamtsfqmo> ‘ail ganety wixeve ak Berets stenineennpdinadlll 
i es — a od aottom icometanindl auld 
"putas id hi wet ot ‘tn : 


















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ilete es SU Aas th Pr ill 








OHA set oun 
ie ce 





nae € i) 
Ba) “ 
a 
bie as a 
Hadeas need Nien 
I ac ee 


it A BAS Se iin ee Wy « i’ Waa te! Y 
AON GaN BUI co ane Sate Ne 


BAR ee m neh Uy Hsia Be , a 


Pe Se 





300 = 31163 


THE NORTHERN TRUST COMPANY, as ) 
Executor of the last will and 
testament of GEORGE LILL, Deceased, 


Appellee, 
APPEAL FROM 


Ve SUPERIOR COURT, 


COOK GOUNTY. 
WILLIAM S. PACE, ET AL, 





SANFRID HARNSTROM, 


Pes 


Appellant, ) 


Opinion filed March 2, 1927, 
MR. JUSTICE THOMSON delivered the opinion of 


the courts, 


George Lill, now deceased, to whom we shall refer 
as complainant, filed his bill in equity to foreclose second 
and third mortgages on property located at the southeast 
corner of Sheridan Road and Foster avenue in the City of 
Chicago, owned by the defendants William &,. Pace and his wife. 
The bill recited that after the making of the two mortgages 
held by the complainant and also a previous first mortgage, 
to secure a bond issue of $200,000.00, Mr. and irs. Pace 
had conveyed the real estate to the defendant Harnstrom, by 
quit claim deed, but although that conveyance appeared to be 
absolute on its face, it was not intended to be such, but on 
the contrary, it was exereashy agreed between the parties that 
the premises conveyed by them were to be held by Harnstrom as 
security for the sum of $25,000, which Harnstrom had loaned to 
Mr. and Mrs. Paces 

It was alleged that Harnstrom, claiming to have 
become the ower of the equity in the property, under this 








ane = 008 


4 a ayoaee bear ratty ee zt - : 
( hele ae 





~besssoed ,ldld SOS@aD _ 


wOH'E JATIIA ane ; 
.TAUOD AOIMATE wee sti : 








pe yet < 
+YTHUCO HOGO : 
i A TH DAS AB waza ’ 
‘ ta ‘ ~ ape a ew aoa : 
i » . ; 
£20 .A:1 pb - somBHAA arama 
L9RGI 4B deoveu SeLit soimtg® sigs 4 
Xo moigtqe sit borevifek HoeMONT SOLTauL ja. 3 
pier? ale Zi 
ee Mee fee i q 

«eter [fade ow modw of ,beessoeb won ,ifid sgrosD i 


baoose seofoerot of ytiupe at [itd aid bef? gfnsnisiqmop an 
taserivos add te betsool Yrsgorg m0 esgegtrom Stldt bas 

to yi edd ni ovnevs <steo% bas beok asbirede ‘to reax00 a 
ue .otiw ald bas coed .@ met(liW etashaeteb edt yd beawo .oysoidd 5 
y asgagizrom ot edt to gaitem sdt rterts tedt bet foer tiie edt 

















se ,egegtrom taril eveiverq ¢ cals bas tasaialqmoo ody yd bled 
= ORF st bas sei .00,000,008$ to evsat baod & exuoea of 


dads eeitteq eit neewted boerys yienexgxe aaw tf “extariace edt 






eS 


: 26 motsantsil yd Bled ed ot sow modt yd beyevace esatmerq edt 


5 ot beasel bad mottenteh whidw .000,388% to nase edt tot we | 

ky - s808F vem ‘bas + 

si“ OV OF Qeiwislo .motteniei tads begelia oow 2 a 
ss gidt tebaw yytaeqora odd at wise oct * vow 





a 


ie 


quit claim deed, was in possession of a part of the property 
and collecting the rents, in @isregard of the rights of the 
complainant, as the payment of both principal and interest 
on the two mortgages he held were in defaulte The bill further 
alleged that one Grossman claimed some right in the premises 
as a mortgagee or creditor, The bili made Mr, and lirs. Pace, 
Harnstrom, the three trustees under the first, second and 
third mortgages; Grossman, as trustee, and Lackner Butz & 
Company, at whose office the principal and interest was 
payable on the bonds under the first mortgage as such amounts 
came to be due, parties defendant, 


The defendant Harnstrom filed an answer to the 
bill of complaint, denying that he held title to the property 
as security; alleging the Paces were not indebted to him as 
alleged but that they hed conveyed the property to him by a 
quit claim deed for a consideration of $30,000e¢ 


By supplemental bill the complainant Lill set 
forth certain payments he had been obliged to make on both 
principal and interest which had fallen due on the first 
mortgage bonds, and had not been paid by the Paces. 


The defendant Harnstrom later filed his crossebill 
in which he alleged that the Paces had not been indebted 
to him at the time they executed their quit claim deed com 
veying their property to him, which was on October 27, 1922, 
but that on that date, for a consideration of $30,000,00 they 
had conveyed the property to him in fee simple; that there 
had been no agreement for the reconveyance of the property 
between him and the Paces, He alleged that since the con= 
veyance of the property to him the Paces claimed to be the 








A 5 ee recs * 


aie 


as Ca 


yirecorg edt to treq # to folegeweog ai ssw. shot Laie ‘a 
ont to etdyit odt to Bregevett at ,atner oft gutioeL too. bir 
teotefat bas Iagionitg ditod bd terse aq. ait as suanhihigen 
 wesgaut [lid ent stiInueteb mi exew bied ed eogagitom owt ody a0 
sestmetq edy ai tégix smos bemisio aameaor) emo stadt begeli« 
(G0e% .atN bas .1M sham ‘lid ed? ,rodibexo, TO segegtrom 8 as 





bee baoose ,tertl ot reba eeeteutt serit edt ona anal 


ner 


A niwG temrlosd bas <seteuid ee <aoue20n) 28 





trom bx it 


sae geatetal bas Legion ing edt soitte ssedw ts ,.yasqmoD 
etavoms dove as egegttom tarit edt tebaw ebaod edt ao sidaysg 
# : leita beni en ed ot smao 


eat o¢ sewens os Bbslit moxrtvendtsH tashasteb oat, a>. 


‘yrreqortq edt of eltit Biod ef tact gmiyaob tabhoeabs ‘t. ffi¢d 
as mid o¢ betdshat ton Qtet g20e1 84d gaigelia syeinvose as 
By mit Of Ytroqota st Bayevnto Had ysdt tad tod bogetts 

4000,.08% to noitershianos s rot Hash sikets tinp 


Seis) Te tarred 


toa ate sneha. edt ILid aremwet on90 126° 

_ Ated so siism ot begiide seed bad ed atnemyeg atstxe0 stzot 
tak edt so eub ae list bad doidw teeretat bas, isgleaiag 
(x8noat edt ve bisq seed ton bad bas. sabnod sgagtitom 


(i —«*Fetedsaaets etd berrt taser mors anda saabaotss odp "PPE 
© © pegaebat ‘nS0d Fea Bhd dosed ads saad bey Tth dade rie Rt 
=itoo Deeb mialo sisp ‘tiens bestwoexe yadt emit of¥ Fa mtd’ Ot 
"str (98 tedotao no pew doidw paid oF Wresorg tons Zalyev 
. Pi sen 00,000,068 to mottstebienod 6 rot estab tent ao! Fille" the 
eredd tedd yelqnta ost musth ot ysveqotg ent “Hoysvnds bad 
Bi: Wrsqot¢ edt to eomeyevmocet edt 16% sashestge on no ed bad 
a “n09 oft sonie tedd Degelie 6h .e6oKd Odd “Bae mtd agewted 
ens sd ct hemtsfo seat add midOd YereqoRd ete RS BONS 











~=Beo | 
ewners of the property and that his title was only that of 
a mortgagee; and that om February 26, 1923, the Paces had 
executed certain notes and & trust deed conveying the pro= 
perty to Max Grossman, as trustee, and that this deed had been 
recorded and that Pace had filed an affidavit in the Recorder's 
Office, alleging that the deed given to Harnstrom was a mortgage 
and not an absolute conveyance, according to the agreement 
between the parties, He further alleged that the third mort= 
gage, which involved a trust deed to one Dawson, had been 
executed by the Paces for the purpose of paying and releasing 
@ certain judgment, but that this judgment had not been re 
leased but had been assigned to the complainant Lill, who 
had become the owner of that mortgage and that for that reason 
the consideration for the notes and trust deed, executed in 
connection with that third mortgage, had failed and was not 
@ lien upon the property, but a cloud upon Harnetrom!s title; 
and that his title had further become coulded by reason of the 
trust deed from the Paces to Grossman and the filing of the 
original bill in this cas®, alleging that Harnstrom's title 
was not a fee simple title, By his cross—bill Harnstrom prayed 
that these clouds be removed and his fee simpel title should be 
established and quieted, 


Mr. and Mrs, Pace filed their answer to the original 
and supplemental bills of the complainant Lill, admitting all 
the allegations therein set forth, Demurrers were filed by 
them as well as by Lill to the oross=-bill of Harnstrom, which 
were overruled. The Paces then filed their answer to that 
eross=bill, in which they admitted that on October 27,5 19225 
they were not indebted to Harnstrom, but alleging that prior 





= 





“Fo tedfd vnc esw oftit eid ted? bas yerooorg ‘silt Re sxomwe 
bed esoed adt ,SSCL ,88 yraecrdsi mo ted bas yeyagttom 6 
=0rq edd gaiyevmos hesb teotd & bas aston aistreo betvoexs 
& gosd bed Beeb eidt tat bas ,setett as  neneeery) Ket Ot Yuey 
‘stzebtooon edt af tivabitts se beLtt bad sost tadt bas bestover 
egegtxon s esw motteatsH of mevig beel edt tent yatgelis ,eoltte 
trsmeeras adt o¢ saifsooos ,soasysvaoo sfufoeds af tom has 
strom Bridt edt dedt bogelis tedtrut 6H” \hettitsg edt moewted 
geed bed ,xoewed omo o¢ besh feutt s beviéval do rdw pegey 
gaianefor has gaiyeq to sevctuc sft rot atest off yo besageRE 
ot asod ton bed tnomgbut eld} sand tod .taomgbut mietxd5 Ss 

onm itl tasmisiqnos edt of beagises need bad ted beasel 

noseex tedt sot dadt bas sgestrom teat to xsawo ot emooed bed 
at hetuooxe .beeb teutt bas eeton ent 102 moltatebtenoe eae 

gon egw bas belisl bad _sgeytzom btidt tedd dttw. “soitoongoo 
joitlt e'mottentsH aequ buofo s tud .yireqerg gon ty fea i 
edt to moeset vd bebivoo smoosd codtist bad efiit eid tact bas 
ods to gaifit edt brs aznceowy ot stoxt odd wort bsod tauxt 
olttt e!mottenitel tect grigeife .exeo aiid nt Tite feniytro 
; — words eats Ilid-seoro wid va ,eloid Siqsite O8t 2 don wew 
ef bivode oftld Iequte sot etd bak bovener od ebwolo “eaeds Pant 
vbevedup bas bodalidatee 








fentgizto edt of tewecs tisdé betit vost jeri Bas ,aw “oy 2! 
iis patti tabs eft dared oft to ellid Istnemefgqua brs 

wW belit oro ‘etetiumed ,dtrot tee nisradt aaottagelic edt 
to htw notional to [fideeaoro edt of Ifid yd as few es mods 

tet of rowan ‘aheds ‘polit medd g2087 od? ,belerteve etew 
S80 otf redos00 no Sade bettiabs wet doidw at pfftd=esor 
roleg teas gatgolio tud “poeta of 2 botdenat ae og 





ia a nate MM a 











5 


sore 


to their execution of the quit claim deed to him on that 
date, they had made an agreement with him whereby he was 
to loan them $25,000, in consideration for which they were 
to pay him $30,000,00, with seven per cent interest, he 

to take as security for this loan a deed conveying the 
property in question to him; and that it was in pursuance 
of that agreement that they executed the deed in question 
and delivered it to him on the following day, The com 
plainagt Lill also filed an answer to Harnstrom!s cross 
bill, alleging that he had no knowledge of the facts sur= 
rounding the execution of the quit sini! i teenies 
except such as he had received from the Paces, He alleged 
that Harnstrom's rights in the property wére subordinate 
to his and he denied that the notes and trust deed from 
the Paces to Dawson were given for the purpose of paying 
the judgment referred to in Harnstrom's cross—bill, but he 
alleged that they were given to prevent execution of that 


judgment and that he had later purchased the judgment. 


Mrs. Pace filed a cross=bill alleging that she 
and her husband had borrowed $25,000,00 from Harnstrom and 
to secure that loan with interest, together with an addie- 
tional sum of $5,000,00 charged as a commission for making 
the loan, she and her husband conveyed the property in ques= 
tion to him by quit claim deed, which, however, was not in=- 
tended to be an absolute conveyance, but, under the express 
agreement and understanding of the parties, it was to be as 
for the security of the peyment of the loan with interest; 


that she had offered to paybthe loan and the commission, but 


Harnstrom had refused to receive it and reconvey the property. 


She alleged that the loan was usurious and prayed thet she 





ue ah 
we 
ey 


ject no mid ot beeh mislo ttyp odd to acttvoexs tied? of 

aaw od yorsiw min dviw toomectgh ae oben bad yout’ .oFkb 

orew edd Motte tot aoitsreblanco at .000,a8% edd aol’ of 

od <deerssat uso req moves dtiw 00,000.08 nik wea “od 

ad¢ satyevmoo best s msol aid} ret ys twoew as exer ot 

eee phptionwtars ai ssw si todt bas quid of motveoup at YroqoTa 
- goktesmo mi Beeb ort Setucoxe ort tadt taomeeTgs tent to 

moo eff sab: gatwolfot oct -mov-mtd of $2 borevites bre 

~seoro efmorteantah ct towams os belit cals fied teantetd 

~tus atest a - eybeivend on bad od tudt gatgelis ,ifid 

‘hi ebadainiiie ab aan tiop edt te amoftuoons oft gaibminer 
Segeile sH *.e95si edd moxt Sevisost bad ef gs dosa tqeoxe 
stsqibrodwe eew yereqoty ond mi edge s'motsemt gh’? att 

moxt beeb tavxt bas aston edt ted¢ Detned od Hab Gld OF 

_ yatysq¢ te sacqzsg edd cot meviy etow moewed OF e6oed Sdt 

‘of tud ,fiid~asoto e'worteateH af of bettetst tasag bsp ods 
 tadt to moftusexe tnevetq of aevig etew wut tedd begets 
stsomgbyt eff beeadotaq retel bef ed gedt Bae tdembut 

Sa 5 > wot foam eeareet 
3 , ede testa - gagel ta Iftd~aeoro 2 bolt e008 om, raahaage 
eu. bas mort eats moxt 00.000 28% bowoxzod bad basdaud zed bas 
< ei etbbs ae ote xedt got teotedat ag bw aa0L tadé ersoee oF, 
gniden sot moleelmmoo of beg t8do 00,000.88 To mug mum Samoks. 
“soup af yiteqorg sit bayermco basdeud red bane mea etsol adt 





rey Ct oe 


oem ee 
tage ies aot 


: , mal tom esv .tevewor .doid® .bo9b misio tinp yd mid of molt 
is «BH 8d OF aS dL ,~eeltrtsq elt lo gatbastershay bas trenderys 


_ iteeretal dtiw nsol ed? 20 tnemor ot to yim ee orth rot 
| dud efoleatmmoo ed} bas asol edtdysq of boxvetio bad ede sede 
: stiregorg edt _XSvRo09 = bas ti evisos: of beawtex bad moxtesnpy 
on _ ate tat beyexq bas avoimwey asw oP nih andy heap he 


i 








Dee 


might be relieved from the usurious part of ‘the agreement, 
and that upon repayment to Harnstrom of what might be found 
to be due him, he should be required to reconvey the pro= 
perty, After demurrer to this cross=—bill had been over— 
ruled Harnstrom filed his answer, denying the allegations 
of Mrs. Pace's cross—bill and setting forth again the sub- 
stance of the allegations he had previously set forth in 


his own cross—bill, 


Isgues having been properly joined on these plead= 
ings, the cause was referred to a master, who, after a hear- 
ing, submitted his report to the Superior Cour$ of Cook Gounty, 
finding the facts to be as alleged by the complainant Lill 
and the cross—complainants, the Paces in their various plead= 
ings; that there was due from them to Lill, in principal and 
interest on the second and third mortgages and the principal 
and interest he had paid on the first mortgage, an aggregate 
of $70,375.72; that the conveyance to Harnstrom was intended 
and agreed by the parties to be a mortgage and not an absolute 
conveyance and that there was due from the Paces to him, in 
principal and interest, less certain rents he had received, 
an aggregate of $23,583e18, There were certain other findings 
by the master which need not be noted here, Objections were 
made to the master's report by the defendant and cross-complain- 
ant Harnstrom which were overruled. @hese objections were 
allowed to stand as exceptions and later they were overruled 
and the chancellor entered a decree granting the relief 
prayed for by the complainant Lill; dismissing Harnstrom's 
eross—bill for want of equity; finding that the conveyance 
to him was in themture of a mortgage and not an absolute 


conveyance and that the loan made by him to the Paces was 





«is 


tmangergs sit to ¢asq eucitay sit sott bevei fox od *idy tm 


* SreP 
hauot ed tiyim tadw to mottedtsh oF 7 nomysqet oq ‘gaat ho 


=—o1g edt yevmooar ot betinpst od biuéde éd cad ob ae 0 


~tav0 mod bed [itd-eeote ald? of toxtumes rest _s#r0g 
ancitegelia edd gaiyaob < TOW Bs aid belit smowsanmrail bo ir 
-—dva edt aisps Asrot gal¢tes bas [itd~eaors ae Aedes be 
nt beirdushs tee ylavoiverg bed ef enottage tla om Sonne 

: -{1td-seoro so etd 


-bsel¢ eaett a6 hemtot ylrsqenq reed gatvad aeyest Jo . fcc 8 
“teed s tot ts yori tedeen & ot Herisisr ssw sevso” add‘ yeget 
eYimugd goed to drw00- coiveque add oF groger afd betiindue® ygxt 
Lid tasmieiquos edt yd begeiie ag sd of etos? adt gntbatt 
~beelg avoitevy tiedt of esesd edt ,atasalisiqmoo~-anoroedt bas 
bes faqionizq ai ,iip] o¢ medd sett exb esw etedt tadd ygegal 
fsqionitg edt bas segagérom Sridd bas haeose edt so ¢tesrodat 
Stagstags as ,sgegtrom ¢etit edt so bisg bed od teoterat See 
dbebastat Gsw motteatsli et eonayevsco edt tads {81,3 VE,0%8: to 
| ‘wtniania ae ton bas egagtion s ed of nekenay eds basis Pamintion bas 
ai etd a agoe% edt mort eub aew otsdd tide bas ‘S0.BYSVAOS 


Oi Crim, +44 Erm 
ae bovieoot batt ed etaer nistr00 acef tector bas ieutonkwa 


ILA OR ft 


— agatha? tefto nkst aes sT9W ore dT 855888 889 to ‘erage 8 a8 
3 DE 4 pits ho 
ozew aaoisos(do — _#9ted heton od ton been do btw tetosm ody a 


5 82S .aeot i 
| tts fam00~eaots bas taabasteb edt yd preges eo xet eau add ot ebsu 
¥ Ye Sid oF mole 
‘ _ otew, Stet Foeide enon? »bolutt9¥0 eTew fo. | MOTH ent AH tas 
* Be at RS ae 
belutzsvo oTeW Neat retal Sas ano teqooxe as baste ot bewolls 
YAS bagged 

_ teifes ent gattaary eeroab s beretas tel feonsdio a ane 
of CS Bae & Te x 
_#'Mentaneal, suteaanth jitea fasnte.quoo ast ‘Wd sok boysrq 
» Somsyevgon edt tale go ibatt Aytiops te tasw tot {itd-eeore 
Lh, oe are pete 
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ba Saetgee s Pie es Be wget fe “ltt 
Sew etoet edd of mid <t Mban mand oat oe ee 





=-b— 


usurious; and that the amount he was entitled to as 

of the date of the decree, was $25,822.60. The property 
was ordered to be sold subject to the first mortgage, to 
satisfy the amounts due to Lill and to Harnstrom, Other 
incidental relief was provided for, to which we shall refer 


later, 


Harnstro; perfected an appeal to the Supreme 
Court on the theory that a free—hold was involved, That 
court held that a freehold was not involved, and transferred 


the cause to this court, - Lill v. Pace, 320 I11. 522, 


In support of the conclusinn that the debt from 
the Paces to Harnetrom was in the nature of a mortgage, 
the master found that at the time thet conveyance took place, 
the property in question was worth about $450,000,00 and that 
the encumbrances then outstanding against it aggregated 
$226,435,00 “so that at the time of said conveyance to Harn- 
strom the property was worth about twice the amount of the 
mortgages then outstanding against it," and it was therefore 
not reasonable to suppose that the Paces woulld have sold 
their equity for $25,000.00 cash, The master also found in 
thie connectiom that the deed from the Paces to Harnstrom, 
although reciting a consideration of $30,000.00 had only 
$6,00 in revenue stamps affixed to it, which was the appro~ 
priate amount required on notes and evidences of indebtedness; 
whereas if the deed had purported to convey an absolute title, 


thirty dollars in revenue stamps would have been the amount 


requireds 


It is the contention of the appellant Harnstrom 








L She Ly 
3 eg \ 4ahy 
C 
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ir ‘ Bo oe ee 
$ es ot beltitne ean ed savoms edt dade bas jauso tweu 


yeteqorg ent 6.08 888,888 asw eotoe oats to tsb ont to 


iL Bes nr 
o¢ ,egaegiton tarit eit et toetdue bloe ad o# | berebro >a 
e 5h re iv g 


sede .moxtentaii of bas [ffg ot oub a? mons edd ytaltse 


marie? Ps ere 


restex Ifede ow doidw oF eTot bebtvora lal tei fer sao nebbem 


void etotel 

1 Hey Ts. somes 

emetque edt ot [seqqe as betootiraq gotterted ne wid 
tadt .bevicval esw blod-sexrt s tad Nueces ods 0 tisod 


My ia % 


bexze tansti bas hae tovas gon e8w biodser? 2 fads Mot aay | 
it HE Oe eS A ane ah Se 

mort tdsb edt tad? natevlonos odd to sredque aT geihait 
aegegitom s to sxutad edt ai aw mordentel ‘oF wooed ‘ot 
weld Aoot soneysvmoo ¥sdt omit edt te heads Davot tetesw edt 
tadt bar 00,000,088) tuode dttow asw notteesp at yreqotg eds 
e betegevggs tf tantegs gaibastetvo oedt aeomatducons ont 
* “igh of sumeyevavs bise to omit adt ta ded? og # 60 Sb BERS 
: edt to tavoms edd eotwt tvode dirow asw yitedbad 6He woxte 
sretersdt eaw ti Dow “di taniegs yaibastetvo sods wegegtiom 
Sioa eved bifvew ecoed oft tant seocque er Sinai Sli 

» si bavet oelse totess ext  ,deieo 00,000 28% Tok whipe ‘heitt 
| gMOntsatgl of 29264 ont mott bos ont rie sort oeinn06 |b Litt 
Yao bed 00,000,08% to aolitetsbianco s gabtioer dyvortTs 

— teTags esit gen dotdw ti of bexbtls equety eumevat #to00,0$ 
« jteenbetdsbat te ssenebive ous weton no. honipes: taobhe) wentig 
— e8isit etulosds ae Yevaos oF befrogiyg bsd bes writ tb esorede 
tome edt need: SERIE RN Dntoee: ne eraltoh yeuide 
ae lype to fg ca | bextuper 
ei Re te ake ot pie md ov 


wortenral asl tecge oat to soMaebmes ests bet ar ned 
EG) ae are ae dade Bi 












Vas 


that there is no evidence in the record to support the 
master's finding as to the value of the property, In 

our opinion the record dees not bear out that contention, 
Pace testified that the fair market value of the property 

in October 1922, was between $450,000.00 and $500,000,00, 

On cross-examination he testified that in 1923 he had listed 
the property at $380,000,00, “in order to get cleaned up." 
One witness testifying for the plaintiff gave it as his 
opinion that at the time he was testifying, (November, 1923), 
the property was worth from $325,000,00 to $350,000.00, 
Harnstrom was the owner of the south half of the block 

on Sheridan Road in which the Pace property was located, 
Another witness for the plaintiff testified that in 1922 
Harnstrom told him he had been offered #440,000,00 for 

his vacant, and he expressed regret that he had not sold 

at that time, The man who placed the first mortgage on the 
property to secure the bond issue said that they placed a 
value on it "for loan purposes" but not for sale and that 
they considered its value on that basis at the time of the 
conveyance of the Paces to Harnstrom to be $365,000,00, = 

it would "not be any less, I think the general tendency 

in that district has been to go up,” 4 witness who owned 
property on the west side of Sheridan Road stated he was 
offered a price per foot in 1922, "before I remodeled," 
which,applied to the property in question, would give it 

a value of $342,000.00, Several witnesses testifying for 
Harnstrom, one of them being the father of his son-in-law, 
gave values as low as $250,000.00. Even if we took the 
view that the conclusion reached by the master as to value 


was somewhat high, ell the evidence in the record, in our 








is 


ant txocauva o¢ broper edt wt eomebive oa et erside” fait 

a2 .vtreqote sat to onlay od ot oa gatbalt efor eae 
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ysteqora edt to eviav fedten thet sat tadd boitivast’ ade 
00 000,008 bas 00,000,08M4 neewted sow . SSO rl ted0to0at 
betatf bad ed SSCL at todd beititeet ef soltanimexe~ae0ts ‘n0 
‘qu bomesfo tog of teabto al" 200000 0888 ## ytteqotg edt 
eid a8 3i eveg itivaisiq ot tot galytitees Besant iw eq 
(888 rodmovol) patytivest ean od omit sit. eset cnet 
100 ,000,088% 09 00,000,8889 sort dttow eaw ytregora edd 
doold edt to tied djvoa sdt te tenmwo edt ssw hicasikion 
sbefacel aaw yerejore oceT edt doide mi B@o® asbireqe mo 
@oOr mi tedt boftisees Ttisatote $a tok aednd iw teddona 
tot 00,000, 0889 Herstte need bad od mtd blot MOtHeat AH 
Siow ton bad ed tend teceer beeterqxs of bas ,tatosv ata 
edt ao @payttom tetit od¢ Beosfa odw mam oft pomld dedd de 
& beosla ytd ted! biss Sueet bod ett exueee of Yeteqotg 
‘ted? bre efee tot ton tud “seeoqeag aeor tot” si no BuTev 
“ed} to omit edt te etasd tedt co evisy oti Berebtaace yds 
= 00,000,888 of of mottemtal Of e808T ond YO SORRYOTHOO 
qonsbited Lerewey ont Antty T sseer yee od ton® Brow #2 
benwo odw sesuttw A "seu og OF aod end ¥otztRRD deltd ae 
Gow od dodate bao aAbIredé to bie teew Silt ho YPxdqota 

* bolebomst I Sroted™ (Seer at feet oq’ ealey i 50tuthe 
th evig Dinew ,aottessp nt Yteoeorg edt ot bubteq AMS tite 
eT gadyiivest eeesentiw axeveg 00,000,869 to estar’s 
( tekwatenoe aid Yo Tedd AY eat gated invite ‘to ome wort antel 
add Soot ew tL cova oa 
oviev of es teteem od? yd motentonos edt sade woly 





et S 


1u0 at ybtone: ed¢ at leis iule ote ‘Its fat ¢ 











fn 


Opinion, would, nevertheless, justify a conclusion that it 
was very considerably above the aggregate of the encumbrances 
against the property, and, therefore, the master was justified 
in considering this element of value as an important one temnd= 
ing to show that the Paces would not have been willing to 
part with their equity in the property at that time for 
$25,000.00 or for $30,000,00, 


Appellant makes the further contention that the 
evidence in the record fails to justify # finding that there 
was a debt created from the Paces to him, and that as there 
was no debt there could be no mortgage, This is based on 
the further contention that the Paces never promised to repay 
him at any time. It may be that there is no direct evidence 
of an express promise to pay, but that is not necessary 
to support the finding that shove was a debt. There is much 
testimony tending to show that it was not only understood 
but expreasly stated by the perties that this money was @ 
loan and was to be repaid in the course of three or four 
months, and further that the agreement between the parties 
was that the deed from the Paces to Harnstrom was to sonvey 
title to him for the purpose of security for the repayment of 
the debt. Pace testified that in the fall of 1922, he and his 
wife and Harnstrom hed been close friends for some time, They 
all lived at the Edgewater Beach Hotel, He said that he 
had a telk with Harnetrom shortly before this deed wes given, 
in which he told him that he needed $25,000,00 and that Mrs, 
Pace had consented to permit him to borrow that amount against 
the property she owned, which was the property in question; 
that he told Harnstrom there were two ways of accomplishing 
it if Harnstrom was willing to let him have the money, One 





as 


ie ti tedt aodeyiones Yitten;, «eeelodizeves .bivow .meiniqe . 
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’ “beet enc tastrogmt os ea outsy te taemeta. aide. gatrobleage al, 
ot gailiiv ased aved toa bivow eeost edt _tsdt wo da ot gat, 

uot eatt ted? ta yirsgotq edt mt YWiupe tied? dtin dreq. 
100,000,088 10? zo 00.000,888 







odd tac} aokenednoo todivavt oat eoaae taatiogga”” *' °° 
stodd an? yatbnit * ytLseut of eList Srooét sitt ai boitebiy 
sxost a¢ ted? bas wid of 908% ed? moth beteito tabs olw 
ao boned ef eit} ,egegttom om od Bisod' otsdt ddeb ‘on Bae” 
-ysqet of bewlmotg r9veq eo00% odd tact achiaetmos Teds wT edt” 
sonabivs tosrib om @2 atédt fads od Yew FL yeh yas $8 md 
c tesecosa ton et tal tud ,veq od eptetmy eedtqxs ai to! 
dos ad STOHT 4odS5 & sew SrOns todd Qeibalt edt seoquue OF” 
— heotereba Yfto fon caw th dead woe Of gatbast Yhomisacd” 
8 aaw yenon eit tadt eottrag odd Yo botate Yleastqxd Hod° 
diet 10 astdt Yo catues Sut af Bisgst ed of gaw bab aot’ 
asitrsy oft mowted themootgs ott tadd eodeaet ‘bis ettaom . 
“yevaos of @o% mottantell of cee! odd mdvt Beeb ode Fad caw” 
to tromysqet. odd “cot gtiaose to gs0grug oft tet mbit ‘ot eld tt 
wht bos oa 80 ‘Go tae as “Hi Head’ nditig bad bide’ adh Oe" 
‘yest sonlt n02 ‘wot abaotzt sacle meed bad mortai ‘bas etiw 
a ae tedd bse ex | ,ledou desea vosawonha’ od" +s bovit tts” | 
_— qtovig aay boob edd sroted YLtxoe mordamznit abtw aiad w bait” 
ie wma tat hho 00. 00d Bk octet stoned abd stadia! fotan a “a 







: es i a 
eS ee ee ee a ee I ee ce eet ee Le a GP ee a eg ee ae eee ey 






















ror to exon owt’ ee tsdt 
ay il ‘Veron edt oved mid ead ot abbvcae ts veh + eave tt #1 








ate: 
way was for Harnstrom to take a mortgage, "and the other 

if I do as I did with Dawson about five years ago when I 
borrowed $22,000.00 from him and pat up the deed as 
security", He testified that he told Harnstrom that the 
flirst mortgage of $200,000,00 on this property had been 
reduced to $190,000.00; that the amount due Lill was 

about $26,000.00, and that due on the third mortgage 

was about $12,000.00; "and if I get this from you it 

would make about $253,000.00", He testified further 

that Harnstrom said he would not be interested in a morte 
gage “but if I loan you the money on the deed" he wanted 

to know when it could be paid back, and Pace replied that 
he could pay it in three or four months; that Harnstrom 
wanted to know where he would get the money to pay it back 
and he replied to the effect that the second and third 
mortgages were due and the holders were pressing for pay~ 
ment and his plan was to put on a new second mortgage to 
clean up the two that were due ‘and also take care of this," 
He further testified that Harnstrom replied that he turned 
his money pretty often and he ought to have 20 per cent "on 
@ loan like that," which would be $6,000,00 on a $30,000.00 
loan; that Pace then explained that he only wanted $25,000.00 
and he added "I will give you $5,000 or pay you back thirty - 
for the twenty-five when we pay you back," to which Harnstrom 
replied, "All right, I'11 do that, But I want it understood 
that I will want you to pay me 7 per cent interest on my 
money while the money is out," to which Pace agreed. Pace 
testified that Harnstrom added "I will finance you for 

that amount of money." He further testified that he tried 
to get Harnstrom to give them some kind of a guarantee “in 








Ps 


redto sd¢ baa" ,ogsgtzom & ost of moxtenital tot sew yew 
I porn ogs ereey ovit tvods moewad dtin bib 1 es ob I it 
es beob edt qu tag bas mid mort Of ¢000 , BSF beworzod 

edt tedt mottentgH bfot ed tact beliises? sk «yd Eauo9e 
reed bad yireqotg eidt no 02.900,008% to egagt ros tenth 
asw [Lid sub tavoms ont ted? 400.000,08L% o¢ beoubsr 
agegitom bridt sdt ao oub éedt Aas 00,090,088 suede 
ti voy mort atdt tog I ti bag" 300,000,812 tueda esw. 
asftrut boitites? of . "00,000,588 firods exsm biuow 
=tron s nt betsorstat od tos blvow ad Biae nontectait bce 


Bia Gy 


7 eran aoa ee a ‘ 


w 4en 


eS Lee 


ted Bibroes oti ie oo "pide ‘ed bruds ot gedw per | 
mottenigh tedt zedtmom tuot to eetiit at #2 “yee ‘blue of | 
fosd ti ySq ot ysaom sdf fs9 Hivow ed ersdw word od petmss ; 
bridd bas broose edt tadt tostte add o¢ Betiqe:' ‘dBase | 
—ysq rot gmteaerq orew ershLod 9 dit hae eob stow e8génFtom : 
t ot @guytrom boooee wen s mo tug ot sew mato aid Bas #rom 
"eidt to eco fst opts bas" end ovow tetd ows Odd Gu mBOLo 
hemnut od teat beifcer mottantal tedt hertiteed wedsedot ex 
mo" neo req OF eved of tiguo of bas aethe Ystorg venom Bid : 
. 00 .000,.08@ s mo 00,000,.8¢ ad biuow do idw "tet ‘ouit a@et s 
| 00,000,884 betasw yino od tekt benistqxe noft soet Padi pasor 
| Ytridd Yoed woy y8q to 000,é8 voy evty rhiw ¥* pebbs’ ot! bas 
* mottenteh doidw ot “ axosd coy yea ow neliw Sv) tayeaewd” eit tot 
booterebay ti tasw I tof .tedd ob (Ft ptiigie Tra” ,detlger 

ie a 0 tuotetat tase req fom yaa of voy dmew Fhiw'r Hede 
— eoag \Beetge 908% Moldy of "ao at Yomom odd eo ftiw yohom 
Td nn rot voy somentt {fiw I" hebhe moreeitad PS? hertedhos 
“botit ed tet beititest tedsiyt of ““/yonbin to tnoms Heads 
i > Rag “ame 












—E ae 





Do. 
case you die or in case something would happen to you, that 
would protect our rights in this;" but that Harnstrom said 
in view of the fact they were such good friends he weaddnie 
need anything of that kind. There was also some additional 
evidence along this line which it will not be necessary 
to set forth heresy The conversations testified te by Pace 


were denied by Harnstrome, 


In addition to the reasons set forth in the master's 
report supporting his finding that this conveyance was a 
mortgage, the record shows that Harnstrom admitted on cross= 
examination that he did not take possession when he received 
this deed; the leases were not assigned to him; the insurance 
was not transferred to him; and he never paid taxes on the 


property nor any of the interest on any of the encumbrances, 


Pace t stified that on the morning of October 
28, the day following the conversation previously testified 
to by him, he met Harnstrom tin the lobby of the Edgewater 
Beach Hotel and the latter produced the deed to be executed 
by the Paces, and an affidavit also to be executed by them, 
cowering their title, and a check for $30,000.00; that when 
his wife moticed the amount of the check she commented on it 
saying she thought her husband was only borrowing $25, 000,00, 
whereupon Harnstrom explained that the check included his 
commission and that he and Pace would "fix that when they got 
down to the bank, = that le did that in order to keep his recoris 
straight," He further testified that they had some talk about 
thd time within which this money was to be paid back and 


that his wife thought three or four months was probably 
too short and Harnstrom assured them that if that wasn't 


enough they need not worry, for he wasld give them more time 





Bo gadt voy of xeqqad bivow gaidveucs sate ah 10 sib. uOY, SRe9 
as | bise mottentsh tedt tud “paids Beh: atdgiz tuo soatotq bivow 
| Samives ed ebneitt boog douse arew yedt tost.odd to welv ak 

Isaottibhs emce oals asw ored? ybaid ted? te gaidd yas. beer 


yrseesoed od ton [liw tt dotdw sell eidd gaoia sonebive 
eosi yd gt bettitees snoitartevmeo eat ,ered dicot, tes, ot 
amotsant sh YI hetash een 


eck esr 
aixetesm oft ai dirot ton enoeser edt ot nott bia ‘at 


& BSW somsyevmoo aidt tedt guint’ abd satdreqqve Ba 


~enoto co bettimbs mottantsl tet awola prover end qogeuetom 


bovieoss ed made , aotesseaag eidet ton bib ‘od tact noitanianxe 
a oy te 
sometveni edd gmid ot Sem tase ton stew asesel ‘odd “ibee ‘p ald? ‘ 


os aie 


edt m0 eexat bisq teven ad bas mi ot bors tanetd ‘ton 
_asonetdmyens oft 1 YAS 10 teoretat ost to “ws ‘tom ‘ abasiq 


heetees Se Bike 
tedetoo to gaintom dt no tent beltitect. Peete, ae tt Ons 
beititeet ylauciverg soltserevace ent gatwolfot yeb edt. ,88 
| teteweghG odd to yddol edt af mottentgh tom ed, mtd yd-ot 
@ 3 betwoexs od ot besb sdt heowbotg xsétel edt. bas feteH dosed 


mode tadt {00,000,084 tot sede # bas ,Idtt x tedt gabzewgo 
me ohiw etd 
| <00,900, 28% gaiworred yino aew hasdend rot sean 
Se aid bebsfont toedo add tedt benialqxs: sottenieh aoquetedw 


ti co betnsmmoo gde aosds sdt to ¢auome eat Ba 





“ton weds asdw tedt xii" bivow soad bas en sadt bas aoteetamoo 


- abrooe etc qeed of mobro nt tedd bib ef tadt = qdaad edd of awob 
4 tues Aiat emoe bad yorld tact bottitect rodétwt oH  "ePdgsente 
| bre dosd Bikey ed of ssw Yenom atny dotdw midt iw omtt mds 

Vdedorg exw wdévom Tero verds sdguoMh etiw eld dedd 


; cll 


mute Stom medt evig bleew sf rot saan ichatdliaoteal walt 





whee yd betwoexe ed ot cals tivsbitis o8 bas yasogt eat yd 


Paeee fede te ted mene ee 





—lLl= 


if they needed it; that Mrs.Pace said she thought Harnstrom 
was making $5,000.00 pretty easy and he replied that he made 
his money by turning it often, and Pace remarked that "if this 
runs & whole year you will be making 27 per cent," After 

the deed was signed and acknowledged and the affidavit had 
been executed and Mra. Pace had endorsed the $30,000.00 check, 
Pace and Harnstrom went down town to the bank, There, at 
Harnstrom's request, Pace endorsed the $30,000.00 check, where= 
upon Harnstrom handed it to the cashier of the benk, who in 
turn delivered two cashier's checks to Harnstrom, one for 
$25,000.00 and the other for $5,000.00, both drawn to the 
order of Pace, The latter testified that at Harnstrom's re= 
quest he then endorsed the $5,000.00 check, Harnstrom explain= 
ing that this tepresented his commission; that Harmstrom then 
handed him the $25,000 check and he handed Harnstrom the deed 
and the affidavit; and that Harnstrom then went to a teller's 
window and deposited the $5,000.00 check in his account, He 
further testified that he made some effort to get Harn= 

strom not te record the deed but the latter explained that 

kb would have to do so, "because if I didn't I wouldn't have 


any security," 


Early in the hearing (December 11, 1923) Harnstrom 
appeared before the master as a witness and gave testimony 
supporting the allegations found in his pleadings. On cross~ 
examination he insisted that the amount he had paid for the 
equity in this propetty was $30,000.00 and that if was not 
true that the amount the Paces got from him was only $25,000.00. 
He denied that it was any pert of their transaction that he 
would receive $5,000,00 back immediately, and he denied that 
























# 


ali- 


ete roy Ree 
noetasigh tigvedt ete bise eog%.atM ged? 4o4 paniesisielih Xs. 
seam od tect beliger ed bas vase. ytterg 09.000 .28 gaidam asm a 
; ss gide TE" dudt boatemot soe bas yaetto ti gaimad yd yonom pid 4 
moda “atmo Taq TS gaidem od Lliw voy se0y elodw 6 enue 7 
bed divebitte oid bas Sesbelwonies bas bemyte age Beeb, edt q 
eXoedo 00,000,088 sit beetobae bet sosd .axh Bas besuoexs ase 

: ts ,eTsdT .tand sdt of mwot swob twew mot#eaield bas 9nF 4 
aston .afoodo 00.000 059 edt beerobas sosd .tesspo1 atmortantso 4 
gt otiw cdndd edt Yo retieso act of #1 bobuad woxtunt, { nog 
he sot ono Motta at gH ot ptoodo e!xeidess owt ‘pdudvetes® oF 
“edt of must dtod 00,000.88 cot xosito ois bas 00,000,884 
swat etgottemrgl ts tsdi beititees costal od se0et to rebte , 
 matefqke moxtanteh eXoado 00,000,a% ault beerobao aeds od “feeup ; 
pail bier take a0 atdincs “oid betasastqet ef dt ssdt ‘Bal 4 
 beeb edt mort ex tal bebasd ad bas xXoedo 900, 3k adit amid bebaad 4 
2 gitalist 8 of aow nodd mottsatel ¢eit hag qttvebltie, out ee 
| 8 stmuoons ald ai soos 00,000.88 edt betincgeh: bas wobate 
“Hite ¢eg of d4otie once eben ad telt boikidand tedtumt: 

= tedt benisiene tedvsi sit tud heeb edt arooer ot ton morte. 
is evaed tlabluow I t'abbth I tt eananed® y~os ob es sees 








t ome partven sl 
mottentsi (8S8er .ff tedmecat) antitsed odd mz vitst 4 











Sexy i okitd Be 







 -yatomtteet evsg bas neontiv 6 aa totesm od? conten 4 
v4 4, en ; a 
=s8070 10 \eumibecte wit at bayvot anoitags (fe ont ery ogaue B): 


| | edi rot bisy bad of tacos oft dedt betabeat ad noitentuaxe 
tox sew BE tadd baa 00,000.08 ean yiteqorq side af Yinpe' 
4000.88 yino esw mid mort tos epost oft taome ody salle ‘ewtt 
‘ oo tds noitosanast thay to sive “ scl todd ‘beisss oi 
teat deine od bas euistsibonns ioad 10 ad evieoex b 


Bm ik | A apis we) pti, 








#“12- 


the fact was that he did receive $5,000,00 back at once, in 
currency or otherwise, He was asked whether it was not a 
fact that at the time this transaction was closed he secured 
a cashier's check in the State Bank of Chicago for the amougt 
of $5,000,200 payable to the order of Pace and that the latter 
endorsed it and handed it back to him, and he said that was 


not true, 


At the next hearing before the master which eaccurred 
about a week later, a clerk employed in the Auditing depart- 
ment of the State Bank of Chicago produced two cashier's checks, 
both dated October 28, 1922, payable to the order of Pace, one 
for $25,000.00 and the other for $5,000.00. The latter check 
was endersed by Pace, following which was the endorsement 
"3, Harnstrom & Company," which is shown to have been the name 
under which Harnstrom did business, This check was paid 
m the same date, Late in the following April Harnstrom again 
appeared before the master in rebuttal, the lapse of time being 
explained by the contention that Harnstrom had been in very poor 
health, and, according to a physician's certificate, unable 
to testify, The record shows that there was a Mrs. Wilson 
who has known Harnstrom since 1910, and for many years had 
been his renting agent, handling his property, and at the 
time the evidemee in this case was presented to the master, 
she was acting as his nurse and secretary. Harnstrom testi~ 
fied that he sent her to the Recorder's Office to see if the 
title of this property was in Mr. and Mrs. Pace; and that she 
later took the deed from the Paces to him to that office to have 
it recorded, When he testified in rebuttal, upon the occasion 
above referred to, he stated that he did not endorse the 








~Sf= 


ai ,sou0 te doad 00,600,288 evisost bib od tedd-aew toast od? 
2 ton esw ti vedtedw betes aaw eh ,gaiwredto 20 yonentuo 
betuoee of heeoso esw moitosanats eidt omit, ait (48 tadd test 
tiyvoms oot rot ogsolnO to dagh otare edd ai toed e'xetdeso & 
tettel edt tadt bus e@o2% to tebte sd? of gideysg 00,000.39.%0 


asw tedd Stee sd bas <mid ot doed ti bobasd bas #2 bearebae 


| >yearte ter 


fextu008 doidw retesm ont etoted gatraed 4 #xon oxi a E Fiuy ten 
mSIBCSDH galt ibus edd ai beyotfame dete a cot at is 8 ¢ suods 


ty ale 


- eattloado 2a! reiriaso ons beoubeoxq ogee ido te Aitgt ot oye ode ‘to ‘tao 
emo .298% te rebro edt ot efdsyedq e8SOL 288 sedodeo korak itod 


_ doodo tattsl ed? 00,000.88 tot redo oxtg bas 00,000,888 tot 
ta9msetobse edt ease doidw gaiwol fot 608i vd Deorobas oe 

ener sit ased evad ot awode ef doidw ",yasqmod ry wortantail 8" 
bieq sew doao ald? .ecsntayvd bib mortantaX dotiy reba 

yoriee montentslH [itga gniwolfot edd at otal ,etab pales ode i 
gated suit to saqesl edt odes sates ai rot eas edt ‘sroted bexsouen 
— reeg yrev ai need had motdentsk tend no £¢nsd200 ot ww peat ators 


eidsay ,etsoltitteo etfaatoieydd 3 ot satbroces: baa «at fad 


moali¥ .arll s esw stodt tent ewosle boost oat ge py ot 
‘y PF ade ts Vigiae 


by: bed etsey yam tot brs ,OLCL eonie mottanteil swont ead onw 
| edt ts Dae ,yiraqorg aid natidbasd ytaege gattoet aid used 
3 a qteteam edt of betaseerq ssw ee20 etdt at sem@bive- edd omtt 


‘mitveet mottamtsH ._itsteroer Bos sete eld ee gaties esw ede 
ot TL 89@ ot sotTtO s'tebtooeR edt ot ted tnes ef tedd belt 
ede sait Sas jeost vari bas .xri ni aaw ysteqotq eidt To! eisit 

ova ot soltte eadt of mid ot eods% odt mort Beeb: edt: dood wets! 


\ ae EES A 





Ub ep 4 


Di es 


CS ee ae ee ode 


Pe ee ee 


Pe ey ee eS ae eee 





=13— 


$5,000.00 cashier's check in the presence of Pace, as the 
latter testified, Furthermore, he denied that Pace had 
handed the $5,000.00 check to him, but he said: "He handed 
me the envelope with the deed and the —- Well, here are all 
the papers, he says." He testified that he then took this 
envelope over to another part of the bank where Mrs, Wilson 
was whiting, and handed tt to her, He was asked how he 

came by that check, in the course of his direct examination, 
and he said; "Mra. Wilson handed it to me to endorse it;" 
and that she handed it to him with the request that he apply 
it in part payment of a loan she hadpreviously made from 
him on which there was due gomething in ewress of $5,000.00. 
He further testified in substance that the PaceShad been 
trying to get him to buy the equity in this property for 
some time but he had repeatedly declined to do so, and that 
they had finally enlisted the services of lMirse Wilson and 
promised her that if she could induce Harnstrom to buy the 
property they would pay her a commission of $5,000.00; that 
she, on a number of occasions, had urged him to make this 
purchase, and he finally agreed to do so, and this $5,000.00 
check was in payment of the commission which was due from the 
Paces to Mrs. Wilson for negotiating this transfer, in 
explanation of the absence of iirs, Wilson's endorsement on 
the check, it was stated that she said that rather than en~ 
dorse this check and bank it in her account and then give 
Harnetrom her check, to apply on her loan from him, he mi ght 
as well take the check as it was and apply it as she requested, 
Mrs. Wilson gave testimony corroborating this version of the 


$5,000200 check, Both Mre and Mrs. Pace took the stand in 





~E i 


e's > ae hy 
ix t9.4% edt 


edt es ,908% to sonssetq adi at aparo at rotdeso 004000 28 


bed eoad tedt beiash oa setonte deat boltitest gees: 


RK. & Pid 9 


bebasd eH" :bisa os tud .mid of doedo 00 «000.88 ode bebaad 


TERE RE: 


[fs ste ored .ffeW¥ -—~ sit bas beek st d¢iw ‘ego fowas ‘ont om 


atdé doot sadt od tant bettivest oH "ese od “eroqay ot 
mosliW sex stedw daad edt to frag reittens ot revo egofevse 
ed wor betes esw of ted ot tt bebaad bas walt ssw 
Mottsatmexe toerib eit to saryvoo oMt mt yaoon sadt xd 889 
West oerobse ot em o¢ ti bebasd moeliw ,ath* «bisa ed. bas 
Yiqas sd tedt teeupes ont cttw mid oF $2 bobued one) tat) bas 
mort sbam yfevolvetqbad ste asol a to dnremysy tusq) ah df 
(00,000.28 to amewas ai gatdtemon ub daw ened do ine mo subst 
“need badtenet ot salt oonstedve at bectidecy vodteud oH 
tot yireqors aidt oi ytieps edt yod et mid veg oF gabert 

tedt bas .oa ob oF banifoeb yYibetasecer sd ort tud omtd “snore 
Bas moslt® .ert to esoivras odd beteting Vilsal? bed yodt 
edd youd of movtanted soubat Aivos ode FZ todd tod Deatmory: 
“ted 700,000.89 Yo nofeetomes & ted -qeq-hloow yodt-ytreqenq 
eidy adem o¢ min begwr bad ,anotessoe to tednue 8.20 (eads 
00,000 ,.6¢ eide bas .ov ob of bsergs ¢ilaett-ed bas \yeesdoteg 
edt mott exb eew doidw aoiekimmes edt Yo sasmyeq ah ase stood 
gi stetansxt eidd gaiteitogen 10% moaLew-,et.ot geost 
80 taenearobae 2'nosli¥ até to soaceds add to.aottekalgxe 

| =e medt tedter tedt bise ede tedt hedste eew ¢2.—%0ed.odt 
) evty aedt bas taveces rod ai $2 asd bas wede atdd epzob 
/ Sigin ed guid mort asol xed mo ylags of gieedo ted sottenisH 

ti cheteaupet ede ae tf YLoqs bas egw tt as soso. out edet Lewes ae 
teed Re-neteray gid? yoteexedoeree: ‘Yoonitest eveg aeolth..exM 


oe 
Ota 


«fb Base edt dood ee0% .e7M baa 42K dtod » Hooda 00300088 . 






=14= 


rebuttal and denied that there had ever been any such 

arrangement or that they had ever had any conversation 
with Mrs, Wilson involving the sale of this property or 
any services she micht render in connection with such a 


transaction, 


Pace testified that he made an arrangement for 
a mortgage to clear up everything, including this loan, 
early in 1925, At that time Harnstrom was in ill health 
and absent in California, He testified that he called up 
the hotel at Los Angeles where Harnstrom was, on January 28 
or 29, and talked with Mrs, Wilson, telling her that they 
were ready to "put up the money and wanted to know how 


we would arrange it about getting the deed back," and she 
said she would ask Harnstrom, Objection was made to fur- 
ther testimony as to what Mrs. Wilson told the witness, 

but he then said that Mes. Wilson sent a telegram, That 
telegram appears in the record, dated at Los Angeles, 
February 2, 1923, addressed to Pace and signed by Harnstrom.s 
It reads; "PUT UP YOUR MONEY TITLE AND TRUST CAN WIRE ME," 
The record shows that later in that month the Paces arranged 
to borrow $54,000.00 from one Shelensky, and both these 
parties entered into an escrow agreement which was deposited 
with the Chicago Title & Trust Company, This agreement re= 
cited that Shelensky had delivered a check for $54,00,00 to 
the Trust Company, pending the issvance of a title guetantee 
policy on the property in question, on or before March 15, 


guaranteeing against defects in the title of Mre. Pace to 
that property, subject only to certain formal defects referred 


$0 and the first mortgage then amounting to $190,000. 00% 





hE 


foyve yxs seed teve bad ersdt tent betnsh bas fatiudet 

soitperevnco Yas bed teve ded yeds ted? 10 teemegasrts ; 
to yYirogorg etst To ofss edt gatviovat soaliv, .esK. atiw 
2 foue dtiw moltosases ai tebast tdgim ede esolyzes. yas 


oS 8 ct 


tot tremegnerte as Shem si sed? boltitact ebs% 
feel eint gaibs font gaidhyreve qu 1eefo “ot ‘egsqttom 8 
dtised [ff at aay moti eat sts auit tect tA veser a yirse 
qi bafiso ed ted poltitees of .ebaotaten AF sibel bas 
SS yravde. a0 . sew mothanitgi erode aoleynd aod. te fetot” edt 
 veds Fade Got Sailted aoelty Leth atiw bedfet bas .08 x0 
wod woax ot Bejasw bas yonou edt oy tuy® oF Ybsor Stew 
ade bac ",doed boob Set yattves tvoda tt egaerts Bivéw ew 
“—eyt et Sham aew moitostdO .movientst tea bitiow eda bias 
.Ssentiw oft blot Hoeli® are sacw ot ee yromitesd weds 
tedY sustgelef s twee moeln? wey tedt biee teat of tua 
“geetegné aod te bet] ybrocer ent at etssqqs memgeltet 
smoTeantsh yd beagle bas aoe of Heewerbbe (SSCL ,S yraiedet 
ham WRIW aad TeURT GHA GuTI? Yanow Muor ¢a Foe" “pebaee sx 
begasrte sed0e7 edt déoom tad at redel tact “ewod “roost on? 
 @eedd dtod bas <Ytensisd snc mort 06,000,289" worrod of 
py botieodsh eaw doitw taomootys wotses as otal betes as HiRes 
“oT tabusetyZs aidtT .yasquiod teirr 8 othr? ogedtdd’ ode Hbtw 
“ot 00500.888 ro} Hoode & bersvitsb bed viene fede tad? bet to 
“sotasteug oft? 8 Yo Somauset sit yatbosq .yesqmoo Pale? ent 
| GL Motax dteted to m0 woltasup at Yredory elf ho’ Yitoq — 
“ot oOsT .ech TO oItt# sit a) Bdootad vantage yhtbobhitany 
| “ bexrretet avostsh Lemtot atesred ot Ylao tostdue \yireqotq ‘Peds 
. WS  $904000, 0829 oF: o-euhnnnennuatemnaeamier daxtt Sit pnw! og 
oe oe weins Gj. P78 SBw at ig istaaead t 








Ca i ee 


eed 






As 
y 
7 
ie 


fe ae ; ie ui PRISER tye MUN ot 


-15- 


The esorow agreement further recited that the Paces had 
executed a trust deed to Max Grossman, as trustee, to 
secure their notes covering this loan, and that the deed 
and notes had been deliveredto the Trust Company under 
the escrow agreement. By the terms of the agreement the 
Paces authorized the Trust Jompany, in case they issued 
the policy called for, to pay to "Ss. Harnstrom amount 
necessary to obtain deed = $50,751." and interest; and 
further to pay the amount needed to obtain release of 
the s@cond and third mortgages, ani then pay Grossman 
$100.00; and the balance, less the charges of the Trust 
Gompany to Mrs. Pacé, The record shows that it proved 
impossible to satisfy the requirements of the Trust Company 
as to the title and the guarantee policy contemplated by 
the escrow agreement was never issued and the money put 


up by Shelensky was returned to him, 


On the other hand, as tending to support Hamnstrom's 
version of the transaction involving the deed of the Paces 
to him, the record shows a letter dated November 16, 1922, ° 
less than three weeks after this deed was given, which Harn 
strom testified he sent to Pace and which counsel for Pace 
admitted he had received, in which Harnstrom purports to 
authorize Pace to act as his agent “and account to me for 
@l the income and disbursements of the apartmemt buildings" 
im question. He added in this letter that he had no objec- 
tion to allow the agents who were then taking care of the 
building to continue to do so, and he went on, "put I will 
look to you and hold you responsible and will call upon you 


for statements which you will please furnish me at any time 





eee ee ee es, 


Fen ere Rr ore een 


{yr Reps 


ee 


Soe pmeeter me SS 


) Bie = - 
0 
ore aes ’ 
r On 


a ne 


& Saag 


~Bi- 


bad aeog% eds tadt betiost zeddtet tagapoetgs wotoke SdT 
of -gotautt a6 ,semenor) ask of Bash teutt & bednoexe 
besh eat tedt os .asel eidt gafieves eetcoan xietd eruose 
nebuy yangiod tayvcT odd ot¢betsviteh aged bed ‘aston bas 
eit tremestgs edt to emret odd ya -tooneargs wotves edt 
hoveet yedt saso ai ,yasqmol teunt edt beslzodius aeond 
thuoms moitentsH .8" oF ysq OF «tot betLso NaAtog ost a1 
bas jteetetai bas ".[éT.084% ~ besb aietdo ot } 





i ae 


to sesefet aistde of bebsex tavems sid Yeq oF teats 
aseecor) Yeq aedd tis ,eegeygdiom | bride. bas apnoea, att 

teuxt ont to gogtado edt eo9f,,eoaslad edt, bas {00,0014 
bevorg ts teds swoda brooet ed? ,8ae2% .82M, tall 
yasqmoo test? ody to edaenexingot edt Ylelitse at, 








eee 


Ve Hstalgustacs yoilog oot RATS, ons bas oltit eat tes 
tug yenor sat oas bevesi Tevea asw tagmso7ys KoTORe edt 


nid of besiutor sew ytene: 





Tad 
almortentsd troqowa ot gatbaed ae .bned tadto ‘site Ta ha Seene? 
asont edt to boob odt gnivfoval noitoseast# edt to nofetev 
eS8CL .8f teduavok beted tettel @ ewode wel ont Sat d os 
“witgH doldw ,nevig esw beeb atid verre ‘adeow oot tied ‘peed 
eos% fot [Santen dotdw bn& eond ot tage on boltiteet motte 
ot efteqtug mottemteh dotnw at Sevisosr bed ox ‘pestis 
16% en Gt tmuooos bre” toons eid as tos ‘oF eont exibition 
\wgethlivd saemdcsqa ott to atnemoacsdet’ baé wm body om 
~ostdo om bad of tedd Totter etdt nt bewbe off * oltesup mt 
ef} Yo onso gatded ceift stow osiw otneye oft wolle bt Mott 
Hliw T sud" no taow oXf bas 00 ob of sunttnos ‘of yatbitng 
woy coqe ftsp thie bas ‘oidtenegeor Oy biod baa Hoy 0¢ soot 0c 
eutt YOS tS om de Livnig® suselc thin yoy wide ae a oer ste bial 











-16= 


that you are called upon hereafter, This agreement ig 
subject to cancellation by myself eat any time." No explana 
tion of this letter on the part of Pace appears in the record, 
so far as we have been able to find. There is also a letter 
in the record, dated December 16, 1922, to the agents who 
had long had charge of the building, appointing them to 
act for Harnstrom on this building which, "formerly belonged 
to Mr, and Mrs. Pace," and directing the agents to pay 
the seni annual interest due on the first mortgage the foklow- 
ing January, There is another letter signed by Harnstrom, 
"owner," directed to all tenants in the building and notify~ 
ing them to pay rent to the agmts Cline & Dix, "Mr. and 
Mrs. Wme S&S. Pace having diaposed of their interest." Another 
letter dated January 1, 1923, addressed to Cline & Dix appears 
in the record, in which Harnstrom refers to instructions con- 
cerning the payment of the interest on the first mortgage 
and asks them to see the agents to whom the payments wine 
to be made on that mortgage, and if possible arrange with 
them to accept payment ofthe interest at that times 

Cline testified that the letter addressed to his 
firm, dated December 16, was received by them at that time, 
but that the one addressed to the tenants was not received 
by them until March 24, 1923, He was asked when he received 
the letter dated January 1,}923, and he answered "Well, the 
first part of January I think," He was later recalled to 
the stand and testified that he had refreshed his memory 
as to the letter of January 1, and that it was received by — 
him on March 31, 1923, being handed to him personally at 
the Edgewater Beach Hotel by Mrs. Wilson. Ip that letter 
Harnstrom purports to state that he is ill in Southern 





-3f- 


at tmemectgs eid? .retisered soqtr Hetiso saa voy tent 
-saslaxe of Y.entt yas te Denym yd aoitstieonss of foetdue 
<btoost edt at atasqas anst to fieq adt no totter ‘etst to" ore 
restel s cels ef stent bait of olds need aved ow es tat ‘os 
om efnege sit of ,SSCI .Sf tadmoned beeab prooer ei? AY 
3 ot madt gaitaioggs  gnthtind eft to og zado bed gnof bad 
begacisd yivemmot" .doldw gaiblind aide mo mot fret toe 
yeq of atasgs edt gaitserth bas * s0ed er baa jst ov 
-woliot edt epegtrom verit ost no exh soiree wt ‘leuvnne tose ody 
wortentall wi bemgie tegtel vedtons ei erode “Qetauiet gat 
—~etitox base gaibfied odd at ataeast tts ot betosrtb smell? 
bad .M* 280 3 oak id wtugh edt og Wk yap be ed 


gediend “ytaeretai tisdi to Boeods Lb anived eont a a ae 


Fae 








a Ve ee UR gale oe 
gtsecas xid & galiO ot heaserbhs .ShCLF .f yrauast bedab xetiel 


—neo encitourteni o¢ aretot wottentel deidw mt ‘Wieder ee “ak 
pager tom ganit edt oo tesretoai edt to tromysq. “et 5 i ate) 
oT6W atasmyeq off modw ot atnens edt sea ot modt efus bee 
atiw egaerre sfdiseoq tt bas ,e3egttom. dadt ao Sham ed.og 

*onit tant ts teeresnt eddie daporgag,-2qenn9 ot medt 
eid of béesetbbs ssttel oft tadt bettites?,eahl®. ».4> eualt 
<enit tadt ta medt yd bovieoer aw SL sedsoceG beteh mett 
bevteost ton esw staenet oft of beaseraha ono edt tadt ted 

bevisset ed asdw heise asv of .SkCL AS Motel. Litmy madd yd 
ode -itoW" boxewans od bas .S8C4, 1 yragnab hetsh cette l edt 
ot bolisoet weiel asw ok "ysaidd 1 yxewngl, to 0, tt8q. tertt 
Vromem ei bedeotter bad od tadt hettitest bas baste edt — 

WW Bevieoer saw ti fede bas .f. oe | : 
#2 YLlesopreq nid ot bebasd gaied yeSeL AE doteM, go mid 
“Sestel tedt gl smoartw vex yw saaaeaiaamaatdeittari “ 

ateritves ot [ft et od tedt otata o@ evtoqzug F utes 











=175 
Californias 


We have stated the substance of the material evi- 
dence bearing on the issue of whether 2 debt existed from 
the Paces to Harnstrom and whether the understanding was that 
the deed given Harnstrom was to be what it purported to be 
on its face or whether it was,on the other hand, to be in 
the nature of a mortgage. On this conflicting state of the 
record, we are of the opinion that it may not reasonably be 
said that the finding of the master and the decree of the 
chancellor, to the effect that the soonveyance was in the 
nature of a mortgage, is against the manifest weight of 
the evidence, On the contrary, the evidence is clear and 
convincing that the conveyance was @ mortgage and not a deed. 


In our opinion no other decree could stand in this case, 


Appellant further urges in support of his appeal 
that the decree of the chancellor should be reversed because 
certain necessary parties were not made defendants, In this 
connection it is pointed out that although the Trust Company 
was made a party defendant, as trustee, it was not made @ 
party defendant as escrowee; and that although Grossman 
was made a party defendant, as trustee, he was not made 
a@ party defendant individually; and further that the owners 
of the notes secured by the Grogsman trust deed were not 
made parties defendant, In our opinion these content ons 
are without merit, if for no other reason, because no such 
question was raised in the trial court, As to the unknown 
owners of the notes secured by the Grossman trust deed, it 
appears that appellant himself brought them in as parties 
when he filed his cross—bill. As the record stands they 








evi= — 


ef oF ET! 
ji . } ake oF Fhaidee 

ive isitatsa off to sonstedue one besate ved all seb hag lh 
moxt betaixe deh # sedtede to svaet ant no paineod | somed 


aay 


edt eae goibastarebay odd. sediedw has mort ental *,. etoat ost 


ed of botroqivs ti tadw ed of Baw MOT RIB novia bosb oft 
ai od ot ,basd redto edt wo,ee8 tt zedteds tq, Cost 622.80. . 
edt to state gaisot{tace aid? 0, .egeytrom & to. exten | an ot ‘a 

ad yldsnogser tos ysu ti. tedt soimige . adg to ote ew am rose 
- eft te aetaeh edt bas tedesm ont Lo galbalt at eae ie ve 
edt ai &aw enmeysv aoe: edt tedt tostte edi ot _ eto Lfeoasdo ay rede 
to tdgiow seotinan edt Janiegs ef wgsgiton | 8 re STut Se 


igectt “eet 


bas teefo et somebtve ony eXtattnep eit 20 seonsbive efit | " 
Bl RRS ee ee sae 


re bash S tea bas ogagitton & 824 90 MByovVaGo adit tsdt gaionivaoo — 


meh pete eertel 

+2880, es aa baste bives eet0eb reside « ont a bins apal 
fesdqs bir to Frogque mi eogey todecut teeffeqma © % sol hres 
easeoed Beerever ad bivode rolleonsdo sft to setosh od: ¢adts. 
aidt oI .@# achroteb eber ton eter eetirag qrsaecosn metres: 
Yaeqsod teuyT edt dguortis tede avo betakog et: +t aotvoenmon © 
8 siem tor eet tt .wstautd ce .taabae toh yeweg 6 ob|em eaw 
Mamseoro dgcodtis tedt Das yoeworsee oe trabasteb suse ° 
Sham ton esw of ,oeterrt ce tasbarsteb oireq & eben ese: 
stemeo att teddy rotttet bors {Uileubivisat tashaoteb yesq wo 
‘Sor stew boeh teott mameeoss sdt yo borne oe ‘wet on “oxy! ro" 
ato #netnoo sesdt actal¢o wo al .tachasted deteteg ahem: 
dove ott ‘dasicoed “,Oeast tr9d3o oa tot th Gebrom quodtiw era. 
awonttc edt of @A .tiwco Isity oft nb beater wan motteaup. 

oh ~beeb faut? apmadoro sit Ydubetroee aston adé to -eTeAwe « 

asitres se at medt tdgvesd Iioamid tue (Leggs dedevwnseqgs! 
. Wut baste broser edd wa) wilkd~seoto aan dione ciel 






mLb 


were not necessary parties to the complainant's bill, for 
the esorow agreement to which we have referred shows that 
these notes had been delivered under the agreement to the 
Trust Company, and when the Trust Company was authorized 

to return SheJensky's money to him, they were directed over 
the signatures of all the parties to the escrow agreement, 
to retain the securities, An escrow officer of the Trust 
Company appeared and testified that the notes were still 

in the possession of the Trust Company. The decree finds 
that these notes “are now in the possession of the defendant 
Chicage Title & Trust Company and ought to be cancelled and 
_ delivered up to the makers, "and by the terms of the decree 
the Trust Company is restrained from parting with the custody 
of these notes; and the defendant Grossman, as trustee, is 
ordered to execute and deliver a release of the trust deed, 
which had been given by the Paces in connection with those 
notes, Although this specific relief had not been prayed 
for in the bill, it was entirely proper to provide for it in 
the degwee, under the prayer for general relief, It is com 
plaaned that it was error to direct the release of this 
trust deed without ordering a cancellation of the notes. 

As already pointed out, the decree specifically finds that 
the notes shoula be cancelled and delivered up to the makers, 
and we assume that such a course would be a neeessary part 


eof the operation involving the release of the trust deed. 


It is claimed that the trustee under the first 
mortgage and the agents appointed as mllectors of the 
sinking fund, set up to meet the first mortgage bonds as 
they came due, were unnecessarily parties, In our opinion 


this contention is without merit. They wer? proper parties. 











«i [> 


tot ,ffid ettasaisiqgmoo at ot ao lirag Trsnasess FOR Sxem 
ted¢ awode berteter eved sw doidw of tasmesTtgs® wotoss out 
eit of sxomsargs ot? ebay beteviTSh aed Hed serou seodt 
benkrodéus anew yaeomod fautT edd mode bine yydaqmod’ Pent 
xsvo besoorib stew vadd ymid oF Yeoron ef yians fede turer ot 
einemee tgs woross eds of ssittsq edt Ife to eereteny te odd 
‘teaver edt to xeoitto worors ak jneiviisoes @dt abate ot 
ffkte ovae aeton add sadt beltivaet bas Sereeqqs yaaqmod 
ebatt serosb edt ,yaeenod tent? sit To doteaSenog edt at 
tesbrstob eft to aelaasadéq odd ni wom eta* astvot saedt tadt 


Boe beffeonso ed ot ddguo bre yraqmo? fenrt &.8£skP eg Ho tdl 


estoab sdt te awret sit yf bae® .eredan eff of qh SexevELeb — 
ybotado sat dtiw gaid¢teq sort bemtarteot et yraqmed tavtt edt 


el ,setevat a8 ,feesaot) tasbasteh ett one qoston eben? to 
ebseb teurt edt to easelet & TSVEIeb bas stupexd of Betebto 
seodt diiw soltoennoa at asogt adit vd aoyig. used bad do Ltw 
hbsysetq ased ton bet teifer oftiesgs eidt ‘dquods 1a _ aston 
ai tk 10% shivorg ot xteqetq yletitas enw tk eilid edt ai rot 


“moo ei tl .toiisr [eteneg 16% reyerg sdt tobaw some ont 
_aldt to easeles odd tostib ot TOmme asw rt teds bonis 
sneton edt to soiteileonso & anizehre duos iw hgites I ul 

tad? ebhait yllsoitioegs seroab edt tuo petahen » sits jute bag 
eatodem et of qu hereviteb bas heilepase og es ee ent 


deg Yisesesend & 3d bluew ee 11100 rs) Henin tad Smveas ew bas 
-beeb tauts exit So e429 fer odd aatviovar nottensgo eae to 
‘CE : SSF ae eno. 
verit odd reba seteuer oct todd bemésle wh et iw exe 
ort Te atotoel(@ es betatoggs atneys ott Has ‘Sgegttom 
is abstod syagitom faxtt edt teow oF qu tow bau ‘yatdainte 
koimiqo tyo al .aeittag yLitadesoomny pranlebhancsiioseinmensind 


_ aeeteae senor stow yon? yhireat twort tw _e 









a a 


=19— 


We find no error in that part of the decree 
fixing the attorney's fees at $4,000.00 or taxing two 
fifths of the costs against the appellant, 


It is further contended that even if all the 
evidence in this case is believed to be true except that 
produced by Harnstrom and his witnesses, the decree should 
be reversed because it is inequitable and unjust in that 
it does not require the repaymmt of $30,000.00 with 
interest at 7 per cent to Harnstrom but only $25,000.00 
with interest at 5 per cent, In view of all the evidence 
in this record we are of the opinion the decree as entered 


was in all respects equitable and just, 


It is finally urged that there is every evidence 
of collusion between the Paces and the complainant Lill, 
such as should ber either of them from any standing in @ 
court of conscience or from rectiving any equitable relief, 
We agree with the finding specifically noted in the master's 
report on this point, to the effect that "no collusion between 
the said Lill and Pace has been established," In our opinion 
there is no analogy between the situation disclosed in 
Caaper National Bank v. Jenner, 268 I11. 142, to which counsel 
have called our attention on this point, and that presented 
here, If the Paces found themselves in a situation where 
they were unable to get the title to their property in such 
shape as was necessary to get a title guarantee policy, de- 
manded by one who was ready to make a sufficient loan to 
clear off all the encumbrances against the property junior to the 


first mortgage, and without such loan they were not ina 





-8{~ 


getosh edt to tteq tadd gi 2orrte on bat? om 


eevee ie | a ei 


out gaixet to 00,000.58 Ja aset etysnmed de odt | paix) 


kx? Eb ES 


staal lenae ott teaisgs stz00. oat. te ade 

ett Ife tt seve ¢ait hebaotrod redtiet et #1 mina od 

ged ¢qsoxe avtt ed ot bevetfed ei ease eid? ah tomebive 

bivode setoeb oft .eoacontiw eff bas mothewtgy qd beouboty 
tedt nit tevpay bas eldetivpent ef tt sebsaoed beetever oe 
Atiw 00,000 C24 to dmuyaqst sit eriper' tor eceh ee 


003000,889 ylno tud mothantal of toed tog Mite teererat 
sonebive sit [fs to wetv al tase tog Sts teetstar ttiw 
beretas 86 serseb oct moiniqe edt to ete éw Htossr ekit' nt 

«taut brs elder tops rapenctess 2028 a 
sonabive yreve st ered? dadt bogus yilent? at 1 : 
: on eehro 

lh taertelesce edd bas aseat eds neewted ‘notent es 


rele oe Da Tee 


S ai gatbaste yas mort wont to todd to isd a a . 
ote flor sidetisps yas gnaividost sort To be sue g ee 
A a 


r 3a? 
a! retecm edt mi beton viisottiosge gatbatt adit Aste o9mgs ow. 
s feul ® 

m9 wred aoleuifoo on" ¢edt togtte ocit ot <datog aidt mo ‘ter. 

 Moinigo tuo sl "“,bedeildstes ueie aad 2924 bas fLtd bise eat 
ai beeoloeih aoitaytie ed? asented wre. on MM nist . 
rs) beh, 
Ne | feamsoo doidw ot .Shf ,[1f 988 cZasuiek ȴ, : 


betnesste tatt bas .teiog eidt mo aottastss we et.tep iter mn 
sted moiteutte 2 ai sevleensdt hawet asont alg e e794, 

feue mi yireqotq Todt oF sltit sodt tey of ofdenw exew vodt 

~ob “.yoifog setnetevy sItit 5 teg of yitededem ‘eaw as eqads 
ot meer tustettive © siaw of Ybser séW odw eno Yd bebidw” 


iy ot aot nit yereqoty edt Jenixge esonerdmions edt ‘(18 TY0 tesifo ° 
















: eat ton exsw yer asol dove twor ¢ bas yegeadrom Fert 
i$ : a A RRL eg cee Soke ed Oe tk 





—20= 


position to pay the amount called for on the loan from 
Harnstrom, and Harnstrom, as is apparent from this record, 
came to/the position with regard to .his transaction which 
he endeavored to estabiish in this case; and if Lill, who 
had become the owner of the junior mortgages, was not dise 
posed to be unfriendly to them and if in taking the action 
he has taken in prosecuting this foreclosure suit, Lill 
was thereby disposed to not only protect his own interests, 
as such action unquestionably did, but also save the Paces 
from an entire loss of their equity in the property and 
make it possible for them, with the additional time thereby 
resulting, to make a further effort to make such provision 
for the payment of the amounts found due to Lill and Harne 
strom under this decree, we are unable to see how any harm 
is therevy done to any of the parties, nor, in our opinion, 
may such a situation be reasonably said to be in any way 
inconsistent with the proper conscience of 2 court of equity. 


For the foregoing reasons, the decree of the 


Superior Oourt is affirmed. 


DECREE AFFIRWEDs 


4 That 





mO8— 


moxt meol and so tot aeliao tavoas edd yaq ‘ot noltisog 


roost widd sort #aerscqs af s8 ~mottetell bas wottedtsk 


5 i pete a RIE, rts in 

doide gottosanet? aid) of Braget dtiw aol#lecq oat \ee ‘sits 
odw gilid Ii One 79eso aid’ ai datidatas of herovesbae ed 

said tou aon ,eegsgitom toinui, edd te xomuo add emgoed bad 


ie Lftd .tine eruscloers) eid? gaitugsaeang. ahs a EE 
wieetssai owo eid tostorq ylac fon oF deseqadh NéoteAs BAW 
ss ageed edit eves oats iud bib Uicen us, nokt04 tose am 

bas ytteqety edt ai Ytinps tiedt to esol exttae as mort 
Aga omit Lenottinds ods dttw meat cot 0f 
ss toketverg dove stem ot ttle sedtaut eal nid. Lanes 











Cae OD ae 







mrad wis wod 99e ot eidenyu ets ew ‘sor00b ‘abide’. Yebau motte 
- ytolalqo ‘uo at <ton <2oit tag ‘edt te yas ‘ot enol , Worems et 








oaeavne to ¢<uoo s to sonsioanos reqerq edt “dtiw te 
t mle stew weap . 


CARAT TE wmoae 8 Sate Set et etenlt 
Lede asis belies over. 
gRob 3 ee et ae ei Be mada 


yk f  Pesckl Uke: ees ne bay one wd Sabriaa : 


rit Sagi be ae as ay tee Lee @' ‘ewote 





2 soigos sd} guided ai ti dae yuadd ot Uhseitiay af ot, beng 


~aTeli bes Ifti o¢ eub bevet atavgome edt to snemyaq ode rot 


yam yan. at ed of bise videnceast ‘ed’ wold aud Ke’ a Asem | 


edt To esrosh oat sBOR8ST wneeihat: Tot, Pee | : 
bomnEhts, at #uud. coltege 


ae «¥en, tie ote wegnab., 


Paes seth: chee ey tea ng agi cet Peete: . 
. ™ H Aes eh eats 


ea 2h somo Oa soavie ‘ 


 Dekaabe oaw i a 





iy: 


“ 
~ 
wy 


that she later paid him $20.00 of that amount; 


47 — 31164 


PEOPLE OF THE STATE OF ILLINOIS, ) 


Defendant in Error, 
ERROR TO 


Vv 
di CRIMINAL COURT, 


HELEN JANKOWSKI, COOK COUNTY. 
Plaintiff in BELO 5 ES aa re A 
kod oe D eb 
Gpinioa filed March 32, 1937. 


MRe JUSTICE THOMSON delivered the opinion of 


the court, 


The defendant, Helen Jankowski, was indicted for 
mayhem, There were two counts in the indictment, one 
charging her with assault with intent to commit mayhem, 
and the other charging her vith dovkeeying the eye sight 
of one Joseph Krysinski with malicious intent to maim or 
disfigure him. The jury found the defendant guilty and 
fixed her punishment at one year in the County Jail and 
a fine of $1,000.00. Judgment having been entered on that 


verdict, the defendant has sued out this writ of error, 


The defendant contends that the evidence failed 
to establish her guilt, beyond all reasonable doubt, The 
record shows that the defendant had been running 4 small 
candy store. The complaining witness Joseph Krysinski, 
was apparently in the candy business, selling to stores, and 
he had been selling candy to the defendant for some time, 
The testimony introduced by the prosecution tends to show that 
the defendant sold her store to # woman named Antonia Drogdik 


and that at that time she owed Krysinski @ balance of $36,75; 
that at one 





Papuley beLIs = TS 


<STOMLIGE TO" ra? aRT "0 aivons 
torre mi tiebine ted” 2 ea ree a 


gy eg 


Ne OT sCnAa 
SOO LAMTMLAO | 7 
Os <p YPRUOO - 3009 5 gegen | oiavomay’ “waa 
| : 4 ,TOTeR ot basal gt sae daseg 








PED ALL BAGG «0 ccermnms 5 ced 
‘a3 TROL q® S62ae Dalit aeinigy °° i» Coon at : as fa bs | 
aa to aoinigo sit bexrevited womoat ‘worraut ait GOT Be 
: ik ah a rere edt 


Sik neee th, tings 
oe rot Sedoibai saw _dlenqdaal aveiok.. Aeneas. 9, was inom. 
ero ,tnemtoibat ed¢ at. atasoo ort ers. ozs ; moda 
gusdyan dimoo of tastai stiw tinsmes, Abie. re anigrado 
tigta oye ct gatyouteeh dtiw ced gatgrads zedge. 8 oat be 
to mism of dastal avoietfen atiw ttenteyta, dyea0h emo to 
bas veliog tashesteab. adt Savor VtwG. ody _otttd ds ) 3 stot 
bas fis ytnved od¢ at they eno ta © ssoaitetaan rod bextt 
ted? a0 borotas weed yaivad taemmg 00 000,18 to eait « 





a , in a 
te + 
~ en 








sto1re to tiiw eidd tuo beue ont Panos goatee 


ah 


beliet sonsbive edt tadt abstetnoo tachbasteb ont 
Sat ztdeob sidencesst {fs biroyed neon ted det 





a bas <eetove of gaiilee .seesiaud ybaso odd mt vioneraqas ean 
s@mlt soe Toe dasbasteh orld oF voaee aniliee ased bad ed 





wus! 


time she went t ck to her store and asked Mrs. Drozdik 

if she was still buying candy from Krysinski, and finding 
that she was, the defendant asked her to tell him to come 
over to her house and get the balance she owed him = writ- 
ing her address on a card and leaving it with Mrs. Drogdik 
for the latter to give to Krysinski, The state's evidence 
tends further to show that Krysinski went to her house 
several times in August, 1925, to get his moneyy but the 
defendant claimed she was unable to pay it and asked him 

to come later, The evidence further is to the effect that 
one Saturday afternoon in September, 1925, Krysinski was out 
in a new automobile truck he had bought, receiving instructions 
on the driving of it from a chauffeur in the employ of the 
truck company who had sokd him the truck, and they passed 

the defendant on the street, and at her signal stopped, and 
she and Krysinski had some conversation, in which she asked 
him to come over to the house and she would pay him the money, 
and it was arranged that he come over the following afternoon, 
which was Sunday, September 27, Krysinski testified that he 
went to the defendant's home at that time and knocked on the 
door; that the door was opened a few inches and he saw the 
defendant standing inside, but the door was not opened fully, 
but closed again and locked; and that after a few minutes 

it was again opened, and suddenly some liquid was thrown over 
his head and face, which blinded him; that heturned and left, 
making his way to a place about a block away, where there was 
some water, where he tried to wash his eyes and face; that 

he was unable to see anything clearly, saying that objects 
looked as though he were looking through tissue paper, He 
then testified that he went home; was cared for by several 


doctors, without success, and then was an inmate of a hospital 





‘mos 


b55L6 ~ Te 

Zibsorwd .evM Hewes bas stote sed of io ad tnow oda omit 
geifiait bee ,fodiaentayra mort ybasco gaiyud Litte ese ede 7% 
amos ot mid ilet of ted bodes tnebmeteb odd tee ode tadt. 
-tinw - mid bewo ede someisd edt teg Sas saved red of TevO 
dibsorw .erh mie ti gitveaet bas bis s£ a0 esetbhs 304 Bat 
sonshive aletsie scT .iteniayta of svig of ‘metsal ‘eit ‘rot 
eavod ted ot tase bienteya tent wode ot tedéaut abast 

edt dud ,yemom eid teg of .S88l .tenguA al somlt istevee 

mid betes bas ti yeq@ootieidany ssw side bemt slo tasbasteb 
tad foette ont of ef sedtewt sonehive ed? .x6tsl emoo of 
tuo aew ideniteyth .SS€L .radmetce ai aoomres ts yabust ab ‘eno 
eneljortieat gaivisosr ,idgued bad ed dost elidomotus wen 6 at 
sat to yolqm=s edt ai tweTiwedo a sort tk to gaivizb pat, 0 
beeesq yedt bas .douxt ect mid bLioe bad one Taegu douss 

bas ,beqqote Ismgia ted ta bas .teottea sit ao taabastsh edt 
boxes ode doidw of ,soltsetevaco emoe bed identeysy bas ede 
e¥Snom edt mid yeq blvow eda baa caved onF ot TSVO. emoo. ot mid 
etoontstts gaiwolfot edd revo emco ad stadt. begusris ecw tt bas 
od tadt beltitest taenteyry «TS todwatqed. s¥ebave esw. dotdw 
efit mo bexoont fae emit ted? oa amend. a'tasbasteh edt of tue 
eit wse ed ban asdoni wet s beneqo new TOOb odd tedt ¢roob 


eViivt Semeqo tom asw tooh edt tua .ebteal aatbote tnsbaoted 


if URES OF 
estuntm wet e rette ted? bate thewoor bas alse heselo tod 


le Geol bY Ps 
TeVe awotdt easw biluoil smoe Vine bbire bas bemoqo aiegs asw et 


ettel bas bearuted tedt aid bebrite do tw <soat bas heed id 
eaw ered? store tems toold & tuads eaig & oe yew ald gatien 
tedt jeoet bas asys ats dsow ot heits od oie qxetew i pak 
atoetdo tadt gatyaa issele galdt yao oan ot le. big dans caw os et 
2 oi _ T8qaq swaatt dgvordi gatioot etew od dguods as bexool 


a Imaves w rot bene aw hogscde oad od tat pares 8 





Gee 


for seven weeks, without improving, after which he went 

to a Dr. Kraft, This latter doctor testified that Krysinski 
was totally blind and always would be, and that the condition 
of the eyes as he found them was caused by some caustic or 
acid. Krysinski was corroborated by the testimony of the 
chauffeur, who was teaching him to drive his new truck, and 
of Mrs, Drozdik, who bought the store from the defendant, 
Krysinski was asked whether he had ever had sexual intere 
course with the defendant and he said that he neverhad, He 
further stated that at the time the acid was thrown, he was 
not inside the defendant's house, The police officer who 
arrested the defendant testified that he talked with her at 
the station and she admitted she had thrown liquid of some 
kind on Krysinski, and in explanation of this she told him 
that after Krysinski had been coming to her store for some 
months, selling candy, he came back into the rear of the store 
with her and had intercourse with her, and that this had occurr- 
edat different times up to the time she sold the store, 

over a period of four months, after which he visited her at 
her home and they had intercourse there, up to within about 
four months before the incident involved in this prosecution, 
She said that her husband had found out about it and questioned 
her and at first she would not tell about it, and then he had 
learned something of it through their eldest child, after 
which he had again confronted her, and she then told him the 
truth about it, whereupon her husband told her to get outs 
The officer further testified that the defendant told him 
that when Krysinski came to her house on the afternoon of 
September 27, he knocked on the door and when she answeredy 
“he rashed in and struck me;" that she then acreamed and ran 
to the kitchen and took "a bottle of some stuff I think what 
my husband used to clean or flush the basins in the toilets," 





eile 


tnew ed doidw totte ~gaivorqmi teodtiv ,adeew nevee rot 

identayti tadt beltitast cotooh restsl aid? Sterx a s ‘ot 

noi#ibacs odf tats bus .od biuow eyewls bas bakid Uinayet | aaw 

40 ottauso omoe yd beaeo ssw medt bast ad ee Beye” eit? to 

sit to ynomitest edt yd betsrodoTzes esw tented ‘Bite 

bee ,dourd wan sid svizb ot mid gathoser aoe odw ‘guie? Yiflto 

wtasbasteh sft mort erote adit diguod odw citpeorg’ jam to 

wtetal Iauxse bed teve bed ed sodtede betas ‘asw identays 

eH .bedreven od tedt biee of bas tashasteh od? dtiw esto 

we od .awordt caw Blog oat omit oot #e tend heseve reltfryt 

odw trooitto solfog os? ,eavol eltasbneteb edd obramt ‘ton 

ts ted dtiw bedlat od tat beitideed tabi tes edd betsotts 

Soe to biopit awordt bat ede bottinbds ode bus noftete ‘ont 

aid blot ede etd? to mottensiqxe mi bas .ttenteyta no bats 

smoe rot etede ted ot gnimoo need bad Ldeateyre testa dads 

erode eft to rset edt ofmi aped sma anf ~ybast: gatifee ‘ga sttilon 

“-Tqy00d hed widt fect bas pred din setwourstal Ded bas weH “ddtw 

estote ant bloe ede emit sft oF qu aomid Ynetoliib tasbe 

te tod Setieiv ed doirw tetts ,edtaom rwok to botreq B ‘xevo 

tyods sidsiw ot qu ,sted? eatwoosedal hed yodt bas emed) wed — 

_ ~«- eftotdsosaorg eidtd ai bevlovai tacbiont edt axoted, adtnom muet 
a baxaieeaep bas ti tuods tvo bavot bad baadeud red stadt biss. on8 
bad ed godt bas .ti duods List ton bivow ede tatlt ¢s boa xed 
"etis ebitds techie tisit dguondt tt to galdeomoa, beazael 

_ ect mid blot ast ela bas xed betnoriaeo ategs bed ed doide 
«two tag o¢ red blot basdesd tod moquscedm nt. tuods. stent 

mid blot tashasteb sit ted? heititess tedtuut teoltio edt 

, Xe aeoatatis ext ao eavod ted ot enso. fianteyes godw tect 

an ve ne 
"adn ante i Tote Smee. 20. oLtsodg. ibe ha — “al 
— wiki ‘sill 


“eatettos eat at I eadscd edt fess x0 ib wie 6 


fee ha 

















w REE ET silt Miceecen'" Pra ke 
esa Sap Maia fe f he le 4 : Soy 


at 


which she threw at him; that he ran out through the front 
door and she threw the bottel a him, whereupon she ran out 
into the backyard screaming and the neighbors called the 
police, The officer said he saw some white stains around 
the front door; that he examined the floors and carpets 


in the house but did not see anything unusual about them, 


fhe defeniant lived in a first floor flat and her 
younger sister and husband lived on the second floor, The 
two latter testified that they heard her scream for help 
on the afternoon in question and that the screams came from 
the direction of the kitchen. A next door neighbor testi- 
fied that she had seen Krysinski the week before, on Satur=- 
day evening talking with the defendant, apvarently near the 
house, for about 15 minutes, when she came in and he walked up 
and down apparently waiting for her, but she did not come out. 
She further testified that she had seen Krysinski about there 
a number of times before on a truck which he would leave 
standing nearby in front of a grocery store, "and he would 


be gome fully three quarters of an hour over to her place," 


The defendant testified that she never owed 
Krysinski anything; that after he had been sellimg her candy 
at the store for a short time, he began his attempts to be 
intimate with her and that on one occasion at the store, he 
followed her out in the kitchen, where she had gone to get some 
money to pay him for the candy he was delivering, and there 
he approached her and overcame her resistance and had inter=- 
course with her; that she told him she would have him arrested 
and he told her if she did anything like that or told anyone abou 
it, he would kill her and also kill himself. She also testi- 


fied that on another occasion he had intercourse with her at her 











ohn 


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#uo ast ede soquvercedw ,mid de fetiod oat wozdt ota bas ‘rood 
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bavots anisie otinw smoe wse od Sise xsoltte odt gees ion 
efeqrso bas etoclt edt benimsxe ed tad? j00b ‘tort ‘out 


¥ ha: 


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red Oo8 te{t roolt terit s nf bevtl taavaeteb eaF ivan torre 
“ont TOOL bmoose ont oo bevil braedeut bas rotate tegavoy 

ated rot mesxoe tod breed’ yodd watt: pettitest wedtal owt 

mOTt 9m6o emsetoe sit tett bose notteenp nt nvemretts edt cao 

=ttest todigion to0oh txsn A .metotia edt Yo softoerii ous 

“titet m0 ,2Totsd Asew ont tventeyrxd nese bat ede Fatd bert 

ad¢ Teea yitmetecqs .tashoeteb edd ddiw gabiled galaeve ‘Yeb 
ae boiler od bus ai emso ode nedw (gedemin Of fudds “dT dened 

| B10 emoo ton fih eda tud .rad Tot eaittew yltaetacqa mrod ‘bits 

Oy exedt tuods tienteyyyd asee bed ade tadt belttfeed Tedfiut eye 

evesl bivow od sotdw doutt @ ao sroted sbald to dedmuit’s 
bluow od bas" ,etota yrscorg & to $aort at ydrsen yatbaste 

",s0alq ted ot revo trod os to ranged ott Biyiivncie Beg 


Ong RR % 


bewo teven sda tedd s:ihiidadigmeatats oat Rha. oa 

‘ybsiwo ted grilles ased bed of <odte tect ggeidtyas, idemieysd 
sd ot etqmetis etd aeged of ,owtt trode # toh erote. edt. ts 

et pexote sd te notasoso ono Ho" Tadd a8 ted dtiw otamtéat | 
Smee Yep oF emog bat ode sxerw ,aedotEA odd mt tuo nod bewolfot 
etedd bar ~enitoviteh esw anf Yhaso odt tot mid vag od yonom 
teint bed bas *eastateet ret smzotev6 bas ted bedesorqqs of i 

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wots smoyas Biot ro tae sALl gnidtyas 528 sie te tod bfot-edebas 
| cieet cole od@ .tisamid Iftd vets Sik red LAB Lon a att 
sete nod dg iw cemootatal bed od ee. tone : bet’ e 








~5- 


home, he testified that on September 20, the Sunday 
before the incident involved here, Krysinski was out in 
front of the house walking up and down, and her husband 
asked her what he was doing there and she said he had better 
ask Krysinski, She said Krysinski had often suggested 

that she poison her husband, saying that he would poigon” 
hie wife and then they could be married, and that she said 
she hed her children, and he said, “my people and his people 
is going to care for my children and his children,and I 
said no," It apoears from the record that at the time the 
defendant was testifying, in March, 1926, her husband had 
procured a divorce from her = as the defendant put it = 

"He say Krysinski is my sweetheart, now I lose my home 

and my children," The defendant had four children, She 
said three of them were her husband's, She was asked who the 


father of the youngest one was and objection to that question 


was sustained. 


On cross-examination she denied ever seeing 
Krysinski with the truck driver, She also denied ever asking 
him to come over to her house for his money, saying she never 
owed him any money. In rebuttal Krysinski took the stand and 
denied the testimony of the defendant to the effect that 
he had suggested he would poison his wife and she should 
poison her husband and then they could live together, 


It would seem to be apparent that neither of the 
principals involved in this case told the truth, No reason~ 
able person would believe that Krysinski went to the defend= 
ant'gs house merely to c@lect the balance of $16,00, without 
ever having had any trouble with her, either concerning that 
small debt or anything else, and that practically out of a 





a * 
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2 basdeud ted bas vrveb bas qu galiiew eayod ‘edt ye $nort 


rotted bat ad bise ede bos exert ga tob 286 of ‘tade rei bodes 
“Sotesggues aatto bsd iianteyrd bise ‘ede | sitentay ad ‘des 


ty ee 


tepsieg bivow od tadt gaivyes ,baedaurd red aoetog ‘oda ‘ged? 

bise ote tadt bas ,beit1sm ed biveo yedd aadd Bae etéw eid 

elqosg aid bas efqoeg ym" .biee od dae ymorbi ide red bedvode 

| 1° dae, Aeibiide eid hae ssthiido ys zet omso of grioguel 

_ ot emit oct ta tedt breoer edt mont ereecqea #1 San bias 

bad basdewd red ,8881 ,doteM ai egniytitees saw dasbaskeb 

cra i duq tnsbaeteh edt as ~ ted mexk sotevlh 8 hetporg 

. emo ya eeol I won géasedteowe yo ab diegteyty, yas ek" 
- ed2 ,serblido qwol bad saebnsteb ad? “enerbhLits yebes 
seri odw beales ecw od8 .etbasdeet tod oxew, madd te conde bhew 
 Meivesup tadt of soitootjdo bas ssw ono Pesgavoy » odd To tedtat 
. sbeat stain asw 

duses yar thaiate 
gaisos reve holtmeb ade nottantnexe-aacto re ee 
gaidtes teve beissh cals off wrovich dows edt dt iw tdgatayrk 

@ roven ode gaiyse .yomom sid tet sexod ned of teveremen of and 
; has Soste edt soot ivanteyrd Ledtester ml) «¥ouom yar wid bewo 
tad? toette sdt ot tashasten edt te ynomisnsd elt betasb 
bivoda sde bas Stim eid aoetoq binow ed: botacggue bat od 
eterteget svil biueo yedd. sedt. pre, banana he AON 





ses Oat ORFS 
es “oat Yo teditiea tait tneteqas ed of ‘998 ‘pivow #1 . 


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shea oh 









—6= 


clear sky she would throw this strong liquid into his face, 
The defendant showed by her own testimony that she appreciated 
that whatever this liquid was it was very powerful, because 
she described that her husband used it with a sort of swab 


made out of a bunch of cloth would around a stick, 


On the other hand, we see no reason to doubt the 
testimony of the chauffeur and Mrs. Drozgdik, in spite of the 
defendant's contradictions of their testimony. From all the 
evidence in the record, we are inclined to believe that 
Krysinski had been unduly intimate with the defendant. By 
her om admission, as shown tn this record, her husband had 
procured a divorce from her on that ground, naming Krysinski 
as a co“respondent, and in that case he had procured the 
custody of their three children. In his closing argument 
counsel for the State reasoned to the jury that even if the 
story told by the defendant, about her intimaoy with Krysinaky 
were true, still she had not related a situation justifying 
her admitted act of throwing this substance into Kyysinsky's 
face and blinding him, The jury apparently took that view 
of the situation, and we are not in a position to say that 
they were not justified in doing so. While, as already stated, 
we do not believe thet either of these parties told the whole 
truth, we have reached the conclusion, after a very careful 
consideration of all the evidence, that we cannot say the 
jury were not justified in finding the defendant guilty 
beyond all reasonable doubte 


The only other contention urged by the defendant 
in this court is that the prosecuting attorney made sud 
& prejudicial and inflammatory argument to the jury as to 





~3~ 


~oost sid otai btupilI gaotte eaidé words Slvow ede yle reefo 

| betaiostqgs ode tadt quonttest awo ted yd bewoda tashasteb. edt 
: geyrosd ,iutrewog yrev esw ti aaw Sisptt elds revetsdy tedt 
dawa to #10n s cdiw tt bees basdewd ted tad? beditoeeb ede 
eslottea s bavots biwow dtolo to ae a +e: one ks 


i 


ait tduvch of nogset om soe ew , based todio ed¢ x0 ° ade Suc 
edt to o¢iga ai itbeomd .ex bae wwobtwado edt ‘to yaomt test 
act {fs mort .yacmttest riedi to eneitethertacs @ttaabnsteb 
dent svetied o¢ bantion: sis ow qbreser ext at wonsbive 

yi .«taehasted edd dtiw stamttai ylubow ased bed Indenfeyra 
bad baadasd tend ,bhteooet sini alt swede Be no teeimba ano rent 
identeyxd gaiman .dauotg tadé co tod aoct ean 8 heereae 
ses 
tmemugis yateofo etd ml .werb iid eecds atods to hos an 
edt Zi rove tedd yrut edt ot Bendeecr Stare oft TOY “Bedi 
fotinteX dtta yosmtini rsd tucda .thanweted eas vw blot rove 
Neubieeh fea} noitestin 8 betalet toa bed ede I£tF6" evade oven 
atydenteyyi otai soastedue etdt saiwor dt to tos bodtimbs ted 
wetv tsdt doot yltne tsqas veg ont abd ‘galbaitd bas soe? 
tedt yse of noistieoq s ai tom ets ow bas _ sottaut ts edt te 
betsie ybsetis es .ofinW .o8 galob at botsveut Bae Foy pk ae oT Seen 
- afodw ant blot sstireq aeedt to rodtto tadt fretted 08, bo Bd 


fstarso yIev 8 tetts ao Leu Lomo oils bedoser ask oF w oiturd 


edt ySa tonnso ow teds .sonebive ods tis te “mottexsbt enn 
viiteg tasbaeteh edt yribait ft bettitast tou stow vust 
etdvob: be speraunsmnat se ere 


fi aie te Phe e 
“ ime Soren a aller d OMat 


_ taabooter edt Ye Segue noltnstans resto xno. Vhcisie' is 


: ’ eae ana Yoaros se galiuoveord oat. tedé (St dtu00, stat 
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edit bersoo1g bsd ed saso teat At bas |. te 








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~ 


interfere with her receiving a fair trial, wWe have 
examined all of this argument, as it apvears in the record, 
In one or two minor respects the prosecutor misquoted 

the testimony but not to such an extent as to make this 

& material matter, Most of the remarks indulged in by 
him, to which objection was made, were statements which 

were warranted by the evidence which had been submitted 

by the prosecution, One or two statements he made were 
very apparent exaggerations, but, on the whole, we are 
unable to conclude that the argument was such as to warrant 
this court in disturbing the finding of the jury, In 

the course of his remarks he referred to the wife and 
children of Krysinskis Hye wife was in court and at fhat 
point in the argument she was apparently crying and making 
such a disturbance that the court interrupted the argument 
and had her removed from the room, saying that no such 
demonstration would be permitted, We do not deem that 
incident sufficiently serious to warrant a conclusion on 
our part that the defendant's rights were unduly prejudiced, 
The trial court acted promptly in the matter; he witnessed every- 
thing that transpired and was apparently of the opinion that 
it did not justify setting aside the verdict, There is 
nothing im the record, relating t this incident, which 
would warrant this court in overriding the judguent of the 


trial court concerning ite 


Another point is made in the brief involving 
@ question of newly discovered evidence as a basis for a 
new trial but no mention is made of this matter in the 


argument presented and it will therefore be deemed to have 


been waived, 








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taemugse sdt betgquristal tudo ont test eonsdrut ath “i yell 

dove on tadt gaitss LOOX outs mort “evoser tod boi bas 
Sie exe ra 


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mo soleuvlonco 8 tasrisw ot auo tree vitaetolwe sasbiont 
; hott iene ts 


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mrt: eae 


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tedt moinigo edt to yltnetaqgs asw bes horiqaasrs tadt gat dt 


‘ee baring 


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SUS RS Be 

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GO . ae eTy 


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gaivioval teicd edd ni sbam #f tatog wertond» bnoyed 
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sdf af retdem aids to sbsm at sottaem on tod fsict wou 


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1 RA NER Seeiletie, ARR SAR. le te BS diol ake 8 e 





=—B- 


For the reasons we have given, the judgment of 
the Criminal Court is affirmed, 


JUDGMENT AFFIRMED. 


TAYLOR, PeJ. AND O'CONNOR, J. CONOUR, 


= sales 
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75 - 31199 


SARAH R. WILDE and ESTHER CG. RALPH, 
individually and as assignees of 
MARGARET A. ALLEN, 





Appellants, APPEAL FROM 
¥; MUNICIPAL COURT 
OF CHICAGO, 
THEARLE DUFFIELD FIRE WORKS DISPLAY 
COMPANY, 
Appellee. A Af A = 
a ee 1 OD = 


Opinion filed March 3, 1927. 
MR. JUSTICE THOMSON delivered the opinion of 


the courte 


By this appeal the plaintiffs seek to reverse 
an order entered in the Municipal Court of Chicago, vacating 
a default and judgment which they had previously procured 
against the defendant, in the owe of $12,000, 


The plaintiffs brought their action of the firat 
class against the defendant in the Municipal Court of 
Chicago, and summons was duly issued and served on the 
defendant, according to the pailiff's return, by leaving 
® copy with "John Doe, egent, who refused to give his true 
name, * * * and at the same time informing him of the con- 
tents thereof." The defendant failed to appear in response 
to the summons, and judgment by default was entered in fave 
of the plaintiffs on January 19, 1926, Within 30 days there- 
after, on February 13, 1926, counsel for the defendant filed 
& special appearance "for the purpose of quashing the summons," 
and moved the court "to vacate default and judgment and to 
quash return of summons," This motion was duly entered and 
continued to March 5, 1926, and on that date further continued 





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siete nt Secodie gaw tfiwteh yd pee 
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Bubs. 











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men 
to March 19, 1926, 


When the cause again came before the caurt on the 
date last referred to, counsel for the defendant appeared 
and asked leave to file a petition under section 31 of the 
Municipal Court Act. Counsel for plaintiffs then called 
the court's attention to the motion to vacate, which had 
previously been made and was still pending, Gounsel for 
the defendant then suggested that he was not estopped from 
presenting a petition under section 21, merely because the 
prior motion had previously been made, and in this conneo- 
tion counsel stated to the court, that "that motion may be 
denied or granted or anything that Your fonor sees fit to do, 
in your sound discretion, But, nevertheless I am here with 
a petition,® which he then proceeded to urge upon the atten 
tion of the court, The record shows that on this day the 
cause came on for hearing upon the defendant's motion there= 
tofore entered, which motion the court overruled, Next, the 
record shows that the court granted the defendant leave to 
file its petition under section 21, to vacate the default 
and judgment, and upon consideration of said petition the 
court sustained it and vacated the default and judgment of 
January 19, 1926, and directed that the defendant file an 
affidavit of merits within 10 days. From the latter order 
the plaintiffs have perfected this appeal. 


On December 27, 1926, the defendant submitted 
its motiog to dismiss the appeal on the ground that the order 
appealed from was not a final order, and therefore, not 
appealable, An order vacating & judgnent on a motion made 
within the term or within 30 days after the entering of the 


judgment, where the cause is in the Municipal Court of Chicago, 


= 


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LOSER timed 
ny 


edi mo tue odd eroted omao pring easiao ate mocta’ bi ml 











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helian sede ettitataiq verk tonnes e#8& Fr9O fagio Lasu 

bed doidw ,steosv et aoiton eff oF ott mst te etex me ‘pitt 

xeot feenvedD .gaibmeq [fide eeu bas oham aoed Wanolverg 
gut beggetes ton caw ad sade Detemggirs mach tasbaret oh wut 
si? eeuweod werex . £8 dotese tohaw mle ideq 8 gattaoeerg 
~gemroo aidd nt bre .ebsn gaad ‘qlavotvera bad’ no tt om siwiond 

od Yen mottos adi" tadt .tiueo ot of berate feemuoo ‘molt 
206 Of FIT e998 Tonal mwOY dane gasdtyas x9 bedaaty 20 helaes 
itiw ated os f sselodttewen .twe etottoroekh, awoe, 10% ak 
anette ant moguiven ty ot bebasoong sedt ed doidw ",soldtteq & 
odt Yad elds no tedd avoda Dudoes sdf «txun odt to. mott 
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adt .txow beluereve Huoe adh notton do bebe sboretas exotot 
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tiveteh edt eateoav ot AS ‘nobtees tebaw nottiteg ath ‘eitt 


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er sg RE NAY 
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webro todtel ode mort <oyed OL etd bw eg trem to thea atte 
cre Deas 


Lawes abit boteatreq ovad eYittatete oat 


Pa Got a Bg 


Hottindor taghagien edt ~8eL QS xedmeoed MO 0 gaat te 
sapre 949 Yedh bawory ods so Laoqqe odd eatmmth of foltou ath 
toa ,erotere ct fog pease Laat? 6 ton gam nor? be iacggs 

Mien gotten 2 co Seonghap oe: ‘Bais soov TSTS BA af, 
ede To ystnorne ect tothe eysb. OB middie To mxet et unseey 
amie te tasod Ieqiotauy odd iad ated na liao stampa 





be 


is not final and is therefore not appealable, But an order 
vacating ® judgment after the term or after the expiration 

of 30 days from the date of the judgment in the Municipal 

Court of Chicago, on motion made under section 89 of the 
Practice Act, or Section 21 of the Mynicipal Court Act, is 

final and so appealable, A. L. Glark & Go, Vs. Gharles Levy Co., 
19 Til. Appe 656; Gellay v. Mathis, 195 Ill. App. 170; 

Doyle _v. Fallows, 207 Iil. App. 5; Gramer v. Ij1. Commercial 
Men's Association, 260 I11. 516, The petition filed by the 
defendant in the case at bar is designated by munsel as @ 





petition filed under the provisions of section 21 of the 
Municipal Court Act, as is apparent from the petition itself, 
wherein the petitioner "prays, under the equity powers of this 
court, conferred by law, that the judgment by default be vacated 
and set aside,® The motion to dismiss the appeal was reversed 


to the hearing and is now denied, for the reasons above stated, 


In our opinion, the trial court erred in entering 
the order appealed from, vacating the default and judgment 
pursuant to the petition filed by the defendant under section 
21. As this court had occasion to point out in Langner v. 
Keeshin, 223 I11. App. 642, and prior thereto in Flora v, 
Fields, 156 Ill. App. 341, "it is only where the defendant 
has made no motion to vacate, set aside or modify a judgment 
within 30 days after the entry of such judgment, that the 
Municipal Court has jurisdiction to entertain a petition alleg- 
ing grounds for vacating the judgment, which would be suffi- 
cient to cause the same to be vacated by a bill in equity," 
which is the relief sought by the petition filed by the defend- 
ant in the cage at bar, Section 21, of the Municipal Court 
Act, Cahill'g I1l. Stat, 1925, ch. 37, par. 409, distinctly 


bce a 


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foigess eshauv tasiacteb ad? yd belit soi¢staq, odd) of tmaspurg 
oW Meteor) af duc teieg of aotmanoe baat ta09, aide A 4f8 
oV 27005 ai ofersdt colsq fae . BO .qga: + HE, B88, ,atdeoex 
tasineted ott exec yloo at 22" 188 sad Akl, 88, pabloye 
tnesgbet, 2 Vilbos to ablas Joe ,etapar, od Hok¢om om aban ead 
edt tadd tmemybist, dou. the vatew est tet he eye OF, aidit.tw 
-gelie ante siee 2 sistrotne ot ironic aad vg {oe to bai 
~ihiwa od bivoe to ke <fnomabet ort nalsaoav a abavory gat 
"eubhupe at Eke 2 we benes.ey ‘ed of ‘oman oat cau ia 
~buten ods we bers nottttog ent we tives sttex edt ab folie 
wep oqo tani! one to * nohtess aad ‘ta sie ‘a a as 


5 4A ABs Sues y yey q i 
| itomts at <e0e tea ~ wo “saeee tate . et | 
wy Gt ak ea tet dalyar,, 









CBR ata 





codes 


says that a judgment of the Municipal Court may only we 
vacated in that court after the expiration of 30 days, by a 
petition setting forth grounds for vacating, which would be 
sufficient to cause the same to be so vacated by a bill in 
equity "if no motion te vacate, set aside or modify any such 
judgment order or decree shall be entered within 30 days 

after the entry of such judgment, order or decree." The 
record in the case at bar shows that within 30 days after 

the entering of the judgnent in favor of the plaintiffs, the 
defendant did come into coumt and "move the court te vacate 
default and judgment and to quash return of sugmons." The 
defendant, having done that, was obliged to secure what relief 
it might from the judgment which had been entered against it, 
through such motion, and was not in a position, after expirae 
tion of the 30 day period, to abandon thet motion or suffer it to 
be denied and then seek relief under section 21. Ag intimated 
by this court in Gallay Vv. Mathis, supra, sum a petition as 
the one involved here, being in the nature of a bill in equity, 
must show not only a meritorious defense and that the entering | 
of the judgment against which the relief is sought, was without 
the fault or negligence of the defendant, but it must also 

set up such facts as will show why the motion to vacate was 

not made withig the period of 30 days, provided by the statute, 
and that the failure of the defendant to make such a motion 
within that period, and secure the relief sought in that way, 
was not due to his negligence, fhis is in accord with the 
general theory of equity jurisdiction, which requires one 
seeking relief in a court of equity to show, as a condition 
presedent to his right to such relief, that he does not have 
an adequate remedy at law, Where the statute expressly gives 


aslo 


od vino yee tam) feqiolew oft To dupmgbul: «, tede, oye 

SU  ayeh Cf to noltaciqze odd sedis duyon tedd a1 bedsoav 

ed hinow soidw ,galtcosy tol ebavotg drot gakiteoa ao iptieq 

at Ifid 2 ¥0 beteoav os ec ot emma edt ceuxo ot taototitue 
tow yos Ybtoom so shige tee ,otcosy ot sottom on 32". yt iupe 
eye O8 widtiw beredme ed Liads spteeb to. sabre, tromgbart 

edt ",9ot0eb to sohto .daemghyt dome to yttae edt tebts 
tetis eyab 08 aldtiw tact ewoda tad ta aeno edd ah brooe 

ent ,vttivaisiq edt Io rovet mi duemgbe, edt to gutietae ect 
ateosv oF tums adt avon" bas tuuco odai omen bLd tushaeteb 
adi “,anomure te outer deaup of bos tamghul baa, ssiuuia 
teifer veade erecoe od hogiide acer , tect sooh paivad Sf 
a¢i tedtiaga batetne need Sed doidw doommbyt edt sort easbaiane 
~srigxe retts ,noitieeq # at toa saw bre yrottem dove dguondé 
ati wstics to sottom tad? mobgeda ot ,boiveq yeh 08 e@ to sott 
betsaitmi e448 acitesor «sbaw Yeifer dees sedt bas beoimed od 
an nohetend 8 bye .erqwe ,aidd a «v yet isp ai tumoo ald? yd 
i iupe at tik s ko grant sat odd mi gated ered beviownt eno ‘edt 


1 








gakretas 9 it tld bas ans Tob motnotisen 8 elo ‘tom wode ¢ 
tuodsiw dasa «tiigus0e at tes Leer oat dp Seber tenlage Sonsgbut, “odd % 
cele teum vi tod sfushos Yop 9 at to coms Afgea 0 ‘tus? ods 
ase eteoey of med sow ade yale work fk bw Bm ‘atost Mowe au #08 
eotutate sie va bebivora ri os te boieg ‘ont ght iw ibaa ‘toa 
woken r) dose oda of tasbaeted ode to orm List oat “pads "Sas 
yar tat ad 3 yor c@ Yet ler ent emsrose bas “qbotteg. tat mist w 
ads dé tm brave at al aldy oonog t igen aid of ‘eu 3 pty 

ane sox iupen so sw snostotbe taut ‘yttupe to roads ‘[areneg 
a m0 ttt bivoo sae enone ot Winpe to Proo # a2 tettes gations 
., ovat tea ech od tate ‘ehod fer foe we ft ai oF om 


Bee Sale 4 ‘sya 
sory eeoraxe odutate ae em pros ‘ bogoh 
sy le AS, hae bia “a 





=o 


the defendant an opportunity ef obtaining relief from a 
judgment at law, by going inte that court within a specified 
period, he may not neglect thet remedy or deliberately 
choose not to avail himself of it, and after the period 

has rumy appeal to the equity jurisdiction of the court 

to git/tren te judgment entered against him at law, All 
the reasons open to a defendant in support of a petition 

in the nature of a bill in equity, seeking the vacation of 

- @ judgment,more than 30 days after the judgment was entered, 
are open to the defendant in support of a motion, made with— 
in 30 days. These reasons support the provision of the statute 
which gives the defendant a right te file his petition after 
the expiration of the 30 day period, only wheres no motion to 
vacate is made within the 30 dey period; and in all cases 
where a petition is filed after a thirty day period has exe 
pired, as above stated, it showld give satisfactory reasons 
for the failure of the defendant to make a motion to vacate 
within the 30 dey period, We have no occasion here to pass 
upon the question of whether the trial court properly denied 
the motion which the defendant submitted within the 30 days. 
The defendant neither prayed for nor perfected an appeal 
from that order. 


For the reasons we have given, the order of the 
trial court, vacating the defauat and judgment pursuant to 
petition filed by the defendent under section 21, is reversed 
and the cause is remanded to the Municipal Court of Chicago, 
with directions to expunge the order of iiarch 19, 1926, sus= 
taining said petition and vacating the default and judgment 
of January 19, 1926, Langner v. Keeshin, supra; Price v. Warie, 


207 Ill. App. 112, ORDER REVERSED AND GAUSE REMANDED. 
TAYLOR, P.J. AND O'CONNOR, J. CONCURe 


€ ue 


& sort totter arialeide Yo yhimetnogge wa tanomstob’ ods 


beltioegé & widdiw dues tans ont gated ye com! fe thomgdet 


ylodexetiiied co ykeuet tard TOeLeer Jom yam ot boireq 

) he breg ett cetiw bas Yr te Ream Lteve OF ten! sabi 
yo) genoo eft te nottesbetent ef tube edgy oF fasqqs qattre Beit 
[ik al te mtd tentegs boretns teoemgbst etd bozt Peg) Oe 


moktitar s to trorqve mt tanbavtod @ of meeo eaoeset OMe 


to aoitavay edt galdiser .qtinge at [iid 8 to sritan endo mt 
ehoretce ase teonghyt oft cedte eye Cf ad? rom. tromghot '& 

~ijiv obem .roitom 8 kee stouque nt ¢esbaeted one of mogo eee 

otut ote add ho aghetvorg add tiodqun eabeser eoent . ayeh OF me 


\onette sottiteq eit ef42 ot ddgin « tasbaeted etd sowtg do tile 
.o¢ geitem on stetw yino yholtceq yYab 08: ed? te noltixtgxe edt 
genes {fe xf bee qhobzoq Yab OB edd ltt be obaw at etanay 


ane sadvbokrsq yah Woidt # tetas boli eb Goltiaeq Peteite 
eronnet Yrotestetiee evig Aivede +4 betste sveda am gboute 


retaose OF soltoms.ese ot tahas td odd To one htet bat c0t 
i¢kw Ras 


8 Bekg Ot 6tSs asteanto® or oral «® Solreq yap" os) ade : 
beines yltacorg truco faitd sett todd ere Yovanecdenptede an 





opeieh O8 off midtiw betdimdwa’ sd aabnoten edd de ite’ ieokton! olte 
 teeqqa as regetccas ton tot boyere todd lon teabasteb ort i 


Cr il war FCP tebroodads west 


: Ke Cee ae ebay Sa: 
ade to rabno anit tovlg. svad ow amonsot aut ot 


elt baw 
o8 taser a ompbst bas #duetot edt giitao av etuues isiné 
caer ae he be 


beurevex wi off nostooe rebaw ‘taabneteb oat Wd ‘peli ao ithieg 


Om ie ae ae 


193.001 to toe faq to taunt ode ot bebsawer at savao add bas 
ese Lewsey 


were B80L er fo tsik to. ‘abo on eguuara o snokdootLb dgiw 


‘tmomgbat bas tivaab edit galtsosr bas nObte 0g 
us eae okt wea un ae 
etiat v pst jerwa ‘horns 7 ‘4 * a 
iP REC fon Pie Hee zoguad em Hag ty 9 Sa Wks Gt as as 
Aan MAM RBVAD Ova ager avan FALULAO RE 


aqh Lt | 
eUOHOD ot <HOUKOD'O GHA .b,T "ROMA? 


Rabson ee et 
bise gataiad 


61 ~ 31135 


JABS A, BAOPRY, 
Defendant in Error, 
BRACK TO THR SUPERIOR couRT 
Wa. 
OF GOOK COUNTY. 
BERTHA FLIGEH et al., 
Plaintiffs. in Srror. 


eee Se See eel ee 


K 2 A> 


SAAT ( 
i kA belle ( 5 o> & 
KR. PRESIDING JUSTICE MeSURELY 
DELIVERED THE OPIDIOK OF THE CouRT. 


Complainant by hie bill sewsht the reaoval of certain 
‘imatruments as clouds upon hie title to eartein lote, the eurrender 
of certain deeds to him, and permiseien te retain $30,000 paid by 
defentant Bertha Feigen to him as exrneet money op account of her 
alleged breach of contract fer the purchase of real oxtate, 


‘Anevers were Tiled and the cause wae referred te » master in 


“ghancery to take evidence and report conclusions. After hearing 
“aviaence, he recommended that a decree be entered in accordance 
with the petition of complainant's bill, Objectione and exceptions 
Berets having been over-ruled, the chancellor entered a deeres ac- 
@ordingly, which the defendants Bertha Feigen and Philip eigen by 


8 writ of error seek te have reversed. 
In December, 1923, complainant was the owner of 30a 










in Cook county, ILlineis. Under date of Decenhber 27, 1923, 

Me @itered into a contract with Bertha Feigen te 2011 her these 

ote for $200,000. fhe paid $10,000 as earnest soney and agreed 

© pay the further sum of $5,006 on or before February 1, 1924, 
98,000 on or before Karch 1, 1924, and $10,000 on or before April 

+ 1924, the balance of the purchase price of $70,000, to be seeured 
y Rortgage on the premises. The conveyance to the purchaser was 
» to all taxes and asseeswents levied after the year 1923 te 


y unpaid ‘special taxes or special assessments for ixprovenente, 





ce pe oe 
THGOD: MOLT HAE OE AOA ie hoe ease et 


EMIS BOW AE 6, fy, Reni 
ek tone 7 *aThdaus ware fF oy, 


i &: 0: @ Kh, fr . h eu Wig Pap ie iN men io of 
ee ‘ ToT eOe wits care rate mee ve | 
“BAD x — w wOnTG wee Seumivcaee k 











Hee vant rn ee gS Pena pay: on 
whetres Qe Lavewen ase Siigaom Liid nas et beara ea 


‘gehsertie aHh yatet wietine at elede, ale woes. edvoto aa 8 pdmomrats 
ed Bie 200, 028 phates of nolan beteg, foo .abs ot abens atebree 


Ge GE as Ba 


ted Te faupaga oo wea feeires Be ated os senate? faabastt 
4 sttatee faot Vo ssuriotng ons tet ‘gonmdinda “Yo deenud doer 

. th tndena a et berxetet som ‘veuaa oad baa’ ‘poitt’ tame exowe 
 atsans 9 maga anotay fa09 stoqne ‘baa Kesh wild “ot ¢ 69 . 
e, soaabrooas as hore dus ed oew0h & sade’ be ie bit’ Gs 
asks genre fsa ancl tonya Wait et tasabe fomoe te suite 4 
“oa net. ry boredne toltenaeso ond Precraerstnt “ood 4 

















2504 «te wedusesd to atab xoebevw pron cin” 





me ben Yeas taseras sl oie) ‘ibe potpo 
BOL LE eedentoe ereted my. m9 800088. To, am, taMhaTy i 
Ehrea wreted emo O00, O46) tow VPROL gh Sonat, enoted el 
‘boeoe ad: ot ar oe lien wit oe ae £ 





and to unpaid inetalmente of special assesouents falling due after 
January 1, 1924, levied for leprovenents completed, Gomplainant 
wae te furuieh a merchantable title guaranty policy within « 
Fespaable time, The contrast also provided that if material 
defects wore found and reperted ond not cleared within eixty daye 
after found, tho purchuser might, ot her option, upon notice given 
to the vendor, declare the contract null ond veld and have the 
@arnest money returned te her, or she might sleet to take the 
property as it then wae and tompliainant wae to cenvey as agreed. 
In default of her eleation to perform, the purchaser wae te be 
deeme? te have abandomed any claim wner the pranisas and the cone 
tract ae to ceane to be of any force and effent. It wae alee pre 
vided that should the purchaser fall te perform the sentraet within 
the time and in the manner specified, the $10,000 earnest money 
should, st the option of the vendor, be retained by Bim as Liquie 
Gated damages and the contract become mull and void, Time was 
Geclarei to be of the easence of the contract and of all ita 
conditions. 

Subsequantly, sbout Jenuary 16, 1924, « supplemental 
OF escrow agreement vas entered inte whieh medified somewhat the 
Provisions of the original agreement in thie respect - it was 
‘Provided that the $70,000 purchase money mortgsge should be 
divides and placed om varioue anecified lote; also that the 
“#5000 Payable on February let and “arch let respsetively, and the 
| lena payable April 1, 1924, inetend of being made payable te 
ainant, were to be deposited by the purchaser with the 







Title & Truat Company in escrow, Complainant waa te 
ite and place in encrew hia deeds of conveyance, which was 
+ and the purchaser syreed to and 4id deposit $59,756 
money netes. Instead of complainant furnishing a 





teers avd prilial adaususasnas felecas %e ed om ia de ok Ligh allo wilt 
Srontatgagd -bedakango etaranvaraat ‘ov botve tl; acer ye view 
Fe “ected bw woiteg, ys mateay oLShe Sidadnody tom a oenlh 
“ke dto tem 34 tas hobiveota ode FHWEE NOD ait endo 
eyed verte adeit he beisese ton bee berreget haw ne rar abot 
tory by polven mnogu .naleye Snel ta, og ie seaaotan ene absao't tot 
ene svod bas Blow Kee fthe Geordies welt oeriee , tobaey oat 
hich coiled ‘tee 
shoataa as voviten of Baw Seige ho Leaner: eee aor gid thd cd vere 
od oo wan tetaderwa od? ,wtolueg oF aotten te oe tet - : 
enon oxtt fri. nan lnig wet age ahade ome beacbnada, yas et. 
worn ante aut $l, cdoa'tie bam aweo'l, tae ‘Lo Od, 09d O8RRB, BP Ome, 
aiativ soadtann’ sao wiitreg oF Dle't semddoune act vicinal : 
yao Somivrens Re oat ai hae oni» a 
oiiiti me mh YW enkadet of robo aed tm woleqo: watt ae 
Cd sent hioy bate Chee oncmed deandaey salt: be engecah 
ath {fo Vo bow dyerteee eAs tO neneage, one. “ve at ob bh 

























ont wes of doula gig tes oie +o eet Oe 


mM { ; 
ek 3) ase RA Le wi 


Katee tugam a BAL (Ok naw’ trees pekbaw candied “seta 
OMT gustoman belitbon dadse gweed Amwmdean com Cunemotge: WORDED 
paw th < toegter ehte ab sommrenge hs o 84a te aaahd 
“ed biwgie eysiy trem yetaw omecowny 200,088 wnt tw : 
(One Gait only yetak betienge swolury an sinuhld : be 
ont? ‘Bite’ .HERVTtORRWO Pat dee! baw el erie nD ohtnigaE 
— ohm pba Ro: ree vt amin he " ys | 





iar ane myorae 


guaranty title pelicy in the sum of $100,000, the enerow provided 
that, when all of the deposite were mute, the warrenty 4deedn deo 
posited hy complainant and the trust deqds deposited by the pure 
Ghaser ehould be filed for record, and when the Chicage Title & 
Trust Company shovld be prepared to issue an owner's palisy 
gusrantesing the titie of Bertie Foigen for 91%) ,000, subject 
to the trust deeds, then the Trust Compant was euthorised and 
@irected to pay complainant the $20,000 representing the aggregate 
of the sayments which the purchaser agread to wake en the firet 
days of February, March and April, 1924, respectively. 

Complainant immediately procesded to carry out bis 
agreements with reference to his titie, ra. Feigen failed te 
Meke the $5,006 payments due February let er Marek Lot, or the 
$10,000 payment due april ist. None of these payments was ever 
made. January 26, 1924, re, ¥eigen entered inte articles of 
agreement with eertain other parties, in which she deseribed 
herself ae the ower ef and having eserew tithe to the premises. 
This inetrument wae recorded April 3, 1994, and is ene of the 
documents which the decree reneves an constituting a cleuwd. 
Various deeds vere obtained and recorded, clearing up complain« 
ant's title. 

Defendants argue from the contents ef certain Letters 
‘Galled opinions of title, from the Chicage Title & Trust Voapany, 
that the complainant did net clear up objections to bis title. 
‘There Letters, woon the hearing before the master, were aarkea for 
‘Mdentification, but the record shows that they were never intro- 
‘duced in evidences. However, it appears that acne of the objeo- 
tions in these letters were waived by the Chicago Title & Trust 





Company ond the complainant testified that all of the objections 
yaa been “cleaned up." 


ee 


MAS OU dk aS Ral Bl AY Wile. RMN! 
Re PNM RRM ONE iy BAG 
Ay iret i mi 
iN) : ANS 
















“tan avons merge alt HHO, COLD to mnie ae al ‘wilde ¢ 
“oh whook > red etre xt sty fusis ed ubiveme’ sit 





ee ‘outs “a pid hee abst So wine aay ‘aa . 
the asade ‘agus bad ast? ‘weuie Bite ‘_braoer tot ea ltay ‘aN Je | 

Soe Witow aes care se eared ae paragete ag plete Caeauet vi 
testdue 00a, OL tet seniet ate cotk ‘ee ees Vib sink cy 

nice Bee kcon sm eeu ganyous bike ‘wale aiid” utnon Hein) W 
adage ott ante adetar® QO, ONE wat Tait myennadinties a 
tent ast ho oolia od beewge wonaitoxnn, ode’ ig bite reek te 

i Ee seek Coase bei ciel Joanie " 








i. betint nolo tie sly wht oS shuaneted ward 
Was ie 
mist al Aud “soa we bend ayes i ae ili 8 



















oat te eto el haw ,OOUL 2 fhega behunoet si veal | 
buain ® amtind ieawen ae paveude ‘inthe Si he tee iv 
. sate Foc od ‘anttsnre Semen heal  bondadan ‘ouae's 
r il Se eae oe il 
ieinaini ‘glodass ‘to atavtmno oat extvidlwnaed veins bce hes aban 
Diana sewed ® etelt @gae bas aid woes aneity Ye" io bt 4 
“ \etpee whe of euotadohte Qu tints Hon tinh elindlinit 
«oY bodgoo aver (x8 ens waka etre” garded pe ‘oath pinnae is 
wont wenn o% jer yl dl " vt cal so" ‘Lunt 
-oahde ec) ‘to saad teas a A 
eet oY Gi th Wh AS 


: saommimbaie one te readies ay 








The revord fuetifier the findine of the master that 
the tithe to said prewicea was in the complainant and that the 
Chicage Title & Trust Company wae ready to lanue guaranty poli- 
cies gusrantecing the tithe to smid premiees as provided in the 
escrow agreemant, In the meantime ira. Feiven recorded the sopy 
ef her contract with complainant, and divere jucqments were entered 
agesinst her in favor of certain defendants, July 17, 1924, com~= 
plainant served Bertha Foigen with written motice that unless she 
deposited in eserow the instalments in arreara aggrecating $20,000 
by noon of Jaby 23, 30m, he would declare the contract terminated 
and the sarneet money, $19,000, forfeited as liquidated damages. 
She failed te reapond, and om Tuly 78, 10°94, there wae served on 
her a notice 4eclaring the contract «t er end ont the earnaet 
money forfeited aw liewitated faweger. Notice wae given te the 
Chicage Title & Truet Company fdemen‘ting the return to complatrant 
of the warranty deede deposited in eeerew, 

Defendants concede that the contract shewld be de- 
@lared null and veld, but insist that equity requires the return 
te kre, Feigen of the $10,000 earnest money, We do not so conclude, 
Thies in not a ease of sm vender unable to make tithe er refusing & 
@onvey in accordance with the contrect. The evidence shors that 
he wae able to muke title an¢4 that his deeds were in escrew vith 
the Chicago Title & Trust Company. It ia a clear ease of the © 
Proposed purchaser defaulting in reseect to the paymernte which she 
had agreed te make, namely, $8100 on February 1, 1924, $8000 om 
Mareh 1, 1924, and $10,000 on April 1, 1974, Time wane made the 
easence of the semtraat on4 of ite conditions, he fatied to 

Make the required vayments an’ she must he charged with the ree 
ovlt of her failure. 
it should be noted that by the agreement for the esepew, 


* titre guaranty policy wae not to rum to the complainant but 






















sie gegoaws air te net bk walt wet deat Mroges one oy nil my 
ete tat hie ¢euabe Same ei? ak ‘caw tne hone hae | ot naaas 

whiey YFastnig awbet of ‘thowt pees ‘yaar wait tered # osnts ae 

ate af bebivows ae nen board bine at ante vat canteotnatg, EE 


ugoo oat bohtonet het werk. aint una watt al a 


§ a Ne Ries ae 


ty bam ae aie | “satanpsteb aletuse ve aust mt wed 





nedaikbinn? ‘Your baos. ant wie loa yo 008 we be et See 
ea 
saa hotat tupht en fattened 090, 648 


ste Bovesa wae onrnitd eer ae Ao’ no San 


a 


wed ad oe fan sotto | saasemah S hensh hepa at ttetwa! 


as we Shay, 


slat ay Ruder Dou une csv vrnquet tore Pyriti — 
: Giana Rah aan eth ae ee 


“drama ab “bad iwoaeh abonh D odape os orn 
5 
ob ad lake ‘patie ole read obaoaon etnahas ted sh Gi 





Obu lo now ‘oe Fon nd ov a Koitom ‘foeaese + 00,048 ‘sah 0 yin 


Bid os 0 haa. ai a $; 


os) synth’ ton ae ateat than at stdane noha sd te oun we 
19) a ear aty 


gant grade so anbtve ost .fdattaao wats ak bow eonnbunbiun oe: 


Or ok " 


gate hbem new ome? 
a nD eu 


a ‘peteel ene “ene th thn ® “il pei 


me 
We oe 
I Nad 


wt ~ Ast hointede at ‘toms ade ins nto 


oe Da PUN A) Ot ae a © 













oe 
Nee 
Y 
G 
yarns 


ee ae 





Wee ce ap vi 


wna 6H ae Suswen a0 oad wy betes od Sede 
tet Soatasomns 89 of a ot ton ean eoton Wnwnary 03 0 


was te run to ire. Beigen. the Trast Gompany was ready to taene 
such policies, and it was her failure to make the paynente which 
prevented the gerforsanee of the agreeceant, 

Defentants argue that the feet that the contract 
provides that the 910,000 earnest money shall be retainet as 
liquidated damages is net necessarily binding ant teat ander 
certain clreusetances money oo 4evosited wil be treated ae oa 
Ppemalty and actual dwages ouiy allewed, We construe this con» 
tract to provide tat the earnest money shail be retained as 
liquidated damages, but even considered aa « pornalty, the evie 
denee justifies the degree in thie resgect. Goumnlainant wala 
$6000 as a broker's commission on this prospective wale, sleo 
taxes for 1924 amounting te $1500 and epecial assessments amounte 
ing to over $17,006, which by the contract the wendee caawed, 
Also there is the lost interest on the balance of the purchase 
price, 

We do not Alepute the legal eroposttiona presented 
by the defendants, but they are net aovlicatle te the facta of 
thie case, The deeres ite fustified br the record an’ 1% fia 

APPT ARMED, 


Matenett and Johnston, JJ,, coneur. 





ay) ae Pe era) ae if 
Yaar’ eminem lt 


Ve 





nas, of _om ew woeoo syst ast eT, tins yt? tly dow ht 
Hee BERNE By ASR TaN Ny iat aa 
t a) ry 
Ay date adascoyam ots okom ah SenAaed meek gaat ols pene ae 
We ah bab bevnd oy cinteene ae 2%, te spans fic Se 9 Rn 
% nay 2 ah hole pena 
eon, PTA ANE Oe Ane oa ger ne = weno, 
bd @ nd ilecie nom tepeee COO, OL8 
, 8a, bontete way mee A Daye Aon 2 ae Se ty 


ona. Saale hee walhmad tAesnopoo jen ain engaitah betne , 
it R “ate j 






bay Fee 


° ha Soteond od Lktw bes taowor oe yeanan sbausboieunte 


eG SN TARR Serna i sae 
mn ORAS nurdeace ow bowels ee he garage fantow mr 
; rk mc yt ei gp 
honketen od Maite aon funcriwe sd tad er ot foact 
AV rg gate ” eee p uf Peer be ae 
ove oat set teneg iid berentaaos neve ted ’ ii | 
Aj i : By RRCRURRRTS ER it 
biew foe md «Lea sbooues ands ul weno ot | . | 
Ret A 7 J mia r 
, me vaden erisooquong exe ae apt 20 tame atamuerd 
mh Laie seed tine a 
fom nee mas bas 008 £6 os coo MOT ‘wert ie 
tome ee Aahoo as | 4 ere o * iA ae Hat letaat ry Lia 
_ emaerene eehce ots foar3.a00 ens we a bs ute ‘re , 


* had senreda wnat os 
enaduroy ad? 6 eonnlad ett Ao sees a “ to Riga: Peach iat 


SS We eat de Ey atta oy Pinas ia 







a 


















y & 4 fe Mae 
aia oe | Ae } ca ut 


ee aie BIS oe ee rn qenatoai scqyeabal al ¥ 
; tt RETR, Me APS it Se ay ane wow ov 
Sa ORE Ba oll ae Bealls batt. 
stromag 46th urs « hie et 
r ne TOR ale NORE: ges as si Mt rsa hom mayo, 
re ¥ a F + svn q 


ae ay +e aa bal ahve hil, 
A tH a RE NOL Fk ily. Dit ty ™, be, fi mm a 


W H { t 
i Re NM CR eh SS Mane MR aN MR hiton vs haem ms 


146 - 31276 


HICK PaLZkILL, 


Appellant, 
) APPRAL PROM SUPERIOR cout 
Va. , 
OF COOK GCOIMNITY. 
RAY GHANESRS and ¥. Hi. GHAREDRG, : 
Appellees, 


BR. PRESIDING JUSTICE MesUHELY 
DELIVERED HS OPINIGN OF THR COURT. 


Piaintiff appeals from an order vacating and setting 
aside a futqment against ¥. 1. Chambers, one of the two defendants. 

The mmmmons Yan ivaued sgainet. both defendants and was 
served on Ray Chambers, but returned "net found" ae te VW. . Chawbers 
A general appesrance was filed by Harry Veintraub, an attorney then 
duly licensed to practice law in this atate, although it has been 
@alled to our attention that he wae subsequently disbarred by the 
Gupreme court. 

December 17, 1925, plaintiff had Judgement against beth 
@efexndaunte for $3,000, FTume 22, 1926, which war at & subsequent 
term of court, defendant ¥, Hi, Chaubers filed a motion and petition 
@lleging that he 4i4 net know sald Harry Weintraub whe filed nia 
general appearance in said cause, and that he never authorized him 
to represent him nor authorised any other attorney to appear for 
hie in saif cause; that he first learned on June 14, 1926, that 
Marry Veintraub had entered his appearance ani that the firmt knowle 
atge he had of the pendeney of said ault or the judgment against him 
vas on June 17, 1926, when it was ealled to his attention by Tilliam 
‘Baek, hin attorney; he asked that the Judgment be vacated and set 
aside and that he be allowed to file hin appearance and plead. Due 
Rotice of said motion and petition was served on the attorney for 


ff. July 17, 1926, the court ordered that the fucgment 





WE ae,” 
! 































aresn ms 
eM imino 
‘Reewe AOLAMOS BOG. AAU SSA i | : ev ue. 
MERIC ZG Be > of si aha cde 
ee Bie i | Po) Cie CARS 
rh ee « > at Th KS ia 9 f oS an hifi | 
HMROK AOL CA THART Mths 1 maenony” 
AOD MEO aN RAL. Ae carey Ea nt Lata 


“Nt we ast 
BAhsiee shail ae eney Keb eer Aes enere's peice peg eomie et dnt *. 


.parnehae tes oe . ott te @8o ot dato ait e fenton | " és 
sew ane etaied: ae 'toh ai od Ansitoma Bay Stila itall avant hs ” " rN 
mot ls ydt sik o¢. ae. Manat os ton" Heertedes lad eerodun yaa ‘4 
sees peerage bical gametes toe “sparen we betes enw  Ganetanaen | 

ir ds 


tome mae Fe Sapsuostit £ ator el eh wed sattoata oF 
ent yd bewsnde th neconpemian eae eal tana ah sateen mo Fy 


ld danthoga dmemp bart, tek Viituieaky ,@ROL ih panne 
Stewpaadue ae ua sey alee ,anee +88 eaut | 1000,88 met 
inode tee bas soi am Bote sredue cal ” tnaien'ten ets 
aan bois ecw duatemten crak pow work gon bay on 
whet hesttedtie adie on tate ie ete bee oh: pe 
to? tenqan at youredte cate can heatveddom toe mh SeReN TE 
tas? ,WOS ,OL sil me beorwet tou om sont rennas thaw , 





~ ke qn Peak ont sary how oo marten ee ob Severus ‘bat dh 
mit fantons oamaestnt oes ty Ohen hes te oman hang ah 


gen te betesav ae Punora dart eae vant base aut ov on wat me 
nant shoots ee one tans ate ont oe vasa wt 8 





againet ¥, H. Chawbers be vacated and set seide, ant from thie 
order plaintiff appeale. 

Defeniant Chambers hae moved that thie appeal be 4ie- 
missed, suggesting that the order is net ao final and appealable 
ene. While there are canes helding that euch an order meade within 
the term io not final, yet it is new established that such a meo- 
tien, te correet errors of fact, made after term time, in a pree 
eeeding under Section 8 of the Practice Act, and is a new auit, 
and the order therein is final and appealable. Harris vy. Chi cage 
House Precking Cq., 314 Ill. 800, and cases therein cited. The 
motion to diemise hae therefore been denied. 

Defendant's motion presented a question of faet for 
the deeision of the court, whiah held in effect that the appear- 
ance of 7. H, Cheebere waa unauthorised, ond o9 he had never been 
served vith summons he could not properly be sukiected te the 
Judgment rendered, 


The record in this ease comes squarely within the 





Puling in Harrie v. Chisago House Wrecking Co., supra, where it is 
held that "the petition or metion must be considered as a declara- 
tion in a new suit brought under fection 89." Applying the lane 
guage of that cane to the instant record, it ie immaterial whether 
the declaration on ita face discloses such errere of fact ae would 
be sufficient to recall the judgment. 


“Appellee” (plaintiff in the instant onse) “felled te 
False any question of law concerning the sufficiency of this 
declaration by demurring to it er by filing « plea of 

Seka or by motion to dismiss, We have held that such 

s preper practice, and that where the suffiaieney of a 

4@elaration is not questioned in the above menner or by some 
other oroper mode recognised to test the validity thereef, on 
appeal no question of law can srise in the Appellate court or 

in this court as to the suffictaney of the deolaration, Ye 
have also indicated that it ie incumbent upon a party to plead 
to the declaration in seme manner, and if he fe satisfied vith 
sufficieney of the declaration or motion and sllegetion of 





=. 
poe 


giad wort bite sth ion ton hits be dnnoy ad eta tian 1D im oe ¥ tant 
es | eatesoga webatete aren 

wih ad inegas aff? tact bovem ant atadund frohuetet wav a 
eithatesnys da: kantt a You oh sepie wt dant anh tes naie ‘jenn 
akadbe anne ‘aabeo a soar sand galt Los SIRRO one. wrod 9 kide «909 
thle a ost, test: borin Lidatae wom ot oh oy, ofantt Yom wt wrod oud 
omy a at jiats meet 08s shaw staat ‘te o20% 88 toerr00 ot ‘saone 
ee wen re éh hie (tou 202 tome ene te, ga seltoet sobay antbees 
00 Rheeee "kis Levert hse Lert wt atone conto at ba 

pee haste atprone Libel “fe 008 esa ay a: 

- Hes nae need ore toredd act eatin ts os ‘sottes 
ae? ent se aaktawen 4 beeiodste ay ttm i see eae ik ‘ern 
~an0 i100 OMe Pcs dome at KANN ie BAW een Wet ‘vp moka ten wits 
aan tree eit wit 86 Set vent Ben ey aa ote dna ee We! 
galt ad Rade tee Oe Meee? Hee Chey ial axoounre 219 bw neivinws 
shaxetaey somg birt 
add ahitle yfereuse wowoo weap whey of cipiesta’ we vn ne 
at Sh wzery jexoeu 09 sabipet powell pape ke 2 white eal 
noe fond « od heteitense of Pew in a) penny ott aie eA 
otk ont yahelags "88 nedtend awh Yeigatord Stew’ weale wk med 
ceisaie Inieduawt a2 62 howe sietent see oF one Warts Qe ORAM 
hig ap Poet to eterce dose Geegtawts weet wal wo: ‘Met demoed nt 
vttemstnt eft Siesen eo tao ted tee wi 
Ae HOLD” fepan frevend wet me Trhtetere) Pee ay) oe 
‘es ho yosiotol Ting at? gitiemasaey wal te Hel degerp ol) 
ty ete o gall yh ae FF of yutrrmed yd. heck 
alt bied eved OW ,aekamlds of nolion qd te a 
i he get hed iy eff wtete dost ton ,oekdomng aeqet¢: ‘ie 
ap naleieenghibnaae ate 6 are om See i 
yah asd ROT e | 

te dinon ede tiongA oft hell ane ‘to Henning on faaqae 
wR gine Rater Siva mats Vine mit of ae Sugeo ahdd md 7 
hasie oF Yhteq # Reww amanan a me) | hf he taot beh oats ipa al 
adhw Sette ition et sd Vi den come wee | 
te inte aa bas apdtom te rebheriatptaill hee yous torre 


uate, abeaen aie wid ah aN as i 



















= 


. © 4, RE 
Ht eas ie 


facts he should file a plea derying the truth of the facts 
stated in the declaration, There was neo demurrer or plea te 
the deglaration shown in thie reeord. There is no eounter- 
affidavit denying the facts, There is me deswrrer te the evie 
dence oF sworn statement aw te the facte made by appellant's 
attorney. “* * * 


And farther on page 507 the court said: 


"Ae the case stands, no queation of law is presented on 
thie reeord either as to the declaration or aw to the sul’fi- 
clency of the evidence. It was purely a question of fact as 
to whether or not there was an error of fact committed by the 
eourt whieh culminated in a judgment or order dismivelng the 
suit, and sopellee has preserved no record entitling it te ree 
view or question the facts. There ie therefore no question 
properly tefore this court as to whether or not the declaration 
stated, or whether the evidence proved, an errer of fact in the 
former proceedings in support of the Jucgeent or order. The 
court pronounced judgment ageinet the appellee and entered the 
order aforesaid, and it suet be considered ag without contest 
on the part of sppellee, because the record 4ooe not disclose 
properly any 4efenes or any ebjection to the court's erder. 

In order to preserve for review a ruling upen objections of a 
party, whether the saxe be as to the Jurietiction of the court 
or otherwise, such ebjections must be preserved by a bili of 
exceptions or ite equivalent, under our Praetice Act, Much 
objections or exceptions cannot be preserved by mere reoltala 


in the Judgment or order. Grand Paeifie Netel Co. v. Pinkerton, 
2i7 Til. 61.*% 


This opinion diepeses of ali the points raleed on the 
imatant appeal, and the order is affirmed, 
A¥VFIRMED, 


Matchett and Johnaton, J3., concur. 














stoet sf te core? oat ay Neh ante a ie A Rivet & ate ’ 
rd. are Ey Se xpasenneh ont we mgt sane he crbtane 
atetmunen om ot anatt yer oors mtd an end ne Ae 
ebve ant of Teresi en 62 etetT ,adnn Qt yale . 
a ick oho ston’ sind oo aa Pores bl sows to 





Re i 

eae rhdem. dtaew odd ROR ayne! eo Anite RA + ati 
Hinneete ab wus te me oeoop oa, pebak ce enki’ eke eae 

ae gs ot ga to abhtexvafows a¢ on abies bra 


phe Seti ty gp ane | ip 
wit } besaue font Far 











feos deeds ie an hous bbe oe 
pasrtra fon Boob MensoT cpl af 
Fnngrobenah 

















od? ae ASowlet etuten eee Lia Ye semnaeth nolalqe’ wee 
pA ape lrar an Has eet. ak *epre poneadrre ily 
(UBM 5 OS OR OS Se eee 1: 
cai duh ea gah leak uathieae aie ht eae EEE are va tach * 
We Eh SBR, VNR OA RS a aataomgennediene 

a Gated ero Vee? eee 
Be aw a perpen: 
PRN LE, PERE 5 ee baal mann 


sy wer RG Be td 
dai Henk HOH wh 








au ri as Neh pare shy i ORE: ise 
Rg sone Bae aR RMA RI ie 2 Hs 
‘ At Tk amy poe RANG: MRNA we eae 





aide ne LO soi Senn web geond 


AA 

















176 - 31306 


GREGORY T. VAN KETER, Adminietrater ) 
ef the Estate of Chester Caajkowskt, 


Deeensed, 

Appellant, 

APPEAL FROR SUPERIOR 
ve. 

: GOUT OF COOR tomrTy, 
GHIGAGO VARNISHED TILE co., « 
Serseration, 

Appellee, 


Mm ot 
EA. PRESIDING JUSTICR MesUARLY 
DELIVERRD THK GPINIGON OF THR COURT. 


chester Ceajkoweki while employed by defendant ree 

ceived injuries in a fight with a fellew oaployee which resulted 
in his death, The administrator of hie estate brought suit 
@lleging that decedent was over fourteen years of age and under 
Sixteen years of sge¢ and wax illegally eimloyed by defendant, 
which aid not secure an empleyuent certifleste, thereby violating 
Section 45, chavter 48, Tllineta Statutes, and ae a result and 
sonnequence ef such illegal exployzent and arising out of sane, 
Plaintiff's intestate guetained physiesi injuries from which he 
G@ied, leaving surviving hie father, mother, brothers and sivtera, 
Woon the trial, at the conclusion of plaintify's esse, the court 
Amatroct ed the jury to find the defendant not guilty, ond from the 
‘Sudgeent on the verdict plaintiff appeals. 

Defendant operates a wail paper factory, in whieh 
intestate wae employed. The evidence ae to hin age is not 







te, tut it may be conceded that at the time im question he 
between fifteen and sixteen yoars old. Defendant did not 
ané place om file a certificate as required by the Child 
Act. Becedent was omploeyed se a “stick boy," “isa work was 
| carry a 'box Filled with "sticks," whieh ere about thirty-six 



















teretatenons mers ea ¥ 
pletion ! 
AOTRCUR WIN LAE geen 
i a) al 
« VFRNOS AQOD Wo Foo : 
ran er ‘ : mH «iO arr qminresay 08 ono ti) 
! Am), caniteaek a i . bs vd FP a 
ne Sh Dec oe 
a, ik wat 
me ) asso wane ooraneant At: ee Mt hy ane 
; a : vagy au Mita yo Diy 4 eN yan pate 


hase ae x MOTKTRO mae: RAVE 5 9 














ity yb - te. exon nea seo? ove ‘ae nate 
re Me ey 


, trie b ae Tab ee Seyotenas, eng Pah ‘ted ee Ye, rane 





boise irae rt ye bene, sessute 8 ehowktar oe wesonsse es 


aed mov bow petting fea santas tok ene Sat oF niet ats’ 1 oat 
. sSLaogga Viivatete tedteey out wo 
| a bit aa eregent ao eeg A kaw os sesanege Samo aet9 is 
gan ut soe wha oF oe socom ive ont «beyo. eate * Men no 





apeen bib snubae tec ; fies exave omega ba | ; 
beday att xd hoxdope bel sao there * tn 10 
saw dsow ath * axed tote" * on oe 


inehes long and the diameter of a lead pencil, for « distance of 
abeut fifteen feet and place them in a atieck holder. His mother 
knew that he worked fer devendant and she was alao told about the 
kiné of work he 414 there. Sometimes he gave hie pay-cheek te 
hie mother and sometimes te hie ruther. 
Alex Kaninekt Tas an exployes of the defendant; he 

folded poaper and stamped it. (m the morning of Kareh 9%), 1924, 
Kaminski wae away from hie slace ef duty fer «a few minutes and 
another employee asubetituted for lm, Deceden? Lert bie work as 
a “etick boy*® and went near Kumimeki's machine, A bad roll of 
paper cane out of one of the machines and the eubstitute by 
mistake placed it om a pile of geod rolia. When Kamineakt returned 
he saw the bad roll of saper vith the good rolls and therenren 
Placed it with the bad rolle, Decadent then teok it from the 
pile of bad rolle und placed 1t with the good relia. Baesinekd 

again teok it from the pile of geod relle and repladed it with 
the bad relies and admenished decedent to “mind bie own business,* 
There were further worda between them, altueugh the evidence is 
indefinite as to what was said ond by whem, One witness testified 
hat decedent said, "We will have it owt," and then went back ta 
his own work, Kaminski and decedent were about the saue weight 
and height, 

In the afternoon deeeient told another employee, 

4 Veesalowski, that he hat had a are with Kaminaki and thet he 

r was going to have a fight with his eutelde, Jeually when Aegat ant 

left defendant's factory after the day's work was over, he turned 


© 


to the right on4 started homewara op a walk leading directly te 


i the street, but this evening he handed Vesalowski his evercent, 
hw and luneh bex, and after going outside they turned to the 


j 


and walked akout twenty feet, where they waited for Kaminaki, 





' 
i ae sah 


Yo eodatelh « rot , dhameg hee &. mw ke antes, ont bom, ened oat 
toxpou eth jwebdod dotte a at med¥ beng bao’ toot aoe st. de | 
add suoda biod .caie ame asin dom thobasted vor hoxtow on tact wie 


ad Apeseoyee wid syey oe neulsouee coveds DLN oe Meron te bad 
igh : TED bl j 2 i BOAR Pi J Hite mercy 
a eosite’t ate il ‘eealioncs anos frm, sestom ha) 


od pdiwhae teh eas Te oavalene ie aw reer? meta 
tot C8 doco Ye yutowom odd #9 oh bequede. tan ueqnq bebLe? | 
ban eotuntes wot » tat gent Se ape te: ads mor’, yee saw bis hank 
ee ato alt PE Amwbooat sabi wot batwdtandwe seyotemn — 
™ Lion bad A ssitnsmoonh e? iinakwed then Saw ell “od Xo tte” a | 


& ph BT ie 


et ‘Sich ibedue oat yet asiisionm anit ‘te # het te two oar sweet | 

ba Rs a. NR ey GN Ce 8 ke bidet 

teotobes ‘His stan ee “athor hoow te ehtg 40 th beeatq ye et 
ie Pe eh 

meqomnd? ‘pin alos hows eae ai he sega to Ator bad 9 ye ro sie 


"“GhY with 14 xece abot Sabieced “Velsen had ont ‘eth 9 
panda’ 2b. cbbr’ bag Cae “AW ii bi ck Nel Stan” 
“dibe G1 Betetger has witer booy to ofig ott mort $f dood atags 

© neddiedd awe wid sala” 3) Sdrhopeh ‘bortddaiube ban alter ne od 
at sdawtive oat “jveliete amd aeowted ‘ahxoe sodinu/i ovew ve 08 : 
geriivess @awadle sid mdi a ‘pine hies oe ‘tede-ot- ‘a -” me nf 
A hina ¢ pret te ua 
4" 4 yy 3 i at 


‘irs ‘gitne odd jivode are ro deoeh ne ‘tind * ve 
% point pry he poeeeestl 


























oe ‘Goat ‘gemw ace bee * dee ah oned ftw ow, 


of. hate 

LT a RO bed Tisai 

atonetqne nodttone bod Sonhnneh noone add ot b 

Bk my, 

ed daclt Gre dieataod Hoke few * ‘hem batt oat font dlawo Lasev 
CO ALR Emme oie ale 

; fas knead este eheoett ontario abs ‘0 bw daty x bane eo i; ! 

Pr Pav ane MO: 2 wes 

bored i eve naw teow otek nds ‘notte erotowt ty ee 
eRe Mire ae eter phen y eee 

os ‘etsdenr ts patheos tinw a ‘ne Basmemorl beset baie Pity he oat ot 

ee ae) aa ate ihe er 

facoteve ant iewolaeaY bibned ad pak i 


nek Ri Mihi Ac AD 


j i A i ight 
" yar ‘ad heed’ ‘oat feayve AP ig 
nant Oh ville Alin Bbide Ade Colle: 

















yh meee sa dock om 








whe came out of the building about balf e@ minute later. Vesalewski 
testified that as Enwinski came up, decedent had his “pose up* and 
they startea te Tight. & for blows were etruck when decedent fell or 
was knecked down and fied within a short time, 

Defendant asserts that the reeor4 falle te divselose 
that the death eceurred in [liineiv. The statute gives no right 
ef action fer a festh from a wreng?ul set occurring eut of the 
State. Wall v. Chesaneske © Ghioe hy, (o., 290 Thi, 227. It is 
necessary not only to sllege, but 1t must alao be oreved, that the 
death ocourre4 in Illinois. Plaintiff dees not point out anyohere 
in the record where this fact is established. fost v, Boble & Cs., 
SAG Tl. 357; Walton v. Fryer, 276 i11. 564; & y¥ 


Of Moose, 285 111. 188; Dougherty v. Amerigan Mekenne Cg., 2665 T1l. 
369. 





Orn ey ral Ware ex 


The evidence ales faila te show thut the alleged illegal 
employment was the proximate cause of the death. Cansal connection 
between the negligence shown or the illegal eet and the injury come 
Plaine’ of must always be shown, and while violation of sertain 
Penal statutes constitutes negligence per se, Bevertreless te make 
Such neglicence actionable it wuat be the proximate canes of the 
injury for which the setion is brought. Garterville & ferrin Coal 


Se. v. Moake, 128 I11. App. 133; Schhaop v. Melean County Goal Co., 
235 111. 630. In 


App. 116, the court suid with reference to the eo-oulled Chila Laber 





Act, that the negligence to be presumet from the ampleyment of » 
Miner vithin the prohibition of the statut«, pertaine only te ecoen- 
‘sequences which result from such employment, an4 that before an 
exployes can be held liable it must be shown that the minor empleyee 
was injures by reason of such wmiswiul ewployment, Kolsiiy y. 

| Stan: ne» 165 IL], App. 371; Hartnett v. Beste 









Seat 


a 


nh Pe 










‘Hinteutasn’ etotat aot a hid shui ith thes out, te tn0 omeie 
ee Brute Pag oven" ets hw ten deme ee ane dota boa nm tat bo, iadalee e: 
¥e. tte dngtinoot iusto’ Mowtse new Weeke wold ’ cathy of pedzete x 
yee he sree: inte AE EP ee: io bh hme: mwa Bedoam a 

| enaicn bb ot ey Aton BaF — ea team aeabte ted ‘dm oa 

. regi on aovin nancace isnt homed £0 web: hava © ideo odd $8 


sa 


eit to due wire oe fae, Aeeganae me non phys! 


ok Ft Nhe beset Bars: hae oy Th ake 28. SPR AAC 








ae Hooamoe doawas  vhtee ae te wane esoatxong! at isa: tom 
anon: vad aad oie Pee Koqertt nat ae: rosin: aaneai tan ont 
ptatene Ho sbtciety efkte Hew rest ev wena tan 
olan pd atte Db ‘graven )am Bee moot Tyna: vedere Lomaee 
ee iil nonwn sotenenbe tie nate we Pate we, ‘tea enacton 


a 


. 


Store of Uhicags, 866 211, S51. 


The proximate cause of decedent's dogth was his pare 
ticipation in ai wilawful aot in wuiech he wae the agereseor, He 
prepared for the fight by handing hie clethea te his comrade and 
Waiting for Auminski to leave defendant's bullding after working 
houre. Under such clreweetecces he could mot maintain an action 
against his employer for any injuries Ke wight reeeive in the en- 
suing fight. If a party suffers injury while vielating a Lar, 
although the other party iw aloo a trotisgressor, he cannot reeover 
for the injury if hie wilawtul act wae the cause of the injury. 
Prye vy. ©. 3, & 3. B. R, fo,. 73 ILL. 3003 Glimore v. Puller, 

198 Tl, 130. ° 

Plaintiff's eoungeal cites a number ¢? caaee where come 
pensation wae searded under the Workwen's Compensation Act. We 
foubt if such enses are preeedenta in an saotion Like this, but in 
hone of them was the injured party the aggressor, and the sward 
‘Was based on a finding that the altercation or agcident enysing the 
fajury srose out of the employment. In the instant oase the dif. 
ferences between the decedent and Kaminski arese out of the former 
Leaving hie uevel work and interfering with Kasineki in the proper 
Performance of Kies duties; but whatever the asuse, the fight was a 
Private, pereonal affair, after working hours, off the preniaee of 
the defe:dant and wmrelated to decedent's oxploysent by defendant, 

Where is alee evidence that the decedent's garants 
knew that he was engaged in this slieged wilawfyl sopleyment and 
knowingly permittes it, It haw been held in Newton v, Ulineis O42 
‘Be., 6 Ti, 416, that 1f the parents pervitted their eon to be 
thus illegsily employed they cannot reeover as benefictarges of 
their own wrong, ond that they may not recover damages fer his 
death in on action brought by the aduinistrater of hin eatate 

_ the illegal act of the parents was » contributing cause ef 
Sota 

























nN ¢ A aye ROG 
“m8 ate olla advo w sanbunen YO aaone sseatxesa oat GU 
ok teneanage aaa maw coat wei at tan Sore La so a ao +t 
me gm haescey ets ot anit oe wee pathaadt w oat ‘ott ee 
aehinee ged'ka guty lind i sanho'tO svaod of Aveda oe sp 
ee item ae aba ado ton hives ect erosesamonte owe ha 


pt ah 


ay we aE aviousr bio it ft es deta Yen vo weyoten abs dents 





setsbat axe te mons outs naw tex wate adel 1 ma 
eg 1088 AAR Os et met 





aN OSG nahee 4 median & aptin. onesie * er beiatt 
ae . ded aig Linen 00’ ‘wnemeun one oshue ‘bebtawe saw mens 
wt tit 4! ada eee me Lo te sa at ntushmonte hcel been Mawe sa 8 
| Beavis ols bi  toamangue Hild come bonu tal ule onw vst haps ante 
ant Beka Shin Lome 19 Aaksewet ka outs teria aalpaay * a ve 
“URE ant clam geaaend ied -: donee kame nas te tue soot cut , 
OA ME ear Res a we a) 

gon ous af ' Penionk age gubewiaegad haan pintor ak 
a ear bape oats Rieianell ba wevetady tard aadsut kd Yo wonaaro’ 
te weenie Bin ous te yo yahiixow wea hats Laxoerag cote 
wb tap om tah vd Farayoique » atznnbooeb, i bose toxmer bm tne ‘ ob 
atte tag at Fanbeas esi saute noah ive vate a wren is 


bas SARE eA Md, way 


hes beeen oyanm fathoms Lanes hago ke nist ad smn on on tdd 
Ne ia ue wil 






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ih hE Oe ae 


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ie al iondawt 100 





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writsupig Sw eM) we: Bm te ha eS RRR co tkbaba 
ee RA me Einar vals et penn 


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ay bah mots east “puso ee a 


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a eye AMAR: hain) Ra Koide 2 sh Hse 





AB TE Aas ie ri wed Pe as GG. ahaa a oon ee iain 
Be eho ines % i NBR IER, RARER NO x a had 


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idee ieahet m" * yep bane mete aes | wn hi oots me rama 


baw ) nag Sm tate Sarg ning he oh “ . hesaty, ae os gt, 















eau Ms nn ee bind 


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244 © 31376 


PRANK PARRELLI, 


Appellee, 
EBA: | APPEAL FROM SUPERIOR coun? 
ve. 
GF COOK COUNTY. 
PERE MARQUBTTE RATLAGAD 
COMPAKY, 
Appellant. } 


m44].A. 


GR, PRESIDING JUUTICR Mesune.y 
DELIVERED THE OPINION OF THY COURT, 


Defendant by this appesi sceke the reversal of a 
Judgment for $7,000 entered upon the verdict of a jury, upon triad 
of an action wherein plaintiff sought compensation for injuries ree 
eeived, af alleged, in the cours of hie eepleyment by defendent. 
The suit rae brought under the Faieral Bupleyers' Liability Aet. 
Tt im conceded that at the time of the oceurrence 4efondant was 
engaged in interstate commerce, 
, The vital queation ia whether or not plaintiff wae an 
employee of defendant, the defendant asserting that he was the sere 
vant and employee of an indepndent contractor. 

The accident happened Yetobar 2, 19235, near Porter, 
Indiana, Plaintiff was riding from the bunk houses at Forter 
furnished to laborers by defendant, on a handevar furnished by 
defendant, te the place on the tracks «herp the laborers, including 
Plaintiff, were engaged in repair work, He snd others were propelling 
the hand-car by the ordinary handles, when the handle used by hima 
vroke; he fell off the ear and was run over by the hand-cax dmmeti« 
atay following, reeciving the injuries in oueetion. This handle was 
Bid and was rotten inside of the goone-neck or ring in whieh it was 
3 a: — ‘cuore of the gang testified that he hand examined «0 








| 








caaiaa RN ip i 













Lal me ara Oe ee) ae 


POD wous 40 2 sie ase si et et met. HY, 

GAGAIIAN APTI RAM 
cs Ok atta Eke erga. | 

weg ee: Gan iS c SNH elk, 
' qs Uy Ae i a Fe Ly ee. 24 SRR Sandan stteieinn 


i 
tess EN pO 


‘Weer nem wmorreyt puserasaa . 
2 CRS cer Xo aorereo any cmv ee 


& te Kepseves ost exec tonage aide yl svinniarelt 
tote? aves .ymh « ‘te doibiov one wage heretan BRON iia oom 
ox ap initat rot aoltanneqens deen Tiitatele aor ite natton 
sdanhis'tsd vd # rem tang ey Lege aid te owtwmn sate at bene Lhe oo bee 
eee wd Lebdoks ‘ataydtom® Laxehel edt gebay thane: ad san 
naw Seabee tab: adgermeons at To watt age a tent abe 
Re RoR odatenetot uate 
a a ‘Pitaiale tea ve saline a4 soligonp tat hy ad? 
“100 ede tar ad tet gakenemew Pnsdad teh edt “Guat i | 
 Toto@tiaen taphargebak ae Te. ore ba 
HILO tame CORE .F sodotee dearcqat tamdioom pat | ay 
Brted te aeuyod sew ee) moth gakhde . awe alia: 
qe hediediecy? anoabsid a ae nL) eo wxoredal or teat 
Bathe Loz swasneds f wales arpa zie wdontds eatt fo ane Le ost ot af 
0 ald wrew aterto ba of .whtew shade me anaegiee exer it 
ml oe heaw sii OM) neabe ene tiered hve inl -— tay 














ean 


caw wthnal aie? tation al oeiaibat ay deste als tort ve 
eew ob Moki al aly 16 Kohmeomnng ate ‘eo abtent wet ot mee b . 
Wes Headey bash ost Pauly to rterent sm 80 20: ame 
ot #2 bercoget ban: ia al exit moc ne a cn 
seis, hin Kice Acscmsetlt se ak nets” by Mikal Ack ile” las lila as 


for a new handecar, Plaintiff testifiot that he hod nao Feeolles- 
tion of ever having ridden on this particular handeear before the 
morning of the aceident; that he had no rier knowledge of tha 
eondition of the handle, and 414 net know it waa rotten witil it 
broke. 

About forty men, including plaintiff, were in the 
gang repairing the tracks. ‘They were spacing the ties, that ia, 
straightening crooked ties, and surfacing, which means if there 
is a low spot er the joint or center low, they would be lined 
wp anf made level. 

Refendant presents two contracts covering the time 
ef the acoident, which, it asserts, show that this work was 
being fone by general contractore whe omployed the plaintiff, 
ané that he wae not the employee of defendant. The first cone 
tract, defendant's Nxhibit 1, is duted February 1¢, 1923; and 
the other, defendant's Sxhibit 2, is dated January 1, 1923. They 
de not differ in any material reeaseet touching the question under 
 @onelderation. They are between the Pere Harguette Rallroad Gem 
Pany and “¥, L, Kellogg and i. ¥, Grego, both of the City of 
Chieago, Illinois, organised and operating under the eommon law 
of the State of Illineis, doing business as the Kelloge-érego 
‘Railway Service, hereinafter * * called ‘Contractors, '* 

Defendant argues that the construction of thease con- 
Sracts is ao matter of law and that the court should bove eon- 
strued them as establishing the status of the Kelloge-Grege Come 
“Dany a8 an indeventent sontracter woploying plaintiff, and sheula 


ji he instructed the jury accordingly. It Le the well extablished 
, 


ru ‘that, while the relationship betveen two partic to a contract 







be & question of low, yet as to o third party not a party to 
B, Ke is not bound thereby and the contract in merely one of 
As Fe to be weighed along with other facte in determine 





ir 


“09 £69007 on bat od fect Soest idewd Viftaie lt «tephra wont « tot 
wat axeied tacPhant tedee deeew ebdd me ahh iy ys kwe tee. te apis 

wit to aohu trom tolee om, Bae ont bane piaedloos et te weer om 
#2 Citas aedsot sew ft mpm tem bth bam sae ene bie 01d tone 





pat 4h exer  Pubgatate getkhwtond ,aom giao” i a , 
ak gasid peeks writ aukovts Oree gout .edewst enig aniziaqet gang 
exes th oneem dolde ,etien tee pom .oe bd. baalowee aatlone $5 ; 
bantl ef bivow yous wel totuen to tateh add so.togn wel as 
| heed obam bas «a 
out aid whtvaves stedeénuos see edhbeecw daha 5 e 
gow shor ghee tame wade (ke eobed a ldo kee open 
CYiitntete oxi negeloae ove wrodoetaues Loxdany Ys Sieh 
tee gear Rat “.Seahan tah te weyotaien et teh waw on ¥ 
bas (E86L Ok yrmirete’ hoted wh ,c anitder eltnehne teh | 
watt ae. i quiet Bevab ot ,8 ste tiaele w tonne ih 
tehm notieoup git yaliinnet toque, te See tae yee wk seh oe 
cms? haottied se Peupae eae ont nogwted wee Yoilt mrenery 
Yo vel0 of Yo Hdbe Laneee OF LO Daw ppotteal’ sellers 
wal aounon 003 coh gthiitewe Bie” hen Ritmgite (erent 6 
‘ PpewWagyolied ens ox aantiowd gates ,ekoatitet ad stett rai 
 Jerathantned” ballon © © gee tie toned vam i 
HOE bone “yo teliowiteass et seit contin Shabir tet” oi ; 
tee rind bhwada Puobe wns see Yow walt Yo aoetnia oot 
dale eedayyhtes att "Xe wade mate pn dnt a wt 
fist hd’ rebstete te galyatque totems tae  tnmhanee hak ry 
boite Efdetew Lfow wee we YT Seite ensis aetrt OM Be gibmttat 
Finely eis” le OF ne iva g wi anirterirod apete need iter hier: oH oh Hi walt 
gy yotwe RB fom Yiu Bebe 6H ew Hey! (el ke me Ttebe a 
on ise naecananel vena rs09 Nee rw ertoHe Hath tH 
| wtktaere tab wl aioxt aca inniaalanes wets i 8 


iy A Sal ide pe Dy pa i aaa ke Taka ito Warrinns sae 

































ing the relationship of an employee. Ghoninger v. Mann, 219 
Till. 247; Springer v. Ford, 199 Til. 450. 


in 





Tll. 16, there is = full discussion of this question, with abund« 
ant reference to decisions. Fran thie opinion we gather thatam 
independent contractor is one whe undertakes te produce a given 
Pewult, but so that in the setual execution of the work he te 

not under the oréer «uné4 comtrel of the pergen for whem he deem it 
and may ure tis own digeretion in things net specified; one whe 
@ontracts to 46 a mecifie oiece of werk, furntening his own 
assistants and executing the work either entirely in nesordance 
with his own ideas or in accordance with a plan previously given 
te him by the peresnm for whom the work is fone, witheut being aub- 
jeat to the orders of the latter in reapect to the details of the 
Work. The right te contre] the work contracted fur ie an import. 
ant test in determining the etatus cf an employee, and generally 
if the eiployee is under the contre] of an omployer, he ie ite 
Servant. The fact that an employer may terminate the work by 
@isecharging the exployee is of considerable weight as tonding to 
show that the employee is net the servant of an indepdndent cone 
tractor. The fact as to tho furnishes the tools er material 
should be considered. The mode of payment for the work ie an 
important element te be weighed. The opirien in this cane 
Staten that it ie imoceritie te lay jown « hard and fast general 
Pule or state definite facts by which the statue of men working ald 
‘Gontracting together can be 4efinitely defined im all eames, and 
that each case must depend om its own faste, no ene feature of the 
ease being deterninative, but all muet be considered together, In 
Duinote the weight of authority holds that the right of controlling 
the Manner of doing the work is the principal consideration for 

: ; the relationship. 





























OS Bek Me tbnei 6 aeyeds na Te atsesohtacen sit ae | 
etc Lae, mea et ee 

ROY \aghad tameO Gebetebed yy oa oe kee ob Lien bt ) 
abide BEI puphoandy whe Yo Mel sowoe th shel eh wrae y@k & 
pa tnd weddeg we motaiae shit eet? .soaoiateoh of wpe er : 
nevhy @ aviiorg OF wokeraehin ade ome ok thdeantneo rie h ery ero & ! 
gh at dew ott Pe kot troexe Sawees ery oe tod ) Pluie 
Pi oe ee ee eee ee ond wenn 96m 
edW ems Peal itascs Mow eyuekig at On aroe tO ae te oom ede é 
wore wie sptdete bereas’t seer lo eonte ettiesen oa” OR pS | 
OSeebhaaores AE ‘“herline tedelin dow oe gat rutews fae sinated 
abv ty we bonne ‘tele eo ale seaaenbona wh 70 wap Re mmee ro 
edus qatad suet ke , oie Gk Xeew WE cote cor moma Md mgt umbell e 
asd te whtaded ond oF FowqaWT at wOEteL odie ‘to wtobre amd! Oo) Ht 7 
ore fe ee ee 
— bien ,PeReteu om fo asdeda aid sahara aay 
pe Wt OH piyetans Ae ko Teoraes ent SOKaw’ peatrorssinsy . 

‘ed teow off chaabeetes ya oye tine fe peat” ernie 
oe gakbind aw piytew eidntettenss ve Ot eotetann ont galiithe al 
688 dneSdben tat me Yo famvrebe off dea 6d woogie nie’ nee a 
tnttednn 49 etoad o8e emite Lace? vile oF ba iba" 4 
na at rte die 4eN beednd Yo boa’ bak’ A 
Hh snag | rn ' so iy Peecven oll if hovgrconic 7 | te = 






pin gniiiow hom ty wuskte ome i ue ai me » hi 
"pk anne tie ‘al heattob YLOHIAPtOS wa! how banetinsgte rot vo | 
hth SO abet Vad {Bioe% avo bt no babyot towel babe’ Weae | . 
Pa ee ne Ree ot ” - 
ame iron te ditgar watt Fake wbOOR eaEtolewa to wat 
al Peenontine! teen aad pont AW ahha 


tts ay 













AAPL ess a Se a a Core Ried dec ai mr 





y 


Referring now to the contracts herein, they provide 
that the contreetore shall “do such tallasting, tis renewing and 
ether work on the line of the Fore Marquette Aaliway aa the Fere 
Marquette may request." They are te 4o aueh other work ae they may 
be directed to do by the Pore Karquette'sa representative and eneall 
perform all the work to the eatisfaction of the chief encinesr ef 
the Pere Marquette or his representative. The rate of wagee te 
be paid the laborers ia fixed by Clause 5, and the vere Varquette 
agrees to pay the “contractors” for any work not ineluded in cere 
tain epecified items the actual cost plus ten (10) par cent. 

There are also apesified rates for certain work, such as 

stripping track, $3300.0C per mile; moving and placing joint ties 

On newly laid ratle, 9200.00 per mile, [t was provided that the 

Pate for track labor showld not be beyond 4%¢ per hour. The Pere 

Marquette was to furnish free transsertation tc the men and hande 

@are, also bunk cara for housing them, The contrast might be 

terminated by either party on twenty-four houre notion, and if any 

@ployee of the “contractore” wan unsatisfactory te the Pere Mate 

qQuette, the chief engineer or hie representative, he shevld be aise 

‘Missed and his place refilled by another caployee antisfactory to 
the Pere Marquette, It was aleo provided that ony of the werk could 
be caneslled on five days notice, 

The Kellogg-Grego Company had an ageway or office in 
hi cage where men applied for work, Plaintii’ applied and was given 
pass to Porter, Indiana. 

Tony Bavara, « sub-foreman, testified that there were 








men in his gang, which inoluded plaintirs; that Hell Daniels 

# the hond foreman or inepector employed by the defendant company; 
Daniels gave him orders; “he gave me orders ~- he teld me te ge 
| and do what I am te de myself, and he sees the bad ties and 

; ‘then, to take them up or do the surfacing; that thie tia has 











ehivota yodt lected Kioarinen of ef wan gabete tell il 
Meuel ‘ptctenaters ere watteattat we” a6” Efede we ‘ie Spa ph he e te Veal 
wnat wed oe aw hai asveuper: Sey! mle “te @aRE ” +o ry 

ee es ee “igi ot OM wbebapet wu eddons 

rere toa aptinianentne’ ‘pt ee Sbupele were wath vw “a BY botdoai’ « 
‘te piaaiveatae “be trig dite “to neettes abbas ene be ‘Bow’ ott tte ir ert 
Sagee bo oti ont 00 Rte dae oesoes okt 96 ‘abode ea 808" si 
abvaupes' bx0% ane haw. ede ye badht wl wrote it bt . . 
tap of Behgtowd vox deer yan vot “nedeaeminoe® mie yme one 
stuae 24¢ (02) noe Cede teed Goten ode ones bernebed it 

ae than eee aberieon Tet wade: Se Teteegs oe te*ded : 


toh gator — Pete glume oan meg — — a 















| went ne d er MOE a Sinceit ad ton fh twoite eadot : 
amheass Sein reat oe oe. tio kitadueesamnd ree ath Roe gk ert 
ca soften Aemeetons, Hilt mines nant, kek eta, arset meta ae , , : 

WH Le hoe gate, wR mire hes Ie ey EO sialon of Daten howe 





ial went ust halt Wher OMe 2 aims aes * greed akg 
aR 9 Deane, eet. ywrAcRAamaa TION eka gO ventana eine sia sem 
OF. ERatM te Lene aR ROME Pann MORES EI bem 

be Saran, aoe elt, o yaa dault bok kegy cpt, mae ain < mp, as 
pen Se a me f 

wd eos’ te 70. wean op bes, WERE siosdlapiantea we 





ee monet 
alps shes tant (MDIAhAdG, omtardog! 

Rata gE Fasban an PR ee ere dig. tor Er 
6, OF wie BLed oe owt Te gm aii OA femme 
he PU Ree, eee hall at tngervienet cl 
me wht sheet Seale, pymbor tae 


got to go; this place needa surfseing up seain, and he told me 
What I shall do;° ** *If he wanted farrelid to do something, 
he would tell Bim to 40 it;" *@ “fr Gell 444 not Like the work 
of a man on the job, he woul4 come down and tal. me te fire the 
Man, and [ would fire him;* *® "1 the work was not dome wl. 
Fight, in connection with the laying of the track, he weuld come 
down te me te send some man over to Fix it, and £ would do it, 
but he woul’ always oome te me an?’ tel] me what te do,* 

Another workman testified that he heard Daniele give 
Orders from time to time on that werk, “lots of times:* that he 
@ave orders te Bavara and to ths witnesa; if Bawara wae too far 
Sway, Daniele “would ge te any men and tell him what te de; * 
he, the insvestor, picked out the plases where the track was te 
be surfaced, and he showed we what kind of werk ts do; the engi. 
Reers ured to put the etakes up and advice us wheat we were to do." 
The engineers were sumpleyed by the defendant, wade: sleo furciehed 
the material and tools. 

A report wae made daily te Daniele eo? the exact 
Rusber ef hours put in by ali the men, ond Oeniele kent track of 
the time. The men were not paid by the job, but by the hour, and 
defendant's vouchers show that the work im which plaintiff wae 
“@Mgaged at the time of the accident was paid for to the Kellegs~ 
Grego Company user the basis of the number of men employed and 
the tine, 

Prem theae and other faets in avidence, we conclude 
that plaintiff at the tine in question was an emelgyes ef the 
Gefendant, It is evident that the only interest in the work that 
the Kellegz-Grege Company had was to furnieh aber. They were in 
faet merely an omployment ageney and vent owt laberere as the de- 
Pendant might request te perform labor wider the eontrol and diree- 
ton of defendant's representative. 











eH, naoe id Bane ttage iy enh eae tae sheen sania sae, 4% oo 


and sage 





 entionen ai at Ri koremal Beton wil, ue a teh Sate 
oh ae Rist 

weg oat euht dom bbb Liege x we ore om ot Cod Ling 5 Lorie not 
CRB ae aba ye ok BAY 


gat wot at om Ltas aa weak #oune beter ot dot, ot #0 me som * 
hho spon ea say Axo me 12 ee Samad one ial her | 


















it os ee om nate aie ait ee Tere. pina amoe nn. a cael 
Saat of dace om Diet hme pa, oo ome. prggnetee, Ae od ted 
erin aiedaa® breed oo tet? SO ELL ieed amet ow RAE OMA yyy ene 
esi Jedd "ypeemis “to sted? ater godt Ge oaks ae, woke onsen 
pet god wer ater 02 piteeette nab ot, CP AR ECR 

#4 yeb of tatty obi thet bin geen gen 98 om bimew! wkekang, 
ed oe doeed aks oxo weeks aoe dow dowela. poe nd a 
whyue ond geh a? dtee Ye babs door ae dowote. ea hme, ~ deen trom e 
*,o) at eam ow tein ey onivha hew ger goede sad treed haan ® 
Mirae? wehe soldw (towhowteh act ot Aoyetqme: exer atovatgar ! 
ol ghee bea L . 
ee ee ee eee ee ae iste 

La teed teed aka tow hee nem out Cha ge adda etme) 24 

Bie tet! eae ye aut {hol ear we Bhee Gok ae OMT ean 
: wow Tiivalide “olde «2 aeow ea cote wena roy et tambo he » 
“avOlind mit os tht Rha Ri Paw ome ate te on te: ta | 
bie hws Tom: wom To Wwe @F te a bonlt dabiiulcteiiei 


pe a Pi feta da > 








* ‘tiie oe jovnebive ab atne't 2080 haw goo rd eet war toaly 
‘we Ne em EO Le me eHee et thm OF wea, web wkoy # 
aint teow Wilh at Sao re ta Eine Al) nent” ew bro ek AR) yaaa 
ak eee wht .ouak a tew? OF gas Dill YamasiO®, smMEDENMORER mal 
“oh 016) wn axoxedn tale! s00% bie ‘osetia Semmecogni sh harman te 
3 ane dito Kotties oct seme endif nett, at) tamnpem ay tan 
i Leviiadcnentqnt 








The very character of the work 4s euch that the deo 
fendant eould not reasonably leave it to the control er direetion 
ef anyene «lee. It wan the fauiliar work of repairing tracks, 
straightening the ties an? leveling the ralle, and upem the ralthful 
performance of thie in ite detatle denendted the asfety of defends 
ant's traffic. It war not a eortract wlth Kelleoggetirege Company 
to profuce & wpecifie reault like a bridge,or a bollding,or a new 
track, but was the daily wort of traek maintenance, 

In Furke v. City and Sounty Gontraet Co., 127M. Y. 
Supp. 4600, the court hel@ that a similar contract wes simply one 
for organizing « rorking force ta be used under the direetion of the 
Pailway company's engineer. The faet that one ef the partion is 
termed a “contractor in the agreement does not extend the contract 
te cover matters clearly euteide of ite soope. Lt is quite semmnen 
for men to make thease persentage contracts, varticularly ines the 
modern influx of foreign laborers, whe require a superintendent 
Speaking their Languase, and they are generally referred te ae 
‘eontractors' without anyone aunsoeing they are independent eon 
tractors upon the work whie: is in pregress.” 


In 2 r. Vs Lmdvate 





4, 276 TLL. 





472, 1t was held that the injured party was an employee of the 
Pailroad company for the reaton that he wae eubsent te discharge, 
and that the railroad company sad the wioht te control the manner of 
Abing the work, Other eases supverting thiv conclusion are Rooting 
Mata Srarsherh Ina. co. 300 I11, 467; Hatiroad Co. ve Manning, 

m, (Ky.) 143 3.¥. 
36 Okla. 358. In 












sant that the relationship of the parties wae a question of fact 
@ be determined from the evidence, and even if there was « conThioct 
the evidence the court would not set aside the verdict of the 
y it was clearly and manifestly against the weight ef the 





wo8 ost Sas? oun, wh weer add Yo Uneammmatg EMM MAE op) wh tn: 

se bdewr th we Lowteape eft oF FF awe f ‘cinietoonane's ten dahl sh ox 
ened yattioges Re Mtow telitest welt gow 31) 0mday, organ 0 
Swtstiwt 8% sage ban je Lien ad yortiowe lL baa o0bd od manetep kease, 
wheetes ke eee'tee vi! Bothawaeh eLiated woh wb wae Oly on nance ta 
Wigan omeeiagno liek sli tw suendcion a tom aa FE): sotto tine 
woe ® ents a Re, omiite o att tyewt- as aay eas 











AE OEE 6g 
sete etnaky “wane teartion thbake w tadt hdod soem (9d) gy MO, 
aad ‘he nOhfeetl) Gay tedce Aoow od wt ikl 
ak aohttey oft Yo ano. date teat ont VTeemL ya aye gues 
somisnes ect baedue Foe geod domo spetgs eff ah coterteser” ade 
omnes Olu @2 FT seonen et to ebsrdee yesenty wuoghamitpeD nd 
eid ao ita Lee eg yedeasince <onsesnengianneneniatits com 
faebiveninegyy & etheper ate yatetedet ag toc’ eos bab oa ’ 
Oe eo herie tes Uhletendg. ote Yo? bate cai RES? 
ated Piehewtohaivers yout gekeonqua eaoyae) tredtin ‘ade 
* ehetgecy mh eh cater ahem pelty goog) 
von tats beh oP 00 se tine met opee, WR ule watt 
ee er ere a 
(Rw NHAN IT Of Goel eared Fee) omeene cult nee ee bm 
to anditea sos fourame of tris te we het oom meen Pat hdery mad it a ? 
unites ote mathe inane aki? galtcocgge eenee we pnenyePrih . 
‘ A i* ,ott Anwar Welt QvBe 24k GOK wit 2 Bitlis ito Levan mA 








wai: ee he teh OR of a Ruma fa bs , sit eit ” 

tent to nekiearp » saw antenna get Te itanoanson, wid tnt : 

Colle 2 waw oTedd ‘TL mewe bee yet ptt sey ihe Sek od we 
ot? Ye telhvew ad? odioe tae 01 bine den dome, oa 





with Ua Kedew auld dewtene edad teed bik ches ee bh es 


evidence, A large number of other gitations mbeght be civen: sleo 
some holding a contrary view; but each case must be decided ywpoen 
ite peculiar feete guided by general principles above atated, 

We would not be Justified im dieagreeing with the cone 
@husion of the jury that giaintiff at the time he waa injured wae 
an employee of the defendant. 

Defendant sayr that olaintart's remedy was under the 
Indiana Werkeen's Compornsation act, asd that the evidence chows 
that he has received compmeation wider this act, Geetien 13 of 
this act provides that sn injured wmicyee may claim compensation 
from hie exployer but cannot presesd againat both employer and some 
ether person at the sauce time, and ommmet eollect from both "1f 
compensation ie awarded and accepted.” Chile the evideanes ehows 
that vlaintifr received 313,°% a wees Sor some time ofter the age 
cident from Kelloge-Grego Company, there ia mo record of the prom 
@eedinge of the Industrial Board of Indiana ond mo evidenwe that 
it “avarded’ my sompenantion te plaintiff. The evidence tended 
to show that proceedings before the Indiana Bourt were brought by 
the Keliogwetrege Company noming the plaintiff as the defendant, 
The cases cited by defendant were decided before the Indiana Come 
‘Penestion act was anended So as.to prohibit an injured party from 
“proceeding againet beth an employer and wisther person “if compen- 
“sation is awarded.* 
: Piling a claim for s compensation does net deprive 


tehity eof the right of action under the Federal Smsloyers' 
ility age SARURE. Xa. She 234 Ved. 832, 


a made of the inatrvuationa, but they were 
im line with” Bla: at liste theery of the oase and there is no ree 
$ Veorsible error in this respect. 


4 We see no justifiable grownda for reversing the fudg- 
ment, and it te affirmed, 








AY¥ THMED, 


t and Johneten, J7., coneur. 










Gale dowdy of Scydnh aaetiatio memiy te: aT Te A shorn v 
ae Da kon od Sess. meme Stone Bite paielbe: cuttaeo wate Lone i 7m 
ebetada: avota a Sa ioadien : tones, yo bebhny atonh ee BL 00 aa 
ee tile. 8S De Bakes ayaa TY mb e Veta eo fom hivew WB lo sia te 
aan bene hed aw of ames otk te VELOote he Beet get aa re: v9. a ’ 
sister babs “anette lt re woverens! x 
AS Bats ee aves htt hati bin fey Sade ane dtaebae ted to. ARR AE iA 
awots eomebive ead Smee Bie tae woktmnem aed af emmiwe® as 
‘te CS mehtert ana. She So baw awl somes qaine Nawheben aac an 3 
aBLInEdwYkos minke yao HeeDeme ercw hl ae ane” anisbiedtew 
oneal how woyotyas alge fede Iemmerng: Ponsa Sant ete whe 
RR Mbedt ans’? deal ton Serrawe haw | oad onmeede’ Ge Gimme tel : 
ewe soa Aton GAP ahh * team Bee haba wR : 
oie ed Nadie oped sso eNt Hoow Ww ORUOLE: hewienet Lg i 
mete ai Le Bignet om mt meee y pine age epi LC) meh tm 
a Pe 
behar? Soxoptvo oat VP ireeheke od mmitemmmamae tae! etait 
ee drQnotd ore eee smaihhad old wee hod saaetsabnen nile ea i “@ 
sonatas woh ot ae VEbwateede at! gactaman! vasuicsne Who oa ai r 
tlt) cle bea wal, eaten? hedote ot gt eter seeae & 
oth yi tac bacehat om pid delgge nc 99.08 | anbase nite 
manga Th" aparog aeciiene tee Tey OLeMe MA” sou dante the 
: ghoul iain te oh. aed gee ah we omer: ante ta vende on ai a 






















437 - 31569 


ISIDORE FRIED, 
Complainant, 


¥Be 
PRABK L. BHLSCHLAGER and 
CARCLIKE 


L, BHLGCHLAGER, 
Aappeallecs, 


MORRIS H, JACOBSON and 
GARAH JACGRSOK, 


AY PKAL FROM BIUALOR COURT 
OF COOR CONN TY, 


appellianta,. 
(On Appeal of SARAH Jaconson) 
Beferdante, mt ALN gh aaah 
S244 [4 Coe A 
Say Saget ma @LL¢ VS op eZ 


BA, PRYSIDING TVSTICR ReguReLY 
DELIVERED THE OPINION OF THR COURT, 


Yetaore Fried filed hie bili ef intersleader alleging 
that he had in his hande 57,060 claimed by the defendante severally, 
Anewers vere filed and the cauee referred te a master in chancery, 
whe after hearing evidence reported that Morris 4. Jacobeon and 
arash Jacobson were entitled to the money, The other defendante, 
Prank L. and Careline L. thisehlager, filed objections ehich were 
“over-rul ed but, as exeevtions before the ehaneslier, were sustained. 

The master's repert wae diwapproved ond it wae decreed that the 
“Mhlschlagers were entities te the fund. rom thie Garah Jacobson 
‘has appeaied, 

The controversy arices out of «a contract for exchange 
‘Of properties, There ie very Little dispute as te the fects, Dee 
fendant Merris Jacobson purchased the tb ilding in question in 
Septenbor, 1922, It eonsicted of twenty-one Slate above the base~ 

ment and two flste ef five and four reoms, respectively, in the 

| Damement. The five room flat was ¢complete<, and Jaeobaon testified ; 
tat the construction of the four room flat had been started when he- 
| the buliding; that the rough pluubing was in, "the layout was) 





* end part of the partitions were in, On Karen 1, 1923, the 



























_ ange. rere A Ma EA, 
ere 0 HOO We 


Bea eats Suds tap ate tire w® 


7 ae ia AD, 9! agi nite . 


yeaa sible te Pid wht Bw eI eeewanilir ite! pat 
| .eetwteede atestae'tos any yo bemlete O80/00 ehiad ahd ait had = fs 
eeGnweds af Teteest a ot Bentetor ommey BHF hal! wetht oto ven 
Hae agedioal . aber ot ean! berroqot sa 100 in ind 
Shietoe'tad tanto out pain eae ae be CORES WoW toe ddoul 
Stow bre ens tvumyse bed yaya sine tan Lt) oantieae a 
-beatermie oxen Wolken iets ent saunas veiereaet he a ve * 
ee JE heh herertvnnts aw tte é'o*node 
ee ee ee ee) 












waned aad seri adn 7 

ons, ak sttovicnegess | semogt met Baa a9) 
patthtent aondanat, Loe hot tqaeo wew gal ae 
msl nai bodega mood had Galt wot Tet we to aolite 

aw Swoynt ene* yak aaw gabdumtey agubt oe fost 

oat “e ot Meme at ?— one — 4 td to. 


vy 


Wh 








Bhlechlagere se parties of the first part ond the Jaeobsons as 
parties of the second part, entered inte a contract for the exe 
ghange of real estate, which seong other things contained this 
prevision: 
"Party of the second part agrees te camolete a four reem 
flat now in course of conatrustion eat a price of $2,000 
in addition to $115,000 aforesnid. Gald 32,000 to be 
placed in escrow, enid escrovee to be agreed won betveen 
parties hereto at close of donl., Gaidseserowee to pay said 
gum of 92,000 te the party of the second part wher said flat 
de completed and all waivers delivered to said seserowee,* 

The eserewes chosen was Isidore wried, the compiaine 
ent. At the date of the contract the rough plumbing ond rough 
Plaster of the four room flat were completed, the partitions and 
the floors, except a hardwood fleor, were in; there remained to 
be done the hardwoed fleor, the hard finish plaster, inetaliing 
Plumbing fixtures on4 elestric Lights, 

The master found that fmecdiately after signing the 
tontract the Jagobeons proceedat te eomplete the four reom flat 
an4 paid all the bilie for the work end seeured waivers of lien, 
The work wae complete about April 15, 1925, and a few dars there- 
after Jacobson notified Ehleckinger that the flat wee coupleted 
Qn4 requested that the $2,000 left in eserew be paid te hin, 

The Bhischlagerea made no ebfection to the work except ae te the 
Kind of glase in the basement windows, ro. Bhisehlager wanted 
@lear inetesd of frosted windows, and Jacobson agreed to and did 
Bake the change within a few days. ‘the master found that Jacobson 
Rad delivered to Fried, the escrowee, receipted bills and waivers 
of lien from contractors and moterialmen and that no claim for 
Unpaid material or labor bill er lien kad been made, 

| The Bhlechlagers claimed in their snewer that Jseebean 

“444 not get the work approved by the Building and Health Depart- 
“mente ef the City of Chieago, which had refused to allow the 


| flats to be cceupied for living purpores, but the master found 








i 


WOOL wu. 


_#e eosedeoant oft ban serqg fort? aed Te ae ttnog aa eroge fitoa Let 
eee iit ia 


ane wt? tek soartaes 9 adhd Saaogey - » hae dhesinsay te ast 


alge fontedune agnids aeaxs sineean hs Rete hres inet to! eonad 
i a es roman 


dabvane ae ase dogs 


TOO ee a ute ames of nopige 2 ‘ai ent Yo ¥2 
SOG RE Le: ood @ dm aobipyttanos Mires re 
ed of QUE Mee  bieeetela a O00. BLLE od ore) 
Agee tad woaw: hye tena ga ad aeweeD ns hiaw morn my 
hiee yen af sowausad) thee teeth % goute da: ' 
okt Bhan node drag baa oe sad “Le Pee nga ad! OOO 8 res 
* mpwro wane Kian of « apne wd L498 ate Law. he he: todo tenes 
aniatense etd phe ike evebeet av nse oifo sawntose ott 
depooe hee yokdom ky Hasan ott foaxdooe utd to efab oft SA os 
fine, @noksiutag site bode Lewas otow gm? soot teat od tonne: 
2 te abeseas ecads sak oun acer hoowstad a” ie me | ereort er 
yet tattered * yheeenee debt reed oo pewell beewktad olf omob ib 
: <02Qil ebttoede dng aemiexl? y 
! i a ita te ylota deo Seutt Hamed aetna wee oy aa 
‘hese nee casoh meld ode ToROD OF HebeNeORE MOET ona oot tem) Dn 
Cae bt cP emevdaw Rercoen Nee abioe ead Cot witht weds Lone tae bh 
PtH CERN HOT wah BREE 22 Ling. deeda Dade Lemma: wale drome | 
Kae RET caw pee ot Peutt royal Lee LM delta — rk 
| Site oa Bbq Ge wotmes) abt red eng momdd caste 4 
i ang of ad Faience <tad oa 6) mobos tee om sham emey a i uf 
beotawe twyelioeiak .ath  ewobnle tnomeaed ond at asaty to a 
WES Rat o@ Bebe d mhedeai ail erehntw fotos he: kaw ewih 
“fedndet deed wone't womenes watt Saaenicbennaimmnasen: 
wae atte ite w tthe Hey heww. geinceenadnne: ena Fe 


tah cae gat-tesio Sige neat un gue. We 































‘soavone’ ‘dwatt teween atk omnia anentintot 

eget aC gntel tetsu iensisuelnses whe 
etd okie oF been ven Rest wo brie open keh. % 

\ tare’s ew dmaae lt tart seecune atvAt 03 


i 





and concluded that Jacobson “ns not required by bis contract to 
get the vork approved by the Nuilding or Health Departwents 

and 414 not agree to obtain pormitw Trem the City of Chieage. the 
master found that the Jaeobeone bad completed the four room Slat 
im compliance with their contract agreement, and that they were 
entitled to reeeive the $2,000 held in eserow and recommended the 
entry of a decree in seoeordonce with much findings end conclusions. 

It is argued here that JTaeobeon was bound by the con- 
tract to preeure the pereitea and cartifioates from the Gity of 
Ghieags. Tt fe said thet the chaneslier was of this eninion in 
4eorecing againet the Jaecheone, We are of the epinion that the 
Gonclusions of the master in thie reseeet were proper. The eply 
Gondition named in the contract wae the cewpletion ef the werk 
Slready started in the four reom flat. If fapnet denied thet the 
Jacodeons did this. Hewhere in the contract is there any »revision 
or obligation upen the Jacobeons te procure perulte or certifleates 
from the City. 

it is atrongly argue4 thet the contract is invalid on 
the ground that it contemplated a violation of the buliding ordl- 
Renees of the city. The M@ilechlagers are not in a position te 
Question the validity of the contraet. They do not offer to ree 
turn the property they heve received nor to put the parties back 
into their original pesttions, In effect, their claim is that they 
are entitled to retain ali the benefite of their contract witheut 
Paying for the work fone om the four room flat. 

A further eensideration sunserting our conclusion ta 
that none of the work which remained to be done when the contract 
ef exchange was made and which was subsequently done by the Jucobsons 
Was in violation of any of the city ordinances, ‘he floors, plume 
ing ana Lighting fixtures and hard finish plaster added by the 


Jaccbsons were all in compliance with the elty ordinances. A elty 


is ‘ 





ot Hates abd ef bendapes tem oe momd gma, dealt nnactonen, bp 
tinentisged dee! so gabhd ied aie yt beveroas. dew oat, $9 

ent ogee th Le (dake mad sett addon miadde of setae 2 om nab a 
dak ager too’ odd tadetuxer had emondgen’ may, ica ; 
iii abet aanis fe: a herierae tee SB Pats a 
aid bob seemoget ‘ine aera au Siewt 0,08 eid shih ’ in fi : ten 







- sin tom fone wate ound att oun sch he com banaDe ‘ak a ne ie 

avo> and Yd homed way mondonel dete ioeed Bereta nd Ad: 2a fl 

RG GERD alt amet Be rewe bee Renee bene ee ae: ot tort 

at woking C208 Ye eae VARReomwede one ger ob tew oh senegal 

ot $08) aotatos way tn exe eT. yemoddonal eddy. suaeneenns 
esan aut regres BHO Ramee, Wet ob teheam ond, ‘to, 3 

ee ee ie ee ee vat daca nok 

ote Pea? tolase deeded Of cdot? eeomemet eae. oh betwee sided 

abielrowy ye woe of PoatineH Ad mb oNncwal aks DD 

werkt Meee Ke ahineog stgeetg: oF, soniaianiin lt) ang noite 




















‘ee Sapenabws Seeetane eat fade Sewea, ctosentn at 1th. me ce aa 
alive @aik ited af ko melgatoky a. tS sasht: 94 

of mitieny 2 at ton wee waegetaiomds — eneonae 

att Be wore Fon ob yest od tre abn ptt te. Btthdtor, ® 

‘text seltrtag cob deg oo tote howhenen omni ‘wilt setnnainast ve 
yey dyelt wb etete: ated foes ah geno khbeag veannaaiithi y 
Seon iy Caine eet te ee Pine alt De mhaeon: ‘et be baheg 
pte away cet welt co gman ttew pat ag am nd 
wi woledtoase Yee waibeerionent: ini dSeerent ta anit eR ie 
teatdnee sad ‘ioietw swab ot a Poa bascere eda, xan id) 10 820 

sasedaoat odd YW SHO VEPROupOedwR aw. Kaden des wham eae onnes 
atively ,etdett ext lneodwithte iis ‘ode ergae esauaettae: 
ont vd Sebhe oten £e Ho kete. merase: 29 Lang t § 
vile A webdnatbae ‘vite “ied ae oenienk cee ak Ol 








“dnepector testi fie? that the Tiat 414 net conform to the ordinances 
in the 4istance between the floer and the ceiling and the eige ar 
the rooms, These conditions net only existed at the time Jaeobeon 
bought the building but sleo at the time the Ghisehlageres examined 
the buil¢cing and entered inte the contract. Tha Uhl sehlagere knew 
the aise of the reoms and the height ef the ealling fully as well ae 
id the Jacebeons, wo that if there was any wislation in these pare 
ticulars, the Ehlechlagere are as cuch chargeakle with knowledge 
ef the facte ag were the Jacobsone, 

It hae been held in many eases that, if the work is 
fene in complianee with the sontrect of amployment, the scentraeteor 
is emtitied te his compenention althoug the work when finished may 
Mot meet the approval of the public authorities. Fox v. Rogers, 


271 Hass. 546; Kiehvel vy. Bacon, 49 Me. 474; Mood v, Casserleigh, 
97 Am. St, Rep. 136; Barry vy. Capen, 152 Kags, 09; Dunlop vy, Keregor, 
156 Fea. 545; Howard vy. Lethy, 197 Ey. 324; Morse vy. Waurer, 35 Pa. 
Sup. Ct. 196, 

Im some miner detaile the work fone by Jacobeom Le 
@riticized, tut we agree with the cenclusten of the manter that 
there was a substantial compl iamce with the contrast and that under 
ites terme the Jacobsona were entitied to the oun held in esorew by 
Priea, 

The deorse of tha vhaneslior is therefore reversed and 
the cause remanded with directions to enter a decree in accordance 
With the conclusions and recommendations of the Kaster in weer 
and in secerdance with what we have suid in thie opinion, 


REVERSED AND REWALIRD 
@ITH DIARCTIONS, 


‘Matchett and Johnston, 37., concur. 





es dann PY ol hh 1) a te 8 Pte? etry Wy Ue OP ANE RT oat > Rm yes IES | a TTR eV ga 









aera athae ad? of arto'taoe ten bop. dade okt tats ain amet 
to use ont baa grtlion ast daw amokk wait sawvaed avaagel® with i 
apedeost omit a2 to hedadee Vide dae mma timoe ened? hoot 
Pemmbracae. aiey2 ketowcate add aaht act te wate dew wend LBant ede of 
wom exeqn Lion tds ptt .Swettice pak) weak pow dete ram tht 
we flow eo vite aublien. ond te seghesd aay pate snot ont Yo ote 
“wh plgdt at selde kote yon wnw, mmo ThA, seat fia Doscseboncdusinn 
Oudetwond we ke elieay ede Mom me, oe ems wi odd ,otetue! 
| : ‘sOneepnl tty eeaxnevanvad sled 
wt stow old Cb ane, von yom Bt Siler seed) gee Phy) co. 
Notamrties est tonnyodgoe bo soaetion eas cede von bsesen at ou 
ann herebalt ae ate ahnow ad? cgeomttde selbieoaagaso: abd: 
HeObe ts anita oliduyg eas ‘to fare 
ee ae 




















oh mundogeh Gd sank Hot at mhod nente omen AT, 
fee dane 8th Le uMbeaConne, ond, xa be emenn ww Su gmt 3 
Tohrm Pass hee dowrdaen one sei 





— nh vesdagi one spent ports : “emetenignos: este: 
S aiiilinds eet sat ar ta ae ne 
nied 5, set ORR sits wi pally Mm sii 











eae OR Erte E Re F ay yy. eae: 
RMR se aE RO EAS UML, 2d aie Ny vi i ' 
mt ey ae Canine 


A’ i 
rn ‘ the a 
i AG RE I OES AER iar Sr: i 
ae 


P tenmliatinn' ape seis Tig FR aD Re FE Te oot Dai: 





Be se Mal edasi lalla 





jas gee ie Ae a Wi mae gel 3 


458 ~ 31587 


PROPLE OF THR STATS OF ILLINOTS 
ex rel. NAPOLEON SINENAS, 


Apoelive, 
: APPRAL FROM SUPSRIORN COURT 
VB. 
OF COOK CoUnTY. 
CITY GF CHICAGO e#t al., 
Appellants. 


Op A ry i /%, D Nal =< 
bes a “t Lolleo VOWPD 
BR, PRESIDING JVUSTICR MeSURGELY 
DELIVERED THES OPINIQR OF THE Comr, 


By hie petition the relator sought a writ of mandanys 
te compel the respontente te grant him a beverage license far 3438 
Bmerald avenue in the city of Chicage, fer which application had 
been made and refused. Resyandents enewered denying that relater 
Was a person of goed moral character and reputation, ond asserting 
that on January 1¢, 1996, the police officers of the City of Ghicago 
found scatrones on the premises 4rinting moonshine liquor vhi¢h was 
kent on the presises for sale, After hearing evidence, the court 
@ranted the writ of mandacus ordering a license to be iesued, from 
which order defendants appeal, The relator dees not appear to 
defend the order. 

The testimony shows that on January 10, 1926, police 
officers entered the premises of the relater and found same men 
with the relator drinking liquer., another officer testified that 
he made an investigation ond foun? the relater had been arrested 
for violating the Lew forbidding the sale of liquor. It alse 
eppeare that at one time relator's wife had him arrested, 

Aes the evidenae clearly estubliehed that the patitioner 
had violated the law and that his former license had therefore been 
‘Pevoke4, we cannot any it wae an abuse of 4iseretion for the 


‘Peapondents to deny the iesuance of a license, A municipality 


| Ri na 





{© fantitar to) ost owe 


: Hae Te 
PYG KOLAR BONE LATIA., ae, ' 


Css ee oP ‘Sa a Pa S's by 4) Hy ' ‘bi aye oy wi : sig " i 
ip EE BO EQ. ve saga 
. te ‘euausio @” 


OM pet aes iaioatr eam call . Setabibidehs as! Pe ee ad iy aur aoe 
" oc y “grey ie h er. RP) lb Metin ai atria 
minis war rit ae a ee 
Sade wer cd latiratad “et emaatvre web nine ea oe 


AR Sree A UY Ra a a we o ‘ aber ' ‘di ii ‘) 
exmpbaan ted eo tetgeron entens: pete | alien ee 
Bean. matt ganna ts, auetered waht 3807p. ot etaghavgs 


hawt avsiso tinge mp isw ret ,agaedcy te cee ody, a0 
antigens: eels — donovens. itimmrigns ty 






















mest ~hewand af od nein & gran ye em 
‘eo Sac 990 Keeh ihc ian, an # we 
eotloy ,@#2¢k , Oh Ciuarae ao Saely eves vaetent ont ' 
tee come Sauut dae totason add Yo. noe heotg, uh iil : 
Jase QO Lt iamsd aor tte wecltomd .voupes gots 






nak Oy v a a}. 
tend etoterods hus onneots soul’ ‘ey be ad vi wi 


Goo Ley bey Lotus a anak s te meena nie 





@annot be compelled te grant a license where a former license hag 
been revoked for good cause. Harrison v. People, 121 Tli. App. 129. 
The relator's testimony as te citizenship is indefi- 
nite and wnreliable. He claims to have made applicatioa, but 
could not get his second pavers because he could net rememher 
either when or the boat on which he came te thie country. 
Tt hae been reveatecdly held that the writ of mendenus 
Will not issue unless the petitioner shows a clear and legal right 
to it, and that it is the ‘uty of the party againet whem the writ 
fe seucht te 46 the net whieh the petitioner seeks te hare per- 
formed. Eeople ox rel. Kann 
Byildings, 320 11. 117, 


in view of the evidence as to the vielation of the 





liquer law, petitioner hae noi sewn wm clear lagel right to the 
writ of mandaxus, ad the order avarding it is reversed and the 
Cause remanded, 

REVERSED AND REMANDED. 
Batehett and Johnaton, JJ., concur. 








AgRHures kato od ste fal otsw no teod ent to el 
invalids he oben ost heated gon enna he | food ans 3 : 
fiyix Legel tue tanto a evade monn ishtem ot, ane Lee 

stew edt mol” tanteoye yoaeq ald to Yun oMt os #3 tuists ane at a 
one sent of ailoow sainiaeaelia daeitindbsaiiad ois ible 


































He ide ah: puanintes Me hee er _% ae yee 
gd? No apbowkedy ett oo ye opewbtye wad “te Wel AR O°! 
sit ot Srigbx Sayed Woe te ao wwelte Gon Gna SOMMEd ti 

Rie Roe Darter! eR ORE I aan OMe baw | 


PN AM Bea) a aC uy 





Bae wen haai.d Ta 


si <rhee att 





sniiaaue) mes Pe ee aut 
wah ii oreo shee ote: 
sani cauianl aeuah ieugiu/ilii als Hel os aged aise ws + ane 


OR CM ets SRR iis ale I HY i ‘i . boats iad bis » ea 





Pie ae BERN Sevoat od We. ahh MR aR sii Nebo 0 seo Aka tone. iv i) 
dE SPae we Reed Male Dies: Ri untae ES na 
PEE: RR hist Be wee | ate ‘i ‘i nit A ‘al nia een a 

Ce eae a Oe sae oe bait pi ah ne epee wean 


Mp Ne me iis cane Bs qlee ee ae ea auc auld weet: en, aasebe 


466 - %1629 


H, L, V8TTS 


Complainant, | 

v8. 

WILLIAM H, BROWER et al., 
Defendants. 


GERALD D. O'SEIL, 

Pisintiff in Brror, 
BRROR TO CIRCHET COURT OF 
vs. 


EMNET J, CLEARY et al., 
Defendants in Mrroer. 


COOK COUNTY. 


ne A eer Moet ee Maa 


SG = f y Nicaea ie fi 2 =~ 

PAAT.A. 625' 

4 4 a h- ») Sy 
rE hm GL EC Peery C2 


. BR, PRESIDING JUSTICH MeStRELY 
DELIVERED THR OPINION GF THE COURT. 


Plaintiif in error, Gerald D. O'Neil, seeks to re- 
vorse a forecicaure deores, the order of the Circuit court refusing 
te allow hic te file a petition for a bill of review, and also the 
order issuing a writ of assistance for the prawises against him and 
in favor of Emmet J, Cleary. 

The writ of ervor was originally sued out of the Sue 
preme court, which held that, as o freshold was not involved, it 
had no jurisdiction and tranaferres the cause to this court. in 
324 I11., page 40, is the opinion ao holding, whieh recites the 
Pleadings and orders entered in the case. It is unnecessary to 
Tepeat these here, 

Plaintiff in error asserts the right of review of the 

foreclosure deeree on the ground that the record shows that he was a 
Receseary party in interest whe was not made a party defendant by 
Complainant's bill, Thie assertion of interest is based upon an 

| @aended eroee-bill filed by George ¥. O'Neil, which among other 
‘things alleged that the presises in question were on June 11, 1921, 


an 


we 






















ath tat wind va 


8 BOO TRHOAIO OF MORE 


ott 


Le te te rakitio ¢ ewan 
ROXIE AE adngbag ed. : te , 


t 


3 a ; ani ‘ae’ PE “ 


+ ns he Hay ; bh, rm i Ea ae nh 
Ge G ey Aa a & n i 


Rae worters omteraeet | eh aa” 
09 mer tD norxrT0 mee iaierdide® “a8 si , 


“ay Ra : bara Me ca wad Ye Rae Rive Hann 

mts 2 oiane | «Aamo - o Lewn, aterm ak, Ti teaba eh “ “eg 
gator tem oaua9, tivarto ostd, tn meabeo ost 4 PO TOO | 
ent enka fee ,Welives te ifif os a9? aolditeq # ettt anim 


RRA 7} 


~w ono ‘Le tee hewa mere ee? naw sorte “ a daw ont , 
th .bewkoval fom naw biadeost a an ,fodt ibd co kdw ,duwoo | 
ad .3xyeo ahi ot oasee act hewxehanety bas motte the ryt on 

os Sevioex Sedkw ,gaihdok o@ aolnigo ost ab 0b opagq 1 AEE OB 
Ov (tagesoenaw al fh ome eis ot Sorotem areht9 baw 
 sewedt pe) 

oft to wetvet Yo tight ast efteene torte at ThesateLt 

& eaw oo tel? ewese hrownt et dodt owong amd, ao HOTOOD omee 

ud trobas'teh Yue e whew toa Bee oilw teonooat wh A dann 
ast noqy Deaad at daptetak Yo voliissaw whet. Renteniali 
tee gionn soidw fel ® .8 agtpa® xo hotly CEeden 
i802 Lf enol mo oxew mottuoup ak wonhowet' ious tout tints 


which was five daye before the filing of complainant's bill, eon- 
veyed to Gerald D, O'Keil, then o miner, and others. So anewer to 
this amended ercee-bill ia in the record, It appears that submee 
quently evidence was heard in support of and in opposition to it, 
and it wae dismisses fork want of equity. Ho evidence ins in the 
Pecord. Ye must therefore aseume that 14 was not vreven that 
Gerald DBD. O'Neil had any interest in the premises, 

Even if plaintifY in error was « proper perty te the 
foreclosure und not made «a party, he oannet complain of a deerea 
which doee not affect whatever interest he may have in the premi- 
@ee, The decree ie valid an to the partiaw to the anit. Pope 
v. North, 33 111. 441; Walker v. Warner, 179 Tl, 16; Clerk v. 


Zaleski, 268 I11. 427; People vy. Bvans, 262 U1. 235. 

A final resson adverse to plaintifi's maintenance of 
this writ of error is that it was sued eut three years, t¥o monthe 
end some days after the decree was emtered, which is well past the 
Statutory limitation of two yours. Practice Act, chpater 110, sea- 
tion 117, Illinois Statutes, 

We cannot veview the agtion of the court in denying 
Plaintiff's motion fer leave to file « bill of review, for the cone 
‘Rents of neither the motion ner the petition are disclosed by the 
record, 

After hearing the court fouid that George ¥. O'Neil 

@nd Gerald D. O'Neil, "parties defendant to seid suit or parties 

whe have come into possession ef said premises pending said suit, 

er under or through the parties thereto, were in possession of gaid 
premises" end refused to eurrender the sane, and ordered the writ of 
© sepigtence to issue. As George ¥. O'#eil was a party to the fore- 
Glosure proeecding, ve must assume that the court found that Gerad 
D, O'Neil was a party who had come into possession of the premises 








the suit, or under or through the parties thereto. There 





od tewede of .aveiio bas «Honda eos tte. le Abe 8 ites ous 

| ~ondwe test oxnegge 3% «brocex ott oh wh any hebagge. alt 

,th of smeitizouge at hae to tteveue at brew sar nnant typ ioe 
amt mk at coneh hve eit vad lope ‘ta taew tot’ ‘pate bine tb ant tt fa 


aa 





He ’ 





turks mevony Jan naw tt das CECE) orotexend seam, 
pea taata ott a guotadal All Bad ‘Hed?o a btore 


aut of item, ‘Ber A mare torts ak rinsing ut engi eb 





od 
A 


ohne oa) al evad an wil jaoxstat ‘wentase , teerte son toot ions 
aga veh dve, 9s 2 astdreg eit of ga biley af ontseh out at 
o¥ Btelo 594 pared erg W uy seusa pipe” eet te seat i 








j ose oti all ‘ 4 ive. | , 








28 ALL meta, tpn sO pienso 20 met oa L ar ane 
rieuied® adoaRlld VEE m9 

patios ah damage ons Yo sobtog ost walves toaqag 9% 
Ha, EF, AE OLE AH AIS 4 942%, of wand 50% MOH On ALT ta 
tilt yf Soweloath gum apivtion ot com mation ot tote te, 2e.eene 
r SES REY IRR BE Ag BR etree 


“Aout i” awk: snus » oamer $ twee. nee at avantbew, ; 
welitod to tive ting of tanhue'tah we bieng” of hnilt 9 fh phone he 


_ af ine. bdaa Si aon a soa henng. bhaw, Le UPN A mm, oat 
¥ baa to Rolnsons og ae orew , Si ial 















‘ta fiw att detebre bas ene out, ‘tat 


| oro eat of ime # gow “Etewo 4 A r mated the 
| bared taste hao rup0 ee fast 






; 4 pho dtc Seri, Sait 
‘ 
n 
ry Or n 
+ No to | 


han knee ose ‘ve aolanesnog aenn i ba , y mee, 
eves? voferedt snksumg ocd Ayaroait se, sobnw + 0 the ont 3a 






r nothing in the record which contradicts this, It does not avail 
4 ) say that this is contradicted by the allegations of George 
“O'Neill's acended cross-bill which was 41 amissed, 

4 | Plaintiff in error presents no substantial reason for 
ng ne decree and orders of the Cireuit court, and they are 


AFFIRMED, 


t and Jehnoton, J7., concur. 


ANN 


be ain 8 


Ves 


Pig a)! pa , 
i, tition ii 
” ms ion a 


Ba srlahi ea 
ed) AEE 


ee hi 


be st TEA | ROL 
i te Wht 


ah) 
A 


Hi wate atnate ohh mang 





i 
f 


45 + ‘1187 


GCHICAGS TITLE A&A TRUST COMPANY, } 
Appellee, 
re APPUAL FROM CIRCE? COMRT 
va. 


“WILWA 3, HYKES et a2. 
(Om Appeal of URS. VANATR BURTOH 
et 


ames Appeliante. a q 4. TA @ 6 o 6 


OF COOK SomNTY, 


BR, JUSTICE JOHNSTON MELIVERED HE OPTERON OF THR coDAT. 


4 This de = petition filed by the Chicago Title and 
‘Trust Company, trustee wider tae will of William J, Hynes, de- 
oneeea, to have the will construed. 


The will censiaies of 17 eleuees, There is noe aiepute 



















regar’ to the provisions in the firet ten clauses, The firet 
direets that the febte and runeral ‘expenses be paid. The 

» third, fourth, fifth, sixth, seventh, eighth and ninth 
Fovide Yor the payment of specific beaquents, ali ef wich have 

, ) i pala. The tenth consists of a bequest to the wife of the 

- There ie no diepute aa to this clause, but cortein 

in the clause is diseussed by counsel) in connection with 
th @lauses in controversy, ‘The actual controversy soneerns only 

in ; eleventh, twelfth, thirtemth, fourteenth and sixteenth clauses. 
| The pertinent parte ef the will are ae foellowe: 


| “Tenth: After the payment of the foregoing spectfie Lega 
ape devise snd bequeath all the reat and rasidue of my 
; "Fenn so’ and mixed, of every Kind ond nature, to 
® Hynes, for the period of her uotural life, for 
‘ el benefit éuring her Life. 
4 After the death of my enid wife, it iv my will 
ry ek an ae I now own at Ko. 29% Aldebaren Canal, 
Lo and the rents and profits therso?, shall 
ey my adopted daughter, Wilme J, lynee, ror 
nefit until whe is thirty (86) years of age, and 
the nals ve until that age then the enee shall veet in her 
or, and if ane shall 4i4, witheut issue, before attaining thet 
ne Pevatod “gpa above deni giated wn then beaowe a part 


ap fire age the death of my sald wife, it te my will thet 
’ (866,000.00) Vollare, or or from aaiA eetate shall 












‘pp ue eye) ath ~— a vere 
TERE FH ee 


560 " s Tk BS is te ‘ hea 
















odngnd te: ort wd ered Ba 
sank nt. “emeinne fo age, saat “ae oi ote boone ah 
ast Pleg we aseanaxe farm haem ation wnt dais 
ated bia Hoiade shh oavan ite le OPE Mis 
oat “ap hee Ne te Ae aesrpod gy) l teeae te te ” 
ade +o athe ont ae tapped # 29 age tvaon. 
ntateoe aud nig tn his oe ae otureo 8 on a | 
mer wo} t9nanns ak fon aoe bis pesavestd on : 








ik aithente gar me one % 
# “e saa tt 
hes * 
sci Serta me shed ne 





be set aside for wy adopted daughter, Wilma J, Hynes, to be held 
in Trust for her use ond benefit witil she te Thirty (30) yours 
‘oF age, and if she shall live watil that age, them to be paid 
over to her; and if ashe sell die before that age, aald dixty 
Thousand ($60,600.00) Deliors shall then become a vart of my 
‘yesiduary estate; and f hereby appoint the Roman Gathelie 
Bishop, residing at Low Angeles, Galifernin, Guardian and 
Trustee of the person and estate ef the asid Yilma J. ifynes, 

and will and direet that the aid Wilma 7, Hyner ahall reesive, 
after the death of my said wife, from audd Guardian and Trustee, 
the income from said Sixty Thousand ($60,000.00) Dellare, wmtil 
She attains the age ef Thirty (8) yeere, when the “pele ef eafa 
truet fund of Gixty Yhousand (166 000, oof Dollurs, shall he pata 
ever to her aa aforesaid, 

"In consideration for the asguoption of the sa14 trust and 
the performance of the said services as Guardion snd Trustee by 
the said Roman Cutholic Bishop rugiding in Lon Angeles, Cali- 
fornia, Ton Thousand ($20,000.06) Doliava shail bo eet aeide from 
my enid eatate upon the deat of my eaid wile, the ineome of which 
®we aheall go to the eaid Homan Catholic Bishan wotil the death of 

4 Wilma J. Hynes, if she should die belore ihe age of Thirty 
$0) years, or until the payment to hor of said Ginty Thousand 
$60,000.00) Dellare at the age of Thirty (860) years, if she 

. shall live te that age, and after the tereination of asid Guardians 
ship and Trusteeship, either by the death or by attainment of the 
age of Thirty i320) years of eald Wilma J, liynes, then the ews of 
Ten Thousand ($10,000.00) Doliure shell beeowe the property of 
Said Homan Catholic Bishop of Loe Angelen, California, and absoe 
lutely veet in him se hia evn. 
rteenth: I further will and bequeath that after the 
th of my said wife, Ten Thousand ($10,000.00) Dellers aall 
be set aide from my anid eetate, the income rom vhich ewe shail 
be paid to my adopted won, Harry Hynes, of Chieage, Uilineis, in 
bly er quarterly vaynentse, in such manner as sy Axeeuter shal 
best, @uring the period of bis naturel Life, 4 upen bie 
death salt gum of Ten Taousand ($20,000.00) Dellare shall beoome 
® part of my reeiduary eetate; e214 income Srow oaid sum ehall 
Ret be aneignable, in whole or im part, by seid orry Wyner. 

"“VYourteenth: After the death of my sald wife, it ie my will 
That the inceme from my said entate left for life to my sald wife, 
Pemaining after the provietona of Sections Twel sth snd Thirteenth 
ef this instrument are complied with and eatiefied, shall be date 
vided as follows: 

“i *1A" Gneesixth (1/6) of the residue of said inaome shall go 
to Katherine and laura Cottrell, children of my wife's deceaned 
Sister, kre, Kary Cottrell, ware and shure alike, during their 
life, 
if SB? Oneesixth (1/6) of the residue of said income shall go 
Mrs. Annie Webster, cf Los Angeles, Culifernia, my wife's 
Bi ster, during her natural life, 
*'¢* Oneesixth (1/6) of the residue of said inceme eneli 
» to wife's sister, Hre. Yennie burten of Chicago, Lllineis, 
a her natural life, and after her death to her husband, and 
her children, or the survivers or surviver of them, during 
ge Lives or life. 
«9D Oneesixth (1/6) of the residue of said income shall 
to my wife's sister, Mre, oer BR. Bvane of Les Angeles, 
» during her natural Life. ! 
i "hat "enesed ssn (2/6) of the residue of sald income shall go 
y niece, ire, Hinnie Harvey, of Norwioh, Connecticut, to be 
ld in Trust, however, by my Executor, hereinefter named, and 
Ancome shall be paid to her at the rate of Firty ($50.00) 











e/a ow 






















Any 
Oe 


“tied ef at ,aose! oh amki¥ ,tedcyueh Seteohs wa tot obiee 400 
< imtaaaey, AR Og )* sede Last wt one Lites PP ieowed baw eae teal tod deuxt a 
hun of oF mudd ,oyo fade Dita eeti Llode ace CE bem ae 
yeele Khas ,eye (ase win iad odh Siva ote “US tae - 
Ur te seq & wenger west Ehade wre dso (00.000, 008) baseneat 
otieteeD tomod sie tate ytored L bre qetadee ciekb haan 
hae aged bteyd gp ge eo ingek won fe. ager el. rote 
eng »G geek b ot to niet bom doo ‘if 19 soften 
ovlever theca wom .. aah blew at torte peers he 
aosare! bw oallian® bine anit ,e'liw ddee yen te -ddeod ond 
tbe es, pee Let (60,000,008) bnaavodt yenlt biae moet emount es 
bien te whete ad? norte ee ous 4G ; yet id? Te won ott outeha: cr 
bing of (Lerm .eee fiat (eo. 030, 088) droawed? GiRk® te anne “° 
Piametokse ae tes | 
bea geet? Shoe ¢ae to aoitquarew at? 16% ey doo 
4e eatniet Sun cHtbungs Ga BooteiBS Kies ord “Le enmtet® wd 
«Ried ,o*iegud aot af gulbleor qotatt of Londad Ame new | 
moet abiae. fen od iLade aerseiiog fed, LG ) hepowont aet pod 
te icte ‘ko ogo apie erie f lee ys te Meaeh end Bog rags hh 
‘to dteph ofd iter aerial oliodteas nameh bhes ed) of oy 
yet? 2e age ot eels? BIS BKyvede wile t2> rere a 
boaayged? ysis blaw to tod et fueaneg odd Lisa eo yw 
ede “th yormey (86) yor ial Yo ege oak Ja wel ied "dosed 
-mibtayi blas to caisaniuted sai2 anette bas pega Saad ad evel 1 Naa 
ot te Gaemiintes yo xo ctweh oct ed a ,ticeodiaus? baw | 
to nue od wend aso .& amli¥ Adee Lo ereey es yseiel te 
‘te ytwqerg wit vecmed Lieta wen) Lott iv a, S0) dower oat 
ooede how yo harcot b1a0 482. 1 git aed ‘to qedeld » Ppp dng heme h & 
samy wl wk ald ‘al? Year % 
att wet2 Bost? Sdaowped bas LLiw tedecn't 2 siemoede sey. 
Siar wind Loft (UFR COR, 0 } hana? re! L,Y piss de Ye . 
Siento oye se ddo worl savoat ott ,eradoe hae yt cont ebiae ona 
me ethoal le ,*gan is Be wert yxkat coe Redyeha Ye a7 how 
Slade tolvoon% yo on Younes deve a) , ad nemyae prnaryee | to % 
eit ao five gpwhlh Leweant 2 bd te Seiten oak oe. lth , 
esoned Liedte etc Sle (00,090,046) Beenwon? met te ae i * 
Lien mow & bao ioet'? eemeal Klaw {edatne Wiawhieed em tor ee 
288 4 yrtch bier yd , tng wh te afore at pbldanpiogn od 
Coker cea ak bs ya't bet We zae “ea te Kewae ple vette” seeat tot” 
et tho Bhoe ga of eke vet Sef otadom bine cet Wert emogas 
Asrmesehat day 22% fo? wx t Moeh Yo anole iverd ant tombe He 
oth ed Links be fielbtow tam veiw Ke temo Caom prmecstee 


























‘es itase amped Kine te ovblect edd ‘to (a\e} een tacuuae ware. 
berngoeh atotin qu Ya oeehitds Yi tertto) atend See erie 
teat gant such seHiLe wuacin bas atads »tiowtaay A Sil peek gets 


~~ Lhasa. pawn dd: bbe Leet tao: ORS ‘te (ec) iekausae 

ree ites ont ait Ku pekarabnses le aga wed by tetadelt ® Dyas 
aoe Ls 4 Leridac toe eet 

{Lady eumooat blee te oubtesw: eid to (ONL) sor lene 

sthoutlak yogen ta to gare a hoaeG dichal pee te 

fener ees smal we eh be wogte hae, ; vo Ki 


eas 
hase. penta tod bia: “7 ‘amaient: ear te (8 
: cnn feaan Bank te mee  ehaveso) ,e2a 24 
AQ REE, Leow, 

ee Khare. rooms biae: ‘te woddany aE Weel 
oF at {twolteoune? ,geiwsel Yeo ywertal 

ba Me hee «hos. to Pte howe, wediacat qa we 
NA 0G) ett’ "to ate oad 20 Hoe ad: 


Dellare per month during her natural Life. 

"In the event that said income exeecds anifé monthly slier- 
anee above provided, it is my will thet such aceumulations, at the 
death of eald Mra. Minnie “arvey, shall become a part of my residue 
ary estate. 

*'¥' Gneesixth (1/6) of the reaidue of seid income shall 
go to my niece, Ure, Addie Suith, during ner natural Life. 

"It is my “111 that distribution of the inoome to the 
parties provided for in thin Geetion Feurtemth shail be made 
quarterly if practicable, ewaept az etherwise stated. **# 

Sixteenth: I will and direet that after the death of ay 
wife, and of the legatees, whe are designated herein to receive 
the incone of my said estate after the death of my sald wife, 
@uring their natural lives reapeactively, abl of my estate, and all 
ef my residuary estate ahwll, a6 the wame ehali agerue by the 
death of any of the parties sentioned above, go te the Cathelie 
Bishop of Chicage, a corperation, ecle, as Trustes, te be paid 
over by him, share ami share alike, to the Saint Mary's Training 
Scheol at Feehanvilie, Lilineis, snd te the Gatholie Guurch Exw 
tension Seciety of the United States of Ameriea, a corporation, 
organized wider the lows of the State of Michigan, and ta the 
Visitation and Aid Bociety of Chicage, Illinois, or to the sure 
vivore or surviver or successors or auccessor of eaid inatitu- 
tione or inetitution.,* 


The Chaneelior found, and it fa not disputed by any 
of the parties, that the phrase “one-sixth (1/6) of the residue of 
Said income," used in the lettered paragraphe A, 2, S, BD, B ond ¥ 
of clause Yourteenth, ehoulé read “*one»cixth (1/6) of the income of 
said residue, * 

Wiliiem 7, Hynes died on Kay 7, 1944. After bis death 
the following legatecs unter the will died: Jennie KB. Hynes, Barry 
Hynes, Annie Yebster, Robert A. Burton and Georgie BP. Bvane, The 
Petition alleges “thet by reason of these facts, doubts and differ 
meee have arisen and exist between some of the beneficiaries ynder 
the Will, and between some of the beneficiaries and your orator, with 
Peference to the true and proper construction and interpretation, in- 
tent and meaning of the will.* 

4 The pertinent parte of the deoree of the Chancellor 
are ae follows: 
| LY "(m) That the fund of ten thousand dollars ($10,600.00) 
held by the trustees under the thirteenth clause of the will for 
| the benefit of Harry Hynes, should at once be paid over to the 
_ Gatholic Bishop of Chieago, as residuary legatee under the 
 ~‘Bixteenth clause of the will, tegether with all the income ace 


-«-« SumMulated thereon from Noveuber 1, 1921, the date of the death 
; ‘al Marry Hynes; 











f sVTLL fomedem weet genius done tag evs ctet 

er eitsaam biee whewaxe oaeodk han feud teow. ode oP” 
eat fe \nidaite ineurien Mane fedt Ohh bs wd. Pa pire Bh eae: 
ehhooe wt te teeg a emomed Lines o eA oy Bove i 


Linde omiink bine te webinars dak te ANE ‘dinte~end . ® i 
RIEL Lewkden wos anlows ,td bee a LbSA ek eee enela mayer 
ade of sonal wt? “bo met doktedakie 2 Pe yom aie 
‘haw od Lieve ddaestaset ain tema wise ak 98t ea ge 
tt pedals aebvredso we 2eegae. et biont Soeng 22 
we Ye waeok alt rete tare goOeLh Rowe law Tt rAvneedx 
gwinies of lnved biiaieoh $20 coe ,sonkeged auld 18 ben, 
 gbe Shee ae Ve Gee 60s toy etetee bean ee he emo, 
kin be Siatee ve te (fe ,¢levisosqnes sevds demtadt thes? ad 
ast vd eeisoe Licks wane oo? on , ited etedas / 
Obledie> or a dE shat preniagtinend wel rasig ald 
i wie Riobail & I re ae i 1m ae i 
pate! . é hosed taked ada af aah vege ee ae ee 
, i dotHda otLestad aet ae ae qetonsait vekidvnados’ #0 h 
ame ogre oe é Pa ba Ng detesh Mee hal weld Te yse sows» 
hime 4 te si0t8 alt Vo weed ni Tobaw seston 
oe or + i er yeatoh® to ydeto eR bhAvdag, ect | 
vitae isn to Squinoewe te hs seaman 2 tevivegs to etowds 
“edie: ibaa soem 

























AS» oh win eet. base o yeu i rere cout * souk 
wt nial 9 stneet: ibeth’ [fhe este webct x antenna 


oaw “setae bie ‘bam Hine. awte os pte i 








sso ‘wi! iy coe vas 0 ateg a ae 
; oe 


ey 


ar errr" 
af i are Te smate Sa me 
pie att ane Ls ype saalil 





ose i 


3 SNe 32d Di onan 
: en? a yoy! 


"(») In the event of the death of Wilma J. Site (formerly 
Vilma J. liynes) before reaching the age ov thixty yours, the fund 
of wixty thousand dollars (4606 S000 .00) provided under the twell'th 
Clause of gaid will, wil. then become payable st once to the 
Gathelie Bishop of Chicago ae rewiduary Legatee; 
"“(o) That the fund of ten thousand dellare (910,000.00) 

ven to the Roman Catholic Bishop residing in Lows Angeles, 
alifornia, under the twelfth clauee of the eald will, wihi be 
payable to him wren the teratmation of the truat which was 
ereated for the banefit of tue anid Pilea J. Hite (formerly 
Vilma J, Hynes) under the aald clause. 

"(4) That upon the death of Mere, Annie VYebeter, benefie 
elary under paregrays B,' one of the aadd ais Lettered para 
erarhe ef the ssid fourteenth clause, one-sixth of the pringi« 
pal of the fund wider the eaid fourteenth clause veeane payable 
to the Catholic Bishop of Chicago ae residuary legates; and 
siwllarly upen the death of Bre. deorgle BP, Svanes, beneficlary 
under paragragh '', another of the onid efx lettered paragrasghe 
of the said fourteenth clause; and se weom the death er deathe 
of the benefictary or benefleterios memed in any one or more of 
the other enid lettered paragraphs of the wald fourteenth elause; 

"(e) That inasmuch as, upen the deatns of the beneficia«~ 
ries named in any of the Lettered paragrachs of the fourteenth 
Glauee of the said will, aliquot parte are set off te the re- 
Giduery Legater from the principal ef the fund in the bende of 
the trustees, described in the fourteenth clause of the euhd wid 
as ‘my gaid entate Left for life te ey ssid «ife, remaining 
after the provisions ¢f Sections frelfteh and Tuirteentos ef thas 
instrument are complied with ond satiefied,' the share deseribed 
in each of the ala Lettered paragraphs of the waid clause as 
Yoneesixth (1/6) of the residue of seid income! (moaning thereby 

@evixth of the inaome of tae waid renidue't) beeame one-Titth 
of the income of the part of the said fund remaining alter the 
getting aeide of cneesixth of the aaid fund wpen the death of 
Mra, Annie VYebster, one-fourth of the income ef the part af the 
@aid fund remaining heft after the satiing agide cY a Iike pro«~ 
oe ghare of the gald fund upew the death of kre. Georgie 

« Svane; and so apon the death ox deuthe of the beneliciary or 
beneficiaries mused iu amy one or more of the other said Let« 
tered paragraphs of the said fourteeanth clause, * 


It is ebviows that ali ef the reoidue of the estate 
Witinately wili go to the Catholic Biehep of Chisago. the only 
Questions, broadly stated, are whether he ahould raseiva it in 
Parte at different times, depanding on certain contingencies; or 
Whether he should reosive it ae an entirety at one tiv, 
i “ote Cownsei for the defendants Katherine Cottrell, Leura 
Sottreit, and other defendants, contends that the proper gonstruee 
thon of the will te as foliowas 
te, 


2 (2) That *** the fund of Tan Thousand Doliare ($20,000) 
—~“held by the Trustee wider the thirteenth clause of the will for 


the benefit of Harry Hynes upon the death of the latter should 






VIVRE LIN (RE rs LO 
uN ris! 












‘sew aeeo's) SHAY ob awtay to, chao oad te some pag it” Cy 
beh “S Ons waits ote agi eed) 
a bea ce ee : : fob. . 
ont St goKe ts 9 Sage eaheen only t 
” [eres 3 DAWee Be | 
NG) win ited Raaaioss aed 
me bagel wok ab gal ish ene 3 
ad fktw .cfiw blak oF Yo yang 
me te Bul Be — e ‘te ag 
Barnere st} GR .G 


«ftpaeit stezade? tiie, da to fan 
atte hater iok ata hike wae “te wag * Che ty 
 whonive 662 Yo Mrakenwon ,enuato wubeie flew 
a Like yg po nh Kouede Moveteget bdww Rog sekiy & 
haw 3 ied, gadget HA OBOs oe it 
qumrined’ apn a 7 % otyren® m 
ig Metosrek xia Sivw one ‘te Upton 4 f 
adtanh e anh wht wogy os bee penne ty vs hood 
hy @tem Yo dae car wl bean a abred bob isaey oT as 
5 omens O nvertogs biagreeh aute “2a ge abet here ts 
ati T ened bar Do adtewh oe Beg, sree 
Aaened yo? 363 ~ ‘ba adden gated peretdek’ ‘ed? a : 
«94 gad of The tos wie attag sowphin ,iiie Slee ode 
te aluiad act af bat aft Yo faghonizg ers met Saleaed ee ‘ent 
Life’ b bas ead Le euvaio ddmewdwet sit at bod bepeeb oo duwad 
tombe ~tily how yw of til vot stot seaves hlae | 
hdd “ig eee etheY iat SST few? wxe ttoyt te. enoletverg | 
geditones gta ont * bet iaktea hw cg dee belie Pate Hg 
hed ime Sine ote To wignyemy beteteol x 
qetes? saiasom) ‘emoont tlae to aphinay ale 16 | 
ai ltoond ehcangs eat Craunhene Pine as Yo daowne 
sit eéta galntowst hawt Blee oft te Oeaq et? te ft 
‘40 d@eeh ocd seq bavt bine os? to ddeleonne Bo wpe € Be 
vd te fiee odd to emoonl edz Le Atisilenae ., toda Sak 
wetty OAL 8 To shise galitea ont %edFta Prod yak 
eieiess wed ‘Le Gore oes some bet bies ead te wtade ptai 
te Uteln Piued esi “ty walianh «a edhe ely ty ‘oir beter 
add fdam wale aay to #tax Xo 9a9 Yao o) hee 
* sovele dévdadiget blow ote’ *o@ 


Widnes ‘wile Yo won seee wid tent tude berede ee HERE 
bad ont Soyen Bi Yo qedekt wkfortded oilh at by KE ee 0 
gd a8 wvtwone HAvonts Wat SedpoiOw wa pending ¢thinerd endthh 
ay ;Helpadgnttince alaitien wy Ne Ta ee a : 
als eco de Yterhtow ap aa MM erkwwks ‘Siete err 

ative {trekisod waltellvaX ednabno'tey wae’ Yele fenced Se 
apiretunes tegexre olf fotkt shuasaon ateapnras ‘wate a A 
































a % ihe Se ene E riled 





have fallen into and become part of the truest fund ereated by 
the fourteenth elause of the will, or eheul4 be hel’ by the 
Bueouter as Trvuetee to be adminiatered by him in seoordance 
with the terms of the fourteenth elause of the will, 

*(2) That ** im the event of the death of Yilma J. “ite 
(formerly Wilma J, lynes) before reaching the age of thirty (30) 
years, the fund of Gixty Thousand Dellarea ($66,000) previdea 
under Section Twelfth of the will @hall fall inte ond beeome a 
part of the trust fund erested by the fourteenth clause of the 
said will, or that the said fund of Ginty Thousand Bollare 
($66,000) should be held by the exeeuter ae trustee te be 
administered by it under and in ageordance with the orovisions 
of Geetion Fourteenth of the wili. 

“(3) That ** at the death of ire, Annie ®ebeter, beneti- 
ciary under paragraph ‘B,' one of the wix Lettered naragraphe ef 
Seetion Fourteenth of the will, the ome+aixth portion of the 
principal of the fund, the income from whieh had been payable te 
Mre. Ammie Webeter during her Lifetime, should resain os pringle 
pal of the fund under Section Fourteenth and the income therefrom 
should be payable in accordance with the terme ant orevieiene of 
said Seetion Fourteenth, 

(4) Amd, aimilariy, that upon the death of urea, Georgie 
B, Evans, benefieotary under paragragh '3,' one of the six Let. 
tered paragrarhs under Section Pourtesnth, to« oneegizth vortiton 
of the principal of the fund shewl4 reweain oe principal ef the 
fund under eaid Seetion Fourteenth and the ineane therefrom 
should be payable under and in accordance with the tema and 
Provisions of said Seetion Fourtewnth. 

*(5) And #0, alec, woen the death or denthe of the benee 
ficiary or benoficiaries named in any one er more of the other 
Said Lettered paragravhe of Section Fourteenth until the death 
of the last surviver of the said beneficlarios named in Section 
Fourteenth, at which time the entire principal of the fund under 
Section Fourteenth sheuld basome payable to The Gathealie Mehep 
ef Chicago os residuary Legutee,* 


We do not agree with the methed of reasoning puraued by 
@0uneel in reaching his conclusions, We shalh not state ia detail 
@Al of the arguments of counsel, Ye shall endeavor werely to oute 
Dine the substance of nix contentions. 
e He contends that ainve the teatater, after providing 
for the bequest to hie wife in the Tenth clause, usem the phrase 
a part of my residuary eatate* in subsequent clouses, the use of 


that Phrase “ygresupposes and involves the i¢ea that there was or 








should be in existence o residuary estate under the texrma* of the 
win "before the death of either Wilma J, Hynes or larry Hynes;" 
7 ne } the use of the word “part” implies the exietence of “the 





* ef which a thing is te become so part;” that sudk « 













me ee nea 3g ma Pho gpectrlbeenag tgp Hide 1 
Bs: ore we. Tea ‘a es 
ikke wt Yo ome d 3 vas agg ee te 4 ee ee 
ere 4%, ankre Ye Beh AAS “th Dieree walt We wa Fe acca ah. kel 
(08) yore to lth mY paltoeey ‘grote i Fhe etreny.9 
Babiver (000,008) etek tet preg wae 
a at i) oan ta 2 oe at ‘Bed 
ay Je eaaits $ eheite Be oH 
Siok: Saanven? Wwe tw ry ey fe ORS tals “x 
“et ad AOtanTt on aS one xt pak ee Reson 4 OF 
ino te Reoky Aue at Ww pemebtoone Mk ban soba 1 YC aewede dete: 
at hie oat ho 3 te et medgiond 
yes redetes awa ere to lndonagh oat te ae 
| imnetag Semwtind 248 eat ie ene *,eP 
aid te agro Himineaane okt Side Sa 
see ca ae saiget ty saan 
% 
Ses amet wit se eee 
Ks 


ot one. ete “te ddewoh ‘the ‘doa ‘nas sytietl 
ge ae ar gy | “so e ng 
biohand On SNS B eiagek aottaal! ts raters 
"O88 To Sentnalag ae Winx, hivade, bial ocd a,x tating eit Ne 
eoinwnds eeaeds oe fae ase n dee 0, pans aay re 
pele wih ate at ke eonek: hh Dee Soho * of biee 
a ; Re aides bisa * » 
tee oat me 
. a ess 







































ee Aah lo ores Te 9a gall. 
tant edd fkece Rhavedengt mien | 
tebtnet wf hesaa webrede cheery Don <u 40 tor 
By Boot oa? Ue facdonivd wakitae w4e noite fw 
an i absoneen vat, oe me ciintn Bera ite Ed 
ar. 


. coe ne on at 
‘é hewmen aabnancdt %6 mitiile’ wile ata do eine a 8, ie ure. 9 
ihates ab stein dom fhade RM. eHohalltedan al sii 


atae of Gotes Teragtem Lime a 










cd Ha i sa % wt 
wy at ef pa fi ey )' ay & 
7 I . p | A\ 
hey ¥ , y eee 


reaiduary eatate is provided for and defined in clause Yonth in the 
Ranguace, “All the rest and residue of my property;” that this is 
the first definition of the vhrase "resi duary astata;” that the 
“next 4ifinition of a reeiduary eatete” Ls found in clause foure 
teenth in the following language, “alter the death of my wife it 
ie my will that the income from my estate Left fer Life te my anda 
wife remaining after ***; that from these promiaes it follewe that 
when Harry Bynes died hie bequest of 210,000 passed to the residue 
arty estate defined in clause fourtesnth, becaxe part of that re 
Siduary estate, and 414 not go fwmediately te the Gntholia Biehep; 
that if Wilma J, Hynes dies before the age of thirty years, ner 
Dequest of $60,000 will gase te the rewiduary eetate defined in 
Glause fourteenth, will become part of that reaiduary estate, ond 
Will not ge immediately to the Gatholio Bishop; that the residuary 
@state of clause fourteenth, which by the proviaione ef ehause 
Sixteenth, witimately is te go to the Catholic Bishop, will not go 
to the Gatholie Biehen until the death of a11 of the Legateos men- 
tioned in the lettered paragraphs A, B, C, 0, © ant F of clause 
fourteenth, 

In our opinion the arguments of cowmoel are not cone 
vineing, Assuming for the enke of argument thet counael ta preni se, 
Which presupposes that the phrase *residuary entate” wae expressly 
defined by the testator, in correct, and waiving the tautology that 
ase Consequence would result in the use of the two phrases, “all of 
my eutate® and “all of my residuary eutate” in the sixteenth clause, 
it becomes necessary to explain why the word “any* ia veed in clause 
sixteenth im connection with the phrase “any of the abeve mentioned.” 
T™e explanation of couneel in that it may be treated as tautology, 
oF else may be changed te the werd *ali” to wake the will “conform 
te the Manifest intent that all ef the residuary estate should pase 


i the Catholic Bishep at one and the same time." We (think 9 (».. 








aii ot diet sewn to uh baal'tvn baw a hebleorg ek ated om ‘yteuh 
ah ates ets “pewerts a te ¢y wuatwort fan ane eur £209 oyna 


he Hees 


nati tat “sade caanh bene® seit sis te rot ai'ten ten ‘ 


i ne “2 " 
tsott sain Re ih bang aa: Tobe eerubtees * to ott?) be yt 
te HE x : Ns 


th ke tan "to Xiweh ai wart eepawaonn S vuleotter 0 abattem 


AA Re Rei 
hhee we od nik aa? é ‘ted seeing me igi amoral ene tate ee 
2 Reet a A Re 
tend owas fet fe eee teow wavs won saute hee ante auekert pinot 0" 
nubs ket oid oF Reaaaa 89,088. e tanuped she Beth raved eae a 


an gut 1a arey. ooansd attewe dao pawn te ei banitae 


a sine we ay 


bere stinitud et of: eaanienend °4 tea hte how .etats 
ad een wetiat 7 te a mitt orate sath ge or a: : ne 





ae 















‘eamne to % fm “ 5? 48 a sinechaenes: enti sch a a 
Bis clos idk fs ast a a 3 £7 | ‘. 
waee ben ates Sete se Ke dhvchineiitdediined viliiiaiaial ‘i te 
eekeove @iisecwas fake faamesse “to galew edt eh pebamemAl”» nt 
uiearrqxe eew “ataten ctavhipet* aneede: act dade: aewerquRate a 
teas aotoivet say univtiaw yao ,dnotres eb» a todadand ols ve hen 
‘to Le. ape tlg owl wit Te see Ose at Peet Rkyow comune 
age ke dtaroduie ote ah “wdasen erordinon ye kw Lke* feu 
sapadeuah boo ai "yaa" Pres oad Yse mlalene 0c: “yrenamsect a 
Ream tiaom ered oy Se ym” sea InG os Othe moddoammen mt udtadnd 
‘Wielatie? we betner od yoo Ch sate ab Lenaron 2 mob 
mera Liiw.ade ere ei ae vaisloas inencaningi 
» amt at “as ae i) Dae ane 20 gust abetted 


? 


that the word “any” ic mot used tautolegically; we aleo think that 
4t would not be permissible to change it to "all," ae, in our view, 
4t ie not necessary te retort to the rule of construction eontended 
for by sounsel that the language of a vill may be changed in order 
to effectuate the clear intent ef the testator, 

Further in surpert of his contention that 14 was the 
intent of the testator that the residuary eetate ahould sot pase te 
the Catholic Bishop until ater the death of oll of the Legatees 
Bentioned in the lettered parasraphe 4, 2, ¢, D, 8 and PF of clause 
fourteenth, eomneet for the defendante Katherine OCettrell, Laura 
Cottreii, and other defendante, maintaine tat clause fourteenth 
does not state where the income shall go upen the death ef any of 
the legatees; that clause fourteenth dees not state where “the cor- 
pus of a one-sixth of the residuary estate shail go upon the death 
ef any® of the legatecs; that clause fourteenth “treate the residuary 
@etate os an entirety ont provides simply that the ‘ineome,' i. «. 
the whole ineome frou the whole residuary ¢entate, shall be divided 
M@Bong the beneficiaries named in section fourteanth,* In our opine 
fon, even though clause fourteenth may be silent in the respecte 
Bentiones, when the claurce im comsidered in connection with clause 
Sixteenth, the construction placed on clause fourteenth by the 
Maneciior is correct. 

vl Councel for Katherine Cottreli, Laure Cottreli and other 
a nts further contends that "uvson « proper conetruction of 
fourteenth ** the gift is alearly to a clase and not te 

4 mALviduad benefieiaries; and the the rule is that “where the gift 









te ‘to & class then upon the death of any member of the #lase, either 
de Sore oF after the death of the testator, his beiefictal interest 
passe equally te the survivors of the class,* 

We clearly are of the opinion that the testater 4id net 
that the legatees under clause fourteenth should take ae a 





basis wens ae Sas ee itidackpokosuns haan som ae Pye Ate oats oa 
sey tow nce ca * «ffe” of * agua! ot seeing ad se bn eS 








| Hotesiet ot to sumont soto on saat adit “ r 





uta al + fens wohsansae att Yo arene ut utenet _ cee Sg i 
at oneg aoe biunen ates ye ead hae ous tout? roteanys out 4 i” 
nowiapes ott te hte Yo taod vide wate Ehtow one ot Loridet 
awa be to ‘ es a ot io ®t & ecionr gate bonedzex sat cade 


mawat , skoxtga? ea renin stushastos sill 10 tramren _aittaen f 


Mbesorers ein! 9 ootetuten stunbonted seat Ps eae vase 


2 i aa 


te we i sttned eae hia en Lucie enooat ould onesie 


%; ae BAat. a we “ 
‘ 


ea one” wrest miata ten eon ddcwat-weor sevnte aad? 
sited, eae oun . Sasi atuiaa thie wt te 
ereeb ioe wii) ‘agaota” aooo cde sbua.to ‘dadt yaoedaged 
Ok ¥ ywatoa a € “eile faite eiqute sobhvoty, bam rents ted 
sehivil. au’ rie@e’ aiaden’ Cesattiin’ glaiee oat! alex Gheedh Miame ae 
ante ‘tee ok “tems iawet onleen * iaial canard 6 
agpengex cal? ab faa cke ad veer rnb | 
Serto div aghiossane at herebhemot a2 cavete eft ance , bwiiental 
Cent ed Miner ee siasiaalh “te desionanon iapatragianien eae teed - 
aed Ma eae . wma , ktasoewy abner oe mageesy omar ang 
Be v4 
mt tee hae setio a es ema Ot ekg eRe xe semen a 
Pot yoacte one awe gusty ah CO a ey 
SC eC ong 
teerstad: dato dienod whi .metaand ont Ye stoma: ed 10 8 et 
ony bmotatnos eit reat minim ot 10, oe mucus’ 
mae gant bdwaia 


Bt aera 





































clase, A gift to a clase has generally been defines ae a gift of 
an sgeregate sum te a bedy of perasna uncertain im nueber at the 
time of the gift, to be ascertained at a future time, who are 

all to take in aqual or some other deflaite portions, the share 


ef each being dependent for ite wsount upon the ultimate nweber, 
40 Cyclopedia of tue and Procedure, »p. 1473; She Volunteers of 
Amorics vy. Pierce, 267 Thi, 404, 424. Tr the case of the Volume 
deers of smoricn v, Pierce, supra, the court quoted with approval 
the follewing language (pp. 414, 435): 

“Whether a deviee or bequest is to « elase or to the ine 
@ividuale constituting the classe distributively, depends upon 
the language of the will, If from aweh Language 1% appara 
that the number of persons whe are to take and the amount of 
their shares are uncertain until the devise or bequest takes 
effect, the beneficiaries will generally be held te take ae a 
Glase; but where at the time of making the gift the number of 
beneficiaries ie certain, ané the share each Le te reeelve is 
alee certain and in neo wey denentent for (te aseunt uoon the 
Rusber whe svnall ecurvive, it ie net a <ift to « clase but te 
the individuale diatributively; and thie is generally held te 
be the case where the beneficiaries are nawed and thelr shares 
are certain,” 

We think thet in the gases at tar the legacies previddd 
for in clause fourteenth were not intended ae gifte to a clase but 
te individuals, The nuaber of beneticiaries io certain, and the 
@hare each is to reeeive alec is certain and in ne wey dependent 
Wpen the number of beneficierias whe shall survive, Purthercere, 
Since the provisions in the letsered peragraph “0” of clause 
Tourteenth relating to the gift to Bre, Fannde Burton and the pro- 
“vistons Telating te the gift to urs. liinnde Harvey in the lettered 
Paragraph “E" are different from each other and also from the 
gifts te the legatees in the other lettered paragraphs, it clearly 
appears that all of the gifts provided for in clause fourteenth were 
Amtended as gifts to individuals and nes te a clase, 

i 


Ceuneel for the trustea, the Chienge Title & Trust 





» Seree with the Chanseller's eonetruction af the will in 





i 


Nt” a Bd Dea 
Xe. #thy o we bewtteh aeed Yliousema, ood per a fa. A anne 
oct ts ttn a) aieduooay. mmonieg Yo ghed 4 at mus, Ofapetany 
ota oe .nuld omudat & 2a bomieraqene od, of atta ond 9a 
eres on? ,cantttem athalton ‘edtg eae Xo, Soaps al. het, ot fh 
stedewt eteciein att apa soem #Fl 10% daobamgan, stra toa hy 
HA, LEVEL 0G gOThOM OR! bah Wak Te Mh dO 
manta’ ond Me oeen, et ah ohtb ghO> Mikkel 14 a¥ 
ha verte hd re hetanr Piste 829 






















sah ord. oF Menuet. a oi at deme ‘te eotven a. — 
ati wilt reh a ekoritedinte ts eeate vet we tiasos bivih 
Ghote A epeegnetl Home aavt Ui .ddiw ont, 3e, egawenrd, ot 
Mas Manod oa enlie: in them oe sober a = ak 
fey sep ttn. eda SR 
& we aaes of bled of YLieiemeg Likw gabualo Piened ,fe 
te visu ott Pilg a’ pelvic te weke edt de, qemeeier 
2 eriven? af ak deow esnde ads en satinsere he gs 
tenant om ah Sau 


wei? stuart Grivars WSS oD Bow way om y 
of taf aepda e af Filey 4 tom wh Pi Paine ‘atte, oof % 


ad fied vofocesey af ote? pee ” Peekbeels w Lewd dete 
| uae feat pee Bante ws > itn s Pinan hia on: ee 
HOS Pre org: acloogn f wad We te ven oe AR Yass anne’ awe “we tv re 
sud wenlo a 69 aethy ve Robin dat ton otew ai eset sats eo 
oat ken thogreae at aa teu fo Pra npid ‘te evden att “ad fw 
Pavbusoes yaw om a2 bar Mtetaes HY oaks evitnes® of a ea 
carotene woe fetes iieda ote aotuete tsa’ tp soda ade gerd 
! savas te ial eshte Dour dod | ute al Drs eae ees 





haaeiree £ walt ‘pt eevee @ bias oth oo Vly “it ot wien "tae 
3 AN ee vat Seren’ ts 
ont mot onde Naw tosis sinew mont snexsTAdh » * % 
"aol gro a (am: 84 


me stv asd ta tol gousteuos e*ectpomnit « ont ake one 


all respects excent as to the Chancelior's construction of clause 
fourteenth in connection with clause sixteonth, Counsel for the 
trustee, the Chicsage Title & Trust Company, snd ceunsel for the 
defendants Katherine Cottrell, Laura Cettrell and other defendants, 
agree in their construction of clause fourteenth, but differ as te 
their censtruction of the other parts of the will in sontroversy. 
And while they sgree as to their conclusions regarding the eon 
struction of clause fourteenth, they disagree in renpeet of the 
Peasone for their conclusions. 

Aeoording to the oqnatruction ef counsel for the 
trustee, the Chicago Title & Trust Company, clanee sixteenth, if 
@xpressed explicitiy, would read ae follewe: “I wili and 4ireot 
that after the death of Katherine ond Laura Cettrel., Hre, Faunie 
Burton, and 211 the other annyitants, sli of sy estate (amd all of 
my Tesiduary estate, as the sane ehall soorue by the death ef Cilme 
or Harry Hynee or Mra. Harvey) shadd go to the Gatholie Bishop ef 
Chicago *** as trustee **", On this theory ceunsel contend that 
the phrase “one-sixth used in each of the lottered paragraphe A, 
B,C, BD, # ond ¥ of clause fourteenth, would be equivalent to the 
Phrase “an equal share;"sand that in order to eonfern to such cen« 
struction the shrase “one-sixth” in each of the lettered varagraghe 
Of clause fourteenth shevld read, “one share, being omeerixth, * 

We admit that the construction of clause fourteen th 
im connection with clause sixteenth presents ume difficultion, 
The question ie not free fron doubt. it is true, ae cewmoel fer 
the trustee, the Chicago Title & Trust Company, muintain, that it 
is clear that the testator never intended that the Catholic Bishop 
of Chicago, the ultimate legatee, sheuld receive any of the iavome 
fron the estate; snd that the testator did not autherize either by 
"positive direction” nor by “the slightest affirmative permission,” 
trustee “to separate one-sixth of the principal of the estate 








q 


pawnde te Mak dag pacion a! wed Looms ons ot Be Jepoxe etooraer ths 
OR aa bid id 
ead 6 tk ance? . tape txte ene fo. athe mobtooanes at - 


HOY igs 


pn 
me Ae 





wait cot oe ans ‘baw eYamquted fount a orate ones 100 as pe 9 
eadaahie toh, awiieg bas Kiotta9o stad sttoxtg0d entiorited serbant 


oF 4a 19'r as tut «Ahnu tere’ oeua.ts % aot sountence uted at vorm 


kos Abpea a 


ete versie at AEs. este ‘te ering ostte ¢ ont to nol gowesaaee “them 


BY W Th, 


_sat08 sits gatbrages tao tavioaee. hosts of ry sortye yee okiew bes 
| Wow nde , i wit ae 
aad ae Jrennet ut eorganth oat Maanostae? beonke te a oly 

| ne Barone ube, a ea 
‘saaotay tongs uiedd at nome: 
ih RR em ALES 
, eae ser fonaugo te noktoirz9na90 ost ot ‘aalbroass es | 


ot WBnnotets niin to eee gael taste a scat onto 69 0 . sms 
ay ie 









dooath fae ate ae Aawas cor an haet eee vaio here: henna 
Sah) AR iat el tat 
sina strut Lo 19900) stead. ban: onteontna re sidosh aes, 





Lo fie itn } edetan ee 6: he setae ivans anata hie sai 

auti® %6 avb oar yo urtone itane on “set an satense umubiner 
‘te qecale ‘ph keate® eck: as on. neha’ {qovene “2M toy mes 

Bs oval Ane dave Sonne eo Wroens m bets a PW coterie ia one ae 


“ asinexneton bewerzet, ost te iaae at Som *Kixinws no" rh y 

; % RE A aR es) ae 
edt ot tan Lay Laeps ad b.Luow siseoneyot nun to 0 ‘ baa sf ey 

pH T's 
~sne soars od xo'iaee of robes wt Sas Pana" exes a, ss hg 

ay Be Beam wee, 

auioarqate henssoes ay be tone ae * dixinws.a0" Fasxdkiad iene 

i ee gt sehen 

eanets 


* .iltxdnwoae pated sora oso” beer biwosie ‘Stanesewet 
hae #3 yy he woe ie 

_ deamon oun so te aodtourtane oats testd ‘shah OW 
wna) Se A ‘Becoheee 

snobs dot ALS eainy etavania sguenante sevote id kw aolieegnms & 
Alta Loe make be 

to) seangee oa cared ak at . dso wont sont fon me moksaonp 


ah teats «ila aka. ean aso taux? ‘ ofsat eae bo pom gant yas 
‘iF et MORTAR wee ee my 
ode ta a2 Lonend ents uel hehaoaat avon Kotataes emt, fant ‘ 
hu | eae “hat ee and ay, Ph tse i 
“ iaanoanh ‘eae te ws ovieaes bLuests asatene £ steele a8 


ae Laney RR ae inet tig o rg 
ye wont ho eel sonisue Saas bib wodasons oat aan how podate ate 
ee ea SiN ay ae 













* tan tareg evident Be x Sundae sap bool pany 





Le 


from the tetal and turn it over to the ultisate Legateae." Be do 
wot think, however, that these contentions render the Unaneelior's 
gonstruction of the clauses im question uwniwarrentabie, Yhe deerne 
ef the Chancellor does not direct that any of the inmoome of the 
estate should be paid to the Catholic Bishop of Chicags, the uwitie 
mate legatee, but doos Find that wren the death of Bre. Annie 
Webster, one of the legateas, one«sixth of the pringipel fund hee 
@ame payable to the Catholic Biahes of Chieago; that simileriy, 
upon the death of Kre. Georgie B. Twang, another legatee under 
Clause fourteenth, saa of the principal fund became payable 
te the Catholic Bishops tnat a similar genetruction should apply 
wpon the deaths of the other Llegatees under clause fourteenth, 
Althoug) there ie no #xplieit autherity/for cai’ sonehveatien, ea 
think that thie construction carries out the intent ef the testater, 
| in regard to the contention of soumaa) fer the trustes , 
‘the chieage Title & Trust Company, that the phrase “one-sixth of 
the income” used in the lettered paragraphs of clouse fourteenth, 
“should be changed te read, “One share, being oneesixth,” wa are 
of the opinion that it is not meceasary oo to change the reading 
of the phreee te effectuate the intention ef the testater. 

4 We are of the opinion that the construction of the 
wilh by the Gianecelier is correct. (% ie the rule that while the 
“Wbject ef the construction of a will is to ascertain the inten- 
‘thon of the testator, the intention must be one that is expressed 
‘t. the wilh and must be determined from the language »ee4 in the 
wi, Redisgh vy. Eoore, 287 Til, G18, 622, It is walno the rule 
tn SB Will cannot be reformed to conform to an intention not 

im the will, Hedineh vy. Moore, supra, (p. 623.) In 
@ase at bar we think the intention of the testater may be 

e4 without changing any of the language of the will, We 








that 4% clearly appears from the will that the testater 































Oe ee ee ee : 

a talisdow dd ad totes gagdiuasuan oan ae fast stovewed jtanay r 
on toak est ,aidwiantiemu “eitoene a2 ‘wile fo ane ‘to no.kt wend 
ge Vd paras? wld be oul taut teeke som meet ‘settoonsdd 6 
Skate wis yopne Lau “e qenetd witediad wih oF Bind ad ewan e 
 @inadk weet to daveb o6@ aeqe 2aee Balt eodh ‘tod ssonuger 

«od Ket inghoabig et? Yo déikawens janbdegee ret ‘ona . i 
peice thele fet pouae te Yo qedeld oltedded wi oe ate 
tohtw sedcied tortious ,anwwt 1 obeeend jeem Yar nas at 

# kdearenits emote thet! twekonkes off to Cheb adae | sition oe ) 
vin Hiebae cortornew ade 4a trate a sect fe ofaht' oh rested ¥ 
a ie eee se heir De wef ty" Ce 

oe » seinen AG To Preeti aebtgne oW'ak weit 
sredet ees it Te dearth bee Feo ee dete shld dees aha tine 
aera ‘gi RR PRenwel MO Reis iwewee auth or — pi “ria tape 4 


“ete lal sa Rated , ona eb" hae’ 40: seasaiaree 
segue iat reser of Ho yRAtwADee tox cee dust awe ' 
oo "ata tiNd vite Ae ReRoesat oKe SeMnDENT ED OP Oa 
ee ee ae wen ae wsehluede 
edit <r ee eC oor a RE 











ld Neale we wits te rrermienae 
etl RE add 10 bphingalet Sele eit git 
* aiitionl oi ite btw oat “bee ene 





i 


intended that the legncies given to “ilma 7, Nynen, Harry dywee 
_en4 Ere. Minnie Harvey, should upen their deathe beaome payable 
immediately to the Catholic Biehor of Coteagm. tx our view 44 ie 
evident that the teetator intended that what he tersued the “reo 
siduary entate”® should be « difYerent, distinet estate from the 
@orous oF principal estate, Ce uses the phrase “reslduary ene 
tate" five timer in the will. Im clause sixteenth it follewe the 
phrase, "all of my eatate;* and if the testater did mot intend it 
te have a different meaning from the phrase, "oli ef ay ewtate,* 
it would have to he treated am tautology or ourrluaage. The 
Tule, a6 stated by Jarman, te tiat “where a teatater unen on 
edditions] word or phrase, he muet be presumed to have am saddle 
tional meaning.” Jarman on Wille, vol. Ei, po. @921 (6th Snglish 
Ba. 1910). 

Tn our opinten the use of the werd "part" tn connec 
tion with the phrase "ehall become a part of my resi duary atute® 
does not imply that the teotater in sn previous oreviston of the 
Will had oreated a reeiftuary estate te waieh the part showld be 
added. Ye think that in ueing the phrase “shell become a part of 
By Teaiduary estate” the testator werely had in mind « possible 


‘estate, or, as counsel for the trustes, the Chiesage Tithe & Trapt 
‘Company, aptly term it, “a casual residue” whieh might eome into 
existence, The use of the word "become" aupperts the view that 
‘the testator had in mind, not a residuery estate that he hed 
Previously defined, but a possible future estate or possibig 
future “eatual residue, * 


ey 
} i! 







Clause fourteenth, ae ve have @aid, presents » wore 
: At question of construction, Counsel for the trustee, 
c Chicago Title & Truet Company, have argued the question with a 
ont deal of force, We fo not deny that clause fourteenth is 


Feneonably of the eonetruction contented for by 

















4 
- 


ry 2 pry ee a 7 staanaee 8 odeas obtonseo dog pos 


Re es a 


wort? nae ace sent tage al shan eat notatend odd todd ‘4 
tame oe ks a 


eit aor ateoes tent ban te ee a, od ay Ras xe 


‘8 hontad ¢ tan: pth sofaiecs mols ™ im yataoen wie 
* dane " bid itn paerta wit ao wine a sngxott ort tb @ 


J iv May Bee cae veh 





Kon ee 


pester ae se i. ty. ateat ae giles “a 


Cie ot I 


Soak he oe a a a alg if 


apenas ch “eteq” raw nd Ye ong - ate solnige- havi ” oe 


neteden etoghiaen ue to dtag » eaoned Kimte® santa att : Fin 


ant Ya Wate Leong, anol vary # ed ‘sotargod walt nitt Ley ee 
Sy y Reale AOR 
ae bes icluaatel ORRH wrt ‘a ie ay atedoe ytouh Inox 4 Detmere best £4 
Bt RY Ra Mia akg 
te PeAg nunoed Abn" Renee. id goles baat fant Mabe ol we 
: i Ra NE an i : 
anog «. mw ae bod Lows sotegant nd * ) ot 
shttavng a boku at by x “penese, yaaa bora 
deus: fe OGG2S ogme ben eabt onto out vat foomoe me «tO 408 





aren 


Sur's, shia 
ey? 
Pi 


ota # nyneeene en ovat one a arent 












a 
4 PE 


i2 


counsel, Ye think, however, that the conetrugtion adepted by the 
Chancellor is the one that more probably expresses the actual 
intent of the testster, In our view, the phrase "as the eame 
shall accrue,” uced in clause sixteenth, does not qualify only 
the phrase “residuery estate," as counsel fer the trustee, the 
Chicage Title & Trust Company, contend, but qualifies that phrase 
an4 sleo the phrase "all of my setate.* Be think that the word 
*"any® as used in the phrase “any of the parties mentioned sbeve,* 
dees not mean “2l1"* of tie parties; and we aleo think that the 
phrase “any of the parties mentioned” ie not intended te ret'er 
only to ¥lima J, fiynes, Harry Hynes and kre. Winnie Harvey, ae 
@Gounsel for the trustee, the Chicago Title 4 Truet Company, cane 
tend, but refers to 211 of the Legatess meniioned in the entire 
wild. 

Yor the reasons stated the decreas af the Unanceller 
is affirmed. 

APPTREED, 


MeGurely, *. J., and Katchett, J., concur. 














in| 3 4 Ce RS Re vant Lae a a 


hate a 


ons we botaohe sm teowise ioe one sate srveves sen 7 aN 





vam os io oanmig oes woke 9 - " ytotataat (rr uw pitt w 

















ela 9 XihLoup #00 ened ,sitanodete onua te at homw ",oxreoon , 
tt yendeate ont xt frases se A wdatoe mn cue 


aut aut aude ona | ow bine caeaohets 1° ne 


iy Bas 


we its kd beubbe com vantaiad od te ie of wto'tos a" 


Ba Wi is 
eee Phe i is ty ey he 


rosivosd aa ‘tes vereoh out bagnte smipna9, ode toh wit aig a J 


Sie ae aN RE ie Ree ie is hoy) 


¥ 


4 ek 
| aie 3 
“tira, me ftesteson ah ol sant 
i 
z % \ Ae 
eine) quae: ay aa ie we 
stl | Reheat Me baa aaa 
wis Aba diate a8 ihe iy a aio | 
iat Heat: davnaco 

wip “BR, ae oe amon once i ‘ ie 
i Ly viene ore none) ‘iH pon oanen ea: 


RRR SEMI op Stott 
Ma RAM Na i iN Fl Ng i tam _ <ameag us amt 


1A Es ECR oS A ab aie) Ova Sy dll ull fey oe ‘ghte af anne 


97 = 31725 


— 


LUKA KLATZ, 
Defendant in Srror, 
BRROR TO SUPERIOR court 
v6. 
Oo? COOK coumTy, 
JOSEPH PIETER, 
Plaintiff in &Srror,. 


Scale 


9AAT.A. 636 


. TUSTICE JONNSTON DELIVERED THE OPINIOK oF THE coun, 


Thie fe an action brought by Lens Elats, the plaine 
‘tier, te recever damages from Joseph Preffor, the defendant, rer 
‘Anjuries sustained as the result of having been attacked and 
“bitten by a deg owned/and kept on the premiver of the defend 
=. 
BS The case was tried before the court and « jury. ‘The 
tury Townd the defendant guilty and assessed the plaintiff's 
at the ews of $4200, From the Judgment on the verdict 













@ defendent has prosecuted the present appeal, 

on the metorial ioaves of facet the evidence ia eon- 

: ing. Brisfly stated the widisputed evidence is as folle«s: 

: The plaintiff and the defentant had cottages shont tee 

away from each ether at 2 sumuer rasort in the atate of Miehhe 

Defenaant"s aottage was situated on a let shout lOO feet square. 

| about & feet wide extenio4 across the entire front of 

fo erendant eottage. The presigenr of the defendant were en- 

oy & woven wire fence about 4 feet high, ond there was 

i wire stretched above the four feet, sight inches abeve 

‘ Pp ef the fenee." There wee an iron gate immediately in 

nt © 14 house of @losely woven wire, and there wae a double 
gate, The distance from the gate te the verauda was 


14 santa id fon GOL dooda tol © we Podantia ear enahieo 








neaeele a ay sw Pda. ay TR GRMN ORME er aR tl RAAB. = 8 

A aaah ei Le eae” He oe ey .8 Cmte i 
at ee 
PES ACTH CR MAMME fio fo ‘ ig, 


“8 3 a Ai 7 i bg Let ep ea ed ar et Ah fh, pm 


Rea” eh ib eit Me Pye wisn a Wi na 


ROTC BRL XO MORITA CNR REVS Lay sera SORE He 





Roig Ast Ve aa bay 
ontetg es edu th ams we youd nal tou a at ala” i 
‘ * Pat a et 
o' “ tanbuiw et sti sR tT ‘dqna et moet ‘eopanas ovevot of , ‘TER 
eM S| yi ah va vii Wh 
bas deivasoe aaed aatvad ‘te true ona en ‘itd in 


e od erates. og 
ahaetad ang Xe tee kmenq’ ‘way ‘a8 ‘tqod baa or a 





















‘oat nonily & bee foe out waobed: pabat oa ‘sent ‘oat 
blbabgeripwsncet- ond pentaden hae YSLing Sneha ted oh baat ch 

totbvev oat PN “sovmogbart ont mon% —OU8RE te’ erin” one tn 903 i 
Sooinn taonete salt batuoonore wart sy san 

aioe @L saeebkeo orl ‘tout ‘te ‘sailed ‘kabredan: otd Pein 

‘akestut an et onmedtee betwee thaw osit hedinta nisi , 

owt teode asegadion bast Pawhine ted aed Bein Vr Mate ty ont ih 
etek te ated ocr wt svowet Romar 2 fa cndtte saute cont ye 


te deen? exléow oat neerton hoboo dae ob tw foot 6 trots hen te 
~ wtew tanbno'teh out “to anata ng oat amet t Oo at f son ea | 
saw ered? bay ayia see's 8 syeoda voant xiv sive 4 xe » 
erodes eodonk dqde tend eek ocd ownda hesoterie 9 | 

ai ykotokboout efey work am acw event *, soos . o, 
eftieb 2 aww eros tio corte anyon einem Yo oe pig X 
ar ahawtoy o3 at otep oils nowt sounged® ot oten 


about 44 to 5 feet, There wae a cement walk from the veranda to 

the gate, The veranda ras entirely saereened in and there wae a 
sereen 4oor at the ateps leoding off of the weranda, and alee a 
gereen door leading frem the veranda imte the Living reom ef the 
eottace. Both of the doors were kept cloee4 by springs, and the 
ses @oor also had a clasp to keaop it shut. Immediately back 

ef the living room wae the Hitchen and juat off of the kitehen 

Was a tadrcom, The defendant kept two bulideg@s on ihe premises, 

a female and her een, The Semale was en old deg whieh the dee 
fendant had kept for a long time. The gon was born de 1990, The 
dogs were kept for the protection ef the defendant's wife, whe 

Was slone a great teal of the time in the cottage. On June 22, 

1923, abeut mine o'clock in the mombing, the plaintiff went to the 
@ottace of the defendant carrying a bowl of egae whieh she intended 
te give to the defendant, and the younger dag attuneked and bit 

the plaintiff. The plaintiff hat been to the cottage of the defend- 
ant before and had met the defendant's wife, he had shown her around 
the house, 
ns The principal fucte in 4isoute sre (1) whether the plaine 
tart Knew that the dog that bit her was kept on the wr and sem of the 











ifendant; (2) “nether the plaintiff was attoeked and bitten by the 
4 Just outside the gate of the premises ox at the entrance of the 
leading from the veranda te the living room (3) whether the de- 
mi knew that the dog had a vielovs disposition; (4) whether the 
4 juries of the plaintiff are as serious ag alleged by the plaintiff, 
i On the queetion whether the plaintiff knew that the 

8 bit her was kept on the premiees of the defendant, the plaine 

ir testified that she know that the defondant had two dogs, but 

nt the saw only one dog, "a quiet, gentle dog," in the defend- 

te cottage at the time that ate was shown around the house by 











o¢ abaatey ead movi aker tance » enw oxen? toot # of b sired 
a aww evedt bow ni homens yhorkiae wae abomser oath ote C 
a onie hae shanties aft te tte sat hens Supte 9d? te, 20 pa 190% 
eds to wsod guieks ox? atnk ehanxey ent wot? goibeot noob fn 2 c 
ent tae ,ayahrer Yd benoty tqed ety sieoh sat To Atom outst 
nad ekeraibormt dune $2 qook a quote’ a bill oath 2008 0m 
eter it edt to Te Maih baw andnttet one ase moon aatyit ontt q 
~wontnetg oc! xe syohiind owt doar henge ont .aoethad * i 
ae ort 8s Raw neh Sie an saw olen? ett lio’ lb Bik ry va ot 
REE nied env ape sat sil cs Vid $ 9H: 


5) 

























RE. unt ~~ etn sate at wn + eet 1. tan, tgona. a. 98, 7 
| galt of ann MANake tg 9st qyatieon ule ut LWOso!e, ents tugda gt 
bebuegnt ole doiiw aggo to wad # yaborage taabaeteb ont te as ; 
thd hep Seayedta gon sepewoy wy bas stanboo teh, exe head ovs 7 
<bavten o8 Yo spateon Odo of anod hos dtatete oat .Wtkinteta 
bavese ao awouin tal oe QO Rim at tenboa tes at tom dad baw otoled.# 
iy see aueieh IMA ha teapot il 

| atteke ont wostharte. n) ¢ one ee : wine, ten teqjege 

| ald te Sandan we mid go Age enw aed etd, fads aoe ou, teu weet 2 
ant yf mottid bee tolao tes aew, Tusatesa aca acid A) can co 
at to comerane pute Je 20 antiowna oft Ye, sean ae wee m4 
“SD pad sacttedy (8) moet advil amt 02 eraegey, aid PPR EES 
ad? xerdetw (0) igelisaouhh agoteiv @ bod wed mde secs ae i 
itaiole wit yd bepetin on syetsek. ae whe Vikgate Le oud te 
Onl) ahd Wak Thhaadady wd scanaidestanaiatel wt 
~atalg old .fuabaeteh of to seaton te, oat, sy, Aged gam and 4 
dud .ey0b get baa Sambo tab wae dans wea on tath mm . | 

“hasten odd ak "gob octaen atedug 4% 429% Ss chie ta 
ME enna ont bearen vod, sam asin, tad em tort | 





Raed ih 








the defendant's wife; that she had naver seen the dog that bit 
her before the day that he bit her. The defondant testified that 
at the time thet ane showed the plaintiff around the house the 
Plaintiff saw both dogs. 

On the question as te where the plaintiff was when th 
fog attacked and bit her, the plaintiff testified that she was out- 
side of the gate; that she had not opened the gate; that rhen she 
had reached the gate the defendant's wife eas not on the veranda, 
and that she, the plaintifY, *hollered for her:" that she “hellered* 
Sgain; thot the defendant's wife 4id not hear her, but that the dog 
aid and ome out by the sereen fsor; that there “wee one jump on 
the door, on the fence, on my neek,* 

The defendant's wife teatified that on the morning in 
question she was serubting the rear bedroom next te the kitehen; 
that the young 4og was in the house with her, lying on the kitehen 
leer between the living reem and the bedroom; that she “hod just 
been playing with the young dog with the wet «op rag; that she 
414 not knew that the plaintiff?’ wes on the premises wntil she 
heard the plaintiss open the door te the veranda and then open the 
Sereen door leading to the living room; that she thought at fi ret 
that it was her husband, but that just ot that soment the plain- 
tiff screamed and dropped the bowl of sage which she was sorrying 
onte the Moeor of the living reom, where they broke and slashed 
‘Sgainst come of the furniture and the wall of the reom; that she 
‘Saw the Plainti?r baek out of the reom across the versnda and ente 
the veranda atepe, where whe fell; that the dog hed héld of the 
Plaintire'ts arm and the plaintiff wee kiexing the ¢og; that ehe, 


the witnens, was Just recovering from a vervour breakdown, and 








fainted for a moment; that she quickly recovered, seized the dog 
_ Mm4 took him arownd to the back of the house; tuat shertiy after 











#2 Bers Boh boo coke cowen Bot axe sont ywithw e+ ah 


deste ‘Hib Pe SP rae hie’ ites ‘ont hag “ Ligh — mle eee: 





pen 





aku ‘ ) aed ag den Maw Wtlw er yaabastiok rt ‘ide oil 
AEN bea 


*henettol” wae Vaidd “Yund YoY bocested” vidtaidig 0G voit sous 
gett said diaatt fie. ted tet dom bis wthe a trubawtos con 
ite eevee “git daw ‘west has ao neetos ‘il’ ‘ed te 
ae © skip ts we ‘ne peri ie a 
at ‘gedovem wit no fend haeTee sed oie aft nhece ot it ‘hae | 
‘peed LA eke? Oaaee aegioretinid bit ‘ae aatd A a mie the ee 
totedee orld be gilt aed ey te wentast add me’ ‘vow ‘sat J Bia’ we 
few? aut ode gee yatvorsed BHP nen meer palwnt ‘ed inpews 
‘pain Pode *ypew clon gow wliy Av te ‘gol Yminee. with difhw fi 
ons Aiea Goaknern sue so ame Wakadg ols sare 
pelt ame med) hae ahanse od 98 robb oMa ‘ange wilde ce 
gue SF te Fitgwioct ils teed aoe atv wild ot ‘ eo'é 
i basin bal pdapuae teed 30 wt Patt ed wr ta 




















ha. 


vane e i cn 











: “bine weed gh” ining oot ui "ail owe 


PHA wt ee» 
RP ee i 


‘a! ease jroo pet ke ‘Ytow one ise otwd tient oatd 
obtts brie sbucvaw ot) Heetnn om od To or? es 
ode “Xo cy hat got oat ieee PEN wi e Boe be bap 


mee ‘bait veuiglecny ne clap se "' 











the eccurrence, while plaintiff was lying on « eoueh on the veranda, 
the plainti fr gaid-te the witness, "I don't blewe you or the dog. 
T had ne right te walk in the house without calling. * 

Henry °. March, a vwitriesa on behalf of the defendant, 
testified that he went to the cottage about a half an hour after 
the ecourrense and helped te clean up the breken «gee; that the 
eggs were about two feet on the inside of the door of the house. 

Mrs. George timmerman testified en behalf of the 4e~ 
fendant that she was at the cottage a few minutes after the ocq 
Currence; that there were freshly broken eggs on the veranda, on 
the floor of the living room, and wp againeat the wali ef the living 
Foom close te the d4ser} that she heard the plaintiff say, *1 walked 
in. It wes wy fault." 

Four witnesses on beauls of the defendant testified 
that they had heard the plaintiff aveax of the oocurrance, and that 
the plaintiff had eaid that the deg whtacked her when she walked 
into the living room. 

Om the iauaue whether the defendant knew that the deg 
had a vicious disposition, Mire, Seott Myde, « witnese om behalf of 
the Plaintify, testified that in the summer ef 1991 she wae bitten 
by the dog while whe wae in the yard of the defendant; that the dog 
@ame from the direction of the bagk poreh er rear of the cettuge; 
that he lunged at her, tore through her ¢lothing, bit her on her 
thigh, and planted his teeth on her arm; that "the bite” was net 
deep; that she sereaned and that both the defendant and his wife 
came to her, expressed regret, and defendant's wife bandaged her 
Wounds, 
mere Howard Martin, a boy of 11 yeare of age, testified that 
in June, 1928, while he was going through the yard of the defendant 






~ the dog and started to rum; that the deg jisaped on his bak, 
ked him down and seratched hie face with his paw; thst he 


yee 








‘ 
4 


ey 3 


ahaatey eso he Moyes k tH grind eure ‘2th Kode Toy within ysoners4909 
| “nat ond 0 yoy, sas $1 aah: gn easknky one ot bias ee btenece 
A “yi too apedete vamed vilt ak diaw of tage 0 bas 
tagas'tsh ond “ke Tiaded ag wma tee domi 0 ytnelt sill 
spe te. aad suas Shan a. fesoete eyatd on want oF jnew ‘act, ‘yaing ‘notte 
ads dante isg8e neiond wat ay carte wt KeQtnd tad” sonnrwese * 
~ snaudal att io, xodh 60 Lo onset 48d ae’ tee ont suet oth 

: “oh ens Ye *uiasind ne bet tans smoiteonat de agiost A ae 
abe aud oye wotania wath a eget ion ‘elt 4a ‘aorta, “tant as nine 
ae ahneOr eat Hs ama mica? whiodat evee wots smal ° 0% 
‘anti ous we iow ait ae ow haut jhadote braaipeer ic). « = fy a 















berlyase fanbase de® mid te “Yuoded oe ssinelabe suet : ‘ 
nial vai “4 PAO TCHS ‘othe Vo taste “vrbbwtalig ast bain 
: “hektoe one toate legal masnannd ““ etd Facil hee bt 
ae ett Soke wont veslaitin onde *oneosto éveiid ord ao” 
te Tinied 9 shaneie wwe aed sete yitott teoethy do. 
aot be dae oie or te ponies ‘yak ‘a ‘Qaaté wi etneee{ rs : 
get. out hide pean tne’ te® oe Ye ‘terey pe Gah ile 
pene ron ant te seer % ston XOued ant ‘to Wehtoot at ont 
ihe Sian ae ‘ans eke enna ‘toe Incr one ‘— 


thinks the defendant chases the deg away, 

it is ecentenied by ceunsel for the defendant that the 
date of this ocourrence was not iu 1922, but in 21921. 

The defendant offered te show by ten witnesses that the 
fog did not have a vicious diapevition, but that he was a gentie, 
Playful dog. 

in regaréd to the leoue ef fact concerning the injurise 
Sustained by the plaintifY, we do net think that it is neesssary to 
state the evidence. We need eniy to say that in our opinion, ac« 
eerding te the preponderance of the evidence, the injuries are net 
Sufficient to justify the amount of damages avrerded by the fury, 

Gounsel for the defendant maintain that the verdict 
of the jury finding the defendant guilty of negligence is manifestly 
Sgainst the weight of the evidenoe; that the verdict indicates 
Passion and prejudice, The preponterance ef the evidence, aeoorde 
fmg te couneel for the defendant, clearly ehewe that the plaintire 
@ntered the living room of the defendant's coettate wannoweed; 
that in so doing she failed te exereise the eure and caution of an 
ordinarily prudent person; snd that hér negliyenee wae the proximate 
@ause of the attack by the dog. 

Asewning for the sake of argument that the attack oc« 
‘eurred at the place and in the aanner contended fer by counsel for 
the defendant, in order to justify the eonclusien thet the plaintirr 
was guilty of contributory megliigenee, the prenonderance of the evh- 
dence must show that the plaintiff knew, or at least hed reason te 


that the dog wae # vicious dog with = propensity to bite 







Purthorme re, we ¢o not think that we would be warranted 
lime that a finding by the jury that the attack eccurred at 
and in the aanner testified te by plaintiff would be mant- 


ie werent gn in” 


a 











yew gob end beakate ee amanita 

ont fad? hwhaeted ond vor Leaases Ys bot tod! ob ii ical iy 
IROL a doi” Ohi Hh ton Baw epaertved a was we tan 

eas Jan? ‘hosbeidihe iad vot welt OF heteTio Sahie ten eat” ? i 
oitaee | a ihow od Fad out a wvoloky & oval son bb’ wet 
ih in Pavia Lirtye te 

wolsvial asta palires ngs boa Yo woes kone og nia yoe at NTI et 
of Yxusneoen of FF belts tinted Fou ob OW" C TL Matty alld ye ) snide 
~oa ,soiabge two ak sokd Ya of Yino hoon oY lovavbiwe ‘eal ote ‘ 
dom ati sobruhmk ond ,wotwmnive bus te pond robhndgn tg add ‘ot " 
“setet ert yo be taion negemib ‘to thous exe yh tert oF Sante tts 
“goibuey wild secs ithe t ookan tushse'teb 989 ret towared a Lani * 
Titeetines ai sompiigen to ything taetao eb olt atte ete, oe te 
“potentbat Folivoe oft snug {soa tvs wal? te. tein how ont i , 
cbhekia oonh ive ‘odd ‘So somuitebagerta ant ssotbutord: Sino bs 
“Wrlinte le eis tate wende Ytterty’, ‘gdatind ee anit OF Lewetdere } “a 
 «gbeenwonnaty etetieq al tashusteh eld to oot aalwar ont ‘pew aa 
wa %e ng 83 ae be wis oie eetevexd on the thst ede ‘ities: oe aye 
oouanerty 9d ‘ane vi ag Ot “taal baa ieoerg daohung Y 7 
: fore oak take aid ee seaave eis 

“ou ontta oid Cd aranseicth te ‘tial aug" ‘aot a — di een td 


















ve a 


trtendata et} void dolauisdoe vite wildewt oF gabe ae 
“ove ade Ye eo aerohiowoxa ost , Goad tgon’ “ian naiee ied 
et seanet bert goon te to , wean Titalece ott geet world penny 
“able 03 votenod oF ‘ulm F “ithe gob bead * en Leper ‘on 
908 pone +t rer ot 0 : 





n'y beriwide ian b chais™ Dest tigers ne re 
= betmn aid sivas £Ubd ndate Ga’ od” hd bee oe FA ah beatae , nih 


feetiy sgainst the weight of the evidence, Yhere is m direet con 
flict in the testimony, it is true. The two versions ef the oc- 
currence are irrreeoneilable, The jury, therefers, were compelied 
to decide a question of veracity; and “it is the moat important 
funotion of the fury and their peovliar province to determine the 
truth of the enee." Peaple v, Boucher, 305 TLL. 378, 380, 

Counsel for the defendant further contend thet the 
Presonterance of the evidence 4nor not eotabiieh the fagt that the 
fog had a vicious Ataponttion, Wa do not wgree with counsel in 
their int xpretation of the evidence, — 

Counsel for the defendant maiatealm on the autherity 
Of Domm v. Holienback, 289 121, 362, wid Whittenberg v. Veber, 280 
Til. App. 315, that the trial court erred in refusing te aillew the 
| @efendant to introduce evidence te atiow that the deg “as net 
wicsious, but was gentie aud playful. Ye do sot think that the 
@utherities relied on by sounsel support theixy econtention, in the 

ra, the court aaid (p. 348): 





“If conclusive proof were made of the propensity of os dog 
to attack and bite mankind and knowledge of such propensity on 
the part of the owner, it would be imeompetent te chew that at 

Some other time the dog was quiet and 4id met menifest a bad 

_ @leresition.*** That wae not the ease here, ** ‘The offers in 

this case rere to prove the wnifors good tircesition of the dog 
anéd his freedom from any disnesition te bite or attack mankind 
oF any vicious propensity, * 


Ye are of the opinion that in the cage at ber the ovb- 
eonelusively shows that the deg had a propenai ty to attack 
and bite mankind, 
in the case of Thittenbory v. Waber, supra, the court 
sid {P. 336) that the defendant “had the right to prove, on the 
Sf whether he hud notice of the dog's dinposttion or pro- 
te run out and sanoy passers-by, the previous uniform good 









of the dog in that respect, and hie peaceable and quiet 
-* In the case at bar the evidenee conclusively chews 


q . ¢ 





eas 
























onus foorukh « ek ocatt .apAbies oer Ye Sita dele oat tendo itis 
“Seen ony ‘Te exatusie owe ott abad wi HY _yiontitae? ent mt tens 
hei tognuon acer (erotethee ere sat |e Ree Nobby) ‘wks’ oo ' 
Seercsent Yoou ont of 2" Bae pelkenanl Ye i to haoing # <a 
‘Ge Sitkorst oh ot polsk verre a Te aoe 
oe aE Le BE moni wy ofan © eane nth 98 
any anil? Kien Flew enter sient y” vie ee lscapeotll eit 
eae Haid to0% o6e Mabtdwtes son ‘een’ honbtve’ rye , oo nenarobri 
ws teins Avie nee gb of ol webitelbbath” bile : 
sit a" wa a = tbo 





eee “eettavos “ebay ee od veeee renee fabad anh PY ro ae ee ad f 
Gn BBW Goh Bas daa wortn OF Warne’ tania or ahi 
wi? Adee Rated fim on ew lL ePreak neeS | 

add mf  caekdastads <beay sedecewe teunwed' Sl ‘the hs. Hed soy 

‘P{CRE LG) Sted Peves 6H) weet 2 iy 
a a qi teamgete sk Yo Obaw ‘Stew Téoke 


| re toa sa Tavoqnnd be apr ee : 
aa aunts ot ae pt vi wa ait 
bysontaisiiet | 






ong x0, moteinecsts b wget + mua fi. : 
, Pere, ance’ Law RuATVRTE. OFF 4 if iS) iia AID WAC SCN MBit f ” ; : 
selup dus oLdpsaneg ott bas »tpounon dpmult, 


that the 4efendant hed knewletge of the vietous 4taseci¢tion af the 
dog, Re net only knew of the tro previous attacke of the 4og on 
Ere. Hyde on4 Nownrd Martin, but it is wundianyted that the deg wae 
kept for the very purvese of protecting the defendant's wife. On 
direct examination the wife of the defendant was asked this queetion 
Were there any trasps oul there, oF people of that character around 
the woods in the néoéghbornecd?" She anewered, “Always someone tramp. 
ing through there, hunting and fishing. There is « trout stream 

in back of my place, always someone om it,* Om erene exsmination 
ghe teatified that she was left slene a great deal apd the dogea 
were kent for her oroetection, 

Counsel fer the defendent further agealgn errer in ree 
gard te the giving end refusing of certeain inatructiene, The ine 
Structions have not been set out in the brief, ae is reavired, 
‘Geners) Pisters Suoniy Co. vy. Shas, %, L'towmadiey & None Go., 228 
Til. App. 202, 26. Mewever, we have exawines than, 

The firet inatreuction eemminine? ef is reforred te as 
dtetruction fo. 9. The inetrustion, which war ctven at the ree 
queet ef the plaintiff, ie as Sellers: 

"The weight of the teetineny doee not neeenvar!ly depend 
om the great number of witnesses sworn on eltaer side of the 
Question in diepute, but it te your duty as Jurere te consider 

®ll the foete and circumstances oppearing from the evidence in 
oase, together with the number of wlinmesces toriifving on 
the one side or the other, and to determine srom that which of 
_ the witnesses are worthy of the greater credit; and if you be+ 
 Aeve frou the evidence, wider tae inesructionse ef the court, 
after considering all the facta ond clreumetancen appearing 
tae evidence, and the number of witnesses testilying on 
he reeneotive cides of this case, that the evidence of the 
Lesser number of witnesres on tne one wide is mere eredible 
trustworthy than the evidence of the greater number on the 


fide, then the evidence prependeratesn on the side of the 
number of witnesaes,* 













E = 








We are of the opinton that if coneldered os 4 ctatememt 
Yule of low aprltcable te all eames, the inatruetion 


me, sinee it makes the auestion of the vrenenterance of 


+ devend upen the question of the eredibility of the 














nas, te metttooget? suolohye ado Io qpha dont had tmabae teh walt 
a geh oct To aMloctte, sugdrony amt ods Yo wert ying tea mE pad 
gue gat aay, fart hederom khan oh SR aah EE OS OR, obyl a 
) ke an 8 gon Boon tod arid mhioe dy te te. Ae OHTKe Stor rods AOh | 
nothapiy atte being daw saghse tad aft to wthe est, Ot tant omny, 4 
ary ta tet ourte Ao ll Re BLO has cmtiead Ane, ousasd Mie arama. y 
AS EONS KC RWLA" , Barcewmn ods, *ebaadcoddahan pnd ak aboww i 
annie tient sat wisd? .gatselt hem gohan youeds Ages a 
Mivodivte sant 4 "th te aARMOE, WORRY 9 OMe ky Nee 9 ba 
fob ait bas Leah dante a onnte Tel amw ote Sass he Adee, oa : 
smpidonterg aed. x0? seek eae 
roe wh tone Ny heee. utara Jae bow Tak 089,207 SeOmMOe 
oh Qk aod townte at sherieo “a pateg het Bae ann ati 
ebathirnan wm ata ld at tee tom lai sited 



















cl, enn Pies eal a gpa empen 
me ot Rowe TET, gt. RO ante toman bitsenditats 4A aie ee _ : 


We 
















ete mors saan 
ey ay oe rahe saliwnicges ty 





ag rin ahainckin ‘e ‘denen ie he 
we? Lo ge an dude yomas ahes 


shat avline 





axle fe, ahha ny noe ansanvbinneeye wah | 
ey 

ebbaedie Fda Seiad VE todd Rib a 
obktowtdial ott, dekey ka’ womans " 


$6 binorhnaceese' bite th Adtewsye Wad wndan be" 
waitin: + RAKE atl ie ihe ia 
ee elk te ‘eekeihhexo esi ; ht olson ~ohund ae 


witnesses sions, wherene the prevonderance of the evidence should 
de determined from all the evidenet, which im some cages may ine 
@lude Abt only the statements of witnesses but alee documentary 
evidence, and real or demonstrative evidence, In the ease of bar, 
however, the instruction does not constitute prejuticial error, as 
the evidende consiste4 only of the statements of witnesses, In 
other words, the instruction was applicahle ta the record in the 
@ase at bar. The instruction does net take from *the jury the right 
te decide on which side the prepomicrance rested,” a8 counsel fer 
the defendant contend. It merely states,an a matter of law, the 
standard by whieh the jury may determine the preponderance of the 
@videnoe in the case at bar. 

The next inetruction objected to is designated ae Ne. 
18. The instruction was given ot the request of the plaimtirr. It 
is as follows: 

"The court instructs the jury that in iew it is not neeas- 
sary that the defendant sheuld be proven to be the owner of the 
in question, If the jury believe from the evidence that 

4 4og was vicious and accustomed te bite wankind and that the 
defendant knowingly harbore4 aait deg uvon his premises knowing 
said dog te be of ao vieciour nature end used te attack and bite 
» and if the fury further believe from the evidence that 
sald dog 4i4 lacerate and bite the plaintiff's threat, vrenate, 
arm and lege, ae eet forth in hor feclaration herein, ané if the 
believe that the plaintiff was in the exercise of due care 
r her own safety, then the fury sheul’ find « verdict in faver 
of the plaintifr.* 

Counsel for the defendant contends that the instruction 
is erroneous because {t faile to Limit the care and eaution re- 
@Quired of the plaintiff “to the time and place in question, * 

We de not think that the omiesion conatituted prejudi- 
‘@lal error,as the instructions must be read as a series; and in ine 
struction Be, 12, given at the request of the defendant, the jury 

| @mplteitiy Were told that the plaintiff was required te exercise 


aa care and caution for her own safety “imaediately prior to 






i@ at the time of the alleged attack upon her by the said deg. “ 





































bivede woashive ect Te emus bnegety ate game ey wi a 
eH? Yo weeae weer ei Metae ,semehive efx Tha tare hondives r ‘i 
Pattee eh OLY de Beedentiw Ye etanan sare! itt etna tal ie 
(tod do same 0 af pocetive ovttartenokah 46 Kabe bith ebony 
es notte Intolhwheag dtetttwaes fom avo aelbenaeen) air’ tae 7 
Gk Romane Te ater dard oat Yo tite Kafe bunds ‘bien tve “ 
out at haeeet s1y 6F ODtae LSyen aaw not toueb eine’ ke” obicbw a 
tiyte na? giv oott” moet exat dont seek ao ttorttnnd ent lead th © 
‘eet fanhneo ae *, hodeot morte re hog: eed a 
oA? He EL Yo cee ae wl si en date ciseber’ ot haw 
add ‘te sonanehannene wate salanet oh yee ere, saaucadans web ‘bite 

; ted oe onnn exit ot 

OF at hotetginsh el od bodes tide hottonase at teow sat bal mh 
#3 AES NRe Sy Gold te dalepor 'eitd be aha wae sakes 4a a 


ican) Hey 1 


aa te ton ah 8 — faite cratic sos sm 

% ® Saare we SOETE & 

Sokt epaahivey of wort peetied Lae pat te Beovp at 

emt todd hae batinas oft of Wemssevoes ham ay 

Tis eolad ot need 0 creas conte A eae ae 
% ite aad ae ene fee etedec a tes Wed Db 
todd pommhive at? aovt ave tind aaahiek eee gana? bao 4S hs 
Pos lige ote soil eo ee =: 


pi salata Pd PERS ba, gaat 
ee te soto triton ont ry ee a : 
weve’ ot meer yg Fast cea 








Hs rotons wt 


noksovapedtd nae sith anew trib cao: ty ‘dot Epa Mog site matt il 


mit Rebihina ‘takes can “walt te cd este 42 aan 

| ® mepkhase BE en ke hate Ome ‘eat i hd —_ af 

athahetg hededioutins aoteesey wat tet ‘touts paki 

ant wk Sas jeobxon A aw hawt od Finm wads ytd eal a 
_ Mint eit ,taskao ted est io thexyas arty at 

_etomexe ot hostyown ac! renee aid 2 eat 








aint onset | 
Wet bir Fe Labels 


exeh o1ae oat yf to aaa ans 


hs ee 
ihe ay eh iy 


| 





It iv further contended by counsel for the defendant 
that the trial court erred in giving, at the request of the piain- 
tiff, the following instruction, referred to am Be. 16: 

“In arriving at the foot of whether or not the defendant 
had knowledge of the vicious character of the jeg in question, 
if any, you will consider o11 of the facte in the ease - such as 
whether the defendant knew of any acts upon the part of the dog 
that would indicate to tie daendant that the dog would bite if 
he had the cianee, such as atienpting to bite any person without 
provocation, biting any person witheut provocation, and such 
Similiar acts, if any, in proof on the part of the dog which 
came under the observation of the defendant, * 

Couneel for the defendant contend that thia inatruce 
tien essumes that the eharacter of the tog was vielous; and that 
the qualifying phrase “if any* applies only te the clause “and 
sueh similar acts," and net to the slauce "the vicious aote soeci~ 
fically name’t.* We do not think that the contentions are correct. 
The phrase “if any" ie teed teice in the instruetion, once te 


qualify the eleuse referring te the vielour character of the dog, 


‘and again, according te a fair and met 3 hyperearitical conetrue- 


= 


tion, to qualify the opecifie acte mentioned, az well ae the clause 
*and similar acta.” 

Gowneel fer the defendant further centen’ that the 
court erred in giving the inetruction referred te ag Ne, 20, The 
inetruction is an fellows: . 

"You are instructed if, under the evidence and iustruce 
tions, you find a verdict for the plaintiff, you shall assess 
her damages in such sum a8 you may believe will compensate 
areeeras? » first, for her physical «nd mental suffering, if any, 

rectly caused by her injuries; srovided such injuries must be 
the direct result of the ferce and violence of the attack and 
by the 4og; second, if injuries were caused upen 


aintiff which are of a permanent character, then yeu may avard 
damages such ae will reasonably compenenate her for permanent 


injuries,” 

The objections to thie instruction are (1) that “there 
is no Preef in the case of any mental suffering;* (2) that the 
Anetroction “allows the jury te svecnlate upon the suppesed permae 
| nt character of the plaintiff's injuries;" and that the declara~ 





A does not allege, and the evidenee does not show, that the 








taphag'te, ahs to) Leones vd Dobie tine wastiort ef FF 
entaty aa2 te wou pes wld aes wate by “ah borne “Pures tates oat tant 
seb as ae OF howre'tes ‘ gehtowcdent ‘gaiwoltiet ‘ad tas + 
Saahented esd Son 26 redtoce to ‘teat oad de poivixes at” hoa ¥ 


apiieres 32 gat ent “to. medoatery sehen . an 
gn owe « seayv oA at eden one to a Fenced aut Eh ate 1a 


ait est 20 dumg ext togy niu yam. T stoaiea pis Bed 
ti atid bigow gob rg Saban oh gale oi ela rebate teeta: 
guwiite cesvey gta oFhd of gektqusd ta oa, cp fod 

br ira rors 






















dove Sus ,eohdssoveny twesdin soetog ge eval she 
idee rhe gab one le Peg eet ao Yoong at, foe 

: | , ".danhrated sae te doldavaondo oie 19 
“wonavant adit oapaiy nant aoe sambiee ek one. ‘got gee i 
tadt bow pewetaky | ae ao wnid Xe te dvetedty ‘ext ‘gad nomen , is 
bite” vaneto oft af «ts net tace eau ae suave yi ‘4 
oteae B athe, ten te bv qute® sous to ons of fou base ‘ata tottmbe 
aap hoe re anotinetden wae Gadd Maddy toa Cs a, showmelt vite 4 
es ame ptolgor teat ‘edt at goles bead ob Seine "ae epee 


aaah at ‘be doetedn evotaiv dt od quttuoter sane te ‘Gad € 
sertteonn Snotssuanenys » ton tom tist a of + salboones “bia 


So Pas) 
Ra: eR 


eae: sted naagnee anne sack ate see Paces. 


ane : pad da end te senekene an sous? ais to dlvsex tout 
rebegsia 9 See wo dat ah we t pa 

tum es Fo ome B tonto Fam nareenoy # ‘t inet a 
stooges Yideamnet. ‘ftae mae Kobe aysanah 


ovost® tess (n) ou _motamentunt whus oe waoitestite eae: en 


yy 


| eit ‘tats (2), *ygatte Te "Dndveom ae ‘te aces one ats o 

If 4 Pk Ye cM Man es a a He Ce mn ee eT 

ae semen benoceue ont Boge etosuonae ‘od eewt a lo™ mottos 
sea, PAG gh a Re! salute die dé i ey) : ' 


mf “sgt fom oats ‘touts ba Viastawtak @ 


ant tnae yeas son euek: pert eat oe 1h bot yy 





10 


plaintiff sustained any permenant injuries, 

We do not think that the eontentione are correct. 
The plaintiff testifies that shawna bliten on the nesk, right 
breast, right arm and beth logan; that the bite on one leg vas to 
the tene; that she was “bleeding 21) aver;" that she wat im a 
hospital for eeveral weeks. In the case of Pratt v. Davia, 294 
Ill. 300, the court said (p. 309): “Some facts require no direst 
proof. * * ‘The law infers palin and auffering frou personel ine 
jury." 

It has been held that the apprehension of poison 
from the bite of a dog and the fear and solicitude as to evil 
Feevlts from the bite, are proper mattere te be considered in 


ettimating the damages for #uffering. Godeay v. Bigod, 52 Vt. 
251, 254, 258; In ye the Lerd Derby, 17 Fed. 268, 267. 


In regaré te the question ef permanent injuries the 
decleration fees not aver in terme that any of the injuries were 
permanent, but the declaration does allege facts from ehich reagon- 
ably it may be inferred that the plaintiff might be permanently 
injurea., Such allegations are sufficient. The rule is that even 
if the declaration merely describes the injuries generally, ithe 
Out pointing out their seriousness or permanency, recovery may be 
had te the whole extent ef the injuries. 
205 Ill. 144, 146; ¥ 


Tl. 240, 243; Bag gket Go, vy. Defries, 04 11). 894, 603; 
i #18 T21., hoy. 385, 389, 390, Further. 
more, the plaintiff testified expressly that she “could not do 
anything with her arm;" that "it is nearly stiff. * 









It is contended by counvel for the defendant that the 
Pa 


court erred in refusing to give an instruction referred to as Ee. 
aD Fequested by defendant. The inetruetion is as fellows: 

















stores ate soeadine dod’ ee ome ‘cata ton! a ho ah mat ee f | 


Revere o 







a an sere 19 089, oat: Po = tio tataved tot tattooed 
toorth on pe nici atoe ‘asta: “4 (eon wud shaw trw0s sg 
wad tanseneg wee? gabreTive ius sbtanes | wie Bad wa lt? *w te 













atin ‘te node nae naa ods fed Dhed aosd A dal oe el 
 fbve ad oe Shattelion han swe oda ban gob are ond ie 

ab Detehtenon of ot avediam xoqete one ote ead moy’t’ @ 
<*V RO helt ev migbd° ~.quliteTtwa (tet negoma ads seth ina - 

; SOS SOR OK NS, yee heed gat? oe gl ae are ee 
ott ae buuiak Jaemanree t4 aaktewnp wae ot ‘Stage i shh a 
diieceteah timahnn ome seb al ane : 
ononned do biw mors aton? egeile avon moltara Loeb at tad 8 
Ukdversenog wa Gelade Tks atete ests saste prve tak 
mney salt oh where Belt’ ‘edn to Vere: ote aisobtaye tte aa 
ath bw Vileteay ookiwtat ects aad iveuss terol, : ie 7 
od a iynawrenee carer te ab mtvol ton cehoxte tow 9 


a Ue | ee Ta 
one ‘nt te tunane eka 












aut; sds curate » asi ats a 

cs ‘Som biroo* onle dads ‘whacotane holsheget witiateta ns we oat 
| *Tikse qtnoe ah ah” a sade yee 088 ste wate a 

salt taste srobaeras ed eat fevauon ee oe & ak 

ait ee ot benaeten aatsoustent | a hy »  aatnetox ab detre, 


es Bs 





® oil 
Pa ke a a AS 


imwaket wa wt avitovesent ot eS tetra 


"fhe eourt inetructa the Jury that even if you believe from 
the evidence that the plaintiff wae injured ae alleged in her 
deoleration or one of the counts thereol; if you further find 
from the evidence and wider the instructione of the court, that 
in approaching defendant's oresiaes, the plaintiff railed te 
exercise that degree ef care and oaution woich an ordinarily 
prudent person would have exercised under the sane conditions 
and surroundings, and thet such lack of ordinary care and enue 
tien (if any) on her part, was the proximate cause of the at- 
tack by defendant's dog, then you should Pind the dot endant 
net guilty.* 


We think that the trial court proporly refused te give 
thie inetruction. The instruction omits the element of knew) edge 
om the part of the plaintiff of the vicious disposition ef the dog. 

There ie a divereity of opinion on the quection thether 
eontributery negligence in lis ordinary weaning te a good defense in 
an action to recover.damaces for injuries sustained frem the attack 
of a vicious dog. The Chicage & Alten BR. 8, Co. v. Nugkkyek, 197 
Til. 304, 309 (supra); 3 am. @ Sng. Sne. of Law, vp. 372, (2nd o4.); 
2 Gyelopedia of Law and Procedure, op, 340, 301. The rule in 
TMilineis is stated by the Supreme court in the case of Chigage & 
Alton H.R. So. v. Kuckkuck, supra, as foliows (pp. 309, 320): 

"it is undoubtedly the rule in thie atate that if the party 
injured has been guilty of heedleuuly pleasing himsel? in the way 
of « vicious dog with knowledge of ite propensities, or has brought 
the injury upon himself by his own conduct, or hin fault has 
proximately contributed to hie injury, such fucte whi) congti tute 
@ good defense, This defence, however, devenis noon knowledge, 
and it ie only after notice that the public are required to be 
ny their guard to avoid injury. It is met secevanry for o plain- 

iff to aver and prove the exercise of care and caution fer hie 
own protection, but it is matter ef defence, * 
We are of the opinion that $3000 would be a fair com~ 
‘Peneation for the plaintiff, If within ten 4aya from the filing of 
this opinion the plaintiff will rewit $1900, we will affirm the 


Judgment; otherwise the judgment will be reversed and tne cause 


| Pemanded, 






AFVIRMED UPON AAXITTITOR:, OTHORYI GS 
ARVERSED AND REMANDED, 


| MeGurely, P, J., and Matehett, J., concur. 


hee 
7) 


z SSS = 


ii 
i 
fi 
Hi 








tH ith | i { 
H ; Ey AN 
Woy Hy 
i | \ { / i, 
uP, } ih i 


wert ovoltod way tl seve dase qtul eee asowadent duvoo 


ane i 
ved ab bogelio wa Sow tad gar Tekd ade oy Parit | 
balk wodin’t moe Bs ivtane hs @ Pima” ag wed o one eee 

































tect ,fteep a8? Xo Gughtowedent eh, tebse hoe woneblive edit 
ed bo fiar Triialelo oAd pone tance a! rapnnion Saison osage 
. hitenthen ae ap dow, Ag ls oes Tit hei baa Tow asereg, tuo 
“e@elIthaoo sew oat Rokin bee types beat b 
“e200 bee otae yiathae Yo deal sows gaat 
“te os) fe eae dtanixereg ete ante pene ry ike ihe {uF 
faabaoioh ong batt bivede may. ance 4 mob, Sta ai 


4 Pe ‘ 
swiy 6 boar ter diveaowg Pes tales suk dads skate ov. Hae om 
epbelvect to tosmede odd adden imo 1dd04900d ont “smo tou nde « 


im koe 
gob oat to aotd tnoon th aurototy eit to ‘ntentete oct te @ fusq ent 

aN sof 
wedliodw geliveus eff ae aoiniqn te ytiererih « #2 erent hy 


ak oxheteh Aooy « 62 aiiieants qrea there ait ‘ph touma Ligon wrotusie 


Wy a A 
ot 


Wg) Pg 


ames ent wov't Bemhad sua hesumnnall “tor ‘Wepillbe y-xavooe 





1s henlpe peepee Pree: wique) @68', 
mt olet ed? 280 ORG Lae” embooott hte wal to af ithng 
gummed Te wasio bus ui said whdiqnt odd bezate ze od 
eke” (e080 leq) webekot ak \atqua pusuwateua’ .v ie ae 


eieog ont Th Suste hap tg whey ab ole% ast ‘etba edu obi gn gees “ 


ecgneel anak eer gr jane qote or ores ed ae" seh ‘avalon : 


thus? eid te ,touhnos avg odd ‘tieemia x 
eied ing val yi sont neue etabak eid ¥F feds nop %. eda 


aghe Lowas, Chaney » eorewad. Pr agpeede 8 se 
aie per Series ote ei idee aoghy tie } wel tom Seen ih 
“sie ae nei LEGG wor OL Php ote pee ge 4 rae! o, 
i 


bam ‘hat exan “So [spd | 

see 1A 4, of Bio 09088. tau, sated capbonpainess ie 
te adtt? OAs meet aemh oe aisia te a co Tate keke att ong) 
EE ea Lhe on, BOR LG tines othe Veddatnke old wok 7 
fauan a? bee honxeves 4 LLie toombut, ent srenttect - va 
He WATE TO TT NAMES GA SERANTER has vat gal 


uromge Pe prremromyanay Pw Pa 
we Hor Me ne ahs Aa af i ony 








CEM OD a OM oy ‘en Weyer i 


140 - 31270 
WADR.TVICHMIL COMPARY, 
e Corporation, 
Defendant in rrer, ) 
) BRACR TO MUNICTPAL court 
v2. 
im OF GHICAGS, 
ABDAINS JABROITIS, 
Plaintify in Error. PA G2 
o>» VU 


i a 
See NO ine 
BA, JUSTICR JOSHSTON DMLIVURED THE OPTRIOW OF THE coMT 


Taie is o writ of error prosecuted by andrine Jankol the, 
the defendant, te reverse a fudgment by confession ebtained aguinst 
him in the Municipal court of Chicago by the Yade-Twiehell Company, 
the plaintifr. 

The netion wae brought on a vritten agreement between 
the Plaintiff and the defendant in regard to the purchase of a 
Plane ty the defendant from the plaintiff. A note wae exeeuted 
by the defendant payable to the plaintarr, The agreenent provided 
that “the title, ownership or right of possession of the property 

: mentioned” should rewain in the payee or the holder of the nete 
~~ the note was fully paid. 

, The judgaent by confession was entered on April 24, 
‘1925. On May 12, 1925, the defendant was served personally with 
MB execution, On Kay 29, 1925, the defendant mado » motion, sup 
| ported by his affidavit, to vacate the judgment. On the hearing 

an | the motion, the trial court denied it. 











Tn hie affidavit the defendant stated that the first 
ge that he hed of the Judgment was on May 12, 1925; that by 
mason of the faete that the files in the case vere lest and that © 
' Case wae numbered on the execution as Bo. 1778789, instead of 
+ 1778480 , the court number, he and hie attorney were delayed in 
3 ar opnertunity to exatiine the files; that he hae a good 
? ous defense to the whole of the olaintiff's demand. 











m9 dato xant ‘me wn jt 7. 
| ee. “Jonaiinto a mea 


Sys STROSS 


_ 1031899. Not 59S 


ete: pee a — he eandineed ro m atte o: ra Neg 


is en ee me 













bat ia Ss ap ARR ie “ sus digg 


Nadi) 


dinienn yong te Levee ‘hating “any prt ppg 
Agee het arsine Babe wd aaa ke to ipteyse bir 














bes urong ~~ oe csp dee, 
weegers, ele, te Angoronnan. ae. a xe erm: es 


mane palate ponen 





et tol peter are ear er vt 

a tats Dew Beek extn wknd wee wd ee KEY ad? He, 
0 bambi yteverrs: otk an Roltwanme ae. 
Ps boynios aroe weercasta ak one tet 


The substance of the defendant's defenne, se stated tm his affidae~ 
wit, is that the plaintiff did mot deliver te the defendant the 
piene that the defesiant selected, mit that the plaintiff agreed 
te deliver, but that the plaintiff deYivered to the def endont 
another piano which wea of an inferior and cheaper grade: that as 
goon a¢ the defendant iiecevered that the plaimti?rf ned failed te 
deliver the plane agreed upon, the defendert notified the wlatintirr 
immediately thet he would net accept the piane that wae ¢elivered 
and requested the plaintiff te take the plene back; that the 
plaintiff refuses to take back the piano, 

Ve are of the opinion that the tris eourt erred in 
denying the metion eof the defendant te vasete the Judoment, 

Commel for the plaintiff eontends that the sotion 
properly was denied for the following reasons: (1) that seetion 
91 of the Municipal Court Act provides thet » motion te vacate a 
Judgment shell be mode within thirty deys after the entry of 
Judgment; on4 that the sotien of the defendent was not made witil 
thirty-five daye after the entry of the fudgmant; (2) that the de-~ 
fendant hae not shown due 4iligence in making bis motion; (3) that 
“the affidavit doon not state a meritorious defense in that the 
Bffifavit does net show that "the piano was returned to the 4e« 
fendant; and that defendant "cannet retain the piane and at the 
fame time eseave paying for it," 

In our opinion a11 of thease contentions are unsound. 

AS we construe section 21 of the Municipal Court Aet, 

it foes not apply te judmmente enterea by confession under « power 
f attorney or eomnovit in the absence of the defendant. It has 





held explicitly that the previaion ef the Practice Act allewe 





| enamine ot ik Puntos wt perapantio macalciliahastepenause’: ? 























whet he ARS ws meenee aap, MRD Tah a’ due hae Teh odd be oenentt “ 
ane Famhiae teh gat af tov dias som Doh Viktate dy wat tn Y ; 
ewes VURGRo le it salt b ve boreddew sienaetes ‘wits psi 
tao ae ¥eb ae? of hoteviteh Wtitako tg walt tate tod senso 

te te8t (ohety teaaeds hae rolwe tad om Xe. aoe sto bow eonte 4 

_ patie best Theale ty aid tac? betevege dh toah ae teh asd pe me 
Wiitniely o6f bat item Inpbueies O03 .aege Aaety ), Oaake watt tH tLe 
hana ties oar dou? onmte adh teonee tom bivew of todd yletat om 
ode dani phond onekq aut ted Od Yetemtety att besaoupet ba 

; sonwie ot died edad oo Déamler TEM aied 

AP Sete Pua tates ghd Sede aeRO BME Re ROW) Ot wh 
firemen, edt stagay oF Punhus teh ott Lo aosiqd O42 gn 
“teliom eh Peds Shan yas en ee a i 
aeitooe Suit Uf) ikamore ghtwostor At re hein aam ichingt 

a edsasy of meliim a dealt ovtrrare dod sew Seqhs lat ont * ‘ 
ers vidoe wat tae wean yderkey white be atom of ftaun & pat 8 
saw ee 3 Sua. enw ‘saabiotten id Xe Lacuna ante iow bad tien ent 





ae bane ak nece"inb x sai # ates te meer igh : 
~~ wat of hoseydon ‘eat on te oneo dead ue 
‘ett te bas ‘aunle ond tinge — ihn toa 


Rianne OTR RHEL aetna want “Le Tee apiethee owe Yas i sd 4 
. toa fenied fete ine’ one Ye oe ie {Sou aearanoy ww WA es 
Towed @ WeBaw melawe tate ed howstnm elnometurh of ete ton 
ead 9% Lanmban'tod oi? Lo somduda ont at pivemgue’ +0 ¥ oO 
«Wale Poa do ttuar’e off need vy wale nd “eantakeenee hei 


Beevey vy. Alcock, 9 111. App. 431, 434, By amalewy we think that 
section 271 of the Municipal Court Act should be similarly cone 
atrued, 

in our view the defendant exercised due diligenee in 
the cireumstances in filing hie motion to vacate the Judgement, 
The motion wae filed seventeendaye after the defendant had 
knowledge of the Judgment; and the dafendent alieges in Ate affde 
@avit that he wae delayed in filing the motion by reneon ef the 
fneorrect number on the execution, Warthercere, it fees not 
appear that the rights of the plaintiff have been erefudioed in any 
way. 

We do not think that the affidavit ef the defendant is 
@efective in not allaging that the silane was returned te the plaine 
tiff. The rule is well sstabliohed that unieues otherwiee agreed, 
rhere goods are delivered to the buyer end he refuses to segept 
them, having the right so te de, he ts not bownd te return them 
to the seller, but it ie oulficient if he notifies the aelier that 
‘he refuses to secept them, 2 Williston on Gales, sections 496, 497, 
PP» 1298, 1206, (Qnd ed.) To the same effect in principle are the 


er engest 








Yor the reasons stated the fudoment of the trial court 
and the sause¢ renoanded, 

REVERSED ANN REMARTID, 
Fely, P. J., and Matchett, J., conour. 













od uta od hea ‘gad Line > teehee an! ~n 





















4 
| 
i 
| 
i ace ps Pe st y 


samt no a" 





| za ‘wis FY afore gree ’ 
Aor ar oe ned vad ‘attaiate edt te aaa i 


aime Ms ea 





ad taghentsh ond ty Five hn ue tous dated ‘gon oxo” ‘ah 
wahoko ete an Seavadere ‘one al hood Kind baa wl ah. owk 
cshiod var so whe tae we 








teaoae oo sonsrtor re tal’ ar cae 

, wet wuder od bavad Bon OF 64 jon oe - th ‘ap ‘g 
“fails “oisoe aie asitided on “Ph eae BT 
Fee 10 onghieen jon tad do wodek ity #°" 
| one om » olelnilien at | tei or. “ 


ae an tes is 






ei sae: 


, aT 2 wot 


nto a 





Miah Ce eG Geta SA! Rha aN 5 RN ab “) won kine i, 
le Ms Ma Mee a ome ma ey of ici Auta” iat beh ae einen 
Rr eh aaggie NS Salt ‘iii ky i a Na a “Semen” ao nay 


hey BS baer ay 


LM a 4 igh ty sieicieres ae ¥ edn’ 1 ho he AN 





14 S- 31270 


WADB-TWICHELL COMPANY, 
a Corporation, 
Defendant in Error, 
EBRROR TO MUNICIPAL COURT 
vs. 


ANDRINS JANEKOITIS, 
Plaintiff in Brror. 


OF CHICAGO, 


_— 


Li 
a4 4 a gt 
on, aim & g ee @ ' 3 4] 


SUPPLEMENTAL OPINION BY MR, JUSTICH JOHNSTON, 


G 


on petition for rehearing counsel for tae plaintiff 
maintains that the court misapprehended the contention of the 
Plaintiff in regard to the power of the Municipal sourt to vacate 
@ juiement by confession sfter thirty days have expired from the 
date of the entry of the judgment; that the precise sontention of 
the plaintiff was not that’the Municipal court did not have such 
power, but that the power could only be exercised when a petition 
is filed wmder section 12 of the Municipal Court Act setting forth 
Sufficient grounds; that in the case at bar the defendant did not 
file a petition, but filed a motion aupported by an affidevit, and 
that therefore the liunicipal court had no power te act under section 
21. 

We do not agree with the contention of counsel for the 
| *‘Plaintisr that the motion of the defendant, supported by an affi- 
 Aavit, Was not the proper method by which to present the grounds 
for relief provided for in seetion 21. 


In the case of Harris v. Chicago House Wrecking Co., 
me TlL. 505, 506, under section 89 of the Practice Act, waich is 


: similar to section 21 of the Municipal Court Act, it was held that 

an affidavit witheut a separate formal meticn was sufficient. By 
g enalogy ve think that in the ease at bar the motion surperted by 
the affidavit constituted a substantial compliance with the pro- 


: 














i ; Hi 1 ei 
: § stolseoy thbrw tow oF “we¥od ox bom Parte loorevnaenl ott eretevedt te ie 








# CAN, ey ely ny 
CORNER th 
iesiat salto Taam all nonse : 
aren BORN, ig Ah, toa ee ‘rusk ts a 

\ me) G (5) “fet “y <7 m ? Hai «4, ne hel 
il uoraunot sortent, - Bs. § worn an ahd oh 
* sal ‘A ‘#3 sein ss 

Trissiedg ead xo? picuece gat cassie ‘tot weil dog he ‘ Hee 
eh saa Ri La jai 















ant Yo Ao Et mB 4009 ent bebsederqqae tn ftu09 od tadt ontad oP 
etovey ot Saiee deqto tri eit to tewoq ont ot skeen at vines of 
ext? Hott Bertaxe evadt ayab yoc dae ett hoterstnee w foombat e 
te Hokaaltnod stewie bit ted? jtoeeatut oat 4b yatns ade Ye oat “8 
don’ ‘Svat don KES dees tog to trast ‘eit tant oe, ‘cow shitalade ; he 
nottivey # cecw Keetbrexe of cfkd biwoo ‘ewer oxft todd ted |! Wek 
idx? Yuttiee Goa Povo Teg? toed aay to SL woljose rebay yee et 
fon bib suabhe'teh Sit xed ge ane ote ut tedh ; ebayorg’ dio to 1 e 
\ gutlveie 2 eae he «s bettocee aottom & beLtt tue , welt Hed & of : 


4 eee oe } as BS ACD aL ¢ i 3 ’ ead a eo Pe ca ria a WY pis 4 
ba 4 i 5 Wel PARES bay MLA WSR RO Ohi Lot ae: ee cheer ‘ .. 


eas ‘et isemyds %o MOktes ded! walt! Wtkw eptge Fon bb OW! + sin ang 
«f¥ie na ¢@ badregeque {teehee tab od ‘ta’ nok} en’ out sna Menbither e 
abmwrera et ¢neeerg of sokdw yd Dovdem teqete ait ton saw oie 4 
off noltese at tot re Reklox toF 

‘a fois, Pecteet bdateny 





tedd bled eaw tt ,foA to0d° tneke teat off %6 Fe) nottesé. ot jth 
qi .tastoitive eaw cotton Iserct etereqee a fwadt bw shania ce 
vd bedtogass nots em edd ted te sues ont mi tect Sobett ow eR ses 
~org eat asiw sacle tel st snotedue 8 botutteenen savant | sad 





Visions of section 21. 
Geunsel for the plaintiff further contend that the 
@pinion of this court should be modified so as te read as follows: 


4 


"Yor the reasons sitnted, lesve should be given to the dee 
fendant tc plead to the merits, the judoment in the meantime to 
stand as security until the merits of the ease are heard and 
dctermined. The jJudsment of the court below is reversed and 
the cause is remanded for further proceedings in accordance 
with the views herein expressed." 


We do not think that the centention is correct. The 


writ of error in the case at bar was prosecuted to reverse ihe order 
of the trial court, whieh denied the motion of the defandant te 
Vacate the judgment entered by confession, We are of the opinion 
that the motion shewld have been allowed. it follows that the 
order, or as we termed it in the eriginal opinion, the judgment of 
the trial court, sheuld be reversed and the cause remanded, 











Te 













eas saad nan garo tocistgy 









“ah ‘add: ot ae ach | tats unoaae% a 

Ot stations ead mb sabe . wc apes ry oF recon Bh os 
bnew based ote eae ott mg atk rem edt Ltt . 

bas heeveret ad sie “ny : ce te ng 4 
sei cabo aeet nfust rot hebaw 

m * bone otyKe sachs awe 



























Pk A 


aides oat te ons w sans sg pare wer vat 8 
sey ‘eu Sissi ‘avoito? a “otdal need ovat béwastn dis cs 


BEF ERT Bion Setar WA ie ate. Teh ROR ee Roan tat 
i"  poerahe oat Hokaiao, Aentgixe ot ak ah. beuned 
: bobsease cans oe ae dooroven ‘od it 


SO RF Pie ROE | PART ake 


AN To 





ie ae TR AR ANE ee Ke eS LACM NOL MDT SAN AN SSO, 2F 
wey Th hy q “ , y/8 \d Fite " Ap te ‘ae § AS. » 


BRE ie Oe etre chs ey Se nie aH i di tt ay ie ae G “ae RO 1 aa hanrey Oy ea de we 


ANE i 
y mn s 9 site) Aces 
NDR ark 4 ce eo aaa 1 ay 34 
aya fe ath ge \ t / i apt * TS i i Ke 
ra e , eS | Mi} 
ey “sf r 
a Ay IY CME Ks ‘gh i it 
at mt 
i A eae hes i 
i) % r 4. ey ts an 
A 4, Oe { et " eRe ah a 
a 


fi PR “peli em eR MAM boi tit 


rae ake vd ed 





> , Dray pes in AUP RMN hae Yates ‘iy Saw NaS ty 4a Ht 
eK Roe GON RRR: ine a Rares am “ity RE al Oty Me ene val 


SO Re ving ay ve pe ‘ 
SUM Cy BR ger cM A RAL et 





an, 


Dy 


‘$5 = 31178 


THY PYOPLE OY TH? STATE 
OF ILLINOIS, 
Defeniant in Mrrer, 
ERNON TO CRININAL CORT 
ve. 


OF COOK COUETY, 
ALLIE WSS5c8, 


Plaintiff in Brrer. cr 
9AA 1.A.636 


BR, FUGTICK MATCHETT DELIVERED THR OPIVION OF THE COURT. 


Plaintiff in errer having bean arraigned pleated net 
guilty and was tried upen the firet count of an indletment sharging 
| that om March 19, 1924, “in and upen one Reuben Tyler, in the Peace 
of the said Peovle of the State ef Tilinois, then and there being 
| ‘feloniourly, wilerfully and maliciously, 4i4d vith a certain ree 
wolver, sai4 vevolver then and there being a dangercus and deadly 
| Weapon, make af aesavlt with ao intent the gald Reuben Tyler, then 
and there wrlawfully, felenicuely and with malice aforetiought, to 
will and murder, contrary to the statute, ete." 
, The jury returned the follering verdiets 
"We, the jury, find the defendant, Allie VWaeson, guilty of 
t with @ deadly weapon, in manner and form, ne charged in 
the indictzent. and we further find from the evidence that the 


«Badd Aefendant, Allie Wesson, is now about the age of tren ty 
© years,” 












Rotions for «a new trial and in arreet of Judgment were 
ed and Judiment entered that: 


"It is considered, ordered and adjudged by the Court, that 
the snid defendant, Allie Wesson, te guilty of the said oriwe of 
_ afeault with « deadly weapon, instrument er other thing, with 
Antent to inflict upon the peraun of another, a bodily injury, 
where no considerable provacstion appears, and where the oir- 

' of the aesault show an abandoned and malignant heart, 
pen the infietmant in thie cause, on eaid verdiet of guilty. «** 


Plaintiff in error was then sentenced by the ceurt te 

h ) Houre of Gerrection for the tere of one year and fined $106, Te 
ore thet Judpment he has suet out this writ of error, Upon the 
S the State's Attorney *leeted te stand upon the first of three 


oF ae a ; ee ‘ 
ein the indietnent, ang plaintirr & error contends that thir 








































my $0 anurans or. ona 
pei ter x90 9 


stir Wi ewes 


pins BH qo basdaseninn “ae cma areata 


0 Re 





- ty ‘yp 
Ngee sn 


an foo duno Le Aneapurid aed gakend sort at eng ne th 
guckpuase danas the hs te syne tox ant mays a a 
alll ont at rea node oe aage bam ate r 
anied wand baw aan oh emboul cs v atos8 odie ta ) 


Re ee SEES 


oon ainav09 * se ee bah iwwats haat oan ihe 
een ‘no euovoute r ‘gated onde Sam switd ravsore: 


{SA 
soak todet wedwel bine wit bend 1m debe tioaene Bi pe 


od ,teawoiterctea aocliew MP9 betes whhaahanae®: Pulse: : 


nreoisweyr paseo tet pale howe wton Ytet. a 


to ytilon paomme’ whLiA ,teehae toh oy B22 pewt edt pe 
@i bogiade eo ,oxet baw «ean ak ,sOgPeW — @ dake 2 dav 
wade tact eaneiive gcd coth Anky weadecitt ew ss oemte, 4 
ayers bo age att tueda Wax at aconee? Fettta Syn mm hs 
wie dunyhet te daovte at hae Lotnd wat a tet ean tgoi 
thats Senedaw paeseanat bee 


taey ,tiwad wae yd baghalie far dered , 
te aalto blew att Yo yetley #2 eg 
diw gate tandko ro Fosmytant 4 
wakes - ysibod a ,.wmeurone To were ie 

«i fe ol wise ee ge TOS MLSE OTE E AE Nd 
itand dandy thon ban baited nade aa worn #. 22s To aes | 
*he ,gofive Yo todiney Bias me anime ony as ama 0 “—s 


oT .GOSE hemkt hee Taey eae to mad ond eo i | vidi ha ta 
Pa .vouiere. Se: 9 SNC Oe fo howe Ha en em + 





4 


amounted to an acquittal of the defendant en the other counts, and 
that the verdict is not responsive to the first count and therefore 
‘will not support the judement entered. 

The evidence tented te show that the alleged assault 
wap made at 1504 &, 57th street in the city of Chisago, at the 
corner of Lake Perk avenue, om March 13, 1924, a little after \ 
eight o'clock in the morning} that the proseeuting witness, Tyler) 
went to that place at that time for the purvose of seeing a Dr. 
Gorgas; that the Deoetor was not in wien Tyler first went there; 
that he, Tyler, was.reading « newspaper in the stairway, the 
‘Office, door. being locked; that plaintiff in error, while the 
Prosecuting witness.was, reading a newspaper, came towards him with 
& gupyin pie. hands,.and as he, Wesson, got to the stairway, said, 
Evil, k122, you," wairied ‘around and as he whirled commenced 

Shooting at Tyler;, that one. bullet struck Tyler in the back of the: 


wh; 


nee. 


Prior to this time, Tyler and a brother had a flat 
te F, and the defendant roomed with them from 1922 until about 
Maron 15th, 1924, - just three days before the shooting. Both. 
Sn 3 ti 4 AY >. , 
and defendant worked in the posteffiee, and the fat in. 


= the lived Was at 4454 Calumet avenue, At that time Wesson . 
yal by Tyler of having hed improper relations with his 
Weise s) wife, and Tyler says that he wi sed to send nis vite to 
in Oklahoma City, snd asked Yeasen to get $65 or $75 for 
pose, ‘and he says Wesson apreed to do this, and that ha, | 
+ tdl@ Wesson to ‘give the money to ner} that he Tyler ,aian't 
- Utter tag ‘eonVersation and on the same day Wessun nauea, 
USNS 8 Dot “ive AY money to either Tyler or Tyler's wire, 
| but he 000 PMuantirr tw érvor dante that Tyler neeused him at 
me time in question concerning his, Tyier's wife, but says that 
St that time; told him in ubstonce that he had’e dietaphene 




























‘ss DORM, dient : 
} 3 Lemans begndte wed dasil wait BF Se hosad. onrgteyl 
i nie, ee 4 ogaoat te eidwis Ae ak dome 
1 ae ee ee ee 
| fu yea te waktwaengng 958: tore gh 4th 
| we paleo to ae anny ole cod in (s dart to, wale gost ot, ) 
pemat gate, dart rely? nome ae Fon eee sobwwt- edb: tant ye wret 
sWretete ett ind seman ten a saabeod ante we ri a 

sit edhe peontee et reds agit dante qhesour 4 kod ‘oO E 

Stiw aid ebuewet smn pcoeeee & nalteor hacer ermiedt Bee yak ittivon 
bien ,yoredate woh 2 Bex Asante eat aa! ine sora 
Aewmomnon Seki oi: ee ee ‘paises wow Lh is 
path Ro downt oii AL cody vow ee ste 0 he ha sah 









felt A Bort qa one # hea 4a Pet ode ahd of “aes 





pees fbeew te oe ‘noi et ‘as te ts | snabae Yon oP 
sig a ei a das accied weak ‘weal’ dout” “ath et : 
nt ‘talk palt Gd Sadabineianndl wad ar her ow arse rob hem 








45% «oui bu in, ot reine ans ma ot cys 
cot aohee yah onan wilt tm be ; 


Pree Vf 

Fah ae Pi th 
yee ut dai 
hi Ma ae hee 


ace ; 





af 
AE 
CUD tii ar ach 


bi noans'ts09 o poh bat ptt att font sae 


that if he, Yeason, did not give Tyler $180 by two etelosk, he 
Was going to Kill him, and that he said, "If you think you gan %, 
tell me now, I will kill you now;” that there was nething for him 
feo de but consent, which he did, He says that Tyler asked him net 
te move; that he didn't want anybody to know anything about it, 
Put thet on Saturday morning he tel? Tyler that he wae going to 
Preve that the accvueation was a lie, Me says he wae afraid, ond 
@idn't know what te do; that he consulted @ lawyer, Kr. Feathrooke, 
and tock a leave of absence from the vestetfiva for tan days. 
Plaintif? in errer aay that on the day of the alleged 
Reeault he went to the place in question te aee Dr. Gorgas, who 
Rad been his doctor for three er four years; that when he got there 
he sor Tyler etarding with his back over agatnat the wall; that 
Tyler took down his newspaper and gave him "« dirty look” ana said, 
Wesson, want 444 X tell you to dot Yesnon, whet fi4 I teil you to 
4o?* that pisintiff in errer replied that he was net bothering 
Tyler and told him te go away and let hie elene: that Tyler said 
he was not going anywhere; that he ¢ame te see the éoator; that 
Iyer then cane back and started down the etairs, and before he 
passed where plaintify in error wan standing, he put his hand in 
hie right-hand evercoat veocket and slaintiff im error whirled ona 
fires into the selling; that he used the «un only with the imten- 












wa of proteeting Aimeslf from hams, and that he cesse4 firing 
@fore he had oxhaunted the shots in the gun, 
Tae testinony of Tyler 1a corroborated by othar wits 
Produced by the State; that of plaintirr in error by other 
whe testified in his bebvalrs, 

Plaintify in errer, by his requested inetruction Be, 6, 
a the Court to tell the Jury “that an ascault with intent te 
me r be defined as an attempt made by ome upon the life of 
Wnder such cireumetances that, if the atteapt so made should 


se death of the person assaulted, the person comnd thing 





Bath ie i, Rain Oa 
“1 sieods roe overs ee de 4 sete orks ton at snes soa ke 


a Peay tn 

: ; ® 

.o wed wey satat woy bhon ad anes ban gibt LE ch oS 03 yaten me 
as tot prbitya ear ovale gece * von uey aes hte, 1 Wom om Lhe 


ns na sis, Paka eed hie taut isis of aha ae sie trea SY ee Sn? 





Rusa ins: chee 





i oo ee answ ee ‘tae pony se oat, fea speheerbalh ik 4 28 
| a ‘te, biota ome at ogee of ahh a war, mee Rtara ge oan ald ast par 
paboametrns th, HEL 6 Se thirenon 94 tect pohoot ted Wonk dade 
RW ARE Te? wes Tiadeog ads mQXt ponoita Yo mene d a sng ih 
howe i ie 68 Le gab nF ao Salad shan cromte RR RA 0) anny 
GR isi KO AS foe 08 HOA tOND Ab Qande ot at ney, emt thane 
ons $04 ah moae Jase panKey sak To se BOT zosead, ah 09nd Ba 
ted? jLimw ont tontegs save deed att dln pathnate aay ann 
ahiaa baa “Moat cocth a” mid avay Sad wsqpqeypR wld moroh oad | 
a? OX, fot 1 bib tery ,aomee*® feb of way Ilo? Y ahh tone yi ‘ i 
_ aastteaitod toa gow on suds fntigqas woete. ah Vithatate test” . ‘ 
bias idgeah In vane anetend trad sf oe ane a hes * ot ald _ ban 
“ant progned oat one at saae se tats jerecinyna a Ly gh 

od exoted hoa attede site awob bedsoze haw Aood Preah 
| at baou ote sug “a enaithangs ane tents a , nae 0 . 
| ae bosuhan wont “ath Msaia te hae toro pe daow nie 
; sanamt ae a3 te <tow mast oat peow oa ange tante tine ont, 
otal hone wet gait baw ft not ALoante . alten | 
» sry oe at ators oat hetenates v4 


TL eee 


site sate e baverodoras ot ene te womstent oom 
Co hoa 
ere Nes sorte at Vetsmtesy ‘to todd jee ? 


Ch aa Se Ae, 


; Fa vet ote mt te * 


























ot i aa dttw ‘Sowvon prea 
ty writ ot’ aecat ‘ene ishery? 
oi as es ili oa 
a EM Bs. 
Migs nowneg ode ,Aee: 


" Bg ant 


ae 





the assault would be guilty ef deliberate murder; an¢, te sueteain 
gm conviction wider such a charge, the proef of such facte mast be 
made to the exclusion of every reasonable doubt im the minds of the 
jury, otherwise you must aequit of thet chazge, The cireunetancas 
attendant upon « homicide may be such that the act ia neither 
Juetifiable nor exausable and ot111 not be murder, that ia, it may 
have been wider oueh provocation and heat ef paesion that the kille 
dmg emounted only to manslaughter, If the clreunstancer are such 
thet if death ensued the Killing would only be manslaughter, the 
eeenilant, if death 414 not ensue, cowld not be guilty of an ansault 
“with intent to murder.” The court did not give the inetruction 
ey aS requested’, but added thereto this stotesents; "Sut the 
enfant may, if proven guilty beyond « reasoumbie doubt, be found 






lity of an assault with a deadly weeson with imtent to infliet a 
‘iy injury,” 
At the request of the State the court,aleo inatructed 








}, OF where the cirowsetarees of the senault show an obandenea 

; ; Malignont heart, shall subject the offender to a fine net ex- 
one thousand dollare mor lese than twenty-five dollars, or 
am ent in the county jail ror a period not exceediny one year, 
OF doth, in discretion of the court,” 

Plaintiff in errer earneetly contendea that ln giving 
inetruction and in modifying defendant's requested inatrustion 
, . 5, the court erred, begavee the State selected te preesed under 
. e first count, #hich charged am assault with the intention te 











ahegene of ,deq rmbt shared Kah te whl hag o4, Ado ftunene . 
sf ewes efor" Hone eo Noone ate Wigraat, a tage Koha maltalyege. 
ott a) ot aes outt ak atusa’ abdassonan weve ‘te motaukone, onatt ot oh 
appr tame t he. est agents dans le Mangas Sams 10%. oatwredio «xm 
thedies af dea ome tnt dows ee ahdodmest & aoaR tannae ti 
wow #4 gt parts o Teh Tent od ton ALM bie aLienuars ton, peda, 
me tdat edt busts agianag > dnod hie Rotsanerarg, Hae, eohat set ay 
. sing ete waaadenwaste ede HL. stedsigne fe ae od ne, fos ome: On 
end tigen Seana, ad yhoo, p6ve Pah Lhe ang hewn, tanh 28 te 











hana ag ie Utdaws ad fos AAeg .eueam Pom hii dap th. aap 


Redtogtanad wuts avin fom bib devon age i 
Ne we ie ier st ah ahs Oorumats, bleh ts ARO 









” gone men mo forded at penal ae vy ‘antes ovr 910 
oe Aotsnaovorg eidmsad tenes on en eae owed, yon, # Pid 
benehinads si wore $hines cd Xe boonat esate, nd A rag ie 


ane 1 ee ante 8 ot siscaathd et pow tue oe po 










* ,g1v99 out te 
pateig af dead ‘sbumigaos «isan xerte at ‘ 
aadtouaten’ petaeuyet ot sauteed ja aati wh labs: 





sursencat # be ssyonne peat; yrs hissed + trate ba 
ohne: bemet eda ae gnivoite aegnadnoaenihe. aoe wi sine 
wigan wathes 6 tobim of mals aagat sete tuaoi 2 


The State adwite that inetruction hse, 16 vas erroneous, 
but argues that plaintiff in error wae net injured thereby. I+ 
dees not attempt te answer the contention of plaimtii’r in errer 
that the eourt erred in modifying instruction Bo. %, 

It was, of course, ioproper for the court te tell the 
Jury that plaintii? in errer might be convicted if the evidence wars 
Fanted eueh conviction upen « ovunt which had beem vithdrawn, org. 
over, the instruction was not agourate, evan if there had been a 
@eount charging the offense, Gestion 26 ef Chapter 38 of the Criminal 
Goede, (see Sui th-ilerd's [11. Nev, Stat, 1948, p. 273) states an ele 
mente of the offense there defined, the intention to inflict woen the 
person of another » bodily injury, where no considerable provogation 
appears or where the circumstances of ithe aagault show am abandoned 
OF malignant heart. It iz apparent tuen hat the instruction, as 
modified, vas improper for the reason that it was sot appliesble te 
the count upen which slaintisf in erver wae tried; and even if there 
had been such 4 count, it was not on acourate etatement of the Law. 
AS wan stated in People y, Bliie, 409 12. H1, "a verdiet of guilty 
of the orime dofined by section 9% oowla not be returned unless the 
Jury found a1 the facts which ore nageseary te establish the de« 
fendant 's gulit of that particular orime, The verdiat wut reanond 
te the iasues submitted to the jury, and must contain, either in 
iteeir or by reference to the indictment, every material element of 


@ erime, (Donovan v, People, 215 111, 880; People vy. Lemon, 232 
» 193,)" 








Sor the reasons indivated the judyment must be reversed 
the cause remanded for another trial, 

4 KEVERSED AD REWARDED, 

rely, ?. J., and Johnston, J., coneur, 


“ 


4G 















souueavcee one OL od aghooutd oak jauis | 
) “agente it worsted dea saw ont ah aye tbe, 
a rare at Thitaia a Né eltevdnen sae neve ‘eb 





Peay fi ey 
or 


‘ rata et phe ie Ey ne 4 

aid ties et nwa nae ‘at reqoroat e089 ‘8 genet ti i 
REELED Oe eite hh 

tay somes ten sie ar hedoivnen wd iat ore at Ve tone ke dodd 


hi 3, 
A ABS | Sa Sag 


ssmtaccha Be mand bert Aekue m9 a mom fotos 










saa A Al 
be hh: 


a -it ‘aad Aalaragmed padi fom a bevte 


















“wos 



















Gaiety ey oy si datas Bh He i EU aa Sas Ps es a 
oa ymobgeirrgena aula ‘teste wit firkeen at at vitaes oe 
a7 Ra 
sll akdes tinge fon iw sa aad Bowent ond ‘tot Pasty Symes ‘ 
§ i ¢ 
weet 1 ere aa abeaae aww 2008 ag Vide abe ke io Date moe 
wh 4 0 SINE samt i aie 







wert gilt Ye Somes ab otewone ae on ea a amon “2 foun f 
“a Liang te toitany at 1A idk woe Pe os ot, 
wait ate ton haminsen ee fom hapa, ae motives ve honttoh am 

“oh we dedicarne, of. YRanAegO omy, ip Ate Bigot ade 4 | 
henonex teu dobre ent omen token la tog, ait, 10 ak tte 
al ba haan creat, Pena, at wy se pyc 












AAS 







set ata Baer 










Pa NSLS agi 


SBS Balhae coh } We ie sin ba | rt 
bewrever 9 fowe Sonate, ue tasag tbat aaorees ag be 
: eats pi ik ee 
2 M dante ston ‘ot sy rai 
bia Mae es Ai Be ae iti vg bty) wR aig ea Lay) tea Ppa A hae 
cana aia caBReTRR, . 
wiiehes Cal Bares he a? ARR atin pan ‘Ye. ey nip 
0 Bare eve Pe 


Se RB ATR WR!) SARA GR RL RN OR (A a ‘NO pene 


Y eae 

















i y} sharers j 


Bassonballes Aoae pial) oe aa i hae Heil Se UN | SH cen when wre 












82 - 312608 


MOLLAND COAL COMPANY, 


ration 
oleae Defendant in Error, 
BRAOK TO GLRUHIT CouRT 
vs. 


A. fT. PYYER & COMPANY, 
Corporation, and OSCAR SOLvy, Coroner 
ef Cook County, Tilineie, 

Plaintiffs in Srror. 


OF COOK COUNTY. 


/ > 


BR, JUSTICE BATCHRTT DELIVUNED THE OPINION | oy “one coun. 


2 4. 7 a A tes rey | 


Plaintiffs in errer were the defendants te m bill in 
Squity filed by the commlautnant, Helland Coal Company, om August 
19, 1074, They seek to reverse a desres enteret by the Chenemller 
after hearing ad upon the bi11 and anewer of defendant, Velfr, ae 
eorener, plaintis? in error, A. %, Pyfer & Company, saving been Ae- 
faulted for want of am answer and the bill being taken an confeased 
an to it, 
“—_ The bill avers that on July 18, 1924, plaintirr, 

6 Coal Gompany, resevered a judgment at law against one 
Peter A. Olsen for the sw of 91325.54, whieh is unpaid and un- 
Satisfied; that cemplainante sued out a writ of axeoution on 
this judgment, on or sbout Julg 71, 1924, directed to the Sheriff 
Of Cook County, where Gleen then resided; that the Gheriff made 
& demand on Olsen; that on August 7, 1994, comploinant filed a bend 
wits the Sheriff of Cook County and direeted a Levy upon certain 





Property of Olsen located at 6620 North Aebey street, which 
property conaisted of flowers, bulbsy plants, ¢te.; that the 
or tr took possession of this property belonging te Pater A, 








Ls and hela Possession of the same up t& Auguet 12, 1924, when 
: | ident A, T, Pyfer & Company filed in the Superior court of 

ok County & certain writ of replevin; that the coroner, by 

ue of this Writ, dispossesce’ the sheriff of said property. 
‘The bill avers that A. I. Pyfer & Company was acting 











| 

SORLE = 
eee owt Ah Saabasted 
i tateo ROMO of KO aeons wi 
| i ee ee : Wane emer 
i one | ononed “Lay jaan ano «J 
a. as Ci es ey 
yt 4 torn ak ethisi aes 
} Mg Ree TRESS | ahha 
1 ; a ToS we. 0 aorKE4o ane mR a8 remtaN te 
HI Wi Ne iy ‘ . : 
| ih hee * od esanbyetes ocd enaw torre ab it. ae a “Fiat 


he 





Sncran aa Nimgnod Lead baaklel ,onacbe Lesion std ye SOeY ye 
‘i todioonast ant ud hevedue aaah a; Winnie ae ane war * m , 

ee, Pele® sSonben tab Sq teem howe bkes ost mca ‘need sa) aa 
em ased yahvaus a NGROD & wHTYT A storia ‘ad Tddate te, 
hanno rane aa mudat gning Likt ont dae womena 10 Ro, tee : 










 Meatalate AR ot chat, mo. Pagid arara, wt OM ici bak 
wao sontoge wad to tomswhet a pemeveoyt , mam 

eter baw. bien oi ap icy PO BSELE te ave, ont oat 
a nell nokinvense to ae * due down atarite Lamon ,. 
Warec® eat? of baboons, APOE, £8 aes tuade 10 ne a tes 
mies Thbsswte eat tmate pheblanx acd ane.6o exeste yx 
baad 4. neces Pais Lemmon ser A ileal ao dens Ane 
Adatsos seme WOE @ RACoOREE fre vowed 1000. 26 3 La 

she deter stentte waders sah « Saris ta sag lh 








a wet oe nahasated xamoqene pina, a REN, | 
sone 80 see does gua ae ae ‘ora rere ‘te a cn ia 
™” fuee sedan qui odd at bos yh gamete * ; ” ou 
“ed 9 ROOT OO eutt sont shoe 0 te. thaw Pee ty 


sUrteget a flea ‘to Tinea oma ‘Pasaona saath “ mot 
galinn wer yangmad A soryt .T ” tans exes rie ‘wit 





fim collusion with Oleen; that A, 7, Pyfer & Company had filed « hound 
ef $1,006 with the cornmmep; that the value of the goods wae much 
in excess of that amount; that the property wae of a perishable 
mature; that Pyfer & Company claimed te have o chattel mortgage 
made an‘ exeeuted by Claen ag wertyager and recorded in the of fice 
of the Recorder of Deeds of Goek Cownty; but complelaant was unable 
te find any reeord im said office of the same. Complainant repre« 
sented that the exietence of the mortgage was doubtful, but if it 
414 exist it wae civen and made tor an invalid er past considera- 
tien and as part of o purely evlorable and fraudulent transaction 
for the pursese ef enabling Olen to evade and scirewavent the 
proeeen of the sourt wand te enable the A. tT. Pyfer Company te 
hold the property a trustee for Gisen; that Pyfer & dempany, after 
4iepossessing the Sheriff ef Cook County, sold and dienened of 
eertain of these goods and chattels, and were attempting te eel 
or @iapose of the reset and reneainder of them, whieh if eoneuamated 
Complainant would be let's without renedy exeept @ suit on the bend, 
fibed in anid repievin euit, <  wiieh bond was totally inadequate 
either te setiafy the Judgment or compensate the ameunt of the 
Ge04s and chattels of which the Sherirf had bean diapoeneaned, 

The bill alee alleged the existence of certain debte 
@ue to Olsen, and that he hed an equitable interest in certain 
things and actions which it asked might be applied te the judgement 
against him; that he was beneficially interested in some real esq 
tate, chattels, real er of some nature or kind, ete. 

The bill prayed a full and complete diseovery of the 
Property belonging to the defendant Oleen; that the 4efendants 
Olsen, A. Z, PYyfer & Company and Wolff be required te answer; that 
the defendants Olesen and Pyfar & Company might be enjoined and reo 
strained from eeliing or disposing of the property of the Judyment 


debtor; that a receiver might be appointed, and for ether and 


ier Peltor, 





heod # Sekt? bel yaeqned 4 astyt .f .A dads [Moll Ktkw wohahiog. % 
dow aew ghoaoy att Lo outev ess tors yamesen oil) Hh kWw ‘ood, ke 4 
aktatebing 9 "Yo wow yYrtoqere wd dass rinwemn teat tm preeee 
agaptrou Lattats » eval of bomlele ynoemne bal rong Pott, inpeny 
oltto est al Hehusney bum topmy Mtoe em wea Lo we bodeoenw ‘ban & 
olin: saw tanalatqnos aud sxsaved 400d to thea’ to xéitecen wal ’ 
swtaer SuaateLomee saeikh wilt Yo Ooltie bias mt beweet ae pant @ 
3é 22 del ,twtedweh aaw eyed com add "to sonetobee of inate tm dom 
catebiaage desg xo baterat ne tol obem hae mevtg saw of tate ee 
aolsoeeiwa# # eve Lashasa ban gidaroloe Yiotwe «, te tag ea Dee OJ 
eit Inpvaws tts hae eheve of redo antisane te enoacuy wit ™ 
i of yasqno HOTT .F A ott ofdamm ot baw siuge os% Ye ane@eN 
sos2a ,yanquod & sedyS Sous juoeLO cet woseuee sa etteRM of i 
Ye bee ven tb hie blow ,ysenrg' #000. to Bipe@ ont yatene ve i 
“tee ef ankiqamsia axew hoe cetebeee Ban ahoon paste toy be ; ee 
be tammass one ae Hig attr ote te tehalouny ae tees mit? te oene | 
sdeaod ant ste ote, * SOOKE Dy sndaudall tyedate, suet ad. Bawow. donnie te 
ie xltnser fae Betod a kw it, 9 Ae ahvetans., bine at 
\ ante Yo fmvome gd? efeemrquas. x0 doar het, at vhedtas, of 
 sboanensageth aped bad Web ae eat vie B xfs te whos sade Pilied : 
aggen ahedren te sommtulns or? begnst, Wks shag Re ai Y doa 
ntadxeo ah frevntet odes ipo, an bod of, taeit Saray 






















ote oats, xe reuten onee 0, x, as tim 
ens to yrereanis age kamen fests con & bageng, ai 





“9% howe bentebiae o é tam 9 tun gia o ‘etyE ban ame 8 ty 
damanytert ode te ydteqany we te Bakeogn th xo ware a 
| be node 50% bas ~herahonge og tage TeNkeD eT tesit y% A 





The deeree recites that the court, upon scnsidering 
the evidence, hearing the arguxents and teatimeny taken and heard 
in open court in oeppert of the bill of complaint, finds that 
it bas furisdiction of the parties and other facts alieged in the 
bill ae to the recovery of Judgment, writ of execution, the levy 
by the Sheriff, the replevin of the goods by the Corener on the 
filing of a bond for 91,6600, and the diepossession ef the Sheriff; 
that a receiver was appointed om August 271, 1974, and made an 
inventory of the plants, bulbs, flowers, @te.3; that the chattel 
Mortgage claimed ag a lease on the vlante, flewers, bulbs, ete., 
by the anid A. 2. Pyfer & Caonpany was null and void and of no 
force and effect aa against the execution and levy, and that 
Wolff as corsner, ond Pyfer & Company failed te return certain 
plants, —_—s bulbs, otc., te the reesiver, in the amount of 
$1,350; that the reeeiver had reverted and been discharged; that 
the complainant Holland Coal Company was damaged by the action of 
Pyfer & Company and the Coroner to the amount of $1410.45. 

It wae therefore ordered and adjudged that defendante 
Pyfer & Compeny and Osear Yolff, coroner, should pay ever to tha 
Glaimant the said amount of  92420,48 and the exeeution should 
fesue therefor, 

Plaintiffe in errer contend that a court ef equity was 
Wholly without Jurisdiction under the facte aliagea in the bili 
ana feuna in the deeree, It de urged in the first Piace that the 
‘Return upon the exeoution, iceuet ae set forth in the bill, was 
Wholly ineufftectont to confer Jurisdiction on the court fer the 
“Feasen that it wae net returned unsatisfied in whele or in part. 


: Set (see Callaghan's Annotated Statutes, 1924, chapter 
al thers might be werit in thie contention, That section of the 






If the bill had been brought wnder Geetian 49 of the 


merely declares the rule which previously existed at 























 gaitebienen coon , tua at deult enbisex sagegh, af, . and se 
ioed dae selad gacwiveod hin edaaanay se melt wath aoe Goines . os ‘a 
fad Abi ,taetgmes le Lid ert te dnemquee rt, dewron mes 
ad Bh Saget adao® teil e bom aetioter ott Ie apdsekbedawh: super 
ered ono ,aolasoemh te ciccw ytomunerh Bor CRO OOP, wae, oR) Mi 
ent age meaetO? aid yd abou alt o-stva sors itt tune 9b 
{Mitre add to aglaowecge La acd one ,000, 86 tet mad a he 
ns wbeM eos MOL Le duced om Detmdogqe aawimevboveria | 
sagdade sth tats 4.085 ,ecowolt ,wihat _weanky eae 
yw ‘lildieaiell eeraakt. danke ade me amaed ee Bak heomnbar £ a 
on Ro hap bier, bon Siem aew yaad & geet ok Man ot 
soct: hor yyvad fie solteoee add teskeye ae dene Rt ie 
Riattes ameter at iokiwt yomgies A te"byl fae. creases oY 
bo ‘Sraponbes ait Ad, Savknoen Rat OF y cihe ( @iled BIO WOLT 9! 
fast jdearwinnth awed fms hod egy hut tor Loew watt, davis, 300 ss, 
To medves ed? yd Me_emed aoe tasqned: #90 dnadioh fatten 
or ee Kaeted wad haw cmages so 
shanti said bewbul ba dae herebte exo'temests ann te, whan. a 
ent ot tare gag bivedla, promote ,TLLOW «9080 Aan. enon 





hisale AOAGORe Ons dae riche bine act Sanmind 


ear A adel te twee @ dead fede towne ach. areanat aa, iniate , af 
ELS att ni hogeLte Btoet eel tehon oly the kurt Saad 
sea daeae nr ice aettharthuaatlan we omben sth it 


fig at te eLete at pal tebe oe anereyeon _— mahantl i 
orld 2o OP sodued "tahay tuhssscr stood bangk ARE wilt wile ih: aaa j er 

ndgosto REL saturate hadasannd wi 
oistt: hee stake dash tobe aw2 ces ho an stem ot 4 


eoumon law, an¢ it is ne doubt true that the rule was that the 

party complainant suet, a8 a condition preestent to obtaining 

relief in equity, show by hile bil] that ne has exhausted wholly 

his remedy st law. This in the rule exprasned in Firet Hetiong) 

Bank of Sioux City ve Gage, 7 Til. 207; Durand & Co, ve Gray, 

129 Tll., 9, wd many other cases apen which the defendants rely, 
That is the rule applicable where a Judgment ereditor 

Seeke to reach and have applied to the satiefaction of his Judgment 

the equitable estate of the debtor. However, as the complainant 

here points out, there is another Line of cages which seems te 

Peoognise a different sort of ereditor's bili, im whieh, it ie 

gaid, the creditor ie net bound to go quite eo far as that; namely, 

a bill where he simply seexs te reewve a fraudulent encumbrance 

gut ef the way of his execution, The distinetion between the twe 

kinds ef bills has not been very clearly defined, but it seeme that 

in this latter clase of bills it is uwoneceesary to ieeue on emecu- 

tion prior te the filing of the bill, Hijier ot al. vy. Devideon, 

$B @i1. 918, is the leading authority as te the equitable jurisdic- 

tion in this kind of bill, and the doctrine there Inia down has bean 

follewed in many subsequent cases, ae in I 





162 fi. 625, where the court said; 


"it is first contended that thie is a erediter's bill, and 
that it econnot be browzht until after the return of an execue 
tion . It is however woll eettlied by the decisions 

or 8 court t a bill im equity te reweve a fraudulent con- 
Veyanee out of the way of an execution may be filed as acon ae 
Judgment is rendered, and witneut waiting until exeeution is 
returned, We ce aes 8S + on ‘hf 5 Gs r 17 Til. 2al; pi PETE. NAS 4 & wi 4 she. “ton “ee 
$2 Thi, 98; Amick v, Your Vi seor 











It ie next eontended that the deeree must be revereed 
decause service was not obtained upon the Judgment debtor, Olesen; 
mad Spear vy, Campbell, § I11. 424, and Johnson v, Huber, 134 122, 
wu, are sited, 


a 


Pg Ye do not think, however, the judgment debtor was in 































“eat $a8¢ wbW oder nste Tag ond ddwOs om OT OE Saw peed sommes 
gainiadde of dustepene hols Minee @ Su seme Sanmte Cened M0 
Leseith betewnttte el ea dade REIT wht qd wae ee Mipe aR INCE 
“fears wt siotaleaiaas lanl oken eae ah ohne’ ‘ste Se" anieane | 
th woe Peat pYoR SEE OP logae yy ae 
Abie asian’ ‘e8d No hsw gegu asaet tedeo ‘erst pie orn tar 7 
tei tbe taaagjbert, & supa elépok ings oket bas ek Past » Ye anne 
topey het ott te aehteate ites oss of bebteqa wad) nn’ Moaored | 
Sin als feos PHF ee  twvewol ,tosteb oad Lo winded added dupe 
ad sued sig heir wong “ko outs *oxvorm a2 wrede Vows. nando 
eh th We hite we (LSE Weed ehOX TO 08 finoce Tk a oe 
eekemen ptm wo Get of ot hep og OF heared bow ef” xotibore eat" —s 
Soncidiagiie tim kobwott 2 wenn gt aivek ydqunte’ 6 wxoite i 
eet ont saaited noltentaety wx | sitobnrbexs wht YO yaw sae Mo oe 
basse wane #2 ind Hed eEeatD oa inet Hin wit Ne oa 
ane omo oti vast ro pecan oo St wsTtd Ye wile” costo hw . 
pve. sis ao xe tra Jttid’ bad Yo yan rey ad wd 
«othe tewt etdes lupe ed ad om et trodten pathaot | oat? ot om 
aged wast stoveile bial eros ote took one Nine | «ttte ty nat ea y 
SIG wt aw ,vowso Savewlbude You he Bowed é 
| ibiew dame eri? amenity yee" ons 
af hin gf er aedtia's ‘* wf Wet? bans bowie sivod bri bdo i 


ot oat sedtu Lhiay cf “2 
wa ? inkoat > ged beltvan ‘tan’ : waren ah a * 


rouer"l # ayowat of thepe, as site, Oe worry) 
Wa a fo ie Fe ae 


: cate ee, ie es ‘ 























bentevo% od tun aotaeh ore sic dvd ‘deen en gx" 
"yanwto , totdeu pwnage al fer ‘pentards ¥ ott Baw ‘votvane © a0 

My iy! oem : ‘hee ay” foe ‘ial eee” 5 B 2 ey? | 
Le Shit Laie ane Be ina ee a 






this case an indispenesble party. He would have been & propar 
party but was not 2 natessary one, since the decree does not 
purport to wet aside any conveyance made by him in which he hag 
given covenants of warranty. Quinn we. Feople, 146 Tl). 276, afe 
firming 45 111. App. %47. 

The defendanta, pleaintiffe in error, eoint out that 
material avermente of a bill in equity which are nelther admitted 
ner denicd, mast be susperted by the proof; that the evidance muet 
be either preserved by sertifieate or the deores must find speaifie 
facts proved at the hearing which ara prime facie sufficient te 
Sustain the decree; that »here « Joint decree Le rendered ogainet 
two defendants and there are no allegations in the bill uven whieh 
the deeree ie found against one, oF proot sgeinet one, Lt must be 
Feversed aw to beth; that a deeres pre contegso aimdtoe enly the 
faets properly alleged, but not that much facts autherize equitable 
Pelief, or give the court Juri adiction of the subject matter, 

These are elementary proporitionse, whieh may be conceded, but which 
are, we think, wheliy inmaterial hore, sinee the finding of facts 
in the decree and the sllegetions in the bili are, in our opinien, 
sufficient te justify the relief granted, 

It ie further eontended that the court erred im re- 
taining juriediction to determine and settle purely snd eolely 
Regal rights, and 44) it is urged that in entering « money Judg~ 
Bent the court deprived the defendants of their constitutional 
Fight of a trial by jury, Brauer vy. Laughlin, 235 111. 268; 
Taming v. Aensie, 27% Il, 132, arg eited aud relied on. 

We do not think that there ie any controversy ae te 

he Tule applicable in suck a ease. If the equities appearing 
) “are insufficient te give the court jurisdiction, then « court of 
Mquity should not proceed to give relief upon a purely legal demand 






‘That, however, is not the case hore, wince the decres finds that 


Pai onder ten gile dud! Wed od ee BeetoqeMe od ten 


dade ae bolneaan of yaa Ho dit jaabderaogey eieditenet ree 


x sensei tics’ AY oes Cae nite ae Wnt Daye th’ oat salty 














Wage a Roee was biwne on eitew » fit wn avoga 288 aif’ . ae . 
of eet ‘oo ted weit goute .eae trasedne 2 ‘fou 8 ae dud 
wnt 44 vt tie ‘BL mht ee whan : ait Yas ore pied : 


okae as hee wh a f si by ® AA ata Weale 





pair 





dont ee Yulee Steves al etttoalale pen ae 
Sweetman eititon ode Motte given at fftt a te sieeve 2 fn be 
oitiosqn Swkt deem seeds os xo eiaol tise yd bertese oy ea 
od tau is et'tve pide? aaitrg eso vohde ‘gaisaed edt da beaver 
jeubaga betetred af nevank daiot a ” weente! Vads joouseb as 
Pe ene Lee re en ee ee 

of deo 94 (ban Panlops Tooke Yo jdad Pvataye’ awe ot oonoeb 
ad Glue etka genataoy deg oomweb w Yeas yaeed BF da’ bon 
EMRE RS sehreNtwe wHoo't owe tame Fou tu bebo tte yekbqorG 
° Seeger wee tee atte Ne ebahs the Birt duizbe a oWhg’ Xb 
























earns Ye yatonrt et} eoate , snr fete giedead ehtotie , shat 


dosing’ Voiitee bith" Cidawt O98 a r 


aot at howsn dinrom orlt tents ensii beset bles " iheilllndisiat 


“gg ae grin etree eek WP Be vin aig * ‘bie er Pray 
errr Tr ae wdas 24¢8e, ‘a 

to Mehes ands. Jmotaeane sare set - wad vty of da ho te daiea 
daeas Lenol yLouy # moaw Wohiox eviy o% baeoerq son 
toad wbakY swtnoh with soate”{ va ve ‘ttf ceovored 












. } chattel mortgage, under color of which defendant a, I, Pyfer 
6 @iaimed, is mull end void, Having se decreed, tas 

yur of equity sowld do full justice between the parties by 

y ring a juigment as at law for the valua ef the property 

Ae J has heen wromefuliy taken by means of a replevin writ 
ebtained by filing on Anaiequate vend, | 

: The deares ie just and is affirmed, 


Sure’ 1, P, J*, and Jokneton, J., concur, 






















M a es % 4 44 te a My | 
Rad jin the: yg shail the’ “ are ee ‘aie Iabes | 
n ran ite ORINDA Meo We yd if wee t esi VM 4 We nt it a fos We as: ota wea ay h. ‘aint Ma bake h yey) 
ails was rtd ey” os day t 435 ‘nt ed 4 | pce aay i 


Lit eaten thn 


ce oh! Roh has oh @ i’ ee Laake pier as 











ee ae Hy a ae hay y 





is Ait mays ah ra ey bh} 4 ha pene 


CH ROR AT ele HOR te a pit 2a ind ong” Bil it 





ee ee ee | va i. 








; Kees” we tipetya wdlge?s an a the bBo tot othele Ly 
onal “aielsna GY Ty. Ie Bak Gadin ‘sane’ wi 
wis ree bat anime ie “soak kes ute i sae tied ; | 
sietcia te shoal i soa keke ade ne wmes Haiyd t.th oy 
: sbisnalce fay Hag will” 
| oye ww RAE HopKONY 
SCRA Ra A lal ee 
(ene m lee ee 
- Aik tare, ‘ga habia 1 
G4 82 YOY Webhdadeaaies “pip bo we i 
Pe a a | 
| “hee Rm mh Ah al ono : 


101 + 31230 


BaB DAVIS, 
Appellant, 
APPEAL FROM SUPARION COURT 
vs. 
GF COCK COUNTY. 
MISSOURI STATE LIVE 
INSURANCE COMPAKY, a 
Appellee, Sr aay Waa op ey 
2441.A.63% 


MR, JUSTICE MATCHRTYT DELIVERED THS OFLAION OF THE GOURT, 


The plaintiff broweht suit ae the beneficiary of twe 
Life insurance policies fated July 28, 1922, for the sum ef $5,000 
@ach, itsusd on ne Life of her deceased husband, whe died on 
September 7, 192%, 

The defences sleaded were the general iseue, smd that 
the policies were never issued, never beawws binding policles, and 
that the first premium was never in fact paid. 

At the close of plaintiff's evidence defendant ree 
@Quested an instruction te the jury in ites faver, which the sourt 
gave and mitered judgment on the verdict returned in response to 
the instruction, 
‘The eontrolling question im the ease is whether the 
 @ourt erred in directing the verdict. ‘The rule te be applied in 
| @eoiding that question is well settled in thie state. It ia errer 





to give such an instruetion for a defendant, where there ia any 











evidence from whieh the jury could reasonably find in fuver of 

the Plaintiff, and in ruling upon such motion the plaintiff is 
entities to the benefit of all the evidence in her faver, eousidered 
| in the arpect mort favorable to her, Likewise, the plaintiff is 
e tled in such case to the benerit of all presumptions and ine 
which may reasonably be drawn frou the evidence, and ven} 
" story evidence or explanatory circumstances in evidence should 
' Fejected. (MoCyne v. Reynolds, 283 111. 168; Hunter y, Troup, 


15 Li. 203; v . Cent tt. K +» 226 Ill, app. 854; 


4 Song 

























: RHYGD AGLTAR MOM JAMA ; 
«PERIOD QAO. . 


“seg ime BES 


{TH0O Say %O nOLAIGO ay cami isamninre stmt’, 


owe Be ‘indo dren d erie ae vine Siawend nidiindlinte’ eat 
Gon, 23 ‘ta meh ons ted ,RHEL .ae ydet hoteh aetodieg soanerenl 
ae bolt eae »bantews, penance wos, ‘ya RAL at we ewan d , 
oPROE hb : 

sath be — Lareamy oct etaw Dobaote Beene toh ll 





ui pipet r ic 


biag tent of Wwrea wow myinexy tevk't <a 
“ot taoban teh sounkive st Yttsatate Ya eeoke ante aa a 
duwrae ost olde ,towat si ad yout eds of neksouveuad 0 | 


) wi ‘bens od ot aLue ot? BOTS, Oh 
aotse ab $3 setade elds ah boftten Liaw i sokbeany ‘sae 
eae | at erent erate ,~tnadonteh a te? aaktorstent, ma ® 







at Yr tale te an? oohveu dove soqw galtes a bas qineeaia 
horebianse ,tovet ton mk saoohive oat fe Yo od dind ane of nore 
gi Vilsatete ast walwedid sued oF efddrovn't thom foedgne & : | 
«uk bam otoltamuwotq Sfo Yo dttened wae of ened Mowe wh a. : 
atom ew avneunieon ond mott amemh wet i mga "ae 


Eastern Yermers' Grain Co, v.. Yernandes Grain ¢o., 2%) I11, App. LO®.) 
Could a jury reasonably find frem the evidence in this 
reeord that « contract of ineursanee had been in feet made? In 
considering that question, it ia coneeded by the parties that the 
game principles and rules should be applied as would be applicable 
in determining the existence or non-existence of any other contract, 
The facte 4iselesed by the avidenece are as follewa: 
The defendant Life Ineurarnce company Kae ite home of- 
fiee at St. Louie, Uiasourt. At the time of the transactions out 
of which thie controversy sriees it was represented at Springfield, 
Thlinois, by one Y. DP, Stacy, general agent. Om the iSth of 
July, 1997, at Oreatur, Tlitnoeie, Arthur Davis, the deesased hus- 
band of the plaintiff, through ’r. Stacy, mode an appiieation in 
writing for two life insurance policies of the Ordinary Life Non- 
Participating Pien, the annusl premium upon such policios being 
$309. The application stated that the applicant hed not paid the 
agent anything. The application further provided: 

"(e) That if the first prenlwe for the insurance nereby 
applied for be not paid te the agent at the time of waking thie 
application, or if the policy be ivsued for a less amount or on 
any other plan than that for woilch this application is made, the. 
insurance shall not be effective witil the policy is delivered te 
and secepted by me and the firet premiua thereon setually paid 
during my lifetiae and centinued in good health, but upen such 

very, acceptance and payment during my lifetime ond sontinued 
goed health the policy shall be deemed to have taken effect from 
ana shall bear the date of approval at the fiome Office or other 
date specifically requested by the applicant, on which date in 


ny year thereafter eubsequent prewhume will be due and pay 
e. 


The application wae examined en Iuly Lath, and because 
of faete disclosed thereby, the company segured a further partial 
examination ané declined to ineve the poliey ae requested in the 
application, but approved it for “hat was known as a Table IIl 


anise, Yorm A. policy, with no extenied ineurance and for an an- 
—~ Premium of $437.60, 


yi 
q a 
ey ee 


Twe policies of this kind were sent to tir. Stacy, 





ee ee 


— ln oe. OS eer 








{802 .oqs .ff0 2 ,.90 pins peponoset 7 00 abort Cine. 
aldt ot senebive edt next batt damoneot copy" ae 
at %ehan test at neod hast woaert ead Yo tomttace « sat “eons 
ou judd dokdcng 000 <t bodeones at th + tolseouy saat a Phe i 
ofing? toe od bivow ox hetlogs ef biwode we dit Sas ‘Gildiontre ae 
Soartean mite yaa Ya foteiaixeaton 16 gonctaixe edt yatalaretod r 
tawalier ee ein aoaohtve odd ed hovelonth ateat ox” it 
«te eaten wat Bast enenee wonerues) wth toubasted ont 
ture natok tome wnat ade te oat pas 1a vhtuonadit | attyod 3 +8 ta el 
bLwd gates de ha gmonyz ges ed a aontta yerovotrnos at At Ae ht 3 
te wGl es? wo .tuoge Levensn: ,goet® .@ © mits Wage ont 
_ sana Desneneh off ,elvad xutdsa sohonkeet, tad ased, ss ater an 
wat wobinn tique, se alam a eoore ad Aeros aha, me, 2am ti 
pee @LLt yrankheO wt Ye goto hog. fovenuamt eR ows rt sot nat rr 
gated solatfog dom soqy mlnatq Fao crs ane peeve aise 
wait blag dors Fos nee thagn one Sanat botage moninn ie we ast ae 
; woveneinine oh OR sway oat neltaatiegs ext AMF san : 
wred enamine og “ot. eurdoerg sa2t't oxid as vim : 
rom gr somali yy set Bouse ad’ yeliog aad tt ie. no bee 8, » 7 
wit (obiia ot meliead tinge eldar poke eet tad ais wees 
ot beteviteh wf tee ie etd YM he: sriape tty od pelle Lap uaimabiab: 
pind ar ee winch be boos gp Bos eae gr Kenpod eth Bi 
Saeet feet See eae ‘it inod be 
gosto <@ GOLTED omol! wl? “te Love eae ie tinct & 
mild cs heveauper yi le 
sean “gat 





















ai gtat dolsiv mo , demo Ada 
vo hile eee oe CL oie en 


fauened, bien 9 MORE xiv ne pomrenny oem mn, nakpaeshinn oft at ie 
Lolting Tadd? & bewnan vieunes 9Ae a xdanel weet 
oct ah hotnonpet ae qwrLog eid, eerend oF honttonh, dae mn 
ELE altel a ae meron, ae, tate 0%, Oh Raverana dud ig aie 
ne a toe baw, enneesand, aieaeniuad sentin ns sa okt 
— 98 1008 9 





oe te ate a ning et ee 





general agent, at Springfield. Defendant directed Mr. Gteey that 
the policies must not be delivered witil the attention of the ape 
Plicant wae cnlled to theee changes. At the time thet Steoy teek 
the application for the insurance he aleao accented twe notes of 
the applicant for $109 and S200, respectively, which im the agere- 
gate represented the anount of the firet year's premium on the 
policies upon the basie on which the spplication was made. It was 
the custom of Stacey thus te accept notes from applicante for in- 
surance, 

At thie time Arthur Davis was in the Shrine cireus 
business at Zort Wayne, indiana. Thies business at different times 
during the summer took him to Springfield, Tllineis, and Deeatur, 

~Tllineis, and the negotiations with Stacy for thie insurance were 
Garried on at these places, While these negotiations were pending 
Er. Stacy met Hr. and wre. Davie at the poeteffice in Deeatur and 
talked’ with them about this inaurancs. rs, Davie said that she 
‘ 4idn't think that Mr. Davie could af'ferd it right at that time, and 
Br. Stacy replied that it would be all right, eaying, "I will take 
4 Gere of it. { will put the notes in the vault and ne one needs to 
know anything akeut it.% re, Davie 444 not think that this ovght 
= be done, and she told Stacy that she didn't think that kr, Davie 
mons give the notes; that she wanted him to pay, if he was going 
S take the policy to take it up. ir. Stacy said that it was pore 
ali right with him, that he should take care of it, and that 
Kr. Davie could not pay up right at the time when it wae due, he 









renew the notes. She anid that Mr. Davie should net pay the 
out; that he needed the money for his business; but Stacy 

| thet was all right, he would take care of it; he would put the 
in his vault and send the money on to the company, “He said 
@ would take care of the notes and keep them, Mr. Staey said he 

Weld take Kr. Davis! notes, we sald he wanted to take hie notes: 




























‘tant woah tH Dednexth fanbase “bio Pgaheat te “stamys | 
“4s add ‘es mottin tes anit it tw netevE tod od ton sous eo lott i 
toad yond taza ames wie ah  epainats onoutt ne. Dette. saw 
Me eatee ont bedanonn on ie at soamnennt ost at motte 
“Hae ial we Ho bite Uevileonens 0086 Seca core wo? a 3 Legs, 0 
ont ne ma asa 2 a” THe y fount sg cd Hues eae detgooenges et 
ase at ere! ane nettao ttage ers tip bets bie atend wae as ae teds 


“nk ech pdewetican ox aston sqnooe 08. eustd ae. ae ' : 
“ gworts oute out ‘at tow “alye dt oe ane ek sel fn 
soaks upto VEDA fis svontaus aed vasa tbat soya sxot a Biss, 
-tudaoet ete yetontict  Blortgatzet oF abe How? temawe hema yf tees bar 
orev pomiuvead © hss xt wore nbae auoitetsoyen oat ne 


pulbave orew waoIsivogon ouems ene : sae00k ouons 2 


Sony 


2 mee n 
baa sidaoec at vo frtotaod ont ad alvad eth bas . mm foe Rees 
| ou tana baie’ eyed aati soonarwect ene snode aed oie es 

Saw oto baat od digit vi bros Sivoo, aivot i toa Anta, 2 
ont thtw et sont «tty Be onal ahd fiver $8 test be (oe, yaa 


of aheost eine et bee O Lise one ak ee don oie bball m2 
tye wait esse ante tow hae wwe one: Ad sual ad : 
wbves tail wenice 2 rt: oie sets wowes tee sia ny 
yet bare at ae ‘yee oo wate asda oie todd “yeeton | 
<9 wow eb suste bik pose, ae ee 2 ‘tes oo wentog ody 
basis ie tt te otoo ony b duvocia wel daseid sate oa} ed ‘Satya fhe 3 
on vent ane on ander oane ouit te igh qt we toa. Meo aivad er 
oe wa tos bdwosie atvat “Ui tnt hao ola anton ae ‘Shaty, : 
| wenet ‘tud ‘sunomiawd ala xo canon ous bebvon oxi "i on dasld pone 
ont tq bixow oa wh 19 orn. “oaad & hisew ‘ot tis Le e a 
bien ei .yanqmos auld o¢ a0 cones od} bags is tua ala a 
erommener mre coed baw esdon oath ea ee aad oe 


nr tonial es ai ak Cie mre 
‘ane eh ound ‘ot pee ah biae a” ws Vg al 


oat 


that Hr. Davie didn't know to whom to pay it. a would take sharge 
ef the notes, We would renew them and give Art a11 the time he 


wanted." 

Porter Y. Pemberton was engagedt in the clireuns besineses 
with Arthur Pavis. In the summer of 19292 and after the policies in 
question vere in the hands of Stacy, \r. Pewberton met Stacy, whom 
he knew, at the railread station in SevingfieLd, Tliinoia, At that 
time Arthur Davie was in Chicage, Mr. Pemberton saye that at that 
time Kr. Stacy told Mim, Pemberton, that he, Stasy, was going te 
Port VYayne, Indiana, where Er, Davin was to atage « Sarine olireus. 
‘Pemberton told Stacy that xr. Davia was not in Fort Wayne at that 
‘time; that he was in Chicago, and that if Stacey wanted to see Mr. 
Davin he should go te Chienge. Stacy replied that he would not go 
te Chicago; that he would ge down to Fort Yayne where the oireus 
wee ana see Davies, 

Stacy ashed Pemberton at that time if he, Pemberton, 
war geing te see Mr. Davie when he went back to Cuicagg, and Peme 
varton told him, "Yeo." Stacy then told Peoberton te tell Mr. Davis 
that hethad his insurance all fixed un for him, The only difference 


wae at « higher rate 4ue te some shortness or overweight, er somte 


s 









te thet effeet, wii that when he came te Fort Yayne he would 

. the matter. Mr, Stacy explained appremimately or presisely 
he difference in the premium of the policy te be lenued from that 

| +" Stacy told Pemberton “te tell Art” (meaning or. Davia) that. 
‘ The next day Pemberton saw Davis and teld him what Staey 
1 woia and Davie replied, not in exact words but ewbetantially, 

it was all right, and he wan glad that it wae fixed up. Pem- 
alse told Davie sbout the other arrengements that they 

Stacy an4 Davia) were to meet in another place afterwards, 

+ Davin said something about fixing up a note as near as he 


Ld remecber it or understand it; that he had given BAL Staey 




























pptade. ied Aironet «fh waa ed wome of wat, nb atvet at 
oe wnat add Lin 4d ov ly bre med weno bhwew on “et 


Romp wpat a 


ab ne ivitog ga xefte bas ener 1 re tna ‘ods - : gore" vw 


ANG Sep a 


neler eet Pet sos rodent es coast ‘te absunst ont at orew 
i Bs aes 49 


pans gd .atoalist bhoitgat at | mk aoidate haoatter ‘ont te. (wes 


teeta tp tats eyar cio te teat, a ones 10 ab ow elves “wud ch 
of yntoy aay ,yoose , om tart Hobtetea’ vata blot wets. we 
Lagonia onbqit senate of saw olvat .2e oteite omalbal soit 


 paelt te eugal sxot ab gon ane a trad am asid wale ee tose 
‘a we 4h 


ENG 


a 


oe A BOM OF bedaaw one u,, fae ae segen at naw od 


RES <h He SOR ie 


iy ton binor od Jace be hig pene sniyse te of °3 i 
4 ie 


Ghat fijay 
athe, 2S arte ce ome” ta.0% ot soot bie hinow hie: hth. 
q, WN tm 


il wn 3h pany rostt ta canent: phages ol 
sin OOF tenet? 9 inet 208 od none utvad Pe of aa. 
wired, xa ite? of anerodive bios weit geet ee | 
senonernsh tna ax att ot gm hot? ie sommmnal ot | 


oaon te gata teeneve, *e naonocoste onos ot sub etme ‘goithd § j 
paar ok ree” dro as inns od nar tact be toate da 
_ Ylantowzs ¥ yindaatne tans poakeLaRo watt a retort ‘ 


_ hate wort peyenk ad a? ohton oat 40 sais bao sie nt 
. od® orn ‘bites ‘yond * ’ 


: sans! (etyes +m gutanen) et tier . 
sail abd hiot hata aivat mas “aodan doin’ ah sand wae | Bs | | 


An seh 20s ntie tue abrow donne at ‘tom he heat ‘Sivatt Bila tae 
| et a box eae ae soni hada Raw ‘a bid ty ta ct al #2 Sli | 


war ais Agasuenaneee caddie oat haade “nivat fied "0 Ha 


; abtoymerte ove fa odd one ab “goon of den’ ‘Walvea’s 


m ot oe won an oton ° A pate ht twee iultedh Test - J 
Wh nt iio be RTE WNT a 
i ini 3 Sa 


wes 88 orto tat pd, tant (82 baad 
ar re ae ee Soda raed vat wr 


Fit Lae 


et 
A 





ware 





_ for the premium at the original rate; but Staer and Davie aid 
iH mot meet at the appointed place. Pe:berton sayo that Davia sald 
t @ubsatantially to him, "That's all right. I om glad it is fixed up.* 


it 


% 


Pemberton had naver had any business whatever with 
Stacy; he woe conceseion manager of the Arthur Davie Amusement 
Company, wid had an interest in the conecesaien end of Lt only; he was 


Working on a percentage basis, ant he conducted the concessions in- 






dependently as Sis on business. Ae had known iir, Davie nrior te 
“his death probably three or four years. Ha And met Gtaey every day 
er might of a week in which the olreus was given st Springfield. 


He nayn that he was with Gtaey at the railroad station for fifteen 


i 
if ip 


mutes, anf that he dees net reoall having hed a conversation prior 

















that time with Kr. Stacy shout thie insurance. Davia Ald net 
anything about any note, and Penberton never Rad any further 
erestion with Kr. Stacy about the polioy, He teatified that 
414 net know whether Davie ever gave a note fer the inereasad 
dum or net. Davis, the evidence indicates, wan and continued to 
in good health up to the time he met his death in an accident, 
On Gotobar 14, 1922, after the death of Davis, the dew 
nt refused a tender from the attomey for the plaintiff tenefi« 
of m cashier's cheek for the sum of $238.61, renreaenting the - 
Terence in preniua between the pelieies apelisd for and the ones 
were in fact sent by defendant to Stacy, 

; 6n Septexbor 13, 192%, after the deat of Arthur Davis, 
he policies, whieh had up te that time been in the possension of 

r. Stacy, were wy him returned to the home office at St. Lewis, 

: on September 15, 1922, the defendant eompany, in response te a 
from the attorney for the plaintiff, wrote in part am fole 


“The application to us was for $10,000 for two noliciles of 
cach, ani vag dated at Decatur, I1li., July 15, 1922, the 

ideation was for two policies on the Ordinary Life Hen. 
Pating Plan, an4 the annual premiwn on such policten is 






fib weet: Bi: wang Fel 7 ORME. Last Pek he aelh ply tai tiamney! att scot nt ‘ik 
i Agee #4 
Bbw ébeatt doris west frottedane “ene de bodatonge ‘wit to ts tone 


F ae ih 
aired pom ‘ee os bode ne sdb 1 he mY tans” aah ae takai 
| Site Hevedace vabatond yim tod tavda Sad woatedas® sedate 


amis advent teat O62 Lo dopant ‘ea than ihe 
aa we veda” oe he (sie ao lvave ston wie’ Ls tedweba2’ he th tad ban 
ant enoloneanos mt Retovbann od Bail’ ‘ehahd bgaradenbg’ a i 
tie belie diver lo nea BoA ad Sendai’ sa hited 





























dette Ye bed qaveR iit aioe ‘has feed “buil'ed itt - 
fast babiigeed of .wekhen est anade wade te wa 
 heomteat att tet ofan o wrey deve Wivell aedtes : 
ee Neh don ‘Wit “om seoten thal soannr¥e olf” “ial” . 


Stnettoon ms ad ‘ond ade Soin oat ombt elt of ww Mt toe sok 
Hiern y o Nie fia My 


‘Lin ods jat'vas Ye agian of caste nee Oe tedotoo ao 
atiawey Vike rade ty oy 16% “oar orden odd ‘wort xeboes ar 


1 


od Rake ewaeietiors 1 fd0tS¢ to one ous 40h aoeite aly 


vite sai bees aed Svitoge watodtog ead pl auknrs 
if sgn Raver Ge. BER 

yaad of sombsm toe lhe aaah teat 
| Ee 8) es eed Bi aaa 


TEPER aes sea Lip 
deren te douk ost taste Ok 18k oot ee 
wig Jae by 








art ot 





sora os 
ie ial wet ah amet omit fast od ae bod 


tine ao ne we 

vehied te da wate rae wid ot bonnes mba ibd xd oxen 
ee Me 

a of aniiogne nt remegnee “danha tod euls MROL she 

nares a: te ne ‘fe 

whe bd tee at eco Miadedg odd a0 


ge eye8 be Tae YB RNR Mint hid 








he FONG 


“he bolloston ow? ot 900,048 0 4 of at ae 
itt POOR: RL gia poh: Re ee . i 

ato HELE ytent hero seit me aololog owt tet wow motsao tiac 
at wotolten oun ae owkmete Lewnon off fae om lS gaitagte. 


$209.00 per annum, In the application the applicant enld@ he 
had not paid the agent anytuing. 

The application wae exexined on the 13th of July, aid 
this exeminution ia Part Ik of our avplication, Beaause of 
the facte disclosed in that exanination this campeny eecured 
@ further partial examination and declined te leave the 

liey in aacordance with the application, but did sgsreve 

t on « Table [21 basis, Form A. with no extended ineuwranee, 
and fer am eanziual promiwsa of $457.00, and ieauet two polie 
giee of that kind, sending thes te Mr, Stacy, cur General 
Agent at Soringfield, and galled hin atteition te this 
change, ond directed that the polleies must not be delivered 
wntil the attention of the aopiicunt «as called te these 
changes. ; 

Mr. Gtaey advises that he had not had an opportunity te 
present thees policiear to the apeiicant, and adviee him ef th e 
action of the Company. 

Wr. Gtacy at the time of making the arciication, as we 
are now advised, tack two notes, one for 5100.00 and ene for 
$200.00, and we are today Faques ting him to return these notes 
te the nrener representative of ir. Davie, innemuch as these 
notes were made payable to the order of %, BD. Stney.* 


| We have reeited the muterial evidence in time sequence 

and are gonetrained te hold that it wae tneulfictent to require 

any material iseue to be submitted to the jury. An examination 
ef the written application diacleses that (t was in the eon tewolae 
tien of the parties that inaurance might pessibiy be isened en # 

; @ifferent plan than that for which the application wae made, ‘The 


application expressly states tae conditions upen whies euch differ 












mit policies, if issued, sheuld become effective. Three eondti«- 
tions were expressed « first, that the poliey should be delivered 
! te the apslicant: second, that it should be accented by him; and, 
q third, that the iret greniwum shouwlé actually be paid turing the 
4 Lifetine of the applicant. 

q When the policies eued om were tranaaitted by the 

| defentant ta ite agent, Stacy, it added the further direeation tha t 
the ehanges in the policies should be galled to the attention ef 
the applicant before it wae dwlivered. If we semme thet Stacy, 
as general agent, had authority te waive the condition as to the 
| Payment of the firat preaiwm, that he might extend credit on his 
own Tosponaibility, or if we further sesune ‘that & watvel dee 
























ost bios $nao Lange ould ties ont at smc xo" ¢ 000088. 
% to dee beat 4 aks <t 
bisa. Sw ie ote ay nee aa ao iiogn i 
te a sav $9 yw tie te ra dat 8 ok 
arenes > Lavoksmte, m nfaath 
ae Se bud eae bee re serge te ket 
wveenes ib tue ytinkdeod Sogn @ 
oom at EE hedies edie tim ON Hi" OA ew. ee Bee: 
wh lee heed fogmek & ati SBPG. ‘te wus Long } lege ge 
inreied muse , poet eer emt oat ws te # 


RA ob Wadi carie ahs bediag b 
‘pewarion ef i int “heager ih ban’ 





“gon gaum solo tion eds 
vaods of hoiiao war semoisogn wie to aw itastie ott 


of ythavttenad as bog ian ded, od tat, contebe, ek 
@ ¢% te mid eatehe Vi » Paeo lies aus oF ie Fa 


se arpietec9! ads 2a 
ov he WHO RPbo ETige wilt ynkslense he ond? esd ta boy il . 


ok.oae bee 9O,.60£° aol. e Reson ype 
oH Seed ataset of wid on taauped why s hota hay 


waned sian ‘_) yt ait 
*Ofonee oe yt acbe eat {onan 

BEAM EDSR ahs mY woah ive’ bey busts att bes boe' eva ov 
eriuget oF vento tYiveal bee 92 dad? hood ob bontwetin 9a 


esbibinnieres wh seit ent 69 hoabhapnd ~ Ayo shiek ‘horas . 


ay “Wie. eae 


‘ ahoar mae Meriso Linge eid’ Ko Raw ‘0% ies’ ‘puis wig ts 


emoTtis Meee vo kte moa! snolsthitoa our bsdisndal Peery: 


tik ads rene :, pis | 
ont ee Lphdrnmnadte oun gt + Fee si wa” apg 


er eed tame | yea 
! haven wth yy 












webb bis) "Blut oie ar Shaded to FS us 
eat of un aolsibane sat eviey ot wea he stage, ’ 
bes ad tete “baw te ‘fae ‘eal’ ‘tant “s ae 


UR) fae heats ve ye NAS sss 


ay po lotion ie ae ‘atl Sieeeinnn . iat Shin i bins OS vk an he ht 


livery of the policiter was unnecessary, the evidenoe #till comes 
shert of presenting a queetion for the eonsideration of the fury, 
for the reason, among others, that 14 doen not discloses a waiver 
by Stacy of the payment of the firat premium, but on the contrary 
tends to prove an sgreament acqeording ts the terme of whien the 
payment wae te be made through the acceptance by Stacy of the 
notes of the applicant; and there is net a acintilla of evidence 
tending to show that the parties intended any delivery of the 
policies te be other than manual, while there ie an entire abe 
sence of evidence tending to show that Davia ever in fact ace 
ceoted the policies om which auit ie brought. 

The evidence of ire. Davis on the question of payment 
of the firet premium teria te show, sot a waiver of the payment 
but an agreement by whieh, through the use of the notes of Davia, 
payment war te be made, Mer testimony im positively te the of 
feet that Stacy agreed te take the netes of Davie and renew them 
‘Af necessary, he, Stacy, advancing the noceesary funde to pay the 
Premium. That clear evidence makee Lt lopoerible to Believe that 

Davie ever for a moment supposed that the pelicies veuld be in 
effect until hie netes for the smeunt of the first premiwe had 
been delivered to Gtaoy. He d4i4 not make and deliver the netes te 
“meet the payment of the premium for the policies offered; he aid 
net offer to do se, nor when informed by Pemberton, at Stacy's 
“Pequest, that policies of a different kind than those apolied fer 
t offered, did he say to Pemberton that he would axeoute these 







Rotes or communicate further with Stacy about it, ner request 
erton te do so. 

The briets and arguments of the parties discuss at — 
the supposed agency of Pesiberton, If we grant that tt may 
inferred from the evidence that Stacy intented te make Perberton 


agent te commmicate an offer to Davia, there is no evidenes 


| mY 
women Site osaehive sf ,yteeasgenmy now aatoklog ont to eter ht . 
sete otf Yo mabdeted bate wet tor mo tome aw ‘pet smn one YO rede 
bevbie: & seolomth Pon we ph # rode sets tte ‘anome Fikes ome tot t 
Sas D. out hin aud Re Bone testi’? bind ve “tommmen wit Yo neds we i 
kt ko Bator ts aermed oxtd oo yitioxooes n Ls ed ovens or-ebast 
“gult te yeaa yd nenadqwota anit startet bien wa ee one sunaeeg 
fosehive “te #ikitaton a tea et wrens ae itawo tiene nas ke estos 1 
ond ko YxOTL io yam Mohanta! nekstam oce suse route on aaisaes 
* ale Wek ae wd wuts otis Iwusines mats rodse od Pi setoniog i 
=e fao at tare ebwat sana wos ot yakban ooanbive Ye songs 4 
: ; sfiiquond ma twa se how am antoiiog oe tegene : 
photon aotsennp oMld 0 mira aX te eonebive oat oF 4 
suworyag eat ‘te avis * shed «08a os enned is Lore oer) ‘emt te 
: eivad ‘te aston ent 7 1% oe aa egarotet +o ibe w tunmoerse oe tod. a 
oe wit os ylovts lace al enon vaed wr obom ad ey “ner ¢ rayne | 


Sih RORY oh Re ane 


fa gt woaer bia, aived te netoa eae es ot bentne onge 
























oat we oF bout vesanogem ous atoaovhe Bo cor papas | 
_ fast ove hio’ ag elt tnaoqnt $2 nedem soneh ive santo teat rong 


heat septa souk ‘ans ro Yew 005 ont x0 ‘asdon ari Pi 

eC ee 

ot eaten wit wev Esoh bas oe, ton fst om eons * boserhiod nod | 
@ Oe We ee 

hie ost phomy tho as tetiog eu? xe smteore ous to snomwee om a” 


me ey 

a goede ta snelre dae w domo ase 190 408 oh ‘oo te 
hoy kyu 
tot Softens enndt sade bekal dawre'V'E Be ‘ te wototion send . teem a 
Xo he iy pa a 

wrens stuoeme biuew oa Jailed ot um as vee “ga be shore" to i orew 

Res ay pe 

$avuper nos tl suede od sate rede réao tucamed 40. 

ve BU) ecm Oo a By peep Lal 

f i i net ab a 

x) peryshaig, 
ta anvonld oltmeg outs te epeoewete hue 5 wtedad oat ‘a 
/ we ba ea kB Reel Le bth i ‘ } 
yen th salt trary ow XX -A0t 19404 we Konwge heronnre ont fuse 

* Ne Raa sli va AN , Rae oe 
nossa dint ota ot behand ak oF test? non tee ont moet bers ed 

wee Kee + one it in, ted mi Read bia Fai 


bemphive om e oxasid nae oe “eTto me wien Renna ) oe 
PGE as RET RE | m as pe ale reas me q 


im the recor’ from “hioh a fury eowld reasonably infer that he was 
made the agent to receive the reply of Dewle to that offer, er 
that he wae in any way authorized to sleae up the transaction, He 
Was not intruste4 with the pelictes, Indeed, the evidence faile to 
@isclese that he het any Aefinite knowledge of what the policies 
@eontained, or of the respects in which theee policies 4iffored 
from those for which Davis had applied. 

fe think ma more can be inferred from the evidence on 
this point than a requast vy Stacy to Pemberton to tell Davis that 
the policies avsited hie acceptance er rejection. ‘Tne evidence of 
Pemberton is to the effect that Stacy sald to him in substance that 
when he (meaning Bavis) came to Fort Wayne he would arrange the 
Batter. Pemberton also testifies that Davie replied substantially 
that it was #11 right and he wes glad that it was fixed us, but 
this, in connection with all the other evidence, oan reasonably 
wean no wore than the affirmance by Davie that he would be ready to 
mect Staey at Fort Yayne ond there arrange the whole matter. I¢ 
ts apparent that if it hed been the intention of the parties that 
the conmunication from Stacy te Davie, through Pemberton, and ite 
a ptance by Davie, should conclude the contrast, there would be 









ne occasion for a trip to Yort Yayne on the part of Stacy. Indeed, 
our opinion the utmest authority for Pemberton, which ean be 


Ho jury sould reasonably find from this testimeny that 
S38 Was the intention of either of the parties that the conversation 


Davis and Pombertom should reault in «a binding contract. 
both Pemberton and Davis se undorstecd it ts invicated by the 


that eo far ae the evidence discloses, Pexberton never come 
ASated to Stacy the reply of Davis, and apparently 414 not 
nk that there was any duty resting uoon him to 4o a0. . 





= ata 


cea rte — aati Rat a rd ee 


Saar ee 





‘easy qaamtswes eats wovt Hal? esdardnont bbuoe eek soci onan 





e) 


oar sol tat wink qddanoenes. hises seh mw ay hele mek freeee eal?) 
te pue Pie sadt oF whwad Vo UE ee toate ev inges 9d dane eit oath 


OF job tooemeed emf qe shots of bestiedtin you eae mt, newer 





“Ob aie eommbive oc heahal sae ted ied oad dt hw bopeintah tone 
ehintion es? Satw te age teen et iat'teb eae: peat wed tant ounton 
“poreNE Re wb tnt Low eeene dpide ah eteeqeatorst Be ter  bomtnge 

rs ha btqge bast eivet) Me deie wet ssogd me 

ao Ghachive AF wet betietal o¢ ase ovom om Maka OP of yal) aed 
tan? aivetl Lied 02 aodvedaed of yondioyd seempat a wads dutoqied 
te sdtnhire eat waetdos tor to ousntquege’ wid bed Lowe. aoiohiog & 
fants sonsto tue ah mld eo biae Yoase vault soot'te ot oF ad aod spde 
ee wpanree Bluow vet sayew geet oF) emme. (otrad gatneen) oat a 


keh nwtedve pokiqes abwat dead? so2t ideas cede meg rede on 


Sud (oe beats baw 2h Sars badg eee pel bre | teghe dhe gow Sb oe 
 etihasannt Me poenebl we vaste eit Sle, abe sehsoosneo mb yeh 

ot eiaet od biwow en sans ebeot ys wpmnont tte ect tame amon om 
92 $ee daw b koe ont ogaorm evens tap suey tvok dm nade te 
deat ae keine ext” ‘te mobt ond ad ackt med bad ab TU tat soem 
att the hosted stafencds ekvanl ot yew dt) mont mo RR 
#0 Mitow wrod? ,fomrinoe o1l9 shy Lows bivorie 4 mtwane odd 





‘"Seebal ° Seg Ye eeeq oth no eayeW dro at lat 4 tot notnagae’ 


9d mae Sabie prapietael vob ahh wie veas tnomey out motalge wo: 
a be foe 08 anil: ene Ba tend wD, pou hive nc8 sett bor 








neiivevernan ont Jedd doting odd to metho be maldaedel matt om 
stoatinos gukbald « at siveer biwace 03 20 dasph bow ebvadoap “s 
oct yd Detnothak at 32 bootesabow on mado haw aotxs det shes ‘ 
nitoo TOYO aodtedael ,eseesonth sonebive eit oe A cm asd, 
‘dom BL vy idnowegds Daw abv Ro eqn aM? Neeate a8. " Sag is 

“9 et ob oF mae woe aaleeer s atiaaatenilaiaindathe ‘ ll 


SLR 


AN agreement which results in e sontreaet suet be mutual, 
T@ defendant vas bound, then Davin wae bound, Ooen the facta 
dinclosed here, would it be for a moment contended that the Ineuranece 
Company could have recovered in a ault against Davie the amownt of 
the premivus on these policles? It ie apparent that the anewer must 
be in the negative. Davis vas not bound; therefore the Ineurance 
Gompany wae net bound. ‘The evidence faile te disclose that there 
Was eae meeting of the minds of the parties, or « definite agreenent 
Detween then as to terns, 
| Because the evidence discloses that there was ne proe 
Vision fer the payment of the preuium on these policies in the scanner 
agreed wnen, because from the whole evidences submitted it is apparent 
“that there was ne delivery of the policies, and beeause the evidence 
gate to disclose facts frem which «a Jury sould ressonably find that 
ie minds of the parties met in regard to the terwa of the policies, 
“the inetruetion to return a verdict for t@efendant wae property given. 
= Plaintiff aleo contends that the defendant ie preeluded 
fron setting up a detonse other than that stated tu ite Letter ree 

: Hot » 960. 8, 28a; 

d Re He CO. VW. Seitz, 214 Tli. 360, und other elmiloxy oases are 
: ‘ ted to this point. The letter, however, is net inconsitatent with 






defense that there was no contract between the parties, The 
cited are net applicable. (Sea 15 Corpus Juris, 609, sea. a.) 
The judgment is affirmed. 
AVFIRKED. 


y, P. J., and Jonnaton, J., concur, 





4 ek: Huse ° MH ry M Bite a ‘ Me lt Wh 





kooctue vt Tae eeartwee w at eee de lew gosmoet 
Ce ee ee oe yee wareaaanealh 

sornsxved! salt teat hehrwtooy tieaem ‘a Ot od 22 Siew adit ‘botin tea! 

to terdne 28e ahead teaheyw Chew « wh bexeveow' oval B from ‘xtibeh 

Joum rewnius exit cat drowaas al 9T  eelekley sawiiy te Wmirtiiotd ei 
sommeal nd) ecahertodt (haved ton wae wrwatt SowNtaigen Walt WE 

gtast Judd edelueth of altar pomwnive watt’ wibisisd” Fite! alate Guill 
vases haaainaie icsssingepingalleaoscupliwnpiigel 
r isle ecole ye : yoo tae lam th i 
ee ee a ee 
Sotmnm wie at weiellog eeedd wo ta thncey we YO Fimmy, ly i Wee 








snomenst et a2 Sore kevin poms ive ofadw ake hott souesi © foes’ hoor 
| gonmhitve oul @reondd Kas ee tobton pitt to Gov tten" ba haw emeitd” bai 


(ait ba ehtaenhor hikes Ceot a ite tite inet SesH “anatdalh os alt 
| ean be hinges To earnad ott (bt baege at cam oo ttay odd YO ebnaa’s 
story ylenqete naw faahas'taht Cor Korbene a tite ole ata ai 
keke tiony 02 tamtnatan wite omny unacnids “ewsareledEnie?® (00 Oh 
«d% Medtek whl owl Ketade feed nas te | boomed sat sabe ie 








ddim deotedonownh son ak wovewed puntwok ext © ianeaan arate 
Oa pte bing att anewod dee ninve am weme ored badd omaiee® 
(.008 one .90P pe kmeh enyrd OL aoe) ohintseyn toa oem Sultte vita 
domed tke of —- Fe cise snisii 

yt? lala: ERE 0 LSE NORE CRD 4 Alby diss Mai, ets A Se 






ak She aR One aR, ‘taal: ant 


PO) Meee mae. MN hi OR eA) a) Chou I YA 


pyiaciad an at iclel a Leanne’ yARP retin: Me: ner ! 


Aaa un a a ad ON 0 I A MO A ak aA ya, iy RO vans Age cc 
sosonis onmprossans cunck-omeannrh captain: wate tdiie AON iat a i to 
Dari ARR Oh i A ANE mr Biting a ann i: amet ‘ mele SE as 
ve om TMU Wo NY eee ra hid a na ait ei 4 





119 + 31248 


GUARDIAN NATIONAL BABK OF } 
CHICAGO, 
Appeliant, APPEAL FROM MUMICTPAL 
ve ) COURT OF CHICAGO. 

RP. Ie LuwIs MPS. GOe, (a 
@erporation), and STANDARD » 
TRUST & savines B BARK, 4AA 

Appellees. Ss «< 


BR. JUSTICE MATCHETT DULIVGREL: THe OPINION GF THR GOURT. 


Thies appeal is by the plointiff in « replevin euit 
from a judgment for defendant entered on the finding of the 
court. 

The material facts are not disputed and appear to 
‘be that a bonk im Onio sent seven dends of the por value of 
$1,000 each and by their terme payable te bearer to the plain- 
tiff bank st Chiesgo. VPlaintify delivered these vonda te 
Hyney Emerson & Company, a bond houwe. t tdeing mn truet receipt 
therefor, by which Hyney Smerason & Company undertoek to hold 
the bonds as bailee for the account of plaintiff and subject 
to ites order, By the terme of this receipt, Hyney Omereon & 
yaad further undertook to ruturn the bonds to plaintiff 
om September 12, 1928. 

i These bonds were not returned and have met been paid 
fer. On the contrary, on or about September 15, 1928, the 
defendant. Pe J» Lewis Monufveturing Company, through the 
‘deter Standerd Trust & °lavings Bank, received there bonds 







| ‘ag transaction which the defendanta ineiet esmounted te a 
Du but which pl<intirff argues was in fact in the nature 
loan, decnuse of on agreement in writing delivered at the 








I 

i nebo aan analy acai ae 
it | aah -_ OTRO rv . ay | pt “ 
ot Q ih oo ie" pag awe 


1 a \ c im ae! h pee my sasestegts 


| es es Ohi EN: 337 AE Pier te es 
u] ena ART WO KO rote ont «oMmav i” eTURO TAR amet 


Gabe! Qe yom,” 


ai pia oo 2 RA midemnats oa xe ck mE e5ge alah CaN ala 
Os TO AY Od me deemaeD Vidiilbai Rompouh 4 
af teeges oun kedugate 262 e4s ato? Reptiles sale at 
te pakew coq ost) Re chaod sovbe toes aaO mt ated @ daed 
“titeie SA OF TomEd Od oLaweng sed thesld Yo hme soe BO% 
| OF whned Cue SereTiien Vedimiagi <ogeotdd ta dang n 
febeors Saute a puddles oayed Smee ar egnageed. weenie ws 
ALowd of Meotasbaw veegaed A aoumeme gory 
footeue hee Wtenbace te demopee sstd wet, ; ne 

: : A nose! qonyt ‘sSqdsoot eta 6 abies off Ye oer e TY 
| 7 “Milontak: of ae vas aiid ‘oe baadviepaiigaiic) fy 
, : ARN A Ey Se ale eae All li 
| men mo oe iu ovad heen AaeteX oem exw ebmetl ’ waost. 
aes eH8OL .8L sodmorqet samen co wo weiethien oa, i 
: adit wore «ymoquod gabensetwmct atwod ob ot ats 
| abned sands heviooos aateatl easitva 4 , “gust Stobetnte its 
a 0¢ hotumoms tohant adsabaotod eae doldw ” 39 a8 4 
’ wan odd Bt fost mt naw vomeEs vikwetese tot nd oenstol 
| aid te boxeyiien gaigtaw mk snostwonye ma Yo omer | ne | 
























time in which the seller, liyney “morsen & Company, promised 

at the option of the defendant FP. J. Lewis Manufacturing Company, 

te repurchese these bonds within « givem time at a slight 
advance in price, this being one of several similer trananctions 
“between the ¥. J. Lewis Wanufacturing Company and Hyney ‘merson 
& Company. 
| The pleintiff asye that thie transaction smounted to 
-& short time loan and way therefore ultra vireg the power of 
the defendant ¥. J. Lewis Monufacturing Company, and that as 























@gainst the plaintiff, it therefore failed te aeguire title to 
the bonds. 

Plaintiff soncedes that if the defend-nt F. J. Lewis 
| Menufscturing Company, 49 « holder in due course for value, 
pleintirr cannot recover. | 
The court indiented by ite rulings on propositions ef 
law that the theery of the court was that the transaction, by 
“which the bonds were acquired, amounted to a purchase; that the 
| defendant corporstion, however, had no power to muke short time 
Toans, but that the transnetion was not ultra Wires that ecor- 
poration. 

We think defendant F. J. Lewis Manufacturing Company 
bea ® holder for value in due course {omtth Burd? s, 132 linois 
“Revised Statutes, 1925, chap. 98,7 and therefore, as nanbaet 
|the plaintitr, took a guod titie. (Murray v. Lerdner, 2 Wall. 
110; Jonee v» Nellis, 41 111. 4923 Metealf vs Ureper, 98 T11. 
|APP- 399) Drum Construction Cos vy. Forbes, 309 I11. 303.) 
f Moreover, plaintiff is mot in privity end hence as 
wt the defendant F. J. Lewis Henufscturing Company cannot 


its claim to the bonds on the doctrine of Mitra vires. 


Sp re oer en 





















beainer «gaged © movren yoay exottoe oi dole AL 
ouagypo0 span hart atcnannt wiwod 1b 0% Mtannetoh eddy te ake : 
ms Saban a tm eat kd Ggevia « Ghiihw abiod owed veadonagon } 
axoidoneners inkiste saneven te ono getod ald? yoolsg ak ont ffi: 
moozem pet esi aia jemheny shame i bn biel an Leven t ) 


og hognwona lahd-anisinesle side stadt ld’ Wheat: ont fica 
(26 TOMY On! BONkY wally exe toxee saw Ame moos gabe asada s 


bs tip ily 


ae ‘toate dae eye’ yates eaten akwol «hb + tusbao ted rk 
0d G09 Webupen OY DeLteY sveteieds at E otiemnnate ad wee 


aiwod ob «¥ drvdaeted add 2 Jats aaheomos » Vebembers ae 
of. iad eave airy at robked W eh ¢tyauemet geskerurs ont oa 

yon a “ey De Ce bape thal 

te eneliheeqerq me agaiioy age ot boda thnk dupes ‘ean 
6 .nolsenanoas old Gadd dow Pues Ord Te YebEdd dite Fads wal 
sil? Godt poxadoieq @ 62 bednvene yoerhupse wow wpted’ od? to ti 
emis teeta waa eo eewey oa had yrevewnd yaohdraegto0 suabas : 
~gue tea? worl¥ ovide Jon saw moltosenend odd diuld 400° fom 





wioqae) SabTae ECT okwel oh oT techno tad xebsts eH cowl 
yoga Soa ae tus] oorses oem mk oway tet gestion i” a“ 
santana ox ,oxototesid ban \LO@ sqado .2°eL yaedwtet? bee . 
cited & «tenor eh twa) «ele he Gowy @ toot binnareainrc ibe: 
oLil 89. ..sgeq ems 3 } | 
(008 +441 008 .godeal amv 202 wodtounteuet mart’ YORE vey 
em pomod dns ea hve. mk mas wh, b nteadotg, LoVe nant a 
forsi9y ymsqwoy natzutorwunait alved «% 65 smatmened ood emtey 
ny) MARBEL GRRE. 26. oh t2 908» she we oood welt of minke ath 7 











ode 


(Reetor vy. Hartford Paposit Go., 190 Ill. 360; Heatern Telephone 


Mfge Go» ve Molex, 150 Ills Apps 3433 Amerioon Credit Uos v. 


Forthington, 4191 Ill. Appe L177. 


Further, we think Plaintiff eannet et amy Pate aeintein 
ites suit without first making a demand fer the bonds, of whieh 
there is no proof in the record. (Unde & Me Rs Go. Ms Boe, 77 
Til. 5133 Clark vy, Lewla, 535 Ills 417; Ronenbawe vy. King, 114 
Tile Appe 648.) 

The theory ef plainsirr is ingenious but cannet avadl 
| Water the facts which appear in thie ragord, Judgment will be 
affirmed. 

AVETRMED.» 


MeSurely, P. J., and Johnstons Je, concure 




















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ens Ae a aya es FP. ON bh BN nt Pies Rf) ¥ shh. Raa wiilk aii i i By Tr st ao 


voles AMOR Ki, poktane He 9 i) seer 
Se a CM i eM ME niet i Milan 


2 en cans Pi: ahs Sieh Heng aS Put eae, whoa, Nac 4.) iyi me ) Sess eres yap Att ao 
ait kat a hee ht sa ‘ wah mew weal ile naam anit (ot Ma eS: aes. a 


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120 + 31248 


GUARDIAN BATIONAL BANE OY GHIVAGO, 
Ag Peliast , 


We 
¥. 3. LEWIS RASUFACTURING COMPANY, 


a Corporation, and STARDARD TAvST 
& SAVINGS BADK, 


) 

} 

} APPWAL PROM BOT OLR AL 
COURT OF CHIcAdG, 


Appelleos, 


SUPPLEMENTAL OPINION, 
. TUSTICR MATCHETT DULTIVENED TS GYTNTON OF THN covAT, 


Plaintasr in ite petition for a rehearing complaing 
thet the seurt reached its conclusion that the 7. 7, Lowie Zanuface 
turing Company was » holder in due sourse for value “wltihout sure 
@Mowiting the hurdie that the trenometion fmvelwed in this case ie 
or in not « short term loan,” and it again asserts that the trengee~ 
tion amounted te sueh @ loon and thet being ultra vires the core 

pany the cusporation derived no title te the bonda, Ledgh 
- at Seem Coe, 20% Tha. 147; Cakumet & mate ¢ 
is cs. s. canning, 275 Tik, 328; Bergan ts 
‘Bastor, 273 Li. 532, are again cited, 

there are two anewere to thie eontention, In the 
plinee, the transaction under consideration was not m ohort 
Loan, and, in the second plage, even is 14 was euch & lean, 
was not (én our opinion) yltra vires the eoxporation, 
_-« The tried court specifically held that the transactian 
i “Whiten defendant took the bonds wan not a loan, 

















. Zhe agreement between tha Hyney Rmerecn Company and the 
7 . %. Lewie Ranufseturing Company iw in writing, aad im ite plein 
@ indicates the intention of the garties that the tranuaetion 
. 4 be in the noture of & eule with an agrennent that the seller 
L within a given time therealter, at the option of the vondee, 
ae the bonds at an advanced price, but the purahaser ai4 Rot 





He . BOR SE ~ 06; 
#ES, AMR aS Br Aaah. em ee ane 


aio ‘ 
wy malta 


ae sa enema 





Aakers wont Uamads 





| es i panera eee ins whe aH 

ae = b G. kee , er Jae 9 eras: opted ? 

| 7 Bc ish 
RIOR, Sa 1a PURINA mARVTane TrMROTAM SOT TETG 

ssulbaul outa “4 


Mes 


as 


fe 
R Ps! fs 


pale lqmes palicodey a “ot Heltloeg aak ot “hteatort 

«oi tenek alwod .t°.% ed? Sad? noken ious of) bedpaet fruree dit / 
stun Suedsiw" ovtev tot owxeoe’ oui a tobLod » oor yang@ad: a start ud 
wt apa ate? a2 bevhowal no hteaumend ari? test? wldrewe ol? gat? avon 
<eavustt’ say Yass wecenen: aagh ot haw *, mea weed Padh’ bh ton! t 
wten al? geile esete gakod tact bas ogk a dawe of botami 
‘dates ebhicod, sige oo off1s on hovixsh endbenoiee) om ‘ 

ess. made ek Lee aos so ai, oe 
2. MB sHSe .hS1 CUR gas | 
a ci ue shotie alaye wus ,866 Kok BS oe o. 
| - patt al .audtaetney ahiie @? etewann owt ore suedt pan ; 
: rasa & Polk ast Mok satob Lame ‘tw bina Kotsvaeants oid norte, 
, mek oe doe sow ok ‘th nove soeke hacons edd mat bia afte 
vtakiavenn es ott agsby Pere (aasctqo +9 aa) toa wat 
makgeasnend asid aaeh oho ‘Liaw Eton ge ewoo fala ae ee 
nos a toa aaw phstod ett dood rabaw tab we 
ext baw yinqecd mowrunt yous ad naoweed taousertya eat ioe, 
lela moh at hae agueks aw at a2 ata gated garded 
nobtoanaet?, asd sont we hi sa oul? ae agttaeamt ode wtiotiad 
totion wt tats jnoanetya me. stew odae * to outom exit ab 
sooner aed ne aol tego wate td 10d tas tod astt 3 wove 2 abstt 
gee bib aesodotwe oa tied esitg hevaawha ‘ne Se shaot note 
























agree or bind itself to reeell the bonds at that price, 

ir, Lewis, the chairman of the beard of directors 
of the defendant Banufacturing company, testified that the eoitie 
pany had eurplue funds on bond which i¢ wished to invest for a 
shert time «- thirty or sixty days -- a4 thie was the reageu why 
they were wiliing to buy the bonda on the thirtyeday recurchase 
agreement. He sleo testified that the company had quite &® nuaher 


of similar transactions every fall, Plaintii’ arguet that thir 
evidence is sontradictery ef and tneunel stent with the eritien 


evidence and conclusively contreadiectea 1%. Ye do net think ao, 
The finfing of the trial sourt te entitled te the seme weight as 
the verdiot of a jury, and we cannot eay that ite finding in thie 
Fespeet te contrary te the waight of the evidenos, 

But even if wa eoult find (oontrary to ¢he triad 
eourt) that the transaction in question was a lean, we de mot think 
it wovld be ultra vires the powers of this sorperation, or that 





Pliesabie, 


the defendant Manyfacturing eoupany, the recerd ahows, 
Was incorporated’ under the General Ineorperation Act. By ite 
charter, ac swended, it was given authority "fe engage in ony other 







manufacturing, aining, construction or transportation business of 
. any kind or character whateoever, and te that end te acquire, hold, 
q (OW and @ispose of any ond all property, assets, stocks, bonds and 
Fights of any kina,” 

It is elementary that in addition to express powers 


The petition for renearing points out that the eases 















: OME 
i ae to bee tas 28 wbaod odd Shapen of theatt bate ery 

| atezoorks to beaod ents eo vata hana, ear yeh ee ta ies 

| amon asi Laie bes tieend 1 thie gna nites tou tara tandav'toh eit 
| # <e% dowvek of boxadw 7h sok boed me oban't 

| vith nosawt Sut wan mhus bike de aye ‘Yiadll doeiteRild = 


ReaD Mot wehaqensete ad ao whmed ast yd spat Late tow ye. 
todimacs a od twp ional Yeats akon ata todd heals idee? eoke ohh, ssaomerae 
ght? gad! weagte Vrliatesms L002 YtOve engktens met? | Lbs 

 tesghow bie Atte toate lnmopnk fae Yo ies Hilconee, at ‘eonekh 


f | nae that ie ear My 
.0o tubes vow’ ob OW dE edo tnaxsace ‘Ulevinwss se hme eon 


82 adglow mane ot of bali tian of depen dim bsd Perry gabhntt eet 
atda al gaidal ash dus? yee founee Om bma., wih a6 CorbTO & 


‘i ooh oat aieetivn edt he Sag tewt aah ad pauseion! 
sini, ame of “restaee) hel foes ow dl peek Hae 


oe er ee 





a 


Ne ile Ta Sv iri ao 


% 





tat 19 assessor moreover a 
: dl ye 


Se ne ee ee ee 
= ee Se 



















,ereuds Aeseow way 2 Yalacyaon gind ch dow | mee oat” 
Ge US aifon: ie hae sh Re Ps el i 
wat yea’ otsaveqraont haven aay mee 


, sqronned 
i yale se Maen Shab 4 ge avas am ¢ nase) 
Moris! yo ab tt whvanttne wev ta ane 35 phebagmn we 9% 





OS HME 4, 


te: waded aieet aehtadsoqa ned te aoktowtteme9 spate smark ar ry 
[ phubeel ga dopom ‘od baw ‘tate a bam janvoostade ae toe's 
ih Tee atl DBA | baked Nee 
4 hee akaod atoade vetona cones 1 te ben, OF, te myacath a 





NN one % Ye eth 
, Shai” “hoes ER ORO RU SS bla wit 





eunrog naotene oe wot th } me Salt mn tap an 
oo» tettent owe aid outa ¢ 12 yaodtan enn # pt, 


 secggeage sh exeron dt 30 a a of eden : 


fo SER eS 
Waray we M4 Dae ath Ay : 







9 a ee with tee | owas owt't wont 
“ ebiane wit teas ime ae ere. 40 : 
3 CH ay a ods ba ae Bee We asd 
A ey b at 4 








- Atetinguisn between an act yitra vires whieh Le merely on shure of 

some eereorate power and an agi which seeatite te an illegal and 
void ateumtion of a power whieh the cerperation does aot have, 

Tate eourt is not unaware of that diptinetion nor of tue diffiLeulty 

hal applying it im particular eases, 

| However, even conceding further that thie traneaection 


wee # loam and therefore ultra vireuy, we would be diepened to bold 
that 4¢ wae only an abuse of corporate power, - Hot an Lilegal and 





‘ga ror “era ima 


eat a Wea 





134 + 31264 


OLS CONE and ABE TOPPER, 
ading ge LOUIS COREE & TOPPER, 
Defendante in Orror, 
ERROR YO MUBICIPAL COURT 


Re Rae he hee tag Come eS on Nee 


VS. 
OF (NE GAEL, 
ISIDORE GARPER, SAM GARBER 
and BESSIE GARBER, 
Plaintiffs in Errer. Lee 
+ A F py S) 
za 4 4a 1. ep 


ER, JUSTICE MATCHNET VELIVERED THR OPINION OF THE Count, 


Sy this writ ef error the defendants in the triad 
Court seck to reverse a judgment for the sum of $2512,45, entered 
Upon the finding of the court. : 

The plaintiffs eued upon sixteen promissory and 
Judgment notes, executed and delivered by the defendants te the 
“plaintirre on Kay 24, 1924, duigment by confession having been 
“gntered, the defendants wade a motion to set it aside, supported 
Dy their affidevite, which were substantially similer, setting 
up the defenses of want of coreideration ané that the exeeution 
“ana delivery of the notea were obtained through fraud practiced 
upon them by the plaintiffe, There was a trial upon the merits 
and Judgment as stated, 
The evidenoe tended te shew that the plaintiff ene 











tiers wore dealers in furs; that defendant Sam Garhker wae en- 
in the businese of manulag turing wearing apparel from theeae 

; that he purchased fure ond skins from the plaintiff upon an 
account, and that upen petition of plaintiffe and ether 

tore, he was brought into the bankruptey gourt upen a prayer 
at he should be adjudged a bankrupt; that « composition of his 
iters was agreed upon, whereby the creditors accepted notes for 
ty-five per cent of their claime, and pursuant toe the terms of 
Composition the plaintiffs accepted the notes of Sam Garber, 


7 















: ine syetoreeW ay ome | 

ae ee ae 

% ’ ae : , CoN 

| nn ee 

| oy re a. as h h e: 

lt nero ar soreI4o “ge cuneate TRABOTAM. Bt 

{ ‘tet thnes ak 8 dose to wily Vents to. ew enue vie’ is aims bie 
i Aervedne ob eaEEe ae ae wee ‘tet susmgbat & satoves haul sip’ ws 
' Pap 
' | 

/ baw ‘Wroueksong noo tebe wines Rowe oritiiete oat wa 

+ ani 

i} oas bvadd ediahin lies wat qa bowed ine bas dotvonne uetew sre aig hy 
) 7 Pe ee 
| anes pated aeknae roa yd 6 among ht wanag ‘a voit ne aitive, os 
bevtecane aes os eta oe mld gat a shew adnsbae ab ont Fs nom ms 
i : aut svouns sata ete tte \dnkhenanbsiies 10 Snow to estat beet @ 
i hooltasrs pane? rgvordd eatetdo ter eoton onte 2% ctpr hos bam 


at tis nit coma tates @ wer oxestt ‘eT S bate rtd ed matt 09 


ae 


; shetate ae toombat fey 
wie  vubsade te weld tart wen or bobans weinas ty oat aiid ite 
name eon sean awed 3 i ten Ky sas om at ‘wreLab ww exe: , 
waenls wsarn”s doreneniac ad wat to twoes ‘te aboosinid ond a | ° 
A mattis VRE eLe alt sete @adis bias out, deanery on dade ‘a ai 
| Saad ¢ fra wthidnte sq 1% ankehteg monte deste baw taweone ne 
a stu09S weroredaad ext ovat pe eat 08 : on 












seed se 8 1 0 neon one doseenea eruseate 8 mote tes 


ge 





Ieidore Garber and Dessia Garber, dated February 2, 1692, due in 
ten months from date, for the awn of $436.51. 

Sem Garber ie tae sen of defendants Isidore and Pesele 
Garber, and they were apparently living tegether in a heme on 
Lincoln avenue, Chicago, where their business wae conducted, 
Teatimeny indicates that the defendants are all foreigners by 
birth; that they speak the Yiddish language; that Beasie Garber 
at the time cf the action had been in thie country four years, 
Isidore thirteen years, and Gem since Chriatuas, 1615. 

their evidence tends te gustmin in oli ite detaile the 
@llegations of theiy several affidavite that on Way 94, 16292, when 
the notes ued on were executed, 4a Tovper, one of the plaintiffs, 
Went te the home of the defendants, Saw ond Besele Garber being 
Present, and informed them that there wae diffieulty in keeping the 
@reéiters in the bankruptoy precesdings in Line with reference te 
the composition agreement; that the ereditere desired « aevarate 
agreement te be signed by defendants; that, if defendants would not 
Bign these separate agreemente, the crediters would file a peti- 
tion to set avide the composition and charge defendant Som Gerber 
With violation of the Bankruptcy act; that he, Sam Garber, would 
be indicted and criminally prosecuted; that Topver further sata 
that he would prepare the agreements if they would execute the 
Same; that Tepper returned after several feye with = mamber of 
these papers, which he galled agreesentea, but which were in fact 
these Judgment motes; that the defendantea 414 not know that the 
Same were judgment netes and did not know that they were to be 
exeentea in eatisfaction of the claim of plaintiffs, and that they 
executes the notes under the misapprehension that the sane were 
these agreanante. 
be Cppesed te this is the evidence ef the plaintiffs to Rhe 


ft 





t that Sam Garber again applied to then for eredit in the pure 











4 


ee 
tt ayh ,S8OL 8 yuretet besed ed — -_, =e orobte 
COS ee) 








hint han’ wrohtet etiebae hoe ve aoe eat RE esau wae vat oad 
che wait me a2 Tedtayed yal te Yiiaptmgqges etew would alk jee ost 
 Aatouhago aaw enomiand tledd exw ie ‘0ae tale. er ni toast 
qf atengtote? La ein atushaetes odd dasle di sahithidy eenioad 
rota ekeeed tadd fepadignat MALU od? aanqe vend dad hades 
a Vatiwes shi? mt needohed seldom bs. Ro pata ott F 
ELAS ,wmede dxstd wonta mS hae ,oeeny ames lt eros 

ant aftesos wee fhe ab atavawe ef whone sounh 2ve hott 
irs ste sede jae ye ae ‘pent oe ivahtthe bideten ‘uted to stung 
(aT beatale ore *e orn «mqaet ae ehotioaxe ores ne bows fob ot dl 
quted wedtesii phenet baw sat entaanantoh oud Ye acest whe ov 1 
ett gntaned nt ef lvett th ‘pow otods tone ‘wodd bomotad hie Rewer 
es aoaen tot sit be onthe at ayathseoore ‘wtewbined “ot! mt gradi 
od atecee & bertawd arosiboro | ont det Ltomperyed ea cd 

















| ie _ caer 'eslAb, vt 
tm ayo si a 


bine caveat moh Ton bole” HEN Gos sable 
dragnet esp fa — rene Fouts + a 








NRE TE ei 


te rodan ® aetn eel farov98 teste ae sone ta 
“beet ad sda to hae aed sntaoxivorne helioa en UP ‘te died 
vty sat wont toe bi wPan bas ten ont "gate" san : - sh 


wnt tate ban sortientete te mate fo re eernrryt ne is 
| ornw nen ot ads ) nobenestoxmgne ta = sete fe 
i ve na ee Mn an 
outst or wisatede one ie soamnive oe 8 ae ie os ‘Kade raw 


RR ms ok bo a i 


oto, ote ah tives pe ‘ma av. ne 





ehase of goode, ant that they refused to give much credit unless 
the father, mother and sen would execute these netes; that the 
notes were executed ani thereafter goods were delivered te the | 
@efendanta, 

There in practically no dispute as to the rules of 
Law applicable, Bither the agreement to cive oresit, om the 
past debt which Kad bean diecharged in bankruptey, would be a 
sufficlent censideration fer the exeoution and delivery efothe sid 
mew notes, if the same were in fact executed for that reason. 

The controlling question in the case therefore is whether the 
finding of the court that the notes were so executed and delivered 
and that the same were not obtained by fraudulant representations, 
is against the manifest weight of the evidence. 

The task ef @h Appeliate court im reviewing a record 
where the witnesses whe testified are not entirely familiar with 
the English language, is peculiarly diffiewlt. In suck case, the 
trial court hae a more than ordinary advantage in weighing the 
testimony. 

The evidence here i# conflicting. It ie elear that one 
OF the ether group of witnesses deos not relate the facte ae they 
are. 
| The recerd indicates, however, that the defendant Sam 
‘Garber ia not wholly defleient in his knowledge of the Bnglish 
Language; that he was accustomed in dealing with plaintilfe te 
“exeoute trade acceptances sand notes, and that he evidently uder~ 
‘stood the charscter of such inetruments, We find 4t diffieult to 
Veiieve the atery of the defendants to the «affect that these netes 
were executed in his presence, they believing that the seme were 
it notes but agreesents with referenes te the bankruptey matter, 






eh hed apparently been settled several months prior te the 
of the notes. The testimony of the defendants in thie 











seotow thheto singe avy ot. hows tae mel. dealt heim, shoes Te seed 
oat sant peeton ongas efunexo btwow ape hae wertta tedat af 
os) of houwTE ed s10w ahooy Tor temrots bar betueexe wxew aede 

te ae kaet walt, ot ar, alias ies eevee abil e is ind 
Ae te ditew orkg of sanepnaga off wele2®) siihdibaiabeaiie 
6 od bSewe  wedmerdand a2. bryrated th seed, dart oh heim aod ome 
ety emer leok dune wolsmoome, oxth co Mek tate Lage dare kok 
connes Gacy Tet hddvoexe sont at amow ome eft 22 4808008 9 
phd, wesitedts eh orateznd gasp eat ob solteonp, madi conan * 
hateviLee Amy beteoexn on anew sodom anf decd samen ont tw yma a 
eeentennemereNes tamtihuenh et doakedde son exew saan, od fost te 

ia hl soemmbive oat to dsigtow saw tlanm od, deateue, ie 
biooes. 2 gaiwalyes af diyoe afudionghe th Ie dead ea? na 
Kipe tabhiaeh yloslaao ton wie boLioned ey nowngend ty + sian 
od? ,enao some WL #0 F322h vleadtuog at .egemanet dosing oi 
2 Aohipiow at wgatnevba yralhre sacs exem) a toot Pewee Leite 
hide se LEN Reel Ebene wh Re oy ee 
ous Sed? tasdo 9d 2% .naided cue at ered eomeh tre eM 9). 6) mi) 
youd an adout odd etelox dom, aoob soaagatiw ‘ta: crotn todte onto 
Mani! nuigatdiongae Hein ccalt! due che Peneweie CL tea meme hots Vea he 
ma dapbaaies: gtd Jatt ,tevewed,getacthal trope @8T) sony om (od 
he bLgind. oat Ro snholwont ahd ab. daoto teh ytloste tonal mata 
gt eVi2enloty, Atty yahlaad ah dawetaungs ear on, fans paQeu~ate 
wigan ydtnebiwe va Xmabt ban Redon bm aeenesgoogs Shank seupen 
of duel Vets oh dat? aW .atapmnretua dose te retontade oat dnae 
avton onodlt fad doo'tts odé of atachon tah edd toyeda ont owed 
S70 ome was Sait yalyetiod yodt ,oomegta aid wt bedeoone oF 
stottas yotqrriasd ot of sons wtet atiw KI NOWOO TES fwd anton. 
oud of volt adliaam taroree bostsee, need yiaanmange bax me | 
ght at etandanteb out Yo. + pantie net. ssenteinetiM vo RA om 

















‘respect ig not persuasive, 

The wnoentradicted fact that on the day alter the 

| exeoutien of these sctes plaintiffe comuenced sending goods te the 
defendants UPON Mengrandum agreenenta, tends to sorroterate the 

— testimony of the plaintiffs, whieh ie in (Atireot cenfliet with the 
“teatineny of the defendants. 

f The burdex of preef wae upon the defendants, The 
Finding ef the court fa entitied to the sume weight in this court 
the verdict of a jury would bave, and we have no right to set 


finding agiae wumlese it ie againat the manifest presonderance 





(ef the evidence. We oannet on this recerd so find, and the Judg- 
‘ment of the trial court {# therefore affirmed, 
AFFIRMED, 


eiy, ®. J., and Johneton, J., concur. 











ee ae Shh: du: dente Aare hewn ate sit ost it 

eels ad sibbery quitiitans Rew mesnaae eetaatny doben-eteth: Re wetteate 

edt staxedortos od abies ,ntaensetgs ewhnatenmm Ange. einahae he 

eit ew ded kb:  - wh ee *) we ” mi 

hail BB rea eeteh mal see cee sa0ng 1 wa a> ee 20 

sou oF tye ein wie he ta : dia ahumrcmiett sume tien 

ss sneeeenanbaiens capensis eneahemademuuion 

SER wos WHhRR De a deniabte: - Stare winavi 

oSSAT RA, Ra RO ek Oe Rae ls at 
HEGGAG ASH A Ree sas Wralaie 40 af KAO RR ag 4 he, te teat pat 

eo eet ee oa m ss iahiaahlna 7 


es held a pape sie at Res Renan’ Ly gel 
ED 5 RR SIR MR RAR NC eee atk arr seid 






























Sys RE RA Daca Rk Wins ae ON wins, NS Epa OR On i i tet Pweg te 
1h eile \ s ty "i 3) m ebet ban y 


Owe Bie ie Mie! > re i Be ei g TO OR iy 
BO ARS ERA RB ah a ae uae Ae ie ae a 


HO ie Rae a) ae ea) aU OURAN oRG ne Shae Camaro tin a 





BOW IPR MAN Bah amet pial nieitoia or SR coh) 
fee RAY UE DM en a RCM ee a # ibe, Bi ont, eS tte the 8 : 
BR Ee RMI BS aR ota a Ra ‘et inane Nataon yee at, ici , 





ca ui shi I fete Het WR bbe. ny eae tye we ‘i ihind’ Hi Sine wishin Wes) 


RR 


OB RETRO AM MIR aN calms ARTI sila he eine seth 


Bie AN GEE AES ee RS iy Se oe) ee ake eae | Ee ; #45; i bi 


LAY me ORE Fae eu a me | eae Dsbiittyiien 


Hp eh 


164 ~ 51205 






ELVIRA KOSKY, } 
Appeliece, ) 
APPRAL FROM BUICIPAL COnRT 
va. 
OF CHICAGCG, 
i BE, GHAISTRESER, Doing 
asinese as JOMa x, * CiiRT BT Mu SRE } : te L 
CY AND LOAN GO., and MARY } ey Ad FPA egy 
TURRIKE BARRAIT, fo “EE Lolhe Ded 6 


Appellants. 


MR, FUSTICK KATCHIRTY DELIVERED THR OPINION OF THs COURT, 


The defendants appeal from a Judgement ia the sum of 
‘$2020, entered upon the finding of the court. 
; In her amended statement of claim plalntirf averred 
‘that she entered into a contract with the defendent Mary Catherine 
Barrett for the purehasse of certain real satate; that sald Barrett 
h title enly in trust, for the use of defendant Jehn &, Christen- 
















» Yho wae the real omer of the preniaes and who reeeived all the 
ideration and benefits of the contraet; further, that she paid 
Fendante under the contraet the tetal sum of $2030, but that de« 
ante falled to carry out the contract in accordance with 1ts 
®; that she therefore dewandied the repayment of the eums ad 
ra eed by her under the contract. 
The affidavit of meritea admitted the execution of the 
ne tract on Getohber 3, 1924, but dente? that Mary Catherine Barrett 
Meld title to the property in trust for the use and benefit of de- 
fendant Christensen, ant denied that defendant Christensen was the 
of the premises or that he received the consideration and 
[te of the contract or had any interest ehateoever in the 
y mentioned in the contract. 

The trial was by the court, with finding for the 
Laintifr and judgment against both defendants. 
| it 1s apparent from this statement of the case that 









Res pee pe ERIM wre tae 


(ae ORO as 


< Nh 


ARES sehuhoniel ‘wos aaa a Ra a Al 





, ise SC Be aa Bt ie 

Sed .hel i & g 
»&O 

ral se, sae a et Ber ARE Bid ist Wane aa Pwcgrnr, Split el 


PF: fe 


an tans wat 


nk sl mort rescue iia oll : 








oulredind Vid taghes'teod sat Aide sowttnen 4 oak howetae ode be 
$tevtall bhes dud potatoe Laer slates to ouasionse oid wet Sern 
anedol iid 4 aiot danbas'tod Ve wew one Gok Heid Ae Uldo oti We 
oid Lip beviesot ote haa esntanre od? ‘to romwo tnot od? ew oe " 
bhaq vce dau? ,xendawt pdowrtéoos edd Yo erhteued bax soiserobtaa 
oth tad tot CBOSS ‘to mun Laver et tometnoo od sebeu aban os 
wrt Aiiw sonebrowen ai toartaca ost tue wxese of Settet adasban 

abe aswe od¢ to duomyoqes anf Hobuaiwed wuoteredd) ode tad ve 
-doateee oft reba tod yt boo 

Gite te aoliunexs siiy dete bwha etivem to Fiveb ite ae rea 
tort antwedteed rel Yast Nelooh tue ,eeOL .€ cedoted ae soe 
nob "te Pe tONed haw oow SOF Sold Fowed ab “PtoqorH est Of ore bi 
ent caw ve sentelea sanbiotes Gadd boiied bad qeeansatie® saaha ny 
ban apiterahiewnn oat havtowwy ot edd to wpa tonte out ‘te om 

$d wh toveonsede faetetah Yee bad «0 Peontmos ould re hid 
 temntaae ‘vit at benotdans ydeqer 

salt not galbalt diddy tao sat et aa Bits Sell oo, 

| hunaceni Meee ‘ 13 aie asegtut ban Trheate 

ee wy 




















f that John %. Chrietensen in fact ovned the property was 
ary in order to entitle the mlaintiff te recover ageinet him, 
The plaintirr has not appenred im thie aoyrt to eup+ 
po: the fudgment, and the defendantgacaert thet there ie ne 
or of in the reeord of this essential fact, 
4 Ye hove examined the abstract, “hich pregwnably is 
‘ et, and fall te find any euch evidence, The finding based 


on aA mere guess ¢annot stand, and for the reasons Indicated the 





t is reversed and the cause remanded, 


REVERSED ANT REMANDED, 


y, ©. J., and Jouneton, J., sonouwr. 





Re a day 


CN ha LN wie ce ‘diary heise ‘a 


Lane debian Padi a “ een a isin we 


ie Ob a hae. Bey . Sees wend 


Bia Aelia ait Bei atl ‘ees ni. 
Ae ey wee SRN Ny 


a 3 wi iui me RB ay aeaaaes iQ 





393 = S1525 


. L. WRAVER and S, P. WEAVER, ) 
artnere as THAVSR BHOTHERS, } 
x cau, APPSAL FROM MUNICTPAL 
ve. 
GOURT GF GNTCAge, 
ORBUGK & 00., a Corveration, 
ing Puciners as ROERARY PIPE 
ie HILLS, 
Appaliaa. a ‘ 
2 4 4A] me ot O ep Cc 3! 


BR, JUGTICE BATOHETT DELIVERED THE GPINIOR OF SHR COUNT, 


The plaintisfe, "ne agpeak, sued for the purshase price 
OF 252,500 feet ef pine loge old, am sliegad, to defendant for 
the price of $1,010, 

The affidavit ef merite denied that defendant was ine 
dented ag alleged; averred that the alleged ventract of sale was for 
standing timber, and therefere, by virtue of the statutes of the 
State of Lowietane {where the trenoaetion teck place) concerning 
the enie of imepvablee, nuli and veld, because net in writing. 

i The i##ues were subsitted to a fury, «hich returned a 
verdict for defendant, The motion of plaintiffs for a new trisl was 
oe and there was judgment on the verdiet. 


S% Wili not bea necessary te discuss at Lengta some of 











Pointe argued. The plaintirts couplain about the instructions, 
ae theee were given orally and no objection made or exeention 


a to any of thea, plaintis’s ore eresiadted from maintaining 
point in this court. , 

The Lovisiana statute concerning the ssie of ime 
Hiee 1s & statute analogous to our Gtutute of Frauds. It is 
0 e We think, appifeabie for the reason that tha contraet here sued 
Pp has been Tully exeauted by the delivery of the timber. Under such 
. ‘tute to deny the recovery of the purchase price on the ground 
the contract was not in writing, would amount te permitting 








en 





BSOLE « & 
wet TA ON UR AMES, ne ain Th Raaaadh ia 


t 


F <OOan tid #d VMROD BR Uae ee RINE, 


yt 





ig © Lcd SANS coe vr nent ae 
“trad ime 20" tomarto « wire tanta thitviae ieee 
tte OS "hye aOR wy pee, adoro 


paren oenstowwy out x02, haan, ie oviw gti ett, 


tHE Iaebae' teh of, pbonetin am Slow ened ate Me too? A al 
: donk! Ck ote snore bad basso 
onk enw ‘ponbeartay: ease iain - epieeda ‘te tivahivta eft Ne 
ol aw oiee ‘to toattace beysite one dads howxeve phowe ££6' ul seem 
ant Yo aptetave odt ‘to eudviv qd ywtotetets baw testers phi 
 galetecaes (nonig Xoo sohtesamesd. att etade) anatetead to wen 
anitivw af fou amumand ior how fem ,aetdavemmt Ye otne 

@ beautes cose ,ytwl # oF badd Lictinew oun mosmn & gett. | 
sav fait? wor # wo't Otiitaindy to soktom oft .tnahaated tot ‘eon 
; : sto trey ait so door bel, maw wtets fue r 

te omen adyaead be mayen db ot veanaenee ed soe Sfgw as | 
sRaottourtear add soe aba Lqwor Ti statelg eft houryta adalog a 
- Be hiqanne ol & Baan aotsvetse, aga foekas ehtaro wovly ecaw enemy ida ay 
| aaiaiasn em nowt heturlewste ete eth uenlete: ORS ae ot 30h 
: : pa ete, ahag ak dahog ” 

oni ‘to Lee sult yalesnonee ptutads ene be hued ott | 

at 4 .abvatl Yo etudnse me of supnetann edudare a aa nen 
hove euad Fatima silt todd soasoe odd 40% ahdao thane er w " 
dome xe bat! otegnidd oid Yo ysovideh edt yt beaueene whet aed nah 
bawoxp edt no eodnm sensionwy, ent oY ’ oat ceuwb of onenen 

















st Asai 


pate! late of Jmrome Rew anit baw “am: 0 ws ma 





the etatute to be used ae a instroment of fraud. This wewld be 


equivalent te a license for commercial piracy. Such & statute 


eannet be thue used. 
fhe centrolliny question in the ease, in our ocinion, 


is whether the verdict and judgment are clearly and manifeetiy 
againet the wetgnt of the evidenee, 
The evidence in the reeord tends to shew that prior te 


January 1, 121°, the KaeKinnen Lumber & Pole Company, Ltd., & sore 
peration organised under the laws of the Dominion ef Canada, operated 


® eecl) sawed) st Provenesl in the state of Levieana. Sefandant, 


‘Sears-Roebuck & Company, at tae same tine defag business under the 
Heme of Rosemary Pine Lumber Mille, oparuted a planing {11 ang 
Miatributing lunher plant at Geuth Manerield, Leuleana, which was 


about fifty ailes east of Provencal, It alae operated a sawmill at 


@ranieane, ieuisana, which wae sbeut tohres miles from South Manse 
Field. Defendant had been doing business in that locality for many 
years. 

in January, 1914, F. A. O'Sullivan became manager of the 
Rovenary Pine Lumber Hills ond continued to act as such manager 
| ik December 1, 1919. O12 predecessor wee one Gol aman, 
‘i The plaintiffs, Veaver Brethers, evmed timber lands in 
vert parte of the state and had an officer at Shrevenert, Loulsana; 


?, Wanver was in charge of thie office, They had anethor offies 







, Flora, Louleana, which was about two miles from Provencal; plain 
| ;. T. L. Feaver wae in charge of that office, 
bs Prior to Jenuary 1, 1919, Yeaver Brothers ant the Rosemary 
Thaber ai .is feat with each other and had sutual acorunte. 

On or about January 1, 1914, the MacKinnon umber & Pele 








y became finanet ally mbarragsed. It owed altogether about 
DOF $13,000, 97,200 or $8,000 of which was aus to defendant, 
Pine iueber Wilis, The defendant Mills bet held a first 


on the mill and s second mortgage on the teams of the 








ae ek A 
ad Sivev old? .buett to taametdent we ae Maw ad et etueete in 
eivtnte « singed 





| bat a i | ‘deen putt ad ton 
Hokage aye at aman ens ab messmo : umshtornes. A zc aegis ona 






vitestinns has yliests gue taeaytiel bie todntew 
7 | | sepaeb tye, ode 9, tolytow ante ia ‘ 
ot salty tot reget ot. ‘nbaaed bree wit wk canedievs ast a Re 
“190 2 yohtd qanquod afot &. todd aeration eft, EE af ¥ 
dhodatage yabacee® ‘te netnined edd to ewel att soba hartasgze cota 
drab tee annekvet to poate edt ok Lao nsvex® te Sf teres toes, 
edt teh apadleud yalow amis omes- oho 28. pg fb Kpudeo omnes 
baw ifts aalneie a betarege .eisih todmd oak) Briere 
eae ils btw Satine dwod Rho tomalk ses fa: Pomnky wo dined yak gectcts 
“tu Thies e betaregeenta OL .davasvert te, saws, te a 
seis! Atyeo aT? eo Lie owxtls ¢weds, gaw ep dete sanepbnod aeons 
tasat WOT WEELOVOE ded’ at meonieud pated awed SoA daa Hifi " “s “ 
ate pe enned caw h Digit? O all a yenen: ene wa. a 
“geigacnn dart at ton od Bound Fave id SELkM wedded ombt ween 
xa £00 Gs ew RonRoDsbeG BAK VOLO gf ‘codiaenstt be 
“Wat abit Todt heave \aeAKsoet YovaeW pwENtatdle oT 
eT ee fe ee ee 
po htio Veda ped ¢ott  paekt bo whay Se wip orto ves’ ae aves 
ottle he phasaeroet Lal aft ‘owe: ounde war “eho Rew ecm Lae 
savi'tte aaeit x0 ewtncle mt’ 09 seme dot 
poner" dae ‘nat areactoone torwowr fear yh tad oe tole : 
sedayodte ters oat hast Bab éohee’ eae Wid bw awh 8s i 
“atet 4 ‘tdial id eormt init wn | OL0E) ‘vonuaiet dade 0 009 bill 
“gyods selidgodce Bows a2” ‘shdeaae tain yt Oe Be ad | 
.drabaiiad oi “ohh abbw itn $06" 000,88" xo 9007’ 000 
bani 8 bite Ay otal 


! m ‘ a i ee 
" 49 bier) 




























Mackinnon Lumber 4 Pole Company, securing thie indebtedness, Avether 
party held a firet sortgage on the teams to secure » claim of $2650, 

Mader these cirevumetauces, on or about Vebrusry 8, 1919, 
the MacKinnon Lumber 4 Pole Company, by authority of ite beard of 
directors, entered into a truest agreement with F, A, G'4uliivan as 
trustee. ‘the egreement was in writing and reelted the 112 health of 
the company's manager and the debte which were 4ue and wrageing for 
payment; that the resources of the sompany were such that a anecean- 
fw speration of the mill would pay ahi debte; that a foreclosure 
woul? be dentructive and detrimental: thet O'Gellivan would undertake 
te onerate the mill: appointed him the sgené and manager af the busie 
hese, and turnad aver and delivered te hia all the preoporty and can« 
tracts of the KacKinnon lumber & Pele Company "te operate and manage 
the same for the beneris of the said company, and te make euch pay 
monte to the ereditere er the eald opspany from the funds ariaing 
from the operation after payment of the sexta andl expenses of operae 
tion,” | 

the agreement further reeited that the Rosemary Pine 
Lumber Mille woulé advance the MacKinnon Lumber & Pole Company $200 
in gash; that O'Sullivan waidertesk the ageney, with eli the powers 
of reeoiver; that he undertook to obtain the consent ef all eredie 
‘Wore; that ali the buildings at the will were te be warned ever to 
htm; that he should render monthly statements to A. ¥, Mackinnen; 
‘that all the property, sooks, contracts, *te,, saeul4i be turned ever 
to nim; that if O'Sullivan showld aveertain that the Kackinnen Lieber 








_& Palio Company sin plant coult not be operated ot a profit, he 
%, upom ten days written netics, eancel and /relenee himself 
all obligations ond take such steps aa might be neceneary to 
tect the Roseaury Pine Lumbar Mille! indebtedussa, sither by 
eure o¢ othertise. 

It is expressly stated thet the agreement wes dep end- 
When the consent of the creditors; that 11% showld exist until 


ike 








edad monatlna’s nats saitt adetione b tucks mine b Lua 0 “an 





©) 


Behe weeds semonbemtonan, ert GeO MeO, shot & esa ore 
« REDLE, Roy whe ho & wiooe we won e writ ne egnnd t0% sarts s beatin: 


Med B plano teode. "0 ae saponet emotes spend ewbent We auth 


he bem, mg h 4a, weds onhine 4 remo’ et0u 8 wodanct movin Bans be 

en aathhtsBts, AY ste gummereye dave a oak nenwone veriiteen 

to mofaed LL aad hetines bra weake tow at ene Sebo tl ont’ “sae 
tot anieomny ba bub ouou: io bite etvos’ ont hea ae grant 2" ern gonoe o 
atagenus 2 Fad? yuk eror Yaga std "to seonvonen oath: taste’ tei 
Swrymosoero¥ «Yate ation’ the you Btw Let bo: ‘noiteriae 
edodtndine tine smawhltwa O° gaits ‘pLetnowtetes bak owtion whieh od bn 
atagd 600 Yo ‘opmanm bad Figs sats mtel bateboqie {Cth etd ‘Siaekeo” 
anos bimi wbmeaotg wot LEV mbt of béaevdteb Bhd Rove hook hog a 
waste bine ‘waatelge on” es id ‘ele® Bement moan bn ‘9 oi vpneeee 
syed ‘die okelt ot fal \ymiiqion Stas wilt Ye petkaca CNS Ge 
eae te ‘Bat ete Aart get epson ‘Kine’ om 46 saab tits Garth 

















Neale he Wives oo Rigi 
<Ptoge hil daw sponges haw adios ane e rom ate ‘noksatsae oat ee 
- ! he 
Se gr aR he 
gait whaiieaah ond add bavioos ctwt ‘delonsmnges a ‘ils 


ni ca Ree: , 
OOsG Yeieynios WOH A todd mondtdlend ot sonavhe bvor rosa “ 


arene eat ‘ff thw yore ge ond sornobuar navi Liye? ‘tai pines | 
phi 4 by ela Bh Pe Bh 
alaety “tte te Yabnnce oa? abesdo 08 dootsotiny all aid iw tones - 
Sp Ras i AN est 
ee hwo woweniy’ ba ae ataw ‘ihe odd te ‘eyath fed oat ike eee 
ea hae ender ght eta wi . 


oy pniy ts Roa ie a of ‘ntnoin ate ‘ehtomom tobnee hworte Kereta roa 
ey) it ERB 2 sie) 
wave Bennie 6¢° bheode sede vavoetanoe aiood etregora ae. Sie 


a PCE PANE RE a Ri Seiaidme 
teat 
ae *en¥bke & - hedatnge ot en ‘hwo taaty ‘tein ene Oh 
ty eae fhe PRS Ras 


Tebantt bane tomy haw tbe od ive ted enw syeb mae m0 
a ML ig hla h 
ob etadadebl ba daybe aa ‘bqoth dows iowa ese Bay enot . 


inal ‘eit te “ dbsansbdsnad oie by it wn 


a aie eg 4 





re 















Pe a aah 


y ‘e Wy foil 
LO yee: CARRY MPN ARN ak 











Hae a AS A lie Nal Phe hu tats rit Fla 


oneiba(eis dav Fancinnaija hover 
fiéng tales Nttode FF dund fete 


the dette were paid eff, elthner ty seperation of the oreperty as 
provided, or by payment of the debts of the Mackinnon Company. 

The consent ef the ereditecs, ef vhom plaintiffs were 
one, sens to have been obtained, and Cull ivan began the opera- 
tion of the plant. Plaintiffs owned a tract ef tinder land of 
about 449 agree, “sich was situated nearer ta Poeranent mii2 
thar wus other tisber qvned by the Mackinnon Lusher & Pole Company, 
ané while O'Sullivan was thus cperating the will be began nego tia« 
tions with plainilifs for the purchase and cutting of this tinber, 

end these negotiations reaulted iz a eentract of purchase. The 
@loputed and contrcliing question of faet in the ense 4a whether 
O'Suiiivan Puroghased the timver From plaintiffs in behalf of the 
Rorenary Pine Lusbor Milis, aa plaintiffs oomtend he 4h4, or 

as trustee of the Magkinnen Lumber & Pole Company, as the defendant 
“geserts, 

: Piainti?Y &, P, Vaaver testified that im the course of 
‘hess aegotiations he explained to O'Gullivan thet plaintiffea eoulé 
‘not afford ta sell their timber ta the BacKinnen Lumber & Pole Com- 











of acegount of its finang¢ial condition, but that they vould 

i the timber to the Kosemary Pine Lwaber Miila; that O'fubiiven 

q : agreed to purchaee it, enti that defendante therefore pernitted 

, i te go ahead and cut the timber, leaving the matter entirely 

j i bis hands, 

| jl Plainsii?’ 2. L. Weaver alee teatified that he told 

" s ivan he eculd net sell the timber te the Mackinnon Lazber & 
oY Company on aseount of their finanelal condition; that at os 

time O'Sullivan came back and tol 4 him taat he hed made 

ra ents to buy tha timber for the ae¢aount of tha Ho esmary 

ne Lumber Mille; that they agreed te sell bin the tleber toe be 

a for ae eut, and that O'Sullivan agreed te pay for it at the 

Of each month; that plaintiffs 414 not dirry the accounts on 


i 
t 


a Pe ica eats ae pnazawe Pa “ ae sence ou 20% attigaiody 


seatnn ted eat Ba _eaeegee eLot & ede aoan dave’ te 


asi TT 6 ae? ine: oi Y 
i fe Wee SS PGS Par aay gue Sip) fe i$ Gis) 


a enrens ont it sans be ritians eevee o% 48 Wisse se . i 
biewe ext Aeatale ageit Labhiiraeshelae iid fe shale est euokrastaxen ‘ges 





wD 


PEM Ie wey a ee aCe eit janet 


; a8 esteaor or) te ng Ldawege rr wont he Me bhag stew afdeb © 


CES ae aaa se ay 

peat nene.itent emis te ardor ute we Pomaeyog «¢ te shobive 

Cn oe ae vie 

eaaw eves ine te sigite v0 ser ed Lhone one te Jaeeaoe eat | 
ee ee ee ae 

_ tees att anges ork Lis8* Daw sdestatde eee oS oben Billy in o 


baw “odast 29 te fount * bene mitsaiess benle war oat We 
MSS Ae he egy: a8 ihm 

shes trocovengt a9 xss hodawdte sa dig Lite esoten “ares 
; f i ee 

DY, Sew pra ofa’ 4 sedated oantawan out “d boa tdald ‘geae , 1 

ee aid is sa ‘ 

Baath oagod on ifin out jalerego eanid aa navi Lindt 19 


tt hwy, waa’ wa ite 










hin oe Pep eae ih We a | ‘a 
wee seas ‘x8 senso a wh bos tuaos were el ! 
heen a ERO SAN a 


weston | ah eune ad ah soa te aioteneug aalifer2s¢0 


wig Whey gins Bali ry, 
ose Ys ‘pies wh avtseatate aor rodial’ outs ‘besocewrg | . 


1 TR Ree A RES, gael : ‘his ote 
mo bab nd davdmon eveteatetg as eit Se omags ok okt Br tne 


Ni Sie ae 





ty OL fe ames ke prs Oe ks 
aa PE I ENG on Salt ie 
- Sa an ay 


LY aie GE a Na Ue aa 


Pisa ake a wodmes moanbtoe.c ett at tedte stesty Lion ot prota # 


% whe bio wea: primp 
baa ea ast aud aot 2hw0o Aetonar eta hog samenee mG 
a Re Thr) TOR PAC tae Ce ey 


et s imi 5 
mevliga ae peteas, nodaark oak etaaea oH wnt od todmit ead a 











iter hak Raeig ‘3 La a 
Bets horny oxo teaeds eduadno'tes tad rie at cuadotug of 2 
eee ike. SER iy Bie ic Beg SRR ‘eek bik, 


ee i undiaeed outs aatvaes vtedats ote tue sent heeda oa & a 


Se RE oa ee etre: 1) PARR Sic) i" end 


ca wliigy fi cies af vie lie, 


(mtn tent Afiate ta0e Lytonuntt rece | Eioere pod 


sillnd oy 0 


ham Ded ooh fusit mt Deed baw son toe eh 


a Meh MOEN Rees aise 
Dveiiink etd 9 aati: pe sak 













the booke; that there was nothing te carry on the beoke watid O'owihie 
van out the timber and turned in the ameunt; that when the oi tres 
talked with O'Sullivan about paying plaintiffs for the reaeinder 
of the timber, O'’Suliivan said he would but that the Rosenary 
Pine Lumber Bilis nad on account against Yoaver Brethers, -hieh he 
Wanted to get straightened out before he sent a cheek far the 
timber. 
Another witness, whe was the bookkeeper of nlaintirr 
at Flora at the time in queetion, testified that se wag present 6% 
on the day O'Sullivan cave te Flora and made arrangements with 
Weaver for the timber, This witness says that at the end of the 
talk with T. 1. Yeaver he asked O'Sullivan if the Resemary Pine 
Lumber Mille wae te pay for the timber, to whieh O'Sullivan re-~ 
‘plied, *Yes," ond that Er, Weaver told him that wowld be the only 
Way he weuld handle the secount, 
One B. B, Goode testified that he wae eretit wen for 
the plaintiffe at the time im question and eaid that he was in the 
offices during the time the matter was discussed; that the deal was 
‘ Made with O'Sulliven as manoger of the Kosemary Pine Lumber Willa.. 
Pronk &. Cook testified that he went to Nanefieldé in 
the Oummer and fall ef 1920, in company with A. W. HacKinnon; that 
he went at the request of the Continental Bank & fruet Company of 
_ Mareveport, Louleana, to see T, A, O'Sullivan, who ene then acting 
&8 trustee; that the bank had tentatively agreed to Lend HackKinnen 
"money te take wo the mortesge indebtedness of the HacKinnen Lusher 
4 Pole Company; that they met O'Sullivan in Hanefield; that o'suL. 
Awan telid hie that he would net permit the preperty to be taken 
‘Out of hin hands woiens beth the mortgage, indettetness due te the 







*eaenary Pine Lumber Hille and the timber account of Yeaver 
thers were paid, for the reason that the Rosemary Pine Lumber 
8 Was responsible for thie lumber agsount; that ne would 


' ther have to be paid, or that Yeaver Brothers would’ have to 


i abet same aoa asit tn eke as _ yakeien wane one ds tame, inons oa 
| ee Bea A: ae 
i waned be salt ‘soni douly itr os gui? ad basnay or) toduts ead due 829 

ee Vy Be _ as Bye 


webatant ‘oat xa atiitsiasy aahyon dnode aav 2£t98 9 athe bodied 


| wiawenee ad Pant tut bLaror ad bias ow astuet® pean Fe: 


Daal 


i emt ste Betw ened od sewast! featays tnwroose zs bax verry 


ons tat daeoce ce Edsall od a oxotod eid ponnssiytante tou fe. 
| ‘Ey 








; ri P ty te be 
| : pihinbete Ye weononiveod ona Bow gute vanoade xnedtonh Ay ng 

ee 
| ' 


al tanaate kid on toni he hr teat enatsaonp at ont ont ” ssieeel Pi 
4 Beebe 


“fate aan xmgnn tes obum dae ‘eres ot sume mart Ltueto ib iit 


Stas pape es 
weit te base ost te soda ayaa abet te ener srodats ony tot 
> : aaah bane 
ones eEaann OF oad 18 atv bLkai2* 0 benten ot tove08 oh we sane a 
bathe ee Heese wt 
weet awvat.tutit 0 iy bite : «todads sat ‘a0 CG ae ase ace 


‘eno watt wd bituow saad naa piot sovaew Bs tot ‘a 


ie Oe 







Cees rig 





er eae these ada wrt Sask bad ‘thvoss enpob Co ied oar vit 
edd at a] va baat bhae baw soisaeny ah owks eng ‘ta eridatese “a 


ane aah ont dade ;Beasyoo a ew r0dtea ons omit sas aa e wh nels 
Pereruy ‘odour onta wtesian of outs te ‘wepeane as mayb iva! * boys “ 
al bio iaiot oo base oat ‘tad be Pingase ood ey ae ‘ei 
tosis jsoambten x we 4 ate Cd ab +080 20 fier nae bergen 
te woe fost & eentt besasoseued, aa ba seenper edt ta tnew on 
patton net saw ose may hi kao A 6h one of oonntwod y afrenerenr 
enttaas hank oF heottae ecovthnsoet ae dnas ost oaste Leaibatuinn: 


wot aetna outs ad  agnattasionad oxeatrom one we ad of ‘ 




















Hat 


“sovaet ro ‘jawoson xed be rie aeons 


ped oaks ‘yuaimnn ok eiit add de 
PE peer ee 
“bitvwe os sath iehwoawe wom k shad not 
Te a ea wee ota Ce 

en ‘oved étiew eestor awvee® Bart? to 





Pelilevwe the Resemary Pine Lumber Wille of any reeponsibility. 

A. ¥. Maekinnen testified that 7. H. Cline, manager éf 
Sears-Hoebuck & Company, had given him to underetend that the 
Veaver Yrothers'vaceowmt vould have to be taken care of dn cash, and 
that O'Sullivan hed stated te him that Geora-Koebuek 6 Company was 
Pesponsible to Yeaver Erothers fer thine timber. 

This testimeny of Laciionen was denied by beth Cline 
and G'Sulidwan, and Mr. O'Sullivan testified tn detei) denying 
the conversationa testified te by the two Weavers, by Brnest Lucky 
and ¥Yrank ¥. Cock, 

The plaintiffea undoubtedly produced the larger awaber 
of witnesses wnese teetimeny tended te euetain their contention as 

te the ultimate quastion of feet, but wea have often said that in 
aeterulning whether a verdiet is againat the weight of the evie~ 
dence, it is the duty of thie court te weigh the evidence rather 
than count it. 

Plaintiffs eonten’t that it Le unreasonable te supose 
that they weuld have aold thie limber to a party who was knewn to 
be financially embarrases’. There io someting of merit te this 
@entention, but the weight te be given te it Le lessened very mach 
waen w6 reflect that the agreement apparently wae thet the timber 
‘Would be pata for monthly; that plaintiffe hed mueh reasen to 
‘Delieve that the trusteesiip of O'Sullivan reuld remove 211 finonecial 

 @abarrasenent of the Kaekinnon Lumber 4 Pole Company; and as the de- 
| ‘Pendant points out, it is alee quite diffieult to understand why , 
under the clrewistances and whhle holding mortgages which wauld 
have permitted it te foreclose end take ever the whole business, 
Mefendant should undertake to ageume and ineur responsibility for 

@ $ which wight arige from running the businens of the Pole 

my. If the defeniant wished to go inte the business ef 









stending tiober and sawing it up inte lusber, tt sould have 


oD 


| eh LE wangnet yae to ettbe see etousl Gott yawned off & yas 0" 
| w tone “eosted 4H Mt dimeta betiitend meankiaat WA 0! OO! 
| i nel sucntt bawtorobaut od ated mp by beet owen ry ‘aaiihintseid 
: ivan _ nee ab to axa moved od 09 ovnd Mtkow Faces “ erecdort coves" 
| Rew anal & taudeonoarest ‘bad? até oF beteda bait mowed dehy rH 
 modmtt elds Sot eundtont xovnit of ie tebaliagail 
Ltuetaid ied G4 reloah aaw aoantioali te yaoulseos atts 9 * as 
aaixoo thavob od bob taeded aacretdéVO Jee Bad (uertetagta ba 
wound asasit bid Coen ‘wat ore bad ‘od bottivaes agolvesrevaed ot 
| ihvedi i “aloes © et an 
al lad’ oi? baowhang tied vote inaeaeaite ett” FE cemet 
an wobinedoms cies} alefeon o¢ sebaed Yndolsood snedw shots Ba % 
a aut “hina sobte oead se ud , doar to wokda asp’ paisa ‘othe 
| ahve aaa te ‘paglew oud terlega ak ‘deldrer s ‘gedtece” ak zi wd 
worse ponsbive aed vos at fuses Ialeshd 46 vo bo ‘wi ne 


eae le “sil Kia west 











iF 





eoeaens of “ehunnonnotan et ot tame five Stow aitiskieit 
| of ros ‘Raw oite ert # od tedemk oho pion aig aur wt ia 
wp ie at biunn So wadiide aoe ‘ak oxatt | hokentee riteke. a 
sum ‘exer houpeaek wl PE af aerhy od ag “gq tow aut ‘ted. saath 
 gedals sat edt saw YLinetethe Jabnowrge off dat Geb cret OR on 
me ‘mesons dow bod wTthiwletg ¢aitt petite! to hag Od" 8 
fatoaa lt ‘tla @ronix biiver anv i ttot o: te qiidnsorertd oe bast” we 
“ob Ws es bee ;yMequod +Lo8 4 when dormtimaM wide "kop ecainbtiialel 
ie bas tnwebsy of hug bt Ab obtep beta wt fk ao i 














oo nog nabs 
’ “Basson nie seant von in angi mn bation me ‘ve ‘ 










| okot ous 2 pee, nalt bal a thy ke 

Ke Walt to, sanaten att otal om of mate 4 ‘ ito elt 
mate Sy Bik NY So. ag ne 

Mi “me bione a antek aie a n a2 . 


us helene £5 





foreelesed its chattel mortgages and dene ao, 

As « matter ef fact, the KRosexnary Pine Lunher Millis 
went out cf Gueinesas, and O'Sullivan geased te be tte manager on 
December 1, 1919. The tixber, for the price of whitch the plaintiffs 
Sue, Was cut aiter that time, and it de difficult te understand: 
why defendant would cortinus te ourehase timber far delivery to 
the Pele company after 4t had in faet ceased te de business in 
their territory. 

The contrelling evidence in the case is ‘Ae oumentary, 
The contract under vhich O'Sullivan teck ever the Pele cowpany 
business ie between O45ulLivan and the Pole company, and defendant 
fie not a party to it, ner 14 there ongthing in it from which it 
might be inferred that the defendant was te aseume an obligqetion 
of thie kind, from the time that O'Sullivan took contrel of the 
MacKinnon mill in Kaorch 1930, it sppeara thet the transactions were 
@arried on in the none of the MacKinnon Lumber & Pole Company, 
Btatements of aceount were made out in the mame of the Usetinnen 
company, letters written te plaintiffs concerning the transaction 
Were signed in the mane of the MacKinnon Luwbor 4 Pole Company, and 
the cheeks by which payments were made were alee executed in the 
pane of the Ksckinnon Lumber & Pole Company, Ltd., by O'dullivan, 
Reeotiections of witnesses (most ef them much interested) as to 
ora) conversations (whieh are denie?) cam huve Little weight as 
against the written documents which shew the usual course of buni- 
none extending ever many montiun. 

The claim that defendant was liable in this trensae- 


hy 


Seemn to have heen wode only after O'Suliivan went inte banke 


om in Mareh, 1922, 


fhe burden of preof wae upon the plaintifi's te *etebe 








their case by = preponderance of the evidence. The question 


thie court must decide 1s whether we gan say, ever-ruling the 











“white rodeasd oAke yews eh HAF yeoett to Wited eek 

ae tegowim eek ad ot senees auvd Lomo pate (dab atone te wd dw 
ati itatetg ede Mo hihe ts wetig odd vot peedure ade “leker (t sodawo 
‘pantera et hiro 2th wh od bie ead sian rad sichettn 








enagues sfo% edd teve Moot mevilineto aoe lar sree 
enemies tes hae Tehomene 90% sith tian inv too maieed ah ‘aig 
98 te tite aoe an ef gnc wanes ‘eh ton ft oe Mirch 





ate to Lott ag Mood ewe wR TL tes ‘tate? whe ont sidiiia') "” ata 

etew axe fFeer meee eae tant wunaqes ak.  #60K, perry ‘hi angi gull 

et alos & wand Aoaasaaes eitd "te enet aad? ar aes 

mmarbionit ae Yo wwe eae a lad #how eter ‘teboen to anaes 

“Nodtosnaes ad Qekieres coe ert htntete oe nosriaw biadter © ‘ 
bam jemonubty #£0% 8 shear tegen 2m? ose! To enter’ weld MP Woy te 

NOE nk betepexe we fn’ anew shim oxoe adiomee hae wi 

hw LOEO YE YBN eho oot Han dinwt nometitesil! 

at oe (hedaatednk Howie eet Xe en)’ ‘dielaartys nid iii ree 

ta defy tow wiSehe ovat iene’ (bebe oo? sa bite) ich sen vb 

© alltehteet n serai6s aerbar wat woite behaeelninenneee aided i 




















aa aS 


pyaar whee ne ee fe eae 
~siei et ovat deww mavbetutt o Dectehiteesleertiers nie 


mts ill “sensanate had we ro vi ona 


verdict af the Jury and the Judgment entered by the trial eourt, thet 
the jury an4 Jucge were elearly sand menifeetly wrong, While the 
question of fact is not entirely free frem 4iffiewlty, it seene 
Glear to 4#, woom a eonsideration of the evidence, that ve eanot 

fo hold, even sesming ae « feet (whieh is not altogether elear) 

that O'Sulliven hat authority te bind the defendant with resmeet 

te a purehase of thie kind. 

Complaint ie aleo made ae to the ruling of the trial 
eourt im the admiseion and rejection of evitence, As bearing on 
the question of O'iuliivan's autherity to bind defendant, he tore 
tified thai he had never made purchases of thin Kind in defendant's 
behaif. We wae oxked on cvyess-exanination whether his predecessor, 
Celeman, had net done eo, and an obfestion was susteined. Ye think 
the ruling was proper, because the queetion called fer an anewor 
that was neither asterial te the iseues ner proper on eroes~ 
examination. 

An employee of defendant, whe testified in rebuttsl, 
Stated that he had diseuseed the payment of this scecount with 
O'Sullivan on several occasions, contradicting G'aullivan's teeti- 
Rony in thet respeet, He wan then asked, “That did he tell you?" 
ans an ob‘eetion by 4efendant, on the greund that the same was not 
proper on rebuttal, was sustained’. The ruling was, ve think,correet. 

It is argued thet the court erred in striking out all 
rttence of plaintiffs as te a check for $147.25, - plaintirte' 
tahtntt 3. It appeared from the testimony that this check was given 
‘for & matter whelly unconnected with the eubject matter ef the ouit. 
| r Simission to the record cowld enly have tended te confuse. 







s It in aleo objected that the court allowed O'Sullivan 
€0 state thet the plaintiffs were named in this schedule in banke 
ra ae one of hie ereditors, It ia srgued that the schedule 


Af was the best evidence, The evidence wan, we think, pregerly 
th 


SSS 


(1 yt dtm Mele? oat wd Noaedae femmatirh eae Dee vat ont Xe fonds 
‘eit efiey amotr vidae hewn hey, erent oxow Sabet hie vert * 

i tugne £4 cXaEen EVD mov opet, yLonttmy fom ot fest 29 sobten 
tommy oe tact ganna bive - nett t9 rettarghisae9 s wOmH ed oF tae! 

(vets sartgoyo? fe Pom ot epee) toat tMhdal ‘Balance opye were g hind 

deanses at tr taabae ten arte bate ef elronton baal sar cient 


Pee iy ain 


span abe to pteroig ace 


Ae ae YG be me 


pera matt te omiin oat ve Rae on onte ak omtasqnod ms 
6 es 8B aes ae. Na 


mo gatrend eA .anaebive te mektootet ban Hotes tada ot md tan 
ae “aot ad ,teahoe tad heute 0 eiitattes a mayb sue! 0 10 noktenn ide 
4 Reh Oe tiie itn ca irae 


i a? Sambar at batt at t@ conan reg, ahem, even bad wis 3 mid peut. 


i LP eee ak ee 
ne stonazegnetg ais reciagste Apttaminsxa-asose a deadne et Morell eg 
ands eh _sbonkataws eal soltvetdo ae bawe of, ono toa om on bet r 

aoa. a ot net oe molten one pasaned rene: sant ed 


os Ap teqntg tom awe t oe daw Syria ma 4 0: am a 






whee Tk ee eS Dea 


Bes turd at, - tr sdk ode  Poeien yen, 1 novela, 


pp Mee tpeogon ete Yo sanmeng ont Desavon td alo es, 
aiteed st awra sce! o Baits Shextne9. yenotngnas, fererne, ne. r 
“toe Lind of bib Sade «dorinn wos? san eX tonanet taalt at a 


¥) 


tom ae Paine oss apr hawt arty et, ne piowbaeren yd “f, Molgosnde ae ty 
-toeTr on, dates fice new hers sae mh jteatotom ase wd w, phnd inden, ge the) 


Gy SR 


sek & * sees pet 2 
| Lie suo paige heey ts Re 2A PE vat 
| e reir iomtete “ 128,4RK ‘<0 dono of tm arrte be 
| nterig sev deetto whid desis woaivaat om aot soueaus + ! 


a 6 AM 
ARS NTN SS Tat ES RON 




























4 hue oat hie mettom foekton ont athe bos sn aor ay 
ae We ose iy a, » 


A rm & b La ast ’ aes, 
{ rer. ae id be my - ine bsweo 2 drone hel gee begreerng eS 


| | A 
dayiLty®' 9 hewelta sxwoo ott tod? betoohee ii ta go a bai 
— at. edebetioe whey aa baawn —— Mae ag 


to maa et 






‘Muibeton oat 2 taste lai hea 
wend sMakde ow vane ¢ 





1 BeS ych ne hg Oe i ae SAW ba cin ny f ne aE 


oe 





There is no revergible error du the reeord an@ the 
is therefore affirmed, 


AFFIRMED, 


ely, P. J., ond Johnston, 7., concer. 





+ 


‘ ok, b A lus » oo: 





449 - 31581 


INTER-STATE UNIVERSITY OF 
SCIENCES, a corporation, 


Appellee, APPEAL FROM MUNICIPAL 
Ve COURT OF CHICAGO. 
EB. BLUMENTHAL and 
B. Ge» TROWBRIDGE, supuitenkia’s 6) 4 


MR. JUSTICK MATCHETT CELIVERRD THES OPINION OF THE COURT. 


The defendants appeal from a judgment against them 
for the amount of a promissory note. The judgment was entered 
om the verdict of a jury, which was directed by the court 
after certoin «evidence offered by ccfendants, tending to show 
that the delivery of the note was conditional only, hed been 
excluded. 

The errors sasigned end srguec sre the exelusion of 
this evidence and the direction to the jury to return a verdict 
for the plaintiff. Plaintiff, however, has not appeared iin this 
court to support the judgment. | 

The plaintiff, upon the trial, offered in svidence 
& note for the sum of $466.61, made by defendants to the order 

| Of Otto Rabe, endorsed by Otto Rabe, Inter-itate University of 
Science, . H. Jerrett, and rested. 

| One of the defendants teatified that the note was 

| @xecuted upon Warch 22, 1926; thut Otte Rabe was present 





Mt the time it was executed, but the court excluded the evi- 
| dence of this witness as to what was said at the time of the 
| &xecution of the note by himself and by Mr. abe. The defendunt 


to prove by this witness that defendants were beneficial 















( 
LS NYA AR aN PRESS fiw sslal 
douse oo 
Wie: 
“0 YULSHUVIMY ATATA-Aw 
f. smo kd axoqree hy Pesan 
AAUROTMUR MORE LAMA seetleggh | Pe 
OOO EO mie EP cr nw Monee te aii reed 


won i a : 08 aN . ‘ et malLiagga 


a as 
\ ar* 
Si otee 


sane 
i sravED aK? YO MOIRING wien canavaaiee TTEMOTAK sorte, = 


mold ducttege Smee a mort Leeqys saimabas ted ‘oat 
bewdme ace Taseghwt ed? .0ton yroartmorq # Yo dnvoain odd 
duson odé ql betoetzs saw doldw yyxwt # to tolhtew a " 

wos of uyiowed ,etiabaateds yd boretto eemebive aketzoo” rm) 
















simedt uch «yao Lomoksthnos saw eden edt Yo yrevites ond sal 


te moteshoxe ae oso bergre dee bonghase avercs off 9° - 
foltavoy p axevot of Yumt edd of motvouotih ef? baw eonebtye | s 
sidtviatiuhe rege dei ened ners ag ttidaials | | Meheatede eit: a 
; Seamer, exfd srogqua os a 

conudtve af heterte «Lakes ne? moqu «ttkimbatg eft 
zone od od atanhaoted yt oben .£0,9088 2e mua odd x0 ¥ stom 
to Winserial o¢adi-roeal ,edad 0390 ys beatobdae. sods 0980 | 
sbodaet bus aftorxes, oH. ae ad | 

asw atom alt deve pedtitsed sdaohaa tab ocd to m0 
pea sew odnll atdy, donld gOR0L . RS Moxa, aequ 09 FOS 

mkve oma beiw Lene iaeoe mals ual shadunaxe Lied th, ems i : 
afd to omts ond do bine naw ta Of ao paamede alslt Yo 6 p 
sasbaete aT sodas oil Ys hmm Bowmb yd oton dS 0, nokiuong 
Leloktened orev atnohastob sate nesatto aiid ee tend on he | 


“ 

ghareholders in & common iaw trust, known ae the ©. B. Carrier 
Company, which was engaged im the business of manufacturing 
ever-bumper carriers; that on the date éf the note, defendunts 
applied to Otto Rabe, the payee of the note, who wae in the 
Business of making patterns for use in the menuf=cture of 
@alleable castings, to have patterns mace according to certain 
requirements of Peoria Mellesble Casting Compunys that onrtetn 
drawings and sketches hed been made by the superintendent of the 
Casting Company, which sketches were offered in evidence for 
identifiestion; thet these patterns were to be manufactured on 
the approval of the superintendent of the Casting Company; that 
the patterns were not to be paid for at the time but «a note was 
executed by the defendants whereby they promised to pay the 
Plaintiff the amount of the note (introduced in evidence by the 
plaintiff) which was the proximate cost of the patterns to be 
manufactured by Mr. Rabe on behalf of defendants; that there 
‘Was a conversation at the time of the execution of the note 


‘between Mr. Rabe and one of the defendants, in which it was 


agreed thet the nete should be delivered ae collaters] security 
‘for the patterns which were to be monufnactured by Keabe, who 
ms Named as payee of the note; that at that time and before 

| the execution of the note, it was agreed that the note wos 

| @@livered merely as collateral security and was not to become 
(@ffective and binding until the patterns had been made by the 





| Payee of the note, as hed been indicated by the potterns and 
the drawings and according to the epecifications; thet the note 
hh Mot to be valid and enforceable umlesa and until the 
‘patterns so made complicc with the drawings and specifications; 


} 


ee 











my 


ia 





a 

gehere .0 +0 989 on cwomk atewrt? wel soamoe o mt atodblederas 
gairesootwnen te aasniand ot si bogegne sow stolate’ . yan 
stachapteh .odox aid Re edad ens ao dedd goreizsag teqmud=te 
‘ald ah paw ode ,aden ocd Yo ooyag. ody lolalt 0890 os betta: 
te wsetoc want add ot cen rot -ernedeeg: wnttaa tensa 

aiat ton ad peiwioocon ebiw eruisiteq evad oF come tnew a 
niassos sald qyoqua aeti ead wLteved La akroot to ‘ainemwehai 
ads Yo nehneenNnegen aad ‘e obit reed bass entotode baa bonne 
et. ovmsbive mk benette erew assiosedta tohaw oa. sf 
to seartackwrmn o¢ OF otOWw neeteag seedtt dante, anottcolthsnal 
Suis TURAYMED QabIna® ose Io Imohsataluogae sad, to, Levesgen 4 
Baw Ooemt dad outs ost dm 10% dheq od. 6) don etew. pameddag, a 
ot Yon od featmorg Yoold yerpdw etnabme hod sat) ya; ho taoey 
aiid "Yi Sanobtve mt boowhOrdas) efes oA Ro demowm weld Wedtmbal 
ad ad suyerdag oft To sees otontxong ort aaw’ dotdw (Rhonda 
oe tedt duct patmebce'tek to Bhaded ap: essa sth reas ou tai 
pen odd Io metigosxe ode Nenad off 9\ sabtommempe: a: 
gow oh Modde al yrtardaoten eds 20: 200 bad edad i mows 
yutiawoon Leosegaiios as bezovileh od biviesta etom ont aut fa ce 
“ott qbdol Ye betutontemem od oF wrew Metitw emiedteg oft m4 
‘wTOYed See amt gay dal only sedon etd Yo woyaq’ bald oe : 
ake oten ott datt Smowge now ek .odow eae te medeeoes 
auoved of Jom anw dae wiswbew Leretal£oo ae bosons ON tk 
oft Yd daw novd dad ameoitng weld KRY pakbale Diih evteoey 
hte wrod Jog Ges YE Hogoodhal sews hot eo voted wae a ny 
atom oy set? Taneises Ptinage veld os watbaobon bas sgkttwaiths 
vas Ika ba ovotuw sidenote Xe bas “Swe od od toit 
“Gumott ool ose hae aystkwetb weld! abet pabtamce shen 08 eis 


DM Mme eM) MBE oe a te sere 











<3 


that these patterns were never furnished in compliance wikth 
the drawings or ao ae to meet the specifications; that aa a 
matter of fact, the superintendent of the Casting Company 
disproved the patterns and delivery was not made of the patterns 
as per the sketches; that the delivery of the patterns was not 
meade within o rexsomable time after the payee, Rape, had agreed 
to mke delivery, and thst the payee, ave, further agreed that 
et the time of the delivery of the mote the mote would not be- 
Gome valid and enfor¢exnble unlece the patterns were delivered 
within « ressonable time, and tht the note woe delivered on 
these conditions. 

This offered evicence was exeludec and the jury 
imstructed to bring in » verdict for the full amount of the 
note with interest. 

Seetion 59 ef the Begotiable Inetrumente law, 
(Ceahill's Stat., chap. 98, pare 79) provides: 

*“ivery holder is deemed prima facie to be a 
holder in due course, but when it is shown that 
the title of omy persen who has negotiated the 
instrument was defective, the burden ia on the 
holder to prove thet he or some person under whom 
he claims ecquired the title as e holder in due 
course; but the last mentioned rule does not apply 
in favor of a party whe became sound on the 
instrument prior to the acquizition of the 
| defective title.” 


Section 55, cheep. 9%, pare 75, Cahill's Stat., 





provides: 

"The title of a persen who negotictes an 
instrument is defective within the meaning of 
this Act when he obtained the instrument, or any 
signature thereto, by fraud, durese, or force 
and fear, or other unlawful means, or for an 
dllegsl consideration or when he negotiates it 
in breach of faith, or under such circumstances 
as amount te a fraud." 























Wi 
iis 
|. 
HS 
a 
i 








- 


aes 


 Maaw comatLgmoo Bh hedie isnt OVER w TON eoOd seg. enpmt. bay 

&. 8d told fom Roos inage ead Soames eo OB (0 8 ROLE, 
eae. ykson oh? te Imehagdakiegue ead «toa, we aga 
asecteg, gtd %o chem, Jom cow yRoviles bas ausesdng , orld bovexgn: 
| ton Se ARP deg MAI IW YRovdLeh oali dads geadegeda, odd. gags 
berms, Haak Odo somerg aid tod te sald eldanoanens heise aplri 
told dpetge vesidewt —edel sete os Pad? baw, aero reson | 
96 tom, oiwow o¢am odd ofan ahd Ye Yxovsion add, to emt ‘ 
hoiovidod ones aretseq on. soedmg. eidnes ze ma, parenaipe 
80: denen tion: naw gtos pall dodht dete, anmnt pplensscsubais: 
nut gone a ee 9 ROO AF Sn 
a) nas roy Debutoxr saw wpnnbe Te bem 2Bes MLB ” 

at te ecanis shor. att 20% Spthaoy, a mb pebemintad batons, 




















af capil aaiiead tig ig vy § ‘ iy) aa Nm Be Ma Ay, 2 Hf 
r Taaey § i d Tae AER: GRR, 4 


_—% awe 


: te is ai soem, pada a 


wow te 8. 
ge oe erat: ye 


vhage si eiwa Somat nam 3 da . ‘us tenauee : 


ig te aoittohapea, oa 98 xe he Paomuasemt 
yoda @TLLaeD (OR coy 180 yale! 68 RiteeeR OK 








tee aitohiegen caw meetog o Be. 
eure 2 gals rtd bv fe ovtsos ca 


toramaes 
cat ot) ssa6 =n aonb han We 4 ll vogecents aa ’ 
a 20%. ae ‘ ee ) chal 





ee: 


im the absence of « brief by the pleintiff, 4% will 
be unnecesaury to discuss the question involved at length. 
It is apparent that if the offered evidence had been received 
it would have tended to show that the uote had been negotiated 
in breach of faith and under such circumstances ae world amount 
toa fraud. this proof would have overcome the prima facie 
presumption that plsintiff was « selder im due course and made 
4t mecessory for plaintiff to preve to the estiefsaction of the 
jury thet 1% bed acquired title to the mete as a holder in due 
Gourse. Bell v. MeDonald, 308 Ill. 329; Kilegin v. Ortell, 
302 Ill. 531; Straus yo Citizen's “tate Bank, 254 112. labs 
Justice v. Stonecipher, 267 Ill. 448% Sehintz v. dmerican 
rust & cnvings Bank, 152 111. App. 765 lute y+ Matheny, 208 
Til. App. 405 Feru State Rank v. Waggett, 250 111. pp. 522. 


For the errer of the court in excluding this evidence, 
the judgment is reversed and the cause remanded. 
REVEREED AML KRMANDED, 


MoSurely, P. J., and Johnston, J+, concurs 


{| 






























) as 
chiw 2h Vindebety of) ee tiie ito "séuonde ont nt 
“ssldpanl ‘ja ‘pevtownt ‘ib bdnany old “easoukb od exe endl 
bovivoe ‘need ‘pad wémondve bexetho ond” "4a Yastd Suonogaa | 
“pedalaoaee 1 nest bak ofan odd ‘ded ‘woute 03 ‘bobnod ad 
teuema biwow svonadamuotte ‘fone “soba ‘pin ke ee 
aa a omeoova per bs 1 deuae Gia ernie 
een a ‘wbbton ‘~ ‘sow’ thhsaac Yall ‘po ndqaiies’ 
tad bal 8 to He x tal 
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18} - 31080 


WARY B, BIGHIN, Adminietratrix ef 
the Betate of Charles bichin, 


Deceased, 6) A 


t Ai if Le ¢ y + 


SU) 


Complainant and Appellee, 
vs, : 


} 

} 

JOMN PV, RICNIA, PASH C. SICHIR snd | 

@ODLIP A, BURESH, 

Pefendarntra. ; 
) 


Om Aprenl by FRED C, HICHIN and 
(@ODLIP A, BURESH, 
Appellants. 


APPEAL PROM SUPERION GoMet, 
COOK COUR TY, 


MA, PRAGIVIEG JUSTICE GRIDLEY DELIVERED THe OPIRION OF THe covRT, 


F This appeal by two of the defendants from a decree 
ef the Superior court of Cook county, entered November 5, 1926, 
has been consolidated for hearing with a writ af errer cause, 
ts. M217, suet out by ali three defendants te reverse said 
decree. 






Vor the Feneons atated in our opinion this day 
‘filed in said writ ef error enuse, No. 31219, the decree of 
‘the Superior court is affirmed, 


AFFIRMED, 


Fite an? Barnes, J3,, soneur. 




















Daa a0 tne Hom anata, 
sl) m8 


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TARA TUTA 





37 + #31149 


AININA GERCKE, 
Plaintiff in orrer, BROOR TO SUPERIOR COURT, 


ve Cook COUNTY. 


WILLIAM GERCKE, 
Befendent in Srrer. 


Sane 2 a el ee Rue 


eee 


2 4 
441-4688 
Me PRESIDING JUSTIC“ QAIDLEY DELIVERS D ous a cae A “rms f 


By thie writ of error Alvina Gercke seeke to reveree 
eertain portions of « dweree of the Superior Court of Cook 
County, affecting the property rights of the parties, entered 
ina divorcee proceeding on February 14, 1926. The divorcee 
‘gronted to her from her husband, “illiam Gereke, is not here 
gueationed. 
‘% Among the errors assigned by her and argued by her 
 eounsel are (a) that the trial court “erred in entering the 
“decree regarding her property rights,” and (b) that “the decree 
| determining the property rights of the parties in contrary to 
lew ané equity.” it appears from the plesdinge and the evidence 
t when she filed her bill (Devomber 6, 1923), fellowed by 









fendent filing « cresn-bill, the parties owned in joint 

y two pieces of improved real estate in Chicego, which 
the time of the surriage (January 19, 1917) were owned by 
Gereke alene, ~ one ut Ho. 3104 Prenecisece avenue and 
other at No. 3755 NM. Albany avenue. The court found inter 
that entd two pieces rightfully belonged to “illiam Gereke 
deerecd that the title thereto “be and the same is hereby 
sQlely and absolutely® in him, free and clear of my 

or lien whatsoever, and thet “Alvina Gereke execute euch 











THOS KOTARLUA OF ore 
| eYTRUOD ROOD. 
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eerores ag aeon oatoan® antvta <oxae Yo aba anit ae | 
soad te #90 todseqad edd Yo waxced « to ane ke cog ateee 
‘powenne: seotsuay. one Te wedgiy KoReQoTy, One: Sabiootin wydawe 








_posonte eaT 080K yEL Yxovndet no yathowoowy eoxpveh a 

sid t Saab,” SRK ‘SAE 
_ 40d ton ak y9k0798, maeth: “sind ed mor’, aod 99. Scams 
EL OR eh ares sae ea a bomedd aon 





en x, homgse bem, nk ah aaaliaal onieite Wadi oa tl 

‘ ast wadvedue ah boone" fwroo Intet ede sett (a) ote foenme 
oeisas os" dacs (d) hast “yadeighn YeRaqomy wet Qetoregen aOTOD, 
of qastemae wf eo heaton, outs, 30 eéstyday Wr eqoRg etd peters ee 
aonebive oad fant apehbooty ole eon weinbgy. a 2k meee tae baw 
Yo NOWELL ¢ (COL 9d codmaoel) LEkd nod boLey one moro dost 
jatel a2 benwo aelineg walt «Litd-owore @ waneay: suntaote 

Hntsw yopeedd at otedeo Leon neworgms: te i 

vd bonwo over (TLOL (AL yeah) sgakrren ode to omke owe ’ 
hte ea Hoekoaatt DOLE 0% ga sem © ~eagta siored mahi te 
, Sedgk bewet suaoo eat. «ommeyn quedsa «Wt care 0m dm weal ont 
dota moLiLty 0% begaofed YLLahsdght eopobe ond Gino dads wh 
vdeo ek oaiom oF bes oG” OFaxedd OLOks orld Fuld hooapeb mt 
Yee he tool dae, ooxk gimtd mh, “ybnawhands bee uetes oodew 
oun odepaxo odotel amkvla® desta baw neennne tam mend: hil ure 








eRe 


deed or deeds of re-conveyance, aa shall re-invest the title 
to said premises solely in “4lliam Gercke, within five deys of 
the entry hereof, and upom her failure se te do, thut said 
master in chanoery, * * make such Recgasary deed or deeds af 
said premises" in her name, as shall effectuate and complete 
the title thereto, in fee simple, solely in him, 

In view of the pleadings, the deoree and che et dale 
mente of error, wo are of the opinion that this appellate court 
is without jurisdiction to heer and fully determine the present 
writ of errer cause, beenuse a freehold is directly involved, 
anc that it must be transferred to the Supremes Court under 
section 102 of the Practice ~et.  (Srouty x. Moga, 188 Ill. 
84, 85; MeComb v. Mevomb, 238 id. 555, S5é3 Robmett vw. Miller, 
303 id. 515, 5133 Lewis ¥: Lewis, 316 id. 447, 449.) in the 
Lewis case it is decided thet a» freehold is involved in a decree 
@f divorce, which prevides that, in settling preperty rights, 
Ome of the parties vonvey to the other all her interest in 
Property held by them im joint teneney. hie is the effeet of 
® portion of the deerce in .uestion. nd the fact thot there 
biuad other questions invelved in the present writ ef. error cause 
desices that of « freeheld, as to which other questions if 
they stood alone on the record this eourt might properly 
exercise appeliete Jjurisdiotion, does not warrant thie court 
im deciding the entire couse upon ite merits, (Marvin v» Collins, 
Tn. APP+ 355, 5543 Mo¥urland v. MeForland, 72 id. 425, 4265 


Bimlesrs v. ovis & co., $17 Ills 31%) 322.) Se far, however, as 


~ decree purports to affect certain property rights of Yronk 







(® soa of Alvina Gercke by a former marriage), who 
AB sued out © seporate writ of errer to reverse portions of the 
upon the eole ground that he wae not made a purty to the 


Ad 








| . ‘geet te bitd ‘at ‘etd “ebaiadd Vee it phen 


“# 

olskd od? fqevat-ox lade as ,ooneyovmoo~oe to ated xo es 
to ayad evi? aidtiw ,odenet mehife’ at ylolos von taorg yak i 
biee got .ob of oe oxmiio® xed mega baw, sv hoored ‘ceonte oO 
te shook vo dood YYeeaecen Aten elas * * eGroonede at sotes 
aieiqmes bas esagieette LLaie an ¢ouat tos me “neater, bar 
"embed Yieten yelgnta ob? nd evoneite okete ” 





‘ aly Aienae erie bee sowed ons ~agmtioel¢ e6s Re woly ah «ttl 


‘roe stalloqgs oka ass wiseiniyie ace Lo ore Ow ,tettS 20 ° ime 

sone wate enkaned oh eid bas used oo me Rdatbs test, empet . 

sheviovn yoorth ‘ab bLosleor®. A Gained (bail Nadie re dite 0 ‘8 

, rota tenn ne a oi? of Swrtetaduas od dane #8 dod? tim 

‘3 511 nas 12908 sy wauewd) odes sondnatt Maia" ‘ROL ‘mokede 

eROLEIM oy d¢omdod ysad 288 bi Bee”, a ia $8 100 4 

eal mt (.0bm Q0Dd she OLE aaleel iv ofwal_ $8L8 4 8Le soko 
semen 9 ah bovieowsh at ptodoeet' w dou beblood atowk ened: 
ead ui Lacey ghakigson at , todd eebiverg dokdw'y 

“mk deoxednt ved Lhe cinido oe we YsentOD: swhinog mild 20:9 





nies 


















“exods toe dont wld bin satekYnowy Ae pore. h wie he mM 
seue ‘toute es Phew devndxy ott mi bevfeval eek wes 
tt atoldaesp ratte dotdy of wo gbiertvevt w Ye Sante | 
 ehxoqerq dd la Prvee ahd Weked sity te mote bootey 
“pero aldé stemtrew Jon eee’ veo kdortoa tte th’ eam 
emibied .v mhvedl) seebuten o&t migw dies outdo veils: , 
(Oh 0b bE 8 hmaksAOR ov MaakeNtA ERE GEOR ene “a 


aa (_tevewos eter’ ee “lear Ay ‘oe SRL OLA Ga & ties. 


Rae “té whale eeteyonq aindree 20% of sdmeqzag oF 
‘eat y (opndenda a Yoon a) y 
edd to anelixog’ saxoven 2 setts Yo" Stew Stetodaw a due h 
ene of wtcag 4 ohan sox saw ot cnt Savona aon ah mous » 







i on, we think «e may tuke jurisdiction to deekere (as 
0 heve wo declared im 4M opinion this day filed, Case Ba» 

: 1 50) thet suid portions of the deeres as affect his property 
iguts are void for want of juriediction. | | 

a The present writ of errer cumee will be transferred 
othe Supreme Court. 

4 CAUSE TRANGYBRNED TO THX SUPREME count. 


Ateh ond Burnes, ides concurs 


an 








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Jom ahd toorte as teint oti 9 

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“sa do niet mansieoe’ 


Pou wee Aka wt es i soot Meteree ae aL wt nim, Naa. 


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sbeelovs 4 yfitna ah ah ‘eta’ va é pee edit hi 

















hes 1) ARE 


wedhane eA reo eat ae 





ae C RRR gg BM ‘ae et Per a aie ce ipo 
weeand a ME Dintweel 4a hie vail ye — iad 


DRE HN See be 


te dow he ocd i eh” anne meee’ oe 
“pot ahd lan” aN ae pelea ae 

Maiben HERO te r) Ay Keeu Sting ante ont” es ‘ubiecioien “et, 
ie he ah te hy sat ee ndw oe ‘aus GRO Oe 
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RE OP URE me 





38 + 31150 


PRANK SPALDING, ” 
Plaintiff in irrer, 
ERROR TO SUPERIOR couRT, 


COUR GOUN?Y. 


yf 4 A | PaOS 
PWD O 


MR. PRUCIDING JUSTICZ GRIDLAY MYLIVERED THs opLNrON oF THE COURT, 


Veo 


BILLIAM GERCKE and 
AININA GERCKE, 
Defendants in “rror. 





By this writ of error Frank Spelding secks to reverse 
portions of » decrees of the Superior court of Cook County » 
entered in a diveree proceeding on Yebrucry 19, 1926, wherein 
Alvinea Gercke wax comploinant and “illiam Gereke was defendant, 
ane wherein “illiam filed a cross-bill weeking affirmative relief 
in the settlement of his property rizhte. 

it appears that “peiding, of legal age, ia the son of 
divine by © former murringes that prior te the filing of her 
bill for divorce against villian (Secomber 6, 1923), she and 
WAllism had conveyed vy warranty deed to Spalding a certain piece 
Of improved real estate in Chiesgo, known as No» 2048 Fletcher 
street amd thet at the dete of the entry of ssid decree ‘pealiding 
the legal title thereto. Op lding wae not made o perty te 






| . ® Crowe-bill of William Gereke and did not appear av & party 
4 the litigation. 

\ By the decree ‘lvine was granted a divorce from 
because of hie cruelty. As to their property rights 

‘ court found, inter alia, thnt the perties were married on 
18, 1917, and continued to cohsbit together until about 
1, 2923; that at the time of the marringe Villiem 





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} sUiawo? Weed Ro sxwOo tolveqUe ot Ie soreeb 9 6 ~s 
| ahecmiw yesel .bi Yraaredo"l al anihesoorg sonora & wi bow " 
: sisisbusYod aaw oxfoxe0 mallis¥ bn aamtatgnos aew exorod anty 
telies ovwkéamrk ths yatione {Licensee a beoLsr wabith® aterede 


. saiate be wreqerq abs Raia) pas: 

‘ke stow ods oh +9g0 hegsk Yo euatblag) sade eteoggs Jt 

teak to BRLLiY edd of tolag idl tegel wien semr0} a ‘i ; 
hee adie «(ones co todas oot) mm tk taaioga ooreven ~ : 

eontg tladeres P gabe sage, of bead Waevacw xe beyevemoo: baat 

weiogoL® BCS +0K an weoud cogmoldd mk etatae Leet hover 

prtbleg® so 760% blew ‘to iéae wit Ye osnd ooht ao sacs as wn 4 

os Ysuagq © hem ton vaw gorlbLegt soseredd signe Kogok « 

Witieg | a es tneage dons bhe ban sipsal matte %e 

‘smodtonte nt 

mort sonnets: a bosmery « cl oath eh soroe® ond va 

adsigt oregon ‘thoes aa aA oweioung whet . onuroad 

a9 be basau oeow setszog ons tate eohke xodat «hewe 

awed a iisaw zarl# egos akdastos od poantanee bene, eter : 

- MBREELY ogakrtom of te oust out te bade HES ok 


— ry 





4 


was the owner in fee simple of two impreved pieces of Uhienge 
real estate, ome known aa No. 3104 Franciece ovenue and the 
other as Mo. 3753 %. Albany evenue, and dlvina was the owner 
in fee eimple ef » third improved pieoe of Chieage real estate, 
known as 2951 HN. Oakley avenue, which “was subsequently traded” 
for the No. 2948 Fietcher street property; thet “ilidem and 
Alvina agreed that the three pieces of real eatate should be 
put im their joint names, ae joint tenants and not ag tenonts 
in common, “which was done secordingiys" that at the time of 
the marriage Yilliam also owned about 20 nores of land in the 
state of Michigan, and ehortiy thereafter he desired to deed 
the seme to his son by a former patehaie, and slvins joined 
with him in executing euch a deed to said song that Alvine 
“protested” against her executing such deed wnlese Yiliiam would 
sign a contract providing that said Pletcher atrest property 
should at Alvina's death (in cane she died before William) de 
Gonveyed in joint tenoncy to her son, Frank “pulding, ond her 
Musband, "illiem, and thet Yilliam "“ngreed te auch condition;” 
thet William connet resdily understend ond doce not speak the 
English language; ond that William, in subsequent negotiations 
had with » reel estate agent for the apparent purpose of putting 
Much agreement in writing, joined with Alvina in signing and 









delivering & warrenty dead (mot recorded until juct before 

| Alvina and William separated, December 1, 1923) of eaid FPletehor 
atrect property, conveying the same ebsolutely to said Frank 

oF ing, ~ ®illiom «t the time believing thet the pspers which 
he signed were in accord with said agreements that <lvina, 

the execution of said deed and until about December 1, 


uses motiihy sastay ‘hood dow amisupexs cod fomtage * 








“fi 


ageolso te eeoutqg bovetemt ews to olqmin wot mi cacwe ote an 
(oat Ona oumew ovglomett 20L6 vol eo simeets ono. getateo Lae 
sere ons aw amivl). hme ,eunewn yaadis aM GOhe cot ee tants 


 yodsted Laer egeoid® ‘te saviq bevexqal Sutdd « te ofgmle o8% 


“bobar? ylemenpeadus say" dotdw ,oumoys yoLaed ot tees - aren 
bas makiSt© gost bed xeg org deoxds roristert BOR «olor * tial 
ed bLvods otaten fswn te asookg oundd ond dadd beoxge omkyd 
stnened an dom bun etramed date a cvomom dmbot ated? mi 2s 
Ro ould sed fn dest? *“Gylantbxeoes one pen ip ako" anes é 
‘gets tk oma te weton Os suods beawe ata mariere ogeleres ea 
hes 09 dortwoh om ro¢%eoxedd (62seds bin yasgtsiots Yo te edad 
"Banka ‘iekei bee pegakxien ourra 's w nee Elif 02 9am ‘om tage 
Vamtyls dad ta00 bian of boob a owe ‘Badauooxe at mtd aah 


a) Biogen Ch ae (eos 





ee 


Oa rep a, § Piney ‘std 





giteqety doors xedotele bine toad yotbtvorg %. 
“ed (mnksct acted beth eats “pend wh) ddned sill sh piven 
ced ban patbiogs “¥eowt ato8 aed ee rem aioe nt be ae 
Manta lites dous of hoor” mob itt¥ sada ba etLIV coms 
“auld Maggs toa aved ‘Reto band erabaw at ehhh’ bea 


te a a8 “bormum | i 
sno lialtopon tmoupondivs mk maki ti dans haw boguvanad 
















a 1h SARS 














BRS RM Ba aah 
amtdimg te oroquuy ‘Sao tage oats ‘we? jnege etadee fnes a ‘ dtie ‘a 


Ban Gr ei ORR AY 
ome pekayte i agbyis ath boutet vomid tow ad smoue wpe oH 
i wk hin Lies gs a 
“probed Sou Lbiom hebteoss som) hoob Qaertow © yaltore 


i pola ting 

aoledest shai ™ {Ree af Codennnt batotaqea wii ail w. 
at Bie VEN ihbed i Sy) Pr ' 

anant bee ot viotutonds oan outs Ayo rttos ats Bogen 

Page aay At "a eas prs! ‘Die ea 3 

the ksi ‘axeqee od dnete apshvo ied oaks asia Gm wohtiht ~ ggmkdLat 
a | Ue oe De fea “90 | i 
gamle souss {duonvonpe kee sake byesea ous br gec : 4 

i CRT inte ai # in 

ks toddaeo0d swede sitae bates been. phan to aelinoexe hyped ce | 
; ree gate hey mh! wae Ree Rie a gil ned 


1923, collected ali rents on said Pletcher street preperty 
and signed all rent receipts in her own wine, and thet, during 
the year 1920, an exdating lean en said property was extended 
im the memes of -lvina and William, and net in opalding's name, 
amc that for severnl Fears prior te their eeparation Willie 
amd Alvin kept sceounte im two Chienge banks in their joint 
manes, and shortly prier to the seperation the moneys in these 
accounts agaregates about $1806, ®ll ef which (ivina érew out 
for her own use ond benefit about December de 1923, 

The court deereed in substance that the Franeises 
Svenue and HW. Albany ovenue Properties “be vested solely and 
absolutely” in Willfam Gereke and that Alvina Gereke “execute 
Such deeé or deeds of FewGOnVEyance as shall re-invest the title 
te Said premices" solely in Williom Gereke within five days, 
@te.s thet aivina pay to Wiliam $1300, we withdrawn from satd 
banks, less $200 fer her reasonable seliciter's feesg and that 
William “have a lien for the balance thereof upon the promises 
MMown 2s 2948 Fletcher street,” Chienge, "title to which is 
hela by aid son of Alvina Gercke for her use and benefit® and 
| that “execution iseue therefor,” and that Alvina pay the coots, 


ate 














: The only errors aopigned vy Frank opolding and argued 
by Kis counsel are. in substanee thot the court erred (1) in 
dsereeing that for the amounts geereed to be paid to “112 4dem the 

| ntter should have a lien upon the Fletcher street property and 
(2) in entering such « decrec, where it appears that Spalding 

"y Mot = party te said suit either under the bill or eross-bill.” 
Inasmuch as the present record dis¢loses that 

holds the legal title te said Pletcher street property 


of 


ywuwoqexq sootte sededelt blan wo adaws iin besoelion 1820 
gartduas hy edanstd ‘bane eomact tes tod at etatenot wer {Le hoommke fa 
bobnetxe saw Yizoqotg Bian Mo naot gotsebxo ma .ONGL newy eM 
gemon atgathing WE fom ma (tei lew pie enkvl Mo women ott a 
 nakLEh mokteunqoe aed? 0f Stag ented Loxives tet add te 
dntot ihede ai extmted egeoktD omy AE adnilovon sqed omtvBN ibe 
waed ek gyomom oft molietagea ate od soheg Utteds bem saom 
tue woxh anivi) doide to ffs bdr sueds bodoge raya’ adnsose 

! .E80L of toduseot Peds shieited bite eau tino xed x6 
“opatoanst odd dott sonsdodva AL hooxobh. ‘study sat “a 

' ” hace ‘yokes hodeoe od” selsxoqerg eisnewys “Seba a tas - 
eiuroaxe” eaire® antvts “ged brut oxo et ‘maartee ah’ 
eithe ents ‘guovaleex LL aste aa sony vHOO-or ‘te bene % Boob 
saved owed Bisls bw stored mabitey at vetoed “ava thor 6: 
ton wor? mwa te oe 2008.Le asiitie os we ‘entves Yate! 
tats ax | toot stxod totes eddagoaces, ‘od et cont “ane « 













sdeon oat wa aabels taal ‘ome Selves sunk oe ’ 

LEN Satta linked | Open de 

bouga, Seta “pal binge staeas “é lids SiR ‘atette | ve ee ey: : 

BN RS 6 berte ‘Foe edt tad sonsdaded at exe xs earaiee a 
add anh ttt od bhag of of booteoh adatrome oat ‘vot bicw th ‘s 

| "bite wegoR ‘foonds tododult oss’ ‘sega ‘wok Pena’ rien 
“pubblag? tans @raogge Jf ovedw avdtoos 2 dose atest 
":tkkd-nsoxs to Lisd sate Gabaw ‘ostbite’ ¢hile bhne ed Wang: 0 40H" 
o" "Padt weno tock Piooo tavaetg one aa poesnisais 4 
eeroqer Cdorte camddolt bkow' 62 of¥2d Lughat OnLod path 


o4> 


and presumably has some interest therein, and s¢ he was not 
madé a party to the croge-bill or to the litigation, we are 
of the opinion thet he hed such am interest in the procevdings 
and decree as werranteéd him in auing out the presemt writ ef 
error; (inderson ve. Steger, 173 Tlie 122, 117¢ People ve 
O'Connell, 252 Ill. 304, 303; People vy. Harrigam, 294 Lil. 
171, 173); and thet the Superior ceurt wae without juria- 
diction to enter any decree vhich gives to “illiem Gereke a 
liea for «my amount upon ‘paléing's Pletcher street property, 
and that those portions of the decree aa affect ipalding’s 
fights in waid property (whatever they may be) are void. He 
should have been mide a party te the prosecdings end been given 
@A opportunity te defend. (Yan Viest v. tevitt, 200 I11. 183, 
286.) It ie » rule im equity thet all persone whe have any 
substantial legal or veneficisl interest in the subject matter 
im litigation and who will be muterinlly affeoted by the decree 
Bust be mace parties. (Riley v. Webb, 272 111. 537, 538+) 
ana the objection that there is » lack of proper parties may 
be taken at the hearing or in » court of review on appeal or 
ou error. (Knopf _v. Chiengo Neal Eotote Board, 173 111. 196, 
‘201; Larson v. Glos, 235 Ill. 884, 58a.) 

Accordingly, #11 portions of the decree that purport 
te affect any, right, title or interest which Fronk Spalding 
my have in said Fletcher street property, anc to create any 
en thereon in faver of Yilliom Gereke, is reversed. 

} DECKER REVERGES AS TO THE PORTIONS MEANTIONZD. 


and Barnes, JJ., concurs 





* BBx veer’ vba”, 











ih 
= 
an wf 


; KEas. tees EL Oey y ABE 


son aew od no bee wake wade fugxoga | once pat <tonshaniie a 
wen ow ‘smekengle kt std bi 0 Lhdd-npone | ett e,, Wane, 2. be 


aan 


ae 


spiithovoore od ak saoxe mt ws saws beat wal $odt notetge ost 2 
ts dite smoaey ale wo ante. a i Seo Ww ae ® eh hd ae 
a4 sigan “yas SEL +A ond uaess 2¥ sonzehen | Aten 
‘Er oe8 smsguixEel 2 efgees, "1006 120 « 54 $28 ‘sone! 
Lg Fen Seeds iw aw duien robreqwe ¢ ous ‘ied, oh (ete £ ft 


avi egy regret 


"R daswed ‘malcti¥ os os eovig dolde cones yan node oo Bash fs mottos 


ae re A a nea Wenty 


e Us tage sg dooxta ‘tedfotost etgndbtog! noqe semen, an ox, aot 


& Megaware Rite | a Hgts 


i tynkh tage soetta a eaxeoh hes ‘. ane 12 109 4 % raed 
a .eter ose (od ane wuld ‘wovedavte) wrecomt Slag ab a te 
nevly ‘Med bas ‘iaulisions 9 oats fh. Wis. * nea, aead whi 
the. oY) rieoteh of yd 
bx gaton “dey keene 
‘ye evad ost akon 2e¢ ite Ysa xe tape ah Presi 
eotdie doeydin ada wi “gnivcoomt Ente tome 70 Kye £ 
odaees bats Ye Bedoo tte utente dom og a one bas mols 
~odvoae grea ditr eee dab Te eohlay oe sits | 
yet eeidiog Yoqotg to eee a wn i deal on a petit yy 
‘WO Saeqge No odbvet te dittes ‘a " a2 ‘a0 chased ont ha 
OE LET vt (itso sduded tool onvetdo 
{883 2088 oft saa 
pve ev thts beveod off te eno z0g tha ¢ , 
guthtegi snow doit gaoreInd xo SLPS «talgix «ye 
ge wenexe’ os bite ed veqorg “foode resto ret ni pha 
 —Vbeaaower an Joxet0® mobi th 


sc DE THE Seivnisinte Hoag or st'tigehees . 
i) Sia et mR Aen BR. RID QF 4 a SRY Wks a ee ws ot we 


hy kev Baan Bey Na SS et ade * ‘nati es poss 
Lp gagttly 4 ee Ties vee! ye deg Ca ioe ‘Sart wake 







































wipe dawala 


119 - 31246 


G5A Be MIAER, 


Plaintiff in Error, EREGE 26 SG°2R 10K 


COURT, GOOR GOUSTY. 


S44] | 


om. PASSIBING JUSTIC“ GRIDLEY DELIVERED THE OFIRIGE OF THA COURT 


Ve 


YELL? CAB CORPAEY, 
@ corperction, 
Defendant in Errer. 


O2— et Pee tae! Mim ane 


in an action for damages for personal injuries received 
‘by plaintiff im a collision of two texieabs on one of the drives 
dm Lincoln Park, Chiesgo, om the afterneon of July 11, 1925, the 
4 » at the elose of all the evidence, inetructed the jury te 
the Yellow cab Company mot guilty. They returned euch ver- 
end, after plaintiff's motiene for a mew trial and in arrest 
judgment hed been overruled, the court entered judgment against 
















fer costs, which she seeks by this «rit of errer te reverae* 
The action “as commenced against the Cab Company and 
J. Begers, the ovner end driver ef the so-called “brow” 
in which plsintiff was a passenger st the time of the 
: lent. <t the end of the trinl pinintiff dismissed the suit 
B te Mogers. Her original declaration consisted of tvo counts, 
“$e which the Yellow Cab Co. pleaded the gencral issue. he first 
éefendants with negligence generally in the operstion of 
réspective cabs and that as @ reeult of the collision 
ff, while in the exercise of due cere, ete., wae seriously 
ind permanently injured. The second charged the Yellow Cab Co. 
witn nogiigence in driving its cab at = epeed im excess of 15 
Miles an hour in « residence portion of the eity, contrary to 
the statute, and both defendants with other negligence. Te these 


the Yellow Cab Co. filed « plea of the general issue. 























sales Sa oe. aon 
oXTUOD 2 BOSD shes 


ede ,asek UL vist te neserted to ‘ond. ae coped eater 
of isl sdf Setert?enk seomebiys wi? iis te oeeie ‘etd oa ot os 
~gey dawe heared s+ wat veetig tes aera seo woLleY ce hod ’ . 
feevte ai bes felad wom s 0% shakes etsniiataig: ‘setts <i | 
dunioas Aaombut bers2ae swan on} sbokwraere wood iat dusmpant © 


i# ihre oy Be re & 
*antever 23 19729 ts flue ‘ahaa ‘e stcon ada, doles Spa ES 
: ¥ ye hy SB pee be cig ae 
523. qaeqmed ‘dao’ asi? semtage seomesame eaw noises vege se 
Shims eeiioeteg cy 
“awoxd” boitad~o8 odd to soviet tase eae oult « oh Og 


eats 0 mks ead aa ‘egnocneg 2 sow Thomtaty dotde 


sted od¢ boncinaté ‘dai oie tai ote te ‘bas mag a 
ei ee a LA - mas 

aemee owl te beds lenes ap lanrakovs Kandy ise 0h 58 
5% ~ ta RZ: ee as 
toxkt sh? souest faxsamy ‘odd Soheotg, ‘ak 6 


sateh 4a Shiit tee 
Qe néidnceqe od? wt “efexoneg | : © i 
potelifes ade 18 itesot a a aes See 


yuusixes eae sr080 2789 per te mick ® 


-00 da) wolleY od? begusie bnsose eat Seals ches 
&f Yo sevexe mt sooga « dn dae efi amiviah ak ost af. 
wee: = oS penoen. Sees DN 
ef yuerises .yite eds Ye molaxeq sommbisos 9 ak twad me: | 


esis ef -sccegilyem xesdeo dthe edmeaaston ded na wedaiose 8 





wt 3% a 





vowoak Leaeten mid Yo ang @ BALER 0d du wOLteY ott 


eke 


Before the trial plaintifi filed an acditional count charging 
beth defendants with willfal one centon negligence and it was 
Ordereé tet esid plea of the Yeliew Sab Ce. stand «sc 4 plen thereto. 
In accition to witnesses as to the choracter and extent 
of pleinsiff's injuries, sme called five witmesses, all of whom 
testified as to the details of tne accident. “he alge teatified 
@enesrning the game, as did George J. Nogers, the driver ef the 
‘brown cab, “ho was ealled by the court. “hen plaintiff had rested, 
‘the court, on motion of the Yellew Cab Co. and sever her objection, 
instructed the jury that she could not recever from it umder the 
itional count and that they must disregard said count as to ite 




















upom the Cab Company mevec the court to instruct the jury te 
mad it mot cuilty 2a to the reumsining counts, and, ac etated in 
Bill ef exceptions, “the court reserved the decision of the 
ption and for the time being refased io give said instruction to 
jury snd merked it ‘refused’.* Thereupon the Cb Company 
Ste: e¢ ite evidence and two wliuesees testified in ite behalf, 
‘Wis, the chauffeur of the Yellow Unb, Jacob Sehiex, and another 
meuffeur empleyed by it, “he happoned te be im the vieinity at 
he time of the collision. t the close of ali the evidenee the 
. Compomy renewed its motien for « directed vardiet in ite farer, 
i, over pluintirf's objection, the court gave the requested 

s ruction amé the jury returned « vordiet ageordingly. 

«sis he ‘testimony of plaintiff's witnesses, and that of 
Bers, dinclosed im substance the fellewing: Om the afternoon 

’ Ai, 1925, plaintiff and the «itness, ica Serviss, after 
® arrival at the Grand Trunk railesy station ia Chieage from 
facstion trip, hired the brown cab s¢ take them to plainti?f's 
, @t 4446 Sheridan read. Om the way they travelled north 

mh Lincoln ark. It wos raining ané the streets vere 


er. + The secicent happened just south of Selmont avenue y 











- 


gutiyinio devo Leieliiohs ms welt Yhivalslg kabee ‘eds por 

ear ¢h bas seaeptigen mesmew gan Lwtttiw atiw ad gape to ae 

g@eaad?d aolg a an bimsda 269 dno wellLe¥ esis te weoig biew dead a 

ixvdxe bee xstehteds 83 of as esesont be. of metitnne ot” Pigg. 
snot ile ~aoeseritiv evil seifee asa packautal es ernigtate 

eeitigass gale safe stuabiens nsit Yo eLiodeh geld. ise Liat bo ZT ise 


mig te wevixe eds <a 8yotl at sgiest bib oe oe edd podersin 








eg batawrs at Baktatatg seek <o1808 ane w betLea aaw ose dao ane 


erepere 
1aeiJoride a lela bees oo én wolie® pr or en hsou ab truss @ 


he Kohn 4E wort cewweE som bhvos oda dais coh, ade Sotownts 
dt oF ee ‘tae Ree ‘oingeters sam quid dul? Bae dene 10 § 
s? seat ar douesuns ee damon euiz seven eager a3. old vi guvas 
aE hadsds ge ,hea (eitines gabsthouwe edd er 2a ekiey tem 
‘ete Ys weteiesd ed? geveseed exues ene senedsqsene 20. £ 
” dolsouttaad else evig of sean tes gated cabs cade, 9 be | 
gemieeS Ga0 sk? aeqwenedl *. theswtest 2h bedtom & hie 
“ Eladeg Pre it asciiseua peakeae he ead: tan egaobiwe wel 
aes bare eieiiie® Seeat .dk? -weeisY. ‘esit eo suet tence | 
aise S8 mk ad 6 bakoggbM erie-ad bo ge pevetsae 
od aatiebive bd Lis WO vaskD enh 8A » enpbeti len, std te 
otewet wet at shinee Denvents sce anton att aawaeen 
“ Sacral nen: Sean eet eaennnntite cba 













sort egooid? ni woktese: spatter. is it i do - 
o Mchemnte "oe sianatae ne meni ho 


=3- 


@n ¢aet and west etrest, in the outer or “extension” drive of 
the perk. ‘There is am immer end an outer drive, and the tivo 
évives, rumming mortkerly, ome tewirds exch other, and st 
Belaent ayenue ikey ace but a short diagtance ep«rt. BZelment 
Gyemue connects the two sud just nerth of 1% ts the triongle in 
which the “heridam monument atande. The brown esb wan moving 
Merth at « specd of about i: miles =u Hour, om the cant side of 
the outer drive, “about twe feet from the grass.“ The pavement, 
sbeut 60 feet «ide, was very slippery. “Gm the opposite side of 
the drive, snd moving im a procescion eeutheriy, nesr the want 
@d@ge, were three -utomebilesa - one, = secanm, driven by a women, <« 
@Bother, = Suick touring ear about 45 feet Sehkinc the seden, 

oy plaintiff's witness, dardim, - aac sce third the yeliow 
| about 1906 feet behind the Suiek gar. The sedem and Buick 













ears Were trevelling st « speed of trem 15 te 20 miles an hour. 

The @river of the sedan cur fer some reaseom suddenly checked ite 

apece @né it skidded tovards the test and, passing the brown enb, 
” ® toa ctep. Ite sudden cheeking amd ekidéing caused Herdin 

‘Be eudcenly check the speed of Biz Buick eur and it also skidded 

Bede the brow: ead, hit it but did mo damage te it, and came 

J 2 stop. Sy this time the br on ecb had stopped and it stood 
B the east side of the drive, near the east edge, facing north. 

en the yellow cab, which had beem moving without cheine st a 

Sed of sbout 35 miles an hour, skidded, crossed the drive at on 

am of wbout 45 degrees, whirled, collided with the brown cab, 

ov 6 it back m little, and cane to = stop partly in the drive 

7 ? @n the grass ie the @aut. The foree of the collision 

much thet one of the wheele of the brewn exh was knocked 

. one of ite axles broken and ite radicter jamed against 

'm er, etc. Plaintiff was thrown forward and downward. 
truck the glass portitiom im front ef her, breaking 


| 


mest 


cs 
are 


So eee a= 
ia PR ap as 


te evite “so inmeine” ze heated heel ak pions sage r, bese, fens 
“est said las yovino rodue me bea sammi ne of oxed? ae Si 






witee We 


32 ome vinaize Hone aireewes Poet ivedté some grkonus 9) sev 
Ls bb é s 7 ie uma. sna 
Sevpank ot a — wounda reste w ae 2 Nom 


mt skgnnts? aia ek 38 2 sax08 tout bm ood =. ad asnites cenee, Sep% 
 Batvens 2 aaw Sze wore ont -abnasa ed aubbsode ade 





ws ebis 4 jana | ad ao owed as aegis es panes Sooge a fm sts 
eénsneros edt “.20nty ene mos? took ous dueds* eoeizd us3a¢ s 
2 ESE Seas eS TS eee DER 


ee aS Ot arene ee ae ee ant 


SOEs a ge 
“deen ont teen extxedsves molnemnesg, a BE pnhven bus & 
ee fm oe 


pie. Gee Be PR ee OF ee cape 2 OMe 


- ata 8 “ sovitb ma bee s one ~ wal éemodun peste 


AMY RES. Ga: QRS ea 
“ aban eds ‘paldied de? ee Sed, beg selawed gens 


seks pee 2 


weitey edd ckdé ond ‘bas = ymbivest aarti etrth : | 
Gobet tas lnbas’ adv i che Holwh ons ‘halsded $00) OOF duo a 
vised sit vatia 0% o@ Sf meri te boogs 9 Ia gabtiovent Pie 
‘a8 besos Lashes moasez anor oY ta0 mien a! 0 
sino aweed of? gettecag “has re ee 
albieli beatae gebbatve bua ‘yabtosdo aeeloe “at spe = ‘ose wk 


«gosa 
ae Sey age eete Yr) 

babble onta $1 Sno x20 totid ald Yo dooge watt donde 
ae ch 


tetso Eo (42 08 Sa a 

















eh Bie 





= ga 


sek 
es er 


ots wks ssi0 duodi ie f gaiven 20d bei ese 
Se gs — see Bee apa eg a eres 


feos sedaines sdk fon 


BS ROR ARES ee ic 3g 
t id 


* ig + sat 





when 


it amd ceusing severe gashes in her head, and hex richt knee 
a@mé left leg were injured severciy. “che wag confined in a 
hespiteal fer sbout wine vecks. 
in view of the testimony introcweedé by plaintiff we 
are of the opinion that the court erred im direeting the jury 
te return a verdict in faver sf the Gab Company om the issuce 
presented by the two ¢riginai counte and the plex therets, end - 
dm entering the jucgment im ite fover upon sale Clreeted ver- 
ades. Plisintiff's evidence temicd te ehow that, under the 
' Cireumstancee «t and before the time of the collision, the 
@river cf the yollew exb was negligent im met heving bie aute- 
















le under preper centrel and in propeliing it ever a slippery 
without chains st an excessive rate ef apeed, and thet 
negligence om his part wos the preximate cause of the 

| sion snd plaintiff's reeulting injuries. ni because of 
eomewnat conflicting testimeny of defermicnt's tee witnesses, 
: questions, shether the driver of the yelies cab was cuilty 

_ Of negligence as eherged and whether that negligence was the 
— imate cause of the eoliision and plaintiff's injuries, vere 
the jury anc aot for the court to determine. im Libby, 

222 ilie 206, 212, it is seid: “In 

¢ upon a sotion fer a pseremptery instruction the question 





: the preponceranes ef the «evidence doce mot arise at all. 

vi ently fairly tending to preve the esuse of action set out 

3 the declaration may be the testimony of one witness: only, 

md he any be directly contracicted by twenty witnesses of equal 
r @teater credibility; «t11) the motion must be denied, * * « 
When a motion for a peremptory imetruction is made 

y the defendant, * * if the court is of the opinion that there 


S evidence in the record which, standing alone, in sufficient 











ial 


he? SHE eat Seay fee Sse 

vemd vig cod bas shoe 208 a sesiesy stoves gatagee aa : 

% ee é = Sta x 

£ i pent tace gue oat ‘suoteree sesmbak ers pat ater S 
1 ees = teties -. ERS 

saioow oakn ‘suede tet fad tgs 

ot pe ee cre SN ate Sad 


ee rebsaias ee heowerias aromiies? oxi % wotr ai 


GREE Sah ae IBS 


unt ads guisoct2d at bores srpes oats sash 1 sokatye odd to ba 
weuiel oi me Yamysod ded ex? Yo rove at dolinew @ tuto | 


38. Beg 
i entornet og 062 ums ataver Lantpize ons edt WS betnoas 
a ete. SS 


Woy REZ00T2> Dhow mogU Sove? Hat mt ; dmempbot ads gatneene 
_ eat soho - sans sede “8 bobees somebies ae *2pheade Ls o%o. 


ue PERS es ebeers: 
_ eHolebiles eds te ents asta oreted Lert fs oe 


. shy speed sy oe: 


on, Pas gatved sea ae dog itzen oan Gas walboy, edd Yo - = 
Gragits a teva st guilieqerg ai be Lorémee isqetq teb 
$263 Sue .bseqe Ye atex eviannexs on ta. sntndn twos & 
Ad, Se name, staninerg sit sew 472g oid me aemeR 


2e aamenes Sm .aalrutat gaiiluses atviddmiatg ‘bee sole 
seeauoniin tad a'inshaetas Te ysomidsed, ; 












widhes sev day weliey odd to sexta on peers cane isnons 9 
| ai een semeglipes Jens isiieds ome begtads os pamegiigan * 
eto geetuyget o'Yiiistelq Sus mpieliloa silt Yo sasine odemtans 
 gRG@id ot .amdereded a2 scue0 add 20% som bao grat od 
gee eBion ak 2 ¢afS 205 «idl 889 leet ox sddel A Aine 
acligss: 82 agisersenk qresqueme « vet melden = geqe gates 
She qe esiva dae osm eumeblve ex? Ie sonatesnegomy add. 
gun due soiten Ye segse ads STSe OF gtbemhs Uxtad ysasbn 
etic suantiv ono te veemiases of? ot Yom wektaratonh lag 





-fomge te: weeuenike yaeed od Sedo nexdaes qhveotie e¢ can edi 






shelnes sé dems moléom odd ilise. pystitdsbers sadas 
phew af seisowizent Tetum co% matcom.s wastes ae | 


-5- 


to sustain such a verdict (fer plaintiff), bet tant such a ver~ 
dict, if returned, must be set aside beewmse agains. the manifest 
weight of all the evidence, then the motion should te demied. * * 
to hele otherwise is to deny to pisimtiff the right ef trial by 
jury." (See, siso, Shannon vy. Wightingale, 301 Ill. 168, 176.) 
Amd we sre size of the epinien that the court erred, 





at the close ef pleintifr’ts «vidence amd on defemdumt's motion, 
im imstructing the jury to dieregerd the séiitionei coum: of the 
@eclerstion, charging defendant with wiilful onc wenten negli-~- 
@gemec. “ec think that piaintif?r's evidence tended te shew auch a 
Pecklese disregard ef cansequenses ond of the acfety of others on 
the street at the time, om the pert of the driver ef the yellew 
Gab, as warranted the submicsion te the jury of the question 
@hether he «ss guilty of willful and wanton negligence ss charged 
in seid count. Im Falidrem Express So. ve Krug, 291 Ill. 492, 
476, it is said: “vhether the negligent conduct of a defendant 
which hae resulted in injury te another amounted te «antonness is 
a question of fact te be determined by the jury, if there is any 
idence im the record fairly tending to shew euch a grees want 
Of sare as indicates « siliful disregard of conssquences or a 
Willingness to inflict injury. * * am intentions] disregard of 
1 KkBown cuty meeeszary to the enfety of the person or property 













: “Smother and an entire sbsemee of care fer the life, person or 

: of others, such ac exhibits a conscious indifference to 

9 make a Gass Of censtructive or legal villfulness 

a@ charges the person whose duty it was to exercise care “with 

Gonsequemess of a willful injury." (See, alzo teomn a tihieate 

‘SEEBNAL COs, S19 Ill. 326, 3503 Jomen v. Kramer, 235 Ill. «ppe 

$62, 368.) 

= Vor the reasons indicated the elinen of the Guperior 
‘% agsinst plaintiff for eests is reversed and the cause is 

REVERSED AND REMANDED. 
and Bernes, JJ., concur, 


























~tay a Mowe Jedd 2od + ( Ftbentaty 26x) dohbrey & dows mieten | 
i RES SE OSS GE 
testinax sid Sankage cemeoed bisa gen od J ease sboaraget th .to 


‘ 3 Suh, a az. % tind 


belek o¢ Ghaeds solian end sacts reonvbive oda ifs 0 § 
q@ dwius oe ttigit ocd Yes — ‘ga onl ee ak satwradze. id . 
C.a0k (ook 459 BS yeheuwtds ors 90a) "0 
eheexs sque ad? faite ‘ities "die ts dks Sus 'ed"eak oe 


eS See er Oa 


steldou a*farkestS> ae tae ‘goa aive ‘e ilsalade | te » ead | 


gs sect Xan td “Uo Ree ep 
ad to wos fangtyfon. sey bucpoveth oc gust, eds i 
aks Ses iustie a 

=tizak meshes ona iSTELEW dis ‘Suohasto® watgtaiie «mens é 


« done wes of Sued seman tye efvthemtaig Ps is a 
» Hagscn Sam 


we exaiite i Sfstes ed se tee seomoupeauss bed beapeten 





4 + ~ % % 


geisiawy aif te yout ate oF io bwé erie on") pet sobs Gi) 
aeyycHd 26 somegkigns wocaue hae Lshennidlind ‘Gitlin 





(2% Te Ce6ewpeawec to avegets fh fetifie & 283 | 

Ye puagiaaks Lensbsesdek ak “+6: seine velitvat ob deempatil 
“Wtsgewg Te Roc wy ods te yseter eal? oF x eee ee 
Kessivtifte Inget 10 oeiiowséémps te cice © olee .nommeH 

Ad ke! asito outa @ sew Se sate mag a 





‘Snares «webct cme Oe 
xelzoga ed? Ye _Ssompiut odd bedeoziat amoanex sd 2 
el saves add bum Soarswen ah- | 
“ is GEYER Beers SD eho a 
emusme9 +00 connate 

















” - 31196 


To STOLOSSKI, 


) 
ainent), ) 
Appelles, } 
v: | APPEAL FROM SUPERIOR 
PH WIERZBOTSEI et Ble, VOURT, GOOK couUNTY, 
| endunte), 
of JOSEPH WIshuZBOV SKI 
ane EES WIERZBOWSKI, Oe a) o 
 Appelianta, ag 4 ee o> Or 


‘MA, JUGTICE BARNES DELIVERED THES OPINION OF THE GOURT,. 


This 18 @ bill to remove as eloude upon compleinant's 

| tite te real estate known an 2036 Stave street, Chicago, an 

instrument Culled a trust deed, er a trust deed note, executed 
y Gefencants Jan and Katie Caaplewski te defendent Joneph 

Viersbowski, & jucgment by confession entered thereon by said 

“Mermbowaki, an an affidavit b» him filed ef record Sleiming an 

- Squitable interest in enid premises, and a juégment by confeseion 

abtnined by defendent Martin “ierzbowski. 

/ From a decree for complainant the two "Lerzbowskis 

have appealed. A decree REO confesses was entered againet the 

Sher defendants Jan and Katie Caaplewski and Dennis J, gan» 

ff of the Municipal court of Chicago. 

December 21, 1922, ¢omplainant entered into a vritten 

t of exchange with the Cuaplewskis through defendant 

Wierzboweki, # real estate broker, to convey to the 





































Kis the premises known as 2338 Morth Seeley avenue, 


ABO» subject to a mortgage for $800, in exchange for which 
, Stapnevante were to convey to compliinant the aforesaid 





known as 2056 Stave street, subject to three mortgages 





t 
i 
i 
Fe 
i 





SE RR ie eT aad aU A Ee NR ee a BN ad lan agit 
iis 


RDS ERIN AT RRA RG CTR SER ARO ORT? AME EAA RRR RRR SR RRO Sr a te 
“s y 4 : f Veet B ‘if 
Py sisi) gS ai il maokhee ‘aca EMD a 
Ns OMe REN th ley t Ee Oe 2 IY, on we oid nein eo 9 
» * Lat, BHA. te VE Lae CUR’, “ag? ete a 2 eh ekxeeOsore 










p av imenic) mir " 
, Lo cngmaadoggate S508 Mee 


Ome oe a) in Spe Page fs a¥ 
hes 6 hee UEogeaatw Hane 
iss Be : ee 
ilgili Sind Ma Naina) 
ROAROT te 





v ee. Aiebhel [pS : CM) Dake Ault CP | oe Sd atine ve se 
sPHwOO ARTO KOTKIO. ae aMeRVEM, au 


BN CN i a Me TRG en ae “arco cr 
aa aogu atuess as ovanon 92 11d a af eda? ney 
RR BREED SCG SSSI SIN” NRE Es ed “) aid 


beeuaexe, 900 boos aaares a Bind zat! . 
a % his ah y 


a wb eo 























ANd 


“fm sigan bs90e% 2e neha ‘ m — 


i Oa Me goa, we x Hye 8 aot ays 


Ae poy os St ‘ 









aopay tron ne eae ad | 


NEP ayy 1, ea Mogens 


ae 


aggregating $3600. In the exchange the Czaplewekis were alse 
te give complainant a second mortgage for (1000 on the Seeley 
avenue property. ach of the parties wan to pay Joeph 
Wierzbowski brokerage fees and comnlesions. 
At the time of executing the contract for auch @x~ 

Ghange the title to the Stave street property stood in one 
Tabor, who wus to convey the some to the Cauaplewskie. The 
titles were brought down and the porties met on February 6, 
“3925, to close the desl. It appeare that Tabor would not cone 
vey to the Canplewakis without an adjustment of the encumbrances 
On the Stave street property, and a cash advangement, and thet 
te obtein the conveyance Joneph “iersbowaki had effected 
‘Regotiations in the meantime whereby the prior encumbrances 
were to be replaced by « mortgage of $2500, and by 4 eagh 
‘payment OF $1049.75, and an amount te cover @xpenser incidental 
‘te the deal, The mortgsge for $2500 had been placed of record, 
and the Czaplewskis not having the eash for such purposes it 
was advanced by Joseph Vierabowski, and it was understood that 
“s security therefor they were to give him a mortgage on the 









avenue property when the exchange wan effected. To thet 
ene the attorney for the Cunmplewskis on thet oeension prepared 
& mortgage, and ot the same time a deed of the Sealey 
property to the Caaplewekia. 

There was some evidence that these arrangements with 
were mad¢ at the request and fer the benefit of both 
to the contract of exchange, and it is upon such a 
that Joseph “ierzbowski sought later to charge the 
iad ee of both parties with a lien fer such advencenent,. 
t there is mo evidence tending te show any asaumption of 


“ 


onls acow. wiiowalyasd ait epmedoxe ond mt .00neg onteuporss 
yale’ edt wo COOLY 201 ogegerom haoose 2 Saasttatquas vk e 
Aqeael yoy of gaw eoldusy eft Yo Mond chor ae 


4S 





hs 
eeneaie 


ramoineluusoy Dew ao0% sgstovere biowedael 
_ tae Mowe xe towtdaoe oft pmbtuoaxs Yo ald ous th wine 
hao ah hooes ‘Wrocm seotda ovnds od oF aLOhe oat wgdns 





est .snidavalyasd eats of eman ofd Yovnon ot nw ‘tale erode 
ef Ytamveiot geo to, beksnng etd brew mead , e ie word ‘daa’ aatel 
ooo Jom bien xodeT snetd ‘wuseqqe ¢1°° ekabh ont unto ot 850 
Beene timwons pid Xo sMomdewbhe ao suodstw ebiowalgas?,odt ot Ye 
dans bem «tnemeonovin dase o bam ,yereqeng sotto ovete ond be 
 pedwetas bia Relewadeuel? Kgendt sonmevece Leal atatdo 08 
anomercdmnons whe add ydecede omtdnaom’ ood Wk aserte toys 
hein M4 Bed 008d Yo dyagdien ays beoatyed F “ot wt 



















od? me ognyeres a mid yin of oxow a ilk’ ‘Voud 

dacth' ot shodootté aaw ogmodoxd bit} node: veregeny ‘eum 
porngery Keke ceee tans ao attowolgest ad? aed yodtodds 
he ‘qosuon’ ‘asl? te bewh’ 4’ ound” “mtn a Pr he baa ¢ ons 
” “redsowelqasd edd is 

‘Moto stuemegherce deeds Sodd Goadbive smde aoe a Pian 
died Yo sPened odd to? bas sesnpds ind "0S ail i 

a dows oq ot 42 ban’ ‘less te ‘betetais horse cot ” 
gio ogencte 93 Sedat Udgude Mvdudcaunt dqowet dadd Quod 
“\dnsawonivhe Adin tot moins tte want isd 
gg" iatrentlat wai Pho 02 yrthaes vonebiv pherlicn 


( 
| fad I ta MT Lea ak dT me i apangaae noe 
| 








a3- 


liability by complainant for what wae necessary te be dene te 
@mable the Czaplewakis to get title to the property they were 

to exchenge. It seems tes eleur for neguaens that the arrange~ 
mente with Tabor were solely to enable the Gusplewskia te 

Obtain title so that they sould Surry Out theiy part of the eon- 
tract, and that therefore they alone vere obligated fer the 

Cosh advanced and the expences incurred in such ALTAR ements » 

It was omly through such arrangements the Csaplewakis obtained 
title to the property ond were put in a position te carry out 
their sontract, which a court subsequently held should be, 

Oma was enforced. Through the gash eo advanced they were alae 
Pelieved of the requirement in the contract of exchange to give 
Complainant « second mortgage for 1000 on the oeeley svenue 
Property. That os 6 result of such advancement of gach the 
Graplewskis alone incurred the indebtedness to Joseph ‘ierabowski, 
Qnd thet it «ae so understecd betwoon them, clearly appears from 
hie own affidavit filed ef record February 23, 1923, (mere fully 
Feferred to hereinafter) and from his furnishing a statement to 
Jan Caaplewski four days later charging him with the amount so 
‘Sévaneed, and also from the fact that he took from the Caaplewskis 
@ mortgage te seeure it. hile that mortgage wae finely, after 
refused of the Canplewekie to concumate the deal, placed 













the Stave etreet preperty to which they still held title, 
ieee pureuant to the URderatending between them the 

3 ds* attorney had prepared a mortgage, az before stated, 
to cover, net the Stave street property, but the Seeley avenue 
‘pre in expectation of the exchange. At the same time, 





' 6 1925, the respective deeds to effect the exchange 
ee executed and delivered in ascrew to the respective attorneys 


| t 
i | | 
ie ! 
' - 
| ot Sth af od Yuoaweo am ow masber aah Puiielquos yd Yelisde 
| orey Youd Yoaeyeny od at Odie Joy O0 abtawelgard, ond ehda 
 SOgerte oad Sore Joommyia Tet aeelo ood emaee JL, ew RGRORe 
: | ed chtaweqand. add: sddame 6b Kiatos omy -tedal sadw: ade 
“noo wa? he Fee tied suo Cri Dives yo dads om esthe whad 
ot 10% hodeg ido omer omoke, youd, wTehoreds,, ands ae toe 
Latetommenrke Howe Bh POOR, esaReGRO ods bas, Soonavae tip 
homtodde shimveie cal elt ataomgnatxe dose aywords qlae saw 
ha ase YTUND OF ABLItnog a mh Jug oxo lu YoTEMOTE os OF Oks, 
& sat Bivesto Led YLsieupoatvn Ines a Hobie _doeidnoo ake 
me 


cain eRow Yb HeoAvhe oF Hane ods MgwOnd  ebopwetan ane & 
ovis od wyiedioxe 19 toaxsmos wis mk Suomesiuere dd 20. ewes 
ames yotoat at me COOLG cet oyeyisom braver 6 Sphasts Road 

oat duov TO sHomnsKeNbA dome Yo dues 2 am dot wo qereme 

2 Atwwodtaraat dgesou oo ageisetdsles oss boxawomd amete abl wou : 
Mott strange YtwoLe yuodd asendod hootetatay. on toy ah test & 
VLE ovoRt) VGELL .€2 Yrowrdot dros to HOLLY dhvAdee a0 8 
iat oe tremeiats 2 gabse bere? wld mowk me (wae Ramtesen, ad erre? 
& aa Siarena edd iho mth yokgcele vetel wyed, we? dalawelgand & 














| aikwwerque? ole mort dost od Head toxk aut OK’ ake Dek 9h 
: 29d een tort: uae ogegirem gant? ofht? 402 ereece.08 0 Be ION 
Aeonlg ,iach aad edenmenmen of wtiawolquad ecicuiiaal hon. 
1OKI2S Akon iLtde yeas dokaw os ytzeqerg toonte vests, ‘a 
a .? i Pr) Hewedod gabbnedosodens, od ot (RaMaueE. Leds % : 
rhucote CkOInd am «OQaghiem & deiagong hak yomnod ss, twtwaw ta 
onnerd Ylaoh obs Jud eYisogerg soomtda, ovate ast som «uHve , 
Sak? omen Old Bh semMcstane ges XO mphsstoogRD th 
ogrndone wt? dnote, 93) wheod avtooogeon aad, aHORk 48) CHeME 
i ayerxetga eriioagnet a 08 wox999 mL boxwyhSob. bas petwoene : 


«he 


of the parties to be eld until the Casplewskis presented » 
deed from Tabor and secured releases of the replaced mortgages, 
But at an adjourned meeting on the following day the Caaplewekia 
refused to consummate the deal and direeted the ¢serew holder 
mot to deliver their deed te Complainant. Thereupon on May 18, 
1923, appellee filed » bill against the Canplewekis for apecific 
performance of the gontreet of exchenge, and pursuant te a 
Geeree in her favor entered November 9, L923, deeds effecting 
the exchange of the properties were executed, and she become 
Peeseased of the ‘tave street property, but with hey title 
elouded by the documents aforesaid Placed ef recerd in the 
‘meantime. 
if After the Czaplewskis refused to consummate the con+ 
Pract for exchange Sovepn Viercvowekt filed of recerd ¥ebruaxy 

23, 1923, hie affidavit aferesnid stating that the ouettns te 

the contract for said exchange of real estate, describing both 
Properties, Were brought together by him and thet ae the legal 
titre to the Stave street property woz in Taber and the Czeplowskis 
‘hea mo moncy to pay him the balanee due on his agreement for a 


werran 


Y ty deed to them, and pay the first end second encumbrances 
| on the same, he, Joseph Yiersbowski, secured a loan of $2500 on 
the Feal estate and advaneed the moneys aforesaid to said Tebor 

















° secure & warrenty deed from him to the Caaplewskio, that they 
" to consummate the deal, and, therefore, he claimed an 
interest im the “nforessid reul estate,” apparently 

to both properties. Au before atated this affidowit 
States that he made the advancement of cash for the 

8, and is inconsistent with his assertion of a Claim 
t's liability therefor, Later, Merch 22,5 1923, 


‘Mise placed of record ssid trust deed embodying a 


“i 


a badndnntg dtdawdiqhnd bad eeone neal wal Ge Wo kee ale 

oar yng dbus nasatgex ‘ond ‘te’ ‘peidator' ‘ye we ae Rime ‘ode? moat bit 

elstvwekqau® tid yb ‘yalvelle? ont sé gett oud Beotwo ted AW Va eh 

shied werysd add hadoorih bao tuoi edd sdeumvdads 69 Soule 

10k oil md moqulotad® sRaanintdmos di bib ehhay’ ‘tothe ora 
otnisegs 102 eblabetgen ‘pitt Jonkaga ‘tgtd’@ botke’ wol.te ct 

a 6a smerny hne ,ogaeroxe “to Jonxdaes itd wae ine 

“uate vite ‘abooh acer (@ toumowol ‘peredaw SO¥e 

‘pmoped ode ‘pats’, bedsooss exe0 cathe A eyitasio 
ons ‘ait diiw dud ewireneng doorda vt 


odd af | pueoes te Laeead Beoriota nénoaue ee 


eR i P adits ara ee a ait) i 34 
Pi iewewer id x ‘ BH. as SE Saal he) in NRE AR ae ae 
* 
















} eaairacet proven te bektt ixiide deal’ ‘Heeaet 
“oe saben ‘odd Qaad gabdode Bsooaote “gb wab rane 
“daod “yal@ixvas & vosstad ‘gay % ognatoss bhai’ xe?” thie Sib 

| mt bent ta tad sae at e bento stgubie 60 sy 


















mod? het od aidoeneta weiton’ oad h sul +) aa vant 
Guels sods qhhatwtbtgel ano) mit moet boew’ Wabiaie | 
na boakake oa Gendteond een ee a wit wi ele 
tora “yesbdio Las merece oitd all Viwabaack anv 
srvabinta. itd hedade sig od ah’ Vel ehisocent a bund Bosses f 
outs “or sno 19 “tgaronevbs ivi ane si 
mtals | a od motsoaun oka ihe aaa hi 
“ wil ‘Vibra " iene 


a wakybodar bead tawtd Dien bones to beoala 














-5- 


trust note for $1750, signed by the Ceaplewskia, purporting 
to convey to Aim the Stave street property in trust to secure 
the amount of «sid advancement. Gn anid nete he took judgment 
in the Municipal court agsinet the Caaplewakie by confession 
July 2, 1923. An execution issued thereon July 5, 1923, wap 
Feturned “No preperty found" November 4, 1923. Under on aliag 
execution issued December 27, 1925 (after entry of the decree 
Of specific performance and complainant had entered inte the 
possession of the Stave street property) « levy “a9 made under 
@aid alias execution on both the ‘tave street emd Seeley avenue 
Properties by the bailiff of the Municipal court and e certificate 
of sale of both properties was iveucd out Of said court to aadd 
Joveph Viersbowski for the cum of $1926.08, the amount of anid 
Judgment with interest. 7 

The theary of the relies granted by the decree appealed 
from Femoving the several documents of record aforensid as elouds 
on Complainant's title te the Jtave street property obtained 
through said deoree for specific performance, is predicated upon 
‘the conceded fact that im precuring the contract for the exchange 
pate properties and arranging for its consummation, Joseph 















Ski was a broker and agent for complainant, ue well as the 

8 and on the unquestioned principle of law that as such 

% he could acquire no right or interest in the property 

1 istic e prejudicial te complainant as his principal. 

on Agency, Che 2, Yar. 455, p+ 3005 Cotton v. Holliday, 

* 176, 1795 Davie v. Hamlin, 108 111. 395 Froehlich y. 

SG, 180 Ills 85, 94; Comant ve Aiseborough, 159 Ill. 3833 
-Olshour, 155 Ill. 300, 337.) 

That the title te corpleinant's property was thus 


palaroqimy yatalanalaan’ anid yt hoagie .08TLS 10% o¢om tauert 
_ Seee CF saared nd yrxouetg sootda syed’ welt athe OS YAO, oe 
| , tnmmgbsr, Hoes ox egam bites m0 stromestayns oben te souons od 
| mohang ies Ye aliqweigax® sas fanage 2208 Log ho beni fier at 
ame g E00 96 Ea noenedt Henmel HALUCOAR aA A BROL 9 ve 
| anki me ‘ronad ESOL oh sadn vet, * pamiak@ Ys sOmOTT, mar lial 
ooo oft te eine wedta) 80h 40S todemoes bewand, nonswonae 
aula odmk beredne bad danminigaoe Pt, BORMETOTING pitas 
tabu obo, aoe ured (germqora toasde ovate off te poxanowone 
aunovs osont ines soamde ornds weld, Ado Ho notsupone vette oe 
edoortisi9o a baw saren oq to deat one ‘te reeked | oat 18 apa! 
bhew oF gues blew ‘to au9 pawent Rw pecounentteny up “3 Lae 
bios to smuvene actt bocce a: et hdl 
aah 




















' abuots, ad » Abanor0%e brepes 30. atsoauss0> Pies co eae 
ie _ Beptasde yo tag ORE, seoxso ovat oats 8 atane ot dman tela 
= coor 






woes pedunkborg ss a PSTAE OE OR, | 93%. : 
sariaciune 9d teh duatenes wats srehsunerg th 
gone’, «Hoke amnuanipo adh co% ohare iy 

ond 8a kow as siaonislemee ” 0% snoge Dhe TAs ala 
ton as take wok te sigiogtag, hemake un oey acid, no baa ebdew 4 : 
qixeqamy, ond mk dugnotat 20 digas Ot ortupes Bisoo, a 3 

_ steadontse ald os smamiatgnme at fake touhon9 “ap obte tanga 

IB, NOE, 909A, oa of ott pon ne 


ces 
hw, 
















‘aaa aa prac s ae w erie 
se, HERR gyi UR, RNs weninitrn Wah. Sits mln, ent 
MENS NUTS 





-6- 


Clouded in the interest of ome who was her agent te effect such 
exchange, and that the direct result of the instruments spread 
of record constituting such clouds was to imerease without her 
consent the encumbrances on the “tave street property beyond what 
she was to assume, are manifest from the facts atated and as 
found by the court. That Joseph ‘derebewski could not obtain any 
advantage therefrom to the detriment of his principal, he heving 
full notice of her righta under the contract of exchange, which 
in fuct he, in the exercise of such agency, had negetinted for 
her, is well extsablished by the authorities abeve cited. 

Martin Vierabowaki was a brother and partner of Joueph 
at the time of these transactions, and o« auehy had an interest 
in the brokerage fees and commissions to be earned through theme 
Vite full knowledge of the contract for such exchange he afters 
Beste, im July, 1923, secured ao judgment by confession on a | 
Judgment note given to him by Jan Caaplewaki for $175 and costs, 

om had « transcript thersof filed for resord against the Stave 
street property. Under thie «tate of facts the same principle 
“maton would prevent Joseph Yierzbowski from acquiring interests 

antagontetie and prejudicial to complainant applies equally 

‘to the claim of Martin iersbowski, and, therefore, the decree 









rly provides for the removal of his judgment as a cloud 

SR complainant's tite. 

3 As most of the facts above stated are uncontreverted 
are sufficiently eateblished by the evidence we deem it 
eesery to discuss the contention that complainant did not 
her case by the greater weight of the evidence. 

Equally untemable sre the contentions that Joseph 


& valid interest in the Stave street property by his 








& 


done segnte aa toys ton enw I uel any te  bnoregat eat) at boda 


FV Wass 


browge “etmamurs9 mt, outs 0 ‘ago, goon old dust? baw 
2 a RN OR 7 


nit amons bw oanoromt oF ann “sbuo fo owe galing tienen breoot 
, EOE Tras sgh ney Rn % 
pocroniphy ois fear 


Medi ke 


deste buoyed witeqorg snort evadi ons 0 mennee 
any ay tee eal gee! 


a8 brs betes aden? sald mot faetinen ous 4 ONAas oo Bew 


Bites BREE 4h. CR ORI we ew eR RES gO 


al atedso on efee Atawodazel genet sastt otm0D. odd yd be 
a's. Ge OR Be 


aatvast ‘ot sKaqhont re ald te srivmls90b eat 0 mortotedd ogsdno 
hare: eaeee & Ee 


doide cognition te toctnoo itd ‘bata afdgee cod te option & 
> era Boni 


od begottouem nad eonene dows to suieroxe ode mk 6a 
eet make to ne Laem: 


sbotke eveda ‘eottinudsus ests w podiebidatss iiew 
W ve ie ee Lee st of t 


rigovot te word i9g bas "gedtosé 8 asm tdnwodaxes W aisce” 
, Pa hE ak Ee a Na 


teosant as buat cifouse ao be vonok@onemaes 98 ode Yo omtd 
Cn a a Si eres Pa: Se Bs 


stars sywornds hesiae * 08 omekoatawee baa aoe? dil 
ea Se. 


NAD es 


duedte oat anedinns tre “ot tonzéneo edd to ogbol wont womk Liat a 
o Re eer es 


en. a0 Hokies tee a dt avnamp best, Le dorugee ‘ane Br Nat at ey 
_aads00 ba “arse 20% “tigwas.gsad as | 


ete NS Pan Te ott, a 
we _ ethtaees 


ovat? ods sonbans prose, 702 Pas Xeosedt ‘ee % An ce 


Rise * 


_sigtontsy one oat toot we atatn ‘ae ope * 
Srey is: Rb Bee 


“ateoxosat atlayoe nor? ‘Mavederet” agen’ ¢ é ahhh, Aa 
Lok ster 




























GM ie tek 1/9 BAN ER VBI IK 


Eko wokiaas son batqnoe at {ole kow tq fae O23) 
. , Oe Ce ee et i Mh 

voxoss ons ‘sore tortents one sbknwodere aka voll ‘te mialo ® 
x Rea ame Be Da dota hoe tS Ree at ee ‘uti 
“auso £0 r Be taomabet ahd ‘te fayous ods Ra Mag 7% YLte 
Bh a J AW RN RU | ORS, Rebs a, Saalbach o ~ ‘ 


Bight t vie Rabe AR 


ay ve 4 yas peti aire aye Be a ag be 


besreverenocsi one Pay iy oveds agpot ond to. 
LEENA MAACO DRE Se hp yee 


he 
a aed ow eomsbhvo eds ye bedetidesss \iltne 


wip yan ‘ ROR y RGA adits alin 

“gon bb smamtofquen todd ‘nozenndn0n ents pare 

DR Me asa th BR aM auih es ii er ae AES, 4 ‘i m 
seousntvo ails 30 sinter spdaunp of Us, ng, a 


yma y perry ‘ene bao m0 ont om elcome tas 
‘y ee pe "N waa oe KG 


abd eaeemenene: Prank ape 


aFo 


advances of purchase money, and that he violated no fiduciary 
duty in securing a lien om the came therefor, and later a 
bailiff's deed upon the eortifiesate of sale. It is enough 
to aay that these contentions ignore the suin fact of the 
relation ef principal and ogent between compleinant and eaid 
Joseph, and the principle of low pertaining to the same, 
heretofore referred te. 

Appellant oleae mikes the poimt that a vendec who 
secures title by specifie performance oom segure no better 
title than his vendor hae at the time performance is deoreud. 
It must be manifest that the point hae no application to the 
ievues in this case as above stated and discussed. 

It is further urged that the evidence disclesea that 
dy a balancing of accounts compl inant would etill ewe $1200 
to the Casplewskis on the exchange, and that relief cannet be 
given complainant under her bill without an offer to pay the 
Same. That was a matior that might have been raised and was 
presumably adjusted in the suit for epecific performances 
The point is siso made that complainant never paid 
the Comuissiona to Joweph “Lerabowski agreed upon in the caon- 
troet of exchange. ‘The record discloses that that matter has 
‘deen adjudged in another suit und judgment in a lower court. 
i It is alee urged that the court orred in refusing 
Joseph Viersbowski's offer to file » crows bill for affirmative 
| 7h The offered cross bill is predicated almost entirely 
the uncontroverted facts above stated and slleged in the 





» @xcept the main fact as to the relvtionship of agency 

















ba 
* 


des wee LR Reeeante 

 vrekombt’s oa wedabedy vst Saks baa stoma, eastonug ‘te sin 
lane sett MO 9 AMER 

(6 total ban eto roedd man ors we woh 2 gatiuose nk % 

A yaeauteg: ¢ Reet 

stawons ab va +aLoo 10 eeont here oats neue booed wITRhs, 

Retin aaa Gua ee 

+ oats te deo Kine at eros. ‘ui 28 00 S008 onsds tad wa 

Ny Ay AN RSI Re: MR A 

Mas bess vmeetstgmes Browsed smone oe yy ‘te gp 

Yau ie CPKay ale % Sie 

some veld ‘ee s pmtatorceg wed * ‘eqtontea ode ods hee qtige: 

Lod soe ipneehe | ae 

sot pernetoz SkOTOS & 

:hAnen ted te O°RPOM A 
‘eit sabmew a dealt imiog aii eden ose smalleqgs hie 

ioe oy a ate weed 

xostad on sTEDOm Co somerset ot ttvegs we eLoks een 


(we tow Ste ee: 
oduataeh ‘ad oomamre reg ‘amd es te eed ‘soomey ist mail ol 
: cod ot ao bevohdeas om ead ante walt: dass “teothanm ‘ot dams 
 \onebonth ban bbdede ovoda ea get ahd? ak 2 
Priaol ‘podetoakb odsebive off" dand hopes ‘teddeu, abs ate 
‘o0L¥ oe XLEI6 Bikow daanl Lqmoo sdaueooa! 36 3 Hinkkad 5 
od sGiiead “AREY gaits hath” bgmitoxe bad he’ wl 
is Yaq Ot chtie AN duds iw Lee wom hel "bid | 
“how bina’ NOkEMY bed dead sdlgiher “anils PEPE Wee nig Oe San, 
engunetyied baieage baie daveb ota Seely Saeed we 






















gukestos at dovte games old dadd boytt cota ieee 
ovtdamikyt0 YoY Lfke aor « aftr 6d othe eblewesaon® ago 
 eotkdae Beata Peddotietg: wh EEd seato boxe ! 
eels mt oogolte are Dedede veda dies sediover | 
yomogs “te Ys L Let oft wt oa tect whe Wi “eel 9 
ao keariswos ity Baa (odor ‘Eka vill Adib ay ” lavoro 


ysuegery sSasnde vag’ edd mo 0kL DdBev io tend wats 





Ge 


for the purchase money advanced by him to the Ceaplewakis te 
obtain the deed thereof . Whether he had euch a lien was the 
main issue raised by the bill. If it had been determined in 
faver of appellant Joseph ‘ierabewaki, it fellows the bili 
would have been dismissed, and that he would be free to assert 
his claim én the Stave street property and thue obtain all the 
relief to which he would be entitled. The offer wae properly 
refused. In fuct, it appears from the record shat before the 
Slose of the hearing he Cbteined a bailiff's deed om sud sere 
tificate., Al) the rights he alaimed under the éocuments sought 
to be removed by the bill as Clouds on complainant's title having 
thus become merged in said ceed the deeree not only removed thea 
60 far a8 clouds upon complainant!» title, but decleres said 
deed te o@ mull ond void and « cloud as te Complsinant and 
@irecte thet Joseph ‘Lerecboweks execute his quit-olaim deed of 
the Stave etreet property to Complaineate Hoe point ie mde here 
that the deeree in Feepeet to endd dead rests upon a fact ariging 
after the issues were formed, appellants evidently having waived 
the formality of o wUpplements2 vill setiing up thee fact, and 
“Ry error in procedure in that reepect. 

The decree, therefore, is affirmed. 

APFIRMEG. 


Gidley, Pe dey, and Piteh, Js, eoneur. 


She 














* 
e 


od eksewotqan® ii 08 ahs yf Deonevoe yonom ounsior at 


eines IR A RES Le Awa 
wud naw moh # dowe beti oot xedzonW ~ » Gooreds head od mba 


e SS, 2 RRA RO A 


nk dentanoged mood bad 2 3E thts odd yw horteax evant # 
h SS RAR Renae ey i POR 


Lid ele owas tot sh , bhawodatob Miqoact tnaitoqge te “0 
pce Mia AL 4 CaS Dis wou 


dxogan i sont od biwow od $ould imme ybosetaekd aveg ovat Bh 
iow ae Bahn Raa inte Bers 


oats Lis aberde ead nae wreot tovrte ovat sald me miele 


Beatty ots 44 ie 
uleonnen enw a9x%0 oat boss htme biwow od dead ‘et ag 
yt Derg ne werhene 


ound arotod dost preset wut moxt eascage #2 yee at eBout 
hea : oe ean 


“100 bho m0 book attbLbed  bomtetde od gatkrooe oft Yo 08 


Te eS: ain ONE 
al admeeuiool one xo bomtete ot c. als SEL 


otnaee tad 


gis weal exeas a‘ smantaLamec ne sbueto us ae) exit wt pevemet ye 
sual ee i! Rie See bel . 


mols heveaws ‘ine sou vetoed ode bosd Dios ak degra Ds 
CR Aw aso abdt mk: 


gi Pee, woxetonb aus seks he etenaniniguos mom shunke ap 4 ' 


ae eee eek: og Py 


bate Seosdacquon oF aa buoso, i. bet blev inet ort 


Peer anne a a. 
te, ished ahalend buy ats otuvoxe Liaweds cod 


KGa Gee RARE ar ie Wee be] 


ened phase ab datog om -geaombedamoe 02 wereaent rie av 
i te Bidar AOA «ON ea ig ath 7 7 


anda kiss Joa & eapgss esaor boob khow we poranes fs ae 


BN IN Roly cae a a a Ae 2 ik 


bevdsw gukvad! dtmentye, ‘ amLLeaRs « eb | cree cou | Be yah 
he. se Hoe % Bo ay i 
iets atont vads ww wa. 




















Sd ber Lotmomoseawa a te wil 
Si rey Ki te HaLoy ge 


oqaers sads ak ones ‘as 

per BE 9 A SR aaa Ea, Re Gente ee ut Meee Oe as 
sos 12a iy sero lexedd s00709b Teen 
eee ea: Daa MMe ES ak am oR yt Soap) ‘Ve $4 


SR Me MC ST ANN aS tours a 


aL OS Pe 


Se OS ERE mam oC CMM RA eG M3 i gp ith wt akan 
se ‘Stud ri ‘dosnt of tod 
CAN ¢ Oe FEL NOL @ UL ee See ene eh wey 


Pde i F j 4 ) | n Le ‘ } OP j it 

PUA G ce B SL IN I I RE a doth gon toy ‘el se 

te NR MRS ACARI by 1A MRAM RE Pe is Mee ii hi 

d spaihga i dee WS Wie tees oe ont 
vowing COWS Reitaiha PS Ra REY eae ARE al Ra ceil ‘penta’ a 

(Ae Tira A dameay RRS! Gapaa! wana. ASE iat Bt ne Me ‘wwe bias: 

“on aan tars: Pein lta aN A CURE AOGA BOER BERK OH ‘on ee ill 





92 + 31220 


JULIUS HELYER, ) 
Appelles, 
APPR .L FROM CIRCUIT couURT, 


QOOK COUNTY, 


Ve 
JOHM GENHARELLA and 


BICOLIBA GEBARELLA, 
Appellants. 


vv fR 


= 
& g »> 
’ 


[% i, -~ 
aAolhe WW eD 


244 
WMA, JUSTICE BARNES DELIVERED tHE OPINION OF THE COURT. 
This ig bill to enforce a mevhanic’s lien. The 
Property in question belonge te appellants, husband and 
wife. For their benefit the husband signed « written 
agreement with appellee by which appellee wae te do certain 
Work on the premises for the sum of S470, The agreement 
| Provided thet "Helfer agrees te raise the building * ® # 3 
‘feet high on cedar posts, 6'6" ond furnish all material and 
labor, aleo to put in the basement all around second-hand 2" 
planke for the foundstion and the rest of 1" lumber, also to 
Pepair eli four walls siding wherever it ie necessnry and 
Tepnir the front fence, and put concrete coping long side 
Of ome wall and sidewolke.” 
The bill alleges that eOmpleinant completed the 
work Called for in the contract, and that including the extras 
agreed upon, there was due him $691.91, on which defendant 


: 

- hour be credited with a cash payment of $150, and the 
additional mount of $154.94 for lumber furnished by the 

: Hartman Lumber Company if paid by defendants to the latter. 


Said lumber company wan permitted to file an 






petition on the theory thet it furnished such 
to defendents, and the moter found that it was 








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pr 


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eg 8. eeee ees 


__ aon SAT TO 0 THLS0., wat CRON LL, asta so ETEUE 
wD a id 







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SO gee” Se Ee *sineioon a oozatae ot aad al 
i Wis iS hold it eR Wits WAS} Pete ty) 2 
“ha baadaun eadrailogce ‘of ‘apnotoe toléceup. aa qs108@ 
WAN CaN a eae AS oe 


wh I Oe omits “pandaunt ext “$8tonwd uisds tol 98 
Mie) aoneriotish a 


niadten ob of aes ‘eoiloqga do kster “6 oolingga seke — 
‘ dingt ad «de ari Ae 


“dmoasorpe eat “.OVbH to muo ant vor condmong oat me 2 
aN as i ales Meh ae 


og y, oe ‘pattie ods ‘outer ot nooags wetian® sass 
f ie cote: Dee 


" ton Laktebinn ‘tte p/aflihsl ty haw ory lateee| wave mo seit 9 
aay ae Ae Sg Nah RR 
| vis pani-taoooe inwoia ite tnecinece bas ah tam of ate ot 

a 4 Rh CRED we. 8 


: DERE 
ot oaks enedeit lied se teen me so moky shave ot sot wats 
ee SRE wb ee 


ees ‘yinaanoon ‘at a ‘poverode pai ellew iia 
v er ee tee 


obte gaol) anges ed szanoe 8 bo, bes “90m. Sent one ahs 
z sit ansige tly h Ba RE 


ae Be ma ee: 
aald badelgmes greabaryace sas wogetia LLid ed? 
catine nso pmblintont sald ‘bas gtoosdaog ond at 10? vattan 
gaobweted dotde ae okeoseng audhed enh samt weet nee nnoan be 
edt baw .0OLe bo dameyog dono « tiv bodthore od bf 
ode yt bedtekavert todul rot ae. mee te Sovarete Lanes’ 
+ ted gol oad O2 simabas tod ye. bag, ae wage ‘wedeest mae 
‘no oft! of herthotog uw cmquoy rode Bad 


fowa bosetamw? 22 tome qromds odd mo woke htog gmhaows 
gow ah onde sae male oa Sew catesioneten: 2 





a 
SS re 













i 
iA 


es 


entitled te a lien on the premises for that amount. But it 
Appearing from the evidence that aaid company furniahed and 
delivered the lumber not to defendants but te complainant on 
his order, ané that dt did not comply with the statute giving 
& lion to a subcomtractor, and therefore it Was material 
furnished by complainant under his contract, the dsaree properly 
ineluded the cost thereof in the amount for whieh he was entitied 
ane given a lien. 

Ruch iumaterial evidenee was received by the master, 


Much of it reluting to the parties’ understonding and inter. 


‘pretation of the written contract. fresumbly it was, and 


should be, disregarded. 

The exceptions to the master's report were overruled 
amé it wae confirmed in «ill respecte except ae te the Timding 
that the lumber company was entitled to a lien. 

The other overruled exceptions on whieh error is 
Sesigned were te the effect that the mster's report wag 
sontrary to the evidence and not in accordance with the con- 
tract in thet complainant di@ not complete the seme ahd defend- 
“ante had to hire one Catanelle to complete it at an extra 


fon of $100, ond that the master faileé te credit defendants 


expenses incurred for Plumbing and restoring 4 cement 
“ stdewaix, and that complainant was improperly given eredit 





fee Certain strips put on the Outside of the building. 


We have carefully examined the evidence and while 


of their evidence indefinite and unentisfactory, yet 
@ it the mont favorable interpretation we are not prepsroed 











f 
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Nea 
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bun bode iwc? qaageeo 8a id nemnneyy: ants ox yalzassa 
ae dmanio (quod ot Sued s2uadao eb as tom coded ants To 
aaiv in aguente oda se dw yqwoe fou bth ry deed bem r0b10 a 


Pe ae pe a BY aay ‘yt 
Lal-ne dacs aur oh exe tovestt ynas avewtimeodua @ od wobt 


_ eixoqong prey wale ptonrenee aid wo hens Jusacatguos ud owlaterns 


bois ks mo eam oat. dete: ‘46% Nerewe ets wh Yooreds Pens eve ‘pebwats 
nye geese. s wovts ‘oe 
Cee gee He 


adie oad we bevtovst aaw ome says fatxosama dou 
S bathe. weal ahcout 


potas ‘baw geubaed exobaar tanksxeq oa: os pateates ok Ye Hrs 


Re RT UN A a MP NT). ye ae 


fae naw ak videausovt .donname> mga hew ay fm v4 
1 aat ig th it " Poy i Mi 





* 
oa wok Pests ta #9 b yee ie ba 


pokerneve | oxew od atastena ode oe no oqnons out pees 


gait ont oe aa aqooxe adveqnon ‘tte mt owt! tH00 ou ak 
S gedeug Mae ke ae on 


“snk at els sone anv yaguoo todaul odd ad? ta 
and tis 


| 7 ort ose no anolsqesxe bokuat9ve santo oat 
: DEAR TY! ' ad 


ew sroqes otzegncm ost sista suerte ‘esta ot ovewW cs pg ap he 
i sf a 


“08 ng se be souniroses a tox be vonobive ods of gt | 
Saree Ae "bel 






WES. | ops OR ata A) MP 
ohneteb ade Sone a ond edeigques son or om o dada fag 
1 ae BE MRO shame 
euixe ma da a atoiquon oF ettonass ‘om oud 8 back a 


_admanaered aboxo dal bedto® ‘seteem., ene tat shariinas g 








, pela : sal pat wpaurytye , 
80%. etecniee aac i a 
SereTOT fom HO, 9y MORRAEOT nom.ons a2 gah 





o3- 


to way that the court's findings were against the weight of 
the evidence, 
As to the item of $100: The contract requires 
complainant "to put im the basement all around second-hand 
" planks for the foundation.” From the evidence it appears 
that they were to be placed on top ef the posts, and were not 
80 placed by complainant. It ahows, too, that the poste rested 
Om the bare soil. Claiming that the contract in theae respects 
Was net completed, appeliants hired one Catamolle te put o 
foundation of conerete under the powta, and pisce the planks 
where complainant *was supposed ‘to put them but did net.” For 
such work and other werk mot ineludeé in the contract, but 
Secumec to be by defendants, Satanello ae paid o lump sum 
of $100. if completion of the contract required placing some 
_ kind of « foundation beneath the posts and placing sueh planks 
, on top of the posts or otherwise than placed by complainant, 
yet in the abeence of proof of the reasonable cost of that 
part of the work for which complainant eould be held liable 












“the court could not give defendants eredit for $100, or any 
rT te part thereot. 

The credite claimed for Blumbing work did not come 
the provisions of the contract. the court, however, 
i something for the new coment sidewalk and preewmbly 
that reason charged defendants with only two-thirds of the 
» which amount to $157.50. Testimony Felating to that 
t and aleo to the strips is not sufficiently clear and 
in to warrant « change in the finding. 

It is urged thet the evidence does not show that 
@ allowances mad@ complainant fer extra work were the 





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ve f OREN Brvor hansen il 


| | bnadbagoe%e baer Lis sneewed ould ‘ak awe oe" Sean ls Lame 





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i LOR A SRS nay as Bi ioe. vad wr 
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i ii i RR ae es 
e hotawe ein0g that sasha 908 sowesie ar + Suan haiguon yd hbeoale « 
ia si ah miei Ete Kio Bayaae aan ae RSS 


Mee ‘ghoeqews eoad? ni soaxtawo oat baat uatedal? Lion oxed ant 
gia: a Bee £5 me 


a 

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fi otha inet ‘ % Fs Hy ‘ sp 

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a OR Re el AO a We a 

i 20% *. to ate aud woeta 40g ot eaoceu aan snsnisiqnoe oa 
aCe BR) ER ERR Gee 


fe oud benitene ods nk beoiud Lh gon * seaite 
© an * ah ‘RS yous age nent Ae 











ul ware qed a hiag aa olleriodad stent vd “6. oo Somna 
i Di oem natonig hortmpet teatime ods te mokiolgaae tt oh 
: einntg Sour yates tno a2yeg out dinonag motgenaunh » 28 Me 
hi ctiusatatgmoa yd bogaly mans eateradse : 10 ut t alt te qos 
y Sart 29 Seon ohdasoendt até Rod tour to eome eomeuds ond mt 


whdats iva of bie snombatqaieo sto hate tot ba allt to # 
Bh OH By ot ‘eRe 


wee eo 0058 20% sibeze sdmabaw'teD ovis tae vee a 


COIS & ah Patines ws Mey aes be Rael +4 


aso jon Rb sinew sateasiy 20 bent ake ebkbere Ont | 
Ki ak Mii. ag a ai ) 


qtovewed sotvee salad sdostam09 eds ‘%0 ‘aula tvere 
i KR. ROR EG, 18 py 


Ee opms 802% fies Atewonte dneawo wont ont wo% 
yavane Sai Aue Rigel hate s wa 
as? ‘te atrutitd ~ond ao woke staanme ob hopiaste are 


ei Qt. a Mon Sth i sei 
duals oF gukiaten vwromiseot “03 tent od Smmosn 
* sie eRe ak it an che? o as 
bite woe parma tom Py outa ode hae a 
fay am tae a MRR a NR Gis? ; ok ta ich, 4 
tad wis doa desi ssa al nwa a ae 


yi DW eater 
as" ‘oxen tow 














hy : ¥ 7 












renee + fair and usual cost of the sume. this point 
inet D etteg been made in the court below, oxnnot be raised 
’ for the firet tine, 








While the decrees should have expressly disposed 
the intervening petition the point is not raised. Finding 
9 reversible error we wili affirm the deere. 


AFFIAMED » 


¥o Po Sep and Fiten, Js, concurs 















 bopkot of gonmno ywolod 
cotlneaptatel  hiatiniassiin tt Tout ” 





ee “ema 
agate hnsssna ail frmnn sf wd me 
wean # & weied.eHH att any? a No maid Ba 
get shooles vom eb dakeq ont 
Fae I DNR wired ead UA ee aa Denke, 
ge peKOeh odd aubite titw ow 
waite aye @ rs an i tune 
ee i 










| bar woe aie, bin 


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120 + $1249 


WILLIAN G. HARLEY and 
CHARLES ¥, HARLEY, ! APPEAL Fee 
Plaintiffs iu Error, 
} SUPERIOR COURT, 
We 
COOK COURTY. 
| @HORGE 3, ‘HALAS and ) 
EDVARD C. STERN AMAN. 
Defendants in Krror. DAAT A —aOQ H 
es 4 A Bo G fxn @ .¢ DB: LP 


WR. JUSTICE BARMES DELIVERED tux OPINION OF THE CoUuNT, 


This writ seeks the review of a deoree diemigsing 
‘Complainants’ bili fer want of equity. The bill alleged a 
partnership reletion between the porties end sought an 
‘“Secounting. The portnership agreement was entered inte July 
“48, 1921, “to manage the Decatur Staley Football Team." Bo 
“definite term of the duration of the partnerghip wae fixed 
end RO definite arrongements were mee between them for con« 
"ducting & football toam for the season of 1922, One was, 
however, sonducted by defendants, and the b11] seeks an 
‘Recounsing from them for the profits of oth yeare. 
bi The evidence presente the questions whether the 
Dortnership was net dievelved before the football season of 








92 » and whether there was eny necessity for an accounting. 
n findings of the master on thoue questions were againat 
' ite, and the question before us is mainly whether they 
: Supported by the weight of che evidence. We think they exe. 
inching thet conclusion it is unnecessary and would be ime 
Beticable to review the conflicting and voluminous testimony 
on Which his conclusions were deduced. we shall, therefore, 
fly recite the salient facts found upon vhich they rest. 


HE i Ca Se 


aaa 


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ME og iotaad sage “Fyst! SG 





. YOLAA 9 B MATIAE! 

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aah Saat" - see sel wr 
eTH0OS KOLARANS 

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“ar scampi eamLiAs mortedt .m 


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a begelia Like ont » qdhspe Qe goow tot L250 sceumemneil 

| an tdguon dns woktneg onde negeded selioton qidexemdes 
| : ut oiak doredns ont IMoMOOTES gisexsndeeg vt = geek smoot 
a | ef * mast Léadtoot yokes): “masse oe ayaeon. or”. (« beek ef 
bent? naw qiderensueg old To motiaiwh edd 10 pered og keuk' 
«soo wet weds aeewsed oben oTeY adremmgeetts | estates on » 
ear oa? 4 TREL 9 te aO8 ots «0% mowed tkndtoo? @ guide 





ii ae adoon iho wld baz eedanhweteb yh hedowhaoe proven 
\ cetesy dfod Yo vervonq one set mous sont amiss 
i | ecig xadgortw anotioomp one eéreseTy oanebive oat ack 
; 4 Xe Bonen LLedsoo? ona eroted bovlowedh ton enw i 48 : 
1 enneuneeen ne 2pk Yiveooen Ge Bae erodd sedttote ona - 


gealage oxow ano toaeuy eaodd ao todgam edd To opment 








qode sodtactw vinhon ns eu sio'ted meiicouy osid hens _ adams 
coun ends Suid oF svomebhve ot? Ve saptow ait WA petroqaua | 
ask ed Bivew faa Yrevasoomne ek &h soiesLoneo dase satsto 
ypromtse od aueninuler bate gakéwitiaow ot wnkvon 08 Adal. 
evotereds yLiode of sbeoubeb otow anotautomee elt Sobtw a 
etawn yeas Koki nog ane esonk dsnttnn ods aftoot Xi 





Im the year 1920 the A. Be Staley Manufacturing Conpany 
of Decatur, Illinois, being interested in promoting athleties 
among its employes, organized and cendusted » Teotball team known 
®e the Decatur Staley Football Team. mong ite employes were the 
two defendants, who were ereminent football Players. The foot. 
ball club wos 9 member of the \merieen Professional Football 
Association, composed of a large number of football teams of 
various cities of the country. Defendant Halas, waa active in 
securing prominent players for the Staley team in 1920, and the 
early part of 1921. itm 1920 these playors Were employed on a 
salary to work for the “taley Company and were to receive fram it 
& share of the profits from the games Played by the teum, after 
the decuction of Sxpenees. The team was operated im 1921 mainly 
te advertice the company’s business. The Company appointed Halas 
ag ite athletic director. The team played that Fear in various 
@ities, including Chicago. 

In the spring of 1921 the company decides to nove the 
headquarters of the team from Decatur te Chiene during the play 
Season. To that end its superintendent, Geo, Chamberlain, on 
Vanuury 27, 1921, negotiated with *. L. Vecek, Prevident of the 
hicage Rational League Bal), Club, and secured a written loase 
from 4t for the uve of ite busebell park (called the Cubs Bali 
Park) in Ckiesge for the iaet three months of 1921, which was 
Signed in the nase of the Chicago Club by Veeck, ites President, 
and by the A. %. Statey Hanufae turing Company, by Halaw as ite 
Fepresentative, 

_ Halas at once beonne active in procuring contracts 
from Prominent players in addition to these already on the team 


t* 
eo) 


D4 Sonferred with complainant Williom @. Harley, whe was not 
a: 














a rip mr 


qnaqe? yttuatootumell yokotd «8 +A ade OF0L xooy ond at 
sotseldas gakdomere al bodawsedm aiied cobomiLil «aiteooct 
sro asad Liadioe® & beveuhaos bun beaioegre . ene yehane aod ane 
ea? evew oye Lema ath sow smnet LLadseot woknee ‘tudoood ‘one 
took out sareeata itadieot tnenimecg orow odw gatmehaotes ¢ 
tladtoot Lensdeswtert mawk tem etd te wdaen bacon cus: 
$O seme ikadseo: Xo podiuua egrets te hosnaene’ wot satoor 
ai ovatus sey | vend Lait tuasdee te » Wadeuseo one Ye askite awed 
pdt haw [ORGE ah anos eect ont wed evegein tasuhnene’ ombuar 
smo beyeiqae euew wreyata eowdd O89L mh. £902 Yo) dink 





$k movi S¥sooes of oxew bine, yanqmed yolads edt sod. drow 08 ered 


sade sened add ye boyele wemeg ol? mond eth bore ods, (Reonade 
qalew £262 gh hedarece sav seed. ad? sesomeqne te moLioubare 


edied seenteqga Yoga at saaeotawd «'egRED. ond ouksewan, 


awoknoe eh 99% fant. boyelg maar oalt  aagoemsh phteddean. th: 
ee a me Ce sOpeohdD yatbutoms vant 
ods oven of pobdinod qamemeo adg 1201.20 gateqe: ot ah my geek 
‘yely etd gatuwhoneodstd od satepod some) mend ond Yo wend ramphs 
0 oRieltadendd » ood ginedmesmiivgse ef) bee, dome oT» smpee 

Od te daebkaatg Haoe od oh stew Modadsogam gL8GL 40S rerame 
Sunes Modebww @ howuves pnw eis’ Lhoh, eapacd Lenobeel, opal 
Skah add ot DaLiad) teeq Sadoand oft. to cowvadd co da 
asa solide gS Ro adinen soade sn0k, walt peg 






aaoartames, iii me illid ee fac anbMc 
mand vcd mo YdaetLa aves 09, meleLdba mh axoyele fevabaont va 
dom! wow exter ee ditellon tL EY saamtaignes Moke aoe 


o3e 


& football player, with the view er accurime the services ef 
his brother Charles, the So-complainont, who was noted ax a 
player, and other Players whese serviess -5 auch were controlled 
by paid William Harley. The conferences resulted in the portner~ 
ship agreement above referred %0, hich reade ac fellows: 
“Charles “. Harley, Edward ¢, “ternaman, William Harley and 
George 5. Halag enter into am agreement this 19th day of July, 
1921, to manage the Decatur ‘taley Football Teem and to share 
equally the profits and losses of said teem, The above four 
Mamec will present to Geo. x. Chamberlain periedieally during 
the football season of 1921, ao sum of momey to be designated by 
them." nid agreement was wigneé by each of the said four 
Mamed parties. 

Purauant to the arrongement the club omtered inte the 
Geneon gamoe at the Cubs park, in the middle of Ogteber. Alliam 
Barley attended to certain business matters and had charge of 
the gates of admiesion, and the other Portios to the agreement 
were Players on the team. 
. October 6, 1922, the Staley Company addresued a letter 
to "the Staley Football Tesm' confirming a verbal agreement to 
Place the names of 211 the foctbali Players (not to exeeed 19) 
on the company's payrolls nt a salary of $25 a week, with the 
« beption of thoce already being taken Gare ef om regular jobs, 
nti {t paid $5,000, ineluding 63,000 to be paid for advertising 
a the football tenn'n score 500k, the agreement to end at the 
de of the football season. An agreement to that effect was 
‘ imto and signed the sane dey in the names of the A. %, 
| o ; Renufactur ing Sompony, by ite president, and the “Staley 
ube" by George “. Halas, monager, and Edward ¢. 
Mm, beth employes of the company on ite reguler payroll. 










ae 





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yu « toh eat HD 


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Cie, ee ae non ieee hak me hf 0 BS 


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A PMO Sg ERG BP 
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mwo} wrod edt Soret bhoe Ye sera tr tae 












alk dacs si aun iiibiiun epee se 4 
| ‘od ent, poxotae aiuto ri sno so yuan rab pt foam, or 
MARSA yrmdosue 20 acubhm ode mh ctu RMS oat 9A nomeD Bip 
i te. egredo bad bus exsddom ononbend aiae sr i +, AON EA. RSA 
‘ ang ae, one 98 eae juclane “ee WOE 
oe Rh a avi tens vane boca og 
cesta * boozoxbhe ‘uae Ue . ae 


hed a aremnsa'ny 2 Ladxor # fon a “me? Cree: ener 
rae PAS ie MERE) Gren ang ae 

(ee beoons at dom) aroun Lhed$oo ods ite on 

Ne ee 

“is f Wy yi TAR 


seat Paleo. ee ¥ oxo nekas pied erate eons 























} Saameetye ot of sohd ang 














i hh, babel ah 
yatersrevie <0? bhag od oe 000488 aatnaion 2000s 9. 
edd t0 hao at sagsnenge an? oo 'eseoe tune Kha 
Phaser s: LRA LER. MES i alt 
naw so0tte tats ed saomeorys wh, KOR BET Lhadseo% hd 
cm c aekA pie 
1 9A ould 20 somaut oat mk qab one a ocd Deepie fave i pee 
! PH AO SN NPN i Ah A A) BENS IRS 93 8 on 
olate* ait bas sodbne at 
hs mares tee Sa" : Me eng n iae fa Re 
4? _umebit aun eTOpanam ¢ Jenin: +i} agreed 
i ME LE iD RET TE Tia OO, 


Prete seth n82 mo gm ed Yo vayeens dies 





fhe prefite of the season, chich approximated $21,600, 
were drawn from the bank Yebrucry 14, 192°, where the funds of 
the club were deposited, and diutributed equally amomg the par 
ties to the partnership agreement. Only 07.71 interest on the 
bank account remined undistributed, but the same wan subject to 
the joint order of Tilliam G. Harley and the two defendentes. 

Said sum and certain eweaters and towels in posesseion of defend- 
ante constituted nll the seaets of the partnership not distribated, 
and these were tendered to comploinants before the inetitution of 
the euit end ogain before the macter, and ee the aseter found 

are still subject to delivery om the continuing tender. 

The partnerehip agreement apparently contemplated a 
partnership only for the neagom of 1021, as it epecifiecally 
Peferres to periodic reports te Chomberlain “during the football 
sensonm of 1921." However, no agrecment wae entered inte between 
the parties for the following yoar. I4 appeara, however, that 
im January, 1922, negotiations were had between Cheudbe Ladin» 
the superintendent of the “taley Manufacturing Company, and the 
president of the Chicsge Nution»l League Ball Club with reference 
to obtaining « lease of the Gubs bell park for the football senson 
of 1922. In its correspondemes the <tsley Company expressed the 
imtention te place another football teom im the field, and stated 
thet it hed no other representative ot that time than its said 
euperintendent. in an interview thet follewed between Veeck and 

| Chamberlain, at which defendants were present, Veuck said that 
| defendents would have te be = governing part of the football 








| team of the “Staley people" if they were to secure the lease. 
| Chamber ain gaid thet defendants would have to ge back to 
q Deontur where the matter of their conmhection with the fectball 


eal 


e 


hs 




















“Koy oad Homes Yitaspa bod tesa ‘hele “hone okie way! 
‘ahd ah todrodat ITO Chad, diteaderge qhier shlé oa a 
od to0h8ite wow omek 948 tod  pebicc keiths bebe hy 
veteiabno teh amd aits Kiki YORK 40 wekiten to dink, kel, 
wbaetes te selina senog At alowed bum wtediowd Peay a ee os 
shodedixstash don qhaatondiig ede to aiedda ait Ltn bebnILIhOS | 
tm soktashvons alt euqted abana birqued “eo Hixiteel —T oilkdd 
inauort isdaan eas 2 ban <rosaion ens veto kane Ome Feels 
 yhebaet gakuwitttes off no yuevitod 62 sosndat Tein 
4 betalquesmes yWodouagee Jromepne hates sak kaa 
MEaokihoege #4. am Asn to moose ong, wer ons wo ube 
_ Shgcaaee outs secunllie _— fase 























ory 


aaah dye m 
ent? hecnewgne 5 alll ‘tite oi i : 
hutede dine ghkek? ote mt ath Srataney i ns o i 














‘Ekedoot ats wo mr aad Liste ite ee 1 Xalt pee 
| 1 caged edd etadan of vibe oat a i) he “3 sa ’ 
ey ere eyes rane 
Ltadieo’ ‘mate’ iin soltooduod 


AT en ea ‘ fy AR a a i as a 
\ Rs ete aa rie ee ae et Sh Ae igo ry Us 


team would be arranged, bui that he had mace up Bie wind thet 
defendants would not manage it. The following duy, January 
25, 1922, the Staley Company sent «1 letier te Veeck wtating 
that the company hed eoncluded to withdraw ite applieation for 
the use of the park for 1922 end dissontinue ite athletic 
connections. The company did not operate a football team for 
that year and forbade the use of the name of the teams 
Thereafter William Harley, seoting apparentiy wolely 

in his own interest, and Halas and Oternaman likewise acting 
only in their joint intcresatse, sought a leave from Yeeok of the 
Cubs park for tho year 1922. Veeck enid he would give the 
leases to whoever obtained the franchise from the 4aerican 
Professional Footvall Association. Aftervarda at ita meeting 
in Canton, Chie, Jamusry 28, 1922, Herley presented an application 
therefor in his own saue, and Hales and Stermaman presented one 
im their name and that of the Chiesge Bear Football Club, to 
operate a football team in Chiesgo for the year 1922. The 
franchise was granted to the latter and later they secured « 
lease for the use of the Cubs park from Veeck. Both the franchise 
nd lease were granted to them im the meme of the Chicago Bears 
Football Club, Inc., which defendants organized and controlled, 
‘Qnd with which the Harleys had mo connection. Harley attended 
aid meeting of the association and wae present ot the session 
When the respective applications were discussed and the franchise 
Was grented to defendants. “t the mesting Harley alse applied for 
and was gronted « franchise in his own name to opernte a team 

‘S88 Mileoukes, although he had previously made « trip there with 

| ‘Fegare te the matter at the expenee of the partnership. Later 

fm the summer of 1922 he applied to the prevident of the Staley 





fats beta ede qu eben bat om daale fue cbognainn odbkwow me 
autos yeh Gekwaiked of? 46h onamdm tem biuow wtambae’ 
t gabiads dese! of «essed o saee yeqmed Galeds ods geOOL 
| i «o? mbsooiiqg® adi wethtdiv of bebuientos Bom yooqmenledd: de 
| ehiolide aIf ovmisnoowkd ban SOL 4? Aeaqrods Yovenm 4 
tot tmod CLadinet # singe tor bts yaaqaee OAT penekieot 

ae oT Le ne 

| poten yilitoteggs gakton yYolial malLlA® westeoredt oor)» 
! / iron wadwoels wamnierced® tan ealel dae ,seene deh mee ete 
i et? ‘to weer! mort oneel » tdgues potaotednk sankey tied? who 
wh old oly Muem eu btw doaov +800L wn oy Gile aWY atuOG) a 
ae 3 “ABO oe ead amet natsonae? oid hemtagdy tovDede 0%. om 
i| wakros aff Se gbtawted ha . sto htebeeond Lfadsogh Lomo Reems 
(mek neRAGGn ie DOPMADIE’ EHKuE ALOK OR eal «ebID 4mereNT 
I oxo batman MameeTssO we aKa Se game ewe ELE ee wo OR 
ae OF qHRLO Lindow tne agente odie Yo deste bn smn beds 
be att sane atey oe <2 egookat Ad med Liné¥oo® @ sion 
i wire st Metal hae tersel wit oF sosaory enw watson 
oulstocinr? odd mto@’ .xtesaV none aang edie) ould ‘to bow enfd) sw wen 
wus omebitdD sit Ye anni uk ak maint Oe nosey oraw cowed | 
heLKetamey bute wurtstayre adaodaoted ubtte yvoml dus Ltt 
Rebates ta ‘yeltel  .eetvetnmos om bed eyeheal wate siokete abv aw 
“sitwnes ade to FuesoTg awe bite MO Ree Reade wae 0 "Neto it 
suitoare’t vt? hat hemeweaks orew eto Ba'so Ragan wrisongeen aa 
ro? hedlqqs oake YoLuel yititoan ald Gk satatadnmttod 98, Rowuen r 
moet © oFeTeqe O¢ om swe eM Re dakdeneNT « Kekmueg mM 

Mile ered? ylet a whom Yabo Ryerty dock wat toueaite omnia 

| tatel .ghtwront tag ot Ye sumugee oath de wedtom ost 08 : 
are snobaseng oss 03, bottqqa caaiiad some is 





Fe 
i 
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Menufacturing Company for the right te use the obteley name 
for a football clus to be operated at another football park 
im Chicago. The request was denied. “hile Harley Slaimed 
that the applicution was made at the inetenes of Halaw, the 
latter denied ony knowledge ef Hurley's intention to apply te 
Staley for such purpose, and Stuley, the president ef the 
Company, testified thet Harley did net mention any other ¢han 
himeelf as interested in the project. 

At a meeting of the association, then known an the 
National Football League, August 2¢, A9Se, at Dayton, liarley 
Spplied for and was granted a franchise in his own name te 
Operate « football team at Toledo for that seasen. Harley 
and Halas sleo diesgree a3 to whether this application wae 
Wade in the interest of the partnership. Vrom these verious 
incicents the meter correctly found, we think, sn expressed 
intention of the parties to disventinue the old partnership 
Feletion, 

The contreets with the pinayers followed the pre- 
seribed form required by the national league. Yhose fer the 
year 1921 were between the individual players and the Staley 
“Footbali Club, and those for the year 1922 between the players and 
the Chicago Sears Football Club, Ine. By provisions in the 
Players! eontrests the club by written notice te the players 
to @ certain date might renew the contract fer the term of 
year, except that the salary should be such no the parties 







then agree upon, or, in default of the agreement, euch ae the 
; : , Might fix. The pleyer was required to accept the aslary thus 
ed or else not play during the year otherwiee then for the 
Wiless Telenaed by it. Thie reservation 








ae 
ae 
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ra Rp eS OPES 


Setgerateet cece ee 


ee 


 egeagat ge Ta) Obs mae we sagen odd ae% Yieawes whdaust oot 
Ming LLavecot wekseae Ss beddaege does: sole thadioat« 
“pomkerd eehind 6£id® «Pokies wiw Sesnpon wa? | apeeeds 
| hd naka te womesand wad Va ebem RaW no Lsav tigen ead 
of i od wehtavenl wo yehsuh tO sabdetvand yaa’ ‘be kwwb ome’ 
‘gett te dmobheerg ond peokae® baa: enooqung Howe 20% gel 
owe ante uit eho aeM tent ASB whtak gaate belt Rtend grey 
sdudtotq ‘oats ak bationegad eo ther 
et! ee sone mold ,aekdaloeean edd te: putecuniatenion pte 
ee anedyad da ghCOR (OS daague vemgesd Ladboot Sie 
“gr heuer mee 224 at ootdonect @ bedaity eae bien 209" Rol 
Crenegsil stoncbd dade 4oY Ohoxet do med LhaeedY a aie 
Gow ROLSOLLEGe Old? redsedte 6d on eotgalh cose datall’ 
pee tuae oom? moet  oqgtharenibang ole ‘te tsmaded oie mR 8 
 hbumete ae yates dr bite? Goon ried wetsben add atnodd 
 ehitetead be « eid obatsavoe1s’ 0% piston notiine 
‘ bak @ ult bowotlo’® arigata: ' ite atd 2° obbinuinane paren 
“gle tOT ovodtt’ "J omgent” Lomb team ests we bexkagion mot eel 
“pave aie bee wxeyate tewbevtbak eas" neato 
aroyate “ot eww seer od ‘oH0 sot uoste pene dito’ & 
oft BE auth tarvoug Ui Veet” auto’ Chhereew eaunl egabi 
 wairyalg od 0d bolton musa tow i Gumo! vse nd “94 
Ye esos of Yet duaeemon’ wate ‘ronen tahoe marten 68 
 pokevey eit en dove ie hitter ‘gente ite iid peoaee 
asi? vo dons \2tnmbityn veld Yo Stimtheb mk YW (hogie warm ae 
axle ernie of tqncos Os bexkupedt we cig i” ne iy : 
edd er ant oabietutte “eee etd” dba yee ox ‘but 
isting 8 Note vtedle’ dike’ “yah We ai ae ta 


















oYe 


of the club and the promise of the players not to pley during 
the year otherwise than with the club were expressly: taken inte 
consideration in fixing the ealeary, ond the undertaking te pag ite 

The conatitution and by-laws of the football saseciation 
@le contain the provision that in the event that an organization 
holding membership in the asecciation cesses to exist, the other 
members of the aseocietion were to be duly notified and furnished 
with the namen end addresses of the players releseed by enid 
Orgeniaation. <Aise that in the event a joint partnership holds 
membership in the ascocistion and ie dinsolwed, the dispowition 
Of the players formerly under contract with 1t must be made by 
the former pertnera, and the averetery-treesurer notified of the 
details of the settlement. 

There was no proof of sny action taken under the Latter 
provision. But complainante maintein by reason ef the reservation 
Glouse im the contract with the players they acquired valuable 
Tighte in their contracts which constituted oan aseet of the 
pertuership ct the close of the football season of 1921. They 
@lso contend that the portmerahip has never been dissolved and 
RO account token or settlement made. 

The master found thet by reason of the refuunl of the 
Staley Manufacturing Company to continue ite connection with 
professional football for the year 1922, and by ite failure te 
Spply for e renewal of ite franchise to operate as a member of 
the Professional football asvociation that on or after January 
88, 1922, the Staley Football Club cessed to exiet as a football 

elup and a¢ a member of said asvociation, and thet on that date 
the partnership arrangement terminated, and that no other 


memes was formed between the parties te thia suit. The 


** 

ta ¥ 
Car 
— 





a 


er 
ae 


ee 


antenh h9, 8 a? gon ezoyele ona bed er, oie ae fake * 


Rises fu 


odes woalas “uLaee mex onew uta vale nis kw wate oakwsadte toey 
of weg wd gatsled x0 baw ods hiws werokes waa unbat at ae. Save 


ae htakoowna Liaui2oo% nas bid owai~ed has noidué2sen09 at? 


i PENT RT 1] ks ‘g 


mo ktastangre cae deste soy oxta cy fede Retaivery bred , Btataee e 


EW | Ge 
onde ots vetue os avasan motdetoonse oats at a bela rogues abd 
boria kari wom boktasox ad od ot oxy motgadoorne, A snd Bt ot aan 


‘bee ql boaactes exeyate ‘ose 0 sonuerbbe ban semen a 


“4 Sea fp a 






a1! hy 


Wott isoqake aus <bovouatd ab an motéatooues ode “ # Bt 
a ebse wd ma ak thw $on8m00 volta ctnastet en % 


wee to bettisen rosuanead-qxosorze8 baad baa ates uy the 


} smo ten hog eo 


1 Ay 


xoveat aut tse feos motion ve es) Ratios on enw etodT 
Rey OTR RE wee ‘4 


aoksarrones ads 10 bane w eb teha “emomtazgaas auf = atten 
ek! Oty fo Labaats 


eLduutay bextapos ed oreynty edi athe. featenge ae . i . 
ae PRs * a . if 


ode ‘to donna me bodes Leanee Sotsdw sdaauienn nheds bs 3 
gaat’? » ined te nonaoe tLadtee® berg te easels odd By 


? Sa y Ree Dua 


beeen » bovsovnt wae ‘rover aa qidexont seg ods J sot 


eben taewels 390 19 mated oo 
ak Hers Bee i. y Sat x von 1 Bed He co ye Be we 


i aut te Lanuton ate te meaner we teste reed ta ster ‘gil 


Se See 


“abe sete oonnes otk suatsnoe ee 


4 TRIS pos dah be Ss 8 


ge mute: ess w ae 300L 100% ag wer J one 
ws sacnow 8 92 odunege o@ sotmonort ash Ye 


MRE REO 































LLedzoo% & te eae oe ‘bone0o uk Limstoot + } 
; ; Ma Ney a Re ie ‘ty ol 


_atob seats ae nits baa “saotgetooena biow nati 


Lae ar wea Nias eta 


sete ou toad fo ogomamred 4 


homie Sea 





-8- 


master further found that the reservation clause im the players! 
contracts for 1921 was unenforeible agoinet suck players on the 
Gisselution of the Staley Club, and was not enforcible in fever 
of the Chicago Bears Footvnli “Lub, or by any of the parties te 
thie suit, and that mone of said parties had any ownership or 
eontrol over the plsyers after thet date, and, therefore, that 
the pleyers' contrsets with the Staley Club ané ite good will 
cannot be accounted a pertnership aecet of the parties te this 
suit. 

In reaching these conciusions the master neseasearily 
had te accept the conclusions of one witness or another where 
their testimony was conflicting. On the version of the evidence 
gecepted dy him we see no ocexnsion for questiening his con- 
Glusions. The “taley Football Clu» was formed ond organized by 
the Staley Nenufecturing Company. Ite athletic director, Halas, 
Was to manage the club. It wee used se 9 medium of advertising 
the Steley Company's business, The compoamy practienily turned 
the club over to its athletic uanager to continue on with its 
Mame for the season of 1921 under the terms specified, whereby 
the seme was to be conducted by the manager of the club with an 
‘expense to the Staley Usnufscturing Company of $5,000, The 
Partnership contract was one to mannge the elu» for the four 
Parties to thie suit, ond for the division of the profits and 
losses between them. Yo time was fixed for the termination of 
the pertnership, and the agreement between them and the Staley 
Menufacturing Compeny did not contemplate arrangements either 
‘detween themselves or with the Staley Manufacturing -ompany beyond 
-thesend of the football sesvon for 1921. ‘nd when the Staley 

anufactu ng Compony, which held the lease for the use of the 


Baseball Park, conoluded not to have a football tens 








eal 
Solty 
a iby 
th 
Pi 
aii 
hee 
Wi i 
i het 
mie 
aI 
eR 
dt 


EE Eg LCOS 


neg A met ei Ca a 


Resyed weyea, yi dua’ oo toaws heh welt; As bm, te oer fenaods , 


‘ong Mi wh cule molderrodes odd dest aed madiaw? pe 
ait me aeeyelg Meme Iethoge oldierotase: gow LOL aot etemns 


ovat ah eidteretne Jan sow hee qdwld yokes’ ode te mokamtes 


od sobiieg aie % qe yt ooo gael) Sieddee® esank ageaaids ode 
te eres Yue Past meddcong dow ae amo tats be ¢twe oa 
taht ,wie bord? qhme .oteh dud costa wreyete ode mae 
dhe boom oth oma eho qolat’ onde dike sfentines, " anogs 

aitt oF nohitag off ke teous gideteartey « beseveane of a0 
is rimrivg tik 4 tore eitowk del pet nail 
| Uhuenasoen, aetaan ahd engdnnheree engse ene si et 
mipie caddone %@ aponthy ane 20 unodausongs aid Aqanve Oo 





Socohive mi te miei odd oO «pode Linco aoe “alomks 998, 1 


“Nee alt guinolsuou 20% aolessve om eee ow abt es nates 


(Yd beatagte. baw danse? caw aS Liadsoe®,, wolads Osh saao.e 


atahel guodoonkh oiseiate odl . swaogmed gaunt on kyaai Wadass 
Bledisvss to, tuibem a ae howe oaw Fh). +suko ods oyonan ot 
danas qilawdseong WRG MP ‘emoninasd: an yeeqgme! wala 
ad2 siddw ao eumdenen 69 eaqanume okteddon wah of xovorduhe 
yoy «haltiongs eae? ods cobs L564, to geaene ale amt of 
as ttiw tute ot le xegesion om? Yd hedoeoe oe 98 ua we , | 
EY oRG, OH Be ‘aismeo? kad nema Yoko ott Of oun 
HO" adh 10% dle odd oBanOR Ct eRe eu Sootdaes qhde cored 
en ati Org pile YO gokadws’y sel? not ime iam whet et ewkd 
te aodianioses eff 26% bexk? wnw omhe of « sls moonted an 
THO ott Qe wold Reowded fapwmwenge ald dste bh canaries! 
“Aedes edoonepecis etakqmsnos tom DLs yangmnD yaks 














wid Yo wad on ot onal ox | 





NS) 


" mes Lindteor  ovad oF fou bebuonbe (ust Lhodaent 


== 


for the year 1922, ond refused to grant the use of ite nome for 
thet purpose the otuley Poeotball Team, with which the contrects 
with the players were made, unquestionably canned to exiat, and 
with it fe11 the arrangement for any farther manegoment of that 
¢iub by the partnerghip. Ase a consdjyence the pertnership wag 


Gissolvea, not only by the completion of the ousinese for whieh 


it wae formed, but by the exprese will of the partners ac indicated 
by their several actions recounising that their agreement was 
Limited to the management of the Staley Yeotball Clap, and that 
the attitude of the “taley Yanufacturing Company required a new 


‘Sfrangement. lt im clear that none was made between the parties 


; 


te thie suit. If one was aver contemplated 1t was never effected. 
The various steps taken by the parties separately, ac above stated, 
indicated no intention on their part te act eolicetively or as a 
pertnership after the Staley Kanufecturing Cempony withdrew from 
the field and they divided the profits ef the elosed seneon of 1921. 
Undar the recegnised causes of dissolution of partnership 
both by the statute (sec. 31, chs L06a, Cakdll's Ill. Re &.) and 
authorities on the subject we think there can be ne doubt of 
the dissolution of the partnership in or shortly after Jenuary, 
1922. (Story on Partnership, sec. 280; Persons on Partnership, 
S@c. 283; Rowley's Modern Law on Partnership, secs 5723 Bunk of 
Hontreal v. Page, 90 111. 1095 Bohrer vy. Drake, 33 Minn. 403, 


410; Kennedy v» Porter, 109 MN. ¥. 626.) 
The general doctrine as stated im secs 573 by Rowley, 


omé the authorities there referred to, is as fellowe: “If the 
length of life of a partnership mie not been definitely fixed, 
‘the firm exists in general at will and may be diesolved whenever 
‘any One of ite mesbers bona fide so chooses." It was held in 














e) 


to% voinm aot Yo Sar bats Putty oY hou ter ‘bus’ Licvenliacpdvaain 
ctoortnes eat Moki ative ymaotl Lindaodt yore oni seed : 
vadiae af Seadbo yidatiohseoupniy seni wrew wroyelg 
duly Yo Veredtegesi teHdxe yaw Cot debe yN 
aaW qiduywnding bid sostenpoutos a bs” .qkdwdous 
tolis Wi vuomtoud od? 16 wedsetquss oat ve ithe tod \heviews 
hotavtiat vo wibading bad To Likw eesxgxe odd ye Ged \bomteY baw 
eew doomsetgn Vie? Vets gokcinones ate tton fatorsa ‘eho? 
Set baw .auk0 Lhadioo% ‘elo?’ odd to suumegamnn ond o¢ bode 
wea a bortupes yanguod ‘pitbaud ota yotow’ ont Ye dhuthete ‘ 
aetéuig od} weowled phan sew son tals shone ‘en dt *ditemegine 
sdodootie. noven sew oh bagalqno dann cove eow ome Sx SU Kaiw eed 
sietate svede on thedeaeqea askiung add’ ‘yd sede gst’ ato tua G 
& 08 10 Uldvbrosiion fon of sung viedd AO Kotsnbead on saint 
sort wedbitt ky Yaaque’) galrd¥entuanit votes ot tod el | 
£88k to sontse bodes off % atiinte Gis bansvad yore sal BEedY 4 
qidn rol TAY to nottalcbadh YW dodtinn Séaltiqgebein ‘val’ dela WORM 
bate {60 UM EE WAELENAD yaaGX sit £0 Ven) ‘waledana one Qe Ms 
Yi devon oa oe mae “Sxens tated Wy sooleiin ‘de Ho RUbsieon 
qian sed vhetode 40 ak qhteveddday ete te so rdnitoawte @ 
.Gidatendaat Ho amonre (588 Vouw  qbiivondte® mo Yiedt) "VRE 
Ro deve tive al pag at Ty ‘wit “wroven: Vern 




























eQehwod ye ENO Vea it’ atte ha ent keene 688% 
ee 
 LhondY Uleadnetes mood Yon wall qtdorabitend |e Ww WEED Te 18% 
xaventotw beviodats of you dad Mtw da Zeeuwoy wt walling inal | 
Wet bod wow ue oe at? Amott awvidiiite nok to ome 


* 


MOE SAME TOGR ly RRL BE OS MN ‘ai sae Rear A Kachina antl opi 









=< 


-10- 


Blake vy. “weeting et ois, 121 Iki. 6G, that where the purtnerehip 
Wee not for a definite term it might be dissolved by any aguber 

of the firm ot his pleasure by notice to his copartners, and that 
the act of one of them im going away and abandoning the business 
and property of the firm was of itself suffielent notice of his 
Gesire to terminate the copar tner ship relation. The knowledge each 
of the parties here had of the separate appiteations for a franchise 
from the National ‘saeclation to operate a feotbal} club for the 
1922 season in Chicago wax wuffictent moties of the will of the 
Pertmers to terminate their prior relation. They well kmew that 
Whoever ot the franchise would get the lease for the Cuba park 
@nd thet the other would necesvarily be exeluded Crom ite benefits 
without «2 new arrangement between then. That the partnership was 
effectualiy disvolved oonnet be doubted. 

Inasmuch a6 011 the profits from the portnership were 
Gistriputed, except the smal) eum of $7.71, which with the tangible 
Property left was tendercd before the suit was begun, ae aforesanid, 
amd inanwuch as there were no other assets to form the basis of an 
a@counting, we think the bill waa properly dismissed for want of 
equity. 


APPIAG Be 


Wridley, P. J., and Fiten, Jo» Concure 








Ghsin roms aog att omasin Fost 490 LLL LOL oo fede Bmseows 9%.) 
‘ wodeme qs YC hovkonats od Piyde ob mead adindiod # xo%, gor 
| dowid On qeiomezeqee at OF sedsan ys cumante ald fa wit © 
| saorlnud oo gatnctaeda bis Youn gaton mk sess to ana 20 ¢o 
{ si 20 onliom ineiettion Lisass te anw seks odd tO Koeogon 
fe2e agbolwork sai saokia£es gidersas tages odd sage Fi PP ae 
saldonert o 18h amolsnations adanaqen fy To ded rod antinog, » 
aid 18% dake Liadice? « atarsge oF Rekentognas Lam Anh eae 

, ite Ye LLbw ond Je eokion Jaolnkilua pnw operds ms moana 
sok? em Llow yoat stptinton wodeg theds egamkaies of gue 
“Mam odo suid net aeuek oa? doy bhirow pakdomee? edd, gay. ae 
aiones 98h, p00: Nobisann of néavannnneg, Mtge tele nib tal 
ERROR, OH: SARE: sama srogwrd od aomopmersa wee & te 
byes eb sbadduon ad Femme heviewakd viens 
srew ehitlibingiiest ons moxd adhere oid Ake an dommpont 
eidiynnd ond Addu Mobsw ¢LTe?S Se sum Shame ould sqonn, « bodadt 
ahinatwe'le we .eamged eae those odd oroled Soxebaed wow @Rel 404 
te ty head eld met of vterss qadde om enow seeds as sommaem 
“ heempionaemiomamamaathb siete ctcbiicaroaniciubin ose: Sissi 























Riis ; ena Yi eR SR 2 4 ne ween Rats ae fore) | 
; cmH, Pw Meh ese bo Gs MM 8 wees} ‘es 
Aa eae om) en ERIE 


eR RE sail, ere wae wh ah 
MI 9. ND. Se wire t 





TA SMO eA YE ay Re itn) ie sh cs 
Ee ee ee ed ie 
ae ea MP “an oe wai sew ion 


Dae ae ae a ana al Maen AR! Anode way i wns 
~ N 
| 


138 + 31268 


ALICE G. i2VERTHZ, adminictratrix 
ef the estate of Jeanne 5B. Leverenz, 
decessed, APPEAL FPROK 
Appeilant » 
} €ImcuIT couwa?T, 
Ve 
CGoK COUNTY. 
PRASE La ROSA, Fs r 7 A, LC A § 
Appellee. ko / Zi fete VU) “x * 


?) 
4 “— # e4ct UU 


Mi. JUSTICN BAKHES DELIVERED THE OPINION OF THE COURT. 


Jeanne 3. Leverenz, deceased, for whose estate this 
suit was brought under the Injuries Act, wus run inte by 
Gefendant's sutemebile and killec. 

The deceleration contains five counts, charging 
Feapectively, negligence (1) in failure to give « warnings 
(2) im operating the sutomobile with side curtaine on; (3) 
in wilfully and wantonly operating the automobile, and (4 
and 5) im operating it at an umreagonable rate of apeed. 

The court teck the wilful and wanton count from 
the jury. Om the other issues raised there was a verdict 
for defendant. 

Shike appellant has assigned and argued several 
‘Bileged errors, in our view of the case we need consider 
only the alleged error inetrusting the jury at the close 
of plaintiff's evidence to find the defendant not guilty 
of wilful anc wanton negligence. 

The accident took place after dark «hen the streets 
Were lighted from street lamps 2n¢ stores along the street, 
Sbout 7 o'clock p. m., October 2, 1924. It h=ppened on 
| ‘Seat 35th street between “inchester and Sobey streets. 











Dae! ofeallogga. 2% 94s te et ragease 

gee RS ee ates i EPL 

Onda viet sg vs ont a 

: we L Lace bel wale 

_sTayeo nt ee uorEIso as guavtaas, c eam mn 
Tse rt nef eat a i a 

ssoilig ae — ovtacsaot 





 gxttguad® ,ataerso owi't 24 
earlier 8 vig of omptist om: —_ Saree 
(2) ye detsdait oSie atie OF $2 o at ( 

ay See ‘secitontons ‘edd intents einotasw ere 
| , euas na 35 Sr “ 











Laravon dougie hit Beigives vad sunktogqs efit 
sebtanes seathadiaaadveedinegiersspiertae yay 


teexe Bo 





sole odd ta wins ond “gubtowidant ne Mi 
wakes J0m snabeotes elf Bek? ox ponebive etvatiabatg | 
soomegtinen: wodnew ons Iwthiw 4 

stootts adi mode #icb ratte eoaly Hoos emebions edt ad 
sisorse edd gaole asxode bee vant sessse mort beddght os 
we beasqunt ££ .MOE QR xodedo0 cam 0g Motote F uo 
vesoorts Yodo" Aas resusdont? mowtod goorsa 082 ts 






=Ze 


The south side of the block was completely ouilt up with 
business stores. The north side contained some stores and 
eettages and some yacant lote. The little girl's parents 
lived in or over ome of the stores om the south side of the 
bleok, somewhere near ite middle. She left her tome and 
eent out om the street a very skort time before the secident, 
apperently te get some eundy with a penny her father had 
given her, and was struck by defendant's sutemebile while 

he wee driving the same weat on the north (er weet vound) 
street cer track. Ho witness, net even defomdent, noticed 
her ¢rossing the street, and the testimony dees not definitely 
@isclose from which side she come. It tended to show, we 
Ghink, that she came from the seuth side. 

Plaintiff's evigence vas te the effeet that defendant 
“was driving st the rate of 26 miles an hour} that the street 
Wae clear from curb to curb st the particular point where the 
‘@ecident happened, ond that there wes no other pascing vehicle 
OF car on the street te ebecure hie vision of anyone leering 
the sidewalk from sither side nexr the plixse of the eccident; 
thet plaintiff wes driving in a ear with closed curtsins; 
oe Be put on his brakes at the moment of the impact and 
the ear ran some 56 feet before it stepped. 

We ehall net discuss whether such « state of facts 
panes tates wanton end wilful negligence ae defined in the 
feliowing eases referred to im the briefa. (People vy. Toohey, 
SI9 T1l. 113; Jeneory ve Cs & Ie Tre Coc, 306 id. 3923 
Eeople v. Falkovitch, 280 id. 321s People v. Cambaris, 

(297 id. 455; People vy. Schwartz, 295 id. 218; Jones v. 
--Eeomer, 235 Ill. App. 362; “und y. Gsborme, 200 111. App- 
. 47.) But without repeating what was said in them we 

ae 








Atiw qu sited yLaselquos sew Avoid ed? Yo shle daues 4 
fas aetede amen sewkednen ebie dtxem ed? seotage cosuls 
nonoreg a*isks ef922i oil adel ¢uscay cea boa sonadé 
end 29 ebte Aswon add ao Hot6de ott WSS Love x6 i he 
ue emed ved Pek adh eistte dt <o0n vredeenne «io 
ciushhops edd oxoReG auld Suede Yusy < deotts ea mo tuo 
ad woddet mal yuwg 2 d2ty Lome ones soy’ OF Uhl . 
ei isw olidametion a 'gashastob WW Mores aaw hee ot ae 
(oasied “teew xo) sien ast wo duew ame od? gatvEth' enw 


_beotton stash te Oye $08, seeaaaty, cae 

















sant an 2 AER at ven | 

watvsel sqeque te meinty sha. exh ge Detain 

itwebioos od Ie sonig ed? tess ebbe a reste ee Laem: 
secksbuun beubte diby 40k 5 i eae 





=_— 


ets 


« Seine Sah 
tes Songs ext Yo dasa add So amload ak me da aM 4 
abnaqetn ed oneied Rca 3 OB omen anon ane 1 


hiceed Ba ee kt _ 
agsat Ye state « dows sedges vovould tom Lada oF 


ee, ve Sat bea os Pe ae 
edt mi bentied sa conegityen Ishiie bus gosaaw cates tte 
TROLS. & Theta sg 
eyndeet «v efases} satoted oat at ot boxxetex SEED 
ares ead Ey Sree Meth eae cat 






“eae \ ET 00S guredeo ov smi “1808 qu ofST a 
Aus #eta wink? muted’ fetta Sa 


ov weds mt hee env inde gabsenges dwosiiw taf 


-3- 


think they fully justify holding that it was a question of 
fact for the jury to determine whether the speed ct which 
plaintiff wae driving, being, a2 it wag, at a rate which 
the statute makes prima facie negligence, together with the 
éetailed circumstanees, constituted wanten and wilful neglii- 
gence as defined in those cases. 

The decisions relied on by appellee involve miinly 
eoneideration of the «eight ef the evidenes ae te wanton 
end wilful negligence, a utter, as before etated, not open 
for consideration of the court im civing esid instruction. 

‘Ags the judqment must be revergec fer such errer and 
the cause remandec for « mew trial it ig improper for ua te 
@iscuss ct this time the weight of the evidence im the exse, 
and ummeceszary to consider alleged errer in giving ether 
“imstructions complained of. : 

REYSRGRE AWD REMANDED 


Gridley, *. Js, and Piteh, J., concurs 








~ 


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deteigues gun’. sey ® ahha awen ma 


10 nelzapsy a env 32 tats paddle X2bteot yLten vet? 
dole te booge oats sediede evexmcere 4 = ae mf 


5 eri ee J 


ae, cdetell * dal ane. $2 aa. ete TR ‘ 





Pee 







Tinton eviotnt setiogan ul pn habkos oom 


I a wer 






seca ra Mis 





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2 Wy supe eat Je aka! wre oe me ng ve 
SER £2 Desa Faas i saint: aon 1 
a ee cpae ee 


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t23 Bi Pa Tos Se eee Eee ee Bae undaae te; tom 
. Sas 


te S eae 


Oe RE SP BS aE. Reais votes page 








180 + 51230 


JOHN SRGTVOCD, 


\ 
Appellee, APPEAL PROM SUPERIOR COURT, 
™ } COOK COUNTY. 
c> y am | A PA at 
ROSE BODINGTON, ! DPAATI.A. 644 
Appellant. x 


\ 


MA. JUSTICH BARNES DELIVERED THE OPINION OF THE COURT. 


This is an appeal from a deeree in chancery. The bill 
was filed by John ‘eetwood and his son Tracy, but as the decree 
founc thet Tracy was not entitled te relief, we shall refer to 
John ‘eastwood oe the complainant, and to the bill emly eo far 
as it involves him and the defendant. 

| Ag amended, the bill and the preof im support thereof 
are predicated om the cleim that ecomplninant ond defendant entered 
inte on oral agreement for the purchase of certain real estate, 
that she was to, and did sadvance $2700 for him om the initial 
Payment, for which he agsigned te her «s collateral for the 
Sdvancement ten shares of stock of approximately that volue; 
that she took the title in her name and holds it in truat for 
them} that she has repudiated the agreement «and claime that he — 
has no interest in the real estate ami that the shares of stock 
were given to her as a present, and refuses to account for the 
dividends thereon, er to return the stoke 

Phe prayer of the bill is that she be ordered to return 
tne steck or pay the fair market value thereof, alleged to be 

on Apria 20, 1924, and asks thet she be decrend to pay 


| ," ia due from her. 
The answer denied that there wos amy such agreement 












igang 
eTAUOS MOIRAAGS BONE LAWNGA.. ie Pees art pene, veal OU a 
|. RRIGD BOOo » ee Me ae ey 4 
“0 bd hel b he | eee geoROanE 
* nattoagh 


. ROOST BO, Worms 8 REG AANA ORTON 


sae Aceh 


Liked et | pun 8 ‘a enns ee a Y mo isoqas sp ‘st abst 
voxnsh ate se 286 wpa toa aad has boowtee! ‘mot we ‘bedtt 
ad uote basi ow stakion Be bons hone som naw west tus auld FE 
et ow mo Lad wae od bne «enamiatgnee ed? ae beontee” m 
: ‘stunhae tb exe ban mid a0¥! wud #3 
| rootess ) seoqque nt ‘door oats nea ihe id ,dooaone Et 
boreday faadmetel hte ‘susakotgass asta tole <= prvicreee =” 
states Loot aladves Ye seato ug one 0? snoaos'ty9 Lato me ° 
fokseak od me mei sot COTES oomavbs b&b baa 4Od new ote 4 
ont 293 Laxedatios a» ref of Somgduns oat Mohit wo? 00 
 btwder sous YLotominorags ‘to ioode to eexede wed Smemoons 
wo? Qauxd at 4 @hLod dae oman cod mk o£8ht oie xoot ode 4 
get Sanat mashoto bes SHemeotye osd bedatbages wok rte Soutd 
Hoote te amsorle add tas? Mme odedne Lows oad ab souvent on 
ora sot Smarr oa os stouhox dae asic | 8 aa xd co novia ‘ 
eooda oms suuidex of 30 anooneds- abate 


Masset 0% sovedae od ote todd of Lhkd ade . rowne ont 








wa 09 bested od ade sats ion heaaid “ase 108 ea #0 ot 4 
an ti + 0H wort oun ett LOT 
tememnongs tome a ane erent souls bonnes xowene oat | ie 


ran y Ue 


-2- 


and that complainant contributed any sum “hitever toward the 
purchase of the property, and alleges that the same wae pur~ 
chesed by her with her own money, and the deed taken in her 
name. it makes mo reference to the stock. 

Before filing her answer defendent filed « demurrer 
to the bill, and while it was pending beth parties come inte 
court by their respective counse] and entered into a stipulation 
te the effect that if complainant could establioh her claim the 
property should be sold, and cach should reeeive from the pro- 
¢eeds of the sole an aucunt proportionate to what he had paid 
upon the property, o¢ should appear "from an agreament subse- 
quently to be made or determined by the findings of the court.* 

Thereafter the parties come bafere the court and 
Fepresented that they were willing to go shend upon the 
Stipulation, and agreed in open court that pleadings should be 
Tiled later to conform to the findings of the court upen the 
evidence, 

Upon such understending the court proceeded to hear 
@vidence and efter the same was closed the plendings sferesaid 
Were filed. thereupon the court enter«sd the decree appealed 
from, finding, among other things, that the pleadings had been 
filed in pursusnce of the stipulation. “hile thie is not 
Strictly correct, it being an oral agreement, it ie important 
Only os confirming complainant's contention ef such an under- 






| Counsel for appellant ¢well at length on the contention 

« & different underatonding. “hile the procedure was irregular 
n 

confusing, we think the case must be considered upon the 


® raised by the pleadings and the evidence material thereto, 








oy 


aid buawet sevedadw mus YRe bedudxtoee tnaminlgmog todd 
“Tig sow mon odd Sok? Gepelte baa ,yoreqen ods % onde 

a9 a mosey bos om dus «yemom mwo wed aetw ned Ye be 
hts odd of nonore ton dm eosam 41 ot 

- womniniand a belt deoha'te tewams tod eat LS BBO yy 
agnk eames ‘pebdaee diod ytihmeq wow dk ‘etide bows etihd oats 
molialngi¢a  otnk houssao ae Loaweo owhicegany theme ed ts 
ea? wisio sad delidates bLeoe PRN LALgAOo th deds sontto. i 
ng ond mov’ ovieoot SLueds Howe or) bios “ed: nboudn vies 
‘Bhog baa. al deat ‘oe ‘sbemohexeqon smcen ‘ta. Bs ay wis Ye af 
wondins Sienoonye es mars" ange stone oe | wegen porn 

*, ¢aeo ots ‘te puri bert? ‘ada ve deakmsos oe ‘1 ‘ohee od 02 cits 


de ha bt dis . 





fem Saves ods oxwiod wanes eoksr0q ‘ond 
, Nhat Why - Bove 

‘taba boain oy 09 satin xow vedi dass botueno 

ake 3 ~ Noth tees i a f 

“ed biwedde wgathootg gual ‘su05 rego a aoerye hae 


Rois iy i P. ne 


eats noe ad ad bg pala vas oe mxo'iase ‘be 
BN ‘Ake Ratio a ed wi 

amin Mah siisoo ods subseaverobas adem nog 9” 
bieworete agatoooty ony ‘hone Lo sinw omen end % tarte ae oom 
bekasqge oeiend ot? boradao Pxweo odd oqusxe: 
goed bast Wpathosty odd tend cwymedd todd ymome a0 ‘atin 5 
‘yon ob Sno al lb dal dt 9 bl mt 















. ane beni bowedtanen od ‘om eane ond ante yo vamtautnoe 
wit todd gobiont woo att 
sei ‘tnkvetem ‘somnbiee pn ban aguthesty edd we Seater eow 


<3- 


The decree finds that John Yestwoed and defendant 
entered into an agreement to purchase gs.id réol estate, that 
he gave her said stock as security for mking the initial 
payment on exnid property, that she has reseinded the contract 
and converted said stock to her own use, thet the morket value 
thereof at that time was $26563 that she ia in posseasion 
of the same and shouls account therefor. 

The decree ordere defendant te pay cmplaiuent said 
sum within twenty days with interest from spril 20, 1924, and 
costs of the suit, and in default thereof an execution isoue 
therefor and be « lien upon such stock ani the resol estate of 
éefendant. 

The main fact in controversy was whether there was 
eny such agreement. The complainant John ‘estweed, sogether 
with his son Tracy, and the latter's wife, who claimed te be 
present ot the time of the conversation about the purchase, 
testified there was, and defendant and her dsughter, whe claimed 
te be present and that the others were not present, denisd there 
Was any such egreement, but testified that the etock wae given 
te her in accordance with hia previous expressed intention. 

Ye deem it unneceasary to repest the conflicting 
testimony on the subject. ‘“hether there wos such on agreement 
OF such « gift depended entirely upon the chanecller's view of 
the Credibility of the witnesses. 4s he had a better opportunity 
than we for determining their credibility we find ne good r eagon 
for Questioning the correctness of his conclusion thet there 
wae such on agreement, and that the stock was assigned to her 
to be held as collateral, and not as « gift. 

‘ Complainant did not seek the enforcement of the 


- 





Sa | | 


tmanwehed dum hegwtan’ lol sodd, woah? oerpeb edt 
 hadt ,viotaw deat bhne sovsoing Of domseetgs Be, otat. yao 
Saksiat ont pabdem 162 wiseoen ae doosa blow gee epeg 
 beredaee extt bobakonan eat, gle Saad a | Rise.mm dapm 
onler ¢ebiom off Jodi ewer neo tod at Meota: blow bodsovmes 
 ekemwonem: wk ab gale doe POLIS wow mda dad: oa) Yeas 
os eitoven a, demenee: da ee Dem. ame, oni 

eka, PoBia lye Yee. a8 Jeshaetes guabee poxaph POE 0: wide 
dns oPSCL OS Ling most seoumdat at iw aypd waows, Aigdiw, 
| fitend mokiueRs wo Rowweds diuaked wh baw Shwe oho to wt 
io ohodae Loox add tao A9Oie sown souN MARL m od, hw nOReR 
enw OLOKy “Tedgede wom YoOxeroRtnos wh took wham, amt 
‘sentdenad shogwtes stot goonlelqueo asf .. steno o1ge stows: 
cet Oo Dothete ogy p@tiw x tnasded add bem, a yoant op nis 
salon: suls dap ch, deeemmamrenve add Ro mms ‘eds to, ane 











oredd heknod \tueeerg dom sree wtbatde! sith Bae aw’ duone | ' 
recs ane Reade weld Paals ‘bokthded tye thomeTgs ow " 
OTE beowecche wmetvone eld Mate vonsixeoon me itor 
geek toa eben eds Reoget av yiteaaoe one thvmeen: ana, vi 
rr ee er ee es ae tos kdue ene ty NE 
he wet erp Loam whe megh Chor keme Sebabged: rte: wi 











vettemanogao aetded 2 ho ee wd s SOon ams Rw. ‘wetet to et Rae seas 


aaah hows oat Bek wie leona 0 honey ee | woken 





ade 


alleged trust. In fact, the proof shows that he was in no 
position to do so. He never in fact peid ony money of his own 
for the property. Sut if defendant made on agreement with him 
of the charoeter stated umd received the assignment of his stoek 
im pursuance thereof, ond refused, as fouma in the decree, te 
Garry out said agreement, then appeliee was entitled on demand 
made im opril, 1924, Glther to have the stock reissued to him, 
OF, On her refusal to reassign it, to reeoive ite mrket value 
ae of that date. 

tt is omly upon that theory thot the decree, under the 
Gllegations anc proof, could rest. Sut it dece not properly 
Geonform to that theory, umd accordingly it must be revereed with 
directions for proper medificction. 

The proof cees net show = conversion of the stock. It 
#0111 etends in her name and im her posseasion sa vhen delivercd 
te her. The bill seke for ite return or ite market value. The 
decree should provide for its reaevignment ond éelivery, or on 
failure thereof within » specific time, thet she pay the value 
Of the stock ae “greed upon, with interest at five see cent from 
‘PFil 20, 1924, the date of demand therefor, together with the 
amount of Gividents received thereon. The execution, of the amount 
decreed would be o lien on any real estate defendant might then 
hora but it should not be mide by decree a specific lien on the 
Feal estate in question. 
‘ Agoordingly the decree will be reversed/with directions 
tor ite modifiestion as herein outlined, ench party to pay his 
’ a. REVERSRD/ Otte DIRRCETOMs FOR 
MODIFICATION OF TH. DECUEE, 
Yo #s Jey and Fitoh, J», conoure 








a Kh aaw on Sis) avedte Yoong oat fydat at fewsd bog 
neo etd ‘to YSnom Yas bieq toek et tover wh Joe ob ed woke 
ais diiv Jmomeongc ae oham dnabuetes ta bibe’ eesiiadese wall 

doote ahd to teammjicen odd bbvosoy bas bodwea teseotad wy 
et qohtosb od mE Sues? ve \doum tit dwh PLodtedd Somes 
tans me WLETae vew selivgys aids yimamewtye “bias oad 4 
sakd Of bewnstor Moose aad evad a7 xedede VbheT (LRA £1" 
euLire Seatinai: @tt evteoo: ef (th ayiaaest of Laewter a8 we 

Nea,  yetton dean 

ahs: sehen .seamob odd Seale “xootd seals ogee yhmorwhodT Ov Oo 
-‘¢kseqena fom ened Ph Su@.daex Siueo ytoong dae emodtag 
Holy bowzeven od demm JL ULymibxooen bre .yroods Sestd emia 
| sR@ERooL Thbem segéeg 26% asks 

21 «deeds ocd te motegerneo 2 weda dom geod teomqoeds oy jy 
howviled saw gn meteoncog cod mt hae aman vedot-abaate | 
steley dozen gtk ve sivdes 292 xo atee Shed ant 9a 

ng ‘TO gereyhLod saa dmoameioueet ath aot ebiverg. ALwoste. 9 
autor alt Rog ode todd gomtd oltteogs « aidstw teoredt oss 
odd sissy NoulteRod ezeloteds beamed Ye eap edd sAROL 90K. J 
jagoun odd Yo mpisvopae ait moored? bevivoes, ehmebiykh Xo ts 
anit oayte tiynge ted otatas Lees yar am Gell am oo bhwow, bos 
add 80 PLL OTLORGE 6 vorsed WA pbem od soe bivoda ok fae. 
Liens eth tah qBrestrngi 











ce A MM ae a ih 
wt @ i i aa, @ inne 1 Hg — 


ead yen SH? WO WElTaomeraom 
SF ie a) eo ase Rania <u! deri aly EC abies nein 


q 
H 
/ 


eM ve on settee ane, Dome, sloted 


BH Baas 








A] 
Val 


162 - 31293 


‘FEDRRAL TRUCK COMPANY OF CHICAGO, 
(a corporation)» 


Appellant, APPRAL PROM MUNI ITPAL 
Ve GOUT OF CHICAGO. 
JOHM J. KIRBY, 3 
Appelice. » ee A a 
oy A A a | pe , £hh. OB 
ed KE Lelie UT 


Mi. JUOTICE BARNES DULIVERED THE OPINION OF THE COUNT, 


| Plaintiff begam this suit in replevin to obtain 
“possession of a Bock autemeblie truck upon which it held 

‘@ mortgage. Defendent Kirby, the mortgagor, having refused 
te turn over the property, leave was given to proceed in 
‘rover. The ease was heard without a jury, and the court 
“found defendant not guilty. The question prevented is 
“whether the finding and jucgmont are not contrary to the 
“evidence. 
‘ The mortgage wes given for $1600 to sacure part 
of the purchas# price of « Federal truck wold by plaintirr 
defendant.  tefendant’s affidavit of merits does not 







the mortgage, the detention or the value of the tack 
Kk, alleged to be $1000, but claims he has paid the 
indebtedness in full. The only isaue of fuct, 


The uncontroverted facts are aw folloea: Plaine 
ft & anleeman selivited defendant Kirby to buy a Federal 
ek ond drafted a memorandum of an order May 2, 1924, 





bag gee CR SNe i a eee? ee 
hice PTI a RE I? gaa BREESE om: 


ag ; Me Danae wo ae Hs 

eAetocew wore ‘eas se “* eee MeN car aire a tieetedea” * 
a inate GREENE BE ORBAN TR” oa” supa Be 
; BEE MA GOS 9 Ts: IER AS Gye EG ka — 


«TaUCD MRT AO MOTEISO ORT COE shia aia 
a pet all 











# 





remot ant me bosnonsn sist oa, ae atm fae 
‘ oo, Balt. OE erinee fon, oe, dromponl, bine ye 


i a git | iy SA: 








- sgatnte, en adie pig ip spe ahone 
ee nab adhiom 26 shwebhihe atinshaa kal, | ant aa 











: wre - teed orna, yst@, as bach at enonbesdocnt opep 
nad mo amb mbshe yes Gar ord eeten aa 4930'bo 

aXe TAME M, } isitinaih 

yishte Rabin LL sh Re pn Tg ee dts ia tuea: Caadilicsoaaas 
7 ! momen pt 

ASRS af eX anon, 9 0 su ne mc 

ae at to ey ‘aga, am of 





oke 


on ome of plaintiff's blank forms, containing among other 
Conditions that it dw walid only when accepted and signed by a 
“duly suthorized officer of the distributer,” and “shall not 
be binding upon the distributer until it is aevepted in writing 
by the general mnager or general sales manager." 

This order was never nccepted mor signed by cither 
party. Five days later, May 7, after « vonference by the 
agent and defendant with plaintiff's wmager, another order 
Containing the same conditions and atating thet “there is 
no understanding, agreement or representations expressed or 
implied, not specified herein, relative to the goode herein 
Ordered,” wae duly accepted by the manager and cigned in 
plaintiff's name by him ao ite monoger and by dufendant as 
purchsser. 

The unaligned order designate: the price of the truck 
Ot $5574 and allowed "10% fleet owners’ divcount, $537." No 
euch discount was contained im the signed order, nor tit Chord sees 
The unsigned order was apparently incomplete for 4¢ specified 
Ro terms of payment. The signed ordur previded that plaintirr 
Would take defendont's Mack truck for sale, if poasible, $1000 
of the selling price to be applied on the purchase of the Pederal 
truck, and a separate written agreement wes drawn up and signed 
y the perties to carry out that arrangement, whereby defendant 
was to turn over his Mack truck te be sold by plaintiff on 
- eertein terms, ond was to give his note for the eadd $1066, and 





4 _— mortgage on the Muck truck te secure the anme, to be 
when the Mack truck was wold om the terma specified, 





cette geome sidibuian 1 06Ht6S daaded a'ynbsmbely te ome | 
& Uf hengle Rew dedqeve« mode whee bhiew ad oh set ops Lae 
gem Lfngda" beta *yuoguebtdede, oat » xHOET26, poaizeds 


ete stack. ae 







aM 


*} 
os 
oc 


gatshue.mt bedqoue ab ch Lkdnw xodgetades odd GOge' sam 
nt "sragrome ooisn Levenng 10 ropenem Coney ea 
‘ote ud Somgie eos besqeonn ne WRE sow TebRo aha sy ih 
ods WE sbavteriion » corte «f Yall (6NEL oud ontt ws 
tebe gaksaar regent atiisuinte dt ke tmabsue isd ome ae 
ot exotd” Qeald gakiada deem atteldibaon omee pad gatatate 
* bnawetaxe ‘neto Ld ndmacouges 1) cHpaseTge. ‘pak basdetobes 
bowen boas ons’ od svideter aléiod sotshooe et sald 
CY piattuhe” nine opemaee OHS ea besgoboa bub ane *?baaen 
aa “Pavia tod il ‘bes hevannal ‘ate! un _ be ne 
i a Joa. Bae game aa UG: » xbanlle: 
domes wit 26 BERG’ old Sa¥Ray¥ben “bite” beeep tee Pe 
om Stee ania texeiioe ‘Your? ROL* Wiwelte baa ateee 
eboalvods we “on etobxe Hemgle ont at boniadneo maw “smabb i 
hotthseqa 9k tot sto rguoont — ? saw wise beaut 
watdmkalg Jad? weblvery tobs6 ‘bony anayaq % 3 
oonne” aaeibieg ti Yetbe! whY tena aba i ab (a2 be 
Lovobett aati Ye onlin oid’ nb hapaonno w iad wit ree’ ute 
inonae'toh dovede' tnembynaten dons et a 
te LIbwhleG ta Aton ae ot dows Zonet’ fs Oe 
han (Q00L9 bhve eld tor doen ated ovty Of saw Das « en 
od OY jeanw Ody wikwoe Of aoWtd aplit” Vid ad” Sbagtion Loaga 
bok ttouge auted oxy hk bLod waw mMouree” Mohit watt iaate hig te 
atom oid yug eee ne “we | 
viowat Laxobst old Yo Gokxg owadotig oft 20 tag we ‘deal 


, Ht . a a 

























The note and mortgage were exocuted. Credit we aise given for 

a Union truck for $1250, whieh defendent turned over to plain- 

tiff, and for the balanee of the purchase price defendant gave 

other notes and 2 chattel mortgage on the Federal truck te 

seeurc the game. Being unable to sell the Mack truek plaintiff 

petursed it to cefendent. The final papers were executed June 

6, 1924, anc the Federal truck wow delivered with an invoice 

@esignating the price therein ne $5169, and erediting defendant 

With the $1250 and the amount of «dd notes and mortgages. 

; Tt wae admitt+d that he padd towards the purchases privge 

of $6169 the sum of $4105.50 (including the allowance of $12 

for the Union truck), thus leaving a balanee of $1063.80, as 

Claimed vy Plaintiff. It was also admitted thet the emly differeee 

between them wos whether or not defendont should be allowed the ao- 

@alled “fleet owners' discount" of $527 acgording to the uneafgned order» 
It seeme too clear for argument that inasmuch ae the we 

Gigned order waa never accepted or signed by plaintiff or ite general 

Manager or general sales mnager, sa eseential to ite velidity by ite 

Very terms, ond both parties wubsequently signed « maw order which 

Made defendont no such allowance, and according to which veth 










Parties eubsequently seted, the unaigned erder had ne vwolidity 
Ghd defendant wy his conduct 4s estopped from asserting that it 

a. The entry subsequently inte a signed contract with 
atrecent terme ds absolutely inconsistent with defundont's 

« “hatever the previous megotiations ond oonversetions it 

‘ timentary that they merged inte the written, signed contract. 
ne , Dertiee contemplate, os they did here, reducing their 

t to writing the contract ie not complete wntil 4% is 

» 195 Tli. 423, 428.) 














i 

«0% movty ova naw hex? spetuenan 9 geen egegtren ban, of0n ¢ 
~ainig 98 pave pamend dmabmn ted olen 9288, id Fry gry re 
20% Lt) ed 





wong, daaoms ah oot, marly 384 ott mM, eT Teh, A A Re 
“sar Lasobes mts mm sgt Lo fae 0 ha sett 
Yrtenbale downs pupae ald ioe a8 obdlan paket seme i ~~ 
ostelle inhsoans Tey BRMGIG, Sant oat stmabgored of, am ais’ 
ookaent, ma dghe benwvihed gam downs LaxodeX os ba, 
sucha ton yakstdore, dae, .CDLEG wo ade sng sokwe. aa 2 hie 
aogendion ban andos bine 10, sem —o eset, tf f 
aokrg, onmdenin, ods nbmaned bheg od sale, begs hmin, 1s 
O8RLS YW epmaverin, ads yatstont) bani ae mm nea 
an sblbegnOLd Ye penning p padvand nuts 9 (homey MARAE p 
aonexetish yirie ole tate bod dimbe eke 8 Rad ‘Uh 
«og off Sewella od biveds tachueTod Jon xe codieste wow: ow moe 
<robto hampton ode of ambitoo? au aeenwe = - 
wis oae oo sinecemnind, satin at inate o0t pee AE yy « 
faronem att, 20, Tibserely os Ponamybe 7e kasqonns Teves : 
sok yd Wthdgow ath at Lahaeonns 20, An aioe Lovonny 1% % 





























ghebALev on Soak -sqoTe Gcmghem AEF g ho kee YY 

ak dekt ade tamen aoe? boaesa, wk Soucoaoe Sa em 

Ln wiht deantson, borate a elms oh 

atinahwa tod 4 dv dansadunmomh hogKleews,. 

bh emp ddwaurrnos bn, ean bsabtogen, swekyerg, nt 
storeenos peomki abil es oimk begiem, Wer i ap 

ak ah Laie oben > tent tects ot ae 03, gem 

(Od a Gh Ath BOL a ghee £99 #2 lies 











The court's findinge were unquestionably contrary to 
the entire evidence. 

Defendant ¢id not deny in his pleadings cither the 
‘detention of the property or ite value, The chattel] mortgage 
provided for possession by plaintiff upon default of payment. 
The evidence shews, so far as the mortgage om the Mock truck 
to concerned, that defengont is im defeult ef payment, and on 
his demand therefor plaintiff was entitled te its pesseacion. 
The court, therefore, should have made « finding and entered 

a ®@ judgment in trover for what was not paid om the mortgage or 
the note it wae givom to secures 

MS The valance of the indebtedness for the Federal trudk 
wus eoneeded to be $1063.50 if defendant wae not allowed the 
ata discount of $557 080+ Gut this suit ia net te recover the 
balance of such indebtedness but simply the value ef the eon- 
verted property eo far ae plaintiff hoe any interest in it. 
Taat interest was only to the extent of $350, defendant having 
pete $650 on said mortgege, and been credited therewith on the 
note it was given te secure. Consequently the court's finding 
ia judgment ahould asve been for plaintiff im the sumeunt of 
3 ), with interest at §¢ from Mevember 11, 1924, auounting te 
41 SO. There will be a reversal of the judgment and entry 
1 dudguent here for the eum of $391.50 with findings of fact. 


phage eren PIMCIBGS OF FACT 
AND JUDGMTNT HERE POR $391.50. 










Yo Pe Joy and Pitch, J+, concur. 








od YIewinos Lideratinewpan wow mane atomwow at 
| rr wnhtio symtbuatay wks ah yo dor Naty ganna K 
gent res, Lod baste ot ee ee 
steed to siwetoh anqu hintale: ee Mokananwog OR bear 
nae Sout odd mo spAQe som Hid sa wed Ow (ewode oomObRee 
te bee _imeneg “te tkuotoe mt ef canbie bob: bostd) + batexoom 
ee at | eet of dolthsne sew Msntelg totomete? nas 
es matey. foegon OkOREX & oben owed diwede erotereas yuo 
ee ee anon: tom gow deste <0 sovOR? mR a 30 yf 
) ae : aetsaee OF awvig naw at sto 
wos? Sevwhot att. NOt unambasdenms odd, we oomaiad ash one 
eh pre Sin ton. mew saab td AE OBehOOLG od 08: hobooaes 
oat covages 22. tom os vn abele gett... ONTEER Ye tmwowe 
nttee gale Re oaher ond Vigats ced eemmberdones some 2a) oom 
_s0h Gb dooreteh gm sok DiLimtolg.en aX en eesogerg be: 
patkead daaheo toy .OBCh ke deedan ols oF ie naw soonedmd 
ald no deiwereds aodkdexo 1a0d dan ,ogapeuoe biae wo GEHP 








» RABE wee al Chane seTNeE 2 meThS cuties 


te Smate ot Ah Mibindele t2) aoad ovat Dkworts smeemgom, 
OF nadimrcme 4280L it codoowgh gost Re tu fuountak atte 9 


iD Aue Mokemmg bet, sete 20 Leateven 9 ed Like orem 00 
sfont To sgaknads, dt ke sain Yo mun one vot ovo Smenggh 









7 7 
itt ete ih in et Ne aaa WME OTE, OCR 
y SH TE 
CE er ee 
Wi Lis tine LA SN RE Fak i RRA BERG, ape AES balay nanan hi 


Padma: te, Ri EMR, 0 aml Se a 


PINGINGS OF PACT. 










Ye find that the property in question was 
mortgaged to plaintiff to secure « note for $1000, 
on which the sum of $650 hoa been paid, that the 

. of 2350 and interest to date, amounting in 

@1l to $591.50, remains unpaid, that said mortgage 

de due ond defendant ie in default in the payment of 
gum secured thereby and that he has converted 
property so mortgaged, ond thet ite value exceeds 
: sum 80 remaining unpaid. 







nie 


at wa sae We 




















ao wae Bie 





GN 2 AY ae 









ee 3 ii 
a 





177 - 31309 


KAROLINE BYYALEC, 
Appellee, 


APPRAL FROM SUPERIOR Gout, 
vs GOoK coUNTY. 
en weeAEeG, 2 4 Ae hee eee ‘al 
Appellant. ) ett lA. 64 
MA. JUSTICK BARNES DULIVEARD TRE OPIBION OF THE couR?. 


This is an appenl from an order holding appellant in 

Contempt of court tor his wilful failure to pay hie former wife 
$986 in compliance with the deoree entered in her diverce suit 
ageinst him. rom the praeeipe recort before us, 16 appears, 
Se recited in the decree of diveres, that the parties entered 
into an agreenent to adjust proporty righte and alimony whereby 
the wife wae to convey to the husband all her right, title and 
interest in and to certain real estate, end waive ond release all 
Fight of alimony, and he was to pay her $900. The decree ordered 
the conveyance, and that he pay such sum in satisfaction of ali 
Slimony, and also $250 for and on account of her solicitor's fees 
ane expenses in the onae. 
The order was entered on the rule to shew eause and 
defendant's oral testimony in answer, and finds that at the time 
b rule was entered said eum of money waa due under the deerce 
UMpaid, and that defendant hod ample fineneial means to pay 

‘sane, and held him in eontempt as eferesaid, and ordered that 









wont oy ; 
aT RIGO MOLLE BAY TAA , " ian mits 
oC TROOO BOWS a) de 
FORO A. 1 iN BS bi ; ws 


Paty ie 


ooo sare wy BORING WaT CARVE wae serra 


aN 


* Ph aia ag 
at Jnnliogag paipied : whe Ha moet “kaagg 8 a ot , ake pe 
; YON i 


otiw samxe? whit we of ormhbe'? iythiw aha 192 suse te omnt 
twa eorerth xust at boxed eoxood oils abn comstiques ate 
ce Ky 


aN 


aStHaQy® ak hd euoled brows oqheantg old ont ld dumt 


eee eter oe” a 


hortesae eg beg wat tat eonovih we eanpeb ode at bethons 
ytesede yromkl« ome odsig ds qi r0q07g textbe ot “imengorge 8 ‘ 
use ofeid qtoydu vod thm tacdused ode ad yoraes oe enw ante 

iia waciies fee ovkaw gas etnies not abatses oo bee nh ton 
herelie vowel aff 20005 od We ot nsw wf oaall omombte Yo 2 
iis to moltostsiice mi man sows Yas ot saald hae ad 
aoe a'toctetion tal to smugoos | 0 bas <0 case vee Ll oon 
+ G680 walt mt apamegxe 

buses oasino wade ef olive of nO boxesae aaw zobt0 edt A 
ants ost3 to Sauhd abakt baa etowania wit enoutsacd Lane a*anaba 
goxoen wilt soho ouh uae eonom te sue bine poxneie saw ober 
Yq oF meinem fatonsntt oo Legunes bast tuabae to add bite «Shan 
fais bewohie bas phiaeeiela os Jagan 3909 mh mabe phot bas oma 
wie me peddhumon bas Wekxedn oat ys yorew estt moway | 

we honest agieg wal anode atdnom xte poooxe o¢ som Lat 

o temparyeg 


o2- 


The clerk certified te the recerd aa per praceipe 
“exsepting mittimus which has net been returned and does not 
appeer of record in file.” ‘Appellant's counsel urges therefrom 
that no mittimus wee issued and that his client was taken into 
eustody om the order without process. The assumption hae ne 
basis in the record, and if it had, 4t has no benring on the 
sufficiency of the order appealed fram or any question of error 
in the record. If appellant was taken imto ouvtedy and without 
proper process he may have waived prevegs, for aught the record 
@iscloses; and if he did not waive it, hie remedy is net by 
appeal from the order, the Validity of which would mot be affected 
by an improper method of executing it. 

Appellent’s only other polmt is that the payment of the 
money was conditional on the wife's exeoution of the vonveyance, 
and that it does not appear in the record thet she executed erie 
@eliverec it. Appellant has not seun fit to preserve either the 
Sffidavit on which the writ was dveued, or the oral teatimony in 
SMswer thereto. Yresumably they weuld shew compliemes with the 
decree on appellee's part and would suppert the exprese finding 
im the order that the sum deereed to be paid was due at the time 
of the entry of the rules ‘uch finding presupposes eomplianes 
with the order on she part of appellee, It cannot be said that | 
‘Mere 46 not 2 sufficient finding of facta upon which to base the 
order, Finding no error in the rocord we affirm the order. 

APPIRMED. 
Oriaey, Pe Jey and Fiteh, J., concur. 








saheeons “OG Ra Stoney off of Hokiidxwo Arelo bra 
jom veeh bas bowtuten moved tom wat Solaw noms kee ‘pak Sqn. 
mor ronan? semen foumeo w' tani teggs *sonh ab hemiyadatal to cage 
eant nodes eee amohte wbst Sosts pata bowaed ee ‘mat on oa 
on earl mosiqawane, ‘ett .asonetg tuesdi te tab2e ons 0 Wein 
vata to gatined om wan ah aha OL BE nasi 5okdeuwe ont ak abe 
te x%e Ye nakseonp ete me me holavaqe tebxe, ast 30.N nate 
Swosts by bas ‘YQotemn aomt aeshes maw égailegqs shane od F 
Wiooet oft Mumate KOT caueowTe bevkew evict Yon “we Witoorg rie 
at deat at yiomet ebd od evtew ton S20 ont “h2 tnw totaal 
betootts ef fom biuow ie tate %0 Acad cl bietadl oat ait a 




















vig yeah Wl a Se i 
Be ah A ae gi BE th 


domeQeveiey veld TW metreoeRe a MethW oft me r’ 
nein Wiens ite vail Sibodt id at ‘adeqei HoH cues VE Vilkd I 
wit) eiiste viene of sh ‘nea Yon aod mahal air: stk 8 peneved 





oe 


wih diiw sometignos ‘weds biwow Sai edie sow 
gata aaotexe ents drowgans bivow ‘bas fag 0 Taube a : von 
tale and gr oun ge pang od od goes oe ‘oad. teas ‘xebvo off, 
cunt Lge nonoqquners ‘peck’ sowed selwe oat oe eedme: a , 
“ead bhan od sonueee at “obi taqae | be Veo ont ne cohen Os + a 
ods ound of dokde aoqn adoot te akon seototitwa 4 rs . 


pelenten ti My er aN whe fitik yt Ronee: 
o OM | 


" »xabro ot mrb¥te « ow breso ‘eal ’ 
Ke sane dvi Cw eS SRR came 5 4 ge fe a hia * ‘ wk | 
cat i 





Sessias: ¥ peel iueire eM ape ofl 
enasine ot “soa tt hae bee ge a Ge. 
* hae eatin wan hee Of ee ee, ee 


eters a 


206 = 31337 


EBAY G. HOoY, 
Appellant. APPRAL FROM CLIHGUIT 
Ve 


MORHIG SLOTT, 
Appellee. 


Tae 
A a 
MA. JUSTICE BARNES PXLIVERCD Tax Pe: on ae oy £% 


This ia a pexsemel injury suit. Plaintiff, while 


COURT, COOK COUNTY. 


kr Re et et ee ee” 


crossing the street, was rum inte by an nutemebile driven by 
defendant, knocking him down, breaking two ribs, bruiving 
him in various parte of the boty, apruining his ankle, knock- 
img out three teeth and lsosening eignt others so that they 
had to be drown. de was confined to hie bed or room in much 
| pain for nearly three weeks ond under the eure of « physiciame 
i The greater part of the time since then ke hos been nerveus 
i and weak and unable te put in a full day's work. He incurred 
Ae medical expense of $51. The jury allowed ae damages $150. 
It is urged that the domages are utterly inadequate componsstion 
for the injuries received, and that the court showld have granted 


‘plaintiff's motion for 2 new trind. We concur in the contention. 








on ie too manifestly wali-founded to reyuire diseusciom. It in 
i: 1l settled by the weight of suthority, and not queetioned here, 
t an unressonably small verdict, as “ell aa a grosely oxeesaive 
eo is subject to review by the courts and should be sat aside 

® new trial awarded in the interests of justice. 


Appellee urges that the plaintiff was guilty ef 





n wk {ethe 
Pu Seis. LO) SS 


Rese. ve SS , COLE om col 





lia ve itll vie — o ints 
“genta moss amen ‘st 5 sone. toatl sine 0 baa ee ea 
-Frin09 000 «P08 re eae Pieciehis Bar syeslvlnts 
a ») eae i ia" pee AA a Rar Ae 
.. u ateticeggan ros 


» AE. EO SS ae 
at camevnrne tea ‘agrrens By 


“fi + NPA 





tute YTRMeRR TS Shaw gb Lameeteg oa Pe TY ena 
qe merke oLitemeene ne vd oon eure aew .foerds Gt patanly 
gate head gotta get gotvogtd. inept wit yaldvont (reebewte 
~doomi sodas ald gminiewgu hod ons Th atucg auwheewinl at 
Lo NOt Aadd om wiwedes aiyhe yuineeool dun Meo2 bonds Iwo an 
Gx mb sees 16 had ube OF Deskinon gow alk attended od Oe 
aibehii & 2G oon ed? sebmw bee axoer: petri ylesem net Ate 
auerxen ased ard on madd couke enh? esd Re tug cos nabey, iM 
_pevnwont of «asec atysh fish « mb tem of aiden baw teow a 
bags aagonnh ag bowsle. must wat, 4 S85 te pareanieare: 





etna Oven, beets. Pum9e ott todd dps, gharkeope andi a me 
Mokinethow gis Hh TARO. #” ahakes, won &, 5OR, tebe om, Pehaad, ' 7 
ah $h sBoiveuoeds wxhypo% oF dehaNoInLhow YAdeothnsm eed ak f 
cOxad Anat comp JOM Onm Xi Lvedsue, Yo. dighew odeved pekteou £40 
evivorexs Glave « so dow, a géoidrey home. qhdomespone ‘tte ts ‘ 
thtas soe of nteede tas efteoo ad vw webwou od ‘toobdue ad . a 
soodsam, Yo advoreda2 ay mt. kooaemb kaka’, won i 2a 

Jo wiley ane Bikemiate oid dad ogre i , q 







tery negligence and not entitled to any judgaent. 

nat was @ question of fact decided against appellee by 

he jury, and one that could mot be taken inte considwratian 
7 the question before us. 


Yo Pe Joy amd Fitoh, Je, voneure 


G 









BIR ae et. 98 pa hihi 2 deh i ater 
oink s cntgthak ah Oe aR apy Soe, (aie ida 
muamnen Sent ay: ah ee eT ma: ‘iat 

, SORE enh) Ne, et oe aoa: 
DUES eipliauta ae Send Paes dane | 








Seah ot pieces 


wkend iw OME: siaiaen baal vida r° 


~ 





6 
Ql4 - 31346 


THE STARR PIANO COMPSBY 


GAIBS CORPOR TION, APPEAL PROGR WUNICT#AR COURT 


Appellant, . ) 
} GY CHICAGO. 
Ve 
MOPRIG PISHUR et al., \ 24 Ay A ; a! 
Appellees. Taiiek ile © lia Ae 





MR. JUSTICK BANMRS DELIVERED THER OPINION O° THE COURT. 


This is a replevin action brought to recever 
pessescion of a plane and phonograph which were eriginally 
bought from pleintiff by Joseph Fisher, the father of 
defendant, “no lives with the defendant. 

The evidence discloses that subsequently, Mereh 5, 
1925, Joseph Yisher filed a petition anc schedule in bank~ 
Tuptey snd did not schedule the piano and phonograph in 
‘QUestion; that complainant's agent called on Joseph Fisher 
‘on June 19, 1925, with reference te an unpaid balenee on 
‘the transactions and to renew the mortgsger, and asked Joseph 
‘Fisher to sign the new mortgages presented to hime Fisher 
“wate Morris now owed the goods and should aign the new 









8, which Morris did in the presenes of hie father. 

. equently Morris Fisher mide payments uncer the new 

es, both im cech and by his personal cheek. Seeing in 
% «a demand was mde upon him for delivery of the 

Bn tele. The demand not being complied with thia suit was 
“Brought. The balance due om the piano, as teatifiec to, is 
q ” 63, and on the phonograph, 162.57. 

Hoth the dufendunt hic father textified. Neither 





Sa Wt 
DS aint 








foe <AsTe tie Wane Zaman |’ } tis idl DiI ROTM 
LE a 8 0 ROR TE am 
ewe aps iB ee a eee 


[ js O At } b ~ t a coacey ot 


‘ oH fide RUSS 


eRHROO MY 10 Ho INTSO wit aaaavresa omictae mortar ‘m 





“erone% Of ddquord WOReOn alvolyed nwt wnat cote 
Ulaskpjice wrew doide dortpenedy baw enaly 6 6 sokesoone 
to cedset odd ,todelt dgotel qa Vrkembalq woxt degen 
ctonbaetob afd thw eewkl ecw ytoabre ts 

ait sho weet +Wsesnpendus Jedd avaolonks sonublive en? 
wiined mt oLwbedton baw mol¢ived @ baLt® cadat™ dqoaot .8ee 
mt sqorgonemy hae gaalq ont Siwvedos sett bab bas yosqe 
teekt dyoeot ‘me belies tmeae o* omambatqmon dass tmodsens 
ao wonnkad bisgus me ad epxwuetos dt tw a0ek ver ant 
dgovot bodes baw gavgogatoa ant woot as bre suokioanna 
rorted® smiet 0% hotawaerg aepancrem wan 9d agte of a 
wont oad mia bkwoda baa aboog oats homeo won ‘atv bis 
sxeedtot wkd ko vomocotg ond wh Sb lest sotite soon or 
won ott sete ataseyoq show sedelt atveol xhsan e swell 
ai gated ceeds Samosa td yt bow duce at ated «aagageel 
ad? to yxevigen coe mtu dogma wham eaw bunmed ad. 2% 
now dhe abdd dotw bohtquoo aed Yom hash oat .atestul 
wk Od bebtiiand ee 4yomalg odd ao enh obriaked okt 5 Oat ’ 
FE 8NG geigarqomontq one Ho bas bts . 
 tanlt2o% .dektktned conde? vhs saahanteh -_ agen 










w2e 


of them contended thet the whole indebtedness had been paid, 
and admitted that both were present when the con signed the 
Ghattel mortgages in question. The court remarked after 
hearing such evidence: *It leoke ae theugh this man (the 
father) woulé be foreclosed, now, from denying thot there wag 
& transfer of title there to the rom, and that the son signing 
the chatte) mortgages thers establiehed him the owner.” There 
was @ continunnce of the hearing, ofter which Joweph Fieher's 
schedule in bankruptcy wae introduesd showing that Joseph 
‘Fisher dic not schedule the property 2c his own. Hovertheless 
the court, in disregard of such evidence, found for the dofend- 


amt and entered an order of retorno babensdo. 
It ie aifficult 46 understend from the reeord the 


Sheory of the court's decision, unlews it was influenced by 
the contention of defendant thet plaintiff's agent threatened 
action under the prior mortgages unless he signed the new 
Rortgages. “ven if he did se it did not amount to compulsion 
Or duress. The only proper construction of the evidence is 
‘Shat the mortgages in question were valid, and under their 
terms plaintiff wee entitled te possession of the wortgaged 
property on failure of cefendéent to comply with the demand 

made upon him. | | 

a The judgment is reversed and a judgment entered 

| here finding the right of poxsession of the property to be 

dm the plaintirr. 





REVERGHED VITH A VINDIEG OF PACT. 


Yo Pe Joy ond Fitch, J+, coneure 








i 
t, 


i 


vik ood bad oeambeddwbmd eosin eds doit? denmyenos asa | 
ate hoomie aos ald wadw inweore ot9ew died sold ee 7 
xad'te bodxamot diwoo ofY .maLansiny mt wogagezom £ 

oat) esha ates sgaroats oo eteet ar” iblbiaee: one alone 

gow stone toate aay’ moe «wae «bone Looe od il ronae 
ailagts son oe drat hine yO ood a8 wsadd. onthe ‘to x0 

ereds “.comwe ods misi bodetidadwo exes sopestvon fostade « * 

otroteet sigonot dondw Yed%e vamkzaed odd Yo sonaun inoo 

Agee dasa pankiorte benwransat aw wtareinad at oLubed 

eaoiutexoved sAmo elit mo yOtogeMG sa, eLabedon, tom kh wade 

~hewko® od 40% Dawet sooawnive dows to damgeTekh sb Pcie im 


pbuedest presen te “alte mr hpaodae bee a 
oa tit saad aaa’ bande sohny ahd deuehstettai’ Bhs 3x i 


. ooateu La maw as conten, ssoisived E Me dr dy ut Linsealge 


i we 


bdo tnage atrazomiatg tusda snobs Yen, Xo mosem 


won ons bomate act sola sopenyzom cc 23g ead oda 90 
aehssaqaoo 8 taveme son ot ak =. bkh haat . nev)  esaenes 
| at somebive: odd %0 wo tow? sn09 woqong yaa vime pal eeees 

mhedts soon bees sdkLoy orm Boke wony at & oes Batti 


se Re ike WE dig. eR Bah OW, 


boyead zo ait te fe tueosnod os beks Lane boat fe 


vis iS Jy 


mca ods ashe eee of tsb to® is oyulne: 
























re We cole a 


hie ona . owes 
xasne ~_e s be soorowss ok 4 ang fo ne toniany at 4 
“ee af erage, aly 1 Motes eh 29 aetgte vst 


eee Teas 


ee Heh) By ‘a1 xi , (eS sic esa nah 


or 1 gua A “HYE® canaven 
, ip Ey RMN MCA DB RAE ch PREY aoe 


rervaee ane Fa sidelail ntl fae Whine | 
‘nye, y Pi eh i wae £ ui re: SA an Wi. Bi ¥ us a 8 tas Ae Mar + hig i at a ast He : 3 











FINDING OF PACT, 






We find that appeliant, The itarr Piane Sales 
orporation, was at the time ef wringing this action, 
. the time of jucgment, entitled to the right of 
‘ on of the mortgaged piano and phonograph in 





R26 « S1b56 


Ie HE POvitigs oy Jomy Niac, 
arrested at the suit of 


Resie Seniw, 
Appellant » APPAL PROM COUNTY comrT, 
. Ve Cook SOURTYs 
PHS SSOPLE OF TH: SPATS OF i \ 
ELLISCIE » 6) A 4 Ts PA om 
ApPPe lee « pew SS 26 O4 ft 


MA. JUSTICE SAKES BELIVERY THE OPANIGH OF THE COURT, 


Appellant, belmg held by 4 Saping ad sabisefaciond 
issued of 6 judgment against Aim in the Gauperder cours of 
Seok county, filed « petition im th: Sounty court for dis 
Charge wader the Involvewt Uebters' ast. The petition was 
@ismiseed and appelient woe rememdied te the eustedy of ths 
sheriff. . 

Tha firet point andes on thie appenk de thet the 
Pecoerd does net disclose thot wsliea «49 the gist of the 
#etion in which the judgment om which said exeoution issued, 
Was rendered. The excoution wos iswuse upon a Jucgeant 
@geinet appeliant im an action of trespass yi of aria for 

SR aecault and battery. Ii de the settled lew in this dtate 
that malice is the gist of euch an action. It wee eaid in In re 

4 ks. ve The People, 141 Ill, Apps 682, that 1t is settled 

"daw im thie State thet malice is the gist of such an action, 

:. ting verious ¢ases. Hence we need mot enlarge upon the 

act. 













It is urged that boveuse the action wae begun 
t four defendants, «11 of whom except appellant were 
eed out of the osae without am amendment of the 




















evtmues 099. 





“TBO 9 hl b BS 


_ tt ant ° moines arr ciamevaaia oma earnest . 


4 MUR si it inka’ ba heh. Hh 


ware. iaeneinin ot? yenk texeddot yewvtéied ott wohew 2 Agier 
ost %s wosens edt 0 bebninmes now smattocan dae. ge . 





“est te goby sult aow sons souka vookonth ton “op 08 
abies we lgarosxe bbw sho behe me » han ous se : tv ate anh 0 





202 2 ieee ae ae sided atten Be a 1. gee atlenge 

odege wdst wk Mo boktsen ade ad IT prodied ae tLwaw 
8% if, ML dkeo sow VE .w08se0 no Nowe Yo sedg odd at eodtom 
aoitewe wh oh deals a «GG o ffl TAL Epeyensd i y : 


aged was nolan oe cunn teat 2 tepau « at = ei 


osur Sactogge aysoxs, awry Yo Los yudmabietoh ewer unto 
eH} to tHeminsau nv dwosd kw oane ode, 9 tm pun. 


«Re 


declaration, it ia imposcible to avseertain upon which ef the 
Gefenionte the biawe rested, und that, therefore, malice should 
have been spevificaliy set out in the duclerstion. There was 
omly ome iaeuse in the ense, aemeiy, whether there was an 
Becauit ani battery vi ct armig from the charge of vhich malice 
fe implicd. (Solomon v. Bucohele, 127 Ill» Appe 420.) The 
character of the «ction in thin respect waa not different from 
& Guse cf trespuce ¥1 St semis Weeause of the use of the word 
“enge” in the comuencemant of the declaration characterizing 
tht generai mature of the action. Under our statute éither 
form of action would be appropriate, (Seas 36, Preetios acte} 
The failure to smend the declaration on diemiscel of the other 
Gefendents did not change the cherscter of 14 on chuxging o 
tertiouse set sgainst defendant, and if there wore/cefects 
of procedure in that case they are net cpm to imoviry in this 
procecding. The cositeniion that uy reason ef the dismisesl ef 
anid defendcnta the iseues wore mot jJeined os to the potitionear 
ae not tenable. : 
tt is alee urged that the oheriff f<iled toe endorse 
On the gapisa "who peid the bowrd” that wae adyameed after 
petitionscs’s arrect. «ny irreguisrity in thet respect is net 
Open to Guestion im thie groeesding. The omly ivows before 


) 


the Seunty owuurt vee vhother malice wea the gist of the setion 


im the casa under waion petitioner vas arrested. 
a t& is also urged tant after the three defendants were 


he 
Ni | 


“eG out of the cacew amd 1% proceeded as te petitioner he 





mo motise thercof. Beither ic thie « question epyen to 


Mi 
By «| 


 Anguary im thie procevding. 1% appears, however, he wae 

















uae puna smoktonakged oda me tue ‘ae ; i" q oa ‘3 43 Mead. 
tht dow wenale gomboste + cLomut joie: did mt ieee 
Hob Laat dnbiin to eyindo oats te ee ee 





mast duazo¥ihe ton caw! davanos aide a ads wild he “woteouad 
beam out 30 eam od! ke managed dh ssuapicininguitit gpreey: 


“aeadto oouaoee so awed “sao 0 dtr ae one , 





obs 





qadée: ed 2 Kean tew2 co wodSondtovd vite ‘hana 
& getgacts ee S2 Yo xovon'tady ots egrate acai 
“ase Db\pvow ones 22. baa \ shaban teh deatnge ‘to siete 

adda Gi vrdwots of mage fon ore yaa ouse daaha ak etna th 





to Shupteate ents 8 Hob aes ede) stokieesnon ost Ugnt 
— wid oF ea. rT Seon prow wont dred a etna A 
euTehae ed DOLRoY WEbxede ods toad weirs ey bes 
OTs Desnavee aoe dad “daned ents ste git’ ea 
fon Gi donyeer sae mt Yhintwgertt wei Cddedal Urdedeei aed 
eugted evant ytee eat manure’ a shaliposepsy os 





i 0 debian tk en ‘adie vidi ‘i new bee eles, tt 
exow admchae tos send itd tut “Vauld beget basa fcc yen 





oF mga rabitagtba * rir ta ‘ep’ bilan) Sonesta ull ak 
ee ia ot ‘gat | 


socio tnecneunan er) eaweshd Re 1h ion Ds te puna a. 
-  -owmuos ys hevapawige 





~ ta 
I LI a ee 


o3« 


It if algo urged that the wpeeial finding of malice 
Was necessory, citing cases vhere there was a diversity of 
issues in sone of which malice was not the gist of the action. 
Rere there war only one count im which auliee was the gist 
of the aetion. 

Counsel also arges that there was @rrer im the 
action in whieh the judgment wae rendered in granting a 
remittitur, and in giving om instruction to the jury. 
They are coliateral attucks upon the Judgment, and are 
not subject to investigation in this proeecding. 

The judgment io af¢irmed. 
APP IRR De 


Gridley, Pe Jo, and Piteh, Jos Soneure 



















































ee) é rt base 


ie ANA Wb ARS ay oe, 
‘gael Ree 





40 - 31637 


PRTROMELIA ZONCA and Peter AQHUCA, 
Plaintiffs in Error, 


ERROR 76 
¥e 
SUPERIGN count 

JOORPH OPSADEK, a minor, by . 
AUGUST OPSADEK, his father and Coox couNTY. 
next friend, and BD Jonson, 
Trustee in benkruptey of the 
estate of PATER 2OWCA, bankrupt, 

Defendents in irrer. p 

PAA TA CA 

(ee 4 dL eofhe iS “te A 


MR, JUSTICE BARNES DELIVERED THE OPINIOW OF THE coURT, Ly 












This writ of error is sued out te reverse the deeres 
seing for went of equity a bill of review. he bill wae 
ft to set aside « decree enterca by default in a corediters' 
“ba brought by defendants in error against plaintiffs in error. 
t Relief ie sought by the bill on twe grounds, ~ that 
there is error apparent on the face of the reeord, and fraud in 
» the deeree,. 

; The alleged error on the face of the record congiate, 
as claimed by plaintiffs in error, of findings and relies 

ward by the deoree in the ereditere’ bill suit “thet de not 
spond with and transcend the allegations contained in the 
a and supplemental bill of complaint in the creditors’ suit." 
ether words it de urged ae error on the face of the reverd 
Telief wag granted by the decree that waa net prayed for, 
| the eause of action under the supplemental bill did not 


Bt as of the date of the filing of the original vill in the 
dd ire’ euite 


A like queetion was raised in Legner vy. Hoover, 





ong 


bts RSE v Coe A i ae 
: Per i | 
‘We +e oa 
HO ity hints te! gS ay Pats, i 
‘ ee ek , a, 
ver eee “ sen 


ag bas casi what 


~eapeo sor: 
eyrnves wood” 





pe gh i 4 Sistas nid yy ta 









sh tat h vet 9 orkvan Fe 
corovh maid euxtvex es swe hexe.eh tonKe, 20, Aiaw: whe 
ase AtaE od? .welvet Yo Aitd a yinye to dmaw co? yeten toon: 








etONae ah attidahalg dankans.1 rer%s ae adasoueted eli 
heed + aebeweny ort mo Litd axis yo ddquen ab tekken 
ah buone't bev Sms ,kegoen ad? Te seek acid we sneteqne: tone a 
soon00d etd va iva 

soretanee oxeoes ade ke seat ‘odd a, TOxTD. bogelin ome 
Tob les fee sgekentt to «texte. wt attisaialg we sade 

cere eis due” thaw Liid 'euedihow; om? ah. eosoob eae eo be 
wid Hh Setthed see anolingoiia ahd orooaneTe ban athe 










eae 


318 fll. 169, 174. The court eaids 
"It is evident thet the court had jurisdiction 

of the perties and of the subject matter, amd where 

this is so its desree will net be sect aside in a 

proceeding of this character on the allegation that 

it is not susteined by the plesdings. Srrors whieh 

present questions of provedture amd not jurisdiction, 

and do not reach the atter of the right of the court 

te hear and decide 4 cause, go only to the question 

of the correctness of the court's decision and are 

mot open on a bill of review." 
To the seme effect is the case of Vyvexrberg y+ Vyverberg, 310 
Tll. 599, 693. The record not being open to review upon such 
® ground it is unnecessary to compare the bill with the deoree. 

The fraud relied upon is thet when notices of asking 

leave to file s supplemental bill and for default of the Joneae 
for failure to answer the same, were served upon Jankowski, one 
@f the counsel for the Zoness ae defendants in tho erediters’ 
‘suit, he informed coumzel for complainante therein in one in- 
stance, and their agent in another, that he no longer represented 
‘the Zoncas, and in disregard of that fact complainents in the 
“@reditors’ bill “acted froudulently and wrongfully in not giving 
‘Personal notice to the Jonene.” The fects 20 relied upon do aot 
‘Support such « conclusion. Appeoramce was filed in thet suit 
for the “oneas by said Jankowski ond one Sryseszewski uo their 
| ‘attorneys. They filed a general demurrer te the bill, which 


Overruled. Wo answer was thereafter filed, and the said 








m tices of later procesdings were served on Jankowski personally, 
the other attorney having departed from the city. The fact that 


te take care of their interests is immaterial. The 
nee of om attorney employed in a matter will be imputed 


fe 


” 


thise dures adf 100k 20k vail BL 


settetsetawt bok gues odd posts smobhyo aa ae sil 
vaedw has , totam sootdam ext %6 bite GLI Log alt to 
# ab obken Son od Adee ooneoh att eacek oh 
fede gekdagetio aff ae tedsonada Bhat 16. / 
deidy swests ssgalbaota off, or baggy 
amisotialvst ton bee orabsoerq to amoliaswo 
eka off to adgeax add te redsem ond anger. Je 
mo lIeowp et? of Yin op eating # shhoeh pave gepul 
O88 Pes moleboed ativwen eds Ta 1 7 ts pa’ ye ae. 
: ‘eons a Tappa 











Agen wage weivex ed ego wisi ga PSOE 
“ sGougeb ould AYiw LLid oct otngwoe Of Yrannpanitn 


ont ile” iy 0008 wt 
i —— nll a 





gakves. te aoa kion wodw dusts wt nog bukfex buext ed? - 7 
sane ade te wikwke’ co bale OLE Labuvae tegen ‘sett od owas 
ome owas mga ovuoe one dint fe set bo 
‘ates kberk wae sl atraheiwted ee Gaowee ony wet 
“apt else nib ARboods sitinnlitie ti" : 
Dest ecaneniars chip nnt Wh, alt aban Why? tbl lan wa 
eed AL advandetymey Jon? Soxfd Yo brcegeroth mi hal ano t : 
Bilvda fea wi Yiiwiahow bee uléaotubmart begee Le gies road 
son Oh NOqM BOTOX OH otoat ONT "eenniol ade wr ObLVeH L ” 8 
Shue Soult a DALEY aay comernugg’ “mo kertoiee » Moma eels 
kote 6s Mewoxsagel wo bas bewodnet bie ed asonel olf 
‘Mekdw (She kate of vere d Tocoheg’ o pee qo? "aye 
hiiea G9 donde OO xed teers eaw cowenn bt! Del 
sULiomaereg Mawminit ae bovewe Stew bgmbiesvotg thon” te ane lie 
Gand teat om .Ydio vad ade? hetingah harwh eoneI¥s kemde OE 
pronabiasinnasdians rr pris isderbt af 


















<3- 


A se@licitor heving entered hie appearanee of recerd for a client 
gamnet terminate the relationship umiil there is a withdrawal ef 
record by leave of the court, and the relation ie not terminated 
without such withdrawal, at leest 20 far ae the epponite party 
in concerned, until the end of the litigation. (Erisger ve 
Beieger, 221 I11- 479, 434, and Gesee there cited.) Aw suid in 
Regner y. Hoover, eupra, im order te gramt relief under « bili 
ef review on aecount of fraud, it mast show that the complainant 
Was prevented from imterposing « cufenae by fread and without 
Regligence or fault upon hia part, ond that the durdenm of preof 
is upon one charging fraud to establish it by elear and sstig~ 
Peetory evidence. “hile the claim of having given counsel for 
@omplsinants in the erediters’ suit notice of Jankowski's with- 
drawal from the ant Woes positively demied by those to whem ne 
@laimes to have given such notice, yet whether it was given or 
Rot, complainants in that suit had the right to reeogniae him 
as the counsel for defendents therein until he was prepexly re~ 
lieved of hie duty by an order of court. Sot only were the 
|“ S¥ermente of fraud insufficient to susteim the bili ef review om 
that ground but they were not substantiated by the preef in the 
Gaae. 







The court was amply justified im cismisalag the bili 
| for went of equity. 
| APPTRUE DD, 


ae 


: Gridley, Pe Joy amd Fitoh, T+, concure 
| ay 
ih 


2 \h 2 oe SP ere i. ae oe 
Base anh GAL 


ont 
a 


inohle @ yor oxese ko oomoxceqde alt bowedas ‘palwéd sostottes 
he Lewartanka bev & ol writs £ktom, hanno keaton ‘att etontenet tenn 
ootauteted don oh motiaken asié acs, hued call * » Peis w sree 
Brreg sé tnonge ons an tot o8 baobh de haunt ! 
0 ROR) emabsog hd kh oss Ae bus ond ren sDosxoanee | 
mh bine ah (sneate erudd aeaam ive ere ate ‘EEE, £88 azonet 
Sitd a tuk Wehlot saway Oo tokO th eR ONS wy nee 
takecguce eit Gott woe team 22 ghuarh Yo dawoond me wabves | 
 Aedt be bus huort Ud ecawked @ gubeoqnedad mark heteorent 
towry 2a mend of! dott ban «tung okd age deat me comely 
wading Ane Ygoke ud Oh Mudidades oo dansk getyands exe noqe: 
ei Leumicn avvty yatved te micto edt oLkd «semobkys ‘exmie 
cddke qetauesionsk to dalton tse towethhers oat ai sgmantntom 
Oe mangle Gd ones ed! wodven ehnristoog maw ouse alle mond Lien 
30 NOvdy ane th cuddodw soy —ooheen some: aevig awed, of ote ha 
wld an tagenet o& glgin asd bad sham dod Hi saeantatqnan 9 
ot Yesegety a4 ast, Kado aleteds ebaadasteh 20% (Semmmen 88 : 
aul onew Yio BOT oduMeD TO Tobue ma qd yeh ede 19 sows 
Wo wakvon\"R0.ALRd i mbatame- os ekg Rewer ‘te sansars 
afd mb TOONG Old ye ROG Imosudy sam exo, “~ tad aman 4 Z 










ey Seals yd gin ul aide Phas fit BAe ip wile “eee 
fhid set aadeadmao at suxataoet, views ese nso Masi: a 
; EA lake ne 

ERMA Ce ee 

ewe ppnmnaniiniyes sang de bom si +3 awete 


ee ear ae ee OR aa Ee 


iw at feeigaw ‘omen ti Aa RE Sonne ae 


Hi , tivated aS 
Se Re MP ee ee ee ee 


Po we 
aw 
ae 
\ ~~ won Fy 
Re coke is, a & \ F 
\y™ * \ Ve Nar} <i) Ys 
9 - 30862 : 


JOSh7E B. RABAN, 
Plaintiff in Srroy ’ 


Va 





BRROK TO MUNICIPAL, 
COUR? OF CHIGAGO, 
PRARK MARR and ELLA BARR» 
Defendants in Srror. MAATA eat 
es “$F GF A AZ I 
eae hs OLMIS ay St | 
MR. JULTION VITCH PaLIvY ART FHS OPINION OF tHiR COURT» 


Plaintiff obtained a Jdudguent by confession fer 


$2252.05 upon dx 


; efendante’ four judgment netey dated April 10, 


9 Sutherizing sueh a judgment te be sonfeseed “st any tine 
er.” 






he: The notes were payable “on or before biaty months 
“after date." Twelve duys after the Judgment was entered, on 
‘motion of defendants, secompanied by an affidavit of one of them, 
‘BB order was entered staying the execution until April 10, 1929. 


Mine Gays therenfter, a motion by the pleinticy te expunge the 
order staying the execution wae overruled. “Meimtiff’ brought 
a) 












Writ of error, assigning as errer beth of such rulings « 

® defendants have aot appeared or filed any brief in this court. 
The affidavit filed with the motion to stay the 

fom sete forth that the defendants are the owners of 

Teal estate in Chiavge, which they acquired on spri} 

‘BO, 19245 that cs part of the purchase price they executed and 

@liverea to tne grontors certain notes, payable monthly in 

s the last four of whieh ure she notes upon which 

t wae confessed; that such notes are seoured by a trust 





oh 





} sas thas de i eine ey yey , wire ae Bie f ie di cig saunas 
a nam 
som oTH sey TATOG 


‘ERO BCE: Bpe ... 


. yxagueo set WH WOTMIRO IHF snavEsna OREN: my oh a 


We gw ora a woken % 


en iN 


oli aint “ye vos i 





nar penises uns Pe 
20 ‘nobseoiaoe w aaa vt . Rc ae oat LONG ag Dd ay v4 ol 











cs gu oa" bnoustznn of peer ee to 
pai ats ERS pie b 
* eae" 

exanos Wake santos to fern otdaqen one acu ae ; care ite 

iste shotwane 9 aaw saneg at ots soate ay ov * ; 
saat % Sl te shea ts an e padanqscaon « nn x 
eek ‘ot Lana seas wei nsexs oft yaiyede howedas cio 
su NE eS 83 ie’ ois te 


ist aR Sah Pen tay} 


axie egies es ‘Vibemtale ons Ra ok Sam a “ts barre : 


i" Hiprer ay 49 
arquoad vanemis -sbotuzove Baw stoke wiyete sae 
ge pa ene Se rater ey | CaN 


Rae af rs 


















_ ehh me ROstanee HF # sani 
fas butaonxo add wolaG ‘cnadoron ots a py eo afi fenr : 
mi vient, sidayom «sever miei teo rena ode head gpoica 






fawsd @ yd bovmoes oH dali: “ows er 
ovet admebueteb doit baw ates to Rarran mg ) 


interest, and complied with #11 the terms and conditions of the 
trust deed, and were not in default in any manner at the time 
the judgment was confessed, The «ffidevit wtates thet the notes 
“are by their terms not due and payable until April 16, 1920," 
Thie sffidavit and the notes aud warrants ef attorney appear 
te be the only evidence that was heard by the court om the motion 
to stay the execution. So far as the record shows, ne evidence 
Wes offered or heard om the motion to expunge the order staying 
the execution. 
URGre ® power of attorney authorises the confession of 
& judgment upon o note “at any time hereafter’ a» judgment may 
“Mavfully be confensed at any time after tha note is executed, 
‘This is so well settled as net te require amy extended eitation of 
“Muthorities. One of the wnrliest caves in which it wos #0 held is 
the case of Sherman vy. Baddely, 11 tll. 622. There the court ocon- 
@trues ouch a clouse in the warrant of xttorney te be a contract 
‘Biving the erediter the right, “if he chooves to assert it, of 
having a judgment entered Up &t any moment for the amount of the 
@ebt.* the court said further: “The defendant has no right te 
‘Complain of the judgment, for he deliberately euthoriued it to be 





POSES Of the jJudemer 
23 t no he makes Having « walid Judgment, 
the Plaintiff wos entitled to an execution thereon." 

ae 





es OE Me brih hf. eb 









qi It ia trus that courts ot low exercise equitable durir~ 
dterion ever jucgnents by confession (lake ys Cook, 18 Ill. 383; 
Fell v. Huston, 152 111. 239), and om a motion te vacate such 


mt the question is not whether there are errors of law, 


" ut whether *quitable reasons exiat why it should not be opened 


#0 et in a defense. (Mumford vy. Tolman, 157 Ill. 258.) 


49) 


anes brie antred odd ihe dotw baliqawe Sata senenete 


pda tO anole! 
ton exew bas boob 4 


oats ede oa tonmem yn Be siento m sh, 
woton oft dacd aosade diveblita ot. sbenaetaen gaW aow,¢amgbet a 
QC «On hivega “thgeas akdaye, hme awh Son sidine ‘ahead ‘Wot 
qenzodte We sonata. bem evden. ond lesa ghvabivae ota 





" emoeyetm 
¢" 
aksom add no suuon out eH piped eww, gosta oonaniee dae col oe 


gomobive fit avodin hievet oad mae wt foto igri 





guiyede xebto. wild ewgeugxe os mo Sem oe me rand 19 OREM, 
sch iphliipmionnen. ual aeoracginky Renan SUR ameneanes - 

to selsge aes ant: ngnisadinns saeyoree To, ROMMEL ated! oy aan 
neem drempbut, a ee awned ake NAM, a! wine 9 ecu enone 
aeene: ud ober edt Totten Bake WE FM poasotnoe od NAEW TO 

& aokinthe ee a 3m URE WER PSL BF POR OH paksdne, £how, one 98 
at ASed on mnw Oh Mogdead aoves taphhinon a7, Qe, 6810.) snoks bapa 
oon Sg: ME ORRAT 9 AD 9 LE LE 2X ci, 0 9800 
 Honicemag mi od OF eennhs Ye deer aNr: on gpa ony 
an aghedewnna 08 sonond9. veh 3A*)etstnhs. aeldoatbonn: ot oot 

oct Ne susome edd wer domo tae te ge honed anna #20 aby 
“od: daliphs oat sail snaeaeted edt” scoala’: ‘phew oxen, aa me 

od of $2 DOvicediwm Betoredileh ed se%: steompet, oath 20, ainkga 





















admeempian ly cai xeinn odd te nodiniea hee. oe 
ba cement toomooxie at bhbeie sos ai 
-giuvy sidaeisge oatotaxe, wad do atsneo Feds, RRR BE BL oo ora 

S2Ue #EKh ML gahnge.o lel) smbeno tap <i adsomgomh tor, rons 

dower: otacsy oF anktom » ae hae @l@S ofS Lh), | Wa 
ewok Woonnerte ors oxotte radiodw som oh meLOGOND) ant 3 
potemo we sow bkworte’ 12 lw sadxw enoswew wldadie ne rodbecte: 


(.eee of£% COS ompmtol »v pyatamit) ,cametod 2 ah 






es 


a 


‘Bat as the only defense alleged tm this case te that the notes 


were not due, while the contrary appeare from the face of the 
Retes, the motions of the defendants present ne equitable reason 
te open the judgment to let in thet detence. Gvdinearily the 

words “on or before” give the muker of the note the option to 

py on the dny stated or before thet time, but under the reasoning 
in Sherman y. Safcely, supra, the usual neaming ef the words “on 
or before is changed in those notes by the lenguage of the warrant 
of attorney se ae to make the time of payment “depend on the 
Prccure of the eruditer," instesd of the debtor. 












It might be inferred, perhaps, from the affidavit filed, 
when they signed the Judgment notes defendanta did net knew 
Judgment could be omtered upon them at amy time. But there 
# nothing in the affidavit tending to show that guch lack of 
- ¢ if amy, on their part, woo due te any fraud or mine 
®, mtation of the plaintiff, or thot there was any understand« 
” or Agreement that Judgments should net be confeaned ga 


10, 2929. 
Yer the ressomea stated, the order staying the execution 


OF DAR AMVERSEL, 


Yo Pe Jey and Bornes, Jo, coneure 





a ne 


—_, 
a aan ie 


rs Ope toad ede dale wena or attest predate ite & 

























sigan: ast gurl? wk wom obit wl begotten wameeed yi ott 
pele tO ob HO me's wenegge Yedenbmea: wal ALLE 908 doit’ 
abana! bhiind age om dewey wtmnben ve One te” teen ba | 
gate hbk a Pe ee ae 08 Fnoogant” “eats 
Per me ee snare at 
canst oe Matis gost esetod dager: oad + ; 
gomataw ste “eo agmegnnd: Seite Gh sigmatel a“ + becuase 
ct ta mt 
ines did RORY saodttod (homaita ae te 
word der bib aarcinne ih oadom setbmapirt nar ats ott 
cel dee seme eae ok male Moga Dore sa: od Bite ta 


“ae ao eal lial Bet ace : 5 


Bess RR ee USER aa AAS rae wy EAR ae OO ae i sie mee 


a BA desea WSN AS i 


a a Shyness: nek. wet Aes 


a RDN feaah ae Bagh SUE Be Sn OO a 


Sy MMR ‘Meee iy ath v Sig a peng : 





Pie ay We Les CR I eae ee uecsonine 


~ 









ghER VA orentak aa Woe shang) Niiahihle Mond ¥ 








296 - 31122 


DANIEL JONNGON, LOUIS BPANOPLA 

and J, &, @PAKOPLE, for the use. 

ef BIGK SPERGPOTS.CS, , 
Appellees, 


WR. 


TORE A, ‘wry tthe, jiaratanews, 
om Appeal of Jou A, ORLIN, 
pate 


} 
APPSAL, PROM MUNICIPAL conAT 
GF SUIGAGS, 


pa a, 
j f@ } q 2G7 X 
44 4 A @ fA h @ 8) fa, Te 


a 
MA, JUETICKR FITCH DELIVERED THR OPINION GF THe cOWNT. 


Thie is an appeal Trom oa Judgeeut against the defendant 
in a garni simont proceeding brought woon the theery that defendant 
ig liable, as garnishee, to the judgment erediter of the three 
Rominal plaintiffs, for the value of property ueed in the business 
of one of thom, alleges’ to hawe been purchased by defendant without 
‘Gemplying with the previstone of the Bulk Sales set, 

: In Getober, 1922, the Ascher Rosewood Theatre Company 





eased ite motion pileture theater in Ghicago te Daniel Johnaon and 
Leute Spenopls, twos of the nominal plaintiffs, and sold them the 
furnishings, fixtures and equipsent fer $7000. ‘The purehasers gave 
thetr Motes for $5800 of the purchase price, seoured by thedr chattel 
mortgave on the property purelased and the leaseheid, Im January, 
1923, they borrewed from the real plaintiff, Kiek Gperepowloes, $1800 
an gave him their fifteen notes for $160 each, payable monthly, 








by « eecond chattel mortgage on the same property. 

Im July, 1023, Jenason and Louis Spaneple seid the 

) y ond assigned the leasehold te John EH. Spaneple, the third 

] of the nowinal plaintiffe, Hy the terms of the bill of sale then 

e r ted and delivered te Joun B, Spanople, the conveyance waa made 
I, ect te the firet mortgage, which the purchaser agewned and agrecd 
) pay, At the same tise, John 3. Spaneple signet, um coemaker, the 


notes payable to Gperepeulos which were secured by the 








ROLE ‘ me ee 


sO swatoroe were as seu ‘ 
+99a0 TH bol 


Spas, 
Maye) 


were Berte lowes 0 a 
‘9 ot is 


CNG MET TO AOENTYD Ke CRARV LR vom 


















pe, 


{nabantoh edt tomtege sumagbert a seme fabqgn aia" a iota ba ” ty 
drabanteb tude Grows matt none Siquetl antboodorg’ tis att tox « 





caqatgud os oh. hewn. errecors te ceier wate a Vian q deal 
swesidiy taahuoreh wf hesscioy n9ed ered at Baguette sje ‘aa 
tee we tes tai ads Xe, anuntorsy sadkaahts gadytey 








hae sonnet niet ot | opae ta ms . eT io titer ehh 
a ewe tS ee heey. “an x Hoh nie 
esta cast Aéow baw “wPUsalete Laatzon ¢ ous te 2 ont « foes 


ove ermnsdertirg ont : 290078, bid 190.99 inpe | 
fodseds «chests xe bexiore soekte, ona sho targ sit hil ooaas sot ton 
2 Cheat ai be weoood nt dae. doeasorwg, eragorg baad a0 o 
eoeeh Mitvcumes tale “Mihbadate | fast et wont bos yf 


ono 6 idoyag » tlio Pont *aX. modgn sengey Asner 


eG nay ey 


Paha emus wait a6 ousa tte ‘aah samme, a xe bovrsee 








sisi bith M0 “ck end to aumss one « “amuamatg, i tes 
aban enw osneyevnoe sit etqanone a aot oe porwr ta hewn te eras 
ee bax Aoawron.a senndomwe est ao tie easton taut 6 pit ace ots 





segond mortgage, 

John B, Spaneple rau the theater for several monthe, 
but was unable te meet the pajywente ageruing on the shattel mort. 
@age notes, and in Sovember, 1975, he sold the same goode and 
ghattele te the defondast, Ohiin, eubjeot te both of the chatter 
Mortgnges. John KB, Uoanonie testified that he “couldn't eake a 
geo of it, loot big money, tee much money Lavelved in there, 
Stepred out.” Te wlee testified that at the time be sold the 
furnishings and equipment of the theater to defendant, he made ne 
affidavit a9 to hie ereditere ond mailed no metice of the trane- 
action to Speropouics. | 

it appears that defendant paid mothing for the 
“property and the only songideration Joan UW. tpanosle received 
‘for hie bil) eof sale to defendant wae defendant's promise te 
e@btain from tho Theatre company a cancellation of the lease ond 
® reeeipt in full for the rent due and for the Balance of the 
“purchane price of the goote and chattels included in ite ehattel 
“mortgage. Whether the Theatre company ever gave John i. Gpaneple 
@ Feceipt in full dove not appear, but it does appear that eventue 
“ally it assigned ite mortgage to one Greabeboum, who fereclored © 
it an4é bid in the preperty for the amount due on the firet morte 











@, leaving the second wipalid. 

Om Fuly 31, 1934, Speropeuios caused a judgment by 
easion te be entered in hia faver aguinet the three nominal 
tiffs upon the fifteen notes signed by them which had been 
ed by the second cortgage. Woon this Judgment an execution 
issued and returned ne property found and mo part satiafied, 
in Bareh, 1925, this garnishment proeeeding vas brought on 

t judguent. 
; Pefendant contends that the Bulk Sales act has no 


lication to the sale of the property from John i, Spanople to 





ars. 
SS 










Sadao Laxeves ‘tot tedwndd ant mae “Ei ablldad' a son 
“ often fag tasio on oy aaluxsom ataacga ot Joon ot eidanu haw 2 
baw abooy ean iad hion a ESS -tedanvelt nit Dew saeton sie 
Lotiarts aid ‘te dtod 08 seatdue ,Abiao “teat et ys 
& saee 9 ah coo of dads ho St keans otqrmegt it sat .nepante 
yield mk bavfovat ‘ation sow oot oeenton ad took ot te 
en rlee ed entt edd on. hast, po tthvecd cake on re) 
on eham oat iabhuetwh of codeedt ott Yo suomqtupe = weed cin ere 
onetd oa te sotton | ‘aa Seddon | baw azo ihens ait bs 0 sven st 
sain biqortt a hogy ane ee seit i ied 
“Wedd aoh gagddaa blag ye ee bars atenqae ae So be 
“nevloten stevamas ait settee Pepe oer thn dad? ‘baa ‘ese 
simone o¥dnaban'ten baw Paahieies of tea” ‘we Hid aa "4 
haa ovank add to noltattebone @ yanqaoe’ pepbbat ball con't ih, 4 
pat Yo bone tad oa x0%t baw ouh shor oxtf ot Livi’ at sqteoes 
“fetsnds a44 ah bedwlont afsteasio bam thong elit x0 seit@ Bnd 
efgoanas of mek ova ane ‘winauee ‘prduest wh tod wodseat Jogaadt 
“us ame beds iwegee wnad of due Sevan ‘You peek a Py , 6% 
. + banotae ot ote swodomsort eno oo pe Pin Me Eis yp eg) ae | & 
“ ae feet oath no out bow one ott wot eiroora wit at t bie’ ke” 
pied ha OE” Magia Beiawes “eat sabvant ip 
we soempbut, ry ‘bonis een, 1eeed ni ‘etut a0 00° cue “a 
tontaon ‘oud? eit Penhaye tava abt ab been dam ben tat 
waned best to hetw ai bod bony, woe gtk 
. aptiusexs 8 samba ahs iowa pa ie 
ee Si Me Me Le red 


sho rintdee “dang on baa awa yiteqetey om 


iy sae Pe Ae ee tO 
ao © davon sew ‘aalbeboote Taewiia i 


inte tame Sak Oh. So er mae abs ie ghee  tohe sat A ome 









































ae Wp ty es ye «el gai yin nab ‘ci Bem a a Boog 8 
"9a aon ‘ten oe dei whe wale 
A NER FOC te ae SRaen ate hy ae Ca Ae hie es 


) ot eLaqnimg® si ute oes ermeaens ott te alas | 





the defendant garnishee, fer the reason that the olaim of the 
Judgment eretiter, Speropevles, wae secured by the second chatted 
mertgage on the property aia the sale vas expresely made subject 
te that mertgace. The etatute makes no such distinetion between 
secured and unsecured erediters. It applies "to any sale in bulk 
of the major port or all of the goods and chattela ef the vendor's 
business otherwise than in the ordinary course of trade ant in the 
Feguler and usual provecution of the vendor's businese,” (LeSaiie 
c0., 28 IL1. 194,) The 
Property in question cenetituted #11 the goode and chattels used 





fia the business of John BU. Gpanople conducted in the Ascher Rone. 
wood Theatre, and such goode and chattels were gold to defendant 
"etherwiee than in the ordinary course of trade and in the regular 
‘end ueusl proseeution of the vendor's busingss,* It fellowes, we 
think, that the Bulk Gales sch anpliee to the sale in question, 
Whieoh wae therefore void, 26 agsinst the oreditore of Jenn K, 
Spanople, unless the statutory five days netiee waa given te them 
ef the price, terme and cenditions of the sale, 

Wan gueh a notice given? The resord leaves thie quese 
thon in doubt. ‘The Bulk Gales act requires such a notiee to be 
given by the vendee, either by personal delivery to the crediters 
ef the vendor or by registered mail, ‘he erediter in this case, 
Bperepoules, did not testify on that subject. The vendeo, Ohiin, 
‘id not testify at all. ‘the vendor, J. NK, Spanople, merely teeti fied 
that ot the time he made the wale he did net make any affidavit of 
Qny Kind ao to his erediters, We think the evidence on this subject 
fis not sufficient te shew that no notice wae given ef the proposed 
Sele, sepectally in view of the fnet that hen Sperepoulos wae on 
the witness stand, he wae net osked and 4id net say whether he 
‘Feeeives from Ohlim os notice of the sale, or whether he knew of such 
s 


Ne i 


" 
a os 














" penktus shea thrawraee aa top ate baw mR ‘ 
Honmies mektonisath coup or soem etusate eas eRe 












ehiakes) * wasnteud e!sobaey ons te nottvoonexe foun. i | 


oh aN % shi ih 


ne uso se wa ban snc, nie xeeupng etn R hes ond 
ov yaweiiot $i “ynaeniinud a! xohuny et To meksvonsorm Samm 
aiotteanp eh 6Len pit of eoliqve pop ace, host vit an tt is 
sf mutes ‘to erodibeta malt Juminge an ,higv eink 
walt of ucviy sae soften ayeh ov th % 


“ensrg ait anges hones out faeviy, totton « i Son 
ad of oot on « dome pocket tos wa kat tut 9 

endow waist 4 yunrdiod, fanoo0e x wo be eee 
seans ef ot tot lowe edt <b bem eblue oft 0 


Whe 








phany, ott RA pte eaves ton 
te divaneee was) eo ~ ha “7 ode oH ohne od mtd, ant $0. 4 
foutdun 8285 ao somnbive ert Aika OW aves thnay nial ap bch 
beaeqere Adi ‘te cavity ger sohgou om ane wi 99, dente ® pve 
to way SoLyowENO RE Made Saxd S90 oy Yo wOEV mh efntooune 4M 
an ordain yom sam bab dre hetew shee on Ta i. pesca bw 













i“ 





, , a hi Ae eg FG at i Hpi yy sage ute « Bis si 
Wa a Ee ir A, AR pn it po eat he *, sbi lu i ms 


gale befere it was made. 

Moreover, we fail te find any proof in the reeord of 
the vaiue of John bk, Spanople's interest in the property at the 
time it wae gold, aiid the witnesses doe not agrer thet Ghlim ree 
eelved more than the amount of the Judgment. It vas eseential te 
mith, 224 Tli. App. 206.) 


Prove one or the other. (Kenski | 
There ie evidence that Ohlin anid he received 97000 “in money and 





netes” when he sold the property te one Spanuth; but Spanoplhe 
testified that he reeetved nothing from Ghiin exeept hie agreement 
ae ubeve stated, that when Onlin traneferred the property to 
Spanuth, the latter gave Ghiin « check er a note fer an unknown 
amount, an4 vhen Opaneple seked Ohdin “if he got enough money," 
he (Ghlin) replied: “About a thousand doliers. That's abi.* 
The details of the Gpanwth transaction are not given, An the 
Feeord shows that the Theatre company originally seld the proverty 
for $7006, free from encumbrances, and as the sale te Ohlin was 
Gaede subject to mortgages, wcgregating $7000, it seems improbable 
that the value of the interest in the property that wan sold te. 
Ghlin wae worth more than the money he reeeived from Spanuth, At 
all events, thie evidence Leaves it very uncertain whether Onlin 
Feoeived from Spanuth for Spanople'sa interest in the property as 
Much ae $1951.15, the amewnt of the judgaent, waloh ie the full 
S@ount of the indebtedness te Sperepoules, 

| Furthersere, the Judgment is in faver of Sperepoules 
for the use of the three nominal plaintiffa, while 4t eleerly 
‘Sppears from the evidence that Ghlin had no property in hie 
Peoesernion belonging to all three of the nominal pleintiffe. If 
. the Bulk Sales act was not complied with, the property im Ghlin's 
‘Peeseooion, or ite preeseeds, belonged to John KB, Sponople alone, 
- Beotion a of the Garnigiment act was amended in 1923 #0 an to 
“Permit © Judgment te be entered in such a case against the 





EE tre i ep ty ay a mene rm 


Se ae 








glance aE bi 

YO FraRes ose mk Roong ym Galt oF Sint aw yeevge tel hoy) 
adi de yieqor add ot sos wnsel at elgoaags sh mie te wsiae 
wo? sid Fas? ootys Son oh asecgat ie edt bus ,biow eee 42 om 

oc iei¢newne ow ol steemytat eels We tavomn ode dede ote Berd 
SG08 sah .£EL BOR Boke ow tleaok) .nealite ene tO ditt ¥en 

hue ydee a2 GOONS hoviovey vt Rha wttdo Veil Woaehive ak eee 
_ eheoaed suet qathening? wa oF yoLoKony aio Blow ae deity Mant 
fromemtye ale tqeoxe offi mock guiktiten Aevicaes dd. dmay Heo 
od YotEYStE ex? Howe Tenet ahlae sew dake /Netese dyed!’ 
sons te tet atect a to doodd @ WTO ovag totted ont citar 
*,vamom sywrone toy ot EA” BROMO bowew whgoane? mare ‘ins, Pou 
hha ete etek bewwedd @ teedat the coon (RHO) 
eas ak meg fen etn aelpownaand Alonagd eat Vo atlases 2 
Yttenem oAt Low gLiasinine gmagmoo wetted odd sade aware htop! 
maw BLO Of afoe ef? aa dae ,seomardeupae matt eee, CRORE mi 
eiadongad amonn s2 , OGTS galsagotyye ,Segngrtom oF Soe hdd whi 
-@t ioe sew tact yrteqouq ome ab Seowetal wir Yo bardave’ ihe Di 


he de wott howtwowd of YoRom Set wen? orom Mew eow abe 


ALidO ToMtadw Biedusone Yer #2 weveed sombive alae (ated f 
ae EtrooTy Ves ak deocetak ot tyonegs cot Asean met bowtie 
Liye? ef Mode ,twoamhiot, aah Yo Wearpinn ents aL LEONE ta” ithe 

| : seoleoqerees ud anewherdotal ena to Pawo: 
rotmoxanogt Io. covet wt oF sanmhet od joxeanectaet 90 Co% | 
qleaels s2 oLtae ,eVetate Lomkeen! ae? ofS one oft 4 
hd GR YotOCOTY Of bad ALLAO Jedd ogMnb ive” ae moet ated 

AD s@Trevate lo Seabsw one lo cout) Sle ad yakyanted aokmndad 
aiaitdd ab yduoqoue ond ,kete Bebiques toa mew doa modak Maat, mi 
anoia algonaqe sl niet at Doyhoted jeboneorg na tee”, aotediens 
8 ee of EOL ah debuome sow toa vnenwe kemee ast bet woleas 
ont tenlage wnoe » sows at herotan 0 of tnsmgbuit & tomy 


Acie ‘thet 





garnishee in favor of one or more of the original defendante fer 
the use of the plaintirY if it aporare that the garnishee hos 
effects in his peseesgion belonging toe such one or more of the 
original defendants, If ne error was ahown in the record orier 
te the entry of the judgment, thie error in the form ef the 
Judgement could be corrected by reversing and remanding with 

T1ll. 46; Gage vy, Peovle, 163 111. 30); but in view ef the ether 
errors above mentioned, the judjwent must be reversed and the 


@ireotions to enter the proper fudement (Bebulte 





@ause remanded fer a new trial, 
REVERGEDS AED ARRAN DED, 


Gridley, P. 7., and Barnes, J,, concur. 





hy te e¥es ve bdo don ‘i aiaiataie 
noise buooet 6d Gl dwdilu daw “Koide” dd YE! 
Bh Se ak Na ed Y ey dine ai'% earn ih ‘ 

cad aneenttend 






















iosnstclonyylong a 
as ete Baa sas Reed 


PONE: 


He SANS 


eT ee aE ee sk ie " | ial 
ee + bmn. aay alba ai | adi 
Pi ROB RE RETE  aiays hae TE Ri UiaeeReI iRlitinini donna ‘See ‘at i 


5 }. f eo 
yay Ct ee i ie Bee Bey ah Dh a / ce R33 a 





HARE ie ar a” St in hed Wanaka Mah aeoagt cabal Yai wha + Y | 
EG RNS EN a ea i, Sek einer, Bae dake. nk a srt Pe ‘ a 
ee a eee ee ae et 009 4 
EL RAN ANNAN OE hy CHORD agua g wa Sn Sgaieanm ln ew _ 
ae Dhow eX Deel “eRe BRAN a Shawayad’ ney vey wn ae one te 
A ee RS ah OPN Sepa ee eal Yea liae Mele Sea rite, Ciisteae ner wit ca 


















¥ ( " ¢ , hha id Ua ts ey ike 

had Sae compe stata agian a Bee LE eethaad ee aa Say eke gaat aids 

SRO NN EN aN aA, MINI «eR EN a aE bah ithe 
SiS ea OB ae Oe esta ‘ Pikes ai alte rv ea ae Wah we ae enn | 1 


wy i v4 a (bn rank ee " er 
Doe Me i aaa CG ho 





eal NER | Bi YA. eld AR cg es al 
EL AS ME RNR ere 


ki le buon iri Mal 6 hi 
WP OP aR, Jb aur in ne a i ‘ia Rhy 9 eT ‘ae te bas: 
Hh ame RRR hoy i it ER RE Aw ON oh oe 
me nk type nner wale may Doe a aia om us wi 
lle i eng nag shel ag Rg ats ia santa marae 4 : " 
oe ae ve. Tae Si Bamps Passi —— " 





46 - 31160 


THE PSO7LS OF THE STATE OF 
ILLINOIS ex rele WILLIAM 
H. HEYWARD, individusiily APPEAL PROM 
and ag president of and for 
the ILLINOIS DIAMOND CAB SUPERIOR COURT, 
COMPASY, a corporation, 

Appellants, Cook coUNTY. 


Naa en a! 


Ve 


WILLIAM &. DIVER, ae Mayor, 
ete., et ale, 


a ee Se te Be ee 
a} 4 
a 
vw 
ee 


Appellees. 
BR. JUSTICE PITCH WELIVERED THE OPINIOW oF THE GOURT e 


Thie ie an appeal from an order denying a writ of 
Mandamus which was sought by appellants to compel the 
issuance to them of taxicab licenses. 
. Appellants’ petition alleges that in October, 1025, 
they applied for such licenses, under ordinances of the city 
of Chiesgo, which provide that all licenses "shall be deoued 
as of venuary 1 «and shall expire on December 31 next suceced- 
ing." The order appesled from wan entered on December Ro, 


leas. if a writ had been issued om that day, the licenses 












have been good for three days. ‘The appeal bond was 

ed on January 23, 1956, after the licenses, if iesued, 
have expired. | 

It appears that the cabana sought to be covered by the 
were formerly operated by the Ddamond Gab Company, 
became insolvent, and theresfter two Illinois corporntions 
formed, one called “Chicago (inmend Taxi Company," te 
licenses were iesued in 1925, unc the other, whose 

‘PPiic tion was refused, enlled “iliimeis Diamend Ceb Company." 

: ¢ answer of the respomients states thet licenses were 








BV A SERIOD WOOD (9° fa A POEEIRID 60 ou oat 


SAGA BEST te Sa 


a} 
Sn adit hay pian sii 


Ry ae ae 


a SS ans Aide 
TawOO ax tO Koruna ‘wr cama | oe | 





Ye diew os galbyss sebte me mot keouan m8 at etat 
eld foqnon oF eteattongs ee stanien anw so ty ouminb 
smeonens noise ‘te woats 8 oonaw 
aes qtedodao mk “pasta noyoite moi 3830q Vasmaizeags 
“tse one to aoonnnivie rebar ,eonmeukl dowe +02 oetteae 
bawnal od ‘Linale® ‘geanoghl Le toMd abivenq do kate ‘ ro 
-hesoowa tun £6 rocmen ott a@ outgxe IfLode bate 2 ys | 
Bo ‘TednmooT to berodte naw mort boLioqie tobx0 oer nal 
aeaneotl sil? ~yah fad? mo beweek aoed bart thw 9 cd : ® 
saw deod Laoaga of? saqnd sendtt xe? besa need ov: ot 
,bawenk %t comannots acta ‘teats 980 96t erp: b 
add yt boxeves of of suyivoa adav odd ded erneqee a ane 
‘eUsaqae® det haomelt ond yo bodmaego vitenr0? oxo odie 
anoiinxeq ies wtomkslt ows red tewredd hae ,emovtoamt ‘ella: 0 
ot “,ymeqmo? inet mean fe oyen.tuto” vottne anno ‘sbowr0? @ 
eegdw stedide oad hee oBaeL ak bounek ore nome 
“syagaed da) daomaki ekomsisi” beitoe :doewiox anw notdaot. 
i atOW apanvols Bass aodade sensbnogee wit . x8 




























Re 


refused to appeliants because of « rule known ae Rule 6, adopted 
by the Public Vehicle License Comsission of Chicugo, forbidding 
the issuance of licenses to exbs painted or lebelled eo like 
other cabs previously licensed and opersting, as to be ealewlated 
to deceive the public. 

Appellants olaim that rule 5 is veld. Respondents any 
the validity of that rule is not involved, but thet fer five 
other reneons the writ was properly denied. One of such reasons, 
at least, seems te be good, namely, thet the ordinances require 
the owner's neme to be printed on taxicabs in large letters, and 
that was not done in this ease. 

However, in view of the fact that the licensee period 
for whieh licenses were sought hes long since expired, appellants 
Gould now derive no pructicnl benefit from a reversal of the 
judgment. The questions invelved are now purely moot questions. 
"It ie a well recognised principle that courts, in exercising 
their jurisdiction in mandamug, will not award the peremptory 
Writ where the right sought to be enforced is orhas become a 









abstract right, tho enforcement of which, by ressen of some 


of circumstances since the comencement of the auit, can 


BY, 114 Ill. 185, 189. ‘ee also Christman vy. Peck, 
d+, 90 Ill. 1603 The People y. Burke, 274 Ill. 55; The 
Be 8x Fel ~i190n vs Koge, 31 lil» App. 3073 and The People 
Stevens, 152 111. App. 123.) 
ig The judgment ia offirmed. 
7 AP¥IRMED. 





Ws 's Jes and Bernes, Je, coneur. 


ee 





= ae 








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yen ames, dhee ai @ eT Od 
orks s0% foatd tad phovioval pa ak , ofan touts to, ethilev & 

een scm sere to ond -belaeh yiroqetd aay, Jin, ond amQnney tHe 
sahupet gownariove end dace . yen »hOOB, ag oo asivon eno 
Serie acgio ign mk odenknat ihe beosatne od id onan atone | 

| ‘\euno olde ah ouch dea ‘on eon 3 


poigog wgmmnts att dadt soet add 20 wohy ih etovenel 





“pdnatioqgs hethaga sonte mol sad sdyion, oxew eanmeatt toAam 


od? Yo facrowet w mor? shtened Lopkionxa om wykzeb won Mi 

ranodtsosy don YLeWE won OXK novievas ametsneua oft n doxosn 

gatstoxone Bh yairsa dads, sigtontaa, bontaxooss ster PAs 

YIOsque tag eds Duane Jom Libw epumendcom wt weks | 

6 omnpad setiag ak pooroime af et selperoe saat a pte 
anus "te aaah Yh ae bihk to daamsorotae orld, dah m 

nan _iite of? Yo temsmnonecmion, alt onte Bent suas ina 

*,conoie biog agg od shtoned inotdonm, xo ppeopend Me 

put) onis 068 +90 «BBL ra Nh oY ala 
















sages. 08 pee 1%8e vegas ofEE £6 «BRO 2% mmed 
POO a Be (oBkh poitgerey so 
Ca culeiicon hamnkel and bem eal ROME, OE: cies 


‘ Mi My ron SEN 8 8 ‘ ee AND peeeD ‘ 


is PR ny a hae 
a8 ee raha 









«0809, aig ue 








7. Reree, 
a EU) ER Ran: te Ee Re ROME, ee y bonar io wen ao die i 
ha aR Bab, aD wd gohan. oF Beth SAAN war he one i 





95 - $1223 


JOHN ¥. SHANNON, 


} 
Appellant, APPRAL PROM OLACUT? 
ve ) GoURT, cock counry, 
; 
MICHAEL NASH, ; te =) 
‘ppellee. § A ’ fae (ae p 
BE Leolheo US ew 


MR. JUETICN FITCH USLIVERED Tut oF: ¥ION OF TRE coUNT. 


This is an appeal from a judgment for the defendunt 
im an action for aceault and battery. The Plies was self defenne, 
There were two trials, the first tesulting in a disagreement 
and the second in a verdict ef not guilty. The plaintiff 
Ginims, justly, we think, thot the verdict is muifeatly 
ageinst the weight of the evidenes. 

The agsault ogeaurred in February, 1923. Maintire 
Was then a motorman end cefendamt a policeman. They took their 
Reals at the some boarding house, run by a Mre. Kelly. Pininsirr 
Gd defendant were seated sida by side at the breakfast table 
one talking scross the table to onother boarder, named Healy. 
Plaintirr Claims defendant way intoxieuted, and the facts seen 
to bear out the claim. A dispute arose and Mra. Kelly moved 
the Plaintiff's chair to the end of the toble. Vlaintirr 
Wetified that wnen he finished his breakfast, he erose and 








Wed towards the door, that defendant “rose at the some time 
ad went ovdumd the table, intercepting plaintiff, and «truck 
b : a Vicious blow in the face, causing a compound fracture 

of Mooal bones which required a surgical operation and wae 
the enuse Of considerable lows to the plaintiff. Lefencent 
at thet for two or three minutes after plaintirr's 





Was moved, the latter “was arguing and seying how he 








my 
Se 


LUE BORK CARA 


OLS d DAB 





 BRBEE om” 


iif hey a i aa 
tence et w 


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Ws se an 
i hepa Sl Vee See an Oe 


By as pad ik eee) Mle id es 


habia res 
ee AE 


; seacton 


| fabed arr qo wORNTTG mut Qgaaviass ROTTE cornet 


nh eal: ei Rang ee 


| “tasaba0299, ode x0} snsagbut « mort Lneaee = st eat i 


onnseteh, Mos saw selg edt ysoedoad ews duases 102 
sesmanxgeoih « ak yoliineoe dorky ons oak 


pol ye oo ye, 


‘Wihdmtade ost. WLise, com, te, tedbrey, #, weg | 
i iia torasov oad sostd 9 takes pop an 


eeu hive, ods 





a 3G, ddator, a4i,, " 





co WRASSE,  SRAL, o eanaredo® sh, hogrunne, tunona, ost osama 
tkadd. x00d cael  smamootiog & Seer deste RE o , Di, ABO ION. & | ae of 
Visasal,- gliek awl w ye Mees Oannt BELESARS MAAR ss 4 - 
aided saptslesnd ols in obhe yt ebbe. DeheeR, 20 i 

Chaat, boann,«tebiaed seddons of, ofdas, ost, soe sabre 
mone ate oly, bra giatackmodat aay, sesame hake RERAD 
haven <iLel «an, bre enone souqekb + combate, ts sia 

_ Mtbamhetins ambied ail? Re, aims gela, 0. ahotio, a 210 a 
























| eee Plana Oelt nnepiogpoonperansgre camenetea svn : te 

Kowrde dae »Witislalg gaisqoonesad rouios os ston an 
wmtons% hmsogmen & gokane? eos weld at woke altos : 

aun hae gobinrsge “tookguue # bexkuper dots enon inean 


Jnnbaetet «Yaksmbate etd! oF duck ofdirobkeie a 
a'titiatalg sod'ts assumia god? 10.009 pay dots vert 
eit west aabynw bes gabuons aw” saat od «Soro a 








0 1 hh 






ia AU 


oda 


could lick me,” and then “walked oround the table and etruack 
it with hia fist amc telling me whet he would do te me * * # 
and I stood up, and he wae coming towards me * * * with thie 
motion (indicating) ond I eume to the conclusion * * © I woalé 
not let this fellow slep me ali ever the place, end I etruck 
him in the nove.” lnintiff’s stery is ecorroberated by the 
testimony of Mre. Selly and of Healy, while defendant's story 
is entirely without corroberations 

it sppeara from the arguments filed here thet the 
probable cause of the jury's verdict was the fact thet plain« 
tiff and the Inndlady, lire. Keliy, both testified that after 
the cccurrence in question, pleimtiff did mot werk fer two 
years, while it appears from a stipulation made during the 
trial that plaintitf® worked for the etrest car company from 
the date of the anctdent, Yebruary 1S, 1923 until Kay 6, led, 
@xcept from April 23, 1923, te August 5, 1925. Gm the basie 
of this evidence, defendant's counsel argues here - and pre- 
Gumebly mace the same argument to the jury ~ thet the whele 
testimony of the plaintiff ond of Mra. Kelly showld be dis-~ 
Fegarded because voth teetified faleely “in a matter material 
to the issue." The matter referred te wos material only as 
‘to the amount of domages and was not at all meterial to the 
main iseue of liability. Moreover, counsel concedes that under 
‘the Tule invoked, the jury were not at liberty to disregard that 
part of the testimony of the plaintiff and of Mra. Kelly that 
is “gorroborated by other eredible evidence;" sud practically 
Sil of their testimony av to what happened at the time of the 
Assault Wee Gorreborated by the testimony of Henly, who waa 


” 


: end is apparently disinterested. His testimony, 


ti 


ry & 
“ie 








i deuxte ben ofdet oft buwonge bedlew" wede bao “sem dot Oh 
i ** * om od Gb Bhvow ef dodw om gabtios navn oat eld ili kw 
| abst dele ® * * om abaowed yatmon saw. oxi aca «oe boota # 
i bigew teen ‘moluutonee ons of emno 1 bee. (paks ow kberk ) tno 
| pnpsailthg 4 eae eoenty ent teve ifs om uote atten, wht tbe 
od yd dotorodertnn eh rots oN Fihel bolt *.onam od mt 
| Yiote atimaberter vsinw, aXdool 3 Yo, baa yor «Oth ‘So erom he 
ihe ie _ etgksoredesten twoddie qhoetiae 

uke baat tn beh BY Witenes weabQaa i on 
amen ene tone ete dow Bitiioy a peit Ud Wi wellld bee 
septs: Sade wokThbusd died (Vitek .eek yybithaok odd baa ® 
ows d@R tow don MES YaMatelg (aekedde) Ab obaidteudos | 
add gubiah Shim meivobigthy 4 moxt breeds th shaw’ lie 
store YRaqaen w9e gootte ahS ayt booltow “Qe kietalg ‘goad “Ea 
sd0RE YOR Kitaw COME (AL eawrd ee fae dise tale edab 
- wknad ocd wd ceaer 6d dened od fever led Lies ede dee: 
nigh bat = Oeod eodgte Loanwes é*emibanvoh (déiiedive Shad 
“whee eMty sia  Seawh, ite od suing "lg Win "B6UM 
wate o€ Divert YELER veil Yo ous ‘Wataitatg Ss’ 20 giao 
Kabeo tine es tne a wh" —Lowtet boLtkdeod Hod sawosod bolnnn 
we ‘Gito Labcodee cow of berry ted ved dom ‘batt weer ‘odd 
edt oo Leluetem’ fhe oe sort ose Nth eopedidd to" seumee wae 
Thaw duly Wodeoseo Loanvon ,cvvootelt  .yettematt Ye omabd 
doe Deagoweth od _rrothL so vom etew xg ott ehexovmh’ olin | 
tose Yio se te haw Weivienacy’ ato: ttavnniesglophiriy 

qieostonny dre womeodee elernars caddo yd bodnxedets 

orld YO emt? edd do bemoggnat pormetionathcbsi sean 
sow ady «ook Yo ymamtouod exe net bodwrodorte daw" 
eWomsined ath sbodsowodmeetd gttnbtigt Yeh Bis a 
+ peak mb tu shneneyhalen il, GGT GRE, A MONT OEM 1 


4 






































* well as theirs, shows Glearly thet the defendant was the 


wOe+ N\SRCOR Vs Claycomb, 52 I1l. 566% Yells v. 
hart, 118 I11, ‘pps 217.) 


Yor the reasons stated, the judgment ie reverged 
@ the cause remanded for » new trial. 





Gridley, >. 3., ana Barnes, J., comeur. 
a 





ond te mihake si ae cata nwa fn Ve" wode be 
cae ee os a dares it hh aay vm me, bo 


tele oem De ea vai” 
 eipion wuahe weet v og dboet celta wt " 


Gakye tha nae a sidnioati “ : 
a YOR hepa wine age: wage ‘viva 





Al4 + «(51443 


al 


Fe Ge HeRORICKS, delag business 
uméer the firm name and style ef 
Pe Se Hendricks & GOes APPRAL FROM MUNICIPAL 


Appeliees, 
QOUNT GP CHICAGO, 
: Ve 


SAM ORWER» 
Appeliant.e = — AAT AR APR 


a 


we 
\yJ 


MR, JUSTICES FITCH DULIVEREDY THE OPIWIOM oF tHe COURT. 


This appeal ie from a judgment fer £635 fer breach 
of a written contract. Plaintiff is « real eeteate broker 
anc éefendant the owner of « building in Chienge containing 
‘eight stores and twenty-two apartments. Im October, 1944, 
they executed, simultanvously, two written contracts, one a 
ease end the other on agency contract. 
4 The lease demised to the plaintiff two of defendant's 
, to be ceoupled on a read estate officer fer « term bee 
Getober 15, 1924, and ending April SO, 1028, the leanee 
te take possession of one store at the beginning of the term 
Gd pay $225 u month rent for 4% until Muy 1, 1925, and then to 
: pessession of the other store ond pay theresfter for voth 








&@ month rent. 

By the terms of the agency contract defendent agreed 
over the renting ond management” of the whole building 
iff fer s period of one year from May 1, 1925, and to 
‘Rim ® comission @.ual to two and one-half por cent of the 
o Collected, provided thot if defondomt sold the building 
that period ana failed “to have the purchoser aseowee this 











PASTOR MOA Mh 
sSOADTRO TO THVGH 


Me ee 

—_— si aL) 

| i BL ebay toa, 
* . 


ee ay Me ee Ue we 
EO 3 


. mee LL ieee Ge spree leo eisai a 
<GhKO AT hb Ne c | 
eas Ms, Ce } & \ aN -¢- mAs 

Seige A GA LO 


o TROD 2m7 <0 wasn" ERY quamv Leia Koon aoETOue ew 


> 


ay) i 


donwrd wot 2880 vot dmmegoul a most ob Lecqua aint sige 
sedeud slaves Laon o ot Pihiwiehi «toattaos modihawe « 
pitaksdson egueid® of gukhiiad a to catere att dmabae'ted | 
REL y todas? At cataeuage ewiyanWs bee words dal 
@ oo ,otueriees aesdiew ows «tiaweemedlomta shogwowxe g 
etoaetaee Yoregn ms teddo acd sa haa 

aténehbaetes 20 ews Tiidnkala et! 96 boatawh onmek of 
ood aed # tet volta s@agae Lnet » oa Selguseg od oF ‘ial 
sonnel ods OSL ,O% Lisqs yakoae bar a hOCL glk vedeae0 yaka 
ated alt tw gekantyod of J¢ oxote ome to mokeasanog multe 
of madd baw ESOL yk WM Shame 22 wr moe ime @ BELG yor | 
iiad 20% xed tawreds wa baw anthewnetasetionesss 0% 
“ sinen strane a A 
bowngs gabmeteb Seovines: youngest? ty tented Ah) 
wbelivd eledw alt te “tuemp_enwm bre gard sewn saab 





o2= 


agreement,” then defendant agreed te pay the pleintiff “a sum 
equal to one-third of the cammdevion for cellection ef ronte 
fer the unexpired term of said period.* 

Plaintiff took pessession of the two stores ea agreed 
and expended over $6000 in permanent «Lterations and fiaprove- 
mente in fitting them up for hin uses In March, 1925, ¢efendant 
geve him a now lense for five years from Nay 1, 1905, at the seme 
rental of #300 a month. The acency contract was never carried 
out. ‘hen it wae executed the building was in charge of other 
agents, whose contract oxpired on ay 1, 1925, ond was then 
extended by the defendant for ome year longer. 
| Plaimtary Glaims that he aeked defendant several times 
before May 1, 1928, to turm over the renting and manegement of 
the building to him ae ogreed and that defendant eadd he would 
46 so “in a few days.” Defendant cloime the agency contract 
Wee ¢oncelled when the new lenee wan giveme 
On June &, 1925, defendant wold the vullding and 
Motified plaintiff that his other agents were authorized te 
Gollect the rents. This suit followed. 

Upon the question of facet involved, the evidence is 
tm nopeies: conflict. Defendant and ome other witness testified 








. the ageney contract was caneclled. VYlaintiff ond one other 
testified to the contrary. There was no jury, and after 
re the evicemes in the record we enmnot eey that the finding 
the trial jucge, «he saw and heard the witnesses, was mani- 

or ageinet the weight of the evidence, 

| ? | It de urged that the agency contract lacks wateality 
tm ss it contains no sgreement om plaintiff's part to mange 


i rent the building for the defendant. A similar contention 









———— SS 











men ao” Vthdekalq od you OF SeomRe Sembee teh dl ime 
atnes o mohioetios tot molentumms od? te senseatneedl ine wi 
“shove babe Ye meee tod Leptin 


heetg ae nowede ood ade to aolosoanog oot ‘vrboatart hol ct 

movortiak Bam emORIotodLe Smwraatton nt 6008h ‘seve aobaogee 

tuabeotod «TORE «sioall mi vow ake wo? qu mods gmbIee? md Ot 

ase ght tu AROS gk yal aost axioy ovEt vot weack won a utd ¢ 

beksxae OVER sox Aserémon Youngs dT «Kane ao 008% we. te fad 

sodte te egiadd mh enw gubbiiwd edd noiliiones enw sf — . 

ee ee ae ee 
wicnaeiias stopmot rey cao cot vets ten hy 

aomkt feewwn dewhasteh bert wt Pit) satetd” antral" ™ 4 

te sreapgemen bet galsaor wel Yewe mad oo OREN’ of al ot 

Bkwow nf bine stobmot~o nds dew Reotye’ em wht ov pitkhttid” 

 toandawe Yomoge odd omhaks Yrenestet Layeb oot a - on 

anette eal oaltiot wun ote rat be LE . 

pie yeh edited ond Shee Henomiten ,eaer a” acer ta ao 

gb Neibwelthies exe set nwitee edet sods Vortatong seh 

| | showotte® thve that Velma wily bel 

ak somehivs ote ybowtlownt feck vw moncianretloes — wre ; 

ROktkeadd amwmd kw coitse “bow bard’ Fethb ne Least 

“oto ome bee VRedetaS® .betLoonne aaw soontaies % 

ootiy baa ew, Of amw evo? sctwutnpe ‘belt 9d) bok . 

waits ae heed ppnantbteprrtplrgetinaldcrniesso to at sith 



















wiitowtin witout toveiwos yoswne wth seatt! bajar Wen Oe “a 
 eRoncsot OF Fis WY YRVeLote nO dmommoiegh ot atibwiseien’ 9 ait 
woleneimeo ualhata A » dat teas e als “oF gakothud odd tm 4 


~5e 


te a contract of agency or employment wae held unsound in 
ib, O28 TAL. 605, Upon the 


" % 
i er llc al 






Re 
1h on feacin donee 2 


ME CerLce As ¥ a 
authority of thet exse, we think the ebligetions ef the con- 








tract in this cxse were mutual. 

The court awarded dameges equal te «a full comoioal on 
of two and one-half per cont upom the amount of remte collected 
by the lesvors during the yeur covered by the agenoy contract. 
Im this the court erred. fhe conteruct fixew the menoure of 
damages for such @ breseh os is shown by the evidumec, at a 
um equal te one-third of the emount recovered. ‘The judgment 
‘whould have been for $285 instend of $868. For thie orrer the 
| Judgment is reversed, and beoouse there cam be no dispute as 
to the stipulated meseure of damages, the eause will not be 
“remanded but a judgment will be entercd in this court in 
“Plaintiff's fever ageinst the dufendunt for 920%. 

REVEAGED AND JUDGMENT HERR, 


“@riciey, Pe Je» and Barnee, J+» GONG. 








nme one % | ame beantian, nat Ants ow sepens Gti ‘yo hws 


ae ee SRR OS file 





oe ae 


see aire oo nhs 
Retention sitar tp, dmwome od; megs $G99 saaeeidtigatthentasiie:s 







Ver 


att | yr Ske) ome oly 















ey ee 


Ma vier 4 Pe 
at bg ae dk 
wes Te anki ice At ae ica, * wens ‘tags 
at ning Rae 5 PS eatia aS 


: Msc MeN vid 


Oe eee aaa se pasa Hack’ Sa Oey: ee ee 1 eile? 


ep sie He ah % 
be 4 LA SLR aes Heise eae, as ee owt ue Ne 
x adauaeaeaa 
hae nd Aelionwwe sar Peres ares aS of 
di” IR. 9g rua teas Tot ee na tieiead 
(- Ht A SRR aL ae tr) wane 5 
i i f tn ae 7 ; at : ‘tee i: cee 
My CR pee fa EGR RN Ua Raat Be Rain OR Bi Spite gest alae vig bau dus 





Oe ie a het faith ‘iho ¢ 4 
Kate apenas Mewes ‘eatin’ hint” ‘hapa ae “ee ' 
bier te Pg a a OE wey ae ay ssibotnia’ Pa i . 
voices Golletu Ad «eipha"bee ate as ye bed Cll ee 


123 - «32283 


jen’ of the estate of TOVIF 


a. } 
a } 
} 


Guardian WELER and AWTOR J. PELGE, 


Plaintiffs in Srrer, Pron 
Ve CIRCUIT CoN? , 
BEINGES end MILI Ge RIGRMAN, COCR COTENTY, 
yg ontepoond ond ge Gopartners under ate 
firm mome of Kiseman and Heimsene©) A)4 F | ff 
Defendants in Urrer. fe “RFR Belhe i SC fe 


MR. TUOTICR PITCH DILIVERUD THR OPINION OF THE COURT. 


Complainants’ second emended b1lil was dlemicsed 
for wemt of eyuity after the demurrer of defendante to it 
he been suetsined. Complainante appeal. 

Complainants! counsel cerrectly states that "the 

















is one in the nature of 4 bill of review to correct 
om the face of the recerd and ‘or am accounting by 
| ts for money alleged to heave been improperly paid 
° them for fees as solicitors in a partition auit in which 
, “Fepresented Katherine Felke (ome of the complainants 
fein) ae complainant." The bili was filed without leave 
court, amd the questions presented by the demurrer are 
sthex such leave wae secesuory, or whether the bill can be 
ae @ bL11 te correct errors appesring om the face 
prior decree, or to impeach that ¢deerce for fraud. 

It appears from the allegations ef the 111 ond 
2 the exhibite (which are attsched therete and specifiesily 
eo part thercef) that after a deeree hed been entered for 
ition of the promines deveribed in the bill, ond after 


ey ee ee ee 








! a 7] admanets % glo a ode sede 


eo Abi wate aye 
A NIOD BAT WO moreso a aewertags. HOES ss 


boy, 


megane 


“pews tak saw w ELke seinem eeeoe “Vedee 


Hse yy ao ny 

















ay Ha eel Ate Mas 
foagaa esr iatgmed ai poll ed f 
ode’ Suata aedain ‘Usoert09 Touma cumne Ved tania en 4 wired 


a dh iad he i yt we 
foorwe of wohwes to Lilé # Y9 sxudon | arabe: 


Bee 


blag yLroqengms ayed ora we seaetia oa ‘ada 
BRR ay AAR, SRR *, % m1 
sh Rede ae tine nolsiduaq a PY exottoises oe 
cbienbetene ag ‘be wae j suite cmb oun 


wrnek Suadtiw Solh? ane ithe oat 63 


ad geo Lid wd radsedw vo yyidnavend anw nk 
oaeh alt oe yebiaogge wrexte Jousren 8 kite a da! 

Paes 19% Bornes dail? Sonoqme of 40 .soxp0d bein: 

bomen LERM walt * ankeannne ad tee seahal wl 


we 


@uch premises had been sold to one of the complainants and 
the sale confirmed by the court, sn ordwr was made fer the 
Gistribution of the procecia of the sale. This erder was 
based upon evidence taken upon o re-reference for that purpose 
and the order directs that $4000 be paid “te Sigeman & Heinzen, 
for solicitors’ fees,” inutend of being taxed as costs in 


favor of complainant. This was errer (Moku) 





209 Ill. 504, 506) apporent on the face of the revord. 
it is further alleged in the bill thot the complainant 

Katherine Felke employed thy defendont Heinsen, an attorney, to 
‘bring suit for partition of the real estate mentioned, of which 
«the owned an undivided fiveeeighths interest and ole had dower 
—— a homestest estate im the remeinder, owned by her three 
‘Minor childrens that no other porson hed any interest in or 

“ elain upon the property; that defumdunt's firm is nemed through- 
“Out the plesdings os compleinunta’ solicitors; that the com 
plainant Katherine Felke relied whelly upon the odvice of the 


- defendant Reinzenm and signed without question all papers and 











@ he advised her te sign; that in the matier of the 

of solicitera’ fees, defendants, while purporting 
eet for and represent her, acted seeretly and without any 
to her and without her knowledge or «pprovals that the 
Sllowed and paid to them are growely exeensive, end that 
¥ Gia not lenrm the facts regarding the allewanece and payment 
a f solicitors’ fees until after the term expired at which the 
was entered. The record shows thot the order for dis« 
tion was made im March, 1925, and the original bill in 
ease wou filled in Jonusry, 1926. 














bra etnomiakymes wl? to ose od bee med tas austawee i 
os set whee awe Rees me abun adi vd baowe Einee ha ’ 
Baw Rebuy atdt selon odd Be Bovey ads | ‘te ie me 
ouagung take 0% eeuoreton-0% 6 mee cemlad winiadin ans ‘boas 


emoaadall seston bh ea" bbeq od GO00% toast adoorks scan! oa be 






+ 209% sii to vee? oii. - favrosge (oe 008 Arey @ 





dnaatalqnor ods tout Lhkd oft ak Deyetio eomtswt ab Ot" dss 





folie io v bene baie siasas Laos. ea te 0 mensketeg ¥ - “— as 


RAPS is « we 


towed det oats bea Sunred aitdgtoweyt? bobhvieny hoof 








woud xed Ws benwe reobateme wate wh wbasae 20 busdapaod » te 


ah Pas KYRA 


to mo gaotedal wan bast noetog ‘rodao on tas Amethtido: vu 








otlgto sae bom at mt ‘a database Vo saat iwerevor Pid 
“aon wild dusts ‘(arog tolion "ef sind eqs on ome ar 


A 


aed 0 sobvbs salt woes | ode | denser oatet ex" inset r 
bao nveqeq fia motveouy awosts be “Dorota, ba pap i ag ry eS 
eds te ‘wed den aki wk daxte tagte on weg poatytn br Nap 
pakd voi oftite cadanboetes rave? Sampetosion, Ye | oon 

Yee, swede tw hes utoross dates 1rd, smoaeqes: bap ts “0% does 

at doett pLavonngs ‘0 opbotvont wet, awed bw dao rad oF, on8se 

wis baa cordsawuae seers om med? oF dike den beweste ape 


wea a 

















ads dotan da | berkexe aad ods xsd met ri 







waib xe sone ome oats woe bxove7  , shexenae aay 


wk Libs tam <0 ads ba oh Hoo wokand: 
tad Cia) B 5 ots anne & vat ste srl ON ENT 


The prayer of the second samenmicé bill is that the 
order of dictrivution entered in the partition euit be set 
aside, thet the $4000 paid to defendants in pursuance thereof. 
be decreed to be held in trust by the defendonts, that “an 
accounting may be had and taken of the usucl, customary and 
Feasonsble solicitors' fees for legal services in said partition 
euit,* and tht defendamts be required to pay over te complain- 
ants o11 sums received by them in excess of whatever amount may 
be found to be “a proper and resvonable solicitor fee in enid 
proceeding,” and for other snc further relief. 

It is well settled that a bill of review fer error 
apparent on the face of the record may be filed without leave 
of courts; or if the object of the gag is te impeach a decree 
for fraué in precuring the naiees) my be filed without leave. 
But it ie equelly well settled thst Leave ef court must be 
@btained before the filing of a bill of review upon the ground 
or mewly dincovered evidenee, and such leave in alse necessary 
where eavyerments as to errors of law apparent on the face of 
tae recorc, or chergee of fraud in obtaining the decree are 
with allegations of newly discovered evidenee. (Glos v. 


The Peo: 259 Ills 5325 Horrigan vy. County of Peoria, 262 
Thi. 36.) 









While the bili in this case charges fraud on the part 
Of the defendants, the freud charged is not the kind of fraud 

. Will sustain a bill in the nature ef » bili of review to 
“my a decree for fraud. The fraud fer which such a bill 

: y ve maintained is fraud in respect te the jurisdiction of the 
. e “which gives a court colorable jurisdiction over the 


presented.” (vans v. Yoodsverth, 215 Ill. 404, 4075 








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BP ‘tae Sie ve i ; 

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whe 


Hints vy» Holdenhayer, 243 Ill» App. 827, 236+) The fraud 
charged in this bill consists of the alleged concealment of 


facts from the complainant Katherine Polke, which defendants, 
as her solicitors, wers bound to disclose to her before they 
@eeumed to have an order entered in thoir own favor and, 
practically, against her. ‘The only theory on which such 
alleged fraud could be made the basis of = bili im the nature 
of @ bill of review ia that complainant did met discever the 
evidence of the alleged fraud upon her until efter the term at 
which the order compisined of was entered; and that is one of 
the allegations of the eecond amended bill. It therefore 
Qppeacrs that the second amended bill falle within the category 
of bills in which alleged error on the face of the recerd and 
@lleged newly discovered evidence are joined as grounds for 
Feview by « bill of review. Under the cuthorities cited, leave 
Of court was necessary before the bill could be filed; end in 
Barrigen v. County of Peoria, supra, it was held (p- 46) that 
this ebjection to ths bill can be raised by either demurrer 
or by motion. 

There is a further reason for sustaining the demurrer, 
Mot argued in the briefs, but suggested by two recent decisions. 
In Bilson v. Omart, 324 Tlie 276, 4% wae held that an errer in a 
Geeres of diveree miking a oolicitor's fee paysble te com 
plainant's solicitor instead of the complainant, cannot be mde 
the oubject of a collateral attack, since "the irregularity é1¢ 
not affect the court's jurisdiction to render the decree of 
divorces” and in Re vs » B16 Ills 169, 170, vhich wag 
® bill of review based on allege error apparent on the face of 
» record and slleged freud in procuring the decree, it was 


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“ede oveted mod vd vaglankh os peed otow euxosseiton ted | 
hen sore ave thods mh, mnineten, 3a At: COME Ot NY 

seme tokio wo yoeds yao oult «ced gomtope, »witoode 
wumten ott mh tid o te ehasd ont, oben, bi, Meet eat taael 
eld covepeld tom O86 Smamtatqmao dod at wekves 10, EF Ms 
dm maad oxie opie thane, sed. mous twart bogetie ond to auaspl 
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fos. Srooed od? Yo wast od! mo wens bepotia Molde ah meLeg 
Ot abewory am Homkel ovr seaehlve, soxevegeth ehvon bags, 
ovaek abode ucbsleadige at tobi!  owelwes Ye ALte 9 yd week 
mh hue, gbaLs? ed dimes Lfio, pas auatod REMAP aa * id 
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that “am attack on a deores by & bill of review ig 
teral,” amd that "« w4ll ef review Caniot be made to 
tion se en appeal or writ of error.” 

if the fraud charged in the bil) de true, une 
dy, the complainant has her remedy, but it is net te 
* found im such a bill as the one under soneideration. 


are other simpler and more effective remedies in 
Cases 


The deeree is affirmed. 
APYIEMED, 


Ve P. Jes and Barnes, Jos Coneure 








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iy HM) i ue 


132 + 31262 


HOLLANI) PREGS, INC., 
a ¢orporstian, 
Defendant in Arror, 


ERROR TO MUNICIPAL 


COURT OF CHICAGO. 
Ve 


Je Fe PETHERBY 


s 
Plaintiff in 2rror. oy 


a Pans Viasat? Wig” 


6Y 


MR. JUGTICE FITCH DELIVERED THE OFIBION OF THE COURT. 


This writ of error brings up fer review the record 
and judgment of the Bunicipsal court in « firat-olage onse in 
eontract. The action was brought te recover the agreed price 
or value of certain printing done by the pleintiff. The 
statement of claim alleges thut the defendant, J. P. vetherby, 
and three other persons, “doin business as Avalon Beach 
Company,” owed the plaintiff $2002.40 “for labor and services 
of the plaintiff vefore then done and bestowed in and sbout 
the business of defendants at their special instance and 
TFequest, ae shown on statement hereto attached and marked 
"Exhibit A,*” and fer goods sold and delivered, "all for agreed 
Prices and fair and reasonsble values" ond in the like sum for 

| money found to be due upon am account stated. The attached 
*Bxhibit 4" contains twenty-six items, the first of which, 

da Oeteber 10, 1925, iz for 0,000 Frowpect Cards #78179, 
$3 e” and the last, dated Movember 13, 1928, in for "400 








‘Msiness Cards, ete. #78711, $500." There is no allegation 

| m the Statement of claim that the amounts so stated (and which 
Saregate $2002.40) are the “agreed prices,” or represent the 
and reasonable value,” of the business eards and other 





| Pm ny Cn Mies | bg) VR AeA 


CLO OF MUM 4, 








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i 2 pie ‘ he IsSIwi Yor sed wy vi Fe are 

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a i: om ) Kw pe Ptabpixe sm wale cgay aN et fide. 





.7THOOG RUT 4O WOTRTGO mir eee woTte on 


aR 
















Rignes ake wokwou tot qu punked serse - thew eta? 
Is fk sane eenke-text? » a dupe fog tokuail alg te saps 
| eoisg onenge odd AO VO OF, ot diyvord saw molten oat om ps 
| ont .tUvatalg od ya omen pabiatrg alesis te ® | 
¢ Qrwretite® of «fh dtnabieotob odd Sacto aegeiioa mtale to tn ai 
Bs feast molevs an auoutaud pulek" ,anesteq rote vous he 
| sonivens ti wodas 10%” Cds ROCKY Yresmbaly ents ‘pew wk ™ 
| ; tuode haw at bowesand hae onob maxi exolted Bavtiony 
fea evandont fasosga whods ta ofneameted to oseal a. | , 

hodtnas ne beiioadin osered smema tote Ho awoda bse e 
hooumn cet She” ghevevileb bax biow abooy 102 ome Sed 3 
Tot sare eat one ech bees “ynwkow oltnmenaes ime het bas wos 
bortoad sea aes ohadede imwones Fey mogu oud o oe muro ; 
sdotely 19 dent? ome gcmode xhooyiaewd ankasaso %, ane bo 
PT ITS whtad Fooqnes’s al werk ah eset, Ok rodoroo 
OOD" wh ak »Q00L «OL xedmovelt booad toad ome aa! 


tedde ane obune soomisws os 0 Meouter sénnonses ‘ban 





“R- 


printed mtter specified in “Exhibit A,” or referred to in 


the statement of claim. | 
Of the four defencenta, omly the defendant J. F. 


Wetherby was served. He filed oan affidevit of merite which 
parports to deny, categorically, each of the allegationa of 

the statement of claim. After apecifically denying that 
plaintiff ever did any work, furniched any materials, or sold 

or delivered any goods to him or to the alleged partnerehip, 

or that defendants, jointly or severnlly, promised “to pay . 

the plaintiff any money whetever,” the averment as to “agreed 
prices® ie alse specially deniad im the following terme: "*"Thia 
effinnt hus never, eithor slone or jointly with any other person 
OF persons, sgreed upon ony price or prices with the said 


complainant." 

It appears from the evidence that the four persons 
Mamed as defendants are, or wore, partners in & real extate 
venture in Flerida involving « tract of land neur Pensacola, 
eallec *Avaion Beach;” that they engaged the services of one 
George L. Priestedt, a Chiesgo real eatete broker, to sel 
their Ploride property on commission; thet for that purpose 
: retained the services of a number of other brokers or 











my that 211 these brokers were onlled (or called 

ne vee) “salee managers," except one, named Frain, who 
the “sales directors" thet Friestedt rented an office in 
c amd d1¢ some business under the name of “Avalon Beach 
(Mot Inc.)s" that either Priestedt or Frain gave all 
, re for the printing that was done by plaintiff: thet 

i printing consisted of cards to be used by the “sales 
gers,” daily report cards, introduction cards, vouchers, 


a A ES ee oan ars em a inne et 
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Bi os bounohor to %,A Shaded” ml vortinege 16330 besa 
smbele Ye Cone 
+f ot saebae 20% ais vino »admabaoteb mmmk edd 20. 


tesa, Ray nin ie 
“oko sfhese to ¢ivebh te wa Sel? wel arneisnserns 








sad? grbysob Videos ty: vege week nathale 0 ms ar 
bles 1 satabraton See bode heey? ave Yae bis ove state 
sehieromiing Aepecia ext? ov To mid 09 wbodg YRe hetsy 
Wate os" beakmong eVAhoteves | 20 Mntat sntasouo zen set 
baomga" 05 on Snemtove sald “oxewe dose eon ur Bie vm 
stat" tamsod andwolio® wate pt botaes Papen, sate 24, 
soateg cede yam ad hw xdemtol oT arose. xentte, steven fig 


bina etd Atty esokeg xo, soeeg Vain sass POP, heh: 


RS IRE” GNRIGR IONE. Seni “stanasaten 


3 
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ws 9 in at vera oxow re a 
age ot 4 an 204 ‘ tO 401 28 secabaoteo, on bam 


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bE Bie SAE Met) paphos 
ktoo es vtoterd otatee aor enone a Rearend * 
var Sigh og 








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a, Die: 


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“\exedouov aban ao 


aoSe 


letterheads, recoipte, contracts, and « forty-four page 
illustrated prospectus. Y¥risstedt testified that he hed a 
written contract with ‘etherby and one of the other defendants 
as to the sale of the 4vaion Beach property, but that contract 
is not in evidence. He also testified that on October 45, 
1925, he showed Wetherby the proofs of some of the printed 
matter, that Yetherby objected to some of it, but said te 

“go ahead with it, ae it was the proper thing te de," and 

that after it was done, he, friestedt, presented plaintiff's 
bill to Yetherby, who refused to pay it, esying he “wae not 
responsibie.” There is no evidence of an account stated. 

It is contended by defendant thet the evidence does 
not show the value of the printing or that there were any agreed 
prices; slse that no authority is shown on the part of Fricstedt 
or Frain to order any printing for the cefendant or for the 
four defendants “ho apparently did businees under the name of 
Avalon Beach Company, of Pensacola, Yloridn. As to the latter 
Question, while there is no direst evidence of any authority 
from defendant to give such orders in the first instance, there 
is some evidence from which a ratification of the orders might 
De inferred. Ye express no opinion ev to the weight of the 
@vidence on that point. Assuming, however, that sueh 
ratification was shown, it wan nevertheless necessary for the 
Pleintiff® to prove thet the prices given in "Rxhibit A” were 
@ither agreed upon or that the printing wae reasonably worth 
‘the amounts stated im the exhibit. There is no evidence 
Whatever on that subject, 

Plaintiff attempts to overcome thie objection to the 
fucgment by the contention that the allegation of the statement 





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ym gM 
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ad btew aud att ‘te sive ved beavetdo. vinedsor hskogl ane 
— "08 e@ week ls romerG, ‘est oow tk na , as. a 
atttiontatg sasnenorq 1 Hooduetat oot ‘eed ann Bete dye ae 
tou aes" ont amigas sak we os deawiox ste Bhan 


A a ait 






















betas sausoon Re *e vousb.ive om at oxedt ve 
‘peed sumeeiv9 ets todd dmadaeted ww bonmesees uk n 


heamye “e ‘oa ete? sieds aati a prions awa te eutay oad veda 9 ! 
theteotxt to $20q add me awode ub Wkiediua om dad ente ‘enek 
oda wer to eunhaston oats ‘cot anténteq A or so ome 

‘te wena ous tailed aunatand bie Usnoroage ody _staabaeted a bs 
wasted aus vs e sobbuort atanounot hod ’ pee aod sone 
wit redsue bnew te nonoh iv» tewrdh oa al ‘ommta ‘ede tod 


g PRATE ¢ Ad 


acas s pomodant dent wal? at aiobre dove ovis 3 bry tars 


xt ¥ 





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a venod acteurs tnkoq tacts 
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pity e Muah 8 at 80. 


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ah PCa DS: | 
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| bie 
of claim as to prices ond walue is not denied by the affidavit 
of aerita, and therefore, under a rule of the Municipal court, 
was not required to be proved. ‘There ars two ancwers te this. 
One is that the rule mentioned i» not in the record. The other 
te that even if such a rule exists, the affidavit of merits 
. denies everything that is alleged in the statement of cluim, 
end the denial is sufficiently explicit te require the plain- 
tare to preve that the smounts claimed te be due were either 
; “agreed prices" or the “fair and reasonable value” of the work 
“done or mterials furnished. For the want of such proof in 
the recerd, the judgment must be reversed and the eause 







REVERSED AMD RAMARDND, 


| Gridley, FP. Jey und BSarnoe, d+, concurs 


Bs 
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penne Yo Mebane’ od ok Wegettn of teat  ganareteve'es | 
amtoly ait oxtupos of stoligqxe vhomeno byte’ ak” toktoh ae 
euttie vase ont ee oF dombelo etambas emt Sond wren’ t 
AioW OMe Yo ouEOY BEGaNosvo% Dad “RAR” ‘om x0 *e00ug) 
we Teety Mowe ty daow oss wOt 
peman ote: Sah nenaonirne Solan aRREE Se 


he aRHt) a dick sd A ath st whem end 


ia win angel mee hae a he sug git ye, 








(an 

















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wt ai 


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| atieone ooh senntnd ban ook * i 
Be ae Meee aa e bl ws nicl ¢ jamb | ww 
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HO RN, og at sane rahe on 
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ety Bvt "es F i) ete a) ih hee 
a AER COR kta See | Pole” ees eosin mits y 
ANA AIEE) y EDS aS ay aa a 


\ somhites ‘tout He, 


M44 = 31274 


THE POOPLE GF THER APATE oF 
TLLIBOLG ex rel. ASCHER 
TERMINAL THSATRS COMPANY, 
@ oorporstion, 

Appellee, 


Ve 


GITY OF CHIC{G0, a Municipal 
Gorporstion, “ILLIA EB. DEVER, 
Mayor of the City of Chitage, 
AL Pe GORMAN, City Clerk of the 
City ef Chécago, THOMAS P. KXARE, 
City Cellecter of the City of 
Chicago, and Joseph 7. Connary, 
Fire Commissioner and Chief of 
Pire Prevention and Public Jofety 
of the City of Chicago, 
Appellants. 


A#PEAL FROM 


AUPRTOR COURT, 


Gook COUNTY. 


Rae a? iinet tO ig Fine ca ee tc Me Rt Sac tts ee tt 





DA AT IN Re cs 
“rej 


== = \ ; ¢ 


re 2 kt HBelhe UPS 
2 Ane 


MA. JUSTICN PITCH DYLIVEALD THE OPINION OF THR COURT. 


This appeal ie from an order directing & writ of 
Mandemus to issue commanding defendants to execute and deliver 
te the relator, Ascher Torminal Theatre Company, a license te 
Maintain and operets a vaudeville and moving-picture theater 
in the Terminal Theatre Suilding in Chieage, which had been 
Tefused because the Chief of Fire Prevention and Public Safety 
@f the city claimed that the use by the reloter of certain 
draperies in the audience room of its theater violates that 
Provision of the Municipal Code of Chicago which reads as 
follows: “Ho combustible material other than painted decora- 
tions shall be applied te the walls, ceiling or curtain of an 


coe 







It is conceded by the pleadings that the Municipal 
forbids the issuance of euch « lisense until the chief 
fire prevention and public oefety and other city officials 


L first heve cortified in writing that the room or 





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ye ce eRe 
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seanaen aon come 


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pena. Ay ag 


TOS nen 80 anes aRY QravEa WOTEe worradt Py 


te ther satsooshs, xoWem mn moxt wt Leaqqa ater, adie 
“eviich baz eigoexe af nimohao led sntbaanaes, eanee OF 
Oo? eameski « «yregeno wtdcostt Lomissre? sedoaad stotates a 
aedaedd eamdolqegntvon one olikvebsey © otaxeqe baa mt 
weod bad detde yogooids wk grkbltod extead? Lamkase?, | 
Yletal etidv’ bas mokinoyert ext Ym Iekdd ond oummnod be 
aistzon te rddalet old yd om aeld J acta bominks yas oe 
eid anteloly tetaed? «dh Yo woos vomeiine ods me bi 
an ohees datdw egegtad to oad Leqtolmuld ond Yo a | 
saxoo0% betateg aodd reite ialtotan sidktawdmos a" sme: 
ao 26 MLadxND TO aMbthen yaliuw odd od dokigqa od, ct 
*.¥ 70 Vi omet® to guthhie’ que m2 moot onmel 
[nao tent eds Jad aguthvela add yd boboonay ot a. wi 
relde ons Linu eunols » slowy to enmaumat od abiduet 
aietoltie yito reddy bas Ywtas olidug hae modsanverg, @ 
zo moor ody tod? yutddaw mk bodehero overt sax? 4 





ihe) 


place where it ie proposed to operate such a theater goemplics 
with the city ordinances. It wan stipulated thet the theater 
building is a suilding of Ulane V anc that « number of “drapes 
were hung in different places in the “augienee rewm" of the 
theater. It appeare from the evidence thet these “drapes” 
were mie of woolen cleth saturated with ao chemieal solution 
which makes the cloth “flame-proof.” Thie fireproofing is 
gueranteed by the manufecturers mot to wear off im ten yeare. 
A sample of the meterial wo fireproofed was produced in court 
end a witmess applied a lighted moteh to it, which, he 
testified, won the teat that do ueuelly onde, The record 
shows that counsel agreed in court that in thie demonstration, 
"the materis] became cherred but did mot ignite,” and the 
sample so tested, which sppyears in the record as an exhibit, 
apparently shows that result. 

Another witness, who was a chemical engineer and 
tencher of industrial chemistry «t the Armour Inetitute of 
Technology, testifivd thot he had made tests of fourteen 
Samples of the same miterial at aifferent degrees of tumperature , 
te see whether the material tested would become inflammable 
Or ignite and burn by the prolongee appliestion of heat, and 
thet he sfterward subjected the same semplee te the flame of 
@ Durning mitch, then to the flame from a city gas main and 
finally to the flame of a Bunsen burner at « tempereture of 
2200 éegrees Fahrenheit, ond thet “in no oase did the samples 
of @raperies ignite or burn by heat of ite own combustion," 
Gd that the flame ef the Bunsen burner "slowly carbonized 
) the seomples, “hich disintegrated and fell te picees."* 
eharacterized the samples as "fire-resistant" to all 








fires," ond “flame-preof* at the temperatures 


SSeS a ae eA 





 qehtquen Tetendt @ Mowe vdeo Of bonoquey at at oredy woatg 
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eds te “moo gometiun™ wd 2k envotq’ sauau tty mt ‘and: vow 
"seqaeh” ened Goat sonedivs oh? mer?’ BEHOGEG an ‘eoeaeas 

ao séaton Leoteeds a dtivy bataurten diele aeleow 2 ebam oy « 
(BR pM Roeregomet okt *s towsg~emenk a” tote Lill sede 
sateo mi Ve wnew o8 ton ecoxubo nae wt 























“fuppes oft shen eh hownss 6h a wi . 


eid bate "<odhays com bth sud hoveuty omaned Labredam 
sete me oe beooet odd ak ataeyga. so haw sboteod hal 
 atiraan” toatl owodls “Lhsew neil 
“paw sbomi nie ‘io bint’ « esw oat" sdend Pe vt nt “" 
“ws iat Recnt owes kas oa extebndds tadidemnad’ 2b %aeiihel 
penturet te ables aont eat od PUKE rr es 
sshenienaning te Udogob sueawTstd Fn Lhbthe ht Citnw ree ire 
Aidonast tek ekoood Bibs hetins Laraidaa wily cate 
hen’ Fak Ww" nd teaoE RGN bepnotony tuft ye aiid ban\b 
to emt? oi? 0 gulqmme warn ‘hdd debe babe” suns of 
hore tetova bog Oto w ott estat oda oe” ‘ebitd” 5 bd alk 
te setetegmed & to tomend inna Sto omelet ond OF 
wSiqune siti Bhb dxhb oe ME” dealt Wan sare sons 
* serioudues awe eek te! Siro eo ania” to wdboge | 4 
seutaveres yiwede” sated netaunnal ehritadinuni it th ; 
“Nasobte 09 Eth baie betenpiodt of 
kie'od *tnpiotest-wnkt® ee wedge 








indicated. ia conclusion was: “Im othexy words, the mterial 
is noncombustible.” 

' he chief engineer of the Fire frevention Bureau of 
Chiesgo testified thot he dic net regerd the worie “combustible 
material,” se used in the queted section from the Municipal Goede, 
as including material thet “con be mode soninflasmabie by 
fireproofing,” and on croes-examination testified that “the 
real objection of our of ice downstairs te the lusuance of 
this license is that «e don't consider drapes of amy kind in an 
audience room can comply with the ordinance.“ 

Defendants’ counsel inwiet that the ordinance forbida 
the use, in the audience room of a theater, of any material which 
is inherently comburtibic, even though such material has been 

Made noninfilamvable or noneomoustiblie by fireproofing it in the 

manner above described. Putitioner's counsel contend that if 
any material is ueed in the audienee yoom which iv in fat 
Roncombustible at the time it ie used, whether maturally com- 

. bustible or not, the ordimamee is complied «ith. The trial 
Gourt evidently took the intier view of it and the record shows 
that he considered that it wae olesrly proved by the evidence 

that the material used by the relater was nencembustible in fact. 


Counsel for defendants point to another part of the 
| $eme section of the Mumicipsl Code which permite the use on the 


‘Stage of draperies that have beon treated with paint or 
‘hemicel solutions 20 ss to wake them “non-inflamuoble," and 


thet if the city council intended tht such materiale 










be used in the sudience room, they would have used 
language im the part of the section of the code above 
a. Thie argument assumes that the city council used the 
) “inflamuable” and “combustible” as hoving different 


dakwwdea od ,vhvor waite al’ tmaw modem hegap: 2B joe 



















ee) wooust metsuovoss. onal, oat ko gonalgne tokdo, edt > 

sldiiasiwes” alwow ats deeper Jam pkp wet dott BEER Gee 

abou Kogto seus Ot? work moheoon betosp odd Ki. beee aah sy: 

Me Ghd ngunligings. ets vd mee" todd Labsedou - 

ait” trod WOhLEleed MOLMoRinoxvomagte Be Baa M4 

3 opaaweet eff 22 ackataswed co. 9.au0 2 medteogse £ 

wiauee {tte Te vege) toblenes t'aeb_ oy dams ad eomvons: 

eenemtage ot sty Lamon neo meonveoited 

ehieue apsmntaxe oid Gadd Sodomk Loummge twsambaw eds) 9 
sioidy Lakundom ye 3e stedaeds a Im wet eOmetiee Oe Mh «OMe 

Kood sol Lalwedan shige dewatd wove .shdhtonsmon Lm 

aed md 24 ymbioommert? ye ekdtiancmoonen zo atone sis 

th boss stoteon deanog atxongltidey ,bediseqes owns qweae : 

dont ad ak dydtw awer oomehone oat) ak Doow nk Aodaotins 4 we 

arr) Ukeutan cedaoae slioas oh Ak ouks od dm ebecbequdan on 

faked ofY odd te seliqnes wh somo hoso ads ae 18 & L 

Avode Duozes eal! hme 42 Te wade xesdat ond soos, steed a oil 

| eaHnbive Ons YS Dovene ThtHALS naw #h fodd RoTObLeROD Pd sath 

edost ak Ad Rennteam otente now Retsles att Yd wea Lash a des std 

ots te Stag xosigone of fates admebneieh wah siitcnten 

galts@, ont ect eAtmung dota oheo LogRokmud od? Xo, m0) 

MO tebeg aby bodpord mood ova teat gebae - on 1g 

dae ",okdeomatrat~mon” wad orton 9% 0, 08, snp40kin, de , 

“phakes gam owe a oul be pmodne | Adgnaee. a He, Racal FA doe spd 

ase oved shew yaks amos wasn kas ald mk sume 0 

oveda #308 add 20 metiges el? 20, #nag. tt ecenmeneetste ans 


Ae eee 


ord bow, Etoaoo eee vite Sealy Soya 7808 
aness 2225 atv aes wedges sole bn 








-4- 


meanings, while according to the accepted definitions the 
words are practically synonymous. The ordinances must ree 
eeive e recsoneble construction, an¢ we think the construction 
_eontended for is not reasonable. One ef -ebster's definitions 
of the word combustible ies “Apt to entch fire,” and the fire 
department engineer used the seme Gefinition. The evident 
purpose of the ordinance wan to pretect the public against the 
use of materials in the audiences room which would be apt te 
take fire. It is not shown thet this purpose cannot be 
eccomplicshed us well by the uve of materials which buve been 
meade fireproof artificelly, se by using materiale which are 
Amherently fireproof. Ye agree with the trial court thet the 
@vidence clisserly shows that the wmmterdals in question were 
Moncombustible at the time of the application for the license, 
and whether tht eendition ef the “drapes” was naturel or 
artificial can make no difference, in our opinion, in the: 
application of the ordinance. 
The judgment is affirmed. 
APYIRMED » 


Gridley, Pe deo, and Barnes, Je, concure 











| 
i 


gate Seale atlas Labed wilt Arie ese OF Roongeet 





‘egy eters ial tap edqovea at? of gatvaoous wffde oegoidona . 
~9% Sawa conmentow eT sanomyumongs Wifeoddsdeq eracebson 
ww ktouwree ces add idkeld ow dae .melsogti ames wl danoarar 8 ovkes 


‘goo ktiehtes a*vetade! WoenO seldancanot dom ek aed bobmediaee 


“wet itt hae “, 2d? Medan’ os sgn” tak efdliaudmog: btem add. ‘to 
gagovkvs ot? .aebtialtes cena oat Seas ceemtgny samme 
ote’ Jucteye vikeug vid Pooterg oF are’ Somimtbee UetecRow : 49 
oF tgs off Diuew Molde aor ooaekbus oad mh SkaLaebam Rea 
ba Jonone saegeng Glstt Jord sworn dom ot 8h. ah on 
eeod wrad doidy atabesdow te ean ante go diew as 
ets dette afdtcotme gakut yt es Choa rthses Moorqort? | 





















 ptew @ekenarry of elelvetnn gf gone eves qh wee ogee 
‘eemeotl oy t8Y amlseokiqgy etd Ww owhs ode so ulddoun 

0 Ltwdae enw “neqenb” ed Yo ao lstbawo tute cee 

eel al yadintge ago cl «womens TEL on exem mam \ 

Sopra. / ge 8 pone Lose oats te ei 

— eoarrk tte ak semmgowh ea) 6). 

SRWMAI ERE: co Sek, oes Bowe ALavteantng er, iu 

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as Mey a Gye. Ne ira tras eit FEES eS ibe: rt 


BES it’ it a eee IY ° 4 Rian Pe Na os dai ue NAD nea: ie i die RY 
aia Bie) REA A All AASB RRR al RR OT eR 
, i r i Ms es haa) 
Nj BT a) AR ol Ag 


183 - 31283 


BOLCOMS & HOKE MANUFACTURING 

COMPANY, a eorpor«tion, 
Appellant, APPRAL FROM MUBICIPAL 

Ve 


} 

; 

G. C. ROCHE, Be Eo ROCHE and 

T. Re ROCHE, copartners, 

trading as Noche Uren. 

Pharmacy, CY 
Appellees. Ay 


COURT GF GHICAGD. 


= Silke; wee Ser Ge Wy 
MMe TWSTICh PITCH PRLIVARED THE OFINION OF THE COURT, 

This appeal ie from a finding ené jucgment aguinet 
the plaintiff in an action brought on « promissory note 
@xeouted and delivered by the ¢efendantse to the plaintiff 
for part of the purchase price of a popcorn michine nola amd 
delivered by the plaintiff to the defendants, The defense 
was ® total failure of consideration. 

. The evidence is not contradioted » One of plaintiff's 

‘Salesmen called om the defendants at their drug store in 
Chicago to ee11 them @ popcorn machine. lefendants were 
interested and asked the salesman whether, on account of the 
‘Soming laws or anything of that churacter, it wae necessary 
to have a prredit to operate the machine on the sidewalk, 










‘ 


thet they hed no room in the store, but must opernte 
outoaide. the enleamun anid he umderstocd a permit was 
eary but he would ascertain. Seon after, he returned 
the plaintiff's sxles manager, one Kirkland, whe told 
mts he "hed been down to the permit department and 
out we could get » permit out there," whereupon 

ante gave Kirkland their written order, on a blank 


rn for a machine to cost $697.50, payable $75 down and 





& Ko.’ ee 8 seemitoags . 










hes 


i “bao BUOOR i “4 MDE A 1) 


i t. 
ig " ; nae Sat aac Se pon 
* ectawro. coo “THOR 4 ses 
TRY det to kteraytes @ | a 
aero zm ox Am { sSaatcogah : | og 
va ae aA he Kite a a ee Li bh a 3a Aone tees ay: 2. 
il un Mi 109 il ¥ | 
Pee Raich” Si ae 


ELOD » 
sore edoost Bor. 


ie ee a we 
- Kk RIGO BAL: KG WALEItO GR. CaseSLeN OSI SOREN os 
feakano damming dar gukdat? a mor’ ak tabiega WAdh oo! 6OH 
atom YRMelaeg BAe toyed Rotter He ma Vitembeky ite 
“ikea ads OF adeunbrwtod Os ye beetew Le! bee: BM - one 
bas O8be ontdbom munca 6 Ww sebrq weartoneg su to'e 
Scone heh wee pao oity oF Yeksmtaty’ ond qe 
smo kende komen $s onsenaraiinin 
e'Ytivalelg ‘te vad sbedpthaxtaon Yow Wt vbieobtve batt , 
et cutee are ato do woe onethe ‘ony wo NoLthD moms, 
stew ainabse tell . oinisonm ranged ® maxis iiee od 
gt oO tomeese ao ,eutedw eameelme od eden bate pose 
ginensbon caw ot atedoetede ywltd Yo piberyan ae Bi a 
vitawehie sf mo omivioan ond uterege of ttarog w vad of 
Stereo Pom dud ,etose wd! ak moor om hart would brane 
Sane ‘thorseg s bood exehaw aa disw omeotow ont ote 
howiadex ost OP de woes «akadreoed biwow ‘om due” os 
bet atv o evade 2 ‘one, Ye¥enen estan beth por al 
Rain puiaibcoun’ dkexeq vd 69 awed sod bind” eat | ‘ro bece 20 
) Aoqwoxede ",oxetd tue Ylang « Joy bkvoa ow bia 
Anald m me ytohvo mead haw wheels bantitkt oveg & ° 
bere mwob 800 oldwgog 9O8eT¥8e gneo oF ombstonn sear wil 





















the remainder to be evidenced by their note for $522.80 
payable in specified monthly payments, secured by « chattel 
mortgage on the machine. Beiltheor the written contract nor 

the note says anything about «& permit. The machine was dee 
livered to defendants and used about two weeke whom their use 
of it wae stopped by the police. Thereupon they mode an 
application for 4 pormit, ehich woe refused on the ground that 
Gsfendante’ drug atore was "im a residential district.” It 
appesra further that there ie am ordinanee of the eity of 
Chicage which makes 1% unlewful te seintadnm upon any publie 
sidewalk in the city “any fruit atend, lunch wagon * * box, 
bin, shew case, plutform or any other arrangement or structure 
Ter the display or sale of goods, waren or merchandise” uniecas 
@ permit for the same shall first be obtained from the 
- Comaleeioner of public works. It alse RPPOALs that ag soon 
‘Bs defendents learned they could net get & permit, they tendered 
‘back the popeorn machine, and whem plaintiff refused to receive 
it, sent word that it was held subjeet to the order of the 
‘Plaintiff’. It has never been used simes that time. 

. Plaintiff etetes that “the principal error upon whieh 
‘this appeal ie based is the edmiselon by the court of evidence 
in support of the alleged orvl agreement, which contradicte 


“She written contr«ct of the parties hereto, and the acceptance 


the court of such alleged ornl agreement ae the true sgree- 










of the portics ." There wae no error in admitiing avoh 

or in accepting the uncentr dicted statement that there 
# 6n oral agreement whieh is not contoined in the note or the 
! Pritten contract. The statutes of this state expressly permit 
m @efenes to be mide. (Cuhill’s Stat., Chap. 98, Par. 10, 








a 
eee 
= 





O2.ac#) vot atom tied? ye beomebive od es tobelemew wild 
kettle o Yl Bwumede » ai meuryay elidemoet deltisege mt barman 
On Guessmwd aediicw ode codee® omtdena te i an 
“ph tym onitonn ofS .tioreg a sods “umber ae P 

oan skid sad aoow ows swede douw bao udeadad ten O6 rat 
eo Ute yaad cequeriedt «Oot loy ost? we boageve, : ie » ee 
dads Remorg vad ao doaton wow Hodde «WRATH r0 Bw sileit « 
sf “.goRisekd Latsootitows # sit" oew oxode genb emiiebil 
to yko eae Yo eotamtixe me wt wieue guete baonshans vidal . 
atkehy ae goku nentebes oF Ketwokie 3% doainh obaw eynilie 
vb © bie‘ oaa alae roa thon wine ot ttewo ste 
















ee ‘a 
hk ta ‘gate ef Vasttiow saneniiadh ne mn 
hoteband? qgactd (#2areeg a d6yy Sew wend! yeas! semen’ i a vi 
debeoet o¢ bea toe VTNmtety NbiMw edi «inital recog ote i 
edt te rcobte’ wie 69" “rr ‘aout wow ae ‘tate Leal ciate 


inti) ut yaks seca im ihe! ‘y we et vi 8 ‘ia nee 










 eouebitnw "te sire! waht iS Ht Rach wake it detent 
atodhwehave deliv’, suemswege hive Gugettn oth’ ta: ot 
wooing ‘orl? An 4. oheuEd sahara: ‘wale “te tobe moe 
ee ee vega nana xto% 
ait: ayant rb eeheeie oar! ainl eit tee — ; 


-3- 


entitled “degotiable Instruments." ) 

In Great “eatermn inee Gos vo Heew, 29 Ille S72, an 
action wes breaght on so promissory mote which stated an its 
Pace thet the considersiion wee “for the esle of & lease” of 
an office on South “ater street, Chiesge. The defendant filed 
® special plies alleging, in substance, that most of the con~ 
sigerction for the mote was o pretended sale of the good will 
of the businecs of an insurance company which thet company 
aftervards wrongfully refused te permit them to use or onjoy, 
Whereby defendents lost the whole value of such good will and 
the consideration of the note to thet extent failed. The eourt 
held that under the statute above sentioned “the doer is 
“necessarily thrown wide open to digclose the whele truth about 
“the Gonsideration,” and that it was competent for the defendant 
te Piesc end prove thet the note sued on was given, not for the 
‘Qale of the lease of the effice sentioned as stated in the note, 
but for the good will of the insurance company, and if such good 












i wae worth enything anc wae the true considerstion ef the 
anc the defendant dic not reeeive it, he was entitled to 

‘B reduction to that extent in the recovery ogsinet him. The 
fourt ssid: “It is impousible that this statute can be made 

fre tive im any othe: way than by reeciving euch proofs; and 

im receiving them, the olé rule, that «rittem contracts cannet 
pe varied by perol, becomes, in #11 such cases, ineffective.” 

te the some effect are the cuses of Morgen vy. Fallenstein, 27 
Bt * Bly 32; Gage v. lewis, 68 Ili. 604; Mann ve Smyser, 76 
“TAL. 565; oir vy. Plotomeyer, 83 111. 4205 Taft vs Myerscough, 
e ’ TAL. 600, and cabo y. Himett, 178 Ills Apps 459. The sume 

" le has been upplied «here the alleged failure of consideration 
ef the failure of the article or thing, for the 




















adi me heaate fieide ote ysenetensy a 5 Adee ont i 
i “eaaed = te peice sit 263" enw saiserabtanes aula. Sst 
bagit gagbaster ait o0yretad etaseie xs308 Anes 0. 
mise, ost. 2 dae sactd seonetedin wl vgabgolis. sale Le, 
ARES Soeg 84% We sine: de has song a 6ge atom oid. 20%. Bee. 
Wiwanen saslt dotate qungses eesiriyent ae Te seated 
eweiae #6 oust oF sma dieriog Q3 Seagte: vila tgneas sbgenss: 
ise Liaw beog dove Xe sulsv elesis edi deol ainehaet 
jeueg eat .$9Lie? duedxe decd of ese ed¢ to meiéas ° a 
tt Seem ede° Bomettmen eveds siesede etd etm tat 
aueds tdatd alese sdg saaioeth ef gage ehhe serena | 
sashasles ef iat smedeques caw 24 sad? sna ",aed30 
ad? aa% com ganvig sew SG Seve Stem es 294% averg bus S 
eetag ad? eo Satede as Samsldmes eehYie si te veaok porapens ha 
dons down Th one qumageon epmanumad els te Like deeg odd Ot 7 
si? 0 molsotabiages oua§ wie sav Sue yebdiyes disor ean | ud 
et heksidso aew of ¢i4 wvkogo: fom Sk) amnbasted “san al 
aa? said damiogs Yuoreses edd at énedae sesit. at, mone : 
eae 9G Hae oiuéeds atid tote eldiqvoged ok J1* abies dam 
hee qeteosy doe gabeoaer xd aadt yu secte yas wt aviten® 
donnae aivexdaeo mediiay odd ,ole: Me odd madd 3 wal 
‘.evkzgetieah gaeang deus fia al geanesed gloteg 








casa oft 088 salle un Lave, peemepepen ae 4008 =m | 
noliaweblames Ye emis? bogedis ess exe idiheipadipeajebie 
od ue? «gatas xo eisiizs oct to oum£let od? Ye bedetel 





whe 


purehase or payment of ehicgh the note was given, te comply 

With some stipuletion, agreement or representation made by 

the eelier to the buyer. (Seerg v. Williams, 14 Ill. 603 

Bryant v. jeare, 16 [1s 2893 emeneed 22 ILie 3133 

Gertel v» Sohroedex, 48 111. 1333 J ump BO TLL. 277.) 
Ae this ia the only alleged error discussed an 

Plaintiff's briefs, the judgment is affirmed. 

: AFY TERMED » 





Gridley, ?. Js, and Bornes, Jo, concur. 








1? = 30951 


B. Le SCHEIDERHELE COUPARY, 


® @6Frp., 
Appellee, 
APPEAL PROG 
Ve BMUSICIPAL Gort 
scaaes M08. 0.. os GF CHIGAGO, 
® oom, “4A N phe 
Appellant. FD el 


Opinion filed April 6, 1927 


Wi. PHESIUVING JUSTIC’ TAYLOR delivered the 
opinion of the court, 


On September 18, 1926, Dolese Gres. Uo., the 
defendant, sent @ #ritten proposal to E. L. Scheidenhelm 
Gompany, the pisintiff te gell and ship te it approximately 
16,200 oubie yards of crushed stone from Buffalo, lowe to 
Phitton, Illinois, at $2.63 per net ton. 


Pertaining to the fr@ight rate and how it should be 
deternined and paid, the written propesal senthined the follee 


ing: 


"Se understand the present freight rate is 
$1.68 per ton, and our selling price is based on 
this rate, if’ the freight rate ie greater you sre 
te deduct only freight on the tesie of above rate 
should the rate be ieas, we will allow you the dif- 
ference in the ae ene. rate in addition to the full 
amount of freight 


It slso contained the following: 


. *Prices are yet eure ¢,.3.& QR Be de livery at 
og = ee age sl 
t Og SS ae 

paid eas balis to be sent us promptly for credit,* 


ey 


) 


4 
Ae 


3 
\. 





eyes Si 
ser 8 fingh polit oumtao a in 
Pe ae i” Berne Oe gee es ee 


ent honevt lot aoatat SOLTHVE outereant ma 
Pxu0e cd Ye soiatae 








eat ,.088 .s088 sesied .O5@2 ,8f eodentet 
aietashiete? ,j .% ef. eso ates. sori iee R. sae lad 
“Ustanteorags a *. see. bate ifee ot Mutesal oe: e 

















a2 tee xq cos te sosontsss a: 


og biude a2 | von ns ones Fosgnent ase ee —_— is 


fentgire bre sx wliies a Pog as ; 
e gibere ot Lsabewricn = — eae 








fe 


On November S, 1820, the plaintiff wrote to the 
defend=nt requesting it to proceed to ship five cars per 
Gay of the stone until further notice, In that letter the 
Plaintif? steted, “we understand at present freight rates, 
the price is $2.83 per ton delivered at thitton.* 


Pursuent te that proprosel end soceptance, the defend 
ant ‘delivered te the plaintiff about 75 care of stone, on which, 
tarough come sietake, the railroad freight was charged #t 
the rate of €2.70,{and which the slaintiff paid) instead 
of 91.66 per ton. 


On Gecember 27, 1920, the defendant wrote to the 
Plaintiff as fellows: 


*Gonfirming telephone conversation with 
your HF. Gawit, we wish to advise that both 
G8. & & snd c.F.1. &@ P, Ry. people today 
advised us on ‘phone that the eerrect rate 
en crushed stone carloads from Suffale, Iowa 
to Whitton, Illinois is $1.68 per net ten, 
fhis rate is earried in C.H.F.e Pe fsrifft HO» 
Bis24 - i6C 10403, item No. 938 =nd cHEc. 
Goncurrence No. 6467-3, Sy referring to our 
quotation you will note the freight ellowance 
1 gon upon sas £1.68 per net ton; therefore, 
if you will mnke « cherge agninst thie company 
on the “asie of £1,668 per net ton snd aub- 
mit sll your freight bills we will be only too 
glad te take the matter up with the ¢.3.84. Ry. 
with a view of obtaining ® refund, as we roughly 
estiuste shout seventy-five (75) cars and probe 
ably at about $50.00 2 ear shich vould emount to 
something around $3, 000,00, 

"Upon receipt of this check we will either 
endors¢ your secount, or — your approval we 
will credit your sccount with euch refund throv¢gh 
claim as we aay rective.* 


The pleintiff heaving paid the freight cherges 
te the railroad at the rate of $2.70 per net ton, mde a 


Claim sg@inst the railroad for the difference between 
$2.68 and $2570 per ton, and as 5 result, the smount of 






ro 


ae 


oat ot ofete tiifaieke of osek # wedwoved mo eee 





2eq see ovit gids ot hesscuc of ee 31 pateseupet ‘ta8 ae’ 


ect testet tad# ak seoiten sedgaet Lifes encte off te = 


seeder Pitz tes’ fasestq te ied se oes: oe * _betata ‘tiatere 
* "anaes Ae ‘ta harowl fab not taq ze.8h of arta tg 





Anetch od¢ yenstquee: bas Seeovete sad¢ av thesett See 
teida ms .ese%s to stag 8T tucde *eigndaly. alt o2 elie YY 


os bagsede new Sdglext hoor! lag add ,edstein exes tiguos dt 


hustaat (bf2q Yiidaieia edt doide bas) ,O%.S2. te eter a 


eae BF ieoxs fashesteh = 49 eoser ats rsdnv0 e) tg aie ene 





ithe 


es 


tes asiteers es oxodqe fos 
> ited dete sodvba af dete om . 





fave: ae % & st o%- 


os Mitten 


7 fut 2 
; baw Fic ioe | 





aSeo 
the exeess charges was ultimately pald to the visintifs, 


Subsequently, proceedings sere instituted before 
the Interstate Gommeroce Commission, whereby, as stated 
in the plaintiff's statesent of slaim, end not denied 
in the defendant's affidavit of merits, the Interstste 
Commerce Comeission, on December 8, 1924, granted «4 
reduction in the rate, or teriff, from 41.68 ner net 
tom, to 2 price of $1.10 per net ton, and sursusnt theree 
to, on December 24, 1924, the defend-nt waa paid the sum 
of $2324.03, thet is, the amount which, together with 
interest, the plsintiff nor claigse is due it from the 
defendant, 


There was & trial before the court, with a jury, 
end at the close of all the evidence, the court instructed 
the jury to find the isxues ageinst the defendant, 2nd 
asseas the plaintiff's dameges at $2440,23, Pursuent 
therete, there was a verdict end judswent. This avneal 
is from that judgment. 


The only controversy of substance , ae stated 
by counsel for the defendant in their brief, pertains to 
the interpretation of the words quoted above, thet is, 


*We understand the present freight rate ie 
#1668 per ton; m4 our selling price is based on 
thie rate, if the freight rate is greater you ere 
to deduct only freight on the tasie of above rate, 
shovid the rate be less, we will allow you the 
difference in the freight rate in addition te the 
full asount of freight charges.* 


and whether the words, "the present freight rate,* and 
*the freight rate,” mean the freight rate as allowed by 


Qtientate nit ot biog stent is wae pegteds ngsexs ond 
 exeted betudizent eres "map thamseng sitanpeedes a 


petste se | eeWerads scoivatanco sor sRae) _statexetal ede 

. belmeb tox bas waieto % sneesare srttivaiete 9d? at 

stetevagal odd .stives te fivabitt= «Gashasted ‘ond at 

& Avtarny .ABeL ,8 ta¢esest we .aolcetemed eotemmgd 

: os Gay tay BH.18 Heel .Wivet te yeder od? at Reltecber 

dtie sedtenes wide devomn aff ah se? (8.38868 Yo 

sit Roxio Ph seh et antale vom «Fiabe tela, ” sdaorsdat 
} seis © tbe true aes oxoted isixt = ane oxedt 

bogowttam£ fsue9 edt, somceve eae ffs. %e svelte eat $a bas 

bus tasbasten. ‘eis sentene aemuad oct bat ot tet ett 

teensy, B8,0INES: oa sugaaah att hitntatg ety: feeene 

faaqge alae steanebct | haa Sokbrey * dae eredt 

ee Btep sores tat sort eé 






2a 


batete 2 4 sonatedve Yo yaroventaod fae oat 
ot extadver steted tisdt at dnabaote ede we?! aay 
ete E 
a teds sttede batogs sbtow silt 20 2 : 


GE SEE EF Saat. 
sc ie, meen ae igs ieee OH Be Ban ho) 

ei ese: tiaies? desertq sdf Sastetehee ee 
a ete gan sohay pnt Lien we bas suet weg OUSS8 
e828 erecs te eiest oft we.4 : 
ads isk wells Ikke ew ge 
- gt ia — as. sree PEs 


rd 














yo ee ecm a 


iy - ek 








BR . 
lt Neal a 





ete 


the decision of the Interstate Commerce Gomzicsion, that 
is, 91.10 per ton, or the published tariff rate then 
existing, thet is, €1,68 per ton, 


As counsel for the defendant say, the pleadings 


themselves enke thet the sole iseus, 


The defendent milled several expert witnesses, 
and eatechised them, in an effort to srevre that the rord 
*pefund* meant, in dealing with retes that were collected 
under published tariffe, s repayment ef suas collected 
wupen tariffe «hich vere in excess of the true published 
tariff; that the word *repsretion’ ond the word *reduction® 
reiated to the awerds made by the Interstate Ccomaerce 
Commission in proceedings instituted by shippers and cone 
signees eho obtained « finding end judgeent or decision 
that rates were in exeess of lawful rates, ond rere unresson- 


able at the time end plece, 


The trial judge refused to permit the introduction 
ef such evidence. 


It was the evidence of one Bryen, 2 traffic 
manager, who it wae admitted was an expert on tariff aatters 
pertaining to reilroads, thst # publichea tariff is « 
‘publication issued by railronds, setting forth the freight 
rate upon which they would transport freight between given 
points; that it is a lawful document on file with the 
Interstate Commerce Comuission or State Railroad Comwission 
end is binding upon the esrrier, contignes and consi gnor; 
that the correct tariff rate in effort on carloads of 
crushed stone at the time snd place in question was 91,68 





tet re te ner a 2 se te ot 


i 





and saat Yiseae bade bsg eds 20 pee <oy oft eh 

sie : aot bd Lcmeah a sand gubseixe 

ee POSER —_- ae 
martbente ont eee jasbaster ode we ioranos. ‘a at 


Wott 


seseasatin srouie Kevewos belle $ nated “ er, 
bros att sacs song ot droite ns at amodt | s2 tdowt se 
hates {ros anes fade wosor ate w palfaob at ,Seeem 
““betesfion exes te dasmysqer # eTteet & ‘ile flan “cotite 
desul fu send od? Yo eapoxe ai ofed dotdw s¥¥tad mogi 
taoitouber* ace of@ one Meoléenecet* Baw ond Gadd PYibaas 
autemmot efegetetal ote yf ehem ebtewa ott oF Satelox 
mee ene p arene w Roduditent aguthsagerq i acteatosed 
ssealg bas salt ot ‘tn oes 

seitoubordni oat flare at boawiad Oils flied de Sage “ 






























onto owe: pigs gestion gSOROTs aS YC aeee 
out ihe pre tieinen eH “Tvtwat 6 bh ef tas 
soieeiasop beortiss espe. 








abe 


Bryan Wae asked =hether in eptember, 12330, there 
whe & mening to be attached tothe words, *the present freight 
rate," as understood by shippers generally, those Scoustomed 
to the tasiness of shipping, Thet tras abjected to on behalf 
ef the plaintiff, and the objeetion «exstained, The defendant 
then offered te shew that the sercs, *the present freicht 
rate* were generally known and understeed and accepted py 
611i shippers to mean the published tariffs. the effer 
was refused by the court. 


We have difficulty in understanding bos there ean 

arise inthe mind any doubt ac te the meaning of the vords 
in the paregraph in cuesticn, By the contrect of the parties, 
it is obvious that the seller © « providing that it shovld get 
net, an amount equal to the difference betveen $2.83 and #1.68, 
that is, $1.15 per ton free of anycoharges for freight. Tre 

_-—«s: paxagraph in g,estion wes put im as a sicple formule pree 
seribing not only that the freight rate of $1.68 per ton, 

' with a gross price of 22.83 per ton should be paid by the sure 

; chaser, which would leave the seller net 21.15 per ton, “ct else, 
in ease of the freight rate ceing something elee than 21.68 
per toni it would be charged, ae between them, againet one or 
the other in ouch 4 way that the ultimate result would be that 
the seller would receive net $1.15 per ton. 


In Ligh NelisRs Vs Slosexgheffield Ge., 269 U.5, 
@17, the plaintiff, the Sloss-sheffield Go., brought suit 
against the defendent railroad for the smount of a reparation 
order entered by the Interstete Gomnerce Com: isaiognfor 





Sdgiost faenerg aad eehtOs aft oF Dedoaten od of yatnaem & ene 
bonevascos seedt ,yilerersg ateqgiss 3 beote Ohms es. aaax 
tieded mc of bebeside ase tad? .psdeqide te connieant ad? of 
gashadiet “ee ber fetews AOivestde otf Bae tiifaiatq ed? te 
#igtow? taseenq wde* jateoe oat gate wore od Sexes abe 

‘yd Sorgossé Fae beotershay dae wvord \teciaes ‘or Satins 
setts oe Rhian f idsitan ‘4s see of exeqehde 


"© ttico id et Beiitted 
CAE PRE i ae serbser 


388 nent rod wines ni, perenne ge did eee 
abrow adj Lo gainven odf o¢ $8 ddueh yas bale etal eadas 

| sbeitesg edt Yo toattage at? @  aordsenp gi Agangetsg ect, at 
fgg biveds $1 tad? gaibiverg aw wiles s@ ted? awotvds st at 
283.48 baz 86.52 msended seaetettib e63_e¢ Lampe AEP AP ge 
eet #tyiert wet asegeedonqas te sext sot req S449 ,et tact 

















oa 


Hot eq 83.08 Yo ator Pdgloxd eae fade YlaO foe gat 
axe et 9d Bboy et bivade set waq 88,85 eo selxg seoTy s dete 
eeic tu ued taq 81.48 fon 18liee ett sveel Divan tide greends 
8.6 madi onlo nmistence gated otat tater? edt 2» saan at 
6 a0 fealsge .o8? aeersed o5 .bagss Reesangenincie 
fede a6 Discs th. evssitis oft ttt wr i Hh 








mens 


wsnq atin? stqate 08 at toy iw motteiyg Mt droxgareg | 








~G= 


excessive freight charges, and cbtzined a judguent. The 
cleim was made thst the Slieseegheffield Go. e:uld sot 
reeever because it wasi mot demeged by any excessive 
freight charges, but as te that, the court held thet the 
consignor had the right te sue. The esurt, however, in- 
agmuch as the sult was agninst the carrier, stated, "ith 
the rights or equities as between seller and purchaser it 
had and bag no concern, nor need we concern ourselves 
with thes.* In that ceee, the court pesecd uron the 
phraseology of the contract, which contract after stating 
thet the price of the merchandise was £14.86 per ton, deo 
livered 2t Chicago, eontsined the following: 


"This*price is besed om present tariff freight 
rate of $4.35 per ton. In see the tariff 

rate declines, the buyer is to have the benefit 
ef such deeline, In oace the tariff freight rate 
advances, the buyer is toe may the sdvunce,* 


After stating that the provision in question wae 2 common one 
im contracts of sale, it wea beld that the consignor must 
sue if goods were ecld f.0.0, destination. The court 
further said; 


* fhe Louisville 4 Hashville argues now that 
& sale at the delivered price of 614,85 is, by 
reason of this provision, the le equivalent of 
& sale at $10.50 plus freight; t under a cone 
tract of cele at «2 fixed price plke freight the 
purchaser would be entitled tin ease the teriff 
Pate declines’ to the benefit of *the decline’; 
that @ decision that @ published rate exacted was 
excessive ia the legal equivalent of « @eline 
in rates; that under the provision cuoted the 
purchaser would be entitled, as agninet the seller, 
to any demges payable by the carrier for having 
established and collected the higher teriff rate 
thereafter found to be unlawful beesuse excessive; 
end that, since the refund to be made by the car- 
rier would ultimately enure to the purchaser's 
benefit, no desage was suffered by the sekler by 





a= 

of? ,gneephut « temietdo Sus ,eugrad ddyier? eviensoxe 
gen Sivcs .ob blekTtemenseiz edt tad? oben eae ste 
evicosexs es qo Begennh sonieuw #1 sauce x9PGo"t 
gd? gedy bied faeey ed fed? oF a& dud [ety Fdg feet 
“gi eveted saute ea? “ena et Fey Es act bed Temytanoe 
atie” .betade [wety ass. ete santas ane dive wae ae Mowren 
zk resadoisg bas ‘oiies aero ax eshvivpe 2@ efdgit sit 
savinetre wisence oF Soon tek rieenee on ead baw bed 
eae seq hoeesy fiues ec) di ati — 

gatéeee qedle gosrtade Site ,featdnce sat To qyotees 
os ,f09 19q 88.008 sow salimedorem edt To 6 sey si ets 
a peoent oe. ap hontatene seni. borewht 











ee 2s sag as en 











“fo 


reagon of the exeescive freight charge. 

The construction urged ignores the com 
mercial significance of seliing «t a delivered 
price, then s seller eaters 2 competitive market 
with 2 standard article he sust sest offerings 
from other scurees. Gn = sold £.0.b. des= 
tination, the published freight cherge from the 
point of origin becomes, in exwence, 2 part of 
the seller's esst of production. An excessive 
freight charge for delivery ef the finished 
article affects him en directly es does « 

Like charge woon hie raw meteriale, wYercover, the 
burden of the published freight rate rested upon 

the consignor under the 6111 of leding, Lowieville 
sw Le R. Re & i im & Soa. 

















3 ate, 





a 3 . Bes aS wekl a8 nae P th. eontre.at 
of sale. The curchaser whe peid the freight did 
#0 solely as sgent for the seller. ‘the orrier 
@id sot know the previsicn im the sales cone 
tracts. ith toe rights or equities ac beteren 
e¢lier and purchaser it had and hes ne concern, 
mor need we concern ourselves with then," 





- aw — 


i, In the instant case, it is not denied that the 
amount of the overcharge for freight was paid by the carrier 
to the defenient, ani thet the only question to be decided 
here pertains to the rights or equities se betreen seller and 
purchcser, As to the ménzning of the words in the particular 
peragreph of the contract of sale in question, re think 

they should be interpreted the same way as similar vords 
were interpreted in the L. &ii. R.A. onee. onsidering, 
therefore, as we do, that the vords have « siuaple, easily 
understood meaning, end that the interpretation wes a «setter 
of law for the court, we are of the Gpinion thet the court 





fy : 
: 444 not err in its construction of the ‘contract, nor in 


A Tuling on evidence offered by the defendant, 


Finding no error ix the record, the judgment 


APFIRUED. 


O'CONNOR, J. ABD THOMSON, J. OORCUR, 





bod # cs" 
ce se _— | 


| ; pre ae note tae borat 
ould taste siahnaiond tom ai #f ree ‘tneteat ont ar 








| bobieah ef a9 moifaeup ‘eiRe aa tear ta Soe <a} shes of od 
han tallies asevied es enfdines te ‘wodji« ont ‘en's wi tadieeiy 
Esko i isg O86 gi abtos ods Te galneen 
aaids se .woiveeup at alae te tose vial O08, 
aotow Ralinte oa Yer ange ed? pagenae oe . 
gatvebiessS caso AS A od edt ab L bapsaatotak eae 
_ thts 5 et ee SS ee 











6866-31190 


BERNARD &, S8O¥, for the use of 


JAMES FLYNN, ERROR TO 


Hefendent in “rror, HUH IOCIPAL COURT 


OF GHICAGO. 





. vs, 














& rr nm 
u 


LYOW & HEALY, & corporation, and < 4 4b A A Ey 
M, A. HEALY, me Heiko Us & a) 


Plaintiffs in Error. ) 


= 


rat 


ot 


Opinion filed April 6, 1927, 


WH. PRESIDING JUSTICE TAYLOR delivered the opinion 
sof ‘the court. 

. This de a suit by Bernard 4. Snov, fer the use of 
James Flynn, the plaintiff, in the wunicipal Gourt, againet 
Lyon & Healy, and @. A, Healy, the defendants, on a replevin 
bond. The cause was tried before the court, without a jury, 
_ amd there was a finding and judgment in favor of the plain- 
#4ff against the defendants in the eum of $400,009 and costs, 
_ To reverse that judgment, the defendants have prosecuted 
4 this writ of error, 
q It is urged in the affidavit of merits in this case 
F: ‘that the original replevin suit sbove referred to wae not 
tried on the merits, but that they, Lyon & Healy, were forced 
d to take a nonsuit, owing to the absence of a material witness. 
Lyon and Healy having taken the player piano on a replevin writ 
in a former suit and given bond, which is here sued upon, 
and having taken a nonsuit in the former case, and the piano 
mn ot being returned to James Flynn, from whom it was taken on 
‘the writ, it is now claimed, by way of defende, that the 
Le to the piano remained throughout in Lyon 4 Healy, and 


* 





ie i ty Su Rete - sitios Sab °§ wy nfl: 
2 ¢ FSA bent? sosnicO Fig eed 


ac FE oe j eb $5: i fis i: se es 3 


















Ye eau, dt xo? ,won .y brented ye ftwe 6 ob ** 83 
ate gH Sent em AE “nie 





‘eae ee . taneie som. age Lawn 


vomtkelg edt Yo rove? ok tesmybet anh) zs 
_satoee, bGs,.O0,.00R$ Yo mye ad? of at, 


ites ane, “7 peanoten x srode reasoteiee 
pa al atest Ae we avede 
enone tw Ansreten a a 3e eomends 


a fs ome oes 


thee atvelart s ao canta seni 0a 


eases 








never passed to either the original purchaser, Stella A. Tune, 
or to one Prank Tyrack, to whom she gave a bill of sole for 
the piano, or to James Flynn, to whom Frank Tyraeck gave a 
bill of sale, 


There is no particular conflict in the « vidence 
as to the history of the title of the piano. It was bought on 
Getober 11, 1921, by Stella &. Tune frow Lyon 4 Healy, for 


$450.00, and she gave to Lyon & Healy at thet time a note 
in that amount, payable in installments of $15.00 on the 


fifteenth day of each month thereafter, On the face of the 
note there wae a clause, in part, as follows; 


"The sale of said instrument is made and this note is taken 
upon the exprese condition that I shall obtain no title 
to or ownership of seid instrument unless and until the 
Said indebtedness shall have been fully ore and that the 
n 


le to mW i seid inetrument r ns and shall 
ty wath ent gg V4 ing, . and said’ ey 
subject to their order so long as any part of that 
indebtedness remaine uncaid; and it ie expressly agreed 
that in ease of any default in the rayment of any installment 
of interest as it matures, or in ease I shell inecunber 
OF remove said instrument from my present residence without 
their written consent, then in any of such cases they shall 
heve the right to take possession of said instrument, and 
also « right to declare all of said indebtedness dae 
and payable at once, and to retain any money J may heve paid 
them ae rental or compensation for the use of said instru- 
ment,.* * * I will keep the instrument ineured in a good com- 
pany at my expense for their benefit." 


a 


; 
; 
‘i 




















Sometime in the winter of 1923, or the early part of 
sas, one Graves, oredit manager B6r Lyon 4 Healy, after 
talking to Stella A. Tune about her account, which she stated 
“she knew all shout, suggested that she sign a new note, and, 

as she told him she was i111 and could not come in, he mailed 
“the note out to her, and she signed it. tie testified that he 
“compared the signature with the signature on the first note, 

& that it was apparently all right, and he agcepted it as such, 


ae? ellen te [Ltd «- oven ode mode ot stOaty? fas % one 
8 Sven —. Fiet® wotw oF awel% soma of 3O | vobate edt 
hare 1 seo «fh eee ee alas to aoe 
eorabies ead at sok we tehuottsse omeietedT 
ge tiquod sow tl .omute oft Yo oftlt oft to yserald at ot - 
_ ok .yloek & soy mot? enw? A alleges xa feel Ad tedoteo 
ten s ehh? fait? do yleek a nok ot eves adh bite a smilie aa 
ed? mo 00.818 to stoemEietdeant af eldsyeq sient: tent at 


ott TOSat att MO ~eFisaieds-dtaom dose to Yad tases te? 


bs sawollot sad <teq ag coats lo a aw oxed? baal 
a ar 
pated ai efon atdt bus eben ot $usmurseest bias to ofse a 

eA ekt2s on aistde [Lede i tadt aettiaas ye foment 


| @ 
‘ soni fr oh nae ws ‘vs hare 
\ taal isdaat Viz re treayas ont Pat: ay 


rodmeront IL L.eago also ,aesutem # 
 thodti« Deeabicee plniees va Sovagaeeat ft 


ae < sPanarsdact Bias Figs 


pores ara els 
4. bag. to ££. venaloeb, 


ae auch Wid tae fon Yrs Aistet of bua 


; a Phe eo aay eft to? molt aeltatanman. an ' 
tie Leos ‘pement faemottant eit osex : * 888 

* .$itemed tieht tot SBEOGRS we ie 

‘tw taoq Yitee ade to ,SSRL To tetats. ed md. onttemoe 
/RagIe ELLOR b MOE TH tegen tb9 to, prin @ 


_ hetade eda dotdy ,zavecoe wed tueds sant. +R alias gt : 











There was offered in evidence for the defendants, 
the note of October 11, 1921; «leo a note dated Pebriary 
18, 1924, for $356.82, which recites that it is for a 
Washburn Player Piano. It contains cimilar provisions, as 
to the title of the property remaining in Lyon & Healy, to 
those in the above mentioned note of October 11, 1921, 

The feoord shows that upon objections being made 
by counsel for the plaintiffs, the eourt ruled them to be 
inadmissible, 

There was also offered in evidence what purverted 
to be a bill of sale, dated November 37, 1924, by Stella &, 
Tune and her husbend, for a consideration of $490.00, of certair 
perconal property to one Frank Tyrack. The first item, 
being the property deseribed, is given as one piano player, 
That bill of sale contains after a recitation of the iteme 
of personal property, the following: 

Seceae dias ona balks bane on ane Healy on aforementioned 
fhe bill of sale showed that it was acknowledged 


“all of the ahove ping subject to ineumbrances as 


before a notary public, and contained the endorsement that 
it was filed of record pecember 16, 1924, in the Recorder's 
Office of Cook County. 

Upon objection by counsel for the plaintiffs, 
the trial court refused to admit in evidence the bill of 
sale just referred to. 

In our jucgment, the two notes should have been 
admitted in evidence, all of which were certainly sufficiently 
identified to justify their edmiseibility. 


.atnebao ted edt 203, conebtve at botethe: naw enedte v8¥e 
, Wtayrdet betsh etem.« Gels, ,A8QE fh, wedoreg Yo eton: od 
_ A B08 Bh th add aottoss dolde 88,2089 202, ala 
ue gaecletvesq talinte eatataom th =. emake edger Tid 


ee lt ‘Rhein inamectaieiniil aie 
“gh Biles anelise}de sequ sedt everia br608t ot: ‘adotne ee 


4 gilt 


eset : sat ¥0 nobtat too: a rere es * 


Fo i 9 Pik 


; nt eh DoS REM 
“ddd vl yotobae add emtatace hme yetldd i ator ae 
atesbseoan auneed ak .ose@f ot aapearets breve: te belt « 
Si anoy vite BE tak GRR Fe merle RS Hk. BHSES 
ful CGR ie Shae Bie men? FAA 
evi ratnte ot ap Ieeawoo vd wottost fo 5 
i gon Oi ee: Peek Py ae ae 
es bil oat sonebive at hee od beastet su90 


8 he Se he yy Ric 


oe) ANN Pc Rea ate ee ue Hak be 4 bith 


“goed vate biwode Yo we ott Be simomgent 100, soe 
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eri ace ge stetem~ehe wet 


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Maka 1 ft bird aa 


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abe 
Also, there appears in the reeord a bill of eale, 
dated February 324, 1925, from Frank Tyrack to James Flynn: 
*1 Player piano Washburn, #22999," together with certain 
other items of personal property, The consideration 
mentioned is $400.00, 


" 
; Qne Graves, credit manager of Lyon 4 Healy, 
: testified, when asked if he had anything te do with the 


Washburn Player Piano, No. 32909 saecount, that he had some- 








thing to do with all of them at the time he was there, ond 


it further appesrs from hie testimony that that was the 
piano involved in the aegount of urs. Tune, 

It ie the testimny of one Mareen, an outside investi- 
gator emloyed by Lyon 4 Healy, that in June or July, 19285, he 
Visited James Flynn in his flat at 3816 West Konroe Strect, 
and that the following sollocuy took clase: 


*, ZT anid, 'I understand you have one of Lyon & Healy's 
pianos,’ He said, ‘Yea, I have.* I saya, ‘Where did you 

‘et it from?’ Ha trad, *Z bought it from = man by the name 
of Tyrack,' 

Q. What did you say then? 

4. I said, ‘Do you know that that piano, there he an en- 
eumbrence of $200.00 on it te lyon & Healy?! He said, 
‘yo, I don't. I got a bill of sale from Tyrack for 
some goods I boucht from him and I understood the 

fano was paid for.’ I said, ‘ell, it ien't, it 
Selenes to Lyon & Healy.’ and I mate a demand for the 
piane, 

Rhat did he esy? 

He said, ‘You oan't have it, and if you come back, I 
don't want you to come here egain, ae fast a® you come 
back again I'1l throw you out.’ fThet is sli there was 
to 


t. 


er 


Ye think the evidence amply identifies the player piano 








ar ihe sh 3 2 are? + A aS abe Sars epee Bes ae Ye 
else to iid » Bxooet edit at wtecqge Stedt annie ee. 




















wisteso dtie tedtage? * @8R8hq ,axuddest orate ports ! 
| (ufecd & sows te swganent Sibert enna m0 ‘isos 





Rive. TR 


* 


oat al Sas tod? Yromtiee? o1e don? “etehdigs "ei fot 
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<teoovat sbtstae aa seston eno » 26 ence esl ee inte 










EY TP CML ae 


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e'yLeet & moyl to amo seat ls sce es . 

soy Ble -oxedt" payne I~ t.ovad E ae adam AK A 
rae ORF ae Oe tt tinned 3* a 


Fae | yo Bape WS na eet ec Rae Ast. Bg My # 


iaodd by a woy bE 





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| sot MostyT mort siss to Lita & 

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he edt x0? baunnb © shan T bat Tec 


Dip 


2 wy Pal iy FS el ge OF tee 


De i ,zoad emem woy MM ohae si svad ¢! _ ' 
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-O- 
in possession of Flynn as the same piano which *as bought 
by Stella &, Tune; that is, considering not only the 
testimony which was given, but the contents of the exhibits 
: which were ruled out. 
. In the brief and argument for the plaintiffe, it is 











stated that the evidence which wos submitted, the arguments 

4 of counsel, and the remarks of the court, all clearly chow that 
the only question at the trial was whether Lyon & Healy had 

; an interest in the piano which was replevined., Considering that 
7 the issue, we are of the opinion that the trial court erred in 
4 that it was manifestly against the weight of the evidenee to 

i hela that 1t wes not sufficiently shown that the piano in 
question was the one which Lyon & Healy had ¢old to Stella &, 

j Tune. 

% We are, therefore, of the opinion that the plaintiff 


REVERSED AND JUDGMENT HERE. 


O'CONNOR AND THOMSON, JJ. GORCUR. 


ty tc yoy teat atin st, seas. 
of npmebive silt te tdgter ote tautuge, aa t. 
gi oneia oat tage ere boars. 
if tere of blos bed ¢elaon & moys 


ca eves fee i pan $c 


ard ee Bo ities 
‘8 3 


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ibs EA may ghd 3 


eho reg wey ny ak ye. “ons 


eri ke Rabe elqae sate 2 








103 @ 31232 


FeE. NELLIS & OGe, & Corpo, 


Appellant, 
APPEAL FROM 
Vo MUNICIPAL COURT 

THE YAKIMA FRUIT & COLD STORAGE ae 
CO., @ cOrp.e, 

Defendant, 
FIRST NATIONAL BANK OF YAKIMA, 
& COTPes . a A q \ 

Appellee, | : ‘ 


Opinion filed April 6, 1927, 


MR. PRESIDING JUSTICE TAYLOR delivered the 
Opinion of the court, 


On October 31, 1925, the plaintiff, F. E. Nellis 
& Co., & Corporation, began suit in the Municipal Court 
against The Yakima Fruit & Cold Storage Company, a corpora=- 
tion for $5,000e00, and on the same day filed a statement 
of claim, containing, in part, the following allegations:— 


That on June 26, 1925, at Yakima, Washington, the 
plaintiff bought of the defendant 15 to 20 cars of pears, at 
$2.35 per box, f,0,bs; that $23,000.00 part payment was to be 
made upon approval of the order, $500.00 per car toribe paid 
upon receipt of manifest as the pears were put into storage, 
the balance by sight draft against the bill of lading, pears 
to be delivered by the defendant to the plaintiff at Chicago, 
and to be paid for by the plaintiff to the defendant on 
delivery; that the plaintiff demanded delivery of the pears, 
and was tendered pears of an inferior grade and quality, 
which the plaintiff refused, to the damage of the plaintiff 








sense. + Bot 


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ingest fae hl sricsaiv oe a 
fh i 
wa RAS gti ad ay 


SPAROLE C1009 /PIURT: Sai HAY Er 


“wont 1AgSA 
~ mau09 TATIOT RUM ' 
— ,ODADTED Fo 





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pe m8 bsg ANAT a Rea aR 
i Ne Wa 7“ | haces * it 
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4 a ee ee ae ee mar : 


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“ea borovi teh hora sernat oumateans + Fld | 


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A ein out bin so Ler de 4 
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DRANG & peltt VAD, Omee. en aor ona, 1902090899 
adie eine lLot, ant deka mt gatatstaoe alate by 
i sot ead ae 
ott motgninest ombist ts yaset “as bees ‘0 0 tat 










atu sy iva ale 
tm yotiaeq to axso 0s ot ar tu sbiro tob edt to tifguod 9 tisatalg : 
od ot maw $nomyad iraq 004000, Sh todd qaoet sod 3 T0q hata ‘ 
Rha sdiot m0 79q 00.0088 . bro) 86t 20 Lawonaem avqy “a 
<2garote etait tog stow a TRHG odd Be saokiasn to. ‘eqns | : 






ezecq «gatbal to ifid od teniege tarb tite we se asked ee 

eogsotdD ts tg aisle edt of tasbaste edt ee pendtcs os of 
ao tasbasteh ext of ‘Yiudatal of edt ee not blag ed oF | aa 

eetsog elt to yroviteb bobammeb Plentete ods feds iw nove. 
eettane hae italic toinstat a8 * mange: 2b at 





mae 
in the sum of $5,000.00. 


On the same day, the plaintiff filed an affidavit 
for attachment, based on the noneresidence of the defendant 
and an attachment writ in aid was thereupon issued, and at 
2:50 Pome, the same day, was served on the First National 
Bank of Chicago, as garnishee, On the same day, interroge~ 
tories to the First National Bank of Chicago, the garnishee, 


were filed, 


On November 10, 1925, the First National Bank of 
Yakima filed its eppearance as an interpleader, 


On November 13, 1925, the First National Bank 
of Chicago, as garnishee, filed its anawer to the igterroga- 
tories of the plaintiff, F, E. Nellis & Co., ‘The answer 
set up the following: 


"On or about the 17th day of October, A.De 
1925, it received by mail for collection from the 
First National Bank of Yakima, Washington, three 
certain drafts, each in the sum of $684,46, drawn 
by the Yakima Fruit & Cold Storage Company on F,. 
B. Nellis & Company payable to the order of the 
First National Bank of Yakima, Washington; that 
with said drafts it received instructions that 
upon receipt of the payment of said drafts to 
eredit the amount so received to the account of 
the First National Bank of Yakima, Washington, 
kept with this Garnishee, The First National 
Bank of Chicagos and that thereafter on or about 
the 2lst day of October, A. D. 1925, a representa- 
tive of F. E. Nellis & Gompany appeared at the 
window of its Note Collection Department and paid 
to this Garnishee the sum of $2,053,38 ami took 
up said drafts; and this Garnishee how holds said 
sum of $2,053,38 for the account of the said First 
National Bank of Yakima, Washingtone" 

Tat on said 2lst day of October, A.D,1925, 
and within a short time after the representative 
of F, E. Nellis & Company paid and took up said 
drafts, the attachment writ inthe above entitled 
caus® was served upon this Garnishee; that this 
Garnishee thereupon wrote to the First National Bank 
of Yakima and informed it of the service of said 
attachment writ upon it, and im due course received 
an answer from said First National Bank of Yakima, 





¢ivebitis ne elit Tiida Lele odd .yab omea ed? nO 

gnahae te’ edt to eonebtecy~n0n od? mo heasd einem sit te sot 
ts baa ,boomel foquen eit aarw bis at tice tnomdo atts ne bas 
fenoittay tetit edt ao seen ane <a suse ‘od (ate aaee 

~amgottetal ,yab mse ont a .eodatasay ae amanat to suse 

 geedetarag oft ,ogn0idd to Lewtl Lane fat tens’ ait of anreet 

obel tt a Tew 


to tae IEMGivet secht oot. (2b. Of rodaevel oO 
tebseloretal as as someteeqq¢s ett belit amtasY 


AneG Fanoltak tort odd ,AS@L Bf wedmeved ao 
cr Suit edt of towens at! balit ,9edeinrag a8 ~oya0id to 
! TOWNES ott “4900 $ ott Low a a thivaiele ont ‘to = 
eee gttaol fot out we ton 


ova ,xedetoo ey yab SIME ed? guode xe aQt aa 
edt mort eoltoetioe trot Liew yd bevieos: ¢f ager A, 
co anerstnig ‘guitdedW ,omiiay to dae Leeotited: tauky ie) 
wath * ‘Bas to mse edt af doas ,etterb alstceo 
of 20 Yoagqaed egarete? biod 4 thet setiey edd od 
etd Yo vebre edd of efdayaq yYosqae) A erifoh .d 
tact esduntiuat smite to gnati fanoitsd textt 
‘gade ancliourden! bovisovr ¢h attach bisa dike 
ot ettetd Sine to tasmyaq st to tqieost soqy 
Maeitetle teeta So teat coeetoar ae : 
eotgaidas! . sm 6 co) oat 
‘Laneld ei teanl? edt pSodatatep aide dotw aged °° 
tyods +o mo todteeredt ted? bae og80 dd to Mae phil 
—atagaerqer 2 ,8eOLr 0 UA yxedote0 to yah gr dda 
edt va Lerteoqge yroaomoD 2 etlfew wa i! N " 
bhaq Sasa Soe bea noltoallo® eto ati ‘to 
woody tne GE.E86 to mee oct pigeon 
biee edfod wed sede ited aide bas oan 








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age rier teva seh iat dy Pag ap oe 
ear Eft x0d sere Ry agp ban Pale 
we ‘detetene: eet bn rye | one ea. cid ‘i 


ite _ faao Be ay eae ted 


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moe 


Washington, in which said answer the First 
National Bank of Yakima informed thts Garnishee 
that it wes the owner for value of said drafts 
and the proceeds thereof; that accompanying said 
answer this Garnishee received an affidavit of 
E. Jd. Lemke, Assistant Cashier of: the First Nat~- 
ional Bank of Yakima, in which said affidavit 
the said E. J. Lemke stated on cath that the 
First National Bank of Yakima was the ower of 
said drafts and the proceeds thereof," 

"That at no time has it been subject to 
the instructions or directions of the Yakima 
Fruit & Gold-Storage Company, and that so far 
as it is advised, the drafts and proseeds thereof 
are the property of the First National Bank of 
Yakima; that at the time of the setvice of the 
writ of attachment, it was not indebted: to the 
Yakima Fruit & Cold Storage Company, nor has it 
become so since, nor did it have at that time, 
Or at any time, any goods, chattels or effects 
in which the Yakima Fruit & Gold Storage Company 
had any interest.* 


Attached to the answer of the Garnishee, the 
First National Benk of Chicago, is an affidavit of one 
Lemke, Assistant Cashier of the First National Bank of 


Yakima, that the moneys sought to be garnisheed by virtue 
of the writ of attachment were at the time of ite service 


upon the garnishee, the property of the First National 
Bank of Yakima, and not the property of the principal 
defendant, the Yakima Fruit & Cold Storage Company. 


Also attached to the answer of the garnishee, the 


Firat National Bank of Chicago, as an exhibit, was a copy 


of an assignment from the Yakima Fruit & Cold Storage 


Gompany, dated August 6, 19255 to the First National Bank 


of Yakima, which is as follows: 


*" WHEREAS, we, the undersigned, are engaged in 
the business of buying and selling fruit at Yakima, 
Washington, and the FIRST NATIONAL BANK OF YAKIMA 
is assisting us in financing our business by loan- 
ing us money and advancing money on drafte drawn by 
us on our customers and on bills of lading issued 





yom 


: farlt o¢¢ cowene biae dolid@ at ,wotgaidest 
eodaints) add? bearotnl suideY to Anes Janmeitan . 
atteth bise te erlavy sot teawc edt eaw ti todd 
4 oh. gach tego tedt steered? aboooorg ont baa 
ie oe Hhovieost Sedetatad ala? cewans 
a ste aimee ail 
t bE RRL og Maw) 
edt tad¢ diso wo hotata edmed .G all wr biee 
te tomwo edt aan smld ay Bg inet Janclsak ay hy inves 
* teweds abesootg odt bas at 
ov tostdue moed tL wad omls, on 38. brn Rn 
‘gauite’ edd to pric tg xe: weap yeaa yet ‘ous 


eet On tady Baa , & F A gtoubt 
toexe dt absse ory hae bre) ay pag ia Retiwke fy b- i 
te aaah Leovulte tari odd te yinaqore vi 
edt to eolvitee otf to omit edt ta |} t 
edt otnbetdehat ton eew Ft ra Mayo aie sae 
%2 ead tom .Yasquod Maatote Llod &.thv zl 
eats tedt 3s ra wld bib ron te ps oe sacoed 


_. hon the 0 eles poy) poe #38 - 
‘Yoni boaie om & obit ms yf ye 
xt: ‘etoatepat ; Ws Be baat 





Ost .aedebared adt te Towens ott of badoadta | 
. gao to thyshAtts ne wt .opsotm to dagl Lonoktee tock 
Ro Anes Lemode gh Qetky ott Yo “veidesd ¢astatewa ,admed 
eerie Ww beodelats, od ct tiguor syeron ent pads ola a¥ 
eolvroe att te outs edt ta hdl inontoatts to thew eat to 
Lemcotiait tends ealt te ytreqora ould: eoorinbaesg, ens ogy 
_teqloging walt to, vizoqoxg od, ton sana eubtet 26 dae 
} chaaeaaed aasiora bod 8 tus antsist feed ‘etasbaoteb 


ee 4 


ott wbiblatie ‘edt to xowons, ent oF. bos. pu 
Wed 6 Raw .tidides as ao woga0t dy To. dao ano bt ait santy 

ogsteda bLod & thee emtiay odd most sae wy te na S 
dag Teaoitek feud of of a Me sags, nai me per tie 














woes 


by the railroads for shipments of fruit 
sold; and, i 

“WHEREAS, in the course of business, 
we ie Sage i deposit drafts drawn on purchasers 
of fruit with said bank for collection ard we 
desire to give said drafte and the proceeds 
thereof as security to said bank for moneys 
loaned and to be loaned or advanced to us as 
aforesaid and for future advances; 

"NOW, THEREFORE, in consideration of the 
premises, we hereby assign, transfer and set 
over unto the FIRST NATIONAL BANK OF YAKIMA, 
any and all drafts and the proceeds thereof 
which we may deposit with said bank for collec- 
tion or otherwise, and any and all bills of 
lading attached to said draftea, and we do 
hereby authorize said bank to collect said 
drafts and apply any moneys so collected to 
the payment of any indebtedness we may owe 
said bank, whether due or not, giving said 
bank full power and authority in the premises 
to handle said drafts and bills of lading, 
make said collections and apply the proceeds 
thereof as it shall seem best, it being ex- 
pressly understood that said bank does hereby 
reserve the right, and is hereby authorized 
to forward iteme for collection or payment 
directto the drawee or payor bank, or hace 
any other bank or agency at its own discretion, 
and to receive payments in drafts drawn by the 
drawee or other banks, and except for its own 
negligence, this bank shall not be liable for 
dishonor of drafts se received in payment, nor 
for losses thereon, If said Bank incur any 
expenses in collecting said drafts or realizs- 
ing on said bills of leading, we agree to re- 
imburse said expenses to said bank, including 
any attorneys! fees that it may pay, and said 
bank is hereby authorized to add the amount 
of such expenses and attorneys' fees to our 
indebtedness and retain the same out of the 
collection made by it." 


On December 5, 1935, the First National Bank 
of Yakima filed an interplea, setting up, among other 
things, that the money due upon the three certain bills 
of exchange, @¢ach in the eum of $684,46, drawn by the 
Yakima Fruit & Cold Storage Company upon F. E. Nellis 
& Cos, the plaintiff, and paid by it to the First 
Hationeix Bankx osx Chivas ROS WH THE” PLOHELTY* OF* FHEX PLES 


“he 


! timk? To atrowy ide 202 ebsoniion ote ‘e wi dh 
| . gb ss avg 
gaseatasd to se ns nt «SAsiaay® 
etescto wig to swath ef aog i¢neupert ow 
ea bie mertost ion tot dad hiss b reiea ‘Cindt to 
| ghesvorg edt fume atteavbrhise erig of etleob 
Byesos TOU Anal bisa of yituoee. as Yoorodt 
a2 ay oF heonayvhs xe Seneol od o¢ baw ponaot 
gsoasvbs erotet cot base bisserots 
ert to etdeunh tubes af, SOTA GN? WOR" 
eee bas tetaaest fees ywWored Ow ,coalmexg 
i ¥ GO MwAS ITAE TERLY edt ota cove 


eels 50% duad bise dtiw ¢ieeqel yam ow do tite 
te eflid iis bas yore bane ,oaletedto yo molt 

0b 68 hae ,etterh Sia. bo Deuoadta gaibal 
Joiee tooiloe ot dasd Aisa oatrodsus weored. 
gt My cette ot o& BTenOm See eee yiogs bee et tath 
oto Yau ow saoubetdebal. yas te tasuyaq edt 

~ Bige: gaivig ,toa 10 ub temtedw .dasd bias 
esalmerg adt al ytirodtue bos sewoq Livtodaad - 
eeatbal te afiid bre atterth bias efbned of 
abessotg edt ylaqe bas amoitoatiice biae gaan 
oe gaied ¢i .teed mave iledle tf ea Pooredt 
ydexed Beek dood hls tadt bootetehac ylaserg 


snemyeq: to es tot sueti beawrot oF | 
at 20. gunad toyey tO sewezd ont of toar the 6 
co i a0 otk te youegs 16 Acad xedto yas 
edd gl ewarb eftew at asweayaq ov iso0aT oF bag’ * 
xwe eti rot tqeoxs bas .adasd tedto to geweth 
‘tot eiveti od ton {lade aaed etd yoonegtinem: >” 
wen <tmoayeq ai bevicoos ce st tecb fo wonodalh 
‘Yas tyomt shat hise Il .neeredd eoeeel Tet ©’ 
mah Leer to atierh bine gaivest{foo at seenegxe = 
eet OF eOTsZe OW _ emg po eifid bise mo gah 
econieet bias of suoaxe bias orantal ae 
me te yey yam tf: ph sost 'pyenrotte yas °° 
pt ant bha ot hoalitodive yoerod af dined 
m0 ot eset tayortrotts bose sesmeaxs towa To 
‘om te tv emsa Siig ‘ahstex has erombetdebak 
"tt yW oben sottoetion 


seem Lamotte tartd oct (Beer ,@ sehibesneae Bs aia ra 


allt atadieo serdt ent doQe oub yonoe sat tag .agatde 
od yd avanh Baten to mue ont ah. feat ~%gustoxe to 
(ation a um soges yas sgarote ‘1D & * os Sher t Peal 
tant ode ot tt ve bk: hana \Mittatarg: e400 & 









“Boadtodtus yWored at das tipia edd evaeese 


rondo yoows pau guittes .«elquotal au DOLE? eetasy to 


“reaeusmsen ate ce see ie 


ad 


National Bank of Chicago, was the property of the First 
National Bank of Yakima; that the bills of exchange were 
purchased for value in due course before their maturities 
by the First National Bank of Yakima; that the moneys paid 
thereon by the said R. E. Nellis & Gos, Plaintiff, and 
thereafter sought to be garnisheed by virtue of the writ 
of attachment issued in this cause, were then and at the 
time the writ was served upon the garnishee, the First 
Wational Bank of Chicago, the property of the First National 
Bank of Yakima, and not the property of the principal 
defendant, the Yakima Fruit & Gold Storage Company, The 
interplea prayed that the court adjudge that the property 
sought to be attached and garnisheed, ought to be released 


therefrome 


On January 8, 1926, the plaintiff, F, E. Nellis 
& Oo., filed an answer to the interplea of the First National 
Bank of Yakima, It denied that the three bilis of exchange 
were the property of the First National Bank of Yakima; «© 
denied that they were purchased by it for value, or that at 
the time of the suing out of tle attachment writ, they were 
the property of the First National Bank of Yakima; that if 
at any time prior to the attachment they were the property 
of the First National Bank of Yakima, the assignment to it 
was withowt notice to the plaintiff. 


It further set up in its answer to the interplea 
of the First National Bank of Yekima that it, the plaintiff, 
had demanded delivery of the pears, but that the defendant 
had refused to make delivery, and in lieu thereof had tendered 
delivery of pears of an inferior grade and quality, to the 


| sexta odd +6 yineqong adv sew yegeotgd to inet Lemolt ae 
2tOw agnadess zo al tte ode dads jeniaay 2 rtd Eamost al 
webe Emad siedt sorted aerwor ed ak euler rot bowastozug 
biog wyonom ond vend qamsiey Yo dass fenoitai santt ode a 
bas tHtatate 5600 4 aillem .e 6H biee it ac eooxode 
tixw edt to outaty v heeds tar oxi of tfguo8 190 2aero dt 
edt wa batt neds eroe esanieo aki at bevasi “tasusioad te to 
terld wate” seodnterag ort aogy poveoe: ao taaw. nat emit 
fasoiten tarde eat to Uroqore oat gog.abieD: to. some fano2ée | 
faqtontey ott to yeregore orig” gor bas amatet to dash 

out ago aherers ‘ple a ttt satis out ‘stanbaoted 
Ywregorg ase tent aghothe twos) ond tant peyatg solgrodsi 
beasoler on of witysro shondatatey bite hattontés of or 2 fgvoe 
- sorterost 





eille® 42 “at wHhivaiate writ Ose. oe wavs 2 
{anoitel terzt mt to aeiqretak o os reweas ne. oh 00 8 
egaatons to allid corde: aut tad: betasb th womthey te Angeh 
* jauetXe te wea Lomo. at tors ot to Wroqora, ot stew 
te tact «o qeuter 0% th ve beeedonaey: oxen vost todt ‘botaob 7 
exew yet yetew tnesoatds eft te duo galwe ods. te onus ont 
Rl tadd peu lxey to Aus Lao £9 gent’ ott to wrsqotg edt 
YWragong oat ay ow yous trons at te ends oF ‘ceteq ‘Onkt yas te 
ti ot tomy toes ests Amba te And Samo tt ai text sat ha 
| “sthttataly oat ot sotton teonittw om 


te Lae 
Bolgtetal ett of rowers off ak qu tee ceodtuwk g1 "be 
eltitataig ele 8.2 dads aw 7 te det Lemottet ‘text edt Yo 
tasbrotel edt gest ti aeag oft te eeveteb beobramab bed — 
borshaet bal Yeorsdy Well mt tne yreviieh eam ot beaten bad 
—palt of .yetianp bas ebawy toizetal as Yo areeq to yrevitob ) 





Hans 4 
VO tte ith) Re aE ae 
‘Sol Pls Reise Cee ob 





mie 
damage of the plaintiff in the sum of $5,000.00, 


On January 39, 1926, the claintiff filed what is 
entitled, "A Traverse," in which it admitted that, on 
October 31, 1925, it F. He Nellis & Co., paid the First 
Wational Bank of Chicago, the Garnishee, $2,053,38, but it 
denied that the money was held for the account of the First 
National Benk of Yakima, It admitted that the drafts were 
attached, but stated that it had no knowledge as to whether 
or not the First National Bank of Yakima advised the 
Garnishee that it was the owner for value of the attached 
drafte; and that it hed no lmowledge as to whether ofr not 
the First National Bank of Chicago, Garnishee, was indebted 
to the Yekima Fruit & Oold Storage Company at the time of 


the service of the ettachment writ, 


With the pleadings in that form, there was a 
trial before the court, with a jury, and at the close of all 
the evidence, the court instructed the jury to find the 
issues as to the olaim of the funds in the hands of the 
gernishee in favor of the intervening claimant, the First 
National Bank of Yakima, and that the right toxthat fund 
was in the intervening claimant, Pursuant to the instruction 
of the court, the jury brought in a verdict, and judgment was 
entered in accordance therewith. This apped is from that 


judgment. 


At the trial there wos offered in evidence the 
deposition of E. J. Lemke, Assistant Cashier of the First 
National Bank of Yakima, the interpleader; the three drafts, 
and the assignment of the Yakima Fruit & Cold Storage Company 
to the First National Bank of Yakima, which was attached to 


1904000 «if to mua om at b tttemtatg ire | % ae 


ef ¢atw hetit Phitgiel¢ edt .@8O@L 4e8 yteragh a 690005 
«tO a tedt bottinhe gt doicw af “oumevert A* .beliitinis 
text’d ads bieq ..ob.s abl lei oh UL th gS8OL .Ie redoreo 

32 dud ,88,4820.9% .sedetated ond ,ogsntdd to cine tanobeen 
sari] edt to tavenpe sdf sot bled aew yenom edt sail: Semkeh 
otew af Leh, odt edt, bettinbs #1 .entieY To Anat Snaps 
tedvedw of a8 ogbelwosx on bad #2 stadt betate tad ,besondta 
: odd bastvhs @uiveY to ina8 Ienotted tartQvedt: donne 
bedoatts ods 30 cusay 20% sgaro, oft saw t2 tect vodetmeat 
ton xe gedtedy ot os. eabelwosl oo bad tf. dace bga ques tesh 
beidebal any ,sedelate} ,ogsoldd te dngG Lanoltal terit ed? 
to auld edt de yoaquc® sgarete bind Adivtt sults edtvet 

: wtixw ¢asmiostts edd to eodvise io at 


8 gow ovedt yaxot tardt of egnibeels edt dt dT 
cis te eselo oft 28 bas <ytrt 2 dein _#tusoo. std exoted Leint 
odd batt of yxal ond Dotoumbens tow ont, ,consbive edt! 
edt to shasd sdt at ehaet edd to mtele ent of ma oro 
fant odd ,tammietlo gataevsedat edt to cowst at sodatmeay 
—baut tedtiet tdgit ocd godt bas ,amisdey To duet Iaaottell 
aoltouttea! oft of tasmw? ,tnawtele gaisevnetal edt al mew 
sav toomgout bas .toibrey sat ddgvord yrut. odd ytxus09> oth: to 
tet mort atfeqqs aint, dt twerodg, epmabreon s 2) boxetae: 
hs .  teomgbat. 
oat. gomebive nt bezeito, bcd ered | pain seks | ‘ 
tatil act Yo tefdes> tustateed, wedged: .b Re noss teoged: 
eStisth soxrdt oft ATebsataretas dt combicy Ye. nas Lemo.tt si 
Yasqued egeToee blo) 4 dive antlay ed? Ro dapmngtans edd hms 
of podoatt4.eaw.dotde samtlat Ro tan. amo a a0RE 808 








a 


the affidevit of Lemke,~which affidavit itself is attachéd to 
the answer of the First National Bank of Chicago, gernishee, 
to the interrogatories of the plaintiff, 


The evidence of Lemke is substantially as follows: 
On, or about, August 6, 1925, the First National Bank of 


- Yakima, received the assignment, a copy of which is set forth 


above, in connection with the anawer of the First National 
Bank of Chicago, garnishee, On Ogtober 8, 1925, the First 
National Bank of Yakima advanced credit to the Yakima Fruit 
& Cold Storage Company, on & draft with bill of lading 
attached of F, E. Nellis & Co., of Chicago, the plaintiff, 
to cover a car of fruit, in the sum of $684.46. On October 
10, it advanced a similar credit a second draft for another 
car in the sum of $684.46, and on October 15, another similar 
oredit on a third draft (for another car) in the sum of 
$684.46, The drafts were ordinary bank drafts, payable 

to the First National Bank of Yakima and drawn on F, E. Nellis 
& Oompany of Chicago, by the Yakima Fruit & Cold Storage 
Gompany. Order bills of lading accompanied the drafts 
covering each car in question, and also invoices, At 

the time the drafts were drawn upon F. E. Nellis & Coe, the 
First National Bank of Yakima made payments for:the full 
amount of the drefts by passing the amounts to the credit 

of the Yakima Fruit & Gold Storage Company, and those credits 
have since been withdrawn by the Yakima Fruit & Cold Storage 
Company by check, The First National Bank of Yakima has 
not received from any one, the proceeds of the drafts since 
the payment was passed to the oredit of the Yakima Fruit 

& Gold Storage Company. It expects to be repaid by payment 
ef the drafts, which the First National Bank of Yakima has 





Yes 


ot bodowetts si tiseti tivebitts sik pisihciaen to tivsbitts ot 


attigateale ech £0. anizotegorretat edt of 


rewortot ee yLisitnetedue af eitmed to éomsbive aap °° 8 
tO ane Lonokte dated odt .aSCL (8 PemguA yttods Yo" Lae 


decot tea et doivw to yqoo s cinommtess eit boviecse ‘anhiat 


Lanett al text add Yo setene oot d¢iw aottoommos mi _bvede 
texkt edt ASE 8 ‘sedated ‘nO ,oodalivtay e0g0 tad” “to ster git 
ete snide ant of tibero besoasvbe mmidaY Yo daef* Lakokd pit 
garbet te {tid detw vtech & 20” oe wgerote Boo % 
eMitatele att £09 0.860 ‘to (00 8 etfien .% .t to bolipkers 
xedetoo a0 8b 28BH to mie ed¢ mi pttorvt to te 2 coveo Wt 
xodtone 0% ttexb beoose « #ibew cettuta # doomavhe $f {OL 
satimie tedvens ,8f tedodoO wo bas ,8b,000) tO aia ie KE td 
to ave edd at (tao noddons not) #texb built 6 a0 tibex 
aideyeq ,wtierh dnsd yxaathro oxen wttaxh edt s94.d80$ 
atifel .& .% ao memebd bas sadsey Yo Ane Lamoltel tentt adt of 
SgHTosa bigd B tiowy ambiey edt yd ,oysoidd Yo ymaqued 

ot texd adt belusqusoos patbal te afltd asbi0  .ymasqe 
tA ,eopleval osis jae ,soiteenp al we dose. 

amt ,.60 2 atifek .2 .t moan ayerh exrow etisnd od anit ed 
fiut edtexo® atnonysoy eham amliseY ko Jasi, Seen textt 
thers salt of atmuome oft yoiseag yi attend edt to tavems 
atihoud ovoitt baw .yasqacd egazos8 bod. 4 tivxt smixeY ede To 
egerors blob & tinxd emidaY oft yd avathdtie need eomie oved 
eed snixeY to anal Lamottalt erly ont stoodo yd yrsqmod 
eonls attend odt to abossoxg add m0 vse wort bovteoes tom 

if thu ai te ede to ¢tboro ott ‘od besesy ase sremyeg 6 
* taoeen qW biaqer od of ateoaxo #t° “Deaeqned phenee 
Wil and ambisy ke fase ‘fanottal fexit orl} doldw ,attexb odd ‘to 


OE ON AG a. ASR ian? ys wi ai hansen 1 ARR sah 













ee 


=f 


been advised by the First National Bank of Chicago has been 


MAE 


The Yakima Fruit & Gold Storage Company has a check- 
ing account with the First National Bank of Yakima, These 
particular drafts he, the witness, himself persoyally re~ 
ceivéd as Assistant Oashier, The Bank was in the habit 
of receiving similar drafts at the rate of one or more a 
day, On the day the drafte in question were deposited with 
the First National Penk of Yakima, the Yakima Fruit & Gold 
Storage Company was its debter. Such debts being evidenced 
by promissory hotes, How they were secured, if at all, he 
did not know. The drafts in question were received by kim 
from the Yakima Fruit & Gold Storage Qompany, and the amount 
of the drafts placed to its eredi4 on the books of the bank 
in the checking account of the Yakima Fruit & Cold Storage 


Company, 


He was unable to state for what purposes the Yakima 
Fruit & Cold Storage Company drew okecks against the account 
to which the proceeds of the drafts in question were oredited, 
The proceeds of the drafts which were placed to the credit 
of the Yakima Fruit & Cold Storage Company were available 
for any purpose it saw fit to use them, The First National 
Bank of Yakima received notice that the payment of the pro» 
eeeds.of the drafts was being held up on October 21, 1925, 
by @ telegram from the First National Bank of Ghicago, and 
on the same day one of the officers of the First National 
Bank of Yakima telephoned the Yakima Fruit & Gold Storage 
Company to the effect that the funds had been garnisheed, 
The telephone message was sent so as tc be able to gain whate 





im, 


Mee 


assed ead ogeoind to Ano Ingoigen texzt st yd beaivhs ased 
Koodo & asd Yasquod egarose bloQ & tivz'l emlagY od? 
Seeer “san iale te nee ingot? eit tant’ ant de tw tauvooos 7” 
~8T Uiabonrem treentt enead ia ttt aed ‘ad taith xaiuo itkeq 

| vided oat a eon soe edt + te sie.00 taste tend ae ‘baviee 

& stom <0 ‘a0 to stort edt t6 at lexb zaLinte patvionex ‘to | 

dite ‘hed lecyeb | eTew ‘aotteoup ak ae tox ult we ‘ont 0 “ 
BLoo 3 tient ‘smide® eat “een they ‘to woe Tonos ait fart ‘ous 


beonsbive gated atdab owe seoddeb abt aw yasqned ogaxota 


1 ee tp Hee 
ad ite te tL betunee Stay qo wont eactori Ytosainerq vw 
i Beth hia way 


mis ya bev foos'e eTow notteaup ad at texb edt “Moa wg bib 
darome odd bas ateeanqaed egstota bob a a hoet ante oat sox 
dand ot to axoed add no ¢iboso oth of beoalg at texb ode to 


sgetogh ‘Bioo 4 tre outtsy ody “te tauooos 2 gatioedo ot at 


Deh 


“ 
ens wn eee wee oe aa hae, 
ant ts Sot aesoyrig Tade x0 otetp. ot 9 haces aan ox. dt 
tascoos edt teaiags, aio exo woth, Kawano, egexes8 Lod. plied 
bey ibero stew motion, a2 avieth ed} to abascorq edt dotew ot 
fiber edt of Deoaly ore” Helin px tasb 9%? to, oheogona geft 
aideLievs TOM Yisgroh sweroth bled & tiuxt salaey, emf. Re 
Lanett te2:%.ocT. med? say, ot ¢23 yaa, #2 pooqtug. vas x9 
_ etd, edt To tromyeq edt ade. eo tdon bovisoet amiteY to. dong 
B80 £8, redoted #0 qu bled gated gan mtTeRh, Silt, X60. abese 
‘bag, e0ge0idd to suef Lenoktem tert edt mort, awKgs Loz adh: xe 
feomotsell tackt edd to axsoltto ont. To eso Yeh: emse, ods ae 
egarote blod S. tinet amixay att Reaodgeted sshionninsti Cre 
_ sbesdelatsg goed ped abawt eat tent. 


otedy alm ot olde ad ot 26 08 sme ine samn srdentes ont 





URE ah: OO 
Be: Bras 2 


= Gree 


ever information the benk might get as towhat reason 
there might be for the garnishment of the funds, 


The drafts in question have not been charged 
back, nor taken up by check, The matter was held in 
abeyance until this cause is terminated, "waiting for 
the release of the funds for our account." Wo entries 
of credit or debit are being made, or will be, “until we 
secure the release of the funds." fhe First National 
Bank of Yakima is relying upon the Yakima Fruit & Gold 
Storage Company to reimburse it in case there should 
ultimately be a loss, 


The three drafts were, except as to date and 


amount, substantially as follows: 


"Yakima, Washington October 8, 1925. 


On Demand Pax to the order of 
FIRST NATIONAL BANK OF YAKIMA, WASHINGTON $624,46 
Six HUNDRED EIGHT ¥ FouR & 46 LOO, - oceccsvDOliars 
with exchange 
For car No.NP 93248 Bertletts Lot #216 
7 ' Charge to account of 
F. E. Nellis & Company 
Ohicagog Illinois, 
. YAKIMA F R UIT & COLD STORAGE COMPANY 
By W.A.Berg, Pres. 


On the face of this draft appears the following 
by rubber stamps 
"May hold for arrival of goods* 
"Surrender documents attached only on payment of draf +" 
"First Nat'l Bank Note Teller, Paid Oct.21,19385 Chicago,1I11"! 
"Coll. Oct, 13, 1925," 
"NePe 2-1," ji 
On. the reverse side of the draft appears the 


following by rubber stamp: 


i 
senses dniimct ea #95 tytn nod oid sottametah owe 
-sbnut od? to taemdetare oft cot ed tigim oredd 


“beytade awed ton over ao ttaosp ak at texb at 
ma bled eaw sod sm ont? ootio we os aoied ton oad 
tot Balt ten" sbotadluzss at oause atdt Liter sonsyads 


ow Litas" aod iiiw xe oboe galed ete ‘tideb ‘to tthero to 
| ‘femold ott ¢etri edt "sabaut ont to oaaolet ode exon 





_bivode sxedt on0 at ob ‘eatwdaton cs Wa 


ER ae 


Neh AnH Ges ‘t yh mz 


w88CI .8 redoio0 motgatdesh yantdey® 


to zebto ae vole “f hanna err 
GS, A908 MOTOUTBRAY . {O Was AAMOITAM PARLT 
ies hae UR XB 


Ota [LO desis fda OOLE Of ¥ Fai» 
RES) tod abtetdced BAER hye w90 TOF pc 
he ic ae oe ana ei Revie 7% ‘ehae 
Prag & Ath Lely. ReDy 9: 
0h 


gemboms ff gg 20 tf 
MRATHOS HOAROTS MEQ | & Try A  @ AMTRAT Fo 95 RORRTSRR  RRs, i ey 
BOTT TOE oA i ‘ve 


gaiwo {fot ede ersecs eterb eb io coat ‘ete — 


Nye tego DAMME 
k tf we le Lae 


nits 3 ? T vot poids 
ry ee PAE ier oe Bag, bia 


ppeeitna se se = 
npiics ¥ ‘ Smeal ay 
4 NELER ene Oy ad ole eteSLo® ° ae : marae | 


as 


| hid 





Lay oat eel * ie NH, SOR i haiti i ge. 


agittue ae WV, taudoaa tH0 rok sbaut ‘edt to ouselex ‘te 


pied $ thee suey at moqu galyler ak “aaiktat | bal foes 


eeoot aod ware 


bas efab of sa tq9pxXe ,.orew sik sini: ok mit pie’ 
:  pawel fok ag whcctastabnilis stauons 


10... 


"Pay to the order of any bank, Banker or Trust Go, 
all prior endorsements guaranteed, Sept. 8, 1925, First 
National Bank of Yakima 98-32 Yakima, Wash, 98-22," 

It is contended for the plaintiff, F. & Nellis 

& Oo. "that on the broad facta in the case, the money in 
question does not belong to the forwarding bank." With 

that we omnot agrees The plaintiff put in no evidence, and 
as to the material facts in the case, there is no controversy, 
There is no doubt that when the Yakima Fruit & Cold Storage 
Company deposited with the First National Bank of Yakima the 
three drafts; endorsed in blank, they became the property of 


the bank, Anderson v, Keystone Supply Co., 295 Ill. 468, 


Doppalt v. National Bank of the Republic, 175 I1l. 432, 
Further, when the drafts, endorsed in blank, were sent by 


the First National Bank of Yakima to the First National Bank 

of Chicago for collection, with instructions that upon receipt 
of payment of the drafts to eredit the amount so received to the 
account of the First National Bank of Yakima, the title to 


the proceeds,when the drafts were paid, vested at onoe in 


the First Netional Bank of Chicago, and it then became the 
debtor of the First National Bank of Yakima in that amount, 


Anderson v. Keystone Supply Co., (supra), In the latter case, 
the court said, 


"Furthermore, the decided cases establish 
the rule that when # negotiable paperis endorsed 
and transferred before maturity as collateral 
security for a loan of money then made, the 
pledgee who takes the paper, without notice 
of any defense, is a holder for value in the 
usual course of business," 


There is no doubt, under the law, but that when the First 
National Bank of Yakima accepted the three drafts with bills 





l= 
.oO tegrt “ Te wee ened cab %o cabo ole os tet ie 
tecit ,@80f ,8 .teeR ,beedmexagy otnoweetebas coltq Ma, 
88-89 ,desY ,euliay SE-S@ amidgY te uned Lanoltall 
sit Con | 1 tutatatq one ‘ro? bohastav0 at 41 
ai yserom ont sneee ode at atost baord om ao “pede 100 4 
atiw tone guibzewzo? ert ot guoted #on n90b noLtaeup 
bas ,eomebive om ai tug Ritalsle adf _hoemgs tore ow tess 
“Yeroverdnoe on at ered? sae taal ab ‘etost tabted su ote os - 
egeto7ge BLOG & tivrl satiety ont octw dads ‘tdusb on at oxodt 
edd smlisl te ange Lanolt sh text? ams de. kw bet teoged: ‘rand 
te yar ccoty edt amsoad yedt einatd: ‘at beexehae ottorh: wordt 


888 11 Bes : y muehnh | hand ht 


+¥_tisqgod 
vd tase ovew .waaid oi Sevtobes yadtarb edt nedw .teddemt 

uneG Lame tt git tax lt edt oF mmkey to dagti fenoltgh texil ort 
tabeeee nogy tent snottosstant dt bw woltoelloo bei Sasekdd te 
ant of bevisnet oe. ‘tavois ie ‘gtbere: oF atterh nit to taoeyen to 
or elt it ott oubie® ro inst tenedt git torrt ont te tawoons 

mi gono te hetesy bitae’ exer at taxb, eult aedw <abssoorg edt ) 

edt ameoad orci tt bas 20.50.40, Yo: sad Lanoteeistentt ede 
stnyons ted? al amide To: trae: Lanoltel #et2% oft to xotdeb 

- +¥_gommebaa 
+ yblse daroo pit 








.9aee tTOstel ode gt .(etgee) | 





» pain to sta efaneton ne iste pau See 
ait | ont 

sage aLL8 tye fasten ot 4 

ett ~ehsm ge sacs’ Ae tee i OR BE 

soliton duodtiw .reqsq edt eo ae, Octy 

oat ad oulev pat ren tas & at ,oamsteb yas te 

ee ‘,euemtiens® to eerwoo Tava 





Ay i) Aaf j 


Nf Renee as Beet 
fextt oft modw said ted .wal eile ‘vane “tduob om ef ore: 


eilid dtiw etterh serd? sdf hetqeove emiteY to tad Lenoltol 





-Lle 


of lading attached, it became the holder in due course, and, 
as the court said in the Anderson case (supra) “It took 
title to the goods described in the bill of liding attached 





to the drafts." It follows, here, therefore, that when, on 
October 21, 19235, the plaintiff attached the proceeds of the 
three drafts in the hands of the First Netional Bank of 
Ghicage, the garnishee, the Yakima Fruit @ Cold Storage 
Company, had no interest in them, and neither they nor the 
proceeds thereof could be held to satisfy its debts. The 
court in the Anderson case, Quotes, with approwal, the 
fol lowing; 
" A&A bank acquiring in due course a draft for 
the price of goods, with the bill of lading attach- 
ed, is the owner thereof, and theproceeds in the 
possession of another bank nicht the draft 
cannot be attached as the property of the seller," 
(7 Corpus Juris, 617) 
fhe assignment of August 6, 1925, made by the 
Yakima Fruit & Cold Storage Company to the First National 
Bank of Yakima, contains such recitations as dedinitely 
show that it was the very punpose of the assignment to 
give the First National Bank of Yakima full and complete 
authority and ownership as regards just such drafts as are 
here in question; that»ahthority being given, as stated 
in the assignment, in order that the First National Bank 
of Yakima might assist the plaintiff in financing ites business 
by loaning and advancing money on drafts and bills of lading. 
The assignment contains these words, 
“We do hereby authorize said bank to collect 
eaid drafts and apply any moneys so collected to the 
peyment of any indebtedness we may owe said bank, 
whether dae or not, giving said bank full power 


and authority in the premises to handle said drafts 
and bills of lading, making said collections and apply- 


———— a 








+L I~ 


bas ,eatvop cub at tebied edd smmoed 71 ,bedoatis gaibsel to 
Woot I" (Argue) geae soezebnd out at bia’ tryoo edt as 
hedéatis gatharté [Lid ody mt bedttoesd eboog sit OF elttt 
so god tadd.,eretereds sted Bo [Lol #1, ny thexb ent of 
ocd to sbegoony odd bodoatte Y2itaiatg ed¢ ,B6CL ,£8 xodoteo 
ko, deed Leqoltet garr% adt to ebasd ant ae etlexb ostdi 

_ MBETORE Biod § theE amtaey ot. .sedetersg ott .og20 hip 

_ edt, tom, Yedt sodgien bas ,wodt at teetotat on bad ,yasgnod 
_ OAT, .etded, ett Yieltss ot bfed ed biyoo tooredt eboeoong 


, oot, efevetqgs dtinv, waetoup 9280 soeTebsk sat at Sreee 
+ A ay Rhee ~<a she Mi Bis _ apa WOL Lo? 


“get tech Careetars ates _ ie hey, Pee 
-doatia gainel te a % w tq odd 
“eit ai abossoryent bas s conae’ a at a! 
tte ods i BEN reoaee isa 0 oe to. ao 2 
mySeaine edt idoianaend ont eB ai cin . 





2 


th 
Ks & 


Say Shen 28% .B tavgva to rimaiennte viapesabaay 
fenottem setlt ett oF yatqnob ogstore bod & dtuyt watsey 
vlottnie ae anottatioss dows ehisitnco camidey "YO iit 

6 tnonmgious odd to seotuanq “Urey ed?) ew FE tailt wile 

bee Lqmeo Hae Liv? aisle Ro Xage Leno rten terbe wut! ovdy 
we a6 atherh dove teul ehrager be qidetemve bas yt todtire 
“betste as \aovdy galed yitrontieytstt \jeotteoup at orbit 

Anef fanottel terit edt tedt rebte at gtaemmyteda eis at 
sesatand ad t EMRE, at A ar ont, fuisan:diohe watiny to 





tostios ‘et Xund hin > eevee dace gag ‘ 

tt ot betoelfon of syenom yre vache bas atterh bise 

_ tagd hiss oo. yen,ow Res sbat to. tnemyed, 
ogee d tiv? eyo bia iooatnare 








a | 


ing the proceeds thereof as it shall seem best,® 


fhe assignment then further states that the 
bank is authorised "to forward items for collection or 
payment direct to the drawee or payor bank, or through 
any other bank or agency at its own discretion," 


Qounsel forthe plaintiff urge that the assign- 
ment in question was # nugatory instrument. We know of 
no law which would prevent the plaintiff, the First 
National Bank of Yakima from making such a contract as 
is represented by the terms of the assignment. 


As to the claim that the First National Bank of 
Yakima was merely acting as a collector, that is answered 
by what Mr. Justice Thompson stated in the Anderson case 
(supra) pe 472, which was to the effect, applying it to the 
circumstances in this case, that when the Yakima Fruit & 
Cold Storage Company drafts endorsed in blank, were deposited 
with the First Hational Bank of Yakima, they became the property 
of that bank, and when sent by it to the First National 
Bank of Chicago for collection, with instructions that 
upon receipt of the payment ofthe drafts to credit the 
amount so received to the account of the First National 
Bank of Yakigg,kept with the First National Bank of 
Chicago, the title to the proceeds when the drafts were 
paid, vested in the First National Bank of Chicagos and 
it became the debtor of the First National Bank of Yakima 
to that extent, 





ww RYE 
tits tis peibal 

\ wa aol Pe ebehs ee) vee 
trod 3 19998 e fede eb es Peene sbosoont Wed ant 


vse pat bed cota sod tut todd spevneiten ent? a be 
4 _t0 nettmetiog sot amett brevet oF beatredtus ei. aii 
ftgvo7d? to ,Aned xoyaq 7o SowaTh adt ot. soorth treeysq 
(“etoitergaib ovo att se Yorege to aned, rede a: Oe 


—apiess si tedt bate witaists addsot feemen i 


ch a rs spony 


fo wond ov staonsrtent ytotagen & ar nottaoup mi erie 
by a kh he 
dorgt 6dt \ Tarai ode Yaovety Bivow doldw wa 


apo 


es toertace e dows gridam mort safdeY to Amott Heide 
| SPORE ads ae pret att naan et 


Nb UREA sn 


to 08 Fenoteat texte edt ete Wikss wild ay ks iiss 


4 


OS MD A 3 
horduene et tadt ,covedl foo & ad ‘paltos ylorsm aan 


ga60 mosrsbhaad att al betete axoeqmost ou bien TH hate ve 

ont oF th gatytece Gootte 6 of eaw dio tite ark o@ (3 a 

A vLOre entiey oat aodw test bebe Bhat a2 eo vonsteauerto 

betisogoh Stow clabid at beardbae sitter) Ynsquot 6 yerose | ‘ble ] 

UUrocorg off ‘emused yedt yemtasy to Meee ‘tanott am ‘forit ca « ng 

feceivet texid ody o¢ $2 yd gage mena ‘baa ‘Saad bade te | 

pede dmoltvoutteat Ati iaoddostroo ‘rot @3.0 Ee "Seanad 

jd Pinide Sh ebtaes “sade dada “Ste YE Sqbooos Cegts ty 
fantoite@ tetia ede to tavooos oat oF bevioo 209" 08 ¢ roa 

to Ame Lawoliay fers edt Witte syotatdin Yo. “ta : 

otew attard ont code abosoory Sit oF a trl wit logan 

bia yogaotd to aed Lonottaw veriy ole nt beveey Y 

anita te ane’ nana tertet oe, Pe 
















rae, Let ele) aia 
if ldit «TA Se RNR ret STR RE AR yee) Sates... WRG py y 
: | aera ied wore) aes voatede’” 
tie eae te k act twee: Bore 
ey HRA ROLE att eM a CMe meee 





4 


“13- 


fo hold that the buyer, after prying for the 
merchandise, and finding it bad, is not entitled to go at 
ence to the bank to whom he has mde his payment and get 
back his money, may seem at first blush a hardship and in- 
justice; but it must be borne in mind that just as soon 
as the bank here received the money it became, eo instanti, 
the debtor of the sender of the drafte, and so could not 
return the money to the buyer of the goods, and, further, 
thet the sender of the draft, by reason of its contract 
Gf assignment with the seller, was entitled to use, at once, 
the credit it had with the bank here; thus relegating the 
wuyer to his rights for breach of contract or otherwise, 
against the seller, 


It is urged further for the plaintiff that the 
trial judge erred in instructing the jury at the close of 
all the evidence to find for the First National Bank of 
Yakima, the interpleader; and it is claimed that the 
matters involved should have been left for the sole de— 
termination of the jury itself, The record shows that 
no material fact in the case was in dispute, and that 
being the situation, we are of the opinion that it was 
entirely proper for the trial judge to instruct the jury 
as he did. 


Finding novéerror in the record, the judgment will 
be affirmed, 
AFFIRMED. 
O'CONNOR AND ‘THOMSON, JJ. SONCUR, 





a fe 


edt tot gaiyeq getia ,reyud eft tedt bled of 
+6 oy of Bettites fon at ,bed ti yatbeit bas .eetbnadoraa 
tog as taemyeq ald oho esd ed sodw ot daed. edt o¢ seme 
~ai bue qidebtad s deufd taxtt 26 moon YOu q¥erom oid Joe 
gooa a8 taut fads bats gi sexed od daam t) tad yoottau 
eAtaasemt g8 .meoed gi Yonem odd hoviooet sted aaed edt ae 
ton Since os bas ,atisrwh adi to xebaoe eat To xetdeb ont 
etedetat gbas ,vbooy oct to toyed ody oF Yoon odd mentor 
fosttnos ati to nouser yd ,ttetb edt to cebmde dite Fade 
oomo #s .Sey of bdTti¢ns esw ,rellon ode div tasteless to 
edt gutvsgelex ewdt gored aaad ‘od ddiw bad $£ t106%9 ‘edt 
poekwrod?o t© doartnes to doserd tot atdgix aid oF veyed 
telise oft tenlages 





Sf art 
ti te 


ont todd Viktaiala eds tot radtewt begrt et e" 

to sacfo ont te peut out gattourtent at hexze abut ‘Polke 

to naa fenote ay teri edt rot balt o¢ somsbive. edt ‘hts 
ede dade comtelo ef $i bite yuobsetqredal odt amb 


Haha a 


meh for ott tot ‘tel meed evsd bivode bovlovai erodiam 





das ewoda hroder ecp ytieats eat. edt to ‘noltantmtes 


‘badd bas eotuqake ‘ai sow seso ot at ‘teat ‘Terretem oa 


‘gan tt tadt aoiniao ont to ors ow sontautia ‘edd gated 
wt ods fourtaat ot } spb tabs att rot tegen ‘qietitae 
; ne goed bey 


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fiw, 2 geogbs). eat breve, edt, al tonteson. gatbaet. GV 25 Ea 





smu TRs, RS MRO. npatel  eupkeiieety sal i 
SOKO . tb MOBMORT! CRA HO WKOD 'O 


130 - 312606 


@ARY Ban O2nD, } 
Hefendsnt in Errer, ; 
) ERRoA TO 
Ve o MURIGIFAL © Count 
} oF THICAGS. 
A. ike WILLIAMS, 

Pisintiff in peed A. ‘Be 

| 0,inion oe se 6, 1927, 

UR. PREGIGING JUSTICE TAYLOR delivered the © 

7 epinicn of the court, 

: fie claintiff, Mary Sanford, eleiming thet, 
upon a seit fer demages being breught in her nase agninet 
the city of Ghiesgo, by the defendemt,n&. L. Williams, 

; ae her attorney, «nd = judgvent for #4560,.00 being ree 

4 severed and thet anout peid te him, of which he paid 

i ber only 2300.00, when they bed agreed that he should 

( get for Sie services only one-third of shat might be 

: recovered, brought suit agninet hia, the defendent, 

far the difference between one-third and one-half of 

: $4500.00. There war 2 trial before the court, with a 

i jury, *nd & verdict and judguent for the plaintiff in the 

, sum of S781, B26 fhe defendent prosecutes this writ of 

: error te reverse that judgment. 


; The plaintiff's busbend died on July 29, 1919, 
@s the result of injuries reeeived in certein reece ricts 
in Chiecgp, in 1919, 


In duly or Auguet, 1919, the defendent talked 
with the plaintiff about « slei= which she sight have 











ES 


ee gS aaa a i rt sie t 2s 





crores at se 
s es aff. ee. Boao 


or mnt 


aE le tied sister 2. Rae. Se Ue « 
a a aN at 












He eadig eat 


LObaee Bas 


“#83. AEM tes 


et gene a Ca ‘paLit cts eh og acts weutex 


ae oe bile te TSpAE itt tie 


) bereviten sostar Pane eee, savtana ‘te 


hoe Mes Les wearer 4 PASS. esd ad Bigg ges SH a8 tr ae B55) 


errs gntnielo brates “eres MbtaLaty ome es wae 
faniage seen asd eb Ptguord ynted seg omeb coh stirs x amas 
— gMBOLLALY od +a tasbaetsh 94g w ssaeetin 1 vase 


Ee sie i ; eee supe et Seg 3 Ce si 
“oF gated 00.0089 zot tmoeg bel # ED Siecle 
ae Bs ee ot 2%: ah peat a3 PPE eS BE sz ‘eS ; =" s 
iow of ide Ye ssid of bieg Suro Sade 
eee se oem Seite Foes Bae ee eee ae 4 Ge 7% 
























ew Pei ee % eer os “‘eeaq % yt Tse 45) 
“stmaneten ost wand teniags a ive | 


# SETS Seo 4h eer e 


Riad a3 ee 50 toe SSR foe a i a 
a Seite sfz00e att wated 
ee Es aes en Pes Oe ere “Te 
edt ad Whealele adt vo? 
¢ > ees $e see bark 


“'s tien sat enaupanoty ¢ sacar 


Be j 
igi eae oe Boe oe tha. ged Ree aed ; e 
“ener ee “iat wo best a 





ale 


agtinet the City as the reeult of her busbend's death, 
It is his evidence that he told her that, ag she anid 
she had no money, he would take her case for 60 per 
eent of what might be recovered, and that she agreed; 
‘that he investigated the case snd,efter further telke 
with her, especially as te filing the suit ag a poor 
person, he brought suif im the Guperior Court in the 
name of the Public Administrator; that another lawyer, 
one De Armant, alao, brought suit for her; that when — 
he found thet out, he talked with her and she said for 
doth of ther to go on and not have any fight, thet each 
of the lewyers snd herself could have oneethird of what 
might be recovered; that he told her that if he did not 
aueceed in getting De Armant out of the onse that would 
be all right; thet he then went before Judge Hopkins and 
had be Armant reseved; that some time before De Araant 
wae removed he had an agreement that he should get 


half of what might ve recovered; that the firet suit 


he, the defendant, began, he crused to be non-suited; 
that before beginning another euit for her he talked 
with her and told her that as they had no writing as to 
fees, the satter ought to be put in the fom of a cone 
tract; that, accordingly, in his office ehe signed 


gontract providing thet what might be recevered should be 


divided equelly between them, 


A regular form of Gontract and Power of Attorney, 
purporting to be signed by the pleintiff, and providing 
for the retainer of the defendant, and thet he shovld 
Teceive as compensation for his services 2 sum equal to 








wave he ae we eee ae 
Deine he taee AME ES 
a PN ae Yay. 


odsnab athasdaud tef to eloess ‘ede an ¢o2p. oui. tanlage 
wise asin ae atadds tod bint od tasdd, soapbive vid of *t 
xg 68 rot sane tod ast bLuow ad vtomon on bad wa 
_Hiamys ode tad bas .boroveoes ot thy ten ¢ ovtir te sae 
‘gifed Tetetot todte,hae vaso out hee igeown od tet 
tooy as Tine sift week oh mae Usabeoaee axed Atin 
wad ai os 00d tolreqee ade ah Clom @dgsord od wnoersg 


 gteyeet 2 sadiaan dade jsotertadatebs oLidut att to gana 
_ ie tedt pred got olive Siguond yoke .fammrd 08 onto 





ai Biss ode baa tod dite betlaé ado yiwe tate onset od 


done tate .titgdt yt aved tom hae ao oy hid rhladl to deod 


| satu to beittooae avai ewes Rownad bas axonal rae re 
st ae ae 
tox bas of ts dase wa biov “A onde ‘Ghorovooer 8 al hes 


| biwow tds even ods te 0 Same, * paitiey at be 
eas) feet, 
hee anksqori agbart proto onow amt ad tase tig ma 6 
eit AO a eeay: 
‘Praemh at ovexed omit ‘ace teas bovenss Snsnts ot bad 


en ae 
t 1% Biworte wa rade tanavorms co bat od bevenen. 


‘thse sexi ent sade pooreveoes od ‘4gt0 bade te Med 


Ph anid 
wativennon od op fonwn ad eft ataabas ton ag yet 
oneted A 


wadiee od aod 08 aiua redtons gainaiged sxeted me 
ot ex gaseire oat bad ene os tate tod bios va mt be 
noe a oo met ait at tog os oe tifgiso uaee “y 0 ot geen 
a ina bes ous sol¥26 and a vaninosinn 4 5 cone 


ey A SEM ae ae es oe ce Nt | 






of Biucds bexevenst ad aan ents $98 gathtveta doniae. 


tet newwted Leupe bebtvah 


ae Mea Mae ae ee Oe et ‘og on, 


jeonneet a ‘te s0W08 ban + eine te ae t xoioyon a 
a ates eatate one yd baity ta on of ¢ 
——— ue tanta hey ti 


FN m sis bth ted 4 


steebar' ay oatines oat 23 2 











on Sew 
one-half of any acttkement, was introduced in evidenes. 


The plaintiff denied thet she hat ever retained 
be Armant, or that che ewer hed any conversation +i th 
the defeniant se to eagh of the three getting oneethird, 
It ie her evidence thet she never agreed to give the dew 
fendant onemhalf; that the defendant eaid he would take 
One-third, end that ouch an agreenaent was made just before 
the money ena peid, Ag to her signeture to the alleged 
Contract and Power of attorney, her evidence ie comewhat 
eonfusing, but, neverthe leas, we think deqonstrates thet 
it was her signature, At first, on cross-exsaine tion, 
she said she did not think 1% woe her handwriting; on 
rebuttal she eid it wae not her handwriting, and then 
On eroee~exaninetion said if she did eign it (referring 
to it and three other writings) she signed blenk pieess of 
paper. The other papers referred to consisted of (1) 
& Power of Attorney, dated linrch 26, 1923, to the defende 
ant to collect the judgment; (2) an aceignment of the jucig- 
ment, date’ February 16, 192%, to the State Bonk, which 
wee wade in order to turn the judguent into cash, and (3) 
& reeeipt dated uny 8, 1926, for $2300.00, *Im full payment 
of moneys due we from suit against the cityvef Chicago, being 
my portion of 24500.00 judgment ae per former agreement with 
eaid A, i. Williams.” One tellers, * handwriting expert, 
testified that the writing of the mame, "wary Sanford," on 
each of the four documents ie in the same handwriting, 


On her oross-examination eben originally called end 
testifying for herself, she stated that the signature to the 


i Sor tne SS 
oe Sea 


/ 
By i 
i 








id 






seomebive at haoubottal gay .fromedtioe yrs te Bs 


bawiodss tewe hed ata tatt boleh Weber hate weer Go oo. 
gtw weltenrseaes que bat TOE oth walt re GaineTA oO 
sbrldthane gusttiy eotde bay te tote Of an Panbad to eile 
«oh ad oF; OF beerge ever ode Gast bomibroe ced Ot OF 
oda? Hite ot bisk tawbastor ect todd YRiedoone" demhast 
owated tet shex skye tremetys ms Bhve tett bas ,buhti-~eR0 
beyetts e897 of ormtaayte ed of WA sbhey winw yamole mts 
gadweeor oh ssaebive ted ,yoetadrA Re genet Baw teerdegd 
tad? aetmrrencmed axtid ow (weet odetoven dud ynieahwoe 
 hotteetete~egorh me gerky FA .otedongte tot ame es 
‘ae qyaisivtheed ‘ted ese tf antd> gow DAD bie BERR Wile 
pete dee gatebeetied aot too mew OF bie ois kattuden 
gittecoten) ¢£ ogte bib ede WW biew seteanton 
Ye eseeky dneld bomate ome (egebittiw tema oieitt ‘bas! tee 
“(EY Ye hetetence of derneter wteigny xodto oie “toe ero 
ehostab ed? of SOR 82 corel Bebab akenmoe gt te xovot 5 
~gbut of? TO trenmgiovs ae (8) {jtasmphut sdf doetion of tus 
hide ined eteed oft og Sher jor crave’ hageb tithe 
(8) bas dese oft teompiut ott axef of Votre mh haus How 
tanayoy fit gt* ,00,0080) xo ORCL 8 yak bavth Pqteoey o 
gated ,gootm Yeictio od? temtaga tore wink om Sab ee on to 
athe tiewrergs vamTet xeq ea teemghwty OO 00808 te noitroy ya 
ues gait itwbiad © yavotlon® oa0  Ssemek tte 2 (8 eee 
*drehiaes yxeu" jouer ade to palette ond rade’ nenthewee 
sal iemband oman olf ak ei etuomreeh, net ott to doe : 
hes bo kien YLLankyhao sade we Le toes ot amir eerainy 


nas of sasha re tay bones ots Rivero rot qactetaeane 
ae mee ‘sek gunaaiversame cae neem 3 




















Sadie 


assignment of judgment of Februsry 16, 1923, wea in her hand» 
writing; as to her signature te the Contreect and Power of 
Attorney of March 86. 1033, she osid, "Yeo, - thet does not 
look like my handwriting. Wo. 1 am not eure;" that she did 
not think that the signnture to the Contract and Power of 
Attorney which wae undeted, and which purported to retain 
the defendent ond to prosise him one-half in cane of settiee= 
ment, was in her handrriting; snd that the signature» to 
the receipt of ny 8, 1326, for $2300.06, to the defendant, 
which states that it was in full payment of what wae due 
her from the Gity upon her judgment, according to her 

former agreement with the defendant, was in her handwriting, 


Goneidering the issue that was made, and the 
way in which the case was tried, the chief question that 
arises here, is whether the evidences proved that there was 
& contract between the plaintiff end the defendsnt that 
he should be paid, ae compensation for his services, an 
amount equal to one -third of the asount of the judgnent, 
leas the discount, In oor judgment, the verdict of the jury 
was manifestly against the weight of the evidence, 


Anmtlyging the evidence, the conclusion seess 
irreststible thet the contract and power of attorney, by 
which she egreed to pey him &s compensation for hie services, 
& sum equel to one-half, wae signed by the plaintiff. 


The expert who execined the four doequmente presented 
to him, the signatures to two of which the plaintiff testified 
were authentie, stated that «11 four signatures were in the 
- Game handwriting, The defendant testified that the signature 


Pike 


a 








a ri wel Dees 


shend pil a a (BORE OL qravrdet to Foomagbart ‘to Sa08mg inne | 
26 Xew0d hae tooténg? sdk o¢ oxutermte aed ehvea qalsiaw 

- 900 noah Fad? « .99Y" bien efe FOR .88 dotey Yo qeanedes 
bab ode tadt “youm toa we Laat iakeleweand wa omed dowd 
Me TeHOy hae PDOTARAD Ade ef oxutomade odd tadd alakde tan 
Aiotax af detroqaug Metin das .bedabies sim, doin wmomotaa 
ALTO, 8, aces, oo Ehodwsao, ahd eeleuty of bie Packaateb. ad 
Of <otwtamgte off todt Ane galt teobagd med att pam: tenia 
stuabseted odo OF .QC.00E8$ Ok 6M QS anit to tqtoney ate 
nuh eee fade te Sopeyeg Aint at aon th tog, ameme dpishe 
Tod OF yALoTODEs .Keonyhe, tad moqu YEO. ade moek om 

spate orehaes met A a steabunted, pdt chow Arnnveym Soaeet 


ate aie sic iain | 
oo baw \ohew gaw tate Goedd ole gate obbaned 7 


dat? sokdmenp Tete ott ate ey a peered 
sie weed? todd weveny oonen rye ont teAtedw o ot ree 

fade taabmoteh 443 bhe niente) sald ens a ‘torte 3 am 

te ieeigre he ope molt ial eae ne 








eek en? ‘te Gokivraw oxly stabeghet oT] ie iii 0 vue éaet 


bi i eR 33 hie iy 
"  wOMNb.Ave oe Te dein bind feats ¢isténinds eae 
al el hy Y cd ft 


aaa paknntane ane ahah. Ath, satin mannan ye 
. atiarerie Te Pati Rae AOAERMEO OAR: RARE A 








etotenghe ote, toe mtn cesindichio an - anireraad case n 


Phy 
An ph: WAAL 
BAe M0 DEA et Ot eR RTA 








ob- 


to the contract and power of attorney waa signed in hie office 
by the plaintiff, and all that oon be made from the testimony 
of the pleintiff in regard te her cignature to the contract 
and power of attorney is that at one time she did not think 
it wae in her handwriting, and when oslled agein,in rebuttel, 
that it se2 not in her hendwriting. further, although he 
testified thet the agreement throughout s11 her relations 
with the defendant was that he showld get one-third, the 
original etatesent of claim abe filed, made no reference 

te any such arrangement, and the amended statement of Gleim, 
which was subsequently filed, was baeed on an alleged ordine 
ance of the City Council previding that as to judgmente to 
be entered agtinst the City for the aum of $4600.00 in each 
ef the race rict oases, the owount of the attorney's fees 
should net exceed 25%, 


On the ground that the verdict was against the 
manifest weight of the evidence, it becomes necessary to 
reverse the judgnent, 


Some mattere are referred to in the brief of 
counsel for the plaintiff, which pertein to the condition of 
the record, and to certain exhibits, »ut in the view we take 
of the cise, they are uniaportent, sand not only unimportant, 
Dut imeaterial. 


The judgment, therefore, will be reversed, and the 


cause remended for a ner trisl. 
REVERSED ABD AEMAREED 


O'CONNOR’ J. AND THOMSON, J. COWCUR, 


en 


eurtte wie at Boag ea qentedée td tevag sia hina ‘lee ! 
Yoonitast si% wort ebaw os mie godt tla ban Sharkty oy w 
doovdaes ode of veutangy te ved dF Breyer wt THaLaly Wi te 


datas tou hth Bin owtd ano tu Gadd at qomrorrs to toweg fata 
fetewder ai alec batieg adw baw gud brads ‘tod WY won FE 
ste dyeodeta vette gate ixwbast ‘eat ai ton ene 6d Pade 
anvideker vad IL0 Juodg20tk? Jrammevge aft todd bosttrasy 
ade bind damomo tag Biveds ed vat axe + nitiate Wb ere 

| eogere tor on whit hate’ wie siinte %6 tadnebara 
atetn Yo Smee tm pabeewe wey haus ataomeyaeete ‘deve yaa od 
aakbne bows Le or xe tepatl awe bolts qidawensedion ‘ane thet 











“Of ataergbet ot 94 Get yatbtwore Lomed yh aa 26 deme 


done ad OO.O0R Bo man se <oh yep ate Janlage beretae od 
ave atyanaate ott to awens ong, meindbiniienie biked 


ont Puan food sotoany xo ‘bade brvory, ‘oak ‘°° sate aa is 


ot yisevecan e9ma0 of a aoonobtys it 1 * + bint eae 





Saat ‘want 

Ye toded eve mt of. aie 2 y venti mp Siiviann . daar 

“te aerttbacc odd of abxteeq Aotin \Yriomiats act tw? toumon 
eked ow woty ode al er ne ee a ee 

staeeroge ta ‘a0 ‘ten baw  atasrroaticn | oe _—_ «tei Ye 





“tet 


we ERS RR TN AS ERE ARREARS RR 
yma a Rwy at inte wrote og ong wood ( 
Pi a ae a ave 
. Rerindhi eas 
ite me he mer ae) eae 
: exe ua cuenavan sii huh a ied sid il 


eg ein 2 Siam 








Svea aN RSS BEL ACN SS a i cc i rn ial sh al oat dsm sia 








PS eee 
TE SSO Se: aad 


a 


136 - 31266 


PHILIP A. KAMEECH, 
Appellee, APPEAL FRR 
SUPERIG: GOURT, 
Qcok COUNTY. 


Veo 
BAK AARON AND JORN VITALCAA, 
&ppellent, 


Bie 


| 
x a ine 


Opinion filed April 6, 1927. 


“wR. JUGSTIGE O'CORWOR delivered the opinion 
ef the court. 


Plaintiff obteined @ verdict and judguent 
against the defendants jointly for $200.00 in an action 
ef trespass for an assault and battery, and the defend- 
antes apperl. 


The record discloses that on November 1, 1924, - 
plaintiff, who was in the grocery business, drove 4% | 
hig auotucbile te scuth Seter strest, where he desired ! 
to mnke some purchases and backed it up to the sidewalk 
20 that part of the truck waa in front of the otimmission | 
house of 3.Aaron & Sons of which corporation the icfende 
ent Max Awron wes president end the defendant John Vitalora 
was & saleasen enployed by the corporation, The evidence | 
further showe that the defendant Vitelora and some other 
eaployes of &, Anron & Sone vere hendling lettuce on the 
sidewslk in pea of their eapleyer's place of business end 
that plaintiff's truck, becked up a8 it was to the sidewsik, 
interfered with thee in their work, and plaintiff wes ree 
quested to move his truck so as not to interfere with the 
handling of the lettuce, This he refused to do. An alter- 





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cation eceurred between bia and the defendent Vitalors, 
Vitealora struck plaintiff in the mouth and severely injured 
hia. There is evidence to the effect thet plaintiff eslied 
Yitalora a vile name just before the slterestion, fhere is 
further evidence to the effect thet the defendant, Asron, prior 
to the time of the altercation seid to the defendant, Vitalora, 
and another employee of 8. Aaron & Sons *get him out of there# 
referring to plaintiff. A number of witnesses, including the 
defendante, testified that Auron made no sueh statement and 
that he took no part in the controversy and hed nothing te 

de with it other then he wae near the door of thecatere 

ef B. Amron & Sons at and defore the time of the alterese 


ticn, 


the jury were inatructed thet if they believed 
from the evidence that Vitalora aesaulted the slaintiff and 
thet the defendant, Aeron, "stood by and aided, abetted, agsiat- 
#6 or encouraged Vitalora in meking said aseault, then Aaron 
wes equally liable with Vitalora,* and sinee the: jury found 
in plaintiff's favor and against both defan<ants, it must 
be presumed that they found that Aaron abetted or encouraged 
Fitalora in waking the eesault, 


The only argument in this sceurt is sede on behalf 
of Amron and it ie contended that the court should heve 
directed a verdict in hie favor as requested by him. With 
this contention we cennot agree, fe think the question of 
Aegon's liebility sas for the jury, fhe lew is cell settled 
to the effect that if one defendant commits an assault upon 
the plaintiff and another defendant aids, advises, sbets or 
encoursges such eseavlt, both are liable, Hildreth v. 
Henecock, 156 111. 618; & 3.3, 626; 2 H.G.L. S73, It is 





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alao the law thet if one is aerely present at the tine 
an assault is committed, he ie not liable even though 
he mentally approves of the sgsault. 2 R.G.L. 527; 
Brink v. Purnell, 162 Wich. 147; Bjue v. Christ, 4 Il. 
351. Go in the inetant ezse if the jury believed that 
the defendant Aaron told the defendant YVitelors "to get 
him cut of there referring to pleintiff, and that shortly 
thereafter Vitnlora ascaulted slsintiff, ae disclosed by 
the evidence, they might draw the inference that Aaron 
abetted or encouraged the assault, in which case he would 
be equally liable with Yitelora, The inference, however, 
was for the jury and not for the court. [favale v. Jorton 
Salt Con, 242 Til. Appe 205; Mocre v. Egsemond, 238 HY, 358, 


Seunsel for the defentante cite 2 number of cages, 
most of which, however, are master and servant cases, where 
the liability of the master is prediceted on the doetrine 
of respondeat superior and therefore, inapt becouse in the 
instent oxse both defendents are charged in the declaration 
as joint tort feasors. 

A further complaint is made that the court erred 
in refusing to instruct the jury as requested by the defend= 
ants that even if they found the defendant Aaron hed used 
the words *get him out of there* as above stated, it did net 
authorize an assault or mke the defendant Aaron, liable for 
one if committed by Vitelora. We think the instruction sas 
properly refused. As above stated the jury might draw the 
inference that if Asron used the vords “get him out of there,* 
he thereby ebetted or encouraged the assault. 


The judgeent of the Superior Court of Cook Gounty is 
affirmed, 
AF FIRMEDS 


TAYLOR, P.J. AND THOMSON, J. OONCUR. 





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APPEAL FROw 


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appellee, } 
| SIRGITY GOURT, 

) 


Ve GHok COUATY, 


Appellant. i ree a 


Opinion filed April 6, 1927, 
BR, JUSTICR O'COMKOR delivered the opinicn ef 
the eourt. 


Plaintiff brought an action against the defendant 
and the Chicago Railways Company and the Ghicago Gity fnilvay 
company to recover damages claimed to have been sustsined 
by him for personal injuries. fhe esse was tried hefere a 
jury 2nd at the close of plaintiff's exse the defendants 
moved for 2 directed verdict in their favor. The sotions 
were overruled end the defendant, Aeverazan, procecded to 
introduce evidence and sfter teo securrence witnesses had 
testified and after they were orogs-examined by counsel for 
the street car companies, at considerable length, the court 
on motion of counsel for the street car companies directed 
& verdict in favorof the street car companies, fhe trial 
then proceeded and there was a verdict and judgment sctinet 
Aevermann for $2,000,0, 


The record discloses that about four o'clock on the 
afternoon of September 27, 1923, ss plaintiff we in the 
act of oranking his truck, which stood nesr the nerth ourb 
of West Division Street, from fifty to one hundred feet 
east of Crawford avenue, snd fating west « street car was 








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approaching from the enst in Division etrest and the 
defendant, Aeveraann, was driving hie truck in Division 
street in the sane direction smc shen the street car and 
severmann's truck had reached the point opposite where 
plaintiff's truck wae standing theze was 2 collision 
between the street car ond Aeverzann's truck, aa a result 
of which Aevermenn's truck eollided with claintiff's 
truck, pushing it forward and injuring plaintiff. 


_A& police officer was celled on bebalf of plein=- 
tiff end teztified that he was at the northeast corner of 
Sraeford evenue and Division street and saw claintiff's 
truck etending near the north ours of Division street, about 
fifty feet east of him; that at about thet time he sew the 
street car and Aevermann’s truck about 150 feet farther east 
eressing Harding avenue; that the street car, and Aeversann's 
truck which was traveling immediately north of the street 
caf, seemed to be racing; thet the etreet car and the truck 
were about even; thet he then momentarily looked torard 
the north and then heard a eraeh and on turning around he 
saw that a eclliisiog had occurred between the street car 
and the teo trucks, fhis ese ali the evidence offered on 
behalf of slaintiff as te how the accident oceurred and 
at the closes of plaintiff's case counsel for the atreet 
@ar companies and counsel for Aevermann made separste motions 
for a direeted verdict, Both sotions vere denied, and 
then two witnesses were called on behalf of the defendant, 
Aevermenn, They gave testimony to the effect that for abott 
two blocks east of crawford avenue the street car was traveling 
west behind Aevermann's truck, which wes straddling the north 
Fail of the west bound street car treck; that the street 


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car was traveling ebout thirty siles per heur and at 

about the time Aevermann's truck had resched = noint 

nearly opposite plaintiff's standing truck, the street 

ear ran into the rear end of Avermann's truck and threw 

it against plaintiff's truck causing it to injure the 
plaintiff who was in the set of cranking his truck, 

These two witnesses were croge-exeained by counsel for 

the street car companies end ene of then was crose=-exaained 
by counsel for plaintif?, The testimony of one of these 
witnesses wes also ‘to the effect that there were & number 

ef broken windows om the north side of the street ear which 
resulted from the epllision, At the close of the eross= 
@xamination of these two wltnesces, the court adjourned 

for lunch and upon the convening of court in the aftere 

moon, &t the request of counsel for the street car companies, 
the parties went into the chexbere and counsel for the street 
oaY comrenier then sgein asked that his motion for a directed 
verdict be ellowed as of the time sleintiff closed hie case. 
Thés wotion was sallewed and the jury were instructed accorde 
ingly. The suit wis digsissed as to the etreet car companies 
amd counsel for the street car compenies then left the court 
room, The case then proceeded with the result 2s ebove 
etated end the defendant, Aevernann, aypenls,. 


Although no point is mmde that the court erred 
in sustaining the motion wade on tehalf of the street cer 
coupenies, we think we ought to say that it wss clearly 
@rroncous and prejudicial to the defendant Aevermann, and in 
vier of the fact thet the court told the jury that in dite 
wiesing the suit as aptinet the street car companies, on 
account of thete being insufficient evidence offered on bee 
hal@ of the plaintiff, as aminet them, it is obvious that 


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~4~ 


the jury would return a verdict finding Aevermann guilty, 
because it is admitted that plaintiff war guilty of no 
negligence and that he wes injured through the fealt of 
Aevermann or the street car ovmpanies or both. and when 
the etreet cnr compenieon were dienissed from the case, 
obvicusly Aecvernann could not beve been found net guilty, 
although the evidence, had the gage gone to the jury as 
ageinst all of the defendants, might bave warranted the 
jury in finding the street car companies ailone guilty. 


The teatimony of the police officer called on 
behalf of the plaintiff wae sufficient to make out a case 
against the etrect oar companies as well ae egrinet Aevernann, 
Whether the defendants or either of them were guilty of 
negligence, wae 2 question for the jury to determine, even 
Af there was no evidence exeept that of the police officer, 
Wor was there any warrant in the law in permitting the 
street car companies, after ite coungel hed cross-exawined 
the two witnesses, called on behalf of thedefeniant, Aevereann, 
to renew ite sotion for a direoted verdict as of the tine 
when plaintiff closed its case, Where a defendant makes » 
motion at the close of rleaintif’'s case for a directed 
verdict, if he desires to save hin point, he must take no 
further part in the triol, If he does take such part end 
desires @ direoted verdict, the court in passing on such 
motion must do so as of the time he makes such second motion 
and consider all of the evidence then introduced, J, ,AodWeiy. 
So. Ws Velie, 140 111, 59;, Fowler vs G. & We I. R. Co., 192 
Tile Appe 123, Of course, if there is more than one deferde 
ant and motions are made on behalf of all of the defendants 
at the close of the plaintiff's ense and they are overruled 


i 
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and one of the defendants stands by hie motion, the other 
defendant by putting in evidence cannot effect the defendant 
who stands by bis motion as that defendant's onse must be 
determined ae it existed when his sotion for » directed 
verdict was mde, notwithstanding the fact that the other 
defendant eubsequently introduced evidence : his orn behalf, 
Gondon v. Schoenfeld, 214 111, 226; 
v. Likes, 225 I11, 249, 





Defendant, Aeverwann, contends that the court erred 
in giving instructions tos. 1, 2, 6, and 9 on behalf of the 
pleintiff, while we might not reverse the judgment on account 
of these instructions were it otherwise correct, we think we 
Ought to say that none of them should have been given, 
Inetruction go, 1 sought to set out the facta in some detail 
and told the jury that if they believed those facte to have 
been shown by the evidence they should find Aevereann guilty. 
The court ought not, exeept in rare cases, tell the jury 
what facte constitute negligence, that is a question for them 
to decide from all the evidence, Penngylwania Go. v. Reidy, 
75 211. App. 343; fracy v. oF 185 Tl. App. 125; 
v. Dingmore, 162 111, 658; 1.0, Reh. Go. 

Se lee on tll. 43, Instruction No. 2 told the jury 
that in estimating the plaintiff's damages, they should tuke 








into consideration expenses inourred by pleintiff's for 
medicine, medicinal and surgical attention, although there 
was no evidence offered that plaintiff bed ineurred any 
expense, at least no evidence of the amount of such expense. 
By instruction 6, the jury were told, among other things, 


that if *Aevermann failed to have his automobile under 


ede odd. gmudton aid wi ehuste stasiaytod nit, 20 a0 Ame 
tamhagtod wd? toette sons sogehtve at, pated, cd dana tob 
a fame oem. 2 inches tek 2408 an aotpom aid NO shasta, enw 
hetaorth wh aoiter aid med oatetxe 22 aa hamdare 
redie att pede Soak od? pathnatedtiutes .xhag nen fottaay 
otiatad amy eid & macebtve heswhomtas ylides 


4908 0 1 1% ahadanoog pipiens 


ss Et vl OT ER pat epg, tT, 28. ” 
herre fxuce sit tedd abavtnon ,aaewteesd ,onabnoted aa, 
dt te Radad ag @ bra, QigS oh eet SPD 

farooos 60 teemghu, att saseren ton tyke oy oLede 6 thie. 
oy Moke or gtoryreo @aderedto 22 aso% nentgowetamt gaadt Yo 
atinthe ed oved blonds meg? Ae mann tat 188 —— 

Liateb wave al oteat ai? tuo tem of Siguce 1.08 Batson 
ovad ot St0e% sand? bovekod ode Rt Pest raat 2M? fot bas 
utlie aacgreven bak Diveda yodt aeavety a oat 1 soda wend 
Was} ont L127 .eneso geez of sxeoxe tha thug srr aM 
Meds 20% gobieerp mah danke adie exe stance atoat tae 























ORE gant a 7 ak oY 


OS Me Mek 4888 .20t BOL gopommate oF 120 ve ‘ltt 
Wis), ate bLoe & sol so dtowetegl > LE {60 guemdey | 
tne Hhyots. pod? . 4 toy aaah a Thstagede nate, sattentees a2, 49de 





eet a RRAdaieig ql bormeas pemeqns woktoneb kamam | dail 





oxedt tyuodtte. giv ttanate. Leo kgaee hen Lane Lem 





Yew beweaemt dod Weavedata tat aero de, eaeine ona 











oo 


reasonable control by not using hie steering lever, brakes 
and current controller,* or if they believed that Aevermenn 
was driving his truck at a rate of speed exeeeding fifteen 
miles per hour, or if he wae driving at such speed that hig 
automobile could not be promptly and quickly stopped, ete. 
they should find him guilty. This instruction was clearly 
@¢rroneous, There waa no evidence tending to show thet Aevere 
mann could not use hia steering lever or thet there wea such 
® lever on the our, As stated, the jury ought to be told 
the law without atenpting to go into the detaile of the evi- 
dence, 


Instruction 9 was in the lenguage of Seo, 22 of 
the Motor Vehicle aot and ought not te bave been given 
for a number of regaone, It told the jury that the statute 
provided that no person should drive a vehicle of the Firet 
Divisions as described in Seetion Ii of this Act,ete, They 
were no where told what section 2 of the act provided. Moreover, 
the First Division of Sec, 2 of the act refers to vehicles "desig 
ead and used for the oarrying of not more than seven persons,* 
while the second division of thet section refers to motor 
oara designed for carrying freight, and the evidence indicates 
that Aevermann's vehicle belonged to the second division, it 
is referred to in the evidence an being a truck end, therefore, 
was not used for carrying passengers, Woreover, this instruc- 
tion quoted the statute further with reference to what would 
be prima facie evidence, that the motor vehicle was running at 
& Fate of speed greater than was reasonable and proper, having 
regard to the traffic, It is very doubtful whether the jury 
Would understand "what prima facie evidence is." Stansfie)4 v. 


al 


; DAE GM ; Euauepe 
mod te pany satsoats and pater : dee ov foxdave | | sidanoases 
ee i Ve, Sa 
wnaere ven tad? beveling yon +4 <0 "sof torta00, ¢ hae 


Paget ole oll 

weustst yudbowpxs beoge te ad 4 te doust “phil gavin, —_ 
ali paid beoqe Moun ta gadvirtis ar ad te te Srinagar. pone ; 
sate .bauqote ilo tu trae eitquora oe ton on wk on 

; vinse te. wae pratoustent ait eS hg mid bert Paw Be 
er9v6 tad wode oF gntbnad sombive on ei ‘orett a00sores 


can 
town aev oxedt tad? so newest gaiterda nie ew tea " ‘ee ‘nae 
“bh fet ee OF gene qual Het .hecwtw va yties 9H ao eevel a 
ates edt Ye scananiiaad om wted oy —— Fomid ie wat ene 


 ) 

te se 008 te pangs we ab new e specs i Abi ie 
we mary aed evead ot fon ty we bes rea Pfoldoy ot c batt by 
sient od 4482 ent, 9x2 Dict 21 amonpon Y0 xodaum # =0% 





Sart ost Ye efotder a evtzb biuede nowteq on tae do by 
wou, atte .toA wide i tl sedtoas a bedtunsoh oe amok uv ae 
sOreOTEN sbebavors, das ot to & mottove tacts bisa oredn on St a 
pianb © ante tne ot exster foe, one te & ; rs te moselvie tex wy ty 4 







end sotbat seaehive ea bm Sener x0 f 


1 monetyth bacvee edt ot pegaeted “‘sfotiiey tanaaoves 2a 
exer ocodd hae Howes a gated es vomahtr od via hile virnyay hn 
~oustenk aidt _atowoorci swtogmouang ag hate” Benge on Bg 

bisscow acer oo sonore tor tt kw odsay't otutate oat enn mene 


be gutoswe cow folsoy coven oct fash «romobive, ‘stash antag 9d 


waived .reqond haa aidamomsen dal uid ‘TeteetR baat anal 
cat ade toedkte thr fo'tsatrob yeev ba ile " 


8) ER he 


© Minktanee, "40! sombtre Nese ats * tate ba steobay 














ola 


Hood, 251 fll. App. 586; Johnson v. Pendergast, 30% 111, 255; 
Barris v.Piggly Wiggly Stores, Inc,, 236 Ill, App. 298, 

We think the court ought notte heave given instruction &, 

for the reason that it attempted to enumerate the various 
facts as disclosed by the evidence. The jury ought to be 
told what the law ia without attempting to enumerate the 
various facta which plaintiff claimed the evidence tended 


to prove, 


Complaint is aleo made that the court erred in 
refusing to give instructions Kos. 9, 10 and 11 offered 
by Aevermnn. Inetructions fos, 9 and 10 were substantially 
the game and of course, both should not have been given; 
one of them waa sufficient and the defendant wae entitled 
to one of thea, Refused instruction Ho. 11 was inaceurate, 
It stated that if the jury believed from the evidence that 
Aevernenn at and before the time of the accident was driving 
his sutomobile with ordimary care “and with such cere as an 
ordinary prudent person would have used in the driving of en 
automobile in the same or similar circumstances", vlaintif? 
gould not recover. There mae in substance a repetition of 
the statement theag if at and before the time of the accident 
Aevermann Yse2 operating hie automobile as en ordinary person 
under similer cimscwistances, there could be no recovery. 
The pepéti¢ion should have been omitted. Woreover, it was 
corrected by defendant's, instruction 7, 


The judguent of the Cireuit Gourt of Gook County is 


reversed end the oause remanded for 2 new trial. 


REVERSED A¥D REMANDED. 


TAYLOR, Ped. CONCURS 
THOMSGH, J. SPEGIALLY CoN OURRING: 


I eoneur in the decision of thia ease, but do not 


he 


WES .151 BOT stommpohges vee rarrate eee a0 tit 
Pe aad ttt ase , eat * 


8 mo ltocrd ene aos ens orton # tga drwoo o fe anise mw 
eolaed ode staromen ot bedquadts ea # asl soaner ett xo? 
 @@ oe $igsro rear, ont * soosrap ve ovis w bovofont ee etoat 
‘ ee shart yay. 


ads et onesie ot gattquot sn duos Awe rs wal ase ‘fade Stee 
RL) 
“‘bobaee soconire: ont poatsie | Mthentata foite atest | - 


PL RAOLED 
ot i : 
OW ee > is ERS Ss eshte 


apes oven teva edf dadt ehem og fe af dapadqeod, y 

, aunieettpandh ne anneal. 
ylielisstadus oxow Of bas © .20% enelteuzteal .aacereves ye 
qaevig aeed wread tom biveodsa dtod .eerweo ba baa aman elt 
‘bole hies now gebanted ee has taste tts ‘eas wrty te one 
eretiovded dow tf 68 nohtewréaut boewtex ede to ono ‘o 
‘Padt commpdve ode wont bovetled yeu edt 22 ‘tade heeaee $e 
givind oad taeidoe ext Y6 omit nlp oxotad bas te anacxave 
‘da pe etao powe ten bao" onne ‘wunatbro idte oLison oe ay 
hn Se qatviah otf ai hoew aved Bivow aoareq ‘taobune exantbe 
 *tivdidle ,"esenstenwescte aaticte to enna nde a otidonotus 
te mole haqes a aommtedin a) me orodt “stove0s% * ti 


Rian aan Sh asetheg heat gall ye Pe B34 


tasbioos odd To snbb ode evokad vs tet gene tawse sta oat 









abereq WHAdibve ce en Pitdonotun etd salteroqo saw ony 


 Swatvaoes ed ot Biwon ora de wnsecazamonte ‘tattais sot 


eee gue <tovooren betelen seed vad brwoie goke @ 
‘ ye : ‘eee bat haa aie 


¥ aectearibent | 9 fabxo ten ys 





ey mcd Teens ebObe 

as ‘one “tak? 20 er photo One Yo, temaybep, wf) wh 1 we 
ea Lake won A x0, ili opsten, at nen beammenn 
RANE, Ok I a 





ta ut sre st ated ah at etn E 


a iii 










=e 


agree with a11 that is aald in the majority opiniog 
concerning the instructions. 





eet 
eer anes sai tae 6 


ict SY kas 





185 - 21317 
296 = 31426 


PEOPLE OF THE STATE OF ILLINOIS, 


Appellee, 
APPEAL FROM 


Ve GIRGUIT COURT, 


COOK GOUNTY, 
SHERIDAN A. WRUSEAUK , ! 


Appell aEte J A 4 


cay 


Opinion filed April 6, 1927, 


BR. JUSTICE O° GORMOR delivered the opinion of 
the eourt. 


By these avppeale the respondents seek to reverse 
eordere of the Cirenit Court of cook County, finding then 
guilty of contempt of court and sentencing each of them to 
ten days in jail. 


\ 


The reoord discloses that Usrion Thornton, one of 
the relators, had filed a bill fer divorce against bis wife, 
Hagel Thornton, in the Girouit Court of Gook Gounty; that on 
September 22, 1925, an interlooutory order was entered in 
thet onse that Marion Thornton, the complainant, pey to his 
wide $16.00 per week alimony, and it wae further ordered that 
the care ond custody of the eldest child of the parties be 
given to the compleinant and that the care and custody of the 
baby, sbout 24 years of age, to the defendant. Afterwards, 
on April 20, 1926, the defendant Hazel Thornton, filed a 
written motion in the diverse proceedings, supported by her 
affidavit, preying that a rule be entered against complainant, 
her husband, requiring bim to shor cause why he ghould not 

be punished for contempt of court in violating the order of 
| the court by reason of the fuct that he had taken the baby from 


x 


im 


w 


Ne AEN igs 


eicst ~ eer 
ah 0 Bs us add 


Sl OBLAds. TRAPS. ae Ww. manegs 


asal foqra 
won GaAxega 
{THOS TLUOAID oe a 
oFeRUOO FORO | | 
\ q RUAGQURR WA MAC TSN 


boii ee m. ny ‘ f 
ed ] a \ pt’ f rr a aN aVRe Lhe 


eS8CL .8 LitgA belit notaigd 


te tain adit chihcapiand mORMOG 1O wrrauy aft 
eng sru00 ont 


oxeevet oF age atashaoana’ edt wdowny as enone Ad 
wid gakbrtt .Yrauod deel Yo Hruet Perk oft to enebre 
at wads Yo Goo galonetase bax Paseo ke sqamtmoe to ys Lbang 
stint at ayab ang 


he ote notaned? aottan tai aeaeloeth brooar eft apes 
aatiw att tealege eorowkh xot (id @ dDeLet Bad yeretatee out 
re said jytave Neon to stand short od? af hotemom? Loean 
ai bovotne wow tebye yrotimolental me sel et redeetqee 
ald of yay ,famntalynon aay asoratott Poktet dads eear tedt 


att borebro vedexw't vow #2 bas ymomile teow oq 00.02% ner 


ed eettrsq ed? to bLido tuebla vet to ybosarn ban tao exe 
ad? Yo yhotane bas exeo oct gadt baa tapas toons a wks 


Hay 





‘g SOLtt ,motarod? Feaak # aasn0 290 ott , Baer oe t tn ried & 0 

tod YS botronqus aagetanecony setaveh et at mer ketone aotetes 

staan ialquoo taaiaga boned ad afen s tedt gar erg att c the 
Ant POR aA 


jon divote ed ed. ‘yal ‘eau we moe all nite gatrzuyer sbandaul x0 
Xe tobs0 edt yattaloly at txuon to fqmstaee tok & | q 0d 








“Rox YSad oe ao det Ratind pat took ws Yo aoanes we tu ya | 


ee 





en 












Bs a 


her, On the sage dey the court entered an order requiring 
the complainsnt to show cause by April SOth why he should 
not be punished for contempt of court in taking the baby 
from the wother contrary to the order of court. 


On Mey 25, 1926, the complainant filed a petition 
in the diverce proceedings, praying het the order of September 
23, 1925, whereby the defendant wae awerded alimony anc the 
custody of the baby be vaonted and set aside, and that he be 
given the custedy of the baby. In suvpert of this complain-e 
ant filed his verified petition, wherein he set up inter alia 
that the defendent for several months prior te way 25th, 1926, 
had: given herself over to adulterous practices end had been 
living in an open state of adultery with one Prince Kenedy; 
that the defendant, with the baby, had Lived in ® eingle room 
with Kenedy and that she was unfit to have the care and cus= 
tedy of the baby; that on Warech 30, 1926, about three o'clock 
in the norning, the defendant and Kenedy were arrested, dee a 
enuse they were then living as husband and wife in an open 
state of adultery, and for thie reason the couplainant prayed 
that an order be entered diseontinuing the slimony he had been 
required to pay and that the baby boy be turned over to hin, | 


On June 14th, compleinent filed his anewer to the 
defendant's petition praying that he be adjudged in contempt 
of court as above stated, again setting up the above faote, 
and on that day the court entered three separate orders, one 


requiring the complainant to shor cause why he should not be 
punished for sontempt of court for taking the baby contrary 
to the order of September 22nd, a similar order aegainst Jobn 


Armstrongs & pelios officer of the Gity of Chica ge and another 


sig in hie aa sy th Pe 
anf aw PO om aE 


Oe Ra st 
RAs ah Se AN 


galtings: Thre ae horetne temo ad? yeh oman ont 40 aed 


bivonle od yde MOS LixgA W owt” wow oF dmembalqaod wilt 
ied ont yatiad ak argon te Pqwiteon Tot dadatawg of fom 
atte ‘to robe ed? of yroreaen i odd mort 


aobetioy a he sit trankalgeon att ,280 aS Yani, 0 AS LOY 
sedasdoee ‘to rabte ode ted gmt gee. aegacdbees one sorovid ote ayer 


ede sae ymont Ie babtaws ace fashreted ad#t qiatodr aes 488 


od ot dati" Hhis Rntwa vod Mee Beitiseity od ydad ont to yhoRew 
matsignes afit to Proce pl seed odd to xboteup ont aowky 
ails tetas qw tee ad ndoreds ,wolttteg heltitey etd belie gas 
sO80L 92S Yon of msxG vdtnon Iexaves TOR sanbasted edd tat 


y aed bad ba B ecnhinaty swoxse Luho oo we © Yieersil peitpehasrng 





ooer | @ wt borat bad atdad am dete ata ae ted wy ‘pane 
“ao ban own att evad of #itau saw ove sant baw 
Rewiate semdé tends, RIAL 5 donals ne todd edad edt to ybor 





ead ,h9s certs stom ghomk bas saphalod oat qpatanon ott, mh 
Me to Mh elie fae dasdawd es. gabvls wade whet Nome OeNeee 


boyong taeniolewo ah aoeaot aids, wok haw giro? Iba to. apase 
wed bad ed Yooalln edt paiumttmwoash heretam, od; rebee as tadt 


ant oF nave. bomeut od. yoo eed, ade sited Xe 96, bee oem 


Se heey i mine ieee ‘ey ele 


edt oF Teens ald sent Panatetqnoe stot om 






Yat ‘be “ wedge : | ee 


seivat avods oad qu paitton aisha sbonete 










3 eae verebre ag acagee vaca beretme tuv90 ts dw 1 


oe $e binede oe yi piciin weit: pr te PEs, Sie 
“qrantnee wad edt gutted cot Stuoe 6 tqma¥ade 

atot santonn YonKe ait te'te'h "one ‘thdubtgna Xe 4 
redvout bak shmmened te biird adit ‘ne auld te . ts 





Lo ie ua i MEO RS ey Pee 0D. Reed i m8 oh sewn eal if 


te phy 










=i 


ageinet Gheridan A. Bruseaux, « detective, The matter 

oame on for hearing and on July 16th the court entered 
three seperate orders, one diveharging the police officer 
and the other tro finding the complainant guilty of contenpt 
ef court for taking the baby on Warch 30, 1936, in violation 
of the order of September 22, 1925, and sentencing him to 
ten days in the sounty court and ® similar order entered 
against Brueeaux, It is from these two orders that the 
appeals are prosecuted and they have been consolidated for 
hearing in this court on one record, 


The record discloses that sometime after the order 
of Septenber 22, 1995, was entered, complainant became suse 
picicue of hia wife and employed Brusenaux, e detective, te 
investigate the aatter and at about three o' olock on the sorn- 
ing of March 30th the defendent was found Living in one room 
ina five room flat with frince Kenedy xe hie wife, When the 
detective on the morning of March 30th found the defendant 
and Kenedy in the room he called police officer Arustronge 
Gomplainant was also notified and he, with his parents, went 
to the flat and they a11 went into the room, which wae then 
Gecupied by irs. Thornton, the baby end Kenedy, Kenedy and 
Mts. Thornton were placed pnder arrest, snd the police officer 
stated that there was no place to take care of the baby and it 
was taken by the compleinant to his mother’s home, There is 
® dispute in the evidence as to whether Mts, Thornten ree 
Quested her husband to teke the baby, in view of the fact 
that she was to be taken to jail or whether the baby was 
taken forcibly from her, The court was of the opinion that 
the baby wae takm from the mother against her protest. It 
further apyears that Kenedy wis tried in the Municipal Court 
on a charge of disorderly conduct ond fined $15.00, As to 


pe 


woteen eff ,eelteateh « ,xucosw ,4 aabixed? teaghagn 
hesstes ruse ot eT LSet a6 bee gateaad YoY me omwd 
cepitto ankloe odo gttgretealh Ono yershe etweaqen worm 
tquedine ‘to veltim daadiciqmen adf yatbult orf <edee ott Daw 
aohtalokv es 980 ,O8 dowex no Yad why yatdad vot eever to 
ot nit yatomeane hay .B9CL ,88 eminedgee to tohr0 ent Yo | 
harsetea tah7De salinte A baa aca viaweo ome ai bab se rid 

act + ante Anehis wnt eansit work as ee sunomut yan. i 

re? hagabiioane aed eyed yed? ban batuoneony ors ae! 


“pote te Cos e 
_sbroost ome mo tro aise mt gadtacd , | 






astro od <eets ambtodes tec? edad foaks Hedyex “ede END ern 
| mth eeeoed Pandtetame berets whe \8ONr (8S ebdadtqed to 
se yeriieekoh a peummeires bey tine bao otiw abt te: axoteta 
ton 64 to dyaleve sends $00de te baa cootee ode etayhtbovad 
Boot Ho of yatwht bawot ebw faabastoh odt A908 Moxek Tega |) 
ade andy okie ai4 og Yooned some dtiw seit mockievit a as | 
Harkuoteh Sat hawet MOF Gta Yo yrtcrow ede mo-owlseeres | 
~ wgnortewss woo ftte sok log belies of moot odo at qbenz bas | 
Saew aimee wkd Aw yet how neReod Cele wen tee tatgNOD 
ae aw do kde gmooy Bed onmk tab Lie yeile hie Gat wine! oe 7 | 
“bad YoueN oebones haw qed OH aero Le ew DelgeeO 
siete vod tr hae heen ‘enbiiy besiane orem aeindene | 
md pant nie ata and et “teansasa i moe sat vm . oe q | 
et BONNER Akt endings of an sonsbive ot mh 4 stuqelh s 7 
doat ot tm wake wt puted oat eset or ps nds sure 204 botnaun 7 | 
scan Yan! ode godgarty te Liat of neat Pe Med gerd ft a q 
pal Hokaige sat 2O gam Seaon OAT sted me 7 Ok 2 a 
stator ted fonieys tedtom Om pease —_. 
iabnaaed edt pd bolet acu ybane® media 




















ote 


what became of the charge placed spainst Mra, Thornton, 
the record is somevhet uncertain, but it indicates thet 
she wae siso found gulity and placed on probation. fhe 
@vidence further shows that about the tine the ense was 
tried in the Municipal court, beth Thornton and his vife 
were represented by counsel in the divorce proceeding 

and that after a conference, Mrs. Thornton signed e 
stipulation agreeing that the father might continue to ree 
tain the baby and that he would be required to pay no more 
alimony, On April 20th following, Urs. Thornton wae 
represented by other counsel end ehe filed her petition 
on that day agrinst her husband, praying that he be ade 
judged in contempt as above stated, and it appears that 
about that time oomplainant returned the baby te her, 


Gonsiderable hae been stated in the briefs filed 

- #@ to whether the proceeding in the two appeals involved 

® @ivil or eriminel contempt and also whether the proceeding 
ae to the detective Gmusenux was void beommse no petition or 
affidavit wae filed azwinet him setting up any reason hy 
he should be adjudged in contempt, and therefore, the court 
hed no jurisdiction as to him, n the trial of the cage the 
matter was heard ee though it was ® Givilycontenpt. It 

was not suggested on the hesring that the husbend Thornton 
should be dischargedon his sworn answer filed to the petie 
tion, Yor was it suggested that the respondent Bruseaux 
should be discharged on hie sworn testimony but 411 parties 
treated the matter as though it were « civil contempt. We 
think thet as to the respondent, Bruseaux, the court was 
without jurisdiction, since there wes neither petition nor 
affidavit filed, setting up whet acts it was elaimed consti= 
tuted the contempt. franklin Ynion v. Feople,220 Lil. 358; 


shoranons oth daeikge keoaky aytancio ode 20 teeded Puce 
face abteothat 22 dud abeteonme sndwanoe al feapet wile 
2 oLtedeng ae kaneis kee yt Eig bmsok cake ‘eaw wits 
ae MAD: ede onit oft foods tate wrote weodoentt sons pewe 
stiw ald boo motmrasy dted ¢ewod Teqioteut we wh) oaks 
_paiboavore sosovlh ott ag Loma we heseeRerqss oxen 
te take sedmned’= 26th emostet@hres: atedte geMtd smn 
oot ot soektaco tty. de. toe et ast tale: gateunge montotuehee 
otom Of YE OF. Hen sHOes:» od Piha od fede baw uéed ott tse 
jaw mosaredt .#xi gandeokse?. tO. khrgh int om 
woke BP ee red Soft} ode bas Spanwoo radivo Ral Soranaenqen, 
“mba od oa Peat ‘Ghiyeta baedawd r04 teniags vb sate A ha 
gale atesegs $4 baa sbotete ‘eveda ' we Sqneeace at b ma 
wed bad — oar bowie or ‘neat tan00 omit ‘pads me 
a ae: 


ron tered edgy Pr botata, goed. wail eidocobdeme (6) 00 peel 


 heelowad ataonga, out sil ak gakbornorg ott oni at ee. 
gasbsaging off todiade eade bos tqnctaen Inakekye wokinto ws 


a6 mo keiieg on sessed Dov Gkw Warman ovitestes ehh et ia 
. Noe seaaes wie ge gakétos wid Penis BOtsh aot sevebe ee 
P09 nif, oroher alt bag «que? q0e a2 bogouths ed Biwedwimdy’ 


ad? see0 oft To daltd oft 60. mid ot ae mattocba test wR 


#i stqma¢acey iivis a gos ¢4 tquedt ao beet mow mer eina 
— MOtETOM? Hanes gng ted? gatysed e423 ae batoaggae ron my 
whioy oft of bells towane atowe mist seb zadomeb oe inode 
ee ere taabreqann od? fadt botasapire a2 go, Rath mont 
esttrag Lis ted YRomiterd orscwe ak nr Deyraiionth of Biuede 
Os temneaoe Like, fren $4 Kownthy it NT as ade benognt 
BAF Oe M8: anmeNRNm, stashacaeys ant 0¢ natase dandy” 
non noleigeg. nat ion eam ont, eons aeostokbatmat seme te 
chferos hentale nas #4 atom sede qu yattton: ,debeh sivabeyne” 
em lth OO BE F siic atl BAAS ‘stent ae ba 

















Se 


SS SSS Se 


—— 


——. 


a 


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Heke v. People, S20 T11. 174. But *@ do net wish to place 
our decision upon thie ground, beesuse we are slearly of 
the opinion that there ws no contempt of court shown. 
When the sother of the child and Prince fenedy were found 
living in sn open etate of adultery, and when the evidence 
unquestionably shows thie to be the fact, there was sothing 
Pithin rezaon to do but to tke the child as mis done, 
It was three o'clock in the sorning and an order of the 
Gireuit court in the divoreoe proceedings gould not have been 
hed, hile it would have been sore prosper for the huebend, 
Thornton, to have gone as scon aa pessible inte the cirevit 
Gourt and presented the facts and have requested en order 
thet he be given the child, yet his failure te do so is 
Somewhat excusable, at it appernrs frou the evidence that 
the aother of the child, after conferring with her counsel 
agreed to give the feather the shild and te release hin 
fron further peyment of alimony. Lister on the respondent, 
Thornton, did seve the court to give him the eustedy of 
the child 2nd that he be relieved from further paysent of 
einer. wut this notion wee denied and ve think exrenceusiy 
@o for the reasons siready etated. 


fhe teo sppesle are enronsowbly entiticd, * People 
i ef the State of [lincis, appellee against Sheridan A. Bruseous, 
1 Appellant, and People of the State of Illinois, Appellee aginst 
Marion Thornton, Appellant.* They should have been entitled 
‘ ®s in the divoree suit, linke ¥. People, supra, The people were 
¥ in ho wey involved and the burden of folloving such appeals 








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to insole exe e% aausced havens sldt meq goteloed wwe 
sete SS EE PS te eee 


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eusttud att qot cecetg. ores, neat oval { Biuow vt oth? had 


tuoet® edt ofat stdtanor es nce aa aney ovad of wucdatedt 
saben ns betsecoen svat bas ciock oft pesnenerg bas Sxa0l 


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ah an of sf ovBEiNl aid fey qbilds adg owes os od taas 
seed sonsbive add mort exsaqa $2 am eliauexe tadwoncs 

/ foanves ra Asie gaitretace ced¥a bitte 949 to codtom att 
ee ‘mtd sacalet 0d bre bitde Wah denser “Ste O¥ly ee Seerge 
| ghabasqest ot go Teh” .weomllz te saeneag vadieut xert 
te ‘ybotane od} ais avig of $4m0e off even BLS ,eedmeest 

te teseyes rode t mort Bevelter ot od samt Bad BRM ieds 
Tiawosmonse taidt ov bax Bokutt key motton erat Sad yymomtio | 
oe | pn | 





uO .A sabiveds taniqge oe Lieqga _safoan car to ‘otnte © oe te 


WSR RRA Cty Bet sith thay 








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of 
should not have been put on the Stete's Attorney, 
The tro orders apresled from are reversed, 


ORDERS REVERSE Ds 


TAYLOR, F.J. AND THOMSON, J. GONGUR, 
¥ j 
















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19060 = 31229 


THE LINDEN COMPARY, 2 co¥p., 
Pysintiff in Error,) <APFEAL FROn 
BUMICIPAL GOURT 
re ee OF cHIGAGO. 
DAVID G. JOYoR, 
Qefendant in coon) ia 


Opinion filed April 6, 1927, 


BR, JUBTIGe THOMSOS delivered the opinion of 
the court, 


fhe plaintiff ie in the business of furnishing 
interior decoraticns and other matters connected therewith. 
it brought this aetion te recover *for the reaeonable, ueusl 
and customary value of good# ani merchandise furnished «nd 
delivered by plaintiff to defendant, and vork and labor per- 
formed by plaintiff for defendant, at defendant's special 
instance and request, wider verbal cogtracte,* entered inte 
between the parties, as set forth by the plaintiff in ites 
statement of claim. The amount of the slaintifft's bill, | 
as set out item by item, was 6194,369,46. Various paynente 
en account were acknowledged, aggregeting $80,080, leaving ~ 
® balance of $24,289,646, as the amount sued for, ay his 
affidavit of serite the defendsnt denied thet the smowunta = 
waking up plaintiff's claim were the reesonableg ueual and \ 
customary values of the goods end merchandise furnished, or 
the lebor performed, end alleged further that on way 3 venaeiend 
there was an adjustment of the account made between the 





parties concerning 411 the sitters involved, and 2 settlezent 
had bet®een them in accordance wit! such adjustment, her by 





oqo # aPRSSEOD 





eal gadvia (aera et Thttdiert 
‘HUG Jatlo rum 
z) eo? 
opapiss %- | : 
; Ores .o arvad 
De ee, cK at S00 WE 9 04 4 eay 
RO 2 eek 5 Doe BS é 


VSL <9 Litqa Bbaiit aoimigo 


to agtaiqs edé@ Setevifeh SOSMCHT 201THUL .iR 
| Pewee edt 
aeideiate? te atentesd s49 a! ef YWitaisiq oa? 

.Givereds Satesancs avsitan tedte baa exolsstessh roltedad 
fayes ,eidanosas: ed? sot* vevenes of acitea elm? ddguesd ek 
han Sedsiew? esibaaioter has aboo, te salsv yramotes® bes 
~vaq todas bee dees Bae yianbacteb of Wismtele WW beteviied 
3 fefeece q*tusiacdtsS te ,faabesteah tot Theta lelg ww bewrot 
ofat hoxvatae *,etoaxtgee Ledrav sober sseeupex Ane sosas ead 
uti ak Théseielo of¢ yi dire? fea oa geo idtag add ceaeted ‘ 
gifts ef Ttitaisis sd? to dauémeotT. .mtaio te tnometate 
staseyog evoite¥ .82,068,0053 uae uest ys noth duo tee ne 
 gaivesi 080,068 sattagetgp2 segtelwomies eres taeees 80 
sic yf .t0t Sere daens add as 4,88 688,859 to — « 

Staweas oct tad dstae foxhae teh edt stixea Yo tivent 
bes inves yoldanosses ade aren inte wetitatels gy guises q 
10 ,badeiarst satheaderae we sbhoog eat 20 eevlev yramotewo 7 
1888, (8 Goi 20 sadt xedtwt Begelic bar ebowretreg todel eg 4g 
eid neowted ston _dmveses ont to teeetauibs as eae scott 
fuoseitsos 2 bas ,bevfovat exettaa sdf (fa gatereonen astenaq — 
We sendy yon ts ete eonstrooes at andt mpewted bod : | 


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fe 


thé defendent paid the sleintiff the sum of $40,000, 
whieh the plaintiff had sccepted in full setisfaction ef 
all ite claims, fhe cause went to trial before a jury 
end at the close of ell the evidence the triel court 
sustained the notion of the defen‘ant for an instructed 
verdict in bis favor, and pureuent thereto, the eourt 
instructed the jury to find the issues for the defendant, 
Such a verdict sas returned end judgsent entered ween it. 
To reverse that judgnent, the plaintiff hase perfected this 
appeal. 


In support of its appeal, the plaintiff eontends 
thet the oayment of the 646,000 aay not properly be given 
the effect of réleneing the defendant from the liability ef 
the balance claimed by the plaintiff, because the evidence 
shows thet there was no reasonable, bone fide dispute aa to 
the amount due, execent as to corte in comperetively trivial 
iteas. It is the pleintiff's position thet if a eertain 
sum is claimed to be due on/aveount, #d there is no bone 
fide dispute as toa a portion thereof, the payment of less 
then the admitted portion cannot be conetrued as = release 
ef the whole of the admitted portion, & number of authorie 
ties are eubmittéed in supvort ef that eontention, It will 
mot be necessary to refer to these authorities. They are 
not questioned by the defendant, aor does the latter sontest 
the proposition urged, se stated above, The cositicn of the 
defendant ig, however, that this proposition is mot applicable 
to the facts as disclosed by the evidence, te gave carefully 
@*asined 411 the evidence in the record, and in our opinion, 
it sbundantiy supports the defencsent's contention and the 





ake 
2,08 Yo me edt Witalaly ome blag tasbasteb bod 
te aalftostels sa rot ak hetqecon had eigatatc ev do kin 
YIsl # eroted Letes. oe Gnew cote on? .emtefo aft ffs 
 ftuee Eamet of? senobive ed? ita te aaafe sd? ts bao 
- Regentteat ae ret taahasten sat Io soltes ale boniatase 
Frees adg- aotonodt fnaustec Sas ,eovat eit m- folbres 
Paabasteh efit 10% amuse? 68? batt of ‘etal ody batowites: 
Pg seq beter x0 tnpegbet bas beatutet aaw tolbisv @ dou® 
aig bedvetteq est Wairabszg Jo Hoomgbut ted sezever of 





shnatace Wisaists adt .faeqqe ast Yo Sroqqua ats’?! SY 
anvils od yinegoty fom Yaw 000,088 edt to Apa ott gad 
te. ytsiidaks O63 gest teabawtoh ode. gatess les ‘to #cotte,. 
 wenshive edd agvened ,Mitataly sat yd sentatenieaiaaial 
oF 88 ‘stugot) SREY ggac 49 !canceeen 04 ne orndt dade arose: 
sakvine Usiliatecacn neers et aa fqooTe yeah tases 8A? 
aiazese # 2h feds acti ieog at titiataic ‘ads eb Or 6 wanett 
sued cx ef sxedt bat weqweaee\go eb od of hesiale of ame 
easl to deamqey ed? .toorsd? acltrey «of em abadedt one? 
Suselex 2 ae besrtenco sé tonsse wolfses Sageaaba odd math 
sitoitua te cadmium & .welfrog hettishs act te‘slede eae te 
on YON? eatdteocrue onadi ot caer oF ytaussoan ed ton 
oat It neielace adf .eveds Seteta ax oyu moltieoqorg edly 
Picwméigge Cae 61 golsiseyerg Bide sade ,eeverod gut sembacted 
Miluteceo org 08 ssombive ont wl Dencinate as atest add of 
OlmegO Tem Ai bar ,oropar edt at soanbive oft Lis Samimane 4 | 
| oct bam mo itaagnos. witactmeteh edt ePxequue qiimabmule th 
ae gees Seo tio ek gues. Siw eeuetecnna cf ands re > | 


Pot 
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ol 


ection of the trial court in allowing his motion at the close 
of ell the evidence, 


The resord shows that the plaintiff did seme work 
om the house of the defendant's gether at Clinton, Iowa, in 
1926 and 1951. This work was entirely finished und paid for 
in full, snd is not involved here. There was later 2 com 
paratively small snount of additionsl and extra work done 
out there, which does seem te be involved in the itens 
here sued for, The pleintiff«then waa given entire charge 
of moving the furniture and other effeeta of the defend= 
ant, from me apartaent to another, in the Gity of Chicago; 
making certain alterations in the apartment to which the 
@efendant was moving and attending to the entire furnish- 
img of the apartment. The ¢vidence further shows that 
the defencent purchased an old house in Kismi, Florida, and 
engaged the plaintiff to remodel it completely and furnish 
it throughout. The account here involved has to do, for 
the moat part, with these latter tro astters. The last 
of them, - the rork st Miami, - was completed early in 
1922, end the plaintiff began to press fer the payment of 


its account. 


The record shows that et this tise the plaintiff 
wae very hard pressed for ready cash. It eas apparently 
geing along on a e211 working capitel, much of which was 
put into this work which had been done for the defendant, 
The president of the plaintiff company teatified that his 
eoncern, which wane owned by only three er four individusis, 
had a rather hard time through the ter period and in the 
early part of 1922, they found themselves with practically 


, ste 


genie ot bis motion aid gins ae $5009 faise ak ts. xo = : 


izow suse B26 TtMaisly oo sold adword Sedooe aah “O° 
gk ,gvel wtesaitG t2 todite ‘etfadknstst ef? te waved ie tas 
set bise Bas Bodatnt? elsritne sow dzov ala? ther Baa 688! 
mace @ G6$ef daw ered? Jered Seviovar You of Bas . itv’ at 
pick d¥ew <tfxe es Goacieibss te tavced fiewe ylevidareg 
‘eal tit at wevteeit ad eles ail hill Slade tal 
sateto erties devig naw kedte ivataty ett .x0t Bese ote 
sbacteh od¢ to sfeotte tedte bus euréiave? off wo sad 
egret. ¥6 “SIR of? af etodionps S, : 











fotenst outte « ode, oe  pathuaton ban even. 8Ae SRP 
__ test eveds tedrayt songnive oct M 23 ne 8 ot 3 
bas webinar’ sot me eauod Ato as beaedte 3 hab. 2s 
Geieest 2 hae tiers fae +4 Sobomes os Wiratale 7, poy mma q 
“wot web oF aed heviovas sxed sasocc a eat. 


‘teal oat refine out xesgat spedt ase ol pitopons 
on l vine Bede iome cen - ~ ~ steaan 4 $s tro ed? = — 











ee a 
eeneunnsiiontanl siysaieantclssciaicwies i ie 











a4 


all their working copitel tied up in thie work for the 
defendant. it was the plaintiff's custom to receive paye 
ments from time to time on the work it did, amounting to 

85 per cent. For some reason thet was not done in the 

ease of the work for the defendent. ‘the consequence ves the 
plaintiff found iteelf hard pressed for the paywent of the 
aecounts it owed to others and they were under the necessity 
of bringing about a payment of their account from the defend- 
ant, or being in danger of benkruptcy. fhis being the situse 
tion, it urged upen the defendant's reoresentatives an 
dmmediate séttlement of this eccount. These representatives 
of the defendent met such efforts vit the complaint that 

the account involved over-charges, oth aa to certein laber 
items and as to certain material items. The pleintiff gube 
mitted evidence tending to show that the first complaints 

of this kind were made im December, 1321. The representatives 
ef the defené=nt testified thet they began seking these 
Objections of overe-charges much earlier than that. 


fhe negotiations between the parties fer a settlenent 
ef this xecowkt involved » number of conferences, One deerge, 
& ereditor of the sleintiff, whose account with it wae mede 
up, at least in part, of items which seen to have beem in- 
etelled by the pisiatiff in the defendant's house at Hiami, 
conferred with the defendant's representatives a number of 
times, in an effort to effect a settlement of the account, 
between the plaintiff and the defendent. At one stage of 
these negotiations the plaintiff urged that their ontroversy 
be submitted to the Association of Commerce Gureau of Arbitre=- 
tion. This the defendant's representatives declined to do, 
at one stage of the negotiations the defendant's representatives 


Ax 


— 


ads set duow aise at qu belt istiq~w gatizoe shed? fis 


SAP. 


“qaq avieoe: of modem a'Tiitaisiq sd aay 22 -tnabaoted 

et paifacoss .bLb #2 deew edt no onlt ot ont? port aaaon 

@4% ai eaeb fon act tadt- sonsdey onde “tet —=Faao xeg 88 

ed? exe eogeapecsen edt - | pgaatiastes sah cok drow 28% Ye een 

° gt to Pueeqad oct tet Boateng bisd tines haved Wiemisiq 

(@intecsa sae ¢8hny Srow pod? baw eredso oF beue $2 atmucrse 

-pastes 44¢ gett @mwodes tThedt To ganeyay # gaeda gatyatse Ye 

orthe od? yated ‘lat .wodguisasd ‘Yo ‘wegeeb at galed xe aon 

fe ‘eSeisodwiser¢et addiiavies ‘get foe ga ek non 

eeeitetseesreet sued? .eavedos eff fe seawe leche 8d888 

 Padt gatelcees edt ftw adeette dome dan Sashasteb ‘e6t Fe 

nodel dtatics of en Aad wiogtato~isve beviovat dworse eit 

wise Stalag ed? .amett isitetam Atatxss ‘ot ne ban emai 
adcinfgues duxt? off Feld weds oFlgathae? seohlve ted 








sevitetasessqe: df .f96F yrtdaecet at etea stew Bald aidt to 


weed? naiiee aeged qodt tady maieiied tainadteh — 
i wtad? gad? 1eiiaes dese segt . 








deonetsten u x02 sotrray ott svented eanidaltoyea pit Pre 


sogtesh Spd sseoasts lace te rede 4 hevioval taaovos att 20 
stem ese $iiddiw tavccee weeds ,ttitatels edt te wedi a 





“i goad svat of ates dolde emstt to aiese ai fesol te oo 
sine te caved a taebis tes oa a Wisabete att w boiiste 





WS wedece «= gevidetaees<cot a! donbesteb ody “ote ia : 
wfaweces edt te tromeleree = dos tte ae Faette :; ant 3 iia 
‘t went wae $a fitine tb | at bas a iitatalg Sat downed 











es ee ae 





ete 


staged that they would pay the plaintiff 932,000 for a_ 
settlement of the account in fuil, At this time the balsnes 
which the plaintiff elaimed was due it, ras approximately 
$64,000, The plaintiff declined to consider the offer of 
$22,000 and mace a counter offer, agreeing to accept $50,000, 
‘because we cannot afford to stert suit and wait,” Tris 
offer was declined. in the esurse of these negotiations 

the defendant wade the plaintiff two payments of $5,500 

each, one on March 6, 1922, end the other on Narch 21, 1922, 
In ¢ach instance the sleintiff signed = reseipt in which it 
was agreed that such payment "esa not to impair, te any extent, 
the right of the defeniant te demand 2 prover accounting, and 
te object to the quality of aaterial supplied er the prices 
oharged by the plaintiff. finally, on one of the first days 
of yay, Hr. George, eho with representatives of the plaintiff, 
hed prewicusly mide several visite to the defendsat's offices 
and discussed a settlement with the defendent's representatives, 
to no purpose, made another ¢all uren defendent's repregentae 
tives, slons, and disoussed the situation with them further, 
On that cecssion an offer of settlezent, on a basia of a 
further payment of $40,000, was suggested in behalf of the 
éefendant, end Sr. George said he would submit it: to the plaine 
tiff, He did so and the individuals making up the plaintiff 
company, discussed it and concluded te accept it. The de- 
fendant's office was advised to thet effect and on the folloze 
ing day « check for $40,000 wae delivered to the plaintiff 

in behalf of the defendant; and when the plaintiff aecepted 
it one of theofficers of that company executed a receipt 

im which 4¢ was recited that the plaintiff ‘received of 

David G. Joyoe, pursuant to negotiations and settlenent of 





| prot 000,88) Tivalale edt oq blue yet tab agate 


sonaisd ‘ott ont ats aa “fink a2 tauenos eft to ‘snenoisson 


:> wee 
vist sntxaxgq ‘een i out eam beaieta Husaletg ade fokte 


te xetts sits xeblenco oe bonstoa Iismisiq oot * {000,888 
ee Re Rae ith 
4608 088 $aac0s oe gateorge szetTo eotau00 s shes hos re) 







& ira Pea - 


eict ‘ttew sae ie exete 8 brotts: ‘sonase we 
+3 Bea a RS seus 
acolsattogen ‘ened te eexoee od? ‘ai beak tos ase ase tte 
oe ee ae 
000,88 Re et asmyes ‘ont titeskaix me aac dashed edt 
bel gee 


eee it doast ao wadto add bas abi8L 3 dorsi a0 on — 
+2 ime a ‘tglsoor 2 2 semgie ttigatsic cad sonkbanh dban of 
stacdxs qzs ot stiage ag ter ase saseyag “owe taitd boomy pil 
Sa2 “gatas Teqesq 3 ‘banmab of taanasted ode "fo $45 is ods 
woe lrg ‘ei¢ ze he tteave falsetse we ‘Whines ode eager od 
egah tert aa? to oxo a isa sipaielg ods “ ‘peguede 
sthidabatc eat te “eovitatassergst tie ode aT980 “a ree “Yo 
: ‘sogttie etiaedasten ‘edt ae ataty iexoves ohae ‘ylewolwerg bad 4 bad 
S9visal aeeaT EST 5" fushos tab ads tie ftmnsiiies. 2 ‘besaume tb hie 
nopneeexaes p*¢asbasteb mequ Lite sedtens om sseegrans ‘io 
“etedient sedi dtiw eoltentis od? besempeth bas. yeaols ,eevit 

2 $6 elesd « 5G. ,deaneitier Ye askle ae setessec tad? go 
ad? ke tiaded #2 peteeguim esy 7009,088 te deengeq sedetet 
waisig eat @¢ of: fimdve Sliver ef bisa eyt090 «1% Sue taabae Tob 
Yittutaig af? qu gaides almbivinal edt bas 08 2h OB hae 
ob sgf 22 dgs098 of habulogop bea of Beeawpath.<yarquec 
esaiiel edé wo has gpetie fads of Becdvbs fax eoltho a'sashaet 
tiiesisic ei ef bevevaleh sew 060,009 tet dwede a, yed gat 
bedasees thiteiela eft sete Raa ashasteb- eaten anticenet 

tqisoss « botueexe Ynaqeso sade Yo exag. 















“fe hevisoat! S2itatste sae on potters non 4 de he 


ola 


disputes over work done, charges for labor and prices 

for material on contracts with him concerning his apart- 
ment at 333 E.et Welton Place, Chicago, end his home at 
Wiemi, Florids (end as part of the lump sua of Forty 
Yhousand Dollars this dey peid to ua), full payment and satis- 
faction of alloclainms of every kind chateoever thet The Linden 
Gompahy hae in sonnection with the covtracts end work 

and material furnished in end about either of seid preminaes.* 
It appears that the plaintiff executed & similar reecipt 
agknowledging full payment and eatisfaction of «11 clsime 

it might have in connection with any werk done at the home 

of defendant's mother, at Glinton, jows, 


In our opinion, the evidence ia clearly to the 
effect thet there was a bons fide dispute as to whether 
the charges made by the plaintiff were recsonable and 
proper; both as to lebor and aateriale, We are further 
of the opinion that this evidence olearly shows that the 
items exiled in question were not trivial but were sub- 
stantial both in number end amount, There is no evidence 
in the record, which, in ournopinion, either shows or tends 
to show that the representatives of the defendent or that 
the defendant himself, at aby tine admitted that he owed 
the plaintiff sore than the aggregate of the payments which 
had been mude, end the final peyment of $40,000, The 
evidence submitted by the plaintiff shows thet on the occag= 
ton of one of the calls made by tr. George, with one or tro 
representatives of the plaintiff, the plaintiff wae oclaime 
ing that 2 balance of $60,000 was due it, and the defend= 
ant’'s representatives were offering to pay $32,000 in 


oie 


goo hey there vodet wok aege ad, seaod es 870 ® The wis 

woh EOE wha sul mreonce ams date stonnsa03 6 fatrosan x02 
is swod abt bea deucodd ovat’ nortet tad G88 ta tans 
re 6 ae qurt ode to frag ‘aa faa) ‘abivort yea 


wake ow tre Pasay oR, “pha stow oe ‘hag we “etety ) waite aasiiod 
soba oct rat aevecetate bana rrave te ) antofoiie Ye a a 
tou baw eteerdien ode siebe noigooange ah sad om 

* ean beord bhee to radtio toon ‘bas ah bade tow istaetan bas 
tqlasen rattnte a bos unoxe wifemiate ‘ode fade wxeoaaa 2 et 
‘awtefe ite ‘Ye aoisenterdan bas Prom yen “Lut aa beLwoatha 

. ome! ade +0 on08 sow as in oktonanee ‘at vad saae 


; er eootas 20 t  stadton at tamaoken re 


ect ot ylitaelo at sonehive ate einai nian it wei 1 Mesa tie 












Rodiedy ©: aa stuqath ght’ ggod & nee axadt, cade potty 


has aldenoasne oxew eitatatg edt ys ebam emgrade edt 
Sodtrct ote ot iaisetean hao todat vot 0° ted amen 
oat add ewada ylicelo eopebh ive, hdg, tadt gotedyo. 
sdue anew ted Latwaad, toa aren A08860up 82 Dosine asott 
somabheve on af axomh,., _gtasome bas, wedwue hte dalerte: 
viget XO anata tectle —Aohatqon mo me ito ashe TOMS ee, A 
das xo soninatad ewe Ye aowstasaoaongnn ait. tat ode ot 
 hews od pads detidabs owls yde, 0a glinamld taahan toh, ot 











aciiw agaemyag ast to etagonyy ny edd, aadd mene i 


BAT gAOA MG Re sranyaq Laalh odd, bein «6 





~eaion sit ne tadt evoda Rataialy edt xe hettimdas sogebive. 
Qe To oe Cle ,oytee® .ne YO, ebam, alive, ort Seemann. 


wakelo waw Tigaiety ods ekenialea wat 3o. a 
~pootad odd fa gt oirh. asm. 000.008 te, 


a orate Tat, of, BARRO RAN, UTADA anNEREN: 







SEES Se 


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. 


ova 


settlenent of the entire controversy, and ir, Ygner, of the 
plaigtiff: company, "Pel ied thet they could net accept any euch 
set tlenent/ one of the representatives of the defendant exe 
hibited a telegram, from the defendant, sho apparently 96 in 
Miami, enich had been sent to his attorney, and in shich he, 
said in effect: *if you are attempting a settlesent with 

The Landen Company there will have to be # aaterial reduce 
tion, I especially question the price on the furniture 

that sas made to order.* me of the representatives of the 
defendant, who, according to the evidences, had entire! 

charge of his accounts and attended to the payment of 


his bills, testified that he was complaining of iteas ehich 


he contended were cverecharged, from the early fall of 1321, 
and that he did net receive & complete statement af the 
defendant's bill from the cleintiff until Harch er April, 
1922, and thet in diseussing the vericus itens eppesring 

on the statement, ae then stihmitted, with the plsintiff's 
representatives, he took exeepticn to practicelly 211 ef 
the items involved. 


fhe plaintiff's statement of claim is on an 
unliquidated account and the preef abundantly sapperts the 
fact that such was the nature of its claim, In our opinicn 
the evidence shoxrs, ag above stated, that the dierute made 
by the representatives of the defendant was coth bone fide 
in character and saterial as te substance. The plaintiff 
saw fit to settle ite contested claim for a further ossh 
payment of $46,000, in additics to the payments which had 
previously been wade. That payaent wes, therefore, a complete 
satisfaction of the debt. Rose ler v. Lampe, @9 Ill. 712; 


Ennis v. Pullsan Palace Gar co., 165 111, 161; Ganton don do, 





ate 


eft to .eemmae .18 bas vestavestass oxite aaa bid ae. 
down Yad fqnens : toa aiuoe “yea i radt bad tae 3 eo —_ , rt 
“KS fachasteb ost xe Ree hs xd sonatas: ott to sae \aas: 
ai Btw _ltsotegge ose aS ashsateb ods gott saats ted a vetitdta 
gat doide at bon a tetes tes etd of ¢ mis nad bad dotde (teeh 
agie teaseltess 8 gaiéqensis exn wo" ° "oh a tte 
<ouber ishtezan & od of owas {lie siadt qtnemod ‘ube,! oa? 

__ Sentiaret ed? ae sinc eae aotternn qlisissqes Y° jaete 
eo te sovltad mestgot oat ‘te om *rabte of obaa enw tay 
forties bad “seunbive ong od gattrecse ode” <éaabie anneten 

te tremyag oe oe bahnedte bas etauceea sii ta tee 

dolste aesee te stateiquen aes aa tate ‘battiaes itié bis 
(HEE te Cet yleae add wort sbogtadeetere actu bebawedaco 3A 
| fd Te Feeeetate edelgues- & ovtnont fom bib ad tad} bas 
anal ao esr Litew VEBalada ade gork Likd etgushaeted 



















ye Swett wwokIey go? gateamalh af date bas. gSOVL 
‘g*¥tleeinfy oct dotw Sereiades mee on stxoméists adt a0 
to Tis en 2g Pe ree: srowkset nese 

r * _— deeded 


ta od Fase aay, 
ps ACS ies a F 





et Ae 


me haa eo xe ok — ati te ersten oat ase sine 1a tier 
sbi stumene ods tess <hotote "steda a ever von yank ode 
obit guod dae eae éankastsd eas ‘to sevédages tells 
Yibtalase off sonaeadue of aa “Iabretan tee vad 
dese radsew « zo? etaie betestno ar ‘algae: 

bat so be atesaye brad of colttbbs at 4000 oe aie , | 
stahien as csrotoreds eral tmeyag gaa shame aed | ‘gfeeo bs | 
ers Lon ee Ge ga 2e pages ote 20 weitnatel 


| 8h tsa staat ‘dat Ut ‘BBS an 














ofa 


¥. Porlin, 2165 Ill. 844; Kell v. Block, 319 211. 329, 

The situation is net changed by reason of the fact that 

the plaintiff found iteelf in a preesrious financiel pesi-g 
tion, and wes induced to secept the settlement because 

4t was hard pressed for reedy ensh ent working cerital, 

or for any other resgon not esounting te fraud and deception 
on the part of the defendant or his representatives, which 
is not claimed. As pointed out in Upited Stetes v. child @ Gey 
12 “ellace 232, if the contrary position were sownd, no 
party could sefely ray, by eny of compromise, any cum less 
then what was clained by him, for the compromise would be 
void as obteined by durcesj provided only 2 erediter accepted 
the amount offered a5 settlement at a time when he was hard 
pressed for soney. fo the same effect is Gage v. Barsaice, 
87 ill. 329, where a creditor sought relief from a settlee 
ment which bad been made with a debtor, claiming that his 
mental condition and distress were such that an unjust 
advantage wae taken of him in enforcing the settlement which 
had been wade. Im NoGormick v. Sity of 8t. Lovis, 166 Ho. 518, 
the court said: *If parties could plead in discharge of 
their contracts, that they were foreed into them by reason 
of some financial strain brought about by their contracts 
with others, then tut few contracts would be rorth the paper 
used to have them evidenced, All sompromieée agreezents are 
the result of © desire to evert or avoid some threatened 

or possible embarrassrent or inconvenience. Otherwise com 
promises would never be effected." In Hackley v. Headley, 
reported in 45 wich, 569, ond agein in 50 Wich. 43, 2 vlein- 
tiff claimed that his pecuniary straits eonstttuteac 

auch duress as should relieve him froe a settleaent he had 





aie 


Sates 2 


088 tis ee ite. Sin ikl. an tied = 
tad? oak suid te soerer yd Dbegueds ton, at. “BO ifaut ix ea? 
~igog faisneai? avelzenszq & sé Binet? dbentt Ritatate oft 
pensned gaeeeltiee 262 gces0e of Soesbal sew bas, jwckt 

| ghatiqas geidzew fas dase qheer vet bexsceq bred: ace ot 
aoitesesd bat bust? of gattavane ton sogexe nadte yas zeb xe 
— pie: eid a¢ sasdatteh sd2 te dsaq oe ne 

: 298852, Stal] at tue betaies eh .daxtelo ton st 
on ,baNee 2599. moktteoa eestiaen aff 2S .S8e gosiiax 82 
seal eae (ee ,seinerea 3e yor Ww Yer Vistas BLsco ying 
ad biney eslmorguen ad? tok sid Vee 
 batgssoe tedtbents s yise oshivesy . enone 
buat vow od osde omit © te. pero eten as bene dein alk 
iezel .¥_eugy af faethe seee pd? of ..qenue woh heeese 
~si23e5, s eork. eile: tfgeen segiberg 2 eyede 8S of 'S 

aid gad? gaimtala .sotdeh © Atle eben anad, dad. 
_taufay 28 ¢e23 Jom, expe. sawneekd bee aota 
duidy duometi¢em egg gaisrolee al eid te apiad. pe: tantemanes 
iS wot G2 hod .f8 Bo ease *1 ipbcebes ot -ebas ened bed 
te. apcatieth | al bots Bias aoktiag ue : thes s2ueo. 

aoenne ed aod? etal ‘beomet a wat sat _setesst aoe co cine 
agnetizen isda ei a note mentee tara ae 
tedsg eat dade of bien stpertace et tod ee ew 
? baa iol 
are atossesage netwotares ‘ta sbrannheve ‘snd ove rad o¢ bane 


betetarsts ance Sievi ne 9t0W0 ot eciuad 9 0 ¢lvane ode 
| . ei aihtoa Ge: 35> 





Bess 
€25 Se aa 

















a ee ee ee ee a a ee ee ee ee es ee ee eS Oe, a ee ee 

















axeibege . © xe.Bies ot andesite ow ‘roves soem pats 2c 


Saat 


“abst 8 aw stole OB ak ‘ateys baa 288 do 8b at 





~ge 


made of a disputed account. The court there well said that 
*the validity of negotiations, secerding to this elaim, sust 
be deteruined, not by defendant's eonduet, but by the plaine 
tiffs necessities: *" * But this would be & moat dangerous 
ag well as & most unequal doctrine, end if accepted, no one 
eould well know when he would be safe in dealing on the ordin- 
ary teras of megotintion with a perty who professed to be 

in great nedd,* 


In the Hackley ense, there was an amount due 
from the defendant debtor te the plaintiff ereditor which 
was undismated, Nevertheless, the court pointed out, the 
defendant deliberately acted in bad faith and made clains 
he knew to be emfounded for the purpose of getting 2 
settlement for less than he admitted he owed the claintiff, 
which settlement he was able to accomplish because of the 
Plaintiff's necessities, That, in our opinion, ia not at 
all the ense at bar. iicre, it is true the plaintiff found 
iteelf laboring wader finencial stress shich moved it to 
accept the settlement offered, but we find no evidence to 
indicate thet the asount pald in sdttlement was less than 
the defendant admitted he owed. 


For the reasons we have given, the judguent of the 


Municipal Gourt is af fixmed,. 
JUDGUERT AFF LAREDS 


TAYLOR, PeJ. AND O'OOWEOR, Ja COWOURS 






















fats Bige ilew sien? aed 2d7  .emuaaoS bavuserb # 20 sam 


tous .eiain aid? of gativeoos samospabtogen te Wiblias ont 
oninig 3&2 qd ted sPoub seo Aig Bcuie iis mens bod 





oi tn hetencns u © as. piritan lan pli “slow a 


a ee ee 


wnihze ad? so yaileat at eles sd Sines sd node womi ifew Biwep 


eS eh 


ad of danse tone ode yotey & détw soltattogzenste saxo) 


do tde tapibere Ptipmiate oA oF notden ta 
sd ,duo Sobaloe duces <itt data samba 
- teiate shen bes thet bad ah pstee yrétetre 
* gf paldbey Ye ascites ee tet Netuno he at! cavemen ed 
{Vhiewiale ef2 Asvo ed hotaichs of asdt wapplieece tes 
“edt Yo sayaned Kalianusse of Si8e eon od dnbne li “4 
‘Fs fon ef elites tue at edt” que ition 
pavet Tiivaiaty edd sexd 2i #F oe” edit Vd ils warns 
eg tf boven dotdy aeorda faicnens’ fanbase og 


Reaeean «* Vee pe Hoek af. ‘i, stn ws te iat esta 
aed mye haa of i ate ia mh soennays 
betes webbed wes od ad Sahil oy vue 

; i: i abel svettoe z aise ae Be aay ated ors a 





118 = 31247 


SAMUEL LANSKI, 
APPEAL FROM 
BURIOIPAL COUST 
OF CHISAGO, 


Appellee, 


IRVING G. ZAZOVE, 
Aprellaat,. 


} 
‘ ! 
| 
} 


Opinion filed April 6, 1927, 


ie 


a : 
4 bere hote  f Gvle eS 


ef the court. 


Judgment wae taken by confession on 5 judgment 
“note against the defendant for $1748.00 in the dunicips) 
Gourt of Giicage. within 30 days after the judguent wae 
entered, the defendant moved the court to vaoate the judzsent, 
and submitted hge «ffidavit in supsort ef the sotion, The 

| defendant's motion was overruled and by this appeal he | 


secke to reverse the order by shich that was done, 


in support of his appeal the defendant contends 

- that the affidavit submitted by hia made out a seritorious 
defense as against the action brought on his note, end fure 
ther, that the trial court erred in denying hia motion to 
vacate the judgment, because the record shows that the 
atteeney in the cognovit exceeded the authority set out in 
the warrant, in that the attorney stipuleted that no bill 
in equity should be filed to set the vacating of the judgaent, 
and alse in acknowledging judgment for = sum including 
$96.00 as attorney's feeay although the warrant merely 
provided for a reasonable fee. Inasmuch as the defendant 










qt gE isk el 30m 
“ QDAGERD Wee 





OS aS eel eee Be sad ~ 


a ee en ay ara : 
eA Rh PRS 


trompbct ad ze celaastaco w “nose aoe, $a Ged pith 
fag bo tess oa st 00 .880H8 a8t gaxdast ob ang feais 
see treseahet ade vette eyed 98 atieny og 60 L. 
tusmgbot, oat etme t.. 2 sxs00 ode bevon taaba ab Oey . aot 
oF aetven om te treaqua at Agro Ea, ef becd da , 
_ 9d feoase, ar a 9 TA 
j sae a tade foe, iM. bs ta 




















eubited itea 2 tue ‘eSee eid « bees rede’ eb i 
_ si hae ons eid ae ty ord hide’ eth ban 






a sees aan caeriae S 
stseephut ef¢ Ye gattsoey edt mee of hott? od bivode | ya ions a 2 
gaituleat axa s ret tamil, evgresen d= at boing : 








pa edt Qs founesnt vont cians ana EU Owen 


= 





sy 


wee 


hee sot seen fit to preserve any cf these aatters by & 
Bili of exceptions, they are not oroperly before this court 
for review, fo authorize the consideration of an alleged 
error on appenl, which requires an inspection of the 
warrant of attorney or the aote woon «hich & judgeent by 
eonfession hae been entered in the Ciresit or Superior 
Courts, those documents mist be preserved by ® bill of 
exeeptions. Megher v. Howe, 1# Ili, S78; Seterman’v. Geton, 
65 t11. 34; Boyles ¥. Ghytraus, 176 111. 376. This, however, 
is not necessary in the cave of an appdal from & judgment 
entered in the duniecipsi court of Ghicsge where the note 
end varrant of attormey are attached to the statexent of 
Claim. Plew v. Board, 274 111. 233, They were ae attached 
in thie case, aut /the defensent desired to preserve for 
review the other aatters which the trisl court necessarily 
consicered in peesing usen his motion te vacate the judgment, 
he should have preserved his motion and the affidavit he 
Presented in support of it by & bill of exceptions. The 
facet thet they appear in the common lew record, san avail 
nothing. Austin v. Lott, 28 Til. 819; PF 
v._Hauseda, 210 111. App. 155; Patton v. Young, 23% 711. Apo. 
515. #ithout a bill ef exceptions, this court may not only 
mot take these antters ints consideration, but it is impossible 
for it to know what the triel court considered in ruling on 
the motion to vacate. 





in contending that this court mmy consider the 
errors urged, even though there is no bill of excertions, 
4efentent treats his notion as though it were sade under 
secticn 21 of the Municipsl court Act, and cites cases 


we a 


THR « Re? 
2 yd ereaties eseds te que errensrg ad n> geen #00 ene 

sium widt steied yiregees, toe ete we .anotdasoxs Ye eit 
fageiis as 36 noitessbiasce ect exgucdive rg aeleit wt 
add to. se tfoaqent ae eetigpet doide ,fesqqs 9 PORTE 
ed treegtat © do lde nog orgs oft ro pms eee 
‘eiveqss wo diver£G wiz ak betegvas aged aod aotaeetaoo 
ts LLG 9 ys bevnenony od tuum stenmvech soe, CaS 
sftisg .w'ashted oy’ yBVG (tit -aT yeeee .w wetuee anoties 
sxovered ,aid? ,OTS . ff STE .avextvsD> .¥ sefyod ee on a 
Pram bet #2 Bort fsscgH aa te eGen odd AE Ytseeneea ton at 
eon sat erode og seid te t2e00 faq te tags od? ab hexetas 
te tatesd ste ode ot edna one Youtetes te anertay bas 
“beatin 00 ores yedt 88 Att 308 bused .¥ .Y welg .atal 
aot evassetg oF sexiest tachaote we\n 


ee ea oS eae Aaa it 
Uilxesesoen | 02 feat os aide erettan Borger > 
















FFs 


a2 ‘vamp fquozxe ‘te ite a - a te spooky: at eae 

fiers ase sSrocet wal monate od? at ramaqe You? tet dot 

OG Axieswe Eaay xedet 1612 6S9T @2 ited .w giteea -gnidies 
oooh HT 0e Shiér 9 wikia tat saat’ LE O18 cheung ow 
‘eine fea yeu grees olde wane thatee We fit a toate te 88a 
afvieseqad &2 ot tad _ a0 tere bands afak avedtes oosd? dat gen 
xo siiaee at bers isa “Pts. anon! ‘ate seat ef ¢2 003 


ee 


Soe 
Pea aM Sd 








ew sontnace on san ‘iat ‘eats y gatbasenen al ; ‘ 
5 “PL wie Pes 


a0 i$ cboxe te fite 92, ek orede Aguoe asva apt 
$ Ce £ SA . 
wabens bas orew oe goede es netvon aid ataert sazhas 
Ys secs &. BH oF et bid 
eeeco estio bas 1904 fs02 Lag tod aft to 16 molsecea 
i SLSR. D-H eF picvetilasine = 





<3e 


Spplicable to th.¢ sert of a situation. This sontenticn 
is clearly untensble. Defendant's motion esa meade end 
must be treated, ss # section made in the course ef the 
original proceeding. I was addressed to the discretion 
of the trial court, and this court has ne meeas of ascer- 
taining whether the triel court, in any sensure, sbueed 
its discretion, without heaving preserved, by bill ef exe 
ceptions, everything that was considered by that eourt in 
eonnection with the hearing en the motion, 


The defendsnt having made hgs motion to vacate 
the judgeent entered agninet him by confession, even if 
the attorney who eppeared in the cognovit, waived more than 
he was authorised to do by the warrant of attorney, in rese 
pect to the defendant's right to have the judgeent vacated, 
it is not shown by this record that he hes suffered any 
harm in consequence of it. Rather, the record shows the 
contrary. Long v. Soffman, 30 lil. App. 527; Hanson v. 
Seblessinger, 125 Il, 230, | 


For the foregoing reasons, the judgsent of the 
Municipal court is affirmed, 


_ SUDGRERT AFFIRMED: 


TAYLOR, Psd. AND O'OGOHEOR, J, CONCUR, 


whe 


acitastaoe at(T ,solteutie a Te Sree yode od Stdeotiqge 
(dae then soy aeitnm e'fzshee ied .eltamsiae yltee te ‘at 

_ eff te eexume aff si ahem solves 2 ee detest? oo seum 

xeigexzesnih et? ef beseoxshhea esr f .paihseoete Eankg ire 

-ysoas te easex ex ead geuse aids haa yhrweo fated of? 1) 
oxe to lid wi .berresete gaived tuedtte ywitersetb art 


°° 4g hPa ade. ome wt athe essen 
Be ee Gripes NM 


atmer oe nokton , etd sham m paired sanhaste ot sees 
u acre a0 ka28 tron we ae Senge Sereeae sing bis 
ast? ston bevtor sti venges ode at nerasqgs of . oa 0996 es? 
woe mt syentora Yo tagczes edt Ws ob of Dextaostua neat 8 
adeoar tepeg bat edt evad ee Sight attasineteb oe ot 2g 
| wis Bersttee ead os tate buooer aidt Mt awed sede ton of a8 
edt swede brener ont arent at te = asepaados at mead 


ae 5 
be eo 

















fe aes, eae PF te ae vos BB — 
catia HA rome 





Ses gee ab we aed 


Lee 





yas ee. aa tee a Rene Ohya as 


2s wees egos aa “snare annete 


igh ed ee eee ar ein 2teent daaben Ted 


ee, Se fui Me ee ae ie asiéaen 


reins & sey lo tes ae es oe ee wake : 


es, 





138 - 31269 

MOLANE VAN INGEN, doing business 

as E. H. VAM INGEN & CO,, 
Appellant, 


Ve RUNICIPAL GOURT 


OF CHI GAGO. 
GABUEL Ae SHITZER, and SAMUEL, 
he SRITZER, TRG. g F OTe, 


Aopellee, 


: APPEAL FROM 


Opinion filed Apri? 6, 19387, 


BR, JUSPICN THOMSON delivered the ovinion of the 


The plaintiff, Van Ingen, brought thie action 
Sgeinat the defendants to recover a balance claimed te 
be due on an Open aocount, this balance consisting of 
eertsin items of interest aggregating $416.27. This 
interest had been cherged up syminet the aceownt of the 
Gefendants with the plaintiff, on overedue balances, The 
Plaintiff ean located in Wew York and the defendants in 
Chicane. A stipulation wae entered inte between the 
parties, *for the purpese of mitigeting expenses * * * and 
to avoid the taking of depositicna,* and for the further 
Feason, as stated in the stipulation, that the feets stinpuia- 
fed were undisputed, to the effect that the controversy 
between them hac arisen as a result of the sale of merchan= 
aise by the plaintiff to the defendents over « period beginning 
in September, 1919, and extending to Oetober, 1923, In the 
stipulation it wae admitted that the defendants owed the 
Plaintiff the sum of $617.88, leaving = balance in diepute 
amounting to $561.31. Invelved in the latter sun were 


aaese - e8s 
sonnteud toh OMT BAY yr 
sn sak 0 aA i saa 


ytanlleqqh (2 Peter rt eee 
won't asta 
AR RL. ya Lb ROR ORES . chin iin aa 


“2R008 wearer me en Pg 
ee wy 
_ Sean TH ® ; 


SMe oS! Hae 


ls | arGteo # AB TINE oA 
ee} ee aia 5 » os ae US POR RR gah aaa 
GiteiOy ehte +e Bhat hw UC Takt panos 


(PECL Boddeqd DeLikymoigiads 66 (tbr wey 





ade We mohekac ete Hever hiet MOREE ROLR a ee ms 
ehitre Fes of wet Peete Cente Bee etme | 


oe ‘soidee oad Alguosd soogat nat Puretaty = Pe oo 
i OF Romtato ‘sonsiad ® xeveo ss es ystems -— rere 
Be uniteinnos ronal ad ent “sfame000 aeee 1 as a wt “i 

whey ATR Oe pltng ous sasvarmd te agodt nietuse 

ome te Sausov0a ade tantage qe beweatda ned ‘bad po 

ed? .eeomatad owb—eave. m6 thitaiate ede da be ane 

ah etnadacrod edt han stot wit ai bermel Get Vik 

| hid RaoRted etal Aerstne emt gothaioatee a 10900: 

ben * * * geegerze gai¢agitio he eeeqieq edt TO" gaa keneg 
wdtset oct rok ban Naenods Leoqed to gabiet oat btows or 
seibnabion sbba glk dade aptentoeiee'eld ak berate 2a s08Ret 
Yersrertace ost gadt foette elk oF y he ni oxo Bag | 
~aototon Yo ofne of Ye tlusor s a0 avates bed nods mooted 
netontged holteq & ae¥0 adaohasteh oft of Yibalase ode ee esi 
odt af ,oo0s redotod oP yalhaotxe bas @sRL gxeduotqee at 
edd howe wtuabcotoh ot dadd Dettinbe sew ¢L molte | 
ptuqath mt soasiad « gntvsot 86,9488 to ave oft Yusaate 


Stow mum tetdol ecty at how feval, fS.£088 ov parenenne 

















=> 





wie 


certain diacounte and oredite ciaimed by the defendante, which 
the plaintiff *for the purpose of expediting the edjustment 

of this case,* conceded, leaving the amount in dieapute between 
the parties at the sum of $499,135, It was further stipulated 
that in October 1934, the defendants employed an accountant 

to audit their booke to ascertain the exact amount due to the 
plaintiff, and 17 possible reconcile the defendonta’ account 
with the detailed atatement which the plaintiff? hed subuitted; 
that the auditor so employed accounted fer the difference 
existing between the parties by indicating = disallowance ef 
eertsin discounts and credits by the plaintiff (here conceded 
by him) and by the interest charges whieh the plaintiff had 
made on past due balances, (here aved for by the plaintiff), 
These interest charges, a9 nbove stated, amounted to $499.16, 
The stipulation entered into by the parties concluded as 
follows: “The only controversy between the parties hereby 
submitted to the court for determinstion are: (1) *hether 

the plaintiff is entitled to charge the defendant interest on 
the sume past due, and (2) if interest is chargeable, at what 
rate ?* 


The depositions submitted in behalf of the plaintif?s 
included a long line of correspondence, beginning as early 
as October, 1920, and continuing throughout the period of the 
dealings between the parties, contsining appeals directed 
to the defendante by the plaintiff, some of them to Snitzrer 
individually snd some to Snitser, Ine., urging some wubstan- 
tial remittance to apply to the account which it would seem 
from this correspondence was always sub stantially in arrears, 


ed 






















de tae eat andre tod ‘ode w bemtato we thete baa stmovetn Laexee 

teembentha ade yate Koes te —— one gor ‘Mlvetale ade 

ROOTES atuanth ak tewomes Idi gakvoat ‘ghaheo men *,oane aide te 

bot suqate codes new a : BT 8088 to mse one te a0 ting edt 

: tanbe0 0008 as heyolqne atnobested od MOL tedote0 wh tailt 

ote of wid Fnvows tomnm oy aiatreous of wpand: eke de: eitemue 

| tmsoos a tad sche heb aule oitonco se eibanog tt bak. aYhlantiogg 

ghatd busters het Ytita teste adh tek da smaszate bellatat odt dtiw 

vomexettih oct ret boraveooe boyeters om cetthws oft vadd 

_ Yo eamerol tenth a gattmibat yd eelereq heed ue a gadtaixe 

bedes.avo wsod) Pits miele eet ye ue thewe ban atnsooakh alarseo 

bad Weatase ec? doltw eeprede tworegat adt ys has “(uta ia we 

pase on? ‘ye MOT Paar: ‘erad) enemies hat: ont tas ae a 

eBORE OF Potaiww boteow erode dn ‘ghee mista taeeadak meee 

aa beh fonoe weltreg wf) yd oft Bored an: ons 8 ature tn wine 

qeredt welring oft aemtted yormventads Yino matt» > ganwot fot ye 

aedgod? (fF) sete welten hw gab wo? Meee ads: od bobemdue 

mo #ervredet Poiastel oat syrtedd or Damien af ‘viteataee ode 
deste oa "ienanagedar wh taotwrms TE di onary: faaq sare. 

fae DR Nan MD Oc BRAS & fag aes tetas 

4 ME tie eed ae ye ‘gaeea wei 

witeataty « ott to Masted at bets indus “snot tas Me et Nek a 

gg RRA 88 setantged seonsbaoqeerx08 te enae aris eas 4 
ade te beste nett Puotyuor ts gatuntenos | 


pscgecenet) a vig 
© be patmon moawe 
_botewrsh aeoyt ae hp 16 mines bag Br Suceeae 





® at tind to tne t wh. oe yd eted ext nr q / 
; xageteg, g i 10) ee fi Ne fie et ee nahh: By 7 | 
ot eer mae iid < seetie mee bs gv fed RGR ae : | 


wee bfuew #2 Koide Aafia ls br goastt tuet, tt 
LO eee ee CMe Oe pie Ri EN pee oy panies? Hei! 





-5= 


Im one such letter frow the olaintiff to Sitter, in Hey, 

1921, the olaintiff stated among other things that #70. 44 

of the amount due at that tice, wae fer interest, *the curchases 
having averaged due net Aug. 4th, 1980 end payment Feb.10, 

1921, or 120 days after the seccount was due net." frie letter 
Slee enclosed a ststenent of a leter secount whick the plain= 
tiff wrete “was due net feb. let, 1921, and has been running on 
interest since that date.* It is neither shown nor “Laised 
that at any tine throughout this period, any protest was 

made to the plaintiff in the setter ef these interest charges. 

- Gm the contrary, there were some payments ance on thie acesunt, 
from tine to time, end sesurances on the sort of Sniteer, inc., 
by Snitser personally, that they would de their *very utzoet 
te get thie seeount cleaned up in @ wery short tine,* 


In putting in his ease the plaintiff called 

Snitecer as a fitness under Seation $5 of the Menicipal 

Geurt Aet, and efter « fer prelisinary cuections, Snitzer 
Admitted that «11 the bills of his concern, with the pkain- 
tiff, *accerding to the reoords,* sere paid after they beoame 
due, He wes then asked whether it was not a fact that some 
ef these bille were pil as such as a year and « half or 

two years after they beoane due, An obj ction was interposed, 
on the ground that this eas net proper erose—-exasination under 
section 25, the purpese of that section being to prooure 

Such evidence or testimony as the party calling the vitness 
was not able te produce by hic orn eltnesses, The court 
Sustained the objection. Te know of no such Limitation 
Upen the provicions of that section, In cur opinion, the 
Objection interposed ens untenable end it should have been 
| overruled, 








. sine ; id 


ter al , text Lad oF Whitaielg odd went seffei tage eno at 

Be ore stadt agaist roiite gnome betota Ttalaly ‘od i beer 
‘weaken ade” seeorodal x0? sen .tntt sae a ou dauons a 
_ s@E 60% taanyee bas set ah we tec en gerovs gaive: 
sotto! etc? * 200 sunk ane aveoos ode wets owah Pars ther | 
~aialy sa da tote tmrooes cotal s ‘te tnemesare a besos ovis 


eo. af Peet aN 
se gaiaast mood and ae tsar aet si tes oub gow? efors 


bemisi: tea svoda xeditea or just ckuok deceehl 
aw fangerq ya he frsq aide sodguorae att we ta saat 
ssegtads dueretat eeoilt 2 stim ons a YWitaiely ed? of oben 

sfmnene £ ebdte x6 oe Bd mawyon sue ores cal Seabed tt . 


ont test ia te tesg eds ae ietimens tak sc . ngs pee ba i tee 
pated ranthoe Ys 


tuonty yesv® xisds ab bisow ode tea Ulameted © : 


ei 
* emit funda Yor # at qo Saasele “pescoes wité $e9 62 
RR Lee Hehe’: aay 


Befley Titwisle sd? auaa eh ee ee jen 

| Eegistow! edt te SF sosteee cakes eaentin-e a6 senttas 

 -RONF eR jenelteees Yuectelien: wal 2 tote hes sted deed 

( agiade 9d? Whe garsoncr sid Yo cifld ed Lia sede deddiabe 
Secotd ysl teeté diag orew *yehaocet edt of gatieeneat ER | 
sens Foss Fost a fox ase ¢L redgede betas mode aoe oH: -s0ub 3 | 
ge ther 4 ae eee.» 60 dene os Rhay erme: SALA UNE Te 







































Seeertetas aoe ete te 2a 220 wns ed yee sung ent 
e Bee Fase 
xebaws a 9eetserenesore seqorq fon aw ‘sit? gant baverg 
sys ie «tees 


| oupeTE of gated mottooe tadt bdr: vega a ibe 
scent iv 91% gatifon witeq edt es ag Fr Ph aieas 

guwve edt vetevent ie avo ald qo : 

mongad mis tow’ on hed vont ‘oF 

| eed ovad piniode #f bad bidiiodi 





ot= 


At the ciose of the cleaintiff's case, the trial 
oourt, heering the case without s jury, found the issues 
for the defencent. In this we think the court alee erred. 
ligt only does the record show pest due itews ef substantie] 
amount, Trumning for pericde averaging over a yesr in extent, 
the plaintifY fron time to tise threatening te take some 
action end the defendents warding it off as frequently, by 
sesurances of ¢arly payment of substantial ascunts, which, 
in our opinion, wovld elone justify the allowance of interest, 


Sonieis ¥. Geborn, 75 iil. 615; Borgen & Selleck Go, v. 
Eraser and Chslmers, 116 111. App. 605, but it appears 


from the reeord that these interest charges vere shorn 

on the statements sent to the defendants from tine to tise, 
ena &t leset on several cccasicns, these interest itens 
were particularly ezlled te the attention ef the defende 
ants in letters from the plaintiff, all rithout any dispute 
of crotest, Such being the record, we are of the orinion 
the pleintiff made out a good ease, und the defendant, 
@nitzer, Inc., (the plaintiff having abandoned any clain 
ageinet Snitser individuslly) shosid have been reculred 

to proceed vith ite proof, if it hed any. 


Yor the renaons given, the judgnent of the 
Municipal Goert is reversed and the eause is remanded to 
that court fer further proseedings not inconsistent with 
this opinion, 
SUOGHENT REVERGED AWD GAUGE REMANDED. 


TAYLOR, P.J. AND O'GOKNOR, J. GONGUR, 





















ining 2d? ,8e89 at Tiitaial; ed? 20. ages. add #4 ode peer 
_ eseeed odt bavel .ytel « tuedtis asso. sd gataes } 
.barze coin f2g00 $52 dalg ov shit at . Ph eet b. ast, 30% 
_saitastedue ta eeetl auch, Paeq soda, sane oat: seen wen te 
fasize ai tay # Tevo galgateya ebolseg to? galeaus 
__ omes sash of gaiaotentds omit of emi? sock hie sale: 
. ctigaeupex? sa 730, 98 5 Ste stastacteb agg sno, nottes 
eo hte gPFerers iatiastadse. to tasstsg yfres te geome 
atanrsted te spsaneifa edt ytitast | eens ‘btowe. onlaies. 00,4 a 
seh seaes Asai (210 9108 a. seeded Tad 
_semece of ted aoe 0h itl Sit ,esep ted. & 
— anode azo" weg rade tomnees Gunde ga st tnoe 




















 eaeth demnmpad eantt ymsiemoe sae aie tod ts bas 
“abated edt 86 aeiteshts edt of not ind YMtatveltre: exew 








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wisio yet hemhenis gatvad Yiidalaly edt) ..0a ond 
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“tae bed #2 oR Sheday waist q 
ee 3 ade edt ek ne | 
‘ast te taaegnat, oa aol enone t adh tot ek 4 
| ot Sanaemer ad sure eas on et os @ te 
she taesningooat ton @ came aatieat 





ite 2 3 









Appel lant, 


148 - 31278 We 
BENJAMIN LEVY, 
Appellee, , 
* 5 APPEAL FROM 
Ve SUPERIOR COURT, 
: ) OOK OOUNTY, 
JOHN LUSSEM, } 
) 


Opinion filed April $, 1937. 


MR, JUSTICE THOMSON delivered the opinion of 
the court. 


By this appeal the defendant secke to reverse 
® judgeent for $1275.00, recovered agninet hie in the 
Superior Gourt of Cook County by the plaintiff, 


The originel declaratian filed by the claintiff 
alleged that the defendant ras the owner of and had contml 
over a certuia three story brick building, at a wiven ad- 
dress, whereby it beotme and was hie duty to exerciee dua 
eare in its operation ond san2pement, #0 as to prevent 
injury to those entering the premises on lawful business; 
yet the defendant disregarded such duty and while the slain=- 
tiff was lawfully upon the premises, the defendant so caree 
lessly, wiskillfully ond negligently maneged and operated 
the building thet by reeson thereof the plaintiff, whe 
was in the exeroise of due core and caution, was injured, 

A demurrer. interposed to that declaration by the defendant 
was sustained, and the plaintiff thereupon filed an amended 
Geclaration, setting up the seme cause of sotion recited 

in his originel declaration, but with greater particularity, 













aves - Bat 


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By Av ‘ei Wis ae ‘ah a 


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i at Gate. aes sil 
aye Tee wy ‘aoe betit maint ee Eh 
: ney eas da i ae aS ; mh ¥ 
yhantine to setatcs ‘eae Sazovtteb | 


BORE dARAS A 
annie: sola 
eTTNING HOOD 





ra ea 





bewerad of akon dmabwekar exe Lssepaue yiinaec lade 
edt ot mad somtage teoreweosy ete iar 
Wa late add ye yomueD woooYe ansit. or 


ee “ea 
tide tale ede w Dost. sottoraloeh 4 foal pines eM 
fortoon bast bas ‘te mane ene gw Pusbao te oa “tate, bogota 
“ha aovky @ te egal Ld 0 ba yrore gent + shatoee A 
au os lerexe oF eeu ek tow baa. suse od +h woradie stem 
toeveny ‘OF 86 oe frre nen hes gr mo OFS 
jeeomiend futwal so ssedmerg ode satibtue eine a te ae 
~giele odf afide daw yeuh dowe bebeijoresd fashastad at Fs 7 
“eras Ok Faabaeled edt ,eralmerg ach, mages Eke be ane tur | 
hogareqo Ase Hagens Ydwoy hyn bas YAtuti litem eta 
ade itaiule act Lowrnds monave ed pede yoikntaud od 
Herulal saw yooiduan bee oreo och ; Poses ot mt - "i i 
tandmeteh amt yd sokderslo oD ast “bos Da 


























«feo 


4 demurrer which the defendant interposed to the emended 
declaration was overruled, wherevpon the defendant pleaded 

the general issue and ® special plea of the statute of limita- 
tions. The plaintiff filed a replication to the olea of 

the general issue and « demurrer to the plea of the Statute 

of Limitations, Tre demurrer to the eseciul plea was susteined. 
The parties went to trisl on the is#ues joined by the ples 

of the general issue and this resulted in a verdict for the 
plaintiff, assessing his damages at $1375.00, Judgment being 
entered on that verdict, the defendant perfected this appeal, 


In support of his sepeal the defendant contends 
that the trial ceurt erred in overruling his demurrer to the 
amended declaration; first, because it failed to state a 
cause of action; and second, because "4t shown on its face 
that plaintiff's action wre tarred by the Statute of Limite= 
tions." ‘Thies contention is without merit for several reasons. 
In the first place, the defeniant did not etand by hie demurrer, 
but when it was overruled, he prosesded to plead. That being 
the case, he amy not now be heard to urge that the trial court 
erred in overruling hie dewurrer. Moreover, we are of the 
Opinion thet the smended declaration did set up o good cause 
ef action, and it was not open to the other point urged by 
the defendant, as an issue of the Statute of Limitations may 
not we raisea/oy guaran, wut aust be interposed by a special 7 
Plea. in contending the contrary, defendant has called 
Our attention to Northern Trust Go., Admr, ¥. Chicano Railways 
So., 232 Tl. App, 246; Kirkpatriok v. Monrose. 834 T11. App. 


#13; amd Leach v. Ghiengo Gity Noilway go,, 162 Ili, 359, 
The first and lnet eases cited sre not in point. In both «) 


ve * 


hobiena od’ ot hocogretmt tasheote ode doidw corwenh a 


babesia tasbastet odd mawetede .belrcrowe wav noktataioeb — | 
wt Seek! he wd ad HS & ant Yo son Ley Sebosae « bem wind teoronny oth " 


te aeta att of moltectiqes # heltt Tihentale eff scott 
acudar? 94% Yo aeke est of tevxeeod o bea owned Aewaag ‘odd 
bemisteys eaw nOlg Latooge od¢ of toxtumet emt amodtatints te 
anie ole yt hartet, eewsel od? mo feind of taew aoltieg off 

edt tot do ftheow dae dp tddoe aide bun oust Lorenay oft to 
galed dma dwt 1009 oA EIQ te segansh als gorenenss sthidatate 


iseqgs side betee teed taxbasted ant wolbray tasty no ce 


abeatace texhmokeb sit Ineqge atd Yo Sage que ak 
em et norm aid nd Lorx9 we m2 sooo co) faint» 


A ae une 


a etate ot betiar ws eaurood ater peda: . 

soet eek ae ewede #2% sensoed yhavoos bana ottes Ap neuen. 

net innt % etotded att ys sential waw notthe @YMitalelg tele 

yenvetet fetever sel phew tacit ie vf noftawtnes eldy! "atone 

sorte wid qo Snete Yon hab teeheiy toh ode yooalg Pees t ane Ee 

gated tad? vbasig of Debswooty ad ,bofuenevo wow dE itede ted 

fiom fated edt todd egev oF Wines oa en Fd “do 
edt “Ye ete ow (revere tm gat. : 

heoy # yw ee bib wolseteateah pebeides one via pues 

“ome stent ‘ante lial i adieal ee 



















PT eek fe ve Bi 
“ Kakosqe & w Reenmeatat ed shall sue tn woh 


omg rit bea” suns r teied aekeey 
eat “in Ker, 06 veeltad ei0 at 
te! TOE: Pa as ey 
if ved at” “ymteq at ton ap 








ote 


‘of them the Statute of Limitations was apecially pleaded. 
The Kirkpetrick case is in point but, in our opimion, it is 
contrary to the established lew in thia state, Gunton v. 
Hughes, 18) 111, 182; ml) v. . 
7 Til. G6; Langen Vv. Brainege District, #39 111. 436, 





The defendant contends that the trial court erred 
in eustaining the dewurrer of the pieintif’ to the vlea of 
the Statute of Limitations, I, our opinion, this contention 
is likewise untenable. It may not reasonably be said thet 
the original declaration failed to state any cxuse of action. 
It may have been subject te dewurrer on the ground that ites 
Sliegations were too genersi and that i% failed te wet ferth 
the fact5with a proper degree of particulerity. fhe amended 
declaration did not cuplain‘of any negligence other than such 
as the plaintiff hod referred to in his original declaration, 
The amended declaration in no sense set up ® new or different 
cnuse of action. 1,0, Bolt. Goo v- Souders, 176 Iil, 585; The 
General Railroad Go. v. Carroll, 189 11. 273; 6, @ Bed. Be Be 
Go. v. Kellace, 202 111, 129; Hagen v. gohleuter, 236 111.467. 
The court, therefore, properly sustained the plaintiff's de« 
murrer to the special piesa of the Ttatute of Limitations, 


The defendant further contends that the plaintiff 
should not be allowed te recover, inmaguuch as he is shorn to 
have been guilty of contributory negligence, From the argument 
advanced, it would scem that the position of the defendant is 
that this is so clearly shown by the evidence that 1t should be 
held that all reasonable minds would say that the pleintiff 
was guilty of contributory negligence. In other vords, that 
it should be held that he was guilty of such negligence as « 


olan 





bodies le Ellalsoce sev gaottetints to etater’ ost mode to 
af 2 \Hotaiqe the Me ,eed Pabog HE ef sean HoberaqtT eat 
: wate sot ate whee mt welt hetind Coares edt vi bere i 








davxt o tment po si om 


1 iN “pits # Pin 


texae PELs ot intee one rede abaegace  tasmaye, ‘ont, Alpe  il 
to. sety off of Ttetely edt te tortapen, aft potion Z “ ; . 
apitenteqo e£0h. golesnre Hh ph gassed inad Te, ‘ptutnge, naa 
. Sett Dhes 26 yidappenss, tem yan 7%, elianetay ealwodts ek 
enghtos te ouvse yas etnta of AmIzat aottaxeioed Jantatze ode 
e¢ add bawety oft ae tertreah of tostdwe asod wiad qen ot. 
Hexe® Jo oF bottet we tht ben fewoawy voF oveW eaokengelia 
dohatus Sek .yeatetim sing tO woxyeh keqotd «| ahtvoneby wie 
ove woth tedte gumey tigen ya Yelatetgns dor bkh ables 
woltexeiond Ieutgieo aid at of peteston bad Veneta se’ a 
fifesetthh vo wom a que tou enmin Ont Ht aottonatteh bei ua 
at bol et OTt exbbiiet Ok inate Yo Meal . 
Ou Pe ao pees ree ad teenie bower tt Latha 
daveheen} eS .yedwetdng se_guy ay GORE’ corr BOR |e straw oe oe 
i wT Eteninty one han Lot owe YRteqory Yoxbterade hives wir 


ssn bt ach to j ieee ol Ye aa tatoede ee ey 

ied Ne ee wits doe q 
‘ahteniase wor en yet onan taspen2e, OE ok baw ” q 
of mena 24 of am dowanant  xeTnoer of hewa (to iit Aixede 
et taanbsen ted, tt Ye, meteieeg ode net ween bfyom po patil 
od Divo ot tadt epagbive ode yg my do xite9 to om a ah ee hee 
“WMteni ata et tadt we bee ms 
add, gnbror x90 ak me | : se : : 

8 On woamiigen dove te vim ean ‘on a bind os veda 92 



































: 


“matter of law, ith this contention we are unable to agree, 


“The evidence shows that the plaintiff was a postman and that 
: 
visited the premises in question daily in the performance 





hie duties, and had done so for some years; that he was 





















ia eguired to go up a flicht of steps to » porch or platform, 
4 re the mail boxes of the tenants rere located, to leave 
mail; that these steps ahd the porch had been in bad 
: dition for some time; and that the nlaintiff had observed 
ite condition and on one occasion, some weeks before the 
ident, he called the defendant's attention to the matter and 
Ba: @ he thought it ought to be fixed up or someone would get 
mrt. The evidence is thet some of the boards in the floor of 
porch were*rotten." In our opinion, the evidence faile to 
that the condition of the floor could be seen to be so 
langerous, that plaintiff's continued use of it should be held 
® be such negligence on his part as would defeat hie action 
@ matter of law, The plaintiff was or the defendant's premises 
y hie invitation or authority, Sutton v. penn, 238 Ili, App. 
Even though the plaintiff knew of the condition of the stens 
perch, the evidence on this question being as sbeve stated, 
| use of them could not be said to be negligence on his 
aS a matter of law, City of Mattoon v. Faller, 217 I1l, 
4t most, the question of contributory negligence was 
‘ for the jury to pass upon. 
For the reasone stated, the judgment of the Superior 
is affirmed, 

JUDGUENT AFF INMED, 
RB, P. Jo AND O'CONHOR, J. CONCUR, 


Mewnswter! Oct mee ae 
ssoxse oF sidan ars ew moktaoetace ehdd Mahe. iui to, rot ten 
tet? Bae xamteoq 8 ean Vihdatalg ed? ¢odd.ewods eonebive oa 
pomeatotisg edt af yileb aolesomp wk ageleetq ed? bettety 01 

aav ed Sofd jataey eos: zot o@ sob. bad bag gegldub mia % 

 srottale t dot0q a ot sqets te sagt? 5 qu og et bent , 

eveel of pesonet exe" simaret edt to aexed Eten edt oxed 

_ bad mt need bod dotog od? Bite eqere ‘ood? todd {Kieu thes 
hovrsade bail tte tabale ed? fous Baa ieutt ence tot noltinae 

: edt wtoted axeew omon etolessoe ono so bus softtbnod st 

; ‘bas rot tom edt ot not fast? 2" tmabao ten ode betleo ed atneb > 

; 3 8g piven PHOBMOE TO amet bextt od ot tdguo tt tagur0t y b : 

“Yo roel? ent ad adtsed ad? to once tedt of sonet ive “eat om 

ot afte consbive ont wohatqo wo ar ‘a0et otterae 98 ns 

8 o€ ot 1998 od bivoe soolt ode 20 okt ibmeo edt “tedd 

bled od bineds ¢ te ou bouttt tn00 artiteat sla ‘fade ae 10%: 

; : nottos etd taeob bivow ae ‘tse abd 0 conesiige oon te of 

meinem at taeda tob alt 16 aaw “Witarste ‘eat er to ‘saddam 4 & 2 | 
i" 6th, tt sts sO v asus <wehxodtun ‘to nottatival etd x | 
‘geste ‘edt Yo nots tbieo edt To won “Wittntele edt dgwode ‘deve , 88 

besarte oveds ae pated nolteeup ‘aldé do oomebive ‘odd core 

sid no eeasstigen od o¢ “bise oa Sea blues ‘net %6 ety t 

{LE TS qt9dlato¥ Moods sk 20 yt29 . -wal. 2o,nesean a on 2 20] 

aaw comonilgas ytegudtisage to mokieaue odd. at BA, v 


storms yn  980Gu R0q, OF YTHE oie x9% 6 
aotusqen eft te pit oft ,hotats eaagsee odd 79, 


ah i049 Meee Eta Bo ii i i ine 






% 





+ MBRAL TGA ae Ichunongy Pe tame tbe rae! 
$k giro notre at ace ARGO yokes + PERO Hh 
Gh Snmamt Ly re he Pee. wc at hel 


ith Dal ae binge Uy a 


ee ag 





we? 2: 


268 = 31341 
Jous J. BAZCHLE, 


APPESL FROM 


Appel 1eé , | 
, BUBIOCIPAR GOourT 


Vea 
Ge QuIiCAGH. 
BE. He HAUGH, 
Appellent. 
Opinion filed April 6, 1937, 


® > 
Kad re 


Wk, JUETICE THOREOR delivered the opinion of 
the court, 


By this appeal the defendent aeeke to reverse 
& judgeent for $600, which wes recovered sgsinet him in 
the Municipel court of ¢hietgo by the plaintiff, in a 
@ntract action brought by the latter to reeover the 
amount be claimed e2e due him as a commission for bringing 
about the sais of certain lands the defendant owned. — 


The record shows that the plaintiff wae a rr 
Clerk in a railroad office in the Gity of Ghimgo., He \) 
anevered a newspaper advertisement of the defendant, éheveta 
@ertain farm lands in the State of wisconsin were offered 
for seule, After soue talk between the parties, the defende 
ant made a prepositionts the plaintiff in writing, reading 
@s follewa; “We will give you One foliar ($1.96) sn acre 
Commission on any parties that you refer to us to whom we : 
sucoted in selling land to. ‘Ye rill also allow you a 
rebate of #1.60 an sore on anything you buy yourself,* 
The only claim the plaintiff made which wae besed on the 


‘Last sentence in this offer, head te do with an 80 sere 


es : - “ysex 3 tisea belt otaigd 
: ‘Oya rk se em oe Se ae ‘N =. Eas 
ap ip Go CALE :s iN AN a 


Be oe wa By 


te scuaige one bonerzdat | waco soxreuy 


Bovey Py a Sa gt ets 





wile 


tract he testified he bought from a third party, she, in 
turn, had bought it from the defendent, it would seem to 
be clear that the pleintiff had no velid claim against the 
Gefendant ac far s@ thet purchase was concerned, and the 
trial court tock thet view of it. 


As to the plaintiff's claim under the first 
sentence in the proposition abeve cuected, if apoears that 
the plaintiff interested » number of hia serueintences, 
@pparently o11 of then being engaged in the same Line of 
work in which he was, and they formed an asesocietion exnlica 
the Enrengo Valley Association, and epscinted one Yaleh 
to act for them ase trustee, in purthesing some Yisconsin 
fara property from the defendant. The cleintiff and some 
nineteen of hie friends then entered inte &® sritten agrete 
sent with the defendent, - confirming the authority ef their 
trustees, “leh, in & written contract, into which he in 
turn entered with the sat eideat; ~- for the ourchase of about 
#60 acres of lend. The lend was te be paid for in swenthiy 
installments. fhis first contract was entered into in October, 
1919, In June 1920, wore people had become interested in this 
Merengo Valley association, sone through the pleintiff and 
Othera having become interested through other parties to 
the first sgreesent. fhe parties to the origins] contract 
with those whor hed later beoome interested, uade 2 second 
agreenent with the defendent, covering the purchase of a 
larger screnge, Agsin, in January 1921, a still larger 
oo, imeluding the plaintiff and these who had entered 
inte the previous contracts with the defendant, and sone 
who had become) interested in the project feliowing the 


stededeu af efel borotas ase dostsaco gextt akee 


ea 


=~ 





gi ,e@r ,yfteq brid? s mort tagued ad bottiseos od + saxt 
oF meee bicer #2 .fentavies age aoet of tigued bod ase 
edt tatigus wlelo biisy on bad Tesakate end tadt seale od 
eA? bas sbomrsoa00 nos sentoane sad¢ a2 tat os taabaeted 


v1 39 voy dade Zoot éxuom Lata 


cas ms eee 








#ezit a <ebaw aisle ernign iat ong ef pg 
fade szasqys $2 ,bstour _— aol? ieeqorg wat sk soustane 
| yesoaddelaeno’s oft Lo Vedasit SBedacxorat Yiteniatg ade 
to olf emae ed¥ xf beyryae gated ot) Ye fa eltaweoegs 

bufion weltateseen es baxwet qed? bes ese ont ode ah at a 
delee one hetclegqs bua ,eeltetevesA yolis¥ ogc ad a 
asoe bee Litalele edt. .tenhaeted ode wowt erragoee met 
“serge sed¢iae 2 ota! betotee asdf chasis? aid to ssétenka’ 
aiois to qeinediss oat gatenttane - .dschaotsh aft dthegaae 
_ fi ad delds otal ,tossiaw aedeics & ah tai yeotemst 
tveda te seadomrg ade == a@asbastes edt tiv bowctes weet 
eiddaon wi not Bieg ed ef sew bast oat hans eee 





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widt cf pepgexetal sanesd bad ofgosq 308 Jat oa ‘i 
we Deak — FS Cs al 

feet Pilewinfe ont éu02 ence of akocank. ; 
sek BERS rare 


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stedte 
Site GRE ote OR 


so atdnse caer it oe Lerplead rk se ‘tert ot 


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a te esade tug ees ee: een ose dail . om 
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execution of these contracts, made another agreement with 
the defendsnt, which again ineresged the screnge sontrected 
for. Sach of there egreements took the place of the one 
previously sade. The last one called for the curechase of 
‘2460 acres, Based om that contract, the plaintiff cloiged 
he was entitled to a commission of $1480.00, The slain- 
tiff'’s position in the trial court was that this commiscsica 
Sime to be due hia upon the execution of the contract by 
the defendant with the prepesed purchasera. fhe evidence 
shows that the defendant hed paid the plaintiff the cum 

of $400, The issues <ere submitted to the trial court 
without a jury, resulting in @ finding in the plaintiff's 
favor and the entering of the judguent appealed fro, 


fmong other things, the defenieant elleged in 
hie effidavit of merits that the sgreesent he had wade with 
the plaintiff was tothe effect that he would pay the 
latter a eoamission of ene dollar en acre for #11 land 
sold by the plaintif’ for him, "ssid commission te be 
payable when oneefourth of the purchase price of enid lends 
had been paid by the purchasere.* The proposition hich 
constituted the agreenent between the parties wee in writing 
and when it tes introduced in evidence it was shorn to 
gontain no such condition ae wee mentioned by the def endent 
in his affidavit of merits. The record shors thet counsel 
for the defenient bad never seen this written proposal, 
Signed by the defendant, wntil it was intreduosd in evidence, 
and some remarks passed between the court snd counsel as to 
the advisabhlity of amending the pleadings, but no amend- 
ment was ever aade, 


wis 


tia gueasstge tedtens Sban ,efesttace eco? Yo sotduséze — 
Referttass eeseten oat heeseréat atess fgite ,tasbasted “de 
‘eno ot# 26 eeets eff deo? agasateegs essa ‘te far “sae 
te venous 943 tot beltse sau seal eit? vob. qlevoive 
pemteio Yitaislg ett .toattacs tae a0 Bete kets” oon 
wiialy sat ,00.08M9 20 goleeiawss « of beltitas ase od 
sekeeiames cidt fade sa dee feds? 9&2 al agbgieog dial : 
ee toexape ov, Ae, Soden Ee a6, 50 abd eum o¢ GP 
seschive eat (eT sRAto ING bonoqoty nt S328. é , 













halos ms + tama, oat 0 , satxorae. oat bas 2 


af AES 


‘diiw obae tad ad fagasome 34? ¢ad¢ e¢iton te pone *ta 

“and Gar Bhiow ed 228} go0TIs exited ome reisatate oie 

bast ifs tet exee mi HEifab sao to m law tne F 

“e¢ of otestaace biea* mid zet trtsaisry eat « tee 

" gbwal blae te éeite seats tg st Atrsctoons made 0 leayag 

| dodae gotfieeceta s€f * eremadoty: ‘oe ‘@ hisg medd bs 

martine ‘ai see estetss 943 soewrsd tawaoetae oat Bede 
hdaprententiimener decile" gs 












of 8s iseaves $28 tums 96h e  e8teset seod hes 
ohittas on dud santos ob gata v0 jedan tens 


ode 


We are umable te tell from the evidence in the 
record just hor much wae paid by these purchasers, One 
Wood testified that there was not te exesed $3,500, 00. 
The third and last agreement entered inte between the 
defendant and ‘slsh, as trustee for the curchasers, recited 
that the istter agreed to pay $37,000 for the property which 
was then being contracted for, of which #15,849.75 wae te be 
peid *at the ensesling and delivery ‘hereof, receipt of hich 
is hereby ecknowledged,* the taiance in monthly inctallasnte, 
Om the theory advanced by the defencant in his affidavit of 
merite it vould seem that the plaintiff would be entitled 
to the commission agreed upon, if the fuets, releting 
to payment, were wa indiested by the reecitels in the last 
agreement which the defendant execeuted with the purchasers, 
On the other hand, the question of whether the plaintiff now 
hae eny claim ageinet the defendant fer a balance in the ay 
of someission, the contract between the parties being such 
&s is evidenced ty the writing which the defendant signed, 
might desend very much on just what took place, *hen the 
purchase of the property wee sbandoned,cnd the plaintiff 
and bis associates, se the purchasers, and the defendant 
as the seller; made some new arrangement whereby the defend- 
ant, from the evidence in this record, apparently waived any 
further cleias against the purchasers, and they in turn 
ocomveyed the property beck to the defendant by a quiteclaisz 
deed, The evidence of what took place at that tise is very 


meager. 


Gn the record, before us, we are of the opinion 
the judguent for the plaintiff shold not be permittedte 


wily nf seasbive off moet Tied es eidmum eve #2) >. 
— sstescdoreg Seed? yo Bie saw tower wad Seal Stoo 
.00.908,8 Geeexe of goa gee otede F888 POLTetest hook 
‘edt mwesied cial petotat tatesergs teal baa Hanae eg? 
bstiest ,ersssdowso aig vot sstese? ca ,d62e% bas Paebme ted 
doide YZregere sat vot 400, TES ysq oF Searge. wedsal ede gaat 
ad ef 229 S&F @59,22% cotde Ye ret Hstesisade gated mot Ger 
doise te so Meek Sobreek yrbvE inten gai issese eat s0% Btee 
seeneaticdeat qidiase al eenaicd sd? Fenn stealapip tiie 
te sivapitts etd wt @avigetes «2 yd BassevSe*¢te04 ie 
@eltigns ef bivow *Yisalete ef Feay wase Bises of nee 
gaitalet yecoet Sa 2s ogy baaTge so2éetemeo ‘eat oF 
geef add ef afediost o% ys Detesthal ax erow ysnemyag oF 
seteetde tg el gia botusaxe tnabao'teh ont ty bits tnomexga 
wea %titmiale eds sadtede te aoiteoup ade sband tadto wad 24 


is 2 reas a 
We" dt al sousind # vO guapasiab edt ten mialo yes and 
: pees TEES ee we eke 








Aes gated eoitaag one amends feartscc oat Retwrer) to 


(ae :: rea 


Oc faebatab oie ood gaieive alt J bes 
_ ee a8iw stone ‘dood tad fam, ao sous Fer be meta 
Yisatals aut bac deacbusde ann Wregery dt to ¢ org 
. Pant ag? ee oat bes wosnessiosss, ot ae _yatstpoane abt bas 
a tesaugantie wor once eam ghee wool 
ae Bevies Ulturtaqce prone: eddy a rd cert sad 











rege a does ee sues . eibanee FF 4 
“potaied edt to eth ew yar sxotedgetset ‘SHR gee ‘. 
etbertiawed ad tea biveda Wriseialg i 


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etand, mut that the case should go back te the trial court 
for a new triel, where the pleadings may be properly asended 
and testimony 2<¢ to 211 the facts submitted, 


The pinintiff was clearly not a broker and si though 
three contracts were inrolwed, the vhcle transae¢tion vas a 
Single deal, and the fact that he did not have a broker's 
lieense ia quite immaterial. We think we ought to say 
further, that from the evidence in this record it is net 
certain ehat persons involved in the last contract as 
purchasers, had been brought inte the deal or introduced 
by the plaintiff, Apparently net all of then had been, 


On the basia of the written prevesition, whic: 
apparently was the real eontract between the sleintiff end 
the defendant, coneuganted when the plaintiff acted under 
it, the Guestion, shether he beonme entitled te hie commission 
whea the contract of purchase end sale wae exeouted, ag his 
counsel emmtended in the trial court, might depend on just 
what took place when the parties later made some new arrencge- 
ment,whereby the purchasers quit-elsimed the property beer 
to the defenunt, 


for the foregoing reasons the judgnent of the 
Munioipsal Gourt is reversed and the cnuse is remanded 
to that court for a new trial. 


JUNGHENT HEVERESED ABD CAUSE REMANDED. 


TAYLOR, FJ, AUD OT CORHOR, J. CONGR. 


a. 


uso Lnkte ot 08 Sood og hinede eam att tact tod ghante 
babaons yEtogez od yam egnibes fy odd orate: feist wen 2 tot 
sbeteheden eset sat ed ot 82 Yxe aes 


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dguedt ix bam tesexd s tex qleaste ‘ate Vibtnl aly egy OOO 
(© aoe moigecseet? eicie si bev ivval etsy seoettaa ieiiale 
| etradend 8 eved Sou $95 of cate test ode bas ined eigate 


ae OF Spit aw Matt oy  tettetenat othe wieeteene 


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. @Ssegkertat «a feed edd odes Ped asad bed jersecdteuy 

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tee MSS: 


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2 3° Beta -ed seums oat ‘bam Beewovor at #1s0d bi Lamont 
Me ak week ee  -dated wae 2 eek Stace ade ab 





Fae Sak: SR Shae ei Siar 
| saanwasa aavap a ‘oaaerevad euanonT ~ 


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Meme 2S 


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ae Mee ee dae = sia le 4 Oe key ee ee! Pe Tepe ‘ope 
the ta ato er ee apne gale 


stock PE eas et OR oe 










231 - 31363 


EOWIN ANDERSON, 


Appellee, 
APPEAL FROM 
Ve SUPERION OOURT, 

3 Qk COUNTY 
We We KIMBALL OO, (a eorp,) ‘ 
ET AL, OW APPRAL OF 
LUKE YORE TRANSFER COMPANY, 
% COMPe,s ps) 


Appellant, Kap * 
Opinion filed April 6, 1927, 


MR, JUSTICE THOMGON delivered the opinion of 
the eou rt. 


By this eppeal the defendant seeks to reverse 
(& judgment for 2200 recovered agninst it im the Superior 
Court of Cook County by the plaintiff, who brought this 
- aotion to reoover damages rewulting from @ collision be=- 
tween hie Ford bex-rondster, ani a lerge piano moving 
truck belonging to the defendant, 


The only evidence in the record in that of the | 


plaintiff and one corroborating witness, 
took place st the intersection of 59th etreet and Robey 


street in the City of Chi Ge 90» about @ o'’olock in the 


The gollision 


ee a 


evening on April 25, 1925, There are double street reile 
way tracks in both 59th street and Nebey street. The plain- 
tiff was driving his roadster west in 59th street, straddling 
the left hend rail of the west bound track, The defendant's 
truck was being driven north in Robey street in the north 
bound track, The front of thepplaintiff£'s roadster 


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: BSA RSA ye tt ni : 
# mA ey ae . Bye ye 


one Oe’ gARTIA 
397899, POLAETOR 
_SETI00 3000 


a 
Ait ok gaat ian ich on 
et@lioggs os 


2h A da aioe i Gal ti 
VY O.. @ & ree . a an 
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Qiiee tg ORL <Q @ tah Sth tai HSI cilamaiiaie 


Ginn oR baretemeht sea 
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fh GR ales Lshorbugg 

oetover oe woos Paanentos ott: jovqge ate a Bibl 

i Ce die a Oe ne Oe aS uaten. ie e- 
rornoquit ont a a fantags “baxoveoss 08%. xek ¢momptury 


a i Hie 
eit daguend ae thao ode wt rvgallecoms 
if ie cating ‘ei Bae un ea ee man me a 

ad note feo 6 a 4 ‘Gattivort aoysmab xe nevanar of : 
up eR sealeotis when oe 


vee oan oytal * hid I | 
ifs Pie ey “4s ci 
nabae Yd ple 


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“eel ona ay wee * 


ee ae ee 
edt me teoteto @ pov i 


| shit teonte viduah omen wren 488 £ ,a8 gt 

| natal Oat ator ee YRCOR. Raw: asnid sien sow va 
“patttberte teers 4960 at ene vik 
eee ay ie aay 


a e¢rahasteb an? otto ont ‘oan Me ss haat 
doxou ode at Yooxte redo a2 steon anvdzh ga 









it 
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collided with the side of the pinno truck at about the 
middle of the truck, s¢ the plaintiff put it, or about 

the rear wheel of the truck, as his corroborating witness 
put it. The defendint submitted no testimony. The jury 
found the issues for the plaintiff and assessed his damages 
at the amount of the judgnent sppealed from. 


The plaintiff's corroborating witness was 
the notormen of 2 southbound street car on the Robey 
street line, which was standing facing eouth on the north 
side of Robey street, at the tine of this collision. This 
witneas geid thet the defendant's truck was proceeding 
north st @ speed of about 10 miles an hour, snd he gave it 
2s his opinion that the plaintiff wae driving at about 30 


miles an hour. He déseribed the intersection as being 


fairly well lighted. There was one electric are light, 
located at the northeast corner of the interseotion, 


The plaintiff estimated the epeed of his 
Trondster at 15 miles an hour. fie said it was a clear 
Right and had not been raining, He further testified 
that ae he approached the intersection he slowed down and 
looked both wzya, - "mostly to my right® - and that 
he saw nothing end proceeded, ond when he reached the 
north bound track on Robey otreet he collided with the 


. defendant's truck. He said he henrd no warning and that 


the lights on the truck were poor, He stated that the 
truck went about 10 feet after the collision before 
stopping. On cross-exauination he was asked where the ‘truck 
was *hen he first saw it, end he answered; “Right in front 
of me, - * * * half a foot, - * * * just as we hit it,” 


em? goods ta sowed oaake edt te oble oft atte babhttes 
geoda ro ,fL tug Tioniatg ode ae Call ad? to oLhbhm 
weeudin gatverodertes aid aa ,toutt odd to foody taee ody 
yrut oc? .¥Moakive? om bettiandve dashasteh aq? yf Faq 
aeyeneh ott Deoawoen baw Yhidadata ett vot auvent emt howe 
moet belesqqe tnomgbat, at " Sent ody id 


ie a 
ane yrs 


ane enont ty gatterodernes a ertionilite? ia ep 

Yoder ait me cao feorte hawodituas 2 3 Sewcet on one 

dicen eff ao dtwoa gaioat nathnids aaw Sotde ,anll tearte 
eid? wolaktton ohay Yo ont¥ Odd va ytoorte odo To atte 
gaibseooty sew sowed attaabaeteb odt tats bles avontiw 

$2 vey of bas .twod na aglim Of tuods to beage ata demeg 
O8 tuoda da gaivigh eew Wiitaiely edt tad? actmiqo aid as 
‘yaled ea BOlfesersial oct hovtwsakh ok .xhod ae okie 
“till oxe obvtobte amo eae exadt boty Lt ftow yertat 
aontosuredn! mt al saneo ‘shanti oe ts dormer 





Sa! a si Ow 


ie to alg ast hotantea Mileatate . ua 


raelo % eow ¢4 has OH, Hed ae wothm ar te xeeabaes 
hes titned viens eH Mota und tox ane fatten — 
“dgadd bme ~ “eiigte ya oF etnua? - wee ed stat 

edd bedoset of verte haw ydebosoone bas gat fou’ 
ot? ddiw bubsLToe of doors Yoder no: suit obie e 
test bite catenee on Binet 94 bikes ex south ahenchmoted 
ot tanh bovete ok sto0q Stow Morte ond no Reig tt “? 
oretad noted! foo onlt ‘eorts oe ‘os lyr anil ‘Sout 
dort? dd exede beden baw'OH mottAnimaxesonnte WO “agit 
duort a2 diyta” pbeteweme ed paw open gente ial ‘ae 
2 dhe Ow ae ret 68 Eerihallneaall ——- 









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eke 


Counsel for the defendant announced at the close 
of the foregoing testimony submitted by the plaintiff, thet 
in view of the plaintiff's evidence he had nothing to offer, 
The court then instructed the jury to the effect thet there 
wae in full foroe and effect a atatute of this state, proe 
viding in part, thet "when treveling woen any public highway 
in thie State, all vehicles shall grant the right of way to 
all vehicles approaching interseoting highways from the right 
and shall have the right of way over those approaching from 
the left.* 


fhe court then instructed the jury that "when 
® motor vehicle is savpresching on intersection from the 
right, within the meaning of the statute and is entitled te 
the right of way, ite driver had the right to act upon 
the assuaption thet a1] motor vehioles s»proaching slong 
intersecting highesys from the left, willmobey the law ond 
grant the right of way." 


fhe plaintiff's declaration consisted of 7 counts; 
the first charging general negligence; the second charging 
wilful and renton conduct in the management of the truck; the 
third, excessive speed; the fourth, wilful ond wanton conduct 
&s to specd; the fifth, negligence in fsiling to yield the 
Fight of ewy; the sixth, wilful and wanton negligence in 
failing to yield the right of way; and seventh, negligence 
in failing to provide the truck with proper brakes or a 
proper signal device, The plaintiff subuitted no evidence 
whatever tending te support any of the counts exeept the 
 firet and the fifths 





ae 


seolo Sat $6 donavenmes tastes teh voit tek Seemm@B eo. 12/0» 
tate sthiveialy dt yO futtindwe yooastast gatagetat at, te 
enetho oF gadigon Dat al sombive, wl eR tate ke ote Xe. woke ah 
evedt pode roakte ade of yuep od? Heteutdams svete, au90 ant 
sey jetete aint Yo ott ata’e doeThe bao vot? [fwd at gow 
Uerdghd eLidug (au ada yablevort ande® tat gtveq ab galbly 
of Yur Xe ihc: bobed ade snaty itede soleliay ike sotaee eked ae 
ttyix edt sor? ayant ts gatsoversrat gatdonorses ‘nofoidey Ite 
worn gatdonergqaene dt ‘reve ™ to. tt ont oved ‘Yada bas 

: “tana oad 


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ed ee Pe Re 


sine tauedi‘iak dibeeeeaneient nein. me toy 

| OH sott aclgbeetetat mx gatinsenges: af eletdey “ina 
a baltitas af how etoteta oat te gates edt abetie ,ttyls 
toot toe OF Giese eit Sad mevich as stan Re Seg de ect 
grote yitdoserqy wefokday rotom fla tade Ho Legare edt 
haw wart wid yodomr lee Fol ont mort wendy te gattoomnetat 
+ Keg eet tea yd a at ae 


ietawoo VY to hetaiaaco sereueatoun arveneatate nat - a idan s 
gitigtede bated say jocneg diged: Laxesoy yatgtedo genet ase 
ade jtoors ec Yo themagenen ede al teuhaco aotmer bie ttete 
fouhace mofaew Gas fy tiie sig eeo% oft ~hosya ertewsews. bees 
ond Gleky ot Gal 2in® we eonegilgen garter ede ibonge 09 as | 
a) cones i fgam money Saw tetitw ydirete edt gyn toedgke 4 
soaryitgss ,dhmeves baw yysw te. Seytt ait Ddoky ee yakitss — 
wore ebierd Toqony ihe suet ont ebivorq of galsteR mt 
onaebive ce hottindue Mitatalgret? ysotved Lanabe meqome 
oth F eee atiwes our te Wee for eet sents | 
ee ty ane side ais eon , | 


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By the court's instructions, the jury were told, in 
effeot, that under the provisions of the statutes of this 
state, (Gahill's I1lincis Statutes, chapter 95a, par. 34) 
all vehicles approaching interseoting highways from the 
right are entitled to the right of sey over those approach- 
ing from the left; and that sehen such a vehiele is anprosch- 
img an interecotion from the right, “within the meaning 

of the statute," its driver *had* the right ageune that 
vehicles appronching from the left would obey the iow ahd 
grant the right of wy. These instructions avowted in 
substance to a perenptory instruction to find the isenes 
for the plaintiff. ‘ounsel for the plaintiff, in suppert 
of these instructions, relied upomPartridge v. Erbstein, 
325 111. App, 209 and HoGarthy ¥. Fagen, 226 111, App. 300. 
Counsel for the defeniont aleo cites the Partridge case, 
We heve recently had ecoasion te consider this question 

of the law of the road, as applied to vehieles at interaeee 
tions under the provisions of the statute, and have stated that 
we are wnable ¢o agree with those onses, Heidle r 
lumber Go. v. 243 111, App. 89. 

We there said that the statute in question *does not mean 
thet the driver of a vehicle approwching an intersection, 
must yleld the right of say to one approaching the same 
intersection on his right, without reger’ to the distance 
that vehicle may be from the intersection when he reaches 





it or to the ratesof speed at which the tro vehicles are 
traveling, When the driver of a vehlole approaches an 
intersection end he sees another vehicle approsehing from the 
Tight, at a greater distance from the intersection and at a 
rate of speed suchthat, in the exercise of due care, he believes 


a go 


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etre to wodwoate oitt Se enObebvoiey wilt sobau Pam deat 
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ai betavors saokseuxtag! goad? Yow to tight ‘ame teers 

aaunel add Sekt of wohtoutdeas YRotqmenag 2.0f senatedee 


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sini te aofeiiav of hekicgs a6 yhnot att te val edt to 
todd hetata hosing ham TT. ang te snotsivorg ode, oben oma 
be al xe bilo? “saa ‘ono th ‘athe some °  Gileas eta ow 
Paik HS su th A kd et yl ade 
ws ee ey ae 00 ond adtog, | 
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“8 ‘aetosoroqa aiehior ‘ w aowied ait woke 
ry eGR vg slid hn ae a ve rabid 
eds work ‘gatdeserqan ‘ole Ldew sandtons aottosnxotat 
“ eis ath ual ‘¢ Be 
8 te hae noktvoenstat off port nonet tb * ty O te gthy 


‘poved fag at etm sud to wnbarees ode me Pad tose | heoge Ye ofa 






















Ba any EE NRE Y 








oie 


he will be scroce the interesotion before the vehicle 
approaching from the right reaches it, then, in our 
opinion, the latter oar ig not one ‘approaching from 
the right’ within the meaning of the statute, end se 

ag to require such driver te stop or yield the richt of 
way. Whether,in exercising his judgaent and going 
shead, the driver exercised due care, is ordinarily. « 
question for the jury to decide." We held thet euch 
was the situation in that ease, where the evidence 
showed that the collision oesurred when the car appreach- 
ing from the left had reached the area beyond the middle 
of the intersection, snd the one approaching from the 
Tight had not reeched the aiddie of the interseetion; 
and where the ear coming in from the left wae struck in 
the rear by the front part of the gar coming in from the 
Fight. 


In the Heidler Lumber Goxpany case we reviewed 
All the recent cesew in this State on this eubject, and 
& number in other states. The instructiona submitted to 
the jury by the trial court in the onse at bar were cone 
trary to what we believe the iaw is on thie subject, as we 
have stated it in the cace referred to. 


In the case at bar, as in the Heidler case, 
we believe that it say not be ssid, ae a matter ef law, 
that the statute applied and that the driver coming to 
the intersection from the left proceoded across at his 
peril. We are further of the sethhingftae evkdmee in the 
@Caseiat bar subsitted in behalf of the plaintiff, presents 
a different situation of fact then the one which was pree 


we 


Me pyot 


altdey edt oxoted noffocareta: od? geome od Ltty od 
wwe at Po ath erdienan Paya ode wont santos m “ 
most Baiienoraga! one fea ws tHe xoetgs ot man 
oe hee Mh hauled ode, Rid gatases 9 age aide te ngs att 
to tage ot bLoty %6. gor ve revteh sore orl 
yaton, ‘ie taecgbul, abd ‘patatorens sigs 








- owe «Pade ‘bled @ on “yebtoes of vist von ah 


_ pumablye st oreda nea tadit mk pyar tom 
~sososaqs 20 emt a node bertuove moietiion ont Rage phe 
ab im outs baoyad ate sade osoaan bad at0t ld mort gad 
Q ont wore't anidocoras 80 ‘ot one sme ltonetetnt watt ys § 








POA} 9 Fass ib vay iy et b AN Res 

yaarsocerosnt ot te fbb be ods bets eos ton bad ¢ Mf 

i ee ae Ae Bea eat Mis ar Ia cae 9 bt DS A Ae 

ae toutes noe ter ade wont at gainoe tao ode oredn hae 
re i Ce mS RR: oe ERS OR 

ost sont at entice x08 ott Ye ead tages ode Ww teen mr 
Hine. we Aha Bis a SRR A: Ea a 

ie hate Roa fe Si Nate 4 me Pe sy aS MY : wis RENT aie Ne ie 


i bewotvo ow etan ynagact) eds RUBE it mE Hid ooabiy: ae 


So ake genet dun adr mo eFee edt ab ween tesco ett fits 
ef ete Lede ane btoset ene ed? ‘nonatm salto a codman 
nde Area it foam, one wk ow eed lt et 
om me Mombiie etre ane ait wef ede wvatled oe tadu of yume 

oe bensotet samalened na en pasate @ 


bb ee toby 4 


~ agus. manag ont et oe 206 08 mam 080 ak 
nat Yo 2049 am & oa aor 4 " vem ‘aa Hh va 
at gedaoe heatind oa alt ban batfeqs bt vige 
80 myn 8 
end fevh baat 308 \qito . 














eee 6) alate 
BRN se 











= 
sented in the Heidler Lumber case, There we were of the 
opinion thet under the evidence submitted, the isaue involved 
wea one for the jury to determine; whereas in the cave at 
bar we believe the triel court should have treated the quese 
Sion/aa Geb a kaa, that ‘eantion was presented to the 
eourt when the defendant submitted his motion for a directed 
verdict at the close of the plaintiff's ease, and we are of 
the opinion that the trial court erred in denying thet 
motion, On the pimintiff's own evidence, the reapective 
speeds of these Vehicles were such thet in order for them 
to collide as they did and at the point in the intersection 
where the collision is shown to bave taken place, al though 
the collision occurred at night and the defendant's truck 
might have been hetter lighted, the evidence shows that 
there wos an are light at the near side of the intersection 
at the plaintiff's right, and if he bad observed the situse- 
tion presented shen he approached this intersection, even in 
@ gasual way, he would hove seen the large truck passing over 
the intersection in front of him; but he saype himself that he 
didn't even see the truck until he wae within six inches of 
it. It ia further clear from the plaintiff's evidence that 
the defendant must have been well into the intersection bee 
fore the pleintiff reavshed it, 

The trial court, in our opinion, should have held as 

& matter of lew that the statute did not avply to the situation 
presented and that the plaintiff was guilty ‘of contributory 


negligence. 
The judgment of the Supericr Court is, therefore, 


reversed with @ finding of fact. 
SUNGHENT BEVERSED WITH A FINDING OF FACT, 
FINDING OF Fact: 
We find as a fact that the plaintiff was guilty 


of contributory negligence, 
TAYLOR, P.J, AND O'CONNOR, Jy CONCURe 


«“~ : i 
edt to oxew ow oredT 49 xodmud welbinl ed? at betnee 
baw Lown eWeek od¢ betiindss somebhion ate tebe dads a0 kale: 
$% vem ode ak asorede yominxareh of Ywhed? teh ame gee 
~eowp oct Detaect ered bi vedn tence Iaked ee eveliogvem sed 
sonegi fgen Ape Malet to. i 

ead? OF hetmeseng acy aolteeep ¢axh owed 


batoarif # HOT abigoe old dettingue tunhasteh ont ece Powe 


te oe ov bas ,o2cm a tiitetala od? tw aeole ent oe folteaey i” 


fads Bat eiod at hoves deemed telte ode Fedd sete eo exe 

— avitbegner off jsoamblre neo a TMeetaly ont 8 meneem 
mods rot robo it bedi dove wnew waletder seed te eboves 
xottovetetn! od a2 Yulod wa te baw bih yodt ae abn iton ot 
dgiedt in yooaty Geet eval of awote gt adieli feo att enmir 
Hound ettauineted ode bas trys Ye Rewkwebo MOLAR Te omy 
tact win soWRDSTS eA \boiiyht seated inODd: oven eye : a 
soltmodtetat ott Yo whin xesw oat ga Phy Lf ome Me aw erode q 
suites ott Bevrende Bat ef 42 Baw Pigee ar ntigale te a ae 4 
ak weve ,m0iteseredal eid? i sty ones pa oat se he botuoussey more ‘ 
revo galenaq stipes egtel sdt aee0 over fe Lesorn ed ston fsueso B 
aa dade Rioomid aga aad had gadet to taost ak ges bre 
te garinat aie aide iw as ad Leet does oda hywg ave f° Hing AM 

# nat somab ive attitatote ost nox? x98to eaten at ot ett a 
al notvoomepdnd ode oom Liaw apos ovat tesa tnsomo ab ade a 
Fa tt berioses utatatg odd ome 

en bled ovad bloods stotmtqo suo ma sftur00 Seiee otf a al 
aoltantin ott of Ylege ter Lib Stutate ath Pens wate xottan s i 
wwertareace | te ‘wii veinidana ont Yad ban Wernbecty 


Ts ae eR wenn whe Aaa 
erg aay 


great 10" ores A tna ent sa = : 













yeaa 





Naot 


JAKES J, LOVOHLIN, 





Aprellee, 
APPEAL FROM SUPERIOR comet 
va. 
GF COOK COUNTY, 
ALBERT L. UVLERY and 
ALICE i... MULEEY, 
Appellants, 


fa. -f i. 
e . & FJ “2 NS 


BK, PRESIDING JYSTICS MeSURELY 
DELIVERS? THER OPINIO# OF THR COURT, 


Complainant filed a erediter's bili end wpen hearing 
wy the Chancellor head « decree ordering certain shares of etoak 
of the Alice Apartment Building Corporation to be sold te satisfy 
two Sudgments held by complainant agninot Albert 1 Bulkey, one 
for $309.18 and the other for $454 and ceste; sleo finding that 
. eertain Judament held by Nulkey as agsigner cenalnet Leughlin 
for 9979.3. was null and veld, ‘Defendants appeal, presenting 
twenty-one pointe for reversal. 
bs It is firat asserted {nat no replications have been 
Kia and therefote the anewers of Albert ald Alice Mulkey must 
be taken as true. The decrees recites Yoplications, and as we 
om before us only a praecipe record we wuat assume the correct- 
of the recitals of the deeree in this respect. 











; _ , it is anid that the Chancellor atruck out the evi- 

‘ en ? stouching the validity of the judoments held by eompleiaant 
ee a et Mulkey on the ground that they could not be attacked aol« 
teraliy, but ineconsiatently garaltted compiainent to attack the 
: a4 aity ef the eounter-Judanent held by Kulkey sa agaignee of the 
Bank of Ghicage against ‘ayy unas The reeord empiaina this. 
m latnant *e bil] asnerted the two Judgments agkinat Kulkey. 

' Tiled an amended answer, / ‘alleging that the netes upon whieh 


8 ‘Judements were obtained were ageommodation notes exeauted at 
BR: P | 
































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si ee 


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i ROR Rap SNR pea ig ka ie q 
epte 2 24, sertoc abadzeo galwbre owroeh # pore ; 
§ i Ste ee: RPM 2M 
viattas, at RAee. of of ao 120000 pelh lie vee 


oe Hei ah 


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Seder 








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" bes 9 eaxpines oy. 





_ patdaneert ave, naaonamec wo v fp, ca ‘saw 

" wae Oe Lan cerer sot etatog # 

vs ie jeagial hg LAGE ERR MREL I De Nea REE Pima 
ne rad, ag too iter on tant poroane sont af og Hharniee 


PR base 
obs bbe dreds Ye athe . 
i i Ne bs Sy Rest vit Det ae oe ; wy ee AR a h 
am ae Baa casio hte 8 Kat tog toet noxoee yt Ae ee 
Me ¥ ch) aide ten iB! pend His MAO a Rt REN. Fah ti, 


ai gant PARA, fe on | preaer clesexe s eine ay oto’ 
mat mt ACG " ss to rine 








fhe apne 


wi fants. <qnoe xe host staosinut joa 16 Ea 
: RA. CRIES MRR otf 


: Hake cradenate. of ag gon biuoe we fat beware, poh ma Qo ty 
a ee HR a iq Ph ae 


e Hon? it. ha eunirs, Hey te 















the request and for the benefit of Loughlin, fer which he, Kulkey, 
never received anything of value. Mulkey aleo filed hie erase-bill 
fin which he again asserted the invalidity of the netes upon whieb 
Loughlin held jJuiguents, and further alleced the rendition ef « 
Judement in favor of the Union Bank of Chicago against Loughlin 
for $973.31, which had been duly aseigned te him and yupen which 
execution had been issued and returned uneatiofied. Complainant 
@hewered, denying the allegations of Hulkey's erose-bill. The 
Pleadings thus submitted for the consideration of the Chaneeller 
the validity ef ali three of the judgments. 

Yoon the hearing scommleinant gave teatimony in detail 
@oncerning the execution and delivery of the notes by Wulkey, ree 
@ulting in the juiguentes unen ehich the oreditore' bili wae predie 
@ated. This evidence tended to establish their validity and te 
Regative the allegations of the defendants in this respeet. There+ 
‘upon eounsel for the defendants moved to atrike out #11 of compiain- 
ant's testimony except the documentary evidence shewing the two 
Judgments, execution aud return, The court indicated that this 
Would be done with the widerstanding that if the defendants intro- 
duced evidence attacking these Judgments, complainant's testimony 
would stand end he would be given an opportunity to reply in re- 
butter, Defendants then intreduced only the reeord of the judgment 
obtatnes by the Union Bonk against Loughlin and assigned to Mulkey, 
an rested, Therewon evidence was introdyoed im behalf of come 
Mainact, aS croes-defendant, attacking the validity of Mulkey's 








mt; defendant's objection te this wae over-ruled and he then 
duced evidence te sustain hte Judumert. 

The sesming: inconsisteney in the court's rulings was 
ht about by the defendant obtaining an improper ruling en his 
tion to exclude all of the evidence of the complainant touching 
; ts Judgments. In making this ruling the Ghonoeller indicated he 
 Woul Permit the defendant to intreduce evidence te meet complainontts 































youlwt ,ae dotedw sot al itguod ‘te 22teaed ae vet han deouper 
ffid=seose ab beLT om Sie pak Lr -oriav ke pokeirgae ihovienss. | 
dohdy cog Gavan ent to qeihitavat alt bottence shana ot ea i 
# te aoteitmerx od? fege Lie vesituyt baw seteivniginy biked b tidagyl 
abtitguost teakene’ wyeo ke Yo nok anda oA -Goebt at baba 
Se te weg bata aid of bemgteac vivh mood hed Me bide (ere . 
tonntslqnod boi %ettwnem Sewcvron baw beite? dood had aoltyoem 
ot? ,iitdavegns atystivil Yo eae btage tite Cue hlbyned ber wan 
xoLingassld we Yo aodtevehtndor ext rot hegeimduw mutt ents 
! - economy bart ot ‘te sors? tke 19 bo tet 
Liason at enonboned i) dienhe fonon gnitused ont noe Ks 
~or est ferlt vd Rotem atte i syrovk fot bas mol suoens oat 
-thote cil babs tanot thors ony se Lelw aout ‘tinsaabet eat ie! 
eo haw ee ib hey en He kLtat eo ad hebaet wonmt tee ena 
arte ey stonqeor | mbte td nonahas ten wien te onodeasetta sie 


ats tau betaothnt teyon at : “site t0 baie sontonne 7 


enomtsned a’ faniste Lope ,adoengburt oasis 1 pabineten * 
=O at leer o Pe ot reidhns ig blll beh od biwow ont had hast 
Ket dult od snmmiiien fate! ab hriguedt deatase soot aot y orth ee 
«moo ‘Is ‘Vihaded ak beowhortak # Hae sont tee heavens? 
we won halk to Uttb tier edt aabiontts {fecha tah ane o9’ hvll 
aes od ate bo Lirtwnere Fadl may 0 nolepetde oF taba a 
oni, a alatena of ronan tre i 


ake no nator noqorant ae aatatatdo 
aay aabiiowse taunite Lome aa ‘te sombtve ne cto ny 
| ‘ ad (Rois ie Peet 

oat potas shud el Loomena oats pepe ‘abet a 


“ ghtuanteLqmee Soom of sonehive oombersat of seated “ fico 8 fs 


id 





testimony, but the defeniant echese to reat on the ruling of the 
Court and introduced no evidence questioning the validity of the 
Judgments againet him, Al) the Jutemente heving been submitted 
te the Chaneellor to make an equitable adjustment thereof, the 
fefendants should not have asked the court te exclude the evin 
dence offered by complainant touching the same. aving obtained 
an erroneous ruling in this reepect, defendants cannet complain 
that the court permitted evidence touching the Judgment against 
Loughlin assigned to Muley. 

Defendants assert that all the evidence attacking the 
judgments was in the nature of a collateral atteck and should have 
deen disregarded by the court. We have examined the cases cited to 
Support thie, but none of thex is spplicable te the instant ef tua 
tion. It is the general rule that where a court of equity has 
Jurisdiction of the parties end the subjeet matter of the litiga- 
tion, it har authority for the purpose of administering equitable 


Pelief to adjedticate all the righte of the partles wate: are ine 


Yolved in the iftication, 


200 Tl. App. 71; Roman v. Sumphreyn, 220 Ill, App. 809, and eases 
there cited. It is wei eatablished that a court of equity hee 












_— to set aside a judgment at law upon proper showing. 








2% sie ki Md Lo Works, 913 211. Avp. 235; 
PRN 14. Ill. 672; Friedberg v. DePew, 200 T11. App. 
bad Simson v. Simpon, 273 Ill. 90, 
‘ there is much argument as to the finding of the court 
at the judgment obtained by the Union Bank of Chicazo against 
and assigned to Mulkey was void. The tranesctions between 
ona Loughlin giving rise te the nete upon whieh the Judgment 
aS entered are involved, snd it would serve me purpose to relate 
then here. It is sufficient to say that the evidence justified the 
ma that Mulkey obtained? said note from Loughlin by fraud and 


on ond without any consideration, and therefore the 























wat To galion s62 so d99% of sgode tanhas tab oat tod .. ycgmt, ° 
seit Yu UElhtiew add yatnolinene eonehtre om honuhotiah ham ert 

_ Rettiadue anad gatved atosmbat ot (Lh. thd teatens ademaptial 
ont adystennytanetan thy aidettene na..oiae..of, meth eeim a y 

he Od whe hane.. oh, Seaton oeld, benina | ‘ave Som pivots at 

bow iatde gatvad j one nate Battoug? tagnhe fqmoe ve, mer i 
ibe tenae.gone adnan am eb sooqaes. otdd at aablet eroanoyse im 

nonnane Same wigharl, writ Metopes panebive. Devt kenog, fares eat d 

ee Oe me a tee Tee soy appeal, of 2 dibkdiih 

cei elaine eoueh ive oute bho tadt Prone, Fina an eed ary tie vw 

PVA ives ham Soedin Loxetatser 0 to wanda ould ad naw etaomhi 

ot. bathe. Bones ant bemtmnxs ent, OF ROS, 98d yt bobrenerets 

ond bs taste nt ant ot oLdwodinus ot ott te anon dee, mht $9 oan 
Bak Cokes Te Taree: a anode sons, akan. Lornasy, vate ahat “ e! 

a eres oe. he wegtsm tontdue, eat Dane aoldaeg and he matte, 

 ohdnt hope FuLbUOne dead otha, “0, aRomrnd, aust ‘xo, et ivottua i fd 

<td, ote pdr wien wrt Ne, atviate. os, faeal hahee Na 7. 4 








tad sttupe. to, ious r sant, d benad ttnsnp Leow ab a atetie 9 
canine Teeomm mga Wal de fnoaghut a, sdinn ane ah Wilk Bn 


s8Ge, 0 GGA oA LE BLS... va 8 TAA. CP Sth dy 
AG ALE OR, Pageant ae, nie ve 
00 41h BO moms 


¥ 
as 
i 


e190 od Lo wakbal’t. ast, ol a4 Aanowy ss, foun od peat. domed 
Peakege cyaetdd Ye daa nodad ols Wh henlasdo, de ogg bas “a 
Koevted stoliosanent eff blow aaw yore’ of bong tens beim ad 
tanugheh wit voksy moms atom odd ot oaks ouke ta bLdgued baw yo 
tale at ooneang, wn rR oR bh Seom 8 fame » shavdoval 07a, berwsan 4 
add bellitert souehive off todas Nae ad paolo Lite ad oh, ten 
how hua ef abitawod mov? ofas dion bentesde, weaker tart, pi teal | 
add oretoreds da ,aetdenehsnneo can, deeds de bas : 





LA Tee 





judgment om the game, assigned te him, wae Gull and void. 

Tae decree properly fount that at the tise 6f the eere 
vice of summons Albert Eulkey was the ewner ef 248 shurse of stack 
ef the Alice Apartcent Building Cercoration an? that after the sere 
viee of sworeons he traneferrea eaid shares to Aliee i. Uolkey for 
the purpose of hindering and delaying hie crediter, the complainant, 
whe Was entitled to have the sane solé te antiefy the said jucenent 
with interest and cestes. The filing of the erediters' bill ereated 
@ dies on this steck ané the tranufer to Alice Lulkey wan eubjest te 
thie lien. Hing v. Goodwin, 130 111. 202. 

There was bo abuse of discretion om the part of the 
Chancellier im denying Kulkey's metion to csntinue the cause. 

it weuld widely extend thie epiaion to atteapt te 
Betice adequately aii the pointes made sy the defendants in their 
brief. Ye nuve considered then, but ars of the evinion thet the 
deere: 4cen substantial Justice between the parties ani that no 
Parasount reason fer teversal appears, The deeree wae in sureuance 
of the issues sreeented by the pleadings, and it is affirmed, 

APFIREED. 


Batevett and Jeknaten, J7., conour. 


% 


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nase oat Yo webs edt te aasie paws eitegere seteeh oss 
doote te sotaise aaa we ‘Benes 02% Sew YRciak SredlA suormme teuee 
-se8 ‘ests ‘aette Saat baw aot sanonre® “Sathiled taomttegh cy - 
tet xetteit wt eontA od ae xasle blew boris tenet? oe, BQ cry 
ston ade tones ‘et ‘etet thers ake gakyaied bap patretaid | te oom, 8 
gasmabest, 8 tes eg vielvae ot SLor face ons aved et pak Fane ., eae 
betaete fit *arottbess wus to gait’ oat _stteoe pane Peat. 
ot ey aban new —_—, ne ed woleaets aud bate avete saat ae a 


“ROE £41 08s oe a oht os 
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THY GL araabae'ts axe wf sham atatoy ous ile yes ear sia 
‘BAP fac) Aolabge oct te ets ‘tad asso ‘besshieaes oved os 2 
GR testi bas doltwog adi movies soltent, tattantadue ch 
eeaivatie al Sav netsh oA? eresene Lastover tot aonsex fh 


peor fits i si be ‘segnaneeta wat Boek basaenerg eevee — 


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segs 2 jets einen pe eels S.-i gees Re awa 4 | Pe haved # e 
at Se eae he. Besieh ‘ Co ae aS SE 
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a. 


Not tro aad per a hee 























Sutgnent on the sane, apeioned tc him, was mull and void. 

the deeree properiy Tound that at the time of the eer. 
vice of summons Albert Mulkey was the owner of 249 shares of steek 
of the Alice Apartment Bullding Corperation and that after the sere 
vice of suamone he transferred sald shares to Aliee L,. Bulkey for 
the purpose of hindering and delaying bie erediter, the complainant, 
whe war entitled to have the seme 801d to satiefy the sald Judgment 
with interast and costs, \ The filing of the creditors’ bill ereated a 

Aden on this steck and the tranefer te Alice Mulkey was subjeet to 
this lien, King v. Goodwin, 430 Ti, lee. 

, There war ne abyea of 4iseretion om the vart ef the 
Chancellor in denying Bulkey'te motion to continue the cauee. The 
parties whose teatimeny he wished te take were in Chisage, and 1t 
was Mot explained why he di4 not subpoena thes in oreper tine. 

) it would unduly extent thie oplaten ta atteapt to 
feties adequately 211 the points nacre by the AeYendante in their 
drier. We have considered then, but are of the opinien that the 
decree éeee substantial justice vetweer the parties an4 thet no 
| peranount reason for revareal appears. The decrea wae in pursuance 






of the issues presented by the vismtingh and it is affirmed. 
: ) AFFLIWED, 


nett and Johnsten, TI. GoOnGurY . 





eA. Ae" EGE ee Te A 















shioy bia Ilgt saw gure od Pappions man wt ao @ x ‘ 

ston ond Xe ome oft te tad howo't ylteqerg oeaven ne 
Seeds to suxede GR ‘te weary exe wow pwd Lull frei enone} ‘e+ " 
seas eit x08 te tuile bax noLeweerre9 yaLCive tapadnoge wetinwat ' 
tet woutell .4 eblLA of oewedte bdos vorurnanet on enone “te 6 
,ttmitkaLynde eAs 4 sedibote ot nace fob hits ae obtekst te woven’ +d 
tiemghul bine est “'tetooe or bien ‘oame iid ingle pt Bods trie wae 6 
# Retaexe (Lid Yates bhevre one Yo genni: oat / “aieeo fina tatters a8 
’ gt toot due adw “edie walle of ‘eehintt at four gual aa Hs of 


its Yo Fawy wit? to notterba th "to pr “te ‘ie ade | 
edt eames sit ire OF Molten beaeus wires NN 


(ed tqusdeu dt) seo terge wits hptte ers bfirow qt” 
thous ai Picchnhoadensd ote Haylie oboe ais ly odd Lhe YleCinst 


ow tacts a ‘eetisay ett unlene oottant, enmmeminiad a 

sonevarse ak wew setded gat J et88 998 foarevas 26% Aoeaes tm 

ohoaxittea ak #2 bea stontnante 8 ol? bal sh ei enneah : 
CSET V4 ie ane isha et Teas bi i 


i ee 





— * 31469 


THR semmry ants RAILROAD COMPARY , 
@ Corporation, i 


nee eee ee 


Appellant, APPEAL PROM CINCDIT Coun? 
¥8. OF COOK COUNTY. 
ROBERTS AND SCHAEFER COMPANY, 
ration ! 
& Corpo * Appellee. | 


“>, F 7 R o> ‘O.) ! 
> A 7, / ge ee 

BP fA /4 iy a. | & my J 
» hain Lo. 4 oY 


ie Sel Se gv GD Yr YF SE Xe 


WR, PRESIDING JUSTICE MeSURELY 
DELIVERED THE OPINION OF THR CouRT, 


hi Plaintiff filed ite declaration in tresvass en the 
» Slieginy that threugh the negligence of the fefendant it had 
















damaged in the sum of $35,000, Defendant filed a general de- ! 
fer, which was sustained by the trial court, and plaintirr electing 
Stand by ite declaration, Judgment against at Was entered, from 

q nich it appeala, 

The deslaration iis ad tiat defendant company was a 
ration engaged in the business of structural engineera and 
tractors, with offiees at Chigago, ILlineda, and that as such, 
for te February 7, 1924, 1t constructed, equipped and completed 
a ary sand hopper for the vlaintirf at Conemaugh, Pennsylvania, for.” 
u in sanding ite locomotives, and requested the plaintiff te sand 
Locomotives with said sending plant before sata construction 
‘beer accepted by the Plaintiff; that in sanding locomotives at 
e @ plant a spout attachea to the plant is lowered to position ever 


tive sand dome ana thereupon a repe ia pulled which opens the 


Sand valve gate and ary sand pours inte the sand dome from above 


"gravity; that when the engine is sulficiently sanded saia rope is 


and a weight designated 8° @ counterweight attached to ao 
; eight arm cleses the Valve gate ond shuts ofr the flew of 
z te the locomotive dome below; that the counterweight is essen 
te ana & heceseary part of the mechanian in discharging 





ary 


a into io trac domes and in shutting off the flew or sand when 






































Be cf «Wile ts" AOTELA sad 
tate tavoata. wom AMT or ae ih minenne 
ORR, Bed Te foe ‘aS aie Sie: 
‘ “unions Ie ei 


-oottoagh ” 
a stud oO do eis sok CNG ES ai K ahs 


at 


¥ Us Pa ay ¢ CRS NR 


hg HOR to soxarsa am 


‘@ edd we aadqaoeh at aolverpions aff hese hhh, : 
i beat #2 fashion ’teh edt to someyiiged wait Aansonals 9 ey dintae tte. «A 
Bic Lets aey si becky dna haw te POE BEF Se, ater ard ak. 
; 200 fo ME Bo cobe Le Pepa’ 9 PxiloH feiss cial Labial weet beatagnon ae suse a 


rest 


‘ (Wa ataseee 
s iin en. nebo ab, tase hoye Ln spideretow ont 
hae seheninne Lenvdoutite Ye seenlsud ‘ead at begase vo it 
re ea, gadd baw satan dest ‘speed ts ase vio aol, 
| _ hedatgees hav Aecatups yhetavagense ot Leak 0 eta 
et ehaaw fyannet «urea a0 ta vittate te ‘pnd seh ch gion nia 
hime of Tikinkale wed hetnhyan Baws nevis omanel atk akan | 
 peldovedades blew sxoted dsate gakhage bhan stkw nevite 
fe aovigomeget yalhnes ai sat yVideatel¢ ons yd hedqnogs | 3 
“ove quitiees: ot Betevel al. tas ig’ sel 08. hetiong te teege muta 
ai? anoqe dokdy botivg st oqet 2 Koquetedd ban saoh bane avito 
erode mort émob base oct otal erwoed Daun, 4th haw adag. evley ea 
ak ngox bias dobage yienstalvive a2 enka em) a9 sie be syd renty 
® of busootia teyhewzntaves a %8. badacyteon, delghow se} haw | z ® 
Ye welt emt Nie etude jam ocag orkey od aneoty.| as, + tg 





the dome is filled; that the counterweight is sttached to a counter- 
weight arm, weighe 3° pouw:de and te suspended 94 feet above the 
ground level; that the counterweight rises ond falle, tilting up 

and down with wake counterweight arm when the sanding plant is in 
height above the ground is e@ dangerous fixture; that ordinary 

eare for the safety of persone vightfWlly on the ground below tharged 
the Roberts and Schaefer Compeny with a duty to securely attach 

the same to said arm se that when tilted downward the counterweight 
would not slip down ond off of the end of ssid arm and fall upon apy 
person or persens who might be rightfully passing along underneath; 
that said company 4i4 not regard ite duty in that behalf, but se 
@Carelessly and negligently and insecurely attached sald counterweight 


te said counterweight arm thst said weight slipped down and off of 


the en‘ of said arm and struek James Petrarea, who was then end there 


a Lowome tive fireman in the employ of pleintiff, while in the exer- 


 @iee of ordinary eare and caution, and whe waa rightfully pascdnag 
‘along underneath said counterweight, on Vebvruary 7, 1924, snd in» 


filoted a depressed fracture of his ekwll whieh exterded inte the 
Skull vault and covered the frontal area; that the suid Petrarca 
Was seriously injured, and has remained incapacitated te the preednt 
time; that said Petrarca instituted a suit agsinet fhe Pennsylvania 
Railroad Company te recover damages for the injuries so inflicted 


“wpon him; that The Pennsylvania Railread Company requested the 
Roberte and Schaefer Company to ssvume the defense of said suit but 


it refused to de so, whereupon The Pennsylvania Railroad Company 
mettied with Petrarca for the damage inflicted upon him and sued 
the Roberts and Schaefer Company to recover the damage which it 








suffered in the premises. 
The declaration contained six counte, setting up the 
ing facts in 44fferent forma. 
“While it is the universal rule that the pleading of a 

























iy Y ; Or 4 bah 
| metawon » od botootte of toy howretawoo ett sade shotetm ar oaeh 


_ ee mane Ceo ultat By toes eaake tify Loweotuuay. eet tadta bes J 7% 
f ah ws tants yakbone ot nocty orem tly kowee saree hiew gelw. sve . 
a ites tity bow ats te soaann uit Paty lowiedmes mat. tans am . 
E | eronthie dass peusde ey ‘eyoregiah woah bowery olf ovede 
;  Regtads woiad bawet, att og qi Late yh: exonrey te yteten att «er ® 

“ donedn ylotsoos of tis 8 na he Xeumaqued te rendoR hen eftedon 
tigtewretavos oad btawnvod beeiis se the vast 8 ara bho of anae 





Cee Avge tat hem wie bina te bao one ‘te Xto baw awk ase rer of ah | 
{Mtasrohas yrote yaheasy Yue teste od galy tor wif Ginodnng 0 « 
: on tud tiered sadt ak gia oF bunyes don SEM agen ‘ite 

eae bine Borioatia ylstueeaal saw ciapytigin Baw : 

| a to ‘The betes sero heggate Jauiow bine pasts oa beget: 

a baw meal ae asin  sonsoS soot fowrte fan ‘omen | tno 









ip 1c pit eat mane ies es ake hate oe aconntined es im 
med bra. KOS S xtaarsde® Bo F sasumsonpnes haem pine ‘een aly 


inn, pide: ag 1s dstdapdilias heniawes aac bie i 
ainayivecoe% off ¢enioge tive a, dodudhtant. aouwster bas bast: 
hetetiat on eoiutms ocd rot apgenns wevond'r ob Yaa , 
edt bodeoupen yanquoad dagrtiah a heavy eran owe saa ; : 

ted, tie blae ke etwated ade ommeni GF YnmgeDd we TeMitED ban a 
Graqued Meet hak «haw rdgean aalt ehiabecsaael ‘jon eb, phases : 
| bene bie ata meee hoes total bpeneh ond 1o% aote eeesoe dake 
aD ch hater oni wee: aieunes' ad yal tod ‘tite ten io “baw as 
PE ayy | atta ute «ha sratesaes ne nod daxate 


sa RU RL RN 







! ey 
aT) gatbense ome Yads 6 toe dastovtow ‘ae we th re 


ity. ie A 


party ie te be construed most strongly againet him, this rule is 
applicable enly where the allegations ore ambiguous, equivocal, con- 
tradictory or repugnant. it does not mean that the allegations must 
be hypereritically construed or that dieterted or wiveual meanings 
are to be given te language waieh ie weambiguous, the meaning of 
which would be readily understood by any reasonably intelligent 
person reading the same. 

, Defendant asserts ‘that the d@¢laration dees not state 
that there vae « contract between plaintiff and defendant, but 
Berely alleses that defendant did some of the work or furnished the 
materi al fer the construction ef the sand hepoer; that this is en- 
| tirery seneistent with the hypothesia that tt was dene wider the 
supervision and control of the plaintiff or saceerding to specifienae 
“tens supplied by the plaintify, under whieh clrewmetences the de- 

) fondant would net be responsible. This argwacnt igneres the plain 

| Sverments of the declaration that defendant constructed, equipped and 
; @onpleted the send hopper in question and requested the plaintiff te 
| sand Ate lecometives at this plant before the plaintiff had accepted 
“the seme. The sliegstion that the plant was to be teated by the 
‘plaintirr before it accepted the came, ia inconsistent with the 
“hypothesic that the work was done undex the supervision and control 
| of Plaintiff or according to specifications furnished by it. It is 
‘Peanonabee preswption that testing the plant before plaintiff 










ted it was to demonstrate ite sufficiency in operation as con~ 

) o4 and equipped by defendant, ehich test would not be necessary 
} if Plaintiff was responsible in any way for its censtructian. 

, Tt is next said that the declaration states that the 
mh t wae to be constructed at Conemaugh, Pennaylvania, but fails 


or the property of the plaintiff. It ‘ie immaterial whether or 
* the sander was constructed on the plaintiff's right of way. 






















WR ofyt elit ymdet Ponta ge vlgaorgve @eem bowstetos ed pram i 
} i earrir) ednsov dips wsrorpidas ats saeliagetic ane wrisde eine wah a , 
F fax saglfegetin ead sett mem goa eek #7 . tie agerges ‘“o4 " 
ogalnaem Sewiway te bestotakh dud vo Bewrsdaca seis iberiilai re a 
te griavew ead javewyldmomy et dobiw egenimed v9 ‘to? by “od OF : 
—— * gononeeguand yaw Pre Dootwrvebay ‘¢Libawt of btnow h 
| , -Gihee ont bape ie 
odesa fon wtoh aoiatatoadh etd jal? afters stint an ret en 
toe ,Heabie rsh bad Vitdalete nbawsed sebsthbe a taw oxen # 
“ed? Beta doowt 20 How oiit te show Sth taabaston sats aege tin Ethel 
“Lae eb shat Jods }eeoqed Baw on to nottoustumes aif 40% ral a 
“GH? Sonor wit mw FE douth adaentoqem wit ab te trode tamed! hid 
iby bs Aide oF Qakireosa 24 Trivaisiq sits Ye tordned hike to te By r 
woh watt seotegesmotte ne dde Yoho .ttidaldte ate eet’ soho a 
wialy o8¢ evtonge Ratawete CLT  eftiansqeox 6@ toa bigow | od 
bua heqgtups ,botoette aes Siero Seed fad? Boltetalesh Pre? rr 
oF Pebenke te way hatvesypet bas aolddouy ak ito etyeat Bete aly’ ba ‘ 
betisons hon Tivataty edt exsted Faaly ette se wevdtonswent 
emt ys Botord ed OF Baw Yonia wad tht weldage ren” wat ®, a4 
edt Metw taetetanooad wl’ jomie sad betqoonl 9k panded: 
‘forsaes bow eo lotrrequa edd tohaw sa0b aw axel ost bod sree 
oh at 92 yd boda trast atoteas ftlooqe oo Sakbreses to THR 
Seba ete te whotted there ont gabteod toi? mobrqarasxg eedandend’ 
«nao @@ soldaregs wt you to Pitwe et) ebartemouod oF wae a8 be * | 
cthhebewin Oo toa bivew tued Kolitw jtaahaetel <a heyebinn ti 
“lkek#earrtemoo af? cot yew Yan at ervtenentiae anv 7 
bid sastt aotute wolvasninsh sit odd bien riot br! i me ‘i 
afiet dvd jetuevtyannd4 | dynannaod ta botontteneo ‘owt oF wa i 
‘to sigs ect 02 eonote'tes Ad kw besaoot at Kquaneenod wiiontw 7 
ke weHindw Coden tom o2' ox” “rt voatoly ot te eoaore pra a 


vow Ro tight artektatate oxi ine. sosuriteaoe saw cohen 


ts i 4 drag? ee ae Mi i i ae 





re) Lae 





The declaration alleges it was constructed at Conemaugh, Pennsylva- 
nia, for the plaintiff. We to net see how the exact location ef 
the plant is material. 

It is alae urged that there is no allegation that the 
ineufficient fastening ef the counterweight to the counterweight orm 
‘was not within the knowledge of the plaintiff, and that there are 
no fete wien negative the conclusion that plointiff and defendant 
were in pari deligts. We held to the contrary, The various counts 
of the declaration aver that the counterweight wae twenty-four feet 
above the ground, attached to an arm extending outward from the 
Sander, and in operation the counterweight rese and fell with the 
Gounterweight arm, and that having completed the work the defendant 
Fequesied the plaintiff to use the plant for the purpose of testing 
its operation, and that while complying with this request, plain- 
tiff's employee, Petrarea, was passing sleng said plant when the 
Counterweight slipped down and off the eounterwelght arm and etruck 
him; that the counterweight was not securely attached to sald arm 
an4 that by reagon thereof 1t slipped from the arm, striking 
| Petrarea; that ordinary care for the safety of those on the ground 
“Bevel verow the sander made it obligatory upon the defendant te 
Securely attach said counterweight to said arm ¢o that when said arm 
Was tilted downward the counterweight would net slip down and off 
Said arm and fail upon any persen or persons below, and that defend- 
ant aid mot regard ite duty in this behalf but on the contrary eare- 
lessiy, negligently and insecurely attached the counterweight to the 
Counterweight arm so that it slipped down and off and struck Petrarea, 
. It is also said that the allegation that Petrarea was 
at the time engaged in interstate commerce ie a legal conclusion. 
| Veually, whether or not parties are engaged in interstate commerce 
4 pa question of fact, and it is sufficient to allege this as it was 
a @ged in the declaration, 





ral) 






















agviginnet ,dyvaomagd da hesomxéanoo naw a noyetis mottexas foo, 
te Holianal soaxe oad werd ne fon ob nv _sTibtatete Mt, ae? ® 


om 


’ _iabrotam, wil ‘ 


ea} Sadd wivisietie® om a eteds sesit eae, ont, ab at ope “en ll 


mcm defy owned row ad of $y towresavo0 ala to ‘gatnesaat teint “cH 
etn oxedd Shit hoe , Vihealele at “hs oghe twecrat ants atts tw on | 
sonbro'teh Khe Viddutety tests toler ie nos ould ovitopen Mekae Bin ; 
a¥micn ewobwy ofT yaks ace “oad of bLod ov seialton rm mg | 


test Wwe't-~) oe es eae ‘Ststdvsédiaies ‘ont taaa wee | so LeateLae 


Shah tax en 





‘oy wett btawiwo yxihusine wee ie oF botonste Dawory, oat 
eae ait tw itet bea oot si towxstasros outs aottaxeqa at bam, : 
dnabne tod eis Liew ons bese kqmos gakvad tant ba ad Hotewsesng 
gnttaed ‘te on oqttue ant rot die Le oat ony of ‘Taatass, ot 4 

ontaky eeeupet 2 ke adie pate Lquoe Ltaw tastt bare matters 
ptt Aone — stone baw | gate ontanog eae  gousrdet seer at ” 


oe ‘gaahan'toh ‘ould aoc whodep lide $f oben ohana a we 


ea ray wie 


te hiae gate dee? of ‘wun ‘bie og “taytowsesiuree bias dont 
‘ty bew teres tte dom b Leow iidghowres awoo oui waa 
ohee'teh dari ‘foams * waked saoeteg te sont guns “sows 


* ae $¥y ase ee ae eam 

ott LAD Ytertnow ‘Be me tue ‘tkaiind aids wh wah 8 ad btagot tou bd 
BG OLS RE As 

ous wd tity tewrod ards old borina soa (torwopeat brim ‘eee 


 aeterte% doutse Stas Vo bine awed pongtte th gost * meal 
nee do ternt et sans Hohdogo iso vit tame Biaw oats at bhaa 
te tintonos Laget « ef eotsnmao Votmsenarat at Boxe “an = 
spteanon etatereait ab begegae se setotag 3 fon 30 3 nee 
naw HE da whit wantin ° ti bitte s a 111 haf te 
robatdy aol ke! ema 


saoktataieed ont 




















The lest eriticiem of the declaration is that there 
are no facts alleged therein shoving that Petrarea hed o cause ef 
action against the plaintiff and ne allegations of facta Justifying 
the assumption of liability on tie part of the plaintiff or any 
Qllegation that the payment te Petrarea Was a reasonable amount. 
The law charged the plaintiff with the duty te furnish its one 
Ployees a safe place in which to work, Under the facts averred 
im the declaration Petrarea was not fursisned a safe place in which 
to work and therefore his expleyer, the plaintiff, wae liable for 
damages which he sustaine’ in the premiges, 

The fact that plaintiff might heave paid Petrarea more 
than 2 reasonable aneunt in settierent of hie claim 4oos net make 
the 4eclaration open te demurrer, ‘The reasonablenese of the 
@mount ic subject to proof and plaintiff must eetablish by evidence 
the amount of damages it base eustained, 

It has been held that ene independent contractor may 


Recover for the neglizensce of another indepyendent contractor, in 





Pennsylvania Steel Co, v. #lmore & Hamilton Contracting Go,, 178 
Ped. Rep. 176. It would follow that plaintiff could recover dav 
ages which it has been compelled to pay to an employee because of 
the negligence of « third party. Defendant's counsel seem to 
@oncede thie principle in their brie! by eaying: “where a person 
has deen compelled to pay dawages on account of the negligence of 
a third party, the person so paying damages, when he is without 
fault or negligence on his part and the injury is selely the re- 
Bult of the neoglicence of the third party, may recover such dame 
Ages from the third party." Plaintiff by ite feclaration at- 
emptea to state n ense under this principle, and we are of the 







on that the declaration contains oi] the allegations neces~ 


to make such a Gase, and the demurrer should have bees 











“exes fast at mo2tans toss ony Ye dint de atx bier odin es Fob: % 
to eeuas a bad aeraxso% jad? yattvoile mtortesdd beye lin ‘ade’ el wah 
wivrisan agor? Xo anottepetia on baa Yehemtaty wit tantegs aottas 
bd a9 bala adi ‘to uted ines Be soa %e ison baa 





‘a wads sin decets' od ytwh odd adie egret? sa eros 

| herteva coe? auis toball anor ot sandy mi snetq wtad 2  senyote 

so has at soe.f¢ ote a boca Lorca? oom ear astartet otters soe od al 
‘te? oddars an +Titeatele ents to yolqus eke ‘etetetedd ‘Baa 2 heb es 


808 hmong ent at bumladens saleicanel ‘eoydmsil 
, mt me 


oxen aorartet bing eras ‘taty den Tidatele dartt ‘dont ‘ett 
extant fou aot mba fa ald te nome ates at ‘towenm bidnnoenor “9 anita 
a eet 20 ‘geeunfilesosaex edt ,tertueeh of owe ‘gatioxetook eat 
| sonsbive w da hitnsno shee beacon dle howe ‘toong ot tooteee G2 Pitot 
3 ‘\oeitinduwe ead’ $2 Gogamon to demome das 

= xodoatd aoe a8 a0. qobad eno saad Siee whes bak st (SOPs 
at .Taiverinee ennbonnenak tort aie he lpumbeiiniieni loi inhi 





ane T7008% bio ‘vibeatace ‘ged? wollet bieee ne ee pre 
™» envaned eayosene as of vaq of be tksqmed ngad wbel $2 tie a6 
—9@ 998 feaauoo eo! gushae tec “gbted Dilkd @ To sameghegee 6 
AOeteg B “tate rantyan ve teiad shed ab efatenitg e hit ebvomoa 
to sonny tiyee wilt te $nuoooa mo aoganab al of bokteanen save me 
duest iv et oat nate , eogomab aniyeg on nonaeg od Ve : ‘ 
ot ond efortan of vtwtad ante hee. ter Hy ite "aut hay gis 
nad soem savooet yom “temeg phar ont ‘te ‘pane bt a eur We te 

| “te mol tera oat aah Oe Witate ss “ sean babi | ant sest 032 
itt to ete ow enw yekatoning | whey ‘wehee6 | ra bdbte ‘al: a ex i 
~nonsa naptteyesio eat tis su indnon settarn A sii fant if tte 


t age) hed py men ee » 
need $vEK Siukin, serene. oan hem Sp | 
ROT Tm rac Yh on eat pe ae 















Y 





Yor the reasons above indicated, the Judgment of the - 
‘Girouit court is reversed and the cause remanded for further pro 


; it, a Diesents, 
ston, J,, Goncure, 


ss _ 


hy “ak w mph” He 
* eis? wate #9 i iM we 
ad ey ah) Sie 
RM, a hie 
Ree ds dg i Re 
wie scl 


VERON a ar ae) 
if 


eo Lia iueeiah 


ny 4 ea ee 
ie Heute 6 8 thi er oe Aaa o spi ng } : 
in hha” Yh teed ee se 


MPR T Ri eon ‘iy ee 


ena wadowe babe a bets ED” 8 cpm" Se SON was yeah we 
RUD WCE A in Har iae ly 78 ; ial “ ee 


Yeah pide i p a 
A nite ase hy vs aan iat sheath cam 


8 the ins “htheoe een T a haul 


sei " Ki 
oe # “ot Rie cow 


Its aclu ulsgsch 
ye oe i pee 


SRS tga PSH a MAS Be aN a 
SN ROR CRO TCR ek 


shea fei ae, Oat we seh “ 
oe * ni Pit abe ge een * Nf 
ee ase a Sts 


mipeet Age sattoue ble ee: bth 


Gh r x 
A Ch 


ana ‘wetted » hoes, seta 








“B78 = sisl0 


“pRUCE GODSRAW ) 
Appelies, } 
fi APPEAL FROM MUNIOTPAL cour? 
Ff VR. 
4. OF GHICAGO, 
} 1G SCHINDLER, 


Appellant. 


BH. PRESIDING JUSTICH KeSUn ALY 
DELIVERED THE OPINION OF THE COURT, 















Plaintiff brought euilt, claiming » comsissien on the 

@ of a theater building belonving to defendant end upon trial 
tad a verdict for $2500, upon which judgment was entered and from 
" eh defendant appeals. 
By his statement of cleim plaintiff asserted that he 
* ad avored te eecure a purchaser fer defendant's theater; that de- 
“Pendant specifically prémiaed to pay plaintiff ¢2500 if a vrespes- 
Hive purchaser seoured by plaintiff would purchase the theater; ond 
hat on April 10, 1924, the theater was sold to said purchaser. 
'e enfent'’s affidavit of defense 4eried the employment of plaintiff 

w that he expented any time or efsorte in endeavoring to secure a 
pu er; deried that defendant at any time promised to pay plaine 
any sum of money; and denied that any purchaser at any time 
a by plaintiff purchased defendant's theater. 

There was a direet conflict in the testimony of the 
es. Plaintiff testified in considerable detail as te alleged 
Aversations and promises by defendant concerning the proposed 
. e of the theater to a kr. Hirschberg; that he worked with 
rs almost a year at various times after the defendant told 
m to go shead ond get a pureheser, Hirschberg was dead at the 
ne of the trial so that the statements of plaintiff in this 


t are neither supported nor contradicted, This story is 


r ‘erable in spots and not entirely convincing. Defendant 








py i 


. 

Oahu sil | eatveg gies 

gq PROD ARTIOL ROM: MORE HAMM fe Sei ees Pe van nae 
6 TO MO ii oe ROLL yee Bee 


is _ RE. 




















4 Cr a oT, A #4 
yes Cpe Rak ‘ MM = whe | | 
“yamsraem woTeayt oumeresine - “afi me 
FOO MRE WO WOLKE AUNT AMAA La 


ont a0 eokua Lumoo Fe galmtote chlies bigots miusatest ‘ Lan 

lated sagar ene sanbae tes ot pakynoled gakhiiod notaou? a we ous 

aided bas heusdoe aaw dito arg b wt, ain bales soqe. 0088§ xot sotbiey a ei 

-9Laeqge taabse tod “sok 

of taut bastwaRs wilintata nial Te tueetate eit yo 

| “oh Pastd ptadasns a! tanhae tas to sealer © eles oo 

Ke aa sopcaary a hd Qoges YeRtale ky wae of doa Lmeney. Thine Hiteegs | 

| Frond puataedt ent sansiomeg Sinow Thitmts le wa becuse yeantenoe 4 

«tesesouwe bing of Aiea nae wateens oft MOL Of Tinga - 

rigtntate to tame Lame eft ea Rave h fame Teh to thvablitta at ds 

@ exgoen of gattovnshas wt airc't'te to emtt yaa bebuaqne sul tat 

wd te weg. ot hea tnotg emis ye ‘oe teehee teh aah belash se " 

mukt ear ta Xomaconng Yrs dans be kaw bre pyecom ‘to ase ye" 

stwdaods wt tawbos%od boeostoxug wibtatade w 

asd ‘te wos fons orld wk tot tines Toonth a saw exec? cr 
Sagolio oF ms S isten Sidareh tactoo at bert ieee Vedas , 
beneeoxe odd gakvteodee sashaeleb “ aon haory boa amelis 

ay tw dod cow oe. taste patedieatel tw of wedaode oat to. 

Bhos teabasteh, ett tedla ments marten bi ey, * oe Z 

od? fm bash gow Biodome ,tovastorcse “ fox tien id wed : 

eb at Tiltatete Yo etsemmtorn wih sant ‘ou tebe on 26 om 

ob viede aidt =. hevethexenoe er bed tomene xostytow 


Inuhue'ted cautomivacs ylexlta soa hae atoqe ak 4 





= 


~ 


liar 


2 


eategerically fenied that he ever made any promises te plaintifr, 
‘whe was employed in defendant's theater, and testified that noth« 
ing was said as to any claim for eammiasions wntil after the theater 
was sold; that he had known Hirsehberg for about eight years and 
had had a number of conversations with him eomueneing in 1920, 
touching the sel¢ of the theater, The evidence produced a elose 
question on the facta, 


Whether or not a broker ie the proauring eause of a 





















@ is, ordinarily, a question of fast to be determined by the 
wry, but in order that thie may be deterwined fairly all the 

. petent and relevent evidence teuehing this fuet must be eon- 

{ ' ered. The trial court refused to sliow defendant to prove the 

. eet matter of various negotiations between Kim and virechberg, 
ai4 not perait ire, Lewy, an employee of defendant, te teetify 

: " te conversations she had with Hirechberg, all of which would have 
to support defendant's assertion that he Aimeself was the sele 
. ,% uring cause and not plaintiff. The court seemed to be of the 

) pt 40n that such conversations, being out ef the hearing of plain- 
» Tere inadmissible. 

4 The exclusion of this teatinony wan reversible errer, 

’ only way the defendant could present his defense vas to show 
negotiations, Defendant's and Mrs, Lowy's testimony in this 
Wae clearly relevant to the feaue involved and should have 
admitted, Amongnthe cases supporting our view are Torte yv. 

19° Tl, App. 462; Loving v. Kane, 140 TLl, App. 614; Saith 
ma Galt Go., (Mo. App.) 177 3. ¥, 1057; Keith vy. Peart (¥ash,) 
| Pao. 928; Chets v, Maney, (Tex.) 146 5, ¥. 352; Lube v. Zordtren 
pee S. ©. 667; Brumfield v. Pottior & Stymus Mie. Co., 23 

_S 1025; » (Cele. i 1 Pas, 696; White 
elimyer, 357 111. App. 435. 


, For the reason: above indicated, the judgment is reversed ana 
oo remanded, REVERSED ARD ARMANDED, 
and Johneten, JJ,, concur. 


> 

























in dW pit i 
Ce LE es 


vubate ta nf asalmoty yun whem tove od daslt Solund “eh tad Rady 

aii¥on tadd BeLtidned hie ste eaent & ‘ ¢ashue tes wa beyoLeuae, new e 
aotand? ot cede Livan eaotestnmns vo mate nn of va bhaw sew a 
on on tend phtoe s 
OPEL a2 Yodo nnoman seit iii ivw snoltentovnen ‘to tedmua « had § 





bas wtoey Figte toda tot greddoeclit erweriat bh 


ovole # beoubwre seupdive aft «totoods oft Lo olen ont 
: intoe’t ox? ne motteom 
# to eaume gobo eats at tecoud a ton te homme 

v ‘eds «d ‘honionatah od ot “ost +o molsnoue # edi tentire ot ond 
gtd he ytedet haniurmrote® od vem ‘sil todd vobe0 at” ted ch 
" nin ‘oe ‘doum ‘toat shad siliudied ‘eoneh ee ‘tnaes foe" ‘hae Vaods 
aut avote oF saahanteb waite of baeg'tet tos Latie ont "lew ; 
“spre didowe th Baa tet imowted ‘Suoltalfoned Rvoluie 34 “odtom foots 
‘yittoend ot Seabed rel Yo seyolqum as \ywed . amit ‘tlaned rind 
weed bivow detvw Yo ite (guodeoaein’ del het oad sha baaeiinbs 8 
okou edt saw Tlownkil of fotd Bokinonen a! adupae tan Pebae at" 
| edd ‘te od of bemeon anes eat . alata’ tom baa ‘asad 
vwalate 4 ‘te: pabtoust oat to duo 0 anew ‘anol touneenes ‘taal batt 
sali ovbianriuraits | moet 
“sorte ‘ofd hare ves wer emoktnod nates ‘te ‘poten toxe ‘pat’ wn 
wor'a ‘et say ‘oaeteb ‘add dnenors ‘bien “tabiso to’ oat | 
what ot wroxtévod elywost ek ‘hue By ee . 4 
evant hives Ama heviowns ouank okt 08 Yaavetex yltme fo oaw | 
. ‘atxat 9x6 ‘wa ly cue aaterooge eeace ‘et agnomh stlonaaday i 

i bate bee vaca’ .tit’ 08" ona Sy aatyed 128) soak’ ret hl 
fameat) ) ata estas ieee i a co dhl Leah nl 0 2th show” 








oti hae neon eon = a& 
m r udivis ay “ on it ee ane 

one boerorst ry ‘Soooumyhart ois prereh lae oe at 
tam, Pee : 2 Pn Bday BS ai Pai % ‘Svat . 
or ea anes bas 


Cer OANT By eye P Na AVE ye On) at) ORT Oe eA) he ’ ES ZA Ne SMe tes CUI H AT? ON RD A te PR WRC a 


Pa 


410 = 31542 


‘P. b. SHERSON and URS, P, L. 

s 

Appellees, 
i APPEAL PROM KUNICIPAL COURT 

vs. 

ah OF CHICAGO, 
TEP AUTO WRECKRARG, Inc,, and 

TAM RANDALL, 





























a Se Ret Ri Saar Women Sgt “ace gga 


Appellante. 


BR, PRESIMING FHOTICH BesimeLy 


PELIVERER THE OPINION OF Tie goret, 


This ie an appeal by defendants from « Juigment againet 
fer $2,000 entered upon the trial by the court of an agtion of 








rer. Only two pointes are presented for reversal: (1) miejoinder 
“ the plaintiffs; and (2) the amount of the judgment is exeessive. 


We The subject matter of the action was an sutomebile and 





q : wrongful conversion by defendants seems te be admitted. Dee 
fen te aerert that the evidence showe that the avtomobile belenzed 
te the vive slone snd therefore the hushand was improperly joined 


Braue, eiting Herries v, Brain, 33 111, app. S10, and Migek y. 
Grange, 239 L11. App. 360, and like cases, It ie un- 










tefly true that in order to maintain sm setion in trover, 

intiff mast show bis right to possession and te do this must show 
Sher & general of apecial property in the thing eonverted. Plaine 
ff must recever on the strength of his own title er right of 

ion ond net upen the weakness of the defendent. Henufaeturers | 
ing Co., 169 Ill, App. 862; 

Ma ffrow, 220 Ill. App. 890; Nettleton v. Kerr, 167 Ik1. Apn. 
iy and like cases. 

- The evidence shows that Mr. FP, L, Emerson bought the 


es Ve MOMOTOR “03 Tigers 


mobile in question, receiving a bill of sale for the same. It 
4 is kses in the garage connected with the home of plaintiffs. Bmersen 
, that on the morning of Christman, 1925, he gave it to his wife; 


astute stwaes tanned ade Xo nepaxaon sad 






























ue 4 8A bia wean 
| coveLinga 


ny ne 2 


SA, TARO TM OM aA, 
PEL AC SER Koes SQ: Ry 


“t 
AS Pare stoning 
| Oo . abi 
Yaa w mo TRE eure TeRTE niin fe 
oRANOD GET ED: MOTTE Set all 


vovtasvaxe ‘a daamybat, ‘end we savome “sath (8) a janie 
bias ‘a Lhd oma tion aa enw totton wis Xt xeon, fartdue oat a 
honl Dose tbe od al dawon szanboaten w neleneyase, 


= deat ‘bias ae ase Lift en. pel fe ie | yates i 


sand wh #2 Bona watt fae Cond “10h £42 ees j 
ase ‘stevens at nolion a ‘natant 08 rate oh Bvsgul ® 


. hiss 
re ik. hi R 
‘ 


were tone ana? oh ot ha, aptenges on of tiie. 





satel .bostevaon gates onl ah were qors, En tons gps aR 
oy aii SPAS | 
“te “fey he x9 esha awa eke 29 dsgnoxds ous sto b shia ‘ 

Oy te 9) : 





ene ogd are een . 20 
+a ead vor ti pe : 
odd “itaeom, en yeute, Pe = v9 toe + 

oe omen, watt a0. ofan “%e ifktd ‘ aeivieoe 
‘abe-to at #rttsinte te * hes ott ‘ihe besoonnoe oo 
setiw abst yer tk eves ae yen wnentetea ) Ya anton 


ASS 


a he PLS) 


ae its hit fy 


2 
that afterwards he and kre, Zmorson respectively used the car whene 


goer either wished to; that he made the affidavit in the replevin 


muit alleging that he wee the owner of the car because “he would 


have to take it bagk,” an they were hawing a lot of trouble about 


it. Were this # controversy between Kr. Umersen and © ig ote, 4% 


might be a nice question as te which Rad title to the car; yet 
there ie no doubt that either or toth of thea had tho right of 


possession, There was en arrangement for the Joint use of the 
an action of trever in the 














automobile and was the proper basis for 


names of both of them, 
i Furthermore, the question of mi sjoind er of porties 













| _miatnctst eannot be raised for the first time in the Appellate court 
capacity im which « plaintiff auee can be questioned only by 


: ecial plea, und not heving been se raised the objection ie waived 


4 eannot be ureed for the firet time in the court of review. 
eka vy. Chicago Rys. Co, 316 TLL. STO; Chicano 2 Hews 
g20 T1i. 424. 


* 





rowne, 103 Ill. 317; Penney: , 
any defeot in parties might have been rewediod by amend 


t, and since Lt docs nat affeet the merits of the case, affords 







9 ground for a reveresl of the judgient.  Sangedsany 













Tnile there was evidence tending to show that the 
or the ear waa considerably less than the amount awarded by 
eourt, yet the finding in thie respect was well within the 
of the testimony. fhe trial Judge had the opportunity of 


g upon the oredibility of the witnesses by hearing them 


and observing their conduct and demeanor on the witness 
‘There ie not sufficient in the record to justify us in 
cieeine with the conclusion of the court as to the amount of 


ment. 
Per the reasons above indicated the judgment is affirmed. 


AFFIRMED, 


ett and Jonneaten, 77,, eoneur. 


A: 





















OIE. ew 
atesie tego sai bea ylev liewqess Hones .ock hae oc shtewsed te ae ig 
aiveiger ol? ab tivebiTte 247 absm of Sand got Bode kw soda. | 
bivor af” garaasd tap salt Te meaee walt fay, ad Facts snigecl ) 
Spots eftvets to fel es ‘antvad oiew yactt ga “, deed ok wget of 
ok ,Sthe abt tae nveves’! .1h nasreded yerevottas, # ahs ora 3 : 
fey sts0 odd af eLeto Boot po baw of Ra teltenisy ota b ‘ea 9 
‘te diugix oSt bad modt to tod xo usdiie gad? I¢duoh on ak : y 
of@ ‘to osu Sabot ect tet teoemeguerza ae aew octet stolvasns ve 
ead ah wovors to moigen ae tet whoaW wayetg O83 auw baa eLigomotwe ‘ 
| OO eit 0 ted Va RF 

o aol dann to tebake\s te to Aoktemey ont poo TOs TUE 
su99 if rte galt ah enh t taytt es? 293 bee tax 98, ee tpt 


; awpdven te rwa9 ent sh, aut “er, one on ie a rons b 
| yore EF Bit, | 





; RARE 25 


ovese w berbeces anes aves tye yee oh paren gy «Whee 
shee. yanee: ons to adiwes al bh Sk ll goa, (See A ines ue ) 


outs ‘taste wae ot - gathams oonsb ive. eew oxed onde ne a nee 
hebrew trwson ald wan it owe hares om Forbes 












es Tears tat & vu 


“te thusrouge sit ‘hind onl, iaans 2 ost . 
oh M igedt Meas) Uy 


aust yuttnaod ue seseentin ont rg yoni genta 
“aueudte ox? no aedaemed bas goudmoe thedd yubvred 


ak ou eiidert 02 bieset ont at pvsdy a tidy For peli 
‘te Sovome eff of en ftneo ont To aglienianas edt esd sitkw x 


MN ee te Ue a hy ate Hee 
shears at Ynomabirt, ‘ott _betaotbat svoda ar 
a ae aguas '* a Ree et eae a 
Hah oie vag tin teas eer a) 
Brinda ' Sedieie?? NO aRacaaN Nall 


pt. RR ae a a ite ” eae va 


428 - 31560 


pti BLANKSTEE and HARRY 
» Copartners Doing Business 
as BLANKSTEN & FRREMAL, 


Appellants, 
APPRAL FROM BUNICIPAL COURT 
vB. 
OF CHICAGG, 
BRAVITZ DRUG & TRVGS CoMPaARY, 
a Corporation, 


Appelice, OR tees : ms ays; 


BR, PRESIDIAG SUSTICH HesuAeLY 
DELIVERED THR OPINION GF THE Counr, 


Plaintiffs, who are practicing attormeys at this bar, 
brought suit against defendant claiming $532 for legal services 
@lleged’ to have been rendered by them at the request and on behalf 
Of the defendant. Upen trial by a jury they had o verdict fer $30, 
and from the Judisment for this mount they appeal. 

Plaintiffs argue that the verdict is manifestly cone 
‘trary to the evidence, while defendant's cownsel argue that the 
evidence shows that the services were rendered at the instance 










and request of parties other than the defendant. 

. The defendant company operated a drug store in 
7 in which Edward Langan had the soda fountain concession 

® lease expiring Mareh 4, 1976, The G, B. & G. Concession 
ny is apparently 4 partnership composed of Masers, Coldatein, 
and Galnick, opersting luncheon coneeesions, The jury could 

: ly believe that Blanksten, one of the plaintiffs, was retained 
: y the Concession Company as ite attorney in the summer of 1925; that 
| . fall of 1926 the Concession Company approached Charles Krawits, 
7 president of defendant company, and proposed taking over Langan's 
c esion after his lease expired; they arrived at an agreement and 
en drew a contract to this effeet; the Concession Company was 
content to wait until Langan's lease expired, but became active 





















tMIOO MATLOLMOM MOBY TARGA 
OnavTED to 


Ce CN ia EN, ae AOR RR oe 


Oy A Chie si a a. 


ey care ceaRt , 
Timon Mure TO woTATT mur cama” soli 


tad abes ta ayortnod te yate outa ‘ew esi, card ontent 0 ay 
“peslvrod Saget aot 8808 gmtoleto tnahantoh deutepe thn. 
Shaded a0 hate deouper au? fe madd Ve Avtob ae wend eves a2 be " 
ot tot tathere @ hed Youd yuet o Yt kates sogt staabian'tah 8 

, aS skabdee Yous fauna ahd se? toem tel ect m 
“wtige ‘Asan't brass ah gebbrev 46 ede ‘puy te: aYitalele - oa 
Ye ott ‘tad? qugté Lsnitubs @* touhaeten ethir nome ive ott of ~ 
“eolilsant od th henonnet ono eovteren wilt taslt wwe ob 

: ‘ dnedad te welt matt chit ae ltang or 

oo ‘gh arose gueb ‘* he tetn ao NE ety: saa aie 
neteseasine itadimet eben wid hit magad banwhit eosin ak, 
“nolenoodod .0 4.2 . wat OROL YF Kote geltutinxs ouast 

M3 aistab to soteeeN "to hewdgaes gttletony-ein ‘a ‘ehtneredas , 
bio cunt, ost .4eeleaeanen meee ns antzareqs |, totatan , 
poniasex any ePub tian te act to wae: Od ait Le tens oven tog . 
tasty jetet %o veins Thi ah aeamienl whi “ ae Dini 





Cr ei i 


aviton smasad gud eee enaod a! may 


y fs 
rete Le TN LP Aa Peep era Po erg VAT 


with a view of getting Langan out before that time and appresched 
Erawits vith eurgestionse a2 to how this might be done. Galniek 
an4 Gel4sisin tol4 Krarits that they employed Blanketen on an an« 
Mual retainer and that he would undertake to do the necessary Legal 
work te get Langan out without liebility or expense te Krewits; 
@alnick and Goldstein had conferences about three or four times « 
week with Blanksten, ~ho advised that it weuld be necessary to 
Anstitute legal proceedings for the purpose of compelling Langan 
to vacate; that Blanksten drew up o letter addressed to Blanketen 
and Freeman as follows: 
"With referenge to the notice whieh we served on Edward 
Lengan, notifying him to vacate the premises at 311-813 Koose- 
velt Road, whie we occupy os a drug store, we hereby retain 
you af our attorneys for the purpose of instituting such legal 
Procesdings as are necessary te compel ERdward Langan to vacate 
the premises he now occupied and te eviet him therefrom," 
Galnick and Goldstein presented thie Letter to Krawits 
“explaining that Blanksten had advised that ony legal proceedings 
against Langan must be brought in the name of defendant, but that 
these proceedings were to be without expense to the defendant and 
4 “that the expenesa for same would be paid by Goldstein, Galnick and 
‘Belden; defendant then signed the letter; around January 2, 1926, 


‘the Concession Company came to an agreement with Langan whereby he 









Peoetved « check from Goldstein as part consideration for vacating 
the premises; the Concession Cempany thereupon took possession and 
Procecdes to operate the soda fountain in defendant's drug stere; 
“Wbout Januery 15, 1926, ‘Krawitz received a bili from plaintiffs 
legal services for $125, whieh h¢ gave te Goldstein, whe said 
Would take care of it. From this and other evidence in the 

the jury was justified in finding that plaintiffs were 
iployed to furni ah the legal services in question by Goldstein, 
D mick and Belden operating the Coneeesion Company, ond not by 
he aefendant. 


It fe argued that the verdict of $30 was « compromise 


ff aonta sure"! + wonuty tuode keeco re tues bat niotubt06 Dae xe 






















mags « @ 
betaaatque Bie weak § snus oreted, dei anata gal sseg to woly a — 
do hitad attob nd #16 ee whet wot of * anoltannaye (ftw , 7 
ta ns no rete OE hove len yay pace se biont, bho a wee a 
Leys t Vrsemeges, a o iad Orta tro! om bye on ‘eee “bam xoateor ~ 
{ad bworaa of onasgee *o witiidnds soit iw See emqund ‘iy ip ‘ 


ot ctmeengen od bivew #2 sadetst bowlvbe ‘ede Mod ose £8 athe, 
stipe. pat Logos %e ewoquug ear tot aantheasore Aagok oats en 
Leaasooseruat od besarte tes fone Mv ad A iadiy: pistes paste tetaaer a 


aon BLB0 £58 fp anelartg ec Sieony od mls bate 
iste: tdexed nig ot tp Seely x ty arane4 bir 

Saget deoxe antinudiieal to seaging ade ag) @ CaehOr toe, mae 

atagey of ‘Hegred biawhs Lege of veaieoela” 8%s Ge Bat. 

is oy » pmeowheree sia wis #ehve wd ft aiapene, 2 me ‘skosnimee hy 


fh sxe dupbuoron, oat, wit SEROMA tuesit dw ool ” a tew r SEmapeaene§ 
ore 9 kde sfiotahsed yd blag ed Bikcow, pian 0% apesoaee, oh 
,OSek ,8 y¥rewniat Aewr ta predtet gals beagles Rice Saba s Ob. 3m 
esi Yoon ale us yae t dtaw Tagsg ore ie OF BmOo Nake gaa neluaanstod 
gud toon 20% avigorh teen did Rae alessd Lod, aoek, Moody. a bovis ha 
bins solasoaaog sent Roque weds YRg gay? Ho ianngsed od Miisihlid 
jouate weed a! snahao ‘toh ot manbrene aboy ody Ssetene.. f; bpbaag, 
art Leake sa won fiad a. baviosey . addins), (S8OL OL per “0m 
bhee ode aa od ,nioseh soe 08 evsy od se tain e826 ot, Sou beree . fae hes 
: ona at eoneblve wise bie whet wor tt, to etaa 809] Esso? «4 
ter ETittatatg sass yaioals at, bedi itant aoe ment : 
adored £00 “¢ Sohtwenp ag togivtoe Lage pie, Madore 9 

: “d ies fan , Griaqued Hotesroned oad, mehoanay winlntcans 
eet we er te nebo ) 

ea tnorenee, Phil eee ‘te sa niaey, tt as sue at at wr a 


verdict. This is evidently the amount of cesta advanced by 
plaintiffs in tne legal precesdings, and the fury might wel, 
believe that it was only »reper fer the defendant te be taxea with 
this, as these proceedings were condueted in its name; alee in 
view of the fact that at one time defendant offered io stand o 
part of plaintiffs’ bill. in any event, the allowance of an amount 
less than the whole amount claimed cannot of itself, in the present 
@ase, be sufficient ground for reversing the judgment. 

Some complaint is made of the rulinge of the court on 
the introduction of evidence and the giving of inetruetions; but 
errors, if ary, in thie resneet are not of sufficient importance 
to fuetify » reversal. 

Ye cannet say that the verdict is manifestly against 
the weight of the evidences, and the judgement entered thereon is 


therefore affireed, | 
APP IREED, 


Matchett and Johneton, JJ., coneur. 


Pee a 





i. ney ae 














aR aah ay th ee 


ye baoanvis afeos te $enrome ond ‘¢ftasbive al alae aly 

Liew teyto eat odd bin Bpalbanoorg tapak ony’ ry aud te 

atin bowed od of ‘Janhue'teb edd, yet Te gary ytno nw yt dass . 
ad ait Ls jomsa wat ak bedeubava er98 agatbooootg enost fed 2 a i z 

a. baste, od pore tts towbae'teb oaks vag te saat ‘seat amt 10 


Semoun ae re soaawes fe eda aimeye ene ak + bib ‘aaldatate het t 

; tole a 

toner , ma _hhouts to tonnes beaike Le Jere: ‘eLouw oh ¥ 
tes adel Ry gh f Aden itor 


“.daoamhat ons gakenever x0 bauer fia to 27am od onus 


1b 94 SPARES 


i 
Fs 


eu deve oat Xo and Ler elt 26 tamed baie tqneo aoe | "7 
By spe Mt a i a 


tod parm dsousdeat ‘te aniv ty ad hate aoneh ive te wo dtouborsat 
soantreqsd dad toate to sou ou aoecaer atest me yum 


ane ie Rb Be (AY Bi ey) " ote Me @: Le a 


7) t 
if 





‘ede pewnade: fer igie® seiatataite bre stitial te tiginw 9 
: beg phir togpaht, hh 


ROTO 4 LT, sei ane § 


BM oP oer Mee 


ay yey, ? ecw oi ae 
ities ia Get ilhit AC yi " 
4 


jf RS felt aR 
me | wait Roe See 
vill f i nae ; a avai oY " rs alle é Oe Sh . Hi ‘ON Uh Fo " 
te ku Bahia Hg Een St Ca ge Wangs RR ta i 8 ge alae NER ios hie Tay | Bind A, 
me a a YB sean tee 
“eee Rea, wae, 


See Ta tase | fe RARE ek Bae 5 Nay "pea , rt a a ar % we Oe 


ik A hl OD ila ied hi roel wr 4a 


64 - 31177 


ARWOUR & COMPANY, 
a Cerveration, 


eae meet 


Aopeliant, 
APPRAL FRGH BURICIPAL UOURT 
ve. 
7. ‘ ile OF GHICARO, 
* BARRETT COMP . 
a Corporation, k 4 Y 
Appellee. , 5 rt 6 


MR, TUATICE JOWATON DALIVERED THE OPINION OF THE COVRT. 


Thies is an wpeal by the plaintiff, Armour & Coapany, 
from a Judement in favor of the defendant, &. L, Barrett & Company, 
im an setion breught by the elaintiff te reeover damages fer an 
alleged breach of contract by the defendant. 

The plaintiff alleges that the defendant entered inte 
® contract with the plaintiff to s¢12) plaintiff 16,000 galiens ef 
@live oil to be shipped from Spain and te be delivered to the 

| *Phaintirr; that the defendsmt refueed te deliver the o11; that 
the Plaintiff was compelled to purchase the oil in the open market 
et an increased price, and that os a consequence the plaintiff was 
; damaged to the amount of $2621.50 with intereat. 
ib The defendant devied that it entered inte such « con- 


| am and alee pleaded the Statute of Prands. 












The case wae tried before the court without a jury. 
The principal facta whieh are not in dispute, sre con- 
e4 in the correspondence between the parties, ‘the plaintir 
iTaetured soap and wanted the of11 te use in making soap. The 
t was @ denier in row waterials, and as euch dealer ime 
ohive o11. The negotiations fer the purchase of the o41 in 
ion were begun with the plaintiff by Justine VYeinshenk, whe 
‘a ted the Brazilian and Colwsbian Coffee Company, an ixpert- 
E firm, Lut oo the Bragiiian ond Colusbian Coffee Goupany aid 
Mines on the barle of Spantsh Buchange and ae the plaintitr 


me By , iM 14 i 


eame08 a saonnai a | «ase teb “oat te 


panera lke ano ‘ott ne! oa . ais fouls Ni Me oe 
“ato ote sarge kh at ton ore date, roe foqtoatee ost 

Viambate eit mo texaq ait noone’ sanehaoanntine one wt 

ene J omoe nation | at vow st fhe wt bo tinew basal aon 7 





bought only on the basis of Ueited States Exchange, the matter was 
turned over te the defendant, whe agreed te quote the vlaintifr 
prices in Mmited States "xchange. 

in the negetiatione with the defendant, the plaintiiT 
Was represented by Sd4ward 7, Martin and the defendant by George i. 
Suddard, On Jenuary 4, 1924, Weinshenk, representing the Breasilian 
and Coluxebian Coffee Company, subsitted to Kartin for wmalysiea a 
Sample of o11 which Welnshenk eaid wae avout 2 per cent saeidlty and 
Was neutralized and denatured. The sample had a ishel of the de 
fendant on it. On January 7, 1994, Yelnehenk wrote to the plaintiff 
as follews: 


"The writer enlled at yeur office en the 4th inet. but aid 
net have the pleasure to meet you personally. 

On that oceasion I left with your Wr. Gebhort 1 sale of 
Commercial plive o11: 

ig Densturet and neutralived with acidity net ex- 


This oil is slightly inferier quality te our previous oils 
._ Submitted, althe the acidity contents is only 2%, instead of 5%, 

It would interest ue, if this new type submd ttad wowld be 
of interest for your requirements, ae thie of] oan be had at 
— lever quotations than the other type first sub- 

tt 

Thies of1 is particularly used in beth Spain ant other 
countries for seap manufacturing purposes, having proven iteelr 
quite advantageous. 

Since submitting this ofl, the market has again taken a 
very notable cliab, ae the Spanish and Burepean markets shew 
daily more and more, the unexpected large shortage. 

Your kind informations on tuls mew quality awaited, and 
trusting that, if of interest, you will comnunteate for "prices, 
with Meesre. K, L. Barrett A Co., we beg to remain, 

Youre very truly, 
Brazilian & Columbian Coffee CO., 
by J. Veinshenk,* 


Hewing reeelived from ite laboratory a repert which 
showed that the o11 was suitable for the manufacture of soap, the 
Plaintiff wrote the Brazilian and Columbian Coffee Company on 
Tanunry 8, 1924, as follows: 


®attention tae we Weitnahenk, 
Gentlenen: 
a Your letter of the 7th received, Ye have talked with 
i Mr. Suddaré this morning and hove made him an offer of 9$¢ f.0.b. 
: Rew York for 20 barrels of Olive ofl - 
100 bhis, Jan, shipment from abroad and 100 beis. 
B: Tae pecins from abroad, 





Se pe at IB el re ar a ahs 



























TV RES 
mer totian oft ,onastioxnt estnad betta Ye oload add ma xhae del 
‘ ?eb¢adede oc? etoup of beeTge enw of eta ta, ove a ‘tove : 

— engasiioRe aedagb bes kei) at 

thitalele oat ,tunban'te mela ad be uo tals ogo ont a 
oA ayteed yd Srhen ted welt baw mitwed .% brent et heb acer | 
aaiiiaasd ot puldmseugr ,Aeesdanio® , Pes i" en | we brah . 
& gheyiaws tok alftaM of Hedtt hatye yang? ee Tl od ashy LOO e 
fas ystbise is00 t9y T tveda Caw hiaw davdeale® dp tay tte ve 6) . a 
-s& pal, ‘to fedeaLa beat ‘eiqane ont shaw taceb bas Donttertves 1 
Viismlelq es ef stony tsp sin de® wonee a? wm “ i# 


rt “ee ae 


bE tud ant sab i sana, mee wt te bein. ‘ ‘rr 
Liateereg oy teen ee te” 
Ye ohms 4 due cba’ ot aHoy Mitte Mat I om 


wee fon gtihing ae ke Dee tinctereis hae, 


8 oT Ts Shae HN hy 
: on baa oe ae ie cle thas ae ye pT, le bd cet 
eRe FeTET weet Tete ait pase ru cada d Bole 


‘thoes: "severg dag a rhsnsmngberce ae tie 















en ‘wahaen nee 
eetodtg tot efso Row. / 


) 00 sores "mi f til ths 
, * ieoganie® .Coee 


de kin droqes a Crodatedal at ‘stort anit i r 
od ,qeod ‘Yo wxudbo'tundd odd x0't ded bys daw“ n26" ote “¢ 6 
“he! nag perten a” seal feveasneiol sat asoee 


Ais 
AULA ire 


abide las ae. ime 
Otay) one ‘te ve ae ate by i Ay bate f 


equal in every respect to sample you submitted, W. ¥. re weighte 
fT. o. b.. cars tew Yori, denatured. Ye made thic bid aubjeect te 
cable confirmation and ur. Wuddard theagst you would have reply 
by tomerroW noon, 

Awaiting your advices with interest, we remain, 

Very truly yours, 
Arwour Soap Yorke, 
Baw. », Kartin,* 


To thie Letter the Brasilien an¢é Columbian Gefrfee Cane 
pany reslied on Jonuary 9, 1924, an foliowss 


*“Sttention Kr. Edward ». Bartin: 
Bear Gira: 

We thank yeu for your revliy ef the Sth pertaining te new 
gemple of Obive C11 submitted to yeu by the eriter, in behalf 
ef our ehippers sbread, Keoors, Garvonell Y Gia, 

After taking the matter up with wr. fuddard, of Me. L, 
Barrett & Oo, of this elty, we are autherized to give you 
the following quotations, based om our price quoted in pesetas, 
and whieh they im turn ere able toe offer to you on the 0. 5, 
curremey basis, 

Please aste the following, subject ta Gartbenell's final 
Gable aceepiance: 

MR. ik, Barrett quote thie of1 ©. ©. b. Kew York in Barrele, 
at 95e per gallon. In thie ease, all risks remain on your 
Rands 


In fmke, they will have to ask §1,00 per gallon, in which 
Gage they are taking uwoom theoselves 211 riske, which could ke 
ineurred on goods ahipved in Burreles. 

neg now offered te us: 186 Barrels for eshivment in 

anuar 

additional: 150 Barrele,for shipment in February 

additional: i160 Barrels, for shipment in Mares from Spain. 

It iw very 4iffieult to obtain Mareh quotations at this tine 
as the market ie daily advancing most rapidly, and since our re«- 
cent communioations with you, has taken om quite a serious ase 


e 
; Trusting that we will now have the pleneure to serve you, 
thru our goed friends, Messrs, B, i, Barrett & Ge., and with the 
Kindest recurde from the writer, we beg te remain, 
Yours very truly, 
i Brazilian * Columbian Ceffee Ge., 
m by J, Peinshenk, * 


On January 11, 1924, the plaintiff wrete the Brazilian 
a a Colushbinn Coffee Sonmpony as follows: 








“Attention Mr. J, Weinghenk, 


Your letter ef the 9th reeeived. We have written M. L, 
: ft and Company under separate cover in regard to this Olive 
2 like sarpple recently submitted. 
We note that you specify 150 barrels in your offering for 
-Bebruary-Maren, Thies will be perfectly satisfactory te 
‘Us. Ye would just as soon hove 150 barrels in each car providing 












aditytew’ ox iY. hes Ftadee voy wT qure oe divine sere ek! cam 
as tootdwe kid sitt ohac oY .betiwdaneh , vat wel wtao..d ae 
wh haa nat tn fips otdéne” 
acd Mg 

_ ftlamet aw ,saetedai adie’ aes aves ‘the ou sais ia © 
pend AM Lect wey i ca 
as eta” gage ti Ba Pea VAs A Oe 4 

" Mista oT gw : eee Ce 

909 POTIOL An tsow Led fre ne bf deavelt. out antes £ shdt, ee 


mwoltet aa MOL »e veneme’ mo teases 


iabewes 4 busehi Gh Mole RTAM i 6 " 
wan oF puinintsad. HIG ops we Her, Hii 1 

“REA ded “oth lag ay Blt Ley ' 

# pine ; protic ide 

‘ER Ko betas nue” A. ae chet mace shears agbiad's 

woe oviy o¢ hoaltedsue ete ow vote eft? te 

atetnes at bedewp aaltg two me hoead "siggy ‘on 

, BH osid ae wey, oF wto ef sida etn axed ah gon) 

teart ot £Lenodaad ot ‘tee tton eialvotgot ‘ont : 


vaferrat nk daet well df ot Lio aldd wt 
” toy nO ulawet Winkt Lie — _— ae 


de tiie vet mig rag 
ag aiwes ‘mee inte Lis 


Pa cniuiel oved tinaow wey teywodd asbhwe 






















ae apg be xe etoryax Sa it Ot be 
‘yrarndat at de it sinha an 
stot ment yesh ak femme bi ekonied ORL 


eake whds te anoliat cup sidigbel a jai ¢ 8 ’ 
“in exeixee a ‘od hup a P etal, e 


avres of winaiuits $43 ower won we 
out hw bow er sg re mae 
it OR ae ale 


42 09 oo'ti90 salam 135 & wal ae 7 i 4 Sede 
® dine ete 3 ¥ 7% ; es) Pools iV 


SPO 3 


noite asl ogo, ubtatete ose ase oS, team pepe ee 
NPS ERS, We, bi atu wore, sm 


Meo iits i 
Lanavieaer iy me soteant tan, (REA vaca ee. ony 


od .M meee law eved of yrs MS @ 

evliO wid of bxaget mk cevOO ecetegqee reymOD Bien 
abet d hand sie prof pt elquae 

ae? grbae'tLo: wo mh we if xtinege ney, sont atom 4 

ad yrodon teliag sores Bar a tSE  .cip ne Megan 

aukh ivory. ‘tae Haine i hal 









et 
by 

; * 
a 


Jaman oF “naatt | 


Wns ne Atte on 









it can be traneperted anafely without any danger of dawage or 
leaking and we preewae during the eol4 weather thie can be done 
Without 4ifficuity. We now await reesipt of your reply, 
Very truly yeurs 
Armour Soap Yorks, 
Sdv. FP, Martin, * 


On January 12, 1924, foliewing « telephona conversation 
between Kertin, representing the plaintiff, and Guddard, represente 
the defendant, the plaintiff wrote the following Letter to the 
defendant: 


“attention ur. @. 2. éuddard, 
ge ee ‘ 

Cent Hg our telephone conversation - we have bought 

two tank cars of 16) barrbks each { or 8,000 gallons gach 
Olive Cil, equal in every reapeet to the sample submitted by 
ir, Weinshenk on January 4th; ehipwent 166 barrels each February 
ond earch from abroad, same to be leaded in our tank ears and 
denatured without any exocnse whatsoever to us, KW. ¥. official 
Weights, drafts to be paid on presentation of documents in per- 

order, price $2.60 per gallen f. oc. b. Hew York. 

Wo have « gail portion of this sawple Left and we would 
like te have you or Xr. Veinshenk eend us another bettle of 
abeut 4 cunees so wo oon have it to serve ae a type sample, 

He doubt Mr. Yeinshenk has shown you copy of his letter which 
Will explain to you regarding the quality of this of], We are 
Sure that the ei] delivered is fully equalh to sswple suboitted 
which we have tested with great care and which we find weld 
suited to our needs. 

Vary truly yours, 


| Srapuy Sean Works, 
i ¥. RP, Bartin,* 


On the game day, Tenuary 12, 1924, before receiving 
the letter of the plaintiff, the defendant had written the plaintirr 
ne follows: 


| “Attention Br. B. », Martin. 
Gentlemen: 

As mentioned over the phone to you, ws have entered your 
grder for two eare of Olive G11 as per surple euomltted through 

ilian & Goluxbian Ceffee Company. 

One car of 160 barrels for February shipment from Spain; 
@nme car for Hareh shipment from Spain, These care to be bulked 
at New York in a tank ear. The price $1.60 per galion in tank, 
f. o. b. Hew York, ‘Terns net cash againet bill of lading. ‘The 
Gontract embodying these features will be sent for your signature 
Separately. 
. Ve can assure you that we thank you fer thie business, and 
‘We trust it will be but the beginning of further and mere Lue 
portant transactions, 
Yours truly, 


HB. LL. Barrett & Go.” 






































0 eganah to tegnah yan fuodtly yleten epee | od ano ‘ 
Fae: wd cave ads aaa yy Pan pe tpnetgh” Bane 


foi dria ol wtederor tae to vee’ dps yo ae exes 
1 HN a ea nd dart? ete 
atte Mer UNE. 


; | Pent Tae A ORR os wil pa eon " M 

ol saa te rsou niraciqe ina, * padwo tte’ <aOUr RE taunt a0 ae Ny m 
ataonerqot ,Srobhel tas |, Tiktalale oat ARths ae ae tga e ake 9% 
“edt 0? “totter cial ade odore nyse idl -Faaban Tob ons 





“ sbuanut Kel 8° tie Hotede seas 


sabedse vioece gy e 

cuanto ome, bap gic ne Pe 

baa eras asod swe me bebagt = \ ee 
 fatoltte .¥ «a we “od tevocudede eadoune Yow ¢ 

“t9q ‘th sfaoswoot to soltedasmexy ao blag ad We 

f iet weet yhoo .trotsag neq 00. M 

bho aw Daw ftel elomed whit te sy 


ine Panskae aadines au uy bere oh, Fo woY 
nd (th eved mao of of arenme, 
aie: setiek eit. qe eae wat awed gan amosiania® 
oe ge Eh, oma me Belt J, phi tdane ade By renin On 


hag t te koupe, hs 
five hakt oe py Weg hae @%ae Ls. 


siitigoat ome tute itor 
2) at Wale * alt a mont mane ss 
“‘gityivesd ‘waeted” OR OL ef rer ay an ‘ahee Ce 
mivalate’ ‘att aed Sew bod taehne tes “Gay pasate di 





Fat NMR CH: a ah 3 Ba eee 
i ‘i ane } 





pene “ ott tat hoisiegtat 


cise bexszne ava ee yore yd Gitlay ast to¥e homitiuen my HM 
Posen fh boo? Ladue dae q Bu stad nat to aren owe tor 3 
ne  YAOTans ve es eat 
if. paiva? wort Joouqhae Jeberto toe reread O80 ta we end | 
bexivd ad od arad ened? . tage oy das 
<font mh noilsy soa 00,28 ootng ® "tase 2 
oat spathal to Likd de teeg son ‘cone. 
osutach te swoy tet dase ad . Sesion neg omen? 


auntehaid eked” “eh, 
wails enon fiw sei e, 


wisalte tal “0 gi * tis aa 


On Jenuary 14, 1934, the plaintiff wrete the defendakt 
follewing Letter: 


"Atiention kr. G. H. Sudderd. 
Gentlemen: 

We have yours of the 12th confirming the trade which we 
made with you by telephone on two tank cars of Olive 012, each 
of 8,000 gals. capacity, 
| You don't mention some of the features in the centraet ag 

Moted in our confirmation of the 12th but wa presume full dee 

tails will te mentioned in fine) contrast wich you say #11. be 
sent te us very goon, Ales plense advise ue in ample time jJuat 
when you wieh te have enol tank gar down for lesdine, We send « 
_ +§00d meny cars dewn tc the Seaboard and, in all prebability, ean 
Send ever the empty tanks te the noint here you desire to have 
them loaded without any trouble er any delay. 
: Awaiting your further advices, ws remain, 

Very truly yeurs, 
Armour Soap Sorka, 
Edward ©, Bartin,* 





On January 15, 1924, the plaintiff wrote the defendant 


the following Letter; 

b ae 
\ 
Gentlemen: 
Please do net overlook the request im our letter ef the 
22th to send us am additional sample ef the Clive OLl which 

we have purchaeed from yeu. 
Vary truly yours, 
aregur Soap Yorke, 
By Edw. P. Martin, * 


*sttentien Mr. G. &. Guddard, 


On Januery 18, 1924, Suddard, representing the defand« 
@At, telephoned Martin, reprenenting the plaintifr, that the de 
‘fendant hed made a mistake in the sample originally submaitted te the 
plaintirr, | | 
On January 18, 1994, the plaintiff wrote to the defend 
amt as follows: 








— Gentlemen: 

a Referring to our istter of the 14th, and confirming our 

conversation of today ~ the mix-up on thie Olive 

+ 88 you say, ‘#9. Geinanenk, is very unsatisfactory. 

@ submitted eh the label of Kk. L. Barrett & omnany, 

| WO completed the purchase on the bawie of this seuple, as 

yd — of the 14th and written cenfirsation of 

We have sent our boy down te reeeive at your hands the 

sample, but if this new sample does not meet jour require- 

ay Weil as the sample submitted originelly, wa shall exe 
L. Barrett and Company te give us two cara in accordance 










it 


Hie 
a | 

























alta odd ot ow matennet weit sb, vk inet a” | 
susdsod antes j 


| 
Probiet 6k ow iieavnat a> 


“GW baw body Wade pater Pence wee ant “6 Warde dian a of Be 
, sae ALO OVLAG Fo anno hed ome no panden inl. ue woe, et “ote | 
! sao gee or Ye 


Se Sonténon off of aomrdee® ould ie eamp byt phon 
web Lyt onmentg ov dud MTL edd %o pir pees oi ps 
af £47 ow way dokcw teactune foal? al beaotiaom od Ei be y 
bast, oul? olome ak aw eolvhe seanle oeié ,mvou v as of on 
a baoe oY .yihbood sok merch tee dant deve sved oF dalw roy 
pol tt tide ove ff wl ,dus Bieadae® ad? of pe Stee yam 






are pf pre, 2% badsey faked sat of sdandt wan, ea, 
he a vp ste om | 
— Bf ba ans teat | 


aed ry odie’ awe viilail 
ie tiw tho evtio oat s ®, 


ae 
«eae er 
wba teh, aad sia ientinesteaida PRL BE verona, =o 
moh ont Jott, -TLemte te ony, pals anmetae .ahnell he 


Hee pay 


sate om; Ld dina magatate ast ase mr we 


Fai aalRy 





ns see 
“eieteh tar sonae inv et, 
by £89% he: sel, oy 


i ar a Fs ad To 
ou ori tw OX wo $e. By Bb os wy Sf pnt od 


4 Seo Eau ow Ctoatgine Lyon oa? aa Liew 6 


with our contract. We went to « good deal of treuble te test 
gut this of] and arrive at thie trade with you and, under the 
cirewnstances, we feel that if conditions were reversed you 
Would be entirely fustified in demanding material equal te 
what was purchased in accordance with saaple aubcitted, 

We sincerely hope that the sample yer «re now submitting 
to us will be equally satiafactory te our Laboratory in every 
Peapect as previous sample, 4 portion of which we have Petained. 

Very truly yours, 
Armour Seap Yerza, 
Gaward FP. Hartin,* 


On Janusry 22, 1924, the defendant wrote to the plaime 
tiff as follows: 


*Attention bir, B. ?, Bartin, 
Gentienen: 

Your letter of the 15th instant was duly delivered to us 
and we delivered to yeur messenger corrected suomle of the Glive 
G11 upon which we quoted prices to you. We have vince bean 
Waiting in hopes that you vould’ find the new sample as satige 
eahaia for your purposes as the one delivered to you Just be- 
ore, 

As our wr. Guddard eaplained te you over the telephone, 

When the Srasilian & Colwsbian Coffea Company on the 4th instant 
delivered’ the former sample at yeur office, they belleved they 
were delivering savple of the ofl] sow sent you, They wrote you 
on Jonusry 7th regarding tne sample eo delivered and calling 

ur attention to the fact that the oll wae dexatured and neutral 

zed with acidity not exeeeding 9%, wid that it was of slightly 
inferior quality to the ofl previcusly submitted to you. Ae a 
matter of fnet, the ofl delivered to you on the 4th instant was 
identicsily the same of] of which o sample had previously been 
given you on the higher quotation, The examination and analysis 
ade by your company could not fail to shew that this wae the 
ease, ond that an error had been made in the sample, The senple 
444 not in any respect conform to the ofl described in the 
Brazilian & Columbian Coffee Company's Letter of January 7th. 

The error apparently arose out cf some transpositionsol 
labele on the samele onne. Ye 414 mot 4iecover it antil reeeiot 
ef your letter on the 12th inst. in which you asked for another 
Bottle, It them developed for the first time thet the sample 
@elivered on January 4th was from the higher priced ofl, 

As indieated in our Letter to you of the 14th instant and 
in your letter to us of the 14th instant, the transaction con- 
templated the preparation of uo ferwal signed contract, and the 

@fror was discovered by us before such contract wae consummated, 
in view of this fact, and eopecially in view ef the fact that the 
 @Frer must have been apparent in your office upon an inepeetion 
amd amalysia of the sample, we cannot consent te delivering the 
higher grade of1 at the lower price quoted. 
ae We are etill hopeful that you may find the last sexwple of 
og wubaitted to you suitable for your purpose and shall be glad 
te Till your order on that of1 on the termm indicated, provided 
_ +yeu ean give us the order within the next few daye. Prices are 
re ing on these oile end we cannet keep this offer open more 
«than five days. 





Respectfully yours, 
Be dee Barrett & Go." 


1 ane 






































‘feet at aided Yo ‘toed hone hot dave oF deetkacd aye im 
ade redter , ie woy atiw ganat alae dn oviixe ban Sho white ¢ 
wey hearever exew amolsthnw 32 gaat Loot ow " deta ieee 
of degpe Saobvedeas gathcamms af beltitert yhesitan ed hive 
' "~ -Bettbodue efqwne etiw goombiroson af beaecotm on ‘ve 
goltehadya ron ots way piguax ont Jas? ogee Yinees: * 
yaeve at yictaroded ave of yrotestaltes yilbupe’ wd ¢ 
donlwind aved ew na ldd Yo aoltvod 's 92 Leemanas beau Mae 
ee ete? . exe v ey 
OT Saee@? 4ae8 “aorta 
bins We hd a} rm one By 


ee ee oe tok Sua 8a” | pe 2 ate anata BS 


evil? ent te alquas betpettde Tegteryen suey oF Beuey 
peed souls eyed aW vor of eaehiq betenp ov do daw 
ogitas #0 eiquen wea pit ball blvow sey send em of ge 
“an Jarl wey of howevifeh oay 947 ma. peRogtud of a 


~ecerigeled gat? cove wey OF bouletans srabhye ‘a ue aA 
tasteat coh said So yaugod ev'Tio? anidawie}) & aellingsd ond | 
yous bevelled yeas oo ktte tw0Y¢ Ja elcase wemnet edt & ov 
voy etouw vod? azoxy fone won sho om Yo eLgume yatcovt 
gaiifiac hue Seasvisen oo sai ieue wt yeh teues at 9 
fevtwen ben bourtaneh saw Lay édt deat eH8 oF aoita 
yisnalin te aaw ti dade bas , me aaibeqaty dou yFthles dtiv'’ 
a eA woe of hoddindes * winnaivery Eke ade af yoihaye. xokaete 
aaw goataai “¢) aff an 16% 0 Botevilos Lie.ott , test to seed 
ead yeuotvery bad elemit a Mhtw Yo flo sons of? clinekin 
sieyiona toe Reh tanianne way ptohtetoup tedght est be Oy wey, 
ant aaw' ates gore wate ot Livt fon hives yasqagh aaoy wd 
Legume omy ,olgmne ant al shen mead bad torte me. fast : 
‘aa’ ai hadivdash £26 of} of arec'taes Fondant Wie fe 
#2? yteuonh ‘to wetted et yaad sette? metday ted & * 
‘ponmods baoqeuees sine to toe waive eithensdws tend eat’ 
fey looer Lh tows oi wxeveoeth fom bik oY .eneo efemma edt og @ 
tadgons sot Aocue poy Caddie mh ,@eat AGRE ed oe setiel Be 
elgnae att tes? eal? gant edd x0. je¢oLered itt! Eo Stree i 
ehie Bec trad wee de and aod wee ab peeved ad beter yy 
| Semsent Aghd wid te wee cf Otte amd wh hedanibal ah... i 
onl aottone ants ont ,toedens MRL ods “too of cette lk’ 
emt bas , soar dago beng da Xawigt « bo. aviteteent¢ odd bots Lene 
betemmtios sar toandtuce Soow oneted ay yd Deweroedhs agw | . 
ods tad? too% od? Yo wolv nb Ehielvogoe bux , tot 8) 
sotvostaal cm meg a9 tio teoe it ren ge see 
ome waitarite® hae Foredne Jounsd 
Bee adie sh 
te” wtqnan Faas oad Dart yur | 
baig ed Iietd hae eoegarg bit bs wi 
Bets set mt art “ne the | 


ay of honevileh yink saw daavend oud ans he pe ae case 
VS hg 


i 
pm AR: | 
i 4 oy 





Om January 23, 1974, the plaintiff replied te thia Lete 
ter as follows: 


“Attention Mr. @. %. Guddaerd, 
Gentlemen; 

We are in reeeipt of your favor of the 29nd in regard to 
the Glive O11 which we purchased from you a6 per zample sut- 
mitted. 

We have just received repert from our Laboratory on sawple 
which you sent to us for approval te take ihe pleee ef the emaple 
on which we consummated the purchase. Ye regret to say that reur 
sample Ho, 236 does not fill the bill. It bleaches very poorly 
and the odor is not nearly so charactorietie of Clive Gil as 

mur he. 164. We therefore are wnable te secept it in pl aee of 
material you sold and would like te know whether you prefer 
te supply the material we purchased, im accordance with our 
eontract, or whether it ie your wish te have ue go eut in the 
Market and buy for your sceount. 
We shall be gied te have your deeiaion shout thie se early 
ae porsible hecavee we have some offerings before we thie gerne 
which we shall be glad to take advantage of te spply on your 
# te us, previding you will give an ineatructions te buy eame 
in for your sceount. 
; Very truly yeurs, 
Armour Sean Yorks, 
Ga4warda P, Martin,* 


On January %, 1924, the 4tefendent anewered this Letter 
as follows: 


*“attontion Mir, Edward PF. Kartin, 

Gentlenen; 

Your letter of the 23rdé inet. ie duly at hand, Ye regret 
that the last eample submitted to you does not meet with yeur 

remente, and are most sorry to have any controversy or 

‘@rense arise between ue. 

However, we believe we indicated our position te you quite 
ot mee in our Letter of the 22nd inst., weiech you say you re- 


Yours truly, 
w. Le. Barratt a& Go.* 


On Jenuary 21, 1924, the pleintif? wrote the defendant 
as follows: 


"Attention Mr. G. 4. Suddard. 
«Gentlemen: 


Your letter of the 29th inet. received and reted. In view 
‘of the fact that you decline to deliver the 120,000 ibe. of 
Olive O11 which we purchase4t from you according to sample sub- 
‘Mitted ond in line with your confirmation of the 12th, we are 








n * 011 ef « suitable quality on the apen market on the 
basis obtainable and will charge M. L. Barrett & Company 
the difference between the orice we have to pay and the 
at which you sol’ it te us. 
A® soon as the deliverice ara made on the purchases re- 
| to, will render bill secerdingly. 
Yours very truly, 
Armour Seap Yorks, 
By Bdward B®. Martin.* 

























wtel whit of Beolicos Yiivatete ext he Ia Yrenareee 


brebbut oh oD «hh, witsibobay: es if neuen aa 


gee puioes at base eid 4G, ‘tavet ey To. seusoer 
rigs Gignas TG ae wag Gort henaitotyg tite 


yin ao gtodargded wwe meth HMoues bivineie +r obiat’t 
siquan eit Ye py oi? tad of Lavoxrgys tot aw o& tage nee 
ae gacd yes of tesgex of ovasiouwe oof botamwenos ow do bite 
Seog Yer ‘pasioaeld ei tid od? [42% Sem each BER poh of 
as £29 evisd tn gléadiodivarads ws y rg! es el. rg 
te pely mt 32 tances of oidany Ota ott £ 8 
solety woy tedtodw word of olf Diver ham Sian ; pi, bi 
a0 Atiw eocehteoae al ,doaatoxwg oe talratom aa? % 
of? gh to 09 Se aay. of Make taney al 72 teceartw he? Y 
fasooes troy teh yod. ban 
~itae on g2cd doode nate sae tee oved oF bal ad Lh 
-witem eibt sw aroted ayaine Tio asec ares. on aeons ahd tee e 
‘wey uO yiege ef te egetmrbe otfed ot bety ed £ oe de haw 
same. Yard at f enelsouniant se erly Lhte hs geek en ve 
atey yin vaeY 
ey gnok tents... 
emnains m kip wi 


aided, % haat sie Pores i d x ot fe hs 
ly o® baad ga yich @8 gant pete ug’ te aovtes “1s 
marey Hale Sabet fou peed nll batt tending Raid funk ext 
H) * eal Sahel yan wpa oF bigigan’ hag be satan 


a NO petit ene 
* 00 A thors, of 


sone estat odoxw tr ifataie one DARE, i‘ it x si 


\ebtab hart oil 9B it mo bdansta 


vale al .heden baa hovivens. ‘tent “ages. wie 

a ‘te .e¢k 000,084 ode wardted af atilooh way 
wie atqusn of galhuooor wey soth, homed 
win ww MOL ant te mot dood’ 


4 


Counsel for the defendant malatain that the evidence 
Gleariy shows “that the parties did met intend te be bound wnitil 
the formal written contract had been executed." Counsel rely on 
the rule as stated in the cawe of Bl Rene Grecery Co, v. jitovking, 
203 Tll., 494, 501, that although a valid contract aay be made by 
@orresponience, care should always be taken net te construe as an 
agreement Letters whieh the parties intended only a6 a preliminary 
Negotiation; that the question in such eases always is; Did the 
parties “mean to contract by their correspondence, or were they 
@mly settling the terms of am agreement imte which they propane te 
enter after ali ite particulars were adjusted, which wae then to 
be formally drawn up and by which alone they designed to be bound?" 
Tt ie aloo the rule that where the parties have assenteg 
te ali the terme of the contract, the more reference to a future 
@ontract in writing will not negative the existence of a present 
295 Tl. 423, 428; Soott v. Yowher, 227 111. 104, 108. JFurther- 
More, it is a rule of general aceeptance that the contract agreed 


Ohie Sout 





upon ie an obligatory contrast, although it may have been woder- 
stood at the time that thereafter a formal instrument should be 
executed te express the agreement of the parties. Hall +. Hall, 
125 Thi, 95, 101, In the ease of Scott v. Fowler, #97 Thi. 104, 
the court quoted from Bishop on Contracts as follows (p. 108): 


ay "If parties agree on teroe, however precive, ‘aubtect to 

_ the preparation ond aporovel of a formal contract,’ the conou» 
_ fenee of their wille is euspended, and where nothing further is 
_ tone there is no contract. Yet the mere facet that the reduetion 
ef an informal agreement, oral er written, to « formal written 

: » Mag contemplated or stipulated fer does not prevent the 

oe frem taking immediate effect, The question whether it 

: i deer or not depends upon what the parties intended, * 








The orecise question, therefore, to be determined in 
| \ th @nee at bar, is whether the preponderance of the eviderice shows 
t the parties intended that there should not be « binding cone 


perasvan avast dat wid arteebe dauia 0 olyr oft cade wh ot, 




























borgel ive est dads what alsa Sambue toh ext! x02 Leased 
thts soared of oF Sadak sum bth aetixeq edt tact” ewoste «f 
ae yYlet Line 70 * .badaweexe svod bad FaesIaes mere 
aidinode atuanb weenen® ores. ti ‘to enne oad uh, hatodn Me. 
w aban ad wen deatiaes bilaw s tquodttioa bad th, hah ad 
ae SE aurtdonins ae tom vegan 2, od ayant, baweste ran, 4eone bach 
yussioat lene oe OH wchne banned: oakdtag ost a bin, axa n0 0 : 
mie pie ped ayanta nanan sone uk noksanuy, ost? tnd. ¥ 
watt etew 14 Reaohaaqher ten abodd 4 tonutmes of sos 
er onoceng acid sind oat chong hein. st Ye maces nth anblooone n 
ot wwnela aa, sim ite (pbeteuhhe osew ere foe beta sida eh vee 
*Phowsed od at pasa dash yort enodn ido Lew uw bite, . ding 3 


Ddsiadsloi a a onan ter wtam ols stagyanee walt te sigan dh amd . 
seeerny 6 to eaamduine odd evidagen tom tite gata dew wd 


“nea + 
eigos’ oft, at 100 sf 2S weeds 8 ; 
~casiaw’ 805 POL . Ltt #58 sande. at 2008 sane sane 
_bewrys deetsaon walt dais wanntoweue: fererne: ‘io ohert mni 
Saline rnedt eyes Qo ah guest de steertaoe qrosaytise ae , 

ed hiwreda $ sooner du ati knarcgtt tee tawrreds fede ‘euid add 4 
diel st the8 afe tenag aatt te tohavetye af? sertgre at b 


0k it ree aan af zest Ye even ont aT Hoe ae sans : 





go? destdust ,salootg sevewod et so oergs ao hte wri 
axyonag ett A ytewntios Lewie’t 6 Ye: wenn ait Be nelsagere 

‘eh todteu't patadon exestw haw sdabiwceae ab ot « elite: 
aoltearer ofa feds soe't wren” wat 36 a 
net+iax Lestse’t ad ig mente: Law she Lane 
ond tapvete. Fos V9 eh “ye? sedadiet® 20 

ns ene galt aaup fi 
hi Sabohmanae on 


at bemkeret sh od ‘ot perce a 
Pai 

mega: sonsbive td Le Some Tah ARR EA oil 

09 ‘qathats * od tom, ures a 


MC ak ne ome 
ae RP ed AP en 


° 


tract until the forsal written centract was exseuted. ince the 
defendant denies the exiuteance of a contract, the burden of en. 

‘tablishing the fact that the partios did not intend te be bound 

wnti2 a foresl contract was executed, is on the defenctani, 

WALL ot on on Contracts, Wel. 1, seetion 24, p. 37. 

In our opinion the defendant hae failed to vreve thie 
fast by a preponderance of the evidence, Gn the contrary we think 
that the preponderanee of the evidence oleariy shewa that the pare 
thee 414 mot inten’? that there shewld be no kindling contract until 
the ferme’ written contract, referred te in the serressondence, was 
executes. in our opinion the preponderance of the evidenes shows 
that the terme of a complete binding contract had bean agreed upon 
inforasdiy, and that it was the intention of the parties merely 
that these informed terms sheuld be ewhedied in s formal written 
tiiree 

Xt will be observed thet in the defendant's Letter of 
Salary 18th the defendant dece net say that we wil) enter your 
order when the contract which we will send you is axeeuted. The 
defendant otates positively, witheut omy qualification, “we have 
entered your order,” The defendant then states apectfically the 
terns on wate: the order was ontered; and adds that the contreet 
be "these features" will be sent to the plaintiff. It wild 









be moter that the defendant does not say thet any additional fea 
sre will be exbedtied in the sontract., The defendant only gays 
“these features,” nawely the terms agreed wion, will be ome 
edied in the contract to be sent to the plaintiff, As we construe 
Ms lotter ef the defendant of January L2th, it was intended as a 
Lee to the plaintiff that the defendant considered the plaintiff 
ady bound by the terms which had been agreed won ané whieh 
. ated in the defendant's letter; ond that those teres or 

ures" would be embodied in a contrast to be sent to the plain« 


































putt soni jhetevexs Waw Fenton ste Bie faseot ott fit aw 
id te aibirund ade (Pewrtitho 2 ty sonsau tee one as kiee ia 
heed wd OF ‘bad tad Gon DLN un bdeny SHY ouite Hon one antodl 
| + fatgeae"98 ext fe wh bedaven® exw soartuas tastes! 
Eg OR ttektoe | ELOY arena no oil 
pie ovoxg ee feed aah eat dndtine ra ei? wetaiee sie alll cane 
Mkts ow cistiaG® ots 1G jab Pry ot? te venarvobac'sd a 
“a0q ott tent wrote YkIMeLe werent ve bHE Te: " 
Lheaw teatenwe gudbatd ow va bLeroate gae dy aity” medal toa 
vaw ssanebaorner ter edd a2 b Berxoton , Merton edo bow | 
avodia eoneb2r9 ooukst te Conareeh sone ane soin.tee ie an” he 
‘weer hetge weed hak trartane: gabhard ede Lees: o te nin wild 
yiewes saltisy oad 6 ROLE MOT OR ens caw $2 sett hme yh 

tw ad kaw Levene a tk badkbodan ed! bitwaile’ eines s fawtdt ad wvond 
Kepache eS | | | Wi 

te taetot Seabee tee. ade ah sane bewxrende PREHP 

tetey tetas. Alin ow dade yan, fen msob ‘thapasted asa ‘anes’ : 

s8®  chedwoaxe sf wey have Lite ow eohae gowrddew 60d ee ca 
oved ow" ;tobteotthiasp yne dvodthe pelevisiteg wosare tiehaell 
ost ublandehnens eadete nets tantiaetos gat ebro tie peat 
fontIqno a sass whhe baw photstan aan Tedrp wad ioldw “sl 
tLbe ¢1, AVilanietg ai? o¢ dane ed Ltbe Sewredas’s owes itd 
ano aia kd thie gawk tase yam tae apok dmndas teh ate tacts ‘a 
aye vino tmaban'ten AR, fegenmai ont ith iy ments a iy ns | 
me ad tide noe heonya, euros ade ‘cloning “yasudast is 


ier rae 
meranos C hi + ¥eitated sas oe sana ee ao) dpaxsaae vatt bap hry 
a Ae Rn AEA Ae ie 

& ga, hadans at zow tt wok eat Xe ‘Heabuated 98 Te cen . 
er a ee ea c, 
Wid tghate aul batebhaags tasbastes ong ae manana wae pe 
HS AWRY a 
mie bas soae dooms: sod bed fiohuor sated wste, talon eg sooty 
nh sh me HL Aes PC RANG Ua hb Ei 
' 
40 co) sean dasa baa ptestes * Fannie tab wits ak be an 


a Ee OR EMRE IRE. NP eteBhy at 8 tik 


phate Gib 0) tie od 0) dewiaoa » mt Seidesen ad Svar 








The pleintiff's Letter of Janaary 1L°th, vhieh evidently 
@rossed the defendant's Letter of the sams date, stated that “we 
have bought from you" two tanksears ef 3,000 guilons each. The only 
fair inferences from the phrase “we have bought*® de that the plain- 
eiff considered that 14 was bownd ani that the trade was olesed, 
If the defendant hed reeelvad this Letter of the plaintilr of 
Jemnuary 1%th before the defendant wrote the Letter ef January 12th 
Whieh crossed the plaintiff's Lettor, 4t may be that the defendant 
Would have eaid nothing im ite Letter of January 12th in reference 
te a formal contract. Notwithatanding the reference to the formal 
@ontract in the defendant's letter of Janusry 12th, we are of the 
Opinion that the letters of the portios of Jonusry Lath were aul'- 
ficient to bind beth parties mutually by an obligatory contract, 
ahd thet the parties so understood an’ inteméed, The vorrespondence 
féllowing these two letters strenghhone our cinclusion., in ite 
Letter of January 14th the plainticr ures thin language: “We have 
yours of the 12th confirming the trade." In ite lotter of Janyorty 
istn the plaintiff refers te the elive cil "which te have purchased 
Mr you." In ite letter of January 1th the pleintiff sald, “we 
competes the purchase on the bagis of this eanuple." In ites letter 
of January 22nd the defendant uses tie lenguage: “we are still 
hopeful that you may find the last sauple of of1 submitted te you 











ou table for your purpose, wd shell we glad te fill your erder 
on that o11 on She terme indicated, provided you can give ue tie 
ore within the next few days.“ The phrase “om the terms indi- 

* 4id not refer to the fermal contract, for that eoutract had 
y been executed. The parase, whieh will adult of but ome reaeone 
conetruction, meant the terms agreed upon in the letters of 
22th. It +111 thus be seen that the Aefendant recegnized 
. the terme had been agreed upon and thet the defendant did not 


tend that the letters of January 12th should be considered as 






























Vis cia t9 iy Brew AFR i vienna’ ‘te totted tice ode yen ical 3 
aite® ods Reet adm dah eae ead te toated of soennetod ase . 
gine wat 08 amoling 900,8 ‘to exuai tant ows id wort ‘hae 
atthe le on todd as Parigued ovasi ow? senrdty astd won't ‘sonexeta! th 
shoxele sav vot ‘pad dadd bom Banad gue th “tants ‘boxes fenod 
“to Wi toate se we ‘te ‘nosdet a bid how tooad hos ‘as antiob wld 

“dts Bf euewtet ‘to tod def ‘oni otouw tashao tod ‘etd oxoted mani ie 
fanbae ted eda tase od van si t0edtod at rthvada tq oad haednee ity 9. A 
poner tet mh A805 vtaumat to: tosjet one ak aaldton bee. ‘wrmd | i 
knot? esi ee ‘eoanae tor ante gabon nts iwt ox” ‘ deetbaee faa 
at “ro one ow dick veowant ‘te cotoed a tnabiceteb “eae at ‘jou #7 it 
“tee exe wm eta to co himag oar ‘to axsstet ostt sat wi 
“steerdaes: ‘resayt ite 2h A ‘ehtendwa avletag died paid 6@ ay 
sonmsnaquor ios oat soni tak bne hoot wtsh cay ‘on ‘eo Lheae ie Hh daald iy | 
: ean wk weed tau lo ase we ene ttdgierts sisttek ‘at vonoiit with wo . 
ova oe bogairynad  £ift baci Tittatate ead ages wetasceat ‘te 4 ii 
‘iawn te wedded at) x # hank ods “pakentinae “gs acle toe 


benesiarns orsd ow i tae tte ite’ est? w srotoe porriare ng oad i 


HE Se URRY ea 
hay! Ve 





wosto i ‘atl at * elqumn white Ye stead ony ‘3 ‘6 
vise exe on" reyennnet whe ass ‘yaiehoo'tos ay bate’ 
wey ‘a bade Loniee lie to efqoes deal sad bal elt Hoy ‘shut 
xobi9 nay Eiht ot hess, ow teste ol 98 Garett my teh 

eid v8 avty asa FOX bebivere . obets yh} ‘amtad oath be the 3 . 

| «thal sated oid m0” sanustg ent ad wt al eds aan oo 
dos Peacdaon tee ut “Apart soo tesco eal eo cota ‘yb iad af 


7 ode bo ‘tt paiihee ae ot ead 
-n9eaet 80 tied te hha, tite aes balacuas 





hindi im . ay ie Ha - i i 

toa pe dash nia ont fase | ane. ‘sou beans 88 
‘ ig re ee Cee ae 4 te) aid Ae ae mi} Des 
ow ‘deuebznnve ot > tone aris eran, te wrestet oath, destt 

; PM gal Sp aR BS Pinan: Pet ne! a MS ATS alin idl Lalla as 


1 


only preliminary negotiations, and that there should be me binds 


fing contract witil « formal centract wae executed. 
Cournees) fer the defendant ecphasize the importance 


of the following statement contzined in the plaintiff's Letter 

of Jenuary 14th; “you fom't mention seme of the features in the 
Reheat as noted in ovr confirmation of the 12th, but we preaume 
full details Will be mentioned in final contraet which you sny 
Will be cent to us vory aoon,* Counsel for the defondant maintain 
thet this lenguege of the plaintiff elearly indicates that the 
plaintisr recognised that there shoul’ be no binding sontraet until 
the formal written vontract was executed. When taken in connec 
ton with all of the correspondences, we think that the language 
Pearonsably Pill not benr the intersretation that counsel cive te 
tt. Furthercsere, we think that when considered independently ef 
‘the other ecorresondence the Language ie not auseeptible of the 
Mpatruct ion that counsel fer the defendant place on it. Tt wil} 
we hoted that Just preeeding this language the plaint4sf has etated, 


re Rave yours ef the 18th confirming the trade which we made with 
zou." Im other words, when the plaintiff uses the phrase, “the 


trade whieh we have mate," it is evident that the plaintiff cone 
















be that the trade was elosed. Moreover, in the Language ree 
£06 on by counsel for the defendant it whll be ebserved that tha 
Hater refers te two contracts, + "the contract as noted in our 
eRfirmation ef the 12th," and the “final contract" that the dee 

a iy was to send to the plaintiff, im referring te the contract 
. “Leth ‘the plaintirr expresely aimites that there was a con- 
ract elready in existence, indeyentently of the final contract 

) the defendant wae to mend; end there in nothing im the lane 
age in contreversy in the letter of Jonuary 14th which would 

nt ty the inference that the plaintiff did net consider the cene 
c ‘Fererre te af the contract of Jnnuary 12th as a binding 


If the plaintiff had not regarded itself as bound hy 






























ebuild om.ed, tives e¢ede toads haw Atte tat toges b cenarigrt 
vine ae ve ehetyaona saw toatdaes fagret » Lhe me) doartioe: 
.y Pomartieogat oft . om haa siqg ne Fanbhsiates ost cyt, Comomed 
,e teteed aYahtataka we mt benbatwen. torendets.sabbhtin. tah 
ea} och estytoet of to save. seldaom o moh. woy®: TARE. ¢ % 





ocueety ov tut .aeoS edd. te weldartiitges, tee ab heaton, Re. 
qe wey catie feanenoe fealt ml banetingm od, dite aktatoh 
aiatates tnasce teh ont aot Lonard." moon wy ay OF tana od, 
fihd felt aeteo tha ylvaele Vittatata off te agemgaet pte) tad 
Ligau toatines yathatd om.ed hAworln pundd dent bowiayovet, dakad 
AG ENGD gt feat eee abo tquent gay deatiaoe, aety Aaw $ ‘ 
_ @aeygoet ant tedt Mahe. ow Ronehancagr tag os¢ te Lis, thine v0} 

ot ayia Lonmuos tadt moliatorerp inl 9st toed tom Like vsdody 
_ 3e ghtoatasqedst bowed temos aoaly tacit Matas oy ororedine 
aie la ofst ¢quqeus tos wh eyanniat od7 eonehagqnoyeas 4 
Ake #t oth no peek Osta baem teh eat set, fearon ua ; 





i it 


“008 yitdmtale oat tant taeblve ot " oben meiee sie vi 
“9% : ogaugned oid at os “stanate aow ohand ett east 
Pa 


—o. ak baton ae tustanog oatg “ vatsertase oe of 
“0 oslt basis Mtoactnce Anan ott Ia baat ont te 


“teonttse tant avid ae ¢tbconan cabad vom taxe, a 
gs ind ME BRD RGA 
sual eshi a withisson ‘ea ests ‘han, phnoa ot ‘nae da anh rete sid 


bivow ito ket aioe ‘exam’ to totgoe ons at opto 
Me a le Cre 
“00 ry) ‘aabionoo von ih Tebsalate bad’ done “aoranent tnd ee 
Babich cgabnh Mah aie ita ‘ 

“fguitnaa a 96 98 cranao’ r “feachans aad ae of bo 


‘yi Steaua Ne Pir tors 
ue hawod aa ‘YLeath Rebragex Jom bast Vubd ate eda 


the contract designated «xs the contract of January 12th and had 
deemed the “features" that the defendant failed to mention of such 
importance as to necessitate another contract, it is probable that 
the plaintiff would nave stated explicitly in the letter of January 
14th that since the defeniant failed to mention "the features” the 
Plaintiff was releseed from the contract of Tenuary 12th, and that 
the negotiations would be re-opened penting the reeeint of the final 
gontract. Apparently, however, the plaintiff did met cenelder the 
@aitted features of sufficient importance to require further nego- 
tiatione, an4 seened willing to abide by the contract of January 
12th, whether the formal contract contained "the features” or not. 
Counsel fer the defendant further ccutend that smong 
the dealers in olive cil which is imported from abroad, a general 
custom existed of executing formal contracts in all transactions 
fer the sale of the ofl; and eounsel argue that in view of this 
cust om it is a reseonable preaumption that the parties did not in« 
tend that there should be « binding contract umtil the fermal con- 
tract Was executed. 
a . the only evidence of euch « custom wae the testimony 
aay é 
of Suddard, whe testified on behalf of the defendant. His testi- 
@eny, which was very brief, is ce follows: 

"Q. Are you sequainted with the gustom of the dealers in 
ve ofl for importere from abrenad vith resnect te the exeew- 
tien hg Reema written contract covering sales made by them? 

aa: &. tT ask you if yeu are sequainted with that. Ie that a 
- ong custom in the trade? Ie there or ie there not a zeneral 
 @ im the trade concerning such execution? 

Ye Objection made an? overeruled. 

: 4 A. There is. 

Q. What ie the general custom, Wr. Suddard? 

A. The general custoe iv to prepare and submit fer signa. 


‘ture a formal contract, particularly im imported coo¢e, which 
‘Provides for mony things, risk of nen, export duties «-,* 







The rule in regerd to the preef of « custom in reference 
which a contract has bean executed, is stated in the cane of, 
ei. 25 ILL. 517, as follews (p. 521): 























~ hal Bete eS — te teats, emt, baseparie 


Vi . | 
ay 


Pewt bine pide rCeehsata te toarton oat hott roel wi 
tant? wed’ Ye tetves add warbhiwe irate Wie viet pesgene 


; oobi gated t wie oe me ne ty oan d nh Be Perbl e' wasnt 
Spee to tdarénes sf ca ebive oF gatriw’ ‘Veones" be aval : | 
Fon Xs “nerudent sie” heWhedhos ‘tomnteme ‘hak a Cid Sule re 
givens denis bnotigas aacident shahve'tod of? Yor’ Lennted | 
iwsnsiey a sheer sort ‘nedvognh’ & wk sie tite’ £ ry evice ‘dd my 
“emehesaanatd tte at esoactnen toate’ andtuoene’ te | he as ai 


) PAS agi hy, 
“whale ‘to woly ry badd ‘supe ‘kouaseg ome Hite ‘ode te tae end 


sth be ; 


eae 
ont ton f ke aolome odo ren no Lsqrooene ‘eftaneseos a ry cy 
~ fs i wl err 
“n108 aso? ot Lida sonrsnos ampbaas ot ‘bhvents mat te . 
; rd ee es Ml Ldn i) 


ye Es 


~ttase om, “sanenawted aad te ‘niet ny, ‘bepieves pone 
“tape? HM, nt s tela, qtey, war So late. 


Q ae wrocass walt te. entaws: gat cttw REIAE SD He's : 
agenda eat od dhedean Hite Becta matt wife) 
ome st Xd shew ageing gabreven . toatinag wrens us r wolt 
a tant oft stadt? age Satitlagwas ota Rs ant 
“eteim » ton weet al ha eeane ans onees Yue { ono £ 
ante bcc hh eerie re as eae 


Stu Thrsbtwe oh eek totoneg cand ab ts 
aust ie 19% tlovue sorepnt ant Model Fie seas 


‘do Ley, wioay ‘beat 
Mie~ ae tte: Digit Moti ae “sank vane 


‘* 


“The proper offiee of a eustem or usage in business ie te 
 gacertain and explain the intent ef the parties, and it cannet 
be in opposition to any principle of general policy, nor ine 
gonsistent with the terms of the agreemmt between the par~ 
ties, or ageainst the establigned principles of law, oe Ban 

sides all, it must be generally known and ¢atablished, and se 
well settled an’ #2 wniformly acte’ upon ae to reise a fair 
presusption that it waa knows te both contracting parties, and 

that they eentracte4 in reference to it, md in conformity 
with it. 


To that sage effect are the following camer: Cleveland, 
a innati, Chicago & St. Louis Ry. Co. v. Jenkins, 174 Til. 3e8, 
“407; Wiscn ve Bawan, > Thl. 493; Jones v. Vickers, 173 Jil. App. 
4a, 494, 485; Klaub ¥, Yokoun, 16 121. app. 434, 438, 430; Supe 
la t » 7 T1l, App. 228, 232; Sweet v. Leach, 6 I11, App. 
‘aa, a4. 


In our opinion the tesatimeny of Suddard wae whelly 


















Tieilent to establish the custom contended fax by seunsel for 
he defendant. Our gonelusion is net beaed of the fact that the 
' % attempted te prove the custom by one witness alone, 

y ya the courts of Dilinois have held that a oustem cannot be 
. by a single witness. Eisuell v. Ryan, supra, (p. 822); 

Lv. Oni onge & Rorthwestern Ry, €9., 183 112, Apr. 169, 193; 
Cerrei2, 293 121, App. 309, 318; Adam Groth & Co, v. Goss 
i, 932 TLL. Apr. 480, 454, In other furisdietions, however, 
has been held that one witnese ie eufficient, Vail v. Riee, 3 
H. Y. (2 Berton) 155, 158; Rorineon vy. wmited States, 15 Wall (1.5,) 
q , 366; Jonen v. Hoey, 178 kanes. S3R, 587; in re Eeiste of Jones, 
j 41 Te, 615, 619; Penland vy. Ingle, 138 8. C. 456, 457; Partriage vy. 
SRESYtR, 99 Alo. 200, 205; Southwest Virginis wh Co. v. Chase 
‘Va. 60, 57; 2 Wignore, vee. 2055, p. 2742 (et ed.); 17 Corpue 









62% & 





®, Sec, $2, Pp. 524, Our conclusion is based on the fact that 


- knewn and well settled and se wuiformiy acted upon as te 
‘S fair preswmption that it was known to both contracting 


ok md that they contracted in reference to it and in confornit; 

































os «2 ceeclenwd of eget to werene co te ent the seqond eH hi 
# iti io 2 haw ,anteaeg oy te daetat od? aie lexe bos oletioons © 
Ome ton yokloy Lapin Yo wey tonira yaa bd meted ‘at ed : 
~a0q 943 asawied ¢mmoatys eft Lo eset add sy hw dance lon 
' oh mee wel to mtg honing tele ids soe' wid aemke ge tg Ow 
on bem ,bodeliiatas bas omaad yiiersaey of taum 32 -tta meds 
“tbat welet of we mag ator yieerotiay ow haw by [eer 
‘bom ,soifteq waitoantiaen dtod a swoak aaw th dang aot S$ ernre 
ae  ieiearieiatela mt tite (OL oF enero lon ne he teaernes 4 ree ed 


wie Fae ie 


shaiere 62 s3eae0 gabeottor ‘ent ats. teats onae te ot 
(98 £12 are ramuaeeh 22400 BSE OS, 22, Ranga 

on a) Bes sexetott Hee, Nts 8. Sm ye 
“hd, ie fF fr a Gh tik OL, song damit 5% 
0h LSE? Signed aX toaye jABU 1888. ah. fe ans 


ed f ’ / le eu 
Pe eT A WAN 





‘y Av Pet eae ¢ 
ios 9 new y baabbas to a wouiteet edt wolatge we ial 


na a wee ey 


“tw 8 Jonaxoo w <0? bobasduce ‘aio t08 one sa Lisasay, 


Mea | var 


out Sout ton, euit to amend steel ah dafsuioase tH, . 


i" iP de So re “ 


‘yonade sews te oie ed aoseso ods ovore: of ‘betonttn 


Reap a Ae 


of soni torneo * sass Adeal vad bom 29 aden ea 
(esa a) wae meet? bee Lyte 

perg eis oA fil fOL ,.89 .vh ote ten wieto) 
ance .v 00 5 MtoeD meha pee , ‘Whe “nek ay 
,tarvowod janoldothe tert codga AT Mk ORB .omk tet eee | 
@ .pedtl ww hav odie ko kee ek obamt hw it swntd” hee aad 
(8-4) aie te Rega am pantdos biti 
ah, (898 toa sna eer, 














: | oe > 
asgred TL iC be fet) cos “ “8008 98, ornare oC 0 


sant , teat! ony he bone: at: morserigoe, we tel ser 8 
OK eye pRYEIN?! 


shore watbiio "ane acane reinstd woah? tia’ aogh. btahowd Lo yoowss 
gana lo halve ahmed eat aaah oh, bebaesance omg sat 











ebhowotwon at bus $2 of iui at pep yout rau pais eotts 


14 


with it. 

Over the objection of the plaintiff the court admitted 
evidence offered by the defendant concerning the mistake thet was 
made by the defendant as to the sample of of3 submitted to the 


plaintifr, 


Gounsel for the defendant in their brie! atate the 
purpose for which the evidence wae introduced an Sollows; 


"The deferidant has at no time in thie action urged the 
matter of this mistake as a defense to the action under that 
head of the law. The evidence was offered for the purpose of 
showing that the sample subsitied te Armour 4 Gompany by lir. 
Weinshenk on January 4, 1924, was net in fact olive of] known 
te the trade as ‘commercial olive o11 denatured and neutralized 
with acidity not exeeeding two per cent,' but rather o11 known 
as ‘pure commercial olive oil with secidity net exceeding five 
per cent;' that i, L. Barrett & Company subsitted said sauple 

of elive o11 woon January 4, 1924, honestly, whether negligently 
or not, believing thie oil to have been olive o11 of the former 
description and so believed it to be during ali dealings and 
negotiations down to the discevery of the minteke made by lr. 
Weinshenk Jonuary 15, 1994; that Armour 4 Company knew the same 
Sample to be ‘pure commercial olive of1 with seidity not to ex- 
ceed five per cent.' This being true throughout all the deale 
-inge here in controversy, there had been no meeting of the minds 
upen the very subject matter of the contract, the one dealing 
With respect te olive oil deseribed se ‘eomeercial olive oil 
denatured and neutralised with acidity net to exeeed two per 
cent,’ the other dealing with reepeet te a ‘pure commercial 
Olive of1 with acidity net te exceed five per cent.' Gueh being 
the case, it is elementary no contract was coneummated,” 


There is no evidence whatever that at the tine that 
the plaintiff contracted for the ourekase of the cil, the plaintiff 
knew that the defendant had made a wietake in the eumple of the 
ot, Asouming, therefore, fer the wake of argument, that the evi~ 
dence introduced by the defendant im regard to the mistake made by 
the defendant wae admissible, the evidence does net justify the 








@¢ contended for by counee] for the defendant, that “there 
he been no meeting of the minde upon the very subject matter of 
he contract.” 
| tm regard to the contention of counsel fer the 4efend- 


1% that there was no memorandym in writing sufficient to satisfy 


hat Section of the Unifor= Sales Act known ap the Statute of 


a ee et 


tan as 







“wa en" ee teabiew’ tke to y Teas at oF co howto at 6 


yr ss ra eer a : ne 


Psy odnde kd hed ‘thot nl timo as al rot tonne 
tawes tot aa heowbow at sew somblve ont ao tbe Peng 
‘eatt® ' 


te th 
aay Lon 
pong ; 



























act bogey no ites aiae “ne uid ‘on ‘he aan spb8'teb 

. sed eho Taine sl Od QweeTOh @ en 
Xo srogtwg aad ‘Tat hezaYto saw ponablive ea We 
ed Be Ystogmed & tweed of best Lodge ‘eae 
owen fo avilo font at von saw ,dReL S ‘erty oa 
hoxifewtuen Sat tevusges@h Lho orbio ieloteusea! ne oh 
mreak tle spdtex ted ',Joen tow owt gaibeooxe toa rp Hy 


avit gnlbeeexs fon qiiblea dtiw Lhe evilte falotemage 6 
eiquar bles bets kofve yangand A sortall .f .M sads Frog 184 





eee rl i 
oh cg 


pr binge oy gee tra a? began tage Ltn fie ie a 
Tarek ait To Lho sy od ® r 5 
as syxttohh tip gurkun sit th sivesiog ob yewsy 


d obsm gintaln edt ‘e : sexe om th 3. gig ob aasiandoe OOS 
er veut yoacmed & “tomtaA Saclt raoee el einen’ roe 7 
“xe of dom ytibliog dtiw Lfo eviia fadnzesiaas omg’. od at 
efowh e413 [La tuotnwexd? quad anied lat toes «8 seston ps 
shate alt ‘te anifoew am mood bat oandé, val tien 
gallash ato aft ,foexsaeo act To aiken 
fio eile faloveummo'.as bedixsoeh Lio — coe pe 
yo ore heooxe fi gee tena spit mihi 
Psermee, ewe # oF. dooqacs saat og 
Baler cioesh '.#neo teq ovlt Besoke of Yon Sant Bloa aly a: 
0 *, betecmuango kaw Poant ey em Yes oo mmfe ad th ten a 
Sod! gahd off dm fea? aevedosiv sonphive om of ose? 
Tre wdeke evid ,Lho ose To seadwriree orld CO? hoToantaed’ witemtety 
“ptt: MO PLqmaw ont md eededa a phon Sat # meine eR’ Oxy) taate im | 
_mdee) om? tet (toomm te Ve exes ext vet (ecateced’d pine a 
gd phew aderika ed? of huayew at Prbhanteb eis) et bnseborted sy 
(\) Rat 'teteek oa eoeh wnamhive ont jettles tube ase dail a 
reds" fac ,whartoh oe aot seacareo” yo 481 hedkodaoa’ wend tet | 
Xe abdten tookdve ror oat moqw ebutit oie Le yattoom oa ano 


* heen, We * el Y 
Pea Sama ee Nia aS Bie i ib 5) ee 
* 





(ont Bete Pr 
aha toh sHt aot Lediwen Ye hdd nade bad od” banget a 7 


bY bin fi i WR es rie og 
“yahran o¢ td to LT tee weit dew ‘at ‘iat pa ay at sa vai ms 





Ra LenS e bs eh eae 
ne Adudad® otf ad awoatt ged ‘adhe gs Ws skeen" 
ot suomi oh betqaeioecen ya i (nl woke 


i ae 










ude, it may be said that from the views we have already ex 

er on the question whether the parties entered inte en nbiie 

t ry contract by their lettere, it fellows thet in eur epinien 

er was a sufficient memorandum in writing vithin the meaning 

the Statute of Frauds. 

if Por the reasone state’, the Judgment of the trial 

is reversed, with « finding of facts; and Judiement will be 

te in this court in fever of the plaintiff in the swa of 
236. 


JUOGHENT REVERSED YITM Pinos OF Facts 
AND JYDOGURENT RETENED KERB. 


hy, P. Jom ond Matchett, J,, concur. 





De 
he 
















” ogi ee hora poi ont sate. eho “a 
bepiiidh . a tet ta thy aennsitt hesit 





ag Gln My 5 a Rieahy eM 


tase 4 ott 2 o tm hah oneal 


Woe At 8 Ae 


ag SOY ke has. jason 9 








oe ak 






baal ah afk, eae cena 


ae io pi da eee! 





i Se a. pe pies @ 
aw PPh See ee Wath 5 eae ea kG hk: Neh Ove 
oe oe Sew yee Pw hae ie awe Aha pe asin, aay ee. i * 
ely Sie Te meee cs Ae Bae tee 
Pe Nes i ea a OOM ga ae a8 Pinteng ah ee 
Sete g ROE wake oe any yoy ae eli Way, Oe 
hah Hon Lin works at hen eae a 
* gays a , 4 % 2 ! 





































ee Renney tere 
jet & a Sy as Rh MUR i" A 





pecs Re Vn My Ma ¥ se TRY, Bad 
; 
4 HDrgse avian ta ete Ui apa 
SP pki ie hee Nene oe ht 


big ge Eth: RE) Ses Te HORE RS ee, lal scree 
UPd he: quit Shh aa oe) He ee ee ae egy yal 
See Wah ‘Bin arn? a BN a ote hah RR i cian ty ag vie eslh 


aioe ot ek: i one Oe TTT, eke Peter, oie . 















a UH Sit sea Ae aR, MmeN A geal A Ma a ae eee! yt ssivhaude 
ee ee ae ae eet a ak at a 2 yi i ae ois ne e 
ee Ste 4 re ee ha ee 2k a MBE A” May’ “pi ‘bono d meal: 
hie yet ae emt tore Reg ih! wee BAER eth ery Loum vit ona 


Sx 


wiimetink ae veh Lewteiieh Reh aiZd is 


va wee ROY sil hth ig ar ‘nitabt i we te 


Wa 


\ 





ies li 
Fy a iat ena ia a 





84 - 32177 FINDING OF Facrs, 












We find as facte that the plaintiff and the deren dant 
i into © written contract whereby the defendant agreed to 
ané deliver to the plaintiff 16,000 galione of olive oil 

ir February, 1924, and March, 1924, shipments from Spain at 

4 per galion f. o. b. Mew York, terms net eash agninet bill 
lading; that the defendant wrongfully refueed te deliver any 
f the e411; that the plaintiff purchased 611 in the open market 
 repinee the of1 sold to it by the defendant; that the plaine 
fi Was obliged to pay for the ofl purchased in the open market 
62 1.60 in excess of the amount whioh the plaintiff would have 
‘ if the defendant had performed its contract, 








Dest a PAM ae OG A ae TNs ee Tt ai Be i ea e : 
RA mer ay Uo PRN I Ue Sn BY AP ae eA fA Ban ee ie ey a iia Hy Wh sb ii 


‘7 Proae ee Omree 2 RR RS 


sep voted eet, baw wnentase | ot ast “agen ae 5 Dad ov 
bey ee “hin at Myaey 
6d hoor tnabae'tos est fe x9 te roarsnog Basten a otal 


jks kaki % 








‘ it ey ant, ; eoaild ease £ sdagatt & bas “er 


Mgt 


£hte fentogs hang ton hy chi vine wot d oe A “mest m : 
yoe eerifah of boewter widetaaotw Prabaered ‘ault tand 4 
tates seq9 ane, at Ate Ponateseg Titatale ent sat a 
«niete edt pai {Pansies ot ‘we eh of bLoa flo alt eae 
deuxem wage ott at hoseadouwe fie ea bladed yaa oe boatido: we 
aved hisgow Vitdelaty ome we dde! tawome wate te mae 9 


-toartane at bearolieg bad tenbentet nas ‘th 





AEN nu 


ite Me : 





DER Tene ETE Pore ao TINUE en ae A) eae IRMA PA ROL LAD Ps Encl yay OT DU RSP alk nen OTP 


68 ~ 31192 


BICHOLAS BOXER, 

Defendant in Error, 
ERROR TO CIRCUIT count 
ve, 


MARY MOSER, CHARLES REINHARDT 


and SLIZABETH REINHARDT, 
Plaintiffe in “rror, 


OF COOK COmITT. 


a 


ER, JUSTICE JOUNSTOR MULIVERED THE OPINION OF THR ComRT, 


This is a writ of errer prosecuted by Mary Moser, 
Charles Reinhardt and hie wife, Lisabeth Kelnherdt, the defond- 
mits, in a suit in equity brought by Hicholas Moser, the comp) ain- 
ant, ageinet the defendants. Thies writ of error is consolidated 
for hearing with an appeal, He. 31500, prosecuted by Charles Kein- 
hharat and his wife, in the same euit in wheich Aicholas Moser was 
‘the complainant. 

The bill of complaint alleges that the compl sinant 
and the sdtenaunt Mary Koser were married May 26, 19%, and lived 
together until sbout September 24, 1921, when Mary Mover deserted 
a that subsequently, shout September 27, 1992, she filed o 
pina of 4ivoree againet the complainant; that as a consideration 
of the marrisge it was expresely agreed that the compl ainont 
“should have a one-half interest in the atock of morchandige, 











ktures, goed will and prefite in a grecery store and delicatessen 
7 a eted by Mary Moser; that the business had been purchased fer 
out $2000 and wae located at Ho. 8402 South Ashiand avenue, & 
reet in Chicago, Tllinois; that prior to the purchase ef the 

Md business Mery Moser had conducted a grocery store and 
Aieatessen at Leflin and Sind streets in Chicago; that on 
Posseant on of end buciness at No, $402 South Ashland 

re ne » Mary Moser ewes her father pent $700 whieh she had 


le pte 



























ae MERON Baw 
tera a tana 
TIO LTNVQKEG OT MoRA- f° | eae 


~bew'teh tudt <tivabitat net ithodnnd £8 «thw wie view! eal 
“ite rtemoe wet THeOi ana tt cd dtgvord vi tups ‘ad Viws's a i 
sedhitronwed: ef none te + aw eke “ nanebao teh ont yi - “a : 
antes worst of hotioeaex ,008LE vot ,Leegan he iis tw gataandd % 
enw sere ea kedn 2% ito Ralw’ ma thane ovige ‘ous al ote We ro i ws 
? tua Sa 4 
“ tawate iqaos ad tad eoye ite nko Lavion te Lhe ont , | 
avis fy exe ORBL 4 So yak be trtem one waaM b Soa tnataoren 4 
totumeah to ot yea ne ste thet , ae zoddren tant two ftom 
@ LORRY oats fer , ve rodaed que teste “eetanupendue bones 
aoltazeh te age m so dass 1 Hire Lae Lomo ent tentoge aovowts to 
dae i inion fetal dasit dowrys keene raw 7) onote tam aft a 
Sokhaatorem to tooin ode at ‘faotedak 7 Laon & erat on 
moanedeo ties hae wrens Prue » wh ad tong ‘hase tbe 903 | e 
<9? boaacto'sig amed fel ewanlend eit todd itenom went ie | 
a oun bime Selma dda ee Gone all te boamook ow goose 
std Lo saaciorre edt of tobtq sods ‘yatomigst soueo ty mt o 

bee etate Ytenoty » bedowbaoo ‘bel xoeet yuit one 

no tact oyna tt a ageutae base me ‘aboted tos 

DaeLHea Mnee LORE «oH te canstows one {to mo nomen 


bat erin io ste ore sods todtar oH bow 


Be Be hie a 


one te noite snaderirg wate to oe an beau od 08 ate an 


business which she had conducted at Laflin and Sind streets; that 
prier to his morriage to Mary Moser the complainant hed given her 
approximately $650, and that about the date of the marriage he gave 
her $50 additional; that the $700 wae given to her in trust with the 
agreement that it was te be invested in the buginess at Ho, 5402 
Seuth Ashland evenue, which was to be Jointly owned and conducted 
by Mary Moser and the complainant; that from the marriage until 
@bout Aucst 26, 1920, the complainant gave Mary Moser sums of 
money amounting approximately to 9496, lese living expenses, which 
Were deducted; that these sume were given te Mary Moser by the 
@emplninant in trust, with the agreement that they were te be ine 
vested in the business confucted at Ne, 53402 Bouth Ashland avenue, 
Which was jointly owned by the complainant and Mary Moser; that | 
Shout August 26, 1920, the compisinant quit hie cecupation, which 
Was that of a baker, and went to work in the store at Ho. 8402 
South Ashland avenue, and gave all of his time and services to the 
Business; that at the time he wae making $40 o week as o baker; that 
he continued te work in the store at #9, 6402 South Ashlend avenve 
wntil he was forcibly ejected under a writ ef injunction; that 
through the efforts of the complainant the business was greatly 
imerensed and sleo the mount of stock and merchandise; that the 
Met profits of the business amounted to abeut $100 te $150 a week, 
all of which, except small eume for actual necessities, were taken 
Poerernion of by Mery Mover; that on the date that the compl oinant 
was ejeetet, the business with the steck was reasonably worth 
‘$2000 and that it ie now worth $1560; that Mary Moser deporited all 
of the profits of the business in various banks, some of the de- 
Posite being made in her married name and some in her name bet'ore 







f Marriage te the complainant, and some in the name of her child 
fomser marriage; that Mary Moser now holds unlowfully large 
ef money in which the complainant claims on interest, and fer 


z 


hy 


\ 





















he be 
i, We ee 
a ee 


dant potworte bat! bas abltad de bedtoehnoe beet ode de ldw sani: ' 

ten cwriy be focnlelepwo el? toeod vial ] oad tent cl OF 

oven od epelrtam odd ‘te eteh etd swords Sask Base oad ylodamds 

ent avin Cerxt af vor of nev ly saw eore. ond darts ttenot3tDhe ba “ 

ROMG .oH de eeominad of? ak heteavat og. ty a ew a 
betourbmos hae honwa vitalet od of naw xo lew eo nadine 

these oye baton as? mpa't dadt pooentelawoo oft baa toned van 

to aie towne yee ony Peoato Cqatew off (Ot (Oe Feed ® 

she Refer seanne ges anivlt sant yO0bE of Vie tankaoragn pak tonrome 

esa ww won Gil ye we anv otew. anne ened taut Dy ohh 

ati ad of eta wast? teuit #nemw ergs ort Hit bw anued ak tran F 

peicihey btn kel tae od SNR sok de begoahaen  aavatent oud a 

tat jens old err dashes faim athe, fquoe edit ww heawe catatet, 

ci habe He ltaqusoo eka tug tant Lge este ,oeee oe sauasd , 

esa 0% ga exote asld ah dtow of teew bao toed a ‘te ‘dashe oi 

edt of asolytos Pon out? etd te Lie aveg see suite aa ddaa. ' 

Pacis premad a 8s soow a ons galas aa out outs ent te tons saad 

comet ver hive Laisa Assos LOS 0 te ‘exote ait ah snow of ‘sown 


gusts po dso rusted ‘te ie ‘hod ar hososte eidtowe® saw ont 


r iy 


teow aes man mbied oats dun ms Lqinno add te aszorts ‘at 


ss ae 


ett tads ‘yen Thaaioweat betes stooge te teem ‘one onie ham 
tind ore yanks hnwoden Lontna ro't aur Lan senexe fates 


Ny bin at 


ih acht ‘e ovata | waned euoltey at wsentan aa: ‘so ao 
Bea) ae "gal Wine ay i 
oO haul reac “inal ooh ou08. baw onas + he brane teal one at ota Pri 





eh sai LL 


which Mary Morer refuses to seecunt, 

That om January 10, 1992, Mory Mover ¢laniesed the 
diverce suit which she hed brought agsinat the complainant, and 
on the same date gold the businers at S402 South Ashlan4? avenue 
te the defendants Charles and “liszsbeth Reinhardt for an elieged 
@oneideration of $800; that the Kelshardts ere holding possession 
and claiming ownership of the business, knowing the facts and 
@ireumstances regarding the ourchase of the businesa by the come 
Plsinant and Mary Moser; that at the time of the sale the come 
Plainant was possessed of a one-helf interest in the business ae 
owner; that the sale was Fraudvlent in equity ond vold; that Kary 
Moser had no lawful right te sell or dicpose of the tusinesa; that 
Mary Koser alone received the beneTita of the gale and that the 
sale was a fraud om the nart of 211 of the defendante as ageinet 
the complainent; that by reason ef the large omount of partnership 
funds approximately #rise converted to her ane by Bary Moser, te- 
gether with the value of the business, ogtimated at $2000, the 
eomplainant Claims that on a true ond just aceourting he will be 
entities te the exclusive evnership and peexension of the busi- 


The eomplainant prayed fer an injunction without netice 
o bons restraining the Keinhardte from seliing er disposing of the 











98 and also asked for tne appcintment ef « receiver, 

The complainant aleo prayed that we accounting be had 
| t of the partnership bueinese; that the partnership between 
| and Mary Moser be dissolved; that the sale to the Reinhardts be 
to be fraudulent and void; that the compiainant be declared 
the sole owner of the partnership business; that the defendants 
reed to pay the complainant what, if anything, should appear te 
him on an accounting; that the complainant ts ready and willie 
offers to pay the defrndants what; if anything, shall appear 























, etagonaa of esa tes, con olk nai ti 
odd Dans tam ds reaall peel SNL OL yeeuAey ag tant | r, | 
be ,troadetqaes off, Qonkega , Atanas he eat Hoty, tion 
auneta Ena dsind deyek SOR dix enentend ont bLoa efah sape 

ego thie an t0'h. Serortiates! sitederii® Ban inn Seca 080 ehaaeahenn 
 Cekercoasog arlkind ose adpiainlel ocd gamd (0088 te gobs 
Dm ataet war yabwem .gniataud eh te aheereswo. boi ke | 
~ten ait yd aesalend acd che aeedetie off gakbee get eoonnd owe | 
amoe eat oiee edd te ants ad? ge tact prose yw peed | 

ea nassiond ait at daovedal “ifecd~omen tn hoenensed aawit nu 
qted Gould phhov haw yokupe ah Sam torhuwet mae mbem welt dese en . 
tale qesediand eff Xo eceqeth te Lem of aofgit uted om iad om 
ett Jasit ban o£09 off Le ot Roasd molt hevtoney male & Dom x 
fealege aa adushavteh eu lo fi 3e deem aot mo heat? « sew 
qidaceatied ‘be foros opal 98h lo nommet ue ten? uae 
wed tone ae et ey ted 92 bedrewome ores Undomteataan 
yy oe orga  O0GG8 Se bodaati ae ree mtond eff to ontat edt righe 
of Lhiw act gadtoreoon tant bar out 9 mo tad aeleto tncnke tam 
~kapd oid ‘10 motacenoag has qbinroawe avtentens, ait ot hese 

@o Lavy stares ew aeliewmtal aa so) beget dmeatakamae om, “en onal 
eat Yo griwoqe th te pobiten. swtt athtadntod ant Babatersaee ; 
torlenet » Te tue mteggn gat RO, porias wea a ee 

pad od giuakd apovem te: aves beyeng oath snnn iene one, 
mawvied ghivioutiag wild tad? ponoakend qidemond 
ad adbtoindad edt vb ofee oct tude phevheeadh od on oi exit 

| petalesb ed tnontsquon rit dove qhtew hae ta Listers od Of 
Biuabaetes od dade qoesatnes Gllwreciteg odd 26 ‘omen Low * 
of sonata: biworin ypaisttyne ‘is yade tnnacta Leis ste 


4 


| te be due them on an accounting. 
| Service of summons wae obtained on the Reirhardts, but 
Vary Moser wae not found. 

On January 78, 1922, the Chancellor granted an infunee 
tiem against the Reinhardte without meotice on( without bend in age 
Gordance with the prayer of the bill; and appointed » reasiver, On 
| January 31, i922, the Reifharate Pilea a petition praying that the 
| Safumction be dissolved and that the order appointing the receiver 
| be vacoted. The Chaneslior vacated the order appolsting the ree 
| cotver upon the Reinhardts filing an indemnifying bond. 

The Heinhardte flied an anawer to the oomplainunt 's 

| baba, in which they denied si) of the material allegations of the 
| BhL1, with the exeeption of the marriage of the complainant, Mary 
Koser; and alleged thet they were the true and lawful ceners ef the 

| business, On becenber 16, 1922, Kary Moser entered her appearance. 
On December 18, 1922, the cavse was referred to a Master te ascer- 


tain the interest, if any, of the eooplainant in the business; amd 


to Aetermine whether the Relnhet4ts had knowledme of suet interest, 
| if any, at the time that they purchased the business. 

| On Decenher 19, i992, Wary Moeer filed an snewer to the 
| viii, in which she admitted that she and the complainant had been 
married and lived together, aa alleged im the bill; ad@edtted she 
had owned the business at Laflin od S2nd streets; alleged that the 
business at Ko. 5402 South ashland avenue was purehased with her own 





money end was owned sclely by her; alleged that the sale to the 








8 Was valid; denied all of the other material allegations 
bill. 
All of the defendants filed amendments te their an- 
were, pleading the Statute of Frauds, Sections 8 und 9 of the 
: end Wife act, and sections 4 and § of the Uniferm Sales act. 


ss Om Tune 30, 1924, the Chancellor found that a partner- 


sted between the complainant and Mary Roser; found all of 













a amass e age ies ne ait 9, severe eat sate M 
ott tod? autyery soltivog » het), ik eves ; 25804, oF.) “ 
ravieoes alt gaiinionen tohan edt aadt has hevtometh od mots 

not oct gale dbouge thre oe hesapay, wad, 

omtdamate dane oth. of MOwReR ap, net a Hs 


eda ta ereamo cia ha tt nee sa Anetta 
moa Ea wat Dexetan xoKoW Yuels REAL AL wnson nat 
| stoeNe ot tase a ed baxee ter nsw, snare ath EA 
| on sannaaatnaes vat at a dene oe edt ae Mate 





: sit taut Mantle saint 2 haa, i ah. 
A; macnn dee hengaotua way onaers, dae kalg dgirnd 
| sald wt ndnm, att fant bonekte, tte eh ; 
i tanhtona ste: Andnntow conta. wild sho, the. an 


Bipot ahi var an ae i: mp aueaet 





| 
i) 


‘the other material sllegetions of the bi11 to be true; found shat 
‘wary Moser sol? the business at Yo, 6409 Seuth Ashland avenue to the 
Reinhardts for $1600, nd that the complatnant received no part of 
the $1600 ond mo part of the profits «f the business; referred the 
|\e@use to & Macter to take and hear the evidence ef an aegeunting in 
regerd to the partnership and to report hie goncluslone ef iaw and 
of facet. He appeal was prosecuted by the defendants frem thig 4de- 
‘ares. 

(m June 19, 1926, the Chanesller entered a final deeree 
‘whi ch is as follovs: 


"The court finds that on June 20, 19294, o deerse was entered 
finding that complainant an¢ defendant Kary Moser were copartners 
in grocery and delicatessen store at Ko, 6402 South Ashland ave- 
=: Chiengo, and that 4uring sai@ copartnershin the defendant 

Moser soli the property, aseste ant effeets of sald ecw 
partnership to Charles an@ Vlixabeth Reinhardt for $1800, and that 
Gomplainant received no part thereof, an? that there shewl4 be an 
Becounting between complainant ané defendant Mary Moser in respect 

said copertnerthip, and ordered sai4 cause to be reereferred te 
tan H. Weleh, Waster in Ghencery, te take an?’ hear evidenee of 

Reeourting of the said eopertoerahip business at fe, 3402 

Ashland avere, from May 96, 1990, te the date of filing the 
Paid, anc aleo that seid Master renort hia conclusions of evidenee 
soy lew as to the rights of the cemplainent against Charles and 

Sabeth Reinhardt, 
| “Court further finds from said report, evidence and decree 
| ‘that when Charles and Hlizabeth Reinnardt purchased said delicatese 
Ho and grocery store, that said business war ewned in copartner- 
nip between the complainant and defendant Mary Keser, and thet 
Said Reinhardte, ond each of them, purchased with knowledge and 
Botice of the rights of the complainant, and that said defendasts 
| Mave failed ond refused to produce any books or recorde before the 
| Master showing any accounts or treneactions of said copartuershbp 
| @f to make any accounting in said bueiness, 
“The court finde that complainsnt fe eniitled to ene-half 
if the sum which said wary Moser sold eaaid covartnership business 
the defendants Keinhardte, which sald ewm was a fair and reason- 
‘© valuation of eni4 business at the time ef the purchase of 

«ges Reinhardts. 

a aa * court finde that compleinant is entitled to interest on 
| 8814 one-half of said $1800 fren the date of said aule to the 
 *‘Beirhardte, January 10, 1922. 

7? "The court finds that compleinant paid out as Master's frees 
‘ for stenographers necessarily exployed the sum of $128, and 

A8o paid cut on the re-rel'erence of second hearing for Lavter's 

® the further eum ef $144.50 and also $44.80 for stenographer's 

» Making a total of $510.00. 

“Ordered that exceptions of defendonte Nos. 5, 6, 7, 4, 18, 
te Master's repert be an’ sre sustained, 

‘i ered, adjudged and decreed that complainant have and ree 
rer of and from defendants Mary Moeer, Charles Selnhardt and 

h Reinhardt the sum of $1,098,665 within thirty days, and 




















tects Baae't geomet ad ot fae nit to ene) Sapo Tie Babee tion id 
ome oF woarecoree 5 sae Taek ano RObR ‘oe ea" eins ck wre ony Dor ct ih 
"6 guaq on hevtooed aiid Lei ait tend. pews oom ne : et ire 
uta howz tet Lamas wld toe Weasieass sil Leshan j 













































wom tenet ie ‘bere tw’ rotteoars ate sin ver Gutta, ee 
Riek pase: i 


 pexbithe baw texeoW a Ate (oe ent ne cate tne otso0 oree™ 
RISA Tate SrAK sage ee 8 Fash ue ted han dannte Lowes fasts 
ets boa kled dfnet Sea ol te evete crag oy eg 
taetoe tes eft qiteventusepe Siae aaitoh de ate fru: 
e9@ bine Yo wigeTie hia Bloage | weingety | 
fait bro .CCRIS to Soaetnled dietashl® fee esltedd. 
oe oF Byeda oveik take hue Towra: rane ow ber inse 
Seeqret si <seoll oseu tem hin teh fem Som aha Le fhe 
of Ketuatereor bd ad gande bing bovetive Bam y 
te ganehive doo pos aved oF , eteonedd wl ted . 
POM Jot Yo seewland ghee atid > toe gn ? 
oe yniiIt “to. otah sift oF ,CRRL ,o8 yal oort , vat te 4 
eéaehive ‘te axolauioabe Kin Meee. Wea Aan teas oaks yee 
_ oe wo knad daahena feats Leas, ont Ae baton aid 


| gatteed ban sareblye freq bon mort wh’. contest 4 
stnsaol ib bine Benwdow, Phiuecateh MedealiA how we fxadd 
want tages at bonwe sav wapaiand hiew tadt or * 
ted bow , deed We taehac teh Gm teenie kgs end | 
ine egholvoml dtiv bseasote, ,med? to foam foatn a " 
atdwhagieh Play PalY hae ,dseadetqaed sad Ye we 
ed? etg'tad ebioosx to dood ‘Vile wehorg oF bouton haw 
en coo biew ‘to sveltose ney og pPevaaen ae 
,aeentoud & las ant gale 

 Pindeate of balstine ah Sanelalgmap tasy | 
eeonlaud a dria cte nits 00 bine bien tosh yieh fh, 
<n: ae tiet w Gaw aie élaw do bie 4 eae 
~ e pansiaterg ont to ams ond. ta #! 





thee fanrodnd et bs fd tone at taanhal oo : 
end oF » Low nor Ye bdabiell mena tap ‘ 
nae Beer eg 
ave’ a coteall ae tee bhne tonabe sey ‘wel iil ® sis 4 
hme ,AELe UW me pt aooat he 
ated oak tor greg rey 
hah rai hish nears tat, O8 Phyl cate 


ae 8 5 2 a a. Stan han"ton 

ie bod tetanw ; ou bh Ge 
“ot ins: ved Pep doy Pre heeteeh 4: 
hae Mitadaben wokrede Orne yea, w 
_ hitkes Rowe! hs dnl atde he cin 00, Be: 


ae ' 
bi 4 pai ie mR HS 
Me 


that won failure te do so an @xecution issue. 

“Ordered, adjudged and A4eoreed that Master's fees ef $75.00 
for first hearing, and $144°40 for second hearing ond reference, 
making a total of 3219.50, be allowed and taxed against @aid 
defendants se pert of the coets im thia euit. 

“Ordered, adiufiged and decreed that complainant have and 
recover of te defendants the other and further sum of $219.50, 
his costs laid out and expended fer atenegravher'sa fees and te 
the Kaster, and that exeqution ieeaue therefor, 

_ Ordered and deereed that complainant have and recover ef 
the defendant the other costs of sourt to be taxed by the clerk 
and that exeoution iaeue therefor,* 

From this decree the Reinhardts appealed te this court, 

Whieh appeal ia numbered 31300; and frem the deeras oll of the de- 
fendantes presecuted the present writ ef error, 

Ye have exauined the evidence and we are of the opinion 
that the evidence supports the decree of June %, 1924, and also the 
decree of June 19, 1926. 

Counsel for the defendants contend that the partnership 
|‘ Dbetween the complainant and his wife, Mary Moser, hare not been 
Proved by a prenonderance of the evidence, 

We think that this contention ie net correct. 

The complainant teatifled that when Mary Moser owned 
the store at Laflin and S2nd streets, he had several conversations 
with her in which she asked him to lend her money; that she sata she 
had to have money; that in some of theese conversations she asked him 
to marry her; that he finally lent her money, giving 1% to her in 
| Various amounts at different tines; that he gave her the first 


Gmount in November, 1919; that she promised to pay him back when 








she S014 the store at Laflin and 52nd streets; that whe sold thet 
utore and at the time of the anle waid, "Well, Nick, I wibl pay you;* 








that she then bought the store at Ho. 8462 South Ashland avenue; that 
| after she had bought that store she said te him, "Weil, Hiek, I ove 
you #0 much money, you have been lending me. It comes close to $700 
vat T owe you. We will get married and you will have that money go 
: nthe business and you will ve in partnership both ef us in this 


+" that he said, "Yell, all right, be ready tomorrow morning; # 





ovsel aoltyoexe an oa be ‘ef vw tiet oo, ft 





Oo. are te ase? a'aotaau tad? pReotpeh fae Boia ta’ ta hate 
ware 0 gy te beoooee ea i citaen” 
bhab sa kayes horn? das heave. e fot @ 
tine eitd at efeos ‘Sar a? send” ae 


baw avad tuanlolqaos ted hoetoeh baw deptatta be ; 
Ot. 9288 te one vedeeyt bow tertte oft efachne toh vr 


at De aoe? at xedgargesets set bebaegre dan one jad 21209 pt A 





etotetas? soon? aotiueoxe Part & 
te tavooet haw eral jasnlatomos fare hes teeh ou “hele 
oy an ee a 


axel oat sind horns ed od ttyae to efeoo vedio” 
| “otetean ds event nal tena ae 
Peso ehas oe | bekeoean etbradatos esis . PO LBO5 ates wet oa 
~b oat ‘ke ihe notooh olf mot emi 100846 boxedawa, al tancen c 
) conte 18 how fapsetg wad betunenerg sta ; 
notntes end ‘te ons ow bite pone Low quid Doughaase, ated | jae wt 


amt aa te bits ‘pean 308, age’ te pene outt some: per a ’ 













étteront w0q weld dante aeeies ptaabas'tod oat wi pny pe = 


need ton aad ,teaol ete whe ake bet bana: 
acme oats hd auaanahs . 

ne ey Tene 

doer 99 ten ol aokeootape wane itaiett sieubeit oW 


Sa SEARS: pas 


— aeee eta a tt batt hott isess tnoitta Lewoe okt fhe me 


sno ttserovnes tatoven Bint oat atnerts mean tne ub Pad ta acote 
A a tS pene Bi 
are Bion ot, soay yes nex nes of att one in aera ‘etnal 






ie 


ea ‘tig Wate 
ak 0H wa. 2 p nated seat esl fast £ xtient on sant acker 














“ madw hod abel. we at heakawia oe, todd. 70ee sp den ey 
| | i dase Blok 96a tat jatesrae faite bee er nes p nko 
: Namo eq tésw x iol re pas eine ad Yo abs oat de, pod 
tent iowaove bao suet ‘sone - oi te. srote Peet Crane 


i ety x vio ti (new ab os bine ous oroie saints ite 
ai | a AAR pe ens eth 
T)| — g00@ ee eeose neutoe: er) ea amabant need . 


















CY Sip ne ep “ays tae “an 
ay oR Geran sant oved ikke we ‘bae Debviam ana, ow, 
Me oe at Hs A 


| “annae _ ‘we to god ide rentteg hme ri | 
ig ee Sioa ah: ab tela i 
candace torseset weaes, od. sda Sh ghtO™, obi 


that on May 96, 1920, they married; that at that time he wae 
making $45 a week an‘ that he said to her, “Mary, here is my 
Wages and thie will go in with the businews;" that he gave her 
his wages fer about four months; that ehe said that she was paye 
ing « olerk $15 a week, that there was not encugh money in the 
til, and that "If you stay home and tend te business* we wili let 
the clerk go; that he, the complainant, quit his job in Kovember, 
19205 and went te the store to work, and worked there until abeut 
_ Bevember 26 or 27, 1921; that in Hovenber, 1920, she said she owed 
= father $700 and wanted to pay him; that he, complainant, said 
=a right, if you take it out of your interest in the store;* 
that’ ene paid her father; that she said that she hed had the milk 
— transferred in his name; that enbeequentiy they quarreled; 
; that she took all the papers and money out of the safe; that she 
gait te the complainant that £f he wevuld cive her $700 or $400 he 
gould have the business, The milk license was introduced in evie 
“dence and showed that it had been traneferred to the complainant 
on October 21, 1920, for a period ending December 31, 1920, 
& lives, Minnie King, a sister of the complainant, with 
“when the complainant lived before hie marriage, testified that she 
| had a conversation with Mary Koser about July 15, 1921, in which 
: “Mary Moser said that before she solid the store at Laf‘lin and 
Send streets, she sent to her father for money; that she said her 
“Tatner lent her $700 to start the first store; that he wrote back 
. if she wante’ more money he wanted to go im partnership with 









- ir; that sche sada she Aid not went her father in partnership; 

the complainant had worked in a baker shop and had put money 

n | the business after she an4 the complainant got married; that she 
him te quit and took him in partnership beeauee the clerk was 
more money out of the t111 than she was putting in, The 


further testified that she saw the complainant in the 





How eH omks tadt, da ntoddy she tetany eer 408 OR a8 a et 


yay oe 


oe wm ak eed, wen med os hee. oat. tas haw teow. * ee 
(TS PI 
ey avay ot taitt. *qaeeuloud aid. ‘athe ab a3: Sik, ass. hae an 


“nae. aaw ein gece hise eda sade jadaaee. swet sods a esam 
“oa wk venta guoe dos ane oreds dade: toow e 088 tr0s9, ad 


toe Adiw ow. Ssagalend v2. bane bas awed ete 0% 7a dant ba “4 
Spee Cee. ai 


ctodawveit ak dot abu thup 1411 abe Lers09 oad 9d ‘tas 1a te L9 4 
| ‘tuads ‘Ehaoas eusdd boxtow baa witow ov vote oats on tro me Ot 









ak dane oe LE an 
hewn ers bine este 08 0 .todovoR a ted qaner A te 08 Ras 
os ARR a a hao 


bhes aaente Lemos od “fand aes you at bedaow ban ‘cove * 
*semose aid mt tuetedad | mw8y Xe sue ah ‘owed wax yh tteke “hi 


i aaah coe ni stat ut 
gnhe ot hed howt isin Foat baw ode tacts ptodye’ ‘aot 3 

ik ne 

tee domeans yout xitnwwpondwe dans oma aks ‘at seteotenwe 


‘ene tedd jotos wut te due tenon bn weqee oat tie Moat ms 


Hao iy 
gt 





out ened "0 ore sar! ‘eely b tere on t Sasa taeata Lee | oat 
wtve al beowhottal saw oanmois site ost senate oa coved oe 
$uwate.comon od? ot horus tenes woes fea at ‘soste ‘bewori cl oo 


hy eR SN 

sone off oan 90d galhas boltne a 0 ans Cond de 

ait bw staschs Lone9 ous % upgete a +aukt oon « Bice: rg 

‘t bi $ hovi ° ss 

oe 3 Sats het tenet ue Trait a ene ed £ Takase # 
ae diee mt A808 ves eiat toda 890i yeni ashe Cp a con 


baw ais ted, tin oxots esis ‘akon ease oxcted tna ba 
‘weet kas ase sess Pena xo estat aos, oe om 


Ree CRO 


fond otere a tod javote: boat nae toate, ot “oon to ta 9 


4 


date ahiatoas eq a om oF beanow out woo: Tories 















ey (Sy ta ie Poi ix ia cate 


i 79 amt yakaawe a oo outs fie 
Dovid nt deentetenee eae ven vm hee 


” ‘ ne Longe, he SN AN ag olla Sig a r ay al RE yh 


7 


store waiting on trade. 

Leonard King, husband of Hrs. Minnie King, also tee- 
tified that he say the complainant in the store waiting on cus- 
tomers, ei | 

The testimony of the complainant ie contradicted by 
Mary Korver, but she in turn is contradicted im material matters 
by other witnesses than the complsinant, and alse by documentary 
@vidence, and we think her testimony is unworthy of belief. 

Counsel for the defendants further eontend that the 
finding in the decree that the Reinhardts had notice of the com- 
Plainant's interest in the business at So. 5402 South Ashland ave- 
nue is not supperted by the evidence. We think that the conten- 
tion is net correct. 

There is direet and alse circumstantial evidence that 
the Reithardts had knowledge of the complainant's interest in the 
Duainess when they purchaned the Wusiness fron Mary Howser. 

fhe compleinant testified that after hie wite had 
ued him for divorce Charles Retnhardt sald te him, "I hear you 
got trouble;" that he, the complainant, said hie wife hed left him; 
that Reinhardt said you "got the store on hand,” and asked him if he 
Wanted to sel it; that he, the complainant, sala "This oaee is 
| — dependent in court;" that the estore belongs te hin and his wife; 
that: Reinhardt offered to buy the store for $2600; that he, the com« 
| Plainant, said, "I cannot sell it. It belongs to my wife and x;* 

Mat Reinhardt said, "Get a1) what you can out of her;” that ateut 









‘months later Reinhardt spoke to him again about the store in 

t ‘ presence of Mre, Minnie King end her husband; that Reinhardt 
. ked him, the complainant, how he was making out; that anytime he, 
# complainant, Wanted to sell the business, he, Reinhardt, would 
‘that he, the complainant, said “Wait till the court decides. * 
Bre. Minnie King testified that she had a conversation 








: obett no git tam te 

wood cate (SA0X Otnatw lat Vo Shedend ,gakt bxanosd” Not until 
~eire a ond mt cnmaggsar “ett eee sen 
sl debi thitied et Pomatelqawe ert “ts wostcktnet re ee ih 
@xodtem Labret ot Bede lpetdase wf) ‘renee oth dud (tonal 
ead toad ob” ‘ee tele bie Pon ele Kept ast sana aebaens lw canto 
he hed te et rowan al yoomivest aoa dakde ow bins! gered 
helt bent Sabdinge eHscirY WthabAD Oh os: Hort’ cowie » ws Sen ll 
anes oot to eotien bat ethuwdalen one sacr “eeteeah oar mt watt 
aova hhatsnd sigiom #Ob8 od bial ‘eae tend ott it Fee ce sat oF Siw ink 
wmetnoo eas fads ‘nail oe Vebaeshive oat w bevroneire’ som ad 

08 5008 8 0 el at OOS 

secld op debive taténatemoste’ odie’ bias foots wt Sapa’ oo oh 
etd at fuoreta a? faoaha Cqlend oat 9 obs Lrocnt Sa stodtito 
 aopoll veal kovt Geemteud ost boasiiotwe Yett pape 

bod Siiw wld taste Yaltt Dov Mend tramde tqung WHR! Oe 

wey anon T” (wid of base ‘Manito ao Sted opterts oven r 
att “#tak bed othw afd bias - dadinka Sento oxy ut tert? *inscivont, 
ot Th wict boxns Bite *, Sawd Wo wtodw at fog" woe biee Hyteditek sy 
ae owno eine’ Blow gabtitntqudd ott yon: tent ab ttn 08 i 
rotiv aid sie ‘aad ‘oF ogmoled wsote ont fae *stiweo at ga bam 
wed af od tact sonaee ‘aot wtode wat wed of here tte £o% ot 
Wy hae witty Ye of dynaked $2 02 Live Penns I" ybtaw fet 
tueda fas’ stent to Fyo was wey texte be oe" vitae thuacintnd 
at 'atote sai tyode dingy ait of oxoqm sotadatod te tad edgadm a 
‘ghuedn2e8 tadt pouadegd tod bite Hadas tnsse yee Te wo mete ty 
jad watargue Jedd j2ue yabidg sewed wad pte sto Lean om gaRta 
“Mae sirtamuss oa ee trast iioe fos — ms ated a : 















dae 
% 


with Charles Reinhardt about November 1, 1921, in her kitehem and 
that her husband and the complainant were present; that Seinhardt 
said, "Kick, hew ie the ease coming?;* that Aelmhardt said te the 
 @omplainant, “Do you want to sell your half interest in thet store?;* 
that the complainant said no, that he ¢owld not de anytuing unti} 
| the case was decided; that Reinhardt zaid he would buy the moment 
that the cospisinant wanted to sell, 


a 


; Leonard King, the husband of Mra, Minnie King, testi- 
4 


— fled substantially the seme as bie wife in regard te the conversa- 
, 

i - fhe evidenee further ghewe that on Janusry 7, 1922, 
“waite the suit fer divorce between the compiuinant and Wary Koger 
‘., pending, the Reinhardte and Kary Boser entered inte « vritten 
aa for the gale or the businega at Ko, $402 South Ashland 

te the Reinhardts; that in the eult for diveree the complain 
“ant had filed an anawer, claiming an interest as partner in the 
‘business; that an order had been entered restraining Kary Moser from 
mnteg er disposing of the business; that on January 16, 1922, on 


“the motion of Mary Moser, an order was entered dismissing the die 


& 


ae 










suit; that on the same date the Relnhardts gave Mary Moser a 
for $1406 in payment for the business, 
| Counsel for the defendants further contend that the 
een of June 30, 1924, and June 19, 1926, are not in harmony. 
. ‘The argument of counsel in this respeet proceeds Largely 
the assunption that the Reinhatate 4i4 not have knowledge of the 
© ae nant's interest in the businese when they bought the business, 
| nat opinion they 414 have such knewledge. In this view the de- 
Fees haruonize, Yurthernore, 4f the bill of complaint should be 
tru a as alleging that the complainant was entitled to the entire 
S, and not a half interest in the business, the fact that the 
or found that the complainant was entitled te one-half the 





bas modotit tom at ,t8eL ,f vedmevell oweds Phusinteet aw hiadd te 
fhiadaled gory ydaveedy -diow ‘tae wks Lesion ont Site powdewt t3d te 
edd oF Stee Shtedahed todd phan odie ote eb tod” tonite bt 
* feross tant mi. teniedat thos 2H 9% tiea os Shaw way ana”  dpucsnggtns 
£2¢ nut ‘galldyae ob don biwae ed sadé ,60 Bhdd Yadatwlqmon sat ba 
ta orl acs ok’ Leaeial ‘Pitedulod bade’ ibsbtosn ea aan 6 
hiirnsite 0 OO" tes et hednaw diate He te 
sidaed eat We at eee a pane eam! pea 
ni teenie ont at — il bai she Go omee walt’ ‘teettnatedon “he 
ieee” HER Rae Oe shel” ig sh Moti tine ths ti ‘He BAR HE ‘ge i 
{eeer” a eure xo “Fatd wrote ean aoaeh tee ait ‘ah po tik 
rovok ital ben’ dette Leas out tibowited socev ih’ tot ate aie ath 
geitinvne « atat heretne i808 eta bag edb adakow 6x: anevada 
ya fated ritwoe @One Lol de ane ntoindt aft 6 otbe: out ot tapmeen 
ntateabo on” ‘be tevth eet oiew one ar tout’ padbea aay 
ond at’ tentang fa tebae dic ine aihasa rs” isco nett? eu “¢ 
mor x60 vt gaditerters hoveding need bet ‘eo btie" no base eva 
ae {82er OF yrawint ho tote’ peadRto’ MP Te gubwogs Wo Rant 
: “aby eit gates iat lb hetethe eew Lobes iw tee ol eri vo sts . 
a towel tat ove sthtunat on ox’ otah Sime eitt ao Heit y¥bua aod 
PO SO goateud te Lex Hremeay He be re * x i 
“ita! del’ vas eno xonerit athena thn’ its eat Lobawee PONE 
" si¢etourtia at ‘bom ore aber ver wut Wie jas er” et onto 
utogrkt thbebove toorwan eRe ak fonaired ‘te soneceryes nf nnd 
ete Ye aude Leoit vad ton BE wepknetitelt eit tad tot drs 
vembilevt! bat dduyi'd voitt nod wai ditind! oil Wt duet wn 
web nil} waby eile Ht egnetwonit aie orien ahi aa ‘te 
ed eneiven Tit ein te hill iat in B argmseeaiss tes 





i 































“edd dala Ene ett sweeter ‘ody “net 


UE cated Oy pepe i i Hes 





10 


gum for which Kary Hoser #ol14 the business te the KReinhardts, vould 


not be such a variance as would require a reversal of the decrees. 


Heyman v. Heyman, #10 Tl1i. S24, 540. 


Counsel for the defendants further sontend thet “the 
alleged ante-nuptial contract for the partnership was not in writing, 
and being in consideration of the marriage, was void and unenferece~ 
able.” In support of their contention counsel eite the cases of 
BeAnoulty v, Keannulty, 120 Ill. 26, 33, 34, and Richardson vy, 
Richardson, 148 111. 863, 567, which hold that marriage is not 
sufficient to take such an agreement out of the Statute of Fraudce. 

It is permissible for husband and wife to form a partnam 
ship with cach other in business, Heyman v. Heyman, 210 111. 824, 
B32. Although the partnership agreement in the case at bar wae not 
in writing, we are of the opinion that the performance of the parol 
Gontract took the contract cut of the Statute of Frands. The sole 
Goneideration ef the contract vas net the marriage. ‘The complainant 
hea lent Kary Moser money before the contract was made, and part of 
the consideration of the contract was that thie money would be con- 
sidered as having been invested in the business. In other words, 
Andependentiy of the agreement to marry, the complainant setuslly 
“purehased an interest in the business for a money consideration, 







nermore, he gaye his time and services in assisting te conduct 


business. We think that the case at bar does not come within 


Tule announced in the cases of MeAnnulty v. MeAnunulty, supra, and 


ghar BOM V. Rich 


te 
° 


It in further contended by cowisel for the defendants 
hat there wes no transfer or conveyance in writing of the business 
f Mary Moser te the complainant, ae in required by section 9 of 
68 of the Illinois Statutes relating to Husband and Wife. 


@ ie se follows: 








Aisrow ght bsedale ®t ont. ot RAO TERT pate ion svea.08 Yani, P 
mre sand Sail to Lanxexe, s otlupet Rigow se ao nn die 
: ORE O88 TET Oe nes 


“eae facts pie “aan xu" afnonanrer ont xt eal ae on 
Ws Sa page 
wands iw at tom ears qhiarentteg one ae feartave Leltew ie 
pyc y (SS Soap OB! SP ae iy of eet tha 


sore anny baw pag ts ean wopalytan este te Paatgpdarbeet aoa ma 
Ny tc) RRS ie Se MM Se a ata Gan Le at RUE 


eo acess ont otis feanuaa mol?u03.02 uest Fond Bi: awe at 


at agabsasien A he be BE 8 ELL ots sWidunaned ae th 
. tom al ope tvne taut bes Aohse Tae 608 aa ‘pox : Kaaba 


aeneus PAUP AL Ea Oe Colt ie et eu ie 


} about te etudast edit te tua taesow age co down’ falas ad as 
@antisg @ aio of otiw bae haadamad ‘Toll eidien Lane g ak or ene 


pity ee wae Aggy s . 

en ‘fa ors ee eee ed ak mailto eas por 
ne oly oie yay a a eg Be faye ‘hy 

fon ar ‘ad py ane ade a aoe tHe adstatenst0¢ edt syerodd LA 





. se 










Ky cdi 





“ 





me TIONS ARE: get a Aiea ‘i 
kona owt te eonnunste¢ oat saute sokatce hepa to ome oe een 
Fae: NBEO I ays ao binge: tect ab 9G. OR dasa 


















ofos oat shuar’ i) otetess exia e tne teantaco ot Xoot 
oy a BY oe # ee LE Aah’ Jfty £ hist if Cie Mele 7 Sats Leh Cane Be a 
toate anos eat sana beta add Pos ane teertnes ade, Peat: 

{ OP sf eS iy i ie 
te bang hae seban enw teardacs net ere'ted Wreto peg! biel f 
. 00 of biiew ven ebay jase cay sontdane ext bo nok tone stone 
‘ fe . iS hte #2 aa ng a ( 
“abrow ‘uediae at seagatesd ot ak Bedesvat med gaived ae bet 
Peat Hiei * ie Le Me ie me ii RNG 

“Miauten: “Guan eLqmcce ond item °@ sapnas tys edd %o vs 

ure ws RR A Ba vy. Se 

nedswroh bases yesiom ry met apoatoud ond ab nape a heme 
#5 AS, RING ata Sere we Ape Shit, ek 
tovhaee os ere al aa tree baw Laoned a bel byithd he an 
ek eae: RA Aas 
abaaie amos aa mot wd te nao ent teas meres az atta 
ERS ae ea. BL Ld 
; (apaage te goose oad wt Aeraagpestii 


tay iy) Mh Ti wee nage 














azuhaetab eas sot fonsweo we foie , 


asontoud ate ‘te pata ter a sonayevnca “4% mien 
ca bids Para ae pont 
“te @ aoivoen xe dextopes a2 bond peer no ae 


ake ban Paadount of aahteton an andeg® a Lost. Li 
Meg SMO % PTA A RRR Wee Ne) i SS 


- 


lm 
“g7 


il 


*A married women own, in her ewn right, real and per- 
sonel proverty obtained deseent, gift or purchase, and mane 
age, sell and convey the same to the same extent and in the 
game manner thet the husband can property belonwing to him: 
Provided, that where husband and wife ehall be living together, 
no tranefer or conveyanee of goods and chattels between euch 
husband and wife shall be valid ae against the richts snd ine 
terests of third persons, wunlese euch tranefer or convey~ 
ance be in writing, and be acknowledged anid reserded in the 
game manner as chattel mortgages are require’ te be acknowl edged 
and recerded by the lawe of thie State, in cases where the 
posseesion of the property ile to remain with the mortgagor,” 

We do net think thet the statute is appliiesble te the 
facte in the case at bar, In our interpretation of the evidence 
the Reinhardts had full knowledge of the fact that the complainant 
had an interest in the business at the time that they purchased 
the business from Mary Keser; and the Reinhardte also ‘knew at the 
time of their negotiations for the purchase of the business that 
there was a suit fer diverce ponding between the complainant and 
Kary Moser; and that the complainant had refueed to consider an 
offer from Charles Keinhardt te purchase ¢he businese because of 
the pendency of the suit. In thie view of the evidence the Kein- 

hardte are not innocent third parties, On the contrary, in pure 
@hasing the business in the cirowetances, they were wrongéoers as 
te the complainant, They should not be permitted, therefore, te use 
the atatute to relieve themselves from the reeulte ef their own 
| Wrongdoing. 
; Yer the reamons stated the deeree of the Chanceller 
_ ds affirmea, 
te 
ae AF¥IRRED, 





ly, P. J., and Matohett, J., concur, 





eteg bie feet ,oigin pro. tet ‘at a aso w Be a eae 
tua Bre Sandie * xo Stip Siedene’ Sikatasee et ami sGoR 


wi baa suetxe omee oS3 of ceme. od? yovans in iioa sone 
ay ot galgaoled ydionet¢a amo Soadand ect Jagd velo aaa 
-Mettegot guivif ed Lfede etiw bas tandend ete da pig nea yons 
douse apewted elsareta hne aboog to sauevernoo 
«a2 bts aidyir en? tanteye oa biter ef Linda ote bite Amodau! 
“~Yovaos to ceteaers dove septs ,emmeted bubdt to atexted 
” on? al hehtovert bam heghalworien ed bas pants bewonk és 
‘haghe fworden od of hetlupet ets sogeyitom Lettede ae tenman- 
oo Qe etede Qoeap-al ,osart ales to weak eae oyd’ 
"megane tom arid ete kaso bri ak bse el ong ‘te aolveoure 
ay ey FUG $A ve 


eri? ot eldeotiags at etuteds ont anc tats hel on rel 















, ve Lis 

sonshive ry ‘te aotteteratsg at nr al ted te ‘ease oie “ak ate 
yeah Pe i 

taealeiqucs ost fait goat ous te syboivomt ‘ke haw etbradnton 


Oe Ey eae 


beredonwe eons taal emia ond ts ene nhand eds at feqeaat pon? 
“amie ‘te ‘wool on Lis ashuediaton edt bite pineal cia ert eeontand 8 
tacit aaa aieud oa te ouesionug ons ‘sor ame teettoyen teas iy 90 
bee tasate Lawos os moowsed aatbaog sox ovis bd thee aa her mates 
ae awbtanco hd poautex baw dawnke tqaee outa tasts am AM 


te eauaood eevatand out onedotug tl shresiaton ve kta ‘s yt ' 










: Pt ele a, 

onhed | oats soavhive eats te woly adit al the ont te : 9 Bet af 
ang mt avtargaes ould no 29 tisaq pete bapvomatt tea exa aan 
aa atnohaitexw over weit ssoonatamronts one mt, foominnd odd aa a } ! 
oe ot roreteds shettinneg of ton binge ont ceesnneterns ae 


are ated? te et Liner od? sot nov fonanitd qvetion oe « 


Sak Rent AQ 








ee wat | 


rol leone eds te oorna’ one “bodeen saeagey ont <o% a os ids ; 
eh wl 


ae. 


4) om: Hane F ; Ye 
a dunt dad san Rial sie haan BY ways iia We eh Me 
SeGat ti PPh sly Dahan aie Bini A oe Bitte ual 
“yy 


oaro Mtoe ie rennet eb iN, hi 4 “wt 


i Did apie yA SED kek Be MES ae Ws tbe mM He eae had bs 
Mae! { dhwiunes od he , Marae Died ent yh “tnoyih ou 
ars ‘ 

Me hat ae we, es eee meh te ae 


i Y me my say bi Nal 4 Mah at ah 
; f TaN 


i = 313060 
_-sroxars MOSER, ) 
Appellee, 


vs, 
APPEAL FROM CIROUIT COURT 
BOSER et al. 


OF COOK counTY, 


Appelt ants. >) 
Kes! 


WA, JUSTICN JOHNSTON DELIVERED CE OPINION OF THE COURT. 


Thie is an appeal by Charles Reinhardt and hie wife, 

th Reinhurdt, from a deeres in favor of Bicholas Moser, the 
Lainawit, in a suit im equity brought by the complainant 
inst the Reinkardte and Wary Koser. 
Thies appesl was conselidated for hearing in thie 
rt with the writ of error Ko, 31192, in whieh the same parties 
* interested and which invelves the some questions as the ape 
We have rendered a decision in the writ of error 
io. $1192, in which we affirmed the deeree of the Chancellor, 
u ; decision ix eon trek hing on the questions presented in the 
ros at appeal. 
The decree of the Chancellor is affirmed, 

AFFIRMED, 


urely, P. J., and Matehett, J., concur, ae | 









t es 
Pe) ae . tay oY 
ee C Ain 
; eee , a Me rics! 
BY 
PS Ms Liew, ee 
* Stic 


aH: TENORIO ome an, on 
(i iN na eemae9 2 1009 or 


rein "9 SIRE oe 
% pea heh Oi. im 
a te gs 
a : ‘ 





SBRO h: 12 ERS 


eae ea 


‘sTAYOO BET LO NOTRE TRY CRMAVE IAT: coteinat saris: ak! 


eS ae TE gen kat aah 
athe and Bass shrnssa tex ee fant xe foaene ne at ater, sak au ‘bei 


ade ed Be Lotto 20 toye’t ak vated # mont ,thandalel. baieintte 
on “mente rqnwe aud we Seared athe, a P hue hue 6 a ea he 

: eet yuk bow athvadaied vst tata 
Hi ‘sist at aateeod ‘20? hodabifonnee sow Langan gtdt. ate i 

ae botag eane nat ewe at SOL@ .om wert.) ne 
8 ‘outs on Emo teaoue, enoe, bigal seytovat ap bite ran of 













nigemes age Ce Re eee ee hil edit ae 
aoe te aie eat vat notetped: a | hetebues, Sad a £ eats ante : 

ry nee ery LUNe “y % 7) 

: Red foonanto ons te. . $9709 exit boot tia. ow Ho hte ah, 884 | 


ant af bataoweng anoligenp ail? ae r ae wel iLots age at ae ’ 


mm : showed Ts es Tellegoedg ont Ye, penoeh oat canna 


1 Re al? ava aah r 


TERESA | : a 





" x 
Pi te Rae eR 


161 - 31°92 


CHARLOTTS A, NICHOLS, 


Appellee, 
APPEAL FROK SUPERION COURT 
V3. 
OF COCK COUNTY, 
YOUR CAB COMPARY, a pL 
Corporation, DAA Ae °. 
Appeliant. yd 44 lt rhe 


BR, JUSTICE JONNGTON DELIVERED TUR OPINION OF THE COURT. 


faite fs an action brought by Charlotte A. Hichole, the 

aintiff, against Your Cab Company, the defendant, to recover dam 

ages auetained by the plaintiff when struck by a taxicab driven by 
. chauffeur erployed by the defendant. 


The case was tried before the court and a jury. The 

















returned a verdict in favor of the olaintiff in the sum of 
DO. The court entered Judgment on the verdict. From the Judgment 
defendant hae prosecuted this appeal. 

The accident oceurred at the intersection of Vincennes 
fenue and Oakwood boulevard, thoroughfares in the city ef Chicago, 
} about 9:30 o'clock p.m, Vinsennes avenue rune in a northerly 
southerly direction, and Oakwood boulevard in an easterly and 
ly direction,, 

The evidence relating te the manner in which the acei« 
A happened is sonflieting. 
q . On behalf of the plaintizf the testimony in substance 
that the plaintiff was on the east side of Vincennes avenue in- 
i i< to eross Cakwood bovlevard at the intersection of the 
re te; that whe reached the safety island in the eeater of the 
: ‘ fon; that she looked te the weet and sae the taxicab about 
z | bleex away, coming from the west; that at the time she saw the 
tes “it was kind of slowing up;" that she then started to croas 
en she had taken about one step after leaving the safety 












vate 4 


«ea tay pi 


ih ut 
ie : 








‘peo corms MOR LAA 
ce PRIM WD 19 


m is 9 A, i. LABS 


_sRRIOD aE bil HOLETIO SAT CRAYTm blend MOTPAyt «A 
seeiihia eT ee a re a 
out beaded “A | 99s ebsi id Pwr mite 4 em. Hs alee 3 











a) sori ds wide 
IRICEN Rees HS el Oui eens guetta bovetgen 
Pet octet & bine twas anit Ct nth enw ‘ae ee) 
Ye one este at ‘bint te ote te sovatt at gotinme & 
dnowghut add wort sPatbaey ex! no drbaytvt Rerwein: tena © 
Seite. eae . oly PR EB arcuate is ‘ teoiage wine: between one aust 3 ad 
soumnoatY bi sohzeomeesat ” te hoxtweo tod Y : 







island the taxicab struek her; that the horn of the cab was blown 

at the time; that when the horn was blown "the cab could not have 
miesed hitting her;* that the taxieah was going at the rate of about 
fifteen miles an heur; that after striking the plaintiff the taxioab 
went 2 distance of about ite length befere 1% stopped, 

There wae testimony further on behalf of the plaintiff 
that several hours after the accident the sen of the plaintiff saw 
the chauffeur of the taxicab at the heepital to which his mother had 
been taker and that im « conversation with the chauffeur, the chaut’- 

feur said that when the taxicab struck the plaintiff he was looking 
for a nwber hie passenger had given him an¢ that he ai4 not see the 
‘plaintirr, 

On behalf of the defendant the substance of the testi- 
Bony is that the plaintiff “etepped out from behind the safety 
“gone peet right in front of the taxicab; that the taxicab was about 
‘four feet away from the plaintiff when she stepped from the safety 
Asian; that the horn of the taxicab was blown, but that just at 
“that moment the plaintiff had stepped off of the safety island; that 
the taxicab was going at the rate of nbout twelve miles sn hour. 
| Counsel for the ‘efentant eontenda that the "plaintiff's 


witnesses show a state of facts which indicate that, aa a matter 










: law, the sole negligence wan on the part of the plaintifr." We 
to not agree with thie contention, The plsintiff testified that be- 
she left the safety ieland she leokad west on Oakwood boulevard 
Ma saw the taxicab couing on Onkwood boulevard from the west; that 
| Wee a helf block away ond wae "kind of slewing up." This testimony 
ree ® 2 question of facet and not of law, am te whether she or the 
of the taxicab wan negligent. 

On @ consideration of all of the evidence we are of the 
: that the verdict of the jury wae not manifestly against the 
e of the evidence. The testimony ie conflicting and the rule, 





heagete oh water diane I ath swede te rae * ‘a 

‘*ritatalg edd %o Ueced ae tectttw?t eaomtiend pow euedT = 4. 
wae ‘vtivatealy sit Yo nee eit Joehivoe of? radia ateod, iateyee * 

had teddomw gia todd of rer Ons te dwoteead off ‘Lo twat twade 
wtivainto® Wad |, Kew Ttate clo pity! ta tw wetinetsvao a dt tadt ban agdet a 
gabtoct ehw an Yetbute a end Xouets Cantus’ ox und tudlt pia 
estt eel’ Ha B26 6 Fade bud edd an bow Wankssen eg es 


\ u 
ite beh di 
Pe Re RS pith Ae Pie Ba £ 





ohieee oat te bo nogeden “eitd rasban toe ost Xo ‘aded a 
Hae bt 
yietae wuld hating mont tue hecgesa® Titvmete ads tant) wh x 
“Sereda tow dadband bos Sedd (hoolned ont te tuo at trig noe * 


ere | 
Py BOB ANd ke 


woken adit mort hequste ote “aado Titsntese ond aot ae | 
a) ‘deat tout awd sarod wae dno tant ont to tod a, 
att thie tok dottes out %e ‘Ye bocaete, bra vitemtose ni 


‘wed ole ae Lim avinwd tuede ha son eat te ‘gates oor ° ee : 
RAE Pe sf ie Bok &. ‘a 

e'reisatete” ‘ont tax? ghaednes ‘dabne'teh ‘edt 20% Load 8 | saad 
we ie h 


‘tattam # es tens eton hoat ito hetw atea'y Wy erate * ‘ede " j 
ef *.ttltatety acd “Ye fae ont ae wae one 2 2 oaiaad 
| ~od dudt borthiwed Tiitalety oat «mo.22 19800 obae we Re eae a 
| | trave ivod haowie 9 ais fuse pedook oa pawiel etoran ont Y94 ra 
Hl tests itaow ods aoe brave Lied beowise a ‘aaksoe SI | 
I Wombtans wha? au eatvete +6 posta now Baw geet 
| exit to one “aittoan ef ms al Yo tou + bao toa Xo aetie 


bi HBA 


od to ons ‘pw gonabtve ext to te’ ue wr , sis 1 ' 


VT. acne OM is een fy 
{|| aiid #irileya sono i ‘ohbs 
j if 2 ay He waka: tie ae ‘a se 





ji" have wpe 
















Whies is a familiar one, is that in such state of the record it is 
the special provines of the jury te deternine the eredibility ef 
the wltnesces, the probability or improbability of their testimony; 
ané that a court of review will not interfere with the verdict wn~ 
Ress it is manifestly against the weight of the evidence, Hale 
Harvester Co. v. Hale, 201 Ill, 131, 146. 

Counsel for the defendant further contend that the 
‘court erred in permitting the eon of the plaintirr toe testify am to 
the statement that the shavffeur made to him at the hespitel, and 
tn fllowing the trial attorney for the plaintiff te diseuse the 
“Statement in his argument to the Jury; that the statement was net 
of the res gestae, but was & narration of a past event; and that! 
under the well established rule the statement was, therefore, inade 
Missidle. 
‘ We think that the defendant is net in a position te 
assign errer on the ruling of the court for the reason that the 














Pd shore that om the trial only a general objection and net a 
cific objection was made on behalf’ of the defendant, At the 

the testimony waa being given, the trial atterney fer the de- 
dant eaid, "I object te that uBless the parties were presen:.* 
triel attorney for the plaintiff asked, “Unless who was present?* 
trial attormey for the defendant then said, "I object, make a 

L objection,*® 


It is the well eetablished rule that obfections to evi- 


tuust he mate apegifte. Chicago snd Bastern Tllinoie R. 8. Ge. 
eiiage, °F Th1. 129, 15%, 133; Diuinele denteal Re Hs Oe. x. 


B. 206 Th. 623, 5353. In the ease of Ston reat ¥¢ 1 O42 
» 42 TLl. 85, the court paid (pp. 04, 95.) "It han deen ao often 
Md by this court that objections to evidence must be specifie that 





Ass become the doctrine of this court.* It hae been explicitly 
Ld that objections innpugh form as “I object" and "derense 


























wt ty toons, odd Ie esata sean: ah Gadd ek, poms, ‘os 8 Shana t ak Re aah 
Yq Ytiidibare pa? ealmsetad.od work ae te sedans ‘ 
pwoulsent shed? Yo vs ittdedorgms. xo qo ALddndong odd aaa : 
_ att doth gd2 dike ete tiedal tex Lilw wolves ‘to woo i pore 
giak owen tye odd to dighew ant dockage eiteothanm at thie 


| ; ODL HEL LE £08, +2LoMet 00 sogenr 

wi ey jadt pastnes teddint daebae ted edt sot Lome fecrrwaian, fe 
at ae Bildeet of Wiltalady edt Yo moe ent guns # hernsee ah hem om 
Bae hod honad oft ta model oo ba cr Thien he ent rant taemadare:s 
pat angonth of Titeatase ont wwe erated ta, Inted wit geben tie 

uh ti saw tancoreta sat tad. rem, oat, or Saesargte wast a oven 
saat ban piaeve tas¢ » Lo aotiorimn & mew dud eateon ez ast tm 
chal, tail yen Pepoe tate, att, oie hada disagen, Aton ond a0! 

: ae Vobkekaka ame, dite soit 

i ot ain. a ai con si fab own, ash some. Hate WF drow wt 
pitt taald mpener ony apt tauon ee. 20, wahers aiid. 9. norxse, myd 

& ton oye, Bolton bdo, Aeron, @ Yhsno, Sadee oni, ag: tad nace; Nien 

n ent tA -daighno Teh ad t9 Bieiled, «4, ada ROR, ant enotsovedtin 

: “ob ‘emt met, poarorta hah pt ,oavhy yolod saw yaombleued, odd sila 

_ “ptaenere oven detisag oct ane tity tart 08 tootde tM),biee tah 
"Phaseerg gow ode engi" ,hedea, Tiigalekg oft ro% vesroeea: tobad” 
a odsa, sdoehde IY bine aodd gombas ted, mad tah, war atte a bes | 
rotienes ht -molsoetie Lor 











he ey ik 


nt a? | nmastante whi wlery Sede bidedam bow nthe bi A hin ke i « 







“re * ood aad oo" (tie ae see} bien ene oat ~ : ¥ efi . é 
“elton see “tua ait aes eae wae 





objects” are insufficient. Jourden vy. Patterson, 10? Bien, 602, 


604; Hutchinson v, Whitmore, 95 Mich. 592, 593; Crabtree vy. Van~ 
hoozier, 53 Ko. App. 405, 411, The evidence was not of euch a 


Gheracter that it was wholly inadsiesible for any purpose whatever, 
Tt was competent evidence if the proper parties nad bean present, 
The attorney for the defendant should have made hie objection in 
Pegard to the parties specific when he was questioned in that res- 
pect. Instead of doing that he abandoned the objection in reference 
to the parties and obfected generally, 

Tt te further contended by counsel for the defendant 
that the court erred in persitting the trial attorney for the piaine 
“eter in hie argument to the jury to refer to the fact that the ehavf- 
feur of the taxiead was under arrest for about two hours after the 
‘accident. 


the obly objection that wan made on the trial by the 


Brial attorney for the defendant to this argunent was that there was 


“he evidence to show that for two hours he was kept in the custeday 
a the police officer,“ 


a 

4 
cal 
é 


We think that there was evidence on whieh the argument 










Wd be based. Furthermore, as was suid in the case of Henry yx. 


ea that every lt ceakahuaiel of low or of faet will have the 


of exciting improper prejudices, The inetructions of the 
and the goo4 senge of a competent jury ore a sufficl ent pro- 
ign agatnot ordinary errors of statement and falee arguments of 
wn se! «* The reeerd showe that the verdict of the jury wae not the 
D t of passion or prejudice, for they anewered “Ko” to « epeetal 
atory as to whether the taxieab was wantonly and wilfully 
ageinst the plaintirr, Moreover, the asount of the verdiot 
negatives the idea of Passion or prejudice, 

Counsel for the sefendant further contend that the 
is excessive; that the amount of the verdict is “uneonscton« 


In our opinion the contention is net eorreat. ‘The only 





. 





duo 2o2YEww a ot “asoot 


.808 oe SOL , mone tds nn by reae a} 
bast _ (see ey ae cee 











-jepeente aeed bast shane reaots, out, ata no vanes ant a . pe Oc hs 
ane meitontde ola shexs ave bigots saa tah, Le set ut eg: . 
oant tad at honolteoup acy od cede ottioage pntines oat oa = 
soneceter as aetioade edt heaohaeda om tant parted to basses anil i 


veh foreney, basootss hem nohiae a 
ae Aix ean! te 





Zz af 4 


“ taabae red, 9 x2 x0? favmwos we oben sno qortra? ot at 
wacko La, ont, 70%, xensosts, ie tet nat nated tecog aa howre “gaueb oft gt 


~tuesle ant jest sont ong oe wet 03 emt edt of Sevosure ta ott am 
erupd_ ows suode x0 deere renew naw v dae tend ‘ate s 


oy “a “aes 


pil x0 92a, 


* a toknt ia ne. ‘oham ane + basis 1 ‘nolsvetito lite este” 
sans. any seperate ales val jnahoe eb ont teh. conned ‘a 
von wodia of gorebive | 

Ww ges tite dotteq ede 


$e sagt en “hb Ret Ho aonebive anv = she daeed aw ie 
«x xuaait To waco ont ob blow exw en — “bea 


ad of ton ot $i ,boe net RE" 080. ait 7 ’ 
‘gxa evad Ethw ¢eet Xo we WET te puinacnennaii ure, tas, ~ 


eaia Xo! sto beoneaend ott sasathartors memonqel, iba ioik . 

weit dan to Pete @ ate orth tapangmeo. ete onmon, boon ei 
‘ye wae tm pofe't how dasmetete ‘to eters ctsath O78 fe Is ht 
out “tom Baw cunt oa? Te totbtey alt tat erent Pree edt eee 


tans to 2 
sok Maat nenownna, nod tot vendbarbeng He setenee aor 
yrodagort 


ea arteries 
Yh at aie deal aa tant eaw od exw ome 0 















 fehoow 
“anteater nit NPSL 8 


gornany eft to tegen 247) anne ten hs id 
Pe yp OER, _ Cgices # rare tit Sas wes we 
iat tankdy Heedao, BOGAN, snabae te Mo nat xo Sons ; “4 
sstanmnaa’ ab ser 38 OO Sey oe 


aco oft mol 
giao oct Laithdvniis Aon. 4 ot a ag nied saunas eines Ra amet” r 


AM Oe Be 


ey ea) 
ee ty 


—_ 


Physician who testified in regard te the injuries of the plaintiff 
wae the physician who attended the plaintiff, He temtified that 

he saw her at her heme at shout 11:30 o'clock the alent of the aa- 
ident; that he feund her bruised terribly ail over the bedy and 

in a state of nervous shock; that she had « laceration of the right 
knee stout half an inch deep, extending to about four inches below 
the knee: marked contusion about the mee joint, hematoma around the 
Joint, contuelons on the right arm ond hip, and a deep laceration of 
the right orm; aleo a deep laceration of the right thigh, extending 


te the hip and about three or four laches below it; that she had a 
fracture of the right rib in the axillary line; that she had a two 


inch laceration of the chin sbout half om inch deep; thet ehe wae 
in a hysterical condition; that there was a fracture of the seventh 
Tid on the right side; thet ligamenta were torn away from the hone 


om the inner pert of the thigh; that the extensor museles are en 
the anterior surface of the thigh; that he saw her eix or seven 


times; that she was about sixty-five er seventy years old and that 
she impreved slowly om seeount ef her age; that during this time she 
‘Was absolutely helpless and in a great den) of pain and adilacomfort; 
that she had nurses; thet she still has some imp and that 1t will 











be permanent; that while he was treating her she had intense pain 

ig 

me would nerem it touched, 

the plaintiff testified that for a time she walked with 


Putches and later with a cane; that she susferea pain; that she 
taken care of like she wae an infent, 


For the reasons stated the Judgment of the trial court 
® affirmed, 


Sly, P. J,, and Matehett, J., oconeur, 











Te re ee ee siathieey? <a 
toed beLtivens eH | Wietmhe TY wad heteette ote nebobwen , 
~-o9 od? ‘to Fag ta ont avo toto Ovitt shote to ‘eubd ell te vcater! 


‘bin ebod sir 4ore tte _iabrted boo hese tot hiwot of pes teas 
ida TP eee ey ba 


tig tt ait Vo dotveresal 2 had ene dads rato ests evertes te state a 


wolsd wessat wot 2u0%e od aaihanexe G008 ‘donk oy ‘ted suede oun 8 


oat bawote amedama pimikot, oe sed eas toda solnuaoe pesteass send 
he eA Ps te et re Me 


te "nobdouenat qneb 8 , hewn , ghd has ts tay oat 80 9 





4 
tI RSE aoictat 


galhoesze Hast trig dx esta to aotewteoa! qeok s oote. ite tight 
a bad oda sade yak woled asdomt wer <¢ ooustd suode haw wee 
* gwd @ Rad one sos jomke erekibes end nt dix tayia oat ia cat 
gow ode add pqo0b tond no isd tuede mba ods re pelble 4 
sitive sit 6 deudoatt a aaw oveds dadd jnoitibaon Leokesseed a 
eao¢ ed? movl yeva artot otow adanemeghl sed? eh te she ole ‘0 
‘Mid vile Cetdaiwceindtad da dddd Digldl de Ve vien conn outs 
were co xhe ved wae wr Cadt pay ttt ete wea'taud eo 
tect hay bho a1a0y Yawved To av Et~ydete swede wow orf fads jee 
eee emis aldé galewh decd poge ted to tavesen ao ‘qhera la ‘bowsreiil - 
joaoegnekh haw wiag to Laeh gaety & OF bots waniatod Ylotutonda 
iiby tidadd ban yatl cone eat SERte ode Soule alien te» 


aby aires al bet pate hoon! wena saw scaladeneitonndl Phew ne oree 
OD Ga se Ele MO Tc) Pan ito 

; vison *"Keldowoe 4a \tuow | 
ee hea Mania fe tht LORE. Ls ae 


ad be boxten ite omty ® 101 ‘tat ‘be Filed Yisalase ot at mM: * 


“sede take ithng borw'tive asin eit yom Ad meee, tote ee 


Uy 























My uw 

sdawttek ae naw ose “ot Ye org ngatet 

nonaet ont % ‘ 

Fxs00 e tates ait te tn ‘tnomabut ¢ as botnee be ret sae be ne a at 


Pers 





‘ ~OTMR TEA Le the ey PERE RE isi aie, Recah eI’ digas oe ‘ey Al a gti ot in Pe iy ; at Sk My 
Ptah was eS en ed TEN Ae ee 
| . jh g BS Reta athe oahu ve 


emmae® a, Pega gt vce 
wth aromephaane Mins Satie “ett comnaat a 
wick ity call # ca) jar teosune “ ‘4 






q 4) Me : ale ay sa i oc 


sith dente 
ia pe oad anon cant aotabae hte j 


hie aR. lh i yt BR ree Ta 


198 - 313350 


STBVART 2, SBAMAN, 
Appellant, 


~~ 


APPEAL FROM SUPERIOR COURT 
OF COOK COURTY. 


v8. 
BAST ST. LOUIS COTTON GIL 
Appellee. ) QAA TA wag 3 


he: entin Lo 


Ske, 2S 


MH, JUSTICE JORNSTON WELIVERED THE OPINION OF THE COURT. 


Thie is an eetion brought by Stewart ©. Seaman, the 
Plaintiff, to recover from the Bast Ot. Louie Cotton 611 Company, 
the defendant, two bonuses of 910,000 each, which the plaintirr 
alleges the defendant sgreed to pay to the plaintiff for developing 
& process for a profitable use hy the defendant of cotton fibres, 

The ease wae tried belore the court witheut a jury. 
(“The court found in faver of the defendant and entered judgment on 
the finding, ¥rom the judgment the piaintiff has proseeuted this 
' The plaintiff claims the first henne aiden the fallow- 
Ang written contract: | 


"EASY ST, LOUIS COTTON OIL G., 
NATIONAL STOCK YARDS, ILL. 
April 15, 1019. 
Br. Stewart @. Seaman, 
17 Battery Place, 
Hew York City. 
Dear Sir: s 
Confirming our verbal agreement, we provose to Loy 
your services, effective today, and if necessary until the let 
of July, 1919, at the rate of $750.00 per month, In the event 
+f your vork having been completed before that time your services 
_ +&04 compensation therefor shall cease. 
You are to give us your full time for the investigation 
of a profitable use for our fibre, Such use to be determined 
ay by the operation of our plant for six montha and ite con- 
operation after that time. We are to be the sole judges 
_ &@ to whether any use you may discover and present to us may be 
_ sufficiently profitable to start the operation of our plant and 
dn the event of our having operated the plant for six months 
4 Vo continuing to operate it, you are to receive a eash bonus of 
- 926,000 in addition to the salary of $750.60 per month to be 


ay « 
Me 



















ge ria ‘poten wom e came ‘ 
| rao 20d to | 





saiiedhy @ a Gira \oanie \ek das s k apenas sue “ett b ahs . 
ee Do she a A aed 
Pe peer ame Pennie SS a Ht ne SR PEK, SELES ae aa dea A 





bo Bi e wick Neh: mae iatae Lions ‘ie 
“8009 tg to ae iso ao camy ze NOR, worrent oft 
RE Sh RN SR . 1 SEN, Peal fuk i ‘ 


gle vdaaben 2 @savegs er rniveed! anand re ay’ Haat ) pee is att 
‘\emiqiio® LES ReVF oh etiot 98 Foot ont “moet eovVeout ot. thibah 


{ Ps ie 4 
asin oi # ait sae 006 ote te seeunod pre eeT, 


SOE. ie ary nabastoh ait 63s 






“3 tig io cote nie 


Se Se 





Bre et ig ae ee 


weet, r ‘duosé aw rue. ‘sat “oseted, hekas, naw apie WME ou 00s: nig 

ae snomunwt berets hae A ve ahd to Sega ak, dame’. Amana 

i abs Besuossery aed Mttalasg eat om hat, aad Bae, Rt 
ne Yh ies Peay aha amnesia tae iets he 
tat asi, ated Mids akadg OMB oo ete 

- ie hak  bpandnee, senehen 

1 9 10 orso9 em ero Bi seam were'to® Bs wow 

ai + ebed iE A ots my Ph ee ty inn awe 2m er 
u win 1 ieee pn a oe ees 

. ae 





« 
Pike he defi Phe 












cn 
“fet ogi fn 





santnannestii” one ‘not okt ite’ aye en ae sient 
1 | poi igh pp ow oe ah + ewe * ke oP eve: iy 
Bil ooo wis Sma siesom ase % a4 red dawege. wel ' 
wll. gontyt efen a2it ed oe eau ae ys Or wor 

yi! «= sage Yat ow OF Toeaetg pre Tevoesth yam Hoy. ; 

TAM hon tnafg wire ‘to molksaraqe sid 

|| edgcom xin 10% gaety ont bo tate g 
*o aimed teas w ovidowe of OH WOE y 


e¢ of tava tq conte to edie walt oo rape he at 200, 00% 







paid you during your research. 

Ve are te reimburse you for any expenses inourred in 
the said research but any expenditures that may involve an amount 
in excess of $280.00 must first be referred to use fer ow approval 
before such expenditures are made. You are also to be reime 
bursed for any expenditures for materiale, supplies or equipment 
necessary for investigation. 

All data and information which moy be the reeult of 
ig investigation or any patente that may result frow it, are 

o be the exclusive property of the Bast O¢. Louls Getton O41 
Company. You are to conduet the investigation in such manner as 
ee may deem best and all data and information which you may ob- 

ain ies to be of a confidential nature and to be given only to 
the East St. Louie Gatton 012 Company. 

It must be understood that no use could be made of 
the fibre unless the mill is running te the eapacity ef at least 
an output of fifty tense per day. 

Yours very pte 
Bast St. Lowls Cottom O11 Co., 
By J. 9%, Stull, 
Accepted by Viee Pree. & Gen. higr. 
&. &, Seaman,” 


The plaintiff claimed the second bonus under an ale 
leged oral contract in whieh the defendant agreed that if the 
Plaintiff would continue in the defendant's employ after the ex- 
Piration of the first contract, the defendant would pay the plain- 
tiff an additionsl cash bonus of $10,000 when the first cash bonus 
of $16,000 was payable, namely, after the defendant's plant hed 
deen in operation for six months and had continued to operate 
thereafter. 

The defendant alleges that the plaintiff dia not “in 
and by bie investigation ef a profitable use for the fibre manu- 
 *faetured by the defendant, and as a result theree!, dbecover and 
present te the defendant a profitable use for such fibre manufac. 
tured by the defendant; that the defendant never determined that 
the Plaintiff had discovered ani presented to the defendant a 

profitable use for the fibre aunufactured by the defendant by 
the operation of its plant for cix months after the presentation 
te the defendant of the use for seid fibre discovered by the 


: 







tiff er otherwise; that the defendant never operated its 
Plant for six months after the presentation to the defendant 











renee wey ants " stag 
ak beuvyent sesesgxe qua tet wey Cetwemtet ef ein oF - o 

dayoas me evioral yam ist? sointibaogns yr tud , aan eee 

fevetauea two vol ey gt bevxetes od ¢avlt feu 00, es ad 

emtey o¢ of onde ete vet .ehem tte eoctetibnedxe sone ams | 

snag lupe xe “phiqene ,efeletan tt ha art ye wer’ 


core ea 
‘te ¢iveox of% ed yam fo bir. iettuawiter one at 
ota.,¢4 wort ginees you tad? edmateagq you to aott, 
£80 aetted elwot .38 tua of? Yo ydseeotq Avie 
as tome dove ni Ho hieytdacvat eat fowhson of ote sae 
«do you voy dolce moldoare'tat ban atah Lie hae dead yer tf 
ot yine covly ad eo? hae otuten 2° £10 mnt oa, & 1d Od | 
0 HG ‘marek, 
te abam of Hivow ear oa thas beotethen ef Jeue on: at 
geact ta to b alaaeiesw ons of galanert sy itis out see Sow “a ene 
‘ pee aa. anes bl ap deeq sure hued 
hired Vaov etpelt 
— fio aoig9p Dire t@ sak i 
Ie a ee re Pt aa vised 


‘ 
AOE, My A APRT CORN oi ld! a oh wen “hmnake mt 
Cha na “tobias aula Badeod wit Betta heabinataeiiaaes Hk nak nrg 
edt td vous inetye tavhioton oda dondw ak dadttaes tete hoget 

«xe oi? wots Yolqus a! duabag tos of Wt odubdeiod Ofvow Tratmtalg 
nthaty od? yoq Bivow Inka tes ol} ,somrgaon Yet etd Yo mabvarke 
auned dase dexhi odd oodw 000,018 Yo abled Mees condbeinhe ae peed 
hed tek ottaohew'teh acd aedte ,etnawn po tdeyag saw 000, 000% 
eiereae of beuntiiacs hat bas aladmh ate aniuheriorataen’ ab aed 
Saiialied seo umotentt 

ae? ton ha binges ent ae ae se 














he he 






test hentawetod thver basis teh: ast easth’ pene 
Og geubinetteb' nd of Pith bit bist etevone, 





ef the use of said fibre discovered by the plaintiff in and about 
the utilization of said use, nor did the defendant continue auch 
operation after said six months; that the defendant did net at 

the expiration of said three months, or at any time, promise the 
plaintiff that if he woul’ continue in the employ ef the defendant 
at a salary of $750.00 per month, or any other sum, « further bonus 
ef $10,000 would be paid te him, and that the plaintiff 414 net, in 
Feliance upon and in accordance with any such promise, continue in 
the employ of the defendant ao alleged; that the defendant has paid 
te the plaintiff all of the salary, compensation, and consideration 
‘At agreed to pay him for all his services in saia declaration re- 
ferred to, that vere earned by the plaintiff and ever became due te 
him from the defendant, and that the defendant i not indebted to 
the plaintiff in any oum whotaoever," 

The controlling questions in the case are questions ef 
‘fact. To state and discuss in detail all the evidence would unduly 
extend this opinion, There is conflict in the evidence on some of 
me material Lesues, but according to our interpretation of the 
‘evidence, the preponderance of the evidence clearly establishes the 
‘following essential facts: ‘The plaintiff was an expert chemist. 
he defendant company, which was owned and controlled by Armour & 










any, of Chicago, Illinois, and which was iocated at Kast St, 

is, Iliijnois, primarily was a cotton seed ofl mill. John Walter 
was the vice-president and general manager of the defendant 

- In the precess of extracting o11 from cotton seed, it is 
sary to remove the cotton fibres that adhere to the cotton seed 
ie done by means of a machine known aa a cotton Llinter, which 
the lint from the seed by centrifugal force without “breaking 
F injuring the seed," All of the lint is net removed when the seed 
) un through the linter machines the first time, and the seed is 


; ‘through the machine a second time to remove the fibres still 








tuode baa al Yritakely eda yd bone voon th onda bien 0 ons vont 
ae puaitagg intabae ted ade, nah. 59m. ro bhew to motdan asia * 

| He, Poe. dLE A amb ite koe ode add yectaom ate tna etn makers 

ws eae “a hinotg , Oats Yee dat *e. a tuléapm pesds, Adae, ‘he “nobdaxd oon 
toadae ted 26t eo yedqnm ot ae aut it00 btwoy, od uu saad ‘rdvata 
anand ediiu't 4 ae The Yan to. ddaom eg, 04,0808. 20 yutae ie 


Mey st sehen * 


“ee toa Bib Vibtatale ods sata bre m gihed of biog od ptwow : 
eek awnts ties ‘(etkoorq owe “ae ide apashre90e ak. nm megs © ° cad 
bing aad taahaeted od? soit phoue ito am tnabaniae xslt Bvt ene 
tiohtazebionno bine <TR SOO R: “gigne Lae ont te ‘Le witatase ‘cual 
“02 netiarnlooh blag af agplyien ald LLa tot mis we sl one al 
of ogh smnood “ave hime Vi ilsate ta ede wd hemtee eer, etal, 109 boxe 
of Detdehsd ton el dawheetoh edt past haw ,dnahew toh ef? month r 
*, Sere qu dn aie wpe). gon ail Vibtetode & 
to ponroniane ote eane sit al asoitnoup part. ae Aeron dy 
Xiubow biuow sxeebive edt Lie {Lote ak snth Mecenensaie 
30 omen m0 vondive ed? ak toALaee. eb. oxect, seaceaaanciun anid 
8 To modsedacqnetat we of naiitosee ded earns Loksopem @ 
ald pace lldntas ylsenty oanvhive aie to sone ke bIQgGetg ne a aos ° | 
-tehuedn dxeqxe as saw Ytitalaty aaT sates't Lotinnens yatwont 
8 twomts Yd beiLouton has Bese sew dotdw yyanqaeo fashae tab e 
«18 tanh do betaoel aan dose ono, ,esoahsad, ein. mene 
tredioW ooh, Adis Lie boos satios w.saw qhivemiug pehemk sel 
_ MabAeTAd 209 To TeysnKe LoToMS han saehtnoweooky om amtite 
wl gh bane soeten mort Sto. gattentéxe, Xo, aamporg weld at), een a 
home nottes edd of oredhe ted. aan kt notion: eae prone « tia 2a¢e ‘ 
ety \yotukt mosis » Qn avoml taleans # Ko ouayend emghiatons 
Baiieerd tvecdtw soxo? Soputiasaee yo Sooe at mart dmbimdemoyas 
booe 1h nes hovouns ton ef taht ont Teka. ™ pone ent eater bed 
at boas oift bon oaks $0727 odd woutionm eetahh ealt Myre mr 
ABER soNEE't oat ovgaen of one haeweR Mm NE . 







































adhering to the seed. ‘the cotton fibres which are removed when the 
seed ie rum through the linter machines the first time are called in 
the trade first cut iinters, and the fibres removed the seeond time 
are called second cut Llinters, These linters were a standard product 
te an ofl mili. “here was always a market for them. After the first 
an4 second evut linters are removed from the cotton seed, the seed ie 
put through hullers where it is crushed for the purpose of separating 
the meate contained in the eonter of the seed fram the shell and sueh 
aéhering cotton fibres az still remain, The separation of the meate 
from the shell is accompiisied by shaking sereene through woieh the 
Meats fali, and on which{the ateli and fibrous mass collieet and then 
fall off. ‘this fibrous mass is imown as cotton hulle. The cotton 
hulle may then be ground by one of many preaesses for the pwurpese of 
Fenoving atill another grade of evtten fibre whieh: is known as eetten 
hwli fibre. ‘This cotton hull fibre is distinguished from the first 
a2@ second cut linters which are renoved from the seed and not frem 
the hull, im that it is usually somewhat shorter and often contains 
‘ on seed shell, Sarly in the Yerld war the demand for cotten lin- 





in the manufecture ef munitions increased to such an extent that 
. Was a shortage ef cotton Linters, and a large demand arose fer 
eotton bull fibre in the manufacture of munitions, The defendant 

n inte contracts with munition companies ‘eo furniah them 











eotten hull fibre. In order to fill these contracts the defend- 
erected # separate cotton hull fibre plant at Zast St, Lowls, at 
appreximately ef half a miliion dellars, ‘The maximum daily 
diy of thie plant was from 250 to 300 tons. When the war was 
the demand for cotton hull fibre for manufacturing munitione 

« Prior to prohibition the defendant had sold the hulls te 

: t leries at Peoria, [llineis, where they were mixed with refuse 

M the distilleries and used as w feed for cattle. After prohibi- 
B vent into effeet this market for the hulie was closed and there 


| 
Kt 


cars 


SS SS — Se et — 











toutote Biabasge a ovw nxstall vacdt | f 
dort eo cotta ment *o% fodven b ay Le tae cred? wnbeciyer 
UE boew ont ,Soeu Moston Ad¥ wort Havenes den OTL peas 


 gabseratos to adeqmwe ont +0 peldwet at FL otortw vi tut ityuiorrins 


dove Bas tfora ote mex't beer ene 9 cetiee wey th wh tdi bivon | 
ateom oct ‘Yo wotteteqes watt | knwo Citta ee wondEY ngtvoy hihi 

“grit Relow quote iveroe yibine YW beilediqoonne ak Ctwithl! with! al 
noid an Toolsod wate awovdtr bow Lhe icra tite. 80 han toa eal 
' gediod Ht Je Ttet Wedd oo wm bwomd ok wean avorvrhy eter tte 
Lo saouteg S20 YO? Sones uTe’ Yh “to Bao Ye Bevery ad mene ta wit 
nesien an cvoal at code otk? mbes to ebaty xidroma. ete pawl 


Sexk? sit? mort bedledeyaisets eb ordi? Crud modded ata wai « 


0 



















‘poe? sot ban howe off vor’? bevouet o@e he Site wrodehe ‘tao 
bntadaon wetto tue sal eede podwsiton Vitewew af oe ‘yaw Pe ti 
ati Moston Tet bnewoh 9 Yew beeow ond wt vito, Ltede howd fe: 
dete Yoodee nw’ Howe od bewcotont vaots fae Lo ornibaYwnne ames 
‘tat aeorn Bonu ‘swial os hater ‘late tiehe nodioe ot Spa dcoide! a 
‘tradi ted ett lene te totgin Ye ote tentunen ont baal yrdk 
ena teberet o> woludeimie mots team “ity bo wiieatdines ti 
aAebtod Gat edowntned wesrd’ CLeX Ot Swhve wk Lordity ietidd! weds welll 
te’ jabived (70 taalt da die te exert Love cote! atarcaion a wioone | 
‘qdhab munbean off etek£on nokiLin b Theil te Utedubrengee! 
page gale este aH Vener ob a O88 mor Riv Doikity’ ‘he ww 
* pio te Hoa galt ied oe tinct xo" eit Pe LRiut arene Sail om e 
9s efiwe ext b1d0 bait Shwbian'ten ocd KeAP ie sitety bt aoae hil 
pewter detw Soctn exbie yous erode \abontier | ab ta ore cehs 
wkd tebe Yor ta seitten “vot bet & as Bowe bit bothetereeinw 
o'tndd bee bebo to waw w6tii wie” 4o% re aS 











was no other practicable market for the emie of the hwlie. In cone 
sequence of the lack of a market for cotton hull fibre and ecotton 
hulls, the cotton hull fibre plant of the defendant was idle, thera. 
by causing a lose to the defendant of about $300 a day. To remedy 
these conditions the defendant was endeavering to Sind a new use 
for the cotton hull fibre. With thie end in view, Stull, the vice — 
president of the defendant company, consulted thé plaintiff, Stull 
@xplained the entire situation te the plaintiff and asked the plaine 
tiff if he thought he could find a use to whieh the eottem hull fibre 
could be put, so as to afford the defendant a continuous market for 
. the cotton hull fibre. The pluintiff stated that he was confident 
he could find « use for the cotton hull fibre and suggested the 
: possibility of using it for the manufacture oF Goliulose acetate, 
Moving picture flim, artificial silk, leequer and vaver. The 
plaintiff was shown through the cetten hull fibre plant of the de- 
“fendant anf also the defendant's of2 mill, Tae cotton hill fibre 
: Plant was idle at that time, As he went through the cotten hull 
‘fibre Plant the plaintiff pulled apart numerous bales and inspected 
the eotton hull fibre, and from time to time “advanced some of his 
ideas." ¥inally the contract of April 15, 1919, heretofore set out, 
was entered into between the plaintiff and the defendant, and the 
Plaintiff at once began experimenting with the eotton hull fibre 










With o view to making a successful paper pulp for the manufacture 

: Paper. The defendant had to equipment for making the pulp, and 
Was the intention of the defendant, if the process proved suc- 
#eful, to build « plant for that purpose. The plaintiff con- 

ea hie experiments with a view to making pulp paver out of the 
e tton hull fibre at the Little Laboratery in Boston, Kassachusetts, 
the Penobscot Chemical Fibre Company at Great Yorks, Maine, 

. 4efendant shinped cotten hull fibre to the plaintilf at beth 

of those places to be used by the plaintiff in his experimente, 








ongo' al seldnst seit To ofee ead eet 2enltim oldesttonaa ctnvtte om a 
notion fm etdtY Ltud notiwe ao doatcmen a Yo alte £) esto i 08 
~o1edd ohh new tnehaates ont Ye fante oedst Last mods oe pore 
ybonen of sab # 008% taeda: to daadueteh edt Od, anol a gateund x ! 
ee wen g halt ot pakvavassite Kae. inate tab est eto Ls thans, sued 
ately ed? kinda ywole at baw ees AekY ond EY Lie odte0 edit 
List@ .Viltatedg sit dadivatoe ,yaaquen tamhanted oot lo tamhlewn 
 atkata eat? bevax hae Wb aletq oul ad soltautha ontine oct Bembmkens 
(ptdkt Lyd moltos emt coda ed sowie bat'Y Bieow am Sutgueds wit Th 
i sot soyxtmme twowstenes @ sanabwe tel eit bteTin ot ae om (dee ad fiitew 
dapdi taco now ort seule homeda TTRaLade eal ome et tat mostos! eat 
ont Netoveyne haw wed? Lind motion ed cet wal iw hat ae 
 sinsens eaoinifes “te artwden terres bait wor eR gakey to: behddes 
eek sexed bee sergeant, ile te bet ese vest orutoe nate 
<0 oat Xo Sante weed Ede. jeodtivos ente: Aoarertg: weeacia, naw Theat f 
eed fii anda en wet yh ie fdo #7 snmbie ten end: oute Baw Pome . 
Lind aotsoo vid dawotts, teow os wa omy tat ge otbt aw dash 
betvogsal has eelad myoemrm suedan fo Lang wssnhade cad denaidieg 4 ts 
nin le omen beonemheY ambit ot: ombd mar mr MMA Adusd aotspa amp 
200 fem exelotomed , RAL 2h Lingh te duwttnop nus isin Naaobn 
ocd hie 4 daaho ted, add hrs vandenehiaigiiaeaaiae 7 
































“on Rovety aepoorg, ost TR sfuabastieb wit we motymesat ante 
ato Tt Palate oT seaowtg taut TOY toute ork 

ott to two seqee atu patie of ety  odhw: eden spee wal tevinast 
\aileeusionreati ,cosne® ab yrodaTedud 9het Da wily ae weet Ete nade 
wink jena seone: 0 a qwe® edEN Knoliond Focndonet o i 
iad te Tetsaletn wits oF onset Lh thishan'tah sdf 


‘the plaintiff did met use cotton Linters in his experiments. After 
; experimenting for some time the plaintiff? eonvineed Stull that he 
‘ had developed a process for making @ pulp out of the cotton huh 
fibre that cowld be used successfully for manufacturing paper, The 
pleintirr was enthustastie sbout the procesn and ec war Stull, S6 
: enthusiastic wae Stull thet he agreed to give the plaintiff an ade 
ditional bonus of $10,000 on the same terms subetantially ae the 
“first bonus. It was kmown to both the plaintiry and Stull that 
“other companies, namely, the Southern O42 Company and the Amertean 
Gotten 012 Company, were making experiments with cottom fibres with 
8 view to using the product in uenuFacturing paper; and the plsine 
“ure and Stull realized that ae a business proposition neither the 
defendant nor the other companies could donduet an independent 
ess with suecessa, Hegotiations therefore were begun between 
“te GSeuthern Cotten Gil Company, the Amorigan Cotton 642 Cowp any 
the defendant fer the purpose of wilting. Heither the Southern 
Patton 011 Company nor the American Cotten O12 Company had any 
e mo hwll fibre; they had eotten linters, Furthermore, it was 

















that the United States Government had a tremendous stock of 
linters on hand, an4 that the priee of cotton linters had 
cheap, According to the téstimeany of the Plaintiff Hoekeli, 
sentative of the Seutharn Getten 641 Company, otate? that his 
iy had burned up a large amount of their cotton linters rather 
to continue to pay insurance on them. In these clrounstances 
e Pleintirfr and the defendant decided te abandon the plan 
enting with cotton hull fibre and to Join with the 


of ex» 
other two 
mies in experimenting with cotton linters, At Hopewell, 


» there was a large Supply ¢f eotten lintera and there was 


there owned by the Dupont Compony which could be rented fer 
eFimenting with cotton linters, In this connection the plain- 
a testiries as follows: ! 





any 


WIA attominvgee etd at mxerals aotton ean dom bth Whealetney 
‘em tad? Livha Bosrnends Veitatnle ocd el? omen eek gehen sllad G : 
thei AGatoe Seb Le two Glna-e Dabinw tet eupnonq a bomokeyon id 
att ° .asqeq watreten'tuada Ot qldu tensor: Dt od bku0 8 howe 
of —. ERNE Hae ok bee eHonera met taeda: okinodegsiag eam, : tate 
hin Wide te hea fer nate wey nd: Roonpe! ent same -LLesB ome ehtonhenth 
edt an ¢liotiovdadie gered some oct) me 000,028 ta enmedsitninhit 
gait Chee Ror Vubhide te en wited nt smamt eam Poe A 
 peokeem oft See yon ged Lh0 mw ditye? adh a elonine ke daneeey wa 
‘dtiw gardlt netics vtiw eduemiaegas yaldom etow,. qarqmgd, ko. mod: | 
wale fe dd bam pregne wabor ew tonam mb domherg odd gemknn, wt on 
odd tee bon meth iongexy Reweterd « an aasle Doakdaos lambda ane ' 
tmepasested ae tookae® Ninos selsaguog edie add, yom tas 
ardwted tryed sow WKeletnds Gaoksaltoges ,etevous tke quemss 
reed £20 mITG9 sow fiom alt enaged- fhe a085 0) mrodines : 
bd os Oct andttod ants dee bo seoqiwg ene oT aban ton | 
“ye Reta en eer EDS weteeD amoizegh wxlt wo 
‘naw oh  otomrectyt .ecatets median hart ynult: ett, bad 
te sede nirobnbante o Best snomnnered vodng® hod Lat et sath ne 
Ret @eerokl modoad to oot add toe fame Danis WO OXDsARS, Me : 
Theta se, Yitsate ke Whe Te yr eeed af? a Bak bt op tn 
eid tasty Sesete -Chigned £20 matioo amontwe® att Re mvbhcatawmes | 
eertor we date aetoy whore ty Seon ourad tae arr: Ba | 
“nein tautro's to omits NE” amt ve Sonaneamk ym oo aoe 
“ko “te hake Wie ated of Heh tede ee a 
ot testto wld oo bw mkot oF paw eet: Lid angie: Aa a8 
(tkewaqel 2A wiih S metding aegw Rake amet Ung ahi 
any erat bee wtOrmeT aodtoe to phous ote Lm mam OHM: 9@ 
xt Betner od bLwed ote atc ga tsa od 1g otamm, ments tie 
ih st ont eon able AT yaeeeke: enpatisieses 7 ' ” 


7 STAR Kh Seubimdiatin wes ah aime 






































"Romenber, the hull fibre does rot have to be out aff of 
the cottan hulle, but cottom linters fust be out of f from the 
eotton seedy #0 it wae » commereial condition that exletea at 
the ent of 1919 when we tock over the Dupont property, that br, 
Haskell atated «-- meant that we wowld have te switeh our raw 
material from cotten hull fibres to eotten linters and aeked 
at that mecting in Savannah whether I knew if we eould cook 
cotton linters making ae satlafactory a preduet ae we hed in 
cocking cotton hQli fibre. I told nim that I theaght we could 
do #0; but what theese interests wanted was net an opinien but 


an exact test." i 
She combination of the three companies was formed and 


the plaintiff? was sont to Mepewell as agent of the combination, 


‘The salary of the plaintiff was advanced by the defendant each 


‘Month, and the other two companies paid the defendant on the basis 


of one-third each, Gubsequently in ware, 1920, the three came 
panies were crammised inte a company mown as the Stamsoeott Com 
“pany. Stull resigned from the defendant company and beesme the 


general sales manager of the Stamsocott Sompany, ‘Thore vas no 


interruption or change in the management of the business or the 
‘Operating of the plant when the Gtameocett Compatry wae organised. 
: business and operation of the plant ecentinweda ag it had before 






1 
ae 
te 










the plaintiff was agent of the three eoupanies, The plaine 
Temainad in the expley of the Stamsocett Company and his 
wae lnoressed te 9900 a month. By Hare, 1920, the 

if developed a pulp which was considered good enough to 
sent to the trade and the Stamsocott Company began the sale 

F the pulp. the same process exactly was used by the plaintiff 
he was agent for the three compunies and when he was in the 
ent of the Stamsecott Company in developing the cotten 
into pulp, a8 wae used in develoging the cotton hull 
into pulp. The Stamaocott Company used some cotton hull 
as well as estton lintere, The business at Hopewell cone 
aw from Hareh, 1919, te June, 1923, Im 1991 the plant was 
ut down for five or seven months, In 1923 it was permanently 





















te Vie dye od o. oven fon neek ead ht ‘Ried ond 
odd act. The 2 at vient nag 14 an sod Sie, dud. : 
a Redo ixw bai gd ee hades | 

ot gat bt csaeant 8 or swe 

ee Lene eve Share oF tant Me =m Be kfokee! 
hectpa bane winetaht aodies of aantit Lind | ane wert ioigedte 

avon S£eroo ys “E wens _ eat one Ban tenen dace. 

ak bod ar ne mene’ Mt %o! asta An, Be, Lie 

piyee ow degpetis I taal wd bE gegen ae ey 
ond agiatge sa toa. + Aer, Besa “aioonsdak saul io a 


sedvones f 


baa bette’ vow _—r emtdy booed te sotbent non bl 


ey Jashivn'ted etd ee disbinns’ naw ~ i ig wees Sh 
eave te BASS * 


eines ous ao L aaniannd ad haw eo kan00 ove aside alt 


“ea ‘ear’ ‘le “eile thoscomat® wi te’ semen | 
eine NS ath bie Pa 


eit 40 Ba mandosed a to od eat “a ‘epande te os 
wee ae Rae yi ca si 
“shed itaaie bd hoomsesreth Libinengndal ott ede tule a at 


alate wet Satan or iol’ Wi, pod tov 
hee ‘bale — cicsaioee 1 SATB le aah te wi 


wh ah snag 7 


sai a aie ial Wilde Ds 1 Weil dle! omnis vay aot ange, 

Hos? a0 ane BAgatovad at cared Ptonwsmnst oat . 4 

j Bh iN ae Ray , eg pon: 

tind notes oid gatgotoreh ‘at ‘brew war ae mere ofa | 

Lent mation smon® bean ‘einqual “tonomme’ 
mit Edowrs qa te feeadswd nit “atetatt 

ant’ tanta one kook, at atte pe a a 


sacl ge 
eetaeamaetog ‘Rew 3 eek Pi rani acs 











I soved. The business at Nepswell was net succeseful. The Stamsce 

) gett Company lest upproxtmately half a million ef dollars. The 

{ eetton hull fibre plant of the defendant company at Zest St. Loute 
ata net operate, It wae practically idle. 

| ¥ron the facta whieh we have stated we are/ef the 


epinion that the conclusion necessarily follews that the plaintiff 

















Ae not entitled te recover, 

It is contended by couwisel for the plaintiff that the 
dence shows that Stall promised the plaintiff that the contract 
the plaintisr ast the defendant would met be affected by 
“the Ofganization of the new bueiners at Hopewell. ee do net think 
at the prevonderance of the evidence eatabliahes that facet. The 
Ntiff testified te that fact, but Stull denies it. Further- 

e, there is evidence tending te render probable the testimony of 
« Gn June 21, 1922, the plaintiff wrete a letter to the 
Stam: eott Company demanding payment from that company of a benus 
/ ‘ f $10,000, In the letter he said: 
"On Mareh 31, 1919, 1 made a proposal te Mr. Stull, then 
| Ylogeprontdent orf the Rast St. Beuka Cotton O11 Company. Sub 


 S@quently this proposal was modified by the East St. Louts Cote 
_ ten Cil Company to pay me a bonus of $10,600 in cash as and when 


es h "Btaaeeentt. company, pith sr i cabal tg proaise the rN a 
i, The plaintiff further stated im the letter, "the bonus 
# deen due and payable to me ince January let, 1921, ‘nder the 
tances I am submitting herewith formal request for the pay- 
t oF $10,000 in eash with interest from January let, 19m." 

From thie letter it is clear that the plaintiff is 


it Telying on the contract of April 15, 1919, with the defendant 


. a 


Bpany, but considers thet contrect as having been merged into 
socett Company, He is holding liable only the Stamsocott 
But the present action ie against the Best St. Leutis 


, 


| 


SPOILS Ee eae ee oa 


rf 
i 


SS OSE RE RS 
Loa, mitten Sr ms 













one ts wee ~feftaneoaws 9 ene eaw ikewe gon te eovaiend nn 
ee ee Sf EY. % 
att: semacioe ‘te coo ae a ‘es Mototerece = eee wi 


ohh ‘eineiseeng eww Ce ase are: Aa re 
ont ‘ye\ens ow potaga owed ow ae bite. agent ‘eat ee bx 
Pe eth ty bath igen we 
Vetdahete éah tad? awal tert vllussesoos aotavionas’ edit taltt wie hath 
steVOGOT 8 heats itas som. 
end dad ith babe fey add x8? feomoe yt hebaesvace el Ps aa he 
font tiow oft fade Tritsia lq edd peateecq Shee aaitd even soanne 
(“ee hotootian ad For River sasbasiteh end bow Vrasabe Le ve ow 
dnids gon eh a8 .Sieweqek te: eyo mand wae ealt to. mt | 
ont , 390% tone aeel Masew secedive edd te eoannananeese t/°th 
atattie® (sti aelaoh Lint tye , too? tadd 03 pawttomed nbe ata 
te You tase ont 4 Lhotong: Reh mee: eH wat hows socebive wl eteati em 
eaten asttes « atorw Pedtadese old OROL, +18 nat sD hs 
auned « ‘ke eRe geee: deus Kot saowyog guijanaes. eamaued diowe 
“thine on wrtod ond ak, “woayont 
wedt ;£owee . ot of Laeecetg * oma I (eeen yee Kosai «0° ot 


dpi «oer ge iiQ. aotte? ehluot .38 tend out te soabia 
“$08 wkwod st tue® oes qd Pedtibem eae hot yt 2-9 wane 



















mee bus te Hand at OOO, 88) to sumed « oa 


oa of se mina ae 


sb aw Dee 37 aang 
exrod oar? (ter sod ‘edd ak betede tesgty't! sti snabetie pitt 
any Keb 4 LBOL peek {Karey ooete pm ad ofdayed bale ast: 


hn 


syonbuinee add vlad ragailae L eitoe ate . an . 
aivet 6#0 tmat ot Soahage wdinom ! 


~ 


Getton O11 Company. Furthermore, the plaintiff is demanding pay- 
ment from the Stemeccott Compeny ef only one bonus, apoarently 
heaving abandoned all cleim for the second bonus, Im this connee- 
tion both Ghandler, president of the defeniant company, wnd Koogh, 
attorney for Armour and Company, teetified that in conversation 
with then the slaintifr oleimed only one bonds, If the contract 
with the defendant was marged into the Staneocett aed" oe ax the 
Plaintiff himself snys it was, then Stull's promise, if/any legal 
effect at ai1, would be binding only on the Stamaocott Company, 
whieh (de not a defordant in the gresent action, Gince the Stamec- 
 « @0tt Company, however, was composed af two other companies basides 
“the defendant eompany, it is highly improbable that Stull would ate 
tempt to bind the Stamscestt Gompany in the matter of the plaine 
4ft's bonus by a more informal oral promise to the plaintiff, 
Moreover, sinoe the plaintiff te claiming two bonuses in the prea- 
“ent eetion, tt is diffieuwlt to wnderetand why, im bis letter from 
“whieh we hove quoted, he refers to Stull's promise ae to ene bonus 
only. In ony event the plointiff should have explained why, ace 
Srding te his letter, he accepted without protest Gtull's promise 










‘te te one bonus enly ont 444 net ineict that Stull sheuld inelude 
in the promise the other bonue alee, The ineonaletent sesition 
. whieh the plaintiff ploees himself by hie evn letter renders 
, ble the etatement in the Latter that Stull promised that 
bonus would remain in Terese with the merger," 
Counsel fer the plaintiff further contend that the 

on of tie plant at Aepewell by the three companies fer 
the plaintirf was acting an agent, and slseo the operation 
y the Stamsoeott Company, wae the operation of the plant con- 
exp: by the written contract of April 15, 1919, between the 
amd the defendant compeny. 

In support of thie contention enunsel for the plain- 
that the term "fibre® as usok’ tn the contract was used 












rey | i 


oe gathasaad ek Yitsmtete ont seromredtrart .ganguad £20 mite 

yftanse wae yewstod ene eine te eA geno frp onmte oatt Saulsien 

“oe attos aise ak ssestod haan ane ‘te sabe fo tel wetoh ad “pa 

sige hae .yasquee tet Aste ott Ye oh tong 9 Dhan ies od ao 
aotieeteracs mt sau's bettiteos ragaod bas cwowtk 26% whe 

_toertaes ont? ‘tt timed sae yes hontato  iiadade | wn hae ‘ ; 















tek qa ae eo’ Livae woutt , een gh ovee “ateeintat idk ‘ 
| Yetn qed ‘Sooseneda ext uo ¥ine ‘yadbaid od piuow the te te 
sonmsdé end oondé .aotton daonere old nt fonhaoten. @ You it Bi : 
eohised weddagnoo teisd Swed te Pevonsios saW ,tevewdd’ ee | 
o$@ biuow Lindi dest sidodovamt qitgid af vf  qndquey thenae ten ie 
 antata od “to seiten oad al eae god frovotmest oat bate wee . 
 Yihende tg add of oeiaorq into Lewietat ete a ve igdod aE 
““waexq odd of seammnd od galiivds wi Tivate ty wtf wonbe’(¥s é 
movi gotiak oti wi .ydw Aaoderenay of tue Ptean of PE jtotted 
armed oae of ne gubunxd a Live® oF exoior df detedp eved 
ile herite Len ernst ntwode biewhaee heal tans ‘wid at 
















! “vat fond Lito ee thors suite” devsdt! eas at | 2 des 

er ee ea ees : 

“eS tastt sadtnde wadhaek Yi Gats re wkd ROY emerel ‘ . 

get eo digas Head one Yd Rhdvoge ere outa 8 te. el 

Perea mn eee saaliepabnie wat 

Lined take eae to HoLeamnge OH) wn eieigmad: ee $89 
add iesornel ones wisi shea’ bial iichidal | onan eet ed 


Be BA be ea oo) 
























aie RSS ahs 


oe watt ‘gat xb? Leaanoa mi 


fim ite generic sense ond ineluded both eotten linters an! smtton 
en fibre; that the words “plant* and "mill," as uwed in the cone 
tract, meant a plant or will wherever the defendant might operate 


Bas, whether areeted, wiather to be erested, or whether rented frem 


er ce ant pe Ss ——" ee 


ethers; that at the time the contract was exeeuted the defendant 
a had no pulp plant at Masi St. Levis, and that both the plaintiff 
* and the defendant contemplated that this plant should be lecated 
é, where it could be wost cheaply operated; that the plant at Hepe- 















_ ‘Well was operated in the manufaeture of paper pulp discovered by 
the plaintirr; that "it would be an unheard of thing if the law 


@onclusively that the written contraet of April 15, 1919, w 
utually abandoned by the plaintiff and the defendant, ond thet 


panies, was an entirely new enterprise which was not contemplated 
at the time tnat the contract was exeeuted. We have heretefere 

| _ the reasons shown by the evidence why the contract wae 

r an omed, and it is not neecesoary to repeat thet evidence, That 

t : agreed to the abundonment of the contract 14 shown 
by our statement of the evidence. PFurthermore, the fact 
subsequently, at the time that the plaintiff severed hie con~ 
with the Stameocott Company he recognised that the contract 
hat been abandoned, has been shown by the letter from #hich we have 
0 a, wherein the plaintiff expressly sayn that the contraet was 
inte the Staxsoestt Compeny,” and mokes « demand fer paye 


it of “the" bonus by that company alone and not by the defendant, 





: 
y 
i} 
it 
i} 
i 
ap 


} ol 
| of 
' : 

BON vent 2 Soh MNS yc Ls a ee LS Oe ek 


: 





~sedy bath en mo, Tyan ne a, Se a 
Oietege daiwa Janae teh gtd soretedtiy Like 10. dade & Aamve, 9f wih 


HOLT Helse soso co ,heloete of oF teadniy ,~hegonee 





tanpasted ade heduegxe eaw towitacy adt wade, at to sent soxeate 
Foitglaly of dtod sak der Rduod 46 Jaod te tos ke qheg om owt 
botanol of bined dawlg 0264, todd bode loned aoe, tuabeetes wat had 
angel ts tan kg aut Gut poetetoes ehanade ¢eom od bfwao $4 ooate 






















Nel fetevernsh gfud seqeq Te eredectuucm od@ wh botetegovant iO 
| Wad esis LL Bas Le breodiny ma oF hdwomdt® toe ftpkembeee one 
oat nd DON Rte od Rison getien a test ed od, bho od hee 
a ya botorvonnd we crating a Ak gables, eon, ome: he obaves ? 
i wil, fe: dia shal” Saves BMG Wat a ee * amead : 
mine geod? Le Lia.oe ewe Adiitiies a te Reape saw Oe = 
awenn sommhire oa jade oh Teteniele nds bashing 2anine ! 
(Misi G AEAL 2k Ekagh Lo agatteee cds kre ne dealt qlewls ‘ 
ted? bie yonhuo teh. asld dam Vitestese ont Et heatwiseneln ek Ln 
ethno eet alt wd betaveqo Raw dolde , dowoqeR da passin 
Heialgnecagn toe, aa vohiv eoiggtetas wer ghetitae ie Rae 
oaviotoned eval oY .esyooxe aay doatineo aad dak g 
hat Poet Ao eds Yhe eodad ive ant gd aos aagean ed 
todd saonshdve fact teaqer oF Yueseen Femud FR ohm Me | 
awode nt foettnbe ef8 he fnomebasds ditt oe, hoota oe iy 
ton? a2 ,oromnasitmw’ sobnaiive glk Ie Pawns tee mw - 
atoo wat Docevea ‘Videmtade wd? fats emhs wate far % 
tome aes et steals hoa tegones ot vee erancantt As De a 
ove d gw sis hiby ott Botte Lowdd qt mete need wit yhons us ” 
nae Pdoutawr ong ted? coed yduaeonote RRR abe Rat ele side if 
aye «et Saaek » eoden hate *  waseangte Shas cones bel ovat 
stnatee’beh ot et Hom te aL teased tay: i | 7 


hoten gar teagan watt see jae aa Mane poking Mat 








POE a, Ai) AY NT CAA Ee ED PAU eee Pies Vee eR Te 


j 
i 



























We do net coneeda, horevar, that the tearm "fibre" ag 
4 a 2 in the contract, included cotton linters, ner that the words 
tant* sod “mill” meantany plant that the defendant might operate. 
| the contrary, we are of the opinion that it clearly appears from 
evidence that the fibre econtemilated by the contract was cotton 
fibre and not cotton linters; an¢ that the phant or mill ine 
was the defendant's cotton hull fibre plant et Uaet 4t. Louds 
, hen had been ereeted at a cost sypreximately ef 9500,000 and whieh 
Was idle after the war because of the feet that the defendant could 
| c find a preritable use for actton hwli fibre. 
We do not think that on the facts in the case at bar 
yun sel for the plaintiff are justified in contending that the de- 
: mt has attempted to nullify the contract by the "device* of 
ak mg in a partner or én eo rporating the business," In our epinion 
1 evidence clearly establishes the fuct that the plaintiiy end the 
2 % by stutual agreement abandoned the contract of April 15, 
ie, and that the defendant entered inte a new and diferent enter 
t ) with two other companies, 

In the view that we have Sakon ef the cage, it wi} not 
gary to consider the contention®/ counsel for the plaintiff 
| te the prévesiticns of law. It aleo fallews from the cone 
nto # thet we hove exvreased, that it is uwnneeessary to determine 
, on whether the plaintiff suecesdod im developing » pro- 
)weing profitably cotton nul) fibre, Assuning for the sake 
% that he 4id, the process was not used by the defendant 
plated by the written contract of April 15, 1919, between 


ey 


Plaintiff and the defendant, but that contract was mutually 


and the new enterprise ut Hopevell wae entered into, 
Yor the reasons stated the judgment of the trial court 


ly, >. J., ond Matchett, J., concur, 


tf 






















"yito ots Gade “took Swen na htae dba yaa 

* Wewinee sign dnadentes ont todd ‘tate’ tn ee “ig, 
meet wceonye Yreets #2 Sadt aobitye ‘and te oma ww’, me 
iy i wuhinnllued ‘Paorian adt ot Batatemordss ordre ‘odd fend te 
hice tthe ve heomnai Sas tant wna shaigui ole bes bio inst @ 


tia’ ‘the G60, 008 a qhotombeatqen eos a” ‘Aha ne deka ell 
ut diesidiichail ‘ere dade Pout “ath Ye ‘eeiend tor nde etd & 7 
pense soeditt Lted ndttoe You oad otdad Prede's 
get $e dung belt ot tant oat me dale Makdd don on ae he te 
ee ee ee 
“tg Aeutveb euth ooo Peweinde NMe WERE GIN ay SeirqmnneA Wad Sal 
aeiwige ww at *,seenkeod ome want tart ocrs ot mit “te “ood tae 1a ay 
ee Ce oe ad voile Ltda ved gcthete « im 
Sie Ge eT Pee ee 
“vit Since oa ‘Win | itt desire unas t's 


wits 8ad oret evo Lor a tHE” seas niet shee 
oatardten at Ctorneno dia AYE tach \oomadidee & 
eeead rr at ineecanintd — it'vid ey 





paneer gaw forntaos deel Card” bee suas 


NS Saat ende ‘Haw Llowidel Hu ‘wedterediy dow way 
lag, aden sh ee tenmcanattcsnth fotaae aaonaon x neh at 





aye as 9) wre 
Pe aR ae am eS I Peano: 
' 





260 - 51322 


T. 8. GRASPORE HILLINGEY 


COMPANY, a corporation, 
Appeliece, APPEAL PROM RUWICIFAL 


Ve COURT OF CHIC.G0. 


gd. BEACH, tracing ae 
TRIMSES HAT COMPARY, — 
Appellant 


& 
& 
a‘, 
Pet 
{ 


MR. JUSTICE JOHMSTOR OSLIVEN<S THE OFINIGH OF THE COURT. 


Pnis is am appeal by 5. J. Brash, trading oe Brash 
nme Hat Company, the defendant, from a juéguant ugeinet 
the defenéant in the eum of $110.50 im un action brought by 
the $. B. Gravwford Miliinmery Compeny, the plaintiff, to 
recover the price of horses bait braid siieged te heve been 
" eblé by the plaintiff te the defendant. 
3 The case was tried before the court without a jury. 
* The defendant contenic that he never purcheced the 
"braids that it @es left oith him om approval; thet he never 
— ae that it ¢44 not work up az agreed; ami that 16 
mst /gooe quality. 
, The only grounds on which the ¢<fendent seke fer a 
- reveresi of the judgment are (1) thet the finding of the court 
ji menifestly ageinst the weight of the evidence; and (2) that 
the jedgment on its fees iz for « lsrgcr amount than ic shown 
by the evidence. 
* The substanee of the evidence on behalf ef the 







Plaintiz® company ia thst the dsfendami called up the plaintiff 
‘Sompany by telephone and asked whether the compeny bac amy 
hair braid, tinsel edge, of the kind in questions that he, 











dagti ae gubsesd qiieatd 2b 12 U6 Lnecen ae ot slat : 
cite 24 —, # mast ‘qfacten ten aed + vengeee be: 


7 stnchasted 0g3 02 2 wiemtadg ale 
sett fuse ¢uaca aie vroteg bated cow nebo af? 
“yewan ad da83 ¢Laveigge wo mid se oubvscriobiadll 

A oF athe sind edison soaiion —_—— ven 





2 40% aaee 5 Anointed il ale 
Pe te a i i I Oe 








defendant, =s< told that it badg thsi the defendsmt seid he 
would like te see some samples; thsi sarnpiee were teken to his 
Place of businers; that he eclecte¢ ene piece of braid ond anié 
woulé try it ouij thst twe or three Gaye later he wanted te 
) , how suck braid the campany Aad af cortain eslers¢ that he 
was told; thet he suid “all sighs I will take thems” thet the 
raid wes delivered te nims thai he signed a reeeipt fer it 
gmé that the bill for it was left with him 

| Gm behalf of the cefenéanmi the evicemee ie that the 


iis 
- 
a 


Gaff compemy called up the ¢efencumt and seked him if be 
















7 ld use some braid below Sout; that the <eferdemt seid “bring 
\t around and iet us try £4 out;" that when 2 semple was brought 
. , him he endd “46 deee not isok right to me; i wiil heave one 
‘Of my girks try it out. You coms in in a dey or Gee ond I will 
et you une=s" that the brotd ves delivers “on meworandux" 
‘BB that the ¢efendant ws told te use whstever he could and to 
, ™ she balance; that the braid wae trieé omt and could uot 
Be usec; that 1t was imperfect, “rotted somewhere," “ruffled up 
Be the wcchine,* and was “reggedy* that about ton days after the 
mid had been dolivered the defendant notified the plaintire 
‘@empany by letter that the defendont could net use the braid 

- asked the plaintiff cempeamy to onli for the braid. 
7 im this state of the evidence, we would net ve justified 
ix @iaturbing the finding of the court. The court sew and heard 
7 . witmessea testify and on the conflicting testimemy decided in 
raver of the plaintiff. ‘“e think thet the finding ef the eo rt 
' Bot munifestiy ageinat the wcight ef the evidence. 
Im regard to the contention of the éefendunt that there 
















od bise seabsetse aa dee thad ¢2 gana Shed. ee 44 
es “3 ceded erew acigqnues Jaxid (26iguek aioe G9E M. vuat & 
bkes kaa Blan! te s9eiq ome pudooien aa date [eeentes We ta 
of badsaw 94 tagal aye comls te ows dads jdne 2% Yad ntwow @ 
oa dads gevetes mteones te Sod yaaqeso afd (sheie Tei Ae 
ote todd “preste sind Lite U anzas ste“ Stew om bande th 
$2 se% fqionot 5 Sannin of dads taba of bowwviied saw a 
‘amid délw Wek asy i 40% ciid eat sake a 
ed? fa83 94 coneSive sl imobasiss e627 Yo Uaded 0 
ed 34 mii Sndag bar denonnted ets ge wekep Emeguas , 
SRERS" biza fame? ons dads 42oee a ieé sie oaon, ose 
atiggeet axe haps: a, sede ott “ites 58 ue am. ¢95 pon me 
ate ered ifie t 1am 93 sighs Book to samb 32° bikes 8s . 
ity I tan ove 38 yb @ mt et pape BOX +00 02 et area 
 “wabeeromen ae” betevilek aay Sant ede Sais sat 3 ox 
ot ses Aten semi ono Ait se smth th 





a 








" Betthzaul a¢ 3ea steve or. an 







(3 
& Varisnee of 25 cents between the judgment ef the court 


the evidence, we are of the opinien that the maxim ge 


eck * ‘a , is applicable. 
Fie Mie einen shesek eget ts entree, 


2 Pe Jey and Metehett, des Gonoure 





; 
‘ 
; 








yea 


Stes 


De a aS 


2 Sead RES RR, 





US" PS eR, wae 









re 








276 - 31408 


WILLIAM Z, ROSS, 


Appellee, 
APPEAL FROM MUMICIPAL 
Ve 
COURT OF CHICAGO. 
MARY Be KESMEY, ) : 
Appellant. ~ Eo | 


Mi. JUGTICH JOHBSTON DELIVERED THE OPIBION OF THE COURT. 


Thie ie an action brought by Tiliiem Es Koa, the 
‘Plaintiff, to recover from Mary “. Kenney, the defendant, 
$200 which, in « real estate transaction between the plain- 
tiff and the defendant, the pleintif’ deposited as earnest 
‘money with Tomes FP. Lowd, the agent of the defendant. 

i" The ease was tried befere the court without o jury. 
; court found in favor of the plaintiff and enterad judgment 












‘Om the finding. Yrom the judgment the defendant has prosecuted 
t his appeal. 

There is no dispute about the material facts. The 
tiff and the defendant entered into a written contract in 
to the purchase by the plaintiff of = brick residence 
om by the defendsnt. The plaintiff deposited with Thomas 
“Ps Dowd, the agent of the defendant $200, a8 earnest money, 

j ‘the terms of the contract the defendent agreed to sonvey to 

r Plaintiff vy a “statutery general warranty deed” «a good and 

: table title to the property subject, among ether oncum- 

» to "ony party wall agreement of record." It wae further 
in the contract that in esse material defects shoulda 

in the title and should be reported in writing by the 

» if the defects were not cured within 60 days after 











wel 


aR SJ MeO & ATS: Se RAN ABE ore sod Wee & a 


SOP EE? seas ell My fl 
4 


ASOT MOM MARA 
ORADINO FO TaweR”. 


9 @ \ 


ins fi, i | 
‘el KK ey. ak \ie ke fo dw 





eTHOO ANT eo WorRtso | aus gBivilonesy Mora orsem ms 


eas ,anee a WELLE yd ditgwond melden ae es ata? ) 
sinabiared seta ayenmed 6 & yrall most xoveoet at Masatag 
wnhalg odd wsowted nolsonnness states. aan a mi stip hate 008 
fusaree an hotleoqeh Tikéalalg odd rimabaoted aalt baa wt 
itu toh od Io saonw 5d «hwo a. sama? da tw wm 

Giul.o ducdtiw dues od? stoted belts eow cans OMT 
isrmghst boxedeo baa Yiisakatg ads Yo rove? mt bmor eu09 is 
Sunes eary aut dusbas teh oad iat std mos | “saath ute i 
at? s».adoat fakvodam oft tuode odugats Os ak ered? fy 


















ai doanings aodtizw « otme bossa Javdasieh ols Sam veto , 
sonshtees aekud » to Pihsnbatg ott yd candoug ot ot Legs 
amon tie bediwogeh viivatale eat ‘sdanano teh ails @ | 
»yesvom taomnas ae 0086 tnabae ten eds to onage ott 4 ' 

Gd Yavnes of beoxas Anwbaoreb ents toaremeo ott ‘Ww axreod ose 

fous hooy a “noes ner eae inzonsy Urosusasa” w@ i wea 

-muons rote yaonn ,tooldun yereqong old ce) otek ate 

seddzat acw $1 “.Suopon To é momen tye kiaw. eae wa" os 
Aiwote atootod Larxotem, ouno mh sorte Soaxdaco odd at 
nid yO yaidbor at bedzoqes 06 i 003 hue | 
corte. yeh C8 skid be home ion onew ; a 3 


the notice, the contract, at ‘he option of the plaintiff, should 
become mull and the earnest money should be returned. The 
contract further provided that if the plaintiff should fail to 
perform the contract promptly on hie part, the earnest money 
should at the option of the defendant be retained as liquidated 
damages end the contract should become null end void. The con- 
tract further provided that « certificate of title issued by 
the registrar of Titles of Cook County or complete merchantuble 
abstract of the title or merchantable scopy, breught down to date, 
or ‘merchantable title guaranty policy" made by the Chicage 
‘Title and Trust Company should be furnished by the defendant 
within a@ ressonable time. 

} The evidence shows that the defendant procured a 





ty policy from the Chicago Title and Trust Company. 









Was no evidence of any party wall agreement of record. 
1 is conceded by the defendant “that ss designed and con- 
structed the entire building covers six or seven lote with a 
te two story residence on ench lot; that the residences 
brick with a stone front, heving separate entrances with 
rate steps leading to each ejtrance.” The plaintiff 
ected the property before the contract was wigned and 

the condition thet existed. He testified that there 
six “separate buildings 211 embedded in one; that there 
; "just one roof covering all the buildings;” that "there 
: Rothing to show thet they are seporate buildings." 
: the plaintiff notified the defendant, in accordance 
) the provisions of the contract between the plaintiff «and 
\ defendant, that the defendant was unable te convey a title 


and clear from 211 liens, incumbrances, restrictions and 





mn 


ae 


Bivedia ~Ikimtolq elt to neLige atte 3% Sooutnon ons asokton c 
att shommtet of bkwosie yomen Inenxeo odd ban one omens 

08 Lie? Afwoda Yidalate ot 2k goats hoblvowg wore 4 onde 
“omen Jaukiay ets yotag 2 hel 238 qliqneng tanita’ odd ‘mretes 
bédupkuphl aa bewketex ed tueduetob elt Yo melsqo, ont ta bined 
awom et? .Riev kas Lia omooed bLueade domsdnon net has eagen 
qe bestowed alti? te eeenhtsason @ Sasi hohiveng, aes, to0 
sidedasidatem etetguen to eee’ Soot te aotei? te ‘taxtalgos ae 
gadan 2 ewioh” diye eemoe eldsinatodan wo off13 ‘et! ‘te onaie 


ar ll wont “yotteg — abate slat 























phosssotcen’ ditnhecteon’ att Sans awoxte sombtve oar 
prot eet be Barca — ade one ens 





ane bas borgineh ax tate?’ ‘dtihathy tid we re 


a Siiw atok moves to xle eteveo pathliod oxbéae 5 
de ow odor 


ae La 


avomphiant edd dads t¢oL done ao seaobteox al 
“a ebbnettxs slate gatvart atnort ‘neha’ a iy a 









““Witintate oat ae oa oa palboor errr 
AN es ae 
) bemgie ‘a seasta00 ona oxoted wrong | oa 


. Rise S(T We ee ‘aust Ge 
ated? todd bodtizhor elt shptatze bast ali tonoe 


ical saad Mone mt hebbodun bth 
pt alte Aaah oi’ gallos Soot 
i weg bttear edaeegon ok ree os oF “ 

°. piabscooom ok” \ Sie heotan’ ‘oe sortscon so EN 


Bata baminircanth or yom: 








easements" and demanded the return of the $200 earnest money. 
The defendent did net cure the defect.in the title, as requested 
by the plaintiff. Gubsequently the defendant sold the property 
to another party. 

It is conceded by the defendant that the preperty 
Was burdened with an casexnent not of record. But the defendant 
Contends “that a statutory deed dees not warrant against such 
an easewent as is objected to in this ease;” and further con- 
tends "that the plaintiff was presented with the guaranty 
policy 2c agreed upon in the contract of purchase, that all 
liens and encumbrances were mentioned in said contract; that 
@asements were not specifically mentioned, but were contemplated 
in lew;” that “the contract was signed after inspection of the 
pooperty ond if there were any easements they were open, apparent, 
and obvious and by law were taken fully into consideration by all 
the parties; that “they were part of the contract which provided 
for a warranty deed without mentioning liens, encumbrances, re- 
strictions or caseuents." 

The plaintiff contends that *it wag net provided in the 
sontract that the plaintiff take title subject to this defect,” 
thet the “defendant had full knowledge of the defects in her 


ne 


tle, and signed a contract to convey a clear title except 









“wall agreements of records” that “she should have seen to 
t that there were party-wall agreements of record, or else should 
have contracted to give a title free of such ensements and 
Tictions, knowing thet she could not make the title contracted 


We agree with the contentions of the plaintiff. 
Section 9 of chapter 30 of the Illimeis Statutes, 


+ Modem tnowsne OSH ed? To auuset oM2 dadmemed nae “atassons 
bedoupet a6 .9idld otf) ml. sos 2os om? oreo ton bts suedners % e 
qireqgerq ed? hfce # mihuee bo oad vhimowpoadye +Pitenhelg ode x 

: ety " Ok a reine s 
cpbieun ord snsts ‘tashaotes ett vd Seboomoo at er : Ly 






a i 


dash ted sit #8 .bteoes te Jon Jaenvans ae aotw ‘belated 













dears: fentage fasutew Jon. Bee boo) yrohudese 2 : a sano" : 

» toe todiunt bas “teeeo ends ok ov hotostdo wr hl ‘toomone 
eimenarg wad sf der betuseorg aaw Miseahele ets age ne 

tte ae » oasaeony 9, dontineo aad ut oq boorpe g 
tadé ¢tonntmen bia ak bono tinem otew svonardieone: bas 


ae ie Pedy 


hejalgmeinus etew Jud bene t¢mem video oe ton od « EE 


ads te nol¢seqamt tests hoagie eaw foséaoe ont" Sats tent 
sinetaqgs yaeqo oxew yee adneasase wie ouow oxeds ™ bas : 


+ ap wel pote fy 


Lin ve Bois atablamed enn xhtar west eter wat x boos auolvse 
co ad m 





pathy! 











ne BY j ys oy: heel a 
a8 s90u ‘ered biwess ein Sauls sepnoeos ra einmaverss o cia 
ah! av te i Hy eg i ae , 
blwede vale 19 cirxo0st ts stnensoxge Law ge 20@ ous. eat Sade | 

sae 1 ea a i He i i Pag: | Aa me) 
eis atnsmanse tous te vert oxens a ovks ot be. ovad 4 
SMe aanaheh Man Sa Pica 
netoasouee onthe a2 oes ton biwoo sta sae, _Babwonl « Soke: 


Pas ot ihe Ay eta ge (i | 


abe. Pir ee eg 
Titanate eatd ‘0 anobscotnoe odd ae covas 60 
: N BPE cae a ¥ sn We 
saotusadé etowiist ase LS ‘0 were 
: HMB A. eRe. ae yer ieuean Suche oy 


i regents a 






ade 


Féleting te Conveyances, provides that a warranty ¢eed whall 
be deemed and held a conveyance with the covenant that the 
premiees are “free from «11 encumbrances.” 

The principal question then te ve determined in the 
Case ot bar is whether the easement in eontroversy wan an 
enoumbrance within the meaning of the statute, The rule in the 
state of Illinois is that a right te an easement of any kind in 
land is an encumbrance. Beach v. Biller, SL tlle 206, 210} 
Weiss vy. Binnian, 178 Ille 241, 24% im the case of Zelea v. 
Binnian, supra, it wae explicitly held (p» 246) that “while it 
may be the rule in some of the ctates that a granter's convey- 
@nee of warranty in « deed doce not inelude an sanement, thig 
@ourt hae adopted « different rule in Beach Veo Biller, 61 Iii. 
206." 





We think that 1t dees not follow, ss counsel for the 
defendont contend, that beeause the plaintite signed the con- 
tract after an inspection of the property and with knowledge 
ef the ensenent which was open and apparent, the easement Wag 
“taken into consideration by all of the partiess” and was * part 
Of the contract which provided for » warranty deod without men- 
tloning lienc, encumbrances, restrictions or easements,” The 
Plaintirr gid not waive the right to object that there was an 
easement on the property by signing the contract with know ledge 
Of the existence of the easement, for the reason that by the 








of the contract itself the dofendont agreed to give the 

ff a warranty deeds and accerding to the nuthorities which 
just cited above « warranty deed includes on easement 
TA Gintnsas Ss on ehouswanes. 3 

Counsel for the defendant further contend that the 


rt erred in entering Judgment against the defendant; that 


oak t = fone, as, ameter fos, asp ak sass fons? 0% Moivde ok 


do kee wabt deossun eas o gnthaeson tase “gp000 qimextaw a 








om 








Ahad, ply NAROEAY i aes REOLIORG,. eG OMAR AOD 8 wats se 
964 dat tpamore 962 sake oameeayane #,O8K nen tenet 
Lwonaaiane. delay ty Msaaunatdauawe 115 wax? oon! wm 8 OG ae 
este att peatanith, ad of aedé aotsaoup ingrontyg, aa, phe : 7 
Ao Baw NaKovensEoe Bt sreROeNo. ene. 1 oes enix phy aad 4 a sa 
cid aut okin ost, .ogugeds on Xo amiaaes, ood mist te, gonenie 
sh, bakh: yas. 20 samanmne me 99, 48Rb%, jodd oh, akomhit 
pA ORR AOR ohh AR, 0: | fh sears tt 
sy mahal 3a neansot RE yuna Boe Me ESE MEEes Eee LS | 
#2 ektee” sacle (26S, +), iad, yiiloiians gam 7), ..2aee. 
~qorneo azotnary # sagt agdain oats, 0, ones, a), ofr, wt 
gids .dromennn, na adutoms Son aopp, dead 9 At, nexzan to 98 
£04 £8 MALE D oN stowed mt akin inpretith * dedeona ies 


4 































ten ods dompte TisatalG odd, saanoed setts <taotmon inate 
_ sghetwont ddtw haa qoteqgexs edd Ye apkgoedsnt mm mente | bos 
cov Saempase etd .laoragqa be MaGqe FAW ott snomeace sit 

4 PERS agate ea “geokdieg og 9 ile we nottoxebiance | dere vB 











“agnor womt wats tostines ott “amamate w snd aa a per 
Re ted OI Lew 


: _ ena <“d aout moans wat sot «nouns ont %. ny i 
i LS ROI Re es 
ons ovis oe norms snonaeted ott “uses sourauos odd Uo a 
a ROP ORE Bah 4 


a, Ob yikes tye Rig bers. 
demesne a wonetent ‘hesb Waster a svoda bette | 


eta rare “ 
ot aauit + naosaoo 2 tone a ie * yee im es ate wet fi. ] 
datd penatme'ted offs santuge tuna oetzotne ea bore mM 












the judgment should 
been entered against Dowd. Sines the evidence shows that 
held the $200 earnest money 


af the pleintirr was entitled to recover, 


a agent for the defendont, 
judgment properly was entered ageinat the defendant. 
‘Bishback y. Brown, 16 111. 74, 75; Murphy v. The Yeople, 104 
“Tl. 528, 535. 

! Yor the reasone atated the judgment of the triel 
is affirmed. 


AFFIRMED, 


» Pa Jey and Matchett, Jey coneur. 






ts Spear henenetiy ov 





hes) eh gai 


oo 


dg liaaiion : ‘ i vi 
sk. ages) Mee ae Sonn BE ic oe ” 
hod okt dihoa ie BR cael Sie Mond 









54 dan) gah Mua ld 
ARAB REE. Te BN ia 

















ko 
DR Ue et 





A a 
Wie 


Aga 





wail i pl Paeay, EN 
hap shanad SAC). PRE SA 


LN ie ae ny SS et Te Ae te) 4 ON IT 





: OME Oe a err me 
who teeanlangae Mant emt BY 


Dome wee. We” wot: cs a8 seh Le ee 





eke et ‘ A RR SR 
Me atm ttolydad : + geet 


on ae 





du %y 





DR CN a gn Soe hoki be aie 


ied 


= ee 


si 


bree ta 





eid Saya s rea i 
Oa i iad pit Cold are nee oa 


dks 





Peat 


Bo aeK no OY sha warren ni 
VER Rate wit Litt dosed het ' es wanes 4 eee ‘beets t 
























gaa - 31420 

 “ ROXANA PSTROLMUK COAPORATECH, 
Go ratien 

i ae : Appellees, 


APPEAL PROM SUPERIOR COURT 
¥5. 


4 OF GouK cowry, 
| ~ABTUONY PRILLC, 


1 Ly : Mi 6) 


fd “2 te Lethe 
BR. JUSTIGR JOHASTON DELIVERED THR OF Ti 208 uy THE COURT. 


oh 
>: 


Thia is an epveal by Anthony Prille, he defendant, 
fron a judgeent entered wider section 55 of the Practice ect, 
, in favor ef the Roxana Petrolwm Corporation, the plaintiff, in 
the em of 0491.70, whieh wae part of the amount claimed by the 
“plaintirr, Ae to the balance of the plaintiff's claim, the court 
‘ ered that it “stand for trish in due course, * 
The ease was tried before the court witheut a jury. 

ee The demand of the plaintiff was for $6491.70, tha 
j “price ef gas and Keroraene #614 and delivered te the defendant; 
also for $90.84 for laver and material furnished in the installa. 
. “thon of a pump at a filling station of the defendant; aleo for 
4 0.82 whieh included the cost of installing certain equipment 
“ one of the filling stations of the defendant, aid the cost of 
re ef this equipment from the filling station. 

The principal queetione in the ease relate te the 
of the court on the pleadings. To the plaintiff's declare 
and affidavit of claim the defendant filed the plea of the — 
| issue with an affidavit of merite and a plea of set-off, 
y leave of court the defendant amended his plea of general isaue 
ith affidavit of merits twice, and his plea of set-off once. To 
he defendant 'e amended plea of set-off the plaintiff filed a 
eral and special demurrer. The court sustained the plaintifr's 






















r Bins Ki pe sy £ a, Sais ate cue 
I : PANSY i pres rn LUE RAE Se ae ¢ 


\] 
ToonOLAtaN | one aaa: dws wat wei aa 


fe Red 






¥ > ‘ mie 1 , bie 
Jy Wit Shy de teens cheat as a ey 
oe a es 4 i ho wy 8 sal Na, He. OPIN + \. 
eH Ke Ts 


t; 2 4 


/BADOO wait eG KOZ MK" aur pea noseicion ome ne 


ere ot ,oflins inion d mA eo evens wet oy att "4 






ghee Gelforty wilt te 86 voivoee Pops borage . 7 Pepe rh 
oo LYtidulete with snoltexeqred: myo Loates wanott oie ‘to te 
ods we tome fo $ aw on walt. "te aah aa ite basw 1 OF, £0898 te 
fivos ott itis Lo a tris alate asd "te eonated at at eA Tu 
* .seretr06 oa at Iattd tot fant a oY batt | 

Cut 2 duets tw suites watt ototed heist ew cr) sat | 
oad , OC. Lene tot sew Wtbsatete esit 6 panne aut 

s eaebae tee wide o8 hansetfed frum ntew “enied ote hae ong te ¢ : 

wa itatent ei? 2 books Lori’ faimdam Ban teint tot 08,088 at 
tat gate jd aabsie tab malt %6 moh Ie38 mk ese a oa og 
daomqplpe niatios galiiagent te eos ed? bobs foal sto bie 8. 
Ye dee o00 baw , foabri ton ony Yo aselsate pment ase wm 
sapidades yuhiLe? eft aor't $29 cig hupe im a 

edd 69 o@e lot @ean oud mh anolcagup fagtouleg Pr 
wi loeb a Vitealaly ei of .egathewty eat ao pabieelion 
ent to aoty axdtt betY snwbaetes ede mtate “ 1 




















Se aR 







) a 
A] 


5. @emurrer. “herewpen the defendant meved for Leave te mand his 


- pmended plea ef eseteaff. The aourt allowed the defendant's motien 




















ané gave the defendent ten daye within whieh te file a second amendeg 
‘plea of sateosf. The defendant, however, dia net file a sacond 
amended piew of set-off, but at a suceeeding term of court elected 
te stand by his first amended plea of aeteoff, The pisintiff moved 
te strike fron the files the last paragreph of the affidavit of 
Tite to the defendant's second amended plea of the general issue; 
Qné further moved under section 56 ef the Practice set that a Judge 
mt be entered againet the defendant sm the plaintiff's declara.e 

f with affidevit of claim im the eum of $9401.76 with interset 
five oor gant from Sertember 14, 1925, The court ordered that 

# last paragrach of the affidavit of merite to the deiendant's 

ee ond amande? plea of thea general iwaue be stricken from the 
files, sn4 that Judgment be entered in fever of the olaintify in the 
! of $9491.70, The enurt did net allow interest. 

In hie pleadings the defendant did net deny that he 
indebted to the olaintiff in the sum of $9491.70. In nie affi-e 
‘a it of merits attached to the second amended ples of the general 
4 Sue, the defendant alleged separate defenses te two items of the 
tiff's claim; but as to the item of $9491.70 the defendant 
‘@ly referred to his amended plea of set-off an eteting a de 
to that item, As the demurrer of the plaintiff to the de- 

‘es amended plea of set-off had been sustained, there was, 

: » at the time that athe judgment was entered, nothing in 
» record te show any defense to the item of $9491.70, In fact 

Ne defendant's anented ples of set-off offers te *ailew to the 

La ntifr $9492.70 of said danages,* 

- ‘The first contention of counsel for the defendant is 

wat the eourt erred in sustnining the plaintiff's demurrer to the 

endan ‘a amended plea of set-off, | 


a Ee a 






wie beau of avert set bovew | fapsondeh oxtt, smeuown dt 


‘aplgon a? taphroteh ent hewolle drape oh, , #8kangoa ve le "fh 


ea MY 


 bebaeax biomes & Silt of do biv ants hw! ayeh sed Snabaw red, ott evey. on 
bapose a OfPt Téa BIA , wevewar! stnebag eb oat + Restae. Xo 09 


¥ 
1, 
, 










bsdouls siwod ‘to wend gathowoore o ta dud. a tis-doe te ookq. »atiran - 
bevou Vilesioly ont  .TMoateg te ooka behasms tart? wld yd Pi ot 
“te tiveb ites nag he draregeree g faed eds velit edt taedeh aahnae, 4 
pound ereaey ait Yo aste $obiscms bavosa’ ‘a! Sunday ake ‘es’ ad 
wabul, 4). tad? toe, eagtoert ont. To. OR, apkseee sehmp doveor aedtewt, ae 
cota fooh st etlinielg od? me tne ue teh, edt tealeme baxorie of bi 
fac tesad Sti~ OF. £0D8) To swe ei sh whale Xo, 2Awaba eshte wel 
test hetwhre gree om! PCL yh Todamt ret mow? teen tog ie 
2 deabne tok esis ag, 9? trom’ Yo, @iveb lta ont paella ines 
| wait mort node st4 9. od evens {axoney on 70 Rae, sPepnars.f 
7 oat at Vitininte odd te owe? at Denetos ad Sey feet Bie want 
aes sfponnsad, watts tom, Sib gras oft . OT. £eRCR Yo a 
al tags, wun: For HL taghas teh eset ayaibno te aid al +i) "abated 7 
~28ha ah SL 107 £0098, 2p, owe oc ad WR mtate odd of peddebat vay 
faxenoy oft 1p avig hobapus haogge edd of dadgaisa Swe yeos “a 
odd to gust ove of aeaneiep storages, popesia, sanhae tae edtig ey 
fanbootoh es OF LATE to wedt ent of om. dud imate .@' Taree ke 
sob a githints oe The-tea te aglg hehovgs ete of Serge tee) foxem 
ont oct oF Tiisaiate eat te Forvugeh edt aA. nwt h taal OF OR 
ROU OTE, ,Romdstnne ceed Bed, Ttomteg to, arian sean 
nt gakitoa ,deredny wow imag bal, ox bial al OG, Ta gt 
toat GT OT, £en26 ™, oma d ocit.9d 990 Fe, ume wees huh 
O88 OF wetia” oF ateTig Mester Tq.wale fotovaa tambon 
a ho er * anane aed BAAD 30 OTL HOMEY “ 
eh b taahnoreh auld or reer MOteyotaee, tenet 0c vanat 
at od toctmarmeb EH a MA i 
“4 Vinwtee teante babies oe 




















4 In cur opinion the defendant is net in a poeition te 
Peiee this question, for the reason thet he ebandened hie first 
auended lea of set-off by moving for leave te file a seeend 
inate plea of seteeff when the plaintiff tg demurrer Wam eurticined 
te the first amended plea ef wet-orf, It is the rule that wneve «a 


party acquiesces in the ruling of the court in sustaining «a demunesr 


he hie pleas and takes leave to sieat over, no question ean arise on 


femme ae to the eulYfieleney of sueh pleas, Dunlap». Chicago, Bil 
is 


Fy, Udes 159i Lil, 0G, 422; Goyle v. Clty af 

» 193 TLL, BOL, 80%. fo the same affect in pringiple are 
She feliowing caseat Galton v,. Gibumge City By. o9., 95 TL, Apes. 
’ » 9; Marrie vy, Witilis, 200 Tli, App, 402. the election ef the de- 
fe mt at the subsequent term to abide by hin anended plea af sat~ 



















aid net change the aituation ag at that time the order allowing 
1 M, on hie motion, to plead ever after the plaintiff's demurrer 
been sustained, had not been aet aside, bul wag atill ia ef feet. 
‘She record shows the defendant in the attitude of aseuming direstly 
| Asisient poaitions. 
| Ve have examined the defendant's sended plea of sate 
of: » however, and we are of the opinion that it 1a defective in that 
it Seeke to set off unliquidated damages arising from alleged breack es 
contracts other than the contract on whieh the plaintiff hae sued. 
is the rule that unliquidated damages growing out of an alleged 

h of contract, distinct from the contract suet upen and in ne 
rise Connected therewith, cannot be made the subject of a set-off. 
7 at, 721 Th. 355, 333. Counsel for the defendant meine 
that the amended plem of set-off states fucts which "shew a 
defense at least by way of recoupment wider the general iseuve.* 
he Tule we Just cited applies as well te recoupment os to set-off, 
M4 Cyclopedia of Law and Procedure, p. 695. Furthermore, there is 
ne item of damage in the plea that coulé be recovered by the de~ 
naw only in an action of tort, and Ghat is the item of #800 






















| ot aeLs Le wy & a2 tom al doshas tar vis solaleo wwe at 
| deurt. hi hosohimda ast S devid uoumOT ead oT sito Rs eoup windy 
haowen & Lit bf O¥eed rel unten roe ‘Vientew to Py 
Sonierewe eee cere abet a ceka Le ex) malty Vendha’ yg’ rw 
& wubsiw Sekt Whur Bed BL OT YWrowtew to ety bobumla Pui 
Seah A aakataswue: mt Sea ons ko’ pat bere wats we aeons tnpeil ak 
sp OR kts ten mehtagup. oe y reve hawker of Rie. welad bios bedi | 
PRMD RED 9 alae “sane ke singe To “en on hey ba ent ot he Leo 
ah nidou ee Seas paee Ome aeRO aRE Loe Lee tee ~ 3 
te elgioalty ah dentro bie o6d of geeN yp coe Pes Ga: 3 of we 
eompa gRETO ER, spo yindie apes den oe med cae smsabe . aiwolt ots : 
“Ob ost Re aaitowse BAT RBS aad VET OOR adh 55s MP. 








gakwecie foie wie ‘Amte dieite the ad id beets tee as ten & 
RRR NRA Le Hat made SBE Beate 62" waded ea aba ae" 
‘shootte at Sige" pan tut ,ebine 490 med Jou bad \bemleteud need a 
eidoert gaioreds We hud hoe ack at techawred oats wade bods ‘ode 
cients. Peete kRY hata me 2 a tigts teeq, tonsa. oom 

ates Xe sig Witnsicieat a tecsneeh de ‘dAlibdals avdacaw 8), aM 

|) teak a ovitonten ek O fade adtites ods Lo Wea er bad” (tavatiad th 
| an Soeerd Seyello aot yalelio uoqumeh Kevabing iad Wie dom ot net 4 | 
| bags aac Then tnll oie) wptie ne soaTtipn ext! can} eertds sbentdnde 
hagetin we Le tho gakwomy gahauah bovh trp ssi sai aire itt 4 9 
on mt hi muck feo Peerthop emt seek doatoely ,toekeies’ Yo! Mine | 
\Uionton a 2o, toahdun sat ohana tonne jstekworehD Koren niuby hme 
eniam @agdae teh ead Nolo desaged PERE: ChE GLEE LIS se etapa 
awasie” op hetw atoeh setae Rendon Ne mo Ly” hobs ost t 
*,ovnek Loroney ond unhmy teolemronn® te want feed monn OH 
sTigetes of ae saomeuaoes of Lhoy aa nodinge: bebo samt 0a 
oh onan! jonomtedtant - BRD otaedan eel er ar atoncetee be | 
te wal baxovoour' od Shwod snst sade pif ah yee Te mms heE 
iy 9088 ‘to awash ac? ak sade baw), ease” i aN nis wh ye tid 








revairirg the damages dere te defendant's wire, cement ond ime 





ente cauted by tearing out equiprert® by sinintif?, In the 
of Rebineon vy. Hipbe, 44 113, 404%, the court said (p. 400): 
are avare of no lew whieh anthorizar the ymiiquidated damages 























ing out of a tert to be sat off in on action ex gontracty.* 
ar, the defendant faile to allege that the ites of $800 fer 
@ was the reasonable, customary cost for making the repairs. 

Counsel for the defendant further coitead that the 
erred in striking frem the files the leat paragraph ef the 
ef miant’s affidavit of merita te the seeond amended plea ef the 
iesue. 


Ag the defendant has mot filed a bill of exeertions, 








question sreseriy should not be reviered by this court. 
It ie the eule teat tn order ta oregerve for review 


@ question of tho correctness of the ruling of the court in atrik- 
g ® pleading from the files, the pleading itself must be incorvorsated 





® bina ef exceptions, Tljineis ety Go. vy. Kunro, 209 Til. App. 
}, 411. However, we have examined the ruling of the court and we 

Mk that the ruling was correet. ‘the paragraph itself contained ne 
Tense to the plaintiff's claim, It serely referred to the defend- 


b’s amended plea of set-off as follows: 
“arfiant further states that ae to the balance of plaine 
 t4ffts said demand the mature ef the defense of the defendant 
ds a set-off of damages suffered by the defendant by reason of. 
breaches by the plaintiff of certain contrast, which said con- 
tracts, breaches and damages are connected with the plaintiff's 
Said demand; and all ef wnier said contracts, breaches and dame 
a eve ore set up in defendant's amended set-off heretofore filed 
herein, 


As the defendent's amended plea of set-off had been 
La by the court to be defective on the plaintiff's general and 


ro} 


ial demurrer, anéd as we are of the opinion that the court's 


yay 


Ming in that reanect was correat, it fellowes thet the court properly 
Puck from the files the last paragreph of the ancnded plea of sete 











oak ite trenawe aren wi enetnateh oF sant ‘awpenied say aatelacen | ’ 
ort nt .YEEatade ye MPnematiye Belo ‘settioy “ haonined aden 

8 (008 ay brea tow ett 8Gb LS LEE BN pee lw peelte ns : te 

oganat botad inp tiew pitt wemtrorl tue ig heter wee mepeprersaroti 

ih ~ndbosdto0 xe adiden av. wt Ys gon ot ot F100 a te ve ta 

ogy OOBE Xe sodk ont Feild Suerte ot WELAY danbatn) wilh) weve 

iy ‘atheas' ‘edd gitbies tet Seog yenniodews jw tdsnoemet sue sew wha 

wad teil ‘Padtdoy nechiys daabite teh. er Yo? “Kona °°. tet 

one to dyatywtag feat ‘oat wo ttt dt mork yatdatde. di. asia @ 

as te aole hebseae Sadene Wat ‘at Loiiegons ve shes at dvohan 


¥ Lye 
nebies 


















; efrwes a ‘a benntvoe od tox tone ‘etkeniee 
t 
atinie at roe ‘ead ‘ke ‘gach Len add ‘te sonndosarsa ot ne ‘he 
Bedaventooak ed doy tines patbas fe walt moet eg ‘gon 
“aah Lit @o8 “azn vw 200 vie stoptfox “sae LF geome 
ov hae tryoo ost “to goiter oui Santaane ovad ow et ss 
eat Bantad avo niondt dont gartag oar * “ doetred | sae yaa fara ext é ss an 
“abate dl oF Bereta il 7 cosa ny ‘vit iF ot ais 


hg ae a 





wn wolvor tat orcnnet: es mh at tant efor ent “ah 


















ey a8 "tye ie. ‘be a9 0b. 9 ie. ee 
sajesnos arene ota irs 
et bio erg Poa 2100 Porson 
@ ¢ 


tiaty eit? dblw heresanos ote & 


me peunse ty avoatined bisa be. i b 
be oui es eretoderes shares hehbaras @ Aa oe 


awe sini ot ‘ 
ni dawoo edt todd setahgo ot..to. ete ow ma, inns germane hi 

ehusqosg sen add tnd avelse? #2, ,tapszen saw soocass, dads, mb g 

“tan Iu ae sen henpRH, dt To, dgargntng, teed ot, apE2%.9 08 . ame) Oe 


Ne ae cae te ee a Bete iene ae gee — 














Counsel for the defendant further senten’d that the 
gourt erre? in estering Judgvent in faver of the plainti7r ia the 
| t oF 89491.75, and in ordering that “the balanee of the laine 
Raff's claim stan¢ for trial in due eourac.” 

; Ve think that in view of the etate of Bhe recerd the 
eYeperly entered the Judgment under section 6% of the 

Pr tice act, At the time that the Judgment wan ontared, aecord« 


2 @ to the rulings ef the court, wiien fa cur opinion ware serrect, 
" Was nething in the record to ahew taat the defendant denied 
he indebtedness of the item of 8491.70. Gn the contrary, the 

r Mencent, in his amended plea of aoteot?, oivered “to set off and 
te the plaintiff 99451.76 of said damages.” 

a Souneal Zor the plaintiil’ have asaigned as crosae error 
he refusal of the court to ivigiude in the fudement interest in 

ne ex of 3304.49, It is the gontention ef counsel fer the 

Lai ‘M4fT that interest shoulé have been allowed under meation < ef 
apte 74 of the Tilincia Statutes relating te Interest. Ye are 

r the opinion that the plaintiff is net entitied te interest. 

q For the reasone ststed the Judgment of the trial court 
affirned, 


A 


AFYTREED, 


ry Pp. a., ane ¥aetehett, Tae OTE « 








if 
i iM 





“ede dons puwsasco weddiet fimbne ten wal see’ frareed © atetaen 
odd wh Tragatetd ad ‘ig covet uh das inh’ ‘gtilto dike it bee 
onl t's ody ee oone Low oie” gust! gettebye at baa OPN tg om 
latin TN dated ea a Lied Oe hee EO 7 
edt Brose ‘galt to 2gil9n “oud te wa ew aL desl dle aw OY De ‘int 
gid te Ba ‘sisoon thoy tiombul, ant bewedas Ylrwgong owe 
-Bicoos ‘bere ait ade Fitemyhat doo tadt oabe aoe 9A Pde eet tie 
toextes ‘eiew asialgo geo AE Ae liw Cae oad “ta Wgith fers om od Pe 
betms dasbav'ish exe dads ‘Wont 0% bide old WE yakdsed daw Ont . 
ade eere1t noe out ao” OFS 2ebeg ‘to med a dy Yo eadanaede ied Wl 
bets Aco don as? hone tke itowdoa te svg hehuems 9 ie ad’, ta 


a * 


oases rnutt * staat ‘Saat bas btpeete ce: oat 
























saad aa fescue ag ele netike earun ae ‘oeaial ‘i 
: “te e ‘aelteos sek hawod ta tha evel Sibi dai : 
ota av dasternt of yatleter medusath a ait te 
steowstat ‘ot be tetas teat of ileviitn ty wes? ‘tad pt 
‘ur09 ‘dates: of te dani one nove se winding ot seat 


edie Dh We ee ae 


He RE ORR: BP Sg eS ee ed 


Pedal eae ea 





CST 





Oy me, hPa we he oH ‘uy Hi yet at Teen 
t Bi, fo SKUs a ‘ i fy 4 i q 
ra th a ‘ 
On aig 
ih i 
Fe NCW NOE Pe 
mi Be GRRE i i 5 
RR goin ame ACPA To Unease AON MEG ces Ch TaN i, Migr MAG, iy nay 


Sait PARRA titel: Te Sibia oh OW eR Gtpiaias veil hd 
AR? RH OR RED I ly aR a aan ing Pea Med Fretanty A ORAM 
eR AMIR A ee eT Ml Naha Rei hain i ai 


- 


PR LR om ai Remon. wiehe Ra Higa nel eng. Dayan mth ilies eg 


390 = 31522 


MBYZA GRERH ond BRSSIER GABEN, 

Appellege, 
APPEAL VAQH BURL CIPAL COURT 
vs. 


) 

OF CHICAGO. 
CHICAGO FIRE AND KARINE LASUKARCE 

é 


COMPANY OF CHICAGO, ILLINOIS, a 


Corporation, i 
Appellant, a, aes re) 
BR, JUSTICE JONNGTOR HELIVERSD THE OPINION OF THe Som, 
« '. ‘his La an anpeal by the Chicage Fire ané Marine In« 


? Suranee Company ef Chicaze, [llinois, the @efendant, from a Judge 
: ment in the eum of $252.95 in fever of Keyer Green and Beeete 
Green, the plaintiffs, in a: action brought by the plaintiffs to 
t Feoover damages for a lose by an alleged fire under a fire tnware 

ames policy isaued by the defendant to the plaintiffs. 

Be The case was tried before the court without a jury. 

He trie? has been flied on thia appeal on behalf of 

‘the plaintifre, 

) the alleged fire originated in the eleetrieal equip- 











in the building oened by the pisaintiffe. 

In their etatement of claim the plaintiffs claimed a 
famage ef $192.95, of which $162.95 was for Luber and mae 
al in replacing electrical apnsratue, and $40 for plastering 
Caleimining, As the epurt alleoved damages in the sum ef 
2.95 only, it im evident that euch damages were intended te 
the eoet of replacing cleetrical apporatus. 

The principal queation in the eage relates to the 
struction of the following clause of the poliey: 

d “Chis Company shall not be Liable for any lees or danage 
 ~Fesulting from any eleetrical injury or disturbance, whether 
from artificial or natural cause, tm or te any of the electrical 


 +Spperatus, machinery or connections, hereby insured unless fire 
‘g » #64 then fer loas resulting from fire only. ««# * 


































ene eutetie Ne we 5 
Pong nga diogia ya Res "ny 


m #8, Da ae a 
ae Mi St 


oa BS 


“ia nau 


Paton anerorii wot uawedR 
,ooxcray wo” 6 





: 


«Wit pabca® bab er 28 ogee tn b6d vat Tasqen an ‘ae 

aphirt’ a nivtt! Yoobnbreh. ont javoabctY “Sgbelad Yo yaegs 

alwent nis ward wy Yo vorst ht re.sese te len’ bal’ at 

a4 BIMidalote odd ee oMeotd aoltoa wut ar, atibinbote oats oat, 

‘wndbak ond & teas S224 Boge tLA ‘ade Ge tnot ‘a 40% sesame 

‘ Jetraratinca ofa of phebantes ost ae bousad yok 

.vwh 8 duoitiw tages ead wood bates ‘dew vees ens ott va’ 

etna’ “ad inoqat what ‘bottt nsew ead “Yolxd ou 0 eth 
wine dn" nee. Ka dale “el ye ini 

al “tabbed to ond ah bodoats to ot Boye te ‘oa 

sav hatade fa std we bemwo ‘gadbttwe bard 7) 

a hontats wTitvaiatg et ale fy ‘te Jovamdats tiedd ox 

ait bao teak to? aow ae.car8 flo dstw to 289.8008 te ouann i 

aatiasonte tot OF baw 1 aindie "to geen te leaeh epithe tai x 

Le swe ond ob somsmad hawotls Pah bas oa spat 

ot bohaetat expe sepewih dove Sods taebive at th yess * 

ssetewedqe Saolsteole gatoalaer to teee sith | 

ott? of eatoler onad etY Of nelteoup fagtonteg out i 

ryokfag eit Yo eadets ynbvottet out * « 

ajoush to abot (rs tod oLSHRL of Som Chortle yoogao 
gositadwe ,eoaediadakh hiv quai fav kris fe ee 
 fmobtios te ect ‘to yu of xo md Canon Teredam To" 


elt eae Law bets ad i sige sank ioom 
* #ew .ytao oxtt got gate 





Ree i. ki vtone Oe 





Tt fe the contention ef scunsel for the defendant that 
the evidence does not show that there was a fire within the meaning 
of the clause in question; thet "there was no preof of any setual 
ignition in this case outside of the eleotrical equipment, except 
a flame at the beard te which the meter was attached, and there 
Was no proof of any damage resulting from that flanwe,* 

in our epinion, according to a fair conetruction of 
the clause in question, if there was a fire in the sleetrieal 
(@quipment within the ordinary meaning of the word fire, and the 
electrical equisment was demaged by such fire, the defendant would 

de liable fer such damage. This is the construction which we think 
is implied by the felliewing language in the brief ef counsel for 
the defendant: “In the ease at bar, the pleintiffs' recovery is 
‘based on lose resulting to the oleetrioal equipment in the building 
 ineured, but such less wae enused by sleetrical injury or disturb. 
ance, and not by fire, and the policy sued on specifically exempts 
the insurer from liability in euch case," 

q The precige question to be determined therefore is, 
"whether the evidence sows that there was a fire. ‘The definition 
of the word fire applicable to the present case, ae given by Febe 












 ster's Kew International Dictionary, 15 as follews; “fhe principle 
of combustion as manifested by light especially flame, and in heat- 
ing, destroying and altering effecta." The definition ef the 
Dictionary is at follows: “Combustion, or the heat and 

At evolved during the preeess of combustian, * 

The substance of the evidence on behalf of the plain- 
is that there 788 a “big flame” about 2) feat in the elec. 
ri light meter; that the meter was in a metal bex; that there wae 
a >! ece of board burned; that the boards outeide the meter box were 


Mined; that the eite walls were burned; that the fire "started 


| the floor;* that "the house was full of sueke;" that there 






















tans tnapae teh an? <0 Lowturay ‘ta mel) qettrton orm wk ee: oe oe 
gee Poupene std wbetheeelt a eae wind tod? words toe ‘goob vonohive 
favise te “lo Yoste on saw every” tant inottaene ot senate oats + . 
tqeaxe ,towaqivpe Lag litoele et [6 ab inte. eno why at é thm ai : 
event baw ,bomoatin saw xobem edt so kdw of, hanged | ad gg omit 6 
* eaelt gent wott galt ineet ogemeh yas te Toot¢ on w 

ke Rotfsuxtaace da"t & OF yalbtoooe smotalge “re at 
sa iatoe fe ott ak ot22 @ eaw sv0d¥ tt neldeony ab cautle ry! 
oat ow ot Hiew ade “te pakanen esenkdte ect lad bw dm 
bigow ganbdadtes off pwal't dawe wl beysneh vow Qneankygo Leok 
duids ot ekiv aoltewttenes off gt eit? ,egemgl dene 20? Saat 
to? Lexsuse “te Role ead xi egatanel gabwoLeot wilt. ge Siva tga 
et wtereanr ‘et ttntele aot pted go anag ort oT" 1 tamhae toh, od 
palbited eft af Paenaiepe: oo ivtants oct of gat feeazoeeod im ‘ 
~feurels ue wartime! Lasistodty. US beevas. sam snelvfoge Ind ,b mt | c : 
stqmsxe ¢ikeottivogs sq hove valley edé One, entt ydiven hia . “a 
*,eoen coum al yoilidakt moat? sitet . 
yak ertotoreds hentsredeh od of aniteoue seteetq eft ~ i 
Aoittad eb ext .ettok aow eters dad? awein wnaetive emt x90 od 
ada yd nevhg ec ,deco saemety 642 of whdonlsgan @mkt brow out | 4 
efgiouisg #i8* rewellel aa gi», yrsehiesd Lengttensegal woh ota ta 
ofaad mk doe ,omntt pikaioegss eg ll et botaetiass os gobtagdang _ r 
odd Yo soltinkted oat * eteetie galiatis baw galyont oh val 
bas Sod nit xo aoktandaed®. reoito% en.o2 quamohtole wautenl 
} S  fiettondan® he @aspeig #38 gained bovlowe ah ry 
cainig ond io ‘tiled ao eugebive est te eocatadee oot | 
«vote orf ot deo? 48 duode “emee® pad « BOW oxosit tadty@ 
naw oinstd suctt jxod Ledem a ak gam Deere nald, teat: seo tem: amy he 


Sm Age rare ae 
W nod mtn ott, antago, wbeens astt tas: gBoaeeedt. “he aorta 


“Ml eo ease Ne WS Cie Leb ast tty be iat 
‘poPente er $ashd'g bosteset sono RMR ; 


ermilt sect nian. to Lfyt sew sapori oais® Sant “sort ‘ott 









Were i) 







was a fire “on the wall where the wetere were placed, where the 
Wood was burned eli around the bex slew « outside of tie box” 
that "Lt wae burned black;" that °1% wee burned dike ashes;" that 
the fire was extinguished by the janiter by water with a hose; 
that the firemen aane after the fire was put out. 

On behall of the defendant the substanee of the evie 
dence, *hich consists of the testimony of agents of the defendant 
Who exweined the premises after the fire, ia that on the weat wall 
of the basement a switch tox or fuse box “had avidently been 
shorted;* that the wiring wes all melted and burned around the fuse 
box; that there _— "no board scorched by a flame, ne charred weed; * 
that “the damage wae caueed by «a short elrewit in the slectrie 
Wiring;" that all the wiring inside the metel box was charred; that 
the inaulation was charred jana she lead which makes various connee- 
tions te the various parta fas melted and had drepped down to the 
sia ef the box. 


According to our interpretation of the evidence there 


is ample evidence te sustain a finding of the court that there was 


& fire within the meaning of the word fire, as defined in the 4efi- 


Bitions which we have cited above. In this view of the evidence it 


ers: 


we that the defendant is liable for the damage to the plaine 
a’ property. 

Counsel for the defendant further contend that the 
nt should be reversed for the reason that the insurance policy 
fes "that loss or damage if any should be payable te the Chi- 
0 Title and Trust Company as truetee, aa ite interest might se 
ns » and the Chicago Title and Trust Company was not made a party 
, the suit,” 
\ This objection was not raised by the defendant in the 
ure below, either by its pleadings or etherwiee, 


The anewer to this contention, however, is that the 











Se pe ee SO, 


Sit pera wai aco Lat aunt a eld oh bend qatnte anf Che taut 
 mpeiitite siolnw eter geht Baw ext fax herewil eam nth atte 





che 


0a wensee soon ke ome ares om, and axed Kio ost, ao" ext a a 

* sxe ast te pbketye » * ag fa xod, eat, baer ihe Demat aa be 
fast, " seocdaw oat bastard way ae tas * alae ks beaitud ame 1%, a 
poand a Aekw eodem Bd aodtmnt ante, at bode tonatexe ao okt 
ale ke. reo nniane aan Mate: outt aid a9 ithe sav wont nat 
ehva e237 To seuoder #2 Saebue keh a te. ‘thasind 0 0 yg ‘oe wen 
tmnt ted std ‘te mega Ie YRomtseod act? Ye atnteave do haw , eon 
Siew teow arith mo Seale eh outer odd we'te ns ede boatuaxe 
meng vhinohive Bax” nod wast to mod tim a manera 

‘want ond Reygate | RoR Y Oe Rew: bas Syn: hte mew yak the writ) taste 




























myboow horus om itoitt © yd becietens fied an” es oils ttt 7 


obtsae he suid ak theptio drone ow vd own “ase saninah sts 


Shrent 


ett 92 nwet feeceh Rat tine, saan tan rage os 
SUNS Sonohive off lo adl@ateatetedal ceo oF geakbroosh oo eo 00) ae 
oa erect dad! vaeep wd ‘be oetial? # aledewe at woROb IVS 9 Len 
ekiwh ortfont Bealish on ,o8t) buew ey Lo gitlagem eit wid dem 7 
dk ooaebive adit to welv wht al .eveda tetto mrad ww ota “wit 

 ethely O02 of wgsmah otf wo ide ks ae dmhne ten wet ns 


F. a Cee, ORE fe nalts Be } snes 1 i Ait Baek ae 
A wh LAE Re (edi he Soke 4 i OEE) SNe MN te le Bon es a © 


ee 


Hh i HO eng ey 
tt! Sanaid Hoanwirotow nadtant tuebaw'tes ott wot hema o 
yolieg souwidant art Jade wowna: ott rot bewxsvet we otinite 5 : 
ah ed of ofiateq ed DAwade ena Td egenel to eee oneter ont ‘ 
gy Voigt dedend al oot we pended aw) ymmgeed dart han OLF27 og 
Vote # Ment tae Haw YoOD eevee pn wT nanan | 
me Toe Cet ee ee ake: Labs ee RE 
oar at marietta ‘ekg: uo Rewher sir saw neltoetdo wht! lah nn “d 

me anky son bwsecite te aquthon fy ast yd woitthe wos og 

te ats al ever ert «nahi ned cee. ote od. tower wat 6” and 







‘ ’ sigrment of errore does not contain the objeetion, 

fe Gounsel for the defendant further contend that the 

committed reversible errer in over-ruling the “defendant's 

fon«for a more apecific statement of claim, at which time the 
mdant requested a eopy of the policy sued ucem be made a part 
Plaintiffs' statement of claim, same being the inetrwment ayed 

on, * 


~~ 


We do not think that there is any merit in the conten- 


The policy of ineurance is in evidence; and the dee 
nt has act shown that it hae been injured in ony way by the 
of the eourt. 
Yor the reasons stated the Judgment ie affirmed. 
APFIRR ED, 


ly, P. J., and Matchett, J., concur. 





TANS aint) 
























stohtootde wale nbad cee toa aeoh atoTte te 
NG a Pad Sea A NBS AL ARR Pi Oy SG am Sy UR, aan taaml 


estt ‘tat awe ssi Jasdew'ton oat 20h Lonaned 


ah bane an Cee Om Rate le 


a’ troxbaw9b® uit pat Lutetoes ak torte eid 
Rene VAP Res ane ea SP ca ae ESA Re Dig 


ond ott sonee ” vata fo ‘to tapos ate bay exon a rot 
sang bam od mony ie howl” wirag él Ve Gaon 2 bod 


_bewe Paemenret oat" ‘said sie valato wi cna sase “Watton 


a, bh. hala WOR a 





A a ‘ 
Pal Anil Set hae Be heey 


‘nada i ae Se He ‘epoaye whey ie ¥f 


“santo ‘sae ~ pga when pl 
gat a swash OS RY By OV, i WO GAG ity oat drut 


Bae te 
Pe BRR 


o" 


fe 


woh old ns pebade ied Wh BP oddiodan'Ye eelteg Sa" a 
ae “a sania ‘ad Bowtie ‘toed poured 16 to aid fa ts 
hg Ree cag DORR LR “ite ip RARE ge RRR RRR emits Foe ii 5 fee “Sa 


oglu att ory | oa ae 
(RE RE REE ES sonnet pla bse HAP Shi eens 


Deepa ugh sian SN oa’ ea, Reena) Beat at Sat see aus ‘aaa ha 
ah feck 


st Habba ae 


vane ant fo 


prakh Raw bite ack la es wn Ansceiin Meurer Gath ‘tame aN. 








ba PARI RGN NE RES > 





deat pr SO “Guana tae “oR ka Siok eee Re ah ioe he BR se 
Pi ae nie arama ERIN ae GRRE SHORE SAREE RAY as By samuel aii ohh ae 
Ai iw ike Ge he Ogle Oe oe ella RE ese sn sahuly 

ARTA DRS i RARE ABBE OMS SER RE ae rk gn 


(hE DRO DR OEaeny celta abe Ae lane i 
ERY HorcraRWE Me Ca ty HORN el SNe ‘Thaaann wt Sey “tan | 
RS: % MMC ame AN ER CRE asc ayy ick Mts OT ‘meant ay: “ihes eee. “ate? 
day een SRR RE ae OR ee ot ll age aay ot ee 
weeny af Igiaraiing ope ae Yom eee aR whine viii blddead ~~ 


7) 


re nie Some . 


Be ae ae altuna L Mrneanannile na en ot ae ‘ 





sa. 3 oma 


V8. 


a FURNITIRE PACKING 
ALY, & Gorporation, 
| Appellant. 


vey ee 


gi ts sang 


APPEAL YROM MUNICTPAL CouRT 
oF CHICAGS, 

) 

) 


© } Ae | i 4 
fw At Lele O44 
- im QU 


«BR, JUSTICE JOHNSTON DELIVER THE OPINION OF THE COURT, 




















g Thies is an appeal by the Central Furniture Packing 
Jempany, the defendant, from a jJudgsent in faver of irs, J, Cermes, 
, Plaintiff, in the sum of $2665 in an action breught by the pigine 
to recover damages for the lese by fire of furniture delivered 
)the plaintiff to the defendant for storage and safe keeping, 

The case was tried before the court witheut a jury. 

No brief has been filed on belial® ef the plaintiff on 
appeal. 

On the trial of the ense no evidence was offered by 
@ plaintirr to show that the fire wae cauned by the negligence 
'the defendont. the only evidenge on behalf of the plaintarr 
Vwespect oY the eause of the fire was the testimony of the 
aintifr thet she did not think that the defendant knew the 
of the fire. The evidence on behalf of the defendant tends 
* that the fire was not cauged by the negligence of the de- 


Tha rule is well extablished that when the proof shewe 
t goods in the hands of m bailee have been destroyed by fire the 
Le Will not be presumed te have bean negligent, but the burden 
puoct 4e on the plainti‘f te show that the batles was guilty ef 


aa 


— 


Ny ig rete 





So Ee 























; emv09 mATOTION 3 ante sea 
-ha0 U9 to 


«PROD ner to. norma | eee “RR Ene oda, rorrert 


tiie? eet ti? Upetaeh auth ed teseee nw nb ni? As A if 
Srered .b eek ho tee oh daompbol « omet ptawhanted one yn 
onmialy ostt v@ @tguetd weigsa ae wt 208 Ye core ad? at aM looks | 
boroviieh sui! husw® Se oUt yo wnad, at xol aopemeh severe of 
sgaicons ohan fae egesede tet Foahns'teob oid of Trhtatela os 7 
sent, s tuovieaw faves ett exoled holxw asew gare eff. > 
fhe thdhakaie ods he Thasiod BY boii nowt Pats 4 sak on i 
¢d boxe'tTio eaw coaehive em gaws est to daksd ous 10 
gomeghinen edd yd beavaa aow et) vod dealt were of vehsatocg ( 
Ttitataiq edg to Yhoded me eonebive yiae eat .tandaeteb ould! 
oad to eomisood ot aaw ors a2 Lo cava of To stooge “ 
nde wand Incdae'wh odt tusid lati? ¢om Hkh ore godt? Trbs aby 
shat tuahaetob odd to teted ao eomshive edt .antt ane a . 
«ih of? te gong ligen ad yd bereno tot aw oeet wet ode id : 


tobid aad dard pre ae mnod vet oe beaver od von ithe @ 
‘te yiliny eaow oofiod ony fect woda of Te dentate er a9 yok Yoo be | 
















pp. 101, 195, 184; Stondars 

© Tl, App. 363, 367, 

‘ It ie aleo the rule that there fe ne Legal duty ime 

sed on o bailee to insure goods or chattels fer the benefit of 
eo owner wileas there in « contract to do eo of a custom exieting 

hat requires 1t, Parker y, Dietz, 203 [11, App. 120, 123, 


In the case at bar there is ne evidence of such a 
or custom, 





Vor the reasons steted the Judmwent is reversed and 
\@ cause remanded, 
BRVERGED AND REMANDED, 














ay 43 


how hedveves at ‘paemyhat ‘Se ‘hetada “tas td 


ee 


Pe Pk ee Ra eM ne aes NM) eS OS ES i 


er periar 


Be EM te Aig mah sat #4 a al US Rt 4 
C1 aE I Pe aes ive SD} ey cd ay Ge 


Ree ee, eee uf ne at pt Saaapae 
én ne tee ett ae ORR ee 


ew, Wee RE 


od ut eae ak 


it C r 


vy Sawe Pe 
ave ee es 
Cie eae prise: 
vaewie, wie ta anal 
Fhe TEAMS aR ; 


aus vay Os Metin aS 


64s ty RANE Sa REE TE RE OR aeaal ate c. 
eC eh ana 


Pe MME Ae ORM ef 


Ea Me hala Sais smh 


pst ar ie) 
ner lee 4k tPA Je 


- 


nie} aad, dail 


Pep Dente Rei MS MD 


abRh WOE (Qi stp me gp « we ws 





«443 = 32273 
Aap 
‘PANEL 0 tmoreRry, ) 


APPRAL VROK CIRGIIT COURT 
VB. 


CITY OF CHICAGO, a Munieipad 
Gerveration, ILLIA B, DRVER, 
Mayer of the City of Chicage, 

an4é MORGAN A, COLLING, Chief of 
Police Departsent ef the City of 


Chic . 
oe Apnollante. 


OF COOK COMM TY. 


mo 


i «a 
we ad 


b 

I, 
ete oe 
fps 


af 


: a 
" SR, SUSTICR RATCHESTT DELIVERAZD THE OPINION OF THE COURT. 


a The defendants, City of Chieage, ite Bayer, and 


»? 
. Chief of the Police departaent of the City, appeal from a deoree 
by which they were permanently enjoined “from iliegaliy interfer- 
















| q ing with Deniel O'eherty, complainant, in any way, shape, manner 
er form, or disturbing, trespassing, molesting, herascing or in- 
terfering with the vesceful enjoyment, possesrion, use and epera- 
tien of hie business ag a real antate broker, at 762 Sast Perahing 
Read, in the City of Chicage, County of Cook and State of TLlinois, 
oF from wnlarfully threatening to arrest, or arresting any of the 
 exployeen an@ patrons, while masting together in peaceable and 

i. assembly or from whlawfully seizing and eear'oning the pore 

|  t0n of complainant, or depriving him of his liberty without due 

r pr sess of law, and from searching the persons of the comp) ainant 
others om aid premises, when sangaged in lawful eccupations, 

rc from searching the premises, without warrant of law or au- 
jority, but nothing herein contained shall restrain the Police 
teers of the City of Chieage or any ether law wnteveina atficer 
entering the wald premises in a lawf'vl manner uid in the 


and lawful exercioe of the police power, or from entering 


The cause was heard by the chancellor upon testimony 















“Raman TINBRT A mo amram 
“perannod = toad 


ak a | aun 2 tat re 
‘ + eed oH 
s ‘ 


ole A BES } PON ait a im 
ine a yak tk 4 ant 


‘isp vii oN 


En a 


-pertveO wnt ae aorerde rr eave rat PrhotAa Wee , ai 


a pee aaa nS MER EG 
Baw TOY aah. 19080 bo, ta, eas Staabaeten ont 


satel @ mores Lie eggs sUtlO 948 to toeastogeh oabiol aft te 
~netsodad does monn* hextelae X12 Mon comcenie bos ci wn 


gatiecet fawk S20 de \sextend Staton Look @ wa non udnvd spe 
umtonaten Ye adatd hae toed “ko ytmced jeanetay te ean ett mk hi 


i iid xe wet te Pnwnaw derony ko 592 dno te ont aabsoxae 
gab kot ore vc ce ktade Senkasaos akotad aatéton ‘ted 
woartte aateretas wee weno Aol 16 ‘neee § te no he ear ™ 


taken in open court. The proof tended to shew that the complain« 
ant, Daniel O'Doherty, was the leaves of certain prandiseee vituated 
fn the City of Gnicago, Cook Gowity, Tliduois, known and described 
as Ne. 752654 Kast Perehing Resd, holding the eame under a written 
Lease dated April 10, 1925, for # term commencing uy 1, 1925, ena 
@zpiring on April 8%, 1927, the written lease provided that the 
premises should be oceupied for cigar etore and wort drink porlor. 
| Gm April 23, 1995, complainant, G'Dokerty, subleneed 
that part of the premises known o@ Fo. 754 to Jehn Lytten, the aub- 
lease providing that the lessee should ccoupy the promises as a 
store-room fer the eale of soft drinks only. It appears that Noe. 
182 and 754 wore at one time gomnected at the rear by meane of « 
door, whigh hae alnee been closed up by a eolidA briek wail, The 
prentons knows ag So, 754 were twice raided by the police, rilty 
a having been taken out om Getober 6, 1983, and thirty-one, ine 
eluting complainant, G'Deherty, wore on another oevasion in 1923 
“gharged with gambling. 
y Gn January @, 1926, complainant obtained «a real esq 












‘Sate broker's license from the Gtate of Illineis, and on January 

8, “1926, ® Similer License from the City of Chicago. 

Om Cotober 3%, 1026, the Chief of Police received 
atten notice from Henry Barrett Chamberlin, operating ¢ireeter 

I the Chicage Crime Comuinsion, to the effect that complaint - 

Cy been made to the offices of the Commieanton by telephone from an 
, source “concerning the follering alleged gambling houses, * 
ng others naming “Daniel O'Doghorty, 752 Bast Mth etreet, firet 
00 » hondbeok," Gn Hovenber 4, 1925, Chanberlin again tn writing 
; Ait ed the Superintendent of Police that "on Menday, Sovenber 2, 
me person unknown ta thie office telephoned tat the same places 
0: A to you a9 alleged gashling houses in my letter of Geteber 
oti running, that on Saturday and Sunday they were 

12, patronized,* 








Sg TN gE OT OO 





g,) 
ian 
Ne ot A ge Naw lle j 
Ya ae oe eh 


othatywoo gid jad waite oF babaed Tootg aaa 






















Meeane te: 


aetiiaw o i omas if? auth tie sho i widened tek mn 
» Sek Pinte a 


bay omer ft ye pakomemmon ated @ tet ane 408, idagh 

oat dade bab ivexg oaned wees iiwe oat. eer Qh kinga wo 
stoking amt otom has exave stage Tot he dean o ot bios : 
boaee (due otrxodad! > etomaio Loum ,8Ner , 68 Linea ao | , . 
afise oth ,e02o—L aol OF BOY Lok aa samt non teotq ead Te tae 
& @® soa kwnng matt Yeuooo b Lu adts songed, ba fane aaibivere 
90% sade oracqqe #2 .¥ tao axtabed oe .% tes asls eh og “ 
cient , aaen ‘a, toot onl? fa beteonnae watt e046 9104 ae 
ee hkaw Yolus bikos 6 we oo howots mood (Momo ane ho kite 


eee cre ee) 
eet apatiog ont hod bon ter eokwe onnw oar <0 “ sotbagget 92 hat 


apa 


oat apatonys 1 alt baw 1888 2 xede200 no hse nodes ‘stead 8 é 
NRCG TE sa cs oa 8. 
‘ener aa notaneve “ont on ae exer cot nested 0 0 «aankaiqnes 


ity 


hay depen poitos rt» etn oda RRR am pb 0 is ‘i 


Totornth padsarnge Mb Leo dwedtd $200, wom moe! po bton 
Syeda “ques testt teeta edt of) .aolnmdened eal onae to of 
ne oasen AOR I ARN NA byt, 08 
 Onned sunlidnmy Deyetia aitvecto? att aataxennes* anes 

fark? .geqrte AtM sand KET AOA NEM te A fe 


ft aaduovot a Wha ae data, oobser eat dire has 
Reon le ons ess taste sential, Aion geen Jiu 


: sit sre wat ata bm 


The bill alleges that members ef the wolice derartaent 
ef the City of Chicago, vithout warrant of law er authority, ine 
yaded these presises on January 15, 1995, and mode an iLlegel 
search of the premises and of the persons of complainant and other 
‘M@ployercs, and that complainant “Le infarmed and believes will con- 
‘ tinue te visit said premises and ferge their entrance thereto, 
@@arch your orator's persom snd the premiges and witheut warrant of 
‘Lev or authority, and have so stated and threatened to do, at any 

time they were in the neighborhood.* 

+ the evidence tends te anew that on January 15, 19258, 
two officers entered Be, 782; that they steoped ome man ag he wag 
"getting wp, sid that these officere searehed everyone who ware in 














Place, including the complainant; that they made complainant 
up ond searched him and ordered him to the rear; that they 
ket hin to oper « pale, whieh he told them he 414 not have te 
}, but in the meantime the other effleers were searching and 
ered the occupants out, sn¢ told them if they came tack again 
Would break open the safe and leek them wp; that the police 
cere forced open the drawers to eomplainant's desk; that when 
searched complsinant they pulled kim out of a chair, went 

eh his vest and took bie beok. Compiainant says there had 
no disturbance pricr to that time; that there was a 4eck of 
"but no one playing at the time;* that he did net ase the 
re isee fer the purpose of gambling, and that they had not been 
used at aby time since he secured the license, He says the 

1 ce officer told him at the time that they would chase anybody 
it there that they would find. 

One Ceay, ah omployee of complainant O'Deherty, tes- 
hd that he wae o licensed resi estate salesman to the extent 
lat he had an acknowledgment of » receipt but had not am yet ae~- 
red his license; thatyhe was present at the time of the entranced 




























ana wetton vice” tee tbls ‘Yastt’ ayer a aid 
Ser we ee vee etal ‘erie va & 
ee me Th Boge cabs 
ee ee i 





ote ei ne ieraaad & 
=a tbe “nabs tthe Fis ‘Bedebral ar daeakas Canad tan 

‘bide bd Riahes Gini bored bie soelanng b i ike oe 
to revnivahapanoal porate tents ‘ie a * 


TARY Wat) 








Se eee es 




















fi eid yi ‘as ‘tt on ional ei edt ie st hasan’ 
Micki’ ‘SB eae ‘pads ‘dis 2 se snttndon cae 


ty aide halos ite SF ht ‘borane 10 hind ma bai tne be 
eiaihar lh AG tele ra wien Shari sland Cae 
“a siohied aa Kae” mut ‘ematd” Blor ‘od par oten © 

te Bd ata. Pat Pe? gaat 1S Ae ta 
ia, patdetmen @tow expe hte ‘xd utd aonke mao 4 

oo A I 
aren dand sane wot 2 anes biod baw a ane Sisadyeoe 
ait a ON oe 
setter one Yard ew wld ‘ipot ‘baw’ othe outt exer toon NN 
AES AAR. ARTS. RR MSE Sally ate 
ane ‘yas Yaook ee ay +e orem ast nego Le edrl 


SRR aE ea Fake OA ORT AR 


hd vase a0 tee Ak boty eos dnp niet 
\ Nei oneal aoe ‘dont kao stood abit te ob ban to ia 
‘2b bed 2 Bew dtodd dad yous: homli Mh rian, 8 

witd! iiy dad’ BLS ox Sekd pombe ote "de paige 
lanedhion Ha aie “Hail + ha signi ta rm 

Dennlbshanaaoll ebisene ‘oat bouden od be 
a 5 Bia Io po a mae ch ls 


Hy bina Bu r i an Rust 












pb yy 


ria it lilt . 
ce i ou ee i at Bi le oa | 








NM 


* of these pelice officers; that he wae pulled out of hie chair and 


“the officers went threugh his clothes, wut their hands in hie 
| poekets, took out the stuff they wanted an4 gave it bark ta him; 
that before they came im the witnese wan talking with Kr, 
ees. and that wan all. Cooy gaid he had been in business 
for his own account fer a salary in Ghicago ae a soveulator mere 
than anything e@else; that he had not been doing anything for some 
tent months, and that prior therete he was in the stook ane bond 


nt 
) 


Dusinens; that he had been practically idle eight months, travel- 







fing some; that O'Doherty had just opened thie real estate place; 
a t prior to that tine his eele business was the avTt drink parler 
oa fA eating heuse, wd that he had been in that business for ten 





p GOrYicer Doyle, whe is ete of the parties whe made 
[oe raid, teetified that he had a telephone eail with referenee 















the place; that he went to the rear of the glace amd found about 
m men, pogeibiy eight, sitting at a long table; that they ar. 
isted everyones in the plage, telling them that they were police 
cere, and that one of the men was surly ond said that “he knew 











leun well we were police officers,” and would not stand up; where- 
thay gratbed him by the ceat and cot him ep on his feet and 
@arched him; also that they pulled owt a drawer in the table be- 
hi Rd the radiater, looked in several other places where it was 
: eed something might be énnadndion bat did not find whet they 
lecking for, which vas guna, 

Thea other officer engaged in this raid, whese nawe vas 
*, teetified that he waa connected with the Detective Bureau 
that when they went there they found ‘four er five people 


ay | 
ai 


‘Mg cards, #0 they stcod them ali up and searched them; that 
ne of the men eaid, “I know you ore police officera;* that thie 


ra mow ahout A ii wp, 9 they took him by the coat eol- 
us WA Ay 


that he. the witness, went inte a baek room 











Boe Alan ali te tun beLing gew of Init pamMIito wohton ements 
he cit mbes thot fey yassitete mbt Masons aiid amore 
pats et Asad 22 wrag hem bm dria verte Tite att site Moot , a ' 
ati Siw gattiag exw sane be watt ak esi ‘yeas oxotad ¢ 
_ mrantend ak cond Rest of Dhow yaad fhe aaw asd Bete , 
ton todalsougs 4 an oye id) a Yeates « tot Fanogom wwe Bla 9 
ores. te% gatdiyas gattoh annd tea hat od tadt yoate ae 
baod ban toot ots al gee en otenext tghig tons bee, 
efoverd ,aciaom teigte efbt ~tiankdoexg anet bed on tase 
pomalig obetan door shit bonage Sent had yraoade 
ralgzag Uaixt Troe os? gow sewntied oLoe ata oaks taste, ot Rink 
tot tg? ceemlend dans BL aeed hed at hans Mt, erent We | 





ese ith 


ne ve 


ee 






, SOR BAD BONG Row Fae pas por i ay 
‘obee ose, soeeteg aute ‘ho ang poe ‘te F ootyut, Bd Shed f 


Re Sa ry Heit 


congretes ee lw Line sagdgetet # est on eane phic hd e 3 ! * 














ert bawte goa hive bre 1 Sermmetnte vetoes wow ow api 
bao got wht go ay Bis Foy dew tego sat yo ts Dedtary yosld & OCH 
«oF Ohta? od? uh Yewarh @ due ‘koLtug you, teat opte Lda then 
saw gh sassy apoaty taiite Lewy rps, teh peteok ¢tosakhat hatin 960 bts 
gods duaty hath tom Bad sind via tegegen. nd spin 9 cert kia # hae EEE 


rey oy a halal nie ne 


Pa *) te PR ay yl 


abst; eas m sarap, sihten pecs *m ” 
oie Fano salt yo gabe anot, eed, om oh 
BOOT too’ « noed dew ,waomtiw wat od haste 


ee eae 






























and asked what they had in the eae, and wae sxewered, “Nothing at 

pli;* that he sake’ them te open it wp ams they salt they wewld deo 

 Bething of the kind; that when he got out oe! the door be aaid that 
they would hear frem the officers later, | 

; The avidence shows witheut contradietion that the 

efficere entered the premises without a searek warrant and without 

& Warrant for the arreet of any person, The briefa for the City of 

Chicago discuss ot length, with mumercue citations of autherity, 

@ right of police officers under statutes of the State and ordi« 

ef the City te arrest and search persone and premises with 

warrant, but we 4o not think that a consideration or determina- 

ef the questions raised im that record are at all necesuary 

to a deciaion of this case, 

We Ciimk 1t fe apparent that the things whteh the 
metion restrains the defendants from doing are so indefinitely 
stated as to sake Lt impowaible for any official charged with the 
. nforeenent of the law te determine what is or “hat ie not theredy 
| Fert: éden. The langusge is so general and the order is 6o Limited 
| 1 y that provision, which provides that nothing in 1t eontained shali 

re rain the police officers from entering the premises in a lawful 
mer and in the proper smd lawful exerciece of the police pever, 
: ‘At would seem at the most to amount to a direction te the 
? lice not to vielate the law withent giving them any information 
2 to the specific things whieh they might er might mot de. 

Tt has been so often decided in this State that the 
rule ia that ceurte of equity will not interfere to reetrairz 
eiale eharge’ with the duty of enforcing the law from enforaing 
* that it should be unnecensary te restate the luw on that eubjec 

t has been specifienily so held in Poyer vy. Village of DesPlaings, 
* “TAL. 122; People v, Barrett, 203 111. 99; Chicago Stock Bxohang 


Claughry, 146 111, 5372; Shekel v. Roche, 27 t1i. App, 472. If 
| 4 





























da yekelted®  dexewse: mam fein: _— wat hol gost” date sein 
oh bbw wat han: cared eens. age Sk neq of mut baatna eat tate” 
dams Dion ced neem nais Ye tae: two get meat dads phaka one t0't 
| Ee ADI gs aMhdad erent ee nae mec t how Bite 
ag task’ aghdeliattaon Soni aoe nwode agmebl we ‘pith: ai? an te 
teed eben deuetat:doenes actuate aenkansy emecbeereh | a 
— Payee eo ae nar. wtoled ent Blom tea Yale Ee: 5 ere ak SH ie t 
_ac¢tinetivs ‘to who tins te eelerenwe Ay te ymngaed to naween® oat hi 
nthue fag wast og To aedutete isha away trte 96 2teq to! diye’ 
Hite neakerg hae eaceteg doting hae tenets Oe FO one cor 
ere ee er eee ee Peatia” 
Wheexeesa Linde wae benss vat mi hedtan anol sewng ods 85 x 
onan elie ro note toot "A 
een in er ee | 
Plodtal'iedad om axa yateh uw’ eotedne tes wilt eaihortewe Aghios 
ee eo eo ee ee 
qionad? toa ei guste 9 wt dose eatermdeh eo wo. wall Tor amnimme 
bediols ot ab sobre ait bam fesrseg op mh wpompiiat ea Cm 3 
Linde tentedaco t2 nk gabon dad? moblvoxg toliy ymelatvong ¥a 
Gate a at esekeore ast galvedae mort woot ie notte wae! atadt 
teweq #ehiog eA? to ea lowers fytwat haw woqety wal HE Nie noel 
vat af aoltoothh 2 oF Smnss 98 Soom ost te Kone bivow OE i fs 
ao rinercoltmt yar medé quiviy twadtiw wal wah sialety of Yoh wale 
yh hen detgaet We eter yente alte opie wit towdel edt oy a 
ails gut? ofae wddt mt bobtoods amsta ‘sw’ apmif nan ar O°O9! © 
atetieen of eretxodut gor Lge ytiage Ye aroed’ tedy! of me 3 
gniovetan un? wl ot yatorotis To eewk bey daly hegtade WE t 
po kdun deme us wok so sbadehw od yanebowaeie amb tibet ety 
Yom etl eet bite peslaeanytiene wen’ 9 


La PRO Vega LAKE Wey 


iy bathe | iby: at 28 ore sche et Wah SER, 9 SiR i ong 







eis any exeeption te that rule in thie Stete, we heve not 
gited to s cave which mo holds, CGicere Lumbe 

Til. @, te cited and relied om by complainant, That saes is 
Ly distinguishable, in that efvil rights enly and net the 
ad inistration of the criminal law of the tate was there in« 





The deeres of the trial court ia reversed, 
REVERSED, 


yy, P. J., and Jonnetem, J., soneur. 



































hop rae. Rec yah Winget Or calaeae Wh ap 4 ve pe a? A eh wane” Saha 


fla A gh ated | Me ae wrth 


mh ane ue SAW octal Ne AR 
Se ty 


‘sae tat teen tere Ba 
ed? fon tan ying atdgtr Lhvte sane at yofdede) 


GF) GATS. and an Peaent ae  Racaene RE ORR RAA: 


wfth one at ante ptost elf to wad 
EMAL TR BEEP OGLE TAR OBOE tha OY | NR) 








had AO ce ea Ae ae hi ee AR ganar ims Mem ey Satpal 


Mamasen ai pies fLakis edt to eotesh ant 
rg CF Een Rei te Tie si ND Bi BE Sy MME SRR AR: bie au RS by -wae 








Be a NU “SOEUR: RE hte aa ea ay ae mone eel he wonedy: 
oi PW Sakae SER Bhai Rec a ie eta ar Rink RL a 

otro Oe et 
EMRE RTE AE ESE PS Rg te ait gap 


eights ARN bela Ras apie gti way! 


a SR Ae sed ail Bie piaoall of ae ae i EPG: si 
Wkowares eh: ANE ET A SR RET, HERRON bal weet 
pay aot fe Unigene Aa RARE: ite Ce see Akane a x pe 


Ce ee ee seb a lie 
WRG cee i te a ance Sai EE RN te a 
ip tinier ries gaia Selle: yomviNR bp! eon a we, et 
Le i te es Oa RS aay “a Lil ah ale ‘i 
Oe Ne Re ROE pois sie te eo aoa 4 

RR earane RRR IRR On ew Sad bis was: es | 


Re a a a ee AE ues Nyt 








Ce TARR RR A Ra wee wwe 

A eCe s 1 IR ne | 
ARI. math axa ae “ssh a 
| LA cath SA 





i 





& 
*, 
ve 


-S4¢ 


12 = 3132 


ABE SWERDLOVE and SOL WATUS, ) 

Ee Appeliees, ) ASPEAL FROM CIRCUIT couRT, 

hb j 

| Ve GOOK COUNTY. 

| [US SHAPERA, EDTARD GLASSER } 

FRED URISS » } ss \ 
Appellants « j . 


Fa | 


WR. JUstics watcaerr psLiviney THe OPTNtON oF THE co RT. 


¢ In an action on the case for false and fraudulent 


mitations, a jury returned a yerdict for plaintiffs 













damages in the sum of 82500, upon «hich the court, 

motions for 2 new trial and in arrest, entered 

mt, from which the defendants eppeal. 

= The evidence tends to show that on April 28, 1924, 

4 h plaintiffs purchased from the defendants one hundred shares 
} in the Adams 43rd Street Garage, Ine-, and alae purchased 
| : eo garage business conducted under that mame at He. 914 East 

| Ard treet, 

% The pleaimtiffs allege that they were imiuced to make 
ich purchace by false and fraudulent representations of defend- 
ats te the effect that the garege in question was doing a large 
| profitable business, was paying large dividends, yielding an 
jeome over and above all expenses of $500 a monthy that the 

. » With ite equiguent, leases, ete., was of 2 value of 
Over and above ali liens and encunibrances; that the garage 
8 fi lled to cnpacity with about eighty-five actual rentals; 

a } the garage, with its equipment, leases, good-will, ete., 


3 


& by the corporation, and that defendents were the 


1 be ‘ef sll the stock of ssid corporation; thet the same would 


yi 


al 





223008 FTUOSTD KOAT AAMSA ‘s 
oTTHIOD 2068 





bea a A 3 
GO A. ok hLNG 


Phot mer fo worerce sat cenavnrat TOT 

















teelvouast Sao eeist i973 eeav ede so aobioe as ak 
arissaialy xe tolstey = bosmsex eek B 43 
__ sn state me, St tow 0 
Aexsans afeetre gi bus Leitd vem 2 tot enokion. 
i“: ghee atasbaeteb ets deide sext 
er Ah Lhugh a6. sats wede of abmet eomsbive ott - 
aerate bern eee one edmebactesh e828 moxtd beastiow, et 
heessiote Osis bas ..onl .ogeteD deat sath nineteen 26 
gasai aie of ts Seas tomit seb botesbmes eeerlasnd . 

= elas ei becubul sxew yodd sad? egeiie eltiasteig ae Be 
-bap tes % aaelinsaeseiget iasintuay? bas saint w canal 
eguseil « gehen was agisasuy at seeing oss Jasid seotte ead “ ad 
as aatakety sahusbivis sgisl amkyaq aw csaculesd olds : 


cxhetens fauton evhi-yedsto suede athe gioegee « ot 7 
e399 giliv-boag »asenet 2ecom taps ag Siw as aa : as & 


one 


be transferred to plaintiffs, and that plaimtiffs vweule thereby 
become the owners; that the total encumbrances against the said 
public garage business was €2500, payable £100 a months that 
the debte ond outctending secounmts duc and owing by the eor- 
poration woule not exeeed the sum of $200; that all ef these 
Tepresentationsa, upom which plaintiffs relied, ware false and 
known by defendants te be false; that the business was not 
profitable; that they did net yield an income over ond cheve all 
expenses of $500 a month, ox any other aum, but haa/e long time 
been operated at « leses; that the carage was not of a value of 
$2600 over and chove all liens and encumbrances; that the value 
ef theysame was leva than the amount ef the liens ond encumbranees 
‘Ogeinet it; thet the garage woe not filled to eapecity by sightye 
five actual rentals, but, on the comtrary, there were no more than 
“thirty-seven cor: or automobiles which were actual bone fide 

 Pentale, and that the income from the actual rentals of the 

| @arage business was ineufficient to pay the overhead cperating 

| @xpense; that there was «t that time an ordinance of the Vity of 


Ghiesge in force and effect which required any pergon conducting 





| the business of a pudlic garage to obtain @ license therefor; that 











defendants had applied for such license te conduct such garages 
and that the licemse had bean denied; that the miilding in 

: ; ch the garage was in operation had been condemned by the 

fii department of the City of Chicage as umfit fer the public 
business, and that the fire preventive department of 
City of Chiesgo notified the defendants thet they could not 
in or conduct a garage business at that places that there 
fe outstanding accounts agvinet the ssid bueiness of more 

mm $500 unpaid. 

The various propositions submitted by defendants 





 _edeteds Skanew wPhkiaiaiq. tals bas eathisatate od bexteTaaess re 
bhoe off tontens agomntdmemne Inted edd sand ee 





i909 eft ed gikwe has oud sndinestbrgdiniiabated gag at 
eueds: 49 f4 sant ,GOR) te ave of? beeexe fea btvon anbtoni 
fen enka ertw .belLor e¥tiiaiatg dobdw wean’ sonok onde He 






gon anv’ geemteud ede fat? poutet oe o¥ ndanneo Hs | ns v8 se 

ike ered 7 ree amoons ss Moly fon bih yodd dadt tofisnetien 
aks gmoc o\bed Red gate seskto ue 6 edison a G08) te oe eeogm 
to obfey « %@ Jon eae Sgetag Oot tats tank a 9a badaroge ana 
outer od? gait Yastneuayons bas onoht 6h: pendingoccaby. 
neonmrrimuons’ ba! seokh et? to dso odd watt anbd saw & i 
«¢giyle yo Yhosged oF DOLELY tom aiw egerin’ eas’ ‘tote 4 omtn , 
ted? ovem est exow otedd (erednos wit do’ dae yatednet Laas 
et subd Lagtes Wrew doitw volhdodetus 46 Perr 

sit aEsimbe Enon ot i sho tna 
"yabteregs haseteve oily yaq 63 fwetolttwext wew awenk 

‘te ysiD ott to ‘eoieeckivtd nw nk) Yaad bw Waw ae va 
yaks owbaod neared ate betkapet Soide toetto bas: enw? a 
Saskd ytotenons purselt » abstde ‘OY sgotag oiiong’ a “to 
eegexng Sows toubkde oe ‘bodookr Moire 18% DehLaye had ot 
ee palbieud oat todd jhetwed mbad bed semvoet ad mm 
oid ue bagew anos mood bad notssreyo at pega aot oh 

eiidug edi 10% dfn ox ashen hee eo oad Yo Sms tage wl 

4e dnomdasqeh ovisaoyer wt Yt bas Fide wie’ ” sadtelae ‘wyiil 

gon Divvs yous son) admutmo tes bad" bontaton | 0: 
waend tadtd’ bienneck saat oe hissnanl bent - Howbe 




















aa niieay > 





ai 
a 
A} 
Py 
i a 


ethintt 2 
tte 


=3- 
@ll go to the point that the evidenee im the tace woe insufficient 
te support the verdict and judgwent. efendamts seint eut that 
the burden of proving a fraad is om the party alleging it; that 
the evidence te sustain a cherge of fraud suet be clear and con- 
vineing anc leave the wind well extisfied that the allegstions of 
‘fraud are true, that ae a general rule false assertions concerning 
‘Yalue are not actionsble and do not relieve the vendee of the 
— of investigating! that a party hee a right te 
genie Ris own property anc is not bound te underestimate ite 
Yalue; that fraud must be affirmatively preved like any ether fact; 
“that where transactione are a2 @equoliy open to an honest interpre- 
‘tatic: as to a dishonest one, good faith will be preaumeds that 


















mere concésluents Will mot ususlly amount te Preud; that it is 
t } duty eof a vendee to infestigate fully before purchasing; that 
ffs connet recover if they cic mot rely om the representations, 
ef which sre elementary prepocitions of law as applied te 
ef thie character. 
A fraud is a false representation of a material fact 
» with kmowledsce of its felsity or im disregard of whether 
| At be true or falas vith an intention to deceive, and whieh 
a deceive and which resulta in injury. ‘Ye have examined 
4 hi evidence in this cese ané are constrained to hold, mot only 
we camneot say thet the jury vase not justified in returning 
@ verdict or the court in entering judgment, but thet ony 
her verdict or any ether judgment would have amounted to 
age of justice. 
= dven if it is coneeded that the alleged statement 
| 7 | te the value of the property was omly an expression of 
nh lon and therefore insufficient te sustain a charge ef 
2 wad the other cherges made and established by a preponderance 





















teeiciViwenl eaw aaae of) sfvesmehtve eis sans ¢etog°egs ‘oad 
dosha: iso. taleq eisvhastol sfapaghut Boe e9tbesyonsa. 3 
gads gdh gaineiia tied eds me et Suext ooprivetq ote 
acy bas tnele ed dauy. Seas? manana cone avbives 
Ye emoldrgatia ou? dats belisling Liew bain edd eveed beegeten 
guisnesces eolrgeces eniad eign Larsaon a en teddo pees ete se 
eit te aehasy odd _eFailes- gon 65 oe Sidangiian dea 9% oes 
oe a ck a apeltcgiseem:. te yes 
wth. adoulsastobar. ot Snued son.ed-bae. g@usgome nsie-ats-2 
tos sadte Yee efil Sereny qisviiaesi tts ed acum Sued 
~Sigueiai gasses ae 94 mege yiicaps sa a74 eagiéagement 
_ dead qbonuscig. ag Lite dtlel boos .ane geamedsts 2 mn 
eh dh dad? jhev? of dayome. wilowes Jom LEke @ aaneilii 
Gass spats oaks CLO. fey lzeenad et webeew ie on gaunt 
(+ ado liainagesqss est a9 Yie% fon bio yous 2h xoveses dommes BThhed 
: of Reliugs aa wal Ye anchsleogery, yisinomele ere deten Tel 
0 eas Sse $2 omeis lo ta te@genede efet 
ten ieiteies 2 to settedmpacigst. ostai & af att al ; 
weddeds Ye beagexets a2 1 eiteds?. aah Se canbekenns a jie ety 
Reidy bas <ovisess ef golinatak ibaiate etek 19 eusd 4 7 | 
ins dee abfod @F pemtoxtense Pee 2 has. anno ata at iat gam dai oa | 
guleimést ak Seltican), jon ase qual ede ease sagt x09 2 | 
_ Was told and .tmomyaul, gaisotas ah soe. este, x 
(09 Sedtuoan over hives tmeagbs, xedde xpe 2 moors 
“dneams ete bapesia ws tame | 2 ven ign 4232 noes won 
te pelesomgse sq (iso uaw x nee meet 


8 B3 


Ye opiatio  Biatows of smoker vivant exetowidd ban 
sti wo Pagar COLT 



















Seen 8 A.) pods idatas bite ote 


ngs geld loogeene ¢ 


















the evidenee are more than sufficient te justify the verdict. 


the jury were justified in believing thet the plsin- 
Telied upon the fise statements made, 
t the reason fer teaiting to 
might have 


ome of which was 
5@11 the garege was thet éefend. 
more time te devete to another business, whereag 
ihe real FeSsOR Was that the city had refused te issue a Liconge 
a the reconeendation of the fire department. — 
The jury was alse suetified in believing (chich ve 
hi ik the evidence showed beyond any reasonable doubt) thet 
te Gefendents represented that the garage waa bringing in 
thet aseured & subetansial Srefit 16 was not im fact 
im enough to pay expenses. 
“mY ome of these false statementa, knoringly made 
mwhich plaintiffs relied and were cemeged) is 
the verdiet. 


The jucgment is gust and it is aifirmed, 
| APY IRMED, 


sufficient 


iy, >. Jes ond J¢hnaton, de» Concur. 





Lgintg wid sad pabyetied Bf pottizesh ose" 


haenimamsasancsite 
quanen ade Line 2% gubzined seX: 





ge deida) ‘patie! 


See Ry 


oe ats 


Aersss 


4 vs aN ae ee ae 
. Se. pp tee Fees gee Teak ae See 






‘ 





e¢ dnoteatiee aoslé mono msi ot : 
tunes sntusanks et OMe 8 : 









sapaes ob eaosseeiot baw eob ¢% 
teih Be 2a Blea s oak peasagtnietine 


res a 4 
re = st - 
— + 
oe aes 





i atpaeesas. pases ena i ete | ia ‘wit, ian ; 










ee a 
whe amt, er 

in ote todd gebeemen ah 42 9% aoe 
Yiee oar: blatas aca ao » — es 


% fe oss ae a2 fg kek 


= 31333 


















- woxacs L. BAARD, ) 
Appellee, 

APPRAL FROM SUPERION Count 

vs. 

} OF COOK coUNTY. 


RY BARDSLEY and 
LE D, BARDSLEY, 
Appellants, 
Dy | A TF ‘ ( 


fd “ER EE holies 


BR, JUSTICE MATCHETT DELIVERED THE OPINYON OF THR COURT. 


The 4efendants heve perfected: this anneal from a 

. Higment ageinet them and in fewor of the plaintiff, fer the eA 
of $906, entered uper the verdict of a fury, after uetiens 7? ® 
trial an¢@ in arrest had been over-ruled, 

| The firet point urged for revereal is thar the court 
er ed in denying the motion of defendante in arrest -f Judgment. 
zh @ motion was in writing and vas stated te be wtte upon the 

rr mné that the action wae an action on the gx«8@, while the aver~ 
r te of the declaration ehewed an action ex contracty only. 

| The declaration in question, in the introductory 
thereof, states that the plaintiff complains of a “plea of 
re pase on the cage,” and the record discloses that te this 
@claration, which in in three counts, the defendants filed ploas 
} not guilty, which were appropriate pleas to an xetion on the 
12 . The verdict of the jury wae also in form responsive to 

ab an action, namely, guilty, sand the recerd shows that the 

; nts in instructions asked in their behalf requested a 

er et in thet form, 

The declaration in aubetance averred that defendants 
leesees of the plaintiff under the terus of a written 

ase, which was attoched to the declaration; that the lease 

ee Tied that the premises should be used by defendants for an 
t studio, and for me other purpose, - that under the terms 


a 


ag 












“Tew rn wine’ ibaa 
fe ak alld ait Be ae 





ar rat ay ca Key’ 


iN 
7 efile dt a So 








 ieimebnenrct cia artes Oe ag ME C78 fink wih bi) veshnin i 
_ 700 EE 0 NOTRE HY 


a aeons, Seen. ‘ee Aevow TTY awa si ant 
















| 
. 


erred edt tohagy fast + 





ef the lease, the defendants scimowledged that thay head reaelvad 
the premises in good repair and promised te reatere the same in 
that cendition with the exception of erdinary wear and tear; that 
they weed the presiees or purposes other than these for which the 
‘Same were denised and neglects’ their duty with reapeet therete, 
to the damage of the piaintifr, 
| The defendants contend that the plaintiff? has mistaken 
‘hte form of aetien, and cites 1 Chitty om Fleading, page 200, te 
the effeet that - 
"In order te vrevent the confusion wuiech migst ensue if diffe 
ferent forms of sagtiona, requiring 44 fferent oleae and differs 


ent judenents, and of a 4ifferent nature, vere allowed te be 
Joined in one setion, it is a general rule that setione in 


7 fern ¢5 qontzaets eannet be Joined with thove in form ex 


i They also elite and reby on the statement of the same 
iis 
_ ‘Suther, pages 264-8, to the effeat that - 


“The consequences of a misjeinder are mere izportant than 
the circuwsstances af a particular count beine defective; fer in 
the case of ao misjoinder, however perfect the counts may rege 
pectively be in themselves, tie declaration will be bad on a 
if General demurrer, or in arrest of judasent, or upen error.” 












In their reply brief, however, defendants shift their 
ground somewhat and etate their point te be that, having inetituted 
euit end the nature ef the suit being determined as an action ¢x 

Aiste, it was improper to join in the declaration counts in an 
. tion ex contractu, 
| Purther authorities are not cited, nor are we ine 
by the brief of the defendants what partieular edition of 
he several works of Chitty te relled uoen, nor are we informed 
by defendants, in somnection with thin shifting position, which 
arti oul ar counta of the declaration are regarded by them ae 
sing in tort and whieh in contract. 
After a conelderable search through dunt covered 


8, we have found the quotations from Chitty upon which 


ante rely in a volume which, the preface indicates, was 


= Tareas Se <a 


Anon ONG ie EA 


——K—< 







bovivost bad ep ast teddy Seghs brome chnihentah Ld <ooaes one % 
Bryy ive 


ak amen edt orotees * nonecne 2 A ‘baa ckaqes, laaiodiid seo: 


atke YR owes sityhw M6 bie wolentios ant danvere of 4 . 3 ‘ae : 
wmrarthh hom gaol tomwetiih gaixiever. ,eagiten to want damnek, 
ag af bewel ife dil Wager YnoraThih'a Yo baa meen - 











a eto ah euee we" nary’ ie'beahet od + 7 Sah 


ia he ahi as eae ( 
Sey te 


wae ahd bil + nepiee ¢ aie att a9 ater, hae, s othe, ents, yet, Restiae are) 


se 4 * fad, toes out. oF duit oa se 
af cat certnnee aa ot siisishts fate Os be Ged ms : 
1 Pa ae ek sth dbvinawlar as % 
* WORE manger Hoy hrapaG has, ‘te ‘tuekee. fr 40 <xenumAh Leong 
‘thet rae) ‘atanhae kop a herengs, ete hid eeaee, steal Kew oi " 
hotutitaah gutvan .fodd ad of dahow, about aisda fas deciwece : 
ao, .ripttas au ae dealereteh gated ttua add to oratan, om 


ae th adage Golteratoeh 443 92 alol et teqotgml sew #2 pied y 





perevon temk, caning: win ® ron esa o 99 
Listed aoe, WIS LD MOG R- whasds i Dh died 
sow .seteothal son terg ais ytle Rater, gemekn: a at vier ae 

























pared by that author prier te the 7th of Nevenber, 1403, and 


ul % 
my 


wh eh was published im 1878, [It wae ne doubt improper at that 

‘ {and under good practice in pleading is, we dowbt net, still 
woper) to deolare in case when the eotion is in faet in aeeumpeit 
or to join in the same doclaration tounte in ease and in seeunpsit. 
(se Gebbert v, Packington, 14 Gnglish Common Law Keporte, page 
152.) Prior to the enactment of the gtatwte on that subject, in 

: ‘ormity with the generni rule, it was held in iilinole that 

te in treapase and in ease were impreperiy Joined tegether. 
iradbermy, 80 Ill. 82.) These cases alse bold that in 
ef euch mliejoinder ai ther ef causes of action or gounte the 
“deeiaration would be bad, and that a motion in arrest of fudement 
2A be allowed. 

That either tn action in ease or in assumpeit is 

oP er, and that these are concurrent renieties fer wrongs auch as 
th se of which the plaintiff here complains, te held ta the well 
@onsiderea case of Kevin v. Pu Pals Yo., 106 TLL, 222; 





that « misjoinder ef counts may not be taken advanstage ef wron 


4 


etion in arrest of Judgment has been decided in ©, & A. FB. Be Go, 
r. Murphy, 198 112. 462, 

The statute of Amendments and Jeofails, Snitheliwrd [11. 
+ Stat. 1925, p. 1li3, chap. 7, see. 6, provides: 


*Judemont shall not be arrested or stayed after verdict **# 
Fifth «- For any miapleading, insufficient pleading, laek of 
Solor, wissontinuance, discontinuanee or misfeining of the ioene, 
or want of a joinder of the iseus.* 


The first contention of defendants therefore cannot 


a In the second place, defendants contend that the Judg= 


‘ian 


a ent must be reversed’ beeaune, a9 they say, the record fails te show 
hat plaintiff mate a densnd wson defendants to pay the ameunt of 


% 


Y needed to make euch repairs as were required in order te 


- 
a. 


‘4 ae 


©) 

















Peer 3 Ay aay prises, WON: PE Re ip 
ny “Hoqunee ate vane at aoatou ae i taste 





AGAR i ARR Were Re i ; 

ifow ash mf then at vamtscemio oxo ¥ 
ke fir =n H Hos ay ie wy ieee 

see, bd ey sna 2 ; tn soa ¢ 


fae 


et brvlinsds dct \edtetoet ‘ban ao'at asa Ne » Monee | 
Sh SAS ghivowy 6 otek (¥ ageme” Cth ie Bi 


wan guihaey Beret — <b bodoores of Sau Se me 
Hehe ae ‘hare au, 
ade te" padete ta ar mi Noo 


i oe Dah 





3 


PM tis Ca okie er iii bg i ad A ROSE: Pe ‘al beanie 


whut, at, Foat, heaton ntti wait a: 08 hc 


thee tee wee Lae MER tht alan ae st Gwe waratare M 





ipestere the premises, Thies sentention, however, ie incensistent with 
ee assertion of defendants that some of the eounte of the declara- 
tion are in tort, Our attention has not been esiled to any ease 
where it hae been held that a previous demand is acesesary in order 


to maintain 2 suit in am aetion wpen the cane, Defendants cite 


a net Palmer, 99 Tl1. App, 899, which wae an action in debt 
“upon a bond, and Baker v. Whiteside, 1 Breese 132, which was an 
acti OM upon a contract for failure to convey a lot of growd as 


ty, 


“@greed, neither of which are similar to this case upon the facts, 


lt It ham been held in Chicage Rock Talend & Pacific R.R. 
Co , 125 TLL. App. 2, thet notice te the defendant be 















brincing evit is unneecsseary in an seotion on the cage te ree 

for nersonal injuries, Im Niemeyer v. Brooks, 44 111. 77, it 

te hel4é that in an action om the eontract a demand is wirneesssary 

wn ooe there is an express stipulation im the contraet te that ef’ 

, t; and in Yard v. Montgomery, 67 111. App. 346, it was hel4 that 

the cireumstences of a case are sueh an te clearly show that a 

4 would be entirely unavailing, « formal demand before bringing 

Mit ie unnecessary. The record here shows that such a demand woulda 
ave been unavailing. 

P a In the third place, the defondants contend that the 

ot is arcsinst the evidence and that the rulings ef the court 

an the instructions of the court with reepest to the evidence are 

roneous, The written lease between plaintiff and defendants ree 

that the premises were onteared ypon in geod repair, except as 

in otherwire specified’, By another provision of the lease it 

a stipuiated that the lessee would pay for any a4 all revaire 

st should be necessary to put the premises in the mame condition 

men the leases entered therein, reasonable wear axceptad. 

Attached to the lease was a rider whieh epeeifically 


certain resnects in which the premises were not in good 
& 


a 


5 a — ee 


PS ee ee, ee ae ee eee Loe 


TR OO (Sn Tee RRS US Ree oP 
TASS ad os A ai bi } 
a ae i ‘s hy 












tw taeteredooal wt _eTovewost Hols assay pit, i aaestoans s 
setnsond nl % agnico8 vids te ents fans edapbanten te 


agto tanh antec Cshcain ons “nog ( molope ca 1 at te a 
saan ak nalioa an aBy ho hate 00 ak AE ae mares aS . 
debs a as Wes) ee 

Road ciel sig kate she omen & 


. whe a stuf * oun ate x 
pk a aogn oneo, abe » | rest + fat to mate « 






4 UN 
Vi 


on et re one ho ) notden ai a wessresanay » at ee 
$4 ee .nst rv “sauaon oy saxnandl al vwetentat mR 


dans vat now 22 it ae, EEO tema pon. tba 
ot ween ites At me fn. fae 8 : 







"hen 


A ial Hen 


a a) deals tym tm nitive! santas ess ,won tg rate, ot, Salle 


ae hiwitke (ythaaqer doow at noes! Bale” ‘out aalLe la ca 
#1 oobi t ode Yo node lvoe ‘tons ond veo ‘etéses titwndre & 





pelea neta cid frie cab the a wah 
seeg at an eter neeee ae 


Pah 


g * 
Wage aay ce : 
A a ds ii be di eatcan denny NEN 


























p and recited that the plaintiff leaeor would make the necene 
repairs in these respects. There were something like twanty= 
ve different things which tae lesser agreed to de in order to put 
| prenises in preper comdition. fhe lease did not fim the time 
within which theme repaire should be uade, Dut ploeintiir, we 
think, eorrestiy argues that the law would preswae that thie work 
vor: 4 be done within « reasonable time. 

The testimeny of the plaintiff tended to show that the 
pla tiff aid wroceed te make these chances, and that it teok him 
abe + three monthe to complete them. The term of the Lease began 
: June 1, 1919, and defendants sntered inte vossession on that 
t . The lease wae executed under date of way 14, 1919, prier 
Oo. the defendants complain that the court refueed te admit 
lence offered by them tending to show the actual condition of 
he building, either on tne date of the lease or upon the date on 
h the agtual entry was made, but on the contrary limited the- 
o@ to the condition in which the buliding was after the ree 
ae agreed had been made by the plaintifyr. 

In this situation, the jury was entitled te the facts, 
} t would have been manifeatly unfair to have permitted evidence to 
+ given to the jury as te the actusl condition of the premises at 
¢ tine the lease was made ond at the time defendanta entered, 
also permitting evidence to be offered by the plaintiff 
Rding to show that he had made these repairs ae agread, and both 
ae were entitled, if they requests” the same, te inetrnetions te 
ad as to the law appliieable. The deforidants say that the 
Ais confusing and contradictory with reference te the ade 
; ef evidence upon this point, but they 4o not point out te 
. the specific rulings upon the evidence of whieh complaint ie 
°. Manifestly, we cannot search the record to discover error 
dl | they do not point out, 
ee the defendante also contend that the statement that 
















ates wit gatsitenoe one omnct “satoo gees oe lt at vehews 
duq a. Rebte ad oh od booage xoanes call , ha pete yaks 
mts Po AY tou bib nae f ot Hols thaoe Pants, “ate 


nape penn oe te ened ont swt, sb kena, ot hae m vote 
Saas A, nnlawege on etnk beresay sdanboe top. hee. ‘ 
notre 9 RhOk ahh wee te ovah ashen taduoaxs nen 


_ Sbmihp OF bone tare, Pipe alt tad fle Leno panel ere ca 
4 ; fF FA ABER mit 
te ape theseg houses eae vost Cy gauhave aan ats ve pete 99 4 
Sh nehe Fee eA 1 De 

io ote itt nog to oaoet ost 1e etah oad oo roittte : pabbih 


Ban 


oat poabats qiertioo nit mo fed shea war “quam tanton ou 
“so ont mite aaw gabnciod ous foltw at ‘aot? 1bavp bond ot 


-Miktate tq nds of obex wood pa ine 


i Wate Reg 1% Bs 


Lateey wy 02 “he89 1 a0 aew weet, ous moitavdie a kas be 


Rie easy 


at penmehive bots harog oved of the'lan cidant haan mood 0 even 


Pe ti Lay ay A) 


Sa toa tawtg odd, te Hots ih soo inupes ait oF os wml ont ee i 
we dome dtes ataphas'teb ont? nett ta bas ban nae nanos ay 


Oa San anne 


_, Pebtabete eit “et hers the ad of aemohtve aetteteane 
dt os fats cheer ns ma ata ges neat abpa fast we gant nee 
af anofdourtnat oF ,2nme ost Soduanper weds * nb pny se 


ant "tas tae atnat.ew top ont “pddeo dings wal ot at 
i 10 ik VO 8 


aha ods od goKere Tot oan viototnetiaes be pease 
BR YARN ths : ee Ben Ts ; 
of due inden Fon oh vens tun sfisdoa whit mec ‘wp dam £ 
it SRI GF "| eB is arate 
ad take fqaoe sto bete te sonobive ‘quis Eagy ol : 


oh ha cs Xe 
xowne orooe tb ot broom pon sawaen fonnae pt vi 
Ae ei i ie Ph Seay nu te #9 
. A vei 
Ruin See RI swe ee ake CH oe nay 








the premiees wera received in soot vragatr in o relative term; that 


a Structure whieh wan intended to be weet as a alaugiterheuse or 


" foundry might be considered te be in @ geod state of raenatr, 


Se 





when, fm the same eondition, 14 would not be senoidercd in a aon 
Dbition of geod repair for use as a dwelling house. They aleo aay 
that the lease musi be conatrued with reference te the use which 
as te be sade of the demised premises, aarely, that of am art 
| “ptuato, and they say that the physical condition of art studies 



















S well known -and weld expressed by the colloquial term “Bohemian. * 
» thererors, the stipulation wae made that the preaises were 
ered — in good repair, 1t must be construed as meaning in 
yd repair in view of the use that was to ba made of the some, 
i@iy, that of am art estudio. The defeniantea eay that in apecliye 
the particulara in whieh plaintiff claimed the prenices ought 
‘ be restored and with reference to whieh they were not reatered, 
. ntif? ascused that the premises must anawer te the desePiption 
f ‘geod revair ae thet term would be properly applicable to « fine 
t-class residence, and they point out that the plaintiff sought 
gharge the defendents vith the coat af eomplete new clumbing, 
mith Polis.ing the fleors, with replasenent ef sink, pipes, het 
* 7 heating apparatus, art glass, bent plate glass, moulding, ete. 
| All of tiie was a proper matter for the coneideration 
, the Jury. It is significant that whereas the testimony tended 
0 Bhow that the plaintiff nad expended the ews of £3342.48 in ree 
ai upon the premiura, the verdict of the jury allowed plaintiff 
only to the extent of $900, 

The defendants, in the next slace, contend that the 
ee confused and commingled certain itame as te the eendition 
he premises and sest ef repairing the same, and that proof of 
* cont of certain items was allowed in evidence when anid items 


We not chargeable to the defendants, Among such items are named 






















“tad soot 1 ovitetex. # at digs panty al ‘alias dasa npeynnn 
A 0 eaomantdyeade . a pean od we pobantnd ager Sie Stier srotourte. 4 
a op ehee to otarg. Keon # 42 oF of bompblenes ad ate ertnae 
~non 2, 7 hoxpdienoe ad fon bigow tt ymoltibacd pane att, a2 yma 
We ole weet .sevod yalifewh s me pay 0%, ghager hog, Xe modi 
Ho ldw vey a3 of aosoreiet didw bewvatenen od daum qnget ont Sag 


ote me Te huale ,eionpn, .epedniorg beelaeh ext) ko gham od of ‘ 
aMheie ete ‘te mons itave lapieycg ead teddy ws xen, beta ae 
© a Brat” wnat Labupoktog ent vd hovanrqe Sfow bas wen i kLow 
etew tie Leos ese tact Shai sal okdelughon Lod coroneteds a 
mi aateson ge bourtanpe od geum $2 ,atages hoop at as 
oie ome Ye, shes ‘o¢ oF Sar test? eeu er tH waar, me ‘te 
wrtivoen, ws tact we haghae teh 98 ,othyte #3e xe Xo. eat ea 
tiguo. aoe tees g, a homeo Thitatele dotdw al duo teelizag oat aa f 
Nerernos, Sout: oxo w, yas tobrte, oe, porene ten, the han: herpiaen sd 9 
aoliel¥oush, esht ot tewene doom, goehunse @ one tent. pocuned., Pktaty i 
salt a oF eLGnetiqgn ylzogerg od biuge med Jedd em win mt ae: 7) 
tiguoe Tratate ly wee tad tue toton wale Loe ,eopentegs ivaton 
gbabdans ts, von ste Lqmve te $805. eat At Se atnehasted odd v1 y 
My ton yregtq .take te dupnepe gon dg dw ,wsondt oat pubeattes att 
08s get hlyom HOBLS atate taad a bam ly ote audewqqe. Reh oi i) ads 
Roliatmdsieuce ef rot ad tan mgote * aow whit te om we Peis 
bobuns enoals and out neote de dant dnsettinate ae at yet ball. 
~o7 mh ae. Shes ‘So sure oid dodanqae beat Tabet oat ge Us Lek ' 
vitsulety beweL tn wh only te dotbury out yhod Laer, ont: 7. i 
, 0908, ‘Io gnotxy ost oF, yene a aah 
ene taut aww sito soa xen eng at aneganent, tA te annad 


omees ten ait seientve mie sevette ‘oar bya 


moi tests fin canoes aso wat | fl 4 





“met 

Bat 

oP ta) 
i 


= a 
Sema er Hn. 


=r 


” y 
 @hanging the toilet bowl from one Fluor to another, placing - new 
vows for the one taken out, rubbing ond polishing the floors, but 
as plaintiff pointe out, the record shows that this evidened was 
stricken out by the court and thet the attorney for vlaintiff, in 
the presence of the jury, Jieclaimed emy intention te ask for ree 
covery for those items, 

It is next centen4ted that the court erred in the giving 
ef instructions »hion departed from the theory of plaintiff's ease 
@8 averred in the declaration, Plaintiff says that eseh count of 
the Aeoloration slinged that the defendants "fsdiled and refused te 
pay for repvaire that were necessary te out such premiaes in such 
pendi tien ae they were miered upon, reasonable wear exeepted, * 
but that the court gave imatructiona to the jury voor the hypothesis 
that the defendants were obligated to make repaire euch as would 
“place said promises in the tame condition as they were placed 
by Plaintiff in a reasonable time after defendants entered upon the 
sane, reasonable wear exeepted,” and that the jury were directed 


that they might find domages for plaintiff for the same necessarily 


expended "{n and about placing the said premises in the sums eondi- 
“tion in whieh they were placed by plaintir! within a reanonable time 


see 


7 


after defendants entered upon the same, reasonable wear expepted. ” 










The aefendante say thet these instructions were a de« 
from the declaration, anid the nivtins of tham constituted 
ereible error within the rule laid down im Himred Coal Go. vy. 

an, 114 Tll. App. 668; MoCabe vy. A. T. & 8, F. fy, Go., 154 
+ App. 380, and Hedger v. Chicago City Ry, Co., 207 Ill, Apo. 26. 


The lease in question was dated May 13, 191%, and the 
ndants entered upon the premises on June 1, 1919. It was, of 
purse, necessary for the court in its instructions to construe 
a ® written contract, and this required that the rider and the 
e 8: te which it was attached should be construed together for 





























pean a snide y tity antes idiementss ae windheodund foLiod ast gatge 
aed satel? od? gudiohheg.hae yabi cen tre nedat, ome, wad. 0% ae 
naw aoapdtve akte tau? sworn drogen way ytwe, cntee Tenia 
ek ,Viitatade. os ysttetia ost tad? pte twee of8 yd ane 3 
ot A8t vee of aghiaetas yaw homtiatoe lh , yum, odd, to. ssngneng, 8 
! LAN plane os ote, ©8909 ROL 98 
ativig gis at hetie sues edt, sac? bobmesnne, Pee Ah oe) ol we om 
sane a Kedsaia ly to epee ond. Meth hots saps, Ap dite, wee was sh, 
Lo tens daae fast, ayes, Thad ede S%,. sodden feet aed. adheneien, 
ot beavten ban tothe’? wtambsrs aoe axe dansist! heoetie. wotewrntent 
Sewe 22 genie vy dose tro.e?) etanetogm emow vadt atone | mot, 
© Ged ere ae Aka ce, Som epsT herngee ome, TOs | Oe, maks & ‘ 
slunaioqed gt sen em mit: of axehlogsaed, oveag smo wd te i 
| Pheew ge dove axcdands etom ef hesoglide exon stern seh MR ‘ 
“feoale weer yoor an moletoges,omee df od oon dawng, 
ens oye boTWlAe RtoMhor tet cele ome eideacsgns waa xt Mes bg 

Petooth) atew worl o@ tad? dam. *, hatqnene, anew, otéannaan, 49 
qilcocaoper omne ale aot This ade Le, LOT gopameb, dah’? Sia a sce 
«lhwoe emure ost m2 eomdaw re Dhow odd pulps he derede: a ae 
oni? addenmacet a akiriw Uiddmate yd Ana te oxow vod, dohicat 
* Sevens 1a OL eeHO% 4 MGR HO come heresies af cmbiee tad 
oth 2 eter gaoltes vide mh) anand @octt yoo atoeheo tab oo? ie 
bedat hoa mes mot te qobwige ext Rom nettaretoed ous wert, 
eat dane bent sb awely hae afin ont) cibeithe wort: nie. ie 

or ls a oes, BOR wetthe oft PRL af 
eH baw. 8 00 
om haw ,OURe Oh Yak beta aaw Bole Rop, lh oogol eat — 

te sa th OO ahem, ae gen loony male, siege: Santon 
9 aireremon sao livorasent ats) ad dewon, OA: BORIC HERO, 
Mele at rh ka aah snes bercdaeen: whale. ban, afomrsacn, ane2 aw a 
teh endeRes Rawmernawe, ad, dkaroe: deconsee naw $i siodsn 09, 08 











“the purpose of ascertaining the intention of the parties. Meanie 

|  festry, it could not have bean the intention of the narties that 

| ‘ the defendants should be required, at the expiration of the Lease, 
| to take out the repaire which plaintifr, by the terme of the 
anes, had been require’ to put in. Such » construction of the 





Writings woul’ have been ridiculous. The instruction may not have 

haan entirely accurate, in that it faile te cever the liability 

: ebligstion ucen the defendants to repair snd restore such items 
a8 may hove become defective vetweer Tune 1, 1919, and the date 

won which plaintiff completed the agreed repairs, but in this 

| Respect the inatruction was favorable to the defendants rather tha 


aie gee = 


te tha plaintiff, They have no reason te eomplaia. 
4 The eases cited are exsily distinguishable, but te 
- atecues them would extend thie opinion unduly aed even » eanual 
i | examination Siseloses Mp the cases are not similar. 











Defendants further sentend that the remarke an4 eon 
duet of the trial Judge in the course of the trial were improper to 


‘Ouch « degree ae to constitate reversible error. The record aise 


b Gounwe@] in the case, ae where the court said: 

"You near what I eaid, 4ian't you? 

ir, King: Yer. 

The Court: How, keep quiet, 

Mr, Eingt All right. Bxception. 

The Court: Don't be se 4isputatious,* 

6 again, where the court said to counsel, "You may ask o lot of 

polish guestions,* or again, "Don't harangue the court,* er 

» “Don't talk so much,” or again, “He is going his own weary 
.""or sgain, "Don't argue with me, ** Don't waste any more 

” or again, “I submit that you will keep your seat ond keep 

et,” or agein, “If I let you start talking, you'll never finish." 


We do not find anything in the record which would 
the court in making remarks of this kind, but it must be 





SS 


od seme th tut hake wkte TS ebeaawe | 

































akoat elisa alt Lo molvandnd A? yaitoieteiine to bn s ! 

Aon wotiray ost to modsaneat edt wend wrest ton wien #2 ‘ett ve" 

,oaend one To nabies lane ott ge ,betkepen ed’ Styria! Waeb ue teh bel 

ult To meee d male od VIRGIN Ly sock Wetagot’ oild Rib oa 

ett Te setooorteso w Moy® th tee ot, Oe kupo avod BEN | oeand 

ovat om Yam toligettent off Jevotyothiu angi ovad hiwow egal! - 

Ut Mitel’ ad caves pf aL iot Of add af otetinen ekouttne 6 

waged dopa etacades hee sisaet of ataahie ten OS) tipo winnie 

ptad ond tas , Aol Uh atwh ndettod avbeso ten’ nahiesoli ieee 

- ghee ok ted yatisewr Meengs est Sete qmew’ Ved drene Mebane’ 

anid totter otnaion' kok ont wt atdovevet seromerzontienl oa¥ sheqeee 

Hhelgnen of soacer ou eved Yast” “runanacer se st 

Ob tak paddadabentttn Dy yhinan ote BOTS aeaeo ‘OAT © ii etd 

Lakes» aave baa hsbme wees vis antes Bvt ant ad 

: steiiale toe ety seane pst Qt eosetow th ‘maktacabim 

attoo baw auxeust edt sede hageneo -cedray't edaebde ted | setvady te 

of tegetamt acer Cetnt oa? Yo wetnon ele BD ‘Wete La bie waite 

MER fneons oth torte o MW hevever efus Hates of na Hoty 4 

axtos Pavegtth punk ai fst duos veld Yat mateote ese ty ‘aint is Wi 

phtew fuco ott okede as oem ad upton 

, - twoy Shab ES Bie i ‘Yoity ‘tal wage” 0 

Leki inser ta rv a 
Hudetidh RS  jwiad He Doves ER na wd 

ete e ae sgnat OY" | Lewtnes oo Baie cima “With” web bi" 

“no Monies antt -Mnantad ont wteyh co *,kanttnoup ste BtoeY 

Utaewl ie ald) gitteg ed. eh abagead * yoiaade ansey ibe ‘ ‘as ae 

eee yt eaew etme ee on ctw bite 2 ae a hhege. worm 

Te Te ee a piel 

* do kat Rowen LA wou! pgmaaied (aeade wey EOL ORLY jallga a | 

Akwow sly kite budoet sageahehnete IT se 1 on 





ental in fairness that rexarkre sf this sert sae te have bean «ta 
“tributed among course] in the esee and witnesses with impartiality. 
The court etated of a wltmess for the pluimtiff, “He cught te be 
“pent te jail," and rewarked to counsel, “It is yeur business te 
Veetns witnesses here that con amewer the questions you whan them 
$0, not te impose an awfully deft, willful wan upon us. I think 
ie must have been a wliness before because be runs aray from 
everything." 

is Hot attempting to condone thig language (for courts 


4 be resmeetiyl and Alenified), we are disvesed to hold that 





. 

the imnartiality tith whieh these cenevree were distributed pre- 

vented infury te the eause of the 4efendant. We therefore hela 

4 & the errer in thin reepeet was not reversible, 

ae Tt ie next contended thet the court erred in refusing 

t Feceive evidence offered by defendants tending te shew that dee 

fe fante had been damaged in conseguenes of plaintiff's failure te 

\ & covenant in the lease with revorence to the repair of the 

f. Defendants eay that, althougs ne claim of seteoff was filed, 

y hey had 2 right to recoup, and cite Bebooek vy. Trice, 18 Til. 420; 

gs Preble, 90 Til. 381; Keating v. Springer, 146 Ili. 482; 
Stafford, 284 111, 610,. 

It is true that recoupment may be hed by a tenant when 










in am action for rent under a plea of the general ioeue. De« 
. te here, however, did aot plead the general issue, but not 
: dity. No eases are eited holding that in an action on the case 
such a plea a defendant may sive evidence tending te show a 
of recoupment. 

: A® already snid, the record in this case, considering 
: amount involved, ls volumincus. The case was trie@ under a 
on, where (we do not doubt as defendants contend) there 


s S& misjoinder of counta, and the task of reviewing the record 



















adiwow ai ieee hdaile Boh shape ss s enieenenicils dole ial 
éadd blot at heeoqedt ona.ow ,(holilagih tas tektoenneg od, 
mong bedideatath extow senvenve. mend? de taw Atbe ett fe ddmmame 
biod au@tetedt AF... Iaehae tad, oat De aneomiod oti wrath % 
mn Pid teres dem wow teagoey ehde mby torre tas ef 
gatentes af het dees emi. pate bebsetaoe, saec gt 9k. wee” - eens sie 
cob fad} wore, oF gatbued? edembarte® yd bene iio, apaebire, pyleoey. gi 
of.emllat a Aliaielg In sesenpssasg, at beoyameh aged ad. ate 
exit Ye) uiamet oid ob gonote bet Clie enend ald 2 Smamerep, 
oll t naw Pieetes, to siake om: somettio; Hons, THe. wena 
Ls sot tons bette ons. gQreern oF MaRS A: 
;i@s fil OS ,ganmings .e amigo: (486 57 O8 .ghdos 
waste taoned « yd hat od yam emwnqu90o saat ‘pred 2a oie ‘i 
«et ,agee8 Jere amy, ost! Ye, cota. a, wahoo, teers fer Be ak he 
fan tud ,eneed Laremy ond Soodg Jon b&b .torewod ,ateM, apanhow 
onas oc pO Amides an ud tacit gakbites, hedte exe espn ott ike 
p wots of arlhord eonoblee @eks, yew trehse tod © 29 be ad 
a ee ee a a ra tained: Ms 
aulmoblucsy wane yw Bet rr fetoood wi pes 6 “al 
oe eben Det saw oRAe MT semmmbmmetow wb apenas j 
erott (Rewiaas atoms ror"heh oer Sdewh dont oh ww) wail ys t 
“bequet nut onkeotyet Xo md mae Riayat He | 












Na 
a3 


s (as undoubtedly thet of trying the cave under the pleadiags wae) 
x By 4iffiewlt. We think evbetantial Justice hee been done, 
! ot dthetaiding there may be some arror in the reeord. Defendants 
| ‘a mot dewur to the declaration, se they sight have dona. They 


| mot ask the court to require the plaintiff to eleet upon whieh 


he would proceed, a motion whieh, if made, we supvore would 
ave been granted, Ye do not think the parties should be put to 
. expanee of another trial, and in view ef the faet that, by a 
jewhat devious path, substantial Justice hee resulted, the 

nt is affirmed, 

AVFIRUED, 





























(Rel nad a0 median’ Mnkiaveadya daidd oF at hen CUR ° 
Stusbaaled toga jet? tk vert anon od yam oxst aadhantets 
oak shacd avast figte yond me, aottatntewh old Of awh tan 
Hotiy wom foots us Viidarale esd orivprr of tumoe edd mm te 
of twq od bivosa eetitng out Ambit ton oh oF whetnany goed, 

fm ys ptadd fost edt Yo wely at bar , feted waltone Yay . 


i a PRA Got Receipt, ede Rae ee t i" 8 
fav gate eh wl yatta aae eo ty eR eY cata, 
RIOD Qe leng : saa soliadtios 


DH Se ae Ng SRA RG RR Ee As ERE TA 5, I Rate Ue ae 








DR RT RS ARR a BERN) NRE HR Rae es aa AE A a Hayat hovel apo h 


wo R \ : % i rn 4, . his ij ¥ gh ¥ Pe | af oy 4 " Abilify) 
ES MRS LAR Ce LON Oe WR CM a a RE Meee SC Sa A Lr NRE Bae URES 





fy }-.¢h PU 
Be a G CAD We Sres y 
t ‘ 
) a En 
i Whi 


A ER, ER, saute 
ee iy A as wet Obes ew amReE Oi pinceveeiiania gy 9) Nae ay weit. wa, wv eis 
doth. wade bo di tee, eal Te, Ee ei RR a NR RR a ee 


‘ 


SRA) RENE IMIR NAN MI RN ORES) RN ayy B ay th: tk ‘Rosset ne Pp Ta, arenes a 


a cls Bk acca dan RR. le Rath ie See NAN RN | ip gia wae Lats oh” 
A SRR AEE RAE RES WOT | hats Tan re way barton t (i 
re an hile sta ‘wath with lbscaii 








BSS eR SME CH th 1 


Daiamndant eae RN RA i akan RES oe nie: jietooaso ‘tay 


(323 - 31455 
4 


THE FIEXFLUME CORPORATION, ) 
@ corporation, ) APPEAL PROM MUwTCT Par, 
Appellee, } 
} COURT OF GHICAGO. 
j Ve 
| JOSEPH WURT BURG, DA, S 
ie Appellant. fe “SH ol he 


Im an action on « written contract and upon trial by 


awry there was a verdict for plaintiff in the sum of $909.37, 
















“98 which the court, overruling motions for a new trisl and in 
s entered judgment. 
The statement ef cinim alleges that on or before 
mber 10, 1925, the plainticf entered inte a contract with 
th defendant te menufacture and deliver te the defendant three 
etric signs at « price ef $1013. The contract is set up 
: 2 eee yerka and specifically states that the price docs not 
nelud: electrical connection frem the sign to the building 
further states that the “price deez include securing permit ;" 
"price does include paying city inspection fee," and that 
p vate permits will not be guranteed." 
4 The statement of claim further averred that plaintifs 
tured the signe; that on or about April 9, 1923, plaintirr 
the same to the defendant; that it did ali thet it was 
juired to do under the terme of the contract; that defendant 
1 @ om said account the cum of $200; that pleimtirf was entitled 
}imterest on the balance because of unreasonable and vexatious 
“tad ; 3 that by agreement with the defendant it chemged a werd in 
al at the additional ané agreed ressonable price of $14.16, 


Pe 


| 

Pas: WN 

tae . 

f A 
} 

§ 

} 

} 








a sas toTMma HOE LABS 
. omar a 7au03 : 


“989 et Kesh 


> f+ a Be 
: Rae gs 





eta Ser “o MOIMETO ane axaavnzoa SEuROROY xOETTT 


“ Sunes Oe po Pm ae wodsiee a 0. a wien ae rabrel 


soma Me 7 ba 
















ousted =e 8o ar sopthe, mtake. 2 ypc get oat ta pa 

adiw destéace @ 82K hozeias trésatelg outs onset ot on 
semis igabasteb esd of wovilos be ommgon tunes oe. Sime! ne 
qs $as sk Seazizee edt 8 6-EL0L% te eaing 8 ta. mgs : 
gem aces asiza asld desig assase aiieolsinens, paella i 
gRlolisd eid of magia odd sert aoilseanies, Lsotutooke 
“jaimtog gaiswese obylowt Pert sotaq" ed? soni aetata,, i 
dedi daa ", 20% noltasqant yle saiyeq ehutont soo sobs” & 


vitinintg jak? bexieva rods’ abais te dasuntade ont. . 
VUteskniq ~EROL .@ Lixqs suds xo wo dndd gampha ods | wie 8 
aew 32 dora ike 2d 32 tant daembested add 09 emsa ons - 

: “dankasted fod qdootanes ad? To eaxed ond tobe ob 09, bes: et 

heisiins asw ‘witentale sess Ried ze aire ods amsqooe Atee 2 

auehiazov Date chdencecomas to savsood coneiad eas a ‘ 

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 g82.8L3 to ootug eldencast1 heorgs ban fates isbe ome 


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and that there was a total amount due of as4 with interest, 
fex which it repeatedly demanded payment, which wos refuasd. 
The defendent filed an affidavit of merite, in which 
he sdmitted the manufacture anc celivery of the signs, admitted 
thet he had peid the sum of $200, and admitted that he owed te 
ime plaintiff « met sum of $249 for twe of the signe which he 
averred he was ready and willimg te pay; that the third sign 
Was never delivered to the defandent in accordance with the 
terms and provisiens of the contract, ami that he was therefere 
absolved from payment or any liability. 
| By amendment to his affidavit of merits, the defendant 
alleged that he sigmed the agreement set out in plaintiff's 
, ent ef claim, relying on representations of the pleintifrr 
th & plaintiff hsd secured the consent of the oeners of the 















> Upon which the sign waa to be erected; eheress, the 

fi a wee that the owners, whe woe the agents ef the building, 
‘aad not consented to the erection of the sign, and on the contrary 
. “adviees the plaintiff they would net permit the erection of said 
‘sign on the buildings that defendant would not have executed 
agreement tut for these representations of the plaintiff. 

The first contention of the defendant is that pleintiff 
suec on s eritten contract alleging complete performance 
mot recover without proving such fact; that the third sign 
Bot conmected as agreed, snd thet ft was therefore the duty 
; the court, at the conclusion of all of plaintiff's evidence, 

, Girect a verdict for the defendant. Om what theery the court 
have granted the defendant's motion for a verdict in its 
when the plesdings admitted money to be due upon the con~- 
Taq » We are not imformed. “e have no dewbt it would have been 


te grumt the motion. 


tana 
7 We te 
























stsetesul dix £868 te sain sunean Ensed o saw sseds geld 
éheuwvtet anew dgide ,émemesq Sebmemed ~betaeqer: $4 deity @ 

dels ai ,edtsex Ye éhvebtiis me ROLES sushae te ont AB 

Sestiaba ,emgis eff te erecifed bax oxustostirase | 24 ei : 

es seve af ged? hedttabe bus ,00S$ Ye mes oxi bias bed of | 


en deity Bags eas te er? se% 832% to ave Jom, @ Ths z 

sale betty ear Sand Vion, 00 aniston oon Ok . 

. 8 Adlw eemeisocer mh inebesteb ef9 of bexsyhiv’ coven « 

sassatth.sore Attest, ws seucetens ote Sa 

“ weeRttdsit ome to atau lS? boven 

fanbasts§ edt .adisem to sivebivie ald 02 taeaben re 

a*tiitahaig of ine gen taomwnge oat bongld dd Halts bogett 
VUiaielg ans to emeltsseseecaex we gnigies walsta to 

odd te avteve isi 30 drscnod tt sisadée ‘bid Yikimtate 4 

_ tid dsedede gSedene0 3¢ 02 caw aute ond dolde meqw vi ere 

sBMESL tied wd To BSadgo Sud Stow ade .ezomws ond Sad iin 

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ates te metéesre edd tiexsg dem Alwew yeds V2 area Ba 

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gvitsatste ade to ametscdmesetyex ensas tox Sod dnsmsesgs 
Wifmlalg ints vt dtaiaeted ade Yo Heldmedney ‘intel 

somaretieg steLgues pulgeile tesueass meagixw 2 a ‘me ‘sat a 

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There was a conflict im the evidence as te whether 
the plaintiff represented that he had secured the consent of 
| the owners of the building to attach the signs The verdict 
ef the jury upon that issue of fact ia in favor of the pisin- 
tiff. te are not disposed to disagree with the jury. ‘%e de 
‘ot think the written contract can be construed as requiring 
“the plaintirf te obtain the consent ef the landlord. Ye think 
that would be a very umreasonable conetruction of the contrast. 
it wae clearly, in our opinion, ¢efendent’s duty to obtain this 
permicsion from the landlerd, and, since the evicence indicates 
“that pleintiff was: ready and willing to connect the sign and 


















Reve Gone so had he not been prevented by plaintiff's 

ad, it must be held that he substantially complied with 

provisions of the contrect. Defendant, not plaimtiff, was 

Gefault, and defendant cancet use his oem default as a defense. 

It is next urged by the defendant tht the court erred 

i permitting the office wamager of the plaintiff cerporation te 

ae te instructions given by him to am agent of the plain- 

in regard to securing permite for the ervetien of signe: 

evicenee perhaps should haye been excluded, but as the 

testified to, in our opinion, gave the proper sonatruction 

; the contract, which waa at amy rate for the court, we think 

Whe error, if ony, wis narmless. 

The defendant next contends that there was no conflict 

; 2 the evidence which justified submitting to the jury the question 
ff whether there hed been a full performance of the contract 

@B plaintiff's part, and for thst reason he also insists that an 

a 1 to find for the defendant should have been given. 

We agree thst the evidence upon material pointe is not 


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sevidade ae sn oomphive odd ah JobLines, Ponape 
30 dmwenes sul? boxwosn had of $nui9 bedmoaonges stilelg on 
detbuev aff sania eile doatée of smbbited odd Yo wzeende 
awinty at te sews? wt uf test te smal omens ; 
ob oF > stem} sd dete pexgendh 0d Deaogathton. ous OF - 0 Vill 
Beirigges aa beexzenes a8 ste geacsnos nodsirw nts sous 2 
inkéé o% sheoktesd eft Xe dmcamen etd mlaide of Yebds 
sfaomines sd? ty eeigeutiases sidanseatsan yrer @ od toma 
ait? ateide ef “ind atisinbasteh gneiaiqo swe sh atisap in ae a ; 
acventhat eamehive ad? conta .hun ,breLomel odd most te . 
aunt stake odd domamen of galifiw aus peace Mutts é 
a"itiisiale yd dedsovesg ased fon a hed om amok med 

sithe auiiques <Liahimesedue ed tastd. Died oc suum 38 
ace s¥tisnbatg fom .iaeiwteted .foardaen: esd te anvietveny od 
senvtoh o es Siuctsh eee att oan Sonags tasks ted haw haste | “ 
betzs ¢uwes end? fuft daskae'od alt yd bogus dxem ek aE wee 
. ee ‘abicsitigtvo Vikiniels: of2 To tegen sok ite aie waliiiereg m 
waisty odf to Snopes tic of mic Ye movtg emoldoncsomh ef ae yhieud 
satigis te weitests ad? tel «fimise guksvoee et Steges af 7 i 
dd ac tnd (bobuiexe méed send Biveds aqadred somesive | 
selienitenes ts¢e7q eds svay .Holaiqe wo mi .of holtidesd 
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sseolasod dow", ue Th, | 
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‘gaasinge edt te oomasiottes ‘List o meee’ bad orede <eapaae | 
as ded? e¢oleet cala of measor dome te? heey dteg” ! 
sovks goed eves bLvede deohas tab edd x02 bat? eS. n 
gor al sinteg intiotioningy emebete saeciatloomeet SY 9! 


28 be ah 3 det, we ~ 


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‘dict, but think uncer the undicputed evidence the 
f was entitled to recover. 


The judgment is therefore affirmed, 


oh 





Ye Be Jey and Johnston, J., coneur. 


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we 


$66 - 31498 


JON Z. BISSKE, 


Appellant, 
APPEAL FYROM SUPERIGR COUR? 
vs. 
ei: OF SOOK COUNTY, : 
om J, BARMAN, On i 
Appellee, PA Sf | Ly 


, 

te 

i ER, JUSTICE MATCHETT DELIVERED THR OPINION OF THE COURT, 
ih Taie is an appeal by the plaintiff belew from a fudge 
‘uont in-favor of the @efendant, entered upon the verdict of the 
dur, returned in response to a direction so to do by the court. 

ua The sentrolling question is whether the court erred in 


Sting thie verdict. 











The declaration averred that on December 13, 1923, deo 
nt drove hie automobile se negligently im a northerly diree- 
wpen a public highway known as the Vaukegan Read, that it | 
plaintiff while plaintiff was im the exercise of due care. 
Other counts charged newligence in failing to sound a 
or give other warning, in operating the eutomobile at an we 


a mable epeed, contrary to the statute, and in failing to sarry 


The defendant filed a ples of not guilty and a special 
A An instruction was given at the close of sisintiff'tsa evi- 
nes. The sole question is whether plaintiff wae guilty of such 
Mtr ibutory negligence as would bar a recovery. It is, of eourse, 
, that in this state a plaintiff must allege and offer 
tending to prove due care for his own safety, anc, failing 


the evidence tends to show that at the time of the 
the plaintiff was o night watchman for one Donahue, whe had 
a ) for laying water pipes, called main pipes, in Biles, 


= 
























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| act Yo gaibxov oe aogst henesae ,enehue'teh odd te cova't: ais 
meg ost xd Ob of cf moltoetl® @ of eamegnes at beauties, 
‘ ak bores sesra ot aeildede at amlioony palifotsace ot 


fos iuew akse | 
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agacih ehtedson a al cL ney kyon oe eLideootua at avorh | 
: ot gads bnoll Mage de odd as ang 2h spermatid ahiduy. . 
setae ob ke om Lorene ‘edd et aw Mibsatete ef hebw: vibrataca 
a bawow ot paliter ak sonen tigen begtess ataves todto hy irs i 
ait th #8 elidonotie oid aithterere at aaherew odio ovte to 2 
writes of nabttat fit bax  aiutnse estd ad ruatino beeen 
tuted ‘ond vd bartueen ae state wong te warkey i 
»  taRomem a hese Yeti toa te ne ty e beth ‘trpbae ted out cia 

| otwe a  Ttitahete te oanko wold da ies ty naw ine Bato i ; a % ue 
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T1tinets; that these pipes were being laid in the Yaukegan Road, and 
that it was plaintiff's duty to take cars sf the lights and parts ef 
the machines no that nobody weuld rum inte the machines or inte the 
dugout made for the pipes. 

y The excavation there was about five biecks north ef 
the place where the accident happoned and on the east side of the 
Woukecan Sond, which at that point ran nerth and south, with a 
iat curve toward the point of the exeavation. It was the duty of 
the plaintiff to look after the road light st the exeavation, witch 


ier 


7 about 260 féet long, and plaintiff had placed Lights there ebdout 





















feet apart. The excavation, om which the lights rere piseed 
} the west side of the read, wae about a foot ana « half frem the 
concrete, 

Plaintiff set the Lights and then went gout sleng the 
a) lh Road, as he says, to see hor the lighte were set, and he 

. South far enough wo that he could mee that the automobile 

. sould gee the lights in case they happened to hit the 

B, and see thet there would be danger before thew, 

Atter going far enough south for this purpsese, he 
around te go baek neorta, aid juet aa he turned to walk north 
he looked around but didn't see anything coming, so he 
ped out a little further to see if he gould see wore than one. 
gh } on the curve, and there he was hit. 

He says that ans he turned around to elise up the lights 
on the enst side of the road, for the reason that he wished 
r & view of the north-bound automebile drivers to see that 

r could: out the curve ahesd4 te the nerth and eee the lights there; 
he went to the east olde of the read te get the viewnoint of 
| vers, This point of the read was near to the residence of « 
he which was situated on the weet side of the read, Plain- 
Shout ten eteps after he turned around « ten or fifteen 


| he says - when he was hit. He liao asinine of the sutomobile 








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bu f Seeiampantimee 523%. 

ita 2 £ aia qo sala oF bots hemtied oc ha CARS RYAN OH ot Bye: 
‘galt bee bo atOrleh page havodaKnen ont pape 
peat eight ord oon Hie oereh hae ot Rew wae” oat! dap 

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entelt habe odds to ebtaeanw! 21 ho: baton! i 

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atidenedinn : ot rir pabized ’ 








a. 


“before he started to walk north until he saw Lt close to him, and 
that was all he knew. ile says there was no hern soutded and 
Bothing but the brakes attracted his attention to the automobile 
defore 4% struck him. It was « very clear might in the fali of 
the year, ond he wae freseed for all might work. . 

Walter BE. Garvych, the owner of the residence, tee 
tified that between six and sixethirty in the evening, while he 
Was having supper at his home, he heard o sudden seream and the 
gudden sound of squeaking brakes; that he imsediately ran down 
yume gay an automobile parked on Yaukegon Road, going north, and 
found the plaintiff lying in fromt of this sutcmebile; that plain 
“tire was lying on the leftehand side of the automobile, in front 
We it and in front of the wheel; that the autemobile ras on the 
net side of the road going nerth; he says that he saw at the 

















ene of the accident the chauffeur of the automobile and a man 
ar anger, and br. Teete, a neighbor, of Niles, ond the plain+ 
fs Hie reeolleetion ie that the lights om the car were very 
ir. Teets od the witness, with the help ef the owner of 
oer, put plaintiff in the rear seat of the automobile, 
dntiff wae wieble to walk and was sereaming with pain, He 
there were cinder sidewhlke on beth sides of the road. 
in a shoulder of earth on each side of the conerete about 
or feet wide, and then the cinder sidewalk, and tnen the ditch 
01 fraining. At the point where the accident happmed, Yaukegan 
Tune almost straight nerth, and that point is about four or 
" hunéred feet north of the intersection of Mblwaukee avenue 
14 Waukegan road, There were street lights aleng the road, and 
@ accident happened right in the villace of Biles. The street 
gh were far apart, possibly a block apart. He says that he 
ere the lights were cowl Lights, and that at the time he 
there was no traffic on the road. 


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bus fren yafoy bad dayodusl nd heittnd WE1Seantua i i * 


Yaort ‘nt ,elidouddua wide “to OK fo ‘Biased tet | itd ‘ie “aie “eave 
ee ap aan oiidomorme sdf tact jieady of rr) tao ‘al reais 
add ta wad od judd wan nat petrton yaldy Keod bide te onli ts al 
fest & forte ‘eft tivities ‘edd “Lo ‘tre Mun sty od fnoklodn oid 6 2 ike 
wttteiq silt biuw ‘\eetia Yd (xodinise a sadeet Nie nds, as 
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M 


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i 


The Aefendant, calle? ae a witness by the plain. rr, 
teett fied that he owned’ and operate’ o Cadillae taxicab of his 
own for the Wiversity Club, and hed operated autesmbiles cince 
1910; that on the evening of the accident he had « passenger, Dr. 
Siumerman; that ot the time of the secident the weather wae fair; 
‘that there were a few street lights on the Vaukegon Road, but he 
didn't pay much attention te that; that he was driving ehout 
“twenty-five, maybe faster, a trifle faster, thirty miles an 

hour; on the enet side ef the Vaukegan Nead, about a feot from 
‘the eige of the conerete;: that he gay the man when he was about 
eient er ten feet in front of tim; that when he sow him, he tried 
‘his best to stop, put on the brakes, but that he 4idm't blew the 
“horn er euything, thet he hed regular Cadiiise cowl Lights, wat 
ata not have the Lights burning in front; thet the lichts would 
i “thew about 300 feet; that there were no other cars in front; that 
was looking shesad all the time while he wae driving, but 414 net 













@ee this man until he was ten feet in front of bin, 
| At this point the court tel4 the plaintiff that ne 
RO case, denied a motion to withdrar a jJurer wid sentinue the 


» and indieatet that he would direet a verdict, and, after 








ad dence of the physician who attended the plaintiff and who tes- 
Arh oa te facts shoving damage, the inetruction was given. It te 
| ¥Y wonecessary tc discuss st len th the very numerous cases 
by defendant in suppert of the ruling of the trisl court. 
others, he relies on O'Reilly vy. Davis, 120 BH. Y. 3. 993, 
here a pedestrian walking om a streetear track, hearing a car in 
re it of him stepped off the track into the road, vith whieh he 
as farilier and which was much traveled by vehicles. The plaine 
f pedestrian teetified that as he was stepping off the rail he 
back and 414 net see anything, on? then stepped off and 
four or five feet, vhen he wae hit by defendant's autono- 
He alee said he could see in back of him for a distance of 




















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i oe oe 


[ee 


about 200 feet. Upon thie rather Tidievlous testimeny “hich, as 
the court pointed ont, imileated that whike PlaintiLer walked five 
feet an automobile moved 200 faet, whic, aseuming the awn wae 
Mekxing three miles an hour, would indicate the auntomebile was 
@eing 120 miles an hour, the jud:ment for plaintiff wae reversed 
amd anew trial erdered. 

Defendant alec elites and relies en Prinoe v,. Claugen- 
177 FE, ¥, 8, 168, 5 ease in whieh a plaintirr 
had futement where, agecrting te hia testimony, at about half past 
ight in the evening he had been walking south on the weet side- 
Walk of » certein etreet until he came to another street, at which 
point he eterped down inte the roaédway ant continued iu the same 
near the curb ef the westerly sidewalk; that when he stepped down 
fate the roadway he leoked norts and south and cewld see a distanee 
of about two or three bleeks ond thereafter he did wet look ony 
‘more, but when half way te the next street was struck frem behind 














| by en automobile owned by the defendant, and the court reversed the 
r é ent, holding that plaintiff wae guilty of negligence as a 
Matter of law, | 

Virgilio v. Walker, 93 Atl, 815; and Barus v. Weat, 
aM BR, YW, 806, are alec cited, the one, however, being easily 

! shable, ond the other, a8 wa read it, directly sontrary 
; to the contention of the defendant, since, in the opinion of the 
° rt, it ie there stated that defendant's counsal argued that 
Tiane on « country highway myst look te the rear at stated 
le to see if vehicles were coming; but the esurt said, "We 
we aware of no such rule of law," 

Defendant alee cites Hedy 


oo 584; Helen vy. Hew Sarper Hotel Co., 196 111, App. 94; 


gileago Ry, Co., 222 Ill, App. 625; Sober been vy 0 lease 
226 Thi. ADP. 661; ; Loe. af wiht CAMS Eis Be» 216 Til. App. 











7 ral : 



























en ee ee ns on dios bie cette eats teabaood ae ) 
Webtabe te & ila bow nt anes 8 O92 as of. a ree wa cit. yu! , 
fase Lion tuode de \Wemltead add of paibroope sree fmm , 
soble: eee eat no “3uoe Behitae mead ba oat aakoovs eas. Ly ov 
dn beter ts (teanxte ‘tent one ‘of emmy aut, oh¢ag soarte mietiag © ‘ne : 


bey he 


i @imoe ot ak eval aos howe Ystwhaor odd atat mwas Deqeate od if 

2 av oh bean te ok dade. Pry piLewah be tivodaow na to dw eat : 

| tabla 2. oon riven. Dax stawes bare ito podost ent arheor ot 
eee wood Sees ‘pis eit aud tan ues: i axeodd oan 19 ow - 

if batted mort! Moura saw Joorte ena ode of yaw ‘ihe ‘hedin ted 


' eAd Hawtever. davies odd. bas faa bao tes ould vd boawo eiivesotve ae 
|  * 8 poadg bigot % We lws enw  Middatata tase amidsos Pri a“ 
‘ ss 44 rt ip os ae ig yee pe: 

sun te te 


ES sah 3 me : dehy } , 
»dae¥ ax xarzatl bie sem fad, Be sada wy obtiaay ioe 
i} 14. bbe apa gia ae 
ilens gnked .tevewor 09 od shette on ke oe 208 oF a. 
° y . OF ey 


7 





| ' rand cow eitoosty wh hoot ‘oe as » Tesi edd. haw * 





ee ae kee 
ost ‘to nokateo auld eh sorte sfaadanten ecld to. sole ze? ave amt 
sy he eat Saat 
‘gait Bownte Leumwiso a'fanbae'tos tans bovase ‘exede of #) vot 

tL On Massy Si an 

hetate ‘te aos ot OF took diem waif hal vrtawes ® no amet 


oe vbtee’ denon oil tis palace ote ‘peta liow ‘th ne a ot ale avin ed 
res 4 f ve $194 
* wok to out soba ext te Stew 


He Ds aay 4 eae A Re 
eb @ ¥ Said heed Povywersyen Hy ne om 


e 
s) 
i} 
| 
, 
a 











9: a. ai Col ust - ret pel ny: fs * By is we ‘ Ws ry i 
| aadyk ,x0d eat" er i 


Ruxane Hat fs ae mein, sth we 


tai ie 


ah) aaa ORR | RE 
» j 


Ce dP eee ee Pd, Oa 








128; these latter all being cases in whieh this court reversed with 
| . finding of fact under supposed authority under a statute which 
has since been held mot to grant such power, 

a 

| 


e There le no deubt Eamk of fhe rule ef Law apoiieable 
he , which has been etated so often that it cught net to be 





| psessxy to cite authority, nawely, if there is any evidence from 
‘wai eh a jury acting reasonably ean find for the plaintiff, an ime 
traction to return a verdict for the defendant should not be 


Defendant does net argue that he was not negligent, 









ni in view of all the facts and clreumatances indicating that the 
L: intiff, at the time he received his injury, wae in the line of 

‘ duty, that he lecked back only a fow moments before he was 

ick, and the admitted speed at whieh the satomebile was being 

| » the question of whether or not pisintiff was in the exer- 

, of due osre, wan clearly « matter for the jury. 

The court erred in inetructing fer the defendant. Fer 
is error, the judguent le reversed and the cause remanded for 

no ther trial. 

REVERSED ABN REMANTBD, 


el » &. J., and Johnston, J,, concur. 


ane beerover Sion birt” oli it aonbb pated Tie cotdait' of 
‘ia tate siytase 8 tonne hebriwiad gna whl ries 


ea) 
\ 


We Oe ves 
ge FHV RNY Os Rt 


veaeg tigen tou kaw ont tard oman re eed’ dein bietet © at) es 
edt fod qubdooioal esonedsauette hab bial CU a tah , 
pacer! al abe oy whit ct sich! okt gh" eb 


St ERA: cr eA eer fart to rer: te ssa 


Na 


PS BS ORR RUNE yg SORIA EEE ed iat att 


ch ea xh A: as a oh 8. 
ae he chao hina wine ab uM 
‘ damoniall aL aL Ree ee 9 thet ot ee sl # dian 
Rakes Oya apt Lahsiow at ose of ween 
* ee nk ata wr ‘wim 
ii oder gettke Savant ) 
bls ool a ro 
Yeh oh it ate sistas esrencias 
oft Nae al a ak als 1h 


. HO } 





lac Rees Fp 

















OB. werres wrcmerr verve om OPINION OF TRE cour, 


This appeal is by the defendant fram a dvégment in the 
of $2550, entered upon the verdict of a jury, motions for s 
: er trisl ond in orreet having been overruled. 
Plaintiff sued fer Commiesions slleged te be due to 
B on eecount of the sale by defendant te Hicholas V. Deligiannis 
Sad Antonie V. Deligiannis, on March 10, 1924, of = parcel of 
t, at the southwest corner of Halated amd Congress ctreets 
f@ Considerstion ef $85,000, | 
| Pleintiff's statement of Claim alleged that on or about 
Mat 14, 1923, defendant gave te plaintiff a description of the 
Stated that he desiree to Sell the property, and requested 
mtiff te find a buyer therefor. The plaintirr submittes the 
y to the Deligiannis brothers, and that as a result of 
*fferts of plaintiff, the property wae seld to them. 
The affidavit of merite demies that defendant employed 
iff or requested him to secure a purchaser for the 
end denies that the preperty was sold as a result of 
itt s efforts. 
The defendant contends that the court erred in 
tions given to the Jurys that the plaintirr was not 
i to recover under the evicenee amd that the verdict 


. =) 


Seats 
aR 





$1000 aeg10 8a oR ASA I 
,ORs9THD 10 ; 
ey Z er goa ee a Oe 
i ey h 8 KC : 
G9 S4 a et 7. ' as a ee 





aoa aut 4 HOLETIe ‘et cmonavELsd rab “gore 


ae & “2 ae 
ei Meek ES Page ae 
A 


eas si treat o movt tusbaste® sit x et Sosase atet ee: 






gd ub eg od boystts csstdttanes cok bone 2Ut ts ee 
“SY eafesto lt of ianbeieted Me toe ot Amann 


bas setetat: ‘ne Heures sestatsove a —_ 
* 000, 88% 26 mottexeptston 4 

suods ze so Goes bogetin mtato. ‘jo datemed ed & gyyttiensss 2 Speake 
tara’ 6é évag daaineten Veser aii 
asdues yes bab .ervegesg ad? Iise oF seriees od gate beakee Vb 
ea sagd edie vidéniaic a¢f .toleted? toy 3 pat? ot stand 
te siuaes “@ es sasiz bas eet otumetptied at rg - ot 
smeeé at bios sae qotaes ea  ssviiarate < 25 sist e 

sixes te dtvsbiits idl a 


shunt 









— aisosts ‘seezsoe 





sig 9 ‘moiiqisessh a vikew 











boyotaae, suabsiaTed sasté netash a 
ait x0 reasisusg = exseer OF mid sodennpes a isaiaig 


ne tiunor a an Aton ane virenemt M$ 


The record indientee that the jury was instructed erally 
by the court and discleses no epecifie objection by defendant at 
the time the instructions were given. A general exception seems 
te have been taken to the instructions «a givem, but thie is net 
eufficient to preserve the slleged errer for review in thie courte 
Ve therefore will not reverse for that reason, although we are 
satisfied from an ¢xemination of the inetruetions that there wee 
error in one or two respects. 

. The controlling queation in the reeord, aa we view it, 
is whether the verdict is sgeinset the clear prependsrance of the 
@vidence. The cvidence in plaintiff's behalf tends to show that 
on August 15, 1925, he called upon the defendant end aoked him if 
he was the owner of the property in questions thet defemeant said 
he was ome of the owners; that the property had belonged to his 
er. Whe upon her desth left it to himeslf and other heirs; 

t defendant asked plaintirt whether he had ony purch ser in 
nie ané plaintiff said he had ene fer whose business the 
Property Was suitebles; that defendant eaid, "'Te@li,s it seems to 
ne that @ deal ought te be mace here, the broker ought te be able 
te maxe a deal here,’ and then he asked, ‘What do you think you 

on get fer the property.’ ‘Yell,’ I ssid, *2 rather not akewer 
Wet question.’ ke said, ‘Why mot.’ f said, tit might prove 











mg if I om uneble to meet the price that you say T ought 
| @ble to get. I'd rather have you set the price on it.* 

" he said, "Well, we have hed wome talk about that, and I don't 
ink we will sell that property for less thon #85,000." TI anid, 
don't know whether I cam get that much, 
would net pay on that basiz.’* 


Plaintiff saya thet he then wemt to see Deligionnis 
@nd om the next day reperted te Plaintiff on offer of 


that apparently 


000 for the propertys that defendant teld him that other 











wh hit aetowesamt aan ‘uel mde toate - aod kin pronon ae Oe 
ga Sashes tes Ut so leeatde ekiiogge ai aveo Louth al re: 

















sous i AN Ml 
" Fi 


opi (ne ifs 


PE ents at wolret tat cate neialike maid ovr 
‘pun ow dywordLa qmonnes, tad? sez ea teves, test ht i Ye ox ‘ ? 
sor myer Snake iiapeaaguasii ont, bs no Ld ankman @ the nent nokta: 
Di... Cond 4b ao ak 20% 


‘ ey ¢ { 
ne bel nn ee 





ooh voly oF ae, oPtnees od? Mh. BOL BONE, BF 
one 20 epmassbnog9 ane Le, odd senkags oy » 
seat woslg of aboot tieded atrunseiagg at come wobtys phys. 06? , 
vk mkt bees hits dies desta od, ade 4 en. no bis ttl 4 
_ptee snpnie® sede pnotinowy & mi yisogons eat ft 2 ee sf Bg! 
oak ot oop ted boat Dd. a tial “hexe Pan mel 30 9m, } 
perstort wollte baa Thomanhel oF 94. ‘ook a8 shag ties Poe: ' | 
mk concsovut mn waek ond sede be ahsanaee, 
| eit enombeard onasty 10% teas ’ 
% ot, amen: hig Akg, sPhae saeinge’ atest . | ; 
etd ad of sayeo elon, wt owe ebe Per sigue, £05) 
0% std? 2% ant: reeset Beds eee e 
towsan fon cottos E* ebt, re SEA pou? 
even aad ah! dey, x. es ron 
sigue 3 yee Key, fed ode. ott dope, 08 whee, ae 
Yoh me, opiate O98 Rah hy ae taattt " 
étxob, 2 pam, fag? swede, ding moe bad es 
phiee T ».000.804 mast? anok wt ven saat 4 - 


elinoxeigs gadd edoum, sal? 2 
| “ ho 






FARMS 








































-3- 


parties were interested in the property} that he better put it 
im writing, which he did, but a few days later the offer was 
declined. Plaintiff then suggested to defendant that the 
prospective purchasers might roise their offer one or two 
thousand doliers, but defendant said he would not consider thate 
Plaintiff again reported toe defendant in Setober and 
reported that the prospective purchaser “might offer $70,000," 
but would mot make the offer unless there was sone prospect of 
it being accepted. Defendant told plaintiff to cet the offer 
ond put it in writing and he would take it up right away with 
the other people. Om Getober 25, 1923, plaintiff wrote defendant, 
meking an offer of $70,000, which wasithe final offer as he aaid 
of the purchaser. The letter also stated thit $3,000 of the pur- 
chase price would be paid in cash, and a mortgage given back for 
the balance of the purchase price. Plaintiff, in the letter, 
which is in evidenes, strongly urged that defendant accept the 
offer which he said would not stand open. 
Thereafter, defendant informed plaintiff, as plaintiff 
‘says, “umlese I could get an offer of 935,000, it wag useless to 
ask the other people who were interested with him te make a deal.” 
i Movember lst, plaintiff, with Nicholes Deligiannis, sew 
fendant at his office amd plaintiff saye that he asked them if 
had met before; that they said “Nog* that he then told 











e endamt Deligiennis wes the purty to whom he hod been trying 
7 0 #¢11 the property, and that he had agreed to accept the 
position to pay $85,000 for ity that defendont asked how much 
; ee » amd Deligiannis said he could pay $5,000 ensh down, $5,000 
‘ : oix months, $5,000 in twelve months, ond a mortgage for the 

. » Pleintiff eays thet he then sugyested that defendant 


kK his own attorney for advice what to de, and defendant agreed 


7 


$i toq xaddod on sums ¢ twWroqoug edt mt Sotoexsdmt etew wots xing 
eaw a<etto adé togad ayob wat s gud 45ho mt soldw nares 
exe dass dr boe koh od bedaognes todd Yikes’ Bi 






v owe 10 ono torte sheds beket Jdgim exenodoceg an J o 
etads tohtawon jon biuow sf Siew SHabasted dud eotalleb banas | 
| ban cedodo0 mi tmabseteb of bedzeqex atoge Yteatals Seiad 

4006, 098 tet te ddigim Tomadouuig evitcoqeaxg ods sudd bedno 9" 

to feoqaeng see exw exedd evotar <eTte odd oan fem. biwow aug 

torte eg fos ef tikémbelg Bios. Jombae teow, . sbotgosos gated i 

ake qyows fdyls qu 4h oaleg bleow oot Sam amkotow mk’ oh swat 

stagheotod atouw Vikdatelg yeIeL .£8 sedevoO mo” setqoog wiles! 
bine of us aeite Laat? midianw dodo’ (OOO.ONG % torts a 

tg oft To G0O.6% dod bodate oale ‘teste oat tae. ‘ont 





ing 















LNA 


ot easfoay aay 92 4000.86 ro Yate tia doy Weide dad 
*, Lands & estate of min cow bedsetetak ovew esty wet vedio 
was yetemokgitol ankoxoit wetw viddndaly del 29 

2 molt dustue od Vand vysh Thivmtaty bus vette at mye 
Bkog moxie sit aasis MER” bho uate nM” meticgpiccs 
gatyst aed Shel of dost of ydcsg ont wow etanstghtod tf 
ont gqseoe of seerya boat ‘ea saat bas eeerogeny ou 9 


BPG) pe oh 


dete won hole taboo soils a 0 9005268 we oe ao. 


we 


with his attorne 
te meke an appointment/as goon as possible; that he saw defendant 


the mext day at the office of cefendant's attorney; that the 
attorney asked what the deal was to bes that plaintiry HALA, 
"The property is selling fer 85,006," and defendant said, 
"No, no, I want $85,000 Be’ to us, my people will not stand 
the expense of the abstract, the stamps on the deed, or the 
' Commiesion.* 

Plaintiff says that he teld the attorney that this 
would be an unusual proceeding, to whieh the attorney replied 
that it wea all a matter of agreement. After further conver- 
sation, plaintiff says he spoke to Mr. «. Deligiannis on the 
telephone and told him that defendant now wanted the cost of 
the abstract and the comaission added te it, which vould make 
about $87,900, 

On November 5th, thereafter, plaintiff tele éefendant 
that he had seen eligisnnia, who had of fered to add $600 to the 
$85,000, rather than have the deal fails that Nicholas Deligiannis 
had left the city, and the deal would have to avait his return. 
‘Plaintif’ says that about the middle of December, and after 
Several interviews, defendant told him that the price had been 
Faisec to $87,000. 

Upom cress-examination, it was d-velope: that plaintirr 
hee several conversations with Deligionnia prior te to August 13, 
Aves, ane thet he hod discussed the property here involved as 
wena a8 others, and he admits that the first and only discussion 
: te brokerage commission was in November and im the office 









of Jerreti, the attorney for the defendant, and that defendant 
1e listed the property with him. 

Antonio Deligiannis testifies that he first started 
tions with defendant with regard te the purchase of the 


a tty in 19213 that he sent plaintiff over to see defendant 


” 

éusiiis toh wou al date tetdtnect ak Snel an RUORRMOOEA te Ma © 
at Sault pyemcedds alinabastes te ookTte odd to nab dxom me 
eblog LURMRiadg tats gad at ane Lino %. asbs dads jedeo variety 
shtoa dmehaoted hem 4000.88) 502 ymkifos at, yi xegong. emt 
 bttade dom Likw ohqoog wm vat as gem 000.888 sanw t oom el 
ndoone y book edt am eqaeds. ond etowatedo, ong, to-eanogxe od 
eidt. facid yomsedes odd. pled od dome oye Tikdelall |. 4 
fuilqus qomotia emt dokdw oF. egniberoorg Leweun 
eaevnoo satan redty ¢itommoya 20. zed son, atine “ 

| 0 bt a phonetyh fed »° «tl of elega od ayes Wtimkela ampds 



















| 2a Sa90 edi Sette won Janduored Jody md nies, sna onongs, 
| slam hinew fisldx «th ad bedde softnaimmes ode bnew 


OH}, 


Inndaskes of0s srymtate, «0d taoaeas + mi, poMenies bose 
edd 02 000% dda at aoxete head odw yndamatgi tod mess abo : 
atanaigifed aslestol® dads glint faob ons ayatl mals seldom 9 OO0e 
oMUIet ait dhewe od eved ALeow Lash ould Papal nats 
tette ban ,tedmest toe sihoia edd guoda dnd w | 

mood hes sabre sci toad mts bay samdantod gawey 








Vetennetian’ teds 2eqedov.d eow 2h, sina 


‘ 


sth Jovgu. of wohag ebraskgiled déiw sxolisenevites 
26 bevdowns oted wsectre, walt, Demaamnnk hah a 










_ bedzate text? out tut annrteesd 
Bak oa: We 


#8 asa say AE AR eae sty ten eee aie i ie’ 
‘distal eve mis IH70 » saat tase of dadt (i508 ab 


SE ee Ve SOM ROY I PER ge ‘ ~~ Si . we 


«Se 


to buy thie property, giving hime price of $65,000; that plain- 
tiff came back onc told him he could not buy it for $65,000, and 
that Antonio told him to try ond find another property. The 
witness ssid that after the deal was closed he heard plaintiff 
say to his brother that he (plaintiff) worked fer the deal and 
"you ought to give a few hundred dellars, two hundred deliara, 
because you closed the deal directly with Mr. *aters." 

Hicholss Deligiannis testifies that befere suguot 15, 
1923, he asked plaintiff to try to buy this piece of property 
and told him thet they had tried te buy it in 19213 thet he told 
Plaintiff to offer defendent $65,000; that plaintiff reported 
te him that the offer hod been refused and thot an offer of 
$70,000 wae then made, which was also refuseds that plaintiff 
eftervwards said thst he could not do anything with defendent and 
would drop ity; that plaintiff afterwards showed him other property 
which he did not buy, but afterwards he Deligiannis closed the ¢ eal 
with defendant for the property in question; that plaintiff afters 
Wards asked him if he hed closed the deal, and he said “Yeo,” and 
that plaintiff said, ""Well, he said, ‘Don't you think I am entitled 
te a couple of hundred doliors for my services; I went a couple 
Of times to see Mr. Waters.’ I said, "You didn't close the deal, 
80 I don't see why I pay you a couple ef hundred dollare for it,’ 
And he said, ‘Well, if you feel that way, it ds all right.’" This 
witness &leo says that negotiations for the purchase of this 
‘Property was opened with defendant by Deligiannis brethers in 1921. 
¥ The defendent testified that he first met antonio 


‘Deligiannts in 1921, when he ealled in response te a letter 


¥ 
’ 







aie he received from the brothers and discussed this property 
nith émtonios that in December, 1923, he next saw ntonmiqn at the 


of his attormey, He says that when pisintiff called on 


; 
&s 
iy 


















| sitet told 1600.00 Dolsoing a ald galviS «v@roqora@ ated wt ot 
hen ,O00,8R8 cok 22 vod fom blues of mie) PLos ime stoad ati: 

ont  «Yemeqong. sadfens. oak bee Yre 69 mks bhed chaoteen: ta 

| Vksatadg oeoed od benele wow. Loob ods xOste tadt bhoovnmonmth 
| bas Lomb eft 10d dodxow (RRAtmtetg) ed dads coddend elated. gil 
| eotaliod bocimudt owt ,eteldok bexbaumt wet o, ovky oo: siteae woe 
| Yexoda’ an Ai kw ELiver ts isob odd bagels’ Ps jms 
| bk Feines OvOCRs sods wOREeort ahanadyriot adketele 
| utunqesa Ro seeing add yxd of ost of Titemtadg owtew od yOe } 


Bod at nals pBRE mb aE dvs bode Ihe ysis: toad intel bit 
| bagwoge: Vebdabaly dads (000,036 smabiotes rots od TTEswhal 
Yo 4ette ms said bas Domrtes ased Bat et te odd Got te ‘ * 
| Tissntale tedd gdsawhos onin eaw sodsio .obam gets wow OOO 
| ‘hi Sumkeotel Aitw gaukseqmn ob don oLwee ef dod? bine) eitniel 
Yeager, terse mit hownde shtorwer he Vksakelg daly beni ‘ 
Lae ® walt bevels ekaxokylink of absawtedhe ded .yd fox dsb a 
erode Wktakely tad? smektueyy: mh MP eqemg asd: met stebavten ia » a1 | 
bre “g9et" bisa ok bas .Leeh odd beeede bra wah Ta mbt boital! ye 
‘potdhine aa. i ankdd way o'med! y bine of ySLoer?* codon URRGeANe te 
 ehgeag @ dnor 3 tasolvies we we? santLod doxboml’ te: elgiood’ vi 
efeo ol? ocede #'nbkb wok? yhton T teexose’ awison ed memnen 
teak sek atelhed bet basd To oLyueo @ soy Rag. t ‘Yale one 3 aos 4 
ahd? “*, duke Lhe ad dh a Yow dad? Look wey th  Stowt (knwo oa 
alts Yo soaslewy od 102 enaisoisagon ante aysu obe we a 
{90L Bt exadgord gtanatgllod YC Imainoted dete dorege naw iyseege 
otmeses som deukt od dest boktisaod snennnsn ean « 
medted s oF estogeat ah belles om teadw (SRO. ka 
elreceny athd bonamects one eucddetd extr mee? panrrarerey 
ait ta prnnens enn ewes. ast 1608 promot a tate alnaem 


Hi 
nh 


aa. 





=6- 


August 13, 1925, he told him thet the property was owned by an 
estates that it woa for sale, if they could get their price, but 
thet plaintiff would have to make the preposition to him; that 
he anid that he (defendant) said, “ald right. You put the 
proposition up in writing, and I will submit it to the other 
heirs;" that nothing was ssid about the payment of any commiasion; 
that plaintiff afterwards submitted an offer of $65,000, which 
Gefendant refused to submit to the heirs; thet he afterwards was 
at his attorney's office, and thet his attorney then told them what 
Was wanted; that they would consider $85,000; that nething wae 
mentioned about commission, but it was stated, “ve wanted $85,000 
Ret; that didn't include the commission, bringing down the title, 
and the re:venue stamps" that plaintiff seid that that was not the 
gemeral practice of real estate meng thit sellers were supposed to 
pay the commission, but that defendant they wanted $45,000 nets 
thet claintiff afterwards got in communication by telephone and 
Wanted to know if they would open up the deal sgsim, and defendant 
told him that the deal ss absolutely closeds that they were 
through. The witness says that he did mot st omy time promise te 
pay the plaintiff any commission. 

‘We chink a preponderance of the evidemee indicates 
that there was no contract of employment. The fuct that 
Megotiations for the purchase of this property hed been opened 
Detween the parties two yeors befores that the whole transaction 
ang conduct of the plaintiff is consistent with the theory that 
he was acting en the agent for the pre esed purchasers instead 
of the vendorses thet defendant was only a part owner of the 
‘Property, ond disclosed that fact to the plaintiff stating at 






Saiferent times thet the propositions must be submitted to his 





ot aakmorq sale vane oa fom bib ed todd ogre enondhy ‘eth. 4 








eG | is iain bs ee ae a a 
plan Ob aaa nan ghana, athbedh ah aie ate sestungs 

Sed geokiq “keds tog akvoo yd Rh cohen wet maw th todd qetodu 
Jatt qukd e¢ golsbmegeng edd oclan of ovad bimew Thee rr. 

ods jug woY «tight Lhe" abkae (tombaatos) laahiieeal bina 

_ eeato wit oo bf Bimcwo Lhbw t bam ggaddiow mk qr sohsheoge 
{Nokeaiamos Yas Io Ianmeg of? fade bine caw guddiom gems Menmhe 
_ sto tile, 4800.83%.%0 sotto ne boddtedre abunexathe Reentesa tag 
sew aiteniedte ed doit gended otf) of thewoe ee doawtew Ineh te 
Sate eiasls Blod werd Yomande ned gael dma ook rhe w gomrotte ake 
gum pabssor sacid gO GO) teglenoe OLuar yott tent. eaten i 
$00,886 dadaws 2°" .hodnda aaw 2h dod auohontames goede | “6 
eWLthe aft ovo grignixnd .soterinaes veld ohetons | Oni stat a 
ett fom saw toud tad? Uhow Vikimtaty dott “ququade SuAOTERE o 
eo foneuguy exe QtéiLve tlt tao odetew Lax Sy en 
999m GOO. M64 Gedemw godt taebae tab ‘Wansld: Sad: evo kee Remawa 
bus snaigetes wl nekscolamonns ab dog ebtawred te qrtomtade | 
srebaches au ethege Leak ode qu soge Siwew yosd) Sh woth 
oo wet yet Sade phenets cletuloede sow Leodi walt Poste mabet | 



























tO Lat ieemas (oun rekeatate ast 
Resaotenl eomesive axis ‘hime woe haegeng @ aide ® ) 
ets 2oek ef? wtaearolysm Yo @oottnoe, om st alti M8 
banaye need hod iyitegeng ald? Re wemeleneq od tot asbh oe, — 
MO LTeuaeect oLocive wt geld gouolod amacg awe nokta esd a 
suns, yromls ose City saetahamon eh Wisndekg salt 0; toutes 
hantank gtonesionmg, beso erg om? 10% sanpe pelt) pay BIER | 7 
odd Yo WHO due 6 LENO. Bat Papbap Reb Pecd gercahebm: aki 
te gehiote Vibsakelg eds, 98; fon geal? bosofeaks ‘Pata 


ait od bedstadwe od gat imei onttan ne 


,; ig 
aN) 


ote 


@o-owners; that after the deal. was closed plaimtiff made a claim 
for commiseiona agsinst the purch sere - all tend te correberate 
the testimony of defendant to the effect that pleatntiff was not 
employed to act either fer defendant or the other owners of the 
property. Indeed, it may well be doubted whether the evidence 
of the plaintiff is sufficient te show prime facie the empley- 
ment of the plaintiff. A preponderance of the evidemee indicates 
that plaintiff wes not employed by the defendant, and without « 
eontract of employment, he ie mot entitled te recover. (Silcex 
ve Andrews, 150 Ill. App» 276) 

For the r ezsons indicated the judgment is reversed 
ané the cause remanded for another trial. 

REVERSED AMD REMANDED, 


MeSurely, ?. Js, and Johnaton, J., conoure 





















nielo @ ohem Vibiatele bowokey apw Land odd cotta sod patemvrons 
aiaxre@oxtes 69 beet Lia + ewparciomg edt Senkege emebeat =" 
fee gow Vittaiety dows Soerhe wit of iaadmoted Yo yombeuon a 
edd Yo wxckwoe <neldo on? To daabarteb <6Y anmdhe doa’ wt is 
we geet eld Shoo wbeg wede GP omotot we e) Vensmditg’ wai 
soduebbal vorwrtve elf Yo spnoxebmogerg A «TUNmteLe emt ke 
we dwertste bas 42andee tod ont wh Seyelems tem asw Tetembate iy 
“ROORLY) «wveser oF SeLshine dou of ont ,trem~plgme te! dowel ¢ 
 becuwreN Gt sammgbel of? bedavting ehenee 2 ade Ot si 
We I Sa: IEEE ke SEN ks 

UI ARE ore ORR Rue ode au Au ues Rie ey ay i 
Saw, etait ead artic Stents saa aguante We peda 
PR RORY, Shtbas vee A Res RAE RRR Ae anne qari ae Ta RGR 


(ie Cleon se Clr 


} 0 ; shin st at hay Me ait OER hei A inet Oe 

Thay ; SAA EEIMD Rend SBME SiR Rites AC ea Sh) aa ep it Bey By ao 

wees Weenies srr. ee Aaa al ba ial aaa i tam era a 

BARES Hate Lae: Ral Ap, See Ra legit ana Namal amie 
i P Oa ie , 


ah 





462 - 31613 


LILLIAN GRACE MeDONELL, } 
Appellant, ASTRAL FROM CIRCUIT comT, 


Fe COOK COUNTY. 

JAMES HARTNETT, : ee , = 
Appellee. my os eZ _ 

MR. Justice MATCHRTT DELIVERED THR OPINION OF THE COURT. 


Thie appesl is from an order entered By the Uireuit 
en Deeomber 5, 1924, overruling the demurrer ef i.illisn 
HeDenell to the answer of James Hartnets, respondent, 






















te & petition fer s writ ef assistance. 
The petitioner elected to stand by her demurrer, and 
order therefore dicemigsed her petition. 
The respondent, James Aortnett, eliheugh Kimself on 
practicing at thia bar Kes net appeared in support ef 
b ercer appealed from, end the appeal must therefere be decided’ 
thout the bencfit of his views as to the low applicable to the 
The record diseloses a bill filed to foreclese a trust 
on duly 29, 1922. Te this bill, domes Hartnett, the maker 
he trust dee:, the Central irust Co. of ‘llineis, as trustes, 
@ Lillian Grace Mciionell, who wae alleged te have some interest 
te the lien of the trust deed, were made defendants. 
Res Hexwmett and Lillian Grace Me-onell anewered, she «dmitting 
@ allegations of the bill of complaint and alleging that on 
ne 20, 1915, che recovered im the Circuit Court ef Cook County 
. ageiuet the defendant Hartnett for $5,295 damages and 
ceste; that execution thereon was returned by the sheriff 
ed, and that the judgment was im full ferce and effect 





| y, 

eET8ROD MEO’ ear ot ea ee “ee resi 
a Ces 
| oA tS # J BN oN -soitoass 
| Mh BREA, SRD Mh ul tay y wi MTORR. ORE a 


<ABO0 SRT tO ROLNIGO ART CREE remota sore 


“i sheen ef : aa 
- $hwort0 vats “ef beresus rebro me ‘wor? at Losqus page A ca 
as eee he 


maktiRt Ye exceed ol? pabivxzeve DORE 2 tado00d » ne 
sdeebregsss. atentet eons Ye rowan ol ef Lienotert 
seomnde tues te aisy a et goitiseq 4 

tea .tertmmsS sed od funte 63 ‘petoote “somes ideq ott ore 
.mehsiseq ted Secelnntd sieleted? iste | 

ga Usewis dasediie .tiestroH comat yimenmoqest AT 

Yo Sxouque at dorasque don sad sid abd staan’ 
dimbiens od euebessid dar faswes: aid ban qmott deLsecge tek. 


aes o2 eidooitiga wot ss of ee awely aid Yo $Ttoand oad § 

















tonsd « ocokosiet of BELL? Liid s asuolosth szpoet oat | 
cote ed3 .idandcel somal .ilid aid? of .S8eL «85 lat me 
xeedaved as ,aiemhill to sev Samxt Leréaed odé 2008 sonst 
fesxstni smoe swat of dogelia saw ase _Stouotest eoox® mabitet 
seiuaineled ehax oxew ahosk demas ed Yo well oe, ot | 
gutisione ast -fetowars Llenaine pean mekiled all 2 


mg ted? yatgetio haa Inbaigmoe Yo £Lt¢. wes te on 





=Ze 


and & velid lien upon the real estate deseribed in the bill. 

Phe cause eas put st iesue and referred to a master 
who reported in favor of the complainant finding the facts with 
reference to the judgment of Jume 20, 1914, 25 alleged by 
Tdlliem Grace Melonell. 

im December 1, 1922, all the parties being represented 
by their seliciters, the court found that it had jurisdiction and 
‘@rdered the master's report approved end further specif ically 

- foune that Lillian Grace Hevenell hed «a velid lien upon the real 
_ @atete for the emount ef her judgment. The decree entere: in 


Me 
| its éetaile conforms to the act spproved June 11, 1917, amending 






rtain sectione of the act approved Barch 22, 1872, in ferce 
ri, 1872, ae amended by subsequent acte with reference te 
_ sale ef real estate uncer judgeents and deerees, directec the 
"moter te execute the decree, and that immediately after the 
 expirction ef fifteen months after the date of certificate of 
Anfebtedness te be issued, the premises should be sold by the 
ae in chancery, or by hie successor in office, wless the 
lsc been prior to that time redeemed. 

On December 5, 1922, the master presented a report 












the issuing of a certifieste ef iniebtedness to the 

zamt in accordance with the statute and decres, the 

of a duplicate of said certificate im the office of the 
® ef Cook “ounty, and om the esme day ean order wan entered 
“Pesiting notice to ali the selicitors of the filing of the 

pert and approving and confirming the some. 

Om April 29, 1924, the mater filed his report of sale 
distribution, dated April 25, 1924, reciting thet on December 
. 1922, the premises had been duly redeemed by lillian Grace 
ede ae a judgment ereditor in accordamese with the provisions 





sffkd ad? mk SedizeeeS edadee Ine edd moqu meli biisv & ul 

gedean “ 62 Settetex Sane eeni an Seq anu euwan oat sie. 
‘débw agest off? gaint saanisiqaes eds te seve? at aaael 

ar — ee gSl@l Os cai te Jinan dist ‘ea? o3 ‘eometotet 

3 effemoiell soa¥S Deegan 
‘bedeeceaqges patted selditeq odd ifs ,SSeL af. qedmoact ideas all 

bas metsothedaut Ged dt gad? bauot 2en0o ond .etedichies «keds yd 





giles) tiosqa <edéast bas hevetaq® #<ocst a 'tedoem od? Setends 
feet e€i seqs meli &ilev « bail Ligmote€ ogat® matifii sad? same’ 
ak oovedae saxsed aaT ~daemyiul ted te sawene sd? cet sfate , 
gutsoome «Tick eli saat bevowggs foe sof3 of samokmeo | ettaseb oft 
comet mi <ST6L »8S Sorell geverges tea ede Te enmisooe mthads 
of somaietes ative stone smexgeadse yd behaews se .8V8E .f ve 
ofS Sefcocis .gootesk ban esaomybsi ashaw sdaéze Leet to rel: 
83 tedte yYiadaloaml Jed tue ,ewtsod ems. eae0ens Os 
te vteeithoves Yo efah ed? teFts acitaed mesd2ht Ye 
 e6¢ Gd bhes od Biwede asaimesg of? a beweat of 62 es 
"wat? aes goo8Tie mi wenssoone afc ed ro .ersemame ub 
shomeebeu amis jedi of toleq aosd bed oni 
$teqet « bedaiisevg esdead ods .L8OE 48 tedmesT 20” 
eit @3 asombesdosai-te etsattaerse a Ye gitkimea’ off 3 
ed? youssed bas Staseds of3 Aide somebtooen Rt triettelgs 2 
| adlé Ye ouktts eds at edeotiisses Shao te etsothgub ote Galt 
Borsise So¥ Sehae HS {sb Hats SEs aU Rua yytawE? desd To toSnbsal 
exis te galllY ond Yo exmsishien ons £58 es outdo ° 
sine %o exeqot abd eld aedos odd «REL OE Lhags ao 
rodeeost so dad? galt tess ePORL 42S Liaeh ‘setah ymotse 
enen® mot liht Xe emote ire n206 ted sonia a ‘ 





















-3e 


ef the atatute; that the sheriff ef Cook “eunty en Sccember 3, 
2925, issued to her a certifieste of redemption whieh vac duly 
fecorded on Lecember 4, 1925; that the moater had duly advertised 
the premises to be sold ‘gril 24, 1924, a= per certificate of 
Publication attached; that Lillian Grace Me-onell bid $13,000 
therefor «nd the master sold te her the said premises. 

| The master further reported the ciztrivution of the 
“oun realizeé from said sale in accordames with the terms of the 
“@eeree showing « valance due on secount of the principal of the 
“gertifiente of $179.47. 

: Om April 29, 1924, leave wae given the defendants te 


4 pet 4 



















objections to the report within five days. The record 

te disclese, hesever, thet «ny sojectione were filed, and 

M order was entered on Kay 7, 1924, thet “mo couse to the con- 

, heaving been shown,” it vas ordered that the repert of the 

ser be approevec, ratified and confirmed im ali respectse 

On Mey 165, 1924, Hartnett wae notified that om the next 
: She petition of Lillian Grace Belonell fer 2 «rit ef assistance 
ald be filed, and on May 16th, an affidavit and comand were filed 
. that on May $, 1924, ome GlenA, Lloyd had exhibited to 

- ett the master's deed to lillian Greece MeDenell, dated April 
1924, covering the preperty cescribed im the demand, and that 
a signed by Lilliem Grace McDonell, and reciting the decree 
becember 1, 1922, the sale of the premises to Lillian Grace 
Pomel) April 24, 1924, the iasue of the master's deed te her, 

ted April 24, 1924, and that demand was made for imediate 

ef the premises. 

-Om the came Gay, Lillian Grace Helonell filed her 
petition, in which she set up the proceedings heretofore 


Smc prayed that a writ of assistance might issue directed 


URAL otters tye tedaete 





26 tedmescG me Ysuwe) See? Yo Thixede edg dadt yotudets ate 1 
| yind cov dalde molsamones Je eteotits199 9 redo? bowant 4284 
| bog hotevoe isk bad seteam odd dost Gi00L, od sadmposd io bebtess 
| te edeghiheses oq 26 2950L gO Litas bfen, od o2 seadmang-ad 
G09,649 Biv ifsmeck coast meliill jad3 phedeeséa motisah tds 
Lo) see: st@eteong dies ad? rad ef alos totess. add das soTeTe 
|  @88. 3a gakéudinieis ef Sedsaqet sedéuet.eegece @8F apo) 
| eif Ye sued off diiy venabinsee et elea bhan mex? bextgeonam 
eS Be fagioniag sii Yo Jeseose ne aah. secaliaeocniacionuel anes 
93 giustgetes sd2.qevig. aancemns hSChe a ae 
| A Stese7 s8T seb weil aids iv <teges Shs Otow: > ll 8 
5 : bag hadi exer avoltesiée. yas. os stevenad <taofeonh of 
| neo Sdi OF cause OB Sn8s 4260 41 Yh no Soret ex medeE, 
- gtté Be Steget oGs sacs Seaecte gew. dh “eemgae mead waives Sine 
_ sadesqacs Jie ai sengdines bin, RAbhsad g oovO Reg Se,.2E a 

inom oS¢ 0 Jad Sesiiden sew sdentuel -50L 08h WOE Boy o 
sonndeiees. te-d2se 9 16). csens% K.nen® mehiihl Yo,melssseg @ 
hall? orew hemes one Jivasivie ae 24304 yak me bas. obehsl em 
O32 2ev idisias bed oyedd sAgoi® spe 980k <0 ewe, tad? 9 
Ling.asteb _iianaisk sont) askiétt.oa, enbvolgetaee ode a8 =e 

dials bag. becmek odd at bevtroseb ysregeng esd gabteven, ofl 
‘conse a8? gpliiees bus otinwetet. anges. seALELE. v6 ware,” 
. Meee melihis 92 Leena st vs del aine ahs OE. 































etal dommes zat chem. 20 9.tenge Jedd Des pie cit 088 £ te - : 


SESS, Rte RE RR a 


roel 


«ge 
te the sheriff of Cook County, commanding him thst he, without 
delays preceed to put her in possession of the oremisen. 

Gn Hay 20, 1924, James Hartnett, by his attorney, 
filed & demurrer toe this petition, snd after warious dilatery 
preceedings, inclucing = petition fer a change of venue, which 
was granted, an order was entered on October 4, 1924, overruling 
‘the demurrer and directing Hartnett te answer the petition within 
five days. 

Bartmett then answered setting up that st the time of 
‘the execution of the note and trust deed, he was owner of the 
| sea described and resided upen the same and had an ¢atate of 

eteads thet he was at thet time the head of « fomiiy, residing 

with the same upon the premices, and thereby was a houscheléer 
‘entities to a homestead estate, which «as exempted from enale fer 

















or other claim by foree of the statutes of Illincis emacted 

. the legislature pureusnt te the requirements of the constitution 
1 Illinois; that in the trust deed he waived only the benefit of 

' exemption and homestead in favrer of the hoider ef such 

ty and of no other person, «nd that petitioner wes not the 
for whese benefit such waiver was made, and thet at thet 
she was not a judgment creditor ef respomdient Hertnett; that 

j if Lillien Grace MeYonell is a judgment ercditer of the respondent, 
‘he decame such long after the execution of the trust deed, and 
the law then and mow in forec, she had uo right im the 

| Superior to respondent's homestead estate and exemption, 
Bd was mot entitled te a writ of assistance to dispossess 

| t and his family. | 

Harhnett, as respondent, further answered that the act 
‘1917, amending the statute then in effect relating to judgments, 


8 and excoutions, if given the construction for which the 














Pe ee ee a ee 
. jaeelmeig M8 Yo Robeseewsg et “cord diy 62 a veede 

" wectodin ald yo. 3feudtsl demat poet Of Yul nd OOO 
qreiskiS aveFiey <efta bas etOEDiteg etad od t9vmmed @ tefl 
folde ,oimsv 1 Symes s tet molStieq 2 gatSutont 4 qed Seses 
uktiovenve jSS@E ,2 t2des00 wo beze308 ‘Gee Getce Bd , Bedale 







wttsiw seftiveq od3 aware of SdendveR gut¥octis bas Yer 


‘ seamen h ae AE ype 





esis Yo xemwe aaw od .de08 tems ous ote: ode te Mete 
%e efsése ne bad bea saeaglteendons aheguenasceee Dodiaoesh osesae 





‘Sintite deed s acs Ydexed? oon 29a lnterg off weg aia 
oot Weee Be nedqsoae ce? Aolity .ofesee beodeomedt & 6d. sania 
bodeane ekowhift ‘te avdageds ont to sewer ‘ed sitefe zegve < 

nokie¢kaencs eid Yo edetnetiinpet ous 62 tetewe<y omistebgel od 
to ditsaed od? Yims bevicw od heek faire? ofS at Soxks (tonasss 9 
"Hous Ye “sete? sii¢ Yo aoval kf seoteomed bd ne tiquexs 
és 360 EW Ges he hid Sas Wk ee ele Se a 
$ds $0 HadS bao ,obin vie sevice dete fate becegsive 
geld (edoadcal dadasmqes Yo r9dise28 Suemgoet s We aw € 
one ‘pats bed TesBbore ornnore ta 2 ae 1 one 













ee » de 


se iquons dase statue Resd ssa ‘eViawiabudee oe 


eee 


*Ssusuaowadh oF ttdebies BS a 2 


tes afd teat perewens zedsuyt etetaogses | te, @eséiek 
<i ty spdely ach yet Pa tee ee 
edmonpeert os waktaLor ‘ootte at ands sButade ‘edd guthwoms 4% 
: * . 2 fee 4 Saale. 2a gaog SLR, a 
SE ae dolse s0¥ mbhduiedemee cat mit rig tt am » bas we 


-5- 

petitioner contended, was wholly unconstitutional amd veid because 
the act so enforced was in deragction of the veated rights ef 
petitioner, of which the Genersi ssembly and the judicial depurt- 
ment of the state could not deprive petitioner er interfere there~ 
with, so such right of homestesd estete and exemption was protected 
by the particular provisions ef the bill ef rights of the Illinois 
‘Constitution and of the fourteenth amendment to the federal 

- @onstitution. 

ze The answer of the respormient eleo averred that the 


Riteees Ageembly enactec the homestead and exemptions statute 














ureuent to previsions of the constitution of Tilinois, and that 
petitioner had not brought herself within the terms of auch 
“ whereby the homestead estate could be taken or acuuired 
, Petitioner, because she Hed fudlec te preceed in the manner 
bed by the statute. 
The amswer of the respondent referred te the files 
n records in the cxuse, which he gsnid would shew that toe 
Petitioner had failed to take all steps required by the statute 
| ” had failed te comply with ite requirements. That the 
ai ea gteps or re uirements are, the enewer did not state, 
ut Glleged that the purported sale, upon which the petitioner 
22 od, was mli amé veid “because of defects appearing therein.” 
‘ Further the anawer of respomdent Hartnett denied the 
dsdiction of the court to enforce the claim or demand of the 

° 

From the order sustaining the demurrer of the petitioner, 
Lidem Grace McDonell, to that answer, this appeal is prosecuted. 
he abeence of an 2poearance or brief by the respondent appellee, 
nia Sourt ie left wholly without information, as we have alresdy 


M4, of the rules of Ia uyon which he Felies, and the court very 




















samcest Siov ans isaoiisikiemessy ylieae sae 2detue tesa: x8RO : 
te efielx hedacy est te seddcgersh mi mew. beozotes em dee dl 
-tasyeh fete ttet odd bne ~idevess LesemsD ond dokde te qysemots 20 
-sved? suslzedui vo comeisiseg evingeb som Sivoo stase ade egal 
betessexg egw anliquezs bae atséss Sas@anmed Yo: fgie dose ee geod 

| abombiSt elt Yo etdghz te L124 dg to paoletveny selvosizsg, 
 iatebe? edi of 2geebseas dissea@ine: eds to fee aed BES 

_.. @82 Sad Sstvave oaisdeegeogess offs Be-seweun ead = 
added aseliouaxs ine bastsemon odd dedoeny ydmeeh 

datz bas ,etenkiil te metsucteanes ef? te samlevore: 8 | . 

ewe ‘e.amxed ff atdsiw Yieaned sdquord den bat temols tit 
neRieyor XG seis? od Rimes odetes Rooteomad ond qdenede ods 
‘sonmam sdf mb dowsexg @f vofke? Sua sda oamsasd . somoliides 
Z 3 _ aetutase edt yd 
eka edd ed seueites, sentengers, oad te sewers ot 
| eng feds worts Bier tus ad dotite. + Pamne: ods ak, sh 
siutate of3 yd Aoximper counts. ie wast 2 ottet 3 and 08 
ext? ssa! .edmseottwpex s€¢ Gee ylqueo ef bel 
eiase nt A a 


-6- 
much regrets the necessity of deciding thie case without each 
assistance. 

Indeed, the suggestion of the sctitioner and apsellant 
that the real purpese ef the opsocition te the writ ef assistance 
‘i amd is to enable an iasclvent iswyer is enjoy the petitioner's 
‘property, rent free, as long us possible, umder all the cireun- 
‘stenees which appear in this record, seems quite plevcible. The 
na inite amcwer of the respondent «ould seem to indicate that 














theery of his opposition is thet th= waiver of the right of 
ad in the trust deed was mice for the benefit ef the helider 
the trust deec slome and mot for the benefit of one who there- 
ter might become a judgment ereditor. If that is the theory 
Which respondemt relies, it is Mly necessary to peint out 
in « long line of decizcions by the highest court of this 
it Bas been held that such a @efense is unsveiling. (Smith 


137 Ill. 68, Herdman vs Cooper, 158 111. 583; Schroeder 


140 ill. 155; Gidfielé v. Evlert, 148 lil. 6173 Butler 


205 fll. 6053 Sutherland vy. Leng, 273 ilis 309.) 
All these cases im substance hold that a judgment ereiter 


eemin; frome prier sale dees not simply remeve an encumbrance 
7 ' the way of his execution, but that om the contrary a title 

at am execution sale upon redemption by a junior judgeent 
® relates back te the judgment from whieh the « edemption ig 
by and is paresmount te amy title acquired subsequent te the be- 
ef the Lien of that judgment; thet by failing te redecg 

; he sale uncer the decree of fereGlosure within the time 

@ by law, the mortgagor loses all right to redeem, and that 

e ‘fails te make such redemption, hia rights are gone. 

‘We are mot aware of any statute of the state or 

: wm of the courts changing this rules and if such exist, 


| 


| 














mmuso cite os eta cobra votdauned eo gua on eso ene 9m a 
gede stentbak of apes Siver sestanqent ‘oatt . qewsae 88 a? ! 
va dityane iia to swtsir cbs toavah mmbsnowmen eit ae seeds ? 
uppfodt off ko Bktened sat x0? cmannundtinintel inngii ad ea 
cageeedia abt ah dott ML 9 TOSRI0RF pace a mceoes sAgha 
“ge anteq ob snannnan iam, 8! sain snes a 
cwabae ‘totam duatgie odd gt amaiolee? 26 90% & 
sous sea. Met rie 
eH 988, 0A LL FEL i 

Lets sped + 
7 eP.4 aft 20> 








sem) -guifievasye ai some ted © 











“(2 @OE #fih 67s ‘ 

















“gonetpéus si 90use lhe Lia 

Pores ese saomabeh & isa! afed fa¥ eee. Es > ae Ea 

tom ooh omnes me ktq # ox (gals 
seapicaeen® SF svesss tT Uaals # T: eed ee 
ekais & YSSTSBO? adi a2 jodtt au sok2uoexe aid 20% ua -—”* 


azwambut, xolauy © xa mo biqanesos nous eke no hawooxe | w te 
et moksumaoe + ead, dokty sen? seep ods et oad ed sean tor : 
aod eit of sanugoudea Detiepes. akete we o3 saomenea 
spobet of gutiict vd dais jsauewiet dost o ehaall ot tes 
gesoed 28e “go tums hae ols 


Ee 
eke ods ale srapsthite en ee = 
s eBoy S55, a atstght 28, | 
eusvAa 
™, etese i PEAY, 2e.2ts! ane ee et ides: ou ae ede 
sae 


_ gtetxoe dove aie b coach 





TS ee ht Ss fe ak 







we deem it the duty of this lonyer defendant te point out 
the sume to the court, In the absence of any assistance 
r i the respondent, this court will not embark upon a 

' of discovery. 

Be: The order is reversed and the cause remanded 
r i @irections to the trial court to sustain the demurrer — 
petitioner te the anewer. 


WITH DIRECTIONS. 


SS) 


ur dy, '2 des and Johmeton, J., concure 





s+ Aare ee 


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igen hie 3. BOREL 






























A. WHETKAR, 
Appellant, 


v8. 


ME X-RAY COMPANY, a Corporation, 
nd ACME INTERNATIONAL X-RAY COMPANY, p 


| APPSAL FROM CIRCUIT couRT 
OF GOGK COURTY. 


rooration, 
Appellees, 


BR, JUSTICE JOMNSTOW VELIVERED THE OPINION OF THE COURT, 


This is an action brought by Hiram A. Whitman, the 

pe intiff, against the dome Away Company, a corporation, and the 
a me International X-Ray Company, a corporation, the defendants, te 
re $1500 with interest at five per cent. ae salary alleged to 
e due to the plaintiff from the defendants for the last six months 
if hits employment by the defendants under a written contract, 
- Ting a perled of two years. 

The ease wae tried belore « court and « jury. The 
returned a verdict against the plaintisf and the court entered 
ent on the verdict. From the Judgment the plaintiff has 
uted the present appeal. 

The contract was entered into oriuinally between the 
tiff and the defendant, the Aeme X-Ray Company. The parties 
: | control of that sompany subsequently organized the Aeme Interna} 
X-Ray Company, which assumed all of the obligations and lia- 
ities of the Acme X-Ray Company. 

One of the principal grounds on which the plaintirr 
for a reversal is that the verdict is manifestly againet the 
ef the evidence, 

The bill of exceptions does net contain a motion for a 
w trial; and counsel for the defendants invoke the rule thet if 
e bina of exceptions does not contain a motion for a new trial, 
@ question ef the sufficiency of the evidence cannot be reviewed. 


aM 



















ca ii stn iS sett 


notterogred a° YHA aHOS ee 
“AYHAMHOO TARR qyubTraitan A 


ga tae wth : 


TAUGO TRVORIO MORE SARI, , 
-YTMNOD MOND TO 





Sy a Co saases bP a 
Tatoo MRE FO Bode ar CURR. worengot nortant - 


ode , tart hd? .A marth yd deigaoud ‘peiten, rus os ‘stat 


ans Bite ,Molimxovtes « ‘Tasqned Wahiad ener ody ) tontee ams, 
ef ,eonebos teh ond medtareques a ‘ens qusd atak Laxoltarere tak 
od hegetle etalon sa .f00o weg evdt fo seotedak dthw o08.£¢ 
ait mow ate dwak gee tot adawhas'ted oft wot Wrdembady wala on 
 Seardans nese lew a tobue atuabse teh oft yd. ‘utpon¢0 Laan cy 
-8ta9y owt te botres * 
eat .ytet & bas Pewee » ero'ted betxs naw seu od? 
bersdme ture ost baw ttheaiele oat Santune tothe a bemuton 1 
tad Viitaielg edt taomghnt eat sort tokiner oat me Fi 
— g Laan taney ond fei 

ox? mawted ylienkvive sai bexvdtan sew foordsaos oct . 
aeldwadg off ,yiteqecd cahink Hou ot ans hre Tob ous bgp 


we kt has useltegiide ear to Lia desyaee Mo Lei seed as 
Tiltutele ont dokdw wo sbavoty hixgkeditng tite ti aad hae ont 

od? Sontuge YLtao'tionm et goticoy ot Saud WE fentover islents 
Souebive edd "to | 
| a cot aoliom » olatnee son aeob ubadtenens: to. kine oat 
‘th fudt oer oat axoval afnehag'teh. ong wok fewruren one 
oho won « uot astiom ao wias nop sou gooh meaner sie 0 


PIE ITN ent RANT, RED WER BOLO (ce nti ey ead | 





Greenwell v. Hess, 295 Tl]. 430, 462; Whitely v. Rule, 230 111. App. 
M18, 220; Briggs v. Page, 222 Il]. App. 223, 224, 226. 

. We have exazined the evidence, however, and we are of 
the opinion that the verdict of the jury is not manifestly against 
the weight of the evidence. “he services which the plaintiff agreed 
te perform by the terus of the contract related to taking charge 
or the fimeancial operations and matters under the control of the 
board of directors of the company; te assisting the company in ite 
business negotiations, leases and purchases; te aiding the company 
in Taising capital fer conducting and expanding the business; te 
advising and gonsulting with the General Manager and Production 
Mansger, and te rererting te the board of directora ae needs might 


require "in regard to the projects and enterprises of the company; * 















‘and te devising ways and means of “meeting same and all extraordinary 
- akings.* It ie contended by counsel fer the plaintiff thet 
he only defense presented by the defendants on the evidence is that 
' P Plaintiff refused to sell ateck, We think that thie contention 
r Mot correct. In our view of the evidence there ia aaple evi- 
, om behalt of the defendants, independently of the question 
| the sale of stock, to suvport the verdict of the Jury. On «6 con- 
r ion of all of the evidence we do net feel inclined te disturb 
he verdict of the jury. According to the familiar rule, it is the 
province of the jury to determine the credibility of the 
ses, ond the probabliity or improbability of their testimony; 
@ a court of reviewwill not interfere with the verdict unless it 
® manifestly againat the weight of the evidence. Hale Blevator Co. 
q 201 Till, 131, 146, 

Counsel for the plaintiff further contend that the 
um t should be reversed because ef prejudicial remarks made by 
\e trial judge. | 
By Thie objection has not been preserved for review for 








of Ca) hain oe 

‘ae ine 
iy ‘ 
a) Pea 
We Hy 





















A . SLE O88 Joke vy vie LW s8Ob , 08d J LIT BOT yp v, Ld 
LOSS js88 ,E0% seh .O0T RSS one geen tae fOeR 
Sa ers io her waveweal ,sonehive end beonleaaxe sven fe ): 
ftenlage ¢ltte'tines fon al yxut esd. Xe dodiaew alt tds a ast 
hootge Ytitatala ead dodtw doolvren od! .eoathive oi? ty _ 
aytany yutied ot hatalet saatdaoo outs ‘te ‘gues eet ed mw ry , 
eae to Lottuon edt t8bay axattan heey anaitarene ietousait ong 





ath ak youqueo ent yaktalars od sysnquce og ‘te A I ‘te 
Chagwes aff? gathia of jaessdoxeg ban, sosasd, ,amobiatioyean aaea 
» fF poagaleud of? guihoegxa doe gaitoubnas.ce’t Latiqna, me | 
noktoubon’ doe, sepened Latoms 9 ad¢ ot he pak Leeson hen mms, ‘ 
otigise ehoee ea atetogt ls Yo bieed ott of -gattrocetvot tat orege: , 
Pzymaqee eae to soatvqiadss dae edsotony oxlt of beagom me? 
Yoslhy oateee dis boa gees yalttoen® to asasm das ayer: eatadweds 06 2 
gant, Yhitetele off vot Losnvee yd bobactmos) oh dio) teae : ase 
tact af onoehive ect mo, atuehaeted anit (ye betes med a 
mottant age ahd tact Maks 6% yaoode Liem et) Bremer tet: Wake eke Se 
otve @fgua af ated? eocodlye edt to weby cao ak . shoaetood 
noktasup act ‘te ylsowhasqebal .eteebaeteb add, te Sielinddinis 
809.8. 90.0 .~%eh oat Te. toibyoy. on) adtoqare ef) loose to ohae ont 
duwHkh oF bonifoad £96% doa eb.aw pemOdive pad. to, tha) Yo: a8 
oi 02 22 olen wdLhawt ont of pathtoaods..«gtwloadt Yo fotbwr 4 
pede le “ee hlidinate edt calmteted ad yank ese te soabvong 
VUitomiteod «heat Ro ytblidedoraml, cs, ye ilidetong, aad hate 0. We 
$2 eeetow. dotorew oat -oltbe, ous txotal ton. Lliwepiver te tare ae 


590 totave Lh fee. .eenedlte ent) to dulgteweade /tembsgao ht 


| ADL eg ABE, the 2Lo% 
08d dads. baed mee, Nabirote: Vibsmdalqoads rot Lesimuad Ca ial 
ef ohom aitseees Lake thuatesa to ‘ennaood heuxeveried & 


Kee RROD SNR a ou bedi bide hy bw sande wie 


the reason that the recerd does not show that exceptions were taken 
by the defendant to the remarke of the court. Publie Service uv 

Za Leatherbee, 511 111. S05, 804. @e have considered the objec- 
tion, however, and we think that the remearke would not justify us 
im reversing the judguent. he remarks are as follows: 

"The Court: I read it [the contracé] twe or three times, I am 
‘paowing that a eale of stock was like a sale of everything else. 
He was to furnish the braine to finance this concern, whether it 
was by stock, or by some other way; that was up to him. How, lat 
us see what the efforts were.” Counsel for the plaintiff maintains 
that the contract makes no reference to the sale of stock as one of 
the duties of the plaintiff; that “had it been the intention of the 
“parties to the contract that one of the duties of plaintiff was to 
geli stock of the company, certainly the contract would have so 
stated in ¢lear an4 tMaxtiguous germe;" that the remarke of the 
court "plainly informed the jury that the court construed the eon- 
tract to require plaintiff ae one of his obligations under the cone 
“tract to sell stock of the new company." 
" It is true that the contract does not specifically 
“provide that the plaintiff should s@11 stock as one of his duties. 
oh, think, however, that on a fair, reasonable interpretation of the 







tract one of the duties of the plaintiff was the sale of stock. 
- Counsel for the plaintiff further contend that the 
“@ourt committed reversible error in giving the following instruction 
the request of the defendants: 


"The jury are further instructed as a matter of law, that 
the wdertaking of the plaintiff in hie contract with the de- 
fendant, Aeme X-Ray Company, is an entire undertaking, that is 
to say that the plaintiff is required te have performed his 

_ entire contract up to the date of the termination thereof, and 
_  4f you find he has ao performed them he is entitled te the ene 
_ tire consideration for the last six (6) months thereof, that 
_ is to say, Fifteen Huntred Dollars ($1800), but if you find 
_ from the evidence that during the last six (6) months of the 
term of the plaintiff's contract he failed or refused to fully 





Zi i ; \ p 
vas Cy fi , ‘ih held r boli Shas, a aah te of “4 - ‘ j i. 
er ee oe eee! OES ES em Lote ae mee OMe Perey ey Ry en pe eee eT SUN e mle Cae te ae Are URS any Ve nae eer} TT Ae PE AA DUN ON 





















 eaaled eto eno kiewnne. dats were tend snot hnoeet edd aes 
202 solvie® pikvyt avo ode to antenna ott ‘be: — Sect : 
Oe h EQ ‘oat hewebienieo evad oW 808 ¢G08 s EET ILS ope nad , 
ver eritaat ‘fon biwew attest adh bast inkl we bate orenians ost 
‘ GeweL fet ae 6tn witeiaet delit » Fotos inh ona attexovet n 
ath oamaltavede hat Tpeerme wa] oe bao sieved 
pale gubityseve to oie « Gilt wav deat Te eine a tot 3 i ” 
HL sextdoue jeteones HAY ooanatt oF eatord odd dw dat ‘ee enw . 
tei wok see of qo eae fasts Pent todie wimpe et te Boots ye ” 
entesaiadt’ Yr bite Le wae tot Leaayed “Jeter arte tte edt tate 
to oad we Sooke To efad eut of odtexe ter on woslae doartaoe ost 
ont “to notenet al sy need fh ban” fests 7M boule ke ote te worn r 
oP eer wibsain te: te! tyes uid ‘te one suet toartdindn eth ra 
ow evsis bro “Yoo tiaee eaty Ee eosoD: _aecusigninn’ eit Ye atone 
way Ne wibneser ws Fes *yamTey avon bTaaimy bile as toon tat 
neo “8H? HeUTtaneo Poo wat Yodtt etn, ond ‘Boats setutinte™: ra : 
othe ony tain taolinglico ald lw eae as YibYolely ethhpwr oF ts. 4 
) 0M speargaicy: won 9ad Ye dete Stow wh to one 
Utaaet ivece fon geoh SeeTsiVe OHI Tadd ours BE OT nek ay nae 
OR ‘abut ke OnG Ke Mooke Flew bkwoe Tivnhate weit” ob a 
wit ‘Se nebiatexgtoded ekissouane tint as ao cant \xevewor / : waits 
Moose to afew ede maneett £9 inte by OMT Yo we Lewd ent Xo Vine’ 
ertd geek bueducs anceewy We Mtelg one ate Keningaty visto Dh ve 
Kotiontett gaiwelLot ond gabvky wt tects »Liletovet: ‘ba fo taunt 
RE: Ae \ pegnenhw ted we Ye 8 coupon wal 
«eke ae ‘ee, reeten @ ae bedoreden! todvavtt ote eee atm = 


~9h ect? cthw toarinow olhd al pr gern tl a Ri. af Aid dt fins hed cf Re 
ak tedd ,quiiadrohay waliin om aa sY"titea L oop, Ginn hee. 
at Mebacunet et 








ald homso'tyeg evad Ot ba 


has Rootes aeitenioad so E etaee Ehe 
ome oft of balélioe of of most beast g oe M4 bf od ax kt erat 
bar ral ,teotsdd addsom (8) xin prs 


bolt woe th ded . (00RLO) wae llog berth null tteoe tht : 
edd to atdnom (o) xe aay oat pabunh teat fc amon 


TALE tt SEENON 38, Pe we 2 aX, pation. 6: OMENS, BM 


perform the duties required of him under hie contract, that 
then the plaintiff is not entitied to reeover anything even 
though it may eppear from the evidence that he performed a 

pertion of the duties, and your finding shall be for the de~ 


fendante, * 
Ae the instruction is met ingorperated in the bill of 


@xceptions, the plaintiff is net entitled te have the error ase 
signed on the instruction reviewed on appeal. (The People v. 
Belson, 320 111. 270, 280, 261; Greenwell v. Hesa, 298 Til. 489, 


462, 463). However, we do not think that the instruetion is 


erroneous. 
The grounds of the objection of counsel for the . 


Plaintiff to the instruction are stated in their brief as fol- 
lows: 

“Here the court instruets the jury that if the plaintiff 
failed or refused to fully perform the duties required of hin 
under his contract, then the plaintiff is net entitled to ree 
Gover anything, even theugh it may appear from the evidenee 
that he performed a portion of the dutiee, and your findings 
shall be for the defendants. Here the court in substance and 
effect instructs the fury to find the lesues for the defeniante 
if he failed te sell stock," 


We think that the plaintiff was obligated to perform 
‘@1l of the duties required of him wider the contract. 
; In our view, the instruction does not direct the jury 
fn Substance and effect to find the issues fer the defendants if 


ae 











believe that the plaintiff failed to sell steck. We are of 
opinion that the sale of stock wae one of the duties of the 
tiff contemplated by the contraet, but the instruction does 
ot specifically refer to that question, nor is there anything in 
. instruction from which reaconably it could be inferred that 
finding of the jury should be dependent om that cuestion 


: one. The instruction merely refers generally te the duties 
aired of the plaintiff under the contract. 
Per the reasons stated the judgment of the court is 


AFFIRMED, 
ily, P. J., amd Matehett, J,, soneur. 






















neve gakctyne vevacst of beLtitaa ton ah Th. : 
a bawre'tveg of sede egeebive end wert't tneqqe Cant r f 
meh et tot sd Liede galont? swey baw, aeleeh end ze 


fast ,¢oexdooo eis veobaw wht to hertiepst peiene auld erro 


te tei silt ak hetatoqrovat Jom at no tboustent oe. oh 


ata xorte esis oved at hos itae sou et visdatelg aus ie asa 
! yap’ ll Ay 


pa ) “sdaoaas an bowalves aol dourtdent Py a0 





| . 003 ated ee 220i .¥ Lommpend 18, obs ore ut oa ” 
: er makaouetant signe tant ainsi? tom oo ow xDveroH 
| 


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: ~£0' as ‘wind tho? mk bogase om | aotgowsdant + alt 0 Pit 
' Wee: RAVAN Bi be Fh on mh) Rs " fey prs ® & a 


SR Cried Hae 
Titatete outs th ast? wat ons eg ee tue ‘edt ae m i. 
.) wha te Gatiopes aebtuh off emotueg yifet of bella . 
meet OF Beli ivae ten ab Yrdeute Ler od nods ,toatimos wit shar ( 
i porehtive oft west sesqge yom ob sawots weve te" ‘ 
| apaihast ewoy dus ,aeliwh ond toe welttog a =a, 
haw eonatedus ak dueoe edd etek .dnahae bed nar ae 
efuabnn ved ond Mints sennnd est thank" yet seit ‘stowxteuh 


| 
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web gwd Sogaqgtidd ame petinabite edt date Aahdd oh. . , 
steattece edt woh ale Ye dot hepet cabin pal bial k 
Ktwh edd Soerth ton arch aottewetand odd, wede wo ai ie 
d admcbee' tem avd cot eenend oct det? ot toette one a 
| Ye ett oW stisote Liew of kethet Whi atate ext eid ovedsed ys ! 
| wae “to alto eit to one sow teats Le phew eat fads ; | : a : 
aeoh autiyordemt od? dof ,seandaoe salt yh bedetgaataoe Wiles ai 
(us gablt gon windd ob tom pdelteoup ¢add od co'ten Ci teod! ‘ 
fadt borwint of bineo of Yidauenmen tly dete sco ae 
meiteawp dat wo aneherend ad ipesacurhaioiel amt 


 webinh ats oo videreney axates ‘yamween. as : ee 
Eee savior theming cated sn Ray pi 
} a: Lista asta! i) Becca tach ete: ‘gnotien? edt xgt ond dime | 


i ah. RAG Ye ivy) 





DEY “nt si ee been winner 





ise aloe ad oA incre ae TAL ire ti 


$81 - 31513 


INES I, TINSLEY ) 
q Appellee, 
APPEAL FROM CIRCUIT COURT 
vs. 
r OF COOK COURTY. 
W. 0. DICE, 
Appellant. 


PAA TAIESL 


BR, JUSTICE JOMNSTON DELIVERED THE OPINION OF THE COURT. . 


This is an appeal by ¥, 0. Dice, the defendant, from a 
Judgment on the verdict of a jury in the sum of $3500 in favor ef 
Inez I, Tinsley, the plaintiff, in an action brought by the plain- 
tiff to recover damages for injuries sustained in a collision be- 
tween an automobile, in which the plaintiff war riding as a suest, 
and amotor truck owned by the defendant and driven by a chauffeur 
of the defendant. 


o The undisputed evidence shows that the accident oc~ 











in the afternoon of May 2, 1924, near the intersection of 


street and Parnell avenue, public thoroughfares in the City 


rT ion, and Parnell avenue runs in a northerly and southerly 


ion; that the plaintiff was riding in an automobile by 


ek was going west on the north side of 7ist street; that there 
. alley which runs in a nertherly and southerly direction about 
, tb weet of the intersection of lst street end Parnell ave- 
; that about 100 feet west of the alley there is 2 railroad 

duet which crosses 7lst street; that the collision occurred at 

; that the automobile in which the plaintiff was riding 
Ddeing driven at the rate of about 22 miles an hour at the time 


we collision; that the motor truck was going at the rate of 3 


Oe ee ne 


A a a i OS ee Oe Ne ee arm, 









: .TPRMIOD AOD 10 





7 uish ree hes $ ' Atri Rn, me 2 af . bia 
pee ie eid - mete i a 7 ae \ x ties } y i) ak ' “4 
MECOLiCt pe: NS ot ee 


aa 
Sah 


Bae oes, dy wie ase @, (hae 
sa no dishes te wnt wert 20 we w ieviews me a ake 


te sore’, ak pore Fo, mart, eslt ah wt ¢ 


‘g 


a tetbroy, Lad ins 











te ngttooetodst oud “taess ae te pa ae ses il , 
Wis oe “ 4 4 ‘ a 





, ‘@ ‘oO ads ‘ab toto itiiercontd ‘wb tetra nares ite 
ulred new Bite ‘ulse toad oul ad anerd sontee Fase fads te 
"Yh tdi ‘bee ‘etitaaleoin add wad” ‘dunce ‘chee bow 
ed ethdometed ax ak Qathts aa UTEs ake te eee aMdy 
“eltdomotua wits ‘hatte potidowoasa odd ‘Ye sonia sath 
“rodon'sad Fails ied watts ‘ont staoe x 2 


ta beemiooe att “a si ‘sy fal 


as ei ih ie 











4 aties an hour; that os the motor truck turned south to go into the 
alley to deliver some nerohancise the collision oecurred; that at 
the time the motor truck turned to go into the alley the driver of 
the motor truck gave no warning either by sounding his horn or ex« 
tending his arm; that the plaintiff was injured in the collision; 
that four of her ribs were fractured about 2 to 4 inches from the 
sp! @, and that one of the four riba was fractured in twe places; 


that the plaintiff was black and blue from her knee to her shoulder; 

















sat her back and entire right aide were blask from bruises; that 


e remained in s hospital for one week; that she was then taken in 


M ambulance to her home, where she remained in bed until May 30, 

44; that the discoloration on her hip and baek did not disanpnear 
duly, 1924; that she suffered great paim; that she was attended 
Physician for 5 or 6 weeks after she left the hospital; that 

g that time her back was bandaged; that she still has pain in 
er Tight side; that she has had pain for ever a year, especially 

, the weatnor is bad; that when she Joes housework her back be- 

3 te hurt and she has te stop and thet this condition continued 

| D to the time of the trial, mamely, Mereh 4, 1926; thet prior te 

@ accident che hed no trouble with her back or right side; thet the 
ge ts of her spine are sore and if they are strained end re- 

4 rai ed they may get worse instead of better. 

: There is some conflict between the testimony of the - 

: ; fleur of the automobile and the chauffeur of the motor truck 

the facts surrounding the immediate happening of the collie 


The chauffeur of the eutomobile testified on behalf of 
mtiff that as he passed from uncer the viaduct he noticed 
tor truck; that the metor truek was about at Parnell avenue; 
® motor truck continued to go west and that he continued to 


st; that he was watching the alley for trucks that uicht come 


we 



















eae oak “3 ot sitsgoa beaws sound toto, oft ae test tet te @. 7 

te tact jhowkcecw netut ikaw olte te koueite rou dant ‘evE oh ot “2 . 

te tegich edt yolia okt asub eg o2 hostd Aguas tose 9: 

“xo 16 tot eld golbavee Yd tedtio gatenew on oveR Nowe tos: 
smetaditos ane ct hecetak aav wrhimtaty asd Sedt pee wit on. 

| eas mort nest md & of & dxoda poudentt Otew adit ted to wot @ 
jagoety, owt at borezesut esw adhytyet oft ty aL all - 
| rob tenn “east oe serct ‘eal hyn oul ae dont saw Wiftphae ot t 


a nested seule enw oi ‘taste oaw ene ‘aot | Ant Reo # a Fes 
i 108 von Ets bed ph ho mba ‘ote eta tr omod wot of sons 7 
maeoqneth tox his tend he hd ued ite mart ' aids ee 





beuattaos mode thao w Ratt Sat baw ate ot 1 aet ot Cas we 
of toitg gad peser «> do watt aktome tata oes 3 bo sank : 


| est} Sort venta data he xe dood ted aahe afdyors on pat 


i est te wont to0e as svewied ( tot naoe 5 non 02. ot 


Hi veo Raa 
| she wes rasom add By) ‘ue Mcesi0 ott Sais el priereal oat 


gk eee 


: mb Lfon at to aathon gad ota! donmk oss gnih bows omrase ier 
! Ey A 


| boots ou ‘on torhety ont one sot a a 


| reunove Eten te foods aay stort totem oth dwet? pao 
4 Pa he! iy RS na ae segs ahs 


i od bountsaos od sactt hae teow o3 ot heats noo ries’ 03 om 
’ Pia ail Sid pio oif bau ob item 
+ yaldotew one 


enon sigtm tart? eeinad ‘tor ‘gotta ead 








nt of there: that as he cot up to ich 2 feet of the alley he 
Rotioed the moter truck eut right im south; that he was about 

ul feet from the motor truck; that he wanted te co over to the 
court to get away from the motor trnek; that he got about s half a 
“foot from the south eurb, but did net get on the curb bevore the 
“mecident happened; that he did met blew his horn er give any 
“warning: that he did not put his brakes on, “ae I figured he 

j chauffeur of the motor truck) was going te let me through;* 


he thought he could cet past the metor truck as it wes going 


















Wily; that he thought the chauffeur of the motor truck wae 

iting for him to go throweh; that the moter truck aid not stop 

or decrease its speed; that if the motor truck had continued at the 
| @peed 14 would not have touched him; that the moter truck 

et Wave increased its speed. 

The chauffeur of the wetor truck testified on behalf ¢ 
f the fefendant thet when he first sar the automobile in which the 
tiff was riding it wae about 120 to 130 feet frow the scone of 
eceldent, and that he was shout & feet from the alley; that 

he next saw the automobile it wae sbout 75 or 100 feet away; 
he did not look at the automobile again witil 1t was about 

12 feet away: that between the time the sautomebile was about 78 

se away he did not see it until it »ae right up to him; that 
thought it would stop and paid no further attention to it, amd 

t kent right on going; that at the time of the collision he was 
bs lutely at a stendetili." 

Ome of the principal grounds urged for revergal ef 

1 Judgment by counsel for the defendant is that the verdict is 
the weight of the evidence; that “the recor4 eompletely 

te disclose any act of meglicence on the port of the defende 


Tn our opinion there ie ayple evidence to sustain a 






















me de Pownt tueo Kes Bours roto eld Eh tests phoecge eth o 


% ‘tiated xe hokt ident tewst todas odd To .ewewnds o8% 6 ei 
edt dafdw mk oLitowdae edd wan text? ost ooste att trahony 3 \¢ é 
‘to saoon off aodt toet.0lL.eF OSL tueds ,anw th anthte.say, Tres 





\ od elie ot to towd & tune od gw top: tt en. Sastt. emt, he te 
yates pemed tadd qaltene at cote duo mest, gotom ent hee kie 

‘A att wt. sev9 09.99 ho duew ae tevtt pdoust Aotam pelt. meat aoe, 
& had « teode toy od todd qhowet cofom edt mott yews, tom eh dae 
edt: weatted. dius odd .ag tog toa hth tod day dgisoe, ads mort doe 
win ovis We ates Bld wold tom fth of Jedd, ghonpaead daadloa 

od See y Exe” ye aedend ots dug goa bth ed dads 4s hs ‘a 

"* palaces om toL of palog sew, Taw Totem ody. be wean, a8 
‘guhoy eer Ph-er south totam 900 aueq toy disco of tAsaodt, ad $8 
Rar hoard wotom oad te mwe't'tbywede oft, Aap at 9K sect sthwel 
 qote fom hibo sowed totom edt gadt jstawortt og of wht rot wmbthe 









valor tt tedom off dat pakd hedowedoved Yom bileow th te “es 
. ahoner wet bane sat a ° te 









feds PYe Le oMd mort 4007.8 tuodea now octane howe... Pome 
yawn test OOf t0.8T tuode pay th efisemedye on? ae. dzom oat bie 
‘tugda caw th Lhd me thege eftidemetas yea te.aleod ton babe . 
BY gvade naw elideantys ed? omhs ond neowded dant, pews: leah 
tadt pods of qu tdyta eer itt) Livan themes gem bik ot ewe 
bre It ot noltactte tedtue't omy hleqobae, qote bLwom tt tfysost 
atv ot naeeifon odd Roms ont te \tedt: raHtop) ato, take 
Cidiey eh Maa Give Bale erin a shale 9 Sh oS Liddabaate a to 

°% Levtovet wot hagry ehauexg tagtoatxe ony to os i 
ek doktrow auth Serie) at tashesteb wait sot. Ansanoo eo tromabet 
opfete tomes Brenet oft” dete paouob ire. galt Ts titg.tew a: Zr 
“hee teh oat De taeg pan a-nation ae 

































finding that the defendant was guilty of negligence. In eonsider- 
ing this question it must be borne in mind that the motor truck 
ef the defendant wae driving west on the north side of Vist street 
and that the chauffeur of the automobile in which the plaintiff was 
riding was driving east on the south side of 7lst street; in ether 
words, the two vehicles were approaching each other from opposite 
@irections. In this situation it was clearly « question of fact 
for the jury whether the defendant's chauffeur, in starting to enter 
the alley, was negligent in turning south directly across the path 
ef the eutomobile in which the plaintiff was riding without either 
"sounding his horn, extending his arm, or otherwise giving warning. 
Furthermore, it was also a question of fact for the jury whether, 
in the circumstances shown by the evidence, it was negligence on 
the part of the defendant's chauffeur te start to turn into the 
@lley, instead of remaining on the north side of let street until 
the automobile in which the plaintifr was riding had passed, 
On consideration of all of the evidence we are of the 
“opinion that the verdict of the jury is not manifestly against the 
“Weight of the evidence. 


Counsel for the defendant further contends that on the 





isputed evidence the plaintiff was guilty of contributory negli- 


The evidence showe that the plaintiff did nothing 










ively to prevent the collision; that she remained passive. The 
intiff testified as follews: “I knew the driver Mat and felt 

5 we under hie direction of the car and I relied upen him, * 

. The test as to what constitutes contributory negli- 
jones as a matter of law is defined in the case of Kelly v. Chicago 
: » 283 TL1, 640, as follows (p. 645): 

"AS a general proposition, the question of contributory 


 *Megligence is one of fact for the j under all the facts and 
stances shown by the evidence, ev. Chic a 


Co., 289 Ill. 476) but wases oecasionally arise in which 


“tohianes al sswaoyiigen ‘te Wilivg sow danbanteb at dad’ aubbat 
doped xodes sult sand bake at eated of teem £t moltaowp ‘abst ‘sal 
tonrse sefY lo aide diven add ag dar gatvith: egw taabas'toh ont 
eae trituialg wat do hate aL olidemetum edt to aye Thiedy oat $068 ‘haa 
testo mi ptewtts Jedt be obi cidwon oct oo Seno gateicth: ‘enw gates 
stinoyge mortk seuite sioae yakivsoidds Ot9w aodolsewvows aad » vebxeN 
goat to moltsoup « vliasic saw 3h molianthe wide at sonektoon 
ao of gaitvess sk ,qwettveds a! duabag'teb edd wpsttecin get eal: ‘ 
iieq ost aeoiws “Steosth wos yalarwe ah daogilgen enw yee kbe | si 
tousie duoitiw gubbie sav Thlinislg sa) siokdw 92 eLidomodse ae 
sgalmcaw giivia selwiadse to ,ate ald galbooixe yesed ahd) 
wer vas oad tek deat le woideoxo «2 oxia oaw Oh), 
nO eouegiivan sow tL ,sanebive edd yd amocde. soanetouuotte ott 
edt ada mut of disde of wetness al icabao teh ode Do da0q 
——-fiktow goonts fos) Ye hie ston od 20 palatauen te dnotead ,xo 
ar shosang had gathts maw Wiktabals oid si Rad ook okisomss 
| eit Lepte ew soaehive ot to Lfa ‘te, no lietotiaaos AR 4 | 
ent ganioga yLtaetinam tea as viet odd to tothe ont fade bat Bagh 




















edt mo gadt aboetaqe aosiaut fanbue%ebh sdt r0) featwed - 
«lingam yrotudiataco to ydilvg sew Satine ly add smn 
Wal watson os 
aiaoia bbs Tibialedg es tadd exode,, eocebl ve, oat 
ont .eviagag pealenst oie jaa . paohatison aid, dmoveca raite 
" $fet bug duM sovEd ond woot I” rawoLtor ae hettiseet Wiubtmkad 
 ™ mtd moga bol los % paw. tan ast Xo padsoong aid cab i 
wLiges utosuddutnos sodut ideaog, deosive as as tned. pa, r cahie ht 
once lG.¥ 4ssek to seny oid ak beatted at ma Xe cuttin ane so 
(089 4) wmolson ae .Ob8 th P85. afi ox 
i etotadin ace to soltéoup oad  noLdteoqong 0% ‘s aa bie 


- ban nena edt Le xebaws ip Maer wh To ape ‘te one af sonegt fas 
MiB ay CL ce cay rE oe ae . it, 9 MD senso inn yo Ase § 















a person is so careless or his conduct so violative of all 
fational standards of conduct aprlicatle to persons in a like 
situation that the court ean say, 28 & matter of law, that no 
rational person would have acted as ne aid ent render Judgment 


for the defendant," 

In our view we cannot say as a matter of law that no 
Pational person would have acted as the plaintiff aid. 

We are of the opinion that the questions whether the 
Plaintiff should have been se watehtul and vigilant that she could 
have discovered the danger of the collision in time to warm the 
chauffeur and prevent the collision; or whether she was justified 
in remaining gunaive and relying on the chauffeur, are questions 
of fact for the jury. 

Counsel fer the defendant further contends that the 
@ourt erred in giving the follewing instruction om behalf of the 


Plaintiff; 


"I? you believe from the evidence that wy witness in this 
case has knowingly, wilfully, intentionally or falsely testifted 
as to ony matter or thing material to the issues in thie case, 
then you are at liberty to entirely reject the testimony of 
such witness except in so far av it is corroborated, if it is 
corroborated, by other credible evidence, or by faets arid 
cireumstances appearing in evidence," 


The objection ef counsel for the defendant to the ine 

Struction is that the word "er" after the word "intentionally" 
“gave the jury free reign to regard or disregard the evidence of 
‘SB witness ac they might see fit." Lt is evident that the word 
“or" was inadvertently inserted after the word “intentionally* 
@nd thet the instruction should have read, “If you believe from 
the evidence that any witness in this case haa knowingly, wilfully 
oF intentionally, falsely testified,” eta. 


, 
* 
_ Hon, We would not impute such lack of intelligence to the jury 


as to presume that they assumed wider the instruction that they had 
SB right to “regard or disregard" the testimony of witnesses who 


We think that the jury were not misled by the inatrue- 








believed had testified “knowingly, wilfully, intentionally" 


to the facts. Such an interpretation of the instruction would 


















fifa te evitelol¢y oa touhaoo atd xo emeletas £) aa 0% 
“eat tf a al endeted of eleotiogn foghmos to iivases, » fenottex 


soot claaiaaliail in pear ae a i" 
ry Li *  taahue teh, odd tot 
on teas wel to tetiac @ te yan dorase ow weiy sgo af . eet hae 
bth VMigalelg aft aa betes evad bivow moaueg J | 

ers tostt ose enolsasrp edd add aataiqe eds, te, ote aw. 
bisos ose desist ona Ltety has igtvodgew os seed syast btvoda, 2 ttaied 

, eas ate ot sald al mate dilos and? te teganb scit bererconth» 
he tts tant eam asia sesditesiw 0 jaolelifoo edd saoverq hus 2 | 
_SHoltsoup ota ,Wweliuvato ea% me gaiylos ‘Enrtam. ovienag ssinioe 
‘a 9 eWeark, 9gie Md nares ‘ 


eda tase “ abaed noe xonitin', tnebustted ont tot feared 





sniielt t Wi 
esis to ‘VLeiled xo Roiso wa ta ad giiwetlot est activ ta pee ieee ae 



















aiid of eeamtiv yn sacs oonoblive at were ove, sed 
be Ptites? yloatst to yllam ifdetnt ylivttiw , 
,oaeno aldt mi aeweel wn? of faliedaa ge A 6 ok 4.) ae 
Yo ysidultast ed? dootet vierigne ot vireo? “HON 


i i Yt ,besetodartes ot df ap xat os ak i bw ue 
a n nner ted xe" “sHontebtve aldibexe i Sano pies 
*,epaebive mt pin noo aooustenwyonts 


wok ontt ot tuahsie tee edt tot Loenros ‘to aelioakse OAR 6 nw: i 
“yLiasoltassal” biew odt tod%e “x0” brow ott tact ot mo kfosrnt by 
‘to sonehive oft fisgetaibh to fine of aglex ert uml anne a ‘ 
een pps tent dnobtve ai gt "ak ooe diigin yous as pas : 
"Tilasotiapdat” biew exit x9fte hodxecuk yfiaeduovbeat waw — 
, Mert eveklod wor “i” sheet eyed, bivosia aoivoutsagt edt Sacit, be 
hiv kaw sVigsiwend eos grav adeld as segadiw yaa sect, Be b tym, me sid 
| _12te, "be ltivee? yleetes Milano hiner, 
~ourtant pad a poppe som. otew, xxuk, elt dant, katie OW). F 
| Wet ed? of seasyiitesat ro, Yost dope esuqat ssdinibihel ne fa 
bast cous tend sottouztest ong sep eur Payne Wf 
ose eongont tw ko werratiet, ate . 
enchant aici ‘ 





geal AE 





6 


have been absurd. 
Gounsel fer the defendant further contends that the 


gourt erred in giving the following instruction on besald of the 


plaintiff: 


"You are instructed that if you believe from the preponder- 
ance of the avidence, under the instructions of the eourt, that 
the plaintiff was in the exercise of ordinsry care Ter her own 
gafety at and just prier to the eecurrenee of the aeeident in 
question, and if yeu further believe from the preponderance of 
the evidence, wider the inetructions of the Court, that the 
defendant ¥. 0. Dice's servant was guilty of any negligence 
Glleged in the plaintiff's declaration, or sny count thereof, 
which caused or proximately contributed te enuse the accident 
and alleged injuries te the plaintiff, then your verdict should 
be for the plaintiff even though you might also believe from the 
evidence that the driver of the automobile in which plaintiff 
Was riding at the time and place in question was also guilty 
of some negligence proximately contributing to bring about the 
accident and injuries to the plaintiff, * 


it is maintained by counsel for the defendant that 
this inetruction “asawnes that the plaintiff was in the exercise of 
Ordinary care, whereas there is no evidence in the record that 
Plaintiff dia exercise ordinary eare;* that further it assumes 
that the plaintiff "by reason of the fact that she was riding in an 
automobile driven by another entirely relieved plaintiff from exer- 
eising ordinary care for her own safety.* 
‘ We think that the instruetion obviously is not reason- 
omy susceptible of the constructions which counsel for the de- 

A 











fondant places on it. 

. It is further objected by counsel for the defendant 
the court erred in instructing the jury that in estinating the 
laintirr's damages they had the right to take into consideration 
future suffering and loss of health if any;" and “her loss of 
and inability to work, if any;" and that “there is ne evi- 

in this record as to either of these propositions," 

a We think that there is sufficient evidence to justify 
, ne instruction. Furthermore, the qualifying phrase “ir any” is 
ed in the instruction. Again, the first paragraph of the in- 


Bh) Po) 


is as follows; “The jury are instructeé4 that if from a 




















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a URS SS lei 8 le Ee 4 


» 38 bite | { 


oa Wade” ‘ehae 09 sedstyt sabastos ‘abe eek Kenmod: 
‘4 ty bat Ny 
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ome ete. Ot. evra 
-tebtogetq ag mot? owetiod wey ti surlt bederttemh exe weXt) oh 
test ,tunce off ‘to enoltowrtent edt tobex ,eonebive sad to 
wo Kel Le wtHo GROLibie ko satovexs ext Sl waw Tittalelg odt , 
at tuphiooe oad ‘to sometiyese edt of t0lxg cont bas ta Sistas 
| te senerobao cht aft woxt evebiod versa? yey te bee’ 
| odd tedd ,¢uy0D off To amoltourtamt osft pe toon bh 
, arose lived yas to vi llega saw sosrtes afoole .o 4. Ww ; 
,ioetent taves yne to ,ttotiataloeh MEN te BY odd mk bea 7 a 
dnoftoee oat vous ot hedudtienoe yLogmmixete ‘xy 


| héers foiftey woy medy ,VMitialaly oft af fe ise at Be; 
odd mov ovo klod vale gata wey sgkor neve’ 


DRE Semlteey ate cael fan 
| idem ey ete ho 
: ° gqet Popo ved Bilt ver Loa moo we bocitadmtnit we pe Or ow 
i is oa korexe psd of new thi¢niatg edt tadt somaen® wolsebk eat £ 
eas | ta Bropss ene Bt eousbive olf wd w4pe hentaigy tng sx 
ee  goinrena’ oe ouayt sath young: ytatbio oo teres are ae , 
si et! auth ix’ ane sig ae ton eng ‘to sonst eo vragen 
~tex9 most, TEs state hove tiv’ Yietktoa to Mit ohn Me ney’ 
nti , eek ek ee cunukinals 4 aa 
~fonsene doi af ytnwo betty io tonsa me due Yeas anatt ow ’ met techn 
* be ba cet” ceniived anal anny. ting Yo otdrsqdoame rf 
vain ve Gk oT EE ont 18 sul dy lal 
eet oil “cor ‘resus xd enn ous ar ltt na 
ond Gikttonkies ad vets veal’ old “uitevtteay | nt Bexte om esc) 
gelvexobtanos Uiad exe? ob ditgtd bat ‘how ote — i ‘ 
to eeol ted” bas *pyme TF fb tort Yo’ Walon Waa! Wil 
“Wee wn wh Wiel yale’ bale Wyigree FR sed WH 
* nao theoqedic wmoike th itt he” diab bibobe what 
writent oo geld ‘ie wear Si Slt! 8 ad 


PRY oy Mek » a 


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preponderance of the evidence and under the instructions of the 
Court, you find the defendant guilty, as alleged in the declara- 
. tion, then you will be required to determine the ameunt of plaine 
*iff's demaces, if any, so far as such damages as are alleged in 
her declaration are established by a preponderance of the avidence, 


af you find they are so established." 
Counsel for the defendant further contends that the 


court committed reversible error in refusing to give the following 


instruction on behalf of the defendant: 


"If you believe, from all the evidence in this case, that 
the motor vehicle in which the plaintiff was riding at the time 
in question wae being driven on a public street in the City ef 
Chicago, in violation of the statutes of Illinois regulating 
the traffic of vehicles upon public streets and highways; and 
if you further believe from all of the evidence, that the 
plaintiff knew, or in the exercise of ordinary care on her part 
couké have known of such violation of the law by the driver of 
the vehicle she was riding in a sufficient length of time bee 
fore the collision here in question to have cautioned the 
@river of the automobile plaintiff was riding in not to violate 
said statutes, or to have prevented said driver from violating 
said statutes; then the Court instructs you that so driving sald 
vehicle in which plaintiff was riding contrary to said statutes, 
Taises the presumption that the plaintiff and the driver ef the 
Moter vehicle in which plaintiff was riding, at the time and 

_ Place in question, were, as a matter of law, guilty of negli- 
gence; and if you further believe from the evidence that such 
_ Megiigence was the proximate cause of the injury to the plain- 
tiff, without which the injury would not have happened, then 
you should find the defendant net guilty." 


We think that the instruction is objectionable for 
"several reasons. It assumes as a matter of law that there was a 
Riuty on the part of the plaintiff te caution the chauffeur not to 
“Violate the statute or to prevent the chauffeur from violating 
the statute, whereas the question of the duty of the plaintirr in 


these Tespects was one of fact. Furthermore, the instruct sion 












does mot inform the jury what facts must exist and what speed must 
| } exceeded in order to create a prima facie case of negligence; 
2 does it tell the jury under what conditions the prima facie 
a i@ of negligence may be rebutted by the plaintiff. In the ine 
‘Struction numbered 15, given ot the request of the defendant, the 


were properly instructed in regard to the statute in question; 








AP _eotenene ‘mh etutose. 
i ce ee 






































dad te enoldoutteni aft tebay bas gonehtve ext te poaeres 16 
waxeisad acid ah Segetial se eo Lhury. tnehae ‘tad ll batt Oy, re 2 
tiale Le drurome ey oabirga teh ot bariepes od thy MON, nese am ta 
ost bene iia eX 2 Begeaah dowe as tat of , Yee te .sopenab, a! 3 
,oomebivs ad? ta goartehaegerq e ys bededidatao Educa Bo! sateloob s 


ye 


| " bodiitdadae od ote yout batt hi? 
ot! nied shu tao0 nostra daabas'tes ous pred fenag9o | 


gatwotser oul oly oe patente ak texte 0 Ld twvevo" besttinoe otis: 
pa YG va ie rae ay ay: ay a 
--Haahaotes asi to Riacod sd ecwbaio 


dnisae paar ene and powabibed uly bee mox't vevebhid woe ray 
emis of? fa pnipit wew Trivnlaig one do biw at wfodsevr totem 
‘to VSR) ead af Yeouta ohidug = ne merinh gated ese ae! 
: il creticadn anes a2 bla Sra ot te eriaon hale ‘al 
28 agissite 9 Rege we is 
oy fait ,eomdtva act to Llw aott loved fed “paddas’ Ray 
ttae nod wo ete ytectbto te wetotexe odd ot to , wont aan 
te teviah eat vo wel edt Le aol¢aleiy dowe Yo sweat ovad iy 
=o outt te Signet gopigitiwa a at galpix ser ete ofolcey ant 
gif Bemoltene svext of soltvesyp af greet mobet( Doo we ere? 
eteloty ot fon at gaihts enw Tri¢siole eLitquotus edt to tovic 
paltatels moxT seviah blso bodoe rene ever ot re utete hb 
bliss aaivixh o4 Jedt voy etowxtant stwod edt mecdd jeodutats bie 
Wesutates biew of Ytetdetos yatbiy wow Trivatete dedie af @L9 
ant ‘to teviah edt bee Thktalelq edt sects dohe at eletetey soghae 
Fire oaks pet Sa yathi: gaw Yitoaie fe tio ftw at ofa 
«tigen To ytiteg ,wel Io tettem #2 A , TOY eto al 908 
dade Fudd sonebive odd mott sveilod rerdect say 
eaisty edt of cratak edd to eeves eftemixota edt ear pomp 
pig aft boron gasi sven gon bivew. qu hak sat aio lowodwedd he) 
* ye Lang tani Sus bae'teb biog wien Se, vo 


zat ‘eidanoiteotso a noldourtans ould aus ‘sin dett ov 
1 i rie Py kaart 
® saw etod? tedd wal 9 teatem 8 8M aoayene nm SONNE | ; 


oF Fon tesa D Taw sho eat pativas oF Wigste le oid ‘to tag 


galdsfoay neat aye vedo ait inovena os x9 atuteta ok one , 

‘a rbsude Le esid to eth oud te to LY @Bup ous asotede per re 
ny woh donstant elt ,romrouigau toa 0 uae cov asoscart anes 
toxm heegn tote Bs fade osm neon fae ea oe Sere ~“s 
, steere ot tobto ak beds 


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nat acta at Usmialg ote wt betinder ed wan sone gen we “m9 
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> ee - Sait 


STN TPa AP ee 
Wah, at 


and in the instruction numbered 18, given at the request of the 
defendant, the jury were instructed to find the defendant not 
guilty if “the sole cause of the injury to the plaintsfr* was 
@ue to the negligent operation of the automobile in which the 
Plaintiff was riding, 

Counsel for the defendant further contends thet the 
court erred in refusing to give the rellowing instruction which 
the defendant requested be given: 

"The court instructs the jury that the burdeu is upon the 
plaintiff te show by a preponderance of the evidence that she 
was in the exercise of ordinery care just before and et the 
time of the alleged accident, And the Court instructs you that 
she is not relieved from that duty because she was riding in an 
automobile, but the law is that where a parsenger in an autonoe 
bile hase an opportunity to learn of danger and void it, it is 
her duty te warn the driver of the automobile of such denger." 

We think the inetruetion le erroneous in that it ase 
umes as a matter of law that it is the duty of a passenger in an 

Butomebdile, who knows of a danger, te warn the chauffeur of the 
danger, The duty of a passenger in thie respect depends upon the 
facts in the particular case. It may be that in some circumstances 

is Would be wmvise for the passenger to interfere with the chauf- 
four at all, as the chauffeur might be confused or excited by such 


rference; in other cireums tances it might be reasonable and 












er for a passenger to warn the chauffeur of a danger. In our 
Minion the question is not one of law but of fact. Hepner vy. 

k, No. 30529, opinion of the 3rd Division of the Appellate 
tT, not yet reported, 
it is objected by counsel for the defendant that the 
rdict is excessive. We think that it is not necessary to dis- 


" the evidence relating to thie question, We have stated the 
mee in this regard, and we are of the opinion that it is suf- 

tlent to suppert the verdict. 

i For the reasons stated the Judgment is affirmed, 

AFFIRMED. 





rely, P. J., and Matchett, J., cencur, 


be! te LO Ae eek ti 
Ww, ‘ *¢ 



























edt to teeupet arts te nevin ,8f hetedanm sottovivunt sh ih 
ton trmbaeteh edt balt of hotcustent onew emt ests \dndbe 7 
vat "Ttisatealg ent of vewtal ett te sauac ‘Shee ents” ty 
ast Molaw ak elidonodue ett ‘to ne ttaxsqo tnegityen ont wi 
| pakbix sow ‘Vilbal 

ens tedd abaednoo tedsi't Jeeboe Leb re to fowared : 
doidw agitouttent aaa ont ova ‘os tiheo'te ak berre | ; 
se@viy od besnoupet Lenten iy 
edt soqu et uobusrd oft dors yivt eds etowstaat érwos extt® | 


ota tess ooushive eft to. sumpiebaoyete « yd rode, af Thhtala 
edt t2 bus oxo'ted Sant, een vwnkhio to velerexe ed? ar, ; 
ry" ue a a 


ver 


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at #h ,a1 Liov boe togaeb to nteol ot 

* xegdab done to olidonotyn ent to tori th of aw ot 

CAR ey A rye - 


wnt th Jest ak enosonae ot aotonngumt ost ata hi Lint wat | 
a ut Togtion ang a Ye. vou wat ek ‘$k rats wel to notion - re 09s . 
ont te cue tunis eat» aad of. .xeaneb & 0 eroml tm vette at 
(edt moqw wbhitoqeh t9s.qeon ndsis at tepaoneed @ 16 “cduh 9 oe 1 a i 
seams tamonie sown nk tadd of vem at 9980 antuetd neg o ontt a ' 
otuedo ot Attw prorat nt ot ropionsag one xo “enbeam of ‘he! 
teen ut botioxe x0 hey tans os, tigie wweTtuasde edt en hte ty. 
bro atienoraet of tdytm th mepiademoxto toddo mi jeonete trod 
tire a to pew a to twottveia otf anew of topasanag tor % 10 
-Y meget test to tud, wel to ome fon as i ett: baxd 
atallodgh off to motniwhl but a3. 20, aeralan, 4 PREOE , alk hao 
shortages Joy don 4 "i 

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sbomat tte Py sro bat ont betate umount pr 
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: 
400 - 31552 : 


 *<BARVSY L. CAVENDER and VILLIAN 


» comm, Cepartners es CAVENDER 
 & KAISER } 
Appellants, 
APPRAL FROM MUNICIPAL COURT 
vs. 
OF CHICAGO. 
JULIUS BECKER, 
Appellee. ) 


a 
>) 


MR. JUSTICE JOHNSTON DELIVERED THE CPINION OF THY COURT, 


This is an appeal by Marvey L. Cavender and VYilliam &. 
Kaiser, attorneys md copartners, the plaintiffs, from an order in a 
preceeding under section 21 of the Numicipal Court act, vacating a 
Qudgment in the sum of $600.02 entered in favor of the plaintiffs 
in am action brought by the plaintiffs against Julius Becker, the 
defendant, te recover attorney's fees for services alleged te have 
eee rendered to the defendants by the plaintiffs. 


a. In the oricinal action for attomey's fees the defend- 










b filed an affidavit of merits sworn toe by the defendant, denying 
the itemized statement of services in the plaintiffe' statement 
of @laim alleged to have been rendered to the defendant vas cor- 
» and denying that the plaintiffs expanded the court costa and 
. set forth in the plaintiffs' statement of claim, Thereafter 
“defendant filed an amended affidavit ef merits sworn te by his 
attorney, admitting that the itemized statement of court costs 
Moneys expended for the plaintiffe, as set forth in plaintiffs’ 
mt of claim, was correct except as te four itens. 
The case was reached for trial on September 25, 1925, 
Md was several times continued until November 6, 1925, when the 
having failed to appear, judgment in the eum of $600 was 
on the verdict of a jury against the defendant. 

On December 5, 1925, the defendant filed a motion te 
the Judgement, and in suppert of the motion the defendant 










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faYitiniate mt deter fon an wtntita te out te 









filed an affidavit in which, omong other things, he alleged that he 
Wee net advised that the case was set for trial on Noverber 6, 
1925; that his attorney had agreed with the plaintiffs in September 
to have the case set for trial at "a later date,” but that the 
attorney failed to notify him ef the date; that his attorney “did 
mot appear in court at any later date but threw his case,” 

Om December 28, 1925, the court entered an order vacate 
ing the judgment. On January 5, 1926, the case was upon the trial 
@all and was continved until February 16, 19°6, for the reagon that 
the defendant was not ready for trial, On February 16, 1926, the 
@ase was continued to March 2, 1926, and on Maroh 2, 1926, it was 
gontinued woitil Bareh 25, 1996, The defendant was present in eourt 
on January 5, 1926, February 16, 1926, and Vareh 7, 1926, and Mareh 
26, 1976. On Maren 2, 1926, the defendant 414 net appear in court 
and on motion of the plaintiffs the case was continued until April 
9, 1926. On April 9, 1926, the defendant having failed to appear, a 
Judgment in the sum of $609.02 was entered againet the defendant 
OB & verdict of the jury. 

On July 14, 1926, the defendant filed a petition under 
‘Section 21 of the Municpal Court act, being the present proceeding, 
to Vacate the judgment entered on April 9, 1946. 
ve The petition which was sworn to by the defendant is 
” follows: © 
4 “Row come the petitioner, Julius Becker, defendant in the 
above entitled cause, and prays to thie Honoratle Court that the 
udgment entered herein on April 9, against him in the sum of 
i 4.06 be vacated, set aside and held for naught, for the reasons 
hereinafter stated. 
i Your petitioner shows that the plaintiffs herein had prior 
te the institution of thie action, acted and represented this 
“Petitioner as his attorneys, and as the relation of attorney and 
 @lient existed, the plaintiff collected large eume of money at 
Various times, for whigh no accounting has ever been given by 
the plaintiff, or h is petitioner (defendant); that while 
_ the cause, herein, vas pending, your petitioner, who, was by’ circum- 
_ stances compelled to seek employment elsewhere for his hivelihoed, 


+ and being unable to attend court, or employ counsel to 4o so, 
_Sgreed with the plaintiff in adjustment of this cause, snd not 


_ 8 & waiver of any claime for ameunt collected by the plaintiff 



























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and his attorneys, he, thie petitioner, gave in full settlement, 
for the amount claimed in this law suit, a certain nots dated 
July 26, 1925, for the eum of $250.00, signed by Zarnest 
Masnarits, and received from the plaintiff a certain ace 
knowiedguent in words as fellows: 

‘Received of Tuliun Becker the nete (286) of Sarnest 

Mesnarits dated July #28, 1924, This nete is taken to 

investicate ite value and determine whether or net it wtll 

be taken in settlement of sage of Cavender et al. vs. 

Becker, an? to be returned on demand if no settlement is 

made, Charles Gyongyosi not te be held Lisble. .P.Fubman, * 

*and reliving on the promise of the plaintiff that auch note 
would be in full settlement of the claim sued upon and ree 
eeiving no word of any nature from the plaintiff te the cone 
trary, this petitioner believed that the enid auit had been 
aiemicsed, but afterwards learned that in vieletion of the 
agreenent, and the promise of the plaintifYy, they on April 9 
procured a Judgment, which fudement is unjust, unfair, and 
was a deception upon the court end this petitioner, the de- 
fendant. 
"ie, therefore, at tais, the earlbest opportunity, res- 

peetfully prays that the Judgment entered in said cause, be 
vacated and set aside.“ 


Over the plaintiffs ebjection te the sufficieney of 
the petition, the court held that the petition wae auffielent, 
The plaintiffs thereupon filed twe affidavits traversing certain 
allegations in the petition. One of the affidavits, which was 
made by Herbert P. ¥yhrmann, an attormey in the office of the 
plaintiffs, is as follows; 


"That prior to January 5, 1926, Julius Becker telephoned 
said affiant and requested that the above ontitled cause be 
@ontinued and stated that he had reeently had a fire snd that 
he 414 not have time to prepare fer trial, that certain ree- 
ords were destreyed or they were in such shape that they were 
mot available fow evidence, and that at the requeet of said 
a thia affiant continued said ease until February 16, 

926. 

"Said affiant further states that wren the case was next 
upon the trial call thie affiant appeared in court in anawer 
te said esll, that Becker was present and requested a continu. 
ance of ssid case, that the same was continued by the court 
until March 2, 1926, 

"Said affidgvit further states that en Mareh 2nd, when 
the case was next upon the trial eall, this affiant appeared 
in court, that Becker was present, and again requested that 
the case be continued, that he had ne attorney and was not 

ise prepared for trial, that seid Becker suggested » settlement 
. to thie affiant end agreed to submit a certain note to this 
¥ affiant for his exawinatien and consideration in connestion 
With said settlement, thet the case was continued until 
March 16, 1926. 

\ "Said affidavit further states that when the ease was upan 
the trial call om Mareh 16th, this affiant again appeared in 
ecurt, that Becker was aleo present, that Becker was not pre- 
pared fer trial and requested a continuance, that at said time 

he again talked with said affiant about settling, that he 











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I) Vs OME Pte a a) 7, er Ry Oe a SOP CT Sa ee e 


felivere’ to said affiant a note dated July 25, 1924, and asked 
thie affiant to ascertain whether or not plaintiffs vould accept 
gaid note in full settlement of their claim, that sald Beoker 
stated he would not guarantees the payment of sald note and that 
he 414 not want the endorser held, that thie affiant teld said 
Becker that he would take said mote and, if Becker weuld give 

to said affiant satisfactory information as to the respensi- 
bility and ee te whether or not said note could be collected, 
that he would take the same up with the plaintiffs, that sat 

said time this affient gave io said Becker a receipt fer said 
note, conditioned sae above, that said Becker stated that he 
Would couwuwmicate with affiant by telephone on the fellowing day, 
that this affiant was not called by said Becker at any time, ond 
that said Hecker made mo effort, in so far as this affiant is 
advised, to comaunicate with this affiant either by telephone, 
mail or any other means whatsecever. 

"Seid affiant further states that he did not at any time 
agree with eaid Becker that eaid note would be accepted in full 
Settlement of the claim then pending er that he would cause said 

suit to be dismiesed or thet the plaintiif would not take any 
further or other stevs in connection with said case. 

"Said affiant further estates that when the case was next 
upon the trial ¢all, March 28th, he again appeared in court, that 
Beoker did not appear, that no pereon appeared for “im, that 
erg affiant of his own motion centinued eaid case wntil April 

at. 

"Affiant further states that when the oricinal judgment was 
Vacated in this ease in the month of December, 1925, this affi-+ 
ant vas praesent in the court room and that the Jutes, whe vacated 

aid judgment, stated to said Becker that the plaintiffe were 
+ @mtitled to have the case tried, that he weuld set it for Janue 
ary Ss and that Becker muet be preonred fer Grial. 

Affiant further states that when he talked with said 
Becker with reference to the proposed settlement this affiant 
Stated to said Beeker that if said cage was eetiled, the plein- 
tiffs would give to Becker a release of 11 claims to date, and 

that the plaintiffs would require from Becker and pareares 

Schrieber a release of any and all claims that they might have 
against the plaintiffs, that if this litigation was ta be ended 
against the defendant, ali differences sust be settled against 


the plaintiffs.” 
The second affidavit, which was made by Harvey L. 


* 


=~ 













; nder, ene of the olaintifYs, is as follewa: 


"That the above entitled ease was first reached fer trial 
the Municipal court on September 25, 1925; that same was con- 
ued of several occasions until November 6, 1925; then a judge 

Ment wae entered against the defendant; that said Beeker did not 

@ppear in court on any occasion when said ease was wpon the trial 
All between September 2hth and Nevember 6th; that on the Sth 

| @ay of December, 192%, said Becker made a motion to vacate said 

- =gtdement and that the court vacated the sume during the month of 

De ember, 1925, and set the case for trial on January 5, 1926; 

eS, t said court at said time stated to Beeker that he must be 

_ Prepared for trial and dispose of said case. 

i. “Said affiant further states that he never entered inte any 
“bargain with Julius Beeker, nor 4i4 any person on behalf of the 

a ntifT agree with sald Julius Seeker, at any time, to settie 

i Gase or dismiss the sane; that am execution has been issued 








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etd ty Viated ao mo é, ght RHE ; 
Otten ot (omit ye te,’ 
bauer t eed. ea RoLsvasite 








PPAR Oe, A He ay Uae HP a.) AO C 
ONE mai? oil aie? * 
i teks 
Rg P ei y a \) : + 
c ” FR " 
Kot Par thie me, SON: Ue 2) Me Sas 4 eer 
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4 
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5 Uren My : . : Ps ra “7, ee iv 
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by h 





We 


ERP owe Se Te Se ee Ue ene Fann ee eee 


upon the judgment entered April @, 1926, snd veturned by the 
Dailiff of the Hunicipal court wholly unsatisfied; that to the 
beet of the knowledge, information ond belief of this affiant, 
eailA Becker recites outside of the City of Chicago, in the 
Village ef Merton Grove; that ho has no telephone; that this 
affiant has filed in the Superior court ef Cook sounty, TLid- 
nois, a ereditors' bill against esid Julius Becker and others; 
that on about the 27th dey of May, A. D, 1926, this affiant 
wrote sald Becker a letter, addressed to him at Horton drove, 
advising him of the filing of @a44 creditors’ bill.* 


mn 


After hearing the matter on the petition sand affida.e 
yits alone, without taking any oral or documentary evidence, the 
‘gourt entered an order, whies is the one involved on the praesent 
appeal, vacating the jJutgment of April @, 1026. 

i There is no dispute between counsel for the defendant 
—" counsel for the plaintiffe as to the law applicable to the ease. 
‘The only question is whether on the petition and affidavits the 















the judgment. 
in our opinion the court erred in vacating the judg- 
The gist of the petition of the defendant ig that the plaine 
agreed to settle their action anvetunt the deforndeant and age 
ited the note referred to in the petition in full settlement of 
Ivir claim against the defendant. The conclusion, hewever, that 
he plaintiffs accepted the note in full settlement of their claim 
Le negatived by the receipt, which ie eet out in the petition sand 
whi oh the petition slloges wan given for the note. According to 
ni receipt, the note was not definitely accepted, but war merely 
BD conditionally for investigation, In the affidavit of ¥uhraann 
. 2 Dbebalf of the plaimtifre it is averred that no agreenent was 
D L with the defendant that the note would be accepted in full pay- 
e %; that when the receipt for the note was given, the defendant 
tat ed that he would communicate with Fuhrmann the next day, but 
hat the defendant failed to do so. 
| Gn a consideration of the petition and the affidavits 


>, a St eS eee 
= 



























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eae ya ek ahah Pope ote ie dergeh ats eget 
ign kaa at dorqsooe og ntasow ‘avon ee tere ge he 
%y Fae pe aa RRR NS pay, iis asl tae WY fe ¥ 

taba’ eit siewieg: ase eden oat Ot dq lowe! ehh besponat ory 
‘ Was eR MM ig’ Kc ee SO Aun Bie oF TR eA 

a awe von eee: -annenar Ag baw oteotnumres tbie 

oe ee: Wee ch a5 Rae, oP i eke 
Pcvarragoot i 






9p WSR if 1 anys 


4 mi, doh ee Oe, Lee SAR ee RN he Ul 
ir Mg tebe aD Se Se eel ds PRO SOL, ide vag ead 





7 ne lement of their eliaim and did not otherwise agres te settle 
eir olsim, 

y Yor the reasons stated the order ef the court vacating 
ye judgment of April 9, 1926, ic reversed, 


REVERBED, 
rely, ?. J., and Matchett, J., concur. 
\ 
2 





ate: semonhie 7 a sous 


Hide Nedag Hana) Od Hee Me Dy rhe ha 


pate 3 Poa Rats it ie Ds 


He 


Me lal Lacy 
GaN 


me. ky a piel: ahi 





ag, 


416 - 31548 


MORRIS J. WISHNEVSEY, 
« Appellee, 
| APPEAL FROM CIRCULT COURT 
ve. 


6. ¥. WESDRICK, fr., W. A. 

. and PATL A, DRATZ, 
Copartners Doing Business os 
: ICK STUL CO., 
Appelisnts. 


OF GOOR COUNTY. 


She F ed el tar Na Aa 


ER, JUSTICE JOHNSTON DELIVERED THE OPINION OF THR COURT. 


Thie is an appeal by ¢. FP, Wendriek, Jr., and @, A, 
‘Peters, copartners doing business sa Yendrick Steel Company, and 
Paul A. Bratz, the defendanta from a judgment in favor of Borrds 
we. Wishneveky, the pluintiff, im an action brought by the plain- 
«barr Oh & promissory ncte which tae plaintiff claims to own as an 






imnecent purchaser. 


# the ease wat tried before the court and a jury. At 
wt : 









the Glose of sil the evidence the court inetrueted the Jury per 
..:, to find the issues for the plaintiff and to assess 
"the plaintiff's damages at the sum of $2921.81. 

The note is as follows: 


"2780.00 Janmary 23rd, 1925. 

30 4ays after date we promise te pay to the order of 
ational Salvage Co., Harry lL, Hidler, Trenton, #. J. Trenty- 
Seven Hundred Fifty Dellars at First Kational Bank of Harvey, 
Tllineis, Value received with interest at the rate of no per 
@ent per annum. 

; ; Yendrick Steel Company, 
= By 0, FF. Wendrieck, Jr. 
; ES en, 


_ The endorsements on the back of the note are as follows: 
"Paul A. Dratz 
National Salvage Ce., 
Harry L. Midler, Pree," 
* The evidence shows that the National Salvage Co. 
Was a corporation, 
The only question te be determined is whether the 


“Botional Salvage Co. Harry L. Midler, Pres." is 


















erListea 
THO GO nino MOR Ma 


i ie dahl f 
ee SS Mk 





atmulioaga 


.YTauOS waa 
gl eg eh srremae 
BEART WA Mad 
Lidice at ata Cake ee dae en Pehemret Pe! po 
om GO ar a | pS ES CF AERTS: ROA 


TS ae a ae 


2900 MAT NO MOTHIGO RAT CRARVIANT NOTEMNOT. OTTOUL , aM 


A oF ban ,.%0 , ao ichas¥ .,'t “0 ye Laer an ‘at alst 
bas . ye quod teese daiahae® an suanieud yaloh ‘Tact teqes exot 
aictel Yo seve? at ag me bast 8 Ol sSashneleh oct ,atenk A 4 
sahete oat yd dxawotd apbgee oe at ,Vtttalole edd volarealas r 
he ta mwo oF puntate viidatatg os dele ston Ytone tnotg 2 a9 Tt 
stenadoug & 


‘ 





fh eat & btw dcs09 exis oxoted betes jaws gee9 oat | lite 

“194 vast out besovnt and Puwsos ods someh tvs ena ila 16 smote 

REDSTH od haw Tittalere galt ‘aot aoues t oad Beck's . ot . 

18 £8089 Xo mus ont ts nogount at vite 

fewottor s ns at ton ot 

ORL , bee yremnet =< on 

to sebre eat ot vag oF o2 mone ane otah ate nc ih 

«giteaw? .L . ,wodaert , re ihle ft youll eo 

sCevral te Semi faneided terit te exe i fot a 
aq ot to efat edd te deoxotal Atte borings vee 


angined Lact dobthas¥ ie 
x oithas’ ,f .d: “et 


2 


the indorsement of the corporation und also the indorsement of 
Harry L. Midler individually, or whether the indorsement is that 


of the corporation only. 

The 4efendsent contends that the indersement is inat 
of the corporation oniy. The pisuintiff eentends that the indorse- 
nent is the indorsement of the corporation and alee the indorae- 
ment of Harry LL. Milier individusliy; that the added term “Pres.” 
hel the name of Harry L. Bidier is merely deseriptio personae. 

; The authorities on the question in controversy are 
‘onflicting. We have not been referred te any decision of the 
Swrese Geurt of the State of TLlineies whieh is directly decisive 
” the question, but in auppert of their contentions beth counsel 


the plaintiff and course) for the defendant have cited from 















‘Tlidneis Appellate Courte decisions which are not harmonious, 
Slee have cited fren other etates suthorities that annowee 


ieting rules. The Illinois eases relied unen by counsel Yor 
Plaintiff are as follows: See) ow vp, Ainselig Glase Ge., 36 
App, 412, 414; Duffner vy. Ball, 86 TLl. App, 519, 521; Right 
] Syke Surlesaue Co Loulavilile 7, & St. L. Consolidated R.R. 

as 40 Tll. App. 49, 50; Ghadeey v. MeGreery, 27 111, 283, 254; 
Pike, 162 Tl1. 241, 246. 

fn our opinion the Supreme Court cases of Chadsey y. 

Sy Supra, and Hately vy. Pike, supra, do not sustain the 
mtention ef counsel for the plaintiff, In the case of Chadsey 

4 o evreery & note was tinde payable to Janes @. MeUreery, treasurer 
| the B. %. & A. BR. Co., and the court held that it was mot a 
i of the company but of Metreery individually; and that the 

r , Treasurer was deseriptio personae. If the note had been made 
a le to the company snd to NeCreery and the indorsement had been 
ned in the name of the company with the name of James G. Hoe 


Y, Treas., following the name of the company, the case then 


have been analogous to the case at bar. In the ease of 


A 7s 
‘Sa 


PMR IN ec! Wann asta 
Ph Same 
ey By tet 
am : \ ie ni 























Tor Cae ald 
te suomeatobad eft cate how felteategrtoa edz ‘ke sooweutobad 
fat 1 inowsarobat ost resitecie to Titowh Syke wo Lb2i ot 


| eine not texogz09 oats 
fads 2 sdammetobat ot tari? wf hee das tnabge ton ont 


fans ia aes 


~ootobak edt gatt wbustaoe Witahs le ont “ne tte, so Heacoqeie 
awetonat sat ow Le bac molternrton edt ‘te Susmoetobak ont 6 
* .ae7tt" axet hebbs eda tarsi? iwfLeubivtbal we Like ok era ‘te 
+ PASOB ISS abtatioesb yiotom af te {ha ool SS actad Xe onan a ma wt 
exe URtevetincs nk agltecrp edt ao etd dositue eae 
env ‘te nolelosb wets os ‘bertetos mood tom avast ot Heb: 
Wiersth elsoor is ef dele aboatttt to esnd® ony te sxe8 
ea ntos ddod enolinetnos ‘ghee to deocenre at sod metsweup: onan 
‘owt boots evad taanme ted’ oi 20° ieonyee hab” Tiiteinte edt 
aay o beveiete it fon ete me tety amoln tows wfewed ve tioqgh ‘atoati tt ' 
Suiaremee Fess eels ineitwn ante ta xen sgt: Reete oved o 
Tor Kwak o. edn hetiot geand etowhcrt itt - eeu snheed 


— mee Peabriay2 ‘ 








| wet ‘pase Ore nek Wicd ae , | i hl 
“Gall petabsioens? oi. . thd sk aft te 





| bait a BOR, LAR. axe rss 
sccm ‘xo sonao aduged naar mit in ca thy an ers 

| aah shavers don ob e = ah big “5 mart 4 ay 
Weebly “te sana odd. ak “| Welaniate ads 10% Leeonon t0 ote a 





enwana st o Vtee TDi 2 soot of eldayag ohn AE dion a. 
a fon enw ¢h tadd blot tnoe edd bas oe ig i a 
eid sacs bas iXtkoubivtbat cuore, Yo tud Yangnon oad ee 

oham aeod beat ston wae IT “Amores. Sidelines ase comaent } 
nod dad banmeexena) ot han. yieeo ot ban yaagaoe ot at: 
~oit »0 neat ‘to nua oald ag tw henson ent “a ae | 
nodt wean oid vangase ‘paid w om ote amiwortor y-anort «at ; 


Wid YM aus 28 hice Maistre kote amen Rel? Pe) ey | 
te onan » ont at tet te onan oct of swoyolana used re met 


St a ad ee, im * onan Mirena Pr Set 





Hately v. Pike a note in whieh the Exposition Depot and Hotel Gom- 
pany promised to pay to the order of “Adolph Pike President" 
$20,000, was signed *The Exposition Depet end Hotei Commany, 
Adolph Pike President, Pli Brandt Secretary," and wae inderoad 

as follows: “Pay to the erder of Walter ©. Hately. Adolph Pike 
Prosi dent, Yor value received, I hereby guarantee the payment of 
‘Mas note and interest at maturity, or any time thereafter." The 
court hela that the note was payable te Adolph Pike individually; 
that the indorsexent was his individual indorsement; ant that the 
word "President" was deseriptio personae. It is obvious that the 
facts in the ease at bar are entirely dissimilar, It may be stated 


in discussing the question in the case of Hately v. Pike, supra, 
tne court quoted the following language from Daniel on Negotiable 
















struments (vol. I, see. 16, 4th ed.) which tends te guppert the 
nts tion of counsel for the defendant; 


i "Where a note is payable to a corporation by its corverate 
‘Bame, ani is then endorsed by an suthorized agent or official, 
with the suffix of his ministerial posttion, it will be regarded 
that he acts for hie principal who iw diselosed on the paper as 
_ the payee, and whe therefore is the only person who can transfer 

the legal title.* 


The Appellate Court cage of Lumley v. Kinsella Glass Go. 
Fa, Supports the contention of counsel for the phaintiff. In 
le Appellate Seurt ease of Dufiner v. Ball, supra, the question in 
itroversy was not decided. “he court expressly aaid (p. 52h): 
ks "Counsel for appelinnt and counsel fer apvellees, in their 
Tespective briefs and arguments filed in this court, have dise 
useed the question whether the note described in haee verba in 
Special count, is the promise of the corporation alone or of 


z + and the appeliees jointly; but we do mot feel called upon te 
ease? question, because it is net invelved in the atate of 


In the Appellate Court case of Night Hawke Burlesque Co. 


want Llie, Evansville & & naglidated N.A.Ge, any 
ij ueation in controversy related to the following due bill; 
le, Ky., Apl. 20, 1990. Due S. J. Gates, agt. L.%.& St. L. 






























-noW 1686H ban toge@ motrecgem ead HoRiw att stor ® 2s 
®tueblewxd oak sty Leha® Xe Thee ‘od ot wen vy : 

CA einted Latou fries toqed no ttle oqxtt ext* hemghe ase at 
‘Bewrobau aw ove * Wutereed: thnaed kate sfaob tenet oxi 
ontd ig Sona ctedar .0 x0thaW te eb ‘edt as we : 


a oie hoe 
E te 5 3 


“te deeonngng afd voenwxaiy wore t .bevieon eg lay i simi 


omy ae 


oat * susd'teeaost oan we 10 et ttstam ts tanned bap aten 7 
feltewbtythat ‘oun datos of oLdeysg enw oton oad dass itea ’ 


wad sat! bate itaemonzohat Loublyibat end ony tuomeatobath ons 
Pe hk ao 


out tadt avolyse @1 -emonies oitaizessd gen "du taore" 
; BY, i pe, Pty aS Gas 
setae ad wa 7 a itabends extine ous md ts snag edt at 


Ny 


Ait sBAAT yx loda te anes ous at aotveaup eat yateauon tt mt t 
sidal toaer mo bo hoot sox enous f paves te’. ont beveup 


ee ee ee 


‘ouia sronena 0 aise? fp ate (be ane aw en i. fo) man 
Afuabae teh, ost 07 Eee woe to 


| ae 
esexor oti wd gender ‘ of pyre on ‘ak eton * steer 
LtYoute: a tngy: Hae ae od Dewtedis medio haw! 
bebtaas ‘od ae ag | ibis ial ok enue ae diet 
Y, Peg Re ben alee & ode acy * 
arid ag pil aos eae ott as orotors 29 ate San 
Pa ee A et “footie ca 0 


495£0 elionnds a Lous. ke geen dtund stalleqad oat.” 
a .Ythdetady sot aot Leansog to oobtagemte ed? 
ai avltecwp 90) paaaue «fied oN ee Ne mee tenet ae 
7(f88 «@) bhaa yeas teem, draped, matt _ shabhooh to 


tied? of ,goeLlacqe oxet Lanuutga.: bite Sou Shaged ta'% «. : 
Pega Ho nin ~tewem alfay ab boll af com ts bus steixnd ert 
bodivoaeh stom sq) cteddedw aaldeoup & 
it eo ery 4  Moitaxssazves edo Io ea ote “eat al Fauop ta 
ot sony boting feet dat oh or ded yyttasel ews 
to sfate acs ak dovioval von al dis herria  Molreoup dautt 


ve ny aided a 








a icen 
ee a 


, ee in Se 
by Wain Haha hi Cy he | we & Hee aN viae j f 


P to aaea., e400 Pune at 098 03 
“gaia Sanh, sneak oaks : nian pad aoe ah om 
cok 9K, BoZort Zook. steer sBotad, vhas PS nO Oh 18 £06 40 et ms si 








‘ 


Gen. R. RK, the sum of Forty-one doliars and 60-100 fer transpere- 
‘tation 16 persone Louisville te Bvaneville, ind., and 337.61 in 
ash, Total, $79.20. J. iL. Cain, benager Night Uavke Company. * 
he court said (p. 5): “This due bill, of itselr, furuiehed ne 
@vidence entitling the plaintiff to reeever frou the defendant. 
the emount mentioned therein was payable to 0. J. Gates, not te 
“the Yrallroad company, and the addition ‘agt. L. &. 4&4 St. L. Gon, 
BR, R,' ie a mere deseriptico personae’ not changing the legal 
effect. This due bill wae signed by ‘J. L. Cain, Manager Wight 
rt Company,’ not by defendant, or by one shown to have lawful 
rity to execute the instrument on its behalf," It is ap- 
4 that this cage is not in point. 





Further in suppert of their centention cgounsel for 
“She plaintiff sited the following lewa cames: Heffner vy. Brownell, 
7 ) Towa, S91; MeGandless v. Belle Plaine Canning Co., 78 Ia. 162; 


ay 


hers Dubuaue Mattress Co., 87 Inu. 346. In the case of 





effner v Brownell, a prowissery note war signed "Independence 


ie. Go. v. B. I. Brownell, Pres."; and the court said that it was 













@4 that the company was bound; snd held that as there was 

| te indicate that Brownell was president cf the corporation, 
) was individually liable. In the ease of Katthews & So, y, 
i me Mattress Co, and Jehn Kapp, it was similarly held that Kapp 
as individually liable on « note signed, “Dubuque Mattress Ce. 

in Kapp Pt,” In the ease of Hegnd) 





HUES H. Weasell and A, J. Hartman, a promicsory note was 
gned "Belle Plaine Canning Co. H. Wessel] Secretary, A. J. 
r President;* and the court held, following Heffner y, 
L, that Yessell and Hartmen were individually liable, 
wn be Seen that these Iowa decisions support the contention 
sel for ‘the plaintiff, But in the subsequent case of 


1 n - oe & a BEG Kae 1riner / C¢ 8 OT) | P ® bay Th gti: nk 


< 



























~Tagenar? tot OOL-08 bar want fon pheonexet, Yo sare nee Moh 
" Wd ite, 


oe 40.786 Saw, » abit ' 12 LL Leper’ of o£fhve tod enowteg ee 
* Yate para’) etven Ri ity att exact mend ak t ; 20808 aver 


ont hedte Lowe's (uses t te yf be oub arene (08 a) btaw reo 
Renee “h SO asa 
-tasbneteb oxid pene xovaoo °3 Wibsntate out Baila tens 


of $a s80)a0 soul PY 3 > ftdavng oan mses Neaoliana 


ages acct "yathyatavts ton "enmoexeg obsedza00k @ orem # at & | 


pie 


digi topacsait , ated woh 7 x hougte eal se oub onset 


DUD Siw CoD Yam ee 


terms ovad o awe ono ws ‘te «$tinba0 top we tou Md a 
PRS A Ke ¥ RY Bah 
oe ot F *. hosted est ne “tromyrdead le véuoore ee yt 


Fl mig wake “he Dy 


ark ee statog ak tea et oond ohie tant 


we r CaN ie ipa 


wo iwanyoe “apt jandneo shone to drwaque ot sonar 


Vy ua wrk Ee 


koa 


i 32) yy 


ae freee avo guwofter one bed to Ritd, 





‘te uap ould a ORE wet 6 + +228 as vost 
pone biiscenal™ bo cigte ea bo | eres Menem Btewaie a3 


am ab dasit bias Prue walt haw 4", sorte 4 Lito cower ar os 400) 
aaw ened ee tame fox hoe rhawod enw ee eee te ‘ 


oY 100. attest to te seme ont ol sehde hh cela tk 
Gen Hane HLow Glantiate aew an. 


ee a ey cemetery: ccounet et ee pers 7, teren. 
aX. xea) thay gittwas ‘Lott Died fraroe wait baw “jy tnob lw 
SL lanka geet Riek het wee adideat i cou ats 
© Bokinednes. ext atocuie. soolahoad amdt nia 
te nao Youpemtea bid — | 








196 Ia. 64, a contrary rule war announced, ond the onse of 
Heffner v. BSrowneii Was expressly over-ruled, the court saying 
(p. 75) 
"We are reluctant to over-rule «a prineivle established 
by our prior decisions or te express our disapsroeval of the 


result reached in any given case. We are, however, se firmly 
and abidingly convinced that the conclusion arrived at in 


ROUT, What we tact decline te fellow then as prececente.* 
In the following Tllineis Appellate Court deciations 

it has been held as to notes the signatures to which were in a 
Similar form to the indorsement of the note in the case at bar, 
that prima facie such notes were corsorate obligations only: 
Bhompeon vy. Hesselman, 132 111, App, 257, 259, 2962; Derby vy. 
Gustafson, 151 111. App, 291, 285; Northe rn Goal ¢ ‘ 
fyrreil, 133 Ill. App. 472, 478; F 
Til. App. 390. To the same effeet are the following cases from 
other states: Reeve v. National Bank of Glassbero, 54.3. J. Law, 
208, 211; Draper Go., 87 Mass. 
(s Allen) 334, 339; joagh, 150 Maes. 140; Latham y. 
Houston Flour Milis, 68 Texas, 127, 129. 
5 In our opinion the indeoraement in the case at bar was 
nrina facie the indorsement of the Wational Salvage Company only 
one not the individual indorsement of Harry L.. Midler, for the 












“eason that the name “National Galvage Co." and the name "Harry 
&, Widler," with the abbreviation "Pres,* following the name 
“Hationsl Salvege Co." imports prima facie the relation ef prinei- 


ond agent; and inasmuch as every cornerate act must be done by 







atural person, Midler must be deemed prima facie to have exe 
7 ed the indorsement as agent for the National Salvage Company. 
: 2, 54.5. J. Law, 208, 222, 

Vurthermore, if, as counsel for the plaintiff maine 


Min, the indorsement constitutes an indersenent of both the 








‘te sean ant hae vpnaemnsaion oew efee yhetdion a bo «al , 
egalyaa dees ott a he Livrt~ters psa ‘saw 





(ee 


tetelideter efelositg s eleteteve of Inatonior ete eto) 
add ‘to fSevroteqeeib two anorgee of he emoletoeh solve xe 
ytawth om ,revewodl ,ota 88 .weao aovig yne Alcbedesed sf 4 
ak ta bovine apiaeloaoe adit sadt teh pp tang hed ban 
aeons tedsie wet a baw , OTshia: TEAR 
" kine boot sa mods woite: hs oe 






ORO: RES AU ae 


exotalosh Pawod ete sieqga atonttst salwostot ome as 










a at ete do but og sets tanyte ons aeton of a sox yeas 


"rete suotiagiide sterertes. or8w neton Mowe sia aaa 
“sEReted pee , eee THR Wh LE rex HB MME 
2 faed_aendeaoslisot ;28S ,188 .a¢h eer ar 
88 £ ame8-bog_ steno eas sere Pa eh 1 eae M po 


mot mone Leaisennt 4d ete sost'ts onse oat at os 







Were. ie ty BRS MAD Oy 





pa jObL email OBL 4 " 
“OL TEE staxe? Cy i 








asw ‘asd ‘te none sid sub taawos en st ans nulatgo 100 ya | 


onset mtd aaiwester * eons notte dvorssa ons | aber * am ro th AM 
stontxg te nettaier ouit alge saa etround 2 A ahaa 






“£8 oved oo atoo't sas balan beuoeb J os from tsa 
PORT) SRE 
«eats gato opav ioe fanol ta oat ot jaone as smeaows bak 
is ai 
Lis 1808. smad ot hed 3 Ns resins 


3 Fy 
Nola 


onion Vidktatetg ouit ba Inos00 98 big ae git, 















ect atod Ld | tagane eh, an pte ig 
AF AR MGT 


miss aud ‘i 


wa 
wvhierid a 


Bational Salvage Co. in its corporate capacity, ond Harry L, Widler, 
in hie individual capacity, then counsel are confronted with the 
da emma of explaining who signed the neme Netional Salvage Co. 
Harry L. Hitler 4id net sign it if the signature Harry 1. Midler 
with the abbreviation of “Pres.” after it ic te be considered as 
‘the individual signature of Harry 1. Kidler only, the abbreviation 
"Pres." being merely Jeseriptio personas. In other words, the 
Single signature Harry L, Midler cannot serve in two capacities, 
Ramely, an individual capscity and a corporate capacity. As the 
company wae a corvoration the signature of the company could be 
made only by a natural person, The name National Salvage Co. 
‘@lone, without being followed by the nawe of some natural person 
“purporting to have authority to sign the name of the corporation, 
“Would not be prima facie the indorsement of the corporation. It 
follows logically therefore that if Harry L. Midler indereed the 
Rote in his individual capacity owly, then the National Salvage 
Go. has not tmdersed the note; ani that if Harry L, Midler indorsed 
the note as president of the National Galvage Co., then Harry L. 
‘Midier has not indorsed the note individually. According to our 
‘epinien, which we have already expressed, Widler indorsed the note 


ae 


i, the Netional Salvage Co. ae president of the company. But as 


oy 











the note is made payable te the order of both the National Selvage 
Go. and Harry L. Midler, the note, to be complete for negotiation, 
be indorsed by both, 

Section 30 of Art. ILI of the Negotiable Instruments 
provides that if an instrument is "payable to order it is 
“3 tiated by the indorsenent of the holder, completed by delivery." 
7 + 41 of Art. IIL of the Negotiable Inetriments Act provides that 
@ an inetrument is payable to the over of two or more payees 
; indorsees who are not partners, all must indorse unless the one 
nao: ing hae authority to indorse for the ethers. It is se held 


























edd ait by sesnetene ome Lemmas amstd ele, nee A 
te) agar ing fasniie® omen ott donyin gaiw yakats Lee” toy 8: 
£9 LH 2% oi apaeal menennts oath: = ob rh em — ARON 


waitin sis ae noth Bi * vera v2 


‘eas brow rastd 0 wi “BABS TOS Teen ¢ eioron patter gs 


ahi toegee awe mh eTTOR tosses aoLhhit wil eek outers te ot 
im sae Or 
esis aA Yeloaqea pderenses -* hae ‘loogus Foubtetbat as 





od ‘bLveo wrt wae eet te otedasy te ent ‘wok tare: i090 a ‘av 
| +00 egaviat kano2iaii ern sat ‘moateg ‘fawdet ae ‘lite 


moored tetwtan emos ‘io Sua eit xd Sowotiott ‘pated to sing 
.aongerciriee ext to emit ost aie of Whreitus vail of jars 


3 me ¥ 


Tosischinaies icin amas obad oe at ane 


epariat kenoldolt ould Pore setae ‘eo aaaao ‘tewbtvtbad ‘aia at 7 
hawzobad re ib ba st ‘ertad bs act bis jetom ‘one ‘beeconad dom wast 4 it 
ot yrtel ‘hei a0 opeving Lenol dak ‘ona to fae tawde a8 Vien el 
two ot nakbroeva “ifoub ivtat aton ‘odd poatehak | ane 
ston out bewtodat woth hil shonastaxe waorke svat aw ia 2ate om 
ae tw a ynaane oatt te snobtasra wa +09 euavine innettatt > 
ogen sion tenotia ott sited ‘te xabr9 ‘oul? ad stdayey oben ad ngon 
. tok tetd open “ot ateiquee od oF eto ott ston blt L yexett | 
ta et as, me “ stltod ye pom abet edt th 
weRR Cre viel 


‘adaomrrea nt efdaks ogo ste to ‘pix a Ye 0 mohioes 


ah th coban od oideyae" ak ‘Seometend mo XE ‘pane ited : 
# exer ilos “a bese cymes ‘tos fod ald te dcomavebak suit w beta sones 
sans seb. vetq ‘toa adcenart gent ‘eidotdogea wild Ye bestiid toe Seki 
BoIYaG exon xe owe te toste old of bo hdaaa | Fis ist ae tet 
one ond eselay serobat ewe ‘Lia setoadtog bias pond * asoutobal 7 


Ai ei a a et i 


biod oe ad at ‘setsiio eit ‘tot “eaxobat of yoix 


oie = 







AVE Hi, 






Band 
pier 


¢ 





tm Grane v, Kereantite Savings Bank, 295 Ill, 574, 576. 


It is a well established rule that a promissery note 


has no valisity until the name of the payee appears on it as an 


indorser. Blatchford v, Milliken, 35 111. 434, 440; Yout y. 
Mekhart, 209 111. App., 30, 34; Hoblit v. Sandmeyer, 166 Ill. app. 
‘431, 435; 7 Cyclopedia of Law ond Procedure, pp. 71, 792. 


in our opinion, since both payees did net indorse the 


not in the case at bar, the note was not in proper form to be 










L at ly negotiated, and coneequently the plaintirfr did not aequire 

@ Lega title to the mete. it follows also that the plaintiff took 

at reenet to ali legal and equitable defenses, Virst Sati ong. 

Ban: Centrelie v, Strang, 72 111, 559, 560; Sturges v. Miller, 

r ma. 241, 242, 243; Pierik v. Mueller, 201 [11. App. 108, 109; 

at Jeffers, 127 Ill. App. 307, 310. 

| In thie view, the trial court committed reversible errer 

: ‘giving the peremptory instruction to the fury to find fer the 
intiry. 

For the reaeons stated the fudgient is reversed and the 

Pemanded. 

REVERSED AND REVANDED. 


y, P. J., and Matekett, J., concur. 





























eve ove VII 208 done enttyed oxtiiaote® pv eeedd 

‘oton yrosolinwr «© tad efor Bode hiiague Tew’ et erin uae mbit 
die av 2 ae stesera seyey oie To ember “Be tha Boosts 
segagt po8W (bee Lert ee guettee Pert. 

Jeg £27 Baz <aoamiaet vt 1tdon yee 08 /qga liter ‘gon’; dial 
ee Lee ae {otwheoost hie wil Ey nea’: i 

ed? serohat fon bIf deoyeq sivad #enta jab takes te ak ne 
‘od OF vive sdqotq Ot sok aaw “6fom ott [ted 36 Sano Mt “ak . 
atigpss tos ‘bth ‘hstateaty ot ‘yltie upoano” ‘pm be durtouony poet 
dood Ytitate Ly eu? saat wala ewe tto’s at 8408 od oF onsed 
degoiiel gezst snowing tas eked tape pan fidget the’ oF fateh ry 





see enh te " weg “Sorr Oe rk (eer rch a es J 
xorie elsidraves bed limcgn ditres ‘Letad eat” ‘GUS hepa’? 


‘eae on BAN o Sat ‘was nt wottonr sons Bani: + a a 2 


a a 


satan iaihadosien aes Chwarae ewan Hew aa bE 


wo Line aR Gm. 9 NERS font 2 ‘a a A FAR eR ee take aay tr sil 


stHondea ‘Pas st wn 7 
ont oth a ee hit | a 


viidow ve beer atid of ¢ 


igen ENN Komeda wae olay “tudes ue 


i Beaten 


ois “kee UR, nod Sots 

‘S08 Sete Ce A ee aE el tdnwed tax ORS Gaeatit Mainichi Pe 
UW Lae ate fe freee namie ea aaah a ie Pk 

YR RPMS PAS ne ats | Po way By ih ae ego oy RS A aa “yt i A *e ty ih i 
HPN el ah ib RE Bae AS na te W} rf awn tare wh toe 8 ' ee | 

Bibel Ras MA ORLL Apne Ae admny ” dont wes oct Biomed | i 


ey A ak ee I NC SC PB wh oe el ee hare oy beh gatos 





47 - «31277 


SINCLAIR REFINING Co., 
@ corporstion, 


APIEAL PROM CIRCUIT coURT, 
Appellee, 


GOOK COUNTY, 


oT i ee ae A 


Fw 


Ve 


Lours PAVIAKOS, trading 
as Nick Pavlakos, 
33 Appellant. 


i gn Mel i arg ir Ni aes 


mm. PRESIDING JUSTICE GRIDIRY DOLIVERRE Tag OPINION OF THE COURT, 


On May 14, 1925, plaintiff cemuenced an attachment 
suit on the ground of non-revidence againat louie Yavlakoa, 
“trading ac Hick Pavlakos," to recover s balance of $1298.31, 
@laimed to be due for curtain gasoline, oils and lubricants 













3 li and delivered during the months of suguet, September and 
” e 1924. Under the writ the sheriff at tached certain 

na estate, known as 6707-6709 South Reeine avenue, Chi¢gageo, 
by Louis Paviakes, who was a resident of Athens, Greece, 
BA then in that city, Plaintiff's declaration, in addition 


horized agent for that purpose, a gaecline station located on 
4a Teal estate; that Bick Povlakou, acting ae such RTI » 

the merchandise, and had paid for some of it; and that 

Was a balance due from the defendant of $1298.31. A general 
of defendant wae filed by attorneys and an affidavit 
@, sworn to by Mick Pavlakos. The substance of the 

: lavit is that defendant did not control and operate the 

. Station but thot his son, Hick, did se on his own 





oe 
ps, ae ee eta 


ee 


‘w=. ¢- Ue 
Sarrn$ 


a. 





= eens 
a aie > 





v 
if ‘gis Hing 
{TMOG TIVOALG MOKE WANT, cliente 
aTeMyoR 2009 segaranrurne 
ES “ a een Bakbend og 
Ses fier x ee VES ae 
: ssl suena nets 


















THOR mt 8 noruTsg, a, emmy 180 180 “gortavt + bia 


BR? WOR 
Promlonsss 1A bebreiaton’ “*tomtete , eed: ete ball 0) pa 
“ g@kagvet elwol seattingy bosiebtues-nbn % te saw at 
Ror te epmaled s teveoet oa yal ee ce v7 
* “ggmmetegnt bas ele soniLonen ditadane tot eae bead 
Dovid rodunsqae PRD Xo aid wom ‘ods yakeed 
— BaateD badtosd otal Valdes “adi iw ai “yb 


Ta aN 


minntnne at : aaaneatie’ oiritemter aie | iy | 

sh dots od .tauoe Lotoogs a bemtadmoe veces 
ssotalvat atwed ,tusbowted esis atiaes bisa yatunb- dontd 
qiud hao won at .corntvet talk swords baa YE 9 ' 

no hossood nokiede/ontioamm o yRaoquig Jade or da0g : 
adaeyn Mowe va gelioa pandatea% Bok dactt yotesan: taor 

sald bow qa22 cmos tk bbag food bets soakbuadosom | oad ons 
feroney A ohbs8OSLE Yo jmabnstod add work sath” epmlad a aoe “" 
divabkite ta hae ayorrcosds qd boLit aaw- jmodneted te & wf 
edd Yo sonadadua atY  seodakvat ao2t yd ov axewe: - en 





ais average haw fotines ton bib. 
mre ait oo o@ bEh to kW nee wie gata’ toe snnente 


Ae Ny 
ft Jou 


o2~ 


account; that defendant did not purchase the merchandise or 
guthorize its purchase; and thet defendant was not indebted to 
Plaintiff in any eum. A trial was head without a jury, at whieh 
two witnesses testified for plaintirr, ond Hiek Pavilakes fer 
‘@efendant, and certain writings were introduced, including a 
@ertain power of attorney to Hick Yavlekoe, executed by defendant 
om June 2, 1924. The court found the issues for plaintiff, 
assessed its damages at the full amount of ite claim, and, on 
May 4, 1926, entered judgment against defendant fer $1298.31. 
This appeal followed. 

The main iseues on the trial were, whether Kick Pavlakos 
in Ordering the merchandise, did eo on his own aecount,s or ag 
the duly authorised agent of defendant, Louis vavlakes, and 

“whether Sick or Loule owed the claimed balance (ae to the amount 
of which there was no dispuate) to plaintif?, it appears from 
oe; bills rendered by plaintiff to Nick, in his nome, and 
tron certain letiers written by plaintifr to Hick, that eredit 
for the merchandise wac given solely to Bick, It appears also 













em the testimony of plaintiff's two witnesses, Matthias and 

» ite employesa and whe sold for plaintiff the merchandise 
oredit, that neither ever saw defendant or ever had ony deale- 

: OF correspondence with him, and that the eccount on plain- 

t 8 books for the merchandise was ageinat Bick and not defendont. 

It also appears from Nick Paylekos’ testimony that 

at's real estate was improved with a store and eseoline 
ition, with the wowed accompanying tenks, pumps, ete.s that 


























ao eathnadoiss of3, eeasosug om DED imebweted dackd 4 Same 

od beddoMt Jon enw tnabanteh sale ban jveodo tq ast 7s 

doidw 22 «¢uwh o suodiiw bad wow Lakes 4 raure Ye ak Dekdele 

oe polekwat Hort Baw «Ythenbalg 20% sorttent Fe ite oi 

o patbuiont ebeoubestal oTew apakd baw aiagsec. bee a 
B duabere to gd boTHOOKS vodtervet aot av wonnantin: te — eH) oh 
;Trisataly sot sensed only Haser FtHoH MT: 4OROL oh “a 

mo ,bua eabeko att to jmuems LLu ade Ja ogame ast , 
Ug best vor smabuerod sankags sammy tat beasane ace a a 
: -  pbowolLer Laoage « | 


.ouan Eeked: en ma sentosh emathannisil ate PF 


aounlvss. Bork veddode 
HS SE ,aMvages HVE ohn ao oa La a Oo hboeiaatonsar: 968 ® 


hee cagialves, ehvod ,smahanted To: ORepe: 
drome wed 22 wa). genelod demisio ods bona” abwed so ont 
BOL BIRLA th «esemsale OF (etauqekh om: esr sineutt 4 
ben aga abs ih <RokW of Bidiaiale ys dorehses: aneae: 
thdeus dedd aHolh os Vssabels ve medaka: areesoniat dad | 
ene araorge Gh. «teal oF, yleloa marys sav. 8 | 
LidsoM qapennatie owe o ithsatale Yo -oromtond: ‘ 
 gathaaderen od2 Rentale toh dion ody bae: anoyolqme eth 
oLagh, ys, bath FFs 7% drape lob wae TeTe sedition dad 
wptheiy mG snNQnDe Od asd, Bt ath, id bw. eonebaegeosxen 
tmabao'tod Jom bee wotlk saniage sev eatinancsen emt “set aood 
Peaks, NECES OOe Saadalwet Bait ork Fh al wk BT) 4 
onkioang pas evove a Mike, ovo 288 ossteo. Lnoe alt - 
Bald 2.089, «sng aed with eraGeeOOR bowen ag: st 
a Sune te eH of Jew datnibero eb nBSOL, aes: ro Hinem 6 
oxyixogeh mid od. suodwend, sais aonmhe eve oxedd | het 


NS ings she 


aattonne A ee, Son 108 HERS 200, sont 9 


i 
i 


Dem Beh 











Fata ati Md Sy ey aly ot a 


-3- 


etation, who remained ae defendant's tenant, selling gavoline, 
ete., wntil curing the month of Moreh, 1924, when he vacated 

the premises before the expiration of the lesve; that when 
defendent left Chicago in June, 1923, te take up hie residence 
im Greece he left the munagement of the real estate and the 
Gollection of the rents in the hande of the witness (his son); 
that defendant was desirous of selling the premises, and that, 
when fagler cdaundoned the premises defendant eonsented by Letter 
that, pending = esle of the premises, the witness might operate 
& gasoline business thereon on his own account, and eclely for 
his benefit and not for defendant's benefit; that when the wit- 
Bees made hie first purchase of gasoline, ete., he informed 
Matthias (plaintiff's ssles agent) of the above facte, and 
plaintite extended eredit for the merchondise to the witness 
inéividually and not ae an agent for defendant; that some time 
uring the summer of 1924, defendant, being desirous of making a 
‘Loan upon certain of hie Chicago real estate, forwarded to the 
witness &@ certain power of attorney, dated June 2, 1924, 


(introduced in evidence by piaintiff); that under this power 


ih 












of attorney the witness made such loans that subsequently, 

: the effortea and negotiations ef the witness, the premines 
B question were sold to the Standard O11 Company, but the pur- 

: r 2 refused to receive a deed therefor from the witnees (acting 
attorney in fact for defendant); and thet the deed therefor 

’ quently was signed by defendant in Greece, waa there duly 
MRowledged by him, and the sale wae duly consummated. 

: During the trial, and before any evidence had been 
tending to show that Hick Pavlakeos wan running the 


Station for éefendant and as the latter's agent » 


Eien = ack aman 
Se 






ee 











vautdonsa ‘ekizon ‘tuanod oSnoboereb eo batkomex enw hi 
“S peanenw et todo week (Moda Yo sdiom oid ‘pat ie re 
tay sash tonnel ‘ede YO moksertyxe ott” ‘oroted | aoxiwong a % 
eoeish leer okt we eed eF oher » oct ab “eonioka” shot ‘Va tabire' 
“ont bite oiates iby ony’ %6 smomegacom ay ‘¥ter” iat 48 rid 
yea aba) wana? bw itt ‘ho “@hivoat oat’ ‘at ek ond to ‘Wo tba 
| waie | bea sboalmany ona Prise) te ouorieed anv “paanaarsi 
moedae: xe hed souies ‘duahao tit Weulwoxd ‘ont bodacious oye I 
esereqo ‘tala toe sound ie ‘ot? (weatmong of? to aha filte’| 
«ot viotoe hens stewoooa ame awe oid mo mooted? ason . 
“Apkw old! woaW dat) (4itiaed elstadedtod te aes Tinie 
i a al 


















“tno tek ‘eat ode poullovan te bait 
“iy sadont wvods ott Ye’ ‘(imoge ‘solos ott by 
" waontd ber ‘ota ‘og Suibmartinos’ ‘edt et espe dots one t 


rey sual wh Wah iS Wa 
emis aes ‘bode ‘{omabaetob toh tmoas ‘ne co % 
ons 


a gatden to euro ‘galed (taabooteh bet to comm emery: 


ad ed bobuar6? sotetaa Lnox ogeoldd abt Yo beaters ; 


isa yaloanete a Aas ise ee ni 
hrc a east ‘bosab <yenred as “ta xowoq Hin? 500 oe one 


So pian tee r O sp yh 
“gawou ‘gistd voham “dastd ‘iCHusndaty vs ik oak 


ante » Beata ms lus ‘wih : 
“vubdnoupendua ‘pot inset dows pas rere i's f 


, wore ee 
sontmony, ois ‘seaoaste oda 0 suotsctsenes bem adxette edt i 
Re ek! ii ey ht aay ap ee 4 
am ‘oott ‘oud ong £20 bashed oda oe bien. otew molieow 
uct Rhee STR ae? 
beanies 








' gations) uaeueiw ‘pul soz? “rolereds boob a ‘ovioaes ot 


Lb aki i ek a8 se bis AY Saye Ban PR mR ty 
qotorentd ‘bab ‘and teat ‘aus j (smaivere to 10% oot ak oma 
‘of euunetend tie adele Ghent pane 
via eroniy ‘aw es00008 at danbne tot eet a aaw yd 
eh oc aa thar ata uso ad aes. ak ie + Se ht Bes om 












sbod mason vist asw efon ods ban qeaid yd be bein: 
Naik a iE ap ‘ahs a Wig seein a 
Heed bod somsbave wa ‘exptod bas tabad oe | 


os RD ah AS et j 4s een hit “ahaa Pye — ~ 
esta patumirt naw setakvat ao at ‘gene woe o2 gaulbaed 
Se a Bet Me HE NE ee ee 
senene e’teseal edd ao baw soobmoted tot moltedte 





aie 


plaintiff's witness, Matthias, wan allewed by the court, over 
defendant's objection, to testify aa to a certain declapation, 
Oleimed to have been made by Nick Baviakes to Matthias about 
Jume 3, 1024, when he solicited of plaintiff oredit for sertain 
@acoline, etc., vias “This property o11 belonge to my fathers 

IT am running it for my father; I om handling everything for him.” 
Biek Paviakos denied making any such statement, eo far ev it 
Pelated to the gasoline station business, at thet time or at 

any other time, to Matthias or to any other employee or agent 

of plaintiff. Ye think that the court erred in allowing Matthias’ 
said tectimony to be admitted in evidence. I% 4a well settled 
thet “an agency cannot ve proved by the mere declerations of an 
Qgent, when the fact of agency is in issue.” ( Prest. * ve Tows, 
225 111. 138, 148; c ! Gehott, 135 Ill. 
685, 668; Merchants National Bank vy. Nichols & Shepard Co, 

B25 Ill. 41, 49.) Im she last cited case it is anid: “The 








source of nuthority is the principal, and the power of the agent 
oan only be proved by tracing it te that sowree in some word or 
act of the alleged principal.” nd we fail to find any competent 
evidence in the present record tending to show that the defendant, 












Louis Pavlakos, ever authorized his son te engage in said gasoline 
ste Sion business in his (defendant's) behalf or to pledge his 

| eo: endant's) credit therefor, or theresfter ratified any such 

. by his son. On the contrary the evicenee clearly shows 

a Hick Pavlakos purchased the merchandise in question seleay 
Gwm account and thet eoredit fer the some was given te nim 
dually. Plaintiff's counsel contend tht the power ef 
above mentioned, given by defendant, waa broad enough 


language to authorize defendant's som to operate for 











is 

























z9¥e + taro ons ‘d howal la enw cas dad Jal stuenstw arvats ; 


2 Pe 


rmoksagtoad iad x99 s i“ na Wdsand Lol _tmattontde tens 


(rede Md ‘oe mpraded | fhe wreuest eae veiv wan, ae 


Er. as “xt en staomednte Psi we pthxon ‘bokned oe fe 
to 1 enka ‘Poats ta saasatnud wo hseda smitonsy wists oo ‘be 
dnepe x0 oeyotgaa sasisa vita os 1 endsks dai ot coats “tilde 


"enhcaait wstwolts aut verse S108 ports vosts ada ev lyatda 
OR eRS Oa be 


potsion Liew wd n ssonodive ut ore imho og of ‘wmoaisaee 


ua %0 saoltat soon wren ond ve evox od senna “xonoge 
ah eRe 


seen a setnoss) "sous mt ak vonoae 9 teat oad ast 
Ls eee daode. 


ait | tbtas at cy nase  betke Sen ots at (eee th 1 a 
snags outs % owog outs bins <Lagtomtyy outs ok ‘etdzedana te 


SRR NEWS ON Machi Me 
“Ye beow onto ak sorue: ‘yause are aatoont ‘wW hovorg . 


4 ve a 


venta ne ‘we ‘a? ot Kho ow bes # Aagtoatoy honedta 


ont kong ‘phoo ab epee ot mon ‘ahd bexizedins ‘sove ia 
| nel apbele oe Lbatiod “(a davome ton) nid at aaen ef 
stow ans poktieer ‘rotteonede 8 ‘etotoxedts iiboxs ¢ 
ewosta Unaode somohtee ond quer inee ead 0 sm98 “abst w a 


ORT 2h eheat es 


elalon notdnouy ‘at ea tnasasoat ‘ent bosetinug 0 sodalvet 
ahs oF wovha Baw Mate ‘enh aoe ‘ghterw dots eng “one Ruf ori 
bad 19mg ‘odd Soda hmedmor Lenakoo ‘alytdentost | 
sgsons baoxd uaw stnabaeteh W sevid hint wi 


“ 8 4 Repke a bes 
‘wot obarege ‘ot moe a" sashao eb ‘paizedena os 

His wie futile Bee Aegean aa to ghaiey awa have py 

mi) 

‘i 


SOL SNe a 6 yaaa!) Ur ta vai Mi Baa Ni? aad S| 


io 


defendant the gasoline station business on the premises, After 
reading the instrument we cannot agree with the contention. 
The powere granted had reference only to the sale or mortgage or 
Lessing of defendant's Chicsge real estate. And the clause in 
the instrument giving esi¢ son the power "to purchase any personal 
Property and real estate from time to time ae he may choone," 
when read in connection with the further Glause, *to make ail 
alterations and improvemente” upon said real estate as he may see 
fit, clearly refers to the purchase only of such personal property 
er chattels as might be necesaury for the mintenance and upkeep 
of the real eetate. urthermore, when the firet credits were 
extended by plaintiff to Wieck Pavlakes for @usoline, eto., the 
Power of attorney bad not been delivered and at the timeswhen 
Plaintiff's agents extended the further credits for the mer- 
Chandise sued for neither of them hed. seen said power and plain- 
tiff could not have relied upen it. 

Tn our opinion there is no evidenee contained in the 
Present record tc support the juda@ment of the court against 
Louis Pavlakos as rendered, or which sould support any judgment 
against him in cny amount in favor of plaintiff. It is clear 
that Mick Pavlekos, and not defendent, is plaintiff's debtor for 
tho Value of the merchandise sued for. Aevcordingly the judgment 
of the cireuit court appealed from is reversed without remandment 
ef the couse. 
' ‘ | JUDGMENT REVERSED WITHOUT REMARDMENT, 
"a amd Barnes, JJ.» conoure 





c 





“aos oon ons Re onetlaad solsaia enliloarg odd pe 
atotiondana asd a3 he so1me sonnee ow Smemustd anh eid, pakbs 
19 egaptien we aise on? oF yleo senate tes bad Sosaomm acon 

(Mk onsiado ot MA eetetee Lnot onooidd afsaadne ted, Yo uitas 

iemoaney we eantoxug os” qawey add mow biae salvin snomunsant, 
) Pamancstes Nain off, am OLE OF, eon kd mote" eaacaw fa0 baw yaxous 

List gale Of" .senake xadduv odd ditw Kektooubs Hé, hoor am 

oon Yer wi eo Statae Last bin soqe *adapmovonyal hoe an0 2 
yrenqeng Lamontad down te vino sandowg ont o¢ ate'tos vieaake 
 qookeyr baw sousmednion acd 20% Venwaswen od Migte a a9 boat 
exaw gthhese dexkt axle apsiv. + Monatsh ass setedee. dave 9 : 

Aad, qente sonhhonay 39%: moat wo% Bate od. Whamdeig ee ° ye 

“modi gomts oad dc hae Sonerised mead.dos baal aso 0 






























oko at bontetooo sonabive om wd. enostd lia sae a8 thas saul 
_dremgiul gra tmqque Bhwow doldw xo ,herasaes ag, nodateet 
“seks af 41 .Vikgaiolg Ye cers? wb Joaonu, we al std Ste | 
met sotdoh oY iidmtale of .tanknotee om ham «xodelve® aot | 
traghbnomes tuoitio baauovex of mext aoLeaqge Stoo, ¢hweade. é 


ME iy ae "pen Ree A iS Ro hopping I of oye a aay aan nein 


ii waitne CF aR eae 


WINDING GY FACTS. 









We find as ultimate facts im thie case that 
int, Louie Favlakes, did not purchase from plaintirr 
¢ merehandive im question; thut Mick Paviakes purchswed 
‘come solely on his own account and that eredit therefer 
extended by plaintirs aolely to nimy thet Niek Pevlakes 
) authority, express or implied, as agent, to purchase 
eine for defendant ond bind the latier therefor; and thet 
@ndant iv not indebted te plaintiff in eny sum. 


Hat: eRe aR shai ae: muna LAME tea Mae tg. 
ARPS R REY, BORE, PULA ME RRR IF 


0 MGR a Re Phar: We ey BAe ween ih eat 


ee EA. GRR: AOE: pitt, GMa 


aching: MASH, eo area: pa > ‘pneagaeimbsentecboattie 


ri igh Phe) Re in iy” 
JER aay ei ess “ye tiie om wy 
K; ast : “ 


SR eae cen aa 
mies. Diet AR 


wei & Hans f PEN, ang 


ea sea, Gg, RIDES abe Rae up bab greiippnntbert 
ee ee ‘wi 
ob pr etmletn,. Ri St MOR ect net Dw 
PUN ae ah yon, aa hi. | sale 


A 


Myth Aa, Hye Rare ete 


Ri? way A Le ae i 





iy 


156 - 31287 


Miaanr, 5 se: BIRCTRIC LAMP } 
ANY, @ Gorporetion, j 
Appellant, }) APPRAL FROM MUNICIPAL 
Ve COURT OF CHICAGO. 
BOARD OF EDUCATION OF CHICAGO, ier e 
Appellee. sg : 


Wi. PRESIOING JUSTICH GRIDLAY DELIVERED THE OPINION OF THE coURT. 


On Harch 10, 1924, plaintiff comenced an action in 
geeumpsit ageinst the Board of Kduextion of Chisage to recover 
damages for its alleged brench of a written contract, dated 
Vebruary 23, 1922, in that it refused to accept deliveries of 
the balance of certain incandescent eleetric light lamps and 
pay for the same at the contrast prices. Plaintiff claimed 
damages in the cum of about $22,800, being the balonce alleged 
to be due at enié contract prices. Im addition to ite affidevit 
Of defense, defendunt filed a claim of set-off, in which it 
alleged that it had suffered demagea by reason of pleintiff's 

breach of the contract in the gum of about $23,500. 





@ somewhat protracted jury trinl the following verdict 
a returned: “Ye, the jury, find the issues on plaintiff's 
c at mt of claim and defandant's set-off agninet the defendant, 
and assess the plaintiff's damages at the sum of no dollars.” 

h 16, A926 ye yer judgment upen the verdict 
plaintife for costs and Sppealed. Mo cross-errors 










@ here been seoigned by defdndant. Plaintiff's counsel dows 
| Complain of ony of the court's instructions. His main con- 
9 &2 we understand it from the various points made in 





asro rue Mowe Gaawta  C 
,OnivIKy 0 YaOD 


° Xp ab iy iy i 6 



















ethOS GBP WO wormaso ane aHaRVL IAG 


bes ‘vguat sight wkxsoele Jewoenbssont ntoareo we | a 
hemtals YAsabol® eeeokeg doasinor std a onae ous aa 

© begets eoasiod orté guted 1008, 254 sued % to one out ak Boge 
thenbhrke eft of molstbda at “saeohag toaxdaow bhoe aa ab 


FP donde wt «Montes to miato a beret imobmoted «ame 





i ei Yutiatels ‘te moase vs sogausd vox as baat at tots 
a ; ‘2008, 808 tuods 0 ease eats mk touxdn09 ‘ot © dosed 
tobtuey patwolle’ edd tates ‘url besoursona faswnaos a 


ae aPtkenkely ao coment ont bak? vytut ead we hoard ox 

atiagnnieingely wats! tentage % To-dea a dandosted hate wha te er 
eee! (30 mua odd fe pened a Viiemialg 3 

tokbuey oui wens srompbut boredair. wee bent ase 

ib? wtorte-asose ow obo Leeqas bas steep 10? “yenamtatg 








q amt foamwon a PRtsabals + dana ten Na bumra teas rood ered ® 
I oneo shew oil o amte L4 parca wick at éureo ode @ be % abatgnos 
| ah sham adehow aura busy oats nox basta ham ow ax ame 

} "— qdd of yxoxdnoo et suompdwh, one tact af tend rotmisg 





Im plaintiff's statement of claim it ie alleged that, 
under the written contract (copy atinehed ORG made ao part of 
the statement an Exhivit 1) for the purehose by defendant of 
the 98,000 lemps therein mentioned and ageregating at the con- 
tract prices $40,316, there had been « shivered to degendant about 
41,500 lamps “AR nocordance with eatd contract," te the total 
‘Value at said contract prices of $17,524, which hod doen paid for 
By its oe would more fully appear from a written atatement, 
“@rhibit 2, (attrehet and mate @ pert of the statement); that the 
Balence of anid Jompe (about 56,500) “have been tendered by 
Plaintiff to defendant in accordance with said contract,” but 
that defendant hoe refused te receive them, toe plaintisr’ 
damuge in the cum ef $22,792) and that piaintirr at all times 
‘es Deon, and still is, rendy, willing and uble to furnish said 
Lampe. In the contract (intreduced in évidenee)oplaintifr¢ agrees, 
in Considerstion of the agreements oftervards mentioned to be 
kept and performed by defendant, “to furnish eng deliver® to 
defencont the designated lampe and at the prices mentioned, for 
he ‘Ghicago Public Schools, and “AB pbrict secordunce with the 
pe Wifdeations ond propogai” of plaintiff, “hereto attached ani 
* me & part of this contract." 
i In defendant’ saaffidevit of merits it denied that 
plaimtire had tendered any lamps ae alleged, or that those which 
Mad been delivercd and paid for were of the type and grade 
SUDA fer iy the contracts er that it was indeptes to plaintife 
sume 

















In defendant's amended statement of set-ort it te 
in substance that under the contract plaintirr We. @ 
to furnigh defendent "elestrie lemps manufactured 


0'y MateOaT CeO i a 
Jo ay REG gan 
is 





——— 
rt Ge 


ajodte begetia ef 2h atalo Ye feeuodade o*Venembete mx a. 
so dug o eho hme hodostte yeoo) smentnoo mead thw one” 20h 
to sunhwated “ot eecdomg oft vot Ch atdtstad wa _smomatnge 

win ad? ce ymbsngersnge bus bemoan nkoged’ wasnt 
suede tecbasted 63. peterdto’ maed het ovetd? pBit,Or> seoloy a 
indod ade of “agnomtnns bing st.to emmieog oe. mk" ommend: | 
tom ipod tuut do dete jana, e20 eC) ihe bg ‘goatee pte te ou 
yinccancnsidae &, OER songs ohter wom bfeow mm KR 
act Sct 1(daemnaote edd a dq & ofa bea nectent oat 08 the te 
* (00a, 08 suede} oquat ake te 00 8 


Aa Ae Wey 


su *\goaasnee bins dew ponabroo0n a fonbaoreh oe 


































MER? 5 ay eth 


saute Lia ta | tabendete dass aa gor, s28 Les mats, ae at 
Aten staderuas? oe aida pai pobisie sense, vet ‘itse “bn saeed 
e997Hs dibemtase(woaeater at soouborsnt) ‘toordmae oud ‘et ey 
WBN si vey 
‘e ov hone £3 aoe abrawzod'ts odmoms 9ge oad to noida poh 
WER Pe 

RA aie 


to? sbeun komen, aon es ‘te ‘bats eqeat ‘pedamye vob hehe r 
in yy "ey escoo onde ake” om, 
con dine at" sees sakeosdot 


el ie 


os “xeyssa® Ae Soho? os" ‘insaaotb ‘oo Searre 





mi oh ae sie 


i 
ty 


vitiminta ¢ 08 ; bosdonat « soo a itt oT + stoorbans we ry 


Ve Ae ; 









OH ae ak Pages tigen mer iw i " 
a2 an ovten bei tnaso tot oncom 2 tee shay cyl 
Bae vibentata tovadeon ose nob tout? 


eid eyeniny Ge siti) 


ed syn enseoese" tunbatted Hokey on 
on WR aipeheen tani me Meee ig a » that” eee 


ond, walt beak Gee 


whoo 


by the Keystone Klectric iamp Yivision of the General <leetrie 
Cos" that of these contracted for, defendant ordered about 42,000 
Aempe which were delivered te it, wut they were of “an inferior 
and different type and quality,” end Were “tetally ani wholly 
Gefective, imperfect, worthless and of ne value wheteoever for 
Righting purposess;" that fer these delivered iamps defendant 


‘paid to plaintizr the total aus Of 9175960, and did so before it 


Rad knowlecge of their werthlessness for lighting purposes, or 

that they were not “Keystone” lamps; and that plaintiff hos re~ 

fused to accept the return of anid selivered lamps, or te refund 

the price paid therefor, to defendant's damage te thet amount, . 

There are allegations of further damages, andes rg defandant's total 

Claim Of set-off, $23,580. Attached as am exhibit ip «a letter 

(afterwards introduced in evicense) written by pleintirr by its 

President, Earl Arcola, to defendant, dated January 24, 1992, 

(avout one month before the exeoution ef the eontract eaued upon) 

* follows: 

4 "In connection with bid heres for supplying 

We incandescent laups ts the ard of béuen ion, we have 

| 0 advise we are applying 2 discount of 37% from the 
Standard list prices (used by all lamps ees! 

‘ type B Vacuum —— lamps snd carbon : e and 

+408 fro ¥ from the list prices on type C., or ge £1. led lampa. 


@ have rigeng the past year supplied a ply oll of 
oleageee used i Hoare of Porgy = M4 n 
: at b “4 ny tone 






























: im @ paregraph of the specifiontions Felating to the 

P Tungsten Fi lement dompe, 1t is said “These epecifications 

. the hisooa sci of the inrge Musde lamps to be 

= * Mesde is « trade mark spplied to those incandescent 
_ in the construction of which the manufecturer recelyes 

? t of the advice and researeh of the Research Laboratories 











obesoare Lieames Bo tu ‘te soe ha By bid qmad Obtsvels anosayat cas 
O00 ,0d Suede hewWHxe seevaykek , oR bedoowsaes aod ‘to gods % 
roltwras aa” Yo wtow you? daw .2k Os Setevetad oxow vioketwing 
‘¢eliese ona qilased” gvew baa "yyd eLawp bee ogys dhoweT Ree 

ROR Kovoatrde oMLev Ox To bie KOLAILOW sos T TOMER eovese: 
tuehno tod vqant Aereviied wacdd woX Saad “Peosoqemqeambse 

OL gaGted te bkd dma 908,040 to mun Lased ott VtkImbadq ied 
To swoomeuey gtlidgil t0'% eesineolds ww thede Te egbedwoml 
aerer Vibiwiely Gots see { dyad ramos eyex” dou avew wot 
bew'tes 02 28 yaombl Sedeviled blaw 6 ataton wad sqeoue od be 

_ Maro! $a? Oo ogumbad’ 9 amohaw wh wr” vtoteuedy bien oobi 
fnged a 'tuahon'teh gain (aegrass cade YO anolsiyot iw ote ot 
Teste a wk Lidhdxe mw ae bodowi sa — OBE SKE YTro-d oe” ton 
web YS Vidsalale qd meet iow (eomehtve ab, heawbontnd: abe 
REL VOR Grew Hoses _smabaoteb oF yaloows Leek qimonl 
(aout Soe Pontdaon 86d Yo MOLI MwOND wd wLOTOU oe | 







Cr eR i ten 
ihe 


a ee steretae 


i oa 


; ‘ 
Emi how 









trwonehsumont cod ee ape trom hod a ot gbuait ' « boatyitl 
i : arn he sitions at 





40 
at Sehenectady.” 

The evidence diseleeed in eubetance the following: 
After the execution of the contract defendant ordered ond received 
(Aimeluding some replacements) about 41,500 lamps, for whieh it 
Witimately paid plisintirf over 17,300. Most of the lamps received 
Were sO-called “Congress” ianpes ond not “Mazda” lamps. After 
mest of these deliverivs bad been mado, mony complaints were 
Feceived vy John Howatt, chief engineer of defeondent, frem many 
@ngineors at the yorious school buildings where the lamps hed | 
been instalied, that mony of them were defvotive in that seme 
@xploded when the current was applied, some turned black or 
smoky, some white or milky, and some burned only a few hours. 
About twenty-five of these engineers testified to theese facta. 
Howat’ tentified that upen investigution he found thet mony of 
these defective lamps were not “Wasda" lamps ond that in other 
particulars they did not conform to the requirements of the 
specificntions, A. J. Horfmn, an electrical engineer employed 
Wy defendant, testified thet he specialized in clectrie Lightings 
het he was fimilinr with the provisions of the contract and 













ope Mfiextions in quection; that im accerdemee with those 

1 : visions the everage life ef o lamp wag 1,000 burning hours 

. t the "Made" lamp 4s such a lamp, which io manufactured 

, 0 to certain specifiontions outlined snd adepted by 

re Research Laboratories at ‘chenectady, which work in harmony 

- the Bureau of Standards at Fashingtom, 2. Cos that the only 

p ‘Manuf»c turing lemps, in strict eecerd with the specifics tions 
ih } Contract im question, woe the General Mleetric Co.g and that 
"Congress" lemps, so furniched by plaintiff under said contract, 
hot comply with enid specifications. As the reoult of the 


which defendant had had, as regards the lemps which 








“Igatworte® ee comatndws mt deeeleath enaebive ant! nb 
hovbovet bie diated itintwetoh Sousa weld te" saphena ad * 
$b sto.teew 20% equal 006,52 Inete (admanovetgoe smbva’ gehbuts 
hovkeout aqank ald Ye Swe . 008, TL) wows Whsmtatg wEay kot intk 
26e%) saGmad “abewl™ tou one equal “eeogned® salLaovon’ @ 
“Gtbw ofmtniqaoo Yaom whem Rood hart wobrovi feb’ wabde te ‘ 
Guns mer tacbnd tos to veomtymy Yodts yd same rie ts 
Rew wemak welt oxesiw ugabol ewe Loose adetiow Bat” OW wbmeel 
eetn Goold wk avlsow'teb oxow meds to ysie died 4h tt wie 
te Contd bowed men ,betteqn tow decoy ek albert 
setsod weit a yhdo bomen omoe ons oti 6 oR ob 
saHuat weadd Qo DOLtEe6eF aeeontgan evade Ye ovltoy +H 
Yo ‘yim Hale hero Of makeoghinown? moqe Hee bntinedad He 
nadda a toil? Se oquat ahicort” Foe Ohow udm ovtdoutel si 
add “Yo Waiddaontepen aad Gi mxdinds son’ hes Cede" Sliee 
begetenh ‘tonatane Leokxseoke ae Sennen ob A oemp kes 


we a 3 { we fe 

CAR RRM By 4 ile 

ND Yeadon Pol Wty 
‘a 

U , ey 




















qmomted mh gow eotew rials an ankrotonsitat mn 

eho ond goskt YoD 0 «Mocnatdan” Ja ehuebaae oS wanmm 

emols vottiovge ed Mtky Amgcpe dotrte mk «eqn Bukuwton 
doaht daw §«09, okgt ook, Loviren® baht nay 9 kiepatp. a 0 

sfoortneo Aan rola Mubsakalg et dectekera? oe «mum ” 

od Ro dhwoan aad Oh annihtoak Boge koa std be 

sto bite agqael ods abroget an ahaa best trabaeteh setae 


i Pad 

" t : 

ri ‘ 7 

a qf aay 

it bear's i 
As oat i 

Ri i Mh ee 

i dans WU halt ae 





=5- 


Plaintiff head celivered, cefendant, although requested, refused 
to order any more lamps umicr the contract. And, nlthough pleine 
tiff alleged in his statement of claim thot the balance of the 
umber of lampy mentioned in the contract bod been tendered te 
defendant, plaintiff's evidence failed te chow thet 4: ever mde 
amy tender of any such lamps to defendant. Tho teotimeny of 
Plaintiff's precident, Sarl sreola, was only to the effect that 
plaintiff? atood ready, able and willing te siesta the balanee 
of the stipulated number of lemps which would be _ ‘in accord with 
the specifications ef the sentract. He slee testified that in 
hie opinion most of the delivered lemps, although net “Mazda” 

lamps, sufficiently complied with the requirements of the 
spseifioations. my “eight thet thie teatimony might have had 
Nefore the jurywme greatly leeanened, if net entirely overcome, 

ys letter, introduced by defendant, written by the witaess as 
Plaiatirr’ s president om January 53, 1923, in response to defendant's 
suggention thet plaintiff submit a bid for the furnishing of 
electric lamps te defendant for thet year (vis, the year 

ing the one to which the contract in question epplicd.) 










It appeared from the testimony of Hoffman, (whe drafted the 
pee deations for the preposed contruct for the year 1923) 
ha Qold specificctionz were identical im their requirements 
Mth those of the specificntions of the contract of February 
| ? , 1922, in question. Im said letter plaintiff, by Arcola, 
w te the then president of defendants 





"Ve have received a copy of the apecifie tions 
fer furnishing incandescent electric lamps * *, 
and letter accompanying seme in whieh you. 
 anvite those intending to bid to point out conditions 
_+@mbodied in the specifications that are diffiewlt te 
meet. * * Those specifiesntions, s5 written, ere 
Bidders to the furnishing of ‘Masda' lamps. a 










































haawtot ehadaanpes dauods La etasbis tes shorert ion, ba. LES ry 
mk ly syseoths Lin Om ptonsdno ase aobmb waatid exam yam aoe 
edd, Wo pomacad ont gusts tate re, annumaate, wht Ah begetia 22 
et boxphne? wand beat tonsdngo ocd ah heme Le som womed 3 ; 
rm seve, (2 desd ween, of bosip? oommntye, o'itemkele »lanbeot 
Ip yaouteand eit, _nbabaeten os. agmual, Hon, We. 76, ravent wi 
tad spothe ems, od “loo par salopus, dae, 2 omebhom Tg of?! Ly 
NRA Lae ott sevise® of amisfin ane, pide, «yhoo, honde, ™ 
Adivw prego ado esos. desde squad to rede bess 
at sed pottites? cule ol »egandmon gat 20, asorseoih i 
“tebpak tom dguodiia ,uqmel pemereled on? 20, FOMm: APTRE 
$id 2 atmomettayes od8 tty bebtames, septa + 
he eves, Adgim weomidnes whad 198d 2aRhOH NB e MOR ETIRT 
9mm Te FO yiogieae fon x. doapen es VhtnerD, i ba . . 
as saosiiiw oct a aod ¢ baw sdmaba'ted Wf, boon iex k, wi | 
s tacdaw eb, os sampgees a5 BORE a& Yreueicl 20, aayhlagys & Tee 
2o patdedewat ods 103 bie # ¢ieine, ‘Wiiatele sod ‘ 0 htae 
cous cm NA cat) ‘aegy, tacit s0% fmobme pep od eqmat ott 
nr pattgae wolfaouy ui tpandaon aie ie Late OF , wt 9 , 
add paatwxh enle) aisenti20N 20 vaeahyney sol sort bor 
(snes tay odd ce, fousenoo baaeqang t 4 oe 20% ont : 
ednompaksp et sheds, mh Laobigebs onew al dtchs r 
eiomndet Ye teatéaog ode Be, ame Lined tongs oat 29 node 
_aatents Ss Tittahase, qntdes dios mk smohsaemp mA 98 8 
_ ttmepaiten, 26, Lssamnitogins ould 8 
_amobtcasstong tei | 
2 jalee thaws pom Oro yang oe ‘he. oe 3 


93 Pec haw one tysld xe ic 
pid al pare ee ' 





Rlestris Covs anda independent cumpanies oun bid 
under these apecifieations. “ * Kanufacturers of 
who are not affiliated with the lamp trust, 
asda lange axe barre fren bicding.s 
After donsidering the provisions of the contract in 

question and the scvomponying specifiextions, and after re« 
viewing the evidemec, we are of the opinion that plaintiff did 
Bot prove such & oxee a8 warranted the jury in awarding te it 
any demges. Under the contract plaintiff wae required te 
Geliver lamps in strict sccoriance with the specifientions before 
paynents were due therefor from defendant. Some of the Lamps 
were received and paid for vefore it was ascertained thot many 
were not of good quality or of the proper kind and did mot comply 
with the specifications. After there fucte were avoertoined 
defendant wae juetifies in not giving orders fer the b lanee of 
tthe lnmps contracted for. It is well settled that before a 
party to « contract can recover damages for the claimed broach 
ot the other party to accept deliveries ef articles contracted te 
be purchased, such party must chow that it has performed or 
efteres to perform its part of the contract, and is not iteelf in 
default. (Horber Brothere Cos v. Moffat Cyele “ow, IGA Thls B4, 
92) Turner v. Ovgood Art Coo, 225 Ill. 629, 6377 Graham ve 
9 44 Ill. $85, 392.) Plaintiff nlieged in ite otatenent 
thet it had tendered te defendant the balance of the 













contracted te be purchived which were imo coordance with 
et ond specifications, but it introduced no ¢ vidence 
om such tender ex tenders. ‘nd, in view of the provisions 
ne ‘eontract, and such allegation, plaintiff cannot rely fer 
! of dam.ges upon the theory that there wae what 
to a woiver of « tender, or that a tender would have 
ae 





























haces «att ol ahem earl 20% een whee oid: 

bid aes asleegwes teubeoqobak on baw gs09 Bhrdeg 

ae! ¥ mnenuine ie: n> sanahiaol hioegy eed ee hop 

Saunt? geal odd Wkw hedallivta gow oe ede wqe. h 
asks 99 Lose v0 senate ‘eer eiot mk Roslberag: ie be 

*sgatbote meet bowxed tm heya Pe ae 

Ae I 


‘u ‘dowttnen ants to eno te kveng ‘outa satsobtemos 0dtA 
et rode ba samW Liao Doega, sakyarqaoons ‘oat ‘kee ‘no . 


selec eae 


abs p ikintale dats nehstge ons w ore oS senate yore tte 


“9d betkayes saw ‘vitentate doesdaes add tobal 
exeted enohiaotttooqy ont she ‘e6nhbeeoes aohitn a 
agent vals Yo anol sdanbmetos mort rohoxeds ouh 
atone dst’ bunk sd r0oaa aw ot sietee 202 beg hae bobs i 
danas don bah hoa cere ‘neque eat ‘te “0 wi dans ply be dou 
“Bamkes0907 oxow } aboot ovo tosth % Free 0 ; 


eo betoatinos wetstisa te eobreytiod base | 


Ph (Raia og 


19 Dowroteoy wad $F Saclt wesko ama baa 

wh woutt tom ab aan ‘$ooesm02 ‘eng oy ane bis! “ 
198 AEE £06 4.92 afew totod os 400 grmdiond | 
+x.saster® thie 2008 of IT ess “2 Oo fa) hose 
daoutnde ent on bopetin helene (eBOe 9808 940 
od) Yo vonared ond Inabawiab oe bevebmed bad OE wa 

ta ke ‘wonabron9. a at oxow Ko bite henaseemd os 9 odo 
wonebtv © on: beoubonten #h ‘oud ‘ane tésoistooge as hea 


a a see As Sa a 
enw dudvery euta Ww wore ae om i 












Sat ‘ay panes pers www att 
Af] ATO Me bea ae ap ih 


avad hiew sehand a inld 46 er : 


Te 


Deen unavailing, (Shultz v. Hamilton, 149 Til» app. 306, 408, 
Expanded Motol Co. v. Boyoe, 235 [1l. 244, 289; Walsh vy. North 
Amerionn Storage (o., 260 111. 322, 351.) urthernore, plain- 
aff did not intreduce any evidence aa te the amount of damages 
whieh it head sustained by reason of defendant’, alleged refusal 
‘te accept the balance of the lemps. The meacure of its damages 
@ould mot be the contmact prices therefor, but the difference 
between these prices amd the fair market priees at the place 
and time of the bresch. (Burvay ye oud & Cos, 167 Ihde 368, 
$74; Bagley vy. Findlay, 42 111. 524, $25.) There wan no 
@vidence that plaintiff hid stered the balames of the lompes 
for defendant ound 5" 4t notice that this had been done. 

oad ve do not think thot the court comultted any 
revercible error in refusing to admit in evidence certain 
duplicate receipts {ofvered by plaimtirf) for some of the 
MBiverse lamps, which receipts were signed by defendant's 
superintendent of mupplies ot tne times of the reepective 
deliveries, and which, <beve his sicnaturc, had the printed 
vords: "I have personally sxemined the goods herein recorded 
ame find them equal to specifications, contract and samples 
: | every particular.” There wou no evidomer that said 
‘aup t opaned the pockeges containing the lomps and 
them, or that he had any knowledge ag to the qualities 
lemps im guneral, or any knowledge of the contract or 
tions in guestion, or that he hed omy authority te 











. Rn Metensant by «amy such statement. Yurthermore, the 

0 #0 reveived were fully paid for by defendant. 

Ror do we think that the verdict of the jury is 20 
ané uncertain that a valid judgment could net be 


bred thereon, as contended by plaintiff's oounsel. 














p00 6ORE eh VLET COL Vmoe twat yy aa tule) 
Bash wy Baty ees ge +18, rd eh ae ot 
ombake «oubiesoitrent (4208 (oe 6EKt Cor re 
aogemeh IO Semrowus ene a an vomabiye ye souboutat, “tom bib: ® 
Lauter hegeils « "Seabee bab 20 meant We Pomtatous bad th do 
sepemeh eft 20 oziyamm, oul”, natant od? Re sonslod ote tqecoe, 
BomeTNTTAD od’ sud gto lors? seokig tonutnee exit ae me 
apoly afd to nookry cotsem het, of? bas weobag onods 
vn (BBE «EAE VOL cn92 & byrne oy emma)  selonoad, Pee 
_ 6% mew gnadt open ane AEE. 8 Lonete 0. 
‘ - qeonog ad? to vommled ord horete beat vipemtage fads ae 
seaok topd hed wks god? opkdor 4 woven baw, dmaastan 
Rate Rotdlemoe anwes od dots Mnkad, som o>, OW, BM oy i 
ana samebaenak sanbi: teapnbasnnebciiia ahd kane 
nds 20 omoe sor (Tiitwbalg wt boxiRe), atatooes sents 
i Saabae tes gd bonnke ovoe abyioves te idw nected; zoe 
prbtengeey ods to aomks. eas tm, aoliqusm to dm . . 
bedaben osld had, soxetem. te. abil ovode athe ale, Bite 9: 
habupoot meted nboop oMd, bamhucae ¥SLenee xg: a _ a 
walames ban tewstaon VeRO LIwoLBhesge eb Lawpe mois ett: 
yo hee duets pomwhhre et Rar fase Sematont 8 
anksitas» aslt ot eli inl lie 
0 tpetduen odd. 20 ogdakepad yao xe aLawonny ee 
OS: Mb bawsioone ges fw: sar eayrisnmnigromyneningien \ 
| OE gO oMoK ater 5 tmemn tds. sie YIN wired J 
eta obae ted Yt 10% hog TehLeth: oxen si you one 
ob cn at 26 ea aa wa 
i tet Laos soem to, bkLev wend mks rove ba @ : 

















Be Fne, a ge 






















» Lone soe Ry yf Seobnotaon am moouedld 










‘@learly appears that the jury found the iemes againet 

efendant on ite claim of set-off (of which defendant tu not 
“ complaining), and it sufficiently eppeare that the 

|sury found that plaintiff, on the issues presented by ite 

in nt of Glaim and defendant's affidavit of merite, — 

entitled to any domages. Under this verdict amd 


6 We preper. 
Our conclusion is that the ducgment of the 
court should be affirmed and it ts #0 ordered, 





PS: 


wi an Paar? Ws 
aR ere 8 aa ac wig es re 
rie Slee ws Nga me eink? § ee 4 


get» doe. d 


Mot 
Bea ae Ta. i 


ae WA ea ere. o asthe ry Dienst sf rah ne bane 
SAUCE, Nauk RRR TE: I AE avin : nner mf 
wee a Si aohensen, Deu 


een presi aca a me Wowie ty tle habs, ae, 


Reh Mt, nigh Ayes sail BOW tr ai bea nds 


Satie: wenn, 


ete Rae aie 2a ka 


ign ‘ Rh dh Nt $y 2 es NEN, ate i 





173 = «631305 
AHTOR SES IGEL et ale, 
Cenplainants, i 
ve 
WREUE MOTOR GO., et Shes ‘ 
befendante. ) 
) 


CIRCUIT COURT, 





LIAK J. ST. George, ¢ coum: 
Petitioner and sppellant, a sah 


¥e 
GHICAGO TITLE 4 TRUST CO., 
_ eepondent and Appellee. 
















oy 


\ 


PRESIDING JUETICS GRIGISY DLIVERED THE OPINION OF THE comR ° 


By this appesl appeliant secks toe reverse an order of 
be Cireuit esourt of Cook county, entered March 15, i826, dis- 
sing for want of equity his petition, filed by leave of court 
on October ll, 1922, im the pending chancery cause entitled 

" gh. v. Urous Motor Coo, et els, - being a bill for 
eceiver, an accounting, cte., filed Kareh 2, 1922. 
He alleges in substance in the petition that on the 
y the bill wos filec Jnceb Goldman was appointed receiver of 
@ aenets of the Hoter Co. snd that he qualified as euchs that 
| the following day certain orecitors of the Heter Co. filed a 
et in the United States Court tor the Sorthern District 
Tlinois, praying thet the Meter Ce. be adjudicated a bank- 
P thet one EK. b. Buell there was appointee receiver, and he 
sk immediate Possession; that on Hareh 30, 1922, the Cireuit 
, authorized Goldman to issue receiver's certificates te 
ee fumte te pay the claims of sli erediters whe appeared in 

nl Proceedings; thet on June 10, 1922, the U. &. 





vi 





ra 
a 


PRI rivonts” ‘ 1 


- YTS AOC3 


Has a Meee G 


' @2age te evaek yd boltt te i? bog sid giisos te dese wr 
hetSisme eesse Creonade gulbaey odd mt ¢SS0L Qf vodote 

set {116 a guted - «£230 4209 s9d0% anazt Fs 3 2 wy: 

880£ (S derail BOLT ,.ode .sulsewesea me 

id mo gent? moivieeg sts mi somsadcn at nogotie oH ve 

te xevhecet aodakocgs ane sanded Sonat neki vaw {Eis set 9 

acd tfews 26 beltifery od godt bas 200 todo of Te ‘ 
& Bell? .00 seseH eds te exee isons aindreo yab guteottot 

. sobededs. aiauisweh etd tot Sume0 aeteds oegiat ads co oh 

~dusd 3 begeottatba ed 16% resek oils dust senyong oes 
















anak zoe | fee neie0oq 





ot baa ,sevisesst setniocua ase oxed2.. shone 2 Seine a. te 


tiusthO ef .SSEL ,00 doxel ao tad? qeekeconni : 
eo soganitisies etapvicess susst ea ccna silat 

ai sgiamue enw exed2boxo Lis Ye amials oe ysq of ebawt 6: 
oS AU edd 290K .0£ amt mo sat tagatboosoxg veto 













an 
aes 


-2- 


@eurt entered an order, conditioned upon it appecring that all 
eeheduled clsims aginst the Heter Co. had been paid, that the 
bankruptey proceedings be dismissed; that certain erediters 
filed their cleine, whieh thereafter were paid; that, «itheugk 
petitioner filed « cleim in the bankruptey court, he chertiy 
thereafter withdrew it a& Celdmen's request, and es a result the 
| ¢h ef cleime filed did sot contain his eclaimj that on 
- 20, 1922, it apvearing that sll seheduled claims of 
@reditors of the Hoter Go. hed been paid, the J. Ss Court dis- 
imisese the benkruptey proceedings and directed ite receiver te 
10 © the assets toe Goldman, sc receiver in the Girewit ceurt, 














mieh wes come; that on Setober 6, 1922, im pursuance of am order 
the Cirewuit court, the real estate of the Eoter Cee wae sold 
f $69,006; that, beenuse of certain secured benda outstanding 
aga! % the real estate, the net sum realised was net in excess 
. $45,000; that mo order has been entered in the Circuit court 
. mg leave ts Greditors $e file claims; end that petitioner's 
im is for attorney's services rendered by him te the Motor Cow 
. g im all te $2250, - also for court costs expended in its 
nal: » amounting te $135.20, - alse for damsges to a Bethlehem 
» model FF, amounting to 24604, which the Meter Coe “took 

2 om or about Jume 12, 1926, and agreed to store for 

r'a benefit, but instend of storing it, weed it con- 

2 until Mareh 3, 1922." Petitioner's total claim, as 

te * may for convenience be tabulated as follows: 

_ Por professional services rendered to the 


Beter Co. up to January 3, 1922 $1500. 
For eszional services renderec thereafter 


up to Jume 30, 1922 7S0s 
4 court costs advanced 13.426 
; ‘For damages to Bethichem truck, Model F, 4600. 








ANE A ChA Era e & 
iy Vine Re 


fie dais gaixoeggs 22 meqe bomeisibuee .19b<0 m= me daar 
wit Gost gbtag soos bait .00 set0t odd duatnpe emake botsba 
sieishers Bhsiise Jags ages tant Ree rm 3 
Karena La vtods 1olag gies. 9d tnesedd tolss coatete xtess te: 
Urcone of gAtaes Yosquidinad edf of wists | beki2 vemelet 

edt ¢iveet # aa bre ,~seeuger e*asmbied: acek seiatlagie zestsert 
mo -tads gukaio. etd sleises dem S25 dehlt euiela.to eleber 


Ye emseds belubonve Lie 01s palsooggs 92 ieyimyes &4 


i ee 






te 








Nein Specie 4a We shies Ree Lael 
heuer ahand mexEess Fags tes te _Sauened. * 


RATES Dy 








Gane 


‘sescxe at Jon saw benbieos ae ton eats “seseden Ls ae ph gircntis 
suwoe ‘thasox29 odg beg bozesas a6. eet = oe asks Bigs 2 


ssa 


a trenbit ivou taste oe domtase os2 bad e101 4903 es wwe: 
ee 


Bae ok 


eel xeseit edt s sie ss Sevobner venience atpanosis: 207 
ei gt bebasqes ef209 #209 702 cake - O8SS3 08 e? ifs at & oat : 


muleldsot of sepamsb x02 seks - 1080888 oe Cy moe 

; BEAD SEE VE eee Es 
doo" «09 retell sit sokdw 190008 8 B cg eer ye o€ 2 ! 
’ tore : wes 2 eS 


; tet ouose es deoame ‘ban Oxer ahh onst Beg oy ze a0 








net Sa ae 


| aoe $k ooax it patzese to noegaad Passed be Speer emo. 
ae » ateto fates at xemoistees * wsnex oF 





4 


fe further sileges that «hem the truck wax received 
by the Hoter Co. it was new and im geod condition and worth 
sbout $4690; that it he¢ cost petitioner $5,108.95; that its 
present worth is not in exevss of 9300, The prayer is thet 
the receiver be ruled to answer, and thet petitioner be granted 


such further relicf as “equity” may require. 


and 
@émitting the hsppening of acid court procecdings/alleging that 


he had no personal knowledge that petitioners claim was *well 


On January 26, 19235, Goldman, «s receiver, answered 


fo G3" that ke bad been informed by the president ef the Hoter 

Coe, ibe Se Ssumkoweki, that it hed agreed te pay petitiener in 
rendered 

petilement for legs1 services /up to February 20,5 1922, the 














ef 800; that, ac to the truck, the same eas delivered to 
Meter Co- at petitioner's request and fer hie accommodation, 
giving it inmetructions to acll the same fer $1800, and later 
' $606, but that the company did net sell itj; that it waz 
tly demsagea”® while at the premiees of the Motor Co., and ig 
Bow worth over $300; and thot the reeeiver is ready te pay 
emount on petitioner’s claim as any be shewn to be just. 
Gn the same day the Cirewit court (Judge Rugkh) ordered 
the matter be referred to a master *for hearing end report, 
with hie findings." Much tectimeny, including that of 
e tioner and Ssumkowski and severel witnesses ealies by 
' tioner ae to his claim for damages to the truck, “ae taken 
» ® the muster, and the hearing was vonciudced during Aprii, 
92 >» The tramsorict of the testimeny was, however, net returned 
ate court until nearly two years latere 


The pencing chancery cause of Emeisel et al» vs» Uraue 

















‘Sevkaver-wew Pound GF nade Fath goyscie” te " - 
“gideew bee mod? ites 506g Bi Pes Coe baw 92 Ved" ni 
B85 30s -qBQsSOLjey vanodJiveg Sedo bad HE Tadd 4 

@adé aioseqesg od” soost areal ade valet HALT 
natnaxg sé stanania aaa ban tite a tere Sole — 


RE weesisheee eae ee bebege O00 of sit st 
bets 


eat ees 88 sgrsueis® 63 qa\eun iva Lbs 5 a a rae | 
Rial ‘Rete sidss uxt sate —— oF of ea 


Qi Bolies esssensiw Lovevea bud tilowe 
sedd che giswes od9 Gf copes adt skal pare | 
se san ea ea hn 


betwee fon ,towevor yaw weet 





Meter Cor, et shes had been assigned originally te the eclendar 
of Judge Sush, %m April 20, 1923, the executive committee of 
the judges re-nucigne? it te Juége Scanlan, another judge of the 
court, whe conducted a lenxthy investigation as te oldman’: acts 
emi doings us receiver. Subsequently the comuittes erdered that 
@ separate chancery eslendsr be prepared of S11 causes (mearly 300 
in nuzber ) im which Goldwan hed acted as reesiver and that they 
ve @esigned te Judge Seanlan, who aece further imvestigations and 
Summoned and hourd many witnesses. Ag 2 result, om Mey 14, 1923, 
the court (Judge Seanien) entered an order reaoving Goldman as 
receiver, and appointing im his stead the Chiesge Title & Trust 
“" Which ig still acting as such. (See Sn¢igel y+ Uraus Motor 
253 Ill. Apps 50, S2s Id, vy. Ic, 323 Ill. 452, 455.) 

Gn January 15, 1925, on petitioner's motion, the court 












7 Seanlan) entered an order that the master, te whom the 
ition ha¢ originslly been referred, “file with the elerk of 

‘ : Gourt within 10 days his report eof ths Sestimeny taken, * * 

at 2 # 28pert of hie comeluciong ef law and of fact, provided, 

’ ever, that petitiensr gay te the master hia charges and expenses 





h have accrued in connection with anid reference.” At this 
iB® Judge Scanlan evidently hed determines that gubscquently 
er woule be a new hearing in open court upon the petition, 
out regard to the prior reference. Petitioner paid the 
’ r*s fees, ete., emounting te over $35, amd the macter made 
rt report, dated and signed om January 22, 1925, and returned 
to the court, together with the testimeny, which is 
in the present recerd. <ithough it dees not appear 
) to have been filed in the couse, it, however, was ordered 
EBded with the clerk, and frequently was referred to by 











sabonion oft ot wiseutgrse homgiose geod had oft 

qe. entd lanes evicgoone adf ,cS0h 208 Liwgs 20 ko 
of? Ye wehe, sedtoue .oainand smiuk of ah pomptsennet ms bs 
gson otaunhio® of as maldegitawwt wituael # ¢ eet os! 


oy aia Caner Mtaitiesth pe scbawine , eee _— 
edd Ast bas vevieost ea betes & vad matte? sole at (secu 


ee wamddageasdwed Oks Te? BOK ome eae linan® Lm os 
eSS0L ahh yee we .tivess © 84 soca ead be yas fewest me 
ge-sombic® gatvosst tebe a8 bezeiae (aninast opout ) ee 


gauxh A ef823 ageotm. oda bopde eid at gat snsegE® Sam «roves 
eit Si) aston, on sation igtse ot means 





a pad ae 
ee taf 


oo 198d «ELE £95 ooBLo¥ ahh 198 608 ragh Af 43 08 
sae ana enoisem atzanpasiseg me eB50L 8k xual 50 yore 
meld gosie. 08 a tedaem, etd dads sohxe se Rowedne, (aataesi %9 
e-dunke emg dye elit" .,borestes meas one. tdi veh 

© > qasded gaeetians et. satiate 















yess $e “seomete tet ntoe dite noiiosanos re be 
eee fads segtaseieb bea. Rare 


sdaan andes us etek es 
ot douse summtinne ont mie sakbene bay ee 
ssoqas fom aged 1b dpeoieis «bteoe% Fae 
sodeirie gow stovewod ad! 999829. nd mk Et? aod ov os 
<e od svar eon cismenge one stents ot 0 


7. 
: 
7 


=5- 


Opposing counsel snd the presiding judge, ang treated as seine 
@ true and correct transcript, om the subsequent hearing, which, 
however, waa not hed until Moreh Ss, 1926. 

Om the hearing petitioner testifics in his ewn behalf 
as to thet portion of his claim for atiormey’s services, in 
Which he was corroborated in certain particulars by the testimony 
of his witness, lL. J. Leon. ie alse testified ag te that portion 
“ the claim for damages te the truck. ie wae Crees~-examined 
a Great length by counsel for the present receiver and the 
Previcing Judge. It appenred from the eross-examination that en 
Marek 31, 1022, petitioner filed «ith the referee in bankruptey 
in the U. 5. Court the following claim againat the Meter So.: 

3 Ze bill rendered for professional eervices te 
















Janucry 3, 1922 B1G5Q6¢ 
Te court costs 2évanced Les 
Te damages te Bethelhen truck, Model F 28006 





Total + = owe $4915.20 
it will be neticeé that the item for services azounting 
9 iO, as contained in the petition, dees not appear in 
er's claim as filed with the referee in bankruptey, and 
: in the petition his claim for cumages to the truek is £2100 
uiees of-hie claim os filed with the referee. Petitioner 
testified on crese-exeuination in substance that 
Ome week after he filed his claim with the referee, he 
its thet he made thig witherawal at the request ef 
the atterneys for the receiver, Goldman, and upon his 
al Promise that he sould see to it thet petitioner's 
Would be paid, after investigation and order of the 
mi Court, out ef assets im the receiver's hende; thet 
ef $750 for attorney's fees (contained in the petition 
im the claim as filed with the referee) is for 








) gai  gatebea® cov ttm 8s ee 
hated gwo oid wi se2hbsaed gene tiizeg paissad: etd BO. 
gk ,eaei vice atyeriests. set minke. eid te: coin a 













~uomissed oid “a ereiusisiag Bieesee. ak bade 
mobixeg dais of an aokthtesd wale eh, cmeedek od meenaieci ‘" 
-Bontaaxo~se6us. ese eM . fous? aed 08 aogonab vor state oda 
dt eqs soviooes daosea od? 40% Lonnuae. ee atte, fang. 

ue tesla mekisninexe-saove ad? ao1t boxasqaa: 6 saab gutbine 
weeartined: ak eaxeter off déieoboLit wemods lds 828. it tae 
tee mato std sembege abate: nienaand og tue “ ee 





e6.580R8 lowe eee) Rate: as be be! eat = : 
pai snsesss: ‘gostvans s0l eset odd teddd pesteen 06 the 4 fea 
mh useage somnse® weoigideg ad@ mb Seats 
essen ee peretex on¢: eae wuheele 
Soaks ab tonid. sat oe auganinb ih ahaha ae 


bs et wow bas bos amatae vevvinons:oas ne tO! 


-6= 


services which he rendered the Motor Co. in endeavors to keep it 
out of bankruptcy; and that at the time he inserted the item in 
the petition he believed that it was one properly chargeable 
against the Motor Co., but that he has since become convinced to 
the contrary, and that he is “net now insisting upon it." Being 
pressed to expizin why he had increased his claim for damages to 
the truck, he further testified in substance that when he first 
Saw the truck on the premises of the Motor Goe, after it had 

been used and damaged by it, one Ryzskowski, an officer of the 
company, informed him that the company could repair it, sell it’ 
amd get $1500 for it, and the witness directed that the company 
repair and sell it but informed Ryzskowski that he would claim 
damages fer the difference between the amount obtained at such 
ite and the truck's fair value when it was delivered te the 
company; that the company did not repair or sell it, and the witness 
‘finally took it away and ascertained that the damage thereto was 
‘greater than he first had supposed and that it practically was 

Ss; that at the time of filing the petition, claiming $4600 











» he believed that the amount claimed was fair and proper 3 








that, meither at the time when he agreed with the attorney for 





| BR, receiver, that he would withdraw his claim from the bank- 
ruptey court and file a claim in the Circuit court, nor at any 

ub Quent time, was there any understanding between petitioner 

| n | Goldman or Goldman's atiorney, that the claim to be filed in 
‘the Cireuit court should be higher than that filed in the bank- 
court. As to the value of the truck, when he left it with 
| ue company, he testified thet he hed purchaseqit, new, a few 

: 8 before, for $5,108, - paying $2000 dew and giving his note 
balance, which note he afterwards paid, and that it only 
en driven about 150 miles and was in good condition. He 


testify what its market value was when left with the 











a 
$i qosd od auovesbas ai «e9 tote edi bexebme ed deidw seoiy 
wi medi edd betzeant ed emis odd ig Jet bas iyedquedtusd 20 
eideencnite ‘lssqoig omg aay di Jedi bevelled ed motiizeg. 

ot Soomivaco amoesd somic asd si dedi sud 4.99 setok.od? ie. 
guist “.i3i mequ guiveiani wou des" af ent Sanit SMB % 
es eegsmsa x9% aielo gid besastoai bal ad yaw. iste pom 
daxit ed asdw Jedd somadedue ai beliiiess 2eddiwt od -etoutd | 
basi Ji tefte ,-09 rosol ot Yo seaimerq odd mo dousé odd 
aad To tsoilte se .tdewedesyi eno .tt yd begsnsd bas deem a 
“$8 ifea .ti aisgex Sines yasgsion edd geds mid beazeini «yma 
qaaqsos ed? ded? befoosth aaemiiw sid bag _tt ro? OO8LG gop 
aislo bisow sa edd tlewodesyi bowtelat dné gt ilee bas the 
fosa-te Seaiside tavoms odd sesadad eomozeTiis edd xo? a0ge 
oa? of borsvifeh asw #t aedw ouisy xizk atious3 ‘sas bas $ 
anemsiw odd Sus efi {fee 19 theqs< don bLb ymsqmoe edt ‘tedd ive 
aew Cieteds egemsd efi tard Semtsiteses bas yews ot soos Wis 





enw ylissisosiq Ti teds Bee Soaogque bad taxi en a * te 
OG3S$ grimisio .woisiseq esd galt? to emid edt ga Jastd gam i 


Para) 


| peqezg ons tist cew bomtelo tavoma odt sand beysifod od. poge 


















toX youtosss esd diiw bootgs ad modw omis od te tandtion tad: j 
~aaed eft movi sisio elf werbddiw bivow ef jag’ ,tevieoot 
Yas se 108 .smu09. $tuext) esis Fs 4 mista & efit bus 5 ENGO 
resol? tog needed aatbastexobay ‘se oteds Bay, vomit , Jas 
"mk betty ed of wile eds gscld ,yomtos ss. 2 'nasthLod (30 Be iD. 
winsd ead st bert? sats seid _sedgid sd bivede 5 Aaee dixe zk9 | 
déiw 3k ster et moe woud os? Yo oulsy edit of sh .dme 
wet s went :tboeato we, boat od dads bektkiaed ed. 
eter sid paivis bas web 008% aatveg - |  ¢8OL.8¢ x92 Ob Lr Be 
vine ¢f tadd us bieq ebemrreats ot stem so itv <oountad se | 
oH snot zones boon a Ee SANE tuods mevith asod) 


tee Bethy ax ‘ims | RS Fed oe 
ait is bw tel went: aay " shier Sodtam ee vere ° 


=-Ja 


Company. ©n the hearing before the master he had produced as a 
Witness one “inter, a dealer in motor tracks, from when he had 
purchased the truck, anc who there had testified ae to ite serket 
value. ie also there had produced az witnesses Mra. Phillipe 
and Jobm EKoleki, «ho testified as to the condition ef the truek 
When it was left with the company. These witnesses were either 
oat of town er could mot bo found when the hearing was had before 
Taige Seanian. 

| As to the claim of £1500 for attorney's services, 
petitioner’ s ewidenee disclosed im subetence the following: 
“That early in January, 1926, the Hoter Co., vy its president, 













& verbal agrevment with petitioner whereby se was to receive 
a annus) retainer of 7500 for atterney’s services te be rendered, 
‘for advice, ete., end was to be paid additional compensation for 
e: wices in court and for time expended on apecial matters; thnt 

: o the rétainer for the year 1920, he @as paid $500, leaving a 
bal due for that year of 22003 that in the latter part of 





2621, this agreement as to payment of « retainer was ean- 
fs lesving then a balance due on euch account of £367, «which 
unpaid; that petitioner acted es atterney for the company 
litigetec cases, known ae the Gibbens and Yisconsin Lime 

| ? + cases; ‘hat in the former he performed services (detailed py 
pet tioner) which reasonably were worth the charges he made 

the f. Viz, $200; that in the latter (so mechenio's lien case 

& meter and eftervards befere the court upon exceptions) 

6 many appearances and rendered legal services (detailed by 
®) which reasonably were worth 8500; and that he com-enced 
Om & bomd in behalf of the Heter Co. aguinst a bonding 

y under on agreement that his fees therein showld be con- 





Upon a successful cutcome, that he advanced costs te the 
























#82 dooubesg bad on regecn add sxGInd getseed ela oeEeg 
(bad ef ainaie moTk ewlowr? teseq ak coLasd  .radehi-omo: asea: 
segiae BFL OF we aethienes wed exacts ote baa tems ede are 

|, SARLEREE sani sasnendte am Sensharg bas exedd gale cal seeut 

mews ode ae soliLeaes sd? o8 ae bektiees’ ode nan. . 
2 soldie etee sonaaiiin saad? «ymaqsoa exit sede fed uae ah oa 
oxgted nat a8 pakzeod eas medy poue? ad Jen Aiies xg awet te : . a 

a anscivase atyeatests sat 0845 te sbake #9 02 ea nace 
igeivelio? eds somededue 6) benelouln sonpbive ation 
_ iaebteone att ve 000 430% ad2 «MOL, sctaunel ak haa 
eviever of sum od \Seredw cemmdelaey sidbw smamerye Endsowe 7 2 2 
ebhotelmet ad a2 geebvive & gems sae. wet BOER te ‘wontates, couaue 1 as 
"6% Als oreo faneiziobe tieg ai od ase iy nats stelvhe | . 
“Ande jesesdam Selous mo hohasgre emi x0) ban sme mb ase 20 
8 satvonl .005% Shaq enw en .098% aaey ahd 10h xankeget ade 3 
Se aay setted osté i dade 10066 Ye qey doris 10% eub a sadn 
fay sou temiases « Ie smmenyeg oo ee driegoasga alse, 8k 
Hodis .892% iw tmwecne sosie oe oub Sonniad « Rad yakwanl » ! 
ARES ace <6% Wereiss en bedow noneiss tog deat. ‘i bbegen . 
_ Mail shemoseis bas aged kO eda ah som «sence Seammleet ont 

“i SeLiatss). soaivres Samreliag of resEnet od pel done ‘& 

obese od aoynasio salt Atzow ores eidenencen sige { 

sane soil eTetaadonm a) wesdel onli st Jaci Seven. ehe®, 3 

(apeisasaxe Hoge, seo sdt exe ted, abtswzadts, fan ofan 
‘oa Selteisa) ago Lytae > Ae sousaaes, Ae, 2G 


*8- 


‘@mount of 2135.20, whieh mever were repaid te him, that the suit 
@ae afterwards turned over to another attorney for the company, 
ané that he dees mot claim any fees om account ef cerrices rendered 
im thet quit. The ageregute eum of these item: is $1,080.20, and, 
ae the nex receiver introduced ne evidenee “hatever on the hearing, 
We ore of the opinion, after reviewing petitioner's evidence, thet, 
as to that portion of his claim relating te attorney's fees and 
@0ets sdvanesc, the court shoule have allowed the came ac & clain 
@seinct the cetate in the receiver's hands te the extent of $1,080.20. 
Gear the clese of the hearing petitionsr asked lesve 
to read the testimony of the three witnesses, who as above men- 
tioned had testified before the master on the prior reference as 
te the market value of the truck when first received by the Kotor 
Ge. and its then condition and its coméition after use by the 













‘Sempeny.  Upeén ebjection the court denied auch leave, and, upon 
1 pitioner persisting in nis motion, the following occurred: 


f THE COURT. I will mot aliow teatimony of amy of those 
Be witnesves that were taken before the master te be civen 
ie om thie hearing. 


L GR. ST. GEGRGZ. Those two witmesses were avorn and they 

i? testified im the same proceeding, snd I don’t knew why 

le sds god should put me to the expense of having them 
& here. 


THe COURT. You seem to have some difficulty in understanding 
me. i have ruled ang that ends it. * * Your motien te read 
the testimony of Hrs. Phillips end that other witness given 
before Maeter Doyle is denied. *« * The court is net satisfied 
that there esa a effert made in that preceeding te 
represent the extate wili not sllow that testimony. I 
motified you of that three days ago and you asked fer time to 
get these witnesses in end you have had a couple ef days now. 
* * This matter was calles for trial three days SfO0 * * 
fall your next witness.” 


Whereupon petitioner called another witness, whe briefly 
s amd petitioner, agsin taking the stand and attempt ing 

) testify ua te certain conversations concerning said truck, had 
ome Jnnicki, engineer and assistant general mineger of the 


Soe eee 


eee 
HE 


rae 


- = ee) Yee ee 
Sie SE 


Oe ee SO Oe ey 
a eee 


Yt SE PRD eR eo 


SSS ee IT IL an em es 
ene re xe Ba i aah a 





a’ 
* 


ee 
ous od3 dai? ,mid 04 aiegon $228 toven ‘dotde 08888 Ye — 
ees. abe 


< Gages wif aet vyewtezéa teddons si z8ve baernus shrowiadie s 
Reqeheet eecirzes te dauoses Se eect rte aiade doa e009. od ‘todd : 
mis 408.060, 22 of weed) ogadé Yo ave edegetsgs ett ‘tise sad 


< is eee 


eueiteed edd ne sowedate semaive 62 beeu sosdat xevisoss weet ot 


Fra ae indy 





edasts soomedive e*someishing pabwekver a98%e sobaige | ’ 
“baa soot efysarodds od gabselex misis old Te ‘Gebieeg 3 $eas od 


ree 


esiemnpihewweptiniepecteret 
+88. 060,2¢ Ge Suedzy add vf shusd e'xerleost of@ at otates ‘asta genie 
avess pawas ease ds 32% paitood ‘ods te sols ‘eds 200 ee 
wile seeds an ane’, casneoms he soudé eds ts womteaas of odd hae 

“ga eemeieios misq anf ao “todase ‘aut exstied ‘sabtlzoed ‘hat to 


 wesell oatt WE heviooe: dex 22 nedy Howrd até to satay settam ot 
Ph ip BOSSE eh 


es x een zadte els ibee9 ‘a2 baa neldinaos aad ast Sas + 
sean xb seth ve s 


noge ban estael deus bekeed ames ont nettostse mag ee 
b setursee galvoile® ott eso tsoat okt wt gubielarsg sreseseis 


. ound? [wks te Gienktoud whtin ten thee t .Paueo 2a 
eevis ode! adams ol) ec9Y00 ahsiy oxom said” apenas ie 


» ees ana weil 















aovig agendiv sedge gad bese eghid iti 
ape sea al or ain ® # ee ee 
e? aeeaere 3. obra Fists . 
& eymemisass suds mg on 308 Hm er 
o¢ emis cet Seiden sey bmn ow egskh eapas- 
ono _eqab te aigzes 2 bad erad gey See ai 
® * seme syad eentt, sabes. we? seiies. ape. 











ee etalk: anes <= 


heal dour? Biss yatexoonce 


bh esis Yo cogsanm Levene imedelous bas woomigas « 


















Motor CoO+e, waz mot silewed to testify ac te them, and upon the 
sole groumc thet any statexents wede by Jonicki were made without 
| Guthority of the company and net Qinding upon £4 or ites receiver. 


GE. ST. GEORGE. Hew, your Boner, with reference t@ the 
value of the truck, I suppose voumsel would ebject that 

i seule not be qualified to tcutify us to ite value, so 

i eek that I be given Opportunity to bring up the witness 
who would know ite value and saw it at the time. I an aot 
preparec te do that now beesuse ef the fact that I alvays 
had the impression, thouzh the court seems to think i 
should not have it, that I would be allowed to read sone 
of this testimony. 


Tas COURT. I have reled in ali these Solémen matters that 
i wouldn't eller testimony given before masters during the 
Soldman regime. *“=* fe found menmy ef those were 
soliusive, and I am just follewing out the rule that I have 

_ Used Fight slomg im all these esses. It isn't in this 
particular cusez; it has been in 6li of theme 


BR. ST. GAOEGE. I would like ts Rave time to call A. vimter, 
who testified before and she knews this truek. I have teen 
unable to find him but I think I ean, if i get a few more 
Gays. iI was umable te do it yesterday or the day before 
because I was engaged in « trial.” 


Thereupen, upon objection by reeeiver's counsel, the 
eemiec petitioner's application fer « eontinuence for the 
pose of procuring the testimony of said @itmesses, “inter and 
Phillips, ssying: *I am Just finishing these Goldman claing 
‘hie is next to the lest ene and we must go om. (all your 
x witness or close the onse.* 


Mh. ST. GiORGE. Is the eourt aware of the order entered 

_ 4am this case for me to file this recerd before iagter 

 ~Deyle? ne to the order of January i5, 1925, 
3 oned 


THE COURT. Mr. St. George, you have made that statement 
here in the preliminary examination 2 number of times. I 
told you that we had stepped all the assters from anking 
on claims that were being heard by masters at the 
time that Goldman was reesiver. * * * i stepped this one. 
You came befere me and asked for the privilege ef writing 
it up im this case. * « * 1 told you I had ne objection 
_ te your heaving it vritten ap at your expense. There wag 
| &bselutely no understanding that thet evidence vould be 
| Used on this trial, * * « if you have « witness, put him 
 +OMs let's finish this mtter.* 


















add moge Dame quads oF oa yticees of bowtie: seit abit (ine 
éwods iw sham ere Iisimel qf sham etaemedage wee said bm wn al 
etevieoor afi so J aege gatiacid tem hae yaegeee ny s v 
sbetiwsee paiwolie? add , 


om ©5 -somsustoy Mo lw: sOuct sw0ey pwek .SeHORD 6 TS - 
tad Saeiee Siwex Lanmuqe oanegue k gxouz? add te cufar 

Om yauiay sf2 02 sa Yliteo? ef teltifiagp ed gem: aivew Bro 
eeensiv ed? qe gmizd 63 yd lave coyge pre 3 ed I gad? ges I 
Son am i cemit sts ta $2 waa sms. sndey's Sey pee: 
Sunts l badd Goat olf Se sanuned Gur Galt 46 of Siz ; 
az 4 doddt of umees iayoe ods sounds amp De) ye 
anes Anes of bosnite od binwe X dadt 505 ovat ‘eet 


of 


gals gueéian cemhiet geod wi bokws. eyed =. 

ais sxieub axvadcau sagisd oa wouliaes we 

sh etas geod? to. ymen.tewot.s¥. * *F 

evad i Sad? eis ofd duo guiveiie? jeri, ae . 

pitt Gi t'mai 23 .geace gest ifs ab eas ae 
mei te iLa at aeod ead 32. 4989 Ss 


<xednt® hte 63 ants oyad ee exit hluwe — goat ay. sae 
fees orad oXepu? 2 jc ape 
gen wh = ar ; i sbazsacr. Rit . igi Eee 
Steled 7 g ai & 2 ons aed 


Ser -ioenese a vevioves es aebsooise bese ieee rey. 


odd tok ‘eoneme tage * wet uni senting = eneen bee balaeb 3 
as See Ree B 
bees soamty eaousensiv hice te <monlieos ond pabuswery ‘to 


eatots mesic ened? gadde tat feat, ae E™. Saaiyae 5 


we REESE ESS er 
ge¢ Pis0° .ho ep gume 6 owe one Soak odd ov sxem wt wks R 





ert 

pe Ee RE ee: Seared lee ag 
: aipestace hatin: bal: 2p tke eee : 
+ ae ezetsd Hteexy eite SFE oF be to’ 
OF ate: Wns to eee x, 






-10- 

Upon petitioner eteating thet he had uo other witness 
present, ané upon receiver’s counsel stating thet he €ié aot desire 
te intredace any evidence in ite benalf, the court ammeounesds 
“The cave is closed.“ 

The heating consumec practiesily the entire court day 
of Hareh 5, 1926, but the orcer appealed from, diemiscing the 
petition for want of equity, wse net entered until 10 days later. 








The eertificate of evidence diccleses that om Zereh 18, 1626, and 
before esic order was entere<, petitioner presented ta the eourt a 
| so-called petition, which is in the astere ef an sfridcerit suppert- 
' hile motion fer a continuance, and aseked leaye to file the saumes 
petition ize signed amd verified os of March 6th. The court 
denies the motion and immediately entered the order appesied frome 

















‘after reviewing the prezent record, and considering the 

: tne and circumstances disclosed, we axe of the opiniesn that the 

| ft, aa regearés that portiom of petitiomer’s cleim for damages to 
ihe truck, erred im refusing te gremt a reasonable time to petitioner 
be procure the attendance of the witnesses, A. inter, Mrs. Phillips 
| febm Molski, er, if amy were beyond the reach of « omeeun, to 
their cepositions. fetitioner's evidence sufficientiy 

that he was entitleé to recover a considereble sum for 

jes to the truck occasioned by the unwarranted acts ef the 

Co. The testimony of the witnesses referred to, taken befere 
Baster on the prior reference, afforded seme basis for da7i- 
éetermining the semount of the damage. And we think, in 





ef Judge Seanlan’s erder of January 15, 1925, that petitioner 
warranted im believing that he would be allowed te read the 
| timony of said witnesses, so taken before the mister, on the 
as u hearing, and that, when the court ruled to the contrary, he 























| sound iw aadte ‘ex bash ed adv ynisete aedtd a Gulf dogs | 
ettash tom BIS af ‘Gest gakreds Loonies  *esvivoot aogh = wed 
theowietes Swoo ed Uinded otf ak eomebive vin eebte 
*.besels ‘ar 

Mab Five otto ods Eleotdoosy eid gattoad ext pe 
sit: etctent seen Sateen ear site = eo 


seman. ass ekiz ad. awash ss 5 stenisal Jae : 
dane od? “888 decel Jo ax be Lidaey sas bommbe st 
“MOTE helena Teds 982 bexeiar “sdatboamt bmn wonton wd 5 


Sg “ies PEP we 
ores galvobisnes ona sbresen tuaseng site siiaatves eRe a. 


oss tant 26 kaige ek Ye sts ow yhseolents eonstocune ie ban ade i 

ao sogeuns xe? atnis erametsteeq Ye sorry oaeie abuagen oo he ; 
wemalsioeg ot omia eidaer set & Jagex of aslenter ai bores yenty 
eqLifhK saat .rode2™ <A yaeoonzty ent2 te eomabaedsH Sit!» . 


ae sasnogiere: 2 te deeb 24 bnoyed ‘suo we nd lhc £ 


ced maar berneter ‘seonbadbv bpm te fp Pde con, 
“h26b 202 akesd capa padres oh 7 

SS Ames sv ba a . 

soap idlieg, add seat at 

ond Sar, 50, 


-ll- 
was entitled to « comtinusanee for « ressanable geried, se that 
the evidence siresdy heard might be supgleaented by the teetinony, 
either in open court er by depocitions, of sald witnesses on the 
@uection of the «mount of damage deme to the truck. 

the main camtention ef counsel for the receiver, relied 
upon to sustain the action o¢ the court im ¢ismisaing the petition 
fer went of ecuity, in thet petitioner is met entitled to recorer 
@my sum for the reason chit he come inte es court of equity with 
Whelean hends. 1: is argued tht he wauw guilty of “reprenensible 
conduct in connection with hie claim, comstituting a fraud upen 
the court," (a) im that he withérew hie filed claim fram the 
referee im bankruptey of the J. 5. Seuri, amd files the present 
fpeitie im which he claimed « largely inerecased sum, and (b) 
rs that he withdrew Kise claim from the batikruptey court uader am 


















mt with the ettormey for the receiver (Goldman) that if he 
dé go his claim would be taken eare of and paid out of the agsets 
: the estate in the Circuit Court, and he failec te dicelese, 
ither to the bankruptcy court, er tothe Cireuit court in his 
ot: tien filed, the fact of ithe making of such agreement. Ve 
et agrec with the conteution. *e é¢ not think that the 
aj record discloses eny reprehensible or fraudulent conduct 
le B the part of petitioner. Counsels' strained and unwarranted 
ea, many times regeated im their printed brief and argmeent, 
sonatitute proof of such cemduct. «nd ve fail to find any 
@, when petitiener ai the request of Geldmun's atterney 
| hig claim from the bankruptcy court, thet any improper 
agrecment then was made between them or subsequently 
to be consummated. As te the increnses mace in the 


k it sufficiently appears that the same were mag< in good 
Furthermore, petitioner's claim ig im reality 2 lay 




















Sats of gheiteg sidemoenes # tot souk liaee & BS bab dite 
eyneaitess aziz we podmousiggas ‘oe dete bas breed ebestts soushs 
wee 0 nsenscd be bhte Yo come lileoges ys ze $xueo sege at 
stlows2 edd 62 ened epansh te Saveur oat Ye ' 

hetiet yxe¥iooss od? set Lansmos to ne isassaoo when eat” 
woidtdog ‘exis guise tan ie ak su90 oid io netdos te aiatewa ote 
ereeet ee ‘belsices ten ak songtd ifog sods nt a wtihes te sac 
dake ge iaye te sume 2 Sixt sme oe foals nasser ott wets we) 
oldhanadeuyex* Ye YsLlwy caw oa Srsts nemgan ei ti -ebaad seed 
—— beaxt 2 pabiud téames wutale aaa dike mpeerietie aL oak 

| ed mos? minke bath? aid wexbisiw ed sedi ak ts) "eas 
hacienda ps veke® iets 12 aMes oo 2B eae le wvquadaed at 4 


Beep tes 
(g} ome are sesnongut elegusi. a pg Or nel stodete mb 


nS, ai 8 


| a cohnw fa0s egatined oc) moss minke oi wexbidiw oa d 
ed 2E aasls {esr Lob) asvlouss adi x0? wesossa sitd abe oa 


Pash zs 


ret 
ee 


Di ee 


adoass ed? ke ia hioq bus Yo ors9 msde? of biuew 
conefeais ae Seita’t od ana siti08 ‘dtmotk® ond ak ‘edases 
nis at S08 Siwoxid eat: os xe «twos wesquraaed sald et 
: 8 -dsomssage cose lo gaislan off Ye goat sid soars 
a ‘edd fads Matas ton od 9¢ smotsnotace oda dite 
tennaes sno iubuext 2 odienodenqor yas easoindte pxeger & 


‘qua bait of ‘fier os ah . dewbaos ‘oes aisité hind ledtiecanie | 
- xawrres és ‘elasmble® Ye dewwpsx edd aa. aemeks deg wet tiene 
seqeramd yas gudd- cose es a tats ia waked 


-12- 
@laim ee distinguished from an eyuiteble ene He seught the 
recevery of certain attorney's fees claimed te have been carned 
ané certain unlijuidsted damges ocensioned to petitioner’ s 
aute truck by the umverranted acts of the Meter So. smi we do 
mot think that the “anclenam hands" doctrine applies. Sut even 
if it whould be scensicersé aa applying, becauce of the Piling ef 
@ petitien in a pending equity ecuse, wherein he prayed such 
relief as *equity* wag reguire, still we do met think that the 
@ectrine should silitate sgainst his recevery in thie ease. 
MSG, 202 Ili.« 593, 597, it is exid: “He whe 





@omee inte « court of ecuity must come with eleen bends ond ons 

who does iniquity cxnnet beve equity, but thot moxim is limited 
im its epplicetion to where the substance of the thing is in- 

| @quitable, and the inicuity must apply to the perticwler subject 

matter. It is not sufficient to bar relicf that inequitable 





conduet should relate te the proof of some item or some fact, 

| and where the orizin of the claim is not inequiteble s fraudulent 
| act im relation to it will mot var relief." (Sec, alec, Fagan 

| We Beotberg, 320 111. 536, 594.) 

ie: For the ressous indicated, the order of the Circuit 








appealed from, wherein petitioner's petition wan dimalased 
ie want of equity, is reversed, and the cause ia remanded with 
| Girections that, ae to that portion ef petitioner's claim for 
“Attorney's fees and costs expended, it be allowed as a claim 
| age t the estate in the present receiver's hands to the extent 












| ' $1,080.20; amd that, ac to that portion of petitioner's claim 





Gemages to the truck in question, there be a new hearing or 
end further procecdings had not incensistent «ith the views 
in expressed, 








REVEREED AND AGMAMDED CITE DIvEcTions. 


oh and Barnes, JJ+s concur. 






























ods dgguoe oh =. 9 2idetiuop Ha mest bodekrgateels em chs 
‘beatae Heed avad os Semkato aaet s'¥satedée mingsee Bo. us 
a*toueis Meg o¢ Senelesese anjamed petsbhnption ataseon & 
Gb aw bee .09 uetok of? tg stoe heduextamm odd. yd donna : 
move gud, .seilyie entusood “sbmed macivaa” of sadd tubds & 
38 geil od¢ be sence? .gaivicge we bereadenoe ed Aluagia,: 4 
dows Soyaty od miesedw yeavee Yiluye peibusg # md me i: 
ods 22883 Said? fom o> ow LEbde youtepen Yam “slope” we Tobke 
+8oa3 Bids gl qreveoey aid danings sdesifia hfuode: aia 
cqsie oH” shdwa ef 22 qT@2 (888 .££L. 508 : - 
eno Site abasst aene dite enon énum ystupe Ye too.» osm 
bedttl ol aizer tad’ Jed yylupy ered seneideliiintiel 
~tt ah gudsit elt lo gonadeduy gis otoce o3 salebenenctitesar: 
gsatdwe tweiwetstsqg od? of vSqqs comm yshwotal edd bac. , ' 
eldaéiupeat ges¢ siker 8d af seeles twa fom oh at. « 
-ion? cues ae sedi omega to Joosy e639 of txts. biwede da: 
sesluieoe? a addadémpont som-et shake odd Ye ahatse odd ened 
Bene) genia 008) “,tekiog: ing som iLiw #2 02. settalox mi 
| (808 4580. .£53. 085 cauediees « 
StuozhS ef Bo tebte eff .hedasisel eaegags ed RTs ne 
oecgiaess aew aclzideq a ramelélsog siorede a86rt boLaegga § 0 
sie bebuemox at sauen ad hes sbosteven af «xsiure. to Ae 
. 90% miele s*teaeitigeg te sottxoq fads, ed a2 stats ‘nmeldve ui 
“miele @ se dewalt of 2 shobasgae afta, sic erbhs ati 028 
Seedae ef of gomad e'ssehvsot Sneseug. one wk etedaq od2 @ | 
aisle a'rpaaléaiseg te 624209. dedd 95 om gtadd bee GOs! 
ao gibieed woes od onedd. aia — 
evely add Sow daadeismeont Jon Sui anakss 


eee Litgesektiee 2h mae 


(ebet wtate a eames’ sngumedrre ae 


186 + 31328 







JAY BTOUGH, CORNELIUS J. H.HAINGTON, 


4 
GEORGE F. CAROLAM and CHARLES E. Loy, jj} 
. rtners unger the firm name of } APPEAL PRox 
» HARRINGTON, CamOLAN A LOT, } 
Appellees, ; SUPERIGN CUURT, 
é 
¥e COOK CoUNTY. 
ERSTE BH. HABAscz, | 
Appeliante /\ 


th 


| Me PREGIDING JUSTICE CRIGLEY SLLIVERMD THe GPIBZISCE oF Tm: cogRT, 











Ly 


te recover the reseoneable value of atterney's services, claimed 


| : im an gssumpsit suit, commenced Eovember 25, 1924, 
| 






have been rendereé te defendant by one of plaintiffs’ firs, 
“Gay Stough, during the year 1924, a jury returned verdict in 
Plaine iffe’ faver for $1256, and om April %, 1926, judgment 


was entereé upon the verdict agsinsi defendant, and he appealed. 











. The declaration censisted ef the comzen counts, supported 
pen affidavit of cisim in shich the «mount due wee stated te 
be $2500. On Boevember 6, 1924, Plaintiffs: remiered an unitemized 
, te defendant, ae fellews: “Te professionel services, 21250." 
a ite receipt d«fendant refused te omy the bill, upon the 
#8 them statec that the amount was exceavive and unreason- 
le, and the present suit foliowed. 
The only question fer our determinstion, ss we read 
present somewhat lengthy transcrip: of the evidence, is 
the werdict and judgment ore exeessive, ae urged by 
samt’s counsel. 
rier te the year 1924, ané while the plaintiff, 
“tough, ease acting se an seciatamt «tterney for « Chicege 
| of attorneys, he and defendant purchased jointly certain 


estate for re-sale at a subsequent time, and the 











eNO TORT LEA ULIsRN00 
+ SELGaRS bate 


MONT JABstAa to omen sit aa xoae ax 
hoa: eXGd & RAONAD . HOTS 
Te 25 HOT asata - eeoelloggé 


-¥iageo x009 
las = ra} m. a2 i. & 4 


&G OD «fhe bag DG: etmabdone 


ages SUT Co MOTEIGO WHY asaayritc TRL sora ouctaaa 


0 RR Ss ate 5 eee 

“—bned 988 sndeevel, bepue.uaeo > gol atemewny ae a i. 
hentnce qungheson , s*yearesss ‘gwSst 0h ne add. ois 
carck t Jathitmteia Ye ane x tanker tes oz boranaen. med een 
if ai toboxey a bemsudet it a sBSOL xem, ont pekcad wsgar085 
a ‘arog, aces 8 Lizgs so bam 20Bo£6. 0%, sor? 0% ome 
sboiasgaa Sa bus 2 imabpeted senleges dolnaer. ong: Og 


nud xoweare 22409 someon od? Ze p mond a 





| Of bevesa sow aud smuome, ast solir at malo te sbvabhiie. ta. 
bea tmes ine me doxebnet etitvatsly PSL 28 aeduove a> 0088 * 
*.088t¢ aetolvrse. iscolesstexg, er? ‘ tawolior ae sdasboetab ee a 
ods moge, +iad¢ ods Yay OF poawtes daehaotek telson: atte 





~moepetm bane ovinasexs, Sey Jamo ote —_ dheeteaes 


ae 
purchase proved ultimetely to be a profiteble venture te beth.» 


‘Im January, 1924, plaintiff, after about four years’ experience 
ae om attermey, formee the sisintiff fire, and from time to time 











thereafter and until Gotober, 1924, <cfendant consulted him pro- 
fessioncliy on certain legal mtters arising in connection with 
@efengont'e business and hie persons) sffaire, and pleintiffs 
imstituted three suits in acfendent's behelf. ‘pperently ne bills 
for services as rendered were sent te defendant. tough claimed 
that defendant seversl times requested that the rendering of bille 
be deferred. Defendont demied this, and claimed tht tough 

, wal times told Kim that, if the real estate venture, ag to 


















hich they jointly were giving some considerable time, proved 

he iteable, he (ccfendant) aight *forget rer the fees." Suring . 

oe Ey 1924, Stough, individuslly, imatituted am action ag-inat 

c : endent for the partition of esxid rexl estate. This ection dia- 
pleased defendant and resulted in the breaking of their former 

y relations, end subsequently pleintiffs' bili for services 

mentiencd wae rendered, which, ae “tough tertifiec, wes 

“on secount,” although it deca not om ita face so purport to bee 
Steough tectified in detail an te the legul services 

ia on cach matter, stating the number of hours consumed 

him, the charecter of the services, and the results obtained, 

| He claimed the value of the serviess te be over $2500. and 

' Chicago atterneys, basing their teztimeny on thet of “tough, 
te the charccter of the services and the time consumed as 

» testified as experts th=t sbeut $2500 would be 2 feir and 

ible charge. Prom an examin«tion of Stough'’s tectimony, 

fT, we ere impressed with the facts that some of the matters 

to are ef comparatively minor importance and the charges 

therefor are unressonsble, and that im othere most of the 






















sided oS oussmey eidaditexrg « od od yisdemiiin covess.s 
eonelasgxs ‘atosy tel iveds tetie «Tibsmialg .aSOl ee 8 il 
eh 2 od emi? most bas. garit. Pitenialg edd deaxet 4% 
-o%% wisi Sedivestion Jasheo tos ebk@t atedespo fits —_ 
diy Holioexnes ai gubaiia exaddem Lagel ainsise ao 
attismisicg ban ,etiatie fameeicg ald. San gadeiend ks 
eigid om Yidmexagg? + LLasied o*saahas toa ah atina ood das 
bembals dgeod? «daebnelted 92 deen oxew hevebaod we siaiate. 
abiie Yo gatvehest of3 Fos bodeonpet gamit Laveven Patek 
Higwoge Joel? Douiate bast gaksd beine® daranoted .peszeteb 

ot an eOIINSY ededas Leet eats x sods. at hos peaks fers 
beverg, s%u23 eidersblenco ames gaivig stew eisiet 3 ; od? a : 
_ Sank eae *-asek ex! sucde segro2” siipte Sigin (Sanbas tes) 2 aplns * 
fastoge woizos Sal besus teat eeifawbeytint elgg: ade oa , 
ais mottos abt +ogetee inex aise 3 mks biuag, < coeur bake 3 
t0axe% ahedd te sniasend eas at betiuser ame. , Smaeagpee I 
; asavso8 vox Lf2d ‘attidntatg Usmonpondsa | baa nokts fox x<itesed 
Gav holthsesd fguods aad pupae. ebetopaer 8 nav P 26 3 ¥ v0 
ood 38 teem o seat Bae a tox ween at daneds is pte : a 
eecivios Lugel oat a? an Liason nt palitinet 4 ast Pee “af 
bouwanos waned te odour aaa eitigese » sta, s , 0 : 
<feeksiite eéLanex at? Sits soolwiss eae % ratowsade | ods 

Bene = 00888 seve od 92 seskense ed 30, outer ods, pomtnt 


aes 
ey om 








tne ata? + of bine CORSE unde dad? afmeaxe- an, 


eyo hs od s"dauose %, micas | aa i ae 
ered dos ais % ones. oft 


nat 
Pe ee ee 








eds 20 om erode at ‘dete | oma age Pate 0 
UR ¢ te Foray Ree =. ind cman sw a 





time ¢laime< to have been comeumec thereon was unneceesary, ané 


thet im ethers, for which large charges are made, the reoults 





lof the services were ef no benefit to defendant. 


There ia no quection But that Steugh rendere¢ some 








services for which defendant should pey reowenable feea. But we 





| think that the emount awarded by the jury eas unre senable ané 
“excessive, and that the judgment should be reduced by a remittiiur 
@down te =3 “heat was said in Haigzh v. Mumday, 12 Ills Appe 539, 
1649, 4s =<pplicsble in thie ease: “the general rule is well stated 
im Eggleston v. So2rdman, 27 Mich. 14, to the effect that the pro- 
fessional skill and stemdiing of the persem employed, hig experience, 
| the mature of the controversy, beth im regard te the snount involved 





| @Mé the character and moture of the questioms raiseé in the cxse, 
fe wel) ae the result, should «11 be tuken inte sonsiderction, in 
fixing the value of the services rendered.” nd, as te the 





testimony ef the expert witnesaee referred to, the cecicione in 
Meiennomy ¥. Chicago, etee Re Cor, 167 Ill. 497, 510, and Lentner 
¥- Kesminoki, 171 111. pp. 570, 572, are in point. im the 

a Cease it is sai¢: “‘hile opinions are receivable and 












‘Satitleé te due weight, the courts ere alee well qualified to form 
r r independent jucgnent on such questions and it ig their duty to 
‘d 3 . — 

| Aecordingly, the judgment of the Superior court is 


pieintiffes file sith the clerk ef this court e remittitur ef 
©, in which event the jucgwent will stand «effirmed te the 





ABPFIREEDS OB RERITIITUR oF $4505 
OTHERSISR REYEASRL: AND BAWABDED. 





a and Bernes, JJ., concure 





















Ste .Crsnetesnse soe mooted) Somwemée aed owed of bombar 
tinged wd? ¢ shaw Sta eagunds gurel @oldw det ,aredde a % 
| <eastusten of fitened éa-10 Ree — 
ween Sevebaed siywod? sods “Sed meitaoug om ek evedt 
ow dui geet bf¢arice-ex Hy Liteds tadbitetoh do tee set eee. ‘ 
bets OLfexee-stmm axw Yew ot Yd battews samdee eile “Gdie Me i 
Haikisiast a yd hooded oS Muods snamgont edt tdad bad lovbused 
C28 Vga SEET SE oydbme wy delat mt Bhde ese ate” shercetoves: | 
Sedete Liew si Stes Lavemig att” seed elds at Stéedttdge ae 
nomg om? destt S920 BH? of .8f sdort TS .membicet ov wt osantys a 
yousslusgss did ,bevelgas moeveq off to gaibesds’ van 14a 2 | 
 bewlownl tnuomé 8dd Of Beoget al deed ,qedevetsnen oF Ye 5 
- ySaee edd ai tewkes amatsadny ‘wails te wumdat Bas vissouaiean’ 
at ,aehacashiencs out sedet ad 10% Simetle ¢disevs aulasies 
“gig od ea .S “. betebnex esolytis edt te ewter o: 
ai anetstesh ed? sed gertelss sseaensy viicags: wate 
sates fan r0%8 00s Eto tok’; ge she 288 4 sbasstds “vs 
“qld si .du2og BE ore 200° O08 sdgk Sixt Cee hee 
“* °" gas gidevioeex ais omeiuign Sie" ithee wa 22 Sise ys 
acot af Saltitawp {26s ela exe Weived edd stagton sas 68 
gt ue: “heads a “Ef bas nadie sous me sesegoul “dwabreg oa a 
oe) SE GR 2 "te ates ge tmelee ome ps 
a2 dtseo wodseg@s salt To Fnditgant eit: rehdiaie ieke a 
et Siddiw gests ,Leli? wea & tet Sodiiondt a 
te mdigdises © sadee alae Ye ote ace Hone ek Yt eFetendat 
“eats 08 pomeeeT a Sines ty saat bt dn dts 2 


ae ieee Fh.A eae nibs Aa oe ae » Sie 











B20 - 31352 


GUST. KARAMBELAS and 

JIM GEORGESGH, ecopartners 
doing business as 

EK. & Ke PRODUCTS Co., 


APPEAL FRO WeICTPAL 
GOULT OF CHIGARG. 


i ee Mn tyne Baty rst Rr Rian Mi 


Appellees, 
Te 
LOUIS MATALAS, z 
appellant. 


BR, PRESIDISG JUSTICe GRIDLEY PCLIVERED TRE OPINION oF tHE COUGET « 


On December 14, 1928, plaintiffs commencee an action 
im seoumpeit ageinst defendant, = resident ef “enesha, “isconsin, 7 
te recover @ balence of {1517.66, claimed to be due fer certain 
Merchandise eold and delivered. freceedings by attcchment in aid 
(Becnuse of defendent not being a resident of Illinois) followed; 
the beiliff levied upon an auto-truck and certain goods @wned by 
defendant; and, Gyon defendant giving « forthcoming vond, released 
the attached property. Defendant entered s general appesranes 
anc subsequently there «20 a jury trisi, resuiting im a verdict 
and Judgment against defendant for the full amount of plaintirrs? 


in plaimtiffa' amended statement of cleim varicus sales 





ane deliveries of merehendise, Cites from July is, te Hovember 21, 
1925, inclusive, and the ssounts eherged therefor, ageregating 















$6,783.94, are set forth, ac are yarious eredite by cash or check 
‘from August 1 to November 21, 1925, aggregating $6466.23, all 
rane & met bDelames due of $1517.66. flainsiffe aleo clinimed — 


‘thst, Seid sum wae due because of on account stated’ as of November 
‘2, 1925. Im defendant's amended affidavit of merits he claimed 
‘ae he ha¢ paid for ll merchandise delivered te him and denied 


y aecount stated. 








On May 7, 1926, felloving the dury's verdict, the court 





















| SANTOINI MOMT Jawa 
| sOBADIES W TAvNO 


IO PO NE OO ihe gO IO REIN, 
&s 
* 


Ee ee a 6A @ 2 eo 


ating dab 


TRUS WNT Qs ROTEIAS Get CLARE Lake VRELAQ aorramt 


: snkiee, ne voosammss extlialals “bil a scdeciisett 20° 
_ eaienooel’ rodaono | te saobtaor 2 sSacdad tes: dandage ¢ 
nisaxes 20% ab bs og. bamdeto 2B. TLELi Ye oomaled a 
bia Bi gnamioos2a xs aguinsvoen sbovewiieb bas bioe i 
{dowolle® (alembisi: 2 imobiect # aaied ton imobaoteb 20. ss 
wd benve shoey aisiis9 bas doutt-ocus a8 aoc be ie “TLied @ 
peu soken «baed gadavodsse? a pabris ssebao to Lseal Sead ‘ ame ate 
BORATSORLe inxeneg # serosu9 sanbeo red reqezq Ss $i 
godeuer we mi aalsivaos eekrd. eat 2 ase aod a 
sernamlale 2 sevoms Lis ont. x0? tacbastoe desta te: 


7 B, 








Ste | BE008e§ emai tse ines : 


Nees Sees <P ee rac > 
beakate eels evtasalads “bo. SLEEE 1 ok: vies a 
gyre x dager s 


sadinialt: Shak bekebe. tawoces. ss te eaunoed sub saw 
hostelo ec stizes 3 2 ——* 7 
basmo> dun a 08 bot rodesen. 


truce edd .f@siocer “— ed 1 test 8 


ee Eee ey ee OO VET 


Be 


entereé judgment egcinst defendant fer 51517-66. ‘ithin 30 days 
thereafter, om June &, 1926, the court amended the juigment order, 
fume pro tune ss of May 7, 1946, to the effect thet the sttachment 
be sustained, omc that, im accition to the general execution 
ordered, a “special execution alse issue against the property 
attached herein.” 

We heave reviewed the evyicenee intreduced by piaintiff, 
as leo the testimony of cefendant, ami ve esmmot eay that the 
verdict is mnifestly against the «eight ef the evidence, as 
contended by defendant's counsel. We think that the evidence 
sufficiently disclosed thai there wie am acceumt stated between 
the parties ac of Movember 21, 1925, showing an indebtedness for 
Merchandise sold and delivered to defendant then due and owing 
fm the sum of $1517.66. (First Hational Sank vy. Kuight, $6 111. 
Wl, 193; *eigle v. Srautigam, 74 Ill. App. 285, 292.) And we 
‘think that the evidence sufficiently divclesed the sale and 
delivery te defendant and at the prices mentioned of the mer- 
thane ise in question. {Price v. Sohn, 99 Ill. App. 125, 114.) 
defendant failed to show ony payments te plaintiffe which had 
Ls been duly credited to him. 
| a Defendent's counsel also contends that the jucgment as 



















da ly amended ané entered is contrary to law, im thet there waa 

, , @vicence introduced sustaining the attachment issue ond that the 
Fr ry did not pees upon that issue. The fact that defeniont was a 
dent of Kenosha, “isconeia, was not questioned om the trial. 
Weds defendant, enlled by plaintiffs under section 33 of the 
MEAGipei Court Act, admitted that he was a resident of Lenosha 

ond ‘@ngaged im the fruit business in thet city. There was no 

isue to be submitted to the jury as to the question of defendant's 
@. Amd the court had power and durisdictien, at any 





>i 



























ayad 0% mias2¥ 00s PLZkS «0% onoeae 8B Jamiasa ~amamgout te 

steht Sencsouey ast, ane “bs neteeue sawe0° ‘ea .OREL- ce Senne so 

treason? 36 ‘sie fade foatts at? o8 .aser- a call Ye 88. Be 
soliunaxs fereneg ‘gid ed sels this at «Sade ve 


wisqeta. ‘ead all saank ‘outa Bo kiveexe Askosgs* 8 


ettisaiale x? neewbertat osae dive wate sewet¥st vad ov 
eggs tats qae Jemmeo oF one yiHebdze td, te Yao2 aed asle « 

' ge goumebive edd Ye idgior az “Semlegn visestines “gh i 

eneebive edd 3200 Antds 6. teenwoe atzashestes od 

peswasd pefeta dmwosox ke eae Subst jattd Soaotoate Ub ok 2 

xot espubeddoimt an grzvede 2506 Lis tadubvel Ye on aotieng't 

Sgiatwe fas exh sess smsban tod od bewevited bas bfen ¢ 

; sek) ode FEELe to mes 








‘ew Bee te & at ‘ 
‘phate “saontoests issn estates: aedd ws 
iene ols te bomelénem seokg: ent so hos aniaton oor . 
4,82 tie og 2£F2: OR: eslol sy sotets ae 


> $ext sericea stitdetalg oes dneenyan. mee wesie: Of: gelta® 
said ot beet beto eles 


“ea taghat adoantann’ ont Seem! eAEmaeaN TAS | 
« pave Sete garka mk at ywaf ef yiononos st Dexadan: hae beonienen 

edd jrsfe Oa oxmet tnnentontuis: ot gatanatoun: Sompbuta a oa ben’ 

@ cow Omabneted sods sont wat somanh sod megs sanyo 

isted edd mo Daastseenp ton cow stand ann 9 

| ads to 22 welisee sobmy eTRIsKRele We alten pin 

\pitgeset to tembhwes aunaw od: tart fattimbs «toh due? Leqgho 

ge naw quem? ote dods mt wesakend Toekoosh mE sai 

a’ hemnie amas a aiiearen so een . 

gia a5 vsotsorbatsa San Tovey hed Saute SFR sb 

Hrget, wie ombaeee ts Ps MS -.. 


es a 2* vf vee. 










| time within 30 daye from the date the judgment woe entered, 
| te amend it as the justice and right of the ease might seem te 
|wequire. (Krieger vy. Sricger, 221 Ili. 478, 484; Hdwards v. 


| Irons, 73 111. 583, 585; Grubb v. Milan, 249 T11. <56, 461.) 
Finding ne reversible errer im the reserd the 


| judgment of the Municipal court is affirmed. 
| i APPIREYD 


| Fitch ond Bernee, Siey Concure 







shoredae eow Insmgbul, add sich edd mort eyed @ 

















92 ap0a, sshahainindiagais Ne ao edt a ie 
a tow ies {Re cg AES EE scien 


2 


BS ee: et es. 3 SEG 






es 


ee ae use eae aS Ue 
Same es a SaaS aR SU ia 


papluceaines) “Tete da Mens asa eee oR bags poesia: Bote: 
8 36 Sahe ih meets 





at: Cae 














230 - 51362 


BIAZARETH GLOOR, 


) 
Appellee, APPEAL FROM MUNICIPAL 
Ve ; COURT OF CHIGAGa,. 
QHANIZS COOPERSMITH, j 2 
Appellant. ) 


MRe PRESIDING JUSTICR GRIDLAY DELIVER“E PME OPINION OF THK COURT. 


Prom an order of the “umicipal court denying defendant's 
motion to open a judgment for $470, entered against him by con- 
fession on a written lease on April @, 1926, thia appeal is 
prosecuted. 
| By the terme of the lessee plaintiff demised to defendant 
@ certain apartment in « building at Bo. 1058 Loyola avenue, 
Chicago, from May 1, 1926 to April 36, 1927, at a monthly rental 
Of $135, payable in advance. The judgment ie made up of the rent 
due and unpaid for the monthe of February, Harch and April, 1926, 
and $68 attorney's fees. Wo complaint is mde as te the amount 
¥ atterney’s fees included in the Judgment. ~ 
Within 30 days ufter entry of the judgment defendant 











red and moved the courts, supporting the motien by a ewern 

| tion, that the judgment be opened and that /ve given leave te 

, fend upon the merits. After admitting the execution of the 

ASE» etc., defendant alleges in the petition that on January 7, 
926, he “vacated” the premisea, ~- the rent for that month having 
paid; thet on that day he presented to plaintiff a "auitable® | 
% tho was “ready, able and willing to poy the rent * * for 

ihe remainder of the term,” but that she "refused to sub-let 

, hi premises to said tenant,” setting forth ae her reason the 


TACLOLNUM WONT LABIA 
ee 70 taRMIOD 
eda ht foie 


@ fl © Ub 

















»TAROS ae: %O WOLMIGG GMT GUASVIING YARDITAD SOLTAVL OMICISARE «1 


A Cro ane ced, 
a *emabentek nitinia s189% Lia betes oat <0 ‘abs he ‘mort j 


“noo vd mint Jeskene berodae .OThS cot sSereargeul a noqe of 
at Lnoqua mtd? «O60 .0 Linq mo ounnl nodtiwn o we nok ec 
ss . 
tuabavted of bentmvh T2idmialg eesat add be named Ok 
ours skeen HGOL se de yathlind 2 md, Janastage mindxoe 
iaduex vdeo © do yPSUL OE Liaga os Bee a val mor? somes! } 
ox ond to qa obam al guomghet oat .oonnwds mi etemyng ‘ & 
eDSRE yLiwga bas dow yyxewado€ to asdnoe of? tot bragaw baa 6 r 
sasoms ed? of us ohom a2 tutatanes ok .apek a Nomnosae eae ' 
~ ,davegbut edd st dekutonk eno? atysmsetse 1 
inshastoh seoaphurt ects to Wane Tee te aye OF atdary 


il 


nieve # “ed oe arid gal srocewe aixwes ody hevem be 
ef ovael moviy od\saite Soma burton ad daamybut edd sedd 
els te meliuaexe arts pms sibs neat) sedkvom eats noge | 

a? Ytowmnl mo dade mekeiged wt? ma aegolia daabastob esddo | 
gikvad dinom tnt 18% smor ost ~ I eecmpsnn ast forvny gh 


tofedue od boautor* ole auetd sud + mies mr 2 : - 
soaks noanwt cock an Ad to% patesee, "hanes bhoa of atc 


‘gt 4 


a» 





*yeligion and mationslity” of the proposed tenant, “whose name 
fe Bane"; and thet “on or about March 15, 1026, the premises 
were re-let by plaintify." | 

The sole question fer our detarminntion ie chether 
defendant's petition, taken in conection with the covenente of 
the lezse, stated such facts as required the trial court, in the 
exercise of # sound discretion, te grant the prayers 

Tm the lense there iz « covenamt that “Lessee shall 
‘not sublet" the premises, or any part thereof, “mor assign this 
‘ease without, in each case, the consent in writing of Lessor 
‘thrat had and obtained.” And in the thirteenth paragraph there 
lie the further covenants 


"If Leesee's vight to the pesseasion of said premises 
shall be terminated any way, onid premiese, or any 
thereof, mays othe Bak Boke be re-let by lesuwor, for 
account and benef eueo, fer such rent and upon euch 

terms and to such persone ond for such hay or oa eg 
6 may eeem fit to the aeerers bus Lesser shail Bot | 





nor to do any act w eereers or axere cy aiid , 
| Whateoever, in or sbout the proouring of B... 4... re srentel 
| oF Senant to geste the oy oi of Lewesee or otherwine, 















Counsel fer defendant eontends that where a tenent under 
Written lense abandons the demined premises before the oxpiration 
tf the term it becomes the duty of the lesser to take charge of the 
ises, and if poseible to re-rent them, and thus reduce the 
t of the leecee's liability. In support ef his contention he 
several decisions rendered by some of the appellate courte of 
As “tate and refers to the following statement aw contained in 
| : @ opinion of our Supreme Court in Vest Side Auction Coe v. 
Snneeticut ete. Ina. Co., 196 111. 156, 162, vias “Upon the 
mt of the lensed premises by the tenant it wae the right 


of the lendiord to take charge of the premises, 






















asvaimem eis g7nes vane) sioxsk fuede to me* sass na ‘ m vent 
a ae Ww We ab 


” *, Yebomtelg ee aaknox ‘ 

soa sane ve cabteniegntr 200 Sot wohtsenp oles odT uf if 

Yo asasneroo saad ai hw fe Lt oeamop i moadkad HOLE LOmG bai a 
eds oh ,otw09 Labss aig bortspet aa atoat down ‘potate onsol 
| stoyotg add sancy of eno dt onoatd paves. ae) e C o2 
tL asin waneal” Sauls saamevos x ak ound onans ats al 2 


4 " EPO Bye in , ‘s 
bis My bu 2 son" ‘steered rong we co ‘seaimowg ona * setae 


ia at. a RR 
“toneot te wats ber a moanoe os «Paes oso ad sweatin | a 
. aed i Beet ae" hey wm sw ™ 


oxed? Agoxyenog dtmeoguhde oad = baa *, destarée bate oa 9 
eal ONY 


“Admanevoe wont a bdal } 
eT ® sant ss aw a a mh es a 
ing a eke te _2e,solanousag, ‘a oe tags « oeenad eteognat i 
ong yee me. 
<o% eros on “ed Fn rng ad ace sieereas 
: see a 


tee hege bee faes Some tet ye 
tore XG miele Be it ba be 


aliaiiabn ond eze20s qratenny: den bent act 2 ste Ga 
old te emeoate waked ee geneel off Yo xia, jot RIGO & 
ed coabde suit ona qmond seaemon ot osdinnog Ag a 

wh Beliqednos aks to azoqqum aL a WhLidokl g'oanage asld.20 
to aio otgiloqge add te owe Ww /maxennny suioteioed ax0v03 90 " 
kh hontasnes ne tmometade gakwolte® add o2 a0 gear - 
+ 090, mo.ktgmn obk3 doe mb tu09 sbcabuininds 


ait » See sake gid abeh ALR, gril 
sigts ode naw ah bdesonge 7 om hs 















Fh eae pratt yy ¥ nee ‘i 


9 am hee BE ant to wpred wen | os oceans « wis 20 mab 






























ci 
preserve them from injury, and, if it sould, re-rent then, thus 
reducing the damages for which the lessee wae liable.” In that 
ease the lessee sent to the agents of the lesser the keys of 

the Gemised building, with a letter to the effect that the leseee 
ould not use the building, te which the agents replied that they 
weuld not consent to a cancellation of the lense; after the 
agente reeeived the keys they put up "to rent* signe om the vuild- 
|dmgs the lessee claimed thet this showed « surrender of the 
‘property, but the gourt held to the contrary, and, im affirming 
[the judgment rendered by the trial court agsinst the lessee, for 
iment which accrued after the delivery of said keys, ete+, used 
\the language abeve quoted. In twe prior declsions our Supreme 
|\Geurt decided that “in case of an shandomment without feult of 
\the lnndlord or as the result of his acts, he way re-enter and 
again tent the premises and eredit the lessee with the proceeds, 
ane his so taking possession dees not relieve from the payment of 
rent." (Humiston, Keeling & Co. s Wheeler, 175 ILl. 514, 5165 
Marghs}2 v. Grogve Clothing Gos, 134 Ills 421, 424.) From an 


ay 


‘opinion of the firet division of the appeliate court for the 


02 Tlle Appe 418, 423, it appears that the decisions of the 

a 3 late court of this State are somewhat conflicting upon the 

we ition whether, efter abandonment ef the premises by the 

e @e before the expiration of the term of the lease, the , 
me must, if he can, re-rent the premises, thereby lessening 
. tenant's liability on his covensmt to pay the remt reserveds 
@ apprenend that this seeming conflict may have reeulted because 
t ditcorent facets or different provisions im the leases in the 
considered. In the onve of Haw ve Bakex, 113 Tile Appe 


153, decided by the Appellate Court for this (first) 





















end ead cume~-ax ghfgoo- 22 22 , bun « etabat aoe? mane 
feds wi 8 “Sekdsil caw owaael eet sto Lalw x0? asgeuoh ont 
te eyex ont sgenel oft ‘to adneys wed oa dmea Pe oa r 
epmael ect dudt dyethe wold oF r0sdat » Siw rpaboied peeks 
wuts dnwkt bariqes atnega any solsw of em Eka end oan ton a, 
“odd tedts tounel add to motieifoonne a of “tmoonoo de toa bl 
~hLhad add me “seg ke "se as* au sq world ayou est Heid Wy 
ed? to xehneswe a powode pied batt beataLe ‘oounel adi | 
prckarst ts wd + baie ecko xémen od of kext dxnoo wae aud aun 
10%. aonanod oat tomkegn ‘tw0898 inane ont we perobaws eh 
boas go030 ao ates te wroviLen out ‘sa¢%e heybon atniaent 
easraya. zee emoleioo tolm ows al -datouy eveda 


(Yo Aine? dwodeiy dneemanaeds na te ona0 > at" sont it bonions | , 


amin iion nai ow — ‘to goad snooet tele mi Wittens @ 
nate $s’ eb La ihe WHO Pied Whabeel ida’ i ee a@h oid tt! 
Odd hing patel tines Hamwéwoe baw dest abet w Ann ‘te 
ate ed otebeo ty wt to Fatanobkads hosts | 
Oat .okeod aad Yo treed of} 2 Me erkyve ab reat 
“ahaha eink) (bbe bibet” dati seiesor ae nie 
chowroaux Sew vad yoq od Saambvon elt me piihidesl | 
satan od f bedinaet overt aad vobsiawe ‘gate ‘ote: ‘teays 








WGGA sLLt OLE 1 zapkat + te oune ede RE 
ae "hep wide ; i BR WEE f pPiaRa {id 


(dork?) abste bi gxw0d sdallouga 


ee 




















| he 
| district, it ie said: “vhile in ease of abandonment by the 

| tenant the authorities sare thet the landleréd my re-enter ond re~ 
rent, if he cen, we know of no age im which 1% has been held 

| that the iendlerd must, if he can, re-rent or lese his remedy 
against the lessee on the lence. * * The contract remains in 

| force, notwithstanding the abandonment of the premises by the 
temant, and the tenant's covenant te pay rent is umimpuired; and 
we gonmnot understand mow the tenant, dy hia own wrongful act, 
oan impose om hie landlord the alternative ef diligently seeking 
| another tenant or losing hie remedy on the covenant.” In Hermon 
lve Gallaham, 214 Ill. App. 104, a cnee decided by the third 

| ddvi sion of the appellate court fer thin dietriet, the court eadd 
[(pe 109)* “It would seem to ve the law that * * the mere 

| abandonment ef the preaiees by the temant ond re-entry by the 

| landlord does not give rice to an abligntion om the londlerd to 
|@méeever to re-rent. Of course, after re-entry, the landlerd may 
by writing make himself lisble te exereise dlligence in re-rent- 
| img, or he may re-enter and re-let and he chargeable with the 
‘Fents he sactuelly obtaing. But, in the absence of any euch 
/Yoluntary conduct, more abandonment ond re-entry do not gblige 





the landlerd te endeavor, by affirmative action, to decrease the 
tenant! s ifebility." In the Hirsch case, aupra, it sppears from 
the Opinion thet the tenant had yoeated the promises used for 

ee: : business purposes before the expiration of the term of 

h lease; thet prior to his doing so he had presented to the 

a “thoroughly reliable” ossignee or eublessee who waa 

“3 amd able to lease the premises for the balunce of the term 
r e there conduct a different kind of a business, but thot the 

. had refused to accept the offerad tenant, either ae 






























oid ye temmoshneds 20 osno Gt akaAm shkee eh a2 doby 
nox bat tosa~or yon bre Ltnnd ode auld Onn watdtvedtue eel 
bier teed wan &2 deidw al euse on te work om 4 nee ot be / 
honor std aod to seox~ve yee va UL cdma bxoKbnaL wily 
“mE asihnaod Senténbs ed? © > vonnek ee no wouues otto Beal 
ald 4d eeaimoty wit Yo seosteobrods one yakbeoreivew vo 
bie {DvTlotate we tee Log OF saansvED a*vuONDe otf dum 4 Sel 
tou Ltynorw nwo eld YC etme one wart Desidewo Re | 
gutsiven vizeogi iid Ye ovidamrredin ems broLomat att aa songeh| 
xomesh nt". omaneveo edt om ybomer chil galeok ce Puamed , ‘i 
 thekdd ons va bobioes sand @ yhOL vqqh ef LD Ske y Lie! 
bice Sapoo ads ,dohisesh aids cot sates staiLeqga vale we ) 
eet et * * Faso wed whe ov oo mown Rhuow 4I >) af 
edt Yd YIdMOWE dee sumed ods yd sontnony odd Ro donut 
of wrolonel odd no Mortmalide us of <umeart 7 ; 
Yas brothas ons ,yriae~ou 10s te yeeurES BO. sOnetestt Of i 
-thet-or mi sdeegiih entetexe of eidekk YLowmhd tam ats by 
‘edd Hdlw eldecgiade ed bas dek-ox das aetoosen yam 
weua ye 6 oonseds ode wt oul semkosdo YhLiNtes on 
gailde fon eb yxtmo~ow Gms tnommshasds ‘ert , dovbago 
odd eweorseh of .aoleon evitomtlttn “dt: ‘Sroveebae ‘ee 
moc? eresqes 22 «atgey (endo Boag th wt wt *,qoegheane 
to% tiuiy avatmorg off botoariv hit damned erty dads ‘nekely an 
to mitod adY to wolscitgxs eit ocerdd sedeqtig ‘ancatend whi 
‘edt od bodnonote bait od oo gakéb ctst*d wo bed ond Poades 
ake Gite oedketdde xe dongtena “oLdad roe Udquoteds” @” biel 
aed ud) 20 opmelad uy 48 wdutmnng Yee’ bowel Os ‘ate te 4 
‘tel? Sods Sad pedombamd a’ te Sata tawaetenD a's | 
8 taddko ¢dmnmEd hoteRte oafs » eqeoub Ot b 


eT 
4 ¥ i AN ae wih ie ‘ M aes | 
Be Ree) AL A aa 1A AAO TARR ag Cs yl 





| <8 
| aesignes of the lease exeept at ea largely imoreased rental er 

| @8 @ sub-tenant of the defendoent, that the seterial covenants of 
| the lease were the game substanticily os these im the present 

| ase above quoted; that, three months’ rent having scerued on the 
| Lease after defondent had vacated the premises, the landlord 

| caused a judgment by confession te be entered ageimet the dofend- 





| amt in the Superior court of Cook County fer said rent am 

| attorneys' feess that after defendant's vecation he had placed 
the keys of the premises im the lendlord's hands, and the latter 
| had put up “to let” signa but hed not succeeded in re-renting: 

| the premises; that defendent's motion, supperted by affidavit 
setting up thewe facts, to open up the judgment, etos., was 

| denied; anc that he had appealed. The appeliste eceurt held 

| that @oid tenant's affidavit in suppert of his metion to open 
wp the judgment "failed to set ap a meritorious defense,” and 

| affirmed the order of the trial court, saying in part (p+ 426)s 
| "The lease, by ite terma,was not sssignedle, except by the con- 
sent of the plaintiff given in writings yet accerding to this 

| Sffidayit the tenant in possession made demand upon his landlerd 
| that he accept a tenant other than himself and a tenant who 

| proposed to conduct in the premises of the plaintiff a business 






She lense, might be conducted therein. It would certainly be 
r ‘novel proposition to held that a tenant in possession might 
MEN Fotee convent to an asvigneent from a landlord.” 

In view of the covensnts contained in the lease in the 
mt cnee, the statementa in defendant's sworn petition in 























to Liteor howomvent “lepwmd » dn Sqenkte simak etd tea sa. 

‘to wdaengvon Lattoton eff tatd ptanhastes edt to @neand—d : : 
daoenty afd ah ened? oa ylLobimadtodan omna en tne, : 
ats eo ioexoom aabved toon fait mde word badd 4 bedanp 6 v4 
SweLdast ode ,wowkued of) noteowy ket Sncbaoted notte ws 
«(ate a? tagtags bexetin ad of molenetston td sromgarh w | v8 
han sve bhis 0% Yared toed terezie: -salrequeeds ae 
Desaly hat of nelécosy a'imibme ted tedte ads quoek "ey “ 
Taitad etd han ~ahoad athrethaed ot mk wonkmong ete te angel | 
Getidter-92 ab babowsouns tou bot ted sapke “Sek od? qu ti i 
tivanatta yt wedueqqas smobtem aldmahme ty) Gadd 1 va ba " e 
Bev ends gtavmgert ex? qu Mege of eadead coed? qu + 

Adgd dumme ebalieyqa wht «heleoges bad of dads sents use 

sein 6S mokoom oid Ww ouegqwa mk stveblY ka atemaned %, baw i 
ite "youn ted seokzotines » ge tos 2 hodba't”, sevempit 
a(R) eg) Scag ah gadton ¢tteo Leine odd Yo. xebxe oad 
wee end yC tox yokdenpisae tom saweumed ast. whi veneeli 
aids of gatrxeoes any Temkshuw of sovtp. baineeaitees we 
pete Smead ean Reoombe cnet sian deine a teen a we 
aueaiaud 2 TUiskaig eff Yo avoimucy end wb soutdaon oF heneg 
_e ames ond 08 galatgoos eMelde Jas mort roveevabaines 
of Ylalatoos Aisvaw i salenedte sofewhaos od sighs 4 oe 
sgt moseaoanog mt Mmened o dose bkad a2 mee’ 

i “ehwadonel » most savomphuas 
one at waned att wb bemkesnen, admanoy ult, wey at bess 
gi molsigen mrowe wtamoban ten oa asarnmend sat noes a 
stodeeauy mi ameagbuh Senaetaon edd moge e¢ moktom ald. 2 
eds 20 oua,ew pamohedoos. 2onn.iaaen. veto sabe ae. Ada ot 



































=6- 


aiieon thet the Zumicipal court properly denied defendant's wetion, 
fis petition doses not disclose thit he has a meriteriows defense te 
plaintiff's claim for the rent which ig the basis fer the judguent 
ae confessed. Ho alleges that he “yaeated" the premises on Jonuary 7, 
2926 (when there was more than © yeor of the term yet to run) but he 
states mo reason why he did so. Ye farther alleges that on the day 
ne eft ha presented to plaintiff = “suitesle” tenant, whe was roady 
and fele to psy the stipulated rent for tho remainder ef the term, 
but he does not give eny information concerning thie propesed tenant 
other than hia mame. Me further «lleges that plaintiff “refused te 
cub-Let the premises to exid tenant.” che nad a right te so refuse, 
| er wn express covenant contained im the lease, via, thot “Lesser 
shall mot be required tc accept or receive any tenons offered by 
lessee." Furthermore, the porties covenonted that, if the lessee's 
right te possession should be terminated in any wey, the premises 
"may, bub peed not, be re-let by Leaver,” and “Lenser shall net ve 
| * * to de any act who tuouvers er exereise any diligence 
ever, iu or about the procuring of anetiver eccupsmt or tenant 
te a ttente the dawagea of Lessee or otherwine.” iiefendent finally 
@Aleges in the petition that “on or about March 15, 1926, the 
premises were re-let by the plaintiff.” This allegetion is notice- 
bl for what it dees not atate, via, shen, under the re-letting 
: ‘ ot, the new tenant took or was to take possession. For aught 
t Sppeeres the new tenant was not to take porseasion or begin 
; rent until May 1, 1926, and the judgment az confessad only 
a. @@ the unpaid rent for the months of Pebruary, Moreh and 
: i » 1926. 
2 Yor the reasons indicated the order appealed from is 
AFPIVGIED 





ané Barnes, JJ., concurs 








| ' snp been at iashreteb halneh Yxeqery PiH9% dagketaul ads ost mod . 
of panste suoieeisom » ad ot so? puedonth Jon a9ad mmtitaa 
tnewgbul ests wet winad galt of dotew snot odd 10) mlelo ai ets a 

+ raat 99 soainery ons “bedeour” os sud ouantte oR. donmetig 
od sud , (ours, of toy aed gid TO qeoy @ malt stom wow oped? ged ’, 
woh oft mo fad? eopetio reds? oK .00 bbb ef wir monaes ae 
Ubnox sow ouw gimwmed “eLvading"” 2 Iksubala of botanenna.ad ¢ 
erred aig to nbulewes of) tot daod bogeluqiva add yoq 4, oA 
tnages jeaeqezg oad gedersy oon woke xrgo hee, Wis, o¥tg fom, @ 
oF hogaren’  Tthintats. dans copetio watsent OR «panama kel se 
reawies oa mi dHyse + bad add “ostaned Bana oF sendmorg. ons a "7 
Moenol" sacd yuky senort od? mi benkasuoo tuenereo sqexuxe na : 
A beqette dsoned yao eyhenes TO dgevea OF *eS eR bic J 




















rage £ bb. wa. stezene so mmnaets, ae Wis Ob er. 
saan 30 carqune. xeiteas 2, satTunere at tweds, ato 
baste dmobmetes “,selwradte xo vovaed to sagen anette 


tis ie esbhenatie eidl, “sVidimleats se pis sokan omg 
BAisaleet odd sobew pe a antehe sos ooh 14 Jode cot A 
dsigere sO% smokseweneg alo? o¢ vaw ve aleod dommes wom oe 

akged <¢ tolageeneg dad a2 Jom yaw Saeed wen O88.08 oie 
vino bosuetnes Gs Inamgnal aff baw 9 V6CL of Ya titan fae aa 

_ hee doth qetouydot Ye adémom vet to dao bingawe ous be 
i phe ed ape alley ila R00 a 
mn al won? pecangee tense ons | besaotint aneacot a i, ne 


Shes, eka iar | cee 1 A ee sl me OMe. a: vow ahd wi 
dows : 


eteroaten aebS ¢ 





| 264 ~ 31396 


| GREGORY T. VAN METER, 
| administrator of the 
| @etate of Charles H,. 
Anderson, deceased, 


APPRAL PROM 
SUPURIGR COURT, 
COOK oun TY, 


» 


| Me PRESIDING JUSTICE GRIDLEY OULIVERED THR OPINION OF THE COURT. 


Appelies, 
We 


| MIDLAND CASUALTY Company, 
| @ eorporatian, 
| Appellant. 


Ra le gg My San Rte at ima = Rage Ea 


This appeal is prosecuted to reverse a judgment aguinat 
| defendant for $1,500, rendered after verdict by the Superiter court 
@f Cook county on April 30, 1926, und baged upom a policy of 

| @ecoident ineuranse (dated august 12, 1915) and certain receipts 

| for monthly premiums theresfter given. ; 

| : It appears from a ictter, signed by ene of the daughters 
| @f Charles M. Anderson (the insured) and mailed to the company on 
October 9, 1923, and received by it, that anderson “wae killed in 
- automobile eecident near Wauconda, 111.” on Amguet 4, 1923. 
Im the letter the number of the policy is stated and informetion 
ot) ‘Requested as to the “beps necesanry to eellact on it. It 














‘further appears from Anderson's written application that his 
‘ecupation Wae thet of a motorman in the employ of ome of the 
‘etevates railroads in Chicago; thet in ease of hi« death by 
‘y cident he desired that hie estate should be the beneficiery; 











that he agreed "to pay the advance premium of $2.40 on or 
before the first day of each month without notice.* On the first 
of the policy, numbered 119,406, it in atateds 

“MIDLAND CASUALTY COMPARY, Chieage, hereinafter 


Called the Company, in consideration of the first 
Payment, and of the monthly premium of $2.40, and of 
















wOwE alten” 
ye nde | 
RTMEN nooo ue 


Suntane Sxomgdu, w ouxevert 02 detonowony wt en th it 4 
Seon vobtaqu at qh tokorey vedts berabaot .008, 59 2oY snebhol 
Re ePR Deg w meyer Duwi hee WHEL ,OK Lied ao eonwbe i 
 ehatnnen abebene Biae (MUUE {8x Seupar detab) oomexwont aac 

sgt baa Mili - sterky ced Too TOy menaoeg ha 
atatdpund of IO omy LS DemQte ,tOeseL a mort SenNgEa ae <i a 
mo yqaoe eal Of baLtam ee (DovaRE ods) montehitA LM oxen" 
Mt DOLLEL wow” moerebMA Ceci, 8k ea sweausiiinaid na ei i 
ORCL gd Boag Mert SLl .chaeomay tak saebleoa atten * 
mOkiomey tes as bareda wl Yoklog oid Ye Meee odd rddde odd a 

. oT 6th we eadlon oF ytennsoon aqedd od? 0) on naddeugs mm 
hd Jade ap idoetiqga awid bows rowsebes nett wiawgga " - 
Oh Ye cam Ro cgigue od? art nemo dew Te Wats Wow HOR 8 
ee ose t ot ‘be leave a 
Aetoke. ond odd. od Ghworls etades ohh tnd sila cue ) 
mo Ob SS 2p auaeug egsevhd o8F Yr we ne 
rank Oct m0 “aonline, senate atime: Wp ta ext ai 
eMedia ot bat x <eeee vt . 

noe lnlered yout 








the statements, warranties end agreements in the 

application endorsed hereon and made a part hereof, 
# O28 HEREBY INDURE Charles Me smderson, * * 

by Occupation a motorman, subject to the provisions, 

conditions and limitations herein conteined and 

endersed hervon, from 12 o'clock noon, standard time, 

* * of the day this contract is dated, until 12 

e’eleck noon, standard time, of the first day of 

September, 1918, anc fore auch further periods, 

in the renewal receipts, na the at OF 
- a 


Sacet tt Cehedule of 1 = nities) © inci pel 
Sum - One thousand deliars,* ater 


Then follow provisions to the effect that if, while the 













policy is in force, the Imeured shall accidentally suatein bodily 
dajuries, resulting in the lows of hin life within 90 daye from 
gate of accident, the Company (paragraph (o) of the policy) will 
pay the “Principal Sum". In paragraph (m) it ia stated that 
"each consecutive month which the ®clicy shall be eorried, without 
Gefault in the payment of premium therefor, ehall ade one per cent 
te the indemmities payable under paragraph (0), but the total of 
‘MWeh additions shall never exceed 60% of the benefits therein 
“provided ter ony less.“ Im paragraph (p) it de provided: “Keasen- 
@ble notice must be given in writing te the Company “ * after any 
injury * * for which a claim may be made, with full particulars 
thereor and full name and addrese of the Inewred or beneficiary, 
as the cave may be. Affirmative proof of death * * must be fur- 
‘ished to the Compony within three monthy of the time of death * *. 
‘the Compeny ehell not ‘be Lisble in any euit to recover under this 
Policy, unless the seme shali be commenced within one yeor from the 
time herein provided for the filing of final proofs hereunder. 
‘Clains not brought in accordance with these revuiroments will be 





‘forfeited to the Company.“ In parcgraph (r) it is provided: 
| “The acceptance of any renewal premium shall be options] with the 
Compony and if a past due premium shell be made to and accepted 


\“ ss a 
Mea 


oe 



















ade ak stouomootne dune eobtnatzew ,etmometase oni” 
stooved frag 2 oham bua moored benzebae ao 4 
ai Row Te ber re eng memcpy rr ye 
sancioivesq of) of oehdee .namnesem a sto Bap hd 
hae boaketoes gloved emoliotiotl bmw 
eeale Saehbaeda emwon doelo's GL most « 
aL Thing ebodad ak Suatdnes abst, we 
‘te jew sedatgho ed to yh yeaa 





OSs ekRitw Xk sould door asd 08 ae pate worte? anes a 
eiibod sisiase elindsodlooe Kiede bowel ed? sini (04 rl : 
mort aah 00 midtiw OLtt Ghd Yo weet dd aE gakekoued 40N 
ite (yotiog adi to (d) dacspamag) qinqaed add srmpansen’ 
Seid botede ah 24 de) Aqomarag Al, « "mt Lag, # * 
tuodsiw pheinaee ed Liane yosle! sat sotdw amen OPE 
tase veq ane baa Lele , ie Wor ed? smleona Ye dmomyng ald ak 
to Lnsod wtie tad o{d) dqangeweg nob estoy sets masa.» 
| seborxeds oti tuned ena to OS keooxe sewer Lhado mand 
toate thotlhvetg eh 2b (q) Aqetgeeeg 2h mere , 
‘Qs tedta * * qageed ede ot antenee ot soviy 06 deme entdoa 
ateiuolicog Lint iw yotam od yom mhelo @.dokse cok. Lae 
a¥tetettemted xo Sexmont safe te eaetbha dase mast Shot amie % 
~wH% ed Jawa 4 dosh Yo Joon wasemnayts ood. yumionsp ¢ 
o* * dine to omis alt Yo gelgmog wows gutite yaogmed eds of, bode 
gids sete wovenet of vtue Yue Bh ehdakl od tom Lada yaaged, « 
ads moxt toy oto Mivilw hoomeenes ad Linde suse, oct atitiadl 
ronmental gtearg Laks ke yekids. ots aed sbblidiaDiaibieh 
ad Lie c#uomote ex seeds Adiw eonebenvos a2 stguend, dom om, 
- pbehdvery. at $2,.(x),Aqesgorag. al» ahi hodhote 
od tite Loweksge. of Leda avinore) Somoneg we 20, eomadqvens. 


basdgooen hae ot bee ot Liaste enckmo eg auth nega aici «X 
a8 a aici Mtge Bk ws Mae aa Aa pedbamse 








ame ay) 


Ye ah lent 


isd mph To THe peer eN 


Cn 
reel bl 


nie hy KY 
awa 


-3- 


by the Company, * * or by any agent of the Company, such accept- 
anee shall reinstate the Policy in full ae to disability reewlt- 
ing from accidental voiily injuries theresfter suutnined, * * .* 
Immediately following the signatures, ¢videncing the execution 
of the policy, there is = copy of the imeured's« application, and 
then, wnder the heading “Motice,” the fellowing# 

“Premiums are due on the first duy of exch month, 
in advance, and must be so paid either at the Home 
Office of the Company, or to such person ae may be 
designated by the Company in writing te receive them. 

In cave of death by secident * *, written netics 
thereof containing particulars must be given immediately 
aoe Give policy mumber when writing the 

The action was comuenced om October 215 1924_ Levey 

within one year from the time provided in the pelicy for the 
filing of final proofs of the insured's death. Toe plaintiff's 
Original declaration, consisting of three counts, defendant 
“file « plea of the general issue, and © special plea, to the 
—@ffect thet affirmative proof of the incured’s death was not 
‘furnished within three months thersof, as provided in parcgraph 
(p) of the policy.  « triel, commenced in Jenuary, 1926, a 
| Juror wan withdrawn and the couse continued. On February 15, 
1926, by leave of court, plaintiff filed an smended declaration 
@0msisting of three counte. Tn the firat count, after setting 
forth the policy in haee verba ané stating that the inaured was 
killea accidentally in an automobile accident on suguat 4, 1923, 
| = the Village of Libertyville, Lake County, Illinois, it is 
| averred that "on, to-wit, November 1, 1923, there was furnished 
the Company affirmative proof of death, which said date was within 
three months of the time of death of said decedent, and final 








Foofs thereafter.” It is further averred that the insured, during 
Ms lifetime, kept, performed and complied with all the terms, 



























“suapatties ade my sotvone ‘phan: iti 
ehiaom done te yb deck? off? ae sub 9 na. shell ; 
one ene oa wae Shot ba 0 tenn mba. souevbs om eousvbe ot 
Bs MOSS 8 68 te cungune? gorr2O 

canes Ghee od My ai ‘yregaed ed? bt sotampiges 


, ie im “ tmobtoon ¥ steed 10 ‘ena® at i 
acs. od gaum etacduo mn 
ae ants igo repalw ‘esta vollet Trl are é: 7 


aedek : oases, ve ‘sneane ne pies onK posts, (a 
192 Ale adh 4, SORE DE pth, oe, saNn, on ct 
e'Uidinialg 2. «ine e'beawant sai te etoony lisa. 
tiehaptoe yadmyoo vewuly te wihgutenoa nots ssalgod, Lamhe 
eal es .49kq Letoogs @ dna ,emust Loremen odd Yo o9lq . 
“pee a08 Sines a'eexwamk sls te dooss vd omek ite Paphos 

- erage sé bablvexg ae od ezOKs shines 9 ezed 
4 eB80L qu samme ah resunemon, oates, a a. 

ehh Graundol m2 phonmkdaee sauee ome nse. mee nam FO9 
aoliatolonh bebwege m4 | bodes, ‘Mitmlals 209,20, pai vo 4 s 
 gabeten xogts .tavon fest? ody al .pdawon cess to wmbeatom 
now honmal ad’ tad? yabtode bas gdaey peat gh ” : 
ABSRL gh dauge a6 dasdloss eLidomodun mt, Edetmabions 6 De 4 
hf) quhomiits «ysl aml yolliyastedtd Yo emaECaY, ae 
dotiotarw? sow ones nGeee of ode ver, ad Senet 90”. fade 9 
widow yaw oteh bhaw sty hat, siteeh to Roowg, a 


fant? do h semebened btog to Esp) am “i in 














o4- 


provisions and conditions of the policy) that defendent waived 


the condition requiring payment of promiums om the first dey of 


| each month, veeause defendant for a lone time prier te said death 
accepted the premiums on the iGth or 26th day of the reapecstive 
months for which premiums were due, and agreed with the inaured 
that the policy should remain in full force until the 8th day 
of each month for which the premium was met paid on the first day 
theroofs and that on Yovember 8, 1923, letuers of administration 
were granted to plaintiff, as administrater of the deceased's 
@atate, by the probate court ef Cook county, ete. The averments 
of the second and third counts, although in souewhat different 
verbiage, are substantially the game. To this amended declaration 
the defendent pleaded the general issue and several special pleas. 
One wae substantially the same as filed to the original declaration 
as ebove mentioned, and another was te the effect that pisintif? 7 
failed to pay advance premiums us provided, and that at the time of 
Mhe Insured's death the policy was cancelled vy its terms. 
‘a It will be noticed that in the first count the averment, 
relative te “affirmative proof of death” ie that the same “was 
furnished” within three month's of the inaured's death. And 
rt none of the counts in there an averment that the furnishing 
ot such affirmative proof within ouch time was waived by the 
Ye and in mone are any facts atated showing aneecuse for 
furnishing such preof within the required time. On the 
“tried, bad in April, 1926, plaintiff made no attempt to show 
q pat within said three months affirmative proof of the ineured's 
\ th by accident wae furnished te the Company, but, over 








mt's objection, he wae allowed to imtroduce certain evi- 
claimed 
which he <7 tended to show an exeuse for not furnishing 














| uottexnfood bebe abst? of me ) “fabiantadue eta 
























Adeeb othe ‘of ee bay ow gee a tt taoinotoh samme 
evitoaqeet wit? Ye ysb aaes" ne MeOL ond ne an ' : 
Sostant esd dé iw booms foun “soub view oi ne 9 iota adh abe 

ya eas wehé teen sovol tit ih ‘ahaa Sheds w whieg : 


a*hesaoaed + walt ‘te sovnctulalabe “ sTabtntale ot detnen ; 
ae A Rakai, . Rie ae 
atone ve oat. pe a eames: aloo bo dxw0d stadoug: wd: 
ws Heese 


| dmovettth festrasou m2 spuonte ta edaaion bubits hese bagoee | 


ar | Sits PRS ge ies: 


sogekde 
eres a ett 

oonnke tetoogs iawovee ons evant Lecanog whe pobaatg _Anahae%b 
wR, RANGE San 8 

wohsanatoeb taas io was eo bette ea ‘oman out oer be A 
‘ ’ PCE ge RIE OY, eR 

witiaioia Sat doorre ests ee sew “oitdeas bee demo ts mou 


Ca RAN Rae fui 


‘ke wank one te todd ‘ws sdeblyorg 5 od ‘ceutnorg, 





a sarod ed! ve betSveneo baw elfog outs s sgoeb eth ) : 

; 43 pMOnnts anne a oil Ka 

iaomrove ame saas00 touts esis el aaitd beotsen od ildw sagt rae 
. Eh Yh ri grat ie Ae 

anv" sate oti duds st “dinod 20 Yoong eyiiontt * 8 


HNO RN 


dole 
bas osttnob et bexweal outs BD a'ddao8 onus has bw 
REE 4 mad 


‘pabae oar ads teat tavaseve Co exeds aL stav0e < » 
wuld ca bovkaw anw omts sows ‘abdtt be toons ort ? 


i rest cau a , VG, 
sot oasioxt sa ‘gatwode. ‘badedo gost ao oa ak 2685 


TH, mee a cin 3 o a ney 


| ose ag soma bortuger ods bai by ‘00g sess Ra 

wort: ot Aqae 90 8% som ‘Wealats oases sheng mt 
_atbosrent en te Rens evidows23%0 atencat worms hoe saudi 
wve vied syoque? edt of tedetmeg? ae 


t2 on Sica 
=tve ioe ree vowborsai at howolta aaw 
Ds ine tach 


| aha bee ton ot eaiiox 9 as vote oF 











afe 


guch proof within the required time and thot defendant by ites 
acte hed waived the furnishing of such proof within such time. 
Im view of the everments of the declaration, we think that the 
@ourt erred in admitting this «evidence. It ia the well setiled 
Pule im this State “that, if the plaintiff intends to rely on 
facts which show « waiver of performances by the defendant, he 
must plead such facta; thet he cannot plead performance and ree 





Gover unger proof of waiver of performance.” (Kxpanded Met: 
Fireproofing Co. v. Boyee, 235 Tlie 234, 2695 Hart ve Carsley 
Mfg. Coe, 221 id. 444, 446; Feder v. Midiend Gopualty Co», S16 id. 
B52, 559.) im the Feder case it is said: "The object of ao 
declaration in an action-ai law is to state the facts constituting 
the pleintiff's cxuse of action upon which he relies to recovers 
#0 as to enable the defendant to prepare his defenee and meet the 
facts alleged with saporopriate evidence. in order to recever the 
Plaintiff must prove the esse alleged in hie deceleration. * # 

He tienes make one case by hie allegations and recover on a 
different case made by the proof.” Furthermore, by the terms 

Of the policy sued upon, the making of affirmative proof of ¢ oath 
Was @ condition precedent to any liability upon the policy, and, 
as soid in the Feder case (p. 660): “There cam be no recovery 

a @ contract against one party «hoae performance in dependent 

on some act to be dome or forborne by the other party unless the 
de ition precedent has been fully or substantially performec by 

the plaintiff or he has averred and proved a sufficient excuse 

er ‘the non-performance .” 

. In addition to the letter sent by daughter of the 






to defendant on Cetober 9, 1925, first above mentioned, 
® which the Company replied on October llth, a Chiongo attorney 





(ge 


ete ‘a saabaotes #8 ait bs wake hetkepes out: ‘ebeld bw ety fen 
Ket) my 
sand shears mksts bw wong ewe “te gitety et ott beview hast Bi 


Hels Lak LR ma ‘, 

asi aactt mecha? ow sods arndeck out %e staomievs agi to 4 

; a - smb a 
bekiden Liew eek ak ex -sonubive waste antaétabe me ies 1 
oS am) be 


0 ier ad nbavgas vademtats aside data ota ate, ah °. 


os sfuabae os edd “ed ponearretres head tovkew a wore dade af 
beats ® 


Pind) bikie sonmaro ro, bookg tonnes wat sods tagoat Hose baoke, Fe 


BaP eel Si ee 


: sit ive Seromt *. oonamett9R %e sovkow % “Ins 
“snlnsed ot 0008 05 des oA E08 egnya «7 









0 
gett ‘h wares 











Dt DEE on wihas yi o¥_aehelt iDbs ay ob Be ag 
a ‘to ooide eat ‘phos ok ak sea zebes ous mk (088 

n ae a Hie 
gabsuedsanoo atoat ong ebadn oe ah wat sn wolves na ak Hoke wend 


PSR 9 Wee ips 

exeveues od aehiex ex sietsle ogt aokion 10 onwoe erribradete | 
Ce PENA ES Te: q 

oda #0 one anae ied aus oceqeng oe envsaeten ou pag weet ot Re 


Ae ee 
‘ost weveost as s0bx9 ak ‘seenebive osabqexcge as iw sepesie “ 
ae TREE OE, OR 
* ‘ <mohéotekood wid na hegetia puso eale ‘Svorg anon" : 
ws ee aie Path i ay Hat 4 
| a mo tovov0r tas estoLdepeLte whi WS vane | sy ' 


3 wares oda we a oromrodezt “sdeong on w ota ae 
‘thine 2 t0 oor ovbtawstite te aukwon ost +s0gs Bown : | Neston ve af 
" Weta” ¢ HS 


ait oliog ots nog aithdats wa os suadeowre rege ‘at 
Ay Ray a Hy. ep Fy 

sPvo00T om od ning exact” (0ae a) ed beg toe 

a YANO AYA AS Hild a 
fasnaaesn ak eonomtots0q saestin ema one dontins rtd 
Mei yy al pera 

ons aselaw yx zeta astd ‘ed sunodsoY 0 ausd of of $00 amas 


' silva Ree ee i: SRR a 
we oomro 1106 “Liakinatasus 10 xkiwt wae ead susboeuny WP Bhs 
ani PAE SOS 

oamore smoked tive # Bevo yen aaa add out pn Tebae 


ie Pi ; 4: Pik Seki eer 














a a ’ Pi POS. Mea ore er, % 

pen tw ‘otityses 8 we si08 | ostok oa es wordkbbe ra oe i 
ve RR Segue Ris why 

sbamek ten oveda, ant? hlahiad « soGedee ao gavhaotod o% brass 

UE a) A ce bis ef tp ha a 

WONT 2 5 ogre a caaae modes no ger yt ma 


‘ ai / °. 
, Mauer 8 PS ae 
ce A ck 
: mt CT) ’ 
PE ae An iy ees NP CR CY 






ei 


wrote defendant on Nevember 1, 19255 in part ag follews: “In 
re your ©. K. Policy, No. 419,806, the insured, Charles M. ADAG? BON » 
died in sugust of this year. I hereby certify te that fact. 
The deceased left him ourviving three deughtera,. * « I¢ you 
Want any further proof of death sheets filled out, be $600 enough 
t@ so indicate ond we shail of course comply with your wishes in 
the premises, Until then wa shall consider this then the filing 
of the claim.” Affirmative Brool of the death of the insured 
Was required to be furnished by Hevenber 4&» 1923. Pleineity was 
Rot appointed edministrater until after that date, and forma} 
proofs of Anderson! & death by accident were not furnished to the 
“Company until Mareh 26, 1924, Under the provisions of the polloy 
We do not think that said letters can be convidered ase furnishing 
the required “affirmative proof of death” of the insured. They 
were merely belated notices of that fact. Furthermore, plain- 
‘tates | theory on the trial wae that the furalahking ef formal 
proofs ef death within the Fequired period had been waived by the 
Company. 
q The premium of $2.46 for the month of August, 1923, 
was not paid prior to suguet 4» 1925, the day the insured wag 
‘kddtec, All previous monthly premiums had been paid. it wee 
‘further Provided in the policy that “this policy shall terminate 
Ameciatery upon the death of Insured.” Inasmuch ae we have 
Fenenee She conclusion that the judgment appealed from should be 
ond the cause remanded, for the reasons above stated, 
from commenting on the evidence intreduced by plain- 












| es /S@ sustain the averment in his declarotion that defendant, 


the condition requiring the payment of the monthly 
on the firet duy of exch month, 





RAE EN bite ay ai 


%)) 


a eee 


” 


Tie ie 


dds “Venetier ‘aa dxaq at 200k (6 tedmovor me: snasmeran ote 

a LB gakxand yhotmamd ost? sO BLL on a eakLot ad woe 

toot snatd Oe “Ceaieen Ydoted T«,taeg whe te sexu ah bad 

Spey a * atetdguad dents gabviwase mie steak benaeeed. es 

od aie beLfl? ehveda dendh Yo LoSrqisedsTARi CHR oa 

mk sudeke uieg aehy vlaase ‘ened te Linde ow aoe odaokbad ea 

gukts® ind Wadd” ake tobtamvo cinde ow meds” Lio sontenne 

petwend edd XO Ateow ose Te Joose wyitamn kDa: Smashes eft 

gav Webdmknls «8800 4h remiomewney Bh act oesieneso ed of host * 

patie ean’ gated: Goals cade Lkdoe xedratotstabe hute2eges 

oat of pétatitnst ton axow tmebinow eo sitanh otmoweone: ae 

‘Wottoy ‘val! We witedatvony vals 1#bal> odROL gOS ori Lhsus 

agneigiel ws bovebtanee ed mAs avetoel Shes soaks asc, 
“att -hewiant ada te “dteo 26 Reend pbtamaite pwrhapee 
~alakg oubcineietwt «feat! dais Re gootien: badaked: viene ° 

foatet te gtistatens? ess. godt enw Labeto 9d 00: quest @ " 

oad baal hoview dood bed Sokteq paciuper ede aadehw diaab te. ove 

, a: fie ‘i bee RIA NA aa ny denne sha oe 

ann barged Se mem whe TOT Pek, en vite 4 

giw hotel’ cxte gab one ,f80L 4d Page ot TOk56, bdow, Some, 

Ohi PR GhRng set Batt comrtanng ikewom auorverg Lia ha 
—— fkoda qalhoy wide” dade qotieg adit uh hebhwoue 

gest be ae Motion | %e bona to reaob oi? age Ted re 

od Aitute owe oLwoqae setsmydart sid sents mokemkonoe oft, bad 

bodage Wveds anonset Gile TOT a tebeaeet: ‘euune etd ban Rowe 

euketg yd bovubacénk oommbiye ott ao grttnannae mort he 

berveunsintal sold toldothfood ek ok amemsave one mhodaue at 

Host peskiog etd Yo GIRS of? pakewbdembawe TH vemuen : 

ee ee peichapae mods 209 vid te 

sanoom dose Yo Yok tuekt od? mo mal 





shana ete boom ad 





















~ Pe ger remee ete 


For the reseonea indicsted the judgment of the 
perior Court ie reversed and the esnuse remanded. 





7 teh, J+, concurs. 
« Justice Barnes (specially comeurring): “hile I concur 
br what ig said reapocting the grounds given for reversal, 
[ think the preot wee inadequate to show waiver of peyment 
: the monthiy promium in advance, it deing optional with tha 
ow my under peragraph (yr) whether it would eecept « monthly 
dua efter it became dus, vis-, on the firet of each 
. The fact that 1¢ had elected se to do im the paet 
dé not deprive it of the right to elect otherwise im the 
: « Here no payment whatever was made for the month the 










tec came to hiv death. 


el meen 








Sy eer 




















f 


call _ ‘semmgnay «ia ‘hed bo khak emmaoee yh 
vvaibieue i coco ieiiae hd ha’ ‘sodeasitay” 
be ‘6 pee broneene eA jomareds ba i Rall 


oe Pontes ed as Say Fae 


ea aE PRR, RR AA, 





‘he 










, z Phesen aun Ula Bera (i a ai Si siti a foes 
Rebuy hse eRe cca a SR UR Se ROE RR Ge (RO aan OMAN Manes SNR aa ee, 





‘\ ok BNA, ay 
* on 





















waa PY BSE ADRs aig te Care sg ee 





vw 
> FEW iar ~ Sohsairerin 8s 
Brena a A t aie wees 





eh ee ae) 
Re ey Bia B A 





AP ee ARN a OA NA ben BG, Site, FARMS 
ee me en mee ks ae “Pawn bil ‘ahve 


i Hat Ne Salona, yates. 








ee te aa 


ney IM fh 
Be a | 


ad we ae 


Sa ee NOES, halal scuihan Baie bi Vey. 


v 





Hie Hea aver me oe tk ‘bee ah i sxe oan 


299 - 32432 


BARRY SHLEMARY, BAX SHLENSEY 

and MARCUS GHLENSKY, doing 

business ag Me Ghleneky & Sone, 
Appellecs, 


APPEAL PROM MUMIC IOAL 
COURT GF CHICAGO. 


ee ne ee ies eee 


Ve 


JACOB SCHOLMBURG, 
Appe Liant * e% 


re 


Whe PREEIDING JUATICE GRIDLEY PSLIVERSD THN OPINTOW OF THE GoURT, 


In a first clase action in gsoumpsit, comeencad June 6, 

1924, plaintiffs, in their second smuended atatement of claim, 
@laimed that, solely by virtue of an account stated and agreed 
tipon vy the partios on June 27, 1922, for (1203.46, there was dus 
to then from defendant the esid sum and interest thereon from 
said date at the legol rate, or the agaregabe aum of $1 54'74 DG. 
In defendent’s affidavit of merite he denied that on June 27, 
saz, any aegcount vas etated between the parties or agreed to by 
hin, or that. he owes any moneys to pleintiffs. After a tried 
vishows a jury the court, on April 15, 1926, found the issues 

et defendant, assessed plaintiffs’ damages at $1474.96, and 
 jucgment wpon she finding, ond defendant appealed. 















q The main contention here made by defendant's counsel fe 
th % the finding is egoinet the manifest weight ef the ovidenee 
om the deoue whether on June 27, 1922, the oleimed secount sued 
po ‘Was stated by the parties er assented te by defendant. In 
§! Juris, ppe 684-5, Sees. 262-3, it is seid: “Em ateting 
an account, ae in making any other agreement, the minds ef the 

a p must mect. * * Te constitute an account stated, the 

ee of the balance must receive the usgent, express or 


Lied, of both parties. * * And where there sre mutual 





aA 



















XAGQIDIWUM MOAR LaReea hated ofl 
| | iy eae & vir B 
eOOMNTHS GE TAMOD aeoallegga. ono 


+700 mut w WOIEL EO mr a cay Yann sorrento te 
oS otte% buemecmme «ibgomong ot wo tdes dake barlt aah ¢ 
«miele to dmemetads deooome bavoge thedd ab arenes: - 
heoxge hie Hodnse Jewoope me Wo eptaly od Ure tate 2 

oub axe wthdd 20000) get AWOL GV oma me esterag oor 
‘Mon omit Senee th, Sain eats bam ae empha mae A | 
obQe 573.54 ‘To mire odewotann ond to poten Segal edd de 
— g%R oni’ me taitd Sokmod of stivom Yo pemertiere »b 
qt of boeten te kokiveq eff meawded bodate aaw Snuegoe Waa a 
faktt a seata eattismbate ot wyotem yon core eal taslé 0 4 
aaarnak od bawot .BSCL «UL LkegA mo .otweo od? yal « na b 
bun , 89. aTaL8 ta ogame ‘attiaiele beeoeaes stanbasted $ : 
holeaqys dunbasteh owe ,gakbatt odd moqu sxnmgout, 
at foomee a'eaabno tet qd shee exod ne len noel a 


bews Seueosn somtato odd SRO «TR smh mo xadtode pa : 
ak sdatebuetods yt of botwoces 0 voksxog ead ue betate 
gaklieda ak* tbioe of o2 sede snp ed “ot venta 


9 canrgxe vtnseas ous avionet teil, ‘eealad ene ‘te 
Keutum one ozedd onody bak + * swonsnag dod 20 4 


-R@ 


or cross comands, the purties must coms to on agreement as te 
the allowance or disallowamee of the items composing the secount; 
there must be an adjustment, a balamee@ atruck, and an asvent 

to the correctness of the balance,” (ee, Peteragn & oo. vs 
Wachowski, 36 Ills Apps GGL, 6633 Atlas lye & Ces Ve 
Forster, Yaterbury & Co, 153 ide 558, 566.) 

The evidence discloses that the three plaintiffs were 
Gopariners in the procuce comniasion business at Jeliet, Tllineie; 
that defendamt was im the brokerage business at Bee 79 Vest South 
Water strect, Chicago, trading under the name of Uchoenburg Fruit 
& Produce Co., not incorporuted; and that during the year 1921, 
and the early part of the year 1922, the pertiee head had certain 
Business ¢ealings. The instrument or account susd upom (intre- 
duced in evidence by plaintiffs) 1» written im typewriting upen 
Gefendant's stationery, is unsigned, and ia «a follows: 

“June 27, L922. 


Bet on 14 care Grapefruit td 06 
Balance - Your 1/2 - $166.06 
Less (various items ef credit enumerated, * totaling) ~ eae 
Ake 
Gr vetiins expenses to Florida $125 « 1/2 $62.50 ~ i 
Due Shlensky oa ¢.Fruit “ P 


ms 


one wo care Cucumbere, Yoo. 43019-43562, {1071.45 1/2- 536.73 
i aa per secount asles rendered 

as on car Grapefruit, Mo» 25024, $89.56 1/2 ~- 294.68 
A om car Rewtens se per your invoice - 262.18 
V2 Less car VYinesaps | ~_ 28 








Phd o 
A ‘cucumbers token out y Uhiensky as per our 
4 inveice nat May Srd ~ 348-75. 
4 Due EH. Shleneky & Sone ~ $1,303.46" 


The testimony of two of the plaintiffs was te the 

“Affect thet there was no record kept in pluintiffe’ beoks of 
: | Matters and dealings referred to in the agcount; thet on 
) 27, 1922, there wae a meeting had in defendant's office 


me \ 















of es Saemorge se es omen Seem solitog arid «edmond sare 3 
toareooe vd gukeogawo amerk ots 20 sonawollealh to coueniio s 
ftoune ae hes yhoutsa momeled m ¢tnemtay ine hae Ms im % 
o¥ +92 S mouresed ood) “seannhod oid re vy ) 
a 990 wigews owl geld) 48004 108 seyA ttt oe «ikawortew 
(0B 628 bE OL 4209.8 wemdih ta gan tene 
sro atihemtelg vould oft Jom? waaodonde peer On 
pukeokif£t ,Jeifel te agemkavd soleeinacd sewserg bath ek sigh ! : 
uel Fee¥ OC vi gs eacnlaud vgncetexd odd at eaw deal é 
tars, gradeacsied Ye oon ald Tobm. gatbets adgantdd stoeste:: 
efSOL maey, ony paix Jedd Ana pboiasoqzoom. son «9 0), combos, 
ukadaon bad bed op2étag oil? «288K wor, ood 26 asag YLERe ot. 
~ottl) noge Bewa smuoape x0 jnomusden) oa? ,epmbsved 
wocus pabtRuwour? mk mooehev ah (aBtivatate xe manne . 
| _faMOLLeh sa ak ar »benpdecw penpebate ater 
s808L 4 °R paul” : penn 


| oop a ROCRERR. tursnges in ph me ot 
80. 9aL8 - as 


sno - poaal af E ‘a 
feeae = (poster Dad aiestine tigers te wos cotter) at ea 


ae 0 gd ap ae ele abbrore ot ewprnd 
a ee Loa Sa hare kite 


et.8ee = BNE Bho LTOLY pROBESLOED, om rod ure 


















84,808 ONE abe o. slew 
6h. 388° = oo wo 9 wae ae pts 
i | BR oo 
ii) Siow Somlnmneat ou lanes Yate eawabieg exe mane | 
A. Ghs yee UR oe ar Ovas | 
xt man ay ae ‘i? eal i ts + a 
“Bhs 6064 £8 nf ‘ nen 2 olenatee, 4 aul. 


j hi “Geo balid catia : ca cont 
ade oe anw ettigmtate wut 2» owe te mondsaed ad’? in ata 
te SM al, 4 vane #4 

% aleed Nertemtoty as tgon oreo + ag S csiall 


r oresty . taste, 
: § Pi ot Dae FH ‘wl ie | 
0 seats {immooda alt at oe bormeter & fees J 
ole See eotnd at Wa: smntored 
otto etaanbaored ab ‘bot ere, & sav aredds S808 he ies u 
aes RS ey cS Ya ¢ DES 


P 


| 


+3- 


at whith the two pleintiffe, defendant, and ohe Gladye Post, 
beokketper and stenographer for defandmnt, were preaent, and 
oertain deslings previously had between plaintiffs and defendant - 
were discussed; that at the conclusion of the conversation aid 
after Kine Poet had typewraiten said seveunt defendont handed 
the poper to one of the plaintiffs ond stated that he asecented 
to ite correctness, The testimony of Mise Post, no longer in 
defendant's employ and called as plaintiffet witnene, was moat 
umsatiofactory. “he had no independent recollection of having 
written the account out on the typewriter but she *supposed" 
she did, and thet, if she did,» she muct have dene «eo om Jume 27, 
1922. Defendant’ s testimeny was to the effect that no mecting 
“wae bad in hie office on June 27, 1922; that he never saw the 
| account until the present action wos commenced; that he never 
: asvented to ite correctnecs on Jume 27, 1922, or at any other 
times that he hod nothing whatever to do with the drafting ef 
= papers and that ha dic not know who had drafted it. He 





eR account atated. After reviewing the abstract of the 
‘teatineny, we do not think that shey showed by a sufficient 
r ponderance of the ovidenee that defendent ever sasented 
the cerrcetnese of the account as charged, or that there 
























sFeo% wERNLD unio bao , stebus'ted orb Limcaiy saathound 7 

| hese «Stes aong SOW, Jaicts Ys xe? -tadqangonmede bua 
 Mnenteted ime sWResdiiaty moewsed dot qewOhvedg agit tied “e 
Poets aobiserevsed aad va to kedzoned odd te saad shennan otem 
pubnad smabaneo Ensousd Blea Kev) keveqys Sat Foot wall 200s 
 pedmeada of todd bedate baw wRPieelaly ott to ts co it 


vi 


we 





wh Tognee on (3eo% Bei Vo Yromtived wd Veet ne 
| aom wow Vowene kw “ATEN LE eo betting ‘haw Yoga dé cabinet 
qakya:t Yo no tenettoow® Ynsunoquduk on sult oe” | 
 *peecgyas® wile dud yedivwogys ef? me Que cues ew 
“ATR cuit we 9m tes vid Sees ‘ote se a 
BAtioo om sat outRe sid oF maw Yeomered wtmmbaw tor 4 
etd cee vow wid fade PSSAL «VS om wo wOR IS wit nk wim wl ? 
ede Yio ta we SACL TL cml mo wremvoowwed wet ot Dedeewied 
to gAbstord ety MA tw od eo xovedacte yatsison hel om daslt ' ahd 
SH +32 Sod tard bed otter wom Seer ako: wa dieky tenn | ei, 
ROR 4EDEL aye tas epabkso srod oot Hess | per aeeaes, , 


iD = eRe 


eaux 106 uit kkeau egentsty ah ate som saw Pr vy ke 
ssoance te ‘gem oa te qeatiast: oat ee ‘he tetwdorxsoo ane oat ehds ot 
hahaa godei abmne tha, ak ash atk beng: bao a see it 
ogantl® ah dont eet! i ainits awoste edenoke oon oomaulre os ta 
swe Od toast ona ywhad dost? soon wan 2 ee xe! vanek’ «0 
+ teusono.n eal? to areereerrr? ce of hetueses ved (hd 
Stead sd’ se oven xerwees es feta oun 18 OP at % 
td Re doossade ett yobwehves «eth .botadn samooon ee ° 
Sopkelrioa a ed woserty’ weit? ante debits” i 0b ots ie ; 
Aeswenan were smabmN TEs donald HaRObIvO emt RH vumetD be 
Sted? Pete to deg tenle an” » drove ‘aite te pin eas gate" 
week ye a Cami wd ek RAE ae Re wnt ae or m ‘ 










jas ever nn aocount stated between the parties in the sum of 
$503.46, or in any other cum, 

Accordingly, the judgment of the Municipal court is 
seversed without romandment, 





and Barnes, JJ+, coneure 








a wa we ota oat 30 


EMRE be 
‘Bagel 


tuna 


LOR Be,: Om Fy 


eRe Wi aut 
h é ss balay 
aw yee Ps a hehe Ta EA \ ae) bi ey ao aac wt 
Di. Was ye web ht tia an 
Y ROLE ih fe) di i al Me ONS 
Siteinwe, woe EON 4 HT EE A demi | 
ae bg Re eel wrk Ua 


me oi hay A 


+ W/ BY uh Neer 


Cy eran? a 
RT ' ie 


Pit, 
ahs eb & 


Bt. amie Rea Bie Aah ai pete ue 


TSS eae. 


SA ig ty ‘5 ve wih nee 


aut 





PINDING OF FACT. 





a We find as an ultimate fect im thie ease thet 
Para 

ere wae not sr secount stated or agreed upon between 
a 

we parties on June 27, 1022, as charged. 


ahs, 


. 
, 
« 
" 
R 
wy 
JED... 4 
my hal 
» * 
ve Van 
1 . " AR 
¥ ¥ 















EERE = 


ihe Qa 


afDAR CO OULAMETH score Soe i ee 





dads enoo wide at fost esunteiw an ca bath 68 > 
nowwted noqu boowys 16 bedete savecen tt fox Gow | 
shograte os \SSOL . TS emul mo aokdueg 











236 - 51568 


ASROE ADLER 


’ ) 
Appellee, APPSaL, PROM MUBICIP SL 
Ve GOURT OF CHICAGO. oi 
JAMES PATEIUIL, \ 


Appellants 
BME. JUSTICE BAEMES OYLIVRREDY THE OPIMIOR oF PRE Gout, 


The principal point raised om thie appeal is that 
the statement ef claim is insufficient to suppert the 


gudgeent appealed frome 
The action is ome of the fourth clase of the Munieipel 





| | Gourt of Chieage. The ctateaent of claim alleges that there 
du duo pleintify the aum of (285, being the purch«se price of 
| a. certain notional essh regixtexy, woieh plaintiff purchased 
‘from éefendont for which, with other items, he received » pill 
ef gale from defendant, that plaintiff war aubsequentiy 
| “Motafied by the Hational Cash Negister Company that the void — 
| ‘Pegivter was previously sold to ons Churles Burbour, and that 
| tt had a iien thereen for 0285, whieh plaintiff? haa paid te 
) a 7 Defendant, without seeking to question the eufficiemey 
ef @ald statement of claim, but apporembly undergtending the 
ture ef the action, filed hie «ffidavit denying the several 
sbieons «foreauicd and any indebtedmes« to plainsify, and 
Gaze went to hearing on the issues, resulting in « finding 
judgment sguimst him for $220, | 
Seetion 40 of the Municipal Court set provides that 
in fourth class cases a statement of plaintiff's case, if the 




























sn hie) 


Ne ee ee 





(ey aati oti MOme Lassa | somite ag * 
 yebantan w caueg TP here wt Fannie 


NEB», hd BP Een sa aa a 


AE sisi 
STAMOO AT O WOXNTAO ger cauyine we 





me te Pe 


baat ok Laoaus wid? mo boelex mutes Logioniag oat 
wld drogqeue of tuetoktiwent of wate te snomwtees os 
f i ‘ lease votsouas es 
Loukohent out te eeale diame? ada to, omo ef wo iios edt 
onedd Sid eegvife mieio to taametate aft open kid 20. nee 
‘to eoteg candeteg od? aaiod 802) to mae ems vabdmdatg ‘ oh 
hepato wg Widdssalg dgtde ,xadoiges duso Eaao bs vst, misdee ; 
iid « tovtooss of .ameds redo aviv «sobdw 1X toohmeted mos 
 Utaaupendue saw Yekenbele dad .enadnetoh moet otew . 
kes sil? aac yangmed rodelged dan? Senotioll edd ber ue ‘0. 
fail? hein, gtwodxall well? ae of dkon yLeuprvesq aaw vot Age 
e¢ bteaq wot THtadelg doldw .on) wo) meaxedé wold a bad 








aS ae 












Yousiok tea esis | haoktineep: ee print taoris bw snabar ted ‘a 
edd yatbostoxohes YLtuereqqs dud yaketo we. smemotoee bbe 
forever edt yaturd givedlite eld. ‘belek mottos. wat to 
brie «Tkebalg oF anpareddoral ye baw bkesoreta c obs 
Beleess « ah gabtionet gueiial eld ao gatiead oF tuo onan i 
oORGE wee mkt dunboge pia 5 

dadt aebtvorg. 02, haadal fompoumee a %. on see : sie . : 





oo fd we 


euit be on a contract, exprees or implied, shall consist 

of @ statement of the sesount er of the nuture of the demand, 
one thet the court may udept such rules and reguletiong as it 
may deem necessary to onable the paxyties, in advenee of the 
trial, to ascertain the mature of the plaintiff's Glaim or 
Glaims or of the defendant's defense or defensea. 

The rules of that court are net befere us. We must 
Presume » therefore, thet thea rules afforded defendant means 
of ascertaining the mature of che demand if he did not under- 
etand it. But there is nothing in the reserd te indicate 
that he did not understand it, but joining issues on the 
Bllegations it must be inferred that he fuliy understeed ite 
mature and in the trial proeeeded to meet and roaiee all quege 
tions of fact or law pertinent to the case, 

It ie true that the pleading dees net wet forth all 
the élemente of the ccuse of notion with the formality required 
4m comson law procedure, that it does not Gefinitely sliege 
the nature of the lien or the express or implied terms of the 
Contract or bill of ssle upon which Liability is sought to be 
predicated. But the decisions are numerous in this and the 
Supreme Court affirming judgments of the Municipal Court 
Where the statement of claim was so defective au not to wtand 
the test of requiring each element of the couse of action to 
be expressly stated, eepceially where the parties went to trial 

) O8 the souumption ef the existence of the several elements of 
*’ @ause of action on which evidence was introduced and the 
“trie had. (Eu ty of Chicago, 272 112. 404, Lyons 
* Kanter, 285 id. 3563 Sher v» Hobinson, 298 id. 181.) It 


| UMneceasary to cite cases from this court te the same 


. 
i... 








«bead wid Yo ousten ead Yo 2 pines"? a r 
sk ea aitod 3 eisiget hun eolsx dose Goh" wast $xu00 eats ed, : 
ont ‘Ne eosinvoe Bk vavkd xq eit? “eXdano of wuoncesen meeb w 
Pa) ‘tote atridvatela exis ‘to eimden od abasisoua o ans 
- spoameteb to sastotet oMaraabmo rom oot Ye x0 
“ea exe tad son sxe owed tadd tw ec ont . a 


\ gre Ht ey 
on 





doum oF 
ene seitinstod bebrotts wali. ect? “toate 070 ose 


onebeud tom ‘Bkb aa. "8S bara es xo wustim odd antmietuoesn 2 
ogavkoad os Sxo00% ons ak pakdsos at vies yf sit pane 
ost RG ‘poseet guutsihol gud Py pavgereda fom BED 
ati Dooterebey YLhut eat. dad bexty Rath ad sae od amoneaged 
eaewp Lhe oabes hans doam of  balnonerg saree Ld yt eh 











iis saver tou io eed. seleaite ona anit ¢ si os 

postuves ytiiewu? ed? doky aoktos Yo eeueo eas 9 ro asian 
eyoits wiodimties som sven at dad? sivxubooesa te “3 a0. 
etd to paced dedignt ch spr PPE eau 

a6 of, ddguon sk WHL2GaiL dotdy noqu ofae 20 S626 70, dent 

edd bin ats ah aw@xomain gin eaeleioed odd out she aagh 
 deargd Lagtobeatit eng to etmomgint pickersk ite srwos, sae 
inate of son ge evizvetoh oa saw solo 20 duemetate. Maat bon: 
ot getios te vonen aft 20, énamete done n taper to duet 
fabsd od tamw malixeg odd oxerty yitetoagae "tes ere 
So atnemete Levoveg edd Yo eonedakxo | ols x ma oy Bg 
edd dna begubortat eaw eonobiys so ete a0 ny 

















re i 











grays 10d odit £VS «ogae shy | ri 
43 Gekbk adh 893 mina pee <a 288 + gegmet 
‘guna ott 02 gum elds moe? aeego athe os Yxesneoean 


Where the statement of claim eurrieciently epprices 
defendant of plaintiff’ « demand, even if it is techniendly 
defective, it will be vegurded os sufficient after judgment, 
@epecially if tha lasuce joined are such se mecegsarily— 
require proof of facte defeatively stated. 
274 Tlle 232; Gamble~hobinson Comer (o. Ve Us, 
262 ide 400% Sher v, Hobinson, aupra.) Ye think the etate«~ 








ment of claim here woe sufficient to apprise defendant that 
plaintif? claimed » breach of a covenant im the 0141 of aale 
ef the article in question warranting an absolute right of 
title and possession of defendant, but that the Nstional Gash 
Register Company helé «» walid lies thereon for part of the 
| purchase money to the extent of $435 which he was required to 
pay» Bo other cause of action sould realiy be inferred from 
the statement of claim. We must presume » %00- im the absence 
ef a bill of exceptions, th:: evidence of such « state of 
facts ese necessarily heards 

Chile the judgment vas for $220, we must presume that 
that amount wae in secordamee with the evidene. 
The judgment ie affirmed. 


(Gridley, Pe Jes and Fitch, J+, concure 








tie 








MO all : hated , : mi ‘ 
| | 

























aeadnuge Vidnetohtim sinio Yo tasmvdede wily vr9ae stadlishs : 
 “bkeoltastoes of 94 1b poewe _ both eVeksatete te 
_ytrompbul, vaste émokodthee as baler ed ELRWw 2k, 
| Ulieneevon aa gowe ora Somtet wane Pond Ty es. 
ebaaeS 6% 8elS) .sbedate —evirasten atowt’ atest 
02825 a) ese 9 V8 5 
roteda an? siakds oY  f+axgwe casanidest ue sage yobs 
gorte inaban ted oadtgaa af samhod tte now. ened mao: 
efon te Lite ede me sunieroe @ Me danoud & bombere 
Bo take otwtoada. Se Ul danwmeW mel seo mE oxatens 
fino LacohiaB oft sods dud pinmbeated to momsenen 
mile Yo fag xq mooreds RELL ALL x aLont 
af Qeskwpwr auw ork smdalw A9.te -teets we ot Seetie 
mont bevestah od Ydows ee 
eopneds ad? mk .oee aomwacre geam ol snbele Me summits 0 on 
2p, efade ©. aint 20: omtriatinn a cate — es 
#asha aoe # ania om. ere 30%, Rew, monger, neo ocaae 9 “ 
MOP ETE: Ame tke: onmebTosea mk But g WA 
eked wh  alpeats BS eh emeananieagntantie ; 


seh is 
; tes wacromgioue Sle Rien RR Sg athe. 
pF Mee me : Ad v AA Attar? ute ai 
ee Ay ie hme ae a eee Aen Fa aie yt é My ae a moe ie bac wee 
sa _ eTaRACHD ky aaiog 2% ome “eb eto 


eae CT ae a Le Ake bey ai a Pe ees tate Ee 
phi. uy aan Bee bait me me ncganane, pitt 


S it ied 
viet shat ISO Arete) Ba Ae bial eaten oe 


o j a a a We Nhe By ib Luis PIE AN i dans 
ye ee at BaD Vy Fae Bie + BY 
Haas Oats ye ws im Mioaitle, Red ier, Pais st Lata) rst oo qn heabe hiv: 





BE a lle BY if PURER ill ii 
at od, Bene didlo aah, pre atte, + oh waien Ae 


tates 
ulate 





427 = $1579 


DRIGHT BROS. PAPER COMPARYT, ) 
a corporation, APORAL PROM SUPERIOR 
} 


Appellant » 
COURT OF COOK COUNTY, 
Ve 


MORRIS °. GINZBURG, 
Appellee. 


> 4 fal 
MRe JUSTICE BARMES DELIVERED THE OPINION OF THE COURT, 


Plaintiff ie a jobber in news print paper, Defendant 
is owner and publisher of « Gudly newepaper known ae the Daily 
Jewish Courier.  <After a preliminary conversation between 
defendent and plaintiff's salesmen Mulveil, their negotiations 
fer the gale of print paper culminated in an alleged contract, 
Gonsisting of a letter from plaintiff to defendont stating the 
terms upon which the paper should be sold, and defendant's 
Roted acceptance thereon, It reads as follewst 


"The Jewish Courier, 
AZth and Halated ®ts., 
Chicage,y Tile 


Gentlemens 


This is to acknowledge your order placed with 
our Kr, Kulveil fer 
3 ears 32" width Rolls Standard #2 Yhite Print, 
basia 24436-327, wound on 3” inside diameter iron 
‘ ores, rolle 30" diameter. Shipment to be made 
< 1 ear duly, 1921. — 
Lh Gar Augesl cls 
1 car Sept.,1i92le 
The maximum price at whivh this paper io to be 
se a te you is Sig per pound net cash 30 daye from 
te of invoice, alasvai delivery. Ye are to give 
a the benefit of omy reduction in price which the 
mill mekee during the lite of this contract. 
Your signed acceptanee hereto constitutes a 
contract between us. 
Very truly —* 
Dwight Broa. Paper Coe 
(Signed) Re Be ttle, 
RBLs:S 


Agcepted: Me Pe Ginsburg. 
Date 4-6-2]," 








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od Ramet 
ws & ” a a wee pas 


A009 2 am. «6 arnse, ue aounytaad ghee 


fia A poiyae ile ee et seca 


Rt ME aVRR 





thohme tet .eqhe Yaied wwor'wl <ecdot 2 ef Vhambe: | 
eitad std ae medi xeqagtwod YLLab Ste ‘semedtdig baa ‘tone. 
asdded wetientwwses yuemtahletd @ Os Rh "See ih 
angidjadvonon «keds oLtovins momweiie oP thintata ogg a 
ggodethee BegeLh ma aE bedawkatio it panied grt 









‘gtentSetel hme ted ov Biwede aged. ‘id ti sede 
| ‘sawellot ue eheot a1 ‘abort 6 
Bb ede le rh 


Cie Sez Re a) EY Sak cy ¢ Ae a ge oe 


dohw peoskg robe Wey apbotsomton wa ak 4 ie 


“a 2“. 
feavk odie? Sh htsbaede wife uehte tn" pon I, 
soul soteneih ehieai "E me bower REXOS Ob 

oben of oF thom lds . ¢xetomaks ox ikes 4sets 
co gE BS Fo 
f 5 Neat ; Ot Cra * RD 
ad of ah goqeq alsid dolkdw dn & a A 
wort ayeh OC dean gon ret teqg oy OF Me 
evig af ssa aY «ytevkieok dLawse bees 4 
ads dolidw eol«q al geiiewbe: yaa te shteced edé. vote A 
stomutnos ati? to wk odd ME Agee Br 


& ostudhiancd adored epnedqnoos bemyle w0t 
(i a moonted sonxtnes vi 


on 


The suit is predicated upen a breach of this centract 
and the commen counts in indobitatus ssquapait. 

Ko question arises on this record as to the fact that 
defendant accepted the fiset twe carloads delivered te him and 
became obligated to pay therefor, ané the judgement in favor of 
Plaintiff is for $1500.15, which includes the balenee ef $1224.60 
found by the court to be due on said twe carloads, and 0275.55 
fimterest from Getober, 1921, when the suit wae begun. Plaintiff 
appeals because the court found that it waa aot entitled te 
recover for the third earlosd. Appellee aselgnme orose errors 
in the allowance of ‘interest. 

a former appeal from a judgment in plaintiff's. 
favor for a greater sum we held that the alleged contract between 
the plaintiff and defendant wee vague omd indefinite aw to price, 
and unenforeible unleve it could be shown that the phrase 
“reduction in price which the mill makes" hae an established 
technical meaning in the trade dealing with paper. (238 Ill. 
Appe 21.) The evidence in the recerd indicates that it did not 
have such a meanings Henee, as we are bound by thet decision, 
MO action for the salieged contract price can be mainteined, 

. On remandment the trial was before the court without 
a jury. The findinge and judgment appear to be based on 
Gefoendent’s liability fer the recsonable, market value of the 
firet two esrlosd shipments, which appears to have been the 
Game us the invoiced prices. To that extent the right te 
recovery is not questioned. The controversy arises ever the 
Fight to recover for the third curlont. 

| The first carlond was delivered im July, and the 
“second was on September 7, 1922. About September 15 plaintire 


attempted te deliver at defendant's place ef business 34 


a 


} 

| feaudaoo eit Yo danend # mogy beteekhong ak thus ont ' 
| dieuemess axdedidpaak ak edausoe sooneo eda ; 
tadt deat ott oF ve eorex akeld mo agahta mors woup La outa 
| has mtd od boreviten abnoixee ow twekt ond besqooen 


‘% ovat a1 fanmybyt ort? ono ptohowats yaq of detagttio ona 
| OD DSALE Ye Comelad odd vodutoat dotiw 08£,008L8 “tot wt vai 
SEAGTSS bas sabaoliae owe bis» ao ouh of OF. dxs00 wnt ys oe 
Thivmialt aged enw Shwe one mote 2LkOL yredod00 wort ssoved 
| 9 hake tame om cen $k gould nawor suiee aid opunged aeus 
aout enox9 amaiecs maLiogs), »daokiwe butds odd xe seyo 
— ninosetet te somemedia Mh 
alg ai dasmghat, 2 werk Leeqce amerot am. 
minieddnentins sogatin ef) dade bod aw sum metnome 6 1 Pam 
2wndug Bao etlattphat hae suger aw taodav tod Bas Yrkdmh 
Sinmdg etd tad aware od biver 2% suakas eldipup’ 
bedekidedes me sat “norton Lotm ott dokdw volng mt monte 
oLEX Bet) otoqeg dttw yabiaod oboud ped mb. oataam: a 
Bom Db $2 toms oasootnat rxooen ott tt oonsbive edt a . 
‘ateletons dedt x heed oxs ew ae yeomell spuhasen a sows . 
hemkwinkes a aso yolag Joaddacn bogoile ots, x0? notsos 


a 


Suotst ia Stow acl exeted saw Lake e169 teombegmes, 90 
SRN woe hoa ane 

me beaad od of vase Ixoayiu Aas agutOnES OM ny 

ond Ye gulav soduem . eidanoanet vate 26% walgheoas ws sabine 


asd eased svat of wteoqee Motte sesuocn tas o00ken0 oud Om 
iy in a ie Be Fas 
ot daighs vit smo 9m0 dass oe: “seolng booteu? ede an 
magi Si se aR 
ant 20ve osu dts ywroroxines oat “sbemokeaeuy sot 


16 ye Sodus j Oty Re Ae he Sia er Goa Sah 


aheateet men I wr . a 





SE oe ee 





att 


Asie Be pein 


















ead dace wet a Nine ttin' nl me 


Ee ONY 


Viksaiolg Sf cotmedyod swede HBO 48 30 rs ne ie 
dé saomiand ‘ho eoakg alimabmoted 4a sovbtob’ a 


se 


Frélle of paper from the third eurload. The evidenee ia econ- 
flicting «2 to what took place ond war seid at thet time with 
reference to neceptance of the some. The tectimenmy for pleintiffr 
de to the effect that defendent did not have reom fer the same 
and requested plaintiff te store it. The testimony for defendant 
fe to the effect that defendent refused te accept she delivery 
on the ground that the September carlenad called fer in the cone 
tragt had alresdy been delivered. In reaching ite findings the 
eourt evidently sccepted defendant's version of the facta, and 
we gannot soy that it was mot justified in eo doing. 

The third car was compigned and shipped to plaintiff, 
and after defendant's refussl te accept ihe rolls so attempted 
te be delivered by plaintiff the entire esarlead was stored in a 
Warehouse in its ow name, and rvemsined in ita powsowsion and 
umder its control during the entire time <fter the orrival of 
the shipment. On such 4 state of facta the title thereto cannot 
Be aid to have passed out of plaintiff, The proof therefore 
444 not sustain the count of plointiff's dvcloration predionted 
@m the theory that the preperty im the goods passed to the buyer. 
| The counte predicated upon the refuel to receive the 
Goods are manifestly based on paragraph 3 of sec. 65 of the 
Waiform sales Act. (Cahill'e Stats. 1928, Ch. 1210, par. 66.) 
That provisien of the statute provides that although the preperty 
ta the goods has not passed, if they cannot reatifly be resold fer 
rf Fexeonable price the eeller my offer to deliver the gooda to 
“the buyer, and, if the buyer refuses te receive them, my notify 








buyer that the goode ure thereafter held by the selicr as 
for the buyer, and thereafter the seller my treat the 
# ag the buyer's onc may maintain an action for the prices 
evidence tended ta show thet they could be seld for a 












“KOo we sonebive af? »hootime bubels oae mont pr ap Ye 
dvhw asks dooid ta phew one te ‘ooatg ood saw as ‘6 


epi SRE ih) 


wesntala “tok wien toe8 ont + oai98 edt ‘te sonnsgroos ed ws 


i, “gas oat co moor ovec fon bb tashuoteb “bnakd jpette. ont 

sasheokes 20% nom 3008 oa? oda erode os bey 7 hake ie | na oe " 

wre htod ads dqoone boustor emobawted ‘batt La 

“woo ot) wh set betian pooksne sedmasgne one teas sawora Bis e ; 
mar 


said wgntiml? ath yaddoor at sderwytted mag ybuonia hed & 
 beies anno oH? 0 moloxev etéanbaetod potgerne ‘vituohive we 
| vumbeb ov mt boltitaw, tom now a ‘jail ou Oumual 
eVetihtatg ob weqgtite baa bomgtenos vow sob buts ‘pubd? edt ve 
bosquests on alles ost tqo000 oF Loswier ‘ettuebeo tod or 2 
a at svete waw bookies ‘pitdae ‘pal Tiivale Wi beteviied’ r 


bh AT pai a ed % Wish 
Peta Ho lesevseg adh mh bosttemes ‘hea vena 80 aot mt ; 4 


Ye Kevivee ode toes out? wxkeme ade ‘aabsuo tousnes ane ‘ 

Saanso odors okehe ort ‘adoak % Study ery o staomgiie 4 
exetozets ‘toorg oft Thiintaty te tuo ‘beang ovad on reg 

botae kaorq nokinxclood etWakomdetg ~ ines “ht niadeue on 








i ae Lahn wif 
f eee aid ot bewnag ahoog odd ‘ak wrageny ‘oad “pads wedi eal | 
da  hacaanae™ OER 8 


| is oviaces 6! Enoutox ome oe bedsot dong ® OS 
3 RE Rese ES: Rae Cro 
eas ‘te U8 vose eo 2 slqeratos no besad yodoethem ona sh 


{99 sig “eA ey “heer ededl at tbe eee tees ented oat a ao 
wiroqeny dds dpiideite dadd wehiverq ‘aduande odd t9 a0 bv aa 


mot Afesst od Yitinex Jonnso ‘ot ‘Gt "tee SM sgn gh Mo 
of sheog aii tevitob of worte wm 1 xakion ot 
wotsen an aa sit 0 soar abi at 2 oe roe 
| elt Sooxd Yo token ot 


pete Pig sg pe eh RSS Ct) 4 By WIS, Mee oat 
eatee ass ban 4 os at a | 
RRA L oem oh "e wake “ : 
- senkeg odd <et ‘dettos na mis eT ic 
4 pe aig be i rk" ae powsuse, ene En ee | Pi 
a ol bron’ ed Ativos ‘gots suits woth wo : 


Haw Pe ip eS ypeaiiinaie tke st ng ot ides 










cha aban al were. fh 













deo 


price greater than claimed under the contract, and on before 
gtated, we have slready held that the contract is not emreraible 
as to price, Vurthermore, the facts az adeve atated do net 
imdicate that plaintiff held the goods as vailee for defendant « 
There was no notification te thet effect. Om the contrary, 
they were held in plaintiff's own name. Under such « state of 
fects the proof did mot suppert « couse of setion under the 
special counts. Plaintiff was, therofere, relegated to hie 
Gause of uction on the common counte. The evidence doce not 
Support a stated sccount, and, as above stated, it does not 
show thet plaintiff sustained any demages from the refusel to 
Receive the goods, even if there was an obligation te resetye 
thesi. 

In view of theee conclusions of fact it is unnecessary 
to consider the various points of law diseuseed in uppeliant'« 
brief, for thore could be no recovery fer the third carlead upen 
the evidence under any theary of the cause of aotione 

The question of interest raised by eppellec seens te 
be well taken. There is no basia for allowenee of interest ander 
the statute upon the facts of this case unless there was un- 
Peesonmabie and vexatious delay of payment for the first twe 
Garlosds. The evidence indicates thet in September, 1921, 
@efendant questioned the vinding effect of the contract with 
‘Teference to the price for the first two carlonds. This was 
‘erere peynent would have been due under the contract for the 
‘Second curload, and only about « month or so after payment 
‘Would keve been due for the firet earlosd. The suit was begun 
about & month theresfter, end thus far defendant's contentions 


tave been in the main sustained. It was said im Sonmis vy. Clerk, 


+ 








yQtexinoe eds of abontie todd of mabteotsieen on pats 23 
to state # dom a6de «eons mee a Itheetela wt bfert wy 
em? tobe moksee %o sume 2 PrOgEER tem, bbb ai ont ae 
ahd of badayeler ,oxwtoneds snow ibs ee Le sBimuon, ; 2. on 

tox soob omebive oT sadmvoD mommon, ect Bo. sozson 30, vi 
G0 BeOd Th pbEseFe oVOdA ue gbuM «smIOVDA dedoge B HOG 
et Leattex aff mox?t sageach wae bonkadeum RRL. a de tat 


wy belay ee me ltrgkiae a mew wre Ub neve PnOne IE 



























/ oF ps 4 a4 aa i 
Moy oF ah Bae 


YIaeweoomm ok Th iit‘ iliacil ( wely a 
elineiioggay af beoewneds wool Re edatog amehiay add ¥ kaned 
aogy Saeizae detae ents vas TRovanON. ono DIMER OHS HOR 4 ‘ 
“ smokten To oateo edt Ye yrosds ym cohey | 

ee ames: selleqga Yd beaker saetegal Yo woktagup oat ce 
wohnus ¢éoredmk XO oomewoltn 19% ulead om eh oxndT «astad ' 
ht tow acoad oneiny goey ald? 30 atoet oxtt emt ‘ 
WHE Sask wis tot tronysg To yeleb eueliaxey bmn eldanan 
CEREL gtedwatge® wh sans endaatonk ssHove, 8a +8 

thy Sooxteos eds Yq dots yrthaid oft peaeisqeup sand 
eow ahd? subesdtoo ond foxk? old tot aokzg ont! oF gone 
sremyoy etle oa 2 cidmem  éuods ay Krag ANP ENE, ; ne] 
‘eae daw FRuw OAT hooks #oxkd ond xOX ob bed aver ot} 
hae hs ede neameahneinigincs oma ae a. ft ‘ 


NG Gee 











oS 


13 Tl. S44, S47, that no fixed rule con be laid dow by “hich 
te determine in every cave wheat abali ecometitutie euch umreseon- 
able and vexatious delay of payment os will entitle the erediser 


a.) interest; thet the question must Keeessarily be determined, 
to & great extent, on tne circumstances in each portioular qaae, 
amd thet there must be soacthing more than more delay te 

| authorise a recovery of interest under this olanes of the 








atetute. v@ 60 net think the faste of thie case ering the 
eleim within the conditions when interest ia allowed. Gon- 
sequently the judgment will be revereed with findings of fact 
and judgsent will be entered here for the ausunt found by 
the court te be due for the first twe carloads lees intercat, 
Ramely, $1224.60. Bach party will poy his oun coutse 


BLVERGED WITH PIRGINGS OF FACT 
AMD JULGRENT HEAR. POM O1284 G06 


Gridley, Be day amd Piteh, Jey concure 














tonsn yE mob Lak of seo otis bond? on 498s 108. 4AM, oft 


| nosso town sturtsenee Linde tome gege Koyo, wt. enjumres an 
nos ies one okakene. Ehw ae dmesg TO yalad. apetzagey., baa, 
roomieceses od Wttonssven, femme met yous and 2am, Aseonetas 
1880 sale lene apae mt mooted amumELe mia AO gtaadae a ee 
ae aioe ore, rest won Bahl erveme eS Gti axed Bad 
onl te cowale ahs asbew dexetal 20 Torsone» gastos 
“ie yeeg ous obs Y0 vor? id Amist 206 93,0. oni 


ono) shewells at fuezesnt medw eaetotinqa ibisagiothie 













cseorotat onek ebondsse | ons. souk one x0? ou bo oe 
uN A octonn abt we tiin we10g dont “sone nsest , 


OORDIRIE 5 Ww ’ 
ha Re eae MR EE BRIE npn 


go iii eae ee eed ties ee bine’ “we «veil 


si he RE SRR! RS name Ave i 





RI Ge ca US ROME ot et Mae te Ma Nas Sa SF acpatain ave TRA Ree ue Ways hood Ait A 
u CO a ee hee Wiis > gu a Min A i eR x : « eupiab deo 
Hebi A ina Man neets OL ORS UR MR pina nears MEY 

pacar done hae UR aR pnttaait ta Aa Wi a ame at RY ek sins ing aaa 

oo Mab TGS Ree Ve oa SG aa NR OND CR a le wht natant 

ween Ba nee latges ale) Sake Chahine tak att DRO Mee (waren AP area shasengol 
Me dee aane RCO QM CRINGE RE death! Si aS bay. eal, me ‘ none 

Ay MRR NG Ap DONORS I a ocr aE PRA HR Eta Pee Bi paling, 9 


ei pin Pes am ‘ iy Cy Whe iy Ai, Bee prea * ih a ne fs . hs 





aren! eR, +: ye Ranga ME et a a ASAD MAIR... EGY bcd wot ni 







CC me A ee mE ae mee ayes CER, 


vis. Bey aia Rn ada bay 4th awe. sexta Bk, weenie ii 








PINUINGS OF FACT. 







We find that defendoamt refused to socept the third 
of pauper referred to, that pleintifl retained 
ssession thereot after the refusal, thet the title therete 
as i mot pass out of plaintiff, thet ot the time of defendent’s 
. te aceept said curlead there was & market velue fer 
paper equal te the awount of dumages claimed by plaintiff, 
that plaintiff sustxined mo damages. 












DUR eR RE REITING 











Hi 


Galas ond sqnows eo bushes sankmeteb dad yeh? on | 





 edareUs eLULd ane dads yhaawtor od? meals dawned: 


a'eauhge teh te oaks ods 8a dads gThkeatake Re due, a 















274 - 81406 


JOHN OvIaNTY, 
 Appeliant, APPEAL. PRE BOWL CL PAL, 
ve ) OURT OF GHIcAgO. 
ADAM KOUTKA @t als, ) 
Appellees. 


oy A 


WR, JUSTICS BARNS DELIVERY Tem OPINION OF THE COURT. 

Om om affidavit ef dufendantes a judgment aguinat 
then entered by confession upon a judgment note signed vy 
them and puysble to the order of plnintir?r tor $2000, with 
interest, Was wet agide oné they wers permitted te appear 
ane make a defense, the affidavit to atami as their af"idevit 
of uerits. On sutmiseion ef the cawe to «a jury, the lewues 
were found against pleintifs. 

| Only one question is rived on thie appeal, namely, 
whether the verdict was not agninet the weight of the evidence. 
| fhe defense sot up in said affidavit wae that the 
note Wee given solely fur the accommedation of the plainti?f 
one for hie use and benefit and was witheut comaideratiion, and 
tase plainviif defrauded defendants im evtaining the note. 
It appeare that plaintiff head been conducting a soft 
erin parlor that was closed by an injunetion orders that he 
ft Teards purchased the buginess of anether acft Grink parlor 






furnishings, ete., from One Joe Grawiez, at a different 
- my that «ftor running the same for about five doys he 
: informed by the police that he would have to close up or 
11 outs thot he and adam Kowtka then entered into an 

















ey 
MEEOTMEM BORG data Mint adem Loge. sak 
—e8Gat iho Be TAU 
ee oe ee he oe 
\y Py ; » page, om" 


ifPGOLALE ANE i. 
ehAER? We 49 WorKIse aut sunuetne sumac an08e4 L 
tuntone anougdul # cdaaban ob te ‘dbynbltte ne oF 
bei et nediale oon deonghet 2 maqu i nolonetnon go Bie 
ey vad cet St ‘Wlentalg te, tidz0. ‘uit’ 9a pet 
oO adide OF Bodelenveg oxew yas ‘poe obhea’ porivon 
piviingies <body aa nadia ot Fevobiite sds Jonaeten 
eeuiat oct oQreh » te ey Epo ~ adtem 
\Vhteatete sembage 
a ehosan sTOORen: wits mm hectet ab soltdeawp ano ‘eit 
eoomebtve od to Silg door vad taninyes ton sew dotbuey one 
dit tact wow Shycakito blue at qu gon venvtoh OAT | | 
TAdmiake es Yo mossodommorDe odd rr YLoloo aovly aaw wi 
bas gtolintedinney Ipodsiw aow bea er tened one enn abt wok | 
sodon wld guimiatde Of etuebueteh Boauwr'bod | - | 
Ston n qabsounnes wood buat Piddalnte tadd. exaeque dT 
oi add setae meliomutnh ma ue deooke ‘qu Baas setae 
‘welnag, Mahxs Slow sestteme Io awenisgdd one heeedousg « 
dno rid # aa ecolvaw? oat ro mort goee crannies 
on woh awit Spode ‘eet oun old acme Ode dead 
on ti'sende:bt wed chien wt ae a 
ne obmk betedae gone soleveX mahi baw wt Sotd Yaw Le 











Pe 
arrangement whereby Kostka teok poosesrieon of ond conducted the 
g@-cnlled soft drink parler purchised from Grawies. The 
transection wae evidenesd by a lease of the premises from 

| Orawies to Kostka and the trensfer of the license of Orawies 
te Kootke ae a retail beverage dealer, and alae « bill of sale 
‘trom Amnie Svienty, the wife of complainant, to dam Kosta 

Of the stock of goods in said premises, consisting of cigsurete, 
cigars, beer, tobaces, claseware, and slao of the good wili of 
“the business, in consideration of (1650.35, and evidenesd «also 
by the judgment note in queetion. ‘hat all of theese documents 
wore signed end executed by the respective parties is not 
quentioned. Koetke took pessession of the premises eso leased 
te him end the etock of goede so sold to him, and conducted the 
‘business fer a peried o° three and one~helf months, when the 





place wae elosed up on a tharge of his vieleting the Gram “hep 

| Aet. The papers bear date im July, 1923, ond he took possession 
| of the premises about the 15th of that month. 

! The burden of proof was upon defendante to sustain 

|* their defense. They were the only witwesses for themselves, 

|The court ruled that the wife was incompetent te teetify in 

| vous of her husband. er evidence remains in the record, 

| wt is very meager and dees not sufficiently bear upen the 

















& to have any purtiowlar fores, even if it were competent. 
The main poimt in dispute ie whether said written 

7” S represent # bona fide or merely colorable transactions 

0 A thin question of fact plaintiff and Adem Kostka differ. But 

| he burden was on the latter to sustaim his case by @ pre- 

; e of evidenee, and we do net think he did. He 

mitted that he paid the rent for the premises while he was in 

ere at the rate of $50 a month, and did mot deny that he had 

























on? hatouhaen baw te molaseacoy toed adteeh ydovedw tmom : 
edt senlwax0 MOT howsrterme sedsog aekeh shen ined 
moet noatueng ens lo goael a yd beomebiro saw mene 
aoivex® Ye anneok£ ef? To teem? ed Worms #tdeox a 
eine % LL20 « oola bas ,xolooh egoteved Lhavet « 66 ald * 
sXteok mab 0? «tmaahalqnos Yo ottw ext eVaotve iit 
satetigte ‘to gaitatanos woatnorg bise ab ahoop to Loose - 
te iftw’ boos oxtd te odlth’ ible sorewsenls ,ovontod sibed - 
onan beonmoive hae POC OUSLY Yo moliotebiemes me ren how < 
atnomoo aor? Yo fle saat .aptioowy at ofon Susimbut, on 
fom ak tolixag evisooqers ould qo dedeoero ee, en 7 
boast Om Keelmetg af) Te motcanecog Love ebtaok | 
O49 Detownmes bite subd OF Akoe os ghoon to Meets ed die oobi 
a) nose guidmen ULetoone hae sonld Ye dodreq @ Tot. sepa 
qoute mont odd gattatoly uid to spredy # ae qu deat 49. Ae ‘ 
seksaonacy Aged et baw glSCL gydal wf ated saed, cot edt 
civ! oa oe jgehtom ded to Mees ade tuode wee tmong. & 
 gietawe Of atnadseted mogy aor toorg, te aebuad od? 
smovloampede 0's ‘wowg ond bye <ime edt prow, Nome uw teh 1 ti 
Rh Whines O35, sow doqmouns gow phi. pad todd resonnboe | 
sdxeoe” odd wh amines conedive coll» dmadaued. worl 29, 2a 
odd soge awed Ydawdadvhue som woe, Sha copes, yxov ba 
ciuedeques puey 22 31 more .eatok takwors tom, wR ovad OF we 
medehew blow xeddedw ot edayalh mt dmdoy, ahem. edienan 
snob someunne elderetos YLeorex ae ott aust # smonpaer a 
| ROKR mend moby bee Tibdmtake Pow Reps woah sa 
eR, & RC geaoatd windows oF Rudsed, ont anak 
wa obi ont Babes, Am sb, em Dem, « OR NREE: MM o 
mt ce a site soadnse od to2 dvs old hlaq aa tnd bob 
oct ext dail? ‘yd Fon DAD hem sltwom @ 08} YO ofet odd S0 ove 


paiéd interest om the note. He admitted thot he operated the 

| business for the three end one-half months, alates the stoek 

| of goods and chattels tht were treueferred to nim, and thet 

| he replenishes the stock with moneys he took in from the 

: business, which amounted to from 05 to £10 © Gays ams that he 
never made on accounting of the game to plaintiff, and that 

| plmintire’ never asked for ome from him. it alee appears tinet 

| when the business was closed he took such chattels as were 

| mot temoved from the premiges to his own home where they appear 
te have remained. ?laintiff denied dam Kostka'n testimony 

| that the tranenction wae one for hia accommodation and not a 

| genuine saie, and seems to be gapported by evidenoe to the effeet 
that Xoctka at the time of miking the purenave sought to raine 
| money for that purpose, ond mot being able te co se, gave his 
note. There was no evidence vhatever of fraud, ae pleated by 





| Gefendente, emd it is difficult to reconcile the execution of all 
the papers aferersi«c amd the giving of said note if they were 
intended ee a mere matier of form to concesi plaintiff's ownership 


| 


of the preperty, or to wunderetand the neceavity of defendemt Adam 









m signing the mote and procuring hin wife's signature thereto, 
| Of plaintiff silewdmg the mittes to rum on for months without 
amy accounting for tha prefite of the buminees, if it 

















&@ more pretended tranenetion.e 

We tidmk the verdict tos agaimst the «eight of the evie 
S. The judgacnt will therefore be reverued and the couse 

§ beon tried by @ jury it will be remanded for a new trial. 
REVERGEL Ab REMARDE Le 


Léley, P. Joy and Pitch, J+, congure 


: My / 


ny 







dt dodnsoge ad sede Seddamio al etn edd mo deers th 
3 Unosea od ombhson esti nom Teleome Sea goad? ed 20% gonad : 
i das bee gabe oF SuTEM ARID? oF dade eiedsoria han ahoom 
|: tt ext sh howe. ot aqonon date weose ett . : 





Pye Ane «Kab 4 O68 of 8 2072 98, desraomm cinddw oo 


<aiirvaitsntais in > onesie 
feds punegga pale 43. «mis monk ene 793 aeine, saan mh 





Bhd oan, «08.00, re aida nacho fon, bus speoqemy, fod, 303, eH , 

Ud hebasiq, vo ¢buazt eo novodady axaedive of, mw POE ot 

tO aosimpens add eLiongoss 92. siwoksiip Shed eine xo bane 

roe quis 2h stom Dine, ‘te grtwhy ond Ame obaws obs 

qidarxemo a'Tiisnlal, Leevnes od axe? te ceddam, eran a snails 

Msbh AnAMeRd KO YWivswoam ons Onadenvomm of to achat td 3 

seiorets oaubemgin a'etlw efd paisunesg bie odor oat - wok aides 

tara be aalttes C02 BO ME OF xOd tome osld sac Sb vahada, 20, Ae 

dh Li ganoniamd gy to edb hong ade sak watoraenn,, fit 2 tk : 

| MOR RARNN, De RERIER, 27R se: 

okee rs 29, 6, bali, oss, anion aor foshaey, eae Sate ies 

a9) SRMOD, ot, bie peateTe? |e pre teeas. site sopagdet, ont ® 
efakes wag «20%, hobmamm 















Sh .. eo — 








. 
| 
AAA eile ( rit 
| 4 at 4 Ve 


302 - 31454 


GOLDENROD ICE CREAN CORPARY, 


} 
a corporation, ) APAAL PROB CIRCUIT COURT, 
Appellant, 
G08 COURT? . 
¥e ae 
Appellee, } 


MR. JUsvics BARNES DELIVERED THE OPINION OF THE COUMT. 


This ie an appeal from an order ateyimg an execution 
wmtil the further order of court that was issued upon a judgment 
by confession entered against ccfendamt on Ria certain 
promissory notes. 

It is urged that the order ig not a final, and, there- 


2 HOt am appealeble one. Im that. contention we concur. The 







; “until the further erder ef court" manifestly contemplate 
aetion of the court, amd thet the ercer ia temporary 

i tits msture and not permanent amd final im character. It was 
ae held in a somechat similar order im O'Hara v. ?enneyivania 
Bake, 2 Grant (Pa.) 241, where the execution was stayed until 


* 











othe: pending preoeeecdings were fimeliy dctermined “subject to 

su " further order of the court as the justice of the ease may 
her require." The questions presented fer consideration, 
fore, ae to the extent of the power of the court te stay 
execution, and vhether it was abused, sre net properiy 

. use Being without jurisciction te entertain the appeal, 
it must be dieuiseed. 

: APPEAL DISMISSED. 


¥, veo Jey and Fitch, J., concur. 



















DBO eA Eth Rls > eto 


es 


i Taleo 2RT to woTMred amr caevict" enti | 
; ? abrg@ESS vd 
‘ mahiwooxe ae aatyeds 3 xobte | na mez? Laoage ae at oka 


‘ tnemghel a Roger pomees | fae jad @rwee ‘te sehee 3 4 ‘ 
Cece weet 
(sisdia9 ei a8 fate beso tsb somtags hototen | 


PP 
qi Sed ORS AS x 


3 ~sred? Sua s£ag!% 9 $0m at sobve ods sods boqum ab T i 
. ost. + tuanes a mo l?msnon doms ai id  efdatanege an fom 48 


aiaignstnes Vidvotione “dumee te sebae Teddies eds ® ie iktew" 


Sg aet pet + 


| Rustogmnd ok T000 os Salt me 4stu09 a Yo wonsoe 


pang suespstads ms feait ated sapaant eG, aginst cnt ceie Ho 


ee eee oe oe ee 


dnbiunhiones ze? botuonens flashes, ae ae 
Gale 22 fuses asd Ye tonoq alt Yo seetae of? 09 ae .eteteT 
RR: SONA OPE AE Ee ee 
‘SCL Gh, Lae sdesgtaads ots aaa 
elZeBIRTI DAseta 


“ 





wasn ce aod aur ort +5 ea 





wee 


mon OF THE STATE OF ILLINOIS, 


Appellee, 
: APHAL FROM MUMIGT PAL 
: Ve 
5 COURT OF CHICAGO. 
: S corporation, isi HHATA Cee} 
OR» os 2 Y, d ¢ Ly . ie as E ‘ 
‘ sppetient, 9 JHE olde OD @® 











o TUATICK BARWES DALIVERKR THE OPINION OF THE couRT. 


The appeal in this action presents the same questions 
‘have already been dscided in another ease having the same 

; b» Hos 31456, consolidated herewith, in iaace land have 

aie day filed an opinion reversing ond reminding the judgment. 
ne Some order will be entered in this oase for the same 


REVERSED AND WEMANTID, 


¥, Pe Tey and Fiteh, Jo, concours 





As 


















| LAT OT MN MOAT Zareta 


sODADTNO FO TaD eve Rae 


NBO Bled Sen 


| neo ane 08 waturt ‘at camartane rete sit « 


sp Fogg 3 aap tees oe gee ‘saahgreen't oes | 


enkhouniiy oman, ade poorer wastes otee at SACHA AF ctw 
sane os ytivet eras tediseme at peal 


i Ba 


sTme00 YaLac 
ay ee, 








5 ont 203 oen0. mgt bezetno of em, 
oa ae, am TC | RA Cav EA Bed ae py 


sade ees b iteee 





HE RE ES BOC id % ‘ we. B 4 oF RY aR gua VERS) TRB 


i, EAS Na Kk A Fd yee Sra c) OR 


wile “suave te eHoght berm Soke Pt ty 


Mea ay gee tie; 





NARS SHG ie HERES CROLT Go See eR aa nigga Aba Baten mt om errs, 

ii tna a ae See ce ee uk emits meta Tem ree oda < 

4, he 

Sw? ton Rea: Renae dl ate oak, ue < ekangane J 

yeas oi ey Gee Ty set ip eee, “ae ae gels 

ME eS RAG aS ES. an RIAN) MSH ate cata hoa Comet ht oe rr 

Se CEE Oe ay ay eee RA Pee i) 6. RRR eye 1, MRE 
i ; Dt 


ohewelewnks oe Rea 


RRR gies gy Ne ae, ei, ak hy eS, ogee 








326 - 31488 


PROPLE OF THE STATE OF ILZ.INOIS, 






Appellee, 
APPRAL PROM 
ys ve MUNICIPAL COURT 
nN oP ourcAgo. 
WIIWAUKEK DAIRY company, ae 
& corporation, DA A 
a Appellant. hed ie Se 


om. TUSTICH BARNES DELIVERED THE OPINION OF THE COURT. 
iy) ¢ 
i wd 
i The appesi in this action presente the same 


westions ae have already been decided in another case 








the same title, Woe 21456, consolidated herewith, 
| which we have this day filed an opinion reversing 
md remending the judgment. The same order will be 





in this case for the same reasons. 


REVERSED AND KEMANTE LD» 


@y, P.» Jo, and Fitch, Jo, concourse 





IoMA— 


AT A TERM OF THE APPELLATE COURT , 





mand held at Ottawa, on Tuesday, the fifth day of 


October, 


and twenty-six, 
ee 

State of Illinois: é j i. 

3 . 


ent--The Hon. AUGUSTUS A. PARTLOW, Presiding Jugtioe. 


aoe 


Hon. THOMAS M. JETT, Justice. i; ee 


p 


Hon. NORMAN L. JONES, Ju 
JUSTUS L. JOHNSON, Clerk. 


E. J. WELTER, Sheriff. ») 
ce 


BE IT REMEMBERED, that afterwards, to-wit: On 


FEB 21 1997 the opinion of the Court was filed in the 


Slerk’s office of said-Court, in the wordg and figures 


following, to-wit: 


within and for the Second Diits fae et Pe the 


oe. 


in the year of our Lord one thousand nine hundred 





rae a inp abe pa mint 


rf 


; 









7569 (April Term, A.D. 1926) 3 


- Milton Halowell, Admr., etc., 


Plaintiff in Error, 
Error to the Cireuit Court 
j VSe 
a of La Salle County. 
_ Chicago, Rock Island & Pacific 





N 
a 


% 
al 
¥ Railway Company, 

4 Defendant in Error, 
af 


on This suit was instituted for the purpose of recovering dam- 






















4 ages from the defendant railway company on account of the death 

of Howard Halowell occasioned by a collision between an sautomo- 

bile truck in which he was riding, and one of defendant's passen- 

_ ger trains at a crossing near Ottawa, Illinois. A trial before 

Da jury resulted in a verdict and judgment in fevor of the defend- 

ant. 

i The defendant railway company operates a double track 

railroad extending west from Chicego through Ottawa and into 

Pieus and other western states. The highway running west from 

_«Ottawe is south of the railroads Between the highway and the 

Pyailroaa is the Illinois and Michigan canal. A short distance 

na th of the railroad is a range of Illinois River bluffs. At 

68 point almost due south of the railroad tracks and 3.93 miles 

West of Ottawa, the public highway turns to the north, crosses 

F high bridge over the canal and then crosses the railroad right 

way. This crossing is known as the "“Moriarity Hill Crossing." 
On March 10, 1920 plaintiff's intestate, a boy fifteen 

years of age, was in an automobile truck with Albert Windus 

Bnd the latter's son Ernest. The elder Windus was driving and 

at on the left hand side. Upon the same seat were his son and 

ard Halowell. They were returning home from Ottawa where 


ney had been in connection with some business of the elder 


— (a8ek ocean 
ete ont 
sawo0 timesiO edt of torri 


oY Fried effsc ail to : 
" otttoat i Bis tat 


aw RBG A aie Ri 2 bind Cathoe ay sy ; 
| eign 
,TOrTe at snaboetet — 


De 


abana: A valomtiil ,swatto teen jd eae’ 


sharstes ott Yo teva ‘at tuengivt Sal FoLbaey ae ak” 


otni brs swetto dgurowdd ogeotdo mort teow sutbaodee 
mort teew gainarr yawdgidh et radii nrotaew neddo 
edt bs yawigid eft noowted haosties wit te atuee 


eéoneteth trode A 


digiy bot iter eH? eekauts’ Hed? hak fando ont ifovo Sai bin 
hinsdaunuiciaed ILL ytiueixom” od? as awornl at gu taaoro etiit 
seottii yod 2 etsteotat attitntelg¢ oser Or 
avhatw tredfa dt iw stonrst aide tae a8 mk eew , 
Brees ariveirs asw anbaotW xebLe oT 
 ‘Bte moa etd erew taea omse odd nogu gee 


etsdw swaitO mort enna aicintie erow silt 





‘g 


-2= 


As they were attempting to cross the railroad tracks they 
were struck by the defendant's passenger train No. 17, which 
had left Ottawa at 10:10 o'clock on the west bound or north 
tracks. This train was 18 minutes late. An east bound train 
left Utica at the same time No. 17 left Ottawa. Wo one on 
the west bound trein was eware that it had collided with the 
truck; but the engineer and the fireman knew that something 
hed happened because the blow-off cock on the south side of 
the engine was knocked off and the steam was rapidly escaping. 
The train was stopped as quickly as possible about one-quarter 
of a mile west of the crossing at 10:15 o'clock. About the 
time this trein came to a stop, the east bound train on the 
south tracks whistled and went by No. 17. The eseaping steam 
from the blow off cock was so dense, the engine-men on the 

. east bound trein were not able to see the automobile which 
| head been struck by No. 17 and thrown onto or near the east 
bound tracks. As a result the east bound train struck the 
wreckage as it lay some distance west of the crossing and 


= the three bodies over east of the crossing. They 


\ 


ae 


_ were all badly mangled; and no parts of their bodies were 


found west of the crossing. However, most of the truck was 









found there. 

- The weight of the testimony shows that at the time of 
the accident, the day, though somewhat cloudy, was sufficiently 
ser for people to plainly see a distance of one-half mile. 

> railroad crossing was equipped with an automatic bell and 
either side was a "Stop" sign. The sutomatic bell was 

n to have been in good condition, having been tested the 

a y before the accident. 

The declaration consisted of ten counts but the rd, 4th, 
6th, 9th and 10th were dismissed; the case was tried on 


© ist, 2nd, 7th and 8th counts. The first count charged 


ates? purod dace MA otal neath er aaw y mbeet ta 
“mo oho OM sowsdtO Stel VL ou, omit. omse edt a. 
edt dtiw bebiffoo bad tk stadt etsws asw alert. 9 
guidvemoe tad’ wend camexlt one 5a ‘xoentgas, @. 
to ebie dtwoa edt no sooo Tho-wold edt. ‘sussvod 
-giigsose ylblqsx asw mseta ent baa tto beadoomst ace 
. tedtespreno tuods sfldtaaog as Yldolep as boqmods eew 
edt dwods .Xo0Lo'o 8L;0L #s gmtaaozo ext, to taew 
edt mo ated bused teas edt ,qote s of ems ‘niet? at 
na baitialladieaniiai ed? SL ,04 yd taow bas betiatan 


~ pte: tisd-one be spmededh a meen shatere st: of 


bas Ifed ottamotse as diiw beqqispe em, autaagro bec 


wow Iled otiamotss edt eftg de | "aoe a pod Ob. 


ae 








negligence in the operation of both of defendant's trains and 
that the plaintiff was struck by both and died as the result 
thereof. The second count was a general negligence count and 
charged that plaintiff's intestate came to his death from having 
been struck by one of defendant's engines and trains. The seventh 
count charged that the death was the result of the negligent 
operation of one of defendant's engines and trains in running 
them at a high rate of speed without ringing a bell or blowing 
a whistle or giving reasonable warning that the train was approach- 
ing the crossing; and that plaintiff's intestate was struck by | 
said train and thrown between the two rails of the adjoining 
tracks and while unconscious but still alive was struck by an 
engine and train coming from the opposite direction, which train 
the defendant knew, or by the exercise of reasonable care could 
have known, would pass the point where plaintiff's intestate lay, 
and the defendant negligently failed to stop seid approaching 

. train. The eighth count was approximately the same as the seventh. 

The question to be determined is whether the verdict for the 

defendant was werranted by the evidence and the law. It is con- 


_ tended by the plaintiff thet the morning of the accident wes 


dark and foggy; that the epproaching train from Ottawa was travel- 
? ing at a speed of approximately 90 miles an hour when it reached 


_ Moriarity crossing; that there was a curve a short distance east 


& 


of the crossing which obstructed the train crew's view of the 








"crossing and also séstructed the view of those in the automobile 

* Tuck so that they could not see train No. 17 as it approached; 
that no proper warning was given of the approaching train and 
that its speed was excessive and dangerous under the circumstances. 
‘ Photographs taken at various points along the public high- 
Way south of the south rail of the railroad tracks as well as 

; testimony of witnesses on the trial conclusively show that 


thstanding the curve in the railroad track and the cloudy 


‘ tree eHxT “see ene er 2 tfnis Sab is 


yd Moovrte ese otgteotet a! tritatale er’ bas 


ied te bee! yrottoor ks stiaoqad edt moxk aubmob bi 
 BLtreor stan aldaroassr’ +0 selorexs edt td to’ vane 
wet gtatootrt e'ttitetala eet taetog ett avaq’h [sre 

guidesorqgs Sise qote ot Holter Pltnegs faon tas 


(ect RO wokvoatwerg: shard ene betourtedo Motdw'g 

elidomolas sdd-me aeodd Yo weiv odd bodourteds 08. 
jboedsséxade tious VI sow mhexdowoe don’ biwoo 0 

pas aistt. gaidosoxgda : etd to» nerks cate gotmesw 

: aeonstamootio edd Tebamasonegnsh bas. oviaasoxe hepiail . 








~4— 


_ eondition of the weather, the occupants of the truck from the 
- moment they turned north on the public highway to eross the canal 
a#né the railroad tracks, had an unobstructed view east alone the 
tracks for at least half a mile. The extent of this view was not 
materially shortened at any place south of the tracks. No matter 
what the train's rate of speed may have been, there was nothing 
so far as the evidence shows, to prevent the intestate and those 
with him from looking to the east and seeing the train in apt 
time to have stopped the automobile and avoid the collision. 
Counsel for plaintiff insists that the trein was running 
90 miles an hour. He arrives at his conslusion by mathematical 
) deduction. The only witness who gave an opinion as to the rate 
| of speed, said that tim when the trein went over the crossing 
it was going between 50 end 60 miles an hour. The scene of the 
“accident was not within the corporate limits of any municipelity 
“and the speed of the train was not regulated by any rule or 
“ordinance. At such a place the railroad company hsedan undoubted 
“right to establish the speed of its train giving due regard, 
however, to the safety of passengers and also of persons in the 
Dexexcise of ordinary care traveling on the highways over and 
“across the tracks. (Partlow v. I.C. Rye Co. 150 Ill. 321.) 
i the situation was such that a person about to cross the tracks, 
ze the exercise of due care for his safety, could for a distance 
ot & half mile or more see an epproaching train, a speed of 50 


even 90 miles en hour cannot be said to constitute negligent 







Meeaxation of the train. In this case it was show thet from the 


nt where the public highway turned north to the south reil a; 


TN ) 


the railroad tracks was Stich teeth ond that the approaching 
tr in could have been seen by plaintiff's intestate throughout 
entire distance. 

He was a rugged strong boy 16 years of age, had been raised 
a farm, and had been driving an automobile for st least a 


ear. He was of sufficient age, intelligence, discretion and 


tom aw woiy aids te. dnedxe ont Lim 8 sie ta tn 


ee, 


tetten of s.exoatt. edt to stmoe enakg ae ae (bones 
aniston aew ovedd need pvad yen booge 3 ‘to ott! 


_» wftoteti£os edt Dheve bus sci peieiaa pre salah 


Hsesth shit 


_ gmkanere aan atend edt todd. mitakans Rama 


ak te ofson ef? xvod me wan: 08 fas 08 a, nomad 


| et oqto zm yaa to otimty etereqnoe ould mbitiw @ ton om 
i ™o elute yaa xd betalegex tom ean alent 4 ott Sue 


so teR0%, eu, guivig ofett. att. be. aauk nak 
eit at anoareg to cals Sas ategneassg te, ute 
Bae {evo ayside tel elt a0 ant lavent0%se:% | 
(ef88.i4 LET, OBL ve OD, ARM ue Ded, ook wortees), a 


bbe ddsioa oat Od ,ahhron bomtot. cael onan 


ih — BSS nd Ma 


- gatdesoraus edt dadd, baa. neat ae .aaio 


vila to ROWE my DS Sac vale ic 
beaters noed bad .,9gs..to arasy oceae meena, 








experience to understand and appreciate the danger of attempting 
to cross railroad tracks without taking the precaution to look 
and see whether or not a train was approaching. It was his duty 
to use his faculties in ascertaining the approsch of the train 
and to warn the driver of the truck. (Pence v. Hines, 221 Ill. 
App. 584; Specht v. Chicago City Ry. Co., 233 id. 584; Greenstreet 
yw A. T. & St. F. Ry. Co. 254 id. 339.) 

Whether or not the whistle was plown and the engine bell 
Was rung were controverted questions upon the trial but we think 
“the weight of the evidence largely preponderated in favor of 
the contention that such signals were given. 

There were no eye witnesses to the accident and plaintiff in 
“error insists that the evidence was sufficient to raise a pre- 
“sumption and establish a prima facie case of due care. Pursuant 
% that view upon this question he tendered to the court the 


i 
following instruction: 


“ 


—- 


"The Court instructs the jury that if they 
believe, from the evidence in this case, that 
there was no eye witness to the death of the 
said Howard Hallowell, then, in determining 
whether the said Howard Halowell was in the 
exercise of ordinary care, as the term is used 
in these instructions, the jury have the right 
to consider his habits for care, caution and 
sobriety, so far as the same are shown by the 
evidence, together with all the other evidence, 
facts and circumstances shown by the evidence in 
the case bearing upon that question, together with 
the presumption that a careful, prudent, cautious 
and sober person will act in accordance with the 
instinct of seif preservation where there is a 
* known danger to be avoided." 


ae eee 


2 The evidence tended to show that the intestaté was a sober, 


ite 
_ industrious boy but it did not disclose what were his habits 









as to prudence and the exercise of care and caution in the 
Ordinary affairs of life. In cases where there are no eye 
Witnesses, a plaintiff is not permitted to merely prove the 
Tekeident which resulted in death, and then rely upon the in- 
wtinct of self preservation common to e11 men to exercise due 


sare and caution. He must go farther than that. He must prove 


ea aid asi bes santloeoxage aew | kant B _ tom x0 te 


foortensexd . 728% »bi SES 


at rtieaiata Brus taebtoos = ot eosvent in ove oe r OrOW 


Pag BRS 


‘oemen. »OTSO aus to ease otoat autzg a  Kabsantae 8 


cont a tals cot ait inne ek desod edt" 


tedt .suse aidt af estebiva edt: lapel basins a ¢ 


eit to diseb edd o¢ aeentiw oye on saw exedt 
 gittetaredep ni ,nedd \flewolsh prawol Bias 
edt at asw Ilewolsi buawol Bisa edt tedtedw 
bears ef met eft as ,o%ses yranthro te sétovexe! 
tigix edd evad yrst oat ,anoktoux¢ent eeedt mi 
~ Bre potigas eres vot atidad sid - “tobtaton rae 
edt yd nwoda ozs omea sdt as tet 08 yee 
,sonehive vedio eft Ila Adiv tedteget: 
ok eonehive edt yd awode seonstamuorto Fag atost 
Ntiw tedtepot. moiteepp tedd negu gaizsed ogee’ edt’. 
avolivcac ,TRSDNTG "ives 8 tedt nottiguvyeastg 
odd Kiiw sooehto0be xk tos [Lkw coeteg redea 
8 Bf oweds oxadw set ara eeeny tiee te ; 
*LhEDfora 6d. ot 


eden 8 Bay Remeiena® acd: Yeutt wodd Ot bebset oomed 
‘adided eta evew tanw seotoats ten h8s tt dud yor. 
eit mr notineo fue etes” to dalorexe we aes 


eye on ets ered sredwy coast at “omer 3 





et Aten matt! routust aig 





the deceased's habits not only as to sobriety but as to prudence 
and the exercise of care and caution in the ordinary effairs of 
life. (Newell v. C.C.C. & St. L* Ry. Co. 261 Tll. 505.) As was 
said in that case, if there are particular facts present which 
would tend to throw any light upon the question of whether, at 
the time of the fatality, he was in the exercise of ordinary 
care, such facts may also be shown. In the absence of any proof 
of such habits or particular facts no recovery can be had be- 
cause of the failure to prove that the decedent was in the exer- 
cise of due care at the time of receiving the injuries. Where 


there are eye witnesses due care must be proven from what 


| 
. 


actually occurred, but where there are no eye witnesses and no 
one to testify as to what decedent did, then proof of habits 
ere admitted to raise a presumption. Therefore in the above 


quoted instruction it was not proper to say that proof of habits 


plus a presumption are to be considered in determining the 


i 


- question of due care. It is obvious that if there is no proof 


a cea 


of hebits of sobriety, prudence and care of the decedent in the 


ea 


Ordinary affairs of life and no proof of perticular facts show- 
ing due care, then there can be no presumption. The instruction 
twes erroneous because it stated that the jury had the right to 
* 

pie 


_ Gonsider the decedent's habits for care, caution and sobriety, 
F: 










together with the presumption that a careful, prudent, cautious 


Ss no presumption. 

All instructions given on behalf of the defendant sare cri- 
ticisea as being erroneous. ‘some of the criticisms are not 
Without merit. For instance one of the instructions told the 
y thet it was incumbent upon the plaintiff "to establish" 


his case by @ preponderance of the evidence. The use of the 


BAW 2a a 2808 .LIT LOS 000 sgt ad cde’ 10.0.0 Some 


ag 


 erad¥ .eolzeter adt gutvteset to emit edt ta esd: enh RO ee: 


tedw mort nevory od tanm eres enh goavontiw es 


ett Sainimreteh si betebteroo ed of evs vieuaaaaala 
‘ ses on at exedt <f tadt praia ek at 8TRS oni ae 


: 4 CE BE ae 
~-woda eatost xofwo ttzsq to. “toon on bas our 40 “entatts 


are 


mores ent -noRiqmseoxg bor on m29 eredt wont oteo: nb 


‘ovouit eouedi tote al bas ots to at ded t6 “room on 


Hee aS . 


“outs to | eax ot soneBtve ont it sonsxetio 


RTOS oe Pea 





sas 












4 word “establish” instead of "prove" has been repeatedly cri- 
| ticisea and a few close cases have been reversed because of the 
error. In this case, however, both parties committed the seme 
; error. The plaintiff's sixth SavheeeVien canbites the same vice 
en the defendant's instruction. Courts will not give heed to 
- complaints made by one who has committed a like error. (West 
D@hicago street R.R. Co. v. Buckley, 200 Ill. 260; Funk v. 
Babbitt, 156 id. 408; C.& A. R. R. Co. v. Harrington, 192 id. 9). 
Although the defendent in error's instructions were by no means 
accurately drawn such a situation does not justify se reversal 
of a case in which substantial justice has been done. (Ford v. 
Pord, 257 Ill. 241; Mam v. Brady, 67 id. 95). 

It is contended by plaintiff in error that the trial court 
erred in excluding competent evidence offeréd in his behalf. 
The witness, A'Hearn, engineer on the east bound train, was 
asked about an alleged conversation he had with engineer Connelly 
immediately before the coroner's inguest was held. ‘The court 
properly sustained an objection to the question because it was 
incompetent for every purpose, unless it was intended to show 
that the witness had made statements out of court in conflict 


Rick 


. With his testimony on the trial. The witness was afterwards 


By 


J asked if he did not testify before the coroner that the train 

4 Was standing when he was 1000 feet from it. Our attention is 
not called to the page in the abstract where this question is 

to he found, or to the ruling of the court upon it. The alleged 
error is not properly presented to us. But even if it were, 
the witness admitted that he hed testified before the coroner 
and head signed the transcript of his testimony, and we can find 
no Place in the abstract or record where his attention was 
“eallea to any statement contained in the transcript, which wes 
at Variance with his testimony upon the trial. The same obser- 


vation may be made concerning other questions propounded to 








«tro yLieteoger mesd aad “ovetg” Lo beotank ules tdetao Sone 
edt to saysoed Aeavever goed eved seaco eaolo wah e-has boatoid, 
enge edt bettinmes sottrag ited | tevewod ).segs akdd ay renee 
solv emea add antetcoo oottosttant aitute,.e'tritateta ‘ec core, 
ot See ovtg ton Liiw etow0d...aottouttsat al dusheetes, odd am 
taeW) .toxre efit s betdiameo sad odw emo.ud oban adnielqmog 

2¥ dno, 08S .£IT 008 ,yefsdont «v.00 «% f toorte egsostdy, 

a(@ bt RCL .modgntrtel «F400 0.2 Ah oD 2OODueSh MOL ttddes 
agsom ox yd exew snoitorttgnt s'tozre at dnebsoteb, edd dawedtia 
isetovex s utiten} tom acob nobjsudie stove awash yletersoos 

-V bro€). .2aeb nood aad cottart Lettnetedna dotdw mb: onge De 

a ek » (G8, bE VO .ChStd «sem 7IMS LIT TS bat 

txvop Isitt edt odd sorte at Tittalele yd bebsetaoo eh ahs cathe 
-tiaded aid mt Bayetto sosefitve. tneteqnon. guLtbsLome seb bertem: 

9 gee ttent Baged dese edd me. cebaiane. roel" Rend kw sod 
yilenre) veertsans dtiw bed ed nettsereynos hon Si ae 
grseo ed? . ,hfed ear ¢eoupnt e' xenotom edd exoted yhe ! 
sav tt easaped nottaesp ed? of moktostdo as hontatara aixeqomy 
wode o¢ Psbnednt new ti aaelun .,eaoqrag yreve ‘toh good oqmomne 

, totitnos ab tives to.duo atnqmetata, ebsm,, ath anend ie one. att 
abxewretis eaq saentin edt, »leixd edt: mo ynombtaad ate dtae, 
niaxd edd decd romoxoo et oxoted ykideet tom bib od Sh bedea) 
af mOituedéa swO .¢f moth, deel, OO0L eam od, ned gntbosta:e ' 
ai atiiaeup aidd exedw teartuda edt st. egaq edt. of boLine. te: 
Sogeiie ed? tk noge txoge edd. to gallon odd of, xo ,Samoh on m 
anew 22 Ei neve tof .a5 0%, beduceeng: irons, don oh devs: 


















Aas 


Seit nee ow, bas. .yromitaes jatd: Tp tqixoanest. dé, ae pad na 
asw xoitnetts aid exedw buoser to. desrséads edt. ah cosa. Ag 

ese: dotdy toitoanaxt edt mb bontednoo. bee ade ene. 0 post 2 
~reado emsa edit. .lefxd alt moqw yaomtteot abd dite pace 
ot bobawogorg exoiteexp. xodto yu bwneomon. pier 2. 


-8- 











this witness and to which objections were sustsined. The court 
properly emcluded the portion of the testimony of the witness 
Smith concerning the condition of the crossing bell between 
March lst and March 10th, 1920. It appeared on cross examina- 
tion that he was not able to say whether the bell was out of 
repair between those dates or not. But the witness, Clark, was 
4 permitted to testify generally on the condition of the bell. 

e We think the rulings of the court upon the admission of testi- 
; mony were substantially correet and that the plaintiff in error 
was not at all prejudiced by them. 

An examination of the entire record fails to convince us 
that the verdict of the jury wes unwarranted by the evidence. 
Miiieed we arc of the view that plaintiff failed to prove by 
a preponderance of the evidenoe, either that the defendant was 
guilty of any of the acts of negligence charged in the declara- 
thon or that the deceased was in the exercise of due care for 
his own safety when he received his injuries. 

Under our view of the case the verdict and judgment in 


the trial court were correct and should be affirmed. 


Judgment affirmed. 







draoo od? -benistese ere enoktos {de dotdw ot tetcas sooty anit 


- . PBULMEKS QBOTD: HO, botecque df. .08@L ,dd0L dors hows tal. soma 





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xouse ak Tiigaisig oft dadd. bas foenzoy: yiietineta due orew yom 
ooo) smtodt yd: Seolbaterg Lie ean 
air asomivaoo ot glist. S1osex eritae edt to noitentmpxe md © 

-sonebive edt yd Setaerisway.eaw yusl edd saieieinass a 

3 ed over. et belist tittaisig. jedt wolv out to-exs ew Beebal 
ee taghuetes edt feds teddies sonobtve. add te. SenaTebmegetg 
ea -stsigeh sit at begreig. eonagiigzen, to aton out ko yas te yttins 
bees “ £0b eves. ovh. te: eatoxexe ont ai-gay: benseces cedtsd adeimeimeee 
. seetigtnt-etd-beyieset edinenw: ytetas awocakd 

Mi-taemghst bas tothtey,odd ease, edt To woim ame: Seabed «0 my 
,houriits ed $iveda bas. tesrneo erew tres Leist edt 

“mo too gésacads te. chee God arent eh aa 

-cabemrclkts igemgbobs: vc questdead ete doar 

Sts. ah i o Yi Rete 

Sage OOD gee is Sate Rae geen NS. ne 

af Ro eS eee ah GS caer onde dete 

goth det Bad Ot, atk og Se a, ae 

ease winectee ton 6d Seine 

ets Heke. me aand bey asl | 


; fae: sae Yrowiaeamn 4 ee ey ee Cae ’ 
TNEAE o da Prost dene See Gat rei. 


% : 2motts ude erode Ayosen te steeen esd ae ee eee 
‘ hay 
, , sarees Syney ape s 34 gy ; 

ix SEDO Raa SE. ae he tlee 








RCS eh Gs FCO, | URE a ee ee Se on OD EEE “ae 


DUH TE bf 9: Bas ye ott sLecdedie. ey Peay a Se SA Behe Aa ata, apt Prose eae, 


Se 









TE OF ILLINOIS, cs 
OND DISTRICT : 


I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 
id Second District of the State of Illinois, and the keeper of the Records and Seal thereof, 
ereby certify that the foregoing is a true copy, of the 


4 aid Appellate Court in the above mae cause, of record in my office. 
; In Testimony Whereof, I hereunto set my hand and affix the seal of 
said ee, w at Ottawa, ae OS Ce of 
J 


in the year of our Lord one thousand 








nine hundred and 


late Court 




















* 



















ee 
mg ; 
AT a i aan THE sPELLATE COURT, 
f Ff 
j i i 
un and hel 


at Ot taw; on Tugsdayg the fifth day of 
Metober, i 


the yen of ours Lord cnethovesha asa hundred 


pad cal Six wi fin and) for the. ‘cond District Of athe 
° a 
linois: 


Present--The Hon. AUGUSTUS A. PARTLOW, Presiding Justice. 
Hon. THOMAS M. JETT, Justice. 
Hon. NORMAN L. JONES, Justice. 


A goo L 
ZL Vd Ne A i, | 4 
JUSTUS L. JOHNSON, Clerk. 2 a= tele 6 Oo 
x E. J. WELTER, Sheriff. 





1d JLUe REMEMBERED , that afterwards, to-wit: On 
MAR 7 ~ 1997 


Merk s office of said Court, in the words and figures 


the opinion of the Court was filed in the 


following, to-wit: 





October Term, 1926. 64 



























William H. Fiser, 

appellee, 
VSe i 
Appeal from Cireuit Court 
Chicago and North Western 
4 of Winnebago County. 
eilway Company, and -The 
ity of Rockford, 


appellants. 


Partlow, P. J. 
Appellee, William H. Fiser, recovered a judgment for $250 in 
6 Circuit Court of Winnebago county sgainst appellants, Chicago 
and North Western Railway Company and the city of Rockford, on 
account of damages to an automobile, and an appeal hes been prose- 
‘euted to this court. 
Several grounds of reversal are urged but it will be neces- 
8 y to consider but one of them. The evidence shows that the 
é tomobile was damaged beyond repair. The only evidence offered 
ak ee the question of damages was that it would cost 
etween 4400 and $500 to repair the automobile; thst two undamaged 
ires were worth 13.50 and that it wes worth $12.00 to remove __ 
automobile from the reilroad track to a gerage{/ Evidence was 
ffered by appellants tending to show that, prior to the accident, 
automobile was worth from $35 to $125. No evidence was offer- 
2d as to the value of the automobile after the accident except as 
tc the value of the two tires. ; 
Where property has been injured by the negligence of another, 
né the property can be repaired, the measure of damages is the 
ost of restoring it to its former condition, provided the cost 
of repair does not exceed the market value of the article before 
; injury; but where the property has been destroyed and cannot 
s nepatzen, the measure of damages is the difference between the 
rket value before the injury and the ane of the wreckage. 



























-d8@L ,mxeT tedotoO — 


reall .H me 
,eelfeqqs — 
8 gle 
 peedeow dotO bam ogee hel 
edt bus ,ysaquod. bam 
,Dbtetxzooi te * 

-atnaslleqgs 


. @xwed tisetlo mort Iseqqa 


-Yinwed ogsdenniv to 


sb oI ,wol: 
at O@s? rot tnomybet cs borevooet ,teatt .A metILiW ,eelLeqqa 
; @gsotdd atueliegze ganiegs ytoroo ossdenntW¥ te grv00 timortd 
a mo ,fxetsxoof to ytlo edt bas yasqmod yewlish atetagW dirow 





a es ~se0Ty seed asd Iseqqs ne base ,eolidometss me oF eegsamab to tro 001 


~trsoo aidft of bode 





~eooon ed [Ifw vi tud bogus ots [setevert to ahawotg “Estever 


edt Jedi awoda esnebive ed? emedd te eno dud Tebianeo oF 
botetto eenxebhbive yine odAT .tisqet baoved hexsmsb a & dome 
geeo bilyow ti tedt eew aonsmsh to notteaemsp edt 20 amr 


begsmsine owt tad? z;eltdomotus edt tieqex ot O08 bus oon noewd 





evomer o¢ OO.85% dtrow asw +i ted¢ Bae O@. 8i% dérow erew gerk 





4 
J 
-esw somebivi \essts,; s ot dosit bsorlitex edt mort eltdomosus | 
,taebtoos edt o¢ roivq ,tesdt wode ot gutbmet ataeliloqqs yd berett ; 
emote asw eonebive cH .a81% ot 3&2 mort ddrow ew eLidomotss 


. 88 tqsoxe tuehioos edt tetts elidemoetus edt to exTay edt o¢ as 





‘ s2exit ows edt to eniay edt | i 
| ,xedtone to eonegtigen edd yd berwtat need ead ytreqora eredW e j 
edt st esgsmsh ko sryasem edt ,berisqer sd nso ytreqotq edt : 


taoo edt hebitvetq ,moitibaes remrot att ot tt antzodzer to. 










eft meewted somerettib odd at segsmeh te etvaseom off sboxt 


-egetoetw edt to esisy odt bus yistat edt ototed onley 











be \ 


leDonnel1 v. Lake Erie and Western Railroad, 208 Ill. App. 442; 
tathan ve Cleveland, Cincinnati, Chicago and St. Louis Railroad 
ompeny, 164 Ill. App. 559; Crossen ve Chicago and Joliet Eleétric 
Railroed, 158 Ill. App. 42. \ 
There is no competent evidence in this record on behalf of | 


ppellee to eustein the judement. There is some evidence i: ee 





4 d f ' \ 
elf of appeiients, but the a of the ges is so in excess 
£ the emount of the that we are not justified in affirm 
ae : \ 
the case. 
The judgment will be reversed and the cause remanded. 
Reversed and Remanded. 
os 
ha 
i\ ; 
\ 
es 
: 
A! 
BX 
ef \ 
y AEN 
Pk} 
bs 
ae 
Is 
I 
IN 


% s 


= mee ered 


.bebuamet sauce eit fue beatover ed tiie 

ee ek Serena iert # beweveoet reat make lee (88 Neaes 
sbebnemeg bas beetovell : 

strs Liang Sei lege ysis. ogadeRRE Re tawed 3 ktotes 

. eas Tins, yc yael eae wretiaW trot 

antic ga oF pepened ‘Te. es 

juve wate ‘et 

sy tO eho koxewse 
ake tid Neb tangy: ot § 

Reed lade” etal : 

yc) sauinidasis ot ze 
roftdemesne 34 taqen ot 008k base 
dither oa 

‘ ay ¢ COUGHS * Lonatay 


7% + 
ea 33 ve cost iey Bale 
5 we. SO Oe 


e 
@ 


: heres Ray orden peed: weasel ute cong ‘eas ako aad 
| konmied sonsreth Eb Sai ae Br oe. 











ATE OF ILLINOIS, bs 


SE COND DISTRICT I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 


for said Second District of the State of Ulinois, and the keeper of the Records and Seal thereof, 
ereby certify that the foregoing is a true copy of the 








@ said Appellate Court in the above entitled cause, of record in my office. 


In Testimony Whereof, I hereunto set my hand and affix the seal of 
said ae, Court, at Ottawa, this day of 


in the year of our Lord one thousand 





Sine yey sohbet nee ee cerned tbat malice arti ee 
- 


Rote ise eer eae 


Hi gol) stallageA alt to hat): MOREL iY Ve 
Jostait: [988 bas’ ebtoogé att Ye ragsou ody nn ail Yo pate 


" 








ee 


; 
‘ 
© 


AT TBR OF TH a COURT , 


: 







and held at es oF Tuesday, the fifth day of 











Bicper, in the.yeay of our Lord one thousand nine hundred 
and twenty-six, within and for the Second District of the 
State of Illinois: 

sent --The Hon. AUGUSTUS A. PARTLOW, Presiding msec. 

Hon. THOMAS M. JETT, Justice. 

Hon. NORMAN L. JONES, Justice. 


JUSTUS L. JOHNSON, Clerk. A 7 Bh 
of are Zi. ir 6. 
fH. J. WHEE. Sheri ft. 


a) 
nO) 





t 


i BE IT REMEMBERED, that afterwards, to-wit: On 
MAR 17 1927 


the opinion of the Court was filed in the 
slerk’s office of said Court, in the words and figures 


following, to-wit: 


4 e 


ea ; *< eo ee 4 " 
Fay ees iy ry ny X32 ae Ory rie ae Ap 
as res i r 2 ‘ 5 a3 ey 
Ln Ls a . ne n\ ' =H ' i sone “aaah ie 
. t en aie 
An ne 
mm ; re 
‘i { { a 
” 





Agenda 17 


APRIL TERM 1926. 


















a£ SLOAN, ADMINISTRATOR ; 
j ESTATE oF HOMER SLOAN, 


APPELLEE 

: APPEAL FROM THE CIRCUIT 
vs. COURT OF TROQUOTS COUNTY. 
AGO AND BASTERN ILLINOIS 


AY COMPANY, A CORPORATION, : 
APPELLANT. 


This suit wes prought in the Circuit Court of Iroquois 

by by Samuel J. Sloan, Administrator of the estate of Homer 

2, Sesacca, Appellee, against the Chicago and Wastern Tllinoigs 
ray Company, Appellant, to recover damages on account of the 

1 of said Homer Sloan, deceased, which was occasioned on the 
enth day of March, 1924, at a Tailway crossing in the Village 
£ d, in the seid county of Iroquois. 

It appears that Milford is a village of spout fifteen 
people. The main business street if Jones Street and runs 
‘ana west and is crossed by the trecks of appellant running 

ly due north and south. Three tracks of said company cross 
‘Street. The deceased was driving east on Jones Street a few 
es after midnight and in attempting to cross the tracks of the 
lant company on said street, the sutomobile in which he was 

g and @ moving train of ears of appellant, collided snd re- 

| in the death of the plaintiff's intestote. 

A jury trial was had, finding in favor of appellee in the. 
$2800. 00, on Which e judgment was rendered and this appeal 
ant followed. 

“he declaration consists of five counts. The first 

eral negligence; the second charges the violation of the 
ace of the Village of Wilford; the third that no bell 


YI shmesa 
OSL MATE 


Balt eed 


; WELIEITA - an 
TIVORIO FHT MOHT TAGITA (yh Rage = 
-YTHUCD IOUSORI TO TAUOD 


erlourdit nesegan ra 
(HOTTAMOTHOO A ,YHAIMOOD 
TH BLIELA 


edd no Benctassoo saw dotdw ,feasooed eo Le semi biea | 


egalliv edd ni gutaaoto yswiist « Ja easel sHoxsil 7 to vad 


anur bas teottg eonot ti testda eeentend atem ont " sofaoeg i 
an iow cap teat to edostd oft yd besaoto ai bre taow | 


 ggoro yusqmeo ‘bisa to edoart eoxd? .déwoa bus ddron enh y 


wet s teerte aenct ne tase gnivith asw npampicesec st rom 


aaw ect pare irk ettuomieen edt a Biee ao 
-et bas bebitIIoo ,tusllLeqqs to ateo To ntaxd gatvou 


geri? oT sadeurco evit ‘to onstam notte: 


edt to nottsloty edd Segzade booed ot 


Pup iates: 



























p whistle was rung or sounded as required by the statute; the 

arth that the crossing was in a populous part of the village and 

m the main street and that the train was driven across the crossing 
an unreasonably dangerous rate of speed; the fifth that the 

rain was speeding over the crossing at a highly dangerous end unsafe 
rate of speed, and that the crossing which was in the center of the 

r age and used both day and night by travellers and because of 
mildings, obstructions and other structures, the erossing was an 
musually dangerous one. 

To the declaration the appellant plesded the general issue. 


q 


number of errors are assigned by the appellant for a reversal of 





1 judgment. Two assigned errors are argued. The first is that 

@ plaintiff's intestate was not in the exercise of due care and 

7 ion at the time of and immediately prior to the collision that 
be ted in his death. The second is that the court erred in the 
nitting of certain testimony that was offered on the part of the 
ellee, namely, the speed ordinance of the Village of Milford. In 
w of the conclusion that we have reached, it will be unnecessary 
discuss any error or errors assigned other than the one relative 
‘the admitting of the speed ordinance. 

In the trial of the case the following sections of a 

tein ordinance of the Village of Milford was introduced over the 
ection of the a »pellant. The ordinance admitted reads as follows; 
| "RAILROADS 


"Sec. 1--SPEED LIMIT--PASSENGER TRAINS--It shall be 

unlawful for any reilroad company, railroad engineer, 

_ conductor, or other person to run or Operate any loco- 
motive, or train of passenger cars, upon or along any 

reilroad track, side track, or switch, within the corp- 

_ orate limits of the Village of Milford, at © greater 

_ Yate of speed than ten miles an hour. 


"Sec. 5--PENALTY--Any reilroad company or railroad 

corporation who shall, of themselves, or by their agents 

or employees, violate or fail to observe either of the fore- 

_ g0ing sections of this chapter, or any railroad engineer, 

_ ¢onductor, agent, or other employee of any such railroad 

_ e€Ompany, or corporation, who shall violate or fail to 

_ Observe either of the foregoing provisions of this chapter 
‘Shall be subject to a fine of not less than fen Dollars, 

_ mor more than Two Hundred Dollars, for esch offense." 


ae 
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pe eit otdtiw ,dotiwe to ,fosrt ebie ,tostd bsoxlisr 
totsets s vs. sbroL LIM: ‘Te: eggLLty: ond, tovatimals 
“lag “tort a8 noite wel asit beege to e 
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of £ieteoro etsfotvoTiete arepaticonen ay 
tstqedo aidt to anoletvotq gniogetot edd te ter 
sayatel hog. ‘not inedt eseL ton hocentt ss loted: 
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45 






















Pen 


tidy sae brakes ates Ag sith 43 4 if ed rf sab Eh 


—_ 





















s It is the contention of appellant that since the sdoption 
the Public Utilities Act, now known as the Commerce Act, cities 
na villages organized under the City and Village Act have no power 


regulate or enforce an ordinance regulating its speed of trains 
beach a municipality. 
a In City of Witt vs. Cleveland, Cincinnati, Chicago & 

;. Louis Railway Co., an opinion was filed by the Supreme Court on 
he 16th day of February, 1927 which determines the question raised b 


ah. 


(the admission of the ordinance complained of by the eppellant. 


% 
In its decision, the court among other things said: "APRIL 5, 1924 
s city of Witt, a municipal corporation brought suit against appel- 
nt in a justice court for violation of an ordinance of the city of 
p reeulating is, dena of passenger and freight trains running 
rough the city. The- defendant was found guilty in the justice 

“t and an appeal taken to the circuit court of Montgomery county. 
| Case wes there tried without a jury, and the defendant was 


guilty and judgment entered for $50. and costs.of suit, end 


a 


oe 


case is now before this court on appeal from that judgment. 
The ordinance under which this suit was instituted pro- 
ts any railroad company to run, or cause or permit to be run 


hin the limits off the city, any passenger train at a greater 


} of speed then ten miles per hour, or any freight train, or 


En 


omotive engine not attached to a passenger train, at a greater 

e of speed than five miles per hour, and provides a penalty for 
violation of the ordinance. Defendant objected to the admission 
the ordinance in evidence off the grounds that it is unreasonable 
its terns, contrary to the commerce provision of the constitution 
he United States, contrary to and in violetion of the constitution 


linois, and that since the enactment and passage of the Public 
ities Act of this State cities and villages are without power to 
dinances regulating the speed of interstate or intrastate trains. 
b's Objections were overruled and the ordinance was admitted 


ce. Defendant excepted, and has assigned error on the 





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While prbor to January 1, 1914, cities in this State 


i power to pass ordinances regulating the speed of trains while 


lic Utilities Commission, and by "An act concerning public 
utilities," approved June 29, 1921 in force July 1, 1921, (Laws of 
121, p» 702,) created the Commerce Commission and vested it with 
eneral supervision of ell public utilities, including the power, 
 generel or special orders, rules or regulations, or otherwise, 

a quire every public utility to maintain and operate its plant, 
ripment or other property in such manner as to promote and safe- 

ra the health and safety of its employees, passengers, customers 
the public, and to this end to require the perfommance of any 
which the health or safety of its employees, passengers, customers 
the public may demand, (Laws of 1921, sec. 57, p. 733.) By this 
; the General Assembly, in its discretion, withdrew from cities and 
lages the power theretofore exercised by them with ref¥erence to 

) speed and operation of railwey trains and such power is now vested 
the Commerce Commission, another agency of the government. Village 
Atwood ve. Cincinnatti, Indianapolis and Western Railroad Co., 316 

\ 425; Northern Trust Co. v. Chicago Reilways Co. 318 id. 402. 

? On April 5, 1924, when this suit was brought, the city of 

t had@ no power to enact or enforce the ordinance in question. 

adm ssion in evidence was therefore error." 

In view of the hotding in City of Witt against the 

eland, Cincinatti, Chicago and St. Louis Railway Co., we are of 
opinion that the court erred in the admitting of the ordinance 

he ‘said Village of Milford and the judgment of the Circuit Court 
eauois County will be reversed and the cause remanded. 


eS 


ei: = - 


= 


Reversed and Remanded. 


* 





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EB aS Cpa. D Cee re tanked . 









OF ILLINOIS, }.. 


ECOND DISTRICT I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 


ind for said: Second District of the State of Illinois, and the keeper of the Records and Seal thereof, 
ereby certify that the foregoing is a true copy af the 

a “ Cama SAN 

€ said Appellate Court in the above entitled cause, of record in my office. 


In Testimony Whereof, I hereunto set my hand and affix the seal of 


said yaw Court, at ye this day of 
n the year of our Lord one thousand 


nine hundred and 


ag | 






f the Appellate Court 






SHOE 
inf ate) BE ur he onetd a he pti 


a 


2 vis Ay.§ Pant, 


ate ans Seiad Lins ¥ 


ET ne Peaticy oF 2 va 


watt: t98 onnoited i lon ri fh 


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Bi pina BN Mg 


BR STI EOI REI A aaa AA Ee, 
di ana) 5 naa it 





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AT A TERM OF THE 







ELLATE COURT, 





mun and held at Ot awa, on Tuesda 
i 


Oetober, in e ye 






, 
ietheofieth day. of 
} 


of our Lord © thousand nine hundred 


and twenty-six, witha and Xen they Second District of the 
State of t1Mnol 






ad 
Hons“ THOMAS M. JETT, Justice. 
Hon. NORMAN L. JONES, Justice. 


CHUSHAUSi miley. JOHNSON, Clerk. 
2441 
WGA dig MPEIIMNS -Saveh ert icc 


A me -| 
e A ® O ) 6 





BE IT REMEMBERED, that afterwards, to-wit: On 
MAR 17 1997 the opinion of the Court was filed in the 


Slerk’s office of said Court, in the words and figures 


following, to-wit: 


fe "$) 


wig 


hanry 
mika ie eh 
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‘PEOPLE OF TER state 
ILLINOIS, 


Defendant in Error 


, 


Error to the County 
vs. 


4 Court of Lake County. 
NEY PETLICK and JANE DOE 
jerwise known as MRS. 


NEY PETLICK, 


Plaintiff in Error. 


The states attorney of Lake County filed an information 

i ‘the County Court of said county, charging Barney Petlick and Jane 
| Biitbernioe known as Mrs. Barney Petlick, with a violation of the 
mois Prohibition Act. The information cénsists of two counts. 
first charges the unlawful possession and the second the unlawful 
; of intoxicating liquor. A jury trial was had ana Barney Petlick 
“found not guilty. As to Mrs. Petlick the jury returned the 

ug verdict: "We the jury find the defendant Mrs. Barney Pet- 

7 guilty in manner and form as charged in the information and re- 


en 4 


that the court show extreme leniency in passing sentence." 
Motions for a new trial and in arrest of dudmniiat were 

and denied. Before judgment was rendered on the verdict the 

os attorney entered a nolle of the second count. The court 

iced Mrs. Barney Fetlick, plaintiff in error, to sixty days in 


Sounty jail and it is from this judgment that the plaintiff in 
P prosecutes this writ of error. 


| 


The testimony on the part of the prosecution is to the 


t that two officers went with a search warrent to search the pre- 


| of pleintiff in error and her husband. The evidence discloses 


28 they approached the premises and entered the yard the plsintiff 


ro: 


ran into a corn field and was pursued by the officers and in 


OSssession was found a bottle that coutained intoxicating liquor. 
ey 


ence further shows that the officers found a bottle of moon~ 


ae 


Whickey in the corn field into which plaintiff in error ran; 


€ home of plaintiff in error 9 glass was found which smelled : 


¢ rn ee os : ~ 4 
VASE SS ad i a nT 








‘Ytarod edd of Trott 
-gsnwod saat to srs00 


ay 
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satagoo ows to atetenéo motismrotat edt wtoa nottiabsort ate 


ei 


. eat bhentutet yrot edt dolified .arW of aA outhin pee 
_ ated yeorrs@ .atM tusiseteb edt Batt yxs~ edt ew" torte gate 


 —et bas noitsmrotat edt nt begtsdo a8 mito bis Tents ak hia 


jain edt .tmyoo buooea edt to eifonr 8 Seteiae : 


-otg edt dotsee o¢ tnatrtew dorsse 3 ad iw taew areoitte + alae 


eeecloath eonsbive edf .baadesd ted bas roTTS af iis tel 





Ze 























ngly of moonshine whiskey; that several men were sitting under 


ree on the premises who had been drinking from a pitcher which 


d like beer and several glasses and bottles were there with foam 


them; that in the opinion of the witness the pitcher hed contained 


r or home brew. 


It is the contention of plaintiff in error that the bottle 
prosecution claimed they found in her possession after they had 


ed her into the corn fiela Was medicine She had been tal king for 


ness; that the bottle contained a substance given to her by her 


:. brought it to the home of plaintiff in error and that she was 


g it as medicine and for no other puppose. She denied knowing 


f 
ALLE 


f about the moonshine liquor the officer claimed to have found 


he field. Plaintiff in error insists the men sitting under the 


‘drinking from a pitcher were strangers; that they hed merely stopped 


‘the shade tree in front of the house and borrowed a pitcher and 


BLaSSese 


A number of reasons are assigned for a reversal of the 
ent but in view of the conclusion we have reached it will be 


lary to discuss but one. On the trial of the ease the court in- 


the jury on the part of the People as follows: "The court 


cts the jury in the language of the statute that after the going 





ect of this Act, the possession of liquors by any person not 
y permitted under this Act to possess liquor shall be prima facie 
se that such liquor is kept for the purpose of being sold, 


ed, exchanged, given away, furnished, or otherwise disposed of in 


on of the provisions of this Act. It shall not be unlawful to 


. rivat 
Bere in one's aiWelling only, provided such liquors were law-~ 


equired and are for use only for the personal consumption of the 


thereot and his family residing in such dwelling and of his bona 


sats When entertained by him therein; a burden of proof shall be 


? possessor in any action concerning the same to prove that such 


was lawfully acquired, possessed and used." It-is the contention 


in error that it wes error for the court to give this 





























doidw tedediq es mott gnidatth -meed bad oul baste tesa eat a 
msot dtiw stedd etew GES KOE bas. e noaae ty tha tiated pues 


Pas | | ES BERG satexd om 
 eittod edd tedd voure ot tidateta 6, sottuagltlh ott Bt 

bet vert setts molensgacq tod ot bao’. yoat bemtete ao tas 

tot gotuet seed bad ede ontoiben agw blelt mroo: edd odmt- ted 

_ wed yd ted et mevixs ueuahueee 8 bentatneo elttod: edt tedd , 

acew eda add bas torre nt Hittntete to emoe out OF aE” : 

: “gelwenx beineh ede senoqaiy ‘tedto On tot ‘bua’ entotherm ea 

Buwok oved ot bonis ro Teo Tho oat tompte’ dct ddicom Sas Ssbeae , 

but rebnur pattsta nem edd avatent toxre or “str tobe: gy 

boqgora “lorem ban ved isdt iaregnerte “exow yertosry b 8 mex ‘Sri 

“bas. wreddodia | 5 Meloied bas sawed ond te short int “poxt’ 


ot ale = oe a 
0 Re Me ip: 2 Pa Me tine » Vie A a Hie 
rela & PEARL gh Bete Dee ai. ara ay bi 





antes ant xotte fartd ‘eiatate ott Yo ‘egeuanet ipso ante | 
ton ‘eared une ¢d arompit te nOtweeaaog edt “Fou you whe Se 
efoat onbeg ‘od [Lacie ‘roupit aneaneg ot tod did? tobi’ be 
, ay aa sited’ +o eaoqaniry “pitt 20% taem | ai ‘opt oi 
nt to boaoqalib eaiwredto ‘to boda tnrst “Xsue ) rovig “Sb 3 . 
ot fytwa ten ‘ed ton Efede #1 - ek sind Yo “a anctelvery ‘edt to 
‘wal etow eromptt dove: bebivotq. “wine “gn BPSwip done ‘nd Speelipte 
odd to no ttgnvance Iencetey ‘eit tot Ylno' oar “xot ers + pas 1 port 
: “axod eid to baw gaittow’ ‘douns ‘at ‘galbiaer ies ain one C 
od iisde tors Xo nestund 8 “utetedt tit ‘Gd bea ite: tite dtd Sel 
“nd Housel 
noidaetnoo edt at- #1 : "bea ‘bee ‘boeasesog , bextip BE v1 


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Bhs eld “ovis ot ‘peoak <i is tot xoxre - BBW tt fade eee : 
Sec cane Motiw. hoo} ee weet a 4G ere ee Kiet. 5 i a 


BE 


fore ‘fautd overd “od emee ae satin ied, ‘poftos 





Se 
























ruction. It will be observed that the instruction is in the 

age of section 40 of the Prohibition Act and it is claimed by 
fendant in error that a similar instruction Was approved in People vs 
4 $05 Ill. 593. In that case an instruction quite similar to this 
Bsas under consideration in connection with Section 40 of the Pro- 
bition Act, and it Was there held that the provisions of Seetion 40 

? constitutional, and were within the power of the legislature to 

. but it was not held that the siving of an instruction of this kind 
8 proper under all circumstances. In the later case of People vs. 

te, $16 Ill. 52, this question was again before the court. The 
struction in that case was, that the possession of intozicating liquor 
ins one is prima facie evidence that such person keeps and possesses 
a liquor for the purpose of bartering end selling the same. The 


guage of these instructions is not identicsl. ‘The instruction now 


op 
‘ 


ore us is that the possession of liquors by any person not legally 
mitted under the law to possess liquor shell be prima facie evidenee, 
e while the instruction in the Tate case related to any person 
Ssing intoxicating liquor, whether lawfully or otherwise. For 

8 “reason it might be argued thet the Tate case is not authority 

| holding that the instruction herein given is improper, but on 

59 of that spisien the court held that when a defendant goes to 

1 and introduces evidence disputing the facts cl narged against him, 

is then a question whether the evidence establishes a case against 
beyona & reasonable doubt, and where there is such a contest in the 
ence, there should be no instructions given as to what constitutes 
ime facie case. There was a contest in the case now before us as 

he possession of intoxicating liquor in violation of the law. 

4 f in error went to trial upon that question, therefore there 

i have been no instruction given in the lenguage of Section sal 

@ Prohibition Act. 

q In People vs. Elmer Mizer and others, No. 7538, filed in 
“Court on May 29th, 1926, an instruction in the language of Section 


| Prohibition Act was given and the judgment of the court was. 


aldk o¢ Tellmta ettep noltouxtent ‘he easd: , get foe kine Sn LET a 





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baits git te s¢tverstent ae to anivie edd tedtd biSsd°son' eaw gb te 
tav afqeed fo ease tetel oft al seeenstemotls [ie reba regen 
eff .dustoo edd Sroted Kisses ‘eaw notteenp etat ,8¢ ‘perre are 


| rorpif gatvasimetni te fo fausaa og ett tadd ,4sW eaao°tsdd af no ites 


Beaeseseoq Hus ages soatey dogg isdt éonebiva: etost sabeq af” 0% 






es?  omeq edt galtiise buna gnitetred to ‘sasqisg edt fot 0. f . 
went nottouttant edt .feotinebt fon at anoltoutéant eaedt Yo ss i 
“bread ten neere¢ Yas Yd arompki te “me tedseaod odd’ tect et: aus 
,eenmebive stoat emixg ed [fade seopil seserog of wal edt nobaw ete. 
nested (ae ef betalet eany ete off at notvddrdenk’ ‘odd oftae | 

Tot (,datwradio xe YListwal ‘tedtedw ,reaptt: paitoolxodat satan 
gd ttodias somet eats ete? édt dads beugta od taetm 2 

no tud: ;toqorqut al nevig ntored noltourdant edt tedt sic. 

ad ancy tasblien <b é aouw tute GIda Perce cals Settle’ ‘tant Ho "Ce 
wid dantege begrads etoat si? gaiduqeth eonesive deowboxtat Bam 
@aciaga ease s wsralidatas senehive ‘edd rodtedw aottadsp ‘s ‘went 















edt of dastnos a dove ei oredt ovedw One jtdeeb sIdancese® a Bm « 
aovudivexce ¢adw ct as mevig snottomrtant ‘on of pivode erent 
aa ey Sreted won, vaso ont mF teotnoo # uaw bonnie wouns” bape: 

- wal odd to nottefoty at xocptt pattaotxotat we at | 
pred? svotexeds coideesp tedd noqr Latyd of’ ‘tu cinta fa 

1 Ob moktoeg to egsrenel edd nt nevis nottouetant ‘on need ev: 

we EH EE pee ston notard 
at Heli 88a som ,exrodto bie A sav kocanedies 


4. 









reed because of the rule announced in the Tate Case. 


In People vs. Levin, No. 7607 decided by this court on 


ra, 1926, an instruction was given on the part of the People in 


guage of Section 40 of the Prohibition Act. The judgment in 


536 was reversed on account of the holding in the Tate case. 


It was error, therefore, for the Court to give instruction 


es this cause that is in the language of Section 40 of the 


tbition Act. For this reason the judgment of the County Court of 


oounty is reversed and the cause remanded. 


E Reversed and Remanded. 


4 2050 atin 

ae ten08 ward 

os iain woe wes i 
Ey densi out stoi a ae tort 
os erento mies 


res eter 9 <5 

waar ok eres wd*R48 : 
RR eeioo 08 OTB duet Salted bh” Bae” bbaxever ad 
son git nates ing Binamolt® iis" Beaten me p fade’ sae eae nae ad 


Sid SAGan. CES se aE 
oe eae sekieryad: Reo venta? ae fen 
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(Re cee! tial 


pon a A at ae 


ge: EAE RSENS. 


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oid nae onbare tan ieee Ket ee cian et oe Barca 
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be me tretoiy aut ay oats 






















TATE OF ILLINOIS, } 
BOND DISTRICT I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 


aud tor said Second District of the State of Ilinois, and the keeper of the Records and Seal thereof, 
hereby certify that the foregoing is a true copy of the 


le said Appellate Court in the above ey cause, of record in my office. 
ff In Testimony Whereof, I hereunto set my hand and affix the seal of 
said Bys urt, at as, ay 7 ae of 


in the year of our Lord one thousand 
¢-—— CA Cz 
piel, 
Cae ee, 


yk of the Appellate Court 





Co 
nine hundred and i) E 





1ovaT 
Ba WATS 


mb Put ane 


$: 





if , } q 
AT A TERM aa at COURT, 
1 | rE 


‘ 
% & j 2 
SE | 7 


i 


On Tuesday, ithe ‘fifth day of 
‘ ij 
of ou Lord a thous 














Begun and held at Ottaw 






October, in the yea 


j 


f 


and twenty-six, within a d for the econd District of the 


a 


State of Illinois: i ‘. 
sent--The Hon. AUGUS A. PARTLOW, Presiding Justice. 


Hon. THOMAS M. JETT, Justice. 
Hon. NORMAN L. JONES, ee 


tay Wa (aah Gea mea 
JUSTUS L. JOHNSON, Clerk. fe “2 OF A’ G 


—m— @L2 @ % Ly 


E. J. WELTER, Sheriff. 


BE IT REMEMBERED, that afterwards, to-wit: On 
MAR 171927 the opinion of the Court was filed in the 


Clerk’s office of said Court, in the words and figures 


following, to-wit: 






















28. 


Ps LYMAN, Administrator 
the Estate of ROSB 
MAN, Deceased, 


Appellee, 
Appeal from the County 


Court of Peoria County. 
PROPOLITAN LIFE INSURANCE 


) 

) 

) 

) 

) 

) 

Vs. ) 
IPANY, Incorporated, 
) 


Appellant. 


This is an appeal from a judgment rendered upon the 

rdict of a jury in the suit of Ra Slyman, administrator of the 

Ate of Rose Slyman, deceased, appellee, against Metropolitan Life 
mrance Company, incorporated, appellant, for $467.02, upon a 

licy of insurance issued by appellant upon the life of Rose Slyman. 
The declaration consists of one special.count based upon 
Ppolicy issued October 15th, 1923 by appellant. To the declaration 
sllent pleaded the general issue, plea of tender by which $4.50, 
tim paid upon said policy together with accrued costs was tendered 
) court, and a special plea alleging incorrect, false and fraudulent 
ners made by deceased to questions propounded to her as a basis for 
issuance of the policy. It is alleged in said lest special plea 
Sioned that appellent relied upon the information given by the 

jasea in answer to the questions propounded and that it had no 

isage until after the death of the deceased that the information 

n Was incorrect, felse and fraudulent. To the special plea alleg- 
that the questions set forth as having been incorrectly, falsely 
ft udulently answered appellee replied that the answers made were 
the deceased, Rose Slyman, but that the answers were supplied 


ingly on her pert and without her consent, authority or direction; 


ET 
ca 


She signed her name to the application without explanation as to 
ni ers given and denies that she gave untruthful answers. Sub- 
t1 by leave of the court additionel special pleas were filed by 


lar at setting forth various conditions of the policy which are ag 















ytasred edt mort [seqqé 






“tdns0d sitoe{ to dxw0d | " 
SOMARUGUT ware es 
ashi eich 





edt cogs berefaer toemgbyl s mort Ieeqqs we ak ohne °° 
edit to rotarteainimbs ,osmyle@ bo to tive edt of cable ia ‘ 
etit astifoqorsel tantegs ,eelfeqqs ,boaseoeh (nam [8 encod. te 





2 mogy ,80.%08$ rot ,¢molfeqqe ,hetstoqroomt ,ymeqmed ex 


,memyle sao to stil edd moqw tuslleqqs yd beveat eonstwant to 


mottsrsioebh. odd of stualleqqr yd 88@L ,dv@L tedoted bewaat yot 








,0G.52 dotde yd reboot to eaefq ,evaat Isremeg edt bobselq tnalk 


- gelq fstoega tasl bise mit boegelis at tI seokiog edt to sons 





edt yd nevis aottsarrotat edt ooqs betfer tusileqqs tadt | 





om bad ¢t tad¢ bos bobnueqotq emoltaemp edt of xewane ot 


a. 











motssmrotat edt ¢adt beassoeb edt to diseb edt totts tte 





| geile selfq Istoeqs edt of .tnelubystt bas eelst ,toerroont 
- -YLealst \yidoettoont meed gnived as dézot tea anckivesp edt # 
- etew ebam etowans edt tedt betiqer eelleqqa betewans ylinels 


_ atten etew ervewens edd tedt tod ,asmyle ont i 


-du@ .etowans Intddwxdaw eveg eda tadd sehaia hee sorta é 


86 3ts tn bie yolloq edt to anottibmoo auotzay ire 


Re 





















lows: "If, (1) the Insured is not slive or is not in sound health 
he date hereof; or if (2) before the date hereof, the Insured has 
m refected for insurance by this or by any other company, order or 


ssociation, or has, within two years before the date thereof, been 


ended by & physician for any serious disease, or complaint, or 


ore said date, has had any pulmonery disease, or chronic bronchitis 


’ 


cancer, or disease of the heart, liver or kidneys, unless such re- 
ion, medicel attention or previous disease is specifically inserted 
Pine “space for Endorsements," on page 4 in a waiver signed by the 
retary; ******ohen, in any such case, the Company ,may declare 


i 


8 policy void and the liability of the company in the case of any 

h declaration or ‘in the case of any claim under this poliey, shall 
Limitea to the return of premiums paid on the policy, except in the 
sof fraud, in which case all premiums will be forfeited to the 

: ve" 

The nitions) special pleas then alleged that Rose Slyman on 
date of the issuance and delivery of said policy was not in sound 

th but thet she was suffering from, to-wit; disease§ of the lungs, 
it: tuberculosis, and for a considerable time prior thereto had 

| suffering from and was affected by, to-wit: diseases of the lungs, 
it: tuberculosis, of which fact the defendant was not sdvised and 

Y kmowledge. The additionsl special pleés also set up the fact 
‘the deceased hed been within two years prior to the date of the 
ance of the policy treated by various physiciens and surgeons and 
mndergone a@ surgical operation which fact was not set forth in the 
for endorsements and was unlknown to appellant. 

| Appellee replied to the special pless denying the allegations 
set forth and denying misrepresentations. : 
The evidence giscloses that Rose Slyman was a Syrien; thet 

Bi unskilled in reading and writing the Bnglish language; that she 
not intelligently write her name and was uneducsted. The insurance 


Led for by Rose Slyman on October &, 1923, and the policy 


upon was issued to her on October 15th, 1923. All premiums 


es a 


xo ,tntsfqmon 10 ,easeatdS avotrea ‘eH cet sieianieoiess ned 


t 


‘potreant viisotttoeqe at eesesth avotverty to noitnetia Isotbem _ <! < 
edt yd.bengie.tetiew.a-nt dD. egsq m0.", " gtaemeatohak. cot; songs” 
— etefoeb.ysm, “aagmed odt,,2ac0 deme yuo at. eelernts "oh aca 
o¥Ms ke -egso, edt af: Yasqnoo -ed? to. ak {Roane edd. bas- bhov--¥e ary 


o sant eeos. tats. -Sea0lis tigi aneil a Eednecnenenetnite itt ae 
ba 1 to. ytevifeb bas epasuaet acid to et 
| ies edt. to. geasea tb. stiw-od ,motl guitetivse aay. ede. ants ted 
‘ bed.oteredt yoitg emit, eldstoibiesoa,s.10t bas. ssteoLsoredut, 
aguul edd to. aeascadh, :tiw-od. yd. Sesoetts asw bas.moert gat mm 
bas, S5eaivis ton asw,)tasbeotes edt, tost.dotdw,to- sateolvoxec 

- goat edt ax tea ogie eselg fatooge {saqliibbs edt... 9% st 

edd Lev eteh.odt. od; t9itq, axeey owt, midtiw need. bod eee 
bre. enoostua fas. esatoteydy, asotray,<¢d:, botaerds yous 7 

odd at dixot, dee dom: aey, toast dotdy, Baiada: on ) 


¢ 8 _yeileg, edt), bas * aael, cae pneniten 
 emyimerq (fA «SSL ,dtat redoso0 ne su cr: 





7 
oe iia 
hes 






















ie fully paid in accordance with the terms of the policy. Rose 
a died February 20th, 1924 from tubercular meningitis. The 

: Sary proofs were made on forms submitted by appellent, duly 
cepted by it and payment refused. ‘The application and policy of 
ns: ance constitute the contract of insurence between the parties. 
It is the contention of appellant that in the fall of 1922, 
e decessea had tubercular peritonitis and was treated from December 
22 until Februery 1923 by Dr. Knapp. It is further contended that 
@ was operated upon by Dr. Hanne, on December 20th, 1922; that the 
Ration consisted of the opening of the abdomen and removal of a 

ge amount of fluid and that tuberculosis of the bowels was found 

| that it was necessary to provide drainage and she remained in the 
pital until Jenuery 1923. It is further contended by the appellant 
- the evidence shows that from February 1923 for a period of four or 


; months the deceased was under the care of Dr. Cooper, who succeeded 


mépp in treating her. It is also insisted thet Rose Slyman was 

a doctors care in February 1924 for a period of thirteen days at 

ena of which time she died from tubercular meningitis. Appellant 

upon the fact that the application signed by Rose Slyman dis- 

that she feiled to advise the appellant of the fact that she was 

d upon by Dr. Hanns, or was treated by Dr. Cooper, and that it 
foils to disclose the fact that she was in the hospital under the 

? Dr. Cooper for four or five months during the year 1923. It 

ids that the policy was issued within three months of the time the 

ed had been ucder the care of Dr. Cooper and without giving the 

mt information as to such treatment. 

fhe record discloses that the application was taken by an 

(of the appellant company by the name of Berry. It is feir to 

e from what is disclosed by the reeord that the answers to the 

ions were written by the agent Berry. After questioning the 


eant, as shown in part "B" of the application Rose Slyman in res- 


9 & question answered that she had had an "operation eight months 








ps p@R0Ms eetheg odd fo gored odd ae bw sonvizoves wt Ategy¢Lf oe 

(AT. «Gitigainen telyoredyt moxk ACCEL | dAt0S .yusweded beab F 

Nish ,tasliegqs yd Settindue amzet so eben, exew 2toorg .Vte8 

So yotlog bas nottsoiiqqs eft ,..heavter ,daemgeq. ohne att ada 

-aeitreg edt meouted eonstsnal to dogtineo edt 16 ) nme 
,¢@80L. to ffet edt ab tadi dtasileqgs to. 








bare ta 68 ab thin: sh 

tedmecel moult betgert aew.tng eitvinot ized - telvotedst bad beavers 

_ healt bebsodaea todd cat, ek AE v aca o1@ 4d S3eL- vasssdel Litag 

edt tedt.;SS@l ,dt0S redmooed ro onask : EGE, omnes het anage eg 

e to Levemey has cemebde , eods..ko guimego. Rat 3 Sa 

baet aan, pfewod . edt to etaoivetedsd tedd bas {biatt tot 2 

edd at beqiswet oda fox eganiox obtverg of yrsaccooen eam dt dad 

talloqqye edt yd foknetnoo seddtwt eb tL. ~SSOL aeraanal of kine, shed 

To 180k to Fotzeq a. tot E8@h crasrdet mort tadt awoda sonebive eds 

Bebocoowe od -zeqoe) .%@ to etso sid tebav asw heaseoob edt ld 

, Raw seule ca0f tadt boteiank oalg ef 41. stedantteoss ak aan 

te .ayed seqizids 20 hokteg 6.16% ASG gsaveder (Gt etse erotech 

dualfoqgs sabtiguinen teluotedut moxt heiS ada emthuletde to ba 

~ath aamyl2 egos yd beatae mottaciiqgs ed tadd fost edt moge @ 

aw ode tald dost odt to daslfoqqs edt .caivhs ot belieh ede dads im 

+h stadt bas rodeo) 1M, edchetaewt 2am to aaNet ah ond ae 

od? .tabos fettqaed edd, ab Aen ode teddy joe} edd qmelog be aed Ltot 
TL. SSCL) teey odd gaitch adéoom evi 20 190% Tk TOgeOd »«Mt ; ; 

edd emit edd to adtaom eatdd midd ty boveet.acw, yotiog edt si tots 

edt goleig tecdtiw Sao toque) xl To atae ed) reehax mead bed B “* 

(fio tocntaett doug et ac mobtamxotab : 

ue id neisd sew mottsoliqgs dt todd eegofoath breoey oak 

ot tat at tI ‘CITEE to oman edt ud nuaqmoo tusllogae: 

edt oF axowans edt dait Saeqet eft yd beaotoe tb at tectw am 

edt guimotégoup totta . .tted toga edt qd modsiqe tem, 
-omeot at nemiLe cao wottaotlaas hapesbebslaséainashniit: 

asid mom tig.te. Aobteteqo" me bed bet ede tadd ; 


ifs: heed re xedoteo 2G eel BF Beer 
































ii ee 


‘Vey i ae oes) 

























In answer to another question she replied, "I have not been under 


e care of any physician within three years except", Dr. Knapp, Peoria, 


linois, Lac Cervis 1-23." 


In answer to a further question: "I have never been under 


ont in any dispensary, hospital or asylum, nor been an inmate 


any almshouse except 1 Month, 1-23 


Rose Slymen, applicant, wes also examined personally by J. J. 


alson, examining physician for the appellant company, and reported 
er health and applicstion for insurance as follows: "This is to 
rtity that upon the date last written I personally examined 


dress given in part "A! 


at the 
hereof, the life proposed for insuranee and 


i made the signature at the end of part 'C' and am of the opinion 


t said life is in good hesith ana thet said life's constitution is 
3 I find the pecuniary circumstances Satisfactory and the insur- 
» applied for in 200d faith with the purpose of being continued. 


lerefore recommend that this application be apeepted. 
son.” 


Signed J. J. 


In view of the fact that the applicent was e foreigner un- 


ted, either in her own language or in the English language 


- Teasons above mentioned, namely: 


and 


(1) apprising the company of 
eration eight mouths prece@ing the application for insurance; (2) 


ag the company of her treatment by Dr. Knepp; (3) confinement 


hospital in January 1923 for one month and (4) exeminstion ana 


rt by the compeny's examining physician, a reasonable conclusion 


lat the deceased truthfully, honestly and in good faith without 


attempt to misrepresent or defraud, answered the questions on the 


leetion to the best of her ability and understending. ‘The snswerg 


1 and the examination by the physician were of such nature to cause 
mpeny to reject the risk if it did not think well of the 


v certainly knew 


applicant 
if the application was perused that ghe had had a 


illness and thst having gone through an operation it must have 


@ serious nature. The company having all of this information 


2 it and then issuing the policy thereon should it now be heard to 
es ge 




























rebos ceod tom -eved I% ~, Bet tqow ede noftgesp redtenn of towers wl. 
.sitoel ,qdant .xd oj teeoxs: erse8y eo tit ofdtiw detoteyite yaw Yo 
| OM 8Qel etvre6 wed 
tobne necd yover ered I” qmottdaerp “elttut soot ‘cowens are o 
otount: ig meed AOE © PROPOR 2 Leéehqeeat - mersanegaey spas: ob 
7 eSak | kdl 2 eee: ‘oamesdamtn . 
ot =G yd: YLiandeted feciausxe calle sew ,duBot Laya’s “msg @ wack am 
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: en @Poeid?". rewollet se sonercant tot notdiest que: bee ema 
edt da bertmaxs ylfLaroarsy I nettiww teek sted ond aegir Sands 
bas -esnetvank tot beaoqorg STAC silt jYoored’ "A> freq nf mevEg , 
aiolatdo edd ke ma Sie 'O* d¢esg to Bre eds te onstangta ede oF 
‘et noktetivanos eteREl base dads bes Atieed boog es ober 5. 
ge ot? BoEY 
, -Bovnisnoo anfed to esouniy: ‘end: a Fie at ist pag 20 co ae ‘s 
-% wl DORRID “Betasegs ed xotteotfeqs iit +eit¢' Srommover © 
WO L: ES IES ch tee es ‘ 

ie temgtorct «2 culecanieibcen iat ‘Jedt Fort eit ko wety HT 
$nsS sgzuugas! dailan® ent of xe egepgasl: nwo weil at wedsie 
to ynsqaoy edd gnieitqge ({) sylemen sbenotsmem avode encase 
(3) yeonerpant xot noitaohiqge edit enkbeoexg entiom tigate nete 
otnemerttaos (8) 4qqgahe Lit yd tnemaert ved: te eBGMOD ot y 
? us xoitsrimexe {d) bre Stnom eno? tot CReL graeme rae bf 





‘netarionen s{dantaser es ,netoLeydd grinioasxe at yttsqme a! el . 
s$uedtiw dtiek boom at Bae Yitasnod: MiintTt ‘vonaeved ‘eat. 
eit no ancitesrp edt fetewass ~byevbeb: To dnbaerqeta te or ‘ 
atowans edt sanibnetetebns fos yhittis’ rest 20: teed: wilt ot ai0t 


eauso O¢ exrhiten fovea to ere¥ natotaysg eit: xed. no tenting et 


5e 





















lain? 

F Rose Gyman died of an entirely different dise:se than that 
which she was treated previously, hav¢éing died from tuberevlar 

' tis. The disease she had in December 1922 was tubercular peri- 
iis. The testimony shows that tubercular peritonitis is e differ- 
Raease from tubercular meningitis except as to csuse. When she 
in 1924 it was not from tubercular peritonitis eccording to the 
imony of Dr. Knepp. It would appear therefore that the deceased 
Rexpletely recovered from the previous illness and thet her death 
saused by an entirely different disease and that the deceased was 
ound health at the time of her applicetion for insurance. 

. An insurer may by its conduct waive e condition of a policy of 
‘insurence limiting its liability to a return of the premium received 
. date of the policy the insured was not in good health. 

: Where an insurance company issues a policy on the life of a 

a and accepts the premium therefor after she had informed the 

ny's examining physician that four months previously she had sub- 
Md to an operetion and two months later it consented to and issued 
ond policy on her life without any reference in her application ag 
F condition of health, the insurer waived the condition of the | 

7 thet its liability was limited to the return of the premiums re- 
it the insured wes not in good health at the date of the policy 
‘to prevent it asserting the defense to an ection on the second 

y that the insured died of cancer of the uterus. Eagleton vs. 

at al Life Insurance Co.j 193 Ill. App. 306. 

| A warranty or representation as to the condition of health goes 
) the extent of an honest end true statement of applicents belief/ 
Bite: Life Insurance Co., vs. Moravic, 116 Ill. App. 271. 

The policy and application were prepared by the appellant 

y on their legal form for use for such insurance as applied for 

> Slyman and many questions are lengthy and are susceptible to 


1d various answers, and for one unskilled the application was 


iS 


us and should be construed strictly ageinst the insurer in favor 





“ aeisoredst | mort both 5 gathvast ee bes roe 


Gas q ORES 
iteg <8 sLuotedst aoe seer redmesom ae bed ede oageath | 


Gee Becta pease $ ¢ 2 $s ak pe Po anes + cree 
—ra2k lh 8 a alvtnod ineq selvoredst tadd —- 2 wnomtsaed 
a y mig" Cue i ioe cE S a i ie 


7 nedW “eee 2 of as dqoore eltigainen 


bea jak . othe rg 


Seged ot BAERTOROR ee ckcnchesaaet, 5 reluoredsd | ‘moxt ‘ton anu 
Mer nope FP Popa r pet B 


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oem boasooes exit tad oma eascath Snozoth 20 vlertine as 


pee Fangs vas: SoHE BS 


voonetant zot notgsotigas rod to. emit oft te se 


see ere ae vir ocee ny” Ye 8 Peon as 


to yottoa 8 to mcb¢ Ebaeo 2 nog toubnoo ati yd yen sergeant 


* 


* 


hovtooet awinerg ont to ausder | 8 od vtattgeee ati gatdimi 
rane esa reel TERS Se GS f a3 ow a2 ei 


+d? Laod Boog at shout aaw ‘berwact edt ‘<ekee edt 
WR Se wagtey oe RENF OSS OR 
a te “etil ont a0 yokfon 8 ) eewent yasqmoo eonstyant As 
A NS Pre (eign hFEGY Race ae Mee 


“edt poero? nt bo. ote xerto “xotor0ds mss bevoEG edd + adaee 


i RAP SESBS 4 Re? Hae Rey eS 


sa bat ode yievetrerq adtnom poi “gaiid mato keyg galntasxe, 


tee sere b recehe: SEES Fee teey ye ae Le ca 


8 tuodd bw pil boe seit i10 
ic EP chat H i py ape ee paar tam Ft ae ait we yh se 
“ott to “noitinnos: outs beviaw zoxwant od dit Led to mobi 
“gremens hee fei eda! - Cree eee 
-9t enntmetg edt te xvtox odd ot bed imht esw qtiitdsti att 
ys f ate Sobtocex”, water tage? S 


wetlog oilt bald oteb ods. $8 43 Teo boos mk ton raed betwen. 


peveat bas o¢ picasa di tedsl addon ows bas moitersgo 28° 


be Se 
a 7) e 7 bh 5a ay vi 
x e, i$ Bey i we 


“ Breoes ont a0 nots0s ns ot ‘eareted ent guttzeaas ti daneve 
mee Am enc Set GOO ererwel wie 


vs Hee et 4 
ay ‘note. em sevreda edt ‘to TeoRse to beib: Sergent odd 
eek met ah pe ee eee eye 


a 4808 ee SLIT 8eL y+ed. sorstsa 


+ aes. AiVabe Apa es 2 4 Bete Pe r “4 
Ss apie as i? AR eter Beak io tar MO ck +> oe ees Sar sha aS: ses ee 


2908 ae laod ae noid tbnoo out od as notisineastges to. 


Po, se 
teenie te a 


\renred etnsotiqaa to ‘guomedste omst bas vaonox 52 x0 


CR aS Sea 


iV ag IT ate “otyst0l ee 
J ienbotogsh (eke wah wet eeneae 


“$uafequs old ue bersgstg ezow notssotiqas bd yoltog é 
fi PES Peete OR See ow ae 


“aot bot tags as somutant sone 0% eas rok stot Isge 
Be: pipe his ee sels ER ape 


“ot otdtéaeoase ors bits yuligael ets anottaemp ig ae! 
rick SEMOR Dt Woe Lhe eds ened: Su Pram Saag « 
‘ase nottsotigas ould “boLiinens ene 0% bug ,@te 
AD) fate ne BEE BY Ye See A } Se eae: ee i 
‘t0v8 ne roman utd Aentens elteiste. cee 
; f nopLedd ok fon* one. 





Ge 























a Smith vs. Bankers Life Ass'n. 123 Ill. App. 392. 

In the sbsenee of proof by the company of fraud or inten- 

bel misstatement on the part of the insured the policy was not rend- 
WP ¥evalia merely becsuse the answers proved to be false. Wo repre- 
tation is false in law unless it is made with actual knowledge of 
‘felsity or under such circumstances that the law must necessarily 
ate such knowledge to the party at the time when he makes it. 

pier vs. N. Y. Life Insurance Co., 221 Ill. App. 420. 

It is the contention of appellee that when Rose Slyman 

yered the questions propounded to her by the agent Berry end eppel- 
t's exemining physician J. J. Toalson thet by so answering, even though 


—" 


@nswers sre not as definite as they might be, they were so suffi- 
ntly and honestly answered eas to apprise and inform the sppellant 
ne @id have a serious disease or illness necessitating the 

ation eight months preceeding the application for insurance. This 
enough to put the appellant company on inquiry to ascertein further 
fature of and result of the operation for the purpose of refecting 
risk if they so desired. Agein when she stated that she hed not 

| under the care of any physician for three years except Dr. Knapp 
eoria, Illinois and in answer to the question if she had@ ever been 
t treatment in any dispensary, hospital or asylum, or been an inmate 
: almshouse or any other institution, and answering one month, was 
cient to put the appellent on inquiry to ascertain the physical 
ition of appellee for the purpose of rejecting the risk if it so 
Appellant adduced no evidence to show that Rose Slymen was 

L good health at the time of making the application on October 2, 
‘There is nothing to indicate that her statements in response to 


be . 


Stions propounded to her were not made in good faith or that 


ks” 


vere other than honest and true statements off her belief. 


It is also insisted by the appellont that it failed to endorse 
| secretary in the space for endorsements on the policy as indi- 
sy o the conditions heretofore set out _in this opinion. Failure to 


rse on the policy by appellant and the acceptance of the appli- 




















“nett to fuart to. wnbqaio 9 ont ca foory +6 nee ‘ 
~bae' ton saw ‘yoliee ot betuant ond te “Ft0g ‘est ie The 
-osqet on  seaisk ed ‘ot havea preven edd e east: $ BELTS 

to _sabebvont ey tw oben ‘ah sa agora wat’ AY oats ae: 


2 vio ihe Whee 


eirebaesoen “Sag ‘wal oat baad doountes r 





ott asian act ost ‘ouit edd ‘ta. ‘qiteg edt of “bane yoo ie f 
+082 aaah oEEE tae ae saponins i eckidbats 


ot eS 





buat os reve gatzowane | of a tedt nvalsot ea ,s ‘Eetoh ae z xe 8 
ithe oa etow vend ved dda tar yedt ea “odtureeb & aa 8 don ets et we 
‘tuelieqaa one état tae ‘ealiqgqs: ‘ot as ee ae onoit | 
ott gaitadlaseoon “geontii x6 “paesets auofree Ss ot et 

alt? soomermant ‘got ac btueltgue ot ‘gatbos eeete at aiitnen #1 , 
roddaut stadreoes of wrinont 0. quegaios “Guetieqgs see a tig’ oF nx | 
ae isoayes to eacetuq ‘edt Tot nottsrede ead “Yo ftveod baw ee" % 
“ten bad oda add boiste ode mende nisga “sbotiaet ea Xedt beh 24 











‘qqank aie iqooxs aTR6y oom rok ustoteyda yaa to. erse oil’ 


Ustemest 


need teve bad oda ti no tasup ‘odd od Towans nt ‘baa z. 


es aie? 
: efeunt as neod 0 ,awrlges re tattqaod “wraadegaly: qua EE fied 39" 


ERG 


Baw iddnom exe gutrewara ‘be  nottudEvant tedvo {HS TO 22 IF 
Ree ae: 
Leoteyita 1 ont nteéueoke of ‘webrpad no ‘nel todas: aut 30 is 











o2 4t ti dalix edt gultooten to. sacgirg eas <o% ry 
ant seal seof tad wots ot senebive on ‘peoubba dna 
e ‘xedo200 m9 no B8 80 Bc dill edd + gable tos ‘omit Bex i attest 


steiied zodl . ‘pinosiedate ence’ “Soe. cp x6 begin: ve 

oaxobre of boList “tt tad ‘gneLlodgs. ‘edt ‘yd ‘potata: é tiatin’ _ 
, -tbel a8 veitog ond no ‘etnemeatobas: rot a hehe out | 

ot ersibel - snotatgo anne ‘ak ‘do toe” oxctodoxed 


f Me he 
Ses Stn rete yeh Bas 


% -Eave err one eoiissqeoos: pred ‘bas B 

















or with the knowledge of her previous condition «as revealed in the 
lication constituted a waiver on the part of the appellant precluding 
a denying payment of the claim under the policy. 

Complaint is made of the action of the court in modifying 
Milant's given instruction no. 1, and in the giving of appellees 
ruction No. 3. Instruction No. 3 given on the part of appellee re- 

4 to the question of waiver by appellant of the provisions of the 
ey: We are of the opinion that the court did not err in giving 

| instruction. Modified instruction No. 1 complained of was more 
rable to appellee than the rule woulda permit. We do not think 

= is in any position to complain of the modifying of the instruc- 


sause the position assumed by the appellant in seid instruction 


et under the facts in the esse there could be no waiver at all. 


We, conclude, therefore, that no reversible error was com- 
@ in the trial of this cause and that the judgment of the county 
of Peoria County should be affirmed. 


Judgment affirmed. 


‘ sie AMO “2 Pai Ue eee 
re Aaa L Nec ah aunts thane Sa 37 Mee ie ON 


- edt st hotsevex Pa noistonoo auotveng rod ted 


oe spel teres od te frag end BO wom 
ayetfog edt rebay misto 


ieag ie Cane: o 


“antyttbon nk dtw99 out te Hoitos, edt to. ri 


oy “sorfeaas 3 to 2 Pay one ne nevis 8 Pos ‘nottouttent 
edt to. emote ivory add ko sontteqis i rey niet * — bad 


Sse a st 


erom asw % ‘pentstgnog . _ oe, cetitis ate ret. EE 


Pe es a 
Phy tae ag oy 


“oie sige at santos ontt ex een a 


PU 


rigo9 aaw core “aldtexover ae. seat _ om m2 


A dos 


slack Be Gerke: 


cee Sse 

















ATE OF ILLINOIS, 1). 


SECOND DISTRICT I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 


for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, 
er reby certify that the foregoing is a true copy of the 





O—FAAAa D1 
e said Appellate Court in the above entitled cause, of record in my office. 


In Testimony Whereof, I hereunto set my hand and affix, the seal of 
said Appellate Court, at Ottawa, fc Mane ctr of 


ay 7 the year of our Lord one thousand 


nine hundred and 








e Appellate Court 


ca 
boninods 2 iortes AG Giiys) 49 nos aflt aM: 











line hundred and twenty-seven, 


ond District of the State of Illinois: 


Hon. NORMAN L. JONES, Justice. 
Hon. AUGUSTUS A. PARTLOW, Justice. 
JUSTUS L. JOHNSON, Clerk. 


: VDAAT A ABRG 3 
FLOYD S. CLARK, Sheriff. Bd Avy A. 656 


a 











_ BE IT REMEMBERED, that afterwards, to-wit: On the Opinion of 


3, 1927 the Court was filed in the Clerk's office of said 


rt, in the words and figures following, to-wit: 





CU etn Ue iat 


2 SHR 


140\ 


bie 


i 
Janis ange bene 
ate 
Sy ape 



















W. Foraker, Appellee 
3 Appeal from Circuit Court 
a ve of 

I Will County 

Slocum, Appellant 


J; 

James W. Foraker, appellee, brought suit in the cireuit 

of Will County against P.H. Slocum, appellant to recover damages 
mltine from a collision of two automobiles. A trial was had before 


Ty resulting in a verdict and judgment for appellee in the sum of 


The collision occured in Joliet. Eastern Avenue runs 

oximately north and south and is intersected by Osgood Street which 

| approximately east and west. Just prior to the accident appellant 
ariving a Ford Coupe south on Eastern Avenue and was approaching its 
section with Osgood Street. At the same time appellee was driving 
sar cast on Osgood Street approaching the intersection from the west. 
; collided and as a result appellee's car was thrown on its left 
ith the front toward the west, about three feet east of the curb 

of Bostern Avenue and a short distance south of the south line of 

§ Street. Appellant's ear stood upright and facing south against 


curb of Eastern Avenue about 50 feet south of the intersection. 





\ It is urged that the verdict is ageinst the weight of the 


iy 
4) 
mce and that the court gave three instructions on behalf of appellee 


~ 


‘eontain reversible error. 


s For 200 feet west of the intersection, Osgood Street has an 

ne of about 7 feet toward the intersection. Appellee testified that 
@ bottom of the grade his car was travelling less than 20 miles 

ir and that when he reached the top of the grade at the west 

a : line of Eastern Avenue, it was going less than 15 miles an hour; 
8 he came along Osgood Street he looked first to his right end saw 
? ling, then he looked to his left at the top of the grade and 

ito the street intersection; that when he looked to the left 


ant's car between 40 and 50 feet north of him on the right 


gxr00 ¢ivoertod mort Lseqqa 
to 
ytasod I[Lfy 


tivotio oat ni tise tdgsord intial ,roxustel .W eemst 


aegemsh teveost of tnalfoqgs roo LB -H-¢ tants3s ytnsod Litw to? 


eroted bad eaw Initt A .eelidomotus owt to motetffoo s mort 7 
to mue odt nit oelleqqs rot tnemghst bas tothbrev s at bate cunaticl. 


anur osnevA mtetasi .teifot ai betyooo soferifog edt 
fo.teiw testteé poogad yd Befoostotat et base dives bus diiron wletes 
i tasileq¢s— ¢esitooe edt ot teita ten& .tfaew bas tese vletemtxera 
at gntitoeotage asw brs ornevA aotetasd mo dduoe aqsrod bro s -gatv 
auivith eeaw selleqqe emtt emse edt tA .teetta Booged aid iw = 


tefl ati mo mwordt saw wteo a'’selisqqs tineaet s ea bus BobLiLoo 
duro edt to tese vest eetdt tuods ,teew edt brawot Tnoxrt edt x 
to enti divoa edt to divoe sonsteib trode s bas syneva nrotaak 
teantens dtyoe sntost bas tdgiray bootea teo9 a'inefloqqA toot 
~toltosntetnt edt to dtsoe test O¢ tyods osmevA ntetasd to deuo 
eit to tdgtew odd tenisge et totbtev edt tadt begry ak tI 


_ torte eldiexeyer a eps 
ms asd teetsa boogad Mottcearednt edt to taew test 008 or 
edt boitivess eeffeqqa to Ltpeatod at edt brewed test F tsods to 


aolim OS asdd seel guiffevatt asw teo aid ebaxg edt te motte 


£ eng oF bexooL od sco tet - seeilieiaceliiale yp 


2) | | - ari 


edt no mtd es al deck. 08 Bue | 



















@ side of the street, and that he blew his horn as he saw appellant's 
9 He further testified that he was compelled to swerve to the right 
ise Slocum's car hooked into his car and turned it over; and that 
e speed of Slocum's car was 30 miles an hour. 
Appellant contends that he was travelling not to exceed 15 
6s an hour and appellee's car was travelling from 35 to 40 miles an 
: that he looked both ways at the tcbiensndwe and saw appellee's 
1 about 80 feet distant; that after seeing it he swerved his ear to 
left and appellee's car ran into his cer from the rear with such 
ee that it landed across Eastern Avenue against the east curb. 
There were no eye witnesses to the accident other than appellant 
pellee. It was incumbent on appellee to prove that he was in the 
tise of ordinary care for his own safety and that of his car, and 
“the collision was the result of appellant's negligence. These 
} questions of fact for the jury. We have examined the testimony 
Renot say that the finding of the jury is manifestly against the 
ME Aac eyidanes, In fact wo think the evidence is sufficient to 
the verdict. A reviewing court will not reverse a finding of 
court upon questions of disputed fact unless the finding is 
fly contrary to the weight of the evidence. (Noyes v. Hefferman 
1. 539; Fahnestock v. City of Peoria 171 id. 454; Henderson v. 
y 116 Ill. App. 539.) 7 
‘ It is claimed that appellee's 6th instruction failed to 
in the jury in assessing damages to the amount claimed in the 
Bration and to the damage shown by the evidence; and that the 6th 
rs instructions fail to restrict the personal injuries and the 
ge to the car to such as were alleged in the declaration. The 
; sm of these instructions is not without some force, but we are 
ible to say that as given they were liable to mislead the jury. 
sr, the 7th instruction does limit the right of recovery to such 
' as are shown by the evidence. 

Appellant also claims that the 7th instruction authorized the 


© allow damages for mental suffering and that there wes no 


in the declaration to authorize. s recovery for such dmmazes. 


“= 





e'toalfeqqs wee ef es ored ata weld ed tedt Bos teotde edt to obte 


tdgit eit of evrewa of Bellegmoo caw od sestt bottisasd re oH 


selioug’ eater 
tadd Sas < gt teve, tf. serous Sas tso eid otnt bexned r89 “eT muoole 2 









“yaped fs eolin OS sew tso ea'mrooleé to 


che Pt: sl rseag Resies. 
@f£ becoxs ot ton anif{fevaxt esw ed tedt ebsetnoo inaltoqas 


ms egelim Ob of g& mort gatilevsrd asw Iso @ ‘eolleqge bas nwo aa 


a Ligeti 922 bas Hotvoounetit edi ts ayae tod bextool ad tadt 

od 29 ali bevzens od 3 gatesa ‘xbite tas “jaastets Jeet 08 ten 

sf pane h Ts Tum EE Ve 
fowa ‘dtiw Teer ‘od mort 80 ‘ald ofnt net 20 8 ‘oottouse bas [: 


Marys ee rs 8 ve = oe 5 vert es 


Hey Berk. r: 
aro tase ot taniass eoneva atedasi eaoros “‘bebsat OTT far 


jotizev @ tt BhEt Fees i 
bitattecas noid Texto. ‘tnebioos eae. of sonnent te 3x9 on ste cam g 


edt ak asw than any vibe ot geen £0 trodmroat eaw i ‘ wel Legs 
hoa peste sola itte oe S 
— (780, ahd te taxtt bas etotes 0 ald tot ergo YIsi ce) 


; iy it hate sotree see: leer cee > 
‘ood? ssomaiigen e'inalfeqge do #Ivaet ont ase notatito oo 

Bs < nex Dee. Pipe > Tae = 
“wanitess ont bentnaxe evade ow oyu edt vot gost to emotta 

ie ie sitven agrod Hept Se 
etd fantegs {itect tnam Ee crt ods to ge tbat sat tedt hae 

z Be %& eerie baewat Arte 4 
ot tnotettie et eoueb tye ‘odd sine ‘ew fost al seonebive eo. 
ns ANS f e > ; j epee St Hes Suge ss e 
he salar? 3 earevex ton IL iw sxa00 “guiwoiver A Fe se ra 9 

aha stot = 2 2A Fi fiz fehiifes Sot 
al gatbalt eds eaolan fost detmyato ‘to a fogs 


ay i em ey Pa are Be ey an hee a ce ee — 
aamzetton av “aevom) “seameb ive eit to Peon siic nae ot hate 109 


Fr eee; 

































ft. Ne 


f MSTA shea PS pe bate 


‘od boltet notéourdant ato a Yeettons todd homtafo ak 


ant 26 d Licey oft ted? Senter eR ae oe 
ont ck pomiato tnuroms odd ot aegameb autacoase wa bi odd 
ey eet ev ss 4 


“age ould tadt ‘bits ; caeneb tye edt wd ‘nwosde. egansb oar oF 
i Ty igieers nia 
adit bug ao rrotat SAEORTNG aat totatest re  ftat oltourte 


int off to teow swe? OO 
_ edt -aoitsreLoeb ott nt bogolts exow as dose ot ig 


Pieecl xs ee tie oe  f Seay Peake 4 
exa aw “tad ,ootot emoa dur tm on oy sustreecrous sae + 


ei fi tery tee. att atags ont: Se 
“Est ‘odd baola im ot oldatt orem sees nevis ae ee 


ohtourdant WV ed 
dowe ‘ot yrovooet to “tig fe eae ‘Sime eoob noitorréan as , 
i is ee i ae peels i ay Ci Fire ay RE Re iets: are a bs 


ae é Be von x 
ment ; 
sa bes 


ma ee 





af s get sao ta Stal ae oe 
on oe ‘otoitd tedt Bas guitetive 

foo MS aan s [oad od Sle ted® pad tteowterel A : 

.  Roasme ose bat yrevooss 8 ttle ot noliere Co! 

























| decleretion avers that appellee was greatly bruised, hurt and wounded 
divers cuts and wounds were inflicted upon his body, and he became 
™ s sick, sore, lame and disordetfed and that he suffered great pain. 
plaintiff is always entitled to recover all damages which are the 

ural and proximate consequence of the act complained of; and those 
mages whieh necessarily result from the injury are termed general and 
the shown under general averments of the declarations. Only those 
ages which are not the necessary result of the injurg are termed 

eis and required to be stated specifically in the declaration. But 

, body and mind are so intimstely connected thst the mind is often 
rectly and necessarily effected by physical injury. There cannot 

evere physical pain without a certain amount of mental suffering. 
mind, unless it is so overpowered that consciousness is destroyed, 

iB cognizance of physical pain and must be more or less aifeched 

eby. We do not understand that the instruction or the admitted 

Pin this case contemplated any other mental suffering than that which 
nseparable from the bodily injury; therefore no averment of 
damages “— necessary. (Chicago v. MeLean 153 Ill. 148.) 

The seventh instruction is criticised because it permitted the 
to allow future damages without an averment of such damages in the 
Tation. In West Chicago St. Railroad Co. v. McCallum 169 Til. 240 
ernment in almost the precise words of the declaration in this case 
hela sufficient to warrant an instruction for prospective damages. 
testimony of appeliee tends to show that he had not fully recovered 

e time of the trial. Instructions as to future damages have been 

6 y upheld on similar evidence. (Swinesynski v. Kelly Coal Co. 

ll. Appe 158; Rumpza v. Knickerbocker Ice Co. 148 id. 433; Shew- 


|. 606.) 
4 It is insisted that the 4th instruction on behalf of appellee 
datory in form, and emphasizes the duty of the jury to consider 

n elements of the case. The portion of the instruction complained 


8 “The jury are instructed that the preponderance of evidence 


s not, necessarily, alone determined by the number 


b. ow Ba eu pboalord ifsetg sew a: tones 


ss ote 


esos bas. 


‘ F Z ager ae é ® Deeg 
_eaod? ino “ano HeraLook oat to atueateve fexessg rohan. 9 
5 , pak es he ¥ + eat 
pomres sts emt odd to tinaes viasaever ott ton ets 
; . Res ‘yal tasck ie 
toe snottarafoos out are vifeottieesa betete ed ot boxkupes 
Ya Bee Sees a a 2 
eve al Bockm auld taxtt bedoentos eleteatiat 08 ets bola pes 
feos [yu Of ete gee. 
- tonne ees cearbat ieotayte ve betootte ‘Uitranssoen 528 
a P RGIS aR a 
ed Latnom to dosoms, sintre0, & dioatt kw see 


-‘betoorte aut z0 ‘oot od team one aheq tsolecta ‘wa 


eK e ee 


 beteiana, ont m0. nottorstent ait ted bnetatebay tom 


ar trerr say ten 


ig eres’ 7 es 


> 4. 


to dnomevs on ouokered? reswtst uitbod edt mort ef 


OL LE Bek naoiol Si epeossd) _etaneeont sat ae 


2 rere hie ty fa Bie ie es : 


A +e a Hae 


ons. VEIT ear eukinbellox ont chawsliad ae : ognoidd soon aL 


“mod eves -aeganad oust ot as | snolvorstent stabst ‘oad “to 
ieee aud Lf ostream 


10D re swe “ y qBonok i882 Basa eax jo et gh 


a ae id i feo sy ae 


we ey Fs # a aceon al 
oS SA eee | 
Mee et REWS adh wel aod ae 


Ds eagrine) as oe add te pam. heed “sontnasion bus ALOT 


RR bas 























nn testifying to a particular fact or state of facts. In 
mining upon which side the preponderance of evidence is, the jury 
a taxe into consideration not only the number of witnesses" 

‘im addition thereto certain other enumerated elements. The giving 
‘a similer instruction, although criticised in Lyons v. Chicago > 

y Ry. Co. 258 Ill. 84 was held not to constitute reversible error. 
Recuxt said:- "This court has refused to reverse because of the 
ing of instructions substantially like the one here in question." 

S nstruction. in the case at har was faulty and it should have been 
ifiea or refused, but when considered wkkka with appellant's 19th 

: instruction which covers the point objected to, we cannot think 
jury could have been misled. To gustify a reversal on account of 
or it mst appear from the record that upon another trial, if the 
‘error does not intervene, a different result might be reasonably 
jeted, so that the error would deprive the defendant of some 

riel, substantial, legal right. Where it can be said from the 

rd that the error assigned gould not reesondbly affect the result 
ariel the judgment of the trial court should be affirmed. (Stans- 
t ve. Wood 231 Ill. App. 586; People v. Heard 305 Ill. 319; People 
jeir 295 id. 268.) We do not believe that the error complained of 
et ad the result or thet if eliminated a #ifferent verdic® might be 
onebly expected upon another trial. 

Finding no reversible error in the record the judgment of 
sircuit court is affirmed. 


Judgment affirmed. 


‘ oor cone Se oe a 
-f 


mee ess hate 


okt 8 eurzood earovet ot ‘Beaute x a aaae 


re sa 


al sort Sian ed Ano tf ered ae tage alii 


: ee Sacer ee 


tome rtte dd Bioode ‘¥tws fait? odd to rae in 
} TER Me: t) 


—_ tit wR Bisek -v Japcciyal capil oad cA tit t 


Piva 


ia otbroy doen ra “boteictunto xf tet xe bese a 
























ATE OF ILLINOIS, ).. 
a BOND DISTRICT if I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 


for said Second District of the State of Ulinois, and the keeper of the Records and Seal thereof, 
lereby certify that the foregoing is a true copy of the 
4 a Of ti stn 
he said Appellate Court in the above entitled cause, of record in my office. 





In Testimony Whereof, I hereunto set my hand and affix the seal of 
said Appellate Court, at Ottawa, this (ME) day of 







in the year of our Lord one thousand 


of the Appellate Court 


Tb aan 


the eee ojalise aah at. me 


* atoll lead: 


1 dleegd pete cent nerpeomtad he 


ers 


De NT i 
* ty hall 
tickers 

Uy 












ahstaat 


bi 









aM 


“day ef April, in 


se 










ine hundred and 


ait 
ue 
tt i 


of the Stat 






, De i I 
for the Seednd ae 


hy 
‘nyo 


resent--The Hon¢ THOMAS M. JETT, Presiding Justice. 


Bi 





L. JONES, Justice. 
Hon. AUGUSTUS A. PARTLOW, Justice. 


JUSTUS L. JOHNSON, Clerk. ; y 


FLOYD S. CLARK, Sheriff. 6) AA gals 
ko “Ee OD: 








BE IT REMEMBERED, that afterwards, to-wit: On the Opinion of 


13, 1927 the Court was filed in the Clerk's office of said 


irt, in the words and figures following, to-wit: 


Pe keen Ue aA 


pag HV amon 


at mianAor 


la be 


WOTTR 


yy 
w se ett =. 


wane Fyeeeoee oe 





12 


















People of the State of Illinois, 
il Defendant in error, 

Error to Cir- 
Ve Guit court of 
. Winnebego County 
es E. Allen, 
: Plaintiff in error. 


Plaintiff in error, James BE. Allen, whom we shell call the 


adant, was convicted in the circuit court of Winnebago County of 





ng in an open state of adultery. The indictment charged him with 
ng with a “woman whose first name is Gertrude and whose last 

or surname is unknowm." The first oount also describes her es 

ws complexioned woman about five feet in height and of the age of 

t 45 years. A motion to quash the indictment was made on the 

that the neme of the woman should have been alleged in the 
tment, or if it could not be ascertained, it should have been 

zed thet her name was unknown to the grand jurors. The indictment 
sufficient to inform the defendant that he end a woman, not his 
haa lived in an open state of adultery and to inform him of the 
ure of the charge. (People ve. Green 276 Ill. 346.) 

It is urged that the evidence is not sufficient to estsblish 
lt of the defendant es cherged in the indictment. ‘The testimony 
ve that be lived in an spartment building in the city of Rockford 
Gertrude Allen, from sometime in December 1924, to the last of 
1925. He married IreMe Mae Behring on April 24, 1925, in Chicago. 
refused to go to Rockford to live with him end he continued to live 
) with the woman in question. He testified that Gertrude Allen was 
dow of his deceased nephew and was only his housekeeper; that 

: s nephew died in 1909, she came to Indianapolis where he was 
living end kept house for him; thet he paid her $35 a month and 
ror the upkeep of the house; that another nephew of his and se 

of hers lived with them; that they lived sbout two years in 


lis, moved to Detroit in 1911, and from there to Chicago in 





,atontLil to etet2. ae Re 
torre al Tree 
=fiD of tora Eevee Jip mabe 
to gusod Jisd vO : 
ytourod egsdommtw 
noltA » 
»soxre. at wuneebets. 


edt Ifeo Efede ow modw ,veL[A .% comst ,toTre mt thidmislt 4 


to gtawod ogsdennt) to Jxs00 tivotto edt at betotvmoo aaw ,o2 sai 
d¢iw mid Bogtado dnomtoibat eft .yrtetivbs to otnis mego He th 
tas : 


ae ted aeditoaeh oale suuoo tectt off ".nwomlar ef omantye 


edt xo obam saw tromfotbat edt daasp of nottom A .etsey GP ¢ 
edd at begelis mood eved Sisode semow edd to omen odd “i 
need evad bineoda si ,banistueoas ed ton SLu0o ti tk to ta 
duomtothai ed? sarotmt Basta ed? of nworsias esw omen tod tedt é 
att tox ,aemow es bas sd tedt doabmoteb edd mrotal of ts 
edt to mtd mrotat of bus qresinba to etata nego as ni bovil bad 4 
(.988 .fII SYS neetd «vy ofgqoed) sogtedo adt to 
ef fatidatae ot tneftofttva tem ef eonebive oft Jadt bogua af $I 
yaonttaes ef? .itnemtotiat edt at begtado ag tasbusteb odd ‘to tt i a 
_ brotafood to vito odd at guibiivd dnomézaqs ms ak bevil od tout | 
to teal edt o ,8eL redmeosd ai omivemoa moxt ,MoffA sberdte 
,ogeotdd wk ,d8ef ,82 [itqa a0 gaitded eall ofterl betrram eH 4a [ 
avil ot besaitace ef bas mid dtiw evil of protaved of og od Boaw’ 
eew neffA ebuttieD tadd bettttieet eH -moldseup ot aamow odt ddiw. 
tadt j;reqgeedeawod ald yine saw bas wodqon boaseoeb ais to wo i 
asw ed etodw atfLoqenalinl ot omao ede ,@0@L at belb wodqon ati 
pas dinom ¢ @68 sed bteq ef tedd jymtd tot savod tgex bu gutvtl 
a bus ald to wedqen toddons tadt jeasod odd to qeedqs 
at etsey owt dvods bevil yedsd tedt med? dgiw bev. 
St onsoidd of etedt mort bas -fleL at tiered 























"where they lived until 1920 or 1921; that the niece also lived 

4 em in Detroit and Chieago until her merriage in 1920 or 1921; that 
‘Allen's nephew lived with them in Chicago; thet he, the defendant, 

1 dig continued housekeeping until December, 1924, when he went to 

tora and engeged in business; and thet he lived at a hotel tempor- 

y, but being in we poor health with stomach trouble he arranged 


» Allen to keep house for him, agreeing to pay her the seme ag 


The apartment they oceupied is of the type ususlly called a 
shen tte hotel apartment.” It consisted of a living room, which 

: at night as a bedroom. There was a double bed in this room 

: folds up and disappears behind a closed door xmk in the daytime. 
was the only bed in the apartment. There was a sun parlor, a 

tte, @ dressing room end a bath. In the living room there was 
enport end other furniture. Defendant claims that the davenport 
eken into the kitchenette each night and that he slept on it 

; The hostess of the spartment-house testified that there was only 
into the kitchenette and that it opened from the sun parlor 

BE 29 inches wide. She also testified that the davenport was 35 

jo wide, and 83 inches longs It appears from these dimensions and 

iM description of the furnishings of the kitchenette thet there wes 
ry in it for the davenport. There is considerable evidence in the 
the effeet that the defendant held out Gertrude Allen as his 
introduced her as such elthough thet evidence is denied by 

ore ht. The agent from vhom he rented the apartment testified 

hi defendant said he wanted it for nimself and wife. ‘wo of his 
888 associates testified that he introduced her to them as his 

’ of them ststed thet he spoke of her as his wife on other 


Bs 


A number of incriminating circumstances appear in evidence 
g 9 show that he and Gertrude Allen lived ‘together under such 
eS ac was caleulated to reid@e an inference that they aid 


88 Muux man and wife. If the proof showed beyond a 





\ 
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bovil eels ebeta edt tant eiaer to O8@L [tte — ean’ 

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et thew ot ise pact ,Tedmecet Litns gntqeedeanod | : 

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begnerta of elducts dosmote dtiw défaed tooy me af gated. tad 4 

ge omss edt ted yaq ot gnieetge ,oid tok sewed geet of nolta +8 

ad? Jiao ffadn ex wed nelis of see cto ek eee a. 

s bolfas esti yy d ent KO ak Perynove’ aka 

‘Yietvw \noo® SxivEl 8 Yo bese tecod VT)" Ltseidh ses deen wth 

woot wind nt bed elaveh s caw oreH?  Groorbee" Ss baitidanibins< 

somttyhb off wt att Yooh Beaofo & butted axeeyyedth : 

8) wo Read nve’ s weir erelT ° ledeindesye ic bot ie ata 

‘gow sors mote wabvif SH? aT oO Vdhed @ Bae Poot 4 aoe 

Progtiered ott Hrtd Sin icici "Uinta? a ie rou 

OE de Pata et Suita EN ain ERT eSHHON BE it | ea 

gino saw ‘srodt doa tertitver seved-thetiiteqy’ cif | 

toltsd ‘nue Sit dott betego’ Fk Tait bie’ dee odsifoF EE § 20 

: BE aid Ved qtOED wilt Yai BOVE Se obit! wae oh aii 7 

| bra anchtenemts sadt® mor? areeqye FI «igre! ‘eetont B tw 

| ak text fet ei¥erodod it ede to wt fife Herot ect OW. 

9 ; 6X2 AE sonoBive eldstediaace et ered?  strotineveb ote xo¥'S me 

| aff ae He Irk obwettsb fio ‘Bred via sHoTeD Sie Fede sovtno ous « oe i 

: Gd bOTKON Gt Gonebive Wut Wiybole EY Howe eu Hen Seeley eee 

“Heat drom! regs odd hotuoe 6 Mody hee endyaeHT Vhaee 
etd Yo vw \ettw bas tfouktd ror Fr peitnew eH Dida! AiteBite! 
O° gti ge WHY of ror Seorbortivt off tent beTETtae SF avthLBO 

ee fo’ SEW otn ‘ks vod te oxeya’ oi Set neeenetaiiel 

ia an wesneatieqoagionk of ema ere (OOC) of Satie 

“ ponestve ni wséqqs Reon tamferlo gti oitmetelt 
dose robrir Yodttegog’ sore sty sabe no Fin 

Sb vert f8Kd Sonbretit hat Vbtay ee 3 

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leaabie doubt thet they were in the habit of committing edultery 
r, then with the evidence that they were openly living together, 
fense was proven. It may of course possibly be true, as cihimed 
defendant, that no act of adultery ever occurred between them; but 
_ men and women assume those relations, commit those indiseretions and 
; ad themselves with the circumstances, width; by the common consent 
iis ind, based upon human experience and observation, lead to one 
mr jion--thet of the existence of an adulterous relationship 
ay them,--they can have no reason to expect that courts of justice 
1 put & different interpretation upon their conduct ana by some 
: ss of artificial reasoning refuse belief when all the world would 
need. (Crane v. People 168 Ill. 395.) 
It is urged thet the court erred in instructing the jury that 
se you find the defendant guilty of adultery in manner and form 
bh ged in the indictment or either of the counts thereof, then the 
| of your verdict may be ‘We the jury find the defendant James E. 
m guilty in manner and form as charged in the indictment.'" The 
» fact that plaintiff in error may have been guilty of adultery would 
1 sufficient to authorize his being convicted of living in an 
. ate of adultery. Before one can be convicted under our statute 
roof must show not only that the accused committed adultery but 

he lived in an open state of adultery. The instruction is subject 
: ticism, but we feel, however, that the interests of the defendant 
} Rot prejudiced by its insufficiency because the 14th instruction 
his request stated explicitly to what extent the evidence must 
to Egetevaicn the charge as contemplated by the statute. Instructions 
to be reaa as a series. Where a series of instructions embrace _ 
lew of the ease when taken and considered together, and it appears 
1 the reeora that substantial justice has been done and the law of 
awe say been substantially gixyenk given $o the jury, the cause will 


rs Boonie 198 id. 162; Quigg v. People 211 id. 17.) 








ee ee ee ee eee > 


I 













Yretinbs gatstinmoo to sidad eft ak ezew yodt dace $d 
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to wad? Howie d honryese Tove yrotivha zo fea en: Sadia tes 
bus gacitetosihui enous: # tang; ~aaolisiex exesds- peeakies senor : "8 49 

tusaseo Nome 9 aad ce ,foldw ,seegnayvaavoxto. od lithe! 2OY sf o 
ong, ot Baol »agitsvioade bas eeaetzoqxe nem ‘nous Seand: b , 
' _ qhiaactieles auczetishs se te eoneteaine edd te testd antes 

estteart to sirscs tadt tosaxre ot moaser ca oved nee otnn mods . 7 

enioa yd fos toubuoo thedd soqe motdedosaredat- twerettth os tag 

Bisex Sixow od? Lis oedw tetied easter aninoaset Istoitivre to wat 

Smee (B08 9 ffX SOL ofgeed av enget useen bem 
tact ts odd. anitaortact ni bevre trv0e odd todd Hogue aber 
mrt bas cenega of yiedishe to wtiiog tashaoted eat batt wey” soa 

Mit, Net. .ReAed?, mAnsee, 94k to, naa he ‘mm tanmbeAiad ei i ears! 

ot pemst tnabaetet ott. Salk gust ont ow! od yam oy ko 

ex? *',dsemtertsai edt wt beguado aa- exe baa mento af. > 
Risow yuotinha to ytling sood oved yam woute at Utkintelg take 2 
1a ut gaivil %e hetotymos guted afd oxkxoddva: of! tustotttnd ws 
etviste t06 soins betpivacp ed nap ano etetek +yist inde: a ts 
_tud yietLlube beitinuos. boaveos ent tedt y Lae tom wed tame 8 
tgofdim el ecitognyenct ed? syxedinba bo edetes meqo Lalaah : 
























= deabxoteb odt.to, atusretmt ett tent provewod ,Loet on ted: ce Sbet 


eolieuriest SdMf. edd eevaced yoreloltivant etivyd on 
tonm soqebive edd. teetxe tedw of ylttoliqne. botete: troupe ahd 3 ; : 

atoiiomngss! s.sfeteda od? yd betaiqnotnes es sgtade edt: tds: 
_ soerdae accitegrdest te aeites a ovede weeltee a aavbat 













vin, the 5th, 6th and 11th instructions for the People amounts 

© more than an essignment of error, and as no reasons whatever are 
din support of the alleged error, it is waifed. |People v. 

mer 271 Ill. 515.) 

3 It is insisted that the court erred in refusing instruction 
1 offered by the defendant. The substence of defendant's refuded 

: tion No. 1 was given in his 14th instruction. The refusal of 

er instructions is not ground for reversal where others stating 
ects the seme principles are given. (Henry v. People, supre.) 

: grounds for reversal sre urged but we find no reversible error in 


ecora and the judgment of the cireuwit court is eccordingly 


Judgment affirmed. 


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OF ILLINOIS, ) 


Ss. 
OND DISTRICT 


I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, 


he reby certify that the foregoing is a true copy of the 


he said Appellate Court in the above entitled cause, of record in my office. 
In Testimony Whereof, I hereunto set my hand and affix the seal of 
said Appellate Court, at Ottawa, this day of 







in the year of our Lord one thousand 


oer 





k of the Ease Court 


vy Cey 


#1% 


PE TSIeM 


eet sean agent: te aoe # a | 


et 
“ins eiesn 


Derhel we) 
DARK ER Tee rao i toe ea 


haar B10 ) ji ‘true 








seven, 






within and for th eond District of the State of Illinois: 


esent--The Hon. THOMAS M. JETT, Presiding Justice. 
Hon. NORMAN L. JONES, Justice. 
Hon. AUGUSTUS A. PARTLOW, Justice. 


JUSTUS L. JOHNSON, Clerk. 


FLOYD S. CLARK, Sheriff. DQAATA eR ra 
leas # fa : 4 3 wp é 











BE IT REMEMBERED, that afterwards, to-wit: On the opinion of 
13, 1927 the Court was filed in the Clerk's office of said 


rt, in the words and figures following, to-wit: 














Dt 








we 




















oe Loe.) ee 


bieas 





18 























‘Morgan, appellant, 
= Appeal from 
VSe Cireuit Court 


of Peoria County. 
n Baily Carson, et al, 


appellees 


Appellant, H. D. Morgan, filed his bill in chancery in the 
cuit court of Peoria County against appellee, Reuben Baily Carson, 
al, seeking to have two deeds absolute in form declared to be 

gages and to have the right to redeem therefrom. The bill was 

by Morgan as assignes of a judgment creditor of Charles W. 
nsfelder and Elizabeth Gruensfelder, his wife, and upon a hearing 
chancellor dismissed it for want of equity. 

In 1917 Elizabeth Gruensfelder held the record title to two 

es of property described in the two deeds in question. One of 
tracts was encumbered for $3500 and the other for a slightly 

amount. There was still another encumbrance on both tracts for 
$2500. In July, 1917, Elizabeth Gruensfelder and her husband 

yea the properties by separate deeds to appellee, Carson, subject 

1a encumbrances. There was a dwelling house in which the Gruensfel- 
‘Ved on one of the properties, and a store building was on the other 
Within a few xiys after the execution of the deeds, Carson leased 
dwelling property for one year from August 1, 1917, to Charles W. 
isfelder for $40 per month and s written lease was executed to that 
On the same day or shortly thereafter, they executed an endorse- 
on the back of the lease whereby it was agreed that if the lessee's 
Who was then in a hospital, should die during the term of the lease, 
ath should terminate it on the first of the following month. 

a and Gruensfelder surrendered poss#ssion to Carson. In a short 
after the deeds were executed, appellee gave a written undated 
Gruensfelder to purchase all of the premises for $11,000 at 

me within a year from the deste of the option. There is a conflict 


ce as to whether Gru | Pe 
g ai attorned to appellee 

























mort [seqgAé 
a tasod timottd 
i sytared aireel to 


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cy | asw Iitd oT ‘.motteted? moebor o¢ ddgix edt evad o¢ bas as f 
. apy 


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Siete i) 


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sttispo to Jnew cot ti beagtmaib noftnan 
3 ‘ owt of gigi} roost odd Sled tebLetamewr) déodestiH Viel m1 
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| yltigife ga tet vedto edt Bos 00888 tot perodmurose naw ato: 
to8 etosxd died mo eonstdmrome redtons [{tte aew otedt mel 


buadawd ted bus tebLetenenxD dtedastia Viel ,yint af .008s¢ 





tootdue ,moats? ,eelleqqs o¢ abeod etatsqea yd aeitireqoirg edd « OX 











alg 


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es aeLlredd ot. ,TIeL .f tangy4 mort teey emo tot uirecext guilier 
tect et betvooxs esaw easel aedsinw s boe dinom teq Od¢ rot tebLote 
- -eatobas ns Botwooxe yedt ,tettsetedt yittoda to ¥eb enmse edd 0 ‘“ 
 ivananat edt ti ¢adt beorgs esw tk yderedw easel oft to dosd edt mt 


<e 
an 
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edtnom antwoffLot odd to vatit edd mo t£ etantmres bisoda | 
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betsbas nettizw s eves solfeqas ,betvoexe etew abeob odd ted 




























a 


paid rent for the dwelling while he lived there, and as to whether 
a appellee received the rent from the store building after the exe- 
‘oution of the deeds. 

: By the amended bill, it is alleged that Elizabeth Gruensfelder 
without funds to pay the note secured by one of the trust deeds 

was fearful it would be foreclosed and applied to Carson for 


pncial assistance; that she conveyed the premises to him as security 


such sums as he might be required to advance to prevent foreclosure 





f the trust deeds and mortgages; that although the deeds appear to be 
Rtate, it was expressly understood, intended and agreed by Hlizabéth 
Mansfelder and Carson that the deeds and the premises therein conveyed 
to be held by Carson simply as security for such advances as he 

ht, from time to time, be required to make to prevent foreclosure of 
} trust deeds and mortgages together with interest at 6% per annum; 
said Elizabeth Gruensfelder would repay such advances and interest 
hin thirty days after such advances were made, and that upon the re- 
m nt of the advances with interest, Carson would retonvey the 

premises to her. | 

The: answer to Carson denied that he loaned to or for Elizabeth 
lensfelder any money and averred that at the time stated in the amended 
he bought the premises from her, and that Bhe conveyed the same to 
m in consideration of large sums of money advanced by him to her, and 
at the premises became and now are his absolute property; and that 

| 8 part of the consideration he discharged aWd had the encumbrances 
the premises released. 

| A large number of witnesses were examined and the testimony 
“voluminous and conflicting. Gruensfelder testified on the behalf of 
pellant that in a conversation between his wife and Carson mt at the 
pital, an arrangement was made for a loan and the conveyance of the 
jperty to Carson as security, substantially in conformity with the 

of the bill. He also testified that Carson demanded the lease be 
Suted because Gruensfelder's creditors would know of the deeds, and 

. asked Carson for something in writing to protect his and his 


eer serent in the property and this request resulted in the giving 






tsdtedw ot ba baa ered bevil off ot hate’ gatttows ort 









Lid bobaoms oid te 


| xebLetanors) ddodee tra tat? ego te ait st 
rm "3 rfz 


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© shew igh poe 





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sot moetad ot betiaqgs bus pane teenie ed bio w at inties 


| Yttxvo0e as mid of seeimerg odd beyevnoe ene tadt joonstatens ! 











| etmaofper0® tae vet¢ oc eonsvhs. ot baxiapst ad dietm enh eas amare 
‘ od wad lene eboeb ont dares te tedi , ;asgsqétom baa ebesh teost 
‘d¢eden iia va heetgs Sra bebnetat ,boovareboy ylerexaxe oom seins, : 


ee a8 - beonsvbs dena, 0%, ee, es yigata moered. ya» Bho. od 












-£o ersacfoezc? tneyetq o¢ eiusa og. Serinpert,ed somtd, ot) omkt 










(james Teg a ts teoretnt d¢iw codvegot..aegest rem, bas? ebeos'd 
taotetat baa eeonsvhs: ose yeqer. Sigow. a tebletasesse witodantiarht 
| ee wtf’ ‘mbay todd bas ,edsi0, otow geonsvbs, dows, setts: aysh. vutakdt 
| odd yaw bLaon moered ptaotedah Sim nnenamba ot ore. 


o co 





— sod ot até vy beonsvha, yenom 29 Bie aek te cohen ial ‘ 
ees en 4Utnoqoxg etuloads, eid era won. bate. aniseed, asaimenc ait 4 
“eoousr away. ont bad. BiKs bogtadog th, est, nottaxeblanoo: eft: 209% 8 @ 

_ sbease Lox’ een tneny it 


Rat tae Foes yas 


aceeaet t odd bas Beniuexe, Oxew. gerneed ia: £20. rodmea.eptet A ae 





































. written option. Ajl this Carson denied. A number of witnesses, 

f whom are cousins of Gruensfelder, testified that his general 
tation for truth end veracity is bad. Three of them also testified 
onversetions with him in which he had indicated that he had sola 
property. Graensfelder and two other witnesses testified that 

on's general reputation for truth and veracity was bad. The attorney 
arew the papers testified that Gruensfelder and Carson were in his 

ce a number of times; that they talked about whaking the deeds; 

Mrs. Gruensfelder's acknowledgment would have to be taken at the 
ital and that the substance of the proposition, as far as the deed 


concerned, was that Carson was buying the property from Gruensfelder, 





thet Carson was to pay off the mortgages. He also testified that 
nsfelder and Carson figured up the balance that would come to 
nsfelder above mortgages, taxes, costs, ete., and agreed to an 
ot that would go to him; that he heard them telK about payment 
Beate, and thet there was never anything seid or done in his office 
| would lead him to believe that the transaction was other then a 
fide sale. He further testified thet nothing was said about the 
mn at the time the deeds were delivered, but it was drawn lester. 
It is impracticable to review all of the evidence in this 
: ithin the limits to which an opinion should be confined. Hnough 
has been set out to show that there is an irreconcilable conflict 
Piatinony. In order for appellant to be entitled to the relief 
sd for in his bill of complaint, it was incumbent upon him to 
blish the utkmgutiamex allegations of the bill by the greater weight 
i eridence. Whether or not the allegations of the bill were 
lished by that weight of the testimony was primarily a question 
he chancellor. fhe burden is upon the party alleging that an 
rt % purporting to be a deed is in fact a mortgage, and it must 
stablished by clear, satisfactory and convineing proof. (Kelly v. 
mm 279 Ill. 33; Council v. Bernard 219 id. 392.) The law presumes 
e absence of proof to the contrary that a deed is what it purports 
, that is to sayy an absolute conveyance. The burden of proof is 
he party claiming such an absolute deed to be a mortgage, to 

a os 






























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3 id “0% toes 
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4 Sehagns gd een 

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: (ey abs er is Are: 3 

yentosss ett hed aay xdtoarey bits ftoxt rat no ttedoqor Tateneg @* 
t od Bae ae Cea ae 

aii at exon noasa? bas sob fotaneut tot holtisaet ateqeq ent 


| jabeek edt gatish toda hodlat gods tent jeomts ‘te <i3e8 i ‘ 
| . etd te moedat ed ot eved blac" tuompbotwenios « 2" xobLetanewso om 
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ot ence blyow tadt sonata eds a ‘borg it gps i ote 

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£3 eS Fon : 
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3 &  BitS eboeayel, ad 9 
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tegm o£ bas .S3asgttom a dost nt at boot 8 og ot gattzoqume 2 
RS a GONNA ER ie aie 
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i) od 28 FROGS Ry Ba Bee oF: 

eamyaetg wal ent (+ ses apt. ers brsr0€ v Lionvod Res REE 
(al QL OR co km aie ie 
.e@tegzog di tedw et Boon B tastt yrsrta0s outs ot toorq to babs 
#8 Las Dae Ph, UE Diag at 
BO2i evri09 of ifoads is ¢yse ot at ten 
vee Lae Cad erorea oMtg e ara Aww wes 
ot het Aaa 8 ed of eee etutoeds os dope git. ytieg 
Pee i > a Be : it aoe. Bice (eres ee ie th ak es Rete f 


Bt, toorg Xo fe bssrd eit | 













n his claim by evidence, sufficient to overcome this presumption 


> law. (Heaton v. Gaines 198 Ill. 479; Williams v. Williams 180 
1.) This, appellant has failed to do. After an examination of 
estimony and exhibits in this case we are of the opinion that the 
slloz did not err in dismissing the bill. 


fe 


The decree of the circuit court of Peotta County is 


Decree Affirmed. 


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ATE OF ILLINOIS, 
COND DISTRICT j I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 
for said Second DistriG of the State of Illinois, and the keeper of the Records and Seal thereof, 
e reby certify that the foregoing is a true copy of the 








In Testimony Whereof, I hereunto set my hand and affix the seal of 
said Appellate Court, at Ottawa, this As "___day of 


ee the year of our Lord one thousand 
nine hundred iv, = 
U/ 





tee Seen i Sy m 


giver) stelloqakt odt to aval). 
dosiadt lage? bra’ y an 


e \ 
» ae Dae 
rel in Magrath fn! yl Are pd a ryt) ane Ry eaceouese laa mane See al 
i , i Manat 


I ‘ Sito witne rit Drogen Les) 


10 leas oilt yilte bine baad yan od cane ted 
Me yab,: zr Ps tk Se Nt Ta 
Cet ate 4 ro e a 








Hon. NORMAN L. JONES, Justice. 


Hon. AUGUSTUS A. PARTLOW, Justice. AG 
JUSTUS L. JOHNSON, Clerk. 2 A. AYA. 65 ¢ 


FLOYD S. CLARK, Sheriff. 








{ May 26, 1927 
BE IT REMEMBERED, that afterwards, to-wit: On/ the opinion of 


the Court was filed in the Clerk's office of said 


+t, in the words and figures following, to-wit: 


pak 


SHOW 


" } 
ew 











aM eT 


iTS 


ag 


é 





















Shs i 








Agenda #5. 



















hia J. Case, 
Appellant Appeal from the 

if Circuit Court of 
De Kalb County. 











from the Circuit Court of DeKalb County. Cynthia J. Case, the 
ant, filed her suit against Charles V. Weddell, the appellee, to 
for losses alleged to have been sustained by her by the sale 

e1 of certain shares of the capital stock of the United Agency, a 

it rating corporation, through fraud and deceit. Cynthia J. Case, 
ei that Weddell, who was a Director of the United Agency, conspired 
other directors and officers of the corporation, to mis-represent 
Bae finencial condition of the corporation to the public generally, 
noble the corporation to sell its stock at prices far above its 

Se yalue. She charged that they did make such false representations 
er; that relying upon them she purchased 750 shares of the cepital 
k of the corporation, peying therefor $16,394.00; and that she lost 
entire purehase price. 

‘Upon the first trial of this cause, the trial court instructed 

ju y to find the defendant not guilty at the close of plaintiff's 
ence. Judgment was rendered against the plaintiff for costs in bar 
le action. 

“The plaintiff appealed to this court where the judgment was reversed 
the couse remended to the Cireuit Court of DeKalb County. When 

r the first time the case was Number 7064. 

cause was again tried at the Februsry Term, 1925, of that court 
a verdict was rendered in favor of pleintiff for $20,969.83. 

ment was rendered on the verdict of the jury and Weddell, then appel- 
| eppesied to this court. On the second hearing in this court the 
ment of the Circuit Court was reversed because of the giving of 

us instructions on the pert of the pleintiff and the opinion 

@ in Number 7264. 





34 sbnegs — 


eft moxt [seqqa . 
to fars0D tisortd 
Ytnsod dist ef 


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_ _ ett evods tst Peotae. ts woote ett {fea of nottereqros: ait 
notisineaetger evaist dora beat bib yedt tect bogtedo ed? sousy 
fatiqss srt to estsde O&¥ beesdoteq eda ‘modd nogs goiy¢for tedd 
aol edé@ tadt bue ;00.S¢8,aL% xrotetoedt gniysq wie ttazoqros edt % 
soottg eeadoisg ort 
betouttent ¢rvoo [aittt edd ,eanseo aidt to LIsitt saxit eid H0 
 g'ititntelq to eaofo edt ts ytitog ton tnsbmoteb odd batt of 
ted nat eveoo tot ttitalsatgq edd tanisgs betebnmst aaw inompiut +e 


rnottos od 


Boerovos aaw tnomgbst edd exsdw disce atdt of belseqqs tiitntelq i 


nedY .yduwed diskxe@ to frwed Fiwortd edt of Sebisiet eanso 


Dd0Y tedar% esw saso oft omit song ont x 


“fuses $add to ,éSser ret yarrdeX edt ts beizd niege asw eaves 


«68 .2d@ ae, tot ttitaislq to xoveat of betebmet aew me 


edt txusoo atdt at antrsed buooea ods a0 «t1900 aid of bos 


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ee 


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‘me opinion rendered by this court on the first eppeal of this 
Peontains a full and complete statement of all the facts in 

“ease as they appear from the evidence offered by the plaintiff. 

. the first opinion we held that the evidence of the plaintiff 

rj tended to support the averments of the declaration; that 

pher this evidence showed fraud and conspiracy was a question of 

| for the ¥ jury which should heve been submitted to it. From an 
Binstion of the record itsppears that the testimony wma as disclosed 
the record on this appeal, is very similar to what it was on the 

ba appeal. : 

“We do not deem it necessary to make a detailed statement of 

facts in this case. The testimony on the part of the appellee tends 
rove his contention. The evidence fairly tends to show that the 
ements made by Weddell were made in good faith and believed by 

fo be true. It was a question of fact as to whether or not the 
dant Wmiieizk Weddell had conspired with others to sell the stock 
| United Agency by means of fraudulent representations. 

In passing, it might be well to state thet the reeord discloses 
‘at the time of the sale of the stock to the plaintiff she lived 
her husband Francis M. Case, and her daughter Miss Stella Case, 

4 Paw, Illinois; that the actusl sales of stock to the plaintiff 
made by A. Le. Morris, a stock salesman of the United Agency. 

is hed previously sold some stock of the United Ageney to Dr. William 
Y, who wes a practicing physiciah in Paw Paw, and was, at the time 
le sale of the stock to the plaintiff, and for some years prior 

to, head been rooming at the home of the plaintiff and her husband. 
‘Morris sold the stock to Dr. Avery, the doetor introduced Morris 
Sila Case, and shortly thereafter, in May 1917, he sold 5 shares of 
to her. Dr. Avery of the daughter, afterwards introduced Morris 
@ plaintif?, and he made three sales of stock to her. The first 
was made on June 7, 1917, of 137 sheres of stock, and the purchase 
was $3000.00; the second Sale was made August 18£h, 1917, of 513 
£ stoek, and the purchsese price was $11,300.00; the third sale 


vas arranged for in November or December of 1917, sna finally 











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brs ,VLeL to te 


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pleted February 20, 1918, and was of 65 shares of stock and the 
Rise price was $1495.00. 

 Qhere is nothing in the record so far as we have been able to 
Sertain, to show that the defendent had anything to do with the 

1e of this stock to the plaintiff, or that he knew thet an effort 
ME beinc made by any person to sell stock to her. The record shows 


t the plaintiff has known of the defendant for years, as an honest 


1 of good business judgment, but had never met him personally but once, 
| thet was on February 20, 1918, at the office of the Unitea Agency in 
gO, where the plaintiff went with her daughter to complete the 

ase of the last block of 65 shares of stock, which she had 

riously agreed to pruchase. It appears that the only conversation 
‘the plaintiff ever had with the defendant was at the time she 

| on February 20, 1918; in that conversation the plaintiff 

ifies She said "Ma Weddell, I would like to know what your opinion 
bout the United Agency Stocky" and he said "I @on't think there 

ay better, I don't think there is any better investment that I 

of"; and she further testified; "And of course that sounded 

of encouraging, and I kmew that he was a farmer and a good busi- 
mar and I thought he must see something about it or he wouldn't 

to it." 

me record further discloses that Dr. Avery testified that he eins 

m1 Ysation with the defendant about July 15, 1917, about United 

ey stock and that he told Weddell that he and Mrs. Case were going 
215 on his judgment in this investment," and that the defendant 
"it was one of the best, if not the best investment, that he knew 
| the United States; that he was putting his surplus money in the 
ny, and he couldn't help but advise others to do the same," and Dre 
| municated this statement to the plaintiff within a few days. 
above and foregoing are the only representations or statements 
d, the record to have been made personally by the defendant. 

It is the contention of appellant that the cause should be reversed 
1e facts. After a careful exemination of the record we are not 
set aside the finding of the jury and reverse and remend the 


ew triel upon the ground that the verdict is contrary to 




































edt bus wloote to gerade @8 to aaw bus ,6LeL ,08 yxendet 

msoo STS Vg Beare” eow’ eoleg. 

of elde need avad ow as Ist 08 broDeT eid mi ShtheGa ake 

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eat etefqmos ot soddguab red atiw show’ thidets te bad? or eiti’ Os 
bad ede dotdw ,toote to eeteda 83 to Hoold dast eit to ad 

no ltears vo ytso eft eft axeoqqes $1 ,opadosrg of beers vas 
pie emit edt ta asw inabneteb edt dtiw bad teve saniktatd 
gtitatarg edt néttearevnce dade mi Yerer™’ Os Vranrdet a0 
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t'nbivow ef to ti tuods tems box tesm ‘ed nage, I oy 
a atest Se 


bad ed derdd hektttaet yreva «x0 tadd eeaotoath rotted? broost’ 





botint trode ,VE@r ,af yiet tucds tnebmoteb ont ittiw nokta Es 
gntog eTow 9e80 .a%M bea od tadd ‘ffepbey ‘plot ok tent bus aloo 
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st bas ",emaa edd ob of etodte’ satvbhe tod. qfed ‘fabivod it Bais 
,ayeb wot e ofddtw Stitntele edt of tnometsia ‘git Berek 
ginemotate 0 gue ttatnseerqe  Yiae ‘edt ots gatogetos ‘bis “ills 
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fearevot ed Sivode eagso odt tadt duet leqgs ‘to ao Bitdnée out ot 
don eta ow bioset oft to nOLanisiexe Iytorso s rodta ” ato: 
edt baemet Bue oarevet bas ysl ont to gethatt edt sbtae ted 
Ot yrertnoe at tethrevedt taddbasomg odd snogd Labet a 



























nifest weight of the evidence. 

tt is insisted that a number of snutractious given on the part of 
llee are erroneous. They are not argued in the order in which they 
re numbered. The most serious objection seems to be to instruction 
8, which is first criticised by appellant. Instruction Number 
sas follows; "The Court instructs the jury as to the question of 
spiracy as charged in plaintiff's declaration, thet the burden of 

of is upon the pleintiff, to prove by credible evidence, by the 

ater weight of the testimony, that the defendant, Weddell, is guilty 
harged in plaintiff's declaration of a conspiracy to defraud the 

iG¢ generally, and the plaintiff in perticular, in the purchase of 
stock of the United Agency; and if the jury finds from the evidence 
’ he defendant Charles V. Weddell, did not enter into a epnspiracy 
harged in plaintiff's declaration, then as to the charge of con- 
Bey, the court instructs you that the same cannot be made a basis 
recovery ag against the defendant Charles V. Weddell. 

It is insisted by appellant that she did not allege in her declara- 
t Weddell conspired to defraud the plaintiff in particular, and 

$ contended the instruction mistates s material element of the 
Tation. This is a misapprehension. Where several are charged in 
Hlaration in an action of deceit as being engaged in a conspiracy 
ich the deceit was a part, they are not liable merely because 

he © entered into a conspiracy. Entering into s conspiracy to 

| illegal act or a legal act by illegal means, is of itself a 

18] offénse, but no right of action agsinst the conspirators arises 


/ Some person is individualized from the public by acting to his 





7 upon felse representations, made by one of the conspirators, in 
prance of his object. The conspiracy is not, ss in a criminel 

gist of the action of deceit. It is the means by which the 

it may be held liable for the actions or knowledge of other persons. 
imation of the declaration and each count thereof, discloses that 
rges & conspiracy and in legal effect, is a charge to defraud the 


erally and the plaintiff in particular. 


yertd fe tae ar yebro oft is Berges tom ste” gout Savanna 


 goktsertenl ef ed oF ameoe iro Feo} do anottee Sacm ont 41 : ste 


rodeott aotgesrtent -.teslfeqqa ¢d bealetti¢s textt ab doldw 


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“Ge pebrsd odd tedd ,notteatatoobd: a'ttiftoterg of. pogtano as’ 


eit yd ,donebive ofdibsto yd evozry! ot ,teituiale edd! eget 
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sit peattes of YSstigames & Te notveteloes alititataly aiobeg 
Ho éaadotse oct at jrslwolixeq Ht thitntele edtibas (eiieres 


sagen oad oie mott able vxst edt ti bas  Pyomesa petiat eit to 


 yoatiyenge @ ein retae ta’ bib |, ffobbe! ov eelxedd: tnebiceteb® 


6 Lee" to oe eit of as med: re ee wee Bi 


bet  selwottrsg at ttinielg ont buexten: ef satednan ifepbew: 


‘eat % taomefe [etrotem # wotetata sottosntent sat bebners 


at besisio ers {steves ered .motanedertqqsaim s af gta? “90. 


. “Gostiqenos 2 ht besegne gated ca tleseb: to notion ne oki nokt 


heertecd yLoreit Sidell ton ove yous treq 8 BSW dleosb: edd 


“ot Yost ryaroo 8 otnks gaitetnt | “ Wposrtgassoo a: OtaE botedae:: 


°@ SIeett to sk {sneotn — gd tos’ sali a ae edi 


Ke gt 
tmtte a nt ee ton wt ‘esstth qeieea'a eit .teetdo wit Roiies 


witeoeb ko no ttes. oid Le | 


* fen 
edt xotiw yd emsem ody at #1 
moereq vette te springs xo enotves edt rot efdstr yee ot 
























The instruction is not & peremptory one so as to bring it within 


‘Tule announced in Schwartz Admx. Appellee vs. C. & & Northwestern 
¢ 


Co. in case 7396, thas court, as contended by appellants. It conforms 


te he charge as made in the declaration and each count thereof. We 


) of the opinion that there is no merit in the objections to said 


action number 8. It cannot be said to be misleading when considered 
nection with instruction number 4, given on the part of appellant, 


auction number 4 is as follows:- 


See jury are instructed that if you find from the preponderance 


he evidence under the instructions of the court that the defendant 


e11, Conspired with others to sell the stock of the Unitea Ageney 


8 of fraudulent representations; and you further find that any 


x more of such conspiretors personally, or through an agent or 


S, made a statement or representation which falsely represented 


aneial condition of the United Ageney; ana if you further find 


he evidence that such conspiretor or conspirators, knew said 


mt or representation was false; and if you further find from 


Hitenes that said statement or representation was made for the 


of selling Unitea Agency stock; and if you further find from 


ridence thet the plsintirtf learned of said statement or representa~ 
: md if you further fina from the evidence 
an 


that the pleintiff 
ordinary prudent person, and relied upon such Statement or 


oe in the purchase of United Ageney stock, then the plaintiff 
led to recover and you should find the defendant guilty." 


is next insisted by the appellant that the court erred in giving 


sion No. 3, on the part of appellee. It is said that instruction 


gnores the element of conspiracy. It Only requires a reading of 


action to show thet ig is not subject to the criticism made of 


auction Bo. 3 is ag foltlows:- "The court instructs the jury 


Bieta: &n action of this kind it is essential that statements 


L to the transaction should have been made; that such statements 


related to a past or existing fact, and not to some future 


th «i the statements should be false in a material respect; that 


inst Whom the charge is msde should have known at the’ 








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mort ‘pakt <edteut BOY “¢} brs” “loot gouega botint gutitea” 
2 to ponreel atzintetq sat vant-e 
edt ted? eonebive eit mout bait roddest” pogo te 


‘png jwoareg tmebytg qeeukbre aa 
rq ent ak pire 










fogs botind 


gise ne 






ot tot Sina aBw 












-stnozstae% Bas) ‘sxometsta 5is 


“e¢ttntele 


Pe tremotsda owe moqy hotter 
Aeota qonega bottht to. santo’ 
offs poy bas” wevenes OF 






“qantatsra edt neat 


nett torg on oct batt pis 
¥euy Taatfeqqs ett ud bobs tox tale 





“gaivis at berze txuoo efit 
 sefteqia’ ro" grag Sit HO. eye 


tbeet @ aotinper vino $f wqosriqands te tiremele” iff @ 
# wota ot a0 


to Vie maitotstxo ‘ont of toot gon af ot desi 
t ent atourtent favo ent™ ~ewotLlot ‘gs at & (0a a 
ttussae ‘gt tt prix ‘gti? te mperrer 


iebont mae eyed “tesa ectsieonrays vot 


noltowtyant sand Siew er st" 










<0 ant 





acta 
atnemedatu faut Ie 
‘ptnenedata Sosa bade” 


sautat amog o¢ “Non bua 
<otam ‘2 gy ‘Setet od piesa” ‘ed 





test ;foeqaet ist 
’ one oved bivcda haw at 






























e ) the statements were made that they were false; that the pleintize 


114 have relied upon the statements so that Ekeya they are the material 
Reins cause which influénced her action, and that she should have 


fered damage as a result." 


Purthermore, it will be observed that the instruction statts out 


‘saying that to sustain en action of this kina it is essential that 


4 


ements materisl to the transaction should have been made. “When this 
truction is considered in connection With the issue formuleted in this 


@ it cannot be said to be subject to the criticisms made thereto 
ippellant. 


It is also the contention of appellant that instruction No. 9 


J 
x By appellee is erroneous. It is insisted that it is bad because 


Bs 
Be 


the jury that Weddell had a right to rely in good faith on the 


ation of the assets of the Unitea Agency made by appreisers in gzood 
and upon statements as to such value made by other directors or 


rs of the United Ageney in good faith. On examination it will be 


i that instruction No. 9 told the jury that Weddell had a right to 
‘in good faith upon the various things enumerated in the instruction 


far as they were shown by the evidence, provided the jury further 


ved from the evidence that Weddell believed the same to be true and 
i upon the same and that he acted as a reasonably prudent man." 
astruction is not peremptory and it does not assume that Weddell 


i good faith, nor does it invade the province of the jury in any 


for the reason that the jury is referred to the evidence for its 
mination, as to the good faith of Weddell. We do not think rever- 
? error was committed in the giving of instruction No. 9. 


llant also insists that instruction No. 2 given on the pert of 


is erroneous. This instruction is ag follows: "The court 


the jury that fraud is never to be presumed, but must be 


oid proved by the party alleging the same. The law presumes 


wis 


1 men are fair and honest -~ that their dealings are in good 





a Without intention to defraud others,.and if any transaction 


lestion is equally capable of two constructions, one that is 





+ ors 5 Cent emt tadt 08 | ednomosaze gerry pare 


hae 


o ered. Sivoda ova tat be .noitos xed eee ‘gohan 9 8. 
es Tas a s 


“tuo ators no ttowziea ods tad peyreade. od cttw ae 


ee % 


se oe tact 


mo 


“Gadi Inttnoeae ak ‘th ‘bab aids to mottos: fe state 


etiie nese gaan reed aonb biwode nohosanstt out ot foteots 


ald? at bods iumrot escak oat sdiw no ktoeanco at borebiance gee’ ot 


ofored (3 sham awa lois ito out of foot dire Cae of Btw ug somes 
Be ae Sate 


Se sh sR S 


¥ 


cong 
ee a 
‘ eauoood bad at tt todd betaleat at oa 


edt 20 did tot boos aE yet ot dite « Fs) bast ae 


Boog at axeatstqqs xd bam vonegs bod iat odd to asores, “et “to, 


re “‘aoteotb <edito “e ebom eulsy dose ot as ainonosata ts] 


‘od Iitw gt nobtentmexe 10 afd hot Boog at romegé potial oat a - 


eh digit a bail Liepbe¥ tedt yet oid bios @ 108 eHtowrdeat ted 


nottosstent edd ak poseremune agaist ano trey odd meas 


rortt2 vrst edt bebtvord one Bi Te: edt a mwoxte ezow ont . 
% x rf 


sey extd od of emia eit parece’ Leb 
as potoe od Sortt bao comes 


33 eth en 


en faut eouabive odd 


* cosa taebetg ‘ldencaset & 


| Etebpol todd omiaas fom ‘good it bas cxovguoted ha Ae, of 


as at wast, edt ‘to eonivota odt ebevn at g0ob ‘tom op 
cy a Grae 


ptt. r0t eomehive odd of boxtotes ak east, odd todd, noes 


-xov8t anitdd Pica 06 ew “ELobbeR ‘to sitist boos edd od 
| 2 oF “nobtoussant 20 saivig eit ak Bosstamoo 
of nottouxtank ‘tad ateient 


5 > ed: 8 


to tama rid XC nevis & 
$x109 oat” awoL tot Bs ak ‘noiteuszon! ai, 


: d at 
ed taum tad bomraoxg ad ot woven ak baat ‘ad poe 
“some oad anigelia yized sti x gre 


ER aa Papa y 
Sere deonod ba iat pas, 


Ro i ed mt Se L : aS 


_goitoseaatt ques ur bas. laxedto baccten od me. 


pomuraet “¢ wat all 


Pa 


“boog “nk os agnt tees xiedé isd 





ad eno vasreitosttanco. owt to 

























pr ond honest and the other that is dishonest, then the lew is that 

e trensaction questioned is presumed to be honest and fair." 

4 The part of the instruction to which the objection is argued was 
consideration of this court in Alexis Stoneward Manufacturing 

Lay ve. Young, 59 Ill. App. 226. The defendants third refused 
struction in that cause was substantially identical with that part of 
Tiitrestion criticised in the case at bar, and the court said: 

je think that the third refused inetreotion should be given. It is 

™ for the jury to understand that good faith of appellant's 

leers would be presumed unless the contrary appeared from the evidenee." 
ike instruction was under consideration in Schroeder v. Walsh, 120 Ill. 
The same objection was argued there as is argued here and the 


rt said that the instruction was not obnoxious to the objection made 


_ Hughes v. Lockington, eel Til. 571, was a case for fraud and deceit. 
fourth instruction given on the part of appellant was modified by 
court and in its decision at page 575 the court said: 


“Complaint is also made of the modification by the 

_ court of the fourth instruction offered and given on 

behalf of appellant. This instruction was to the effect 

that the law presumes that sll men are fair and honest 

and that their dealings are in good faith and without 

intent to cheat and defraud others, and where a trens- 

_ ection is called in question end is equally capable of 

two constructions, one that is fair and honest and the 

Other that is dishonest, the lew is that the fair and | 
honest construction must prevail. The instruction 

_ Was modified by the court by the addition of the words, 

- “umless proven by the preponderance of the evidence | 
to be otherwise." The instruction as originally 

Submitted stated a correet proposition of law, and it 

would not have been error for the court to have Bbiven 

it as offered, but the modification did not render 

it erroneous or misleeding. In other words, the 

additional lenguage did not materially change the 

meaning of the instruction." 


& 


«Other ob jections are argued to the instructions. We have considered 
and taking the instructions as a series, we are unable to say that 
jury were misled by the instructions given on the part of appellee. 
re being no reversible error found in the instruetions end the jury 


g passea upon the questions of fact and having found against the 


ale basgte ‘at “netéeetdo ond doid et no tvourtent auld 20 ae 


oy 
BS al 


ge aT _aneris | od pivoda nottorrten! beautor baht est 


aw repeoulos as nottarsbtexco ‘nobus « asw Bigs, 2 
6 


ft oe eee 
Ps ee A a 


oud qd we Heuo th ibn pert to aban ‘bate at ae 
-. MO Gevigcbas bevelte settouttart diver sdf te 
toetts edd o¢ eaw mottouttest atdt stasileqgs To 
faened bus tiat ers nem Ife tadt esmeerq wate 
tuoddiw bas dtiet Seeg ni 913 agnifesb tiled? bert 
gusts 2 etedw bos ,erdiddte beerted bas deere of 
to eldeqss yliewps et bus nottaemp ai befIeo et 
eit bye teencd bua tist at tand¢ eno  fenottonrtenc 
bas tist edt stadt ai wal edt ,taenora tb ak foe ys 
- »- poktountant eff: afisaverg San nolttomrrtenoo 
,ebtow ont to mottthhs edt yd txyoo edt yd belt. 
gonehive odd ete sonstebaogerg odd yd d hevorg 
gifanigitc aa nottovrvtent eff ".6 sip 
ti fas :.wel to’ kottieogorg toe tr09 s bedsie’ b 
revid aved o¢ dty09 ett rot torte need evad 
xobpet, dom /if moitpottiipom ext 
end ,ebrow teito. al -gaibseletm oO" ae 
eld. eared Vid ateedea. uring cops 


r 








ion of appellant, we are of the opinion that the judgment of 
mit Court should be affirmed which is accordingly done. 


Judgement affirmed. 





sono) x 


a 
wy By Sap tan 

oe Ts oA x a 
PRM E Pe ae 


TAG eer” 


ineas 


maad gts 


sla 
Wass 









ATE OF ILLINOIS, |... 

ee DS TRICT ‘a I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, 
ereby certify that the foregoing is a true copy of the 

eso Os 

I e aid Appellate Court in the above entitled cause, of record in my office. 


a, | ‘ ‘ 
e In Testimony Whereof, I hereunto set my hand and affix the seal Of 


said Appellate Court, at Ottawa, ie de Goes day of 


in the year of our Lord one thousand 
nine hundred a enty- 


of the Appellate Court. 









= ef 
a 
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oan : 
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Ket, 
= ; 
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ay ead 













OK Seetkrott 


Tee 





the fifth day of April, in 
and nine ndr enty-seven, 
f 


esent--The Hon. THOMAS M. JETT, Presiding Justice. 





Hon. NORMAN L. JONES, Justice. 
Hon. AUGUSTUS A. PARTLOW, Justice. 
JUSTUS L. JOHNSON, Clerk. 


ani: 


FLOYD S= CLARK, Sheritr. * wD, A aA 
“i Z 


fe : 

A fe mer js G 

AS gna’, ‘a wien r A 
ete OD 6 











May 51, 1927 
BE IT REMEMBERED, that afterwards, to-wit: On/ the opinion of 


the Court was filed in the Clerk's office of said 


rt, in the words and figures following, to-wit: 








= 











wis . Ea SL ou eats ae ey ee 


at ay ei ett aac iti 





nt ner u ; aoe 
; Anes 7, 
Pc 
« 
5 4 





al 


Appeal from the 
Circuit Court of 
Winnebago County. 




















i? Appellant, S. B. Geiger, instituted a suit in the cireuit court 


Eitanebaco County against the city of Rockford, appellee, to recover 


54.47, claimed to be due for extra work and material furnished in 


digging of two artesian wells Nos. 2 and 3, under a written contract 


hich appellant was to sink four deep wells for appellee. 


The contract is voluminous and includes numerous specifications. 


elis were to have an inside diameter of 14 inches for a depth of 


eet, and 12 inches inside diameter for a further depth of 1200 to 


‘ 


feet into the Potsdam formation, until a depth satisfactory to the 


eer was reached, but not to exceed a total depth of 1600 feet. 


first or upper portion of the 14 in. section was to be provided with 
@ pipe 15 inches outside diameter extending into the rock, a depth 


10 feet, sealing off all surface or groand water. The specifications 


am the following clause: "Geofogical strata; It is believed that 


@lena and Trenton Limestone such as May be seen in the various 

: ties in and around the city of Rockford, underlies the proposed sites 
he wells at depths below the surface not to exeeed twenty-five (25°) 
fty feet tick (50'). At the Eamerson-Brantingham Company's well, 
~ the city well sites the distance to rock was twenty-two feet 
through clay. It is believed thet the St. Peter sandstone will be 
intered et a depth of epproximetely one hundred eighty feet (180') 


r less below the surface. Below this will be found, 


Mt 


the following 
ts of the general nature and approximate thicknesses nameé@;: 


Thickness 
i... Sandstone 200" to 500°! 


Dieguesies 


90" to 180° 
adposits, 


1500" or more 


‘ trata are liable to varistions in thickness and structure, 


Ne i cacti i 









ait goxt Lseqgé 
to F4vod Tisotlto 
sYinwod ogsdenalw 










gevooet of ,oelleqqs ,brotwdoo# to ytio ont texisgs ytnrod ogsden 


bedetnuwt Ietretem bus drow stixe tot esb ed ot bemtelo Aye 






at 


6 bus S ,aok allow ngtestxs owt te gatggib4 





 toatdno9 nettizw se robacg 
.selleqqs rot affew qoob toot ante o¢ asw tjusaileqqs dotd 




























22iio 
to dtqeb s tot eedont SLI to tetemsib ebtant ne eved ot stew aller 










FF 
a 
idaottioeqa eroremon aebulont bas avontmutoy ak fosrtnoo edt . 
ot oost to diqeb tedtust s tot totemaib obtent gedont ‘Eo ba8 test : 


a edd ot yrotostaties dtqeb s Litas coltamrot mebatod oat dnt Je 


i teet OOSL to dtqeb Latot s besoxe oF ton tnd poroset ese 





saw hebivera od ot asw nottoee mt AL odd to motttog Teqqs we teres 
ages. a ,doot edt otnt guibnotxe netemstbh ebtatwo aedonk @f eqtq : 
anottsoitioega ef? .tetaw bapdrg to eosttve [fs Ito guifesa — tect 


_tedt bovetfed af tI :statte [so igogoed" regualo aniwolflot edt 
eit at meee od Yam as dove onoteomid notnet? bre snot 


P| 
i 


asoitsy 


stie peaoqotg edt aotizebos ,brotiuoo# to ytio edt bnvote ‘bas mi 7 
(a8) evit-yinewd beesxe of Jon sostime oft woled aditqeb ee | 













{few atyneqnod medgattastd-noatemall odd ta .('08) spbtee roe Om 
test owt-ytmewd sew Hoot ot somedalb edt gotta [Lew ytto edt | 
 @d ILiw onddabnse vetst .ta odt pelt povetied ef tI .yefo very 
(085) tect yidgte betbhand eno qlodamixoxags to dtqebh a te betes: 


gatwolfor edt ,basot od [Ltw atdt woled .costxve oft woled agel » 


‘Homsn aeaagmdoidt stamixorqgs bas esuten [stenes edt to 


aegonmiotd? 
¥00a o¢ 1008 


108L of OR”. 


etom to '008L 
. eeondotidd ok 21 = 




























variations shall be at the risk of the contractor, and said 
tor shall not be entitled to any claim for extra compensation 
iy variations in said stmata, or for any additional labor, 
Riad or appliances which he is obliged to furnish by reason of sueh 
dations or from any unforseen diffieulty encountered in the prose-~ 
sion of the work." 

. The contract further provides that all loss or damage arising out 
ne mature of the work to be done or from the action of the elements 
: l any unforseen circumstances in the prosecution of the same, 

on unusual obstructions or difficulties which may be encountered in 
Osecution of the work shall be sustained and borne by the contractor 
S$ OWn cost and expense. It further provides thet no work should 
egarded as extra work unless it was ordered in writing by the con- 

ig engineer and endorsed by the Superintendent of the Water De- 
bent, with the agreed price for the same specified in the order, pro- 
I the price was not otherwise determined by the econtrect, and that 

se ms for extra work whould be mede to the city before the extra 

! Started. It is declared to be the intent of the contract that 
on must be done and material furnished in accordance with the 
factice, and in the event of any discrepancies between the plang 
cifications, or otherwise, or in the event of any doubt «s to 
= of any portion of the contract, specifications or plans, 
Bgincer shall define which is intended to apply to the work, and 
my work or material not specified, but which might be fairly 


es included in the contract, of which the engineer should be 


» Shall be furnished by the contractor without extra, charge. 
1ated quantities of work and material are sp Troximate and are to 
i only as a basis for estimating the probable cost of the Rx work 
F compsring proposals. The actual work may differ therefrom and 
ig for payment shall ve the actual amount of such work done and 
. furnished, and if it cannot be otherwise agreed, the engineer 
all cases determine the amounts end quantities of the several 


which are to be paid for under the contrect and all questions 


bisa bas ,TosestsACS eit to dats edt ts oaibeaiee ne 
mobtaanoqno2, exis z0h: eigto yas of beltitae ed som pints: 


‘dome to poaser yd deiner of hegitde at ef doidw ‘suepitioas 10. q 


edd at. boretarcone yd isot trib, meseatoins Yas mort 10. @ 2 
evcok te “tis sie tart . “etzow, odd: Le 
tuo) gaietzs ogame. 50, agoL. is stadt, aobive tq: salen tosxtnoo. os 
laa ett: te noides edt moth; 1; snob, od, 0d» Axow. odd, Lo ots am, 
,emsa edd. To motisoeaotg: eit at esonstemmoxio nesatotry Yas: 
cE horetasoone, od, yam doidw eettivottiib to. anoitosttade, Lewes, mo 
rd OD: edt. yd eaxod, bus: bonistane ed Lisde xxew aaa icnsnin 


suidiiel grow om tedd eobivetg codduut ¢1. > -panegre, bas Fame, * st 


 seeo7g 


« re eid 


. ip totew edd he seaptnsctieckne tt edd yt beetobae sano 


 mebre: odd: ab hbettiosqe emse, enh rok eoitg, beers ont, — 


ae goantnoo eft fo dnedmt edt: sich soennaeicell shots 
esis dito eoushroses fit bodaiatwt,taivedem, Fret REDD? Ae PED 


—_— edd soawd oct reionagqetogth yas te dnevs, end th, Bas, 
Lraq ph we ddrob am Ko. tn07 e aed, Se -MO. oaiwsedto xo ,enokdes 
gamle xo, ano ttaothioega:ohessinow: exit, To, ale 
Sas row. odt..ot gigqgs, oF pebnetak et sot dw, enkheb, L Lede, soon 
-¢intet ed tigi siohdw dad sehen gon, ene 


tea exten trond iw, natunte edt vd sine 


ot ore bre. otsmixotade ers faixeten bas, axow, 20, aaiiitaasp » 


atrow six ont Ba: aa! vihiilats eit gauttemitas tot atasd 8B aS Y 
anode hast 78 


bus moatexedt roth ib ‘yen arow [satos oT -elsaoqortg 


seontgne are ‘cores ‘eaiwzodto od tonne tt br ae 






















‘relation to the work and construction, and decide all questions 
ative to the execution of the contract on the part of the contractore 
Dastimete and findings shall be ¢@onditions precedent to the right 

» the parties to arbitration or to any action on the contract, and to 

y rights of the contractor to receive any money under the contract, 
te first well started wes No. 3. After it was sunk about 53 feet, 
+ rock wes not reached end appellsent ordered the work stopped. He 
ified the city of this fact and the Suverintendent of Water Works ux 
nged & meeting at which appellant, the mayor, city engineer, Mead, 
gent engineer, Trestler, and the Superintendent of Water Works were 
ent. At this meeting the matter was discussed; appellant refused 
roceed further with the work unless he wes assured of compensation 


extra work that would be required on account of bedrock not being 





at a depth of from 25 to 50 feet. The Mayor threatenéd to 


§ suit on appellant's bond unless the work went ahead. Appellant 
‘the mayor he wes privileged to do it. Then the city engineer, 
Suggested that appellant go aheed and complete the work And 

+t & bill for extras, which he would Look over end meke a report as 
at he regarded as an equitable adjustment. ‘The Suggestion was 
rently agreed to by all parties, the meeting broke up amicably, 
ppellant proceeded with the work. In well No. 3, bedrock was 
MEat 95 foet cnd in well No. 2 at 68 foot. Me filed a claim for 
xt: work and the engineer after examining it made a report 

mending the payment of $4915.47 by the city for the extra work on 

; wells. The city declined to pay the claim and appellant in- 

this suit, filing a declaration containing a special count to 

| the general issue was filed. He later filed the common counts with 
of the sccount sued on together with an offidavit of claim. The 

of gener:1 issue was filed to the common counts. During the 

\ of jurors at the trial about five months later, appellant 

:0 strike this plea from the files ané for judgment as by default. 


i. 


round that the plea was not accompanied by an sffidavit of 





quired by Sec. 55 of the Practice Act. The motion was 

























angideassp [fe ebioeb. bas: Hettonstenoo) hae aixemieddye i x 

stotogtincs edt.to-dtsq,edt,ae -tosuiaeo edt: to mobivtexze! sdts03 

ddgizt edt.ot daebecetg encldibues edcLiede aguibel® tage! 8 

e¢.bae ,testéinos ett so nettasgaiaced | ‘TO. no ttorthéeactdomette 

~tostines odd tebas genom yas: AT ENIET: ae coteevaneieatl Yo 

steot S6 tuods wane aew I retta ..8 .ol ay betista’ Lew daxth 

2 @Hy shegqeda ayow.eds hetehxe has ileggs sbaackedtetes tio ane ; 

3H ett tots. to, tgebusiniteqre ed? bas stost abiy te “yao cond 7 

,fseM,  coomigne gtic ,toysem odd ,Juekleqgs clehiw ta guttesm is 

: Por axited..reds4 te.soeinetabtequa ions ‘baw. ,ralteort? « . Peonbgne 4 

- gop easter tnslioqge Gbeaanselh agw toddem edd gai teom aide. ta 

seiteaneqymoo to Setrase caw ed eso Gus tow edt catiw mentee : 

guied tog A9onbed 2¢ Jtuseoua x¢ hetinpes ed hivey cade weow 

_pt bbuetsowt royem 26h) yteek 08 of AS merk Re akt gah: te 

<dmelioqgs,. -baoda, smey, axon odd meoin sued elinmiteqga 0d 

qxteeniags, ytig. odd wodl wth ob at begehtiwirg: aewed to yan : 

« Batigaghes om, ott efelyuoe ine baada, og tuellogqs: decid 

a8 drogex,.4 expe, be cove AooL, bivor ert dotdm,.,paxtme ae 

Baw: qoidneggua. edT,. «tcemtachis.eldediope: te. ee babiegets od 

Bed .wideotme. gi <tond gaitees sit ..esitisq fia gs ot beoxrgi : e 

_ sem. Xpoubed .& 0% Liew al: athrow odd) widiw bobeesorg om rf 

rot mieto «, boLit, el » steel 88.46 S oR Lfow mi: hrs, teek, 7 

«, #£0qe% @ shsm ¢}. guintmaxe teshs: teohigag, paid bi 

me tzow, sitxe odd. et qdho exit poo MP. BLONgi te Seomgan said 

“Hh trelleage bre siale edd coy ot RemtLoob: yt te: mes 

oF Jouoe, Ietooga, & gninisinoe. woisetelooh eo gekter tas 
ddiw atavoo, moomoo. edt bell? retel-al »helid. anw ousads La 

(edt .»migio. to, degehitse ae atin, sedtexzods mov ‘era: damons 



























and appellee was granted leave to file an affidavit of merits 
Fine same was filed. The cause was tried before a jury and a verdict 
; returned in favor of appellee. Judgment was entered in bar and this 
. followed. 

We think there was no abuse of the court's discretion in refusing 
strike the plea and to enter judgment as by default. (Stafford v. 

lis £20 Ill. App. 22.) The motion came too lete; it shoulda have 
Dinpte earlier if appellant intended to rely on it. It is urged 

_the affidavit is insufficient in thet it alleged conclusions, was 
frocel and did not specify the neture of the defense to be relied 
"the substance of it is, that if any such labor was done or material 
nished, it was furnished at appellant's own suggestion and request 

7 &@ eontrsct for the digging of certain wells at an agreed price 
foot, which agreed price appellee has paid in full, and that there 
‘no extras contracted for by appellees The defendant need not state 
evidence but only the ultimate facts which will give notice of 

nature of the defense. (Firestone Tire Co. v. Ginsburg 285 Ill. 132; 
leon v. Rose Hiff Cemetery 291 id. 416.) We therefore think the 
lavit is sufficient. 

‘Appellant is of the opinion that the slleged extra work and material 
‘Outside the contrect and not specified in it, and that he can recover 
t value as fixed by the evidence; but according to our view the 

Wes not outside of the contract but was contemplated by it, and 

ery, if any, must be had under it. The specifications @id not 

it ly state the depth to which the contractor would be required to 
Evench bedrock, although it is evidenct that the parties thought 

mld be reached at a depth of from 25 to BO ft.; nevertheless, 
ontingency of greater depth was spevifically provided for. 

After the slleged extra work was finished, appellant submitted 

i11 for it end the engineer made a full report giving his findings 
xing the amount due appellent. Whether or not that action was the 


(of the agreement reached at the conference above mentioned ig 


le consequence because the express terms of the contract provide 


4 . 


> estimated quantities of work to be done and materials to be 


at + 


oid Bat) ESAS 


aud bas ad st botedas asy ieee pes Pg rovst ek 


av “prottede 


fie yeh Aree es ho 
eee Be ie ek 


oved bivore oy yedal cot emso pay gy ‘ (38 Page 
‘boat at tI att co “ylex ot pebaodal ielinaes ts settee 66 
a8n no Lesrfonoo bogeiis “he font nt tuotoittwent at tirobitte 
better ‘ed of oansteb odd to omwiten aud vttoeds gee Hryrey 
ES. ae Pa ee ae 


sizeten To en0b Baw neds ‘Sowa we 3 dedé ms roe te yscanjesle asia 


iar reaie 


taoupor ree no itesasve awe a"taalfoqge te ‘bode laws ine 4 ber 
ft LAT oe so 
eolta booms ne ts allow ntedre0 ‘to gataatb ould rot tositinoo 
es us fet neal as Soe 
ered? Sout bag Lio at Sine eed eolfeqas eolrg beozgs soidw TO 
S Sees aber eae 
tate tom Boon tnebueted oat eel Toage “i s 0% betosténe re { 
fi, Ps eet Ge ae is Behe 
- to sotvon ovia iLtw fo iatw aon? etamttin oad y fo pat porns 
Gag ek ees ee aaa 
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. on ubint yee <a eye arabomaaiee maaip 
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ie 8d ST a 
evooet 1189 od tadd bas dt nt beitiooss ton ‘baa FostTn0o edt abiea 
wad a Deere 
edt woty 00 of galbtoovs | dud jeonebive orld ye bextt big 
ieee HPSS Rees 
Fe bas tt vd bedelqnoinos aaw aud soardaoo edt to ebfetwe ton 


F Etenre Sok ane Seemann: SI 


tox bib | anottsettivega | edt tt ‘sebas bad ed temm ie 


Hye Be Paty rote Be 


“ddigurods goltseg oad ‘tadt ‘Yonebive al tt rt sguost ta er rr 288 
tee bee tay alte pet Bee; 


yeacLedézeven jit 0 oF oe aor? to daqes s ts bedeser od 
eeLomh ee et ee eae 
rot bebivoxg. itsoitteocs Baw _ ddqeb Peleytnonts Pip youe 
: med Sie ie € eR ey, ie De \ Pa 25 
best indze tasifeqie boda inte asw dtow aioe hegelia eit 
es : i, MONE Soe: BOC Dee ape 
agnibalt etd. gaivis droge, Lint 8 sbhsm cooit 8 elt og 
SIRES GE SS 98 tes wee play, cere 
edd as¥ nottos todd tou ‘ro rontostiy panel secs ® euh trvoms od 
“ J A LS SRA Sa Cast le. esa. ihe REE ey 
of at bono iinom eveds, gone totno9 edt pV rorme age tnemectgs 
; Lek ORS AES ee eee 3 


3 $ % : edt 6 
v coe test inge. oud o amzed asotcxe, lads: 


































ished are approximate mm only and that the basis for payment to 
ientrector shall be the actual amount of work done and material fur- 
oa. Where s contract requires the engineer to estimate the amount 
and to fix the price and further provides that his report es 
those items shall be final, his decision is conclusive on all parties 
th -absenee of fraud or mistake. (Barbee v. Findlay 221 Ill. 251: 
bees I. & M. Canal 5 Gil. 526; Korf v. Iwill 70 Ill. 420.) Under 

) contrect in this case either party might file written objections 

' decision of the engineer and submit the question to arbitration. 
ee did not avail itself of this provision and is therefore 

luded by the decision of the engineer, there watias no evidence of 

@ or mistake. 

We do not think the clause in the contract providing that the 
Pactor shell bear at his own expense, all loss or damages arising 

of unforseen cireumstances or some unusual obstructions encountered 
12 prosecution of the work applies or was meant to apply to the 

ers in dispute. On the contrary, it was foreseen that the depth 
Sirock was uncertain and the contract so indicates. It specifically 
ides that no work shall be considered extra work unless ordered in 
ing by the consulting engineer and endorsed by the Superintendent 
ater Worké with the agreed price specified in the order, unless 
price was otherwise determined by the contract, still, appellee 

sted on the work in question being done and was aware of the under- 
ding with the contrector that he would submit a bill for such work 
thet the engineer would ldok over the figures and report what he 

t would be an equitable adjustment. Under the circumstances, the 


lirement that the order for extra work shell be in writing was tS ae 
7% 


(Hart v. Carsley Manufecturing Co. 116 Ill. App. 159; Rail- 
Go, v. Moran 187 Ill. 324; Stubbings Co. v. World's Columbian 


ei 


sition Go. 110 Ill. App. 210; City of Elgin v. Joslyn 36 ia. 20% 1 i 


fe 
Le se ‘of the contract relating to the shiakep ay, or eurixicee 


applies to the drift above bedrock. It is evident that the 
strata meant to apply only to the strate of which the 


a eal 


vag La £0 svtestonos ‘ed acters ehe: gh od tteda a 
ae Ee BOE 


ras ft ‘T8 vstbart pe eoduaf) soxietaim 70 bust to ‘8 
mebnu (5082 .£IT oF fist iv ‘trex 7288 as: a “Eanad 6X 


aneitostdo eatdion. elit tagim wrsy routte ‘azo app 
noltésiidxe ot no Laesp ae i tad bas reentgae ‘ont +a Hele 
Pes ‘etoterodt at bas no ietvors anid ‘to tieadt ‘Lista dea OO Oa 
to soneb ive On ppl g exeid .zwentgne ‘edd to Yo neisioos ead yd 


a. 
ies ox > f 2 ; ot 5. AP ~ ys Nd & a Ast 


age _soaetabo 
aa ees = SOAS SO 


ish add tect “gatbivera: tosxdnce ‘ond at ‘exste fo ad aan a, 


atom ine @ 15S. 

ee et yface of inpee com ro “asttaae “Trow pa Se notdvoegot 

ak? ee a, ele ee} SEE SSR BS ks : 
Loo fre ) test ‘neaeenek aes. at “ Vissineo edd m0 Sie 
| ; Sat eases She aif ks oie 
“aetsotbnt oa ‘fosténop edt bre cree ee eer 


hao ee por} of 
Bee ius Cgehae edt hi polttoere soy boetge oud it tw 
oa nae fs 


eeliogas fbtta toartnos ond we bontmzeten eeiwrestto. sew oolt 
Pith te & Lyte ag 


ee eit re sa ae atiw sa. 

is (Oi. Bad Beate ee 
ot dase txoqot ‘bas aomiy ft ont zove foot Bisrow pPaguarni Ay 

 Ceeosedamvorts ent zat “4 

“pay 3 att ine nk od Liede izow eek et oh 3 nei tela 
“Eis [@8f .qqa It aff 200 “pubeurt aston verazad +¥ $t6H) 
& xebden£0d a"birow .¥ tod agetddte 388 Mo NE soxox -v 
ob as ‘efact .¥ aig if %e “qtea. 1@LS aGek: tT OLE . a 

She teat <0 abomlot dt, ond o¢ ai cae 
bagi tnobive "al aa siootbed erode ere be 































Sete thickness is given in figures. 
ppellant insists that it was error to refuse his second offered 
tion. With this we do not agree. It stated an abstract pro- 
or of law anc as drawn could afford the jury no assistance. Nor 
, fina any error in the modification of appellant's 10th instructione 
ss llee’ gs llth given instruction told the jury thet pleintiff's 

; 4, while not binding on the city, must be considered by the 
to rether with all the other evidence in the case. Plaintiff's 
it 4 is the report made by the engineer es to the amount he found 
€ contractor on account of the extra work and material furnished. 
we determined that under the contract tis report was made by 
ngineer in the line of his duty as ‘specified in the contract and 
it ie binding on appellee in the absence of fraud or mistake. 
Beeesedicial error to give the instruction. Appellant's 4th 
iustruction correctly stated the law applicable to this 
to | and should heve been given. 
pelliee's first siven justruetion refers to the contract as 
*f's Exhibit 4, while the correct number of the exhibit is nin, 
ef the fact that the engineer's report and poeonmendation was 
Mt 4 the instruction was misleading and should not have been 
It also assumed there had been an attempt made to change the 
There ig no evidence in the record to justify this assumption 
2 that reason also it was error to give it. 
We think the judgment of the circuit court is not in harmony with 


aw and the facts of the ease and it is accordingly reversed and 


Reversed and remanded. 


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ep. 
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OF ILLINOIS, ae 
SECOND DISTRICT iret 


he said Appellate Court in the above entitled cause, of record in my office. 


In Testimony Whereof, I hereunto set my hand and affix the seal of 


said Appellate Court, at Ottawa, Ge Oe aA as of 


I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 





FO a ae PT AR OY ey ae 


2iKT Biron? bi 


p 


vaitiaa 


Ech AR 
My NO tik 
fue ey nw 
Ri s 


ant 


\ ae ‘Prety: 5 . 
fh vif ar kerstyh + 
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of our Lord/one thousand nine hundred and twenty-seven, 


within and for the Seeond District of the State of Illinois: 


gsent—-The Hon. THOMAS M. JETT, Presiding Justice. 
7 Hon. NORMAN L. JONES, Justice. 

Hon. AUGUSTUS A. PARTLOW, Justice. 
JUSTUS L. JOHNSON, Clerk. | . 


FLOYD S. CLARK, Sheriff. 








6) A } eS 











’ May 31, 1927 
BE IT REMEMBERED, that afterwards, to-wit: On/the Opinion of 


the Court was filed in the Clerk's office of said 


in the words and figures following, to-wit: 


eee 


—— 








é 


ar 



































30 
Jd. Galbraith, Administrator 
is non of the estate of Michael 
man, deceased, 
Appellee, Appeal from the 
Cireuit Court of 

Ve Peoria, County. 

e Harrigan, 
Appellant 


This is an appesl from the circuit court of Peoria County to 

a judgment overruling objections filed by Maggie Harrigan to 
partial and final reports of appellee, Ernest J. Galbraith, 
Bictrator de ponis non of the estate of Michael Harrigan, deceased, 
approving said final report and for distribution. Appellee, as 

le administrator of Peoria County, was appointed administrator de 
Be non of decedent's estate in October 1918 upon the removal of 


2 


executor for failure to inventory assets. The right of appellee ~ 
rve as such administrator de bonis non was contested thromgh 

7: ive appeals to the circuit court end to this court, but his 
intent was held to be regular and about the middle of the year 

he entered upon his duties. His firgt report and account was 

d in the probate court on December 7, 1920 showing the receipt of 
in funds in July of that year, out of which he paid the 1918 and 
taxes against the estate and epplied $3505.83 on a elaim of 

2 County for back personal taxes against the estate, leaving $500 
S hands which he retained for the payment of the 1920 taxes. 

) Mey 25, 1912, the county filed a claim for back taxes for the 
, 1908 to 1911, both inclusive, against this estate in the sum of 
053; on the back of which claim there appears the following: - 

1: allowed by the Court as of the 7th class, this 25th day of Mche 
1913, A.-M. Otman, Judge". Wo other entry of such allowance was 
On February 7, 1924, appellee filed his finel report in the 

be court showing the receipt of $3965.40 on » claim due the estate, 


is 


00 as the balance on hand from the former report, msking a total 


= 














totatiatnimbs . witistd ted : 
feado il to edstee edt to non 
beaso0ed 4f 
edt mort Iseqqd ,eelfloeqqa 
to ¢gusod ¢isorid 
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66 totstieinimbs SBetntoqaqs aaw ,ytnvod sirosZ to rotstteinimbs 9 
to [avomoxr edt soqy 8Lef redotoe0 at ststee a'imebeosb to nom 8 


° gelfeqgs to tigit off .atesas yxotuevai of etulisi rot sotmoexe 


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ee 


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8 


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asw dovooos bas droqer taétit ai .eettub aid soquy beretas od 


Re PRT 


to dqteset oft gniwode OSL .Y tedmeoed no tivo etsdorq edd at & 
bus 8£@f edt bisq ed dotdw to tre ,tsey sadt to viol ot abavt ni gi 


* 


to mtafo s go &8.8088$ boilgqgs bus etstee edt tentsgs aexed 












008% anivael ,etstae oft tantess aexst Isnoexeq Hosd rot vinwod. sf 
-aoxet OS@L edt to tuemysq edt tot bemtstex od dotdw abusd 

edt tot aexss aosd tot mislo « beltt ysasoo edd ,Sfel oS ysl 
to mya oft of etateo atdt tanisga ,svieslont dtod LLeL oF 804 
~:guiwollot eit atseqge otedt mislo dotdw to dosd eft mo 4 

soli to ysb d#@S atdd ,eaalo Avy edt to es tumod edt yd bowolls 
asw sonswolfe dose te yténe redto of. ."egbst Hut oa, 8.8L 
eit nt troqer Lentt eid belit eeLloqgs ,bS@L ,¥ “qissrde 20 
pee edt osb mislo s mo O&.8aes$ ko tqtooex ordi aaa 




























63.40. Out of this amount he took credit for items totelling 

: 32.67, leaving a balance of °“3250.73. He asked that this balance 
tributed pro rata upon certain unpaid claims including a belsnee 
89.23 due on the said claim of Peoria County. Appellant and 
topher Harrigan, s« brother of decedent, filed separate objections 
ne reports and on the hearing, the probate court sustained an 
ection of appellant to the omission of her claim for $459 and 

fest and dismissed all other objections. It found there was due to 
ie County $3689.23; to Maggie Harrigan $717.83 end to other 

ests $148.26 and ordered distribution pro rata. Appellant 

aied to the circuit court where an order was entered thet appellee 
t pay the costs of administration including attorney fees; that 
ext pay appellant's said claim which with interest amounted to 

85 and then pay the balance of the claims pro rata. 

‘The contention of appellant that the memorandum made by the 

B s court on the bakk of the claim of Peoria County for back 

5 did not amount to a judgment would have great weight were it 

f the fact that appellant is not in a position to urge it. fhe 
plea judgment of allowance of this claim has twice been before the 
i Court (Harrigan v. People 305 Ill. 242; People v. Harrigan 
171.) In the last mentioned case it is stated that the order 

€ circuit court dismissing e certain appeal amounted to en affirma- 
the order of the probate court allowing the claim of the county. 
1 nt is now estopped to deny the validity of the judgment of 

jance and of the interest charge. If a judgment existed, it of 

se bore interest. Estoppels of record, to the extent that they 

1 rties, will also bind their privies. (21 C.J. 1067.) Appellant 
privy to those proceedings. 

He contention that the probate court was without jurisdiction to 
‘the claim for personsl taxes assessed against the deceased 

s his lifetime cannot be sustained. This phase of the case was 
tigated in People v. Harrigan 294 Ill. 171 and in Herrigan v. 
‘Tll. 242. Whether the probate court hed jurisdiction to 


aA 


°! Seadoo fae 88. ¥ivé nagiviah Banaue és! Pee Yeasee yee 
‘gneiteqqd” i8s8e°Ote a6 Ptddiede th hexsbad bad Ss reach 


98 * BF Bedacome #adteFn? ati Horio atere-Btae reozuteneaan 
mC [8 “latde ong embers Sad Yo Sole tad oad Gag "HEMT E 
“ “we ind — ebamt ruinexromem otf wate pBieaprcine tit iene 


— sae trodxe’ ont are Stover a eal 0nd Ba ‘ 
ene” shine 1G0 HOY Seetvrtd shed?! ‘pire date cei 4 
ate Te yah Aves alat gale adgv edt “Ho “ingifittescorty Wadk Fy 
: x og id aii dred fw pacts! sHirsbscor ‘ane 































the claim for taxes and whether there was a judgment entered are 
tions that cannot be raiged on this appeal. In our opinion, all 
ers pertaining to the judgment of the probate court on this claim 
been determined by the Supreme Court snd are res adjudicata. 

ert is claimed by appellant that no credit for the taxes paid for 
years 1918 end 1919 should have been allowed; that there was no 

pe y in the administrator's hands belonging to the estate during 

; time; that such taxes were excessive and payment was never suthor- 
7 y the probate court; and that it was appellee's duty to protect. 
s te egainst their payment. An administrator is regarded by 

ute in matters of taxation as the legél owner and possessor of his 
dent's personal property after his appointment and until the property 
istributed, and is therefore personally responsible for the taxes. 
ple v. Ballans, 294 Ill. 551; People v. Hibernian Bank Association, 
ia. 522.) He is entitled to be reimbursed for such texes paid by 
(Sec. 271, Chap. 120 Revised Statutes.) Since the title to per- 
13 and right of possession vests in the personel representative, 

p legally accruing thereon efter the decedent's death and before 

rit ution is made, are assessed to and should be paid by the executor 
iministrator, without presentetion to or allowance by the probate 

; end when paid he will be entitled to credit therefor in his 

’ as expense of administration. (Woerner on Administration 2nd 
Btar page 691.) The money which he finslly received in 1924 and 
inted for in his final report was derived from a promissory note 

ring to his decedent end was e taxable asset of the estate, not- 
tending it had been the subject matter of litigation for a number 


seers. In view of the situation disclosed in Heinrich v. Harrigen, 


iM 
gj 


ll. 170 we cannot say that the taxes were excessive or that the 
| erred in allowing credit for their payment. 

ppellant's having offered no evidence in the circuit court to 

in her objection to the allowance of attorney's fees precludes 


eration of the objection in this court. 


ors | bezetue. taoms5st. 8 saw pred, xestase neat 2 
ite totmige tio aT | 
mtafo aldt ao tx009 eaties, ‘ode ra pots at go oat i 


a3 seteotbytbe. ger; ete, baa Jrsr09 ometqua , ead ‘yd Aes 


e On agw oxedd todd jbowolls aod ove, Asets eger. cd 
|, gubust eistae edd at gntgnolod abosd a! Foteqia Letahe. wet H . 
odds Teveu aBw, Sremysd | has eviaaeoxe | oxen: eexat demnstedd ‘ 
Joovora o¢ tab ateellogqs esw dt tedd base jtas0e etsdorg, 

me xd bobragox ak tofsttelnimbs mA _,tnomyeq tied dantegs 

| te Teagegeod bas tomwe. {fssof edd, ai disiniials ane at 


wi 


é stag sexsi pro ae ponents at of pass zene uae 


Teg ot otis edt oonig (.aetutste beaivel OSf .qadd 
oviteduonexaer fsnoateg oats al aleev ao tagoesog ss 3 i 


bre acer, at pevieast “a Ligae, est. sot 80 Pied 3 


ia tom, otetee, out to , tonne efdexe?: 8 : asw | ba, Srobsaeh ab 
7 odonuscr 3 sot noifegiti£ to, redsem doetdma edt need fated 2 
| ,Mogivrel -v doltmieH ot beeeloath nottentie. edt +o 

_ oii, tat x0, eviggenxe exw nexad ated cel 























wo years and six months without good cause shown. Appellee 

his finel report within three days after he received the bulk of 
the money which came into his hands. The estate was involved in 
tigation for years and because of it he was not in a position during 
REEL bo wake 5 final report. Under the facts in this case appellee 
not chargeable with interest. 

Pin his final report, appellee took credit for $77.28 as a payment 
yon a claim of Sucher, McNemar & Moore. The claim was settled 
thdrewn subsequent to the filing of the report snd on the hearing 
Llee admitted the fact, but through an oversight the item was not 
kon from the report. There is no controversy about it and the 

ak would have been rec\tified hed it not been overlooked. The 

3 of this appeal should not be taxed against appellee on account 
uch oversight. 


“3eN 


: ppellee as state's skienae et Seavie County represented the county 
eople v. Harrigan 305 Ill. 242, and it is charged that he acted in 
ble capacity amounting to fraud. xme An exsmination of that case 
‘not reveal anything justifying such charge. 

1 1 other errors assigned have not been argued and are therefore 
Rderea as waived. We are of the opinion that the order of the 

: court should be affirmed, except as to the Sucher, McNemar & 

e iten, and that item is hereby excluded from the report and the order 
sted so as not to include it; and the administrator is ordered to 
‘distribution in accordance with the views herein expressed. 


Judgment corrected and affirmed. 


nen 


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ot anI de ood Sg wm Lite 


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i ate a af the te ae 


ois Gide fs ohio ED Oh pagel 








-3 
e 
> 


Sar ae 


E OF ILLINOIS, }.. 


eo) OD DISTRICT. I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in 


and for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, 
he teby certify that the foregoing is a true copy of the 


— YZ 


h e said Appellate Court in the aboVe entitled cause, of record in my office. 
: In Testimony Whereof, I hereunto set my hand and affix the seal of 
said Appellate Court, at Ottawa, this. day of 


in the year of our Lord one thousand 





Noirs cps Wg adage Al NY Te a 


hi Sve) etaliaqg dé edt Jo drei 
Atoeted} Ieo® ban ebroaast 


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» 


_99ifto vat nt byoost 


We 


oft sao bio a0 10 4h 


5 











att 


Gen. No. 8012. Agenda 37 
October Term, 1926 
The People of the State of Illinois, Defendants in 
Error. i 
VS. 
Lynn Beckham, Plaintiff in Error. 

Hrror to the Cireuit Court of Champaign County 
CROW, P. J. 

Defendant was convicted in the Cireuit Court of 
Champaign County on an indictment of two counts 
charging him with selling intoxicating liquor in vio- 
Intion of the Illinois Prohibition Act. On trial by jury 
he was found guilty on both counts. After the motion 
Yor new trial he was sentenced to confinement in the 
county jail for ninety days on each count, the sen- 
tenees to run consecutively. He was also fined $250) 
cn each count and to pay the costs. It was further 
ordered by the court, that if, at the expiration of the 
jail sentence under the second count the fines and 


_ costs should not be paid, that defendant should work 


out the fines and costs at the rate of $1.50 per day in 
ithe county workhouse until said fines and costs are 
discharged. Defendant prosecutes a writ of error to 
»everse the judgment, assigning twenty-six errors. 
The evidence as abstracted has been read care- 


_ fully. If the jury believed the uncontradicted wit- 


uesses who testified for the prosecution there is no 
room to doubt that defendant was guilty in manner 
und form as charged in the indictment. No useful pur- 
pose would be subserved by reviewing it. Seven wit- 
nesses testified for the prosecution. None testified for 
the defense—not even the defendant. So far as ob- 
“cetions were valid the court did not err with regard 
io them. Indeed it seems that defendant did not suf- 
ier and was not prejudiced by any of the court’s rul- 
mes. They seem eminently fair. 
Me Page 1 


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It is objected that the court did not require a 
~yvritten bill of particulars. A. motion was made ask- 
ing for one. The court said he had not been ruling 
the state’s attorney to furnish such a bill, but directed 
iim to furnish to defendant ‘‘the data that is, who the 
sale was made to, and when, put it in the record here 
or hand it to counsel. Can you do that by 9 o’elock 
Monday morning?’’ Mr. Hodson: ‘‘I think so.’’? The 
court: ‘‘All right; that answers the purpose.’’ One 
ef counsel for defendant objected to going to trial 
when the case was called on May 20 and made oral 
statement under oath as to the bill in particulars. He 
said he had not received it in writing. He was ver- 
tally informed by the state’s attorney of all he could 
require. It was within the discretion of the court in 
this case to grant a bill of particulars. If one was re- 
quired to be furnished in a proper ease, it should per- 
naps be in writing. But defendant got all the infor 
mation he was entitled to and the assignment of er- 
vor is without merit. 

It is objected that the corpus delicti was not 
proved beyond a reasonable doubt. The jury heard 
the evidence, saw the witnesses, and by their verdict, 
under the instructions of the court, indicated in un- 
mistakable fashion they believed beyond a reasonable 
'oubt that defendant sold intoxicating liquor as 
wiarged. The evidence of guilt is so convineing that 
it is believed no one could entertain any doubt as to 
‘Nis euilt. But it is urged against the verdict that 
the prosecution did not establish that the stuff sold 
-yas intoxicating liquor; that intoxicating liquor has 
a legal definition; that the word ‘‘beverage’’ is used 
in its ordinary sense, meaning liquid for drinking. 
All of that is true. But a legal definition of intoxi- 
«ating liquor is fixed by statute. Anyone selling any 
Hquid for beverage, that is for drinking purposes, 
with an alcoholic content in excess of that provided 
by the General Assembly is guilty of selling intoxi- 
eating liquor. It is further urged that whether a liq- 


nid is fit 
Page 2 








for beverage purposes depends upon whether 
i not it is agreeable to taste and is free from poison 
cr other deleterious substances making it unsaie to 
take into the human stomach, as a drink. 

That contention proves too much and is therefore 
:allacious. It involves a double standard. A respeci- 
zxble portion of the community believes that the best 
‘“tiquor’’ that ever came from a still or brew Louse 
*:ust be excluded under counsel’s definition of fitness. 
Another class makes no inquiry as to content of poison 
and inquires only where it can be obtained. But with 
the statutory definition applied if it would intox- 
cate, it is of course intoxicating in fact. If it possesses 
zn excess of the alcoholic content, to sell it is a vio- 
‘ation of the statute. The first description may be 
iestified to by anyone who has drunk intoxicating liq- 
nor: the second class may be established only by 
chemical analysis. From the evidence in this ease as 
:¢ the manner im which defendant went aboui his 
imsmess, the night time, in out-oi-the-way places, the 
roung man who bought it, regardless of everything 
«ise there is and ean be ro doubt in the mind of a 
reasonable person that it was intoxicating and that 
it Was bought and sold for that purpose. As long as 
the law is unrepealed the courts have no authority to 
whittle it away by construction. 

Error is assigned that the state’s attorney made 
anproper and prejudicial and inflammatory remarks 
calculated to arouse the passion and prejudice of the 
jary against the defendant. While the argument for 
ine prosecution is set out in the abstract, that for 
-lefendznt is not. Counsel did not observe strictly the 
rales governing the arguments of causes before courts 
wnd juries. The only purpose of argument is to lay 
before the jury the evidence so as to show that it es- 
tublishes the conclusion contended for, In 

Page 3 





that con- 
nection the law applicable may be and is proper to be 
-tated. Vituperation is not argument and is always 
out of place in the trial of any sort of case. If the evi- 
dence in this case left any doubt of guilt in the mind 
of the reviewing court, the remarks excepted to might 
result in reversal. But under the evidence no such 
result could be applied without beimg hypercritical. 
in view of the conclusive character of the case against 
defendant, if he is hurt it is the result of his viola- 
tion of the statute and for no beneficient ulterior pur- 
pose. 

It is said the Prohibition Act provides punish- 
ment for its violation and that the sentence to work 
at $1.50 per day until the fine and costs are discharged 
ig unauthorized. The punishment for violation of the 
act may be by fine and imprisonment. The Criminal 
Code provides: ‘‘That any person convicted of petty 
luxeeny or any misdemeanor punishable under the laws 
vt this state, in whole or in part by fine may be re- 
quired by the order of the court of record in which 
the conviction is had, to work out such fine and all 
costs, in the workhouse of the city, town, or country, 
oy in the streets and alleys of any city or town, or on 
ihe public roads in the county, under the proper per- 
son in charge of such workhouse, streets, alleys or 
publie roads at the rate of one dollar and fifty one- 
‘vandredths dollars per day for each day’s work.’’ 
(fahill, Chap .38 See. 384. 

This section is all the comment that is necessary 
1 reply to defendant’s contention. It has been ap- 
plied many times and the court did not err in apply- 
iag it here. The instructions have been examined in 
the light of the criticism leveled against them and 
they afford no ground for reversal. Finding no re- 
versable error in the record the judgement of the Cir- 
cuit Court is affirmed. 

Affirmed. 
Page 4 
















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Gen. No. 8032 Agenda 18 


Iva D. Kelsheimer, Appellant 
vs. 
Dessa Kelsheimer, Appellee 
Appeal from Champaign 
NIEHAUS, J. 

In this case the appellant Ira D. Kelsheimer filed 
a bill for divorce in the Cireuit Court of Champaign 
County, charging the appellee with willful desertion 
for a period of more than two years prior to the filing 
of the bill of complaint. 

The appellee filed an answer denying the charge; 
eid thereupon the case proceeded to trial. 

At the close of all the evidence adduced by the 
appellant, to prove the charge made, the court direct- 
ed the jury to return a verdict finding the appellee 
not guilty; and the jury returned a verdict accord- 
ingly; whereupon the court dismissed. the bill of com- 
plaint for want of equity. This appeal is prosecuted 
from the order of the court dismissing the bill; and 
error is assigned on the action of the court in direct- 
ing the verdict. 

The evidence in the record however clearly justi- 
fied the court in directing the verdict. It appears from 
the evidence that while the parties lived separate 
end apart nearly all the time, and for more than two 

Page 1 





years prior to the filing of the bill, the separations of 
the parties, one from the other, was either mutually 
acquiesced in by them, or was the result of quarrels 
or disagreements concerning their marital relations 
and their respective conjugal rights and obligations; 
but the evidence does not show that the appellee will- 
fully deserted the appellant as charged in the bill of 
complaint . 

We are of opinion therefore, that the court prop- 
erly directed a verdict of not guilty, and the order 
dismissing the bill is affirmed. 

Affirmed . 
Page 2 















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Genera: No. 8048 Agenda 27 


Maude A. Lindsey, Appellee. 
VS. 
John H, Lindsey, Appellant, 
Appeal from City Court Canton, Fulton County. 
NIEHAUS, J. 

In this case an appeal is prosecuted by the appel- 
lant, John H. Lindsey, from an order of the city court 
or Canton, in a separate maintenance proceeding to 
procure support for the appellant’s wife, Maude A. 
Lindsey. pendente lite. The court’s order requires 
the avpellant to pay $12.50 per week; also requires 
{he apvellant to pay $50.00 solicitor’s fees and $25.00 
for suit money. 

It is contended on appeal that the allowance of 
12.50 per week for the temporary support of appel- 
lee is contrary to the facts and not warranted by the 
law, and because the support of the minor child is in- 
cluded in the order; also. that there is no warrant in 
the law of this kind of proceeding for the allowances 
made. 

The bill of complaint field by the appellee charges 
that her husband the appellant, has been guilty of 
adultery; and that he has wilfully deserted and 
abandoned her; and that she is living. separate and 
apart ‘rom her husband without her fault; and that 
slie is without means of support for herself and the 
‘ninor child of the parties; and without money to 
eroseeate her suit. 

It is clear, from the averments of the bill that the 
appellee is in need of money and means for her main- 
tenance and support during the pendency of her suit, 
and for solicitor’s fees and suit money to enable her 
fo properly prosecute her suit. The statute provides 
im Sec. 1 of the Act concerning separate maintenance, 
{nat an allowance may be made to enable a wife to 
prosecute her suit, as in suits for divorce. Chap. 68, 
Sec. 22 Cahill’s Revised Statutes, Sec. 15 of the Di- 
voree Avt provides, that: 

Page 1 


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“seule ad aft de uses ne 





‘Tn all cases of divoree. the 
court may require the husband to pay to the wife or 
vav iufo court for her use during the pendency of the 
-uit such sum or sums of money as may enable her to 
~rints in or defend the suit; and in every suit for a 
sivoree the wife. when it is just and equitable, will 
be eni:tled to alimony during the pendency of the 
suit.’’ It is true that the appellant denies the allega- 
tions of the bill of the complaint; but the merits of 
the appellee’s cause of action are not a subject of 
inquiry and cannot be determined on a motion or peti- 
ton faz temporary alimony, soliciter’s fees, or suit 
money, to enable her to prosecute her suit. Harding 
v. Harding 144 Ill. 588: Cooper v. Cooper 185 Ill. . 
165: Reisschneider v. Reisschneider 241 Ill. 92; Nel- 
Son v Nelson 219 Ill. App. 571. The appellant con- 
tends. that it was error to include the minor child of 
tne parties in the provision for support of the wife. 
Vechriecally there may be some ground for the appel- 
taut’s contention; under the statute, however, if the 
cusband abandons his wife, as alleged in the bill of 
.omplaint. the wife is entitled to the custody of the 
runor 2hildren unless a court of competent jurisdic- 
400, "on application for that purpose, shall other- 
wise «rect. Chap. 68, See. 16, Cahill’s Revised Stat- 
utes; but it muts also be pointed out, that in this case 
the child was left by the appellant in the eustody of 

Jus ws'e. who was thereby put in position where she 
had to look after the support of the child for which 
ine anvellant was legally liable; and that under these 
circumstanees the support of the child could only be 
effeetuated through the mother; and by an allowance 
+o th: mother; and it clearly appears also that the 
uppellant recognized this fact by having made some 
payments to the mother for that purpose. The sup- 
port oy the child in this situation is necessarily bound 
ap with, and has become a part of the provision to be 
meade for the support of the mother during the pen- 
leney cf the suit; Low vs. Low, 133 Ill. App. 613. 
We are therefore of the opinion that the court did not 
err in that feature of the ease. Moreover the amount 
allowed for support and maintenance is not more than 
shoul.} have been allowed for the support and main- 
.enance of the appellee alone, taking into considera- 
tion the earnings and admitted net income of the 
awpel'ant, as disclosed by the record. 

Page 2 

























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i) jiu alt oo cn, La) ail ok nk 


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valid haben hi ite Bic 






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jas 0, ec “ pres Sain ‘i 


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We find no reversible error in the order, and for 
the reasons stated, the order is affirmed. 


Affirmed. 
Page 3 


ay ats 





Gen. No. 8026 Agenda No. 14 
Oetober Term, 1926 
W. J. Lateer, Appellee, 
vs. 
Jennie C. Neil, et al, Appellants. 
Appeal from the Circuit Court of Shelby Countv. 
SHURTLEFF, J. 

This is an appeal from the order of the Cireuit 
Court of Shelby County, denying appellants’ motion 
to open a judgment entered in vacation in said court 
upon June 1, 1926, in favor of appellee and against 
appellants and asking leave to plead and to stay ex- 
ecution. It appears from the transcript of the record 
presented to this court that after the entry of said 
judgement on August 2, 1926, appellants presented 
their said motion and submitted certain affidavits in 
support thereof, and that on August 13th the court 
entered a final order denying said motion, granting 
an appeal, and entered an order:-that a bill of excep- 
tions be presented within forty-five days, but no bill 
of exceptions was ever presented or approved, and 
none appears in the record. There is, therefore, 
nothing before this court other than the common 
law record. However meritorious appellants’ defense 
ruay be to the note in question, presented by the affi- 
Gavits accompanying said motion, the affidavits are 
uot before the court on this appeal and can only be 
made a part of the record by a bill of exceptions. 

In Peter Hand Brewing Co. v. Nauseda et al, 210 
Ji. App. 154, it was held: ‘‘The abstract, which is the 
pleading of the defendants, contains the affidavits 
vead upon the hearing of the motion to open the judg- 
ment. These have no place in the statutory record, 

Page 1 


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but belong in the bill of exceptions. As the latter doe- 
winent has been stricken we are not privileged to ex- 
amine or review these affidavits and consequently are 
not at liberty to decide their probative force, but must 
assume that the ruling of the trial judge on the mo- 
tion was correct and not in the condition of the rec- 
crd subject to challenge. Horn v. Neu, 63 Il. 539; 
Alward v. Harper, 253 Ill. 294; People v. Board of 
Review of Cook County, 263 Ill. 326. 

“‘In the condition of the record before us the 
jugment must be affirmed. Schwartz v. Brinks Chi- 
cago City Exp. Co., 198 Ill. App. 381.’’ 

To the same effect is ©. R. I. & P. Ry. Co. v. 
Town of Calumet 151 Ill. 515. 

Finding no error in the statutory or common law 
record, the judgment of the Cireuit Court of Shelby 


County is affirmed. 
Affirmed. 


Page 2 





Gen. No. 8096 Agenda No. 32 
October Term, A. D. 1926 
Columbia Weighine Machine Company, Appellant, 
v. 
Alvin, Henkel and Enno Henkel, Partners, ete., 
Appellees. 
Appeal from the Cireuit Court of Montgomery County 
SHURTLEFF, J. 

Appellant brought its suit in assumpsit in the 
Montgomery County Cireuit Court against appellees, 
to recover the contract price of one Columbia mirror 
weighing machine. The declaration contained a spec- 
ial count and the common counts. The special count 
alleged that appellees, partners, made and delivered 
to appellant the instrument sued upon, as follows: 

““You may ship us one Columbia Mirror Weigh- 

ing Machine. It is sold to us with the understand- 
ing that we may return to you at any time within 
thirty days from the date of arrival of the ma- 
chine, instead of paying the purchase price. Re- 
turn shipment to be made to above address, by 
freight. Should we not ship it back to you within 
thirty days from the date of its arrival, we will 
pay you the purchase price of one hundred and 
fifty dollars, fifteen dollars per month until paid, 
first payment to be made within forty days from 
date of the arrival of the machine. Should we be 
. two monthly payments in arrears at any time the 
entire unpaid balance of the purchase price shall 
become due, with attorneys fees amounting to 20 
per cent of the sum in default.’’ 
Page 1 






















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There was a plea of the general issue and de- 
fendants gave notice in writing that they would give 
in evidence on the trial that they did, within thirty 
days from the date of the arrival of the machine, de- 
liver the machine to the plaintiff, and that they would 
further give in evidence a breach of warranty, partial 
failure of consideration, that the said article did not 
comply with the warranty and that said machine was- 
defective, of poor material and would not weigh prop- 
erly, and was not fitted to do the work for which it 
was intended. 

There was a trial by jury and verdict and judg- 
ment for the defendants, appellees in this court, and 
appellant has brought the record to this court for re- 
view. 

Upon the trial, appellees, without objection, of- 
fered proofs tending to show that on December 20, 
1924, and within thirty days after the receipt of said 
machine, appellees instructed their drayman to take 
the machine and reship it to appellant, and that the 
machine was taken from appellees’ place of business 
on December 23 or 24, 1924, and billed by the drayman 
to appellant at New York, at the railway station on 
January 5, 1925, and that said machine was reship- 
ped, the delay being accounted for by the testimony, 
tending to show that on December 20 or 21, 1924, 
there was a violent sleet, wind and snow storm in 
that immediate vicinity and generally in that section, 
which blew down trees, limbs, poles and 'resulting 
that, for a considerable time thereafter, traffic upon 
the railroad and upon the streets of Nokomis, where 
appellees were located in business, was effectually 
blocked, and the storm is described in some of the 
testimony as being wunusualy severe and practically 
unheard of in that section. It was shown by some 
testimony, uncontradicted, that the machine was ship- 
ped as soon as it reasonably could be shipped after 
the storm, Appellant objected to none of this testi- 
mony but, in a spirited manner, 

Page 2 









énatls ‘ietbiw ih vou ‘tot tii inj at ine: 
“ate: orn pear 4e, LerwPhsns std ‘is adel AY 
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Haat abet is 


cross-examined the wit- 
nesses in an effort to minimize the effect of the storm. 
Appellant and appellees tried the case and offered in- 
structions, which were given to the jury, upon the 
theory that the issue was whether the reshipment of 
the machine was delayed by the act of God. The court 
instructed the jury on the part of the plaintiff, appel- 
lant: 

“‘Tf the jury believe from the evidence that the 
written agreement between the parties was that the 
defendants were not to keep the weighing machine in 
question, unless it suited them, and that they had the 
privilege of returning to the plaintiff if they did not 
want it, within thirty days from the date that they 
received it, that then the defendants were bound to 
return the machine within the thirty days, as provided 
in said, agreement, unless prevented by the act of God, 
or public safety or unavoidable accident, and if they 
did not do so the defendants will be held to have elec- 
ted to keep the machine and pay for it at the agreed 
price. ’?’ 

Appellees’ instructions were of a similar purport. 
No objection was made to any of this testimony until 
the close of all the testimony when appellant moved 
to exclude all of the testimony concerning the inability 
to return the machine on account of the inclemency of 
the weather on the ground it was not set up by spec- 
ial plea. This the court denied. Appellant now con- 
tends that he was taken by surprise at the introduc- 
tion of this testimony and that the inability to return 
the machine by reason of the act of God does not 
come within the purview of the pleadings in the ease 
and, therefore, appellant asks for a new trial. 

In Wheeler v. C. & W. 1. R. R. Co., 267 Ill. 
325, the court held: ‘‘Where both parties to a suit 
submit instructions declaring the rules of law applic- 
able to the facts proven and request the jury to re- 
turn their verdict in accordance with those rules of 
law as applied to the facts proven, neither party can 
be heard to complain that such facts were not within 
the scope of the allega- 

Page 3 






















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tions of the pleadings un- 
der which those facts were permitted to be proven. 
(Illinois Steel Co. v. Novak, 184 Ill. 501; Illinois Cen- 
tral Railroad Co. v. Latimer, 128 id. 163; Chicago & 
Alton Railroad Co. v. Harrington, 193 id. 9: Donk 
Bros. Coal Co. v. Stroetter, 229 id. 134.)”’ 

A new trial cannot be granted upon the ground 
stated. 

Appellant, in a motion for a new trial in the court 
below, presented an affidavit made by counsel for ap- 
pellant, presenting certain facts as to the weather in 
December, 1924, as newly discovered evidence, which, 
as stated in the affidavit, an observer of the weather 
conditions would swear to upon another trial as a 
witness. We have read the affidavit and it states mere- 
ly cumulative proof and conclusions. ‘‘There were 
no unusual conditions of weather in said county which 
were superhuman or in opposition to the act of man,’’ 
is net the statement of a fact but a mere conclusion: 
but the affidavit does state that there was a sleet 
storm on December 19, 1924. Appellant cannot claim 
to have been taken by surprise on the trial when he 
made no objection to the testimony and joined in the 
issue upon which the case was tried. 

No other errors are pointed out that wonld war- 
rant a reversal of the judgment and it is, therefore, 
affirmed. 

Affirmed. 
Page 4 













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General No. 8027 Agenda No. 15 
October Term, A. D. 1926 
Bloomington Auto Sales Company, et al, Appellees 
vs. 

Indemnity Company of America, a Corporation, 
Appellant 
Appeal from MeLean 

NIEHAUS, J. 

In this case the appellees, Walter Ritchie and J. 
E. Wyckoff, co-partners under the name of the 
Bloomington Auto Sales Company, filed a_ bill in 
equity to reform an insurance policy, known as a 
garage policy, which it is averred was issued to them 
as owners of a garage, to insure them, and each of 
them, against liability incurred by the driving of any 
car by them or by their workmen and employes, in 
connection with their garage business; or in conse- 
quence of the driving of any automobile owned by 
either one as an individual, when driven either by him- 
self, or by any member of the family. 

It is averred, that the policy inadvertently and 
by mutual mistake contains the word ‘‘corporation’’ 
instead of ‘‘co-partnership’’ in connection with the 
name Bloomington Auto Sales Company; and that the 
name of one of the partners, who was to be insured, 
namely, J. EH. Wyckoff, is not contained in the policy; 
but was inadvertently omitted; also, that the so called 
family rider, which was to be attached to the policy 
for the purpose of insuring the individual members 
of the firm and members of their families against lia- 
bility, was inadvertently omitted and not attached to 
the policy, by mistake. The bill prays, that the policy 
of insurance in question be corrected, so that the 
Bloomington Auto Sales Company insured thereby, be 
described as a co-partnership instead of a corporation; 
and that the correct name of one of the co-partners, 
J. E. Wyckoff, be inserted therein; and that the 
‘family rider’? be attached to the policy. The 

Page 1 








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appellant filed an answer to the bill, denying the ma- 
terial averments of the bill, and the right of the ap- 
pellees to have the policy corrected and reformed. 
When the cause was at issue, it was referred to the 
Master to take the proofs and report the same togeth- 
er with his conclusions, which was done. The Master 
found that the appellees were entitled to the relief 
prayed for, and the appellant filed objections to the 
Master’s report, which were afterwards ordered to 
stand as exceptions. Upon the hearing of the excep- 
tions, by the chancellor, they were overruled, and a 
decree entered granting the relief prayed for. This 
appeal is prosecuted from the decree. 

It is contended by the appellant as grounds for 
reversal of the decree, that ‘the evidence does not dis- 
close a mutual mistake; that the mistake alleged by 
the complainant if it existed has been waived; that 
the terms of the policy as written have been accepted 
and ratified by the complainant; that the complainants 
are estopped from asking the relief prayed for; and 
that the complainants are barred from the relief 
prayed for by negligence.’ 

The facts upon which the decree is based are 
found in the decree, namely: 


‘““That the complainants, J. E. Wyckoff and 
Walter Ritchie were, during the entire year of 1921, 
partners doing business under a co-partnership name 
or trade name of Bloomington Auto Sales Co. That 
said business known as the Bloomington Auto Sales 
Co. was established in 1919 as a co-partnership, the 
members thereof being Walter Ritchie and Guy Wyck- 
off, and that the complainant J. E. Wyckoff became 
a member of said co-partnership January 1, 1920, and 
that from January 1, 1921, said partnership consisted 
of Walter Ritchie and J. E. Wyckoff. That said 
partnership was engaged in the automobile and garage 
business in the City of Bloomington at 405 West 
Washington street during all said time from its incep- 
tion. 

The Court doth further find that Freese & Com- 
pany, Inc., was the agent of the defendant, located 
in the City of Bloomington, Illinois, with full author- 
ity from said defendant to sell its insurance, to solicit 
business for said defendant, to collect premiums, to 
investigate losses and liabilities and such general 
powers as insurance agents usually and customarily 
have. That said Freese & Company, Inc., did not at 
any time act as agents and were not authorized to act 
as agents for the complainants or any of said com- 
plainants. That the predecessors of Freese & Com- 
pany, Inc., who likewise represented said defendant 
were the Freese Insurance Agency, and Freese, Clark 
& Company. 

Page 2 












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That most of the personnel and offi- 
cers of said agency were the same from 1919 until the 
date of the filing of the bill. 

That April 19, 1919, the defendant, through its 
duly authorized agent, Freese, Clark & Company, 
issued a policy of insurance tor said business of 
Bloomington Auto Sales Co. and named the insured 
in said policy as Guy Wyckoff and Walter Ritchie 
doing business as Bloomington Auto Sales Co. That 
said “policy on insurance then issued indemnified the 
insured against all liability for injuries received, all 
persons in the service or employ of the assured, en- 
saged in or connected with the operations of said bus- 
imess, to whom compensation of any nature is paid or 
allowed, ineluding loaders, material handlers, time- 
keepers, salesmen, demonstrators, mechanics, washers, 
chautfeurs, office force and all others, and to cover 
accidents resulting from the use of any automobile by 
the assured, if an individual, by a partner, if a co-part- 
nership, by an executive officer, if the assured is a 
corporation, and also said policy had attached to it 
a rider known as a ‘‘family rider’’ whereby it was 
agreed by the insurance company that the policy ex- 
tended to cover the private and personal interests of 
the said copartners due to the operation of any car 
owned or driven by, them and their immediate fam- 
ilies. That the premium for said insurance was based 
upon the payroll of said business and included the 
sum of $1,500.00 for each partner of said business and 
$1,500.00 for each salesman, and that the premium 
was based upon the estimated payroll at or about the 
time of the issuance of said policy, and which estimate 
was at the end of the year verified and the correct 
amount of the payroll taken as the basis for the 
charge of the premium, the rate being $2.10 for every 
$100.00 of said payroll. 

That on April 19, 1920, being the date of the 
termination of the first ‘policy, a new policy was issued 
by said defendant, said new policy being practically a 
duplicate of the prior policy, changing the date of the 
issuance and the expiration, but in its essential parts 
hke the first policy, That at the time of the issuance 
of said second policy, an estimate of the payroll was 
again made and the premium rate charged _ being 
$1.50 per $100.00 for personal injury or liability and 
$.60 for property damage liability, or a total of $2.10 

and that the total amount of premium upon said es- 

timated payroll was $105.00. That on May 5, 1921, 
an audit was made by the local agency of said payroll 
and on said audit of the payroll an addition of $40.96 
was made to the premium, making the total prem- 
ium at said time $145.96. That on June 1, 1921, an- 
other audit was made of said payroll and at the said 
time there was added $115.50, making the total prem- 
ium on said payroll as audited $261.46. 

That upon the 19th day of March, 1921, Freese 
& Company, Inc., the authorized agents of. said de- 
fendant, for the purpose of again issuing insurance 
covering the liability of the said business and the part- 
ners thereof, prepared a Schedule of Statements, the 
policy to be issued under said statement to be for 
twelve calendar months beginning at noon on the 19th 
day of April, 1921, and ending ‘at noon on the 19th 
dav of April, 1929. That said statement was signed. 
“Breese & Company, Inc., authorized agents, Bloom- 
ington, Ilinois.’’ That the said agents of the de- 
fendant in preparing said statement described the 
assured,—‘ Bloomington Auto Sales Co.’’; the ad- 
dress of the assured as ‘405 W. Washington street, 
Bloomington, Tll.,’? and in answering inquiry three 
of said Statement as to whether the insured is an in- 
dividual, corporation, partnership, trustee, assignee or 
receiver, stated that it was a corporation. That said 
statement also included ite cinented pay- 

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roll and in- 
cluded therein in said estimate $1,500.00 for two offi- 
cers or proprietors, $1,500.00 for one salesman, $900 
for office and clerical help and $5,000.00 for all other 
employes, and fixed the rate of premium at $1.50 for 
personal injury and $.60 for property, damage, said 
total of $2.10 being payable as premium for every 
$100.00 of payroll, and that the total premium as es- 
timated at $218.40. And that said premium on esti- 
mated payroll was paid by said J. E. Wyckoff and 
Walter Ritchie, doing business under the trade name 
ot Bloomington Auto Sales Co. That i inquiry No. 10 
of said Statement, and answer to said inquiry therein 
contained were as follows: ‘‘No accident has been 
caused by an automobile owned or driven by the as- 
sured and no claim has ever been made against as- 
sured as result of such an accident, except’? —‘‘ None 
except known to company.’’ That there had been some 
small claims adjusted by the defendant company for 
said co-partnership prior thereto. Said statement fur- 
ther provided that the policy was written on the basis 
of an annual adjustment of the actual compensation 
for such period as provided for by the policy. That 
said statement was not signed by any of the com- 
plainants and the facts therein stated were unknown 
to the complainants. 

The Court doth further find that immediately 
prior to the date of said last mentioned Schedule of 
Statements, Ralph Freese as representative of Freese 
& Company, Inc., called upon the complainant J. EH. 
Wyckoff in order to procure from him an estimated 
payroll of said business for the ensuing year, so as 
to incorporate the same in said statement and for the 
purpose of the issuance of the new policy. That said 
J. E. Wyckoff then gave to him an estimate of said 
payroll and told him that there were two partners and 
that $1,500.00 was to represent the services of the 
said J. EK. Wyckoff, $1,500.00 to represent the ser- 
vices of Walter Ritchie, $1,500.00 for one salesman, 
and the balance of the payroll was estimated upon 
the payroll check book. And that said J. R. Wyckoff 
made inquiry of Mr. Dobbins (of Freese & Co.) as to 
whether the said policy would cover and insure him 
against all liability for the operation of the automo- 
bile personally owned by him and that said Dobbins 
then and there told him that it would cover all lia- 
bility of both J. EH. Wyckoff and Walter Ritchie 
while operating their own automobile or while the 
same was being operated by any member of their re- 
spective families, and that said representation was 
relied upon by said J. E. Wyckoff. | ‘ 

The Court doth further find that in the making 
out of the Schedule of the Statements by, said Freese 
& Company, Incorporated, through the inadvertence 
of the scribner, one of the members of said Freese & 
Company, Inc., the assured was described as a corpor- 
ation when, in fact, it should have been described as 
a co- partnership, and that the policy of insurance is- 
sued by the defendant in compliance with said state- 
ment described the assured as Bloomington Auto Sales 
Co., and further described the assured as a corpora- 
tion 

The Court doth further find that there was no 
corporation engaged in the automobile or garage 
business in the City of Bloomington at the same time 
by the name of Bloomington ‘Auto Sales Co., and 
that the only Bloomington. Auto Sales Co. operating 
any business in the city of Bloomington was the co- 
partnership business of J. E. Wyckoff and Walter 
Ritchie doing business under the trade name of 
Bloomington “Auto Sales Co. That the pay roll upon 
which the premium was estimated was the payroll of 
the co-partnership of Walter Ritchie and J. E. Wyck- 
off doing business as the Bloomington Auto Sales Co., 
and that the premium was paid by said co-partnership, 
and that the eqaporation eon as 

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the Bloomington 
Auto Sales Co. had no employes, no property and no 
business of any kind or character at the time of the 
issuance of said policy. 

The Court doth further find that in the early part 
of 1920, the parties interested in said co-partnership 
applied for a charter for a corporation under the name 
of Bloomington Auto Sales Co., and that the charter 
was then issued, but that nothing further was done 
in reference to turning over said business to said cor- 
poration, no officers were elected of said corporation, 
and that while it was the intention at some future 
date to turn the business over to said corporation, 
said plan was not followed at said time. That said 
corporation was not functioning and did no business, 
had no property, no employes, no payroll, until Jan- 
uary 1, 1922. That on January 1, 1922, said co-part- 
nership finally carried out their plan and transferred 
the assets of said co-partnership and the business 
over to the said corporation. And that from the time 
of the issuance of the said charter, the early part of 
1920, until January 1, 1922, said corporation was dor- 
mant and had no interest of any kind whatsoever in 
the business of said co-partnership, which was then 
conducted under the trade name of Bloomington Auto 
Sales Co. 

The Court finds that the policy of insurance coun- 
tersigened at Bloomington, Illinois, the 19th day of 
April, 1921, issued by the defendant, being Policy No. 
G-6070, and known as complainants’ ‘‘Exhibit B’’ in 
this cause was through inadvertence, accident and mu- 
tual mistake issued to Bloomington Auto Sales Co., 
when in fact the name of the assured should have been 
and was intended to be J. E. Wyckoff and Walter 
Ritchie, doing business under the trade name of 
Bloomington Auto Sales Co. And that the deserip- 
tion of the assured in said pelicy, paragraph three, 
under the title ‘‘Schedule of Statements’’ wherein it 
is stated that the assured is a corporation was by in- 
advertence, accident and mutual mistake described as 
a corporation in place of a co-partnership. 

The Court doth also find that through inadvert- 
ence, accident and mutual mistake the family rider 
was not affixed or attached to said policy, though the 
premium collected therefor included the risk of in- 
demnifying or insuring the said J. E. Wyckoff and 
Walter Ritchie against all liability arising out of any 
personal injury or property loss caused to any other 
person by reason of the operation of automobiles 
owned by either of said co-partners. while driven by 
cee of said co-partners or by members of their fam- 
ilies. 

The Court doth further find that the said policy 
issued by the said defendant is known as a garage 
policy and that during said entire period said Freese 

Company, Inc., as agents for said defendant, issued 
like policies to other owners of garages in the City 
of Bloomington and that said indemnity against liabil- 
ity of the members of the co-partnership as contained 
in the family rider, was attached to the policies issued 
by them during the said period to all other garage 
owners which they insured and for which a like pre- 
mium was collected as was collected from the co-part- 
nership of the complainants, and that it was the intent 
and purpose of Freese & Company, Inc., as authorized 
agents of said defendant, to attach such rider upon 
the policy above described. : 

The Court doth further find that the errors, dis- 
erepancies and omissions aforesaid were not  discov- 
ered by the complainants or any of them until some- 
time after December 17, 1921.”’ 


The findings of fact in the decree are sustained by 
the proofs in the cause, which clearly show that the 
name of J. E. Wyckoff as a partner was inadvertently 
omitted, and that 

Page 5 



































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Eon side add} tnorrt fe 
pai roe Ae ie 
sore Pron dandy La at BAEC 
cog ‘oy fiom sia 


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sweetly dou? SE 
iasieaan Hien bai 


































the failure to attach the family 
rider was also the result of inadvertence and mutual 
mistakes as well as the substitution of the word cor- 
poration for co-partnership in the policy in connec- 
tion with the firm name. It is well settled that where 
parties to a contract of insurance through inadvert- 
ence make a mistake in the name of the insured, or 
in the description of the property insured, or where 
the policies of insurance do not insure the persons or 
interests intended to be insured, a court of equity may 
be resorted to, to correct the mistake. German Fire 
Insurance Co. v. Gueck 130 Ill. 345; Home Ins & 
Banking Co. v. Myer 93 Ill. 271; Robinson v. Union 
Automobile 198 NW 166; Keith v. Globe Ins. Co. 52 
Til. 518; Cook v Winchester Fire Arms Co. 82 NW 
315; Mercantile Ins Co. v. Jaynes 87 Il]. 199; Conti- 
nental Ins. Co. v. Ruckman 127 Ill. 364; Snell v. 
Atlantic Fire Ins. Co. 98 US 85. And it is no bar 
to a reformation of a policy that the suit is maintained 
after a loss has occurred which would fall within the 
terms of the policy as reformed. German Fire Insur- 
ance Co. v. Gueck supra; Mercantile Ins. Co. v. 
Jaynes; supra; Snell v. Atlantic Fire Ins. Co. supra; 
Equitable Safety Ins. Co. v. Hearne 22 US (L. Hd.) 
398 ;Graves v. Boston Marine Ins. Co. 2 US (L.Ed.) 
324; 14 R. C. L. 208. 

The record does not disclose any evidence of 
waiver by the appellees of their equitable right to a 
correction of the policy; nor is there any evidence 
which might invoke the principle of estoppel. 

For the reasons stated, the decree is affirmed. 

Affirmed. 

Page 6 


D at 


shevmpeat por ty sstvnite sid ai i ekedetty ain 
wIeeW tha svesasen 4 tony: pitt pbs. 


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<2 00 amcA on vateedoatW ¥_ 

pe 1001 LEE 38. regan 

Hong. BOE, 

uae om e ti oak é 








General No. 8034 Agenda No. 39 
October Term, A. D. 1926 
Bessie Ervin and Tymore Feeback, Plaintiffs in Error 
VS. 
People of the State of Illinois, Defendants in Error. 
Error to County Court Vermilion County. 
NIEHAUS, J. 

In this case, an information was filed in the coun- 
ty court of Vermilion county under Section 11 of the 
Criminal Code, charging the plaintiffs in error, Bes- 
sie Ervin and Tymore Feeback, with unlawfully living 
together in an open state of adultery. A plea of not 
guilty was entered to the information, and thereupon 
a trial was had which resulted in a verdict finding the 
plaintiffs in error guilty, and they were ordered to 
pay a fine of $100.00 each and costs of suit. A writ of 
error 1s prosecuted from the judgment of conviction. 

The principal errors assigned are in reference to 
instructions given for the People. One of these in- 
structions is as follows: ‘‘The court instructs the jury 
as a matter of law that guilt may be shown either by 
direct evidence, or by circumstances from which, ac- 
cording to the usual laws of reason and common ex- 
perience, guilt is clearly inferable. When these cir- 
cumstances are shown the presumption of guilt dis- 
places the presumption of innocence.’’ This instruc- 
tion is erroneous. While it is true that guilt may be 
shown by circumstances appearing in evidence which 
satisfy the jury of the defendant’s guilt beyond a rea- 
sonable doubt, the guilt must be inferable from the 
circumstances in evidence and not from any usual 
laws of reason, or from common experience; further- 
more the presumption of innocence is not displaced 
by such circumstances, and the presumption of guilt 
does not displace the presumption of innocence when. 
such circumstances are shown; but a defendant is en- 
titled to the benefit of the presumption of innocence 
all through the trial, 

Page 1 





a 


until the presumption of inno- 
cence is displaced by evidence of guilt which satisfies 
the jury beyond a reasonable doubt that the defendant 
is guilty of the offense charged. People v. Foster 288 
Tl. 371. The seventh instruction given for the People 
is as follows: ‘‘The court instructs the jury that the 
offense of adultery is sufficiently proved by cireum- 
stances which raise the presumption of cohabitation 
and unlawful intimacy.’’ While this instruction is in 
the language of the statute, it is nevertheless mislead- 
ing in that the jury could readily infer from the in- 
struction that the offense with which the plaintiffs in 
error were charged was the commission of an act of 
adultery; and that the proof which the statute in- 
tended should be regarded as sufficient to prove an 
act of adultery would be sufficient proof also of guilt 
of the plaintiffs in error of the defense charged, which 
was a living together in an open state of adultery; 
the proof of adultery is only one of the essential ele- 
ments of proof to sutsain a conviction. In the case 
of Miner v. The People, 58 Ill. 58, the point under 
consideration was passed upon by the Supreme Court; 
and the court there said: ‘‘The crime of adultery can 
not be sustained by proof of the familiarities shown 
on the trial, or a single act of illicit intercourse, or a 
number of acts. The language of the statute is, ‘an 
open state of adultery.’ The living together must be 
open and notorious, ag if the relation of husband and 
wife existed. The illicit intercourse must be habit- 
ual.’’ The commission of adultery alone, however im- 
moral, is not sufficient to sustain a conviction for the 
offense as defined by our statute; it is the open living 
together by the parties, in a state of adultery, which 
constitutes the offense. People v. Moreland 186 III. 
App. 562. 
For the errors indicated, the judgment of con- 
viction is reversed and the cause remanded. 
Reversed and remanded. 
Page 2 


‘hsteaen ibistte ali wed vd 
tunhucsial asf todd Hioh aleli 
a ee ney WM) 





General No. 8043. Agenda No. 24 
October Term, A. D. 1926 


Frank E. Yeazel, Appellant. 
vs. 
Frank Bowman, Appellee. 


Appeal from Vermillion 
Niehaus, J. 


In this case the appellee Frank Bowman, obtained a 
judgment by confession in the Vermillion County circuit 
court against the appellant Frank E. Yeazel and others; 
on a $2000.00 judgment note which he held as collateral 
security for the payment of indebtedness due him from 
the Alvin Grain and Electric Company. The judgment 
rendered was thereafter opened, and appellant was given 
leave to plead his alleged defense thereto. He filed the 
general issue and a special plea, setting up his defense; 
but the court sustained a demurrer to the special plea 
filed; thereupon appellant by leave of court withdrew 
the general issue and filed an amended special plea. The 
court sustained a demurrer to the amended plea; and the 
appellant elected to stand by his amended special plea; 
whereupon the court ordered the judgment to stand as 
originally entered. An appeal is now prosecuted from 
the judgment; and error is assigned on sustaining the 
demurrer to appellant’s amended special plea. 

It appears from the averments in the special plea, 
that the Alvin Grain & Electric Company, of which the 
appellant was the president and principal stock holder, 
and which was in the grain and electric lighting business 
at Alvin, Illinois, had become financially embarrassed 
because of a large amount of outstanding indebtedness; 


some of which indebtedness was in the form ‘of judgment 


notes of the company, which had been signed by William . 


A. Yeazel and Ellen Yeazel, the father and mother of 
appellant, as sureties; also other notes signed by other 
parties 


Page 1 


tntatation en ied of dldvr abou 
oat sis nk ntonieiotin| to A 


~ 





as sureties or accommodation makers for the 
Alvin Grain & Electric Company; also an indebtedness to 
the Farmers National Bank of Rossville, Illinois, which 
was sescured by chattel mortgage on the grain elevator 
of the company and machinery and equipment connected 
therewith. The company also owed anumber of debts 
which were unsecured. On April 16, 1921, the company 
in order to satisfy the different secured creditors, and to 
delay any attempt on the part of creditors to seek 
immediate satisfaction of their claims, and so as to enable 
it to continue business, made an adjustment of its 
financial affairs for that purpose and a contract was 
entered into in writing, which took into account the liens 
and securities held by the different. creditors; the property 
of the company and of the appellant; and the property of 
Willaim A. and Ellen Yeazel, who were liable as 
accommodation makers and sureities on notes represent- 
ing the largest part of the indebtedness of the company. 
This contract was entered into on April 16, 1921, by the 
Alvinn Grain & Electric Company, the appellant 
and William A. and KHlien Yeazel as_ parties 
of the first part; certain creditors therein named, 
including the appellee, were parties of the 
second part; and the Commercial Trust & Savings Bank 
of Danville, Illinois, as trustee, was party of the third 
part. The contract referred to, sets out certain items of 
indebtedness of the company, and the different persons 
or corporations holding such indebtedness; and the 
securities if any which they held respectively. Contract 
refers to the indebtednéss held by the appellee, as 
tollows: 
(e) Frank Bowman 2,000.00 
Signed by said Company 
and Frank Yeazel 
Frank Bowman 2,000.00 

Signed by said Company, 

Frank Yeazel, William 

A. and Ellen Yeazel. 

The last note bearing a 

credit of $1,500.00. 
This contract recites, that the first parties were indebted 
to the second parties in divers amounts; and that all of 

Page 2 








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sauanapra feseeaieae bas tyes bea yts 












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ai ta dvgcorsentibe ena haar ‘ 


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wt bie” iaarabad sett dou hvewd 


obligations were the debts of said company, and the said 
appellant; and that certan portions of said debts were 
secured by said William A. and Ellen Yeazel; that the 
appellant was the owner of all the capital stock of the 
company; and that the said first parties were desirous 
that all claims and debts of the creditors be placed under 
the control and management of one person to be designat- 
ed as trustee; and to give security for the payment of 
several amounts of indebtedness; and to arrange for 
carrying on the business of the company under the super- 
vision of the trustee. And it was stipulated in the con- 
tract that William A. Yeazel and Ellen Yeazel, were to 
execute and deliver to the trustee a trust deed for Thirty- 
five thousand ($35,000.00) dollars on 3484 acres of land 
which they owned in Vermillion county, for the purpose 
of securing the parties of the second part who held notes 
bearing the signatures of William A. and Ellen Yeazel for 
the several amounts due such parties, as specified in the 
agreement; and William A. and Ellen Yeazel agreed to 
convey by warranty deed to the trustee, the 3484 acres 
of land referred to, which deed however was not to be 
recorded until the conditions mentioned in the contract 
were performed; and it was also stipulated in the contract 
that the trustee would endeavor to negotiate a loan on 
said land or such part thereof as would be necessary, and 
in an amount sufficient to purchase the chattel mortgage 
held by the Farmers National Bank of Rossville; and to 
raise money sufficient to operate and carry on the busi- 
ness of said company; and to discharge other pressiing 
indebtednesss as might be necessary to pay, upon finding 
a person who was ready to loan said money, the same to 
be borrowed upon the mortgage and note of said William 
A. and Ellen Yeazel, as a first lien upon said land; and in 
the event, that such a loan was made, the proceeds were 
to be paid to the trustee; and upon receiving the money 
derived from said loan, the trustee was authorized to 
release said trust deed for Thirty-five thousand ($35,00.- 
00) dollars, but not to discharge the indebtedness 


Page 3 
















Prey Ts donee “alt ek 
aut i atinyta aphisan ai ite 





alLsirgiveb st “i Ne a art 0% ana inn 





Ok 





agers 





wactenitey “oad in reir lion : a oe 

mror tine! vedtoy Hadi’ eae % one to: wai meni ald 
ae deena f teat yh Gnk ‘A ate? ve nig 
wut et bo: i hie as himiventel Wabie ib 8 Sts0 









‘Wek og aes ‘eh ' aus Peat pion by bone 
foevuay ates ni Pscinastenis acaunl 


ae 





secured thereby; 
and that upon the procuring of said loan, the said 
warranty deed was to be recorded that the said trustee 
was to acquire the chattel mortgage held by the Farmers 
National Bank of Rossville; and that the said chattel 
mortgage acquired was to be held by said trustee for 
the benefit of the creditors of said first parties as in the 
contract specified; and the appellant agreed to assign 
and transfer to the trustee all the capital stock of the 
company. It is further stipulated in the contract, that 
the trustee be authorized and have power to borrow 
money upon the real estate referred to, in addition to 
the loan above specified, in an amount sufficient to carry 
on the business of the company; and for the purpose of 
borrowing such monies, the trustee was given power and 
authority to make, execute and deliver a mortgage, deed 
of trust, or other security, upon said land conveyed to the 
trustee by William A. and Ellen Yeazel, or of the 
company; and if deemed necessary by the said trustee, 
said trustee was to take the proper steps to sell the 
property of the company, or the interest owned by the 
appellant, and the stock therein, for the purpose of dis- 
charging any and all of said debts. It was further 
stipulated that the trustee in addition to holding the 
title to the property agreed to be conveyed to it, for the 
purpose of securing a loan thereon, should hold said 
property for the purpose of securing the payment of the 
indebtedness to. George Musk, The Farmers National 
Bank, Burwash Bros., S. J. Miller, Philip Cadle, J. 8. 
Christman, and C. J. and C. K. Palmer, out of the prop- 
erty conveyed by said William A. and Ellen Yeazel; and 
by the company and by the appellant; and for the 
purpose of paying the claim of the Farmers National 
Bank of Rossville out of the assets transferred and con- 
veyed by said company; and that the trustee is securing 
said payments of said several amounts due to the last 
mentioned creditors, should save and preserve for them 
and each of them the respective securities against the 
respective first parties that they then held; the trustee 
was 


Page 4 












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aight 46 adc 
Sndd toenines ides Heb tt aie spa des 
We rowel hla al } af sich oah 

oar nearer eae ini 
Rot MR it 
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as saab f 
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Meet eat raret ian tiger iat he Be be 


ir ae Eee 





also authorized to operate, carry on and manage 
the business of the company; and was given full power 
and authority to sell the plant or property of said 
company, or any part thereof, upon the best terms 
obtainable, and apply the money derived from the sale 
of any of the property owned by the company or the ap- 
pellant, first, toward the payment of any money borrowed 
or raised by said trustee to operate said business, and to 
pay necessary current bills of said company; and the 
balance of the money, if any, received from the sale of 
said property, was to be applied upon the indebtedness 
owed by the first parties to the other parties named in 
the contract, in proportion to their several debts. It 
was also stipulated that all the creditors mentioned in 
the contract as second parties, agreed to extend the time 
of payment of their respective claims for a period of 
one year, and for the purpose of preventing the transfer 
of said notes and for the purpose of facilitating the 
collection of the same, agreed to deposit their notes with 
the trustee and the trustee was to give each of the said 
creditors a receipt therefor. It was also stipulated that 
in case the money owing second parties mentioned in said 
contract was not paid when due, or the interest payments 
not paid when due, and in case the said creditors to whom 
indebtedness was at that time owing was not paid when 
due, under the terms of the contract, then the Trustee 
should have full power and authority and was thereby 
vested by all the parties of said contract, 
with power and authority, after selling all of the 
property coming into its hands from the said company 
and the said Frank Yeazel, and after supplying the pro- 
ceeds thereof in accordance with the priorities specified 
in said contract, and if any balance then remain unpaid, 
then to sell the land conveyed by said William A. and 
Ellen Yeazel, for the payment of the balance of said 
debts, and the said William A. and Ellen Yeazel should 
be first given an opportunity to borrow an amount 
sufficient to discharge all of said debts and if a loan could 
be procured by the said William A. and Ellen 


Page 5 


dhw.zeeon sical sieoqah i 
“Pine ot. 1@ dag, 9 avig ot aw aot a oat 
Hales nigkiis oats hil bi 


pons tial. 


ont. td, fla: ‘yotit me a j 
wis we} po ais A) set 





Yeazel, for such amount, then the trustee 
should re-convey said real estate above described to them 
and the money derived from such loan, paid direct to said 
trustee and distributed to pay off said debts to the 
creditors mentioned in said contract; but in case the said 
William A. and Ellen Yeazel were unable or refuse to 
borrow, or otherwise raise the money necessary to 
discharge said indebtedness to said trustee, after the 
application of the proceeds of the sale of the property of 
said company, then the trustee should proceed #6 
foreclose the right of redemption of the said William 
A. and Ellen Yeazel, including the allowance of solicitor’s 
fee provided that the said William A. and Ellen Yeazel 
should have ninety (90) days notice, after said debts 
became due to raise the money necessary to discharge the 
lien before foreclosure proceedings should be started. 
That said trustee should have the right to employ counsel 
and said trustee and attorney for said trustee, should 
be paid a resaonable compensation for services rendered. 
Tn case there should be other creditors who hold, notes or 
securities signed by any of the first. parties to said 
contract, such persons might become parties to said 
contract by signing their names thereto at the place 
designated for additional parties, and such persons should 
be entitled to the benefits of the provisions of the 
contract as against the property of such of first parties 
whose names were signed to the notes, which such several 
additional parties might hold, subject, however, to the 
priorities created in said contract in favor of said trustee, 
and subject to all other conditions and provisions in said 
contract. The plea further avers, that the said W. A. and 
Ellen Yeazel, in performance of their part of said 
contract, executed and delivered to the Commericial 
Trust and Savings Bank, of Danville, Illinois, their 
promissory note of April 25, 1921, payable to the order of 
said Bank, for Thirty- five Thousand ($35,000.00) Dollars, 
and at the same time executed and delivered to said Bank 


a trust deed for certain real estate owned by the 


Page 6 


wy 


hs ne Hadagrs: plas anes ‘dosixouta 


barwbres adele jor roidesitmna rts Sts onOmB 


“Se ebdeier big ante anes ean? ed eins 


pies 08 : aos met 
bigu he oo silting 


oil? i 


BDI dec 


hind tu ‘pe sony ; 


Palbeenntnente | ‘out ot 
in jewel im f 





said W. 
A. and Ellen Yeazel and described in said contract, for the 
purpose of procuring of said second partis to said con- 
tract as held notes bearing the signatures of said W. A. 
and Ellen Yeazel. That at the time of the taking and 
delivering of the said trust deed by the said W. 
A. and Hilen Yeazel, W. A. and Hllen 
Yeazel owned no other property except the real 
real estate mentioned therein except one small lot of 
household goods and farming implements, which did not 
exceed in value, Four Hundred ($400.00) Dollars. That on 
the 16th day of April, 1921, this defendant was the owner 
of all the capital stock of said company, and that said 
capital stock constituted all the property that this 
defendant at that time owned except a small portion of 
household goods, which did not exceed in value Three 
Hundred ($300.00) Dollars. That subsequent to April 16, 
1921, and prior to December 22, 1921, this defendant in 
performance of his part of said contract, assigned and 
transferred to said Bank, as trustee, all the capital stock 
of said company for the purpose set forth in said contract. 
The plea furthed avers that The Farmers National Bank 
of Rossville. Illinois, gave public notice that on the 26th 
day of September. 1921, the Bank would sell, at the hour 
of two o’clock P. M., in accordance to the terms of said 
chattel mortgage of Janurary 13, 1921, all chattels 
included in said mortgage; that on the 24th day of 
September, 1921 the Illinois Electric Company and the 
Duncan Electric Manufacturing Company, being the 
creditors of said Alvin Grain and Electric Company, but 
not partes to the contract of April 16, 1921, filed in the 
Circuit court of Vermillion county, Illinois, a certain bill 
praying for a receiver of said company and to have an 
injunction against the sale of the concrete grain elevator, 
and other chattels included in said mortgage of January 
13, 1921; that a temporary injunction was issued on the 
26th day of September, 1921, as prayed in said bill. The 
plea also avers, that on the 22nd day of December 1921, 


another contract was entered into by the ap- 


Page 7 






























add 4s a bartdera h ine ct 
“o> bie ot ebay oe hi anes res 
AO OW bite Fo aershmengia 6 dit auttige ‘pate 
Mie Yetled add Doren i eh ita dat" Bi 
ORS bisa? ork se” Byam Eo Fat 
opie’ be Bares ai Py {efi reo Y. % 
isat sa a cher ny tedio:. 
te fai Heme ab igs: me “pisveds erin 
sont bibs tint ‘atnaerotaind actisnnt by uh 
md tad ctelfoU (ODOUR) hebriaHl Hind sis 
asnwe df saw jdnhealhaby arly 102! TA to a 
° dea he 
bie tend” ben Siesanes"” ies 9 ilo0 ne) 
k FY? tenths he TAOS buy Mls? ‘bod ritartoo 
Lo nolo (erie n' Jae ro antic yt ine 
oiinees auiae 
. fis ar 
Sarre “pecgabite Yay se 
deel hacrm yeu ve 
Asti baal 
*“pawnttcion hind rei deer gapherty ali no? ‘gna 
piven losnitsl exacted st outt tape ihn 









bree ey aortas, old ag | eee i 
indtadac oie (ker ery | 
0. Waly) ES SAP He ne TEN 
ad} bas qnagiot) steal wont bad Aue 










Ot Tate heey ep 


pellant and 
the Alvin Grain & Electric Campany, as parties of the 
first part; and William A. Yeazel and Ellen Yeazel, as 
parties of the second part; and the Illinois Hlectric 
Company, Duncan Electric Manufacturing Company and 
the Rossville Electric Light Company, called electrical 
creditors, as parties of the third part, and certain 
creditors including the appellee, which are denominated as 
secured creditors, under the contract of April 16, 1921, 
as parties of the fourth part; and certain other creditors 
elassified as parties of the fifth part and parties of the 
sixth part and parties of the seventh part and parties of 
the eightth part; and the trustee in the agreement or 
contract of April 16, as party of the ninth part. This 
second contract recites that all parties to this contract 
were desirous of reaching an agreement and settlement 
whereby the interests of all said parties might be adjust 
ed without further litigation and expense; and it sets out 
the various items of indebtedness, and the amounts due 
and owing to the various creditors, including the so called 
electrical creditors; and the amounts due the appellee; 
and makes provision for settling and adjusting the claims 
of the electrical creditors by mortgaging all the projerty 
of the Alvin Grain & Electric Company to secure Twelve 
Thousand ($12,000.00) Dollars of mortgage gold bonds 
which were to be paid over to the electrical creditors in 
discharge of the indebtedness held by them. It also makes 
provision for the payment of the unsecured creditors 
from the proceeds of the sale of the wooden elevator of 
the company, and from the sale of certain corn cribs and 
shelling machinery. It is also stipulated that the parties of 
the seventh part, designated as unsecured creditors, agree 
to accept payment of their several obligations against the 
Alvin Grain & Electric Company, from the proceeds in the 
hands of the trustee at the time of entering into the 
contract, or thereafter coming into its possession from 
the sale of the wooden grain elevator, and the Five 
Hundred ($500.00) Dollars for the corn crib and shelling 
machinery. It is also stipulated that all 


Page 8 


has esi 







mis suneeeei Bina nh ao 
Inoivtuala Hallan’ semeaelieh? Angi | 
pinta. drts Ph tidy, ei, 1g eaitaon a 


CI atop mi aly near edt ho ; 









a rs ‘fh 3 
1 notacral, oe i 


parties to the 
contract agreed to refrain from filing creditors’ bills, or 
any other action against the Alvin Grain & Electric 
Company, but were to abide by the settlement, compro- 
mise, covenants and agreements therein and thereby 
entered into, as a full, complete and just settlement of 
all the several interests of all the parties thereto; and 
the second contract also contains this provision: That 
it is further understood and agreed by all the parties 
thereto, that the agreement should not change, modify, 
alter or affect the contract of April 16, 1921, except 
insofar as was necessary to carry out the terms of the 
contract of December 22, 1921. And that said contract 
of April 16, 1921, was to remain in full force and effect 
as to all provisions not directly in conflict with the con- 
tract of December 22, 1921. It is also averred in the 
plea, that the parties of the seventh part to said second 
contract were to receive no payment from the trustee 
for the several obligations which they held against the 
Alvin Grain & Electric Company; and it is also averred 
that the appellee, together with other creditors of the 
Alvin Grain & Electric Company, after signing the con- 
tract of April 16, 1921, deposited with the said trustee 
named in said contract, his notes of January 6, 1920 and 
of November 5th, 1920; and left said notes 
with said trustee until the contract had 
been fully executed. It is also averred in the plea, that 
on the 16th day of December, 1922, a cerain bill to fore- 
close a trust deed mentioned in the contract of April 16, 
1921, was filed in the Circuit court of Vermilion County, 
Illinois, to the October term, A. D. 1922: that a decree 
of foreclosure was had in said cause; that according to 
the provisions of said decree, the Master in Chancery of 
Vermilion County, Illinois, sold the premises described 
in said decree and filed his report on the 12th day of 
August, 1924, showing that the premises were sold to one 
Philip Cadle for Twenty-two Thousand Two Hundred 
($22,200.00) Dollars, and showing that said amount was 
Twenty-three Thousand One Hundred Seventy-two 
Dollars and Sixty cents 


Page 9 











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($23,172.60) less than the 
amount of the debt, interest and costs in said cause; that 
the proceeds arising from the sale of said premises were 
paid by said Master in Chancery to the Commercial Trust 
and Savings Bank, as trustee, as aforesaid; that on 
October 30, 1924, said trustee distributed to the secured 
creditors mentioned in the contract of December 22, 1921, 
the proportionate share of each of said creditors; that 
the appellee received at that time, Thirteen Hundred and 
Two Dollars and Thirty cents ($1302.30), the same being 
his share of the sale of said premises, and on January 6, 
1925, the appellee received Six Dollars and Highty-four 
cents ($6.84), from said trustee, the same being the 
appellee’s share of the rents and profits then in the hands 
of said trustee, arising from the premises described in 
said trust deed. It is also averred in said plea that the 
note of April 24, 1919, sisned by this defendant and others 
on which note judgment was entered in this case, is the 
same note that was given by the said Alvin Grain and 
Electric Company as collateral security to said note of 
November 5, 1920; that the said note described in the 
declaration herein was delivered to the plaintiff by the 
Alvin Grain andi Electric Company, for no other considera- 
tion whatsoever except as collateral security of said note 
of November 5, 1920 in the princinal sum of Two 
Thousand ($2600.00) Dollars; that all of said parties to 
said agreement of December 22, 1921, have performed 
their respective obligations as provided in said agreement; 
that all the secured creditors including the plaintiff 
herein, participated in the proceeds of the sale of the 
property of the said William A. and Ellen Yeazel and 
participated in the rents and profits arising from the sale 
of such property, and nothing further remains to be done 
under the agreement of December 22, 1921. 

It was admitted upon the oral argument of this case, 
and upon the production of the original of the contract of 
December 22, 1921, in open court, that the appellee did 
not sign the same; but it is insisted, that the appellee 
became a party 

Page 10 





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to the second contract by participating 
in the settlement provided for thereby of the claims of 
the various creditors included within its provisions, on 
the basis of the rule applicable to such cases, cited from 
Corpus Juris Vol. 12, page 273, that “it is not necessary 
that a composition should have been signed by a credit- 
or in order to make it binding upon him and bar an action 
on the orginal debt. Assent or acquiescence, as by ac- 
cepting the benefits of the composition or acting under 
it, is as effective as an actual signing.” And it is con- 
tended by the appellant, that the two contracts referred 
to, taken together, constitute a composition agreement; 
and that the appellee having become a party to such 
composition by participating in the benefits and settle- 
ments and adjustments provided for by the second con- 
tract, is bound thereby; and the composition effected, 
resulted in a release of the debts compound and ex- 
tinguishes them; and that consequently the creditors, 
including the appellee, who are parties to the composition, 
also lose their right to retain or enforce their claims 
against collateral securities which they may hold. 

That a compositiion agreement or the term comp- 
osition, means an agreement between an embarrassed 
debtor and two or more of his creditors, made for the 
purpose of securing to the creditors a part or all of the 
debtor’s property, or property furnished by another, and 
applying it pro rata, or otherwise as agreed, in discharge 
of their entire demands. Hunt, Composition at Common 
Law, p. 352; R. C. L. Vol. 5, page 868; 12 Corpus Jurisp. 
251. It is a necessary element however to constitute a 
composition of the character referred to, that the 
composition should have procured for the creditor a part 
or all of his demands; and that he received such part in 
discharge of his entire demands. There is nothing 
in the terms of tthe first contract which 
which binds the appellee to toa _ discharge or 
release of his entire claim by receiving payment of the 
part provided for his claim under the contract; and it is 
equally clear from the averments in the plea, that the ap- 


Page 11 





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pellee did not receive any benefit from, or any payment 
on claim under the second contract; but that the amounts 
which he received, namely, $1302.30, as his share of the 
proceeds of the sale of the premises, and the $6.84 
received by him, were for his share of the rents of the 
premises sold; and were provided for his benefit under 
the first contract, or the contract of April 16, 1921. 
Inasmuch as the appellee was not a party to the execution 
of the second contract, nor by having participated in any 
pecuniary benefits derived therefrom, he was not bound 
thereby; and that the claim which he held was not to be 
satisfied in full by part payment which he received under 
the first contract. It is apparent, that there was no 
composition of the appellee’s claim; and that the effect of 
the payments received by him on the indebtedness he 
held against the Alvin Grain & Electric Company was 
merely to discharge to the extent of applying the 
payments as a credit thereon. We conclude therefore, that 
the allegations of the special plea did not show a legal 
defense which barred the appellee from recovering a 
judgement on the note in question, which he held as 
collateral security. 
For the reasons stated judgement is affirmed. 
Judgement affirmed. 
Page 12 





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General No. 8053 Agenda No. 45 


October Term, A. D. 1926 
Edward H. Richter, Doing Business Under the Style 
and Firm Name of E. H. Richter and Sons, Appellee. 
vs. 
Indian Refining Company, a Corporation, Appellant. 
Appeal from Sangamon 
NIEHAUS, J. 

In this case an appeal is prosecuted from a judg- 
ment rendered in the cireuit court of Sangamon coun- 
ty against the appellant, Indian Refining Company 
for the sum of $8400.00. The appellee, Edward H. 
Richter bases his right of recovery on the negligent 
handling of gasoline by an employe of the appellant, 
in pouring gasoline into a tank of appellee’s automo- 
bile truck on the premises of appellee; and negligence 
in handling the instrumentalities by means of which 
the process of pouring the gasoline into the tank was 
accomplished; that by means of such negligence the 
gasoline was set on fire and several automobiles and 
buildings owned by the appellee, and goods, wares 
and merchandise situated therein were damaged and 
destroyed. The declaration contains two counts. The 
first count alleges, that the servant and employe of, the 
appellant ‘then and there roughly, carelessly and vio- 
lently pushed and brushed an iron or galvanized fun- 
nel against a portion of a certain automobile or auto- 
mobile truck of the appellee, causing the same to 
throw sparks whereby in consequence of which said 
gasoline then and there ignited and was set on fire.’ 
And the second count charges the negligence to be: 
““That the defendant wholly regardless of its duties 
in that behalf carelessly and negligently poured and 
splashed gasoline upon, to-wit, a certain automobile 
truck and certain electric wires and electric appli- 
ances and equipment of said certain automobile truck 
whereby and in consequence of which said negligent 
and careless handling 

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of said gasoline, the said 
defendant, by its certain servant, caused a fire in and 
about said certain automobile truck. ’’ 

The fire in question occurred on the 5th day of 
July, 1922, in the afternoon of that day, when Mr. Car- 
roll who was employed by tke appellant for that pur- 
pose, came to the premises of the appellee on the cor- 
ner of 6th and Reynolds streets in the city of Spring- 
field, to re-fill the gasoline tanks in the several auto- 
mobiles and automoble truck of the appellee. Fdward 
G. Richter, who is the son of the appellee, and who 
was present when the fire occurred, testified with ref- 
erence thereto, as follows: ‘‘I had known Mr. Carroll 
about one year and a half. He was delivering gaso- 
line for the Indian Refining Company. He was deliv- 
ering at the rear of the garage there-—trucks and cars 
standing there. He had been coming to my father’s 
place of business during that time. On the Sth day 
of July, 1922, he came there about 3:30 p. m. to fill 
the trucks with gasoline—see what they needed. I 
was in the market when he first arrived. I did not 
talk with him on that occasion—had seen no one talk 
to him. After he got there, he drove in and filled 
the Dodge truck that was setting there in the yard 
with ten gallons of gasoline. He drove in with the 
auto truck with a tank on it of gasoline—a tank truck, 
Indian Refining Company. The first truck was set- 
ting out in the yard—a Dodge truck. It was used in 
connection with the meat business. It was my fath- 
er’s truck. After that he went to the garage and put 
ten gallons in my ear setting in the garage. J had 
a Stevens touring car. Then he starts to fill the little 
truck, setting in the middle of the garage—the Repub- 
lic. That is where the fire started. It was setting 
there in the center of the garagie; my car set or the 
north and another truck sitting on the south—this 
little truck in the middle setting kind of close to my 
ear. Mr. Carroll started to go through and I told 
him, ‘dad, don’t go through there, I will back the 
truck out for you. ’ He said, ‘no, I will get to it.’ I 
was standing at the back of the corner of the truck. 
With that he walks around 

Page 2 





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the left hand side of the 
truck, steps up on the truck there. I told him to be 
eareful, he would slip and hurt himself. With that he 
raised the five gallons of gasoline up over the seat 
and started pouring. The gasoline went all over the 
seat, and in a minute I heard a horn blowing and a 
fire started, just like that. I was about six—eight feet 
away when I cautioned him about climbing up there. 
He was to the west of me and I was back of him. I 
was to the rear of the truck. I saw the gasoline splash 
and run, It splashed all around the side of it—around 
the sides—all over the floor boards, around in there— 
you could see it splash around there. When the fire 
started he was pouring the gasoline into the truck. 
He slipped. He got up on the running board and 
started lifting the gasoline over the _ steering 
wheel. As he did his foot slipped and the bucket of 
gasoline fell into the seat—fell down there and the 
gasoline spilled all over. As the bucket fell in the 
seat we could hear the toot of the horn. The seat was 
turned back. The gasoline can fell right down into 
the seat, across the battery.’’ He also testified, that 
the battery in the truck in question was a storage 
battery used to start the car and electric lights, and 
for the use of the horn, a regular automobile battery; 
and that the battery was fully charged with electricity. 
He further testified that ‘‘the horn button on this 
truck was alongside the seat board on the left side 
sitting in the seat. The horn button was a round black 
button—a regular button that you see on regular 
horns on automobiles—ordinary type of horn button. 
These horn buttons are not water tight because they 
have to work back and forth when you push them in 
that causes the contact, as I understand, for the horn 
to blow. They are not water tight—gasoline tight. ’’ 
J. F. Maddox who is an automobile mechanic of fif- 
teen years experience, testified as an expert having 
special knowledge of electric batteries and electric 
wiring, electric horn buttons and horns and electric 
equipment generally on automobiles and automobile 
trucks, and the emission of sparks in the operation of 
electric horns and horn buttons, and that he was ac- 
quainted with 

Page 3 





the Republic automobile truck in ques- 
tion, He testified that the ordinary horn button on a 
Republic truck throws a spark when it is operated; 
that it throws a spark every time a contact is made 
and broken, that is to say, every time the horn is 
blown; and that the spark thrown by the operation 
of the horn button would ignite gasoline. He also 
testified, that in case a connection was formulated be- 
tween the two posts of the battery, together with any 
metal substance, as a gasoline ean, falling on a bat- 
tery and striking the posts of a battery, it would be 
likely to cause gasoline to ignite. W. L. Chapin, who 
testified that he had taken a course of electrical en- 
gineering in the University of Llinois and made a 
study and experimented with electrical equipment of 
automobiles and automobile trucks, and in reference 
to batteries and horn buttons and electric wires, and 
was familiar with the character of batteries and horn 
buttons and electrical equipment on the Republic 
truck. He testified as an expert, that the horn button 
would throw a spark whenever it was operated, that 
is to say, every time it was touched, also that if gaso- 
line was poured on the horn button it could get in 
the horn button, and that the ignition power of the 
spark thrown was sufficent to ignite gasoline. Frank 
Offer was called as a witness for the appellee, and 
testified, that he was in the automobile business and 
familiar with Republic trucks, and with the truck 
owned by the appellee; that the truck of the appellee 
“‘had a horn button which was on the left hand side, 
inside the seat riser—against the seat riser.’’ 
That ‘‘it is a button that fastens on and about the 
size of a quarter. There was nothing about the con- 
struction of the horn button to guard it against any 
liquid running through and getting on the contacts 
and wires of the horn button.’’? As a witness for the 
defense, the appellant called Thomas C. Carroll, its 
employe, who did the refilling of the gasoline tanks 
on the automobiles in question. He testified with ref- 
erence to the occurence in question: ‘‘I put the funnel 
in the gasoline tank and took five gallons of gasoline 
and I set it down in the seat. **** After 

Page 4 





I placed 
the funnel in the gasoline tank I set five gallons of 
gasoline upon the seat. The gasoline was in a five 
gallon measure, in a five gallon bucket. I set the can 
on a kind of a board or slat piece there. *** Then I 
reached over and got a hold of the funnel with my 
left hand. The funnel was in the gas tank at that 
time and I raised it up and got the point of the bucket 
before I started to pour in; when the gas went into 
the funnel it went to the ceiling. Q. What do you 
mean by it went to the ceiling, A. Flame,—ignited; I 
threw everything away and got out of there. The gas 
was in the funnel when it shot up. *** I didn’t hear 
no explosion. *** The flame shot up just as I started 
to pour. The gasoline was probably still in the funnel, 
I don’t know; that is a little too close for me to figure 
on. At or before this time I testified the flame shot 
up, I did not spill any gasoline on any wires or on 
any part of this Republic truck. Before this flame 
shot up I did not spill any gasoline on the batteries 
or the electrical equipment of the truck. At no time 
before the flame shot up did I slip or fall. After the 
flame shot up, I dropped the can. ”’ 

Carroll and Richter were the only eye witnesses 
to the occurrence; and considering the reasonable and 
just inferences which the jury would be warranted in 
drawing from the testimony of these witnesses, this 
court would not be justified in holding that the ver- 
dict rendered in this case was manifestly against the 
weight of the evidence; especially since a determina- 
tion of this question, to some extent at least. involves 
the respective credibility of the witnesses, which was 
a matter for the determination of the jury. 

The record does not disclose any substantial error 
in the admission or rejection of evidence. It is con- 
tended by the appellant that the court erred in ad- 
mitting the testimony of the expert witnesses in ref- 
erence to the effect which a contact with the electrical 
horn button would have to cause sparks and ignition 

Page 5 





of gasoline. We are of opinion, that this expert testi- 
mony was competent; especially in view of the evi- 
dence, that while Carroll was going through the pro- 
cess of refilling the tank of the truck in question, and 
just before the blaze which started the fire, that the 
horn was blown. Expert testimony is competent as 
to matters which do not lie within the range of com- 
mon knowledge and experience. Elgin, Joliet & East- 
ern Ry. Co. v. Myers 129 Ill. App. 12; Byer v. Peoria 
B. & ©. Traction Co. 156 Ill. App. 47. Traders Ins. 
Co. v. Catlin 163 Ill. 256; German American Ins. Co. 
v. Steiger 109 Ill. 256; Mahistedt v. Ideal Lighting: 
Co. 271 Ill. 154. 

It is assigned as error, that the court refused an 
instruction at the close of the evidence, directing the 
jury to find a separate verdict of not guilty under the 
first count, because of the insufficiency of the evidence 
to sustain the charge of negligence contained in that 
count. The question of the sufficiency of evidence to 
prove any of the issues involved in the trial of a case, 
is for the jury to determine. And we are of the opin- 
ion therefore, that the court did not err in refusing to 
instruct the jury that the evidence was insufficient to 
support the charge of the negligence contained in 
the first count. 

It is also contended, that the coutr erred in thie 
viving of the first and third instructions for the ap- 
pellee. The first instruction is as follows: 


The Court instructs the jury that in determining 
whether or not the defendant was guilty of negligence 
in this case, you should consider what a reasonable 
prudent man would have done under the like or sim- 
ilar circumstances, in the handling of gasoline or 
other inflammable materials; and if you believe from 
a preponderance of the evidence that the defendant, 
by its servant, failed to exercise that degree of care 
as would have been exercised under like or similar 
circumstances by a reasonable prudent man, and that 
such failure, if any, on the part of the defendant’s ser- 
vant to exercise such degree of care was the proximate 
cause of the fire which destroyed plaintiff’s property, 
then and in that case you should find the defendant 
guilty of negligence. 


It is contended by the appellant that the negli- 
gence referred to is not limited to the negligence 
charged in the declaration. It is true, that the in- 
struction does not in express terms refer 

Page 6 





Bie 


to the negli- 
gence charged in the declaration; but the purport of 
the instruction is such that the jury could not have 
been misled into thinking, that the definition of negli- 
gence had reference to any other negligence than that 
charged in the declaration. The charge of negligence 
in the second count of the declaration is, that the 
appellant carelessly handled the gasoline and oils in 
delivering them to the appellee, and it thereby caused 
the fire. It is sufficient to say, concerning appellant’s 
contention, that if there is error in this instruction the 
same error is contained in the third instruction given 
for the appellant; and that therefore the appellant is 
not in position to raise any question about it on ap: 
peal. In our opinion the third instruction complained 
of by appellant, is not subject to the criticism of the 
appellant concerning its purport and effect; nor do 
we find any error in the refusal of instructions reques- 
ted by the appellant. 

It is also contended, that the trial court erred in 
its refusal to grant a new trial on account of certain 
newly discovered evidence. The newly discovered 
evidence is set forth in an affidavit made by one F. 
J. Scott, an employe, who had been working for the 
appellant as a traveling salesman for about eight years 
prior to the time of the making of the affidavit. He 
states in the affidavit, that on or about July 6, 1922, 
he was doing special work for the appellant in Spring- 
field; the day mentioned being the day after the Rich- 
ter fire; that he had an interview with Edward G. 
Richter, one of appellee’s witnesses, while the build- 
ings, which were destroyed, were still smouldering; 
that in this interview he asked Richter how the fire 
happened, whereupon Richter, in answer to his ques- 
tion said this: ‘‘Why your man spilled some gas while 
he was filling the Stevens car, and I, or some of us, 
threw a match in the spilled gas. I walked over, to a 
truck with the Indian Refining man to fill it, looked 
up, and the place was in a blaze.’’ He further states, 
that he did not communicate what Richter had said 
to him, to the appellant until over four years 

Page 7 


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had elapsed, 
when he happened to hear about the verdict which had 
been returned in this case; and he then immediately 
reported this evidence to the district manager of the 
company at Lawrenceville, Illinois, who communi- 
cated it to one of the attorneys for the appellant. The 
reason given by the affiant for not letting the appel- 
lant know about what he had learned about the cause 
of the fire sooner, is that he had not been employed 
in and around Springfield since the time he had ob- 
tained the information; and that he knew nothing 
about the pendency of this suit; and had known noth- 
ing about the setting of the case for trial; either the 
first or the second trial. It is sufficient to point out 
concerning this affidavit, that it discloses a remark- 
able lack of diligence on the part of the appellant em- 
ploye, who was apparently investigating the cause of 
the Richter fire, in the origin of which his employer 
was involved, to communicate the information which 
he says he obtained, to his employer; and the affidavit 
also shows a lack of diligence on the part of the em- 
ployer, to find out from the employe, what knowledge 
he had about the case. Aside from the lack of dili- 
gence which appears on the face of the affidavit, it is 
obvious that the evidence referred to pertains only to 
matters which could be used in an effort to contradict 
or impeach one of the appellee’s witnesses; and it is 
well settled that where newly discovered evidence is 
not conclusive in its character, but is merely cumula- 
tive or contradictory of other evidence; or in its na- 
ture impeaching, it affords no ground for granting a 
new trial. Springer v. Schultz 105 Ill. App. 544; 
Knickerbocker Ins. Co. v. Gould 80 Ill. 388; Tobin 
v. People 101 Ill. 121; Kendall v. Limberg 69 Ill. 

355; City of Paris v. Morrell 52 Ill. App. 121. 
For the reasons stated, the judgment is affirmed. 

Affirmed. 
Page 8 


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General No. 8058 Agenda No. 33 
October Term, A. D. 1926 
Mary A. Bergman, et al, Appellees. 
vs. 
Sarah J. Rhodes, et al, Appellants 
Appeal from Macoupin, 
NIEHAUS, J. 

In this ease the appellees, Mary A. Bergman as 
an individual, and as trustee under the will of Henry 
Bravford, deceased; and Theresa M, Pratt and Vir- 
ginia H}. Durston, filed a bill in equity in the circuit 
court of Macoupin county, making Sarah J. Rhodes 
the appellant and her husband, Frank Rhodes, parties 
defendant. The bill avers the death of Henry Bray- 
ford, who died testate December 2, 1901, and the pro- 
bate of his last will and testament, which disposes 
of certain real estate, including 652 acres of land, sit- 
uated in Polk township; also 80 acres in Carlinville 
township, all in Macoupin county, and a farm approxi- 
mately 93 acres in Madison county, and a residence 


‘lot in the city of Carlinville. The bill avers, that he 


left surviving him Mary A. Brayford his widow, who 
was also deceased at the time of the filing of the bill, 
and four children, namely, the appellant Sarah J. 
Rhodes and the appellees Mary A. Bergman, Theresa 
M. Pratt and Virginia E. Durston, who were his only 
heirs at law; and were also devisees under the will. 
The bill was filed for the purpose of carrying into ef- 
fect the following provision of the will: 


“‘T direct that at the death of my wife, Mary A. 
Brayford, or as soon thereafter as practicable, the 
surviving trustees, acting under this will, shall sell 
and convey by good and sufficient deeds all the said 
remainder residue of my estate in such manner and 
on such terms as they may deem best, and shall divide 
the net proceeds of said sale equally among my said 
daughters. In the event of the death of any of my 
said daughters before the distribution of said pro- 
ceeds of said sale, leaving bodily descendants, then I 
direct that the share of such deceased daughter be 
divided equally among her said bodily descendants.’ 


And the prayer of the bill is for an order and 
decree for the sale and distribution of the property by 
the surviving trustees under 

Page 1 








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the will as therein directed. 
Summons was issued and served on the defendants in 
the bill; and they appeared in court at the June term 
following and thereupon joined with the complainants 
in the bill in asking leave of court to amend the orig- 
inal bill by making all the parties thereto, parties 
complainant, and changing the purpose and the pray- 
er of the original bill. The amended bill which was 
thereafter filed by leave of court avers, that all the 
complainants are of opinion, that a sale of the real 
estate involved as provided for in the last will and 
testament of Henry Brayford, deceased, for their 
benefit, would result in a sacrifice of their respective 
interests, because the prices of all farm lands were low 
and the market for the same poor; and that these 
lands if sold by the trustees at that time would not 
realize a price actually representing their value; that 
because of these unsatisfactory conditions, they would 
sustain a loss if the real estate were sold at public 
auction; and that they had therefore decided to exer- 
cise their right of election, and that each, one had elec- 
ted to take her one fourth share of the real estate in 
land instead of money; and they waived a right to the 
sale by the trustees and had agreed that this proceed- 
ing might be treated as a _ partition proceed- 
ing for that purpose, so that the share of each of 
them in the proceeds of a sale might be set off to 
them in severalty in the land. The bill prays the 
court, that a decree may be entered confirming: their 
election to take their share in the land, and that they 
may be decreed to be owners thereof as tenants in 
common; and that the lands may be partitioned be- 
tween them in kind; and that commissioners may be 
appointed and empowered by the court for this pur- 
pose to make such division and partition between the 
parties; and to assign and set off to each of them the 
full equal one fourth part of said lands in severalty, so 
that each of them might own and control her separate 
portion of said estate in severalty. Thereafter a de- 
eree was rendered in which the court finds, that each 
of the 

Page 2 







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parties mentioned who were complainants 
in the amended bill, had agreed that such land should 
not be sold by the trustees, but in lieu of such sale 
had elected to take their respective shares or interests 
in the property in land instead of money; and the 
court also finds, that such election is a reasonable one, 
and is approved by the court; and that a sale of the 
real estate as provided for in the will by the trustees 
would result in a sacrifice of the property and a great 
loss to each of the parties interested. Commissioners 
were thereupon appointed to make the partition of 
the premises referred to, in accordance with the pray- 
er of the bill; and the commissioners appointed made 
their report, in which they set off and allotted to each 
of the parties complainant in the bill certain parts 
of the premises described in the bill, on the basis of 
valuations fixed by them, on the respective parts and 
parcels which the parties were to take in severalty. 
No objections were filed to this report of the com- 
missioners; and the court confirmed the same; but 
later, during the same term, a motion was made by 
the appellees to set aside the report of the commis- 
sioners; and the motion was supported bv affidavits 
concerning the fairness of the division between the 
parties, and the correctness of the valuations made by 
the commissioners, and legality of the action of the 
commissioners in fixing owelty. Leave was given to 
the appellant to file counter affidavits concerning the 
same matter. Afterwards upon hearing, the court 
vacated the decree confirming the partition of the 
premises; also set aside and vacated the report of the 
commissioners on the ground that it did not make an 
equal and fair partition and division of the land be- 
tween the parties; and the court then appointed 
other commissioners to divide and partition the land, 
as directed in the decree referred to. The commis- 
sioners last appointed made a report, that the prem- 
ises were not susceptible of division or partition with- 
out manifest prejudice to the parties in interest, and 
made an appraisement of the values of the different 
tracts and parcels. 

Page 3 







(ETO 2 
og Bald iy he dwt oes. «ago 
ie j eoodacct init yer ites a ae to} 
ae dead asia ¥ ronan agi 















=e} re sii in nn sisi 


vom te ie tote: pil 





rae daxiot Tt Oe uiigoittes 
beomahah anf YO eal 








The appellant filed objections to 
the report of the commissioners; and a hearing was 
had upon the objections; and the report of the com- 
missioners was approved, and the court entered a de- 
eree for the sale of the premises as in a statutory par- 
tition. An appeal is now prosecuted from the order 
of the court overruling appellant’s objections to the 
report of the commissioners and from the decree di- 
recting the premises to be sold. 

One of the contentions made by the appellant is, 
that the decree confirming the report of the first com- 
missioners which made a partition and division of 
the lands with a provision for owelty was in effect a 
consent decree. The record does not show that this 
decree was entered by consent of all the parties to the 
same, but merely that no objections were filed to the 
same; and the record also shows, that the motion to 
set aside the order confirming the report and the di- 
vision of the land made was made at the same term 
in which the report was filed and the decree of con- 
firmation; and it was therefore within the power of 
the court to vacate the same; but the questions con- 
cerning the propriety of setting aside the order of 
confirmation are not involved in this appeal. We are 
of opinion, however, that the decree of sale entered 
was improvidently entered, and was not in conformity 
with the relief prayed for and decreed. The purpose 
of the amended bill and the prayer thereof, as well 
as the decree rendered in conformity therewith, were 
to divide the premises in kind; and to prevent a sale 
by having the premises divided among the parties in 
kind, for the reasons set forth in the bill, and found 
in the decree. The amended bill and the prayer for 
the Equitable Relief sought and the decree of the 
court entered in conformity therewith, rests upon the 
presumption which is conclusively established by the 
averments of the bill, that the premises involved are 
susceptible of partition or division in kind. The ap- 
pointment of the commissioners was for the purpose 
of carrying into effect the relief granted, namely, to 
effectuate a division and partition of the premises in 
kind; and this was the only function of the com- 

Page 4 




















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{33 





missioners appointed in the decree referred to; and 
when the second commissioners reported their inabil- 
ity to make division or partition required by the de- 
cree, it was within the power of the court to appoint 
other commissioners to make such partition or divis- 
ion, as the decree required to be made. It does not 
necessarily follow that because of the inability of one 
set of commissioners to make a partition or division 
in kind among the parties, that other commissioners 
will not be able to do so; but the decree for the sale 
of the premises is in direct contravention of the re- 
lef granted on the averments and prayer of the am- 
ende Pr 





For the reasons stated, the decree of sale is re- 


versed, and the cause remanded with directions to 
sustain the objections to the report of the commission- 
ers, and enter an order appointing new commissioners 
to make partition or division in conformity with the 
decree entered granting the relief prayed for. 
Reversed and remanded with directions. 
Page 5 





Gen. No. 8033 Agenda 38 
October Term, A. D. 1926 
Jasper W. Stringer and Melvina Stringer, Appellants, 
vs. 
T. KE. Burner and D. L. Burner et al, Appellees. 
Appeal from the Circuit Court of Hancock County 
SHURTLEFF, J. 

Appellants, husband and wife, who were com- 
plainants in the cireuit court, filed their bill in chan- 
cery to rescind a contract of purchase by them of real 
estate from appellees, on the ground of fraud, and to 
establish an equitable lien against the lands for the 
amount of an advancement of $31,800 made upon the 
purchase price at the time the contract was made, 
and to have such lien take priority over a second 
mortgage executed by appellees about twenty months 
after the contract was made. Appellants had been 
farmers in Iowa for several years and owned land in 
that state, later had purchased farm lands in Knox 
County, Illinois, where they had farmed about 240 
acres of land for seventeen years, and about four 
years prior to the transaction in question had sold 
their lands in Knox County, retired and were living 
in Peoria, where they owned a home valued at about 
fifteen thousand dollars. Appellants held a second 
mortgage for ten thousand dollars upon eleven hun- 
dred acres of land in Indiana (subject to a first mort- 
gage of thirty thousand dollars) negotiated to them 
by Benjamin C. Koch and Oliver J. Hamm as B. C. 
Koch and Co. of Peoria, which did not become due 
until Mareh i, 1922, and appellants owned no other 
property. 

Jasper W. Stringer was fifty-eight years of age 
and his wife forty-seven, and they had owned their 
lands in common. Appellants knew something about 
Hancock county lands as they held a mortgage 

Page 1 








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jabete itlogend ey wt a 

AN Aaa) SL SEA hin fj 
\“anistbecea ladle sean 49 
eano toon antl to sie ae 












yee, ain sdasgtli a) rae 


gubvadansd ham 







2A shout db WB gail er 





amount- 
ing to $31,800 upon lands a few miles from the lands 
in question, acquired either by trading or by means 
of a loan. Appellees, whom we shall treat as the par- 
ties defendant, principally interested, resided in Car- 
thage and owned the 34,209 acres of land lying about 
five miles northwest of Carthage in Prairie Township 
and described as the north half of section 8. Appellees’ 
lands were encumbered by mortgage to the extent of 
forty thousand dollars. The other defendants were 
William M. Gordon and William M. Gordon, trus- 
tee, the O’Harra Farm Loan Company, First National 
Bank of Augusta, Farmers State Bank of Mendon, 
Kendall Brothers, the Peoples State Bank of Hamil- 
ton, State Bank of Adrian, Farmers Bank of Bowen, 
Marine Trust Company of Carthage, Hancock County 
National Bank of Carthage and Scott Belknap. All 
of these defendants are interested by reason of being 
the holders of certain notes secured by second mort- 
gage on the farm in question, given about the first 
day of March, 1922, to secure bona fide indebtedness 
of the appellees, amounting to the sum of about sev- 
enty thousand dollars. 

The contract in question was entered into be- 
tween appellants and appellees on June 23, 1920, by 
which appellants agreed to purchase 342.09 acres of 
land from appellees at the price of three hundred dol- 
lars an acre, making a total sum of $102,627. Appel- 
lants made a first payment of $31,800 at the time 
the contract was entered into, assumed the payment 
of the first mortgage, amounting to forty thousand 
dollars, and were to make the final payment of $30,827 
upon March 1, 1921, when possession of the lands was 
to be delivered to appellants and deed given. 

Clyde Johnson was an attorney forty-three years 
sft age, and had been State’s Attorney of Hancock: 
County and resided in Carthage. Johnson and HE. G@ 
McAnnulty of Carthage in the summer and fall of 
1919 listed some farm lands in Hancocx County for 
sale and among others the tract belonging to appel- 
lees. Two of appellants’ 

Page 2 


oar 





ero 


Ott eine inary RU pubees mi 
vad inns as, barks fer bane ‘buat 





principal witnesses, Oliver 
J. Hamm and Benjamin Koch. lived in Peoria and 
were engaged in the real estate buisness. It had been 
arranged between Hamm and Koch on the one part, 
and Johnson and McAnnulty on the other, that John- 
son and McAnnulty should list the lands in Hancock 
County for sale, and that Hamm and Koch in Peoria 
should procure the buyers. Hamm and Koch had ne- 
gotiated a second mortgage for ten thousand dollars 
on lands in Indiana to appellants, upon which they 
received a commission of two hundred dollars, and 
in September, 1919, Hamm had persuaded the appel- 
lants to look over the lands in Hancock County. 
Hamm was thirty-seven years of age. He was man- 
ager of the sales department of the Wayne water 
softener appliances and Domestic LHlectric Supply 
company, and had been so engaged for eleven years. 
He also did some real estate business out of Koch’s 
office. He apparently knew little about land from 
practical experience. Koch had been a farmer en- 
gaged in the electric light business at Freemont and 
in the real estate business at Peoria. Koch testified 
to no representations made about the farm or the 
land. He did talk some with Johnson about the til- 
ing on the farm but nothing was said by Johnson as 
to tiling which in any manner misrepresented the 
land. There is no testimony tending to show that 
Johnson had any practical experience as to soils and 
land except that which he acquired in 1919 and 1920 
in making a few farm sales. It appears also that ap- 
pellants became interested in the profits that were 
being acquired in the rapid rise in price of farm lands 
at just that time, as Hamm wrote McAnnulty in De- 
cember 1, 1919, after appellants had looked over var- 
ious farms in Hancock County and appellees’ land in 
September previously, as follows: 

‘“‘Mr. and Mrs. Stringer called at our office to- 
day and are somewhat interested in the 320 acres 
of land you mentioned in your last letter. They also 
have a party who is interested in a good 160 acre 
tract and will bring them with them to inspect it when 

Page 3 


—— 







ones peers puntata 


“bine eat rite aide lonial noi ‘ot 


tshonadi ith ron wise nie it i kee | 
ssiiniehs att ee Hats muta truth foares, oboe n0t 









joe pan has w pe cinlnes 
wferel Spuhieallt Sebel sa 





atew tats eifos sts th 2 Smeets . 
“wbortok gsr: w bein sal ais iaonld 








they come. They are very anxious that Mr. Johnson 
should be on hand to show them the land and are 
now planning on coming over with Mr. Koch and 
myself the first part of next week.’’ 

It is admitted that appellant’s mortgage for $31,- 
800 was ‘‘on the Cook land out here southeast of 
Carthage.’’ How they obtained it the record does 
not show. Hamm, the principal witness for appellants, 
testified ‘‘that the Stringers were good judges of 
dirt, good judges of soil’’ and in a letter written to 
Koch under the date of January 22, 1921, Hamm 
writes: ‘‘He is certainly hard boiled but I believe he 
will see that he had better take it now while he has 
a chance to get it.’? Hamm had been acquainted with 
the appellants since the middle of July, 1919, and 
about the middle of September, 1919, he took them 
to Carthage to be shown Hancock County lands by 
Johnson and McAnnulty. While Apppellant Stringer 
testified that he was purchasing the 342 acres ‘‘for a 
home,’’ it is evident that he did not have sufficient 
funds or property to complete the contract, mortgaged 
as it was for forty thousand dollars, but it is dis- 
tinectly shown by appellants that Koch was to furn- 
ish whatever funds appellants might be lacking to 
complete the purchase. Appellant Stringer, his wife 
and Hamm testified that in looking over the land in 
September, 1919, Johnson said to them; ‘‘I have 342 
acres in this tract of land listed from Mr. Burner, or 
from the Burners, for sale, at $300 per acre.’’ Mr. 
Stringer said, ‘this farm looks rather level and flat 
to me, is there any tile on the place?’ Mr. Johnson 
stated that there was a small string of tile near this 
line where we were at this time, he also stated, or Mr. 
Stringer asked Mr. Johnson, what kind of soil he 
had on this farm. Mr. Johnson says, ‘We have from 
two and a half to three and a half feet of right black 
soil, underlaid with a yellow jointed subsoil, which 
will drain perfectly.’ He said, ‘When there are a few 
more tile in the land, this farm will be one of the 
best farms in Hancock 

Page 4 























as (eet we Fai Sat austin neta 


Kat Ares a bie weal 
. ; daw ‘Pebiee 
; hese swt isis sch oveelencpagaie gist 

» Tapstitvas, stank dno Dial: toot 
aeolimironat 4ilt dh bestatde ‘weil ne 
el papede rent aneventiver essen * a) 


cui ‘19 AS " cabal vo ‘5 


ead ot olibw wrath ti catia cue we gogo 
iHiw hodainepor asad ine: sous di segtod 
biel earn te ‘itil, ads “so 


ome 





SE wx dil, Pt add me uaa 
eereth aM siroryt hedeil dreal Yo te 
ai i cen sheiay yong ae aa sid 








County, if not the best.’ He 
said, ‘There is a fall to the southwest of, I believe, 
from five to seven feet to the mile, which will aid in 
the draining of this farm.’ ”’ 

They drove around the farm and alighted from 
the machine and went upon different parts of the 
farm. It is shown that before going to the farm the 
second time Appellant Stringer asked Johnson to get 
a spade and Johnson said he would get a dirt auger, 
and that he did go to some place in Carthage and re- 
turned and said the party who had the auger was not 
at home. No mention of spade or dirt auger was 
made by any of the parties after that time. On. this 
trip the party drove to and examined the work of a 
tile digging machine and the layers of dirt in the 
drain to depth of about five feet, about a mile and a 
half north of appellees’ land, and pronounced the soil 
very satisfactory. Substantially the same party ex- 
amined appellee’s land the next day a second time 
on the September trip and examined other lands and 
farms and were back again examining farms and: ap- 
pellees’ lands about the middle of October, 1919, at 
which time Appellant Stringer testifies that he stated 
that appellee’s land was very level and again inquir- 
ed the nature of the soil, and Appellant Stringer and 
Hamm both testified that Johnson again described 
the lands in the same identical language that he had 
twice before, always emphasizing that the land was 
underlaid with a ‘‘double-jointed yellow clay.’’ On 
this trip the party examined another tile digging 
machine at work to the south and east of appellees’ 
land and found the nature of the soil very satisfac- 
tory with black or brown dirt on the surface, under- 
laid with a yellow clay. On the trip in October, 1919, 
appellants first met Appellant Burner and as to this 
meeting Appellant Stringer testifies: 

“Went up to get the blueprints. Hamm, Johnson 
and I drove up. Met him in the back yard. Burner 
said he had a blueprint of the ditch where the tile 
should go somewhere about the place, but he 

Page 5 











cathe y 





itis in? thw. Holdin 


juli Apsditsitee Ban atu) 
salt Rg ea ahs ae Auoahite 
si}. “ANE yeah ais, aad ‘agty 


















‘PRE ers 
Sis) yan Gt 





WPTE it si at 


pera piles a. sieinglaia 
ete aeugtaly Bi tyint baadetics 





didn’t 
know where to find it, but he would try and look it up 
later on and furnish it to me; and as to the hedge 
posts, he wouldn’t put them in the deal with the 
farm but he would take the price of cutting. ”’ 

Appellant Stringer further testifies: “I didn’t 
see the farm again until the latter part of May, 1920; 
went with Hamm and met Johnson at the hotel; went 
to the east side of the farm where they were plow- 
ing corn. The corn was irregular. Johnson said they 
had a late spring and couldn’t get the land ready to 
put the crop in. Hamm and I walked to the hedge 
posts. Johnson got in the ear and drove to the north 
set of improvements. After seeing the stumps I 
walked with Hamm toward the north set of improve- 
ments and discovered a pond and some stumps where 
an orchard had been; asked Johnson about the pond. 
He said a little string of tile would take care of it 
very nicely; saw clover field on the west side. John- 
son never took him on the west part of the farm to 
show him the soil; left the farm and when going along 
the road Johnson said, ‘There is some yellow clay 
sticking out of the side of the bank.’ He said, ‘There 
is a fair sample of the clay that is on this Burner 
farm? 2? 

Upon returning to Carthage the party saw ap- 
pellee at a garage he was building and Appellant 
Stringer testifies: ‘‘I talked to him in the presence 
of wife, Hamm and Johnson; told him that I liked the 
farm but didn’t like the buildings and fences; thought 
_ they were poor and thought $300 an acre was too 
much. Burner said I wasn’t buying the buildings or 
improvements. He said I was buying real Illinois 
farm land, and he went on to tell me that the farm 
had a black soil two and a half to three and a half 
feet deep all over the farm; that it had a yellow 
double-jointed clay sub-soil all over the farm; that 
it needed a few tile, but after the tile was in there 
the land was such that it would drain very readily, 
and it drained to the southwest, and at the southwest 
it had a natural outlet. I told him that I thought $300 
an acre was too much. 

Page 6 
















taht a Bg be Avis “th ‘ 
Na OF teal Sp Ih ‘eval ied vadient 
id et OY Pree ‘todtel | 


Hidwiintatent lt A: Iapiad out eb 





wba STORE seal 
ea ‘ Erk thiiestt twat teh: evoith fet f 
Tayonte add iyalboe 
phe vihdaiaiuis Yo: tonal pat 
eerily wermntrde ooete 
Freep oelt derouls re 
Hite ero: aaah bisow > 
mer “ailodee: init “at 4 















cued teen ite al i og penning 


ly r 
MN, ’ 


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He said he had already turned 
down an offer of $300 an acre for it and he wouldn’t 
take anything else. He said he was going away and 
Mr. O’Harra had the right to close the deal. I thought 
the price was too great and we went home.’’ 

After making the three trips to Carthage and the 
four examinations of the farm extending from the 
middle of September, 1919, to the latter part of May, 
1920, appellants testified that they had coneluded not 
to buy the farm; they considered the price too high. 
After this in June, 1920, the witness Hamm testifies 
that he sent for Johnson to come to Peoria to again 
persuade appellants to purchase the land, and that 
Johnson came to Peoria and met Hamm at Koch’s 
office and sent for appellants. Appellants went to 
Koch’s office in the evening and met Hamm and 
Johnson. Stringer testifies that they persuaded him 
and his wife to go once more and look at the land; 
that they never had inquired of the tenants on the 
farm anything about the land; that Johnson had told 
him that Burner was all right and a truthful fellow, 
and more than that they had told him that Johnson 
was. Hamm had told him that Mr. Johnson was one 
of the leading men in the church and that he was a 
very nice, honest and truthful man, and that Mr. 
Burner was one of the head men in the church and 
was a very truthful man. Stringer further testified 
that Hamm had told him a number of times the church 
which he (Hamm) belonged to, but he had forgotten 
which one it was. He knew that Hamm attended 
church in Peoria. Appellants were Methodists. This 
testimony is enlightening as tending to show the 
measures adopted by the witness Hamm to have the 
sale made to his clients, the appellants, and the later 
turmoil in which he embroiled his fellow churchmen 
after he had secured his commission and the bottom 
had dropped out of land values. 

Appellant Stringer testified that no one ever 
called his attention to any white spots on the farm; 
that he relied on the statements that the farm had a 
surface soil of two and a half to three 

Page 7 







ei ew re, bcos 
at Las ariisin bis he ‘erat rh ‘aban 


mn 4 donee atta sus wh 
hoe. t baton) “ants oat 


and a half feet 
deep on top of double-jointed yellow clay, and that 
it would drain perfectly. In fact, in the record the 
depth of the soil and that it was under laid by a 
‘“doubled-jointed yellow clay’’ is repeated so many 
times in those exact terms by appellants and Hamm 
that it loses much of its descriptive force. From the 
record it would appear that each time appellants or 
either of them met Johnson or, Appellee Burner 
Stringer inquired each time as to the drainage quali- 
ties of the land and particularly as to the nature of 
the soil, and the stereotyped answer received—always 
in the same identical language—impresses this court 
that appellants had not relied upon any of the former 
statements made by Johnson or appellee. On the 
trip to Carthage about May 20, 1920, they talked with 
Appellee Burner and Hamm testifies: ‘‘Mr. Stringer 
said to Mr. Burner, he says, ‘we have been out and 
looked over your farm and,’ he says, ‘it looks pretty 
flat to me,’ and Mr. Burner told him that he had 
figured on tiling the farm, it had sufficient fall, from 
five to seven feet to the mile fall to the southwest 
corner to drain it perfectly, if it was tiled, and then 
Mr. Stringer asked him about the uniformity of the 
soil and Burner assured him that the whole farm was 
one uniform grade of soil all over the entire farm. It 
was black loam soil from two and a half to three and 
a half feet deep and was all underlaid with double- 
jointed yellow clay subSoil, and if tiled it would drain 
perfectly, and said he was not very anxious to sell 
the farm. Stringer offered him $90,000 and he refused 
it. Then he told Stringer that he was going to the 
Democratic Convention and if you decide to come 
to my terms I have appointed O’Harra, O’Harra and 
O’Harra to transact my business for me and have 
authorized them to close the deal, and Mr. Stringer 
also brought up the question about the improvements 
and the quality of the improvements, and Burner told 
him, ‘you are not buying improvements, you are buyiug 
black land and it always raised a good crop with even 
one string of tile on the farm.’ He says, ‘I never 

Page 8 


pain aid pores | 
eae Alt: A: vat, soa itn 
bo dita 





had a crop failure on the farm.’ He said, ‘I will leave 
it with the law firm of O’Harra, O’Harra & O’Harra.’ 
He did not mention Johnson. ’’ 

As to this meeting with Appellee Burner Mr. 
Stringer testifies: ‘‘Mr. Burner came out to the car 
and we had a little talk about the farm. I told him J 
liked the lay of the farm very much, butI didn’t like 
the buildings and fences, they were very poor, and I 
thought $300 an acre was too much for the farm. He 
said I wasn’t buying the buildings and improvements, 
he said I was buying real Illinois farm land, and he 
went on to tell me that the farm had a black soil two 
and a half to three feet deep all over the farm; that 
it had a yellow double-jointed clay subsoil all over 
the farm; that it needed a few tile but after the tile 
was in there, the land was such that it would drain 
very readily and it drained to the southwest and had 
a natural outlet. He said he had already turned down 
an offer of $300 an acre for it and would not take any 
less. He said he was going away somewhere, I don’t 
know just where, and he says, ‘I am in a hurry and 
Mr. Johnson knows what I want for the farm; he 
has got the farm for sale, and if you do make up 
your mind to buy the farm Mr. O’Harra has the 
right to close the deal and sign our names, my name 
and Mrs. Burner’s name.’ ’’ 

After this meeting appellants returned to Peoria 
and had coneluded not to purchase the land. Appel- 
lants did not purchase the land until Johnson went 
tq Peoria at Hamm’s solicitation about June 20, 1920, 
and persuaded appellants to go to Carthage and look 
the land over again. As to this trip Hamm testifies: 
Mr. and Mrs. Stringer were urged to make another 
investigation of the farm. They came over on the trip 
when the contract was executed. Met Johnson at the 
hotel by appointment; went out to the farm, John- 
son again told the Stringers that the soil was uni- 
form, was underlaid with a double-jointed yellow clay 
and if tiled would drain perfectly; went to O’Harra’s 
office with Clyde Johnson to draw the contract. 
O’Harra said he had power of attorney. O’Harra 
said, ‘‘I have always considered this farm the best 
farm in Hancock County,’’ and 

Page 9 








says, ‘‘ You are not 
making any mistake in buying this farm, that the 
farm would be worth $500 an acre in less than two 
years’ time. ”’ 

Appellant Stringer testifies that in a few days 
Johnson came to Peoria and about eight o’clock in 
the evening someone called him from Koch’s office 
and he and Mrs. Stringer went down there and met 
Johnson and Hamm. He testifies Johnson said: ‘‘ ‘I 
would rather sell you that farm because I want to 
sell you a good farm,’ and he asked me if I would 
come back to Carthage and look it over once more 
and make up my mind as to what I would do, so I 
came back to Carthage and had another talk with 
Mr. Johnson.’ Mr. Johnson said to me: ‘It is a mighty 
good farm and that I was lucky to get it for $300 an 
acre; that he knew that Mr. Burner had been offered 
$300 an_acre for it and had turned it down.’ We fin- 
ally decided to take the farm over in MeAnnulty’s 
office. 

We have quoted from the testimony in the rec- 
ord and it is the only place found where either of 
these witneses have omitted the representation as to 
double-jointed yellow clay under a black loam about 
three feet in thickness. The contract was executed in 
O’Harra’s office on June 23, 1920. O’Harra had 
a power of attorney given him to _ execute 
the contract for appellees upon specific terms. 
Before going to Carthage, appellant went to his safety 
deposit box and took out his thirty thousand dollar 
mortgage and took it with him to Carthage. At 
O’Harra’s office appellant stated that appellee ought 
to let appellants have some hedge posts, and O’Harra 
stated that he was not making any trade. The con- 
tract was discussed and O’Harra stated that he had 
no authority to change the terms of the contract or 
his authority; that if appellants did not want the 
farm on appellees’ terms, it was all right, they need 
not take it. Appellants signed the contract. It was 
under seal, a simple contract to purchase the lands 
upon the terms agreed upon. Appellant Stringer states 

Page 10 


i: 


for ae Hata i ren: ee a, es ix nN, y 
welt todd aapned wild aahyed, ik vitals ¥ 
ow enna weal, int wuss Aes anime 


sh, 

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upon cross-examination that in examining the farm 
his mind was never upon the nature of the soil and 
he had been told what the soil was by Johnson and 
Burner and that he relied upon their statements and 
never inquired further about it. There is no testimony 
in this case or claim that Appellee D. L. Burner 
ever made any statement about the soil or farm, or 
that she was a party to any of the conversations or 
had any knowledge upon the subject of any kind. 

The record in this case is voliminous and it would 
be impossible to cover all of it. We can only set out 
the salient points. The contract covered the land and 
certain posts, wire and material which appellants 
were to have at cost price. Appellants were 
to assume the payment of the forty thousand 
dollar mortgage and the interest after March 1, 1921. 
Appellants were to have the rents upon the land from 
the date of the contract in compensation for the in- 
terest upon appellants’ mortgage of thirty thousand 
dollars, upon which March 1, 1921, there would be 
eighteen hundred dollars in interest due. Appellees 
also, by the contract, transferred their right under 
existing leases to appellants to go upon the lands and 
plow after the crops were removed and to make re- 
pairs, and the contract covers and transfers a tele- 
phone and wiring upon the farm and in all respects 
conforms to the power of attorney held by O’Harra, 
the attorney in fact. 

After the execution of this contract, appellants, 
in the summer and fall of 1920, visited the farm, drove 
around it and were upon it and, as Appellant Stringer 
testifies, ‘‘were very proud of it.’’ They entered into 
leases with the tenants upon the farm for further term 
after March 1, 1921, when the contract with appellees 
was to be completed. In the fall of 1920, as shown by 
all of the testimony, the bottom in farm lands had 
collapsed— the ‘‘bubble had burst.’’ That fall and 
winter appellants strenuously attempted to collect the 
Indiana mortgage for ten thousand dollars, but without 

Page 11 










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success. The testimony shows no attempt on the part 
of appellants to sell their home in Peoria, but Koch 
did negotiate a mortgage upon it for $7,500 which ap- 
pellants learned in January, 1921, could not be car- 
ried through or the moneys furnished. As early as 
January 3, 1921, Hamm is writing McAnnulty that ap- 
pellants would require ten thousand dollars more 
than they could raise to complete the contract and 
suggesting that appellees take a second mortgage 
back on the lands for the amount. A few days prior 
to March 1, 1921, Hamm and appellants went to Carth- 
age and went over the matter with Appellee Burner, 
and stated they would not be able to complete the 
contract and had no funds on hand to apply at that 
time. Appellee Burner told them not to worry about 
the matter but to go home and he would give them 
time to raise the funds, but no particular time was 
mentioned. On the evening of March 1, 1921, Appellee 
Burner, with his brother, appeared at the home of 
appellants in Peoria and tendered a deed and had a 
contract signed, the terms of which would extend the 
time of payment for appellants ten days. Appellants 
sent for Hamm. He came and advised appellants not 
to sign the contract. Later, after the Burners had left, 
Hamm advised appellants to see a lawyer. Up to this 
time appellants had made no complaint about the 
land and testify they were pleased with the purchase 
and ready to acept the farm. Hamm took them to a 
lawyer, as Appellant Stringer testifies, to see about 
selling part of the farm to complete the contract. 
They went to Carthage with the lawyer, as Appel- 
lant Stringer testifies, to see if the lawyer would ad- 
vise his client to purchase a part of the land. Appel- 
lant Stringer testifies that the first place they went 
to in Carthage was to the ‘‘Advisor’s’’ office to see a 
soil map, and states that the lawyer did not like the 
looks of the map. They returned to Peoria and sent 
for the witness Boers at Lacon, a civil engineer, who, 
with appellants, the lawyer and two other witnesses 
experienced in tile digging, went upon the land the 
latter part of March, 1921, and 
Page 12 





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auld hatte abana oft aii men cits 


made various experi- 
ments in testing the soil upon the 342 acre tract. 
Boers testifies: ‘“‘We went to the Burner tract, and 
under my direction, two tilers we had with us, the 
two Abbots, dug test holes under my direction over 
the tract to determine the nature of the soil, both the 
surface and subsoil.’’ At that time they had a copy 
of the soil map and by these diggings they endeavored 
to verify the map. Most of the holes were dug on the 
west side. A few were dug on the east. 

“‘We found that the black silt loam extended prac- 
tically over the entire east half, and extended to a 
depth of two and a half and three feet, and was under- 
lain with the clay subsoil. On the west half, in the 
north center and northwest portions thereof, we found 
a brown-gray silt loam on tight clay. This brown- 
gray silt loam over the tight clay, the surface soil 
varied in thickness from seven or eight inches to 
twelve or thirteen inches, the average being about ten 
to twelve inches. In most places it was underlaid to 
the depth of twenty inches by an intermediate soil, 
of a more or less plastic nature, a brownish-gray in 
color, and more or less impervious to water, though 
that to the depth of twenty inches or' more, was under- 
laid with a tight clay, very plastic and impervious to 
water. This intermediate soil was not at all times 
present, in some instances the top soil at a depth of 
of ten or twelve inches verged immediately into the 
tight clay subsoil. This tight clay subsoil is a very 
plastic, viscous and impervious clay, having the ap- 
pearance of unvulcanized rubber, as near as I can des- 
cribe it, and when wet and broken apart, to be in 
horizontal layers. ’’ 

“‘The farm is flat, with a slight fall to the south- 
west. From the nature of the soil and the nature of 
the subsoil and nearness to the surface to which the 
impervious clay lies, I would say it would be imprac- 
ticable to tile it.’’ 

“Tile, to properly drain cultivated land, should 
lay between two and one-half and three feet below the 
surface. If tile were laid 

Page 13 


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a rob: OMe soit s0 
(2 ag sso bgeis ; 





in the Burner farm this way 
they would not work, or would work so slowly it would 
not be beneficial. In some years if the distribution 
of moisture were proper, fairly good crops might be 
raised, but as an ordinary thing, the top soil being 
so shallow, it becomes thoroughly saturated with the 
heavy spring rains, and being underlaid with the im- 
pervious strata, it keeps it wet for such a period that 
it does not drain out properly and does not warm up 
soon enough that seeding could be done as early as it 
could in better drained soil. Then, as the season pro- 
gresses and as the top soil dries out, and the summer 
droughts come on, the plants would be required to 
draw their moisture from the lower depths and this 
same impervious strata would exist, and would hinder 
the capillary attraction. On the Burner farm the im- 
pervious clay would lay above the tile. ’’ 

Boers further testifies that the east half of the 
farm is much better than the west half and that the 
west half of the tract would be worth about forty per 
cent as much as the east half. . 

Boers was on the tract again in October, 1921, 
with Appellant Stringer, the lawyer, and Evans, Wier 
and Snyder, who were witnesses from the State Uni- 
versity. The consensus of this testimony is that there 
are about one hundred acres in the northwest part 
of the tract that is a shallow, light covered soil, eight, 
ten and twelve inches in thickness, resting upon a 
“tioht’’ or impervious clay which prevents drainage, 
and in shortage of rainfall, drys out and the crops 
erowing ‘‘burn up.’’ 

The soil map, made under the authority of the 
State, through the University, and in the hands of the 
farm advisor of Hancock County, was offered in evi- 
dence, and shows, as near as we can determine, sixty 
to seventy acres in the northwest part of the tract to 
be a ‘‘brown gray silt loam”’ or ‘‘tight clay’’ and that 
the balance of the tract is a ‘‘black silt loam on clay.’’ 
It is conceded by all the testimony in this case by the 
witnesses who had any knowledge upon the subject, 
that there was some ‘‘spotted land’’ in the northwest 

Page 14 


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part of this tract where the subsoil was a more imper- 
vious clay, but there is a wide variation in the testi- 
mony as to the amount, its nature and its value. 

On the 31st day of March, 1921, appellants served 
notice upon appellees which contained the following 
statements: 

‘‘Hor the purpose of inducing us to enter into the 
foregoing contract, you and your agent and. agents 
represented and stated to us that thd top soil was black 
loam for a depth of over two feet and the subsoil of 
said real estate was of a type highly desirable and 
well adapted to farming purposes, and particularly 
that the subsoil underlying said land was of yellow 
clay and porous so that the surface water would freely 
pass through it, and further stated that said sub-soil 
was first-class in respect to its drainage qualities. 

““We relied upon said statements and each of them 
and believed them to be true and were induced thereby 
to enter into the contract aforesaid. We have now 
discovered that said statements and representations 
were false and untrue in this, that approximately one 
hundred acres of the West Quarter of said real estate 
has as a surface soil a loam of a light brown color of 
a depth of about eight inches, immediately below this 
is a gray clay stratum of plastic and impervious clay 
to a depth of about 18 or 20 inches, and underlying 
this there is a stratum of very plastic impervious clay 
of a thickness of 8 to 12 inches; that this clay is im- 
pervious to water and prevents the drainage of the 
surface water from said land and is so near the sur- 
face that it is not practical or expedient to tile said 
land by means of tile ditches and that there is no 
practical way of tiling and draining the said land, and 
because thereof the value of said land for farming 
purposes is greatly impaired and its fair cash market 
value greatly depreciated.’’ 

Appellants, therefore, in the notice elected to ter- 
minate and rescind the contract and demanded the 
repayment of the sum of 

Page 15 








Ugeyanee a 





ead ail) ie codtnits on 
nk ate lets 


han sai i ea 





meld ay emer 1 





$31,800. At the time of 
serving this notice appellants delivered and turned 
over to appellees the new leases appellants had taken 
to the tract and advised Appellee Burner that they did 
not want the lands. Later, about June 16, 1921, ap- 
pellants caused their contract of purchase with appel- 
lees, having a notice of rescission attached, to be re- 
corded in the office of the Recorder of Deeds of Han- 
cock County. The notice of rescission attached to the 
contract and recorded is as follows: 

““To Whom it May Concern: 

“Notice is hereby given that we and each of us 
have rescinded the foregoing contract on account of 
certain false and untrue statements and representa- 
tions made to us, which induced us to enter into said 
contract; that because of said rescission we expect to 
and will start suit for the recovery of the $31,800 paid 
under said contract to said T. E. and D. B. Burner; 
and notice is hereby given that we claim a line against 
said premises to the extent of said sum of money. 

“Dated this 16th day of June, A. D. 1921.”’ 

(Signed by appellants. ) 

Thereupon, on October 6, 1921, appellants filed in 
the Cireuit Court of Hancock County a praecipe for 
summons in assumpsit and summons was issued re- 
turnable to the October Term, 1921, of said court. A 
declaration in assumpsit was filed in said cause on 
October 6, 1921, based upon special counts and the 
common counts. This cause stood upon the common 
law docket of the court until April 22, 1922, when, by 
order of court, the cause was transferred on motion of 
appellants to the chancery side of the court, and ap- 
pellant presented a bill of complaint praying for 
equitable relief and praying summons issue for the 
additional defendants holding mortgage lien claims 
and appellees in this suit. 

Page 16 





It is charged in the bill that the representations 
made were: ‘‘That all of said land has a surface soil 
composed of black loam to the depth of about two feet, 
and that underlying this for several feet was a yellow, 
double-jointed clay subsoil, which was pervious to 
water and of such a character as to permit the free and 
uninterrupted passage and absorption of water falling 
upon the surface and of such a character as to permit 
water by capillary attraction to pass freelv from the 
subsoil to the surface.’’? This charge as to represen- 
tations was made in one count of the declaration in 
the common law suit. We set it out as it contains 
phrases not previously used by appellants such as 
““double-jointed,’’ a term enigmatical to many wit- 
nesses in the case, and we have not been able to find 
the term in the dictionaries. In fact, but one witness 
of appellees’ forty-five witnesses had ever heard of 
the term or was able to define a ‘‘doubie jointed’’ clay 
subsoil. It is noticeable, also that appellants did not 
use the term in the notice of appellees, and the term 
used is peculiar in this record. 

Appellees produced over forty-five witnesses. 
Appellee Burner and Jolinson denied emphatically 
that either of them had used the terms and language 
ascribed to them in certain respects as testified to by 
appellants and Hamm, or that they or either of them 
had made any statement about the tract that appell- 
ants could not see for themselves. Burner’s descrip- 
tion of the amount of tile on the farm, its location, the 
slope of the land and the out-let to the southwest, was 
all borne out by the facts as proven. But some of 
appellants’ witnesses from the University testified 
that land could not be drained where ‘‘tight clay’’ 
was present, and that statement, from all the testi- 
mony, as an academic question might be true in cer- 
tain isolated and extreme cases; but, from the testi- 
mony, it is not ordinarily true in practical farm drain- 
age, as many of appellees’ witnesses 

Page 17 








mailer, nolan bo stodter 
‘incre ha “taba 





testified. Just 
how much ‘‘tight clay’’ or brown gray silt loam there 
was on the west quarter section, it was difficult to 
determine. Boers and his assistants bored holes at 
various places with no particular system and came to 
the conclusion there was about one hundred acres of 
so-called inferior land, Stringer testified that he had 
never heard of ‘‘tight clay’’ lands. Burner testified 
that he had never heard of a ‘‘double-jointed yellow 
clay’’ land and each may have testified truthfully. 
Appellee caused a survey to be made of the entire west 
quarter section of the land and a hole to be dug every 
two hundred feet in each direction. William Jeffrie 
Horney, aged seventy-five years, a farmer and sur- 
veyor, who had had experience in farm drainage and 
given a good deal of attention to the nature of soils 
and the effect of tiling, testified for appellees: 

“‘T did some surveying for Burner on the Burner 
farm; dug holes on the farm in company with Dona- 
hue, a soil expert from Macomb. This was done July 
last, from the 4th to the 9th; dug a hole every two 
hundred feet over the west quarter, beginning at the 
southwest corner; used thirteen stakes in crossing the 
quarter section. Then we went north two hundred 
feet from that and back on another line, until we set 
a stake every two hundred feet over that whole quar- 
ter of land. Dillon, Cook and McKee dug the holes. 
After the holes were dug, in company with four or 
five other men, Cook, McKee, my grandson, Paul Hor- 
ney, and myself and Fisher, and a soil expert from 
Macomb, investigated the soil; took a tile spade and 
sliced down the side of that hole to the three foot 
depth, laid out the slice so that we could measure the 
soil and the sub-surface soil and the sub-soil, and pass 
on its quality. My grand-son, Paul Horney, kept the 
record after we passed on it and agreed on what we 
could. This record was turned over to T. HE. Burner 
at the close of the investigation. 

‘““There were two distinct ponds. Some of the 
holes came in the ponds. One had two. The soil 
in the north pond was rusty and was jointed, but 
showed rusty streaks through it like water had laid 
on it; have drained ponds like that successfully. 

Page 18 


bina! hagiid asa ais . 
_atiog Y est old, Oba 





‘<The soil in the south pond was the same as the 
other; think it would tile drain; know about light or 
white spots in land in Hancock County. The soil is 
harder to dig through than black soil. 

‘‘The last hole was near the northwest corner of 
the west forty. There was more dark soil toward that 
corner; put down an extra hole at the northwest cor- 
ner; saw a quarter of an acre of light land up near the 
northwest corner. That light soil will not drain as 
well as the other land; think the Burner farm can be 
tiled. 

Q. ‘‘Did any of these holes go down in any of 
these white spots on this quarter? 

A. ‘Yes, there was several holes that the soil 
was tighter than at other places. Now, I don’t re- 
member; it seems to me No. 20 or 21, that is east on 
the first row, was about the worst of any I saw. That 
is the hardest. * * * That is my recollection, 
just from memory. I know I found that to be toler- 
able hard soil.’ 

You can’t tell the white spot as well when there 
is corn growing on it; ‘‘couldn’t see it for the corn. ’”’ 
That soil was tighter and harder than in the ponds. 
Sometimes the white soil was in a spot and sometimes 
in a streak. The drainage of the east half of the 
Sinele eighty is toward the east and south. The plat 
shows two distinct drains, outlets, near the southwest 
corner of the west quarter. There is a well defined 
fall of the east part of this farm to a drain there on 
the south line. There had been a heavy rain and they 
could tell the drainage of the land by the way the 
water had flowed on the surface. The white spot 
comes in between stations 157 and 158 just south. 
Between holes 49 and 50 there is a windmill. The 
circle around station 85 represents a pond. The circle 
near 127, 134 and 135 is another pond. Nothing grow- 
ing in the pond when he was there. 

The arrows show the natural flow of the water. 
There is sufficient fall to drain the farm. The lines 
give the direction and 

Page 19 








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beset 9 de nse 
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of bon atupiat dt 
oto y edt siti be aso 





the figures give the rise in feet. 
Most every section has a fall, and when they are added 
together there is a good, fall on every line. 

There is enough fall on the farm to successfully 
drain it; thinks the soil will drain on that farm. 

Q. ‘‘Did you find any hardpan in there? 

A. ‘No, sir, not any hardpan that I call hard- 
pan. Of course, there was a close, tight soil in a few 
spots that won’t drain very easily, won’t flow freely 
through it, but you find it everywhere over this county 
and even in other counties. 

@. ‘‘You may state whether or not you have 
found such spots in practically every farm you drained 
in this county? 

A. ‘‘In many of them, yes, sir. ’’ 

Didn’t dig on the east quarter. Most of the west 
quarter is a brown soil ‘‘with occasionally a white or 
light spot. ’’ 

“‘T have a recollection that there was no bad soil 
except as I tell you, occasionally, probably twenty 
holes on that whole farm that I considered pretty tight 
soil, hard to drain. 

Q. ‘‘Yes, sir, take hole 21 and describe it from 
the surface down three feet. 

A. ’’Well, it had apparently a good little bit of 
soil on top, not deep. 

Q. ‘‘About six inches? 

A. ‘Yes, sir, and a subsoil or sub-surface soil 
that grew into a whiter, lighter color. While this 
showed on top, it didn’t show as plain as it did below 
the surface, because it had been mixed in the top by 
plowing and farming. Probably some day it had 
shown whiter. 

Q. ‘‘How deep would that be, Mr. Horney, the 
sub-surface? 

A. ‘‘As near as I can remember, probably six or 
eight or ten inches, may be nearly to the bottom of 
the hole, of the light colored soil. 

Page 20 





Q.‘“That would be this whitish-looking, stickier 
soil? 

A. ‘‘Yes, probably the same as you have there. 
Yes, it probably does. It was as light as that. 

Q. ‘A kind of sticky clay? 

A. ‘‘No, not necessarily so sticky, but it wasn’t 
a jointed clay, exactly, but it was porous. ’’ 

It is better to take a testing of soil with a spade 
rather than with auger. The auger pulls the soil to- 
gether. An auger compresses the soil. It is better 
to lay it out with a spade. 

Joseph McKee, who assisted the witness Horney 
in surveying the tract, had spent a life time draining 
land and had placed three hundred and fifty miles 
of tile in Hancock County. He testified: ‘‘I know 
the Burner half section of land. I was on that land 
during the month of July, 1923. I dug test holes all 
over the quarter—every two hundred feet. That was 
the northwest quarter of the section—the west half 
of the half section. I dug most of the holes myself. 
They were dug by stakes set by W. Jeff Horney. I 
was there when he set them. The stakes were num- 
bered. Stake No. 1 began at the southwest corner 
of the quarter. From here they ran east. The last 
number east on the first row was No. 13. Then there 
was another row two hundred feet north, then west 
again. This was continued back and forth over the 
quarter, up to 169 holes. The last hole was in the 
northwest corner of the quarter—or rather it should 
be the northeast corner—the 169th hole. I put down 
holes near these stakes. They were practically all 
three feet deep. I probably dug a hundred of them. 
I observed the kind and character of the soil I was 
digging in. I examined the soil in all the holes. We 
dug down’ by the side of the hole with a spade. We put 
down additional holes in the northwest corner. We 
were looking to see if we could find any hardpan. We 
put a hole a little northwest of the last stake in the 
northwest corner. I 

Page 21 





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heard about it being a bad place; 

that it was the worst place on the farm. I put the hole 
down three feet. That hole was clay loam; it would 
drain. The additional hole near the northwest corner 
was practically the same thing as the stake; it would 
tile drain. There was a hole came in each of the 
ponds. It was a kind of a brown loam, and a grandu- 
lar clay subsoil; it would tile drain. I did not find any 
hardpan on the west half of the Burner land. I am 
familiar with hardpan, 

““A day or two before, or at least a little before, 
I put down these 169 holes I put down some other 
holes promiscuously on the land. One was about 
station 20 on defendant’s exhibit 3. There was some 
dispute about the ground being hardpan, so I dug two 
holes there practically and left a partition between, 
and poured a couple of buckets of water in there to 
see what it would do and the water seeped through 
from one hole to the other. The partition was six 
inches thick between the holes and the holes about 
three feet deep. The soil there was porous. This 
was a white spot where I put these holes. The soil 
was porous. I found no soil on the Burner land tight- 
er than I found at this point, No. 20, where I poured 
the water in the holes. I think that there is plenty 
of fall on the land to drain it. I did not help Mr. 
Horney in this getting of the levels, but I had taken 
levels myself once before over the same farm. 

Q. ‘‘Now, Mr. McKee, I want to ask you wheth- 
er or not, in your opinion, from your experience as a 
drainage contractor and tiling different farms, and 
from what you saw of the soil on this farm, on the 
west half of the Burner farm, it is practical to tile 
drain that quarter section, of land and all of it? 

A. ‘‘It is, yes, sir. 

'Q. ‘‘And will or not, each and every part of that 
quarter section of land successfully tile drain? 

A. ‘Yes, sir.”’ 

Page 22 





ils sins i ee fi i cn 
slow add: ai fe sae G 





“‘T have had experience in tiling farms that have 
white spots on them, and on places such as were found 
on the ponds on this quarter. The tile laid there 
makes it the best part of the farm. I have laid tile 
in ponds similar to these. I do not find any tight sub- 
soil on this farm. I did not find any land in this 
quarter section that you would call plastic clay or 
any white spots which would prevent it being suc- 
cessfully tiled. I have had experience in determining 
the character of the soil in putting down holes on 
land. The only accurate way is with a spade. You 
can’t do anything with a two-inch anger. You bore 
down in the soil and that destroys the pores of the 
clay, works it up together and you can’t tell whether 
it will drain or not. A two-inch auger just putties it 
all together and mixes it all up. You ean not tell 
anything about the soil after it is baked hard—after 
it is mixed together that way, nor can you tell imme- 
diately after it is taken out. There was corn growing 
right up to the pond—that is, the north pond. I ob- 
served the crops on the place last summer. They 
were good when I was there. You couldn’t tell any 
difference in the crops on the light places and on the 
rest of the farm. 

Q. ‘Now, I will ask you how this land will com- 
pare as to tile drainage with the average land up 
through that section, Mr. McKee, as to whether it 
will drain as well as the average land up through 
there? 

A. ‘Yes, sir, it will. 

“T have had occasion in laying 350 miles of tile 
in Hancock County to observe the effect on land sim- 
ilar to the Burner land, where tile is laid through these 
spots, and through ponds in soil similar to the Burner 
land. We have these spots in almost any quarter in 
Hancock County. There is no quarter where you 
can’t find it. This is as good a quarter as there is in 
the county. ’”’ 

Page 23 





are) bini it cr pert 
neh bish caret PA Sains: be risa 








Albert O. Behnke testified that he was a farmer 
and stock feeder and says in the latter part of June 
or the first of July he sold what has been mentioned in 
this record as the Behnke farm at $265 per acre. He 
says he does not know what it sold for when sold the 
second time but he says that the third time it was sold 
for $325 per acre. These sales were made in 1919 and 
1920 and as already shown by other witnesses the 
Behnke land was not as good land as the Burner land. 
It was purchased at $325 per acre by Grover Barnard 
who had formerly lived in that vicinity. This wit- 
ness, Behnke, says that he had known the Burner 
farm for fifty years; that he had always considered it 
a good farm; that there was always a good crop on it. 

This testimony was corroborated by numerous 
witnesses, men of practical knowledge of affairs, and 
in such numbers that this court is impressed that the 
condition of the soil in the part of the tract in question 
is not a hardpan or impervious clay underlying any 
considerable portion of the tract, but that it is spotted, 
there being in places light spots or streaks where the 
surface soil would not extend so deep and be underlaid 
with a harder clay, more difficult to drain, but still 
porous. These spots and streaks were found on near- 
ly every farm in Hancock County and as to the amount 
of this land on appellees’ tract, it is practically im- 
possible to determine; one witness testified not over 
two acres. Of actual land underlaid by this clay, 
probably there was not to exceed twenty acres. There 
may have been more and it is quite possible there was 
less. There was testimony tending to show that one 
could see and observe this light soil by going over 
it, and Appellant Stringer’s testimony corroborates 
this theory in the importance he imputes to the claim 
that Johnson and Hamm would never take him over 
this part of the tract. Johnson testifies that they 
were over this part of the tract, and that Appellant 

Page 24 





Stringer saw the spots and that they discussed them. 

The testimony of over thirty witnesses was un- 
disputed that in June, 1920, similar tracts of land in 
Hancock County were selling for three hundred dol- 
lars per acre. Only one witness placed a lower valua- 
tion upon the tract—$275 per acre—while a few testi- 
fied that the price had gone as high as $325 per acre. 
This testimony was competent as bearing upon the 
question of motive that appellees might have to com- 
mit a fraud. Appellees had purchased the lands in 
the spring of 1919 at $220 per acre. The increase in 
value is not remarkable under the testimony in this 
case, and to those who remember the ‘‘booming’’ 
times. There are certain features of this case which 
are remarkable, some of which have been pointed out 
and do not need further amplification. Appellant 
Stringer testified that he purchased these lands for a 
home, as corroborative, we take it, that he relied upon 
appellees’ representations as to the soil. If he testi- 
fied truly he made a very improvident bargain, at 
fifty-eight years of age to purchase a tract of land 
encumbered by a mortgage for forty thousand dollars 
and without the means to pay for the equity, and with 
no means with which to tile, drain or make repairs 
upon the dilapidated buildings and fences. The nat- 
ural thing for one desiring a home, in the opinion of 
this court, would be to first find a market for the one 
which he has and, at least, before he purchases to 
provide himself with means sufficient to pay for the 
equity in the roof which he plans to cover him. This 
appellant did not do. If appellant were speculating 
in land, and purchased this tract for a resale, at a 
profit, which he expected, this court could more read- 
ily give credence to Hamm’s testimony that Appellant 
Stringer ‘‘was a good judge of dirt.’’ The testimony 
of Hamm is not impressive in this record. At the time 
Hamm was advising the Stringers to see a lawyer and 
assisting in laying the foundations of this litigation, 

Page 25 


1109! sos Sid thy 
Ghebunh adlt honor 


__noipr witihign ath sage die a) TRAE 
- siteod ob EL iow ald, ot-may actontinh . 
ie pecgreprint epee a 


ant ary mar mt + $a 
begs stil alba o} 





he had in his possession a good remunerative commis- 
sion paid by appellants for getting them into this diffi- 
culty. The record does not show that Hamm has ever 
offered to return any part of this commission to ap- 
pellants; neither does it show that Hamm was de- 
ceived or misled by any of the false representations 
charged to Johnson or Appellee Burner. In fact, 
Stringer substantially charges Hamm with aiding 
Johnson in keeping appellants away from the west 
part of the tract. Appellees’ conduct on March 1, 
1921, in offering to extend the time of payment and 
delivering the possession of the lands to appellants, 
as appellees had done, hardly seems in accord with 
a fraudulent transaction. 

The Master in Chancery found that the testimony 
did not establish that appellees or their agents made 
the false representations upon which appellants relied, 
charged in the bill of complaint, and the chancellor 
has approved that finding, upon which a decree has 
been entered. The burden of proof to establish these 
charges is upon appellants. Hungerford v. Behrens, 
308 Ill. 414. The law. applicable to this case has been 
aptly and forcibly laid down in Crocker v Manley, 
164 Ill. 296, where it is held: 

‘““InFarmsworth v Duffner, supra, which was a 
bill for the rescission of a contract of purchase and to 
recover the money paid on the contract on the ground 
that it was entered into through false and fraudulent 
representations, in the decision of the case it was said: 
“Where the means of knowledge are at hand and 
equally available to both parties, and the subject of 
purchase is alike open to their inspection, if the pur- 
chaser does not avail himself of these means and op- 
portunities he will not be heard to say that he has 
been deceived by the vendor’s misrepre.entations. ’ 
It is there, among other things, also said: ‘In Lud- 
ington v. Renick, 7 W. Va. 273, it was held that ‘a 
party seeking the rescission of a contract on the 
ground of misrepresentation must establish the 

Page 26 
















ei ‘ ha ie 

“Bib gIOD nubian hows. & piaaRaoKt 
-PTtify atult obs usd): Ritition, wi alaotle : 

04S seiaenhaesinr apse 







opt iad yeas mallee ae 
tte pesianse noid: 




















ptadtteenia.id ir pata en one 
Ativ ieee ih antnge action, aitob, 





saat? ‘heildiateo.ov shel ea ‘asbagtt sia 

ametled ¥ brobennnl ahoslloqen mot oe 
raed ealionas aidd ot sditolicicenivarbk ae) \ 
velaeM  v peau a, seve besa 


os y Mat: Cask Paidaand baie 
heurory ould to, tonidaoa aft no big coi 
trafohrett baw cole. dauond ‘oihai 
Give gaw 3iaend oil, to aolainah ont 
bite feed ta. om aeholaoad to eaneat 
to ween aii bara ~asltzag idtod. 




















ai dail ‘lo: od, aioe Bi amy sat MG, 
ot ao taarinoo 6 to cok 


oft daiidetas jemm cobtaigoesutaset 






same by clear and irrefragable evidence; and if it 
appears that he has resorted to the proper means of 
verification, so as to show that he in fact relied upon 
his own inquiries, or if the means of investigation and 
verification were at hand and his attention drawn to 
them, relief will be denied.’ In the case of Attwood 
v. Small, decided by the House of Lords, and reported 
in 6 Cl. & Fin. 232, 233, it was held that ‘if a pur- 
chaser, choosing to judge for himself, does not avail 
himself of the knowledge or means of knowledge open 
to him or to his agents, he cannot be heard to say he 
was deceived by the vendor’s representations.’ And 
in 2 Pomeroy’s Equity Jurisprudence (sec. 892) it is 
declared that a party is not justified in relying upon 
representations made to him: ‘(1) When, before en- 
tering into the contract or other transaction, he actu- 
ally resorts to the proper means of ascertaining the 
truth and verifying the statement; (2) when, having 
the opportunity of making such examination, he is 
charged with the knowledge which he necessarily 
would have obtained if he had prosecuted it with 
diligence; (3) when the representation is concerning 
generalities equally within the knowledge or the 
means of acquiring knowledge possessed by both par- 
ties.’ But if the neglect to make reasonable examina- 
tions would preclude a party from rescinding a con- 
tract on the ground of false and fraudulent representa- 
tions, a fortiori is he precluded when it appears that 
he did make such examination and relied upon the 
evidences obtained by such examination, and not upon 
the representations. ’’ 

In this case there is nothing to show that Appellee 
D. L. Burner made any representations or knew any- 
thing about the land or soil or had or appointed any 
agent to act for her, other than O’Harra through the 
power of attorney and the terms of the contract therein 
recited. Nothing in the record indicates that Appel- 
lee T. K.. Burner had any more knowledge about the 
land or soil than appellants had. Certainly it is not 
established by ‘‘clear and 

Page 27 









he ee Pee shiva sdagon une had J mri 


iy ans ne sacle dich ae 
heowat A to coke oooh Lh bakwuh: al 4 
a te badioges, ban liek to sesoll git ed 4 sige 
ty TEAR 8 te Sp Red Baw ite) ER ‘SRE ing 


fig sind apab: ey thawttontal, oh a8 ol ot tsi 
























wail sis ite 8 ‘ake te lt oie 


hte ithe. 


1 ot Bit taba nen jee “iets ie vellaaya i 

chy alte "4 ve bennneOny exihval wort suns 

“Boilie Slduseaaed ataniay 

SOD ae ci baigeen se 

Gael, BETGROTSY subtubuet) ‘pars signs He 
i yr fad aampgnre 4b odie bebrloag ‘oid 
eit. coau Buiter tan oranges 


ey 


es 

= 

Pe 

s 

= 

pies 

= 

Be 

= 

ee S 
E 

Ee 
es 
- 

a 


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vtEn bes ETOAC oe 0G) Dusah 1, ssid ! 
nit shyuertclt I nl 





4 


ithe vil xy Howrhudp only te. orto} ane hein 4! 
lagi deilt Bebe otbat bxogoe 





"f 


ot drods ae hob ont: 
tor ebb vintategOo ob 





irrefragable evidenee,’’ and 
this court, from the record, is led to the irresistable 
conclusion that this litigation would never have been 
in the courts had not the panic in land values and 
business occurred in the fall and winter of 1920 and 
1921. We ean not say that the finding of the Master 
and Chancellor as to the false representations claimed 
to have been made, is against the weight of the testi- 
mony. Weare satisfied that it accords with the testi- 
mony. Other questions are raised in the case but 
this finding makes it unnecessary to consider any of 
them, except one. 

The bill prayed that appellants’ claim for moneys 
paid upon the contract be established as a prior lien 
to that of the second mortgage upon the lands, and 
the decree dismissing appellants’ bill for want of 
equity apparently is res adjudicata of that question 
against appellants. Appellants have assigned error 
that the decree is contrary to equity and good con- 
science and in not finding that the lien of appellants 
for the amount paid on the contract is a prior lien to 
that of the second mortgage. 

_ Appellants and appellees have presented this 
cause to a court of equity without presenting the true 
relationship that these parties bear to each other 
under the terms of the contract, in a court of equity. 
Under the decree of the Cireuit Court and the finding 
in this court appellants are denied the right to rescind 
said contract, and it is still in force. Appellees have 
never forfeited the contract or brought proceedings 
to recover the balance due upon the contract, or to 
foreclose against the lands. Appellees are in the posi- 
tion of mortgagees in posession. (Lewis v Shearer, 
189 Ill. 186; Rhodes v Meredith, 260 Ill. 143; Mie- 
demav Wormhoudt, 288 Ill. 537; Ward v Williams, 
282 Ill. 641; Knights v Knights, 300 Ill. 618.) 

In Lewis v Shearer, supra, it was held: ‘‘The 
appellant contends that Rudolph Topsico— having 
failed to pay the purchase money when due by virtue of 
the conveyance of three of the heirs of Frank M. Tat- 
um to him, the bond for a deed was forfeited and he 
became 

Page 28 





ae 


wait! “sot Bap tie : 
sae eee ber ionic 


invested with the absolute title to the un- 
divided three-fourths part of the land, disencumbered 
of any right, title or interest therein of Rudolph Top- 
sico and John A. Shearer. In a court of equity such 
contention cannot be sustained. In equity the land 
upon the execution of the bond and notes became the 
property of Topsico and the purchase money that of 
Tatum, and the transaction will be considered in the 
nature of a mortgage, and treated as though a con- 
veyance had been made to the vendee and a re-convey- 
ance taken back by way of a mortgage when may be 
sold and assigned, and the assignee may enforce such 
lien in equity. (Lombard v. Chicago Sinai Congrega- 
tion, 64 Ill. 477; Wright v. Troutman, 31 id. 374; Hut- 
chinson v. Crane, 100 id. 269; Church v. Smith, 39 
Wis. 492; Conner v. Banks, 18 Ala. 42 (52 Am. Dec. 
209); Gessner v. Palmater, 13 L. R. A. 187.)”’ 

The contract between the parties was of record 
and was an instrument relating to the title to the land 
or some interest therein, at the time the second mort- 
gage was given, and the notice of lien or rescission 
‘“being an instrument not entitled to be recorded,’’ as 
contended by appellants (St. John v. Conger, 40 Ill. 
535) may be disregarded as notice to the holders of 
the second mortgage indebtedness. The interest of 
the parties in said lands, under the terms of the con- 
tract, not having been litigated in this suit, it is the 
opinion of this court that the decree of the Cireuit 
Court of Hancock County as to appellants’ right to 
rescind or cancel the contract, should be affirmed, but 
as to the rights of the parties, appellants and appel- 
lees, under the terms of the contract, the decree of the 
lower court should be modified to show that appel- 
lants’ bill of complaint was dismissed without 
prejudice. 

Affirmed in part and Decree Modified. 

Page 29 


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SMT LEESER 6) SOC La O8 
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“abutinetiya od ee, whine Di as antl io ; 


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Saosin ovate 


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PLEA Te 





























jr Lr 
STATES OF ILLINOIS. a {7 Mi 
ef Ns V Pe 
APPELLATS COURT MS Tom. 
‘i ey on 
47H. DISTRICT. Ve.» 9 = 
ee, f 99> 
oon VE} s 
Liye tey oe 
OCTOBSR TERM, A.D. 1926. Nog 
for <4), a 
Mie 
te. 35, | AG. WOx lbs 


MIS ECKMAN, . ; 
Appellee, ; APPEAL FROM 

WS. : MADISON 
‘your wILp?, ; COUNTY cou? 


rf Appellant. 
i. 

7, Pete + Appellee is a real estate broker ond was employed by 
ant to 7ind a purcheser for e house and lot he wished to sell. 
hile mpaetiations sexe pending she snowed the property to @ 're 
Dively, who Was very much interested and said he wanted the property 
or one like it, The party who hed previously looked at the property 
ided to take it and the deal was closed. Appellee +014 appellant 
it ‘Ure Dively wanted to buy a property like the one she had just 
La. She says that appeliant then told her thet if she got him 


that she got her commission; thst Dively ceuld select any vacant 
lot that he wanted; that he made a selection; that appellant 

ht the lot, built the house thereon for Dively an‘ sold the 
mises to him for $5,000«00. 

Appellant testified that appellee talked to aim about 


‘appellee tola him that if she made the deal with Dively he 
pay her @ commission; that he told her he would make the 
1 ag ae Wg V8 


Pa 


















Nae OTH EET-90 weame 8 
te \ RPSL wh 
Meter aes eked » PHUOD ATAMINGTA 
{ LS 4 gs (\ hak 
ae ro) if Hite 3 SOT RETT oH eae 
vay _ an 
oh 


<e Ng | i 
pase iol aes sak’ 208 8E0900, 
~Sanor Bah ne eh, Se o ; 


ae 





eOL 20M DA 


ort TASTE, 
K “wear 
»PAUOO THRUOD | 


~ 


no AT NRG 
A0.0B. Ve Se Wer ct 


XC Seno fae Bav oie otlend stabeo feet a 2 , 


inalleqaa tai? gaoivoetee & obam sik dah ia 

eit bfon hoa ylovi' sot moexerit eexod edt tise ie of oa 

#002000 8% wa 

dvoda mid oF bexlat seLleqqa sais boit Htued he 11h 
iofse tot Sad ede tadt tot tussey odd te b 

ei ylovid dviw Caeb oat ahem edie K7 saast nis ‘Brot 

cuit exian Sisiow ox wed Sot of tastd rep tanto 9 

















ee high enough so that she could get a commission of 5%; 
| he never knew Dively and his wife until appellee introduced 
to them; that when he went to see the Divelys they knew 
nh app@llce that he bought the lot for $1350.00 and was to put 
> a house for them for $3650.00. The price was satisfactory 
) appellant and he sold the house and lot to Dively for $5,000.00, 
sllee was not present at the final consummation of the sale. 
received a commission from the seller of the vacant lot based 
on the purchase price of the lot and sued appellant for her 
commission on the value of the house, $3650.00e She recovered 
a verdict and judgment for $162.50. 

We are of the opinion that even though appellant 
was not present when the sale was finally consummated, yet 
“ghe/the efficient and procuring cause of the sale and is en- 


‘titled to her commission, Zllis vs. Dansworth, 49 Appe 187; 





‘St ANnviON VSe Potts, 117 App. 80; Cowan VSe Day, 156 ApPDe 105; 
Geer vs. Chapin, 165 App. 654. Acting as reasonable men the 


| jury could not have reached a different verdict. No reversible 





error having been pointed out, the judgment is affirmed. 


Wl He be pnt 


N 
! 
| 
| 
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foarhovtat eelleqqs Lita: etiw eid fag ylevid weml teven ed : ad 
wend! yout eytovid edt oe of dnow od aod fads ymed? of am 

_, Sig 04 ogW Bey 00,0288 tod tek edd aiywod od tact oolleggn mie 
| ywlestetise sew soiuq ofT 000 608 98H 20% opdt wot eenod aq 
00,000,280 xok vlevid od tof baa eerod est Blea ei hoe tna tcoce tl 
»otee edt to motdesmwancs Lanitt 4d3 te tneaetq tox saw oekt “A 
Hotend fol tusoay ot! to xetlen ont moxt no Leetemes 3 bovtesex 
tea vot tnelfeqqe Sere Sua toL edd to eolag easdoxig 
berevooer sit  .00,00080 ,oemod odt to ontav odt mo motaal 
208-S8L% wot dnamybst, fae 4 

sasileqgs dgrroctt tiove said moimtqo adt to ots on. 

fey ,bolaammanoo viteakt new ofse. odd moxdw aed l 

wwe al bon elas edd to eanso yatissote bua. eis 

sTSL sqqh CS ,ktrowaid sev alia ,xobeelumoo tod e2 | 

<80L .dqd GGL .yed »er meawod 708 »qgA TIL ,ettol .ey : 7 

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eldiexsves ok »tothror duosoltz5 2 bostoan' owed ten BL oe 


Boe oak 



















’ yo | f ; 14 4 # { 
: er 7 / 4 f f A i 
% E anv 
i Foy 
na, f j STATZ OF ILLINOIS. 
}. APPELLATS COURT 
a 47H DISTRICT. 
q 
a OCTOBER TERM, As De 1926. 
Ny 
NW) 
ft), <* 
i) 
q TERM NO» 25 AGe HO. 10. 
a Cy ig a oe 
un Key & Lh L% Co fea 
a eo telhe UU YX et py. 
ih ; if vats } / Aw 
«SOE Ae =HUBEES, : Paige Or ES 
a Appellee, : APPEAL FROM Fey oh bey 
wii, : C\ é 
a V3e : WHITE CIRCUIT \V.) . 8 {929 
j iM 3 : Che, Cry) er * 
_ LOUISVILLE & NASHVILLE : COURT. PaO ho) Ny O0- 
my. Be « STA re 
Re Re COe, . - Pi elle 
; : MOpsy 


Appellant. 


Berry, 2. J» - Appellee recovered a verdict and judgment under 
@ declaration charging that on august 28, 1925, appellant had 
been operating a certain line of railroad for more than six 
months; that it was the duty of appellant to maintain fences 
along its tracks, and gates or bars at farm crossings, suitable 
i land na? fiatent to prevent stock from getting on the railroad; 
that appellee had thirteen head of cattle in his pasture; that 
they escaped therefrom and went into his neighbor's ficld adja-~ 
ent to appellant's railroad; that appellant had constructed a 
- torn crossing in said latter field and had placed a gate in its 
se so as to allow the passage of stock across its tracks; that 
ellant suffered said gate to become in a state of disrepair, 
so that it wes no longer in a safe condition to turr cattle and 
prevent 2a getting upon the railroad track; that by reason 

7 £ the condition of the said gate, appellee's said cattle passed 


=l- 












’ : 
wih TORE, 0 mas, 
: aN 
pet, SEARING. : yy 
<DOLSTEIG aight 
“sane etl ah vate eeeab0” 
of .O8 DA 
A oe “ir am b- 

oe é- oe qe vibes we re < iss 

fala AY VY) te AAAS 
‘ee 


RO. got | MONT aARTTA,, 
sabih \ MEV0EIO ITO... 
~§ A eRe Fidiphe : : etaGs 


+ 


4 
Be 

Ee 

1 





+ 
— 
om 
pes 
Be 
5, E 
ye 
AA 
ea Ma we ee ee ee ee ee 
= ees eee i 


out of his neighbor's field and went upon the railroad track 


sand were struck by appellant's engine and train of cars; that 


_ ten of them were thereby killed and three were seriously injur- 


ed, etc. 

Appellant's main contention is that the court should 
have directed a verdict in its favor. The andiapatea evidence 
is that for two or three years before the accident the posts 
were spread and the gate could not be latched; that a wire 
was used to fasten it; that wire fastenings frequently break; 
that the gate had come open at times. Appellee testified, 
without objection, that he and appellant's section men wore 
at the scene of the accident soon after the train struck the 


cattle; that two of the men went west and one went east along 


the track to find where the cattle got on the right of way, and 


that when they returned the section foreman told him that the 
d eattle came through the gate in question. He also testified 
a that the cattle got out of his own field through a defective 
fence into his neighbor's field, and from there they passed 
through the gate on to the railroad right of way. No one 
testified as to the condition of the gate immediately before 
a or immediately after the accident. One witness testified that 


he saw the gate a few days before the accident; that he went 


through it; that the posts had spread and it could not bs 
latched; that there was a wire to fasten it, and that he 
¥ fastened it with the wire at that time. He alse testified, 
without objection, that when he next saw the gate after the 
, accident, it had been fixed up. Appellant called but one 


witness, one of the section men, but not the foreman, who 


said that he walked the track on the morning of august 27th, 





and observed that the gate was closed. 
The statute required appellant to put in gates at 
_ this farm crossing. The gates are a part of the fence, and the 





ety to — the fences in repair includes the duty to keep 


the gates ze and mequrelyeueyeh so as to afford equal 















| dostt Ssoxltot exid ele fcow ban Bion a | 
toads yes to aletd bus entsne 2 'taaLtenae a 


Bis ode F109 edd feds er. no Leta. nten 
socobive Sotogatbar eff . tows otk at tole 
? ateog exe tnebioos edt etotoed BTSOT ponds 
| | etiw a test pbedotvel ed fom. Sinoe aang. ode 
2 sh qitnexpey? agatcotest ext test : 


Saal 





Senin shit selec ob: bins wotttyieit” 
Sno eit ea Lo deta be oie 


taxit Boritiges eganttm mtd: _stugbiene edt setts 


protection from stock getting upon the tracks at such places as 
at other points, C. & Ne Fe Re Re COo, VSe Harris, 54 Ill. 528. 
In that case the gate had been left open for a week and the reil- 
road company knew it was open. Tnere the fastening consisted 
of a chain and hook, which was fairly good, but the cate would 
play back and forth with nothing but the/hook to hold it, the 
court ssid:- "In this condition iit was subject to be opened dy 
the action of the wind or by stock rubbing against it, Cc. & A. 
R. 2. COs, VSs Morton, 55 App. 144. In that case there was no 
 @irect evidence that the gate was opened by the action of the 
wind or by the stock, mt the court considered it a fair inference 


; 
ag it was opened in cone of those ways. ‘here the question 
Yew as to whether there was a sufficient fastening for the cate 


ana there was evidence to the effect that the gate was so con- 















structed that but little foree was required to open it, the court 
gaia thet in ell probability the horses opened it by rubbing and 
‘pashing ageinst it, C. 3. & Q. 2.2-Cos, VSe Finch, 42 Apre 90. 

: The testimony of appellee that the section foreman 
told him that the cattle came through the gate on to the railroad 
track was hearsay ana incompstente Had it been objected to the 

» no doubt, would have excluded it. ‘The evidence that the 
gate was repaired after the accident was incompetent but it was 
Duet objected to, Howe va. Medaria, 183 Tl. 288. Litigante are 
no position to complain of incompetent evidence where they 

low it to go to the jury without objection. 

Where evidence is hearsay and incompetent but is adq 
mitted without objection, it is to be considered ana given its 
natural probative effect as if it were in law admissible, Ascher 
Bros. VSe Industrial Commission, 511 Ill. 258  # The effect, 
ly, of evidence of repairs having been made after an 
ace dent, is to operate as an admission of negligence, City of 

ylorville vs. Stafford, 196 Ill. 288-291. Such evidence is 
to be interpreted by a jury as an admission of negligence, 
eS VS. Percival, 152 Tile - If a party is content to 


















Ss aan oxedd” ous ‘aii i * BRE’ wage’ Ba 
“ekd Yo nofios Bae xe beneie! aw edap ay tele | 
aonsne tat tis? s te bored Lune taxa ‘galt tag: oot: ait a 
oi) paus ond ‘oxen sayae eiedd bo: dro att Benen = 
ots oat ‘sot ‘Sntibreat ¢ vive beso stad ote tots 


208 Tq gs etonkt “ay sot are ye x te itl ane 
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| oat ot bedbetdo eed tt ‘bak dito seiqiitiont pre! ne " | 


ead fad) eonebive ea ete wivew i ihn 8 0 ‘ 
eaw tf aed biennale ase boaheae ott deat Sine 


“ iy fre! “Metegacdat Bae werdat wa ’ 
atl nevis fin boreblaies od oF eb Sk! ssontostee 
todoes veld tecieba ‘wal wt erow df %2 be toorte. or 
toot te ent? Wisaee Pe sg es 3 3 ss Reatinio® Sabrbestint 12 

oe tolte ehem med Fenn wamaseirneshdthenge 


















let improper evidence go fo the jury, without objection, he 
cannot complain if the jury has considered it and given it its 

: y natural probative effect. | 

| / Appellant insists that its peremptory instruction 
should have been given because appellee was guilty of con- 
tributory negligence in failing to maintain his own fence in 
such manner as to prevent the escape of his cattle into the 
field of his neighbor. That contention is without merit, C. & 
soe “We ReReCOe, VSe Harris, supra; I. Ce ReReCoe, Vee Arnold, 
a7 Tle 173. 

| , In view of the facts that the posts were spread and 

_ the gate could not be latched; that such was the condition for 

_ two or three years; that a wire was used to fasten the gate; 

| that wire fastenings frequently break; that the gate had 

q come open at times; that appellant repaired it soon after the 

, a accident and that appellant's section foreman examined the gate 

, @ few minutes after the accident end told appellee that the 
eattle came through the gate, we are of the opinion that the 
jary might reasonably infer that because of the insufficiency of 
the fastening the gate came open, or that it was so insecurely 
‘fastened that the cattle opened it by rubbing and pushing against 
ite That being trae the court did not err in refusing to 

; t, direct a verdict in favor of appellant, We would not be warranted 
; a in holding that the verdict is so manifestly against the weight 
b of the evidence that it should be set aside. No reversible error 
having been pointed out, the judgment is affirmed. 





U / 


oa Pike ake: twoddaw fell out of oy, s sone re 


edt otal elites eid co sq sone ont inorea ot | 
40 tltem woud te al wol tnotmos deat +pday hon as BY 
‘,bLomna .e7 p290oFafh mr a apse. ee mt: i 


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stay ouit - Bemtnaxe — noLtov aan. fact 
exit taste eeLleqie Sf0% fom tneb tose odd nei 

We ‘nit tact to faigqe eas to ame ow aatay oat 

zo ‘yore! tact odd to epseped ded vetnt video 

wernocect oe eaw th dad so nO) on ote, ould Be 


: “od paiestes al xo af ai a f08 0 eat 2 ms 
botasrre od tose Binew et Bia **, jes 










y 


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j “7 eS ae 
j OF i ee 
| i j state oF ILLINoTs. A 
a 





















LS "A 
APPELLATS COURT Lip 
cf iF ee x 
40H. DISTRICT. 4 fe, 25>. 
ap, ty LO) 
OCTOBER TERM, As De 1926. “hoy fy — Boy 
3 exsaye jr 
"ERGY 0-9 
Xo, 
"7 
m NO» S06 AC. HOe 2h 
Y MODLIN, : 
Appellee, t APPEAL FROM 
vs. ; «MARTON 
VA ARROWSHITH, Admr. etc.,: CIRCUIT couRT. 
Appellant. : 


‘a Od — rm A 
CV AA fe r >of 
a “4 sf f - : al | 


| ae | hn fine ~ 
res witli ; oti ne 


ak, Soe 


ry, Pe Je - Appellant's intestate was a widower, and all of his 


dren were married. During the last nine months of his life 





the daughters. Appellee filed a claim against the estate for 

vices rendered in caring for the deceased and regovered a ver- 

f and judgment for $893.00. 

Deceased first went to appellee's home in November 

» under an agreement by which appellee was to receive $10.°0 

r week for his board and care. He remained with appellee until 

s 4, 1923, and appellee was paid in full for that period. Prom 

> 4, 1923 until August 3, 1924, deceased was cared for by Mrs. 
an On the latter date he was brought back to appellee's 

1omée where he remained and was cared for until his death on April 

ag 

The undisputed evidence shows that all parties knew 

and understood that appellee was to be paid for his services. ‘The 

only controversy was in regard to whether he should receive a 

mable compensation or $10.00 per week. At the time deceased 
























a aE 
a sOLONILII TO SPAKE 


retOD Searaeeca, 
spormterd aad 





Be Syl a 





OGRE of oh MT $80 TOO Kee hee 2, 
. i i | fit 
ie a 





«SS = GTE ak PE ay Bee Pee wasp BSR UP ee TR ne at) ii 


‘ Pee O I Susek wo bis Date bela 


meer awh) lh, apa at 
MORE TASCA = g .eLleq 
i: MOLBAR «| a . gry gat Ne 
sBSUOD-TIVUSTO . aqvode etmbA DPT 
gine ae, et mal Lac 
i) oe) chek t oS be S SEN RRR ERPS ie eee Ae aaa 


nike t 


eis to ifs one ‘ea & Baw bined ‘st eadtiaxt = - at 

“@FEt eid to eddemm cate deat odt gate nce mete 
wim So'bindond tii ti on osdiogas 36° dal ll rig ee! 
| ’ te eRe meo & betit  bottonel ” 








x £ WAREZ R 


“‘tedneva% ak owed atseltoqe ed teow its 
“O06 one ‘eriesss od asw sotfougs ‘io baw" sal hor 
“Hida oo LLeqte itiw Seutenes ok “sors0 bass preach id 
mest “sboizoq todd 70k ‘ftwt ot ‘biog caw colleqan bas , 

| san <d sot bora sou beesoooh yates Vs toxpah tite & agers | 
eteelleqas of toad sinew as rie AOS vette pk it "no oi 


_ Lisa ro ttaeh okt and — benae aw ste, saat ag «rede 





worst wiki ite tact Sle! ‘eoktab Ss Wesabe 2 
ef? .sepivreg eid rot biag od oF a soltemis teas booe 
| ihe 8 evieost pisses od tostedw of ase aw Ye 
Seesaseh ontd ed? $4 Guar ne 00.0 ab sotdeonsasoo ° 









s brought back to appellee's home in August 1924, nothing was 
id as to what his compensation should be. There is evidence 
ing to show that he admitted that he was to get $10.00 per 
2k The evidence on the part of appellee is to the effect that 
a eondition of the deceased was much worse after August 1924; 


that he was confined to his bed practically all the time and had 







to be cared for like a little child. ‘That his clothing and the bed- 
elothes had to be changed several times a day; that he had bed- 
“sores and required mach care and attention. Wo fault was found 
with the character of the services rendered. In the gtate of the 

_ proof we would not be uncranted in holding that the verdict is so 
ratty against the weight of the evidence that it should be 


ud 3et aside. 
:. Appellant contends that the Court committed reversible 
‘error in permitting three witnesses to testify as to what would be 















a reasonabl< compensation for appellee's services before a proper 
foundation was laid. ‘The record discloses that one of these wit- 
sses was permitted to answer without an objection being made to 

e question. It also shows that when the question was asked another 
witness appellant made a general objection which was overruled. 

2 2 law is well settled that when an objection to the admission 

of evidence is of such a character that it may be removed by fur- 
proof it must be stated specifically at the time the evidence 
is offered. A general objection will not reach an objection that, 
sumably , , might have been obviated if specifically pointed 


: There was no specific objection except in the case of 
ene of the witnesses. Other witnesses testified as to what would 

a reasonable compensation without any objection being interposed. 
ere was no reversible error in the rulings of the Court in the 
fission of evidence. 

Appellant contends that the Court committed reversible 
ror in the giving of Pe third instruction. It is argued 
=-2= 

















abod edi bap guiddofe ets tad bilo enteat. 8 oat rot B 
“hed Bad od sadist 

| baso? eaw tinal off 

odd 0 odste ext mt 


ob ban ules moidoeteo oe , dodttw “ovens oa; ‘be 


ie a * PA hk hig b) 

rectors bexaa Baw nos p0up edt cone fade eworie vals a1 i sot 
? LA r eh ke a i et iy 

_ sbekasxeve, gen doit 202 iostde Eoxemeg *. cher 

aL eR ich Faye Rabe bet ye 5 Sap: 


“nolealna ents of fo} tootdo 8 aod ie 


ep Eh Se 
pei aes 









ey pe ao 
someb ive ond. int ot te ‘ehtaorttosga tage ay 
vant soitootdo na doaot tom thw beget , 


Mes ae ints 


ouit ch 2009 ods 40. sonl.ior nad! uh s0%% 


PREG } CS NS eurkar On ore 


WE a TM es 


eldtexeve: ‘bod Stamoo pr lcd ors tats ahaotave 
sehen a! aT “ssoRootdeat- -Batss ete0 Lea am 


aide A ne PEE SN nt we 
eta ‘Bin My 
oa 
alta 


pia 




















at the instruction is erroneous because it fails to require the 
-y to find from the evidence what was a Teasonable and customary 
apensations While the instraction is subject to criticism in 
ithet regard, yet in view of the fact that the issue was simple and 
| sily understood, we ere of the opinion that it was not reversible 
or, King vse Swanson, 216 App. 294, It is quite evident that 
jury acted upon the evidence and were not mislead by this in- 
rauction. The evidence on the part of appellant was to the effect 
at a reasonable compensation for appellee would be “$10.0 per 
eek, while that on the part of appellee was as high as 342.00 per 
The jury allowed appellee about $25.00 per week. 


Be ity 


: It is argued that the said instruction is erroneous 
‘because it told the jary that damages were to be awarded unless 
‘tne further believed there was = contract for such services, and 
in that event they should allow appellee such sum as they should 
a@ had acerued to him under the contract. That part of the in- 
sti action is not accurate but we cannot gee how the jury could 
have been misled « Appellee, of course, could not recover unless 
. e was as contract express or implied. Appellant tried the case 


on the theory that there was an express contract. ‘The instruction 


. ae 
ae 


simply means that if there was mo express contract then appellee 
‘would be entitled to recover the reasonable value of his services. 

fe are of the opinion that the giving of this instruction was not 
reversible error in this case. We find no error in the ruling of 
the Court on any of the other instructions, If the condition of the © 
4 ceased was such as wes described by the witnesses for appellee, 

we would not be warranted in holding that the verdict is excessive. 
‘The jury evidently concluded that appellee was not entitled to as 

wach as he Glaimed, but that he was entitled to more than appellant 
ittea he should have. We cannot say that the verdict is excessive. 
Hie judgment is affirends : 


4 © Me repaiil eee 


; -~3- 








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wot elds x xd ‘bolats fon oxew ins vonesive ry moan & 


} ey 


toorte até at eaw saat fouge xo dog oad me souebive @ 





ELD edd botxt fuallogws “shod font ad ‘weorgze 3 





go ioortent eat | stooxtaoe eRengze sm em vexeds Sa E06 


to pmiinx odd nt zotTe om batt of ‘Sale borer | 
exit nt mitiheos oad 31 weno Hesateat roxio oat x0 ea 


. ey TOR 








0 ae 
a. Oo Se 
STATE OF ILLINOIS i ail as 
APPELLAT! COURT ee veer 
A) py By SY 
47H. DISTRICT. eee 
ba ie ae 
Cie, 
OCTOBER TERM, Ae De 1926. “oy 
TERM NO. 41. AG. NO. 28. 


= 2 
eS rig fi y fi . _— 
. fig . ; a 
= 


Se Fe CATESZ 


Appellee, : APPEAL FROM 
WSs : ITY COURT oF 
ROLLA M. TRESCE, :  #$wWEST FRANKFORT, Ill. 
Appellants : 


Barry, Fe Je ~ Appellee recovered @ verdict and sateaiaek for 
$105.69. He claims that the judgment is based upon two 
; dies one of $75.00, and the other 350.69. He testified that 
he gave appellee a note which included 5120.00 for insurance 
on certain premises for a period of five years and that he 
afterwards paid the note to appellant; that appellant only pro- 
cured insurance on the property for one year and that by reason 
thereof appellant owes him $75.00. His testimony shows that 
he never saw the insurance policy and that all he knows about 
it having been written for one year is what some one else told 
hime 

As to the item of $30.69 appellee contends that 
appellant charged him with that amount twice and had given him 
eredit but once. The record discloses that these parties had 
a 8 settlement in 1922 and the sheet showing the balance then 



















ye 
NEN eas grees hii 
TE ee ees We ee 
\ Alyy Oh AS ; Re Bs netgn cate aN ee aah 
| : ES pul aiiekeity nig! Pore ere aoe 


SS Ro eee: IAP ecm sos sane 





a: 


$3 
bot 
SS 
a6 98 Oe SS oe Be ee 


To'b Steps tial si tanta, cS) fexoreoes siiteeasl’ mt. oy, — ae. 
ted) bolLitaod ell. 2G08$ elite oud Baw ,0042%E 2o emp Rams 


~otg yliio dnwtlogas sui 
moans yd Jacl fae ta8y, sm et wbical eat ah E 

tact, aworle yoomitess off  »00,.8T¢ mid aowo. iviittadetn 

.. trode awond od Lie Jadé Soa qatlog. sonetnent ot, wee. coves 
Slot oole, eno ange Jace Bl mney em xo, motdion mend galved, Z, 





i 





| 
| due was offered in evidence and im regard to that there seems 
i tc be no dispute. The sheet shows that appellee was civen 


| ereisit for $30.69. He makes no claim that he should not have 
a 





a been charged with that amount once. If he was charged with 


4 it twice and credited once and gave his note for the belance 


q 


dae, imeluding $30.69 we are at a loss to understand why he 










- shoula now be permitted to recever that amount from appellant. 

. } From a eareful consideration of all the evidence 

fin the case we are of the opinion that if appellant is in any 
any indebted to appellee for either of the amounts aforesaid, 

he has failed te furnish sufficient proof to sapport the 
 judguente The verdict and judgment are contrary to the evidence 


and the judgment is reversed and the cause remanded. 


— hee. REVERSED AND REVANDED. 








sorts onw eesteqes tend awe. teede yt 
eved sor blvode en tadt jabato on genta, oH... 

stie Segtade aaw ed I ‘s20n0 seo seat 

Bona as edd tol sags rd omy bus om9 


STATE OF ILLINOIS. 
APPELLATE COURT 
4TH. DISTRICT. 


OCTOBER TERM, Ae De 1926. 


mene ee rs ia = 
ee | - 


~ he 




















NO. 434 AG. NOs 40. 





FONIA SHIMKUS, : 

Appellant, $ APPEAL FROM 
YS. :  GITY COURT oF 
DARD OIL COs, : EAST ST. LOUIS. 

Appellee. : 


tY, P. Je = Appellant brought this suit to recover damages for 
ries alleged to have been caused when she was struck by one of 
llee's trucks. She averred, in her declaration, that a servant 
| ellee was driving ea certain motor-truck on Collinsville Avenue, 
st St. Louis, Illinois, at the intersection of said avenme and 
nois Avenue; that while appellant was walking northward and 

SS the said Illinois Avenue at said intersection, and at the 
where pedestrians were properly walking across that street, 
yllee so carelessly, negligently and improperly drove and managed 
said truck in that it made an abrupt turn eastward inio Illinois 
6, and as a result of such carelessness and negligence, and 
ithout any warning to the plaintiff, appellee then and there drove 
‘Said truck into and caused the same to strike the plaintiff with 
foree ani violence, etc. There was a plea of the general 


and a verdict and judgment in favor of appellee. 




















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os wiz 
A i ‘ a 
”, P f 3 
2) 


+2IONILII GO STATE 
T0009 SMALIEITA | 
“ve POLITELY 9 


Neo ead <A HS@ “eteaoRD0, 
ae F% . A i an B, FS Salk Ons " 


0s erin 
ie rane 


(( V3 “a M Me Lec itaecegh. ih Lee Deis 


i} te BAY ue a 


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sil ot ; | (MORE atta gg 
} J abr ae 
ih A Wi iG isto a m0 FEN0O MESO $ : 
ind SRP Ty ch : ig 
eth nk avagicl ie ae e1U0d #2 rea oy 
-" ‘ ig 4 . i & 


tot aegenab revpo er: of 0 ‘ehate teguotnd doatrogga - 
te ex10 ud touxte asw ode neciw hoes aged. eved of Ne 
tnevice 9 fads ioLaneLoab x00 ai  bevieva este | 


ent ts baw  nagdecsieas bisa a ernova stomiiit ‘bios 

stooute teat eaotws palilew wireqosg, arrow wisieteobog. 

Be oneness Baca evorh yizeqorquit fae Litnepifeen , viasoterae 

aoc iret tnt Sisetese suas dqartde ee bam § ve dent ak sont’, 

oa ,conegiizen bas seonaye Loxeo, dona te Singer s 38 fae 
everh exodt Sng eae volteqae ilatate, ede, Aah seen rs 





Appellant argues that her counsel were denied the 
4 of making a fair statement to the jury of the issues in the 
the facts they expected to prove and the principles of law 
icable thereto, That argument is based solely upon the fact 





















when one of her attorneys was making the opening statement 


6 the opening statement to the jury, which must be brief and 
6. No reading of the pleadings." It will be observed that 


take it that counsel was at liberty to inform the jury as to 
ssues in the case, as to what he expected to prove and the 
applicable thereto. | 

: At the close of the evidence appears the following:- 
‘Court: Are you thronch? You are wasting too mach time. 


ease could have been tried inside of one hour and a half at 


. 
'one o'clocks Mr. Costello:- I will submit the case without 


Smost. we will go without lunch. The case must be finished 
te Mre Zully:~ The Court is in a hurry. Under the cir- 

nces, we will have to abstain from arguing the case." 

Dat t.0a A written motion for a new trial, specifying the 

ints/apon , was filed. The only possible reference therein to 

matter above quoted is to the effect that the Court erred in 

ly restricting the argument of appellant's counsel to ten 

s; that appellant was deprived of the opportunity of pre- 

ing her Gase fully and fairly by the undue restriction and . 

mitation of time for the trial of the ease. There is nothing 

e record to indicate that appellant's counsel were limited 

ten mimuies' argument, nor is there anything to show that the 

said anything about limiting the time that counsel should 

j for the trial of the bacon gatas the remark above quoted 


x 
mi 





oxen 





B ri 


sect 


wt boinah | orew reestioo rodt aud ae 


“roo « edt ibaa ataolisce wat a0 





vomit ‘Sosiet ‘oot patteon | om ‘w0Y a 
PR iy We: AES bs 


te Tlad 9 bus snoi snp Yo obtant be 


Bene 

























oh was made after the evidence was closed. It will be observed 

t in her motion for a new trial appellant did not rely upon the 
round that the Court made improper remarks in the presence of the 

It would have been better if the remark had not been made, 

at appellant is in no position to complain. 

When the case was called for trial in its regular 

ler the Court ordered the clerk to call s jury. One of appellant's 
orneys then stated that they had just discovered that Dr. NeNary 

> was Subpoenaed to appear as a witness for appe liant, was un- 
voidably absent from town, that counsel wire tuforued that the doctor 
mild return that night and would be available as a witness the next 
ningg that he was the only doctor who attended appellant for the 
njuries in question and was the only expert witness who knew anything 
about theme Counsel then asked that the case be laid over mtil 

he next morninge The Court then said to proceed with the trial. 

nsel presented no affidavit and did not offer to be sworn to his 

: tement. In the motion for @ new trial no reference whatever was 


> to that matter and appellant ig in no position te complain there- 


4 Appellant saw fit to submit her case to the jury with- 
out offering an instruction in her behalf. She complains thai the 
i structions given for appellee were erroneous. #e have carefaily 
sidered the instructions and the criticisms directed against them 


ne of the injury and that she was struck and injured by reason of 
the negligence of eppellee. Appellant testified in her own behalf 
ma she had no other witness. Illinois Avenue runs east and west, 
Collinsville Aveme north and south. The evidence shows that 

@ are two street car tracks on Collinsville avenue. Counsel for 
lant say that there are = two street car tracks on illinois 





















bevtoade ed iftw 3% .bevole eaw sonebive oat toda sham anes 
ot sogs wor Jom bb snettoage 3 Inixd wen a 70 wo ison brah 


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Ha 


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~oredt dda Iqaoe ot ‘sok tod os al et ge a cai tedt 


ie ght 





rh 
4 ts Le oie ict ‘ 

ait by wat ‘ont of ‘onoo ad Siména of 2 wae nettenea oh 
od ‘dads ‘anletenos edt tiaded ned at oveamt na 3 

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wots fartiegi posoorsi som tortie odd buts ‘eb iton eat etd” 


[Ted ea A 
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mon | 


i 4) 
De ot 


“coh bo ehlovens eid a mum oe dad? coos tual ) aay 
oad oe tolxg ohedieane Sia irda “uietas wo pa ih : 4 : 
to noeaes xd bors tat bas sours oa ‘este “tant 


aS 






PES 


Maded wo x04 at Botti tnae “tastloy os . 
,} sew bisa Fens ways une vA slomistt nae i tw nese na a 


teas awoste eousbive oat _iitweg Sue al = Se 


tot feens09 »oun9¥A “eit tvanLioy 2 une om 


Roba 0) MORES tow a ohh 


atomtiir so ) asdoad Bait ot oe aon exenis 


es 


Avenue, but if so, the record does not show the fact. Appellant 
“testified thet she was on the sidewalk on the east side of Collins« 
" yille Avermme going north; that before she stepped off the carb she 
“Looked both ways before she started to cross and that when she had 
taken eight or ten steps she was struck by the truck and that she 
| was then on the first street car track. The testimony on behalf 
of appellant tended to show that she was going south from the north- 
} east eorner of the intersection instsad of north from the south- 
east corner thereof; that she was struck when she was upon the easter- 


a 


ly street car track on Collinsville Avenue, and that said track was 





ten or twelve fect west of the cast line of the pavement on Collins- 


Ls 


ville Avenues If the testimony on behalf of appellee is true, appellant 
must have been in the act of crossing Illinois Avenue diagonally 





from the northeast corner of the intersection and she must heve 

be en several feet west of the regular line of travel for pedestrians. 
“the driver of the truck hed arproached the crossing from the north 
end intended to turn east at the intersection on Illinois Avenues 

He says that when he reached the point where he should turn east he 
"hed to wait for a street car to pass on Collinsville Avenze, and after 
4 he car passed he made the turn ad as he did so appellant struck or 


wo 


wes struck by the radiator. He says he had no time to warn her, that 










he stopped his truck immediately, jumped of? and went to her; that 
4 was up before he got to he# and that she insisted te him and to 
a policemen who was present, thet she was not hurt. 

. It is apparent, therefore, thet the questions of 

, sligence and contributory neglisgence, were questions of fact for 


jary. Wo reversible error having been pointed out the judgment 


s affirmed. 
Ct palit 





















| ae a 
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wantifod to able.teae odt no Atewobte odd ap sew ede tedt bobth 
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ede dadt Bre dows! ost yd donnve aaw, ote agela med x0 tigte: 16: ad 
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evad tasn ede bog apitocetodak edt to. tearoo. ee sabi 
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tetle bus ,e.nevA elfiveriifod no ausq of 189, teenie B sor tiaw ot ! 
~ tomste tnafiegqe 08 $15 oc sa bon oct edt qhag od hoaeeq. m0 ¢ 

dads yxesi wer of omit on bad oS ayee of, erotather odd yd atgamn 
tad pred of duow Sua, tte, Suqnw),,clotalheamt Asa abd beqaosa, 

of has mi ot Sesuteat ede Codd ham Cox of toy, oil. oxo ted) am Bmw 
stro tou vaw ofe tad? ,dnoveny gaw ode oitog 

fo exotsaens ort! desit ,oxateud? ,duemsqgs ef al 
“S02 deat fo emoideeup etow ,cosatinan cided aA Lats 

tnompbel eat Apne dint i 00: palved xezte eld 


RE ain « eth ha ‘ 





AGN pie 2. Mi TOR CTD aie bunts hig say eee ey ot yy ih 


ar yal ee 


fees) 
ery 


biases, Spm IRUR te As vid a a onpai ene Kat Fy 























4 : - moved the Coart to find the issues in his favore che | 
a motion was denied, and appellant offered no evidence. The Court 
i found the issues in favor of appellee and rendered judgment 

; y accordingly. | 

In his originel brief and argument appellant made no 
- claim that the evidence was insufficient to establish the re- 
By Xetion of landlord and tenant between the parties. He was per- 
mitted, on cross-examination of appellee, to show that while 


ing a mortgagee only, he is not entitled to the possession 


HY -1- si 
a ap St % ‘ y of 


i “) xb 
STATE OF ILLINOIS. lj 4 Ce 
APPELLATS CouR? a JAY 
22.5 ” e a ge 
2. a oO © et 
47H. DISTRICT. Bey Aa es 
eH A I 
OCTOBER TERE, A. D. 1926. iO es Hi 
eo 
| TERM WO. 55.6 AG. TOs Ble 
; oe P. HOTZ, : ~ Wate Meta ics ee ae A 
Appellee, : APPEAL PROM 
3 
YS. : MADISON 
‘JAMES U. DUFFIN, =; GIRCUIT CouRT. 
Appellant. : 


Re f } 


piven 
se ay 
we J 


~or edd dalidated of tessionems sibeaan alee 
~1Teq@ naw ef sasidveg cid gosvied. Daas wow nicoucvssin 40) 
eX telw bamehiaen Mabel tings 0%, 


2a 


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A, Sie Ae ml Rie Man Ura as aN cet ne) TS 


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e 


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ny 


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; oy shai ae eS . : Ree ay Ae stain aa : an 
nmaualianvanaions oa: seerenn cole, neers or 















a eA a ¢ 
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seaore0 fi ‘ 
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Dot the premises in question, and that appellee, not being en- 
titlea to the present possession of the premises camot maintain 
By aes action for their possession under the Forcible 3ntry and 
Act." 

a Appellee answered that contention by citing authorities 
4 i ke the effect that a tenant cannot dispute the title of his land- 
:.: either by setting up title in himself or « third person. 


insists, for the first time, that the rule does not apply to 


ae 
_ this case because the relation of landlord and tenant never 


. arecovery. When the complaint was filed appellant had 
‘failed to pay his rent within five days after a written notice 
and demand was served upon hime Appellee was entitled to the 


possession of the premises and the judgment is affirmed. 


GOe Leptin 





















=f nett ed Joa ,eslleqqa Jadd na aneteubeittid wt oe teeta ost? to 
riadot an. Jones goulmexq bit ‘to notasoneog teenety edt of boltit 
Brae wet ‘efdtexot oat ‘obes: seleeseood thedd rot haces os 
abitirodiod guldle yd aotdnetuoo tant. bozewame eetleqga : 
boat aid ‘to efttt edd efvqeth tomes tuenet 2 tadt tostte ed? of 
inoxeq Bett) a xo Viweutd of ofbi4 qn Gabdill es bene eee 
trd ,wal edd el dose tedt atimbe tualieqgs tela Uger ga at 
“Se ylaga ton eee efx ont tat? emit dexkt ot Sek Paes 
tsvor dnaned bra brofbuet to mottelex att eammood ease tat 
oft Botobiesos ylivtews ovad of eveisaeq oft ainsi’ Sosaize 





bad teatleqas helit aaw sichisbiall: edt sod’ 
eoison nettinw @ telta ayeb evil abitiw gxex eid yea of pottst 
edd of beititas eaw eelleqga uid noqgy bevies saw a al 


bewr lt te at faaenit end Sa esomsehelinn to tio 
ne paw at oak iD ah ane AM a 


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ASAE: AA EE Tite a Sle hang x i 

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RMR rh ae Ss oo arto UL crs a ut init ohh’: sitar: woe 4 

pA ice lPpani rg) Sioa Aye site ee aR ANA” CREAR i aha eae Da, Roary 
i Wie hs ee ame ee mig i es! Mig ERO ea ahhh Se 
ON ah BRAS CRS Ai ARE vidi, ae ono rty ; ‘ 
Biase A ahd, MRA mates acs wile ek Spoteeey: oan 
Lancing, uted Doky, | Raa n anata a inl ni hes we Loe med Sante. ae on, 
Kua Dap tpsenene eR aNd) Raat ane ei fan HA Ae Stat sberguacneba aN yt 4 


3 


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f ee oe "eraraqenetene™ 
f STATS OF ILLINOIS. 


APPELLATE COURT 
47H. DISTRICT. 


OCTOBER TERM, Ae D. 1926. 





PERM NOs 57. AG. NO~e 25. 
ad ee 
& “i 
: BA ge 7 
i <e oS Ds 
Kid 4 cf 2 
Me Ws COCKRUM, : ea Pl 
Appellee, : APPEAL FROM 7%, 5/ ff &o, ie 
: : “IIa £) = ia 
VS. : FRANKLIN CTAd 
: Oar, 
CHARLES GUALDONI, et al.,: CIRCUIT COURT. “B55, 
Appellants. 3 Weis: 
? e 5 hea 
Ret A. @@R 


Barry, Pe J. ~ Appellee was the owner of a thirty ecre 
tract of land within the corporate limits of the City of 
Sesser, Illinois, adjoining the switch-yard and tracks of 
the C.B. & Js Railroad Company. In 1921 he sold the 
land to appellants for $9,000.00. A portion of the 
purchase price was paid in cash, and notes were given for 
the balance, all of which were paid except two for 32,000.00 
each. They were judgment notes and appellee took juag- 
ment by confession which was opened on motion of appellants 
and they were given leave to plead. 

Appellants filea the general issue and also 
a special plea in which it was averred that at the time of 
the purchase aha as a part of the consideration therefor 
appellee agreed to extend Jordan street across the tracks 
and right of way of the railroad company; that relying 
upon the promise of appellee, appellants platted the said 
land into town lots for the purpose of selling the same; 
" that without the extension of said street across the said 


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ilroad tracks the said land was of no value except for agri- 
i ealturel purposes and that for such purposes it was only worth 
$4500.00, etce ‘To the special plea appellee filed a replica- 
ion denying that he agreed to extend ssid street, ete. 

a Yhe trial resulted in a verdict and judgment for 
$4,000.00. No instructions were asked on either side and for 


gome reason the jury allowed no interest on the nctes. Appellants 


the prime of life. They claimed to have a verbal agreement - 
ith appellee in regard to the extension of the street across 
the railroad tradts at grade. Appellee testified that at the 
time of the sale he did not agree that he would extend the street, 
bat informed appellants that the railroad company had purchased 
‘other land from him and had promised him a crossing but that he 
did not know whether they would give him a crossing without a law- 
suit. All of the wrties were presumed to know the law. the power 
to extend streets in the cliy is vested in the City Council, 
Cal aghen's Ill. Ste Ane Che 24, pare 65, cl. 7. Under section 
68 of the Public Utilities Act, appellee could not have the 
set extended without permissioni: from the Jtilities Commission. 
the railroad company were willing that the street be extended 
cross its tracks, appellee would be powerless to extend the 
eet without, the’ co-operation of the City Council and the Utili- 
es Commission. That being true it seems a little strange that 
ellants would rely upon the alleged parol] agreement with a 
over eighty years of age, and pay 35,000.00 in cash, accent 
—2e 





visto | medd erom Baw dstioves ,slar odd to outs ond oA 

Bune sonsiieqxe to mom suentesd exrow edusifeqqa Sne ens te arney 
Inoheerpe Iadvev 2 vad of bémtefo yoo?” setil “to ‘emita odd ai 
“geores footie oft ig ooisaedse odt od Biegot nt eslfeqaa saw 
* pdf Ja Sade ‘Bortiiesd eellecqa .cbary és ede? badet tox ot 
~teotta ead Bache ‘Binow ed tedd sore Jom bb ed ofae oft to omkt 
Bevedoteg bat yanemoo Aéotiet odd Jed} stneltecae semtetet tod 
‘od dad dud vatesors  mtit Boatnorg Hed ins wld mort Biel rodte 
wwal @ euodéiw putewtite o mid evty binow youd veddoiw word dom Bib 
sewog od? wal oft worst oF Semmteng How vbttiay' odd te LEA othoe 

| Ptomse9: wito edt mi Sotaey al YIko ent it atesate ‘Siterxe of 
Nolisee tebat .V .f0°.88  sxaq JAS cdo mk oe EET ‘a Minige L680 
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wifidt ead bax Lionped ydio edt to scan toonte 

jadd egnante oft G ambée 9 opty Sated dant’, apbettinasp woke 

‘g détw daomde'ngs Lotte Segelta ‘elt noah ba tars eoniiees 

“fqe00a ,deao’ nt’ 00, 2000.8 -— tne ee 
Pig 












deed and take no steps to enforce the alleged contract until 
hey were sued for the balance of the purchase price. 

Prom a eareful consideration of all the evidence we 
re of the opinion that we would not be warranted in setting 
de the verdict of the jury on the ground that it is se mani- 
estly against the weight of the evidence that it should not be 
¢ mitted to stand. No reversible error having been pointed 

qu . the judgment is affirmed . 


he : . APPIRNED, 


~s 



























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est o hes moment we tang ‘aes hd isha Shi ‘ 
ee Mc ee die Sea a eae ae ‘ea ‘pte wl hi ak 
Snancenud ‘Lae hewebe IGE ee Baht ‘stat deige. m 
eae ee Bae ae Sai tena! de we et te Saal aad ee, ane 
DEEL a PLA cutee ee arth ny aad 
 ibhor ‘its Naik itt Meant | 8 Jamin “id i) noha we. 
sche Sate oe ete fee Reet wl Ea: war a : 
este Sanh RBC ae aRe aa ee ee si ae ie) 
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S feey 00" SATE OF TLLINOTS. 

















APPELLATE COURT eit hy 
Li pt Beat Re 
4TH. DISTRICT. ie hes [2) 
Pre, Bee 
“449 i 
OCTOBER TERM, As D. 1926. WW. eo? 
OG ih ae ‘ 
EhK op yt | 1) .) 
iegiyan? 
ia i NO 626 AG. HO. 4e 
iRISTINA BOLE, 2zecatrix, stce., : 
Appelles, 3 APPEAL PROM 
VSe 4 
: CLINTON 
ALBERS, ‘ 
Apoellant. t CIRCUIT COURT. 
6p q ¥ R ao Pa “Ky 
aG4T1.A.661' 


her husband, Henry Bolk, alleged to have been caused by the wrong- 
} act of tee appellant. Her declaration averred, that, on 
bruary 15, 1925, eppellant willfully andi unlewfully assaulted 
and beat Bolk with a chair and other wooden instruments and with 

s fists thereby inflicting bruises, wounds ami injuries from 

ch he died on Yarch 6, 1925, etce The trial resulted in a ver- 
end judgment for $1800.00. 

Appellant contends that he was charged with murder 

i insists thet the Court erred in instructing the jury that 
lee was only required to prove her case by a preponderance of 
evidence. If an indictment, containing the same averments as 
declaration in this case, were returned against appellant he 
very promptly move the Court to quash the same and the mo- 

, would be Allowed. Malice is an essentiel ingredient aaa an 
etment which fails to aver that the killing was with malice 
ethoaght woild be fatally defective. 


~~ 






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BEE ay ath Nat 


In a case of this kind the cause of action is the 

























‘ongful act, neglect or default which causes the death, Crane 
Coe & TeReRe COe, 255 Tlle 2593 Mooney vs» City of Chicago, 
259 Tll. 414. ‘The wrongful act charged in the case at bar is an 
sault and battery end appellee was enly required to prove her 

e by a preponderance of the evidence, Miller vse Balthasser, 
Til. 302; Burgiel vse Aniol, 218 App. 466. To entitle Appellee 


murdere In an action ex delicto, if the plaintiff proves 
enough of the material allegations of his declaration to make out 
‘a cause of action he is entitled to recover, even though all of 
‘the averments are uot proven, Postal T. + Cs. Cos, v8se Likes, 225 
mi. 249% 
Appellant did not request the Court to instruct the 
ry that appellee must prove her case beyond all reasonable doubt 
and the instructions requested by him fairly conceded that a 
eponderance of the evidence was: sufficient. That being true, 
is in no position to complain of the court's rulines on in- 
structions in that regard. 
4 Appellant argues that the proof fails to support the 
de eration, that the verdict is contrary to the weight of the 
evidence, and that it was the result of passion and prejudice. 
Appellent and Bolk met in a soft drink parlor at Breese, Illinois. 
client wanted Bolk to pay for a dog, and Bolk said he had al- 
dy paid for it. Appellant became very anzry, swore and used 
languages He seized a chair with both hands, lifted it and 
sgered toward Bolk, who was seen by one of the witnesses to be 
Liing to the floor and appellant with him. During the trouble 
a city Alderman who was present, told the bar-tender to stop 
the fight. Appellant said he was going to get Bolk and the bar- 
der told him to not hit him and to behave himself or he must 
lee ve; that the bar-tender told him he must not do it several 
eSe The bar-tender says he grabbed appellant and was trying 
to keep him off Bolk; that he held appellant from the time the 
=2= j 


















nail oxox of ilepes vino 2 eotteate. yr wrotiad Baa i . 
,ressadd Lat eaevy tellii ,sonubive ond to soitare bao qoxd 8 we 
eelfeqqa ott ttme on 200% Th Bis fo tnt ay Le Kyu ince 2 in 
wiling asm y dual leggs tans ero os qikesooed fom ea ak Bhi es 
- sevora MLIntole oat 1 ,otoifeb xe smliea as at et0bt 

Pa, exten of no LisiaLoas ald te aa ttagetta Intustan oa aid 


8 tot philic cet per setae sn salina 
sent jaied Daan efagtolt ive, Sew, pened tne. Pt 39. QOU8T 
~nt re punt Lex er seme ott. to Ehalquoa.. oe fo og os at 
‘ oper, aad at 
est tronane | of altot 100% ost tase noupas duaktough 
“eat to Sig iow odd ot greta. ad tohbrev eat. todd, «BOR ta 
| sootbut ore Sa 10 Laas 0 Sivoes ost Coad 3h todd, baw 294 
ouhomzttt (928 80ne dad soltsg anich flog « nt tom atoe, bas 
ois fad ad Stee Atos Sas 908 8 Tot wea. oF Tine Sosaam, tom ite 
boas bus erowa Tre Nrev. omgoed ARLE adh mt pia hs 
, Sas i Botte ahaa, hdod at ie siesio ® bexien of »epengr 
od ot eosaend tw eal %o, ano yd e08, Baw ain EOE, bis nt rn 
eldnort esd galt wslsl ati ina fLequa ban. ° of 
gore ot rebiotrod ast? ‘Sfod ,tnesezg Ber ow some | 
=e edt bre xo top.¢3 paloy gen ed Bigs IuaLiogas. of 
tena ed to ‘looms oveded | of Hows. md. Pee pigelipinng hin 
fexvever ti ob don tana ua mid bfot rebret-tad edd stadt s 


ond waite atopibes autteaa: ice a pHfoe 320 mis aon | 


man says that he found the policeman about five hundred 
from the room where the trouble oceurred. He also says that 
he returned with the policeman Bolk accused appellant of 

g hurt his shoulder and there is no showing that appellant 
ed to that accusation. 












While no witness tostified to having seen appellant 
ike Solk with the chair, it is quite apparent that those who 
e present were friendly to appellant anid the whole situation 
such as to give rine te a reasonable inference that such a 
w was struek, There is evidence that appellant slapped Bolk 
that appellant stated a few deys later that he had knocked 
k off the table. Many of the facts aforeseid are undisputed, 
is the fact that Bc0lk complained at the time that appellant 
t his shoulder. | | 
The next day the doctor was called and ean X-Ray 
closed that the head of the humerus wes owt of its socket 
the bone was completely broken off. An operation besame 
sary and although all of the usuel precantiens were taken 
i’ was followed by blood poisoning from which Solk diede Appellant 
| led three witnesses, who testified thet while Bolk was at 
“hospital he told thom thet his condition was due to a fall. 
In the state of the proof we would not be warranted 
‘holding that the evidence fails to support the declaration, 
that the verdict is so manifestiy egainst the weight of 
ue evidence that it should not be permitted to stend, or that it 
1e result of passion and prejudice, No reversible error . 
g been pointed out,the judgment is affirmed. 


WV : ¥ 3 - 





























a Caney He Jet i : 

oat waaaoetiog s td bw bernutox Me) Ett moot 6 odd Stel e 
4 TM hye aN aad ie 

be bint evit toda zaneol tog ett. awed os fens aves 


saat exes cele of _sBevrra00 eldwont ods vere ‘cor ott | 
‘to inet locas ‘Baanoee Loe usnoot Loe ont Aste henzstox 
tual fogse tats carbo on ot ered bas ted fnode poh tat 3 


ny ae vr 
voy PS a 


smi taenoos sone hts 
dual roqaa 1008 1 pated ot berttsaed aout ie on Eka ie 


a a pal 


or fiecunte sual Seqas ‘toads sonah.ive al erent 
EAA ATA Qa er 
“pexoomt Bed od tadd todal eunb wit 8 Soiade dua ttieee 


fi Mwy? 


_ hetome best ents Sieuonnte Btost ont b te i age ema edd Yo 


A LT AR PIN Sh ie 
| we. oa ‘bre, betiso new oio0b eds ws t9n oat " . 
 fodoos eet ‘to #0 aw erro ois %o faod ‘orld ree ber 
| atwoed ies thweeege th atte tiaderd ‘leteiomee saw on 
secs d orew ane tinea ete Seagrass eds to ‘tte yo Le hea jaw 


dua Zonya sBoth wE08 do Este wor? udsoaiog Bookd as Row tt a 
te new SLot of hstw bad bots iveed ode “seouaan iw ‘sovudt 

| lite. a ot ‘tab eau 10 14 Rhu ehid tes ‘male Abas ok. iq woe 
botuorsae « ad ton biuow or word ould te ‘edase odd Pe — 

' +0 2taxeloab ett Proquste ot arts? consbive eat taitd pa bs 


ee te iigiow * oad temtays Utuer ina 08 ‘at jainser odd 
tt 1 teas x0 bund ‘ot boittaxeg ‘ad. son Strode ‘ty ak 
| tomte “oldtareves on seo2dctorg bas “mm lessq to 
f Serie ai feast od “ed ‘ 5 ise Masdtes eaee 


eka) errs dU rea ‘ae NY nana ae 


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Olt ee f im Y aa! 











Term No. 22 Agenda Noe Bl 


APPELLATE COURT OF ILLINOIS, 


Fourth District: [pp ih zs 
Mp AI ale 8 
ee eS j fe aes Le (0) 
: me 
\ Sig, 
OCTOBER LERM, A. v. 1926 Tah ic 
| “gor A) 
aa Ds reata e 
Mei ei? 
ROBERT BSELING, ) 
Plaintiff in Error, ) 
) Error 
-vs- ) to the 
‘ ) Randolvh Sounty 
JOHN PETTY, BPAITH PHTRY ) Gircuit Caurt 
and A. J. WYLIE, ) 
Defendants in frror- ) 4 
Fea ma A ha i ~ 





ee eee ee 


Plaintiff in error filed a bill in the circuit court 
of Randolph County to the September term, 1925, in and by which 
bill it is averred that on Harch 4th, 1982, plainti?’ in error 


recovered & juigment in the circuit court of Franklin county 


against vohn Petty, one of the defendants in error herein; Dr- 


Evan ¥. Petty and one Louis Penozzo, in the aum of $2,188.91; 
that seis taba to the rendition of said judement, the said Jom 
Petty was the owner of certain real estate described in aaid 
bill, locatead in Randolph County, subject to two certain mort- 
cages, one for 42,400 and theother for $400; that on March 7th, 
1922, plaintiff in error caused an exeaution to be issued on 
said judgment to the sheriff of Fran'lin county, on which a 


return was made, “Defendant not found in my county, execution 



























i 
AMS Cc UL CEAaT AC SY cia oA 


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alls gus aon Sree Mek oh Me So ie Mae Oe keane aiid om 


e ne RMR eile eee eesti ap ada boat Rober teil ‘ 


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donde ‘yd poe ot caset” ‘eve! redtesaee 69 08 eames aa ee 
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bitte Chee’ ri th i 
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rane Ti iaeeia 3 30 “0” he. eae’ ay ~ 
“10 aptened Sore’ ve eooalivete Je. bead 40 eho, 
Vib Aalb "sé ‘eeu idl GF (aeebtell efile se ties UI. 
orotate ot Snemiit fixe 8 Wetii bes Heaps ei a 
| bia mf bediacneb 3) we tas aiadatse ge oer o F © 
~tr07 atetree ons of soetder rvoued dg f¢ boas Moe 
utgs HomsM cro: yrs he not sede : cia F os OC 











not satisfied." That on July @rd, 1922, an aliaga sxecution 
was issued to the sheriff of Franklin county, and 4a return 


was Made thereon: ” 


Jot aerved, defendant not found in my 
county." That thereafter, on August 29th, 1926, plaintiff 
in error filed a tranacript of said judement in the office of 
the Clerk of the circuit court of Randolvh county; that on 
gaia date an execution was issued thereon to the sheriff of 
Randolph county, which said execution was returned on Sep- 
tember 3rd, 1925: “No propartv found.” Theat on May 23rd, 
1921, prior to the date of the rendition of said judgement, 
"but after the indebtedness for which said judement was render- 
ed had been incurred, the said John Petty made a pretended con- 
veyance in fee of the above mentioned real estate to A. J. 
Wylie, another dePendant hereinafter named, for a pretended 
consideration of $1.00. ..... That the said convevance was 
not bona fide, and was not real, but was a mere sham and was 
made with» the intention of defrauding your orator and the 
other creditors of the said defendant John Petty out of their 
just demands. ..--. That on the same dav the aaid A. d. 
Wylie made a fraudulent and pretenied convevance in fee simple 
of the real estate hereinbefore described, for a pretended con- 
sideration of 31.00 to the said Faith Petty; -..... that the 
said premises are now held by the said Faith Petty, wife afore- 
said of the said John Petty, in trust for the said John Petty 
and for the uss, enjoyment and benefit of the said John Pettv, 
and for the fraudulent purposes of preventing a levy and sale 
of the said real estate under and by virtue of said execution.® 
Said bill further sets forth that the said John Petty 
is a man of no pecuniary responsibility and is vosseased of 
little or no property other than that he fraudulently conveyed 
to his said wife, and that the said John Petty "is not possessed 
of any goods and chattels above his exemptions, and that he has 


no personal or real estate liable to levy and sale, except the 


; 
4 
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nofduoexe watia ga S800 (bee etut ro ahaa “.portekyse dom i 
rite A boa ~rdonoo gildnes to Wicewke eft of boueet caw 
| yor ort bereret ton tneboe et bovies Gok" gHoevents init an 
Whintafa ,~ReCT .ddeS secaud oo sot tsotats ted®, ".viavoo 
90 paren. wit mi trore bel nfse te talvosnse yd & Bet PP ow nk 
no teadt iytenmo solohored 94 ‘toto tiwanpo edt to arefo edd } 
Jo Ptisede. eft of Meateds Darec! Rew WoPrduoeze ms etab bier 
ages ao bansudes esw ontdtuosxs ipa doidw wena defober at 
“a aes wah no. tant "food vereqaay off" 2 ORer DAP tedmet ia 
adm but bt ae To pottiiver ef 20 ated, esis of song , TSO: 
~ Tabor Rew towne biae doidw 10% seenmboidebat eft tedts gud" 
108) babreterc & ebem vite ool bree oft ,bersyvort) need bert be 
‘ ys of oteasece feet bene timem eyods: ect +49, 0% oh sone 
bobooserg Bey borer a one? tnelnetel sedjoge ,etiyy 
Raw comavernog rane Ot SedT «as. 90, 4° eo AC MSE ane 


5 ici od don 


ese bre mats ere paren tud Fae tones aa bye qebtt 





eat. 7? Tosene TLIO’ at boueriob Jo sottretat eddtdtiw wails x 
sheds 30 ee waeer sot snahootes oe ent to atos thes, xodto | 
vt cA Bisa att dei MRS: ies co seer amb nt -ebosued teut, Paap i 





lhl e04 at eocevevitoS bebret eng’ bets duel ou burt & obs eliy® iy 
“H09 bebtotona & 30 cbedtwoseb pipledatoved etsipe, teed add ig) Ate 
chan Paden reedot AdtoT bias add o4 00,1 30 sottaqemhe, — 
cast et iw prste? 1a brag odd we bf ert, Foe. P30 BORLME TE Od fey 
vtter Noy Btae act mot sense af eiaet attol bieg eds, 30. bias. | 
19909 mgt bier « costs Be Pened bs soomyotre, ~enu echt. 02, bee. ) 
one one wel & andtnevens Jo eroqtug Jtrolubuert, etd. 193 aie 
"eno Hyoene pres 40 ently nd boe vob chatabes, jeer biee obs \% 
vttet ndot bier eds tenis d3n09 Bt ot: agidaey, IL td phag, , ide bet 
10 Beenesect wt ire fore Jd2 enongen. yar AUST (OO boy Rei fay: 
boverane YE gmotwbues, on ted neds nette, yanegosa 2, Wothttln: ‘a yo 
| beanorony the i voted dot bie, ont tees, DGS et tm, DE bie 3 if ot " 


ty Ha it hey 


ned of ted Bers cen Homans att ovo, PL e, dats. bog eboos, ras 


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premises above mentioned," and prayed that the anid deeds above 
mentioned be sét aside, etc:, and that said real sstate be made 
liable to the lien of said judgment and sxecution. 

To said bill, separate answers were filed by John 
Petty, Nis wife, Faitn Petty, and the said A. J. Wylie: 

The answer of Paith Petty is to the effect that said 
premises were purchased with the money of heraelf and John Pet- 
ty, and the title to ths same was taken in the name of John 
Petty; that a mortgage of $2,400 was placed on the sams to the 
Sparta Building * Loan Association to pay for Certain buildings 
erected on said premises and for other improvements made on 
said real estate; that thereafter another morteare of “800 was 
made to said loan association and that the proceeds of said 
S600 wortgage were turned over to John Petty to reimburse him 
for the <oney he had placed in gaid premises; that the dues and 
interest on said nortgages wore all paid by the said Faith Pet- 
ty, and that she #&as the equitable owner of said premises, and 
that the said John Petty, in order to place the legal title in 
his wife, Conveyed ths same to the said A. J. Wylie and said 
Wylie conveyed to the said Faith Petty- Said defendart in er- 
“ror specifically danied the allegation that aaid convevance wad’ 
made to her as @ sham and for the pvurnose of hindering and de- 
laying creditors, but averred that the same was made for valu- 
able considerations as above set forth. She further denied 
that she had any Knowledge of the indebtedness owing by her 
husband to said John Musatto, for which judgment wae afterward 
taken in the name of plaintiff in error, assienee of the note 
on which said judgment was taken. 

The answer of John Petty was to the same effect as 
the anawer of Faith Petty, except that it does not go into 
detail quite so fully, and does not aver lack of knowledce on 


the part of Faith Petty of the indebtedness for which said 
judgment was taken- 





> 


ered a ebaeb brow stit fois beybrg bee * boro tte ear evods pettmetq ! 
i siniek ‘onl otates f wer bist gedd bon , oth /ebita Soa’ ed” Hono tive 


Leubdaoss bos yao tor ‘bise % etl ets of” eldatl 
into’ ve belts eIev stewscne edeieg oe hake ‘pla lt PR 
vertye ae RY bise ‘ectd bos ,ytted deiet (otte ert sti 


bise dest ieee ods od ef yite9 ad Pst 46 owes edt ¢ oy 


= $09 onot bea 2Leorod to venoc sid ntiw besed day: atew dade: 
etal 30 ames yer aey ‘nelad paw pam, edd od slstd etd baw ys 


arid od “em ae odd 0. “peoaiq. eRw Gon, 86 Jo Gigay dvons | 2 sade” ‘yeted. 


one? br tus ntednes “04 vag ot aofdatooveh néod ¢ adrorrud seemed es 


Rak: ban stoneveran! madd 10? boa eoeineng biea wo “fedoerte 
wa “pont 40 ean tom satitons: toNaovadd dard :otesae ‘Yaot bike 
bt ‘ae Ao abegserg edt Sactd ‘hea ‘nolsdsiooras “asol- ‘bias’ 6° Siam 
ae eanudnion ed ytage eufok, ‘od ave bend erew epasdaon “Oong 


toe newb ad sects peveimeng blew ni beoala beet ‘et ‘yond etd ‘0% 


Dhan a visits 
~t6F Ha hon eats one ed bees {lb -eew vena trom bisa 1 ooo Paha 


ee epartsroxe bhae Pi reste ‘alded ine ons aah” ext dane bas yt 
nt sitit Tegel arti ae. ba tebeo BE vd tod fiiol bise ef Seets 


bres pee ab tet Ae 4 (Dy ont ‘of omek end bey eveon (ou etd 


=F a at trebrotoh bre s9dse% dian ‘pian acid’ ‘ot  Bayevdos’ oily® 


bias b ccigihdubaniaha bran ted Holden's at? betneb viteot tosge fox 


ah bees metabo it to eerie: Gis ols “bieiis vatleclal “mele a ot ‘eben 


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Batre nos tar ona Sedat: dae ‘ovods as erotdetebtanod” elds 


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brinesatte eaw toon dottw “403! cod teenit 
“98on ons a0 sana tner rome ot Ditniela 40 enea eft at” ‘aie 


Hh | , 
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Fa use id ORF 


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san tah de oR Gms UR a it de a Yeo if iake'ss - wore) ae 








rat vd. poten ecsntedcohih wt he baila wos bed or ifs 


‘ sieved eaw toeusint | “plea dolde so | 


“ote! om ton pike a Deda gqenne. vated ‘MS EBT to "etielkiene ° on 
te onbel mony vi foal rom. goo Nicosia bows eel tud be) odtup trader 








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Replications were filed to said answers and the cause 
waa referred to the master to take the evidence and report the 
same to the Court. The evidence was takzen and reported to the 
court, and on hearing the court found the issues for the defend- 
ants in error, and dismissed the bill for want of equity. To 
reverse said decres, this writ of srror ig prosecuted: 

It should first be observed that the renort of the 
master and the certificate of svidence do not include all of 


the evidence heard in ssi 


ad causes. <A large nomber of the ex- 
hibits which:were offered in evidence are not included in the 


master’s report nor in the judge's 


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be Certified only by the clerk. The record also faile te tn- 
GClude the judgment vaterired to in said bill; in other words, 
the record affirmatively shows that neither said judgment ror 
the transcript thereof filed in Randoloh county was ever of- 
fered in evidence. The failure of ths record to inelude 411 
of the evidence, and especially the jud-ment which is ths basis 
of this proceeding. would warrant this court in affirming the 
judgment. However, we have deemed best to consider the case 
on the merits, a3 counsel on both sides have treated the case 
as though the record were in Condition to warrant such consid- 
eration. 

There is no svidence in the racord provine or teand- 
ing to prove actual fraud in the making of said conveyances, 
by virtue of which the title to the premises in question vested 
in Faith Petty. It has uniformly been held by the courte of 
this state that allegations of fraud against creditors ina 
transaction of this character must be established by clear and 
satisfattory evidence. :Bonnell v- Yilder, *7 111. 727; Bowden 

ey 

v- Bowden, 75 Ill. 143; Pratt v- Pratt, 96 111. 184: Schroeder 
v. Walsh, 120 T1l. 40°. 

The evidence on the part of defeniant: in error Feith 


Petty and John Petty is to the effect thatJonn Petty and Faith 


“ 


en Geo “ate hoe eyawore bP ae OF belt? erew ‘yokenemre de “pale Radiata 


edd dooney bose SoaebPve se effet of ahte em ott oF her eeey Aw 


edd nt besroqder: Bye wedE? paw “obras ive “edi “9hude ede oe onan 
bmssens ont dot Severe! anidewey BHWGe ame: stritecdt fo bow .taroo 
oT swhtuie 20: tokw aot TTTd Otte ‘bopbbueth” bud .roaet wt ‘gine 

» boteseaor ot jTorse To tive aide Jeeroep’ abt ap SeTtevet 

‘vletd So dencet) ett tet r Poverpado 64 tewbD Bruce FT! MON 
to file -ebofori ton ob atnebive oteottitrao! ots bee Yetesm 

LS pe vodtt Mecdaditer oweT AL? Sadao beet oi Boat” Someh Ee Bete 
edt pe hebulont god sta socvenive of bevetttq aréw dotdw ag febdt 
at geovsed tud pataoltrtees “at asbup aed ‘arl on bg og WES ae 
cat OBE et bey Carew pase sat” Sebo ldad Wd plas Bers feded be 
eeborae  sottateP iti ftd bRee at oF petaeed “siding buL “ott ‘ohuts 


ngairy > tere Bark! ofipr istertl fom Utedt Svode vPorr sent? t4s bacder vaay 


ineethe ewe leony tdies ‘deTebaad ‘af batty Yooetans ‘s4Pa Seemed | ent 





fie ebtifankeot Brotern oft Io eaht ta? ent”: Loonéhive al 
etetint ont: we her tche Cacideritinie’ orth WETaYCodwe Hts lhGmaNiye ate ae 
cot McEMT PT oY S400 ett godttaW Bigow .getdeooenty wind Ye 
 @uiao ert rablsaod of Jrod Bemesb eval sw. tevewoH” Since But” 
whtenioo done doseew od dotPP bios ‘mf Stew BXbosy ott diebortd we 
wi ee ee oe 


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eneo oft atest overt mabic tod no Tt secuso es gad 


Sn duseapeiubittgan Hier Fe entities aff of Berert Tautoe ‘evotd ot or 


betery ‘neMisedn nr? neslireday "ed r” ‘oF PLHP Ged dope’ eet ae 





hes oat ween eat we Dhert (weed efnrathow wad sp hale 3 
par psc Ebase tretene Bubwt 90 e0OFieeolTe datf etede ebay 
fort westo yd Bedeifdates of ten tedcpradd! phe 90 We Ei obeweRTe 


gobwed er NT TA (ebriw. wv! Fi eatiogh Vesoetitve: Bote! | 


pebpentioe svotra ren ve (syese tw ages veer acca io 





a, ee Pe 5 a eo eee 


co Hae 








Petty each contributed #425 on the purchase of the vrevises in 
question; that thereafter a mortgage of *2,409 was made tn the 
Sparta Building t Loan Association to pay for certain buildings 
and improvements made om said premises, and a second sortenge 
for $800 was made to said loan aseociation by said narties, to 
reimburse John Petty for the funds he had contributed tovare 
paying for said premises, and that all of the payments for dues 
and interest on said mortgages were paid by Faith Petty- 

This being the atate of the record, the alleration 
of actual fraud in the making of said conveyancas is wholly 
unsupported by the evidence. CGounsel for vlainti?? in arror 
contends, however, that whether or not there wae actual fraud 
in the making of said conveyances, that their’é6efact wae to 
hinder and delay creditors, and that therefore such convevancen! | 
would be fraudulent in lay- 

Before a party iG ontie ted to reliaf in a case of 
this character, it is netessary to allege and prove a transfer 
which is in Pact Praudulent as to creditors, or i? the convey- 
ance is a voluntary one from the husband to the wife, that the 
judgment debtor did not retain enovgh money or proserty to ray 
his debts. Dimond v- Rogers, 203 I11. 464-493; State Bank of 
Clinton v- Barnett, £50 111. #12. 

Plaintiff in error further contends that, inaamuch aa 
the execution to the sheriff of Randolph county waa returned, 
"No property found,” that constitutes prima facie evidence of 
the insolvency of defsndant in error Jnhn Petty. That state- . 
ment is correct, aprlied to Sertember 7rd, 1997, the time of 
the return of said execution, but it is not proof that on Mav 
25rd, 1921, the date of said conveyances, said Jonn Petty was 
insolvent. Merrell v- Johnson, 9F I11- 224; Bittinger v. Kas- 
ten, 111 Ill- 260; Paloon v- \icintyre, 119 111- 292: State Bank: 
of Clinton v. Barnett, supra: In the latter case, the Court at 


page 518 says: 


opt pesimesa. add Jo seedatuq, eft oo 2M besudtadgoo dose yiseq Hs 


eft o¢ che ger 00D, OF %o/ exendnom a. vas teoneds tant, iootseoup 
anntittud vtetseo cet ver of, mobtatoonaA god £ autbhiyd sotage 
espe tao breoen © bra: sertnetg biee, co eben einemeverqmt, bas 
ot ,patiran bhae yt colt ahoorps ceol, bisa od) eben, eaw OGBe, aot 
primes Letudtdtneo bat ed shout oft, oo yited, oot, earmdaser 
verb) tot. steenved..6at) Jo [Lea cada, bos bor Emerg. bise, 107 golly ag 
parttet ahtat vd bied, even senegduom bisa vo, Jeesedal. bye 
motteselie dt cbyooet edd Yo odste, odd, gnted ehIT id io 4 9/5 
Hote et sepceyewoo bise Yo yaizem edt of, burs Leto Jo 

» Torre of Tit tolele tot Lecorod -egnshive, ott xd betmougemae 
obyer? Larcdor a2. anotd tor mo erdere, dads cTOVONOH Ad SIOD 
‘ise paw doeTahets taris  POOORY EPCS: bieS Io. acinen ond o2 
Fhe acienirenonrt nik stctee exofenant tenth bot vetoed thers yatob poe seboid 
aon se «wal 9). dpetubuant, ed, bl yow 

3 RAD) H bt Telfer od bolttige gb yiteq A /eMO IO oy) ecu 
; qisetacant .¢ ovenw foe erelils ot vtpanecenm Bi, pt _yietoeiadto eit 
“eterna ot ‘Si ovo yRrod thet of 26 Jgelubvedt Jost al eh sohiy 


edi odedtd ‘5 e*iw eit of Seedeant att sont enc yisdaufov 6 Bt some 


TeIovoh wetecor: "oO vero idavene niatet Jon bib toddsb»toeme bul 
fo gost ens? :O9A-PAL OET S08 egtonofl «v boomig) ,aideb etd 
| | -S£8 -1f1 GBS stopmed ~ osenke) 

ne! elias etadt abnetaos azerdit toT1e Sh MeIpielt 
e bennenh art mew winKo Aqhobres, to 79 Daedea att od. maramonauale 
» tn ooonabive ate? et bry sesus kon nog tate. * bouOt vtteqetE CY ie 
setete tedP >. ettod adel tome mf deeboeteb Io yoaeviosnl edt 
Yooeht aft ehh Lore tedmetoe! of Heltlaqa «toe T1099 ef soem 


Lone oy tadt Mon tg dire be id f tudo fsgooke i bse, Yto.mwter ent 


Jeary, o Haq ntiel Stag ° resoneveraas, bhae te aisebbabins sidhonindle 
soheW fe pean tas 1877088 M478 v.goemset (+e ermal | nempekem 
“hin ates 1908 ante all .grydoTo¥ «vy pooh ey. LOM ETE ged 
‘Sp ctruom ety! wae8o, rested jand: ne i oetaee sparse ‘Botsild 2e 
CHkaNhe iim V9 H9% slant ton) neh iee ally aieua ib aa ave open eg, AE Be 











“The bill does aver, and the proof eatablishea, that 
appellee secured judgment against Mra. Barnett, unon which ex- 
ecution was issued and returned nulta bona: This establiches 
‘prima facie the insolvency of Mra. Barnstt at the time of the 
return of the execution. There is no averment in the bill eof 
the insolvency of ira. Barnett at thettime of the wift to ar- 
pellant and there is no proof of that fact in the record- ..... 
Appellee having failed to prove fraud in fact, the burden of 
proof devolved upon it to show that Mre- Barnett renderad her- 
self insolvent by making this gift befere it could establish 
presumptive or legal fraud. In passing upon this question in 
Moritz v- Hoffman, 35 111. 553, we said ‘p. BSA): “No one will 
dispute the principle appsllant see%s to astahlish, that a vol- 
untary Cconvsyancs, whou the grantor is indebted at the time of 
its execution, is presumotive svidence of fraud; and a fPraudu- 
lent intent will be deicekaiad: Gocte the fact that the party can~ 
veying was indebted at the time the conveyance was executed, 
and that as to pre-existing creditors every conveyance net made 
on a Consideration valuable in law is void. The principle is 
thus broadly atated, but it is subject to gome gualification,-- 
to this extent, at least, that the debtor retains in his ros- 

- session property sufficient to discharge 411 debts sxisting at 
the time of making the conveyance alleged to be fraudulent. Tf 
this was not permitted, trade of every description would be 
very much crippled, and instead of there being an active inter- 
change of property the whole business of the Sountry would 
stagnate.'" 

This latter case xa fully answera the contentions 
made by Counsel for plaintiff? in error, and shows that on thie 
record under the law, plaintiff in orror has whollig Pailsd to 
make out & Case. There ia no allegation in the bill and there 
is no proof whatever to the effect that at the time of said 


conveyances John Petty had no property, or made himself insol- 


<a 





: pitive a Reh Rc) SH a ra rg ae Wri ak. ae gt ED at ee sede ay vl ie 
tet (peda tidrtes too add foe (sees cook ffrd ere 8 Veet 
“re dottw pode" #iewned ved teetend doensbdt Rowsee Sefrerde 


. BHO Sak AEF dy Foul ER Yd Woden Meas MURR Re aniog 
, , 


446 TTF 
con Ge Sake wae Se en feds te dtéaseé Jedd So yYouovfdeat éaP 


ati nf dasmnéve on ef enédt) doi juodxé ede "90 tindos 


woo enboed et POF “gode send 4d tedug (Oh SP oaede baa eee rey 
95 sebsic oN} (FOR) cE huest ‘everg 89 belted solved eeffeqdi 
cuart beaehoss tied=ed sev Jens wote of 42 mnogu bevfoveb Ioouq 
“padraesds ptboo iP erdvea dary Stak gotten ga? Fheer dap ties 
Wwe WoPseeup ‘pttd “nogd aotee kg cr » bUETT fosgef TO avi sqaise og 
rie ono of® (NAF lg’ Brae ow [eae VEIT Be (oeesSou wP Sat OR 
-fov e tett .fetiaeiee of stese thaliedok efgtontag ode oftaedb 
"98" Gard Gite ah peddobe eb: Fasneks ene abi Posh reee waRaae 
-ubties? o hee tbtes? Yo somehive evitamveenq nt .aotdudexs Bat 
<tiod usaee etd tend toed otf poe! pabvboly’ ed [ftv tnedot sool 
e ( heiusexs paw ancevevdas edd ont) sd9 de petdéebal Baw gatyor 
obex dar Saveveveoo vrave Biodi bers anteerzoreng 6? Be Feat bak 
: et tG shag” ont ibtoy at wal at otdectav’ sb P sere brenso. & 46 
~The sastti thu ‘ede Oy sseh one RPT Abe bebe el y edee eee 
Or REA eh biased doddob ony Cee ehank Nees eras us 

tn aottetys etdeb [Tle exsedosth oF snetorsouse edseqorg moleees 


2 


“ed bruow botadthaecs vzeve Io ebatd beds twrhe' Soa" Baw’ etd 


eat? svytton te sated onettd 46 bedsan? poe \Bereqivo Hodm! yHev 
brick eased aad Se" eben aad! oksalliesis paporntiehigdrers | 


Ee tdvesrod She bWewela’ writ wa Shwe Werk ober ret wae 
pat so ted? ewore Boe sores of Mtdhlelad Yo® Tenawod yo ebsm 
int heltee vifady cet torre ot 99 Ydofeto ws Jedd rept’ Bioves 
vals red bee [td oft of oobtenelfe of of ete?’ Veelso # ue eitem 
NT en ae onks wut ae dadd toette eify of Wevedadw Ibte ‘on bt 


-foent Merm?d bam to evdvogona’ on bad ysted riot! Sboeyevedo 





ya 


“redattdates nidt -endd stfon bastudes ber beveet eaw mdf dice 





3T nas tel cebi ery ed oF bar of Ts “ebreyeuneo orl t “ant iam cre eu td ed . 


4 
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vent by virtue of amid Conveyances. The law further is that an 
creditor "“witnout a lien has any rieht to cowwwalre that hie 
debtor is givine away property to nis wife or children, unieaa 
such creditor can eatablish the fact that he has not retained 
enough to satisfy existing debts. Such erantor must mare him- 
self insolvent by such szifts or Convevances, and to imneach 
then, fraud must be charged and proved." Moritz v- Hoffman, 


35 Lil. 553. and in Faloon v- WeIntyre, supra, the court holds 
"if the creditor fails to prove insolvency of the debtor at the 
time the Conveyance is made, he is entitled to no relief.” 

It is also @ principle of law wniforély laid dewn by 
our courts that, before a creditor can maintain an action in 
the nature of 3 creditor's bill to set aside a canvevance aa 
being in fraud of creditors, he must first have exhauated hig 
remedy at law. 27 Vorp. Jur-, sec- 578; wcConnel v- Dickson, 


45 Ill. 99-109; Dormyeil v. Ward, 108 111]. 216-219; Detroit 


nee eee 


ee 


Rolling Mills v. Ledwidge, If? Ill. 308. 

While the bill alleges that two executions were ia- 
sued on the judgment to the sheriff of Franklin county, and that 
ths first one waa returned unsatisfied and the second was re- 
turned "Defendant not found," no executions to Franklin county 
were offered in evidence on the trial of said cause. There 
were other parties defendant to said juderent, and deere is 
nothing in this record to show that said judement could not 
have been satisfied out of the pronerty of said defendanta- 

For the reasons above set Porth, the judement and 


decree dismissing said bill for want of equity #111 be affirmed: 


Decree affi 
/ 


a 


re 


| ‘on dtetd at celtquS wal of? .geotayeuron bise Jo ,euintv yd Joey 
P33 tedd ntafamne od tig bv gpg ewe, eke we IBoH LIK” rOdtbernp 
Ree fe epee Ene TO ente wit, od aateqong vere ootvia ed sotdeb 
_bartetey roe Avent ach hart tour ads ABELL ACES, OA OL eae Bae 
“Hit uaties form otoars ove | edd aoltnixe yiretdae.ot mute 
Hoseqet ot hee .eeonaneriao yo otiin done yd Jtreviount Iles 
eM sy sinew. % “Lear, bas poryeds ed term buent <meris 
abla? dries adit .pscup ety igloy sv PROLSZ FE HPES: 86S LET BS 
edd $e -mntdeh edt Io .vonewlorgt ever od el fat nosthets ed? 34" 
wa tet Ter on oF bel tt ine iat od. aban Sf consyevegs els emi 
Pl grat bier winsotion wal 3e elgton ips eke eh 8h) tou dau 


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aMQeSOLd -v Lenredol 1899 20m wh. .g70U. TS wal de ybemen 
vp figateg 728-908 1 5T OGL oge% .v Legumrod 906-00 511 ee 
708 ATT SRE sgoghebed ¥. 20LiM aot gloe 


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vinooo .atlineyd oft snottusexe O07 pbayo ton jegbne ted" ; beans 

co TAT. .-gause dies Fo Ceitt edtiao esmabive,e nt Seer ag _ OTEw 
ey nt exerts hoe « PPORR DEE (PEE A AMER REO ae 1. terde eTew 
Oe tase Reha 
ayy) sR deebreteb bree Jo viveqoig ety Jo Jvo boliaties coed eyed. 

boa toon hit odd eMtio? toe. evods enoeset ad ¢ Fea: “ay Oa 

‘homet*te ed If tw etivpe Io soew9o?, fiid phhae gndectaelh eexpeb 





Joo Diiegy gnero het pias tad? wore ot bre 










Me PR AP YS aches API E abe as 
amir essoel 
by ee # re ° i * ° “ % ak 4 5 m yy 
b+ ny ; Mga OS eee” apa aaa 


eae PEEL Wik OR Pee i tel een eC ilinee mR: 9) C7 aaa lear ai Rae aaa 
de VM Se ag ates Co Ls. | pal EE Be ET, “eal one Maree Wyo he oe ne 


Ces! Sf tH eRe beck Ce PRB RHINE! bor HEGRE” ait ESS ean ar aT age Mr 


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Term No. 32 


In The 






APPELLATE COURT OF TLLINOIsS, 


. Fourth District: 


OCTOBER TERM, A. D. 1928 


ERNEST JENKINS, 
Appellant, 
Appeal Prom the 
-Vse 
Saline County 
ROBERT JENKINS, F. M. HART, 
NATHANIEL JENKINS, THOMAS 
JENKINS, D>. #. RUMSEY, 
Appellees: 


Gircuit Court 


Pet TR OO oe a) &2 


ue ee eee 


| 
Ly 
c 
- 
la 
A ee 


Appellant Ernest Jenkins filed a bill in the cirevit 
court of Saline County to the April term, 192, against appel- 
lees, alleging that they, with appellant, were sureties for 
one Robert Jenkins on six notes ageresating *4,514.53; that 
judgments were taken on said notes and were afterward satisfied 
out of the property of appellant; that on the date of the rendi- 
tion of said judgments, and up to the time of the filing of 
said bill, said principal, Robert Jenkins, was and continued 
to remain insolvent, and that appellees severally became liable 
to pay their aliquot parts of said indebtedness, eo satinafied 
out of appellant's property: praving relief, etc’ 


To said bill, apDellees filed an answer, admitting 








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-thres od? 90 oted ett no ted? idoal Leggs to. ‘ydseqong ‘ens 40 duo. 
69 ap A Eas G 8 ARM Bs 
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beuntinoo hee eer Silat sneer aes phen: efhid bhed 


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beltntise on Lenouboadobn! bt ee Qo edt8q toute thedd Ved, od, 
‘ote ,tetfer actvarq rvotegorq etna! feqge to tuo, 
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the making of said notes, the taking of judement thereon, and 
the sale of appellant's real estate to satisfy the same, and 
further admitting that H. Robert Jenkins, one of the original 
signers on said notes, had deceased since the making of said 
notes and prior to the filing of said bill. Saia answer ex= 
pressly denied that appellant was a surety on Said notes, and 
averred that he was a principal thereon with Robert Jenkins: 
denied that Robert Jenkins was insolvent at the time of the 
making of said notes, and expressly denied liability on the 
part of appellees for contribution as prayed for bv annellant: 

A trial was had before the chancellor in open court, 
a finding was made in favor of appellees, and appellant's bill 
was dismissed for want of equity, at his costs. To reverse 
said finding and decrees, this appeal is prosecuted: 

The recpyrd discloses that in November, 1918, the said 
Robert Jenkins and one Loren Jenkins formed a partnership for 
the purpose of operating 4 garage and conducting a sales avsency 
in the city of Harrisburg. Said partnership continued until 
the latter part of 1920, at which time Loren Jenkins abandoned 
said partnership and thereafter had nothing to do with the bus- 
iness. Robert Jenkins ran the business alone until the early 
part of 1921, when appellant became a partner in said business 
theretofore conducted by Robert and Loren Jenkins. The record 
further discloses that while said business waa being operated 
by Robert and Loren Jenkins, they became indebted to the extent, 
of some $9,000 or $10,000, which indebtedness was evidenced by 
notes signed by Robert Jenkins and Loren Jenkins aa principals, 
and by appellees as sureties. Appellant was not a siener on 
any of said notes at that time. These notes were renewed from 
time to time, and were outstanding and unpaid when appellant 
entered into said partnership with Robert Jenxins. During the 
partnership of Robert Jenkins and appellant, these notes became 


due and were renewed, Robert Jenkins and appellant sirning said 


bre .cooerett trem but. to neiiyes aid ,.eeton bias to gotvem eds 


bye .omas eft ytatiae of eietne [eos a’ inet fegqe to el8e eos 


Lagtnite eft to eco <0 £Noreb jvedoH .K Jatt gnissinba serge? 


bise %o anitem oft socte beesoveb bat ,beton bise #10 pig 
=Fe vewens bie? «flid blae to anift? edd of solr yon sia 
bas .sedom bras so véovun 6 pew daeileyqs dant betneb yleeerq 
arbinat: s1adoe A¢iw noeveis [satootad & sfw'sn sats Heiveve 


att 30 amt} ocd te Jooviesnt aay ddrvool sxedoh sadt botneb 


ant no. vdtiidall beloeb vilaveraxe bos ,sesom bise te gnivan 


"tral locas vi so? bey sit ex fotdod fHdiod a0 peeileqqs to dTaq 
-tur0o megqo af velleonado aft eroted bel eaw Isitt A . 


fLid a'soalfeqqs bas ,soelleqqs Yo rove? af bast 8aw patho Es £ 


A ph PMN 


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| sbedupes en el Iseqqe elds ,eet9eb bas shales: ‘bie 





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TUT RAE “pe 


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~nud aft ativ ob of anidten bad ted tasvend be qidevendaeq bree 


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wien eh 
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Se A ik ea ‘ aed, 

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di sali ( ¢) OBR ME eee 

t1etKe ods ot betdebnt omaged vers “cect xioet a boa trodes vd 


Mee) Ua taahie payee aN vee itt 4 
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Popcrns wih Sa Utes 


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TUR MANE Are: Aamo AL Tag ahi 


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By 


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renewal notes together with avpellees. These latter notes are 
the notes upon which said judgments were rendered. 

It is contended on the part of apnellant that, as 
the notes formerly signed by Robert Jeninge and Loren Jentina 
as principals and by appellees as sureties were renewed, that 
he, appellant, signed the same as surety and not as principal, 
and that, having had to pay said notes, he is entitled to con- 
tribution from appellees. On the other hand, appellees insiet 
that when appellant entered said garage and sales business, he 
did so on the basis that he and Robert Jenkins would be liable 
for said indebtedness then owing by said firm; that 2t the time 
appe llant cucared into said partnership, it had asseta consist- 
ing of certain automobiles, accessories, etc’, claimed by an- 
pellees to have been worth from %9,000 to *19,900, and that an- 
pe llant paid nothing therefor, other than his undertaking to 
become liable with Robert Jenkins for said indebtedness. 

Appellant was the only witness testifving in support 
of his theory. While two or three witnesses testified in hia 
behalf that when certain moneys were borrowed of them, Robert 
Jenkins transacted the business, and that they did not know of 
appellant's connection therewith, said testimony was of no par- 
ticular probative value. On the other hand, the testimony of 
appellees is that appellant had in effect stated to them that 
he went into said business for the purnose of helping to pav 
the indebtedness. 

Robert Jenkins testified, among other things: "He 
(appellant) was to go in business with me and help pay these 
debts and make the garage a paying proposition; help pay off 
these debts of mine and Loren's. He went in with me then. The 
notes at the City National Bank was renewed from tire to time: 
They amounted to something like *9,000 or *10,000. ‘nen these 
notes had to be renewed they were renewed bv Loren's name be- 


ing left off and Ernest's going on." This witness further 


ats eetor resitel Lah a -eeotleqos.ditw Ten tegod aejon L[aweaet 
-bstobret stew etuemabyt. bise OP, BOTH Beton ons 
ee. ,tedt tealleqqe to itaq edi ne bebaadnog BL ST... : 

sotyaek ratod AO, ani taal tredok yd bermte Y¥ivem104, Beason. "agi 
tests .beveret etew seitere es neelleqqs yd bos eleq koa ag . ag 
cfagqtonina #@ ton bre yiewe os emae oft beagte etosilegqs .ed 
-99. 0% beltiitne ef ef ,eoton bisa yeq, of bed goatvail,.tedt.boe 
tetent aoelfeqqe .bast tonso efit 50 ..seefleqgs mort notsudias 
ed ,anesteud aelae bose egetey bles HoT ae aaell eqqa merle stadt 
efdatl ed bfuow ent veel s19d0H bas art sant steed, eit ao 08 bb 
emti off te tedt tm7it bisa yd antwo meds erenbetdebat bise to? 
~tetero® eterees bed tt .dideiesinag bias ofot bexsaae tasilegge 
-7a yd hemtafo ..ote ,estyosesooa .eslidomosus mtst1eo to avi 
-78 sens bere 1290s Of* ot 009, et mort dtrow, ceed ered of eoolteq 


os agttasneboy aid matt tedio totetedd gnidson, btaq dust feq 


-aeorbetdebni bi se oO? BotweeL, suedoa Site, Sigett omoned 


sora mt antv3itest eeeadtw vino, edz. ew toslleqqaé. . eee eat 
eirff of bettitret seesentiw seus to ows ol idw. “reeds ake to 
tyadoa meds, "5 beworred ev tew svenom miasi09 ode tans. Matted 
%o wou tom bth vedd sant bug .Seetieud add bedosenend. 20 fareb 
- Tey of to saw yoomitees biss at Lwertedt soitoenno® a'tnelleqgs 
So visomtteet edd ,Saal terito edt 00 “-euLav, evi tedong aol uols 
tedt ment of betsts toels of bed jasl legos tad BL. eoelleqas 


vag oe noitqied to anortug edd 104 eeeetons bise. odat tow ed 


_o vop.  speenbesdebat edt 


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Dba 


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testified: "At the time of the dissolution of the partnershin 
between me and Loren Jenkins in the latter part of 1929, we 
had several cars on hand. Some ten or twetve. Thev run *a0n 
or $900 apiece, some of them. ..... We had some tools, fPix- 


tures, and a lot of accessories." This witness further testi- 





fied: "When we (referring to appellant and himaelf) went in 
partners, I had an agreement with Ernest Jenkins that he was 
" to pay 4s Much ag I was. ..... I don't remember the date of 
F an agreement with Ernest with regard to him and me assuming 
a the payment of these notes- It was the year 1921." 

Appeliee jiathanie! Jankins testified that appe liant 
said to him that "he had gone in business with Robert to pay 
this indebtedness-" Appellee Thomas Jenkins testified that 
"Ernest said that he was a partner of the business, and could 
pay it off if they would give hima little time- Ne said that 
he Would give a mortgage on his home if Nathaniel and T would 
give him security to get the money. He said that he would help 
to pay these old debts in the partnership- He said that he 
went in to help pay the business out- Said that he tonk 
Loren's part of it." 

While the general rule is that an incoming or sub- 


stituted partner is not liable for the existing obligations of 





the partnership, yet it is also true that an incoming or sub- 
stituted partner is liable for existing indebtedness of the 
partnership if he expressly assumes such liability, by his con- 
tract of partnership. Frazer v. Howe, 106 I11. 5@%; Penn v° 
Fogler, 182 I11. 78; McCracken v- Milhous, 7 App. 1F9. The 

law further is that such assumption by the incoming or sub- 
atituted partner need not necessarily be by an express under- 
taking- It Gan be inferred from the Condit of the party and 
the circumstances of the case. Frazer v- Howe, supra; Penn v- 
Fogler, supra; alter v. Edward Hines Lumber Co-, 77 app. 97; 


20 R. C. L., p- 985, sec. 219. 



















ow O8ET 70 rag aeiter vet ot eq! 


RR oy 
fy i j 


oon rors vor -evions 70 “aed omen 
to 


=x? sefoos ogto8 bea oF ee 


ee seca? seondin erat a "-nornosre Ha. 








airtmunae on ke etd ot bragen agie 


"reer ney on new 31 





ett test bras of “satdenendseg etd ot 
toos oft secs bree + $u0 puomtoud ox 


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Counsel representing the respective parties are 
practically agreed in their statements of the law soverning 
the liability of a substituted partner. This case is there- 
fore to be determined upon the facts. That being true, and 
the case having been heard by the chancellor in open court, 
we would not be warranted in disturbing the finding of the 
chancellor, unless such finding is clearly and palpably 
against the weight of the evidence» Fabrice v. Von der Brelie, 


ee a ee ane ee me ws — ee 


190 Ill, 460-465; Haug v. Haug, 198 I1l. @45-50; Hudson v- 


en re ee we 


Hudson, 222 111. 527-528; Village of St- Anne v- Cover, 223 
Sharp, 103 App. 239. 

In our judgment, the finding and decree are not 
against the weight of the evidence, but are amply eid tn tend 
by the record. 

For the reasons above set forth, the decree of the 


trial court will be affirmed. 


Decree affirmed. — ao 








Term Ho. 33 Agenda No. 33 
In The 


APPELLATE COURT OF ILLINOIS, ee 
Fourth District: 


wn w ee 








CITIZENS STATE & TRUST BANK, ) 
Appellee, \ Appeal from the 
-vVs- Wadison County 
HENRY EIMERS and ALBERT HIMERS, ( Circuit Court 
Aprellants. ) 


~ meee 


Judgment by confession on two promissory notes was 
entered September 2nd, 1925, in the circuit court of Madison 
county against appellants, in favor of appellees, for #5,244. 
On December 18th, 1925, on motion of appellants, the court 
opened up said judgments and gave appellants leave to plead. 
One of said notes, for *3,500, was given in final renewal of 
a aote of 43,900, 4400 having been paid on the principal: the 
other of said notes, being for $1,100, was given in renewal 
of a 32,900 note, #900 having been paid on the principal: 

To the declaration, in the usual form, apnrellante 

filed the general issue and four special pleas: 

By the first special plea, apnellants aver that they 
were fraudulently induced by the officers of appellee bank to 
make and deliver to it each of said original notes, the alle- 


gation being as follows: "that the fraud of the plaintiff as 





ent mor? Lesage 


ie 
‘ad 
Wei | ter: 
ae TissOR enantio, rea as 
Le go ere, J iyonkd sean 


Jejustfooan 


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to each of said notes Consisted of the plaintiff, throuch its 
cashier, assisting and lending its inPluence to Jesae F. “ep- 
pel, 4. L. Simpson and Ll. FP. Bagby, so that said Nervel, Zimn- 
son and Bagby, through arrangements with nlaintif?, Praudulent- 
ly got possession of the proceeds of aaid 47,990 rote and aaid 
82,000 note, in payment of worthless stock of International 
Aerial Navigation Co., said plaintiff receiving benefits of 
the fraud by retaining a portion of each of said principal sums 
of $3,900 and 42,090, and delivering the balance thereof to 
said Keppel, Simpson and Bagby." Said plea further alleges 
that: “On June 13th, 192%, said agenta arain came to the home 
of the PERE eC and at that time brourht with them a promis- 
sory Note prepared on a printed form furniahed by plaintiff, 
for the principal aim of $2,000 payable Six montha after date 
to the Citizens State & Trust Bank of Illinois, with interest 
at 5% per annum; that said note was brought to defendants with-' ’ 
out any request by defendants to aaid arents or tn the vlaint- 
iff, or without any authority from them to said sagenta;: that 
then and there, at the home of defendants, said agents solicited 
defendant Albert Eimers to purchase stock in said company, and 
solicited both defendants to sign said note for #2,000; that 
defendant Albert Himars agreed to take atock in said company, 
and both defendants sicned said note for the principal sum of 
$2,000." 

It was further averred in said plea that said “epnel, 
Simpson and Bagby took the note for *2,900 to the bank and de- 
livered the same to said bank and that said hank naid to said 
Keppel, Simpson and Bagby 41,950 therefor. Sala plea further 
avers that said stock was issued by a Missouri corroration; 
that said stock was of no value, and that the charter of said 
corporation was forfeited on January Ist, 1925, for fatlure to 
‘comply with the annual registration laws of Missouri for the 


year 1924;" that said agents "falsely and fraudulently renre- 


ec? Agere? L2tbterele ets Mo Letefenoo shut bree to Hfoee od 
~ver .4 seect of pemenlin! est yntbvel bes aaltsetera tetdens 
qt 2 fecal biee tedt om ,ydnsi .o .0 bos gongmic wd af feq 
-trefebu\ss .°oftotefo odie eicomandante denords e7dg 26 bie roe 


‘bien Bre ator O0°.F* flee %o ebessotg off Yo mofemensog tog YE 


facntiperatHl %6 ‘Hoode enefdiice Fo doemyvaq ot .edon 060,88 


90 ehttened sotvicoes Wiatala brag” Syo8 coltay lye Latioa 
antic Teatentdd ples °o done Yo deféiog & satotates yd buen? orfd 
et Aoesett sonalad aff smtreviPob hee (O00, 8? pore 00e. 88 Fo 


eagefls “pentdau sola bran “Sydgel bow vorqmie .feqqe® bise 


emart oft of eso visas stevens bihes eer aA SOL Sel , FOS fhe, 


-nimord a medt Mat jteuord onto dadd $8 bos edoslineteb end to 
itiset hed Yd “hore tows e198 beduing © 00 botaqetd etom yto0e 
osast eth SRIER x10 eldevag 000,84 20 ‘wie “regFontig ‘end 464 
desratat stiw yatoati rt ro Ure seust 2 etet2, enestdEo ont ‘od 

+e AF to e drpberetob ot tdauerd ase eton Biase tad? Santee seg 88 te 
-thtefe ads nF <o etroenes bise ot Sig ehwate yd seasypet yas ‘Se 
tett yathesn bree of meds mon? yvtfrodiue yos heron bite ‘30 cess 
bottSttoe afters bree ‘“edGaboeteb 46 Smid elt #8 Soreds ers font 


bas “pyeparss Hees 1? Hoots eradsauq oF etowla paedt hse SaOIOR F 


toads $008 88 769 Sddd BFee elke o8 pJowineteb dod “bétborréd 
eyonanod Bier a? sooth evek oF adams evetia dtbdr 8d ebROTeD 
‘Blow ‘Bhae Boddy Pe Snbpaeten asd BAS 
, Die CARRE ete dia BER O00 Se 
~feadey Stee fat 26rd pied’ ot ‘Poraeve eddies aba FE TO wen w 
-~ob BAR Had od# 64 O00, c° S04 etd Ott Mood ydaad bis woogmnld 

htas of faa “Yoad bree Sats sae Aosd Bias of SBE AY Bondy PF 


46 mire Peqtoatea até to4 


+. ee eae kt i Geet aa eee We; RAMA SS 


nodivut Adrad pP8d lxotencdt Ode, ff y¥dg ad Bis "Hdegate .feqae% 


reiotterodsoo Patiobsatl B yd potash Sew #6dse BEweyeads etevs 
“Btee Vo aafdeds Add Jods nah’ loptiey of Fo "dew slsoke bise Sats 
of stuf tet 40% .S00P [fef vrkudal do bodbottod aaw doPfetoqiod 


gat yo padodn i 96 seat aor detdetdse féutian’ odd Stew '¢lqwoo 


 iéedon wfdnsfabdat? Boe vieefa?” sanegt biea sade": Seer “sey 





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sented that the stock of said corporation which thev were 
selling defendants was valuable stock, and therefore, confid- 
ing in the false and fraudulent representations aforesaid, 

and having great confidence in the plaintiff and believing 
that the plaintiff would not, through its cashier and agente, 
carry on its negotiations and dealings as aforesaid with and 
bhrough said Keppel, Simpson and Baeby unless the latter were 
well worthy of trust and confidence, defendants then and there 
signed 3aid original promissory notes, and not otherwise, and 
without any Consideration whatever.* 

The second plea is of a similar character, and is 
confined to the matter of the note of 53,500. The third plea 
is similar to the first in its averment of facts, but ia 
restricted to the $1,100 note. The fourth plea sets un the 
defense Of usury, and seeks to have credit on the principal 
for all payments of interest made by appellants on any of said 
notes: 

igplications were filed to said special pleas: a 
trial was had before the court without a jury, a finding was 
made in favor of appellee, damages were assessed at *8,244, 
and an order Was made that the judgerent enbéred on Sertember 
2nd, 1925, for %5,244, stand as the judgment of the trial 
court. To reverse said judgment, this appeal is prosecuted: 

It is first contended by appellants that the officers 
of appellee bank had actual knowledge, or that the facts and 
circumstances in connection with the makings of the notes in 
question were such as to warrant the court in holding said 
bank and ita officers to have had conatructive notice of the 
character of the business being transacted by Kepvef Simpson 
and Bagby, and that appellee bank, havine profited by a dis- 
count made by them of 24% on the nottes sued on, it thereby 
became a participant in the fruits of said fraud, and by virtue 


thereof said bank is not entitled to recover any part of the 


eter vert. dotawr rots anog@o9 bie ‘Yo bate dole ae? tent Aadnts 
-biinoo ,stoterett bos , Foote olden! ay eaw ednsineteb antites 

, abieeeroce. a dot dat da taeelubuer? boa este. ods at ant 
apivetied bere tiftofalq eit at sonebiinos panels 2 aritvert bas 
eetosgs bos tethaso est Hguonw J fou biuow Ti jaLsiq ond tacts 
boa dite bl aeeto ts 2s) sazotiaeb bos enoivelsogzea ett m0 ye 
etaw tettal edt eeslou yvdesd bas corgmte sfeqgez bas ciguonetd 
erent bee certs atrebretob .S9TebiIso9 boa feuns Io yetdriow Hew 
foe, ,antweredto ton bar re9son ytorr tog Laciaiato biae beanie 
*. coved edw notsstebtedoo ie Ms gir dg 

. 8 bos ,tefopranto asfimte « to el sefg brovee ent 
selq, hbtids ef. 008,82 %0. ator edd, to. n109 3 80 edt of. bon tines 
at. sud <etost to tnemreve ett af text oni ‘od selinte ® 
add ou etee kofq ft~oo? ef? ,eton OOL, 1p. ects od bedoiniees 
feqtontaa sft mo tibet even. os exeee bre ewes 20 sensten 


3,4 


biae 40 yaa no etnelfleqqs yd ebsm sesxosat to sinonysq Sie, 108 


f teselq [atveqe bise oF befit etew eae! seo! Laek « me 
SBN. mot bort s Vt, 8 tuods iw swoo edd stored bet “pw Lats 
BBE. a@ 3a Deneerrs, etow eonemsb see! Teqqe 20 neve’ at eben 
nedmetqs® no beware dreny but, edt ted. obam., ase » TOB70, we tne 
fete oft Io Jvemubut edd ea boat] . dS, at 0% 2880 tins 
“hetuossotd at Isaqqs ids :Ioompbut, bie eerever oT .dus00 
araortto edi tadt estoslf[eqqa vd babsetooo seri? ai f1 metre 
be etost ett tedt yo ,exbelwoad feutos, bar ined set feae to 
vi. veson edt, to, antvseo edt watw sot toerago at eeoratemonto 
biee aniblod of gsruo09 est svartew of as Move een not seeup 
att Yo eattonr evitoursence bat ‘syad Pa, BIpOlTIO Bat bem ery 
rosamri 2 \erqeX vd betosenert gated sventeud oat Oe nodonnade 


~efb # vd bes ttoxq anived oteed, Gel 5 are did | Bie. Xia ee meee 


_wdortesd tt m9 deve seston edd mo RES Io mot yd © 


eban 
SM RSM le fue ia Lt 


eusativ vd bos busty bise to etter Rod ue. Rites ate gy 4 ; sana 
Pie ue eh hase 


att Fo deteq U8 FeTooOs. of beltitye ton ie fede bise loeredl 








principal or interest on seid notes; in other words, that an- 
pellants have 2 complete defense as to both of said notes. 

Fraud is mever presumed. It must be affirratively 
shown, like any other fact. Wright v- Grover, 97 T1l. 49@-4%0: 
Boles v- Henney, 32 Ill. 1370; People v. Lott, 34 112. 447; 

403; Brady v- Cole, 164 Ill. 114-121. 

The record in this case, as we view it, wholly Pails 
to sustain aaid charge of fraud. The evidence is to the effect 
that appellant Henry Fimers had *nown “epnel for some time pri- 
or to the giving of the notes in question, and prior to the 
giving of the’ original notes of which the notes in question 
were renewals; that he and Albert Fimers, hie father, had both 
purchased stock in said corporation, and had settled for the 
same, prior to borrowing any moneys of arnellee bank with which 
to purchase, when again solicited for additional stock in said 
corporation; that when solicited to purchase such additional 
stock, they stated that they didn't have the money to buy and 
wouldn't pay a high rate of cuesteat in order to purchase the 
same; that said agents thereupon left appellanta, but returned 
to them in a few days and stated that they had found a nlace 
where they Could borrow soney at 5%, viz., at apnellee bank: 
that thereupon appellants made application for 85,790 nar vei hes 
of the stock of said corporation; that they went to aprellee 
bank, signed a note payable to said bank, due In six montha, 
for $5,000; that thereupon the cashier of anid bank icaved a 
araft payable to appellants for 34,750, which draft arnel’anta 
endorsed and delivered to “Neppel, Simpson and EHaghy; that, some 
five days thereafter, appellants paid ssid *8,000 note, with 
‘the accrued interest. 

Appellants further testified that thereafter these 
same agents again solicited them to buy stock in ssid corrora- 


tion, and that they at first were reluctant to do so, but that 


«te hed vee brroe cred to chopaager Soham ‘re teeretal ov Leqhomieg 
 wretomobter to riod ot es sathteb etehqacw # evar) sds liber 

¥ Lewisham t 39 erect iene dP) heme agy reiveln a Bethe mee oe | 0? 

7 OFRWAO GOTT OF oo cteyort acy Inter et ato yeti! aes otf ynwode 
pee tt TMP aoe? | wiekgesd .O8L iid sb eyoutel w' selpd 
ttl O88 a ieley 0 geboerioe {OVS ffl V8 yehensey + megenD 
otial oh) haeley oo LCE aide BOL, usted! oly naa eos 

elied xtlodw 4 tt wolv oF 2a pened sid dat biotetodh (noe D1 ee 


foette eft-ed ef sovebive «iT parent So satado Shar othadewe ot 


~frr ears emer tol Teaqe? ovo had eens yunek rel leqga tans 
ot ot sete bee aoiteeupy wh: soto eit foowoivits edt of ‘ial 
he htepep afreator: ott Coble to eaten Lenmiet vet edd! tongoivty 
Htod ber yest ett armen todmadhA Sra od! dade pel ewener erst 
add: to? befdtor! bat fre” ,.coltenoatoo (biea oh! Hooda bonatlounny 


fotdwittie anad pal Leatin to Breton’ vite an twortod” ott rot ( OmwS | 


htee tt oleate Ireoteibbe te? bedi ohfte ol ask soctw, ebad ong Oy, 
fannisthbe cove eerdosut of bettotion meaiw tedtd taottavaeato 
bray vid.ogty epee el F ewert SobtD yedd ted besetvecyenit . toote 
atid: eneroney ot, tobto mt deetetet to sternigic s yaq é? abibow 
hoemmtetitud: . pdsehtogqe dal soquetehs adverse Oree) dads! ; eres 
SOR eecboto™ betoveds datt betete’ hos seep wer @ io mals ot 
toad eolleocds: te geatv .YR te pomot: worsted blood yetid! erveaw 
def aie sor HO: rod cot tnotiqaeebem AImeLs ogqD Hoqueteds! duns 
aogattleqdqa atuddew vel to ted tneté¢eroqvos B18 fo Hoots ons to 
watinor:tiatat ash gunadh Sipe ot aldnyng adorns! beng te: <sorkd 

gs botent tered bise te: vodtiens: ots abgesvadd tele) pOOOgsROMD? 


atnei Terre: sath dotdw: .08%, M etretqaliag¢e ot eftayng! ter 


enos, tedtopedgelo bam nosqate .hecrsiot! bevertleb Sab bearobse 


ddim, otedo000,a* Sina bisy eteehl eggs, sed teedode ayebrevty 


A ata RCN an A at Re “a $aetesinty bowtops ante 
onettimedieotatd taft bodttteed redgauY adealiog¢ arin tinagh 
BONO bter, stistgote gud od) mont “hoster lee tiage ied ¥ 6 
tedd ted pos ob ot dtmdonled enéw! teatt denyeds teds\be 











said agents represented to them that thev were cettine the 
full amount in preferred stock at par valve, and in addition, 
they were vetting a bonus of an equal amount, par value, of 
the common stock of said Gorporation: that beth the preferred 
and the Common stock would yield them dividands at the rata 

of 8% per annum; that they thereupon agreed to purchase %%,900 
par value of stock; that they went to annelles bank and ex- 
ecuted a note to said bank for $3,999: thet a draft was isaued 
by said bank for said amount less 23% discount, or for %7,an2.80: 
that they endorsed said draft and delivered the aame to said 
agents; that thereafter they paid 409 on the rrincipal of aaid 
note, reducing the same to *2,500; that said note was renewed 
from time to time, and that the note for 7,800 sued on in this 
case is the last of said renewals. 

They further testified that thereafter said agents 
again solicited them to purchase stock, ard that they siened 
an application or contract for 82,009 par value of said steck: 
that this application was given by them at their home, and that 
a note was filled out on one of annellee’s blante for %2,000, 
payable to appellee; that the stock was delivered to anresliants 
and the note was delivered to Keppel, Simnann and Bachy: that 
said note was taken by said agerts to apnellee hank, and that 
said bank issued a draft for $1,950, payable to Keppel, Simpson 
and Bagby, therefor- 

The record discloses that apnellee bank had nothing 
whatever to do with the sale of said atock to anpnellanta- The 
evidence in the record also whollv fails to show that apnsllea 
bank or ite officers had any Knowledge whatever as to the char- 
acter of business being transacted by “ennel, Vimracn and Bag- 
by. Henry Eimers testified: “He (Dacklesa, cashier of appellee 
bank) asked me whether I knew them fellows and T told him I 
knew Keppel." Said witness was then asked the following quea- 


tions, and made the answers following the same: 





caftoanttten erow vedt tadd mont ood  hotrereimeg esduroge bine 
~oortibbs mfebre >. oufev vequte Hoote bherreterq ei davonta Lied 


Foi ae hae ores c bateome fevroo af Aoveusodoacantiten exew yours 


Berrotexq att dind fads. soattetcor a bisa: to:toote Sammon veds, 
atatoonf te -apsebivil medt-obl rig bi vow i woete KoMMTOo eft bra 


000, 7% eeadomry ot beotna aoqusr eds) veds Fads» poe T8T R880, 


hee. 


-¥o bow wad cnet Cantey & of toew‘veds tady 7 #90%e Io: evisy tag 
hovest sew ters eters’ 7000, By 29 Inet bise et eton # betyos 
04,898, Tt Tot to ,socooR th PES evel tovoms Stee 169 doadbtea yd 
sob t ae di Suis efit bevaet heb: boa tisswh bisa: bestobas yeds tait 
biae 90 fagtogits edt me OOM bisa yond testwoneds dads padcons 
baewerey 8? ocer Stee, tetp POOR, DR od onze edd gatoubet peso 
efit nbicro, bese 008% Rn? «ot efonveds tems pos emid 6d embas mors? 
Fd wes Puan tvnk do ade cB RaR Yo Jack snd \etsesmo 


1 (etae_e bineonddtoevods -dedt beLtiteed reds ged hin \ eine 


ferme Be opadtd ft ett ‘Bee etoote  evredtotudg oi caierasisesahidonl uuu 
ivoogs StAR Tp ecules ter Of0,e% vo? Jostéceo to wolseoblage- ne 
sett hye: ected sheds sa wend we govlgcsawr met taollqqsvetdds tags 
(090, 9% sod ploeld aleellecgs % eon oo sue belli? ese etoa:s 
ataptileacne of betevit ah: naw toote ent. dans seefleage of efdavag 
todt ‘nikal Laat weneeke cfeqqded of betevrifeb esaw etoa esd bas 
tet ca law setleaqe ot ptrege bisa yd Setar Baw eto. phew 
sopatTe tnadem of efdavag 089,14 102 Sted @ beveat soad bie 
oP horsey poe ved fy ede OF hows, 

aqidton bed Need .collegqe tets 2enoltelb bidet edn fo ie 
of? atealferaeved Moet s brag tat efse ed diiw ob of veyed ate 
aah lerrm dana oworle od ether eftode sels byooet ott ‘mf eonsbivs, 
eteso edd of en voyedet® og hel good vers: bad er9ottto padi 0 Mad, 
‘ompil por como? pfegaek yd betoserest sae bed eeentaud Ao sehen 
we! ances In settieso ~natvogl) ef". tbertiteed evemtt yaneh one 
RES oe fiod, Fe show eed fer omeds wert T erozeciw reat bose (sad 
“ameuh actvolto? ath beves cedd raw abertiwoBtae o(" Leqee? sanisl 
nwo wilh cea un a came netroltot esowena laminate wht 





cy 
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4 
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of 
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"9, Didn't he ask you what the Concern was doing, 
what kind of business? 

"A. Yes, gir. 

"9. And didn't you tell him they were making auto- 
mobile accessories? 

,. Yes, sir." 

So that, so far as the evidence ia concerned, 411 
the real knowledge that appellees bank had with reference to 
the business of Keppel, Simpson and Bagby, was derived from 
appellants. The record further disclo6ses that appellants 
were relying on their own judgment in reference to the purchase 
of said stock, and not on anything said or any representations 
made to them by the officers of appellee bank- We therefore 
hola the evidence insufficient to support the charge of fraud 
against appellee bank and its officers, and that the eourt 
correctly so found- 

As to the defense cf usury, we are of the opinion 
and hold that as to said note of $1,100 and the original note 
for $2,000, for which said *1,100 note was given as a renewal, 
the plea is not good. The stock for which said 42,000 rote 
was given was purchased at the home of appellants, and said 
note for %2,000 waa given to Keppel, Simpson and Saghy, in pav- 
ment therefor. The fact that said parties may have sold or 
delivered the note to appellee bank for %1,950 would not avail 
appellants: 

As to the note of £3,500, which was a final renewal 
of the original 33,900 note, the record is different. The 
43,900 note was given to appellee bank at its banking house. 
and the officere of said bank, instead of sivine to appellants 
43,900 for said note, only gave them $3,902.50; in other words, 
a discount was made by said bank of 23% on said note. Said 
note, by its terms, was to become due in six months. The inter- 


est agreed to be paid, of 8% per annum, together with said dis- 


*Bqtob easy arene edt tade gow ee of PBB OM soli sda 
| coe oR pR@ngeud Yo. on2s: tedw 

The AOE, pad”. Pout 

~o tye anf tom stow yedt mid [led MOY TBE BOB eS as saps mi ewes 
| Seottorseoos..el tdon 
eae Shy r <TR, OT, nA op phi Ye 
iTe ,bermrsence af eorebive aft es tet .oe etadt AOE ik oh haety 
, oF sore ts tev diiw bed aned, sef loqaa tedt sybel worm Fass ett 
. mot) beviteb aaw ,.vydaaG bas foegmiz. ahead te Been Lege, eds 
esjnslleqas tends ees@losib tediiu? biopet dT. bioel Leqgre 
vee edomuc edt, ot eoceteiet of Icomy bul, awo, thos. £0 ante fan: aad 
anoltasnenerqet vie 10 biae atidivas 90 Jon bra ,doodte,, bise Ao 
M etoteteds oF | - toad seffeqra to, exsoftIo, eid vd gedt, of obee 
ill 30 ke ats remine ‘pe. doototyaucnd ecttap ire, ens, blond 


gape edt torts pee aaepbite atl Soa, Aned eelfegqs Jeniages— 
_.banr03 08; eanene 


| avelon. ant 30, OTS ew eV eu 39. paneted, ed Oe: BA, titade ay 
aston Tamia io. end bie O0L, {2.. to, eiom, Dies. od.e8 (edt, beccnen 
fewones £ e2 certn sew fon 0OL.1% btas dotdw, 799) ,000, 88. m0 
_, sfor 000, 8% bten.dotdw - 10% AS90398 .edT. -Loox, tom .at» selq, eta 
pres .8toel leqge To, aatod end +2 beasdo-wq esv.certz sew 


~var of atgee ora corgmis legged of mevig saw, 000,88 10% eson 


. 70 Bion ‘eved yar poltveq bisa stadt jest SdT,..totetedd trom 
ffeve tom bfuew 080,18 10% tied eelleqqs ot eton oft Lenovileb 
er) Pe a vatoel Leagqe 
fewecey [anit s eaw fotdw .008 aot 49,.e40c end HOE PA Ys rg an tdp aihg 
edt -fretetaib at bros eds . oto G08. EF Lenighro, edt 29 

| eet ar tatinad Bat hal bay ‘Sah Lene of HOVER BBE, ator 000.8% 


wiiat bees ot aotvin” to beosent, oad bisa Jo ASAPH NO (edd hers. 


eabtow yatto mf :0R cde, Bt med4 svea yico .etor bise, FO, R08 ca 


hres ,9tor bise no RES 90 ined Stee yd Fs Lhd aew toneouth @ 
-resat edt ‘ed3caom xia nt eub emtooed od, ew Pures edhe, seton ’ 
“sib 6ta9 d¢tw ted tenot simuogs meg Re 30 beg od. ot beaman tee 





count, made 2 total interest at the rate of 10% per annum, 
which would be usurious under the statute. 
Usury is a defense so lone as anv nart of the debt 


remains unpaid. Harrig v. Bressler, 119 I11. 4A7: Gabe v. 


in discussing the extent to which this rule applies, sass: 
question made as to usury arose under the act of 1857, and it 
was there said: ‘While it is the rule of this court that usur- 
ious interest, once paid voluntarily, cannot be recovered back, 
yet that rule does not apply when the transaction has not been 
settled, and the lender brings his action for the recovery of 
an alleged balance. In such case, the borrower may defend by 
Claiming credit for whatever usurious interest he has paid in 
the transaction. This is not using the usury law as 2 sword, 
but strictly as a shisld.' ..... The doctrine of this latter 
case was approved and restated in Mitchell v. Lyman, 77 Iy1. 
525, where it was said: 'This Court, while deciding that vsur- 
ious interest, voluntarily paid, cannot be recovered back, 
holds, still, that so long &s any part of the debt remains un- 
paid, the debtor may insist upon a deduction of a@11 vevrious 
interest paid, therefrom." 

And in Cobe v- Guyer, supra, the court at page 57% 
says: 

"Usury in one transaction cannot be availed of in 
another. But settlement and agreement upon the amount due and 
the giving of a new note do not preclude the Antone of usury 
existing in the original transaction. So long as anv part of 
the original debt remains unpaid, the debtor may insist upon 
the deduction of the usury, (Payne v-Newcomb, 100 [71. fll: 


ee ee ee 


jenkins v- International gank, 97 id. 568; House v- Davis, FO 


& 


r ‘ ¥ a 


.murige ‘ted yer 10. baare ae ‘de jeorose? {esed eg * ebeur <tovoo 


u Bes Dur Peay Rice ! Ow *' 
-edusete ort Tebow cuetawen a “bite fe voli 
i y BL f 
_fdep ong | 39 sa s7 vos es Bret o8 ennaten | 2 al yowet 
aE Sa ) ae 
av adot 7 Thb trl ore solar OTe .v pisaey | ~Skaqei ent enet 
iti 


a 
,®paaena .aqh =8s scutes “v stodo38 alg esa ree ‘seg erey ue 


he 
$3 


eet nag. +e terr08 eri esque .zel epee v ‘gitret ot 
: Wy wh yee 
i" TaRaR aeitgas. eius ets dokein 02 node edt sabwentarn at 
Rigi rp ike) RAGES MOO ae | Say i 
Ons f8e «ffl TE elghaad “v yolyse 40 enso ent oi” \ 
(REE EB Seaton Bates gut 


of bee SABI te fos bed sebow sents ewe oo es eban not taeup 


ie einpe ease Me tice 8 
tees ted? PID eins 46 are ed al ‘$4 el tdv ?bhtea oveds ‘ae 
hemes vo WO deer Le RR A a, dae aaa 


wtood betevoost ed tounge tiinedoutow bh eq acne . teoretnt evot 
aged. ton ead pottoeanaty “ott pede yigge doer ged syoe 3 Sang “Foy 
Pee Etevooey. ant +04 motsoe eis santas reboot fea ea ye 
vd BaeTeb | 2 el tigen ed OBx9 owe nt _se0nat ad \pegettarn os 


“or bteq ead odd teeratnt etre Puen névetadw “Ye ‘fibate fre 


“Roe. 
Prone B a8 wel yee exis afte er at sil -no# sonenss 


: uf 

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i EU, iets GS MBS Be as al ea 

et fi. vr seed + SIodotny at badatoor bre bevowgqs eBw ‘Bo 


(tH, i ay CE iy Te: ag 
~aee tadt, apthtoo efinte Stu0e ete" bie ese sie eroriw ‘Vasa 


z, ¢ ae PRE ALR 
load. boxsvoost ad fonrse ro i eli teseutov peepee ean 


I Reta pe BRE ets Hs Rha, HOR his vee 
ge, eqtanss tdeb eft 20 s180 Ain es aco! OB oats vifita .8 


ee UE oh ite AGE) Rit Anca Rei 
po ioet ils to nota oubab 8 roger detent Aon tosdeb ot <b aq 


Mo Vere els 
".wowterada brag Saerodnd 
z ok BN! § Tithe ESN “a a CF 99 pelt at eee he Ba By 
aVA eaeg ts fauoo oft ,erque .Teyu) -v edo ai BOA 
ate E Rake er 


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i iF PeMae MEY ui Meret: aa 


mE, To betters: od Sonsn0 sor toenassd eno ai ‘eapet” 
Me alan {BBS 6. Bie he Ge 4 he 


bers at iatons ett goqu inomeoras na demel ten dua St sve 
UDR: Pec SOMME Brees ty MS A 
“wtung to ‘grootet. etd ae sgltst vy $00 ob sion wed 0 ouiela? "See 


9 8 OR de 
~to diag wns os, aot rat snot tonanens facta ho "ede yt aot atxe 
Ea aE NE ae ote A) Bg 3 


esegu tetant. yom sosdfob ont abteqaw. ‘hekines $d ok Ieatginxo eats 


Re a Ae MBN Sy Be Reg 4 
Fey eae. Siliry 1.0 5 00f. «groorer. fl one Bd) . vives eft to nob: abe ene 
| alte ot 0 RMI ttn By a uae 


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aa i 


. 
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n° 


BY, 
S, 


| 





id. 3@7;) and only the balance of the arineimat remaining 
after the application on tne principal of all vaymenta, wheth- 
er of principal or interest, can be recovered. (Harris v- 
Bressler, 119 111. 4@7.)" 

It is Contended on the part of annellee that the 
eaaeitne lot usury Cannot be raised in this case, far the reason 
that appellants submitted no propositions of law. Thia roint 
is not well taken. ‘The fourth plea raises the issue of veury, 
and as the record clearly discloses that usurious interest was 
p2id on said note of #3,500, being the final renewal of the 
$3,900 note, it is the duty of thia court to an hold, even 


though no propositions of law were subritted. P. CG. G. %. St. 


Le Ry. Go. v- Ghicago Ry- Go-, 200 Ill. 1#2; Cohn v. Armatrong 
Tire & Yulcanizing Co-, 222 App. 572-574, 

The record discloses that %717,82 was paid as inter- 
est on the 83,900 note and the renewals thereof. Apnellants 
would therefore be entitled to a credit for the amount of aaitd 
interest. The judement in this case will be affirmed, provided 


twenty days from the filing of this opinion. Otherwise, the 


judgment will be reveraed and the cauase will ha remanded. 


Hot the pot 


Witenes Leqtontaa pid 20 omelet eds Cag hem tL TOS ome, 
~ftone ,strenyed Tle %o (aatogtad esd oo noiteotiqas edd teste 
“vy giants)  .betovocet od ogo ,seeretat to Legiontaq Yo xe 


a ay yt Ree ei jeanne 

Ott ttt eel feces to tear: eskd a bobaetso® ek ft, aes uh 
rons ett TOF .~SES9. a hnt att eee. ae torn KS Lace to soiseoup 
to tor BLOF met Je pro ftinosowy. og besdtmdve, etratlegga tad 
eure Fo sven! nit eenten selg Md1407 ed? .setsd flew sor ek 
paw tnneotnt suotered hast renofonts vitaels Srq0e7 | pat, Be Pasig 
aft Fo Tawemes fart’ oft antead 008.2% 40, .6dom bine fo Bag. 

A “pees ahlodt oe at Savoo ails 2o v corb Std et st soton, 000, BR 
ede 2 22 «2 J. obettindus evew wal to enottieeqotg oc Aaporty, 


a0 poe s ow geind 3 LSPt fT noe & +09 axl gpanide %, 109 intl gl 
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an \: 
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Term No. 34 Agenda No. BA 
BS “ ‘ae 
In The ft fy 


y is Pogue) 
Fourth Dietrict. “OF <9, Ct) 
Poko fs Qa; 
» 
Rinigaegea Wa f 
CSE ke e 
OCTOBER TWRM, A. D. 19264 Me oe 
i“ MA) >, 
oy, ‘3 
FRANCES VOLLUZ, ) 
Appellee, Appeal from the 
“~ve~. City Court of 
MAY E. MOGER, ( Hast St. Louis. 
Appellant. ) 


Ak ta eee 
etre eT ae ie Rigike %& Zt as 
OPINION by BOGGS, J. 


An action in aasumpsit was inetituted by annsllee 
against appellant in the city court of Fast St- Louis to re- 
cover the amount which she had paid on a certain contract for 
the sale to her by appellant of certain real estate. The 
declaration consisted of the common counts, to which was filed 
a plea of the general issue. A trial was had, boaeiiies ina 
verdict and judgment in favor of appellee for the sum of #318. 
To reverse said judement, this appeal is prosecuted: 

It is first contended by anpellant that no recovery 
can be had in this character of case on 4 declaration consist- 
ing of the common Counts. 

We do not deem this point well taken, for the reagon 


that, on appellee's theory of the case, which the jury evident- 


3 ly adopted, she was seeking a recovery of liquidated damages,’ 





Pee gre 





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y gee be eis 
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ren ie Nt ee hee Me a ii A Be Bel agen Re pak ae Se Se Bey ek Sie: 2 oes 


eel feqre yd beotugistect ecawittequveae at. MEL OMrObyoi, psig’ 


~er.od eived «¢2) teak Jo dauoo ytto ett of. tuelleqqs sentage. 


“0% toattaco atatieo & 70 .bheq baci one dobre Bas og edt tEvED 


of? .otatne Teen ntayess Yo tive ecae Ys mast of oes at 
daft? new, nary ot eRtoteco common ead Ie betefagoo ooftataloeb 


eat acttfusee, .bed eaw Tatyd A event Iaseron eft to selg 6 


<Arat to oA and no? eelfeaqs to rove? at sooo but bre tofbrey 


-betvossoig ef feoqae sidd ,dnemphul bier eetevet of 
vievooey oo tats inatfeqcea yd bebretnoe test? el dT 


-tateoos coltaraloeh 2 oo oreo to tedoetatD atd? ot bed ed a9 


-asneo sommoo edt to aot 
nore set sft to? Renbih ifaw toled etdd meeb ton ob oF ta 
ey ga vrut edt dofcw .er8o et “to. yrosd?. steolfengs: 50. tats 


* 0 on om eb besebiynpr{£ 2 vrewrooe7 & noLxeoe eer erie _betaobs wt 


\ 


ot inamits Uait Rabat incts. Slob le ae nome ure leh aide 


That being true, a recovery could be had under the common 
counts. Concord Apartment House Co- v- O'Brien, 228 111. 

It is ala9 contended by counsel for appellant that 
the verdict of the jury is against the manifest weight of the 
evidence. 

It is conceded that appellant, through her husband, 
H. J. McGee, sold appellee certain real estate for the agreed 
price of $4,975: that appelles made a cash payment on said 
contract of $2700, and that the contract provided that she 
should pay *75 per month thereafter; that she paid the Pirat 
#75, but afterward, by agreement between appellee and appel- 
lant, acting through her husband. H. J. McGee, payments of 
$50 wers made by appelles and were accented by arpellant on 
said contract. The testimony on the part of annellant is to 
the effect that appellee paid #25 on said contract. Appellee 
testified that she made two payments of “RO each for which she 
did not get a receipt. 

Appe llee's testimony with reference to the alleged 
agreement between herself and appellant, made through appel- 
lant's husband, H. J. McGee, is aa follows: 

“On the 18th of August (1925) I was sick in bed and 
4p. HeGee came to my house, and ty little girl went to the 
door; heasked where I was and she eaid, ‘Mother is sick in bed.’ 
He said, ‘Fannie'--he never called me Urs. Volluz: he alwavs 
called me Pannie--he said, ‘Fannie, von can't “een the payments 
up on this house; I Have got this house sold, and when T sell 
this house I will make an agreement to pay you back what vou 
will have on the house here as soon as those other people eet 
in the house-’ T[ said, ‘All right, IT will get ovt as soon aa 
I will be up-' Tf was in bed from the 18th of August to the 
12th of September and he kept coming from day to dav; he sold 


the house to some people by the mame of Strecker; they moved 





somaroo eds vebow bed ed Biuoo yregeoes 2 ,ound noted Jed? 


-fIT 682 .rettG'O .v +00 sBiion joondreqA Stoonoy BI0800 


oe 


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“datt trefleaqs wm feamroo yd pebae tae9 oafe at a aren 


est %o trinfeow seaotinam orft tertens ef yu etfs to toibrey edd 
Bae ae Ro ee | seortsbive 
bosdeud ner Ae vond t dost Teqqe tacts behesroe et 27 ! 
beotae’ ant wot states [nen nl agus selleqae blog ,oetol . .# 
aad 80. Frente aso & sbem eplflegqs sand FAVE, MF 3 sotnd 
: ede fend hebivorg soartnos ont sedt bee ,OOER: Yo Foatsoo 
test? edd bisq ene Jats trediseteds inom req V8 vee bi yore 
-feqge bs eeffeqar neewred toemeoty s vd ,brewre tts tut eN8 
ite pi teny ag alan! Dow .& .B .beedent sel facout goitos <toal 

ao toatl leqas vo hetasooa ener prs pellecqa yd eben ere oat 
of ef tasllecqr Yo txaq edt co yoortjeed en? .goevdnco bine 


eet eyan., .t9pttioo bier ng eat blag eelleqgs. tect Toette. eds 


arte fotde io? doas oa? ‘Jo esoomy sc Ove, eben, ate dads beittives ; 


Mati -dgteset & Sey tom bib 
benal ls ent # od porete tet eee yooutseedt &' pel laqca 

sTeats’ Hatrort? eben .toetTleqqs bow teeter deewsed ieemeeig.s 
“rewolfo® ea el ,ocdom 1) Hy boedeun “at iar 

“boe bed af tote sew T (2901) teteuAd S0 Atel edd BOY” meg 

edt of show [779° orsatt vir bye .eebod ya of emeo Sebiou’, Gk : 
"bes of Hote et Fedsou' . bites ents bas baw Tt “ered w doitaeeit” bagi 
avaxts of fsurlay Vetw Sm bof feb” keven ed" ermmag!” bib 8 


be wee ww ene: Ten nites i) eh ast ei! ele ed fan eil ois aan Ste Tih | Ray (Bes Reiter hie : 
eiremvac elt qeev Steed voy ,etnoat’ . hae od--etraet en belies 


[fee T oetw tis sbtoe eebor sind on” evel! T ;bellod Bids Ho an 
“'GOe' Facte sons vow yar oF Sretesige He stan [ftw 1 esvod eths 
“fea efqoeg xatito erons ef none ae Shed adabh” edd hsboikn tttw 
ee oor 88 tuo sen Aliw I .tinia rent’ bise bs 3 rive - eau i edd ct 
“eds oF tecgeA 96. ater ett} inde ped "a din "Me ed Iftw I 


bro’ ed fveb os! wah" “moet poten oroxt on ‘pia’ 4oledqoB° 0° aes 


© bevog weed frevoese to “omact ons va ae oF sia kas . 





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into the house the Saturday after I got out: Tf called Wre- 
icgee during that time and she said, ‘I want you to zet out 
of the houses, and fr. McGee will séttle it with vou.' IT left 
with that understandine.” 

On cross examination annelles teatifisd, arone other 
things: 

"He said, ‘Fannie, cf don't think vou can keep up 
your payments. [ have this house sold and IT want you to ret 
out. When I sell this house I will refund some of vour money 
back to you." I said, ‘All right, ir. McGee, I will set out.' 
He said he would refund some of it back. I didn't exnect him 
to refund all my money. I expected to pay rent." 

Grace Volluz, the daughter cf appellant, among other 
things, testified: : 

"I heard a conversation between my mother and Mr- 
icGee with reference to her leaving that house- Mr. McGae 
said he wanted us to get out; that he had already sold the 
house- [I don't remember anvthing else." 

On the other hand, H. J. “eGee denied having made any 
agreement to refund to appellee the whole or anv part of the 
funds which she had paid on said contract, but stated that he 
put appellee out of poesession of said premises by process of 
law. Appellant testified that she never said to apnelles that 
hsr husband would settle with her ‘appellee). 

The evidence was therefore conflicting as to whether 
or Not appellant promised to pay apeéllee the whole or a part 
of the funds which she had paid on the purchase price of said 
premises. The record discloses that the verdict is for only 
$315, and according to appellant's testimony, annellee had mid 
in $625, and according to appellee's teatimony she had paid in 
about $725. It therefore clearly appears that the jury were 
intending to credit appellant with either the rental value of 


said premises or interest on the purchase price for the period 


-otif betfeo I ‘tuo fon Tt tefIe yebawsse ex3 Seuod ond odnd 
duo jen of vov danw T' . bres ode boe en? Jadd amtwb eepoll 
sof T tuner Aétw $F ofdtee [fiw eadov saw foe (esued end 40 
: | : '* lsotbostevepas sent ofttw 

goto anora ,bettttees setfeqge no ttectmexe BRotd nO ) 
“bbaatad 

ay eat mel wove wMnetat ttaab 1 ‘etoaak’ . Biss el" 

“$on of wow teem T bes bloe eruot efit eyed T -e dreamy 8 “LOY 
venom  uor To amon pbautes Iftw q ‘eeuod elds ‘Sfee > ned ‘Ldu0 
* duo “fan Tt tw .9oroK yt tdais foe weer J 1 goy ot ‘oad 
mbt soonks F6b2b t “Satbed $2 96° Gmoe bauted brnow ont bias ot 


* $064 vaq oF besoeqxe 1 .yermom yor Ifa bios os 


the ey 
vi 


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spettisees } saaolits 


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oh pos senttom vo veerted ‘noftapsevaoo re ‘pared & hah 
| gehaw ink’ -apued Jedd antveal ted ot eoseteiet Adiw eeboli 
od} Blow yheowls bai ef dadt :3uo ges oF ey bednew ed bigs 
".eefo umtdévos sodmemet t'G0b I “eeuor 

yoke oben uotved bhetmeb setow it .R Cbakd’ tendo end a0 
ong 40 frag vse ve alodw oat Getlouce ad beuter ob jromee tgs 
‘et fed? bodain ted .Soetisod bise oo brag bat ofa dotdw sbuyt 
ay” skeaord vd noptwend bles Yo NoleReesog to Jue Self cage tug 


tent seaffeace of bse event ode Jed+ beltisres ‘guelleqgé wal 


iia! 


‘.feelfecqe) ted néiw eltjiee bluow poedeuti ert 
sattodw ood es “RetdorlInoe exoteradd eew eonebtve edt "4 
‘4n@ # to efodw oft sellégae yaq of beeinowg tnelleqqe Jon 10 

bree to Soiae bent ntin OHS co bia batt otte dolce sbaut ed¢ F 

vitro tod af totbray att tacit Recoforib brooey edt “ leonimong 

bia bad eaitadgn .yoomi sees e* tosl lege 0) ‘natBroods baa Bret 
of? brad bat ele vromtteos a‘ eetfoqua 03 aaitbroooe baa 20nd sk 

exon Grim, SAe dads nrReac® yitsolo ero ?sterds $1 eave suode 

ho sufav Tatuet ott aaddte. Hate suetieqae dtbero. ot ‘g0tbnesot 
bot taq. ett ee! Salag’ pe ea ‘edd “10 + aStcha: ak apeuneve Meee 





during which appellse had possession of the same, the testimony 
being to the effect that she went into nosseasion of said nrem- 
ises on September 19th, 1924, and that she moved out of the 
saine On September 19th, 1926. 

Unless we can say that the verdict of the jurv was 
against the manifest weight of the evidence, we would not be 
justified in reversing the judement on that rround. Snoderass 
v- City of Chicago, 152 Tll. 800-R05; Rlynn v- Chicage City Ry. 
Go-, 158 App. 405-407; Tennicot v- Donk Bros-, 158 App. *49. 

Counsel for appellant also contenda that, if it be 
conceded that appellant, throuwh her said husband, offered to 
refund the toney paid by appellee, there was no consideration 
for such offer or promise, for the reason that annslise was 
being dispossessed through forcible entry and detainer pro- 
ceedings. Tn order to substantiate that claim, apnellant ‘mist 
have made proof by competent, record evidence that she had a 
valid and subsisting judgment for possession againat appellee, 
and that she was dispossesssd by virtue thereof. No such 
proof was made. 

No instructions were given on the part of apnellee- 
There is no serious Complaint made bv counsel for annellant aa 
to the rulings of the court on the evidence. The verdict, on 
any theory of the cass, is not excessive. 

Por the reasons above set forth, the judgement of the 


trial court will be affirmed. 


J ment affirmed. 





yoomttent eft ,omen oft to stoleeensoq bead eslleqqs Aobetw sotsuh 


-mevt btas 4o Hotaassaod ota! Jean ete Pod¢ soe%te orld ot goied od 


b 


ad? Yo seo haven ede stedt ine ,Seot idtor redsiedger no wks? 


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ese yiut end 9O Jothrev edt tadt yan ed ew deakan oo) See" 
“nd ton Brucw ew ,eorebive odd 40 ‘deg tow feettvem ons Jantens 
Bremn bore -brvoye Jatt go tocmahut eds arteteves mi bertitest 


suf pftO omenitd - nevr? :e0n-doa rit eer on seIED Ao BtED +¥ 
ORF Vee Bar 1 pon xipod” -v dostaner ; -TOBR-80B ° -gcA eat’ 609 


wee 


‘St 4+ 9? tend Bhosthoo onfe sonfleqds “ot freemen ”  ** 


ot Revet8o sania Hien tod Hoon st | Mite Meena: ng "hobeane 
ee asifecas tat} veraer of? 689 .sefmoty ee oa : aes 
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eR 216 
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fs bes sie tet sovebive Looby siadegmos yd oor eban vad 
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oR I ROU ASE ce A fe ag | Fe obit caw Wud 


vast Teara Ao do8q odd So Mavtn ovew Brolséevted? dit 


ag tik! Tacdh wo® Tebmido ys Shaw JovAtenoe edbtase om BY eeeae 
16 . fr brsy edt  laomentve’ eff ne Sinoo Sis to debstiy ‘edt od” 
Tel AS He "lew tageoxe Jot ‘eh (eeno esi 40: vxobHY’ yale! 
ett Ao Foombut edd HYtOe tee bvods’ abbemey wastage Onc + MAE 
Te) ie 4 soe tay! * 


By R SRA AT Me Kesha tog Gur Re IC 3 BB e 










» Raney 





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OE RAT tae Rn Me Te nat MMMM Pea tr eae ec ote SRM AG oe A KY What an UO Moy Pee eM ES 7 «he oe ! 


ere fos aghpirstare POF avid ay tty i 9a Ss Pe bh de i Dies ah bt le sft at 
eee ne aera RRA A Ree RL an O88 nucta 


Py ML Cm Mme ids WR ce af Cena b Say oe artiasyit 


- 


Hiiee hog eae’ pack Lyall opie ie” ah gaint rere wiht ies hn ope het Patty nponienh: “stg Re aK 





PEER Nae Oe Me 


PY Ae 


PO ee ap eee Re 
Se het ee eee ee ee 








In The 
APPELLATE COURT OF ILLINOIS, 


Fourth District- Pees 
fa fii Reso 
---enn i) i “yf pu Py 
Ne 


OCTOBER TERM, A. D. 1928 Feo ae 


sae we 





ROBERT L. PATTON, ) 
Appellant, Appeal from ithe 
-Voe- Lawrence Gount? 
SAVILLA SHIPMAN, f Circuit Court 
Appsllee*  ) 


—— eS oe d Th. . | fa SP 
OZ se eo 6 O)) yo ji 
OPINION bv BOGGS, J. 


On March 2nd, 1920, apneliant caused jivdement br con- 
fession to be entered against appellee in vacation after the 
Webrany term of the circuit Court of Lawrence county, on two 
promissory notes, one of said notes being dated June 70th, 
1919, for *5,873.18, due in eix months, the other of said 
notes being for 32,82%.21, dated June 1Aath, 1919, due in aix 
months, both of said notes being signed be anrellee and ravable 
to the Bridgeport State Bank. 

On Warch 290th, 1920, on motion of annellee, leave waa 
given to him to plead in each of said causes, the judementea to 


stand as a lien. ‘hereafter, at the Wag term, 1°28, of eaid 


Nhe ihe said lek Ste were Consolidated. To the declarations in 





atid causes aa eeledatidatod, appellee filed a plea of non as- 


 gumpeit and six special pleas, by aad special pleas ‘were 


A. a 4 
| i, 








e Mae 1 
sae vik Deere: MOP ser yates som 
‘é if t “ i K * 4 
; 1 aN ll i 
iy SON ka REA AS Ae yagi i 
Pay i Bae q 
ban ah ees We HAR eG ‘ t aL aT 4 i afi Be mS ccs DA oH hey { ‘ 
° td ‘ eh DM CM OB oh ORAS vid ®@ ieee ; 
$8 JA! pbrema a aa eel ear one 
| - Cie, | aye ry a MR On dM | } . 
ua a. 5 
a ‘ oni are Hay aah ¥ Politiek ee Whe > gong & Bar wh 
i c = “ ee a ae pete 6 





eat OUTAIT 80 TALOO STA aT TS 
“Jotatahd diauod 


ings 3 a ‘ a A mY ety yi ith hes OIE ap 
: =a at ™ eee aided elvis Paicorvn ch / 
eal ® 3 J nts t en oes, | San ae Ch sy) Ay 
a peer Ql of, ugar AREOTOO, beh a 


oe hat 


rte ey ‘he ee? vivre Pei d Feet LYE Rath e 
. at Lanite ( Lethe + NEN ic RRR a Re nM Re Sh tte Fs 
o. aia 


) (wertag a sito 


roe soar teqna 


Cate 


Peet £ es ms a ee f Ehire Bee 
add ron area 


het ae “ay | 
MH a aren Sama tt A) heh eae. Habe a 

wet 233808 

v ela range * ban 


A hpi Baie! pte er oF peri ed ted eee une ane 


\ staat ES! : RO MN es PSE et 
ih ‘ A iS nee me Py ates eo ee ie a 


od uaa ae <PeDo8 yd HOTAISO 


1 ec eents Ve a ahh id eis 


i 
} 

in PRP EEE poe ee i my apie 
no PHOS tivoniD - 





Cdeub eae aa ew 
7" eis i wee 
aie ye ud ‘ati Ore te ober bie “pote #0 | 
att nai Fe aot: hace ae sat roc SHebit dnl eve te % pe bles ‘es 
ash ao Le Hii gonbtwed 0 frlioo pivots Ee ey 
aor eat betab antat watoe bree Yo eno eae qtobetwore 
wT Dae Mo Yetta. ent Congenm x Fa) “oW sue! er a6 .a? 107 id 
Ke OF OUk WV OCPE . Reet emcy: | beyek fo. See sil 0% gered “aed 


eld sors, brie ealfaras vd AMM ented, sete bie te. sitod & 






dye! 


a abe ue hy ' cor it rom9 
A fy, Roa me \ oy és e a." 4 , ‘ ‘Ne 


aay evel .oo! Toqma 79 pore t na ‘vor nonak HO 





nd ntoessbut edt eh BRUBO hler 4o fone Of beefa co ‘etal ot wovis, 
btaa %o ,aRcT cmtect v BM ond ds ere*Reerent sagt ‘f ae brace 


payee Past saa 


a yesh 


“ps for Io nelq # hells pels bane Betrbttonneo as nesueo 


hh anotgayefosh ons of . pedeb! Lopnes emer persieo, bise sooo 





vs i RS ate 
error naela Siete! a ha tole n sivadiek ate a Siam 





We ey thy ae 








afterward withdrawn, and a stipulation was entered into to 

the effect that any defense nroner under anv special pleas 
Iignt be offered under the plea of the seneral issue. A trial 
was had, resulting in 1 verdict and judement in favor of annel- 
lee. To reverse gaid judsrent, this appeal is prosecuted. 

It is first contended by aprellant that the court 
erred in refusing his motion made at the close of all the avi- 
dence, to direct a verdict in his fPavor- As there ia no sere 
ious conflict on the material facts in Controversey, said mo- 
tion raisss @ question of law, on the determination of which 
depends the right of recovery in this case. 

In October, 1918, aprellee owed the Brideenort State 
Bank approximately °12,000, repressnted by two notes, of which 
the notes here in controversy were final renewals and balances 
on certain other notes owing said bank. The record tends to 
show that at this time appellee was in straitened circunatan- 
ces financially, and that he conterplated taking the benefit 
of the bankruptcy law. T. #%. Mooney, the then cashier of said 
bank, proposed to appellee that if he would paw 10% on hie Ing 
debtedness, that he would release him Prom all Sis liabilities 
to said bank. Apnellee acquiesced therein, and delivered to 
Mooney his personal check for $1,200, which anid check waa paid 
in due course. Thersupon dooney executed and delivered te ap- 
péellee the following receipt; 

"Bridgeport, Illinois, Oct. 9, 1918. 

"RECKHTVED OF Savilla Shiptan #1200.90 

Twelve Hundred * no/100 ---- Dollars: 
In full aéttlement and discharse of a1 liabil- 
ities of myself individually to the 5ridgena-t tate 

Bank. Notes to be taken up as soon as ultimately 

paid. ) 
"T. M. Moonsy, 


Cashier Brideeport State Bank." 








ef ofsf bevetcse PAW nod detuet te, 8 fog, ganar dy browred te 
paola (af mee TOR TOL. went ec detab ye dacs toate att 


fered A .+ournrt feneren edt %o neta od yebow sath oe ‘ed tate 





-feare 9D ‘move’ itt Seeambvh boe tobbrey © of ao tdtaec es ae 


- betwooreng af [reqgn ettt..éremn but Boe sereven oT .e@ef 


 tauoo ett tant Jogsileqas: vt, beheesneo ; Semthe et BL). 
~Ive sit Ile to pzoto eft. ts ebem coisoavatd git tenten ti boris 
Tom Or ab sierts oh oToOvs? eld ot do tprev # Foerib od 189060 
sow thee tarerpr tone: at atost Latgotarn. nid 00 tol tne auot 
Aotcw 36 npr dentaradob ant an. ~Rel to sotseeup 8 eeetay Hold 


sooao aldde oi, yrevooe: To pis tik end. eboeoeb 
en ard ie 1 ; 


e 


erate rramenbine. ot bere seri aras Sher | waederoo ot 
Rel iA; 
fo taw 90 «Beton. meet yd beoree sng a O00, sf? “ted suixorage xe 












wanrah ad. 0 g.0 Lemar g's Tech? over: yevevottnes mt eel, aston ent 


ot, sbrot.brooes ent ....%*ned bree ohiwe codon route a Lad%@9 no. 


ie, re 






A 


Patter tints 4 


aerowed ead env? shad betetquesnce ot ted bos: hfetonsett s00 
| Shae Bo wAitend opt ond .eaneow. .N.T wal vodqinad: entd to 


“eet atc oo ROL vag bivow of 92 tant. soltoqaa. od. beaoqong pel 
mob stticeny ett [fe mon? sid epesfer bitlow od dacs tani | 
ot ‘pesevi Tab ban cml onodd ‘Peceetipoe eof feagh ined Bares: 


ig ey 





ptaq sew Yoerfo bier dotdw 4608, £8 103 Hoedo. en Pe re 
gs ot boner ite® bas Betdoore ‘qaaset soquetent | nae ssh ag 
yc Wiebe a aad waa OLAS ae tial siitwor tel ott ‘satfog 
aren, AY “) ¥00 3 vetoaht it droment tat” Fe a 


Mp) Yaa 


mito Dordt Lanta LE Paw, gol Loans emis elds te sect wore 


sig thee ak wade Be iy ABA 


ag “od ngage” ; meg | py ae . ‘Sema taa pene a0 Seaiawet? see f : ut 
-arallod ---- OOf\or & ‘Bevbak: He a 


“Lefdatt fe A6 smradoeth bes “fedmotdtee fled ale iat | 


ofete dogen bead ‘ens. ‘os vi tadérvinal ‘Gtéeve do 6 PIG san yas ati 


riademts fa, Ey) oor Ps ay ‘peed od rt ge aedor ki a gH Adem 6) 


hi! 


a Ob as Haid tt An Ri 8 a aE Te Ot hanna iy ate not Bee on vibe i 


Pr ad INA i 9 ae el) aaa pi ia 


Sind att sisenntin idea” uh sbare Kn ae eine 





a OK i oe ph br (Sa Red hs anaes ee x 








a 


” 


we %. Arnold, attorney for anpelles and a witnesce 

in His behalf, teatified that at the time of said transaction, 
Mooney said to appellea that "he Pelt A moral abligation toa 

not let the bank lose any money ne anv obligations ernavine out 
of this, and he asked Mr- Shipman to let him hold those notes 
there in the bank and he aaid he would take them up personally, 
and at Mr. Shipman’s direction I finellv turned the notes back 
to Mr. Mooney." 

On December 2Fth, 1918, at Moonev's request, apnel- 
lee reneved said notes, the accrued interest being added to 
the principal. At that time a receipt was cxecuted by Menoney 
to appellee, reciting the giving of said last mertioned notea, 
and containing among other things this recital: "That there 
is no personal liability of said Sevilla Shinran for payment 
of said notes, ..... that the cate are renewed so that they 
my be carried along by said bank to enable the undersaiecnad 
to pay and satisfy the same.” 

Said notes were again renewed bv annellee, one nate 
being dated June lath, 1919, Por $3,323.21, ana tha second 
dated June 20th, 1919, for %5,372.18, both due six months 
after their respective dates; the last mentioned notea heing 
the notes on which judgments were confeasad herein: 

In September, 1919, the state auditor's office re- 
quired the directors of gaid bank to take up certain notes of 
s&id bank, aggregating $137,153.52, claimed by anid office to 
be worthless, among which were the two notes here in contro- 
versy. Thereupon, in Sentember, 1919, certain of said directore 
took up said notes and executed their own notes to the bank for 
a like amount in paymant therefor. Thereafter, at a reeular 
mesting of said directors and prior to the maturity of aatd 
notes, it was ordered that said notes, with others, ba by the 
cashier éndorsed to 4obert 1. Patton, plaintiff in thie case, 


who was to hold the same as trustee Por the directors so taking 


} * LAN 
shoottw a ber Sel feqqe +o Yertosds  bTomrA Je Li POE 
no ttaentat? Bike SA sivFY sdk Ge Seo bebattces Wat ated’ ete et 
ot mopteg? ldo) Teron eo Ffat of" Fatt eolfeqqe,ot bias yeneoM 9.) 


“Sto antwate Sroktankt do vos yd vornom Vos esol Saed oft BOL BOM 4.19 





sednd exons Hlot wit Fat od gamqlde .4M Botea’ on fhe Qetdy’ So ee 
evifeedesvog ou moth exat bikew et ing od ie Ared ond ak erred) 
Yosd Rotem odd bsrt0t bl fentY 1 sol tost) b eR olen ide idk ge" bak 
a | OS yenoom er ean 
-Terds «tenieey a vernoom da OL eL  aoes rodmeded BO its At: OP as me 
Ot debbe anted deevretit Harries edt beter: biwe bemenorr eel 
vyetool vd betupexs nhw jo Feber: ge emis dade, oa” -Legtontag” edd 
(aston betoticver tant bien %o achvin end aotti den (oelleque ad 
etter, gael |: Pagtbe7, GAY BxarA: donde goths! gottevbe BM 
OY Feary Ag 7167 rremmer tte sfitvet hiss to yetlidsi lt Leteeteqi ian at fly ay 
“matt tert oe beveror ove ore eft tadd’ rere eRe 2OR bi ee PMs: fin 
cali bagel oft efdede ot toad Pree ye noola’ betauso: ed am 
. HER | oe enat: oot ete tose bre kag’ od 


fib: yy, Diab Sek 


wile: tant as: “ f 
“ brocee, att ‘bee (Te. "S65 not POL (tet! emul beta, aioe, 
“| pdtiom Ste ov Htod (BI. NAN vet LOLeL, attOg oul Dede. a 


ented peton. ano Ppt! Feet. oft 4 Teothy sy ftoageen thedd seste 








eto eno <aetionge 9d’ baweret Of sys stew peden ‘bred i 


“ntecod Reese ties prow ‘etrvens bug) dotntw ng! soso edtd 
"Sen. aot Fo esos tben’ pdade, oft PLOT, <redine tg 2 an bowie Abi ae 


%0 epjon miattes qu exat of shad Brwe Ao prod ootth. ‘otit. Bertie 
ot sotto bine vd homtate REVEAL Vere, go isaperwae «Aad. bhee 





-nvtnod at eaten eestor ows etd ele Hoine Rr octet’ eaeldsron ed Wa ; 





atotoetib bran ‘to ntsfres Veet .wédvesqer irs (Hogvorer?. AN EMOY Litas 


16? whed sit of codon ero yfend bojuoems bre geodon bree qu Hood. 





“wattmes Rota .settaoved? “ano tered s Io eo yee ok toveme oxt By 
“bine an edtaotex oot Ot gored. tne brotet te bree to. gotten 
etd vd ad yevedto othe .peton Bhan dads bere bn ew th 120s00 
compro pint ot Ithintaly (cotset Ri) ‘daedo% od beenokne retriewo He 
nota ‘on “erotoeytb | ‘edd 0% eedouyd ef eres add bfort ot pew conf ‘ ‘ Wea 








the same up. The record wnoily fails to disclose that the 





















4 board of directors, as a board or as individuals, had eny 

J notice whatever of the parported compromise of the indebtedness 
D owing by appellee to seid bank, until January 1920. 

| It is insisted on the pert of counsel for appellee 


that 7, Me Mooney as cashier of the bank, and as executive 


‘ ledge on the part of the board of directors. 

| Without going into a detailed discussion cf this 

J question, we are inclined to the opinion that a cashier of a 
bank should not bo held to have authority, without the direction, 
_ Imonleage or acquiescence of the board of directors, to make conm- 
| o_o of this character, which if repeated three or four times 
Sheena deplete the capital stocks. 3 2eCele 448-449. It is not 
- eolang however, for us to base our decision on that proposi- 
% tion alone. The record discloses that appellee, after the 

q alleged compromise agreement was entered into, permitted the two 
q notes to remain with said bank as a part of its assets. On 
maturity of said notes, appellee twice renewed the same, and in 
each instance increased the amount of said respective notes by 
the amount of the then accrued interest. ‘These notes were in 

q the bank as a part of its assets, gud appellee had knowledge that 
1 this was true, as disclosed by the second receipt which he took 

; _-tron the cashier, which contains this recital; "fhe notes herein 


Bridgeport State Bank and not negotiated or transferred." 
Even though it be conceded that the cashier of said 





Ee ae ee 


Ses oie 





eee a 


Te 








edd tad? seolosth of @f1ae yktonw Bub dor oft hae onion ad 
“Spee fad satanbivibat ae xo Pred e es photeerth ‘to ‘brsod 
‘gpenboddebul oft Ie esaimoveamos Sedrorrng ead to xevedade pe btoe 
: sO8ek yranmet’ Ilda jYood Bhar ot cnr baa! 
eelieqqd tot Seensoo te treq edt ‘no hod dent! at cit a 
eviisoexe aa fae ,ined odd to neideso es ‘casioost ‘at oY test 
«i biee selmotquces ot box txontra Tits? sew loexedt ten Pie 
“wwokt [na tvods Ie Bae yt trodibe “seetixe tow Sicatiw enone ties 
. <sdottn 30 Baa oat to ce Wt ah 
‘gidt to Gofgemoet® beltatel @ ofrt ‘pantoys today | tiny 
ea toldess @ tedt notatxo ett of bonifoat one’ oe! ileal 
mo tiserth edd Suede Le ,Utivodina evad of Sled od” for ‘b Larocta dmed 
-coe elem of ,arodsorts to Draod ont to oemecneiupém to ep be wont 
aenit ‘toot xo ‘esmutt botesqet at doliw predovetade aint to sea Inorg 
dom ak #1 wOBbGD4 ol.0.k & Hoods Leddaaa ‘ont’ atelgeb bioow 


— dad mo mot etses ‘Yoo edad OF an ‘Ot agnawe {Tinsecoes 


‘gts codta ,colloqce tad? peaoloats brooet od * Snio Lat mobs 

owd ed baddinrog yotak Borefae saw Snonoorgs oe imo-rymOD Bbegelis. 
“a6 yatewes eft to daq's ee dined’ Biee Atty atenes 0d aodem 
mt baa ,emed edd Béwenet oo bt sottequa sodoa B2ae ‘to te tantom 
‘yd eadon ovifoogaes Bike to snocme eat Beasoront ‘soraitend sone 
mt otew edtem eded? 4 tuetedsai’ homrooe mest ect to tawome edt 
“toil ‘ey be Twos” batt seLiogas bing atonee att sh orag @ Ba: Pod co 
Soot od MO te dcioeints Sndooe 6Ad yd fecpioats aa jest’ eaw ated 


RRted veton edt"! “YLatloes sida actatone 0 tite (tebe eats most 


ed? qa! Brod ed od ,botnéexe yah ehid! puted 8a 0d Be'rrotor’ sien 
«, borretanert “se botaltogen son iis asp state trogey 
‘Pise to tetdasd sat teat beboowto ed oe dbececordsainet ohh 


Pra j is 4 Wee ; ae. aes Nea pie: ; Wiest OM ft A # , iy ei ae th) ih 









’ rt \} Cay F. frst \ 
ah Bete ME aa UES) ee nee OMB Tia iain Mt ida DR if Ry hi Nik a ie 


ay Lecfiat 52 ee 1% ae Pa Ae th Al el dates 
ER MS REMMI MOM yo Day ar Mua Mee sea iil Ny KAY tod ay. ot ee 





bank had the right to compromise with arpellee as claired by 
him, yet appellee, by reason of having allowed his notes to 
remain With said bank as a part of its a24asets, and having re- 
newed the same on two different occasions, increasing the 
amount of the principal by the accrued interest thereon, is 
not in a position now to clait ths benefit of said compromise 
as against the holder of said notes, who paid full considera- 
tion therefor in ignorance of anv infirmity or defense to said 
notes: é 

It is contended by appellee that the bank tn this 
case Could not have collected the notes in avestion, and that 
therefore appellant as the agsignee of said natea cannot col- 
lect the same. 

At the time the two notes here involved were ex- 
ecuted by appellee and delivered to eaid bant, no receipt or 
other written memorandum was given by said casthisr to anmel- 
lé6. The notes, as the record disclessa, were held aa a nart 
of the assets of said ban”, and there is nothins tending to 
impeach their validity except the testimony of annellee and of 
4%. 9. Arnold, His attorney, and the fact that the aame were 
given in final renewal of the other notes, which apneallee in-= 
sists were compromised. 

The tow be that the maker of a note cannot, by parol 
testimony, vary the terms of the written contract, viz-, the 


provisions of the note. Mosher v- Rogers, 117 111. 44; wur- 


chie v« Peck Bros. & Go-, 160 I1l. 175-177; Usnsley v. Mitchell, 


147 App. 161-182; Bank of United States v- Dunn, ® Pet. 52 


me 


8 


_——— ee = ae ee Ld 


L. Ed. 316. 

In Murchie v- Peck dros. % Co-. supra, the court at 
page 177 in discussing this question saya: 

"The second defense sousht to be set up was an ale 
leged agreement, by which the note was not to be paid according 


to its terms, but its payment was made by such agreement depend- 


lla at taal, iat lil 


yo fLomtalo es poll eee dtiw ealmongmoo o¢ dogia eit bet sAned 
of setod eft berolles gaived to SOSBST yd veeifoqqa aot nie 


= oy an hve re ah FOGTE ads Bie, Steq a8 e8 goed bise diiw hina 


Meer ee Lakiodalh : hhh Laem ah SNL Cale 


ay aie se ‘eno }n acon. “tawmetire owd fo ome. eet, bowers 


ee a ee 


Te 


at cero brn s tocatar ‘beuroo8 mi ae pry edt to tavoms 


iene ts ete oO ny me an am teats San : 


enimeaannd pe 0 “Htened sa Wests. ot wor soidteoq a nt ton 
Fee OM Gm a Agi Wer MOE RE BS ay ere 

~arabtarioo ited 'b! Ra ose “8? jon bie lo neblord eat tool ages BE 
Sige s piy Wh ae } oe : 


bien wea seaoteb | 10 se pel Naty ‘one Aa emeroan! ot ao Verent noid 


nag kas ome aL Rib ae) ie 
oy seh re SS aay Panne, Vcc sy Sa eet tat ORS SR AS ae aa i Bicone wae alte rigs ne ar reas 
‘i -eotod 


bear (ea Sint eg a Y ps a OR a i : 
L 


niet at cor oan lil corte ‘ve Letties.a02 in 


ile 1h AY ya" ve rh a oie a OE a a laa Bo 


tet? For . poitak at iS “ot wea ten acl t bas feat Sey evel ton bigeo e8Hh9 


mers ON ha eee aie hee nek UA a aaa 


-for tomes escton Hien %o fikek: hike uit e& see, etoteteds 


ca A EUG oteh CORS A Reale rs OM: ae CS MR Eig Bat soe a pr ROP eae ¥ 


.omen edd tool 


es bis ia ok eee aa ee RNa a 


“x9 ones in goth er ati nee ow? edd ony ont gA 


S Oe see ehoe the poeta edt ighake lie aR eaten | 


ae daheoor on aed neko of pertev il ab ts oe! logya vd betuos 


WEES aR MANN CO SR ee ge ik Mt pis) Goeth adn ae iii ed pe ys 
steemh of crelfano hiae AS novia 2 AW mubsarouer Noddiww + 





Ser; o be yet? ‘ote cmopofoetb: bye Der pay s& ,eetom aff .eef 


as Vu ee! CE eas ine 
ot a raat offi pe ai ‘ered ne ‘vined bree tc etenna : Cie a 


- ae ky TE UR a ae 
dosequt : 


30 ‘bo8 settaans a5 econ} feed ‘edt ‘Gqpoxe yotol fev ‘itentd d 
yt eae + ae 





eye he 2 tat Ou aN ae aly eer ay ad 


a hake 
erent pty pee sys saat one "bee ventodda i) “elowtt 


acy Ag one Pat Ae t i ane AYRE RR wh Lok AM 


4 wea ia ‘i r Oh Fah i ay, i vee 
“oF galieaen “pho bry ‘hetor ch 8b. eit to. ‘Tawoners ae 2 ie a8 





2 ea te OR MT ae ee ee ke metus By cay ry a 


pee fmorgnoo e1ew B 


. DR ROA oe EY fed Sak Persie sen ane Sag ec Set 


Seder A dor #0 ator & 0 egy age ed tate ei wef 
WR ne saline er Aelbaet Be CUS pe Racine keh cee ea ‘cima 5 
ine cae | Sgrs kis retttaw ett 6 ewe! ens vtav .yeomitesd 
Se ae ee BR cl ; aye Redvaiaia hecer: aaeeR ae? ea: Shea Bie MeN 
~ mye ABS ok <edor evid to acsotat vor 
Rolla he 4a Rete dhe th ms oe, one 
“f ee n iy: he Big Patt epi Hy athe 


—~ 
EN. BGR ed ah aif: RE itay” c eew Ny 
‘ fang? t |! ou vets aia Piper arr ee fr oar oro o +k ie me 
ae Lay mie cai hee sna? iad 
MRE a: 46% A .oog0 + ¥ svete & hottnv 2 . f “ath © 
Apeitat Bikes eee” Wess eies ie hee Mn eae en Dale: at ‘abeten 
-810 58). 





ha 
a8 


ata ert 4 
Cry ert, 









2 





' ret SL aM hole) 
sin 


iG 
‘3 


ee ee ee ue a sited aan a tie ha 


ie ue 
ta taro edt +BITUD 1100 4 ae weed ye 


ee ee Me Re aki 
Teves sot desup eirid Be polls ak hie 
Being Pack! owe Oba he Mae ac a ae a ae anes Real 
-fe ne ese gu tee ad of trnivos eunse'teb Linh te can 











rons cpsolala ae eae 





ent upon a sale of certain property by the makers of the note. 
To this proof, objection was sustained. Thies war no rore than 
an offer to prove a parol agreement inconsistent with the note. 
A mote Cannot be contradicted or varied be a previous cr con- 
temporaneous verbal agreement, and it was not error to exclude 


such proof." Citing Mager v- Hutchinson, 2 Film. FR; Farlow 


v- Boswell, 15 T1ll. 5@. 

That the title to the notes in question pazeed -toa 
appellant by the endorsement of said cashier, and that he was 
a holder in due course, is amply sustained by the case of Pat- 
toa v- Young, 233 App. 516-519, being a case where the cueation 
directly arose as to whether a certain note sandersed bv the 
cashier of this sane bank to appellant passed the title there- 
to, the defense being that there was "o Consideration for the 
giving of the came to said bank. This court there held that 


the directors of said bank, for whom Patton was acting aa trus- 


tee, having had no notice of the want of cons 


ob 


aeration, the 
title passed to said trustee and that he was entitled to re- 
cover on the same against the maker of said note, even though 
aaid maker received no actual consideration thera?or. Sse 
Cahill's Statutes, chap. 98, p-. 52, a3 to what eonetitutes a 
holder in due courge: 

It is also insisted by appellee that notice to the 
cashier of said bank of the compromise cmurported to have been 
made by him with annellee, was notice to the directora of said 
bank, and tnat ovis directors and annellant, sho is actine ag 
trustee for them, are not ina position to zag that they had 
no notice of such Compromise. 

In addition to what 'e have already said in thia con- 
nection, if is to be observed that, while ordinerily notice to 
the officers of a corvoration is notice to the corporation and 
its directors, this rule does not obtain where the officer is 


individually interested in the transaction in question. Seaverns 


‘ Rig RA oy Mes AUER US 


Sain ac ‘to anotan ens ir wd Seto te ctedzeo ‘40 eh & mnogu ay 
PS oR). MES Rae ae Cay BG ba Bh 

ey Gere One Peet atop “herb adeun ect ; 0 Sat do i Abas a het, ‘ot 

3 Ley past fy 5 t peat ave’ a RAE 3: steed ys ih 


setor ett atin dvoete feo: ont juemaorys Lonsq & aye od tetto ne. 


he Rieak tt a SAR SNR arias 

=f 15 avolverd syd ketene TO beds [bexga0s off sonnso din A 
fi04) t Te |: ee vy mea ey 

aby foxes of Torre ton sew dt bo -ioomoonaa tedaey avo mioqzes 
- . : me ide , ‘ 4 ent (itt st a 3 De et s 

wolyay 2999-9 0) 8 yggenit atk sy zopek ‘pat $i sf * -Qoorg dove 
+ ‘ He ivserey lay g's 


ea LNT ‘a tested 
* 9 } co tetads, ees 
ot. beanse ol te eu ot ees on pa af plats ‘eae sad. 


PR aS Tp tb 


a agers 


Si ee 


ne eS 


BAW orl tatt 2 bye , reideas bi Be Fede saad kiitcaai ons al toelleqqs 


t 


-ted Se aneso etd vd bertiesegn vitne el “98 7H00 “eu at ae & 


ay . ¢ 6 c f Oy RAS ey 
notteauvo oft sxc eeno s acted yay a-8fa aah tag saney “Vv Bos 
i ‘ j : CMA ge 48 eed iy 

eft nd hoavtohae ston Otago Fs med Serie of 86 ‘e208 yfdoerkb 


Fatty ee Wan Mees. 4 


-etent aldtit ert besned sional od aned ores eid 0. ‘seideao. 3 


att =o eats eeaii wack Of Be ores sedis abet: soneted ond ,od. 


Pee Ws kee 


teat bred er rf domne: ats? m Yrvadd Byes ot amen ‘edd % ativin 


ae ORTON 1s ae ar! 


~out 8 natdow Sines iscohaued: med. 300 vioed bhee, 20. sxodoortb. 4 
¥ ees 


ess ood Fereheews nD 49 doew ade te ‘e03don ‘oft. ‘bed gotvad eed Ne 


a ie 4 
nit og betapars “ptt ex tac + one cesmeried bine 04 ‘bane el tig 
ep heat | a easel 


¢ 


POLINA Ta a Cae ta 


seh hastened + oot texebi eros Isugoe on bovtesen “83 gat ‘Bbee 


PD) eet A By go 


aor ere radon hice 10 ya vem end deniose ¢ exes ost fo. Wecioh stg 


"e eotut! ones dete od we. ca “| . ee “gas eodudad e'ifidso 


2 side one He Y SIAN RNG ee Re 


“eems09 ub pet tebfod 


‘edd re et ton tact setleqqs vd begotent ‘oela ee aa 


PRU Sa “ih te 


need overt of beirogwit ont moreno oct 38 ined bie to lagi ey 


i A ek 


bree to ‘grote fh pnd oF ‘aot toc eaw wad (soe teie miei yd eben. 
i it i ee Apel y z y, hay 
bas Herndon #t ‘eae inet tecns baa arodou 1 Ladi “aed” ‘ee ee 


Ra hy ae 
eet acid fant) eRe ea: erated: 8 61 “ton. rer ‘(ues 0%: ‘eeteuys 
BF Ag O's Min, 


mbaarsside isis Ae Jo eoltot on 


45 ail 


a ie, ; ae a i 
-1o0 nidd mt Brae ‘vbnesth evar “ov ese of ehstste at, 
j Ne. be RA e yt i} pie 
ot gotten yiitaentbhye ‘of tifa: Amatd Mieke ed. of ‘et ah a 


y 
‘ Ses ta ah % Hi viel ie iat bt, eit i hy 


bre Not terran oe a poy sfsae mye not aexodto 8 Has ete0ltto ont 


big) ie Sh, 
or mentee. pe deter ni Sahat ne parte fie ets 3, coodeeure | ‘adi: 





el Pa tpeORTS 38} RT COVES A Ee MM TMM ol eR Rk ORS We bad 
gE Tsse cottnenp rt cofsonenand es af. 


- el viel Sri ubtvesor 





Were 


31 aia 





v- Presbyterian Hosp 


ii 


tal, 173 111. 414; Wheeler v- Home Savings 


ae 


Bank, 188 111. 34; Higgins v- Lansingh, 184 111. 201-797; Hanne- 


= —— ee 


ken v- Sheaff, 226 App. 386. 


In Seaverns v. Presbyterian Sospital, supra 


& 
—_— _— 


sosoital, supra, the 
court in discussing this question at page 4°0, sava: 

"On principles of public policy, the knowledge of the 
agent ‘Ais imputed to ths principal. But the rule does not apply 
to transactions such aa that under consideration ‘the nresident 
selling to the company), for in 3uch 2 tranaasction the officer, 
in making the sale or Conveyaiancs, stands as 2 strancer to the 
company- (Stratton v. Allen, 1C. #. Grean, 229.) Wig inter- 
6st is opposed to theirs, and the presumption is, not that he 
will Gomeunicate his Knowledge of any secret infirmity of the 
title to the Corporation, but that he will conceal it.” 

In this case, Moonsy informed appellee and his cnun- 
sel &h the time of said alleged compromiae, that he felt that 
the notes should be paid, and that he himself would undertake 
to pay them. This clearly indicated that Mooney desired to 
have the notes left with the bank a3 a part of its aanets, and 
that, for some reason in connection with the taking of said 
notes, he felt that, as between himself and the bank, he should 
make the notes good, and of this appellee was well advised- 

It is insisted on the part of counsel for anrellee 
that appellant is seeking to recover the full arount of said 
notes, without giving credit for the *1,200 paid by appellee 
thereon. The record discloses that the check piven by appellee 
was not made to the bank or to T. i. Mooney as cashier, but to 
T. Me. Mooney. There is nothing in the record to show that the 
proceeds of this check passed into the asseta of the bank. The 
record further discloses that annellee, when he left the notea 
that were in existence at the time of said allegsd compromise 
with the bank, did not require that any endorsement of the 


$1,200 paid by him should be entered on said notes as 4 credit, 


acta etoR-v qaeleot# (: Eb ak fl Sey seen pelsedydaess. ¥ 


ne aie tate an St 


abe | oe ROBE 7 oga 980. 220088 oa 
Pont cence: <TedtiqioR getradudeeyd  .wopggevess M160 Go yn 


:evern Off eveq Ja nottesup efdd gotenvondb ni davoe 
efF096 aabal wont eft .volfog atidua Yoreelqioning nO 
yiqas tor seob efur edt gu@ .Leqioniaq eff 03 botuqni el, these 
frobtesae eft) cottevebreros veo Jedd ee dome, esoisosenerd ot 
eTHOFING |At ootdoerabad + dooe ot set qlgmaquo® erfdy ot gntllep 
BAS ot sovnenth # se BLaete ,aomeyevaoo 10, ef se edd) gaisem of 


So khketrr ath (O88 gabene wh uo J \elta ee nodterte): ; 1 Vereghoo 


ar tedt tow yet nottamuessq: edd. bee ,ettiseds of Heepeqqo; ed. dae 


ett So ydirwi te! ¢enece ves to esbolwons alm edmolmm moo Ile 
aay "of! Lesenno ate af dads cud .noitesog te®, end, of ef tis 
-otro) pin fee sé ihags frotreh 03 VEN OCH: 4 QPHO PBF MT i er heey 
gens sfeY art tedt yorimovmes thepelle bhea Ie ool od tate 
etatrobry br vow *feemid eft dadt bre .oteq ed) blwode eedgen, , edit 
“ed bevheab Lienien jatt betcothrh yhiselo efdt> |.wedd. yaeq) od 
Box (ndonne off Yo Juag «© em teed edd dtiw, del eden edd. oved 
biee to aniled oft idrw codttooenaoom mturceaet amos, 40% .ded.t 
pluoda ad Sed adit pos Meemit meawsed es. dads the? en vaedon 
-bentyvoes flow eaw eslfeqqs eidt to baa ybooy aston edd otest 
eelfsras tot [santo to tesq ett ro Dbetekect et or 
“obtes %o totsone £f0% oft tevoosr od gai seen BE tuelbeqqe dadd 
\weftenge vd biaq OCe,i% ett cot ¢ibento gaivig tuodtiw eestor 
“galferrs vd tevin Yooto eit dand sesoloa lh prover oft » sooneda 


of tud .vetdedo ae yenou .o.T ot So Ap ad) edd ot ebam Jot eaw 
att tatt wore oF byrooey ons at satdidon- eb erent, iweneod «ky aT 
ant? .twed edd Ao absess oft oft! bepseq Moedo eidt to ebeesoig: 


omston ott Ftof od cadw pealleqys tend nevolortbh terigau? brset 
ge trovgrqo bers! fe Blas to omit oft ae oonederue mi esew tedks 
nh vets tg terenwewohee vos techs ewbeped dor BRB i etl ad etd. adiw 


‘Oleg se bero aréereeton |‘ biad ino bere des od ‘biuodea mid yd bled 008, Lh 












and in renewing said notes, he renewed the same for the full 

amount of the principal. with the interast added from Sian to 
time. He is therefore not in a position to claim credit Por 

the $1,200 ao paid by him to Mooney. | 

Errors wers assigned on the rulings of the covrt an 
the instructions, but in our view of the case it will mot he 
necessary for us to discuss ths game. 

The questions involved in this case are Iuestione 
of law, and if Wwe are cowteat in our holding as above set 
forth, the court should have directed a verdict in favor of 
appellant. That being true, there is no occasion for remand- 
ing this case, and judgment will therefore be entered in this 
Mf court, confirming the judgment originally entered by confea- 


sion on said notes, at the cost of appellee: 


| Original judgment confirmed. 


2 


TAM? 983,703 omne, pat, beweger, eh, S0d0R, HEAR Bod se 


i ok este. Mont Debba. tp eras cd, oat Ad EW. xf net Onley, ect 20, demvome 
aot tibous sials of noltisog £2 ot. Jes exoteted taf. 9K 


mo tno er AO dag ioe oft co, bengicen. orem, aro tie. 





wn 


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ON Ee 
é % y a. 
z i all ee 
Term No- 50 Agenda No. #0 
ied {> 
In The KAA 
vf, : 
APPELLATE COURT OF ILLINOTS, Q ke, So SY 
j é 


Pourth District. 


-—See ee 





JOHN DUFFNER, 
Appellee, 


Appeal from the 
-va- i 


CLEVELAND, CINCINNATI, 
CHICAGO & ST. LOUIS 
RAILWAY COMPANY, 

Appellant. 


) 

City Court of 
: Granite City: 
) 


On December 14th, 1924, appellee, while driving a 
Ford Coupe on Pacific avenue in Granite City, was struck by 
a freight train of appellant, his automobile was seriously 
damaged, and he sustained personal injuries from which he had 
not entirsly recovered at the time of the trial. Suit was 
instituted by appellee in the Cityv court of Granite City to 
recover for said injuries- 

The declaration as finally amended consiated of 
three counts, and Charged the negligent operation of appel- 
lant's said train through Granite City and across Pacific 
avenue at a high, dangerous and excessive rate of apeed: the 
negligent failure to ring a bell or sound a whistle as re- 
quired by statute; that appellant undertook to furnish a watch- 


man at the Pacific avenue Grossing where said collision occur- 


ee “ v ‘ 
an ¥ iN ; 
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hen ; ; 

mh z he be el pads a ; 

OF ca! sbrren A : : Pai. v ' 08 ol ateT ; 
cA, ly Fe AN ORS BON see is NS 

SRLS , 3 
AS od? oT 

aN MA A “S| BTOUTIIT WO TAUOD wWrAdgagth 66 dees, wh 
Nee OD" gitar -Sofadet@ Adawoet Era CREE ee 


se’ Peto 
Ga hail ACCI .d «A cMAGT WaGOTORG” 66 oe Ahh 
ABS : 
“a ‘ 


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: . 6eileqg a). Pe: Vine BF 
ett mort Ineaqga ng Rees We 
ri ee, ee a hr 


 LYAMHT ONTO (CAI RWSLIO 
eIU0l .Te # ODAOIHD 
<YRAGMOO YARII Ag 


So d1ryed ytd 


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ee dl [i aed oe LO cl Oy 


eet ull en }  $aeflecqa | 
Fe ad Bel S ASC. ee re 
mo ee oe a 


»& »2nD08 vd KOTATIO 
gs amiviegb eftcw ,eellsaqs ,sS0f .dsOf tedmeoed a0 

vd Noutte saw ,vdiO ettratd ol euneve oftiosd ao egrod S104 
vieuoites ssw slidomodus at doe! feqqe to olets ddagiet? a 
had ef doridw ror? esivutot (scoeteq bentasaus ed base _begameb 
esw tive »[atrs ett to omit ofd tea berevooet ylettdae fon 
o¢ wht etioerD to ieuoo yite estd ok selisogs yd bedudivant 
-solru(al bige 10% tevooen 

40 betetenos bebrome yiflanl? ee meftaralosd eft ti 
-feare to cottereqo imeaiiass edd pegtedo brs .adnvoo eens 
DPUOST @antOK bas wth etinayw: dgvorit otent biee e* doe 
eft -besae Jo eter eviaseoxe bos. evoreansb vflg Ea # d& ourove 
-ot ee sitetdw #2 bawoe 10 [fed # anit of ewiltat Joogtigon 
-fogaw s defor? ot Yootrebay inet heqre te0 ietusede yd betiup 
| -1190n sofetifoo biee erate: qiifeeor euseys ofti089 eds de mem 


red, and that on the day in question, as annellee was annraach- 
ing said crossing, said watchman negligently failed to warn him 
of the approach of said train, whereby said collision occurred, 
resulting in the injuries sued for. All of said counts alleged 
that, just prior to and at the time of said collision, avnellee 
was in the exercise of due care for his own aafety. To said 
declaration appellant filed a plea of the general issue, and 

a trial was had, resulting in a verdict and judgment in favor 
of appellee for the sum of %1,000. To reveree said judrment, 
this appeal is prosccuted. 

: The principal ground relied on by appellant for a 
reversal of said cause is that appellee was not in the exer- 
cise of dus care for his own safety just prior to and at the 
time of said accident. 

Pacific avenue on the west, and Nicdringhaus avenue 

on the east of the hereinafter mentioned tracks, form one con- 
tinuous street, running practically across said entire city. 
and is a much traveled street.  Ssid street or avenue is 
crossed at right angles by some sixteen or eishteen railroad 
tracks, which run parallel to each other and occuny a anace 
of some 200 or 300 feet cast and west. The first six tracks 
on the west are not used, 32nd were referred to an dead tracke- 
the other tracks consist of the main lines of the Wabaah, 
Burlington, Big Pour, C. t E. I., and the C. & A. railroads: 
The Wabash has the most easterly of the tracts: the C. tA. 
the sost westerly. The Big Four and Alton traing use the C. 
%* A. tracks going into St. Lovis, and the Big Four tracts com- 
ing out. At the time of the injury the Big Four train wae 
running on the ©. & A. track, which was the Cause of some con- 
fusion in the testimony, some of the witnesses referring to 
the G. & A. track ae the Big Four track, and yice versa: 

With reference to obstructions to the view looking - 


north @s one approached said Crossing, appellee testified: 





-forerata asw oalleaqds ae tottesup of yab soll es baat hoe . ber. 
mil aver ot bol ist yitoreatiasn marcdodsw bles ,.xetteseoto bres act 
ebeyiuooo Sotalifos bise yietedw ,.ateys biaea to mained: fal att Ip 
henelfia atjowos biss te [fA .704 beuve seltutet seat at denies 
eslieara ,notsiffoo bise to exit eft ta bmw ot soltq seut .tadd 
bier Of .vtolge ovo Bik to} oreo Sub Yo eetotexe effi at eaw 
bo pevert Terence oft 6 Ref # helt? toelfeqcs notsetsi deb 
ove? at Foreonen best bra torhb rev bt &T oofdivueor , bar eew Istas 2 

‘i devata hut bran gavevet of 9.000, fF 9% tie os to? eelleqa& to 
Ri .betneseotg al Iseqqe eins 

e 0% toalisars vd ao beltfet bovors [Ag tontag oat. ees, 
~texe edt of jor saw eelloqqs darts dt 6etsd Bran %0 "debbie 


eds ta bos ot tofsq dept. vietae swo- etd tot erso eyb Yo eafo 


ptr Kaisa ae stoebroon bree to onts 
BUMOVK. ‘snihantenett bow ,seew eds a9 eunSyR oft road” Yd. ae 


-oo ero mrot, ,.atoatt benotsnen vedtartever eft to tase ent so 
.Véfo erites bles ecotos yf Sorsobtq ymionet ,teorte avout). 
ni euneva vo Jeette fis® <teerde befevets toum & et bee 

beotf tat. veeidute so veedxte ames’ yd sefane tdgit te beeeoto 
sone e waxtoso hor vette doge of Tefleveq tue dstdw .edoaets 
etoatt xia sevit ott ldeew bae dese ‘toed "OO 16008 ‘eros Yo : 
~pNoRTF SOB nh lds bedtetoy ovew bas bods tet eanw Seow ede od 
(ifieada® off 80 sent niem SHd To Mine stoett "retth Shh 
sepaorfisy .A #30 ees Bia Od. Oa" LO yamOe gta! meager 
cA 4.9 effd petoRts ont to vi rodeed! seer oft eat desdaw oT 

Oo eft osu ententt Ost A bee yuo greet? o, yfeeteow seer ont 
-mno sYosed quoT ataledy Boe petted .¢R’ eam gnkog’sxoart .A 9 


pew niesd eoT gtd ofeo preter eds Yo omps eds FA olgue gar 


-109 sion > Cayo eff ane Cotte (eoets A #00 Gad ad ga batioe - 
OF antynetay sospentin ets Io enon (yiwodrteet ens at dotent 
“segev éaty bis (soars 1068 gia sat we Forad: la ew Ody 

~igatseot  wety ott ot ano MeuTtedo St eodereteT AIET An: ete RA Co. 

oeberthta6te aekleqas _26iaseto Bias’ bedosotgg 8! end ex stort . 





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"AS you approach this track from the west there is a bie plant 


on the left hand side, called the Américan Steel Foundry. aAf- 


ter you get east of that you find a building £0 or 28 Feat 


wide and about 100 feet long, of Reimer's Coal & Feed Corpang. 


The next building is the Terminal freight house--about 29 or 


25 feet wide and 90 to 100 Feet long. Its length extends par- 


allel with the tracks, and the track is about 20 feet sast of 


the east side of the building." 


YW. S. Gray, a watchman for the “abash railroad at 
Said Crossing, a witness on behalf? of appellant, teatified: 
"The ferminal has a building west of the weet rail of the track 
on which this train was coming. There is about 20 feet Pree 
space between the Terminal building and the west rai1." 

Appellee testified that on the day in dguestion, as 
he approached said Crossing, he wag driving about 20 miles per 
hour, and that when he got about 20 or 40 Peet Prom the track 


in question he came “almost to a complete stop." He further 


testified: "I looked to the south and to the north, but vou 


can't see nothing until you get right up to the corner of that 


building. Then I started my car and was running in low: At 
the time I came almost to a stop I saw a watchman standing on 
the other side, Close to the Sidewalk, about one or two feet 
from the sidewalk. ..... When I observed thia watchman, he 
Was standing there facing the shanty (watchman's shanty), and 
there was another man standing on the sidewalk Pacing him, and 
they were talking together and he had hia stop signal in his 

left hand, and it was hanging down, and that made me thin thate 


the train had just passed. ..... After IT glowed down and 


started up again, the other fellow waa Saving something to the 
watchman--I know the watchman there--and then he started running 
toward me and waved with his paddle to stop, and I looked at 
him. I didn't know what he wanted because I know him, and then 


when he points and I looked, the train was almost on ton of me- 


“SneIe Std & eb evens) deer, edi mort soard, eift doacigde toy. Ba” 


Lea. erbavo® tease naotrema ot bef fso ,ebta baad, dtel, aft mo 


“foe2 89 to OF wnbbi rede bolt voy sed, To. Jane tex. vor tet 
Qyreqrad beet f Leod a'semieh ‘to .gtol seet OOL suods bas ebiy 
vie a Of Hod e-eavod ddyiet? Dengmmet end ef satbiiud axon ett 

-t8¢ eboetne ie edi >.amol dee? COL of OF bos btw $907 as 

Io" tane peat! ‘08 duods ‘ef soars eft bos ~exoe1s ott Adtw Aelle 
“.antbiiud,.odt Yo ebte tease “orl 

ge prodht as desde etd to? cemdodar. & (yA 68 Ey vase ay 
shortisnet etaafleaqs Yo steed 19, sreatiw. 2 uals bhee 
Sone¢ 4+ 30 thar seew edd to deow gatblivd 6 ead, lexiated oT” 
“ger? Josh OF tuoda at atedt. sndines esw wierd. etdd doidw mo 
“trey geo oft poe nethfind Iemlmzel edd meewted epsge 

ne .antteeup af vab etd oo ssid betiiseeds eelleqaé \.) ./ 0) 
4a ROD hOS tuods anivind eaw ed «Rilosono brea. bodoroigqa ed 
Moet ort word toe) OF 19 OS troda. tog. ed oecw dads bap . wos 
erty” SR "odode etelqnoo # o¢ dromis” seman of sottreup st 
yor tut ction stid-ot Loe ‘dduom oft oF bedool I". theliitses 
sant Yo sverrrao and cod aus. drigit don voy Litas gaiiison, sen, t'mae 
ga wol (gh Actoows way boa ser ym bedtste I. med? -gatbiind 
(G6 adthaate rendodaw 6 wee 1 qgote .@ of deorhe..emso 1 emis ond 
‘ae ‘ows so so tueds oYiswobis ert .od eaolo.,ebte sertto odd 
od ivemdotew Bid hewrendo TadW idee) sAhamebie(; nt nee 

pas’. (etiede slesetdtow) yiceie odd golostvereds gatbues 





bers enter yttoat Nfavebia eds go ge fhoste, dem seddors Baw prea 


ett nf Tet te qose eid beri vec ba 8s rettopod gaitiet,ovew.yveds | 


er bit Shad Wond foe (ood geigeed eom. Ft. bos, bos, Mol 
‘Bas Swob bowels! Toda 4h eas  sbereeq dest) bat atett end 
Stead shIddenee antven exw wollet tedto edt). atanae qu bedtete 
antonue Bediade ed trertt pow-+ereds memcodtew: edd: wou! ‘Te-comdodor 
fa beXoo 0) bow’ iqodeot albbea’ oie aise bevew bie on) baawod 
riot Bas «MEA wou 1 seusoed bednew ont dedw won, $1 abkb T amid 
‘it pst Ps bite dudwtw vor p cited: en gbodlool Tine adnted esl avortw 


a ee Oe ee ge eS 





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The front end of my Gar was risht on the Big Four railroad 
track. I was in that position when the watchman started 
toward we. I was running slow. The best I could do was get 
off. I put the gas on trying to get off. The train struck 
the rear end of the Car and side-swiped me. Prior to the 
time I was struck there was no whistle blown on this engine 
that struck me, and there was no bell ringing. There was no 
warning of any Kind given of the approaching of this train." 

7 Gus Tom, a witness on behalf of anpelles, among 
other things testified: "I was coming from work that dav, a 
little after twelve o'clock, and I Come over the tracts and 
a fellow at the first shanty (shecwatehzan}, he came out to 
stop and I stopped at the next track, and ata IT saw that 
train coming [I stopped right away, and the other watchran-- 
I looked over there and he was talking to the other fellow, 
and that fellow just hit him and I Rear the wreck. I never 
paid no attention how long the watchman near the middle shanty 
talked to the man--it all come at once- T saw the watchman at 
the middle shanty make like that (indicating) with his hand 
when the train was Coming about five or ten feet. Duffner was 
right to the track at that time.” This witness also testified 
that in his judgment the train in question was running from 25 
to 30 miles per hour; that he heard the whistle on the train 
blow once before it reached the ainda that he did not hear 
any bell ringing- 

The witnesses on the part of appellant testified that 
the regular whistles were blown. and that there was an automatic 
bell on the engine which was ringing al1 the time as said engine 
approached 3gaid interssction; that appellee was driving at a 
speed of from 25 to 40 miles per hour, but that as he neared 
said crossing he slowed down and then afterwards speeded up: 
The watchman and certain other witnesses on behalf of anneltant 


testified that said watchman held up his stop signal as apnellee 


_baont bar 9G aie etd cto stata Faw ISO YM on ae tsext ed? 

4 boivate. qemdiod aw edd enw aottteog. Jas. at pee T .ftoers 
on, esw ob alyoo. I tead. Sat mele gatogua caw. em brswos 
Hounds sient ont -7I0 fon oF peters oO e&y ond dug cs 2@, 
ects of totad 79% beqive-ebte bos igo edt Yo Aso wast, esid, 


oar 


eotane obs so owold eftetcw of sew. sora adlangnin cade Shinn 


se ard 


boty | etc exer -anigats cee. oo Bew etend bog 2 Od, AOute seats. 
| "eotant nid? %0 20 tdosorqqs ont Je sevig bald, yg. Je Bo. Locigw, 
. paopes. abel loqas 3o Afaded eee eesudiw & hot eyD. | 
8 wah tacts sibel mos? snfmoo saw 1" :beitigess ranlult, wadso, 
PB satale pvoand ons 18Vv0 emoe, m bon eFootD'o, eviews tosis. pli site 
of dup ems oni tencteseneds), yioede Jert? edd ds, wolie? a 
stadt wee z oesy bre (yFoets f¥eg pas, $s, beagote, J, bas Gods, 
+i pmeniDg aw. metdo, oft Boe yV ere sda ia, boagota: 7. gatmoo ole 


_svortes seddo ata ot gcisias esw of bos exedd revo bexool 1. 
seven 1. -toerm eas zaet I boa wid, Jtd foul wollte? tad¢ baa 


aietenny pi 


vinerin etpptn ens eal feadotsw edd ROO! wor moltqgesdss 9 ohh Me: 
te sett eds eae i Pinch a8 em00. Ata. Ai--oem ods ot beatles , 

_ bred nt sister (avtaeotbal) sags etit ex Sat, vineia (eibbte edd. 
288 soo et Oe fete it 70 evil jyeds amigo? ese ataas ad J oene 
borviseos oats seonstty elat ".omtd dads te dostd edt. ot, Stats 
ae sont sot ows Bee hot Taenp nod Lets. Sis isem but, eis Mh dtedt . 

ment edt 0 alietow he dol basen oa ead itso Fed, Bella 98 oF » 
neert ton bib ott farts iat asoro a3 bertozer 42 2 Toted sone wold. 

vie Su a sh sea tas ACR saat AB He yahet 09 ah alagivs Lae te + 
tact port trot year togaa 20 3 dasq edt. He gona 
of toon te a eer enent tacts poe Erol Ss. axew seftetdw sal aes. Med, ¢ 


Ab seis (e et 
i 


entuae bres hit ont, ods {18 Bai aeks ese Aotdw Lae emia ge POF O42: » 
B as arava paw ‘eel { oaae Jang, Asotsoensesat AS eee 


bevesn ed ica Jans oe a t8O8 19 sella oP of 6& PO moe, 2 G 


Dy fx Pes alse ¢ Reo MKt An ase cm iy BAN 


Rb ae, pbaeeres 3s, Spas aint Mica Pokey b bowels, sf po tavore alae. 





tet Tene to rected 89 ponsondin 18 ie pial bos cemdotaw ent, 


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m, pact RES 


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approached said crossing, but that notwith-tandine, annellee 
ran his automobile on the track and was struck hy said outie 
It was @ question for the jurv aa to whether or not 
appellees was in the exercise of due care for hie own garety 
just prior to and at the time of said ollinion. Tf the jury 
believed the testimony of appellee with reference to the ac- 
tions of appellant's watchman, he was neglicent in failing to 
warn appellee of the anproach of said train in sufficient time 
for him to stop his car and avoid injury. The tury head the 
right to take into consideration, in determining whether or 
not appellee used due care in approaching said crossing, the 
conduct of appellant's watchman; in other words, if aprellant 
maintained a regular watchman at said Crossine, persons driv- 
ing along said strest and over said crossing had the right to 
rely on said watchman using reasonable diligence to warn them 


of the approach of trains. C. St- &. & P. R. R. Co. v. Tuteh- 


imson, 120 111. 587-593: GC. R. I. & P. Ry Go- v- Slouch, 174 


Tak. 58-592; C. % A. R. Re 


{a 


Q- v-. Blaul, 178 111, 13%-laa; 
Deheave v. Hines, etc-, 217 App. 427-471. 

In Chicago, R- L. & P. Ry. Ca. v- Clough, supra, the 
court at Page 592 in discussing this question, save: 

"A flagman was stationed at the crossing in question, 
and it was his duty to know and ceive timely warning of the near 
approach of trains, and appellee and the public had a richt to 
rely upon a reasonable performance of that duty. The refusal 
of the Court to give the instruction was fully justified by the 
decision of this court in Chicago, St- Louis ¢ Pittsbure Ry. 
Go- v. Hutchinson, 120 T11- &87, and other caser.” 

We are of ‘om opinion and hold that the verdict of the 
jury is not against the manifest weight of the evidence- 

It is also contended that the court erred in refus- 
ing to give appellant's fourth refused inatruction. So far as 


said instruction states correct principles of law, it wae cov- 


anffoata .antieatestinvion ¢edd tud ac teepyo btee’ bedosordqe 
ve tent fis vd douete esw boo toa rd oft mo efldomotve att wet 
for 10 ‘torte ot pa eth od Soo oofteoup # Baw ¢T 6 885 8%) 
vietaa nyo att xo eteo eub Yo eriovexe edt nt eaw eelleqaa 
evil ef? IT .ttotatifos bres Yo omit end te bee of tole’ tent 
-on afd of gonaveter dite eolfeaqe to ydomt tees edd beverfer 
at eakliet nf tesetfeod sew ed .memdosew e'trelfeqde to’ eword 
ott duotoretve wt attend bres Yo dokocqes eft Yo eeffeqds aver 
att bad veut ef” .eaute! brows bas tao eft gote of utd 10% 

‘ao todfertw atilatmvedeb of .cotterebrenoo otmt oles of thats 
eff  atimporo bles aoidosorqqe vi srs eyb beew eefloces ton 
trelfecds 9} (pbyver tetto of taemdodav a't¢ualfeqqs Yo toubaod 
-vitb anoetoq ,nrtaseS blee +8 namdotew weliigot 2 bettPesnt sa 
of fifaty etd bad geissovo bites tevo bas teevte bise cols yal 
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-folu sw io lg) 9 # 9 132 19 Lentetd to Hosoxqas ens Yo 
“pet Uaeerd -v -oD <7 02 2 «I of JO: Bdd-Nee LITT OSE \aoeot 
aABT-HE rt Aer tuale <¥ +09 «2 oR AP Cd Yeealtase ret 

ark Bie ) TeR-e8 -o7A VES ,-oFo .senth iv suestiog 

‘odd segue wiguelD .v .o0 .yn oF 2 o VE possdicO or” 

: a (por sa euy eins nofesuoeth er sea 93.27 ‘te dais 
cnobieoup et. nuteeore od tae Bonet fate caw cement eua, ote 
neon ett I xetotee yferid evita bos wont od yaub eto saw +E baa 

‘od Sdn ft & bed offdua edt bre’ selleqqe bse \entest 40. Monona & 
f[rautes) ett v tub tats to eorex? req aldenceset & oun ylex 
‘oat of Bofttteut vite ‘eew moldourien? oft ovis of fxu0o edt 0 
+3f aoe artdets?9 9 etod «32 ,onsolsD of tatoo efdd to motereen 
"aeons sotto bre ,vR -IfT O8f seeenddasel Lv 90 
eft Io totbyev eft tard Bion pre moto tae Lan to ers of 
”"Seoreptye edt 30 fri tow Yeetinan etd | tentega Sout’ et yuut 
-duted af beste #ru0o end sade bebresdeo onta ef at) 0" Pie 
“ge te) 028. .notfoudian! beewien aeiee eléselfedan ‘avin 09 ‘grt 
* vod ew $f lwat So nelgldates soeesbe aedesa nel demchome pte’ 






ered by other instructions given on behalf of appellant. 
That being true, the court did not err in refusing this 
instruction. 
No question is raised as to the rulings of the 
court on the evidence, nor as to the amount of the verdict: 
For the reasons above set forth, the judgement of 


the trial court will be affirmed. 


Judgment affirmed- 





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en 





Term No. 52 Agenda No. 4 


In The 
APPELLATE COURT OF ILLINOTS, 


Fourth District. fo TF 


OCTOBER TERM, A. D. 1928 , | ei 


ALBERT SENCIPER, 
Appellee, 
-V3s- Appeal from the 
City Court of 
Granite City, 
Tllinoia. 


H. ©. MASSEY and ROY W. 
MASSEY, Co-partners, do- 
ing business as MASSEY 
BROTHERS > 


ee re ee 


=) 
a 


Appellants: 


ay. . 
XY & 


OPINION bv BOGGS, J. 


This is an action in assumpsit, instituted by anpellee 
against appellants to recover for an alleged balance owing by 
appellants to appellee on a contract in and by which he wae to 
drive a milk wagon for appellants, who were engaged in the dairy 
business in Granite City, Illinois: The declaration consisted 
of the common counts, to which appellants filed a plea of the 
general issue: 

By agreement of parties, said cause was referred to 
one Wesley Lueders as referee, to take the testimony in said 
cause andj/report the same in writing, together with hie conclu- 
sions of law and fact thereon. The evidence was taken by aaid 
referee, and was reported to the court, together with hia con- 


clusions. The referse found and reported to the court that 


§ 





Ao, oH BphrrenA 


, 2 ty a ‘ext { 
ont ae 
: i esi ein Tae ay eee RO See 
{2TORTIIT 70, ba tua emaganata 4 
ria tiger A pach ae A Q 
of a pat sorateta CPTHOR moe a, 
eg ON SL US Gi 
Ch eae A Fe Rh, 
i my: 8 HSOf .d |. A Maar ARAOTOO 
. ‘ Ne rf 
5 fi a] Nae hi 3 ‘ om ee e as: Se 
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= : avi aasare erry Sa a aE ey, 9. 
usp Sag 138 af oR 
Yous” ( (ABI TOUNE TaWEIA 
-eerleqqa 
adit mor? L[seqaA ( “av- 
%o gauod vito 
evtiod esinstd -W YOR bos YHESAM .O .H 
sptontr gt ( -ob ,evedtreg-00 para 2 
( YHeBAM Be bain 
( -egnelleqaA 


ea OD: «Bi L a ey x 
~b .Ben0d vd ROTHIFIO 


ae ee ee 


eelfsqqe yd bejustseat .tieqmyses at eeteoe ees et ‘ets? 
vd gniwo sovaled benel ie 8 102 tevovet oF etoselleqqa sentags 
ot saw eri dorty vd bos of Joayino® # fo eel feqqa of agua! Leggs 
witrb ont nt ne aaa ayew on etoaelleqqe. 10% Nogew afte g (eviab 
boseedas notsatel Seb est -etooliit .ystd etinaya mt 50 Le 
adt+ Yo eelg & beri? efnalfleogs soidw ot ,eimyoo: Homnoo cand +0 
| : 3 east ferenen 

oF bentoex paw sees bise eelsitsg 2 suompenze ys 
hires mt eoortsees: ond estes og compete ea erebond rel aor eno 
“Tanne: ent ite nentenot cagitiar of emo edd srogenkbas eaueo 
bran vd noted BBR eousbive oc? snoerosd dost ae bbs to acote 


a a 


“noo atd adhe tetitoand «F109, ond, pt besrores eon bas ‘seometer 


ener edt -emoneuto 


“a 


tect t1010 9 pele ot bodsages boa bauo? 98 





2 





« 


there was due from appellee to appellants the sum of #99 ..85, 

for which judgment should be entered against appellee. Excen- 
tions were filed to said report, and on hearing, said exceptions 
were austained, and the court found that after allowing apnel- 
lants all amounts justly owing to them from appellee, there was 
due appellee the sum of *#345.77, and judgment, with costa, wae 
rendered therefor. To reverse said judgement, thia anpeal is 
prosecuted. 

The principal contention of appellants is that the 
finding and judgment of the court is against the manifest 
weight of the evidence, and that the court misconstrued the 
contract entered into between appellee and apnellanta: 

The record discloses that on April 24th, 1922, appel- 
lents entered into a contract with appellee for his employment 
as a driver of one of their milk wagons. Said contract, among 
other things, provided: 

"It is hereby agreed that for his fanpellee'sa) services 
rendered in behalf of the company, a3 herein provided, the said 
driver is to receive the customary wages set for one-horse 
drivers by Teamsters' Local Union No. #1, which is at this 
time 835 per week, payable weekly. ..... The hours of service 
to be set by the company, and to be not more than 84 hours per 
week. It is further agreed that the first *30 earned by the 
driver shall be retained by the company until the termination 
of this contract, when it shall become due and payable to said 
driver." 

Appellee began work under said Contract, and worked 
for a short while, for which work he was paid by appellants: 
Thereafter, in July, 1922, he again entered appellants’ emnloyv 
and continued therein until March 12th, 1924. Appellants paid 
appellee 835 per week for his services rendered up to June Ist, 
1923, and *38 per week thereafter. In March, 1924, a dispute 


having arisen between appellee and apnellants as to the ctate 


78.08% So muse etd atnelfeods ot eelLeqae wort evb eaw ented? 
-~ceoxt .ealfecqe tentane bovetoe ed bi vores Snembu; dotdw vot 
anoksiqoone Bras .attreeni oo bos .droqer birse ot bell? evew acehs 
-fecaoa aotwolle vaste tedd bouo? tevoo edd bose , beri atane or 8w 
new erets .sellsaqa mor? madd of acttro sisighet ednitroms ifs wsaad 
new .eteoo stiw «tremnbat ine erm ana ‘Io mye ets eelicqas epb 
at faeare Leaks Giwadebet bhas nesenins of .totetelt bevebues 
Si -bessoseorg 
att dant of AE NG to eu radeduoe pang pi edT 
“ih ssettaar oft jantans si dygoo off Yo dnemmbut bas goibott 
edt beysteroorim druod oft sats hos . OOMeBENG: edd to tig tew 
“adostfeqqs bra es! laqcs nvoades ota! beresae toatinoes 
~fsaqs eaer edd Be hag ro Jatt genet OB th brooet ent hy 
fovomvofame whet a kel feuen fiitw sdersage ir) eink beredas agus! 
morome ,doasitnoeo bret -eronsw Sligc ised 90 eee te ped te =) 
be “Ebebi veg <egnint tedto 
seotvran (mteellenqe) eff sot tans beetys ydeten ef 31° 
bteo off ,bebiverq steted es .yeeqrod edd to Wared nt berebyet 
enrofi-eno 163 foe eensw yiameteuo ont eviteder of et tevitb 
sfidd a5 at net .f% .of wotaU [sod Kapbigpehewsnney ve eteviah 
eoheren 20 eanod ont nag -visteon efdevag vleow ‘104 eet eared 
sou 


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4 f Abele tr i At 
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bree of nicayer: bo oub enoved I Tacte i pepe ti \ JoptaOo ‘eine oe 
Pe ONE a MEAT aN 2 goviab 

betcton ber ,toardaco bi ee rebay tow cay eel Legg On ae 
“eanetfeqaa oc bheq Baw er ‘sow Hotelw 703 Vel inw é ‘dsorte 6 10% 
ene 


vor ‘nina! feaqe Roeate ates a “ager. Uivh o ak “rod wordt 
bier edaeftenga “Beer t38E fovaX fitou “oteneats beu at ane ee 


as Vise eeae 

tel omet o4 gts bexebrer noolwie: pet 108 Hee ithe eet oo! 
¢ het) : a : AT i pectin aso 
esuan tb B vised sort ot os 2oret ‘tose pers “e .eSer 


STORIE si rb Oe Wi Metre 9 meeyrery 
pao ois ot 6 saver teaae ‘bas pel reais aeewsed neetss ant 





| 


i ety Ee eT ee 


of their account, appellee ceased working for appellants, and 
thereafter this suit was instituted by appellee- 

One of the questions in dispute between said parties 
is as to whether appellee's right of recovery was limited to 
$35 per week until said scale was increased to ®38 per week, 
and then to $38 per week for the remainder of the time he was 
in the employ of appellants, as claimed by apnellants: or 
whether appellee, under the terms of said contract, was entit- 
led to recover for overtime and for double pay for work on 
Sundays, in ~eeping with the provisions of the scale Pixed bv 
said Local Union No. @l. 

Article 6 of the amtpact=e=se sereement entered into 
between the PReES Ray Lome) Uriel borkwod of Teamsters, Chauffeura, 
Stablemen and Helpers of America, Local No. @1, and apnellante, 
who signed to be governed thereby, provides: 

"All teamsters, chauffeurs and helpers shall be paid 
from the time they leave the barn until they come back. Nine 
hours per day, starting time 7 A. M. till 12 o'clock noon; 1 
o'clock till 5 o'clock. Suo-h ie day on Saturdays, 7 A. M. 
till 12 noon. All time over nine hours per day and five hours 
on Saturday shall receive time and 2 half at the rate of @5 
and 70 cents per hour, which rate the man is receiving." 

Article % provides that "it shall not be compulsory 
for employees to work on holidays or Sundays. If so doing, 
shall receive double time, except when holidavs immediately - 
precedes or imtediately follows a Sunday, in which events ice 
and milk wagon drivers shall work on Sunday at the resular 
scale of wages.” 

Appellee testified, and it is not disputed, that he 
worked every Sunday during the time he was in the employment 
of appellants. While he Could not definitely state the number 
of hours he put in each week, he testified that there never 


was a week in which he did not put in at least 84 hours: 


bos, atralfer¢s 105 aotvaow benseo, Peri adan a tono9 98 ‘Medd Jo 
-eelleqas yd botuttieot, paw, tive eins rod tsoredt 


4 iy 


petinsd bie ceswied etumeth mi esotseeup eft to. an0 | Ps 
ot betint!, saw yrevooe7 Io tein tet a ‘eel leags beter tags of Be 2 ot 
_«3eow ter 8F* oF borsetoni sew olsoe bias Litou teem seq S24 
Baw of omit edt %o vebalamey eit sot, teow req 68? ot oeds bas 
_, %o se¢os!leqas yd bemtalo ar vesoeliogge Yo yolame oft at 
-titoe paw ,.tosntinoo bles to smvet edt tebmu veel leqge redited 
_, fo, Ntow 20% veq efduob to%, bes emitrevo 102 tsvooe of bel 
vd bextS, efsor. ett Yo eno talvorg edd ridiw. aatqeox al, «ayabous 
i Mee : Sa ‘ fh 0%, noial, £8900], Sia 
oft bevetes, tremeetas Serarahdna eit 70, 8 efotsaa 


wetvet teat catatemneT Yo papier tors, Lanotseatesal ods seowted 


Nee AS ae 


catcatfegas bys .I® .of [soo . eee Io ateq! eH bos nomet dese 
ieobtvorg svesrorty, bentevos, ad ot Formate, one 
bier ed [fare ereqiedt hoe emwettwado ,otesemeet If A" het 
Sor. toad emos vent I tite fimad edt evsel, yoda eats eft mort 
f noon Aoofa' © ef fits) .u +A v emit gottiacse Ly8b teq. eqwod 

-M AT .syehrusse oo yeb BM ai-oa0 Meets" 8 ILEs, Hoel oto 
atuvot evi? bor yah, r9q, esos enta seve outs ILA .soog Sf 1fts 
49 0 estat eft gs tet s bos emit svtoecvet [fede yabwsse co 
"  Seaotvteoes et oem ont etex fotdw actus xed sgteo 2 See 
vsonfugqman ed ‘toa (fate ¢6" tedd, aebieore | sf elotsiA dea 
2n0tob oe 31. -eveboue 0 eveblil od a0. ow of ‘canine 102 
_wfetatbemnt evebt for ecw Josoxe .emtd efdwob evtovex Iferte 
aot atreve doinw ot .vabrue # swolfo? wiedatbiepih aa casts I 
ALUN eT eat 18 vebous oO. Aer, [fede eteviTb fog ew ai tm bors 

: r PRPBRM to ef noe 

_ trenrofgme ont we ese ef. ents ent arene Nebepe, atta 
_xodinut ot etste yfesiotteb ton bi yoo ont elise sedualfeags 
teved oreris sats betitired ed, teen, dose aE dug, oct estuort, " 


“BLOT 88 dnref ds ae tas too, bib on (Aoldw ot Heew 8 8. 


emt tart _ Casein tom ef 3f bas | sberttaper seins ‘i 


li 


- 


-— 2. ~~. 


5 
i 





Appellants do not undertaze to dispute by the facte 
in the Case the time claimed to have been nut in by arnellee, 
but undertake to show that other drivers who had the route 
which appellee had, did the work in seven or ei¢ht hours per 
day. This evidence was objected to, but was heard by the ref+ 
eree subject to objection. Appellants further contended that 
appellee did not put in all of his time while out on the route, 
delivering milk, but that he was using some of the time for 
his personal business. 

This latter contention we do not think is sustained 
by the evidence in the case. We are of the opinion and hold 
that, under the contract entered into between appellants and 
appellee, appellants were to pay according to the acale of 
wages fixed by said Local Union No. Fl, and that the trial 
court was correct in so holding» Appellants practically con- 
cede that this would be true, but say that apnellee, without 
objection, had from time to time settled with them at %35 or 
$38 per week, without any Claim for pay for overtime or Sundays. 
The evidence in the record tends to show that appellee did not 
know, up until he ceased working for appellants, that he was 
entitled to pay for the work done by him on Sundays. We do not 
understand that appellee would be barred of his rirht to recov- 
er according to the terms of his Contract, even though its 
provisions proved to be more beneficial to him than he had at 
first anticipated. 

Counsel for appellants in his argument sava: “Tt is 
true that the agreement or understanding with the union and the 
employer was that milk drivers were to receive some extra com- 
pensation for work performed on Sundavs, excent where a holiday” © 
immediately preceded or followed such Sundav. Appellants, 
having signed this agreement, knew of it. Appellee, a member 
of the Local 61, was bound to xnow of the conditions, and it is 


apparent from the evidence and from all the facts and circum- 


etos? eft vd etugeth of e‘sitebay Jon et hi amabeci 


F 


eel featos vd of foe. need evel of bemtsfo ont’ os osao mie ef 


‘ts f 
era Tees a 


etuonw ads bad Om. gzovinh rsito Sati? wore of etestebou ted 
NOR anwad fig isso MOVER at Ua9w ont pib vbact elt onae doidtw 


‘eter, ott iad husod epw dud ,.ot betoet do pew covehtve ‘eta “Nyab 
tead3 poipend tos vent? edrelleqga wozsest do of soot due eore 
.otiion. psy, oH of tdw entd pic 10 Lid ot su ton ‘BID eetteags 
70% emit oft 49. emoe antes 6 ow oi dads ue cat tm naitev if eb 
| . -eaontend Tetowreq afd 

id a et Yetdt gon ob ew noLinesaoe nedsel ener aye 
‘blot brs notetqe att Io ors of +9880 eit ab “souebtve ett ed 


bE EAR Le ehh 


. bre atnatfecga npewted .otnt. beredes sowrin0o etd Tebow dads 


Pes | olson ent ot Bai brooor vEq vs ete¥ osaatteags selieqqs 
GEROSE)  SST Bo ee arate ee Pee 

rate ont teat bee Lin sok rola [Hoo] bias yd boxtt BeRZew 
peep Baek eed 2 

-noo vifsotiosno sigsfleqqa -an blot oe ot s2en700 ‘baw slide 


iy 


suods be »sellores. Sait vee sud ound ed bluo® ons ‘poahs etiee 
40 aah ja medt ditw beltstes entt of onts nor? bad solsdsetdo 


Py bors 20. emitrevo. oF . yea. TO? gialo Aisa tuottiw oom “eK ere 
ton BIB sel fogae tadt yore, of ebred trove ons o£ ‘oonestve eat 
psy. od. tect ,etmelfogqe 07 aot aro beeseo, ori risa qu Woo 
Form oh, oF, (aBY BBOUE,. ro atc yd esiod TOW, end 102 yea of belt) dee 
-vooet ot eands pti, 19. Seinxed oo bluow esl i sqqe atts  pieathetloalah 
tt dauodt, nove, .toente09 eid 40 ented ods of “poténcees -e 


“theseqtorsas tavt? 
f i . ’ REY aaah Pita mala Oye 
Ee ® f EP YER, doramumsne etd at pioatteqge 703 Teenod ae 
(Mili CRIES OME ne 
ent .b98.notay edt dite an! boatserebous ise Joomeonas eds tect out 


1G) Oise ie yee ae hey & 


ts path, ad. oars mid ot Ay le a9 ed etom ed ot povong eno feiverq 


lad ee ph 


~moo BTIxS aren ev ieier ot etew et eae atte tend Baw xevolque 





RE A hon Se 5 

vabh fect 8 lesen Jasons bysbque 9 boro 160 drow 10 mo ftseceq 

thet. OEY more fi 
ae ~adnellegca. + yeboue ove benol fo3 70 rch i Lahore 
aedmom.6.cosilegga .t?, 39, meoy .soremoerne ‘eidd eng te gat 

EO oc PaaS 1 PARE ip fe 

aa tt bog. .agotai bao, ett 40 wort, of “bowed alia isood efit Yo 
Bete Sok. EES ams « eetareaied | Sa 


-muogto. Bre. Pgont od A Le, mont bow eonentve ‘aft mor? Sneieg¢e 
ie AA NE ESR AN Fa eit om all 





stances in this case that during the long time of employment 
neither party, at any time, contemplated vaving or receiving 
any Compensation for overtime. Notwithstanding the fact that 
appellee belonged to the union and was in a position to have 
demanded pay for extra or overtine for Sunday work, yet he 
never at any time made complaint or asked or expected any 
other pay except the weekly pay of *35 and 838 per week, 
pospootively<* 

Counsel for appellanta is in the position of prace 
tically admitting that the contract provides for payment Por 
Sunday work, but becauss of the fact that appellee had not 
demanded such sxtra pay up to that time, eskakm that he is not 
entitled to recover therefor. We are of the opinion and hold 
that this position is not well taken. 

Appellants insisted that avnpellee was indebted to 
them in the sum of $294.45, as shown by the books kept from 
statements rendered by appellee, which eredit the court al- 
lowed appellants in full. The court then found that annellee 


worked on all Sundays from August lst, 1922, to June Isat, 


1923, making forty-three Sundays, which at double time amounted 


to $243.81; that from June lsat, 192%, to March 12th, 1984, he 
worked forty-one Sundays, which at double time came to 4254.1, 
maxing a total for work on Sundays of 3498.42, and that apnel- 
lee had worked for appellantsthree weeks for which he had not 
been paid, at $38 per week, coming to $114.90, and that there 
was *30.00 retained from the first moneys earned by apnellee, 
making a total, with the amounts owing for Sunday work, of 
$642.42, and that, crediting appellante with the *298.45, 
a balance remained owing to appellee of %345.77, for which 
judgment was rendered. 

Appellants do not undertake to show from the evidence 


in the record that the finding of the court as to the amount of 


Saba suws %0 evid nool eft ant sub send evap afd at eeonage 
“entv tooo 1o palved betafqmedago ,omit yas te py diag tedster 
+ art t ton att ncibostaitivioi -enidnevo 10% dofiseneguo® yas 

sed nd wottisor 8 of saw baa: cofnu oft oft bernoled eelleqqs 

ed fey pee zvebora tT exmiirevo TO Siixe tot vsq bebnemeb 
yas betosaxe to bavae vo Intelqnoo ebsm omit yas $8 “oven 
. Yoaw asin BEM bas Be? to ved yiveew ent tqeoxe yaq tedto 

| ". yLovitoeqe en 

-oang Yo aottteod edt of et ataelleags to? fesavod 

aot doomvad "0? eebivorg tserinoo ent teats antitinbs yilsert 

too bert sefleacqs sadd toad oft Io eeuaoed Jud . grow yshave 
paca ot! jad saateedae wei tects of qu yeq sitxe dome bebosieb 
blot bor nolntao ort to ete oF  .rotetedd tevoses of heli ting 

| -sexet [few ton ef motsitnog aint dads 
od betdebst Pew eefleqqe terdt boty tras, eimel leggy cowry oy iuyy 
mo? t¢e% axlood ets yd swode ef ,ah.808$ to mus edd at mend, 
-fR too ett ti bers cote ,cellsqqce yd bershoet etconesate: 
: peed Make tetd bayot neds tases ant, -{Ig7 of ejasifeqge bewol, 
Sof equ os «88 ef ,tef geugué mort aveboue [fs so bextow, 
beinuome ents ofduob ts eto tdiw .2vaboys ee th t~yirot. gotten ,&SP!, 
ef , Baer Br fore ot ,280f . tel soul mort tads. 715.888 of. 
“ta. past ot omeo emits efduob ts Mofiw , ay shore eso-ysi1072, bestow, 
-fetes tasd bos (SB. 80D "9 eye&bous go stow 709 Latot 8 aotvam, 
ton Sad ed dotdiw tot s¥voew souls ataslleqgs tot betsow bat eel. 
stedd fads bos ,00-.S1# of gotmoo ,xeow seq 88% Je .bisq need 
coef leaqa vd beoise avenom JetiT eft mort benister 00.088 esw. 


to tron vRHAWE Tot aoiwo atovome eft CItw,.Latod 8 gotten, 





AR. APSE ent ative etoxifeqgs antttbero .tedt bos e She SPE. 
“ Tot <TC.ABEF Go solfeqqe ot antwo bontamey eonelbd. a 

| | : i | _ besebret 8sw_ soemg but... 
sonab rye edt won woh ot Stas Tebos Jon ass ednellega a. ane Se 
to IoVvows ont of 38 hates and 30. no ibeats | eds. sadt biovet nen 


| 





Me pert 


sane put in by appellee on Suniays was incorrect. Neither do 
they undertake to show that the finding of the court is not 
correct; provided the same is based on the scale of wages fixed 
by said Local Union No- #1. That being true, we see no occaa- 
ion for disturbing the finding of the court as to the amount 
due - 

Counsel for appellee insists further that arnellee 
is entitled to recover from appellants for having consummated 
the purchase for appellants of a milk route from a competitive 
company, and for which he insists appellants gave him to under- 
stand he would be paid. The trial court did not allow anrellee | 
anything on this claim, and as appellee did not assien cross 
errors on the record, he is not in a position to urre -aid 
claim here. 

For the reasons above set forth, the judgment of the 


trial court will be affirmed. 


Judgment affirmed- 








65 ortd Pom. sdoert0008 BaK 


¥ ‘ 
ah arin 


‘evEteagamp>: co Ly ee epuet at & ii, esner toga. 





dl f 2 
appellete Court \ 7 ! Agenda Now Be 
Fourth District re Se tlie Oe Sea 
October Term, Aw De. 1926. ~ 

























DAA T IN 6) 
ple of the state of )} a oe Ws 
s upon the Relation ) 
» Hall, ) APPEAL FROM THE CIRCUIT COURT 
Appellant ) of ae 
WHITE COUNT¥<~" , 
se oe 
Sater ty. 
| Owes » iE 
> Appellee. ) Fp So (2) 
ee ee 
OPINION BY HIGBEE, J. agoruy \, 
Yoon Var. 
Mey TAG 
* sg 


This is an section of quo warranto to question the ri ght of 

o, George Sweeazey to the office of alderman from the third ward of 
ity of Ceymi. The information alleges that appellee in April, 19:5 
@uly elected an alderman from the third ward of Carmi and on the Llirst 
ay of Mey of that year assumed the duties of that oijiice, and hes 
thet tims continued to act as such alderman; that before the tirst 
July, 1925 he moved from said ward and has since resided in the 

ia ware of that city, end therefore, was not legally entitled to hold 
‘office of alderman of the third ward. fo the information appellee 

: ‘Plea of justification admitting his election as slderman and 

g that at the time of his election he resided in the third ward, and 
tinued to reside therein. fhe plea further alleges that prior to 
ection, ne was and rian then hss been emphoyed ag e@ superintendent @ 
sto rage plant located in the third wardy that his duties as such 
rintendent required his presence about the plant in the third ward the 
part of gach working day of the week, and sometimes on sunday and 
Ing the night; that he resided in a dwelling near the plant which he is 

' ‘and etill continues to lease from his employer; that about Juliy,19<5, 
et a portion of this residence but retained a part for his own use; 

8 wife and daughter, in order that his daughter might be more con- 

er 1y located to attend school moved temporarily into the second ward, 

t he continued to reside in the former dwelling in the third Ward. 

| Upon ® trial before a jury a verdict was returned finding appellee 
Lt a “Motion for a new trial was overruled and this applet pertect- 


ree witnesses testified in behalf of appellant. {usces witnesses 
ia i 6s¢ 















+t 20H gh wg, : ( #1u00 etalieqgA | 
Pena ' J he toluteid diwoG = 
; Di : »oeer ol oA or are stu Sui od 
¢> S o, Pi Ps nn > ; ieee 
£99 AI LS : 





A900 BEUDETO a MORE TAStia 
We nen aba 


Pa) ty edt no iseoup oF. otnerxam emp: to notion a9, a 
to brew be bib aiid govt matte bts te eottite ott of Yensont 
ase Leaah ah ooLieqas ada sogelia sot ten oak ost | 

fast ot AP hoe ‘byt00 ke Wea brkit ode seat adnies : 


Satie qe no ltare otal ext of tae ener ont te ne 


bne camepla es no NoeLe aid putts dbo, Bel fool tise ; 
bac ,bisw bridt eat nk Sebleur ed Rolteese ots to ihe odd 
ot xot tq davon’ eege Lie add art selq edit 


































of in substance that they had frequently seen appellee going to 
rom the dwelling in the second ward where his wife and daughter 
some testifying that they had been entertained in thet hom of 

8, and that appellee was theree One witness, a grocer, testi- 
hat he had delivered groceries purchased by appellant, to the dwell- 
the second ward, and had seen appellee there when making such 
ries. 

Appellee in his own behalf testitied thst while his wife and 
fer had moved out of the third ward, he had retained his residence 

t ward; that he retained a room for himself and kept some clothing 


ading there; that a portion of the time spent his nights and pre- 


A 
fake’ of his own meals there. In this statement he was to some 
“corroborated by the man and his wife to whom he had leased 4 

of his dwelling. Other witnesses were permitted to testify in 

1f of appellee to stateents he had ude to the efivct that he was 
oving out of the third ward,, but elation ing ,his tee phere, 
on was ‘made to the hates £ this, aS EEAMEA on the grounds 

: elf-serving and inconsistent with ps s eats: 

— the question of residence the law of this state is, as laid 
in the ‘ease of ae ve Shumway 222 Ill. 54, that the intention of a 


oe though not necessarily conclusive. To the same effect is 

: a liershall 80 Ill. 74. In Wallace ve Lodge 5 Illes Appe 507 it 
1d in ettaobment case, involving the residence of the defendant in 
. that declarationSmade by the defendant as to his intentions at 
when he left this state concerning his return were competent, and 
course of the opinion the following lenguage is used? 

eenleaf, in his work on Evidence Vol. 1, Sec. 108, lays down the 
hat the declarations of a party made at the time of a change of 

ce or jinietie, or upon a journey, or where he leaves his home, or 
‘thither, or remains abroad, or secretes himself, or, in fine, does 
her act material to be understood, such declarations, meade ‘at the 


the transaction, and expressive of its character, motive or object, ' 










ont 3 okt yatta 


: “ong bus — ie Aloe fing 


= aid gatos to caoqang ott xot sist be wa 


a “feet te” “euiae ‘oad of: 


a. aod ati. eovael ont pert ee 


B00) emt at £20 Cann aotere 

























rded as verbal acts indicating « present purpose and intention, 
therefore admitted in proof, like any other material facts". 

We conelude, in ceepadenes with these authorities it was not 
aamit the statements made by appellee,jin relation to his residence. 
Complaint is made of the trial court's action in giving and re- 
instructions. It is urged that the court erred in refusing to 

6 relator's instructions 5 end 6. 

Instruction 5 reads as follows: "The court instruets the jury 
 plece of residence ss used in these instructions means the place 

¢ the defendant as hesd of a household maintains his establishment and 
the ordinary business of keeping and maintaining a home", and 

ion 6 reads "the court instructs the jury that the term ‘residence! 
in the lew regcuiring an alderman to reside in the ward from which 
lected means actually bodily residing and living in said wsrd, and 
mere intention of holding some place as his residence other than 

@ where he is bodily present and where he maintains his household". 
th stated abstract propositions of law and might readily have been 
ding when applied by the jury to the tacts in this case. We are 
aetnton that it was not error to refuse then. 

Senpiaine is also made that the court erred in giving appeliee's 
etions 8, 9, 11, 12, 15, 16 and 17. Instructions 8, 9, 11, 16 and 
said to single out portions of the evidence to the exclusion of 
avidence. hese instructions stated to the jury that certain iacts 
din each one if established by the evidence might be taxen into 


ration by the jury, in determining the residence of appeliec. 


tepether commences they are not to ne See giving of these instruc- 
Our opinion does not constitute reversible error in this case. 
Instructions 12 and 15 wevinad the jury that if it believed from 
idence defendant resided in the third ward end his wife and child in 
ond ward, yet defendsnt would have the right to visit his family in 
2nd ward without losing his residence in the third ward. ‘hese 


ons correctly stated 2 rule of law applicable to the facts in this 


Peas es’ ae eee a A Oe Oo eens ek Oe be RALSS 
sor inemat bass. eaoging Juesetq. s. sibel <etee Ladzev. AB: ibebtager: 
s"adost Laliotea ioddo. qna.edll ,tootq at bets tube: exoteteds ote: 
tom gow tf eottixvodine eaedt dttw gnunhepons mt, ebmLesoose® genio: 
soosebtect aid et motdalet at,eelleqis 44. eben etnemetade oat timhs ot x 
~ot ‘bos satvig.a2 goltoe s'tiwee Lalit edt, to: shen: ab tnts£qne02. ate) 
OF piiuien RE bexrrs Sas0o eft tadi-begyy et gi.:: weno ktouatenh ga. 
ey eee 8 bas & euoitousient e'teteser: edt 
Cw sdt atesrsant txi08 adf" tewollot es absés &.noiteustenk + oat 
esalg edd 9ité via emottouigeat eaedt mi bees Bs-eotebizet to esada- enti 
bis foomd ba idatce- aid sai stiti ast blodeexod e to saat ea teabae'ted edt 2 
bite ,"emod s yiinisiatan bae satpeed to saeutend etensbte odd etosl 
teakehtnes* atot oft dsdt yset edd etourtent wus op, edd" shape & molsown: 
oldw #ort bisw ett al edleez. of, Aamtshla fe... anbttspey wal edt at feat 
bee” brew bise.ok gaivil bos gatoisex ylthod ylianios akaon beteete. esi 
fad tedeo: vouehlows aia. 28 spare, opO8, am fhLost to. Aoltaotet orem edt, 
‘F*btoidenren: ara eniagatan. ad. by Side. bile’ Sadewrq: Ritaed ek omen seca 
avec eval MbLa0x, tdain ove wal to enotdéieoqorg, toanteds: neds. 
Ste OW << .9éa0° Bids al etost edd. oF, waa edit. yd. ‘battens: medi’ aut bo 
| ; sued! eautox ot torte tom mew tL todd. motatao. oxi 
i ebetea di Siivigg ob bette, tiwop edt: dedd. ebam: oeieel- Pai ekamed » bt 
bas af ,£f ,U ,8 enoltourteal, 8 f one-0f. \8L,,8Li4 fine +8. sao2toss: 
te molsufoxe oft Ot sonebdive vit. te enottxrog.dgo o.(gnte,cH<b fipa, ond 
etoci oietreuo tad? yrs) edd of, betsta anoltourte ti: esed? «> Foonebd v9.m 
ogat meacsy od tdyta voneblive. edd. yd. bedsifdatee. ti» site. dose i benos 
svolleqgs p gonebleys aes aul ataxedeb nt. .ytst. eit, yd -aef Bt 0 
~ouaramt eaed] to gmiviy Coca od rs ton ors yedt ohanace cecienetie 0 
,esao: atd? at Torre oe ig eiutitanoo tom agob goinkgo, eaten 
aicxt bevetied tt tt stadt yrsl eds bostybs, @L pow .3f amottowsteah. .. 
ait Stine bas ottw eid bas brew buidd edt gt bebiaes. Jasbuo2od sousbive 
af yfinesi std tiety of saat edt ovyad bivow tusbaeteb | toy brew, bagoee 
_ seo bie bubs eds ot eonebiao ; eld Rateol trodd tw. baw none 
aldy of stost odf of oidsotiqys wel to. eat & betete itoess09 eiottas: 
gah 16 WEP aay POR: bi one te 
wcll 











AppeLient refers to and depends largely on the case of People v. 
flihorn 100 Ill. app. 57} as sustsining the claim that the facts here 

* 

boule be held to show that appellee had changed his residence to another 


rd after his election. 
In that case Ballhorn who had been elected Alderman for a certain 














ected to represent. Upon the facts in that case this Court held that 


llhorn had changed his residence. It was there shown however that 


1 lhorn had not only moved his family from tie ward he was elected to 
resent and rented his home to other parties but was also engaged in 

bus ine ss in enother warde 

7 Here appellee has continued in business in the ward from which 

) [ons ai which requires his presence there ten or eleven hours & 
‘but also reteins 2 room in the house where he lived when elected, which 
| occupies part of the time end cleims ss his residence. Therefore the 
lei ng of the Court on the facts in the Ballhorn esse can have no material 
aring upon the eonelusion to be reached upon the facts in this case. 

This case presented to a large extent a guestion of fact for the 
arye There was no reversible error in the instructions end the verdict 
ould not be disturbed unless it was pene) see the weight of the 
idence which condition is not shown ~ A Whe Fecar de 


ay No sufficient reason appears for reversing this judgment and it 


ae affirmed. 


ig. AR IRMED. 
Wt ly be. 
YY 















*¥ eigoei to eeeo edt mo Ylearel ebaeqeb bar oF axeter doe: hele 
exed atoat edd tad? aisle édt gatniste me: ea {4 sqqa -L£T 00L 4 





, tedvOne of eonsbisex sid boptads) bad. eeileqds Jad? > wota ot bie od ei 

; . “) sortoete’ eth vote i 

Miséies a tol aaatebla betesle seed bat onw avedifal seso sadtoats © ae | 

: oiew gedtons ofch ebiswredte yitrode bevom epineV’ to <e17” add at i 

aaw od Baow odd of minter of saw mettnetpt bextt) ata. date" hop! Eli 1 

vant Bhed tusrcS efdt seso tadt at atost vent oqu.. >, tnesetqet: ee / 

gals tevewed awode oredt-eaw 3 T: .  e@OHvbteet alt ‘bognado bed a 

cy Heioele saw od biew eit moth elimat etd pevom yino som bad a 

Ri begesne cele eeu ted aelttag ved to od° eed ‘aid botnet bits * the 

brew téddoms Bt age 

oldw gest 6rew eft ect eseatend mb bonatinge aad: eelleqca exroh” ages 

S eised soveie to sed exedd soneeurq ald estisper totaw (be ; 

diotdw, ,betoelo nedw devil ef osaiw easod oft mt meets enteter ete oh i} 
eis eroteted?. .- .vomebidger eid sa emtalo Baa emake oat woittag aetatoom 

-feftstan on evad ase esso axedfiiai oft at steat edt a0! fas00 ods to au 

e@eeo eldd af etoat eid-acasr> bedeads: od od Ne teslonca 8st on mies 

ony 20k dosti 6 meideenp 3 taetee ogral a of Sedmeastg ees: ehitsc bi cal 

toltbrev efit haa enoltouxseni edt of sore 6fdiaxvevses on eaw Seed? © nn 
edt to tdatew edt dee Uiteotinss eav tt eeelas hedteteto’ sd ton | 

ab moss a os s#ode ton at moitiggos dotte ve: 

ti des foergbyt eidd gnteveyer sot Stseqy a Aosaey jneloi Thase® ‘oft ! 


yg here. £ tts is 





BHT Sia 






Porn a HEN pala Seether eg REND 








No. 19. Agenda Woe 20-5 


Appellate Court, ae yy 


Fourth District, LR GR AG 
f S ? we Sel as 


Bee 


October Term, A. De 1926 jf | 


























4 Johnson, 
Appellee Fa 
Appeal trom Gity Court 


) 
) 
) 
‘ada ) ey 
| rans a 
h Feraud and August ieraud, ! . fe She 
business under the tirm nae Granite ithe S ge 
tyle of Feraud Brothers, ) “log ¥ , 
Appellants. ) eeu f 7 OS 
af 
oS g 
OPINION BY HIGBES, J. Sn e. 


on 

Bdward Johnson, appellee, brought suit in assumpsit aha 
eph Feraud and August Feraud, partners, doing business under the name 

‘raud Brothers, appellants, in assumpsit to recover eommission for 
Dalleges sale of real estate belonging to them. ? The declaration as 
ed consisted of the common counts and claimed 4925.00 to be due 
ellec. Upon motion of appellants, appellee filed a bill of particu- 
Is averring en sccowmt stated between himself and savpeldants in the 
ter part of August, 1925 for ¥9c5.00. fhe case was heard by the court, 
hout a jury and judgment rendered for appellee in the sum of 4 9452006 
,elllee in his examination in chief was assed if he ever had any business 
nsaction with appellants and upon snswering in the aliirmative was asxed 
t the nature of that business wes. To this question he answered "sale 
@ piece of real estate". He then testified that later he had a con- 
gation with one of the appellants.  Be—tit-net—deteti-thet-conversem 
+ one ofthe arppetients. He did not detzil that conversation but 


ted "we agreed that there was $1000 due me as commission on the sale". 


a that an agreement had been aa ekn as fhe court ruled that the witness 


1d go into further detail in the matter end the examination Erénestes 


follows: 


- ° E 
° Well, state whet was it... as nesr as you can? 


. I seid to him, You will have to the first of September, the third 
oe 


Sk gt aie FBP ee ; 
F - Trek ae Par = a - , ie ggt 
% , RES 7 * : ee “ ser 
= « a, 8 ce ene 


se 20H shiera 


1 TEHOD etal tequs ae 
ae . ee 
P. iar Jolstoni A¢apot 


{ osu uk as are! 1 eM c#00 
ER ad rf w Pana : 





ee See as eS @ 3 

< £ q < a3 ae Sa Me (ee 

bi0* aoe aees fasdia Gas winded hes ae meee ie 

a SN, ; ae : A ary se Big EOS tte em BY e 
im ox ee ali fi kas Wet Maes = eae pe 

woe ste t .buated deuaah Beto » bate | 
{ 
{ 





: es 2880TH. xa worse i 


$ ut ia fest 





eat ans” ods “gdb .ay ‘eduntaud antos éteatrag bueret ‘#siqnackon 

Tor ROkaatomos tevooe?r os” srequuees at ,stuslleqta yeredtoHe ie 

$2 Rot Fatetesb “ont <<? deat foe: qitsneted ‘edetae. isenoto Stee? ‘begets 
eh “ed OF OO JSS" } SutiaLoiine estapoo momeo: okt 40 bode ek 

A eH62TtAI Xe LLid <e Setht* Seklerda ‘yetasftoags. £0) ‘dons odsanelk: 
“ody mb ethegtoays om’ €ivantd ‘noowted ‘betede” tan doomone BAF revi 
esinst edt ¢ breed’ 3 daw sado ed? $O0s88e 8: Se aaer + tae aes 















elas" bexevens od ao Ba ou> ae of ies ‘seen! and pis ie rr. 
hues 2 Gad) ont retat taeda: aerniaios ned” ote cs / sterossie tani 3 to a 


oe 


* 





ed ) Lioda vetieqad’ Pike bode testi ons gnosis arse ca be 
~S L9a00 ° SS ed sta elamia. fon “Qa eaw ‘Hol taetevaoo ‘oa ‘tad 
eaealiv edt edt beLan” ‘fuwoo edt : sbodoaee ‘toed ‘bad th ‘tie 
metacanse Holjaningxe edt 5n8 re A odd aut Ltages redeaut 12 ott 





: aa 
— 





‘on this contract end that will.... 
On whet contract? 

_ 4 On this sale. 

Bas Alright. Go ahead. 

























ie And taking ten per cent of the amount of the first payment, if 
consider the sele was one hundred dollars in cash, two hundred dollars 
‘the 16th of August and two hundred dollars on the first of September, 

a five hundred dollars in ea note, that would be ten per gent of the 
mount cue, if we consider that the first payne 

= Well, go shead and teil the conversation there? 

Eb Well, that was the statement, that was the conversation between. 
L and that I thought I should ve entitled to at least ten per cent ot 
“eomuiesion. 

an. and did you talk about what the amount of the commission was, 

e entire amount? 

es Ae I couldn't state whether it was stated in terms other than thet. 
5 one hundred dollars being ten per cent of it". 

He also testified that he afterwards recuested payment of 
pellants, and that he was paid v5.00 on account, and that on two other 
asi ons he was paid {25.00 on account. He was again asked it there 

- been any agreement as to the entire amount due him, and over objection 
7... was permitted to answer that there was ab agreement and the 
jount was $1000.00. This is in pubstanae all of appellee's testimony 
nding to show an account stated. Qn 6ross examination the court 

‘led that appellants could not cross-examine appellee es to the original 
anusaction, that is the sale of real estate. This was on the gro nd 
the eetion being upon the account stated the original transaction 


ij not be inquires into. Upon the same ground appellants were 


. The three checks of §25-00 each given appellee by appellants 

e introduced in ovtdenees Sppellants testified that these were 

; loans to appellee and the checks were © marked. Appellee 

r testiiied sapt the word "loan" which appeared on the checks | in 
=Be 

2, 


ee 1690 ee "else abit 0. . Al — 
. “.Sseda oO ~ sighe ts ae 
ose . TaemyRe Aerte:t oat to. dayogs . edt fo. THEO. Leg oot “gi iolesy ‘OA oe he # 





etel feb: psvbowd od ,fase at sieilob oerband ato Bem. olga edt. rebtence 
aS. “te. dtele - : 
ott Ye. Fase TOG ated od bist ow pact ,ot0n s ae etetton bate baa ‘evit 

‘eSaemyed detit edt tans steb temog. ow tf 29a sa 






,isdvedqes to, gextk wt me etafiod berxbasit “owed: bas: te sf 





‘Toredt soli sesre TAS ‘ait Lfet bate beesds..09 - ellew fhe | 
tvew dod” “pdt ineievaeo “ott ean. tadt-, tnewetade att aa Sed, ALAM 3 why 
to « hic ¢ ‘ced fede. taseL ta ot- aoitt tag. ed oLoode 4, Sdapodd & fatal baa 


ra . [. S>ee a Late + J x Yi 
(a eee beedo on 


Seaw ‘Motentauos eas +o #agosie. edd tadw Su ode aad. 9%: pip, & ee 









=k 4 
Sor a: ¥ 
4 Boot va Ny 


Sate ance TOATG- euttod fis betede- Bow: vt nodded, iste thm. ae Le 
‘5 as ogt ie HOD ESz Bes Basen. 8 veLse. bexpaws ne 
te simeory 0 beteci pet abrawsetia: od fads. boltivess Sele, of Barge a 
xoitte oad ae gait one . aon D2: #0. OO 6845 Siag eow ent tadd. sales 
_. oredt Et- boxes shoe Rew 0% 2: -dastonoe. 80 00,85) dfaq. sea f 
notvooies <eVvo Sis eaik ond THEORA. etitas ony. oF. 8. See 











ou 62 ont uot st adtwoxe acre ere : b peek Rabies i , s 2b 
fanlgéxd eat of as- selleqis SRIGsxO~BBOES tom bin 90, poms wr i is 
bit otR ond gO BOW, att... .atates Leer te. oiaa’ pid ek. ede, Fy "9 2858 
faoltosatier? Lantyito ont betata. tngooos, ont “mogs a rr edt t 





“prev etasileggs. bE OLB - suse edt nog. . aaak. nana a LSD, 


ei Rs E ae. a * ne RE Hr MD Ble os.) feb ty a re 
‘ r : ‘ 4 oS PR OF Se Ee eS + ae 


orew veod? gaat bel tbdees perey ass dO 
eotloqqs bested: ‘ otew exioedo oat bee sottenas: ot a + eee 
at exoede edd mo beteeqqa fotdw "as0k" nage. edz | feat mentee) rere 












=e 


13 
eee Te 
ree 


i 




































idence was not there when’ they were given to him, nor when he cashed 
Hh It ig insisted by appellants thet even though this is an action 
pon an account stated they should have been permitted to cross examine 
ppellee concerning the original transaction, and should also have been 
eetteee to testify in their own behsif as to the game;}Sald to deny 

nat they had ever employed appellee to sell the real estate in question, 


r that he had anything to do with the selling of it. 
It does appear in the evidence that appellee did not know the 


arty to whom the real estate in question wes gold, and had never even 
eon hime In our opinion it is unnecessary for us to pass upon the 


yuestion as to whether,es this was am setion upon an account stateg,it 


as or was not proper for appellants to introduce aveeenee as to the 


Fig inal transaction upon which the account stated was based for the 


ason ‘that when appellee was asked the question if he had had any bugi- 


less t¥ansaction with appellants and replied that he had, and thet it was 


soncerning the sale of the resl estate, the question of the criginsl 


transaction was opened up and appellants had the right to cross examine 


him upon thet question, and also to introduce evidence in their own behalt 


ix connection therewith. It was therefore error to deny appellants the 


testify themselves eoncerning 


right to cross exauine appellee and to 
ct that he sold the 


appeiies's employment and to deny if such wes the fe 


real estate in question. 


Again it appears to us that the conversation testified to by 


De onilee does not smount to san account stated under the rule laid down 


5 
a 1 Corpus Juris page 564. It was improper to permit him to testify 


He should only have been permitted 
the wher ange question whether 


that an agreement had been reached. 


‘to detail the conversation, leaving to 


thet conversation amounted to an agreement ,emount due on an account 


g stated, While the evidence that the checks were simply loans to appellee 


te not entirely satisfactory, yet in view of the errors above referred to, 


we are of the ae the judgment should be reversed and the cause 
be remanded. 
VERSED AND REMANDED. 


Jultihee pratt 








bedaso od medw vom ,wid of osvig srew gedt intent: etedt on eon 
foltos 8 @f aidd desiodt nevedadd atnelleqas ‘Ud Wotatenk al’ ar 
OHiMeke seors oF hottintes geod evad hisode yedd beteds - tavodos ie 1 
Seut Oved ogle pinode ban  Holsovan ant Lantaiye ed? gftt ar vonon oefte 
quad OS lee a om: oxtt of ee ELadted avo yheds mi ¢titees oF betta 


| lobteesy ub efsteu fae7 edd liege ot sefleaqs begolgne tere Waa fide 


+32 to gubiiee edt itiw ob oF gai etehy! baw et eats 
on? Word tom dt6-ealleqae test Sonebive edt #P rasqua eens a” Fe?” 
Heve toven bad ons , bios say NOt teer Nf efetee [oer ott none ot ‘Ge 


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Fh, bedate tausosa as eqs gobtoe 


edt xogn 


O* ate a 
Hs caw atdd es woddods of a9 motes 


admellegqs rot xeqorg’ tom Bow ioe 


Sid oF as Soushive soubersns of 





+oteteo Leer ‘exe to ates ent Paes 
Of tHaix off bad ataaltenqs ine qa beaeqe. esw’ ol Feet 
SE sogeblve eorbortat. of “08 fa “bun! iokteens teat mogs a 
edt asnelieqas ured of ‘YOrre exeletedt gow +7 sd tiwetede no} o0na08 

Eointagnc0o gevivameds Ctitest ot tne eelleqes entisxe dora. a 


SULISKS seoys 


tiasied ve ghoeag 















¥d of bok 


tigeot moltserevace ent tedt ef o¢ widieas de ata. 
Wop 


bial, ales ett vehas betats. ftsoocs ms ad teetriis fon boob « 
Btitecd of mtd timeay og reqorgmt eaw eI oi age: 63sq etcat : 
bess Inted ised evad yLite Bfuoda off beioser asad bad taseor 


tedvedy. xeiseerp ony _ dco ent of Retreat eal ct, bi : 
deena i# 6 pub 7 fu onay, tHeMevserga ge Ot bottom Bes she 


oifeaqge: ot sasol uate. orew ‘edoede ext: Sane eoneb tve bat ‘ertay oS a ete 
o¢ botieter svoca exorze eat te wolv at sey oCt0tes tet dag stax! fi a 


arao edt baa. Seexevert: od | 6 Loode drteng het a ‘otto o: 


Sal Feet. 


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URCHASAR Ghia .d@o mse. 


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Noe 2e. Agenda No. 41. 
Me ny 
Appellate Court, ee 
October Term, 1926. bl Ma oe 
Fourth District. 1 a, i a 
Pha 9 : \ aot a: 
Go Ca von 
| of 8S 
2). 
e Durbin, } J. ee! OS 
Appellee, } SAA 
Appegt- from 
VSe ) “sy 
Circuit Court 
ago and EBestern Illinois 
ilway Company, a Corporation, of 
- Appellant. 
Eftinghame 


Cu 


STATEMENT OF THE case & 4 

’ his is an action ef trespass oe oe aa brought by Irene burbin, 
ppellee, against the Chicago & Zastern/Railway Company, appellant, a 
ole personal injuries sustained as the result of a collision 
be tween the train of appellant snd an automobile driven by appellee. 
) | trial before a jury a verdiet for $4500.00 was retumed in favor of 
ae after motion for new trial was overruled judgment was entered 

n that verdict to review which this appeal has been periected. The 
leration upon which the case was tried consisted of one originsl and 
two additional counts. The second additional count charged both willful 
nd wanton negligence on the part of appellee. At the close of appellee's 

déence the court on motion of appellant instructed the jury to find 
appellant not guilty as to the second additional count. fhe first count 
of the declaration charged generally that appellant so carelessly and 

ligently opersted its locomotive engine toward, to and across the high- 
crossing therein mentioned that it collided with the said eutomobile 
eaused the alleged injuries to appellee. The second count charged 


lure on the part of appellant to ring the bell or blow the whistle on 





said locomotive engine as required by the statute. fhe evidence shows 

t the sccident in question occurred at a highway crossing near 

Pp llant's station in the villege of Mocassin. fhe mainstreet or highway 
Hoeassin known as Effingham street runs east and west and appellant's 


k erosses it im a north and south direction. Appellant's station 


-1- 


\ 


& « e / ae te » 
Ye 
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‘aed hig af my Pe UC ei tas ‘ 


»id sO abmoga | | diye cit pa ep 
; : ‘: 3 “7 . ‘ | z m : | da . * 
ee .trewed etatt aqqal o See Aer maige 
eee me O26! wre? aedeted shires) ote 
ons ear fees TOIT EM Rowe F Oe ee 
Satie ee es mays 
a, af & ~~ Ss gy ter ag See 
Gey * 5 re ae Ry ; ' 
Set ES Oe “ gee a ae as 
me ae bolleaga 
w pean : : 


ct hoe tea hgeee ae ~ 


ae divorty - we 
@ Roxb til metes & boa. 


Ne 





to jaottexogz00 “a eheqnee: 
eas fd wey pes ne . 
sMadanktis rack teats |, ASS 5 
er ees em etn a, Glen. COA ea site 
) OR ED (6 Bie Be a AD HUP a0 aura 
3 3 — me ae oa: ess ee 
okevsd meth APs f axa venus ys 5 sesqeors oa MA 6 
‘ 2a atontlIT : 20 mold # oa ma ad 


at teal loage - yagi od Wow L toi \gretact ry ogne do edt tantags: 6 
A aa 5 { fe) Re 
m0 betLics, a to. fine ox ont 8s bemtatasre bebemat isaoere £0t tevoo 
Prins a wae? dette 
eee oe yd navies aLidoaesse fis Sate tsi toags ‘0 Alert edt seews 
ai, OARS aR a aa 
te. sovsi BE bo meicto1 32 00 o0aeg sot forbrer 2 weak id 0 tod fatst, 
bexetag eau tueayant be Liryxeve eal Lain wou zot so t¥0m er pehrs = 
“soit Papas. fae aaamaay em 
on. sbotne tog Hie ac ead. foeaee a tale dette wolves a4 SoLozey Abese ! 
a oe Shey ES ty ee ee ro) ea? ET te cane 
bata Lestaive exo ‘te batsrence belxd enw enzo. ‘edd do tdiw mogs sold: al 

CORES pal UE eer gia. sinker 
fe bitew dood bagrade . tas0 9 Aanotttoba baoove oat _ sadEmo8 fanot tt 2 0 
ae x Pave ef asa ies oh TET aia 
tupiloage to 680 Lp edt oh ssoitoags to pat oat no sagen staat aotisw new 6 

eee eer ee ts ee 

rs: of beat ont hesourdant jaslfeqas to notton Ro ¢2g00 ed? — 
Pk tr Pate ged ta + BSS 
tewoa gexbd ont (ARTOD: {anat #toba boson, ext ot ee YWitms ton nm ie 
Ga gaa cae 2 asane arg : 
“bas elaeelezpo 8 tnalLoqae todd pilereaos: bogredo, noktetaloeb ent 
Ph ONS eee ey 
“Maid ad. svor0s bas oa + bra0s, oniae ovitomooes eft beste eqo. yltoog tls 
POG ea ene EY aa aie 

el idoncdue bios. edt dtiw, pebiLics a todd ‘benot son oo ee 
“ash feegs Gis y ree 
bagiacto $150 9. bac0e8 edt _seelionqe od aotsotat Leth oe ‘besya: 
a oe eae U% ee 
no eftekde add wold to ‘Led ‘oat guts of $mal Loge to fs tae baa ex 


RE ee = ‘eee ae ve? ge 
swede penabive: e sotutate ont d spot se ontan omooaL 
at w boat ven Pete 


Se Ms ot east an ; 
teen gutssone yewdg bet 2 ta bovzuvee, aes ssesp at eee ‘tes 
perish 10 teortenton oat sstonsoa » ae hoes i oe . pis 

































ne 
a 


Belcweco oa 
ese Be Rina 





























| about 200 feet north of the crossing snd west of the railroad track, 
Zh does not curve until it reaches about three-fourths of a mile 
th of the ‘erossing. Just north of the highway crossing a switch 
rack leaves the main track, on the east side thereof and runs to the 
jorth for probably more than a quarter of a mile, Appellee testified 
. on the morning of April 26, 1924 she left the home of her friend 
ie kyle in a Ford roadster belonging to Mrs. kyle's brother, a 1923 
1 with the brakes in good order. Mrs. Kyle drove the automobile 
1 the store of William H. Homani; was reached where they stopped to 
zet some gasoline. This etore was on the south side of #ffingham 
Street some 200 feet west of ESRB Groce, and was located upon the 
south edge of the highway. About 24 feet * east of the store was e 
‘about 10 feet high oe 16 or 20 fest wide east and west. Bast 
ahis shed was the Heman'e dwelling which wes located sbout 20 feet 
south of the highway and sbout 100 feet west of appellant's track. Hast 
f the dwelling about 40 fect west of the track and 15 or © feet south of 
e road was a trees 20 to 26 feet tall. About 10 feet east of the 
welling was a small garage that stood back of the house. Bast of the 
Slling and west of appellant's tracka were also some driven posts and 
111 shrubbery. After getting the gasoline appellee herself drove the 
Appellee further testified that after they left the oil staticn 
he thought she heard a trein whistle to the north; that she looked to the 
south and saw no train and she then looked to the north and saw a train 
oming from the north; that at that time she was 45 or 50 feet west of the 
ailroad track and was travelling about 8 or 10 miles an hour; that when 
she was 4 or 5 feet west of appellant's track she saw the train coming 
from the south; that she put on the emergency brake and also the foot 
brake, bot Was wmable to stop before reaching the track, and the train 
truck the automobile; that when she recovered consciousness she was on 
‘$he ground, and was later removed to a hospitel at #{fingham; that her 
‘limb was broken, and efter an ex-ray was taken an operation was performed 
a her, and she remained in the hospitel three months, efter which she 
was taxen to her home, and has not been able to use her limb since; that 
«Be 


a 


,toaxt beoulkex edd to teow bas gakeaoto eft to dixom test 008 ‘node. 
ofin s to aidtuot-oe ts 00 8 gedoset $2 ittos evans dons aeob fot 


s 


dotiwe s amteaoxo omnig te edd 2 déron tout .gnteoviswedt to. aaa 
eit of saya bas to ovodld obits tens ond io lowst tam edt eevael os 
bettivees oelfeaqca «- olla 8 to tettasp a ont erom eldod oe a0 its 


ae ge Le 4 


baoki! toi TO ood ous fie! are eSeL ,ag thea te gabertom eat a0 te 







&ser s sodtord e olex Sea ot ssignoLed rotabact S10% a ak efca ote 7 
nee Re «ase 
olidomodsa oF evorb aly eeu sr0bT0 boos ae soderd ie dt, 


ot poqaots contd oxeiw bedoser aoe fixamok oH makitey 3 to etota edt its 
aadigat 228 te obte disoa ont io ean erote eit? vomtloneg amos t 

oat soa hess OL eaw bats .Soor? ‘tnalegae, te sa0m toot os ‘entoe test 
& Baw exots ont to tess . toot 268 tiroda vvomtyad edt fo. cate ate 


- tail ; 
toot teow pata , fase ebly tet os 10 aL ‘baa ghd foot ; % 
R ene 5 lige SRS, Ree 





teat O8 twoas bed aol aa8 dotdw gat ifenb @' nemot ext eaw bets etdg 

ies ADE MAL? See 

teat ‘vigent ‘e'taalteqrs to teow toot o£ tsode bas ‘yendatd’ ode zo hg 
es + xa at 3 Ss 

to dace ‘toot mR x0 Lf bas ‘dooxt vont? to teow ‘fost ob tuode gubllews ae 

: PORN So oe ele ee 


eds ie se20 geet on tu0dA List toot as oF 8 ‘eont a saw baor a 

edt xo dass - soauod “edt $0 Sood boote fade ones Kiso 8 eaw ‘gate te 
bas ateog sovixb 9 eat 08 o6Le ere exossy e' tnasieqas ‘jw deow baw 30 
edt everh tiered seitouge antioeas edt ‘gnisten weit  setoadonte a 


ik 5 Liedah BGs * 

wot até Eko oad tes outs retts tact ‘bolt seer reddzat oe ee : 
exit of bedool eda sadt dixon edd og eitardy tex’ 2 Stead "ella: taguod 6 
pF ee: pag? OS FRE a 

aber a wee bao Agron odd of beaook noits ‘ods one atost of wae bao Ate 





ee es eg ; phe 
ads te Seow toot 08 to ap aew ada omté fade ‘te ‘tout adgron edt pk oa 
SE Md 33 


ned $ads ixood ‘Ae aoLia Of “0 6 teow ‘gabtiovort sew ‘baa deett 

peta LRT e Aig psa 
-_gatiteo nba’ odd wae aris doot? ve molroqas to ‘teow toot a m0 ma 

if heehee: | Sage it 
foot ais oats ‘bos edsrd od ‘ont fo tee ods. tadt ener: ‘edt - 
Hi ey: i ae eer 
Alot adi paw rdoass wri yaldiones roid qore ‘ot efteas eew tad ous 
Sides hts Sale SU Meee OLB, 

m0 BSH aria -aventenolsartoo berevooer ode ‘aodw tad ‘oxtéonotua add do. 
: ae) AD kate ea ee oe ao Sen, Pree ee ek ‘oe 
“ed tedt jmnacign 228 Qs Lat geod a “ot bevoue: zotal ‘ew ona .deuroxa @ 





Re Se Acar Bee Be SAR Rs i 
“benso%x04 aaw He? 8 ax9q0 ize) nedet ean 1 UetHE® Re cadin ‘bas , fexord 
he a a Maes it 3) er ses ELAS BAG. bet, ae Rigid i < 
vita dot dw nofts eddnon peng f Lasteaod ott mt benteset fe a0 
ie ES As i Ra aac eS Rae AR ae ag PARR ES. a word ; 
“tadt peouts pert: ‘xo ean ‘ot elds seed ton ast. baa eno ‘ted ot oat 





aR fen 


Pt ’ Ph By a 
Ay i } 




























he aia not remember mesking a written statement to appellant's clsim 
“e won April 50, 1924, which was introduced in evidence as defendant's 
nibit 2, but stated that the signature thereon appeared to be in her 
hs ndwrit ing; that she did not hear any bell or whistle sounded on the 
eS from the south. lirs. Kyle testified that after they left the 
ng stetion and as theypassed the Homan dwelling she looked to the 
and did not see any train; that she then looked to the north and 
the train coming trom MA direction and continued to watch; that 
about 5 or begat /aypeilant*s track she saw the train from the 
uth and jumped from the automobile; that the train from the north was 
the west track in front of the depot and about 200 feet north of the 


wae 


rc being when she ow it; that she did not hear any bell or whistle on 

o rain from the south, and never heard the train from the north 

listle. This witness was also shaw atiatenca statement identified as 
ndant's exhibit 2. She admitted the signature, but denied the last 
ortion of the statement. : 

3 Jesse Doty, a witness in behalf of appellee testified that at the 

se of the accident he and Walter sytert were unloading grevel from a 
‘standing on appellant's switch track about 200 feet north of the sross- 
and that when he first saw the automobile it was about 100 feet west 
ppellant's track, and was running about 8 or 10 miles an hour; that he 


the train coming from the south, but did not see the train from the 
until efter he got down to the plece of the accident that it was only 


& few minutes after the secident until he noticed the train; that he 

x heard any bell or whistle warning on the train coming from the south; 
: the train from the north was about a quarter of a mile away when he 

t noticed it. fhe witness Walter L. Syfert testified he saw the auto- 
lle leave the of1 station end noticed it before he did the train coming 

1 the south which was something like a quarter of a mile from the cross- 
when es first saw it; that the automobile was traveling from 5 to 15 

8s an hour at the time it left the filling station; that no warning of 
Kind was given by the train from the south; t. at he eal the train ae) the 


north, and that it was pulling in on the switch w her train w 
ming from the south, and that the train to the -nortir wes then-about.a- 


he -3- s 





oa 


wteafo a'tesifsages. ot tronetate xo it hw & aah atet sein ates tom 18) 
-elfuepaoteb ea eonebive ak heosborin: exw dob Oe Lr (08 ‘fbx 04 





ted mi os of beseeqga nootedt owt emg a odd tabs betare tad a oo 
edt ao Bebiuuton aidetaw xe LLod oy ‘teed ton. Oth ede tedt: _ tp tage 
eid JieL ysit tedte tadt beltiteas ef¢a arti née, as sot? a: 

pit o¢ bexool. exe gaitlewb nemok ent. boeeadyert? eB baa fot tate Bat! 

bas déwn edt. of botool madd oe tad atest wate eee tom 2b ba 


tads sdodaw of bemmtises bas not toot % aozt auton ate 





edf mott mtatd edt wea ede xoott e*taeLfequs\see% a te -) seeds: at 


asw Afton ent most atasd edt gady. ipPagegeerre eat work beqauy ha 


eit to ddrom Joot 00s iveda bits soqeb oad to tact? at xoort F re08 ox 
no eltctiw xo fied yna tse tom bib eis - tact it wee eae wedtir gitkat 


see 


at 





ivzon edd. mort atary ont brie TeV on bas* dtsroe: odd “moet . 





as belittineh! taenetata pengte ‘trot 08 Le ask asont be. ‘ata « eat 
teak add bel sep sud souwtangie ong botsimba eae - PR tedtitxe, er tnas 
Seas taster ate: odd” fect uy 

edd. 3 tett peltiteot-esliecis 6: Leaded at saenttw: 2 yetoa seeet 
§ @oxt ieverg aelseoLes etew trotye reticd bite ott. Faob Toes ‘ent i 


“SHOTS odd is. Att On Soot 003 thods asar?’ dottwe ottuerteaas 480" ants ~— Z 












ed deg j wert ns seLim OE to a toed a gictnnwe ‘enw sia “aes ‘rank Péine 


Bt Gees 
edd mort Sisrt odd see tom ‘BES sind. Agwoe oat mort gain ‘otate “edt 
eine asw $i ‘tas din S nbs: ett 46 esata: ons: ot wed tos: od ‘tte ‘fite at 
ed tad? potert edt peottox” 24 ittas $0952 860 edd teste eorenta wr s 
jddsoa off mork Satsce mi est eas te ant ante oftat dw 16 ited “en: eee 
od meds (ewe ota & ko ‘TostaLp a “30d: saw sveon odd woz aterd “edd: 
-ostis ed? waa on: bet itsaot trots ad todist agent tx of? ii ah bootten te 
grision mtsxt old bro ed sxoted dt bootton: brs mortate Ite edt! ovaet 3 
-seoto oft mort ofhe: a sodtanp 6 outs suistenos eae ‘dot aw aise: eae 
@£ oF & mest guitevert sae eltdonotss ont ‘tart et was toate ant i 


to. gatirew oH gadt jmotdate gabeit t edt ‘tot a “Oat S | add fa. “sured ae 


ot ahy WPats WEads AS Aged gatped gat Bow, atox? oa od? us rghit gin bas 


2-d80d.s neds. BBW iinet eeu od tedS Bas ,diude cae mort gat 
rr 





Aasern 

























le away. This witness was asked about a cut in appellant's right 
PY iy south of the highway crossing, and testified over appellant's 
Mition that this out/about three-fourths of a mile south of the orose- 
and was about 12 or 15 feet deep. Dr. F, Buckmaster testified in 
if of appellee, that he attended her while in the hospitsl, and on 
morning of the 28th of April 1924, operated on her fractured limb; 





_on-dpril 29th, the day following the operation she was quite sick 
excited and at times was in a condition of semi-stupor; that the 

[ote ry, reasonable and ordinary charges for services such as he 

ered appellee would be §500. or $600.00¢ Omer Hill the chief operator 
aepeliaxt at Mocassin testified that it was a part of his duties to 

ake a record of the time that the train from the south which collided 
ith appellee's car, and the one from the north, arrived, and that seid 
bord showed that the train from the north arrived some considerable 
inutes later than the one from the south. He stated however that he 

no independent recollection of this matter, and, upon objection of 

he appellee, the court refused to admit this record in evidence. 

8. Heath ,conductor of the train in question testified that as they 
Oached the crossing that moming he was riding in the caboose with 
emen Rolls and Peet; that as the train approached the whistling post 
engineer gave one long whistle, and as they neared the crossing two 
and two short whistles; that he looked out and observed the signal 

at the board at the station which indicated that orders were there waiting 
™ him; that when the train stopped and he went back to the place of the 
cident: that he did not see the accident, but that as they were carrying 
p6llee into the depot she told him her brakes didn't work» Sehe- brakeman 
ot testified that «s-they-approsched -the crossing he was in the caboose 
the train; Aiat the whistle was sounded for the whistling post and also 
r the station as they approached the crossing; that he was on the leit- 
: side of the caboose at that time; that they were tasking appellee from 
ath the car when he first saw her, and that as they approached the 
sing there was no train coming from the north; that he looked to the 

h and could see for one-half mile in that direction; 


“ae PJ 





tigi t e'iseliegaa at dye s duds beves saw -ecenttw alk? - ows oLh mt \ 
-atinel eqges tere bebiréeet Soe ,gtteeoro Yewdgid edd 2o.désoe. ws" 
~aacte oft “te divee elie a to eddinoi-soids suods a0 eid? tadd. attest 
at bet lites? tedaandom «1-<ed ‘eG 90h Teet aL-s0 Sf dwode saw bee 9 

ne bun ,fetiqaed ed? ak eftdw toi bobmetts od todd -,celleqqe to Rise 
cdteki Setutoatt test ao: butatero eSOl Litqa-to as6s- ait to aterm ¢ 
uete eatiep aaw-ede aotteneqe edt antweilet. yab ond. +8103 Bu 0 te 

. edt talt proqate-ises’ to s0ithotos c gf -aew gomht J3. bas bottoxs + 
@d Be done -eooivide .xel ‘segrade yest bio: bas : elt anoeses: eTrante 
tetovedo teldo:adt LITH 1am0300s008¢.t0: 6008 ed: yb Laow collegues bexebs 
od asiini eid te disa o aew ti tad bobtisaet atcanec te, tuaLioade, 
bebilieo doldw digoa edd mort ater? edt ted? emty edt to breet 602 
bies Stadt bas. ykavtese ,ddvon edt moth eso .eds. baa. mee a eel fodga a: 
eidatebianos enos-sevitta dtyosodt moxt miog® odd edt: ‘bewode bres 

on tadtiaovaeod Betate ah. das ca. aad mort, ene. sdt- aedt etal eotue 

te agiiseide-negqr , bas ,retted-sidt te- wolteeLcoogs tupbiteaebnb atk 
wonenlve at brooex etdt thmbe ot Seastox txsco edd. oe kbega 4 

gedtie2 fads Beilitesd moitserp a2 ofest edd -to- rod ombmooy dd aH: «8 
ddiw esootse wdt ah yatétr- ess ad-gnimow tadt- guivecrs:edd botovowt 
sa0q gat iteidv. edd .betosoiqds atatd odd as todd deed. has a Los meme 
ows gatesoto. eit hereon godt sa-bne ,eftaide gaol ene -s¥38. rooutgae ¢ 
famatc edt bevrogde fae dup bedool ed stadt. jeettataw. ‘trate owt: beara 
guidiaw. ersdd etew eteizo godt beteotbal dotdw-noitseta sf, te. Based. edd, 
ed? 36 eoafq edt of dead. taewred bee heoqqotaatatd. edz. spdwetads oa. i 
Buiprtao erew Teddies dadd dod. ,dmebloos: add. dea: tom RLE: od. dads rtaebts 
Saneiard. oth gaxow ¢'nhbto aeaertd ted mid bLod- ede soqep ent. oFuh 90 Lied 
es0odss oft: ai-saw ad gatesvee- odi- Sedosonge gedd-we tadt parson a 
oefa fia: taog: gittitaidw ett tok. bebages saw. oltetdu ont toch gatas. ont 
“dies odd so uew od todd ygntcnore oft boddnerads, yent aa-aoltede -odty 
mort selloqqs: antuss orow yodd add pentt: dade. te ‘@a00dsD: wht tobe be 
ett bedosoraqra yedt) aad adt: bas ,.xodswaes tent? od node ten ent itso 
vodt ot bedooL od tad: yeitrom edd) mont: ‘ BaRoo Mets, caidomad fei 
Mus Qe a int ES Gay pe Fat x rd Gable: cast eras ction esti meee au 


“ye 












































That he helped carry appellee to the depot and heard her say her 
kes would not work; that es he went back to the sation Me looked to 
north and paw a train headed in on the switch track about a quarter 
of a mile north of the depot, Brakemen Rolls testified that he heard 
warning of the whistle at the whistling posts and at the crossing; 
that the first time he saw the train from the north was when they were 
returning from the carrying of appellee to the minister's home; thet when 
the train stopped the caboose was three or four car lengths south of the 
ssing, and that as he got out of the caboose to go up to the atotion 
© saw appellee and the automobile at the side of the track, Albert Day, 
section foreman for appellant testified that at the time of the 
aecident he was about 500 fect east of the crossing in question; that he 
had just come from the depot down appellant’ s'track to the crossing and 
then turned east to his home; that as he left the crossing he saw the 
trein about three-fourths of a mile to the south; that prior to the time 
he saw it, he heard the whistle for the whistling post end the two long 
end two short blasts; that after he reached his home he could not see the 
train any more until it got within ebout eighty or one hundred feet of 
. erossing, and at that time he saw the automobile approaching from the 
west, That he ran back to the scci@ent and helped carry appellee to the 
depot; that he went to call a doctor and when he returned the train to 
the north was then coming in on the switch; lizabeth Haase testified 
in behalf of appellant that at the time of the accident she was living 
ix the Homan house to the west of appellant's track and just south of 
Rffingham strect; that esstket-dex at about 11:50 on the day of the 
aceident she heard a train whistle just ss she wae ready to start from 
@ house to the street; that she saw the train before she left the house 
and it was then four or five ines feet south of the crossing; that she 
20 1d not recall how many blasts of whistle she heard; that she did not 
see the automobile, but heard the crash; that she did not look to the 
rth. On eross examination this witness testified that,on further ¢ on- 
eration she did not remember where she was when she heard the whistlee 
We He Homan the owmmer of the store and dwelling west of appelaant's track . 
stified that after appellee and her friend had started the automobile 


-5- 






sot yao asf brood due fogs odd oF oofleqqs Yxteo beqied af ted A 
ot Sexecd wi Aotfate edt of oad thew ‘ed ga dates prow tom: bisow- isi 
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hice ef dat? belitdead a Lieh eemedesies etoqed ett to'dteom! obi 

igtiveowy odd Fe-dere ade og ‘gotlielmr edd ta eitebiw ext 26° gabe | 

ores yor mate caw dtxox eit mort Abert “odd waa elf ents fertt att 
aedy Fatt pened atedehiter add ot weLleags ke antyTTeD! edt sont 
eis to déves. adtgael tao as0t. 20 estdd’ enw ‘secodso eift bogrore "atu? 
noitete eat of au OR of Se0edED edt to tuo! toy edee teay tam \ganten, 
Yat Stata tests edd to ebia aft ta Aiibdiodo daw corte bec: woLeqaa: wae. 
ad? ‘So oat edd te Sade baitiiee saa ileqds: sob Bonyeot mebtos 
od fail puottedin’ af gilea@ore ctiy ‘to tees tow% O08 dwode sew aah toh 
bis Gilugote vid 0? sootvedtialloqge nwob toyeb wih hott ero tyet-s 
edt wae ef-“gateeote edt $teL st ex Tadd; sated wid od dese Bethe aka 
omit suv: oF soixq todd pitwor ott e¢ sfim “ste! aditxsol~vvnds dreds ats 
anak owt odd ‘one Se6q ‘gatitaidw edt cot »isebiw “odd: baer orl VE wate 
edd see tor BLivo sh andd cid. bedoaot et codts pane qetansd daotts ane | 
"ks Jook bevnmt Bie “to ytdgis tvods afdéiw te, ti Litre ovom eawats 
odd Moxt gitdosdrgye ofteowstnm odd we on cinke daatd. te bn! gynbeters. 
eit of Seitedse treks baqist bus taebl ose odd--0F oad tee tarrnsis se 
od Slaxd sat demutis of asdw has wet.0b-s LDso lob tiem et tat 

Beltivaed dessl died aatie’ “ydee tee edt ‘ne at gatwos matt ese 

gatvil ecw ede duebfoos edd Leen s ont te fant. vnslleqaa ‘to-Ataete: 

“to dé@see tact bas doetd a'Soalleres to teew: odd “oF -onstodt asinelh ont 

“edd So yeh ent no OG: ff trode te geb-tediese suitd qoorwks mia: 
ont trade of qoner aw ete detent oftetdwantiens trina ite 

saved aft dtef-eda oreted ntotd ade wid ede. ‘ted; Svonds “ett ot Rance 
ene ted? patldeots odd to Atnoe tout ‘oxbeod ert x0 ever mode: aw ot 4 
: Pome bth 968 sade shtsacd bade eitet site etesld: Verret wont é pare 
“edd-ot Bool ton obb Sda fade yteete’ enh preed ded etidouedye odd « 
onoo taildiut Ho, tadd bot tidest Baers tw ate nor toninaxe:2do%e '80 ists 
-oltstiw eit bitpet ete sodw ecw ede eves sediener toms26 ipurhinabies 
dost @' dosalsgge te toon aalilerd ba tote coeds to pest 
@Lidomotss edt bedivte sat baotzh os tm gokcouns noth aa: baat 


en RL are 
























































heard a train whistle end his recollection was thet it was one long 

and two short ones; that he then stepped to the east side of the 

saw the train to the south possibiy 800 or 1000 feet from the 
that he could not distinguish whether the whistle he heard was 
a train to the north or south; that in a statement he formerly made 

/ said that the whistle he heard he took to be a whistle of the 

to the north of the highway. , 

_ A witness for appellant testified that a Ford automobile such as the 
driven by appellee with brakes in good working order and having two 
engers could be stopped in about 7 or 8 feet while travelling at ten- 
es pe an houre Appellant introduced in evidence a signed statement 
erning the accident which its claim agent W. F. Tweedele stated he 

red from appellee at the hospitai on April 30, 1924, and Which she 

| over at the time and stated &% was correct. This written statement. 
rrea to as defendant’s exhibit 2,is to the effect that appellee did 
look to see if the train was approsehing as she was interested in 

ing the auto started and if she had looked towaré the south she surely 
a@ have seen the train approaching as a person had a good view to the 
uth with no obstructions between the track and the Homan dwelling. 

: : : tise testified that at the time this statement wes taken 
pellee told him that she did not look to the south after she left the 
filling station, and that,if she had,she probably would have seen tne 
train; that when about ten feet from appellant's track she glanced toward 
uae south ané for the first time saw the train coming from that direction. 
Appellant also api at in evidence a written statement purporting to be 
stened by the slay Bessie Kyle, wht@htyg? C2Br 26028 he secured at the 
same time as the one from appelles. This statement, however, the court 
: upon object ion of appellee,refused to admit. 

| The statement purports to have been taken on Wedneoday, april 50th, 
“two days after the operation. Mrs. Kyle,also testified,that she walked 
ong beside appellee as close as any other person as she was being 


house 
arried from the depot to the minister's hoye , ond that appellee did not 


there state that the brakes didn’t work or words to that etfect. This 


witness further testified that she was in the room with appellee when the 
ie io 


ee ee 
anol emo eow J: tadd eaw mobtewllooes ald bas. eltetdw atery,¢- 19 
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any btaed od eltatde eft sedtede datigaitels tom ’Leoo: ved add ; | 
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ett to eftatsw s ed ‘ot id of ogned ed eftetdw edt Feit Stee Bes 

| Cavidgid, edd Yo Mtvom ont ot um 

sit ee deus oltvondtse Brod 4 -tendt bettiteet test ieqqe sot secttiw A. 
* wd Bub vad' bas vebio sakdxew boo3 al eedoxt dtlw eeLleqaa. yd nov Eh 

- fet te gut flevast eitdw teetk: & xo © tuode at beqiode et bites eregnee 
judvetsta berate a sonabive ni beonbortal dasifoqqa . .isod me ee 86 
ef Oetstea eleboew? .4 . dmege Mtalo ett dotdw teebtoos odd gatirten 
‘edo doidw bas SUL 0S Lived no Lediquod alt ta wellegas net bors 
inviolate avtéluw std? toors00 caw kk betate bad emit, edt ¥ reve w 
&Lo seileqqe gadt teekie edi of af Ss tididze e'taebaceted ee of boxze 
Si beteoxetal aaw edb ao gutdonotade caw miss oat tt oea of sook 
qietms eta dtuee sft firawet bexool bed ee i baa bedreve otus ont ‘guts 
et of wel¥ boog & bad soste, » es guidepouqys aterd edt ‘meee ‘eYat “bE 
“gait iow femok oft has Acard odd. mbewted enottousteiio’ ‘a ate a de 

“ é dad oem tuametate cist amit Sat te Pad Sobtitaes eek 

eit thel- edt xefte divoo oft of dooL, tom bi ede ‘itd ott hicoal aecte 
‘edt neve svat bisow yidadorq, eda oat oda ut, tant das >“ hotdeta gXEL 
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stad toon b fads wort salar abaxrt add wae. ants: dang ae fail hal inte 

















edt t2 bersees. od lomeveaigtn ely so ise . 
tyson. odd ssovewod tnemetete ats? . ool Logie: mort sno. ost ae ault 
me es re -thmbe oF besuior, doflecas to mot tostde a 
306. Lisda\{abncube ao feet ‘need errs ot advoussa tadiet ete edt ‘ 
howisw ofa tad, botttves? oats. elgd set” - Snolsezeao. eit mova sab. 
acog saw ede a8 does oq i 5este ca as. sate eoibbctoaas eb é é Be 
tom 615. eelleqas tad? bas , prtet e'novstatm. od ot: toasb. ode ost boty 


eid?  iteetie tal ot abxow <e- row ‘tapi eederd. -oild tot cotta" or 











edt «edw eelleuqa-asiw moor eft mt sew~ede- take bottt fact aeddzot eas 
oo 




































gnt in question was signed, and thet during this time appellee 
5 in an apparent state of stupor part of the time, and that at times 
would rouse up to some extent and then seem to fail back in a sleup 
mpors that appellee did not there state to the claim agent that at 
ime of the accident she was interested in getting the car started 
aid not look to the south mor if she had looked toward the south 
e would have seen the approaching train; that appellee did not read the 
nor was it read over to her. Appellee testitied that she did not 
emember secing the claim agent nor did she remember of him visiting her 
t the hospital or of ever seving or signing the statement purported to 
been signed by her, and she also denied making the statement to the c 
duetor that her brakes failed to word. 

At the close of the testimony appellant moved the court to give to 


jury an instruction directing a verdict in behalf ot the appellant, 


in cS «OP LION BY HIGsEH, J. 
claimed by appellant that the action of the court in denying 
its motion for a directed verdict wss erroneous for the resson that the 
vidence shows appellee was guilty of contributory negligence and was not 
she was injured. 
ne due care for her own safety at the ti fo sustain this position 
appellant argues that the evidence clearly shows that had appellee looked 
the south efter passing the Homan residence she could have ‘nom the 
rain approsching from the south, since the evidence shows that for 
Practically sll the distance from this dwelling to sppellant's railroad 
ack the view to the south is unobstructed and the train would have been 
seen for a distance of at least half a mile. 
2 No doubt it is true as a general rule of law that if by the exercise 
if ordinary eare on the part of appellee she could have secon appellant's 
in epprosching irom the south, then the law made it her duty to ses 
the tay ane if she failed in thet respect such failure would bar a 
“recovery by her in this case. while true as a general proposition of 
aw, the above doctrine is not applicable to every case involving personel 
njuries from an accident such as in this case. The question of whether 


rx age spicnbae was in the exercise of due care and caution for her 


. - T= 






























vol leqgs ett abit yataob. decd) pos (bemy te aay: Soltedeo. st ta 
amit ta ctadt pan s emt g. edd to Seaq rogude: ‘to state dnetaqqs aacnlin 


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) 
$a tadd.d mene mtelo serith- of state exv6edt tom bth, SO LLegda: F atldag actin " 


Metisse tao: ott gatttep xt. setaeretat. “88, ode gaebfoom “eit. balitiad 


Aji ca odd pipwot hbexook bat ede XE gon dtsog. ant Ot HOE) Sone 6 


oat beet ton bib selfeqqs Jad? jaterd scidesorggs odd omep. rad 90 


$On 516 sade ted boliitaed eolieqga .. hed OF: org: Bast ce eRW. som xa qs 
tea ghitieiv mid: ic todmemer: ers Bib. 20% J00Rs) mislo pat auhooe a aig 

ot bedttoqxue Phewwtete ett aiinglea to. ani: 188 Z9Ve: to 0 bs siqeod std 

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: : ATOM of betta? adned ad Ant @ 


of evig os. drso9 edd bevem Jaa fiequa Contvaad. wal to 
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Pere ee “abi Oty Mak oz ssn igi ERO ES ace tee 
_ BalYfeb attrac edt. to foites, eds sandz Sas llegga Xa 1 eae i 
edt $8d% gogaer odd 10t eS 0asorze. #aW Jolbtey bevoarip. a tet beasts 
| tom sew bits mney ieee 8 ates Baad to ysis egy giana pbkia 
) -mottieog etds. itedese oF Bes add Ja ydehes ano zed tat seadies 
'f besooL eelleg¢s bed tant 880d 2 Gitselo. sofebive ent tas asians tan 
edd feos evad, Sivoo efe eonebiger fenox adds, atlasaq aette AS 08. ae Yen 
(tot sak? awone eonebive edt ooste. wHtgea edt most PRESSE A . ane : 





Lee 


bsotliar e‘tnel Leqae ‘ot- Setifews. aided Moet sonate tb. at. its x sottos 
heed ov acd bLitow : phe d- eit ben: betourttad ony. Bt aigog Pah Ot: wake lh >a" a 
ho) Syrile Ue RSeRe aH cele sited ten £ te foth: 5 30% 
eelovexe eat ud t2 dadt wel-to oLire {sr950% & “28 est B. r BE th sano} a 
e'inslfeqys m008 evacd bistoo aig aellogqa to. Peg ad? no ete Urea tore - 
eee Of Vanb wed te eb sat wal oft. faa adtube. eat MOXL gata e OEY 3. 1M 

* 700 bine. otmibe? dong toogsoy. tate mt botke® ede tt ona he 

ie noltieoaorg dvtene, & gs, amet eLide:. .28ap. aint. ed Rd eae 
Lenocareg BALViovsi- seap (rove. at eideeiiggs tom. fom et COLA OOh. er Ads: od 
wodtedy 20 eottecup ed? . .eeco erat at oe Anohbeed: naan 


tod Yet Hertsed pms e280 258 i iy Okt BE Rem: enh ean ft 


naa 

























































m safety or was guilty of contributory negligence was & faet to be 
texmined by the jury. Failure to look at «4 railroad erossing to see 
fa train is approaching is not negligence per See tt is nercligence 

a fact ai there are no conditions or cirecumstanceswhich excuse such 
oking,and depends upon the facts, conditions and circwistances in proof 
rounding the accident. (Boule v. I. C. Re B, Co. 86 Ill. Apps 255, 
nicago Junction Ry. Co. vs. amrow 114 1d. 501.) The evidenee in behalf 
“appellee tends to show that she paw the train approaching trom the 

) th before reaching the crossing, and that her attention wes upon that 
a If this were true, it is our opinion that even though the view 
> | the south was unoostructed and appellee could have seen the train 
= from thet direction if she Peptic vt - ed, she would not be chargeable 
contributory TO Ee in not so’ Going, since she was equally 

rgeable with notice of a train approaching from the north. The jury 
es to determine the cuestion of her contributory nagligence or failure to 
prcise aue care and caution in view of all the surroundings at the time 
dif they believed the testinony in her behalf thet her attention was 
seted to the train at the north, then uncer all the conditions surround- 
- occurrence sag shown by the proof, the jury would be justified in 
jing that appellee was not guilty of contributory negligence. (Gibbons v. 
» B. & Ce BR. Co. 265 Ill. 266, © & de Railroad Co. vs. Pierson 164 id. O86 


f ny rate there being evidgenes in the record tending to support appellee's 
n the trial coart to submit the 
The 


atent ion in this case it was incumbent upo 
[ s to the jury and deny appellent's motion for a direct Verdict. 
evidence ag to whether this train was approaching from the north as testi- 
to by appellee and some of her witnesses,is somewhat contradictory, 


there is some little evidence on the part of the witnesses in behalf of 


peilent tending to sustain her contention in that behalf. We cannot say 
bat the jury who heard the witnesses testify and saw their cemeanor upon 

Bi et tnese stand was not justified in accepting the version of her 

esses rather than those imxxekext of appellant. While the charge is 

that Neb sowie easily have seen the train from the south if she had 


i, yet none of the trainmens placed upon the witness stand by appellent, 





‘of whom had equally as clear a view north to the highway as appellee 
a, =@- 
< 


- go oe toe t e-esw sotegtiquar yrated badnoe ‘te gt linmm“aaw $0 Ytetaan 
ees of gatenoto Bsorkiet« fa deok of empliel -~ axeh odt.gd bombegal 
eonsyliivem ei sl - .easeg -eoneg tigen ted at paidosorqge ef ‘eiast ie 
dose eentone dol dwaeodgetenirotko<r0) anoitibnoos om ste -otedt.24 dex 
root, of essusdemsorto bte-acottomoo atest edt moga-ebmeqeb bus yaks 
.28S .qa .ffE 68 200 i week: ov ols Ob sFHehbtogs ent ge thas ow 
tisiea af eetebive ent ({(i£08 wbb SLL wormh set 400.698 nottonsil-ogee 
ai? mov? goidesdidon atet? end dew ede tad) wote.of -eboeg -eebleqgs 
tadd Noda say HOT dnotts Ved Jad Boa gtbewors ony autiiouet er dted ad 
wobv off signed? nove tad¢-notaige tuo’el $f joert Svow ekds RD 
pice? vif weer eva: oldies vellegde baw betourtedoad eaw twa adt 
deifoouty Fah aévk gat 
woR EI: ‘gies fede 0 a 
exe edt .ddton ‘eat mex satdosotdqe ‘nkard a- % dotten atiw® ieee 





aifsegtade od tom bitow- ode- ee * 
 gitgups ‘sew oda oonte ~stdo8 





of sxuLlat 16 osaagtigen ytotedixfmos ted to aotteeso ant: okies 
emi okt ta eadhbaveiiwe odd Lie te Wétv aE Boftueo Sue tao ine tes 
gse moldmetre ted todd hiedéd xed dt yaouttess od¥ Betebted “ode EE’ 
~houctive angittemos et Lie tubad imedt |, ddim ons Se -aistse eae at) t hotoat 





“Ob pottitast ed bigot cea ones toorqg vdt yd mrode 28 8 





.¥ gaddd $2) Some stised: eis taaeeined: ‘to Utitus tom saw celled 
536 .6f SOL AoayeLd .av 16D Brot List wa a0'r,0a8 w£f1 See 00 fale .0. a8 
e'oeifeida: txédaus of gutbaed Seoge, edd AL spkehive st ed orsdd etat-ynn 
old Shade ct Yrw0s Latrt st? seqa tooduueNt-eaw #2 vedo emt ad mol daed 
one tolorot Woorts. a Yok moftom~e' tmallogra yaeb bas Yewl eas ote 
ee ere eee Satdssdtaga aaw aiart etds sedéodw oF ge bones 
.er Ofotbarinos Sanwomée et wedeaad te tems to ested boe eelledea qd ote 8 
sen eh oxo dt” 
Use Toanse ef ~.tferted tadt at sottavince ‘ed miotada ot gutbtes¢astse 
ogy tonmksued tisdy wee tan “Utest eestentiw wit breed one oqaut « 


fie tae a “aes 
tut te molarev eat “Qabtossoh at bektitast som daw: biate asa. 


ek aguado od? sLid® steel foqqe “to ikembsieitk cet “ass isan aout 
pad aie ti dtiee oft oot niasd ent ndes® ered” Ultede 6 Bios eae” fads 
teoliedia Ye busta seeadiw etd nos badald “felongt S49 oat 0! “etter fy (bes 





te tiated of ‘aecaentiw edt i tyaq edt mo>-eomebive oftttl teme 





sad Seuas as yaedyid eat ot deo wely rt xe0lo 88 eiLape bed mod “2D a 
-8- | 


hed from the highway to the south of-appellecsdideusf2Mee her car until 
it Was struck by the train. It is quite lixely that if sa train was 
iapproaching from the north the attention of the trainmen on the train 
from the south would be diverted to the train coming from the north 
Bastecd of an automobile apyroechiag the crossing on the hizhwey. This 
would also tend to explsin why none of the treinmen saw appellee's car 
until after the collision. It ig also insisted by appellamt that the 
evicence does not support the verdict, in that it shows no neglizenes 

ox the part of appeliant’s servents in operating the train in question. 
There was evidence on behalf of appellee showing that the belli wes not 


sounded nor the whistle blow, as the hirshway was approached. On the 

















other hand there was testimony on behalf of appellant to the eficet that 
such signals were given. While the svidence on this question is con- 


bradictory it was a matter within the peculiar province of the jury to 


Pa 


lecide and their verdict, in that regerd should not be disturbed. 
d Numerous of the court's rulings woon the admissiability of evidence 
are also urged as error. 50 many isolated bits of evidence are pointed 
mut in this branch of appellant's argument thet to diseuss each of them 
pould extend this argument to an unwarranted length. We deem it 
botfictent to state that we heve exsmined each one of thesem matters of 
evidence referred to by appelisant and are of the opinion that the court 
committed no reversible error in its rulings thereon. It is also 
a sisted by appellant that the sixth instruction ggven in behalf of 
appellee was erroneous for the reason that it advised the jury, in case 
the jury found the issues for appellee, and that appellee had sustained 
damages by physical injuries, etc., it would not be necessary for any 
fitnesses te express an opinion as to the amount of such damages, but 
Jary themselves might estimate the same "from the facts and circum 
stences in evidence, if any," and did not confine the jury to the facts 
nd circumstances in evidence on the question of damages or on the 
stion of such injuries, pain and suffering. In other words it is 
ended thet this instruction permitted the jury in determining the 
lamages to consider intéense which had no besring whatever on the question 
f damages, We do not believe this instruction is subject to the criticism 
me =Ga 


SS , 





Lisa 139 sed. oA onenibzoeiiecge-te Adeoe ont et casey tal at 207 2 
Aa Ahagt @. 3b tact tleatl etiee et BSG abbesd: oe wa soute: ox " 
Gisss, eddme qomntaxt edt 10)mohtmnesta ot Atx0% ocd most gadiosorg 

42 79%, odd wort, gakgos short, odd 08: Dodrevtd, od ubLaom, ‘ats at 
abi. . (awdald edt no BatgReto scid sai dveona a) eLtdompdme 9, ore 

Tes ‘eed Loqae hail meamek wed ods, ‘to otis saa & ladane: ot baer eta bts 

4 vit tact, toe Ltoqae 7 besetent: cate. at: ah saobe Loo ‘edie fe: 

| epneadizen om evoda $f tad? at .tobtcor oat troqase’ tom eal 

snonteong . BL. ua wee odd saisazago at ebasvs0s. e'tapifequa a drag .est 

: sou aae Ree: odd ted gatmeda: eolioase. to: Listed 10. eoneptve: eam oe 
edt a0 sbodogosaa.s 2B, waucig it adi aa +av0ld, eltetde end ron bobs 

fad dootte edt 3 thaLleaae to. estod Cy woatseed. om ‘oxen? five 


“Moo Ad gottaoup ends, 0, soaebive itd ohh oaerdi, oped ite 
































beratog ots, eonvive 1p até getasoat naw a 
th, Move. ot ' a rdtoned betuerxonae as 08 } aa ou 


_ tes ‘odd one, sotatgo ost to. ors, pan . daatiouss. wd. ot ane ee 
, oa in et fk. ssoot0ds, aguiles, ete ME sour, ofdlarever. "00k" pod $ hae 
20. 2fssed of genes poitovrtent. airte: 26, test pases otek 


Ewe 
Pak 


Nala, 302: Urseagoait, @4. | toa bison, th 19980. yeatweten: conead 10Ra0 
dug, cagnanas, done ke, tasoma, edd. ot 28 setaige aa. peesane, © eee etd 

a eon ig base. ataes, oat me" omae edt, stent ise, tag to aovle batt ne Tae 
stest » ead oF cau até one xne9) don: bth, bas, Py ee: “th. eee: | i: , ois 
_ pat a0 a0 eogenah ro gotten. edt 9. sonebtye sh otneats woxio, b 

gk J2 abaow zedto al. i _saatseYige bap aheg senkzeh ea, 
add yeiabrreses, AE ah, edt. dott imeod aot touegent 2 


Roitessg edd. ao, aovetede Satta 9 eat doi din eonehtve, poet | 


ators te eit of yore at noitountent etd t evel fod ton ob a PHN 
nes ae 


; Pa oe 






































an instruction in almost the identical language 4s the one here 
somplainea of was approved by the Supreme Court in the case of 

orth Chicago Street Railway Co. vs. Fitzgibbons 180 Ill. 466, and Orr Vv. 
ahfiecld lifg. Co. 179 Lil. Appe 235. However, in addition to this 
penotion a further instruction was given in behalf of appellee which 


advised the jury that "in determining the amount of damages the plaintiff 


fe entitiea to recover in this case, if any, the jury nave a right to 
take into consideration all the facts and circumstances bearing upon that 
n by the evidenee" so that upon the instruc- 


question, only which are prove 
en misled upon this question. 


g 


tions as a whole, 
It is further contended that the seventh instructi 


erroneous for the resso 


the jury could not have be 
on was also 


n thet the jury was savised that among the elements 


# damage to be considered by them would be hospital ana géoetor's bills 


dial by the evidencé. It is eontended this was erroneous because there 


pellee had become Llisble for any payment of hospital 


was no proof that ap 
- doctor's bills. There was Pp 


ina doctor's bills for the services perio 


roof ss to what the reasonable hospital 
rmed, esmounted te, ang as it was 


pewn that she was dense years of age at the time she was injured it 


Cat that he had become liable for the pay ment 


pears to us from e11/P 
of said bills, and in our opinion 


It is also contended that the court erre 
if the jury believed appellee 


head of 


this instruction was not errone suse 


@ in refusing an instruction 


offered by appellant to the effect that, 
ng from the south and attempted to Gross & 


knew the train was comi 
jured, and 4¢ the jury further 


end was on account of that fact in 
Raseved that in the exercise of due care she should not have attempted 
and that her conduct in so doing was ne 
the verdict should be for the defendant. 
pelleg knew that the trein was 


3 ahead of ite In 


Q cross the east, gligence that 


ontributed to her injury then 
gre is no evidence in the record that ap 


-eoming from the south and thet she attempted to eros 


dence in the record tending to show that she 


absence of any evi 
ally knew of the approach of t 
eross ahead of it, it was proper to refu 


he train from the south and attempted 


se this instruct ion. 








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fadtge or old siernex. edt sanw of 8s loorg esw oxed? seLfhd 202200 7 


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teat esaegtison saw salon oe ok tosa00 sod fat ‘baw 


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women Li sagan tadt bz000 oda at ooneb ive on ro ret 

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de tads wode ot antoaet bzover ot ak eonebtve tas e: 


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eB SLOT e 


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@ew Start eds Patt 







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strot tourtant aida 


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7 


4s further contended that the amount of the verdist in this case 





zcessive. Phere was no denial of appellee's injurics. Her cone 
was testified to by the physician as well as /Epperies, and in our 
the amount allowed rss uot excessive. There peing evidence in 
art sufficient to warrant the verdiet of the jury, aad sedng * 
sible error mogjin the giving or refusing of instructions or in the 


the 
of the court upon/evidence, the judgment saould be and is sfiirmed. 
¥ IRMED. 


lh he epntid 












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: ¥ 2 ee, 





oe4. Agenda No.38. 
Appellate Court,Fourth District. 
OCTOBER TERE,A.D.1926. 





3 & a we 
| WILLIAM J. VEACH, ) eo © See 
e ApvelRee ) i ASy 
ao val 
ae i ) Appeal from City we, 4, < ae 
W.STEGYEYER and C.D.ROBINSON, ) BAgT 7 Lonisie? ., Se a 
ER INPLEVENT and AUTOMOBILE 0 i Oe, SL 
‘i UD i ae 
Appel lant ) “end w 
Opinion by Rignen, 2 = + 
---o00--- 244 i.e OO 


This case was before this court at the arch Tem,1924 on 
which occasion a decree of the trial court in favor of apvellee 
was reversed and the cause remanded. (Veach v.Stegmeyer,233 I11. 
App.559). In the opinion of this court filed in that case,i8 
found a complete statement of the facts,out of which this suit 
arose. Upon the cause being redocketed in the trial court an 
amended bill was filed,and answers filed thereto by ©.1.Robinson 
and Weber Implement and Automobile Company. Upon the second 
trial it was stipulated by appellee and the answering defendants 
that the evidence submitted before the “aster in Chancery on the 
former trial should be considered as the evidence on this trial 
of the cause,together with such further evidence as should be 
furnished the special “aster in Chancery by a date named. The 
additional evidence submitted,nowever,did not relate to the 
chattel mortgage given to appellee on the car involved in this 
suit or to the release thereof. Defendant J. .Stegmeyer de- 
faulted and a decree pro confesso was entered against him.. On 
the hearing the court entered a decree finding that on the 12th 
day of July ,1921,J.¥.Stegmeyer was indebted to apvellee,W.J. 
Veach in the sum of $3825.00 for which he executed his promissory 


note and to secure the payment thereof ,executed and delivered 


JAE. OM ebmagd | x 2. 
-doinieid détso% t1009 otal ioqah. iy . 


caege hae PS 





so ae ‘ 
Se eae se 1. dA, uAgT ARAOTIO 3 
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KJ ee j gy Tha Gs i Yaad 2) eA cee NaLsate, . 
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x nis Bi: tex3 
ss ages. 2 POME =v bu? es wen lite oreialaae 
et ag at AS PS We ‘a ¢ 
py ae AR bios at b-90 aTLAQUOTUA: per 
he ihe Me Po aaieid | y saat eggs 
age 
ee : BS SPE eo. eas sas 
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GOO. A.EKKS? ee: 3 Be eee 
ons 


co M2@f.areT dora od ts dyuoo eidd etoted esw eano einT 
selfeaces %o tovst crt dy0o Ieitt edd to se1oeb 8 notesooo do tlw 
-ffT 88S, veyengedé.y noseV) .Sebnemer seuro oid bie beetevet anv” 
@i,eess deid mi befft sxs0o eidd to moiniqo edd al (ad agh 
dive eidd Moide to dvo,edost edd “lo dmemedade otefamoo s basot 
ne divdo Ieivd edt nt bededoober anted oauno ond #OqU .eeors | 
noptiteh.7.9 yd oderadd belt? etewenr bth Heltt-es9 Eftd*bebcoma 
hnoose até’ oogl = s quaqaed elidewmodis bar dvemelqmt redeW bon 
aduehnotes satvewens ond base eelfecan yd bodefuqide eaw Jt Iniad 
ert co -yteomed) af tedeas™ edd svolsd beddindue somebive edt dant 
fetyd aisdt ao sonreshbive sid ea petehieros ed Siuvore fetws tomtot 
ad blvode es eonshive reddrut dose id fw Pronger: 
ed? .bemen o¢sb » yd yreomsdd ot rade [stoeqe ond bedeinwt 
ad? of edefet dom bib, revewon, bedd imdye sontebive Jano i#ibba 
eid ai bevfovat teo edt no selleqqs od wevig ogager ont fodtadto 
-ob royomgede.¥.L dasbnoted .tostadd eeseler odd oF 10’ dive * 
nO mid tentegr beteias esw osestmoo org se1oeb & ‘bak ‘bed inet 
AaS{ ent mo dadd yxibai? eetosh « ‘bevedne é1u09 it gira aie a 
-L.¥, sellecas o¢ beddebrt aew ‘reyomedé. W.L. 1901 » Yfut “to yb 
yrossinota eid haduoexe ad doidw rot 00.68868 to mus edd mi dosed. 
herevifeb hee badusere, tostads dromyaq edd ersose o¢ brs edon 

































to appellee his chattel mortgage covering the abtomobile in 
"question, known as “Lexington Car", No.25112,Votor No.41344" and 
two other cars; that on August 24,192l,upon representationgmadé | 
by Stegmeyer, appellee executed and gave him a written release 

of said chattel mortgage,which Stegmeyer later,on September 7, 
1921,without the knowledge or consent of apvellee,filed for 
record,imm and the same was recorded in the office of the ree 
corder of 3t.Clair county, I]1llinois; that apnellant obtained 
possession of said automobile and sold it and retained the pvro- 
ceeds of the sale; that the reasonable market value of said 
automobile at the time apvellant took possession of it was 
$2110.00. The court further found that the representations 

made to appellee by Stegneyer when he secured the release of this 
chattel mortgage were false and fraudulent,and decreed that 

said telease be cancelled and set aside and held for naught. 

It was further decreed that defendant J.W.Stegmeyer pay appellee 
the sum of $4669.68,being the amount of his note to appellee 
plus interest thereon to July 12,1926; that appellant Weber Im- 
plement & Automobile Company pay appellee the sum of $2616.98, 
being the reasonable market value of the automobile as found 

by the court together with interest to the date last mentioned¢g 
that whatever amount if any,should he realized by appel 1S 
from said weber Implement % Automobile Company be credited on 
‘the amount decreed to be due anpellee from fétencant. From 

that decree this appeal has been perfected.. 

The principal ground argued by appellant for a refer- 
sal of this decree is that the evidance does not sustain the 

4 allegations of fraud on the part of said Stegmeyer. These allega- 
tions were that on July 24,1921,following the execution of the 
chattel mortgage to appellee edaty te stat , Stegmeyer revresent- 
ed to appellee that he had a purchaser for the Lexington automo- 
7 bile covered by the mortgage; that he would be unable to sell 


soe 








ai elidomoime end yritevos ognys 10m fed deco aid eel lage 0 im 
bos “SBGLh. of totew Sid. oH," Sago | stodgnived® as “nvonx motdeoup jl 
phangroidednsrerget sogu SS2f M8 deugud do Jedd ,ets0 teddo owd | 4 
gerelet nediiyw 6 mid eveg baa baduoexe ae! legge re yemged2- x 
.) tedmasged ag,tedel soyomgodé doinw eysydrom Leddedo biss to. 4 
tot helit,eelfeqges to Jrearog v0 epbolwons ong net ERS 
781 98d To e9itto edd at bobroast 28H. ORB. ads. bees sah D0 98 ol 
baxisjdo dnelisaga tedt ,etoni fil, ydauod séas0, 36 to. tabyoo a 
-o1g oft deniatey bos gi floe bus efidomotus,bise to noleesaeoq _ 
bire to eulav dgoxtam sfdsnoeret ond stadt, efse end to. eheso a 
sew. $f. te nolensezog Zoot saat lacus emit add das el idomodue 
ano fipin eeetaet eft dadd bawot ‘yoddwt sru09 oft .00.0L15¢ 3 
aint to eeecler edd bewose of medw reyemgeté..yd estat od. eben 
tedd beetosb ons, dnelubysit bas ealel.stew sgsadtom, Letdedo 
jigver tol bier bos ebies gee bne belleonso. ed, eeselet bigs 
colleqan Yar reysngede.W.L daebaeteb Jad? beetoeb rodiret.eaw tf 
seifecqs ot edon ein. to ¢ayome, ent ‘gaied.83.03088. lo mye edd 
~#l rodel tus! feoge dedd ,9801,S1 ylwl,od, soeteds, tactedat eulq 
82.1588 to sweedt eefleqqs. ysq yaagued; oligomotus. 2.Jgsmelg . 
bawol es elidowotus edt to suley Jedtem oldecorssr. oid gaisd — 
_ ybonoitnen test. oseab- edt, of. dserednt asig redsegod. Sis ead. xd 
Seb! foaue yi beri fesr ef bivoda,yos ti Joyoms sovedscw, deds 
ao. hedthero, ed yasqmo) alidomotus.#. dnemetqml. ‘reded. Aige most 
pork . stasbnotscor3 ealleqas eub.ed. od. bestoeh dovome edt i 
3 hee need Bad. freqes, Bids, 8198 | dads 
-tatet & oe dik eat yd begets - Sooty, Leg lonin Wirsedia ee 
_ od atadeus don eeob somabive, edd Jedd_et. eet, sidd 0 fee — 
~sgelia srenT ...teyemgeds, bise, lo diag add 0 usr, 20 enoidegelis RS 
ait Yo soidnoexe ond gu iwol oi i8L.2S. xu. mo, ded. orem anotd . 
-travercey reyemged 2. £3 atest eelleqgs ot a 
-omoiue cotanixel edd xe, due & bed od teas eel loaga, i 
{fee ot eldans ad. bi vow, of. teod Acanateom, yen a6 ras 


cout vara aa Fo ek eye ah. ga a 


s Ee f 
~- 
- _~ 

















the same unless appellee would release the automobile from the 
lien of his mortgage; that he requested appellee to execute and 
deliver to him such release; that Stegmeyer vromised apnnellee 
to dispose of the automobile and turn the amount reblized there- 
from to appellee j}emd that relying upon the~nioeseine—ef those rep- 
resenbstions,and believing that Stegneyer wauld sell the auto- 
mobile and turn the proceeds over to him,apnellee executed and 
delivered the release to Stegmeyerseee that without selling the 
automobile or paying appvellee any amount,Stegmeyer,on the 17th 
day of September,1921 filed the release for record.. These facts 
were testified to by both appellee and Stegmeyer. J+ is not the 
contention of appellant that these facts are not shown, but that 
they do not amount to fraud. In our opinion these statements by 
Stegmeyer amount to fraud in law. As a general principal a 
release or discharge of a mortgage obtained through fraud will, 
as between the parties be held inoperative.. {Henschel v.Mamero,H 
120 111.660.) 

| In our former opinion we held that the contract note 
signed by Stegmeyer purporting to pledge certain automobiles to 
the ®eber Implement and Automobile Company as security for in- 
debtedness owing by him to appellant,was invalid because not 
acknowledged or filed for record. Apvellant therefore acquired | 
no lien against this automobile in question by virtue thereof, 
and in our opinion the trial court properly held the release in 
question to be void as against appellee. Appellant further 
cOntends: that even though the said contract note was void as a 
chattel mortgage it amounted to a conditional sale; that the title 
to the car in question was in the Weber Implement Gnd Auto- 
mobile Company,and therefore the chattel mortgage to appellee 
was not a prior lien thereon. It is not clearly proved that this 


automobile was originally included among those named in the 


contract note but even if it was,in our opinion, the giving of 





‘a 








sae movt sfidowotte ant sano for hIvow ee! feaqe ane fad ome 
hee edusexe of selleods hadpeuper ent Send” ; egagdtor “aid to ne, < 
es! fonds Sse tnote royenged? tend -eeneler dove mid of ‘roviteb 
~orditd pontléo dria ons ond ered bre af idomodus ald io “ee ogelb ab 
wn es Sid oct Siivies saad tars af Leqqh od ‘ort 
-oisre off fis b Lowe rayemgode dedd wiivelfod brs, actoitédnonet . 
bare bedvoene ‘eet isoce, mid od +ayo ‘pbeesotg old odd bila oridiee 4 
end. grilles tvodtiw dard Suet toyonmed? og easier and betevifeb _ 
aavl edd ao Foyonaede Jowoms yas seffeage: “ar tyeq 10° aroaedae | 
atost eeas? 1. brode% ‘xof agns ior edd balti iset. todnstqee “30 Yeb 
edd fom et tb” Soyanasde bas selleaga sitod yt od ‘poft Eodad otek | c 
joel? dud nwore dort ots atont csedt dadd “toa! foqge to wo tdtaddon 4 
yi atnomatets atest notn Etro “0 fl .buav? od ¢nuome Jon Ob yedt 
# teotonive Peron pet .wef nt hoert ‘od Sossome ‘royemsese 
iftw buert Hauora? heat! inido exendros £ to gyro tb 10 aie. 
SS. meme! v fedtoerst evi geregoni plod ed pw.) anid néewded ‘as 
na oad fff: ost 
sian Sonn Saba bee “vada bled-ew sofwigo temrot-wo ab) "5 
o¢ eefidomodas sisttes égbelq of snidrogtug “reyemged? yd beagte 
~ti Tot yditose ex -Yanqmod efidomodué dae Jnémetqul vede® etd 
‘gon seusosd bifewrt ea@.énefleage of mid yd aitwo eeénbeddeb 
“bevinpos etotersdt daslfeqqA .brocet tot balit to begbelwoados 
stootsdd oudtiv id noideoup at efidoncdaa sidd deatege neil oa 
ai oneofet odd biad vfisqorg dios [sty odd aoiniqo “oo RE bas 
reddit tnalieqqd .eoffeqqa dentsas és bow od oF ‘noisestp 
© ae biov esw eden doeténos bise edd dguodd neve Jad ebnedaBo 
efdid ant teadd [else [snort tbaoo #0)’ hedntoms tf egegitom: ‘Teddandis 
‘sod4 “bo® tnemefanl redel ot nit enw doiteaup mit Yao edd of 
aslfeqqs of eusydtom Todterls ott evotetedd bax. yieqmod ef flom 
aint sect hevera Ylyesfo tow et PL’ mootedd weil tei @ tom enw 
etd at heres eeods ‘atome bebufoat 1 Werdbieditd efw sfidomodus 
to soivig evd.noiniqo tuo ni.esw ti TL deve dud eton JoBrsmoa 





-~get oBond 


seatie J 
eye. A ee 








ace . 


this note by Stegneyer to appellant can in no event,be a condi- 
ional sale to appellant for She reason that the evidence shows 


this note was not given to apnellant to secure the purchase 





g 


a parties as a conditional sale. Appellant also argues that the 

4 decree is excessive in its finding of the market value of the car 
4 in question. The finding of the market value of the car mss 
based upon the testimony of appellee and Stegmeyer, who, while 

4 they did not qualify very clearly as experts on such values, 
appear to have been advised to the actual yalue of this car. 

We think their testimony was properly admitted and was 
sufficient to sustain the finding of the court as to the value 
fof the car in queation. In our opizion the proof supyorts the 
report of the special master in chancery and the decree of the 
courtswhich should be and accordingly is affirmed. 
iffirmed. 






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edt edd eaugte cela dneffeqcd oie Lanois ibvos 4 pe bide Fe ‘ah. 


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ses kaa a & rey wy, 
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a No ae te wey ee ee aise age: 
sca he Pe See Meas a ite a eee ae : 

vee ART agar oe bE ae ae 

2 ar See ROLE Wa Vitara Pe saw oy Ptgueeiee” 


tee wok gitar + EMD Rene Sad eget iene 


> aa 


Jvc fel Tee eae 


sean 
ok os: RET Ve Bak oo nbaetebe 


— > ae 


io ard 





Term No.31. Agenda No.23. 
APPELLATE COURT, FOUPTH DISTRICT. 
OCTOBER TERM, A.D.1926, 


ALBERT KELL, 


) | - & ane 
Appellee So Tb 
v. a aay 
é € pe ny rig 
) Appeal from MARION y eo a 
THOMAS J.ARNSTRONG SYLVESTER C. Wop dg toes 
“Ee? Ma 4. : 
GARRISON,firm of ARYSTRONG & rane J wd 
One Ap. ‘ 
GARPISON, meee 
Appellants. ) ner 


Opinion by Higbee, J. 


C 
x 


---9N0--e 


Albert Kéll,aprellee, brought suit against Thomas J.Armstrong 
and Sylvester C.Garrison,vartners,doing business under the name of 
Arnstrong & Garrison,apnellants,to recover damages for the breach 
Be Reaneecn which appellee claims he made with one Frank Schwartz 
as agent of appellant for the purchase by apvellant of apnellee's 
 erop of pears in the year 1925. Upon a trial before a jury 
appellee recovered a verdict for $140.00. A motion for new trial 
as overruled and, this appeal the annellants seek to reverse 
the judgment entereé on that verdict. 

Qn the trial appellee testified,in substance, that in 1924 
5 he sold his pears to appellants through Frank Schwartz as their 
a agent; that in that year he did not talk to anyone except Schwartz 


and his pears were received by apvellants loader,"'r.Keynodds. He 


was permitted over objection of appellants to go into detail S 





* as to the 1924 transaction which was in substance that the pears 
were sold to appellant$through Schwartz and were paid for by 
appellants. He also testified that in 1925 he had numerous coyver- 
5 sations with Schwartz ,in which Schwartz it ietetane: told him 

a not to sell his pears until he “got our prices” and that Schwartz 
aid "Armstrong &% Garrison treated you good last year,let them 


have the pears this year for they will do as well this year as any 


bel 


o2S.04% sires ate fF. 0% mreT 
TOLFTEEC WPRUOY TAO) -RPALITGIA- 52 ci otem eked 
OSS I shd MART ATAOTOO ae - Pash : :- ta, 1a aati s a 
z 7 Race ‘ngage | 
Pps, oe é ; % Sri ay 
YW ee E  eefieogh 4 
ok AN a ( Ke cs ee) aes Py 
ea ee ; ep Mg a 
\ HOTA mort Leaage 
= my WS eo Atereavaye, MORTEM L ‘eas? 
so" A 1h a 
+ rn Fives 3 soH au lo ari? NOBEAAAD 
Y\ coke? st Saha ee 
yale 2 oe tiaag 
<ayo* : ee, (- .etnel Seach x as ast a at Fm em ed 


~  L,eedaill a] noite ; oe 
- » a aK @ —— ak eon Cae 
air L eemont? taniaga Jive Jdhguord,9e [facan, Loh eel 
to aman en dt.aebass esonieud apiob, PTOND TAG. noeirsi.2 Ear 
doserd eft .rot sagem “evooet of, edna! Loge novirsnd £ goord amté 
sérewio® nett eno ddiw ebsm ed -emtelo sel leqqs oisie doaténoa Jo 
e’seflfecar to dnelisaqe yd sasdo tug orld 10% soel longa. To jneye i 
‘ym & eroted Sein, a nog .d82f, THEY oils ai eteeq, Yo ¢ Goro. 
fetvd wen tor noiton A 700. OhI8 tot ‘Jotbrey Bg * gorovooet | Heggs o 





serover od fear etaslfecas ond Iroaqs eidd, 8 bolurreve Sc ee 


totbrev dent £0 Rit tromsbivt, arid 

ASOL wt dadd sonsdedue at, befttiseed eel feqqs isiis end ad. . 
viodt ee sdtewiod set’ siguordd edna feqqs os atseg eid ‘bloe on 
ndvawiod dqenxa enoyns od Aled dom bib od THEY secs ok tad ; ; Ines 
of -abBomyel 1, rebsol ejnsileqas xd beviecer eTew etseq eid. bos 


2 ftateb ofat og ot etmelfeqae to no itosido tev bodd iwreg eeu 


areeq sci dard sonpdedoe af eew do kee noitosenerd Sef arid of: be ne 


yi tol bisa oT0% bore sdrewnoe iguoisd taal feos od bloe eter 
<rsygoo ayotomun bad on aSOf mi sand bettitess onls oH einaliegas — 
mid blot sorsjedue ni sdtawiod dotiw ni, sd rawriog Aid bw acoidee : 
sitewio® dant bas “esoina wo tog" ed Lidny B1#9q eid [fee ot Son 
rodt Jel teey inal boos OY bedsors woeitted # spotdemh" bine 
wie es taey eidd [few es ob Fliw youd to? iasy eind eteeq edd eved | 


one else;" Ahat this conversation in substance was had several 
times.. He also testified that following this conversation he took 
a portion of the early variety of his pears to anvellants at 
Alma and was paid for them,but that appellants refused to accest 
and pay for his other pears. He was also further pemmitted to 
testify that after appellantSrefused’ to accept his vears he went to 
Schwartz and asked Schwartz if he was authorized to buy pears 
for appellants,and that Schwartz said he certainly was. Appelleeds 
brother testified that he heard the conversation between appellee 
amd &chwartz prior to the tine the 1925 crop was harvested in } 
which Schwartz urged appellee to let appellantShave his nears. 
This was the only proof tending to show that Schwartz was the 
agent of appellant $ 

In behalf of appellants Schwartz denied that he bought any 
pears in 1924 from apnellee for appellants. He also denied that he 
ever told appellee in 1925 that he was buying vears for apvellants 
and denied having any conversation with apvellee relative to 
buying his pears. Poth of apvellants denied that Schwartz had any 


authority to purchase vears for them. Other employes of appellant w 





who: were looking after the loading oy pears’ appellants had pur- 
chased ,testified that while some of appellee's vears were received 
others were rejected af the car because they did not come up to 
the standard required. It was incuwnbdent upon apvellee to prove 
that Schwartz was authorized to purchase pears as the agent of 
appellants. The doctrine that the statements of Achwartz himself 
were not competent to prove his agency is so well’ established that 
it is unnecessary to cite authorities eo holding.. It is sufficient 
; to say that under a well establisned rule of law,it was error 
for the court to permit appellee to testify to théstatements of 
Schwartz that he was appellant's agent. Even if these statements 
were competent,in our opinion,the vreponderance of evidence does 
Ss not show that Schwartz was the agent of appellants. The evidence 
ae 








2 iG: exo? 


fevsver bss eaw sonstedue mi no idserevnoo. eins A S ite ero : 

foot of acitdastsvnoo etdd snivol Tod ded? be ft idead oefa eH -aeikid a 
te ens i fecgs of atesq eid to ytertey yire6 oft to ao itrog s 
Segoos od beeuton etosifoqce tate ted medt rot bisa any bre amis 

od bedtinwed. teddvut cafe eaw of . erasq! Yeddo etd ro? x80, bre 7 

od dew ef atreg. eid. dgeoo8 od beauterdinal legge istte dene yiidesd . 

-BIRED . yu oe besttoddus: esw ad Ii ‘sdrawdo® 83a bre sda $08 
adssfifleogh eb. yinisétes of bise sdtewdod dertd bnavednst regge ey 

seffeccs moowlsd notdteetevmoo ond breed oe decd boitidedd xeddord : 

ak bedeerrad sew goto GSel: one or id ead od rolt¢: sdvewio8. bas | 
saiso0 ein evedcinel feaqa sel ‘od eslfeqqs begiy sdiewiod ‘Hoisw 





ad: Baw Rd TSwAOe dedd wore 69 sathret tootq yino end enw etaT | 
eee is 2tneLfeqas: to ee 
Ye deiguod ed tedd peineb: sdrawloe edna! [feqgs ’ to ‘Meried oT! Gea: 
ar tad boineb on le of -sinal Leas 10% eal foors mort ASeL ae ; 
veda! fears tot arse atid eae on tests ser at ‘eof Tongs bios save ° 
ot ovitefet sel fords Hitt iw no iteersvn0d vas given beined | the 
Yate bail ndrewrio® dent beine’ edna l fears to Mod + Btseq_ eid wid is 
w das! leges. 20 eo yo laine rod0 mand ot 1890 sendotuq: od wbresgus S 
-tsa bar edasl Leags BXROT sje gaibsol ould Tod te gritoo! Tee 
hevisoey stew emsea e ‘se! Teqge To emoa elise ders bottidasd bean sed + 


od gu emeo ton vies Nene eausoed THD old hs besooter otow eteiiso 









svor? o¢ sel feaga nogu dnodaxont asw $1 «bet ivpet brabrede erg A 


to dreams ond as BTHOg eeantoteg of bos iorldus ew -sdtenilo® todd 
Ag et, ae 
tleemia ndreusoe Yo adnomedede, ‘edd send enitdoob oat -edneffoqgs | 
sent bade i fda? ‘ae ‘Llew oe at Yorregs eid evorg od iaodeqnoo tom exew 


dootoitive at dT -gutblod OB. obit troridus etio ot Wiseesoenty ie | 


ToTTe Bew Stews ‘to efor hoilekidedee Tfew & rebay todd yee od % 


Yoddnem sodadepdd od ylideot ot so! Leage 5 tereq ot woo oa . 





_ adoometade ogerdd Li nove . dogs at inal Legge Baw od es ; 7 
Wr Ra ‘x oa 


naoh sonebive to sonetehnogere od stein igo 100 nt, .$nae.egmoo etew ‘ 
goreb ive oft ena Tonga to nena orig Bow w ndramio? ee son : 


peal" Sip are Son BO eR ei ceed Steet eS SEES : 





ae A i oll 


See 


wo 





introduced on the part of appellants shows that while they did re- 
ceive some of appellees pears ag’ the car the others were rejected 
because they did not come up to tne standard required... Avvellants 
claim that certain instructions given in behalf of arvellee were 
erroneous in that they assumed as true certain facts which should 
have been left to the determination of the jury. In our opinion, 
with the exception of the Sth instruction, the criticism made is 
not well founded. That instruction in substance was that if the 
jury believed from the preponderance of the evidence anpellants 
entered into a contract with apnellee agreeing to purchase 
appellee's 1925 crop at the price named,unon the same terms cone 
cerning the size and condition of the vears as had governed in 

the purchase of the preceding years crop that appellee 

held his pear crop until notified by appellants and thereupon 
made arrangements to deliver his crop to gout a ok the car, 

ard if the jury further believed from a preponderance of the evi- 
dehce that Seeks Biecizadvons load of the nears and then 
refused to receive any more,and the jury further believed that 
appellee was then and there ready,willing and able to deliver 

the remainder of his pears subject to the contract but that 
appellants refused to receive them,then appellants would be liable 
for their non-performance . 

This instruction it seems to us does assume that avp- 
ellants had purchased appellee's pear crop in vreceding years, 
which was a material fact to be left to the jury. It is also erron_ 
eous for the reason that it omits the element that appellee's 
pears refused by appellant ze bo be of the standard re- 


quired by the contract,Before appellants would be liable for re- 


. fusing to receive them,even though the contract as claimed by 


appellees had been made. This was a very material point in the 


trial of this case,and being so material it should have heen 


a 


-ot fib yodd elidw dadé ewole edaaliegaa to stag, edd m0 Seoubordn ni : 
beatoet sr erew avanto end 189. oid he atseg eeelleqqe to 908 vies 
ednelleqad ..herigpet bisbasde edd od er emeo don bib yest saussed 
stew selfieqar to Tfisded ai cevig snoidountani mindres dad nisio 
bivode sotdw adosi ateires euis se beryess yond Jedd at ‘evoonorts 
Neintigo wwe ml |.yue, add To moidsdiameseb edd of diel need eved 
ei-ebam matoltize end moitomient Ade odd Lo sotsgenxs ead sidiw | 
et 1i dedd ese eonatedue ak noidouttemt dsdT .bebovol Liew Joa 
ainelleags esonebive edd. to sonerebrogetq snd mort. bevelled wi 
esedotuq of satestge sel leqqs déiw tosiigoo fr odat pevedns 
~109 emres sree sid. moqu,bemsa soiire act. ts goo SSel steel feage 
at heorevog. bed en etaeg edd to. noidibnoo bas-esia srs gainteo 
selfeqqe tadt qoto eteey gnibeserq » add to penro mg ont 
nogueten? bas einslloags yd beilicon, di day qoro THOg eid bled 
Teo and da.  iisase o¢ qoxo eid sevileb og ednamegner ts obem 
-ive ent to somevebaogerd 6 mort boveiied tedizel vist ont. TE ine 
send Orn eteeq edt to beol ono bevisoey pene dant entiob 

dtd deveiled teddy el yw edd bas.etom ys eyieost od booier 
tovilfo’ ot side baa ynillin, vbset eredd bas mend Baw 9s {feage 
tedd Jad Josttacs add of doefdue atseg ain. to “‘rebrisnet ead 
sidsif ed diuow adnsllangs meld madd evisost of beautey | adanLleqge 
| * gore to treq-m08 tiedt rot 
-car tedd emuass gech ey ot emeee ti no itoutdeni Beige eo 
,81KSY gnibesetg ai goto rseq.e'e9lleqgs beesdorug bed adnate 
ovis oeis-ei ti .yroit edd of diel ed.od dost {sixedsm s esw Adis 
e'eefleqas iadt inemefe.ond ad im af ded mgaset, ent ot taba 
=o1 brshaete ent: toed, od), mie < ros dnelleqge yd besutey. aTsoq 

-or tot afdeil.ed biuow: adaal Looms. sroled ,Jositno9 end. i, botiup 
yd. bent alo er Soars m9 edd spond neve mot. evioost of, arian’ 
edd «i dateq Isitedam yisy. 8 Baw eid - obam peed bad eeselleqqa | 
need eves biuode ti.laivedam o8 gnied baa,eepo eidd to leit 





SRE 8 OF RIE OG Ee ee a 







luded in this instruction which in effect is a mandatory 
tr uction.. 
For the reasons herein given this judgzent must be 


rsed and the cause remanded... 


Reversed and Remanded, 





> a Die Si 





















Bese AE ae 2 Hie ae ous 
Bick ie eee iS i ws 
sai sieseae note 

pale 7 OS 2 
er oe eee GES + te. Scineten: bia 
‘gal daage batt gore ANE SB, “yi Knee otis 
Reem. Bets EPIL ERS. AE teltisnn Ji dw. 
Wea s tt kote eke souateb 
ne Kee ap naa coe) Dave back atta, & 
feats oe pared: Hid 1 Deed: ante Bartacey, “Wate 


se Cavan ts £ Tetke, 3 EC RO PAP. oFee:, ye: 
Beh Sy Ch ag. pits ae zat eee eral hie 








a ee a son a oan 


1» RED Seen ie Sidi oie eG 













Term No.3o. Agenda No.29. 
7 APPELLATE COURT, FCURTH DISTRICT. 
OCTOBER TERH,A.D.1926. 


\ 
} 


CLAUDE WELCH,a Minor, by : 
C.W.WHItE his next friend, Q9AAT A, 664 


ees 


Appelleé ) 
Ve . Appeal from City Court 
PENNSYLBANIA RAILROAD CO“e ‘ EAST STELOUIS. 
PARY ’ bs / / } ti > 
Anvelleat ) es ev ig) 
F; te : oe Ly 
: Nal aie ae 2 927 
Opinion by Higbee. “Sino 
a) 2 SHEE bot : 
=neehax-- re 


Appellee Claude Welche,a minor, by C.W.White,his next friend, 
filed a suit in trespass on the case against Pennsylwanie Railroad 
Company, appellant,in the city court of Hast St.Louis, ]1linois,to 
recover damages on account of tne destructkon of his automobile 
alleged to have occurred beéause of the negligence of apnellant's 
crossing watchman.. 

The accident in question occurred at a point where a pub- 
lic road known as Kings Highway running approximately north and 
south,crosses appellant's railroad tracks at right angles. At 
the crossing in question the Baltimore and Chio railroad has two 
tracks and the appellant, company eleven.. The tracks of the 
Baltimore and Ohio Conpany are south of those of the apvellant, the 
north rail of the Baltimore &% Ohio tracks,being about 127 feet 
south of the south rail of appellant's tracks. Appellant's south 
track is known as its main east bound track and the next track 
north as its main west bound track.. The other nine tracks just 
north of these two age switch tracks. The Baltimore % Ohio tracks 
E aré some ten or twelve feet higher than the highway to the south 
thereof. and two feet higher,as it appears fron the evidence, than 


appellant's tracks,so that ‘there is a decline from the Paltimore & 


‘ 
Ronse 
.28,08 ebrenk. re ot as Saket . 
POLT eit HOABT, rstHo9 TALIA } ie eee 
: ASP L.2.8 MART FEBOTIO.\, 7 a 
f 
: ‘yd tonilt i ana tae 
‘RAD RE OS beret dxen eis, s S u, 2 : 
( Penge | 


Sy Stuomere TeAg . ~ gu09 qaoRsLeR : eee a 


ee ee a 
eo ia tee: eae 
ye - deal Leads ghd 


_ Adrusod ytd mort Iseqad oa 


ae 


an) 


KA \ eo 


ey f : Pee Se Swi cei 

i ‘y Le : 23 pe. a sek 

seek 8 3 sa ; and ‘ oe. at ogi ce 

e's hor ea +e . % > = : ye erat . + 2 2 

GCL ite me .L,99daih vd cotmid ate 

SH VA cath a we : vgs sy CNS Pe 

a Sth : : eats CG “ee 4 Y j ; 

Toe is oe 

yor : 


 dteitt dxen eid ed ilW.W.9 yd. vonim smote! eboald sel fsqgA ie 
beer {tet sinew [yee detisas sero and no wesqeertd i-dbiue «-belit 
od etontl tl eiued. +2 tend to woo .vsio edd oi doe leqqe, yiagquod: 
alidorotus cis to woftourdeeh edd to taverns mo eegameb vayooet: 
a'doanifercs to sonogif{ges odd to enusbed bertsmo0 svad od: bogel le \ 
| .» fsa oder aiteeora | 

=duq & ax ae dniteq B 3s “bertw999 ethane ni daehioos eT 








bee davon yfetamixorqgs paincey yewrgth : aga Di an mwoad 6807 ok: Bs 


dA .eetsnr drigit te axostd bot fies e' taslferqs eeveota,Advoe ; 
owd: sad beorl tet erg bar oromid ied eit notteoup: mi attesers. edd | 
art to exoetd edt .cevels yeregmos (tims B end bar atosrd 

ad? teed Ina s edt to-eaodd to dtuoe evs. yrago9 oidd bra stomid is er 
¢eet VSI guods tied etortd: ‘9680 2 evomitiaG edt to List sidvon. ; 
fdsoe a! dne ffeags sadoets 8! dnalfegqe to. Liey dévee edd to aiduoe - 
Janes dxean old bees tosis baved dese £60 edt es-nwondt ek-dorad: 
jas, stot ents todo ecT tosis bauod juow a hee adi ee ddétom | 
adontd ofN0 § svomit [ad ell: -edoetd siodiwe aes ows: seoid to Agron | 


dtuoe edd of yswey ic. edd pe sedgin Jest sven TO) ned omos B18 oe 


neid,conebive sit wott exnegqa $f aa tengin seek owd bas ‘tostedd 
# ovowidied ost mort omifoeh = ei sted! dedd og. etostt a'inelleqgs 





ae ee 2? ea a os 


— SO ee! Lee” 


—_— — =<. ff. a ee ee ee ee 


a 


Ohio tracks north to appellant's tracks of about two fect. Appellee 
testified that about 9 o'clock on the evening of December 4,1925 
he,with a Miss Frances Huskamp,in his Cobe automobile,came from 

the south on Kingshighway and after reaching the top of the Bal- 
timore & Ohio. tracks,started down the incline to appellants tracks; 
that at the time he crossed the Baltimore and Ohio tracks he 
was,going about three miles per hour; that his brakes were good, 
and he could ha ve stopped within one foot.. Appellant maintains 

> watchman at this crossing who has a building,referred to as the 
watchman's shanty, just South of its south track and on the west 
side of the highway. Appellee testified,as he came over the F.% 0. 
tracks: appellant's watchman was standing opposite his shanty 
wating a pole with a paper on it which he understood to be 4 sig- 
nal to stop and that he did so; that at that time s string of cars 
was moving across the highway on one of apnellant's tracks; that 
there was sufficient space between apnellant's tracks and the Bal- 
timore and Ohio tracks to the south but he was about a foot from 
appellant's tracks when he stovved his car; that it was fifteen 

or twenty feet from the north Baltimore and Ohio track to anvellant’s 


wy 
south track; the proof nowever este ee: by actual m rement 





that distance is 2 little more than 127 ee when( fhe string 
of cars'cleared the highway the watchnan motioned for him to come 
ahead but that his engine had died; that for about ten minutes 
he attempted to start the car with his starter,but finally ran down 
his battery; that during this time the watchman asked him what 
his trouble was and he told him his engine had stalled; that the 
watchman then left and he did not see him until’ after the accident. 
Apvellee further testified that after he had exhausted his 
battery he attempted to start his engine by cranking the car,,. 
but was unable to do so; that he then stood by the side of the car 
talking to his friend for about fifteen minutes and decided to try 
to start his car by pushing it on down the incline; that his 

-2-- 


eslféeaqh .doot ows dvoda to axosatd 8 ‘tusllsqar of ddron exoetd oi 
@Sef,& redmooel ‘to prineve ond 110 Yoofote @ duods decid beititesd 
moy? ome. ofidometue eoO°ein mi, quia asl eeoner'l peiil “ ddiw, ed q 
-f[ei edd to qod end sridonet rad 18 ba verdgisega 1% 10 sjuoe ad 
sexoard etnellegea of anifoni, ond mwob bodteda, edoatd “ois A eromiy, 
ea evtorts-ofd0 bar eromidied add bogecro. od emid ond és Jacd 





005 etew esiatt etd decd yon Fog eel im sors duodis an logge . . 
extatoiem doe Iloaqh” ,toot ano middie beqqode: ev pA bivoo: et bre 
edd es od hee & find 8 esd ow gaieeoto, sind ds nando dies 

deew ond no bas doers Aduoe edi to ddvos saul. Yoneda es 'nemnclodew 
.0 $.9 edd tevovremso of en. betirseot eel foaqh -yawigid sng to athe 
yinete ein etieoqqo gribusts eaw nemlodaw e ‘Sas f feos: slostd 
-nie.e od od bootersbau 9a doidw oe no teqaq #& ddiv sfoq s ativew 
BYFO to Snivite 8 emit seit te tadd poe Bib ent sant bee qoite od fan 
tede raslosrs s'ins[feaqs to 6ao mo ysegin ant ‘eB0Tor grivom ese 
~fel edé bas ndosté e' ine! leogs eowdadt ‘BORE fnstot Twa ew erent? 
mov dood « Juode caw off tid’ swore ond oF wists ONO tna ‘romid 
meedtil acy ti tadé sao e id beacode ed redw: elders a ‘dowl feqas 
ednsileqes o¢ doris ois bae eromid{ad déton odd mort Joot yitvowd: 10 
drome Tangs feud = yd dads ewore Tevewor toorg: ats vloetd idwoe 
anitte aie \nore Sand tok VSI tedd oom ofsif # et sonsdeto. dadé 
etic o¢ min rot beroitom mamiotiw odd qawrgid edd ® betaefo atao. to 
gedunim ned duoda vot dard sbetb ‘bad amigo ‘eid ‘dedd’ dad beers. 
nwob. net yilenit dud edtsde eid ddiw 159, hake etete od “badqmedts: en 
dedw min bedes memiote ond emis eld gatrw6 ded tended ‘ats . 
ond Jedd ,bellace bar en igde ain mid biod en bas ’eaw eidvow” eid 
inshiose eld teHts Lidew mit sea tow bib ed baw Wher neds mamlodew 
"gid hodeurrixs Sarl on tedte tetd boTitdeed reWdwY eeffeqga 
eo add aitiners Ww ent myo. eid grade ot betotedde: of yraddad 
‘20 add to ebia ons va boodge ned? en dant’ poe” ob of efdent aw” dad tan 
wrt of hebioeb bas eadarcte need tht duodey so% breit? ‘eld of gia ied : 
eN sent :entfort and rewoh feo up ay iveua w ‘feo etd rade 04 i 
ae a eae FS agai Lee 
fa 4 





friend then took the driver's seat on the left hand side,or west 
side of the car,and that he went to the rear to push it; that 
just as he got to the rearf#f of the car,his car was struck by 
appellant's fast mail train coming ffon the west. “iss Huskamp 
corroborated appellee and testified that when he was cranking 
the car ne was compelled to stand between the rails of appellant's 
track; that as appellee started to the rear of the car she moved 
from the right hand side over to the driver's seat on the left 
hand side so as to ste@r the car while it was being pusned by 
appellee; that just as she got in the driver's seat she saw 
appellant's train approaching from the west and that she then 
moved over to the east side of the car and jumped out; that the 
next thing she knew the car was struck by the train and she was 
standing by the side of apnellee. Appellant's watchman testified 
that he remembered signalling appellee to stop; that he was then 
standing in front of ‘his shanty on the west side of the highway; 
that he signalled when appellee 3 car came over the Baltimore and 
Ohio tracks and continued to signal until he stopped; that when 
appellee stopped the front of his automobile was:ten or twelve 
feet south of appellant's tracks; that he signalled apnellee to 
atop because of the freight train that was coming from the owest. 
Tae watchman further testified that as soon as appellee stopped 
he stepped back over to the east side of the shanty to get out of 
the wind; that after the freight cars had passed he walked down 
to the main line to see if any other cars were approaching, and 
uvon finding they were not, gave apvellee the signal to go ahead; 
that appellee was: unable to start his automobile and got out am 
raised the hood of the machine and at this time there were no 


lights burning on the car; that he then went north over some of 


F) the other tracks and some ten or fifteen minutes later returned 


to the main lines finding appellee still there trying to start 
=j= 








. . ‘y ‘ak > mois, want: | 

des ro.shie toes tet odd ae droge . wevitb s arid _ Food aoad ‘ono be 
dad Fi deug of taor onl od ‘yoew ef dent ons, 159. edt to ebie 

d Yourte eae Yr9 ein, 19 end ‘Yo Taser ont ot “Soy oe oe tt 
qired ent se iit deen ed mo%t > Bnimoo bard tl iso: teed Pte feqqs ae 


anbinetS saw od cede ‘Sent pettideed ba solfeage bodetodovzo9 2 


; ghaist a : 





a'énatleqds to atiey add aeomted brade od ‘bel Sequoo enw on 189 ond : 
Sar Sere 
bavom’ ede te5 end ‘to test ond od beside eal foaqe 28 dent bers 


ftol eit mo deee 2 "sevixh and od T9v0 adie bone “barr 9 ond mort 
Bers Me ey 

yd heneug an ted few Jf ef idu 29 eid ode ae as oe ebie ch 
Ce Ae 1th ene ag 


wee ore deoe es "sevith ‘orld mf Jog ‘ole Be dent tend self 


Sates $F SAR Ey APOE 
worse oda ded ‘bat fesy ot mort srinosorags nistd e'danl Tenge 
f eee a feat ian 


odd dred - - duo heqmut here te9. ad Yo ‘obie deco orld ber t8vo ‘heron 
; Hl at ek. ans ag 
sew ate har nierd add \ vd dour de eey 1b ond wend els geridd dees 
ie gu gh LECh ee: 5 * 
bsitiseed namiodaw a! "taal fecod -eel foage to ebie ond ei) F gui brate 


sthEwe, iE, 


edd eew on fedd loose ot sel feqae ai engia betedmener an sant 


We pas: ray 


rypwdg it Shs Fo ohle deow ond 0 vied eid to jnor? ai yr f bade 
eS Shee So Por 3 
brs etomitted ond TSV0 emag wo a ‘eel feqge ede bol fergie ieee 
ar 


mere dei s beegode acl ff dag lorie oF ‘bax ideo bese sions ie 
4 ri ie Ts TENA ie 
Sevier! ro ted -2ew efidomodue eid 40. Jnovt exis beqqode sol feqqs 
Hah gee ARs ear. oe ee an hE EE 
“OF es Meee ellongia od dads vedors e ‘ina [feags to dévos feet 


gah ik aunty poe te 


View: edd sort grinds gay beds oberd digtort end to sexs peed aris 
(ae aha teed ier a | 
““Beoqote oof feqcs 6A moos Be ‘dans betTideed roridrat aauiodsw w oat ; 
ot fie 


to dio den od ‘ydaeds add to 8b i g Jase atid ‘od ‘revo “Hosd begged gese od 
sR grt 
mwoh hotline sq béeerq Ben eras dogiert end rod te tend i bai He 
mi? reoDhs A de yi es) i 
hie tidomoiegn Stew ates teito as bi 998 of ent! aim edd ot 
2 Fs jon evow yer’ ‘syti bat? meow 
;beede@ on ob “fengie ans $9 £ ay on ere ® fbi t 

: me ogg 3 corn my: wy wee Das ie 
“fre duo “tos brs slifonodua eid hate od olden B86 eelleqqa sails 
Ms Fc hintn BeEH at GL gaperd, 

oo 618% ersdt mete rd de bas ‘an itosm carla ‘to Boor ond hei 88 
(9-3 Boras, cena oR es 

To amok ¥sv60 fdvon drew fied od sesid stR9 edd ne se tortud bry iL 

PoE TLS Goat te Ei Sey oie ea 

herrrudey tstef eodiin ie ood tit +0 ned enoe bas efostd: see att 
: , a Annes cae Ws ae 1%, : 
rete 3 8 pribai ent l mt d Ot 
fred o anc sted Ide « 90! foaa: » gibt 7 = cee te ee 


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his automobile; that he heard the passenger train whistle to the 
west while he was standing xuuxs between the tro south main tracks 
and began to wave his red lantern across the highway; that at this 
time appellee's automobile was in the sane position as before, 
about twnor twenve feet south of avrellant's south track; that he 
then saw the car was being pushed up on the crossing anc called to 
anvellee,who stuck his head out from behind the machine and 
looked around,that the automobile wag: then struck by aprellant's 
train.. 

The testimony of the watchman was corroborated by 2.C Craig, 
a patrolman for appellant ,who testified that he was about 80 
feet from where the accident happened, seven tracks away to the 
north:and that while from where he stood he could not tell ex- 
actly where the automobile had stppédd,it appeared to him to be 
from ten or twelve feet south of appellant's south track; that 
he saw appellee pushing the car and it appeared to be moving 
toward the north although he could not tell whether the autono- 
bile was on the crossing or not.. This witness further testified 
that he later had a conversation with appellee in which he told 
witness he was trying to start the car by pushing it down the 
incline toward $he arvellant’s txaek main line track,when the 
accident havpened. Appellant's engineer of the train which struck 
aprellee's automobile testified, that as he aporoached and whistled 
for the crossing and when about two or three nundred feet from it 
he saw what appeared to be an automobile moving on to the crossing 
and that it moved out until the windshield was even with the 
south rail and then stopped; thatt he applied the emergency brakes 
which were in working order, but was unable to avoid the colli- 
sion as t train was travelling at that time about 35 miles an 
hour and could not be stopped in less than 600 feet. His state- 
ment concerning the application of thé brakes:was eorroborated 
by other members of the train crew.after the train was stopped 
ay 


edt od efisidw miatd Tego as and pr sen ei! dedt ; oLidomedus eid j 


Hin Pep dg 


Fite & 


exostt olen aduoe owt end needed wrmt gnibrese aew ‘on ofide teow “4 
eid de oeid jyewlgin odd eacios ateine! bet eis ‘evs ot aged. be 4 


yetoled Be Hold feog omee oid of Bew of idomodue e 'oeiLoogs omits a 


. 


eS ERY ae) al 


ended .; toewd atmos a " dt oliscas to Nduoe weet courant 70 nwt duode 


oe eee eee 


ot belive bre. gxteeots eft no gs ‘barteud sried ew #9 onl wae sont? 


Gai 


bas enisonm sig beided moriv: dyo been ein toute conte oa fg 


\ 
ay ey Ree 


el ine [Lorqa yd domrée sot eee ofidonedue ost ttl pavers sexoo! a 
— ieee 
he POhy RSE, capt Bald 


.BietTl.0.2.Yd dederodetioa esw semioden odd ‘to wromitesd ont 


set Lieu a 


08 duode baw on, tadd baiticead onw, del Lega rot nemforsE. 8 
end of yawe edoeit nevee, beregqseri dvebioor: ong oxoria mort ‘fast 
-xe [fat dom biyoo ef boote od orediw moti o Lire todd be sAeon 


Pree 


6d o3 min ot betaeccr 31, basqqte bad elidonosas atid ‘onede ‘\idop 
dett yrorrt Ateoe a! tne Leqqs to Assos feat oviows ‘50: red mort 


ie 


gerbvor. edt ot: benseqae dt bose 189 edd ft teense sellegas wer ‘od 
-orodys aid qadtedw [fed Jon {yoo on dAguerid Le dsron ‘oid ‘braW0! 
beitidged recdvol seentiv einT .den to palpaars ond 10. ‘new ‘elid 

_ bfod an si ete et eelleqge ddtiw: noitaere ves B. bed rots! od desis 
ond owob di iteug yd ne9 ott dvete. of ried eeu od ‘enont iw | 

end. cen, ford anit chem teaxt a! inst feaae ete brewed onion 
es fokiy aiatd onld.-to 190n ine ‘ettnaf Leqqh -beneagar! sneh toon 
befieicw ore bedorotaa& of es deels (bottitess elidorotua s' esl Teas 
di mot? Jeet berband estat ro ond twos aedw brie grieeore odd 02 
aiieeota ant of mo anivem elidémotus ne of od berseqas: dectw wa od 
ent doe reve ssw bleinabriw -ontd Lideias duo bevom $f dedd os 


hes AE panos 


setesd yonesreme aid bs iiggs eff ddesé beqgode: aod bas thet déwoe 


ee ryt 


~iffoo sd. biove 93 efdam: eae: tod, TebTo giirow ni oror “doidw 


ee (or 
as eefim Ge suede amid. dada te pit iovert Baw aietd ed ea noi 
a hearts ae 


-sieta.eft .deet-00a nit eal ats beagode od sen 5Iu00 bas tod 
eis 27GB 4 oes 8 63 

baterodoriey ssweedayd aad to nottnoilqae ond ‘gainreoroo | ‘dent 

5 ot Oa. ae y 


haqqode esaw miard old 799 th.wer9 nievd ond to: eredmen: Tadd 0: 
ce 


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‘sone of the crew went back to the scens of the accident. Appellant's 
cond#etor testifiedtnat he there had a conversation with apnellee 
in which apoellee told him nis car stopped between the Eh ltimore 
and Chio and appellant's tracks and that he jin attempting to push 
it over the track, pushed it in front of the train. This is sub- 
stantially all the testiaeny in the record as to what actually 
happened at the time of the accident,and we have set it forth at 
gome langth, because no complaint is made in appellant's argument 
ofthe ruling of the court in regard to the evidence or instructions 
and the arguments on both sides are almost wholly devoted to a 
discussion of the question whether the verdict of the jury was 
warranted by the proof in the case. 

In our opinion this evidence satisfactorily shows that 
anpellee's car vas in a safe position when the watehman left hom. 
It was no part of the watchnan's duty to see that appellee did not 
afterwards get his automobile into a cangerous position. (Fuller v. 
P.%.B.Union Ry.Co.,164 I11.App.385). It is charged in two counts 
of the declaration that appellant's watchman ordered appellee 

to stop and come to a standstill on the railroad track and cross- 
ing. There is no proof whatever to sustain this avernent and 
appellee's own testimony is that he stopoed within one foot of the 
tracks. The preponderance of the evidence does not show that 

the watchman was guilty of any negligence in stopping appellee,or 
tnat he failed in the performance of any duty he or aovellant owed 
to appellee. We are also of opinion that the greater weight of 
the evidence showed that appellee was athemoting to start his car 
by pushing it down and onte amellantts tracks’ when the accident 
happened. Wot only does the testimony of appellant's witnesses 
tend to show this fact,but we are of the opinion the circumstances , 
as testified to by appellee and his companion“ aiso to this 
effect. This would seem to us under the circumstances of this 
case,as disclosed by the record,to plainly show contributory 


<5. 








kit tee 
ainsilsqeh .tnabtoos ef¢ to enace add od toad, doom wera or de ou 
eal forge die moi deer evace # bed scent on Sand be itisesd stad 
esonitiel and seeded beatedw. tm. edd mi kd. blot eellegae stodaw :% 
deta o¢ apisonedts | af es dent bie etoatd, @ "Soelfeaqs baw 4 int bas 
-due et aid? ~.ebetd ede to daott of dé bedeng plostt -edd revo $i 
vi feud os steriw od er -breoer .edd ak Yon iaed , edd [fa yileinade . 
de dévet Vi ter svat ew how deeb ives edd te emitiedd ds banegqad a 
dosmryie e' doetfeags ai sham-ai tn telquos. on eeueced dyna omoa 
enoitouiteni 10 osnebide 9x! ot biaget at dxuoo sit to get iirr, eddie 
# of badoveb [ilodw Jeomia eve aebie tod no-eénomugraand bas 
gsw vie add lo doibrov eq? redtedwonoitesup.edd, to noieeusetb | 
= -s0n9 ond ot loorqvodd.yd bedaeriaw © 
dads eworle yfivedoe le itse eonohive.e thd : noiniga rio 0h me 
wml d3of nemdedes ond -nody aoidiaog-etes!aoai. mw. t#9 8’ a6 fleqga a 
ton bih eeffedca dadt eas of ydub a aamdodew-end. to.dtaq. oft ase dT 
.¥ tel fy} inetd fecg -epovagnad +e oduielidemodus aid doy ehrewred ia 
adaveo owt ni hegiads ef dl ..(CREaggha! {1 28Le09.ei- cote Gehe se 
tal isege ferebre cumiodex, 2 treileqqe dead, aoidetfosb, ed. to A 
~ga01n bus forys¢ hbeovfiat odd’ go Lfidebasde.s of emoe, bas qode,. od : 
brs dnarrsys sidd oledesse od tevedadw: loorgon es. e790, uae 
ald To Joot ego winiiw beqqode os) dadd et Yromiseed nwoe "col feags 
gadd woe: don aeob somebive edd. to soner ebaog ergo? eieets 
to selleuges guiggeds mi sonejifgom yur te: ylivg: ase asnrioden.odd 
bewe trelfeqon +o ac yiub yom lo songmretseq. ond. HL, heLivl on dade 
to tngher vhisew, edd Jett: netmiao, to, oe fr ore oF, . sel fogge 0d s 
Te9 etd donde od gaidqmetton exw salfecog ted, bewora. oonebive odd 
deeb iosso-erd cede edorts: eldantleqqs. edro: ben apwo bb Baideag x! e 
eengent iw e' inal lemag To yromisent ele. -eeob xlno, Jol bene 
Boone demori S ond oi igo odd Te. Tn ow dud. joel silt: wore oF ‘aed - 
>: pitied os iF BS ro ieiaqmoo ‘eis: be eolfeqgs NG of beitidesd en ie 
etd lo esonatemuorts end) mabe. 689 of: meee bivew aisl,...Joedie ; 
nan bck. sacl fp Tents ois br ons: eid seal an aee, i 
_ ws es 





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ligence on the part of appellee. 
We conclude that the preponderance of the evidence in 


is ease did not support tne ver¢ict for apvellee and the judgement | 








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tnatld, iat nat inatdod 





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BRS. Gea gauss Ne Sek tie epee ee eee ‘agan feos Sia 


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SRS 2 SE RCIANE DE: OEE SO aie Biba AR Ot 5 AR tae 











i aneae ‘ aie Samii ce ae Gee re east a ae eae e - 

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: ae ES ata ae 8 $58 snk fk: 





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me Se Eyes 3 Arenda No.14. 
APPELLATE COURT , FOURTH DISTPICT, 











OCTOBER TERM A.D. 1926. 
_—OHBNRY PINKSTAFF°et al, ) 2, Re 
PA 
ne Appellees) fe, 
v. ) Appeal from LAWRENCE, &~) // 1) 
cf / ‘ ; 
JAMES PINKSTAFF) ) ke Ra [Sp | 
\ a ee é 
Appellant. ) Wy é 9p —— 
fe De, hy ae pe] 
Op Ok vy Pes re 
Weise NN, 
Opinion by Higbee, J. "Er afte” 
Mo; t 


@--+00--- 


This is an action in assumpsit brought by Henry Pinkstaff and 
his wife,Ella Pinkstaff ,appellee$ against James Pinkstaff,avpell- 
ant. On trial before a jury a verdict was returned in favor of 
appelleeSin the sum of $329.34,and this apoeal was nerfected to 
reverse the judgment entered on that verdict.. : 

The evidence shows that appel lee, Henry Pinkstaff and apv- 
ellant James Pinkstaff are sons of Anna Pinkstaff,cdeceased,the widow 
of “artin V.Pinkstaff who died about 1904,leaving said Henry 
Pinkstaff and James Pinkstaff,together with Charles: Pinks taff 
and Susan Wampler as his only children. This suit was brought to 
recover for the attention and care given said Anna Pinkstaff by 
appellees,under an alleged contract claimed to have been made on 
February 3,1922 between appellees,appellant and Charles Pinkstaff. 
On the trial appellees: testified that Anna Pinkstaff had made her 
ome with them in the year 1919 and they had cared for her until 
her death on Degember 3,1922.. Appellee, Henry Pinkstaff, testified 
that on february 3,1922 ,his brothers Charles and James: came to 
his home at his request,and that he and his wife then told his 
‘brothers: that they would have to pay for keeping and caring for 
the mother; that appellant wanted to know what the “price was"; 


that witness told him it would be ten dollars a week when she was 
D) 






ohfoo shragh | Bios Gest : os are % 
TOLRTSLG NTAUOG, THUD STALIEIEA i 
PROT 0. Maer BAO TOO Bs! oa 7 
c | Ps One di 
“Sa ey ee oe a eae i ibibo as ‘YAMS 
: : . Cena ay Te ey acelfeqqA Soe Seen 
aN AS eieenwAd moti [eeqqd (= trons std igad Sa at 
Wy A 
A Ayo ok kre babetanz: —_ NS 
Ste ae oh 6 
ae e+ ee ew a ; ee | 
& Ree Ra ‘ By a a a . 
ee . .L,seduil vd Au d 
ess 


brs Vindwin 9 vival yd dsguotd ttequueee at coitos 15 ai ein ¢ 
~f feqrs, Medetni4 nemet ten tegaee! leage, Tatedatt al fd, otn etd 7 
to yovisl si beriwds1 sew JoLbievy 8 yw, & etoted feitt a0 dns : 
ot hadoetyed aew [aeoge vind hae, M6. OSES “to me end sizes! legge 
Jothrev dete mo beteidne srrompbut, end sue 
=o BR Hatesinid yrrel , se! feaqe dads aworle sone ive eit ea 
obiw. odd beexaoeh,Tlededaid anmA to ence ots Yist edn i9 pomel tnatfe 4 
wre bine agrivee!, A0CL ducds bath onw Viet eid, Vv nidtes To | 
ad sd esr £9 eefiedd dtiw tedtegod, Patadn 19 eemel bets ted edn ed S 
ot ddauornd aw tive sinT .metbLido vino eid as relamall neene bas 
| yd Thetedn co eh tee revig sts9 hae noidnedds ond tot tsvoDeT 
no ehem weed eyed ot bemialo Jonr#n09 begel fs rR yobau eee! fers 
tisdednit selva) bre dank Tacurn. eeelloaqs neous od SSOLE TAUT Sell 
ten ober eel Vadednid secerh todd bei? ideas: esol foags. [airs eid 0 
Lite red sot berea bad yodt bers Ofer “TSBY exid at mest Adie emo 
het tidead Viedowtnid ytaell , oe! Leama oer, & +rodmenell fete ddsob red 
od sao eemal bee eolrsdd arositord eid, sser VE  Prawrdel no Gadd ; 
eid blot medd otiw eis his ed Jedd bas. Jeoupet aid de “enon Bid 
tot af Exes bres artigos 10% (Aq od 9 vad binow ‘yond sedd eranitord 
"gem 89 gra" edd deodw wor ot bednaw dnslleggs todd. 4 tedcom odd “¢ 
enw ore ironies jeca a axeliok asd ad bidet di midi blot esent in tet 

















up and around the house and twenty five dollars when she was down 
in bed;. that appellant said he could not keep her and that he 
would pay his part; that apnellant further said if they would go 
ahead and keep her the rest of the time she lived they would pay 
appellees what was then due them "back pay and all"; that they 
counted up the time and found the mother had then been with 
appellees thirty two (32) months and appellant said "all right"; 
that there were four children then living and appellant said he 
would pay one-fourth part of the amount there agreed uvon to be 
charged by appellees;: that it was agreed by those present that 
each child should pay one-fourth said charge® but that Susan 
Wampler was not present to join in the agreement.. Austin Pinkstaff, 
a gon of appellees testified that he was present and heard the 
agreement made and that it was as stated by his father. It appears 
that Charles Pinkstaff later signed a written comtract to pay his 
share but the evidence shows that appellant on at least two 
occasions thereafter refused to sign such 4 written contract, 
stating that he had not agreed thereto.. This suit was brought 
against appellant to recover on the alleged verbal contract. 
Appellant denied that such an agreement had been made at all’ and 
in this was to a large exteat,corroborated by his brother, Charles. 
Practically all of apvellant's argument is devoted to 
the contention that the evidence does not show the agreement was 
entered into,and that appellee's testimony does not show any 
consideration for such a contract,so far as pay for the 32 weeks 
prior to the alleged making of the contract,is concerned. The 
evidence as to whether or not this agreement was entered into is 
directly contradictory,and it was within the peculiar vrévince 
of the jury to decide what witnesses they were going to believe. 
They accepted the testimony of appelleeSand_his—witnesses. The 
trial judge,wmm who saw and heard the witnesses testify,by 
overruling Ytaaté on for new trial,was of the opinion the verdict Hath 


ae 


epee: kt Ms 
BE 5. eae y 
ah a: fog 


nwo sew ode cerlw evelfob evil ydaeud bits asood od hoswak nie We 
an ¢edt haa ted qeed dom biuoo en bisa dns{foqqs Jedd ;bed ai 
om hisow yerdd ii bine reddtt jnefloqqe tedd ;dteq Bid yeq bluow 
yao binow yedd bevil ede omid odd to deot ont ted geed base baede 
yadd dadt ; "Lis ons yaq siosd*. mend sub nedd esw tasw eee! locas 
adiw meed wedd bed reidom end bavet bas omtd orid qu bedavoo 
"dogo fle" “hide gamlleqas bre eridmom (S83) owd yiridd eee ffeqqe 
ad biee deefleogs bre gaivil nedé mevblido wot ever arend dei 
ed oF moor heerge etadd dnvome adt to drag déwot-eso yeq bivow 
sadd dnspete enodd yd bsexgn eaw ti dent -:eeelleqqa yd. hasrario 
Bae fend dud bogtado bise ide -smo veq b {yore bliss fione 
Pisdednid nigeus — _. dnromsoTgs ent mi alot ‘od dreeeta dott aw x0 fqmsl 
edd breed os dnoeatg sew off denis baitisess, eos legge. to foe 6 
erseqqs J wtodds? eis yd be¢ete es Bsw ae sald bas ebsm ‘SnemesTge 
gid ysq o¢ tostdmoo nedtinw # bemgie wabas Yadetnid eeftend Jedd 
owt dasef{ ts wo dnalleagqr dads wore eonebive ent ud et sie 
tosvinos metiliw © dove mia ot beenter ted tseTadd | ‘2x10 12.8090 
dirord gew dive einT .oderasd pootgs ton ‘pad od dad ‘gatdade 
.dostinoo [sdtev begel Is edd mo TevooeT od dnat Teqqa Jentage 
bed (ie da ebem need bedi dnemestss ns Hove dedd beimeb dnestoags 
.eaivsd? yedtord ets vd bedstodottoa, thedxe egisl 5 od esw Bessa 
+ bastoveb et dnemugts e'dnelfecce to Ifs Uleottoerd Nae 
Baw  jremesras ait wotle ton 290h somebive add decd noitnetaos end 
yrs wore ton ea0b “yromidgod e'eolteqqs tant bia. odmi betaine 
adeew SE ert 10% vey ep ist oB, tosténoo ‘es dove tot noiderebienoo 
ef? .bemteosos ef,doetino9 “edd Yo gn bole begelis. edd od “to rrg 
ei oink beredne saw dremeetar eidd don ro reddenw of ‘26 sonedive 
ancl vero teilsoeg add middiw esw oi bra roto? ber mo yidoerib 
.eveiled ot anion eter yeudd soneend iw dadw ‘ebioeb o¢ yw etd to 4 
an? saasondinei bar teo! Lore to yoni dees ont ‘betqeoos wat 
yd, Yi ideost eeneontiw end braed bas wee “ontw 1 rebut Tsty 
wank} Yo 26v8y aft noimigqo oid to aew laird weet tot xo Ed on bbe 


; ee 


stand. Phawe was proof to warrant this verdict and this court 
cannot hold that it is so manifestly against the weight of the 
evidence uate is ec ee it,should be reversed. 

lft appellee y ‘testimony considered as true,there was a 
consideration +o support the agreement to pay for the services 
already rendered at the time it is claimed the contract was made, 
since he swore that appellant agreed that if appellees would contin 
ue to keep and care for the mother until her death he,appal lant , 
would pay his share of the amounts mentioned not only for such 
time as she would continue to live,but for the 322 months prior 
thereto. 

The only other ground urged by appellant in his argument 
for a reversal of this judgment is the fact that nine instructions 
offered bysappellant and refused by the court should have been 
given since they stated the law applicable to the matters of dee 
fense. “e does not,however,assist us by indicating wherein the 
trial court erred in refusing the instmctions but asks this 
court to examine them and "see how important they were to the de- 
fendant".. In compliance with this request we have examined these 


instructions and have failed to find that the court committed 






any error in refusing them that would call fora reversal of 
the judgment. 
Judgement affirmed. 


Nol CG be reprtel 


dfuoo aidd bas Jothtev sidd dnertew od Yoorg sew ere? baste 
edd to ddgiow ord Jentegs yideotionm oe ei Jt Jedd blod sone? 


-beetevet of bipore di mogu _Peead. 





& 8ew siodt.eutt. es becabsnnop, eS ee aL 
seoivres aid tot ysq od dnemootge ert drogque oF bigakens 
eben gee Josiiroo odd bemisfo ef df emit en? da. berebaet ybeorle 
nidmos. blvow eselfeoqs if. Jats beetas daslleggs Jand or0ws sit eonte 
yoael feqqs oA itasb sed f igo tec om ene rot etso bas good od eg 
dove tot wine J om berot tnom etnuons edt to etsce ein Yeq 5lyow 
voinq addnom Sc orld. 101 Jud,evil of eunitcioo. bivow eds Be suid 
s Grins Gee 


doamumres aid at inal loags yd hea. brwor tetto yfoo ont | 


oscil 
enoidoutjent emin dads dost ont ef drromahit Bint to faevaver & ee 
-moed eved biyoda di09 onid yd beeuter brs apt eanasyd ber otto 
~eh to eredism edt o¢ oldsotiqgn wsl ent bedate youd conte nevis 
edt aistorw gniveotbat yd ex Jaieea,revewod, ton esob. 6A .. epret 
aidd atpe dud snoitomrdent oft antevler ni bette twoo Isint 

-8b eid of etew yond daedtoqmi wor 99k” brs mode on imexe, od diweo 
eestt benimexe eval ew desupst aids ddiw eonsifqmoo al. Be eg sri 
bedd iemoo Jdyvoo ect Jando batt o¢ belts) evad brs, aco tdourd ent 

to [eexovers tof LI#o bivow tad motd ga tevtet, af torts yas 

+, Cen ea erent al 


RO Leis Sop y ant 


aborritts Jnomhu’ 





Te Picsate OF Se ie ae 
: 32 bee wo a Ba eee. eee 


SES oe a at te ee Se eat ae Pe 
Aig, Cee ee NE feet, ets my 


IR Ea eee ee a ee eS i sie. Ae ee £ Fay Ko EI dics ae: vers 
rote ease (eke toe 95 (. Seepeie 


Sorts? “Les whe Me fie rato 


ys tae ahs: 
Term No.b8. ae Agenda. No.1l. 
Appellate Court,Fourth District. 


October Term, A.D.1926. ~ 


-<e-909=<6 = 

ee ee 3 
JENNIE KERINS, a 
Appellee. 

v. | Apneal from 
JAMES R .PRUIT7? and MARTHA G. ST.CLAIR.. 
PRUITT, his wife, HENSY T.RENSHAW, ce ae ee 2 | ee 
Trustee ,ZNRY BERGMAN and THERESA LOUIBE” i Tes Tins 
BERGMAN, his wife,and PETER WITTENAUER, ) eae ee Wy 
(HENRY BERGMAN and THERESA LOUISE 5a. Fig igs 7 
BERGUAN), A i 


Appel lants ) ) Tobe JA 


Opinion by Higbee,J. 


o-<00ecee 


This is an appeal by Senry Bergman and Theresa Louise Berge 
man from a decree of the circuit court of St.Clair county, ren- i 
dered on a bill for foreclosure filed by Jennie Kerins,appellee. 
lt appears from the record that on October 8,1918, James 
R.Pruitt and “artha G.Pruitt,his wife,executed a mortgage on cere 
tain premises in the City of East St.Louis to Henry T.Renshaw, 
trustee, securing the payment of a promissory note for $950. This 
mortgage was recorded November 14,1918 and shortly thereafter 
Renshaw sald the note and mortgage to appellee. No assignvent of 
the same was placed upon record, but Kenshaw endorsed the note and 
delivered it together with the mortgage,to appellee who has since 
that time retained possession thereof. Until April 8,.1920, Renshaw 
collected the interest on this mortgage indebtedness,and paid the 
same to appellee. On Hiarch 28,1919.the Pruitts by warranty deed 
conveyed the premises: covered by this mortgage to avpelads . The 
deed provided that it was “subject to mortgage of $950.00".. On 
March 23,1922,appellants executed a promissory note to Henry T. 





wp aeaecrai’ 


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ido ixseid HOt, Hed" soattaet 
ne ee Se fF. tt: AumteT biepiac 








Pcie) ei“ iet jy Mert ibe . fe tes elo 
Se saa cael he aaa ayes Sy nk aizskga wl ea NT al ae 
mS S %; "9 KA Se ce <a th else 
: $s: “it? 7 Fae claad f die f Fi 
eee | ef foaaa, 
gor? Ieeqgh ee, a farts ‘at: 
Se 9 ARTAAM 
Se hia? ae neve. 
rah. ack co8h ab , aR LUOI 'A Alaa bn Wal 
Oy eee ( TeUAMATTIY antad beir .e 
eee al wan ¢ Se1UGd seas boss uso 
ap pote’ ex (ednel feqqh ita. tua et 
oes at pat ) | ite a tameseeen 
5 ee gedg itl na pany ce fied fopttened hen att be 


aie o: 


. eo etna: ; 6 ee mass ‘ aie, ayia 


_ ered: ga thed eBersnT | ‘ing (‘hatte ‘ytned yd Ieeags 8 cae “age ma 


“aa%  ydnsie a” ais. $2 to doo divstis ond to. serceb. a mort ‘asm 
‘Yeolfsqas.enitel atacel yd belit e1ta0fooT01 or “Eid "sg no teieb 
Gouiel BIOL rededod no dail bioosy add mvt erdeqge FL” ne) | 

res 10 aration s Seduoexs,stiw Bid, saint. 3 adste™ ‘bas ita. 
medecal.T. yrnal o¢ sivod.J€: feet to ytid-eddd ai 268. 
ein? .0G22 sot eton yroeeimotq-e to Jnemysa edd sp irwo9e .86 rr *; i 
vad tested) softy ote bar S{OL, M .redmevol “bebrogst eaw “open : 
to dem tena, of -ool Lega, od enetd-tom | bya ato a2 0% 
bis eden od¢ beetobse wacieel did brovet aogu paosla 98 ‘etd 
sonia ext odw ealleqqs of egegdrom. odd siti reddegod $a: sbeseake ss 
wadenol SOL ,8 Lines {idee ostaiit noieeoreos benteder emid Jedd . 
and Biaq be peonheddehnt ogeg tt ow. siad 10 deeteini ond: pedoal loo 
bash vinsriew yd adtintd odd. CLOF AS forall a: .eelleggs o¢ omse ‘ 
Awsacs ot egesdrom aids yd betevoo reesimerq ont ‘boyeumod: 5 
0 .700.00% to ogsadram od tootdue® eew di dadd.bebivorg | bead : 
.T yume og atom yroeeimorg & bedyoexe. ednst feqas SSL .éS. dovell 


















a Renshaw, trustee, for $1200,due three years after date and at 


_ the same time executed a mortgage on these same prehisea to secure 


this note to said “enry ?.Renshaw, trustee,which was recorded on 
“arch 27,1922. At the time this mortgage was executed Renshaw 
told appellants that he could not deliver them the old note and 
mortgage that is,tne note ard mortgage = in this suit,un- 
til he had had the mortgage released and after thak it was re- 
leased he would mail them both the note and mortgage. Appellants 
did not see the note or mortgage at that time and as a matter of 
fact Renshaw did not have them in his possession, 
On #arch ot Honcho filed for record a release of appellee's 

vee it Py 
mortgage dated March 28,1922. Out of the $1200 provided for by 
appellants’ note and mortgage, Renshaw paid them 2270 in cash and 
retained the rest in purported payment of appellee's mortgage 
indebtedness, but no part of this was ever paid to appellee. 
It appears to be agreed by all parties that appellants’ mortgage 
for $1200 given by them on #arch 25,1922 is a prior lien to 
appellee's mortgage and the trial court having so held that 
question is not before this court. On April 14,1922, Renshaw 


assigned said 31200 mortgage to Peter Wittenauer. 1+ clearly 


appears from the proof that Renshaw's release of appellee's mort- 


&%ge was made without her knowledge and was fraudulent. Appellants: 
knew of: appellee's mortgage and the deed to them from the Pruitts 
was made subject thereto. Appellant Senry Bergman testified 

that he was to pay the Pruitts: $2009 for the property;that he 

paid $500 in cash,gave the Pruitts a note for 9500 and was to 

pay the said $950 note. The payment of appellee's note wags 
therefore to be a part of the purchase price paid by annellants 
for the premises. Appellee,or her son for her,has always had 
possession of the note and mortgage fron the time of their execu- 


tion. The proof does not show that appellants knew Renshay vas 


~2- 


“ds bap egeb Gadhs Betsey eethd oud, 00818 not -eodedriaeman 
evose od eedisera amsc seeds wo aneydvom & betusexs wats anee eri 
no befrosst sew doinw eedeurd wedeneh. 7 ‘vise bise of eden ein’ 
wenaneil beluoexs ‘e@aw onssdeom aad emit aid dA. SSCL. 9S done 

ane eden blo odd mods reviled 3 on blgoo: ed. SaaS eine l toqqs: blog 
-my,dige -eind nt ie ogrgttom bres ed ont edd vet dene. agsgtten 
-s1 saw di tude tefls bas beeseler ayendiom eid bed bed od Lid 
eine! feacA -.ogeadros bas eden odd figod. mend fia biuow on. bees! 
to teddam Ff as bas emid gedd te egead tom, 10 ‘don ‘edd ‘98 cc ‘bit 
coigeeasoc ein! madd eved°sen°hab wadenehe dont 

a'esflenqe to seesfet a brooey 10% belit a aa coral nO be 
yd tOl Sebivera OOSI% edd To #o0-.S8°L.8S dota boteb pene. 
baa“deso ot OVS? madd bieq vadened, egngirom bas ston *adnel fogge 





égrzdror ae’ selleqqs to tuemyad ' badtoqiug at deer ant: bonister 
Bod nan ad biea reve sew eidt to treq on Jud, sesnbeddebai 
saegdvom 'ednelleqar tedt welding Tie yd beotrast od of: arpeags a1 
od weil soitg © ak, SSer és dora a0 mons vd mevig: OOSIE-101 
dadd “blot 08 sien Jiyoo [pts sad’ bre exsgdTom &: "est feqqe 
‘wacenet, SCOT MM fivgA-n0 “.d1uo0o eint ereted-ten’ et so ideaup 
yfveefo 41 revenadvil ted0% ‘ot egegtrom 0081S ‘bine bengiers 
«trom e'eelfegqs to sanclor & ‘wedeneh ded Toor end wort erseqye 
adnelisogA .inefubuett eae bas eybelwend Ten tvoddiw-obem ‘aay Ogee 
attiutd erg mort miedd of beeb erfd brie SxendT on! eee! feqqe to wom 
baitissed samored yime" dnalleqgA lodetend footdee ‘sham eer 

oN dandiydreqota edd +o? OOOSS ete tea “ond gag oF ‘esw od daiid 

o¢ sew Bar COGP rot atom 2 eds tind ong svg. dero ot O08  bksq 
 esw odon e’salffecas to tremysd edt socom CGeo b fan end yaq 
atael leaden yd bira soit easdorug edd to dtaq 6 Od ‘od stotetadd 
hed avewle sas .red vot noe ted 10 /esfloqqA-“Peodimarg eld ot 
-yoaxe yiedd ‘to emis sad mort opendiom his eton°Sdd to to ieeeeeod 
paw werered word oe dadd wore’ Jon -eedb™ loorg Sx? Hold 


aos te bgt 


Pixid ee Teh PT pee % 


-S- 





















the agent for appellee or that they relied on that fact in the 
transactions connected with the execution of their mortgage. 

The factt that Renshaw was made trustee in the mortgage 
gave hin of itself no right or tse authority to receive payment 
of the debt secured thereby (Leon v.WcIntyre, 88 111.App.349). 
If the trustee releases a trust deed and recaves payment of the 
debt without actual authority and without producing the securities 
the party paying has notice of the want of power in the trustee, 
The inference of authority to receive payment of the securities 
is founded upon the poeesssion thereof and it does not exist 
without possession. (Fortune v.Stockton,182 111.454; Stiger v. 
Bent,111 111.328; Keohane v.Smith,97 111.156; King v.Harpster, 
306 111.202.) 

Appellants having made payment of anoellee's mortgage to 

the trustee,Renshaw,when he was not authorized to receive the 
same and having taken fron him a release without obtaining the note 
secured by said gericsaw ts ehareesbie with notice of Kenshaw's 
want of power to receive payment thereof and release the mort- 
gage. In accordance with the law as baid down in the akove au- 
thorities anc the facts shown by the proof in this case,the de- 


cree herein must be affirmed. 


Vat | : Decree Affirmed. 


\ 


ant at dost dat no betier vedd tend. to. ea fieqar’ rot ‘rege sel 
-ogagivom viedd to soi tvosxe snd div betoonmoo vero itonensy: 
ansatrom add ni eodauys ebam ear waderel dadd: ddoa? of? 
inemyse avisoar od ytivediue ee 10 dduiy on TMoeeti to: niet ‘ve, 
(O88 qk. Lil SB,eumteied. v nos!) ydeterd ‘beru.em ddepredd: BY 

edt To. deremyad sevnoor bie ‘heeb tend #2 eeaselet eotentd) “ent a 
asidingoer end aniouborg: Sonate bras ydirodtues Laud ome duauld iw: ddl 
eoteuyd oct. ai tewoq to tnaw edt Io saison eed ga tyag ydrag eri 
-esitinnoes edd to dnemyeg sviexst od: yd trodéue: to eotereimi Si 
deixe Jom eo0b divbas tooteds soteeessog ant moqit bebitiobe 
otWotemit® ;AGh, IL] S8ijnotdoose. v' attrdrot) “00 Leesaeod” duoddt 
todegvel. + gaih :OGI. 111 TC .ddim’.v omsdool; 888s LT {LE dine’ 
ey | | (SOS SfIT- 80 
ot egendiom e’eelleccs to tnemyaq aban arived ednal feqas™ sti ates 
adit evieosr od bositodtus don esw od medw, waleof, sedeutd ar, 
eton edt ariniatdo juodd iw seselet a mid mo1t ceded oqnived basveme 
e'wedenel to esidon atiw af Shicnses: ogentrom bee yd bewwoe 
-trom ond apaofet baa toasters droniysa evieoer od rewog to dna 
-ue evode oft mt mwob bied ee wel ond ddiw somebtoook al. ee: 
“0h oft,eeso eidd of Tootq end yd mwode. adost ond bs eeidinor 
-,bemtitts ed dagm ntered ser: 


eSNG bai eo 





bem kita *eetoeG :: sco lege “rer 





Rais 3 Wi, A EES ae 
i PCS Se, eu 2 

Ray ae ae “ae pa se 

(i he Eley nit ie 
grit Te On Roeen 


% é tangas 
Fever Mogae vas eat 


aa %, j pi 
Perm No. 61. . Appellate Court | f &_ agenda Now 5. 


ra 


Fourth District 
March Term, Aw D. 1926. 



























Lf 


es. Nee Opin (On 


hn Pp, Keim, 
f Appeal from Circuit Court 


Appellee 


of (Vss of f= j t} r 
/@, Kenehaw, et. al., St. Cleir Countge Os fer fy) 
et Miller and Fé meh Lis 


ee tN ee et Se Set er Seer 
t 
w. 


m Monynihen, 
Appellants. 


OPINION BY HIGBes, J. Meinggt 


4 On October 17, 1922, John P. Keim, filed his bill to the 

mary term, 1923, of the circuit court of St. Clair County to foreclose 
ertain mortgage making Henry f. Renshaw, Nettie P. Kenshew, Willis 0. 
Sarah Mayo, Margaret Miller, John Monynihan, Alex 5. Vien, 

P. Murray, Jr., and N. ¢C. MeLain, parties defendant. fhe bill alleges 
st on April 16, 1911, Willis 0. Mayo and Sareh uayo executed and delivered 
Henry fT. Renshaw, trustee their promissory note in the sum of 41000 and 
secure the payment of the same executed the mortgsge sought to be fore- 
sed) which was duly recorded on the 27th of April, 1911; thet shortly 

27 the execution of the said note ond mortgage appellee becakée the 
thereof, end has continued in possession of the same up to the time 
filing of the bill. 

fhe bill also alleges that Margaret Miller purchased the premises 
sd on the 1zth day of June, 1919, at which time appellee's mortgage 
record, and that she had due notice of the same; that on April <5, 
enry T. Kenshaw, trustes ,freudulently released the mortgsge involved, 
fp one John Moynihan claimed to have some interest in the premises as 


23 that the other defendents nsmed claimed some interest in the 


hargeret Maller filed an answer neither admitting nor denying that 


| were: indebted to Henry T. Renshaw, trustee in the sum of $1000, 











oe Peay geil ee 
. arecgqe Leta edt at peaoltman ano est 8s cassia 2 sous feats 























oC sO sb mega >... ‘ P $200. etslieqqAa 
whhaleis ia dor 0% ee 
. woser re cA arter tienes: ae a 


% 
ie see a nh 
w (= ‘ Teeny feaeraine 


y Ro ee Be OP BR G 
pe a tad nS Pre 


Sas BPRS Sais ohm e ee 


‘5 shew Ree 
ae ‘ “3 


noiege eo 3k he Pago. as : 
~u OD Sivoo sort Koa ph aes ae 
; ‘ > - as > pire od es 
4 ake sea e230" .t3 date 

ss 


“Jot ase OMe 
bs” 5 alas RARER ae eee re re feet: me worurso. : oe 


| ‘ed? of hdd elt dolst ,oFox densely “/S8QE ON Po tedddn Gao: 2 
esofoezot ot ee e090 ttsio we to dayoo Sisotto ets: to se aie 

.O eLtnty’ viiedanod 4 ete vitedatien zh “ce ael gets egedgeven a 
wei" Ve eoLe ‘Vash awn ‘aot Toit bi soregeall Oeil” deme 4 

aexeila iit oat  ataspnetep seitiag | thadold Pore bie rea ci i 
borevites bma besdnexs “OA detsd Bas ‘Sedu 40 abit, SLEREr et! 
bas 2005 3 to me ont RE ‘Fon eye ietse: Spe sovewss snutonois 





- gitone tacit wer tira ‘te jaar vat 0° ‘pasted tnicaasabean bes 
oid opfiasad oviiegaa egeg irom bite ete ‘bine ont eacituoene ont 
. eatkt edd ot - ‘Sia: ont to Herseonaea t at bonsittnos ged ba: stooredt 
BEN at Maan 
geu bhorg ote benadong tolt tt toxayiail feat p eogeita’ oa da ‘Etta: off is 
egegtrom a tesifedda oat doidw ta Oren Bante to” ‘ee ted: ‘ent ae ‘bev 
Ge fi Mi “BO ait jemoe edd to volt om sae ‘ball ot “tact jas on é 


; sootivags ‘to agayis oa Pe + footdue bits “TOree kat ee 2 
stadt gat yueb rom anttd inbs “eeddieon ‘Tewans” ‘ne ‘poLetes EERE. 


or to mua. aut Bt eoteint Scones oe ‘ertiell® of: ‘baddooet ore fer 





































ra, and alleging that whatever indebtedness it was given to secure 


been fully paid; that the mortgage had been released on the record by 


end that the sale was not a lien on the premises 


ary ft. Renshaw, trustee, 
This answer further alleged that on June le, 
Miller a bond for a deed for which 


ser ibed. 1919, Henry 7. 


w executed to Margaret ghe paid 


Wo 900, cond itioned that when this smount wes paid said Khenshaw was to 


eute her a warranty decd, and she was to assume & mortgage of §1000; 
the last of these payments had peeh made, but that said deed Was never 
ted, ana that the bond for 4 decd given herby Renshaw was recorded 


the 29th day of August, 1922; that she went into possession of the 
O— 
perty upon the execution of the bond for deed, ané hed continusd in 


session thereof ever since; that she, the gaid Margaret Mdliex, was 


premises from the said Henry {, Renshaw. 


titled to a a@eed to said 
: John Moynihan filed an answer eontaining the saue statements 
eming the execut ion £ the note and mort 
Henry T. Kenshew and his wife 


gege in question, and further 


leging that on the Biel, of April 1922, 
recuted their note in the sum of yL000 to John We Renshaw and also 
recut ed a mortgage securing the payment of the same om the same property 


that said mortgage was duly recorded on 


sseribed in eppellee's mortgage; 
ot set forth, purchased 


e zist. dey of April, 1922; that he, 
r of this mor tZege + and at the time of his 
produced a certificate of title issu 


on some date 2 


nd became the ows purchase of 


game said John We Renshaw 


st. Cleir Title and Guaranty Compan 


ed by 


y showing that the fee simple title 


0 the property involved was fully vested in Henry T. Renshaw end Nettie Pe 


fe and thet an examination ot the record 
that the mortgage held 


and to 


Renshaw his wi then showed that 
ellant had been reieased; 
r to the mortgage owned by appellee 
Replications were 


the mortgage held by app 
by said John koynihan was superio 


ny interest of Hargaret Maller in or to said premises. 


Piled to these answers, and the cause referred to the Master in Chancery, 


report of the Master in Chancery the court aiter 


on the coming in of the 
entered a decree finding that en 


overruling the exceptions thereto, 

\pril 15, 1911, the Mayos executed the 

and that shortly thereaiter 2p 
aie 


note and mor teage sought to be fore- 


losed by appellee, pellee became the owner 


TSP 
































8tN98E-GF Hors 


ki ye “eae eet ode 





Lo beasetor nved bed 2368 00. -etseada. 


; 02 fare my edt BO Me FL w. Poa. Baw ous edt dads , 


PvEreH pe Les phat ere fo teas sid, 
. bisa -ege doidw tot Beek. 8 261 SRod a. ‘tOLlte gore 
| at Baw. sa asec La ae eae, g 


Ny 200088. to. 


aw jamome. eke meee. 
899327 0a B ances of. egw ods baa, 


TSVON war Mook Saat tase. tud ebae tie bag. athe 


bebt opis : ‘2W waderes odeent aovig beeb s 5. 
ese 3) sotsgeagoq otat tnow eda tas 


—Q 
| : BRE Savatiase. wed bre. .d098, x0% baod odd te mons 


SOW Geli SetegzoK, btag_ eft ode tae, 


is wadenoi of exnel Sise edt mo x poe tuend, 


sd eiavaetada: emse oft. SRtnt atn09 Sowoms ae, be, 
: teddant one Bolte y. sk exegdr om. baa, otom, end 
-oltw a tel baa wedened ig eral. S80 Steps. 


eete: bas» Wedewed Cun auto. ot C00LG: 3 
YIRogoxg eneg. ond OIE 


fO Seibteoer ylep aw 2983 7% oo, bles tant. 


beesdorsg efiltot tos. Fon. ered onge ot dads 4836 s 
aie eacdoxsq sid to vik edt. +2: Bas. + som 


¥d bouset Biter 0. etagi isos a boouboxg 


ltt olqmis ‘eet edd dads Beiwod a karoge, . sates bao. ; 
at aévten Sits wastes 





2 tanek ag bodsey. elles aw 
fait bewoda aeds. ‘Broper edd to Sottansnsxe 





blot sas Rade Os ont tee eee aet need Pot. 





e101 od. 08 te ousat soa 







































that said Henry T. Renshaw continued te pay the interest to 


e same; 
that in August, 1922 the firm of which 


lee up until April 5, 1922; 


4 Henry T. Renshaw was 4 member failed and was later adjudicated a 


that on Seprember le, 1219, the Mayos 
‘but made no mention of the mortgage 


krupt; conveyed the prope rty 
bived to ssid Henry 4‘. Renshaw, 
nvolved, in their deed; that prior thereto, on to-wit, June lz, 1919, 
_* Margaret Miller made & contract or bond for a deed with Renshaw 
- the purchese of the premises herein involved subject to a thousand 


of which was & 


on of said premises, 


ar mortgages, payment ssumed by her; that appellant 
ler the reupon went into panneres: ana eontinued in 
phe possession of the same to the time of the filing of the bill herein, 
el, 1922, said Henry @, Renshaw, as trustee, fraudulently 


on April 
ee executed a release deed, releasing 


without authority from ap pell 


ellee’s mortgage, but thet said release was not filed for record until 


‘oril 25, 1922; that on April 21, 19%<, seid Henry TI. Renshaw ené his wife, 


a by appeliss’ Moynihen, 
6 of appellee's mortgege was filed 
was shortly aiter the 


sxecuted the mortrage owne which was filed for 


ord on the same day that the releas 
record; that this note, dated April 21, 192, 
a to appellee Moynihan, 


ubt as to the dete when 
cord after the Renshaw fsilure, 


execution thereof sol 


3 that there is some do Moynihan purchased 
‘ame Loan; that he filed an affidavit of re 


he acquired it April 21, L922, several 
but that in this case he 


stating that days prior to tne 


peoording ef the release of appellee's mortgeze, 


testified he purchased the same on april 24, one day sien to the record=- 


a ng of the release deed. 
3 | fhe decree, then, after referring to some finding in proceedings 
shaw firm concerning which no questions are 


in the bankruptey of the Ren 
he time of the purchase of these 


_ raised on this appeal, finds that at t 
"premises by appellant, Margaret Maller, vuder her bond for deed, appellee's 
and she was charged with notice thereof; that the 


- mortgage wes of record, 
1922, of appellee's 


by Henry T. Renshew on April <l, 


lease deed executed 
s ordered and decreed to be 3et 


orteage was null and void and the same wa 


-b- 


ee 
= Re ER 
ae 



































oF feorotae osit Yeq. 


fon. to att edd “eset. atangoa ak tate’ 4sse 


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It was further decreed that the mortgage owned by appellant 
nihan end afterwards assigned to Ralph Cook, which assignment was 
pavers, was null and void as against the rights of appesilee and 


nt Margaret Miller, and appellee's prayer for the foreclosure of 


mortgsge was allowed. From this decree the defendants Margaret Miller 


hn Moynihan slone ap pealed. 
fhe evidence shows conclusively thet appellee's mortgage had not 


4 pate ana that the release of this mortgage by Henry T. Kenshew trustee 
asudulent and without authority from appellee; that at the t ine 


y tT. Renshaw gave lsrgeret Miiler the pond for a deed appellee's 


teege was of reeord and she assumed the payment of the same; that at 


me appellant John Moynihan purchased his mortgage, appellee's 


ge had not been released of record. Under these circumstances it is 





r that appellee had not in any way lost his right to foreclose his 


Zee ‘the only question involved on this appesl is appellee's right 


Beereciogare of his mortga 


te 


ge and as the proofs fully sustain the find- 


¢ the chancellor and the decree entered in accordance therewith, 


th decree should be and is here by affirmed. 


Gy he uprth 


DECRHX AFY ThieaD. 


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TATE OF TLLINOTSe@™ <o 

PPELLATE COU) Re OS 32% A 
CPX EP 3 

CURTHE Dales Lec Ring 


ICTOBALR TER en Del masa Omie 














ry ro 


bet Som Agenda Noe 5e 


erm Noe 61. 


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JOHN P. KEIM, | 


24 i of, Li A 
Appellee. ai as 
Aopeal from the Circuit Court 
‘VSe of 
St. Clair County. 


HENRY T. RENSHAY, et. al. 
MARGARET MITLER and 
JOHN MONYNIAAN, i 

A-vellants. 


SS SOO Oe OOo 


Higbee, J. - On October 1/, 1922, John P.keim, filcd his bill 
to the January term, 1923, of the cirevit court of St. Clair 
county to foreclose a certain mortzage making Henry T. Renshaw 
Nettie P. Renshaw, Willis ©. Meyo, Sarah Mayo, Margaret Miller, 
John Moynihan, Alex. S. Vein, ii. P.Murray, JY, and N. C. Me 
Maactontint. The bill alleges that on April 16, 1911, 
Willis 0. Mayo and Sareh eyo executed ond Gelivered to Henry 
T, Renshaw, trustee, theixy promissory note in the sum of $1000. 
and to secure the payment of the same executed the mortgage 
sougth to be foreclosed, Which wes duly recorded on the 27th 
day of April, 1911; that shortly after the execution of the 
said note and mortzage aypellee became the ovmer thereof, and 
hag continued in vossession of the sane uy to the tino of the 
Filing of the bill. 

Tho bill als) slleges that Marga:et ifiller pur- 
ehasod the premises involved on the 12th day Pe gue, Lolo 


at which time the anpellee's mortgage was of record, and tuat 


Ns 


She had due notice of the same; that on Anril 25, 1922, Henry 
Te kenshaw,, trustee, fraudulently released the mortgage in- 
volved, and that one John Noynihan claimed to have some inter- 
est in the premisss as mortgagee; that the other defendants 
named claimed some interest in the premises involved as re- 
ceivers or otherwise but that the interests of all these de- 
fendants were inferior and subject to the rights of apnellee. 

Margaret Miller filed an answer neither admit- 
ting nor denying that the Mayos were indebted to Henry T. Ren- 
shaw, trustee, in the sum of $1000. , but admitting that such a 
mortgage as the one mentioned in the bill a»nvears of record, 
and alleging tnat whatever indebtedness it was given to secure 
had been fully »aid; that the mortgage had been released on the 
record by Henry T. Renshaw, trustee, and that the same was not a 
lien on the premises descrived. This answer further alleses 
that on June 12, 1919, Henry 7. tenshaw executed to Margaret 
Miller a bond for a deed for which she paid him »900., condit~ 
joned that when this amount was paid said Renshaw was to ex= 

ecute her a warrenty deed, and she was to assume a - 
mortgage of #10003; the last of these oayments had been made, 
but that the said deed was never executed, and that the bond 
for a deed given her by Renshaw was recorded on the 29th day of 
August, 1922; that she went into possession of the property 
upon the execution of the bond for a deed, end had continued 
in nossession thereof ever since; that she tho said Margaret 
Miller was entitled to a deed to said »remises from the said 
Henry “,. Renshaw. 

John Moynihan filed an answer eontaining the 
seme statements concerning the exccution of the note and mort- 
gage in question, ant further alleging that on the 2lst day of 
April, 1922, Henry T. Renshaw and his wife exeouted their note 


in the sum of $1000. to John J. Renshaw and also executed 
Ces 





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a mortgage securing the payment of the sane on the same prop- 
erty cescribed in ajvellee's mortsage; that said mortgage was 
duly recorded on the 21st day of 4»ril, 1922; that he, on some 
date not set forth, »urchased and became the owner of this 
mortgage, and at the time of his vyurchase of the same the 
said John J, Renshaw produced a certificate of title issued by 
the St. Clair Title and Guarenty Comsany showing that the fee 
simple title to the »roperty involved was fully vested in Henry 
T. renshaw and Nettie P. Renshaw his wife end that an exaninat- 
ion of the record then showed that the mortzase held by apvellant 
had been released; that the mortzase neld by said John Moynihan 
wes superior to the mortgage owned by appellee and to any inter— 
est of Margaret Miller in or to said premises. Replications 
were filed to these answers, and the cause referred to the 
Master in Chsncery, Upon the coming in of the report of the 
Master in Chencery the court after overruling the exce tions 
thereto, entered a decree finding that on A»nril 15, 1911, the 
Mayos executed the note and mortgaze sought to ve foreclosed by 
appellee, anc that shorti: ; thereaftor appellee became 
the ownor of the same; that said Henry T. Renshaw continued to 
pay the interest to avpelle up until Avril 5, 1922; thaf in 
August, 1922, the firm of which said Yenry T. Renshaw was @ 
Inember failed and wes later adjudicated a bankrust; that on 
September 12, 1919, the liayos conveyed the property involved 
to Henry T. Renshaw, but made no mention of the mortgage in- 
volved, in their deed; tha% »rior thereto, on . to-wit, 
June 12, 1919, appellant, Margaret Miller made a contract 
or bond for a decd with ienshaw for the purchase of the premi- 
ses herein involved subject to a thousand doller mortgage, aay~ 
ment of which was assumed by her; that appellant Miller there- 
m5on went into »vossession of said premiscy, and continucd in 


the possession of the same to thé time of the filing of the 
Se 





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bill herein; that on April 21, 1922, said Henry T. Renshaw, as 
fraudulently 

trustee,/ ‘and without authority from appellee ex- 
eouted a release deed, releasing annellee's mortgage, but that 
said release was not filed for record until Anril 25, 1922; 
that on April 21, 1922, said Uenry T. Renshaw and his wife, 
executed the mortgage owned b; avvellant Moynihan, which was 
filed for record on the same daythat the release of appellee's 
mortgage was filed for record; that this note, dated April 21, 
1922, was shortly after the execution thereof sold to appellee 
Moynihan; that there is some doubt as to the date when Moyni- 
han purchased the loan; that ho filed an affidavit of record 
after the Renshaw failure, stating that he acquired it April 
21, 1922, several days prior to the recording of the release 
Of apoellce's mortgage, but that in this case he testified 
ho ; purchased the saie on April 24, one day prior to 
the recording of the release deed. 

he decree, then, after referring to some 
finding in »roceedings in the bankruptcy of the Renshaw firm 
concerning which no questidns are raised on this anpeal, finds 
thet at the time of the ‘ urchase of these »remises by anpellant, 
Margaret Miller, under her bond for deed, appellee's mortgage 
was of record, and she was charged with notice thereof; that 
the release deed executed by Henry T. Renshaw on April 21, 
1922, of avsvellee's mortgage, was null and void ana the same 
was ordered and decreed to be set aside. 

It was further decreed that the mortgage owned 
b appellant John Moynihan and afterwards assigned to Ralph 
Cook, wihch assigment was not of record, was null and void 
ae against the rights of avpellce and appellant Mergarct 
Miller, and appclloe's prayer for the forcelosure of his mort—~ 
gage wes allowed. Prom this decree the defendants Margarot 


Miller and John Moynihan alone avpealed. 





es 


The evidence shows conclusively that appellee's mort- 
gage had not been paid and that the release of this mortgage by 
Henry T,. Renshaw trustee was fraudulent and without authority from 
appellee; that at the time Henry T. Renshaw gave Margaret Miller 
the bond for a deed appellee's mortgage was of record and she 
assumed the payment of the same. It also appears to us to be 
shown by the proof that at the time appellant John Monihan pur- 
chased his mortgage, appellee's mortgage had not been released 
of record, Under these circumstances it is clear that appellee 
had not in any way lost his right to foreclose his mortgage. The 
proofs fully sustain the findings of the chancellor and the 
decree entered in accordance therewith, and therefore such decree 
should be and is hereby affirmed. 

DECREE AFFIRMED. 
Not to be reported, 





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STATE OF ILLINOIS. pA 
ry Lg sae of 2s 
APPELLATE COURT Be egg ee 
eedot CAA 499, 
47H. DISTRICT. “Ope YT fh 
Tae, v j i 
SP Pe, v * 
Rye ae ‘a ae £- 
OCTOBER TERM, Ae D. 1926. Cen 
TERM NOe 3. AG. NOs 19. 
a 
gq es 


SH 


HENRY YARDEIN, et al, 


Appellants, : APPEAL FROM 
VS. : ALPON CITY 
EUPHRASIA De QUINTAL, : COURT. 


Appellee. 


PER CURIAM - RULE 15 of this Court, provides that the assignment 
of errors and cross-errors must be written upon or attached to the 
recorde In the case at bar no assignment of errors has been written 
upon Or attached to the record. , 
The requirement that upon appeal or writ of error 
there must be an assignment of errors written upon or attached 
_to the record, is not a mere matter of form, to be considered 
waived if not cbjected to, but oe of substance, The assi-nment 
of errors performs the same office in this court that a declaration 
does in a court of original jurisdiction, and is equally essential 
in the forming of an issue upon which the court can properly give 
judgment, Ditch vse Sennott, 116 Ill. 288; Aetna Life Insurance 
Coe, VSe Sanford, 197 Ill. 310. 
It is not sufficient that the abstract of the record 
shows an assignment of errors which is not written upon or attached 


t@ the record, Ditch vs. Sennott, supra; Benneson vs. Savage, 119 


el- 





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eaias need ead eterrs to fromng tees on tad ts age edit al sbso0et 
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torre to tisw faseee neggs tadt snemexbupet of? 


bosieslie 10 woqs metiiew erorve to tmommptens as od tenm ered. 


herebtence od of ,mro to tettem orem s Jom ef ,hxooet odd ot 
fren teas ett ,oonstadpe to em tud .o¢ betootdo tom tt boviaw 
sotteusfosh s jedt times aidd nt ssltto emse et amtrotteq exo Tre to 
isitneaee ulisspe sk hue ,noltolbetust flemtgixve to txumoo ge ak esob 


avin ylteqery nao drpoo edt doldw soqu enact maa to gaturot estt 7 
Soilarsent elll amfeA 2868S .{1I aff ,dtomnee »av dodid ,dnemgiat — 


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bxoorx oft to dgoarteda ect tads twetoltioe ton at $1 


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111. 135; MeIntyre Life Insurance Cos, vs. Poople, 205 Ill. 370. 
No errors having been assigned on the record, there is and can be 
"no joinder in error, and therefore no issue for this court to try, 
——— Vse Savage, Supra. 

i | The cause having been submitted for final determina- 
tion it is too late now for appellant to obtain leave to assign 
ierrers upon the record or for the court to require it to do so, 
‘Ditch vse Sennott, supra; Benneson vse Savage, suprae The failure 
to assign errors on the record necessitates a dismissal of the 
"appeal even though alleged errors are argued in the briefs, Voges 
vs. Davison, 306 Ill. 357. 


This court has taequently called attention to the fact 


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= 


thai it is essential that the assignment of errors must be written 
_ upon or attached to the record and unless it is there is nothing 
for this court to consider, Naroni vse Paitson, 126 Appe 205; 

i Beacon vse Blobe Printing COs, 128 Appe 307. It is unnecessary 
to cite other cases. ‘The appeal is dismissed at the appellants’ 


costs. 








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/ PRA 
STATE OF ILLINOIS. hi [fe he 
ee) LE Bt | ) 
ae eye APPELLATS COURT FER wt hee 
gue 258 \ i tg 99 
47H. DISTRICT. oe “7 
Clee J | \ ie 
Fou, TH vel) by Ae 
OCTOBER TERM,AeD. 1926. SES 
f ony 
TERM WO. 44, AGe HO-« 34.6 


THE PEOPLE 0% THE 


STATE OF ILLINOIS, APPEAL FROM 


Appellee, : 
i : COUNTY COURT OF 
V5~ : 
: BOND COUNTY. 
GEORGE STANBERY, 3 
Appellant. z 


Per Curiam: - The transcript of the record in this case shows 
that appellant procured a special bill of exceptions pertaining 
to certain remarks made by counsel for appellee during the trial. 
It further shows that the general bill of exceptions bears the 
following endorsement:- "Presented this 50th day of September, 
Ae De 1926, Silas ii. Triel Judge." There is no showing that 
the general bill of exceptions was ever settled and signed by 
Judge Cook. All of the alleged errors argued by appellant are 
such as can be preserved, only, by a bill of exceptions. 

The abstract of the record contains no assign- 
ment of errors. It is well settied that the assignment of errors 
should be shown in the abstract, which shovld present whatever a 
reviewing court is asked to examine, and for a failure in that 
regard the judgment may be affirmed, Superior Lumber Co. vs. 
Tracy, 76 Epp. 5513 Independent Electric Cos, VWse Donald, 86 
Apps 106; Marsh vse Jones, 106 App. 577; Brow vs. Otrich 119 
Appe 136. 

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eid exwod ano2itoose To" ELM tecehey bits! dead aeite Wd 
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20 .Dinune se. o68 onitoat: dusnecselit fee 
err doitdO »Sr morose: 1 oo 8 or 


fh 


All that the abstract of the common law record 
shows with reference to what was the verdict of the jury and the 
judgment of the court is as follows; "Pages 6 and 7 of record. 
Minutes of trial, judgment, verdict of jury, motion for new trial, 
judgment, judgment, motion for appeal." In the abstract of the 
purported bill of exceptions pertaining to the same matters, the 
following appeers: - "Pages 213-214 of record. Verdict of the 
jurye Pages 214-217 of record, Motion of defendant for a new 
trial. Pages 218-219 of record, Ruling of the Court denying ea 
new trial, allowing appeal and bill of icone cane. ete. Pages 
219-284 of record, Final judgment of the Court." ‘The abstract 
does not show what time was allowed for filing the appeal bond, 
or that a bond was ever filed or approved. 

It has been held that an abstract of the record 
and a judgment which merely refers to the judgment as « judgment,” 
“judgment on finding" or “thereupon the Court rendered judgment 
upon the verdict” doss not furnish material upon which to base 
grounds for the reversal of the judgment, Amundsen Printing Co. 
VS. Empire Paper Co., 83 Appe 440; Gilbert vs. sprague, 88 App. 
508; Marsh vse Jones, 106 Appe 577+ 

Four juries have passed upon this case and it is 
now here for the third timee We would be fully warranted in 
affirming the judgment, solely, because of the insufficienzy of 
the abstract to present the alleged errors relied upon for s re- 
versale It may be that the clerk of the County Court simply. 
neglected to show that the general bill of exceptions was signed 
by the Trial Court. Notwithstanding the insufficiency of the 
record and the abstract we have considered the various contentions 
urged by appellant. | 

We are of the opinion that the Court would not 
be warranted in holding that the verdiest is so manifestly against 
the weicht of the evidence that it should not be permitted to 
stand. It mey be that the Court erred in some of its rulings on 

aa 


brgoo8 tet ce pommon, oat to toasiads out Fads ra (vg Saleyse MD ee ( 
edd hae yust edt to telécer edt eae tedu ot sonenatas. atiw me : 
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mahal. tetas | w 
ond to toasdads ond ot “sleogge ~0r moitom ,smoughot » 
ont  eretian enes oft oF Rutiniaireg anoltqeoxe to Lli¢ 
eas te soLiret »fiooe = Lo PESRSLS eeyai" - pateeqga . 
wer 8 1% dnabneteh to ao ttou eitaoon Lo TESadES pareet® 
8 gatyued tusod, edd to. Rechiot ‘sbuooes To CI8-848. segel Lake 
_ Boged . .ote ano2tqooxe te Ifid bus Lnegqe gulwolla statss oa 
dsettade ed? ",dencdD edt todueayhot Lemth phsooer to 8 S He 
nos Looaye sit yatEt x0} hewessa cow matt fas wots tom ooh 
a abe rota 10: oki rave: mn: hand a Sadtiail 
proost s ete to deawieds os tad’ bled mood and cp ae iain Ait i 4 : 
% « torong bal" ee teogghal ed? oc axeker qieram do kiw dnemphat. «- ee. i 
tronyast Lerehags Pod edt aeqwozeds™ 0 "yakhalt oo eases , 
soed of seide aot latyeten se tuxst tomas. ioRiRey id, moa 
00 2ateld senhamms ,taemRhel edd te laeeres O68 AAR MRR 
AMT, BO. soarparaa Wh « Pred LI 200) -cqh BB 4909 toqel) extant or 
“TRE ah O02 sem} ee sermaH, ane 
elds sae, eeao etal mocn beweagq evad aobenh 29% 4 yon, yyy ahve 
at hetneview Link od Sirow ew . vomls, abit ede x08 ee we 
to yoneloitiment edd to gensoed ,yleloa ,tnsmpbeh, od pecker ete if 
“ox a xo% noqs Beller evowre begetie od. tneaetg od toavéedsedd 
viqmie dived ysamed eit ko supls edd Jedd od yam a1. valance 
Hangkhs ssw anotiyeose te \Lfid Laveney eit ted? wode of hetoetyen | 
edt Ro youoldihivant ost qalknetedt wok 4tu9e0 fads? emt yd | 
emoivmedaoe amitay ode betehiasos evel ew tearieds. odt poe Bxopes kB: 
gtd logge: Ud Sopa i 
Jon bizew Jum edd tedd aoiatge edt Y ome MH) oo See 
samkags Yideslicen oy sl tedbrov edt tadd-gatetod gt bonarcey of : 
(OF Doddinreg ef doa biscse $2 dadtcomebive edt to tdatewedt 
HO agutinr aft Lo euou mt Sexve 100 edd dadt od yom #1) /sbuete 









taixt wom. 2et mottoa curt to so.buey , i 


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opinion 
iy 
yj that any errors committed in that regard were not so grave as to 


require a reversal. 





Six instructions were siven on behalf eof appellee 
and fifteen on behaif of appellant. Some of the criticisms di- 
rected against the instructions given for aopellee would apply 
q with equal force to some that were civen for appellant. In= 
structions were given on behalf of appellant which were more favor- 
¥ able than the law would warrant. Taking the instructions as a 
series we are of the opinion thai the imaceureacies in those given 
on behalf of appellee were not such as were likely to mislead the 
| jury as to the main issue in the case. | 

Appellant argues that one of the attorneys for 
appellees made prejudicial remarks to the jury. One of the remarks 
complained of was made in the op@ning statement of the case and 
was to the effest that appellees would offer certain evidence. 
‘The special bill of exceptions shows thet appellant objected to 
the remarks and the objection wes susteined by the Court. It al- 
go shows that there wes no objection made to the other remarks. 
Appellant has no ground upon which to base a complaint in regard to 
‘ee remarks of counsel. No reversible error having been pointed 
- oat and the abstract being insufficient to present the alleged 
_ errors, the judgnent is affirmed. 


Ma | he S a 


y; rm] 








noldige od? to oxs ow tod ,eomebive te aolenfoxe ine aoteatnbe oft 
heial as over | 08 secs teil SEN at achpobinenee emrre yas feds 
i ae 3 MaRS?) RE eae ey ce hh at 2g ertsper 
selfeqys to ‘ifeded mo mort, orew arottortdens ete 8 8 be 
“=15 emelotiiro edi to amoe © tanflenqs to Maded mo meottiF bag 
qigqe Sivow eelleqca «ot movi) anolforriin? edd Jemtays Belver 
ett ,tnaftogg¢s vot movhy exe deat smon ot comet Tempe atiw 
-tove® eto svow doliw duatieqga %6 tLadte’ no howdy * ‘eren eaotiostta 
& be atbltomerént ace yubtat”  etaecaw tb Loti Wee AMY eet Wile 
nevts ‘seeds ui epkbipcbedaut oad wade te twhad bad he Cee ew eelitba 
ad peotete: od wat etow Ba down dor avew optfeqte te REsHee he - 
“ Jeeeo ant nt eweer | test ee 

ciottes ad? to emo dedt ‘pomea Ges. eRe SS) MS 
attemer oft to amd aytut eft od sitwamer foto Lint sug eben ‘sei toges 
‘bus ones odt te Seterstate gcctiird Sit m2 oben eew to bontsIqme 
< ecxoStve atadyeo “otto Sivow selforda tatlt tobtee Gat oF Baw 
“bd bedvetde tstfeqys tadt arated beoltypeone te Cre — 
acvehnint Fest od! yd fexletera aew cotéoetde otf Bre ectuamd’ 
“,eaktemet testo eff of obam notdvetdo om ast ered? dant parents 
od Suegey at Hifelquos a cead oF ifs Edw moe Breer “on ead dae Liege 
peoeite need ysived roxce eIdterever off , feunwod to ‘eeemer ont 
Usaeahani ‘edt taoierte bad tretoltrant pxted toatteds edt hue tuo 
il a Pi sepmpene: bal dhonsngons eae serttine 


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| Stal OF ILLINOIS APR 15 1907 


\ 
~ 2 eS ; 
~ i AVELLTE COURT rhe», Q 
F Tec ee ~) Roe 
SA ea ae roe PELLATE. 
FOURTH DISTRICT Trees Tales or URE 


MARCH TURIT, A, D. 1927, 


faRi: WO, 1. AGHNDA NO. 1. 


Tis SLOP OF TH! ST..TE 
Oi? ILLINOIS, 
Defendant in Brror, : WRROR TO COUNTY COURT 


raw 


elec 


Vo. > OF MARTON COUNTY, 


JAMSS OGG, : 
Plaintiff in Error. : 


t 


a 


BARRY, P,. J, =» In August 1924 an information was filed again 
plaintiff in error charging him with a violation of the Prohibi- 
tion Act. At the March Term 1925 he filed a petition asking 
that the search warrant be quashed and the property seized to pe 
returned to the owner. He also moved the Court to quash the in~ 
formation, At the November Term 1925 he was tried and convicted 
and a motion for a nov trial having been overruled he was fined 
50C, 00 and costs and sentenced to the county jail for sixty days, 
It is argued that the Court erred in overruling 
the motion to quash the information, If the Court mode such a 
ruling it is not shown in the abstract of the record. It is 
arcued that the Court erred in striking the petition to quash 
the search warrant, etc,, from the files, The abstract fails to 
show that the Court made such an order or that any exception Was 
taken, The abstract does show that the petition aforesaid was 
not preserved in the bill of exceptions, /s mction or petition 
ef this character, as well as the ruling cf the Court thereon, 
must be preserved in a bill of exceptions, People vs, Levin, 518 
Ill, 227, If the Court struck the petition from the files at 
the liarch Term 1925 it «sould have been necessary for plaintiff 


id eee 





in error to procure a bill ef exceptions in reference to that 
matter at that term of court, or within such time as the Court 
might. then allow for the filing of the saine, Runyan vs. American 
Glycerin Co,, 250 App, 3513 Wabash St. L. & P, Ry, Co. vs, 
People, 106. fli. 652/ . 

The aostract must be sufficient to present every 
error relied upon as the Court will not search the record to find 
errors not disclosed by the abstract, Pecple vs. Paul, 167 App: 
557; People vs, Yuskauskas, 268 Ill, 228; People vs, Armour, 

307 Ill, 234, 

It is argued that the Court erred in admitting in 
evidence a portion cf the "mash" which was seired by the officer 
for the reason that there was no valid search warrant, That 
point was made upon the trial of the case before the jury and 
after plaintiff in error had ‘ filed his petition to auash the 
search warrant, etc, In his petitior he did not claim that the 
mash was his property or that the same had been taken from his 
“possession or his premises, His petition shows that he was clain- 
ing that an illegal search of the premises of other persons had 
been made and that by reason of auch a search the evidence in 
question had been secured; that the »roperty so secured was the 
property of other persons, On the trial of the case he was still 
Making the saine contentions and we are satisfied that the Court 
did not err in admitting the exhibits in evidence, 

It is argued that the Comer erred in permitting 
the Stete’'s Attorney to ask Jeading and suggestive questions, 
While the abstract shows that counsel for plaintiff in error ob- 
jected to certain questions asked by the State's attorney, yet 
it does not disclose any objection on the ground that the questions 
were leading or suggestive. some complaint is made of the remarks 
of the State's attorney in his argument befove the jury. The 


record shows that the objection to such remarks were sustoined 


by the court, The error assigned in that resard is that the -- 


ww 
8 





an 


verdict of the jury is the result of prejudice and passion engen- 
dered in the minds of the jury by the improper and prejudicial 
argunent of the State’s Attorney, The Court having sustained 

the objections and there being nothing to indicate that the ie 
dict is the result of prejudice and pzssion by reason of the re- 
marks we would not be warranted in holding such remarks to be 
reversible error, 

It is argued that the Court gave improper in- 
structions on behalf of the »rosecution, “Je have carefully con. 
sidered the instructions and the objections raised and while some 
of the instructions might have been put in better form, yet we 
are of the opinion that none of them were misleading, especially i. 
view of the instructions given on belfalf of plaintiff in error, 

It is argued that the verdict is contrary to the 
law and the evidence. If the evidence offered on behalf of the 
People was true the jury was fully '‘ warranted in finding that 

he defendant had been proven guilty beyond all reasonable doubt, 
In the state of the proof we cannot say that the verdict of 
the jury is contrary to the law and the evidence, Finding no 


reversible error in the record, the judgment is affirmed, 


APIRITED. 


Not to be reported, 








if a - / [ f~ APR i 5 1927 
} /\ : ) . 


%, Va. | P3 
y Morvai i way 
: | f CLERK OF THE APPELLATE COURT 
a 3 f |] € @! FOURTH BISTAIET GF ILLINGIS 
\ f aA | ct a 
at SWS OL LLLINGits === 


4PPOLDATS COURT 
POURTH DisTRICT 


OP wg OS Ot OP me bw oe ed i em oe oe Oe 


MARGH TSR, Ay D. 1927. 


TERM NO. 7, AGEND.. NO. 2. 


FS0PL OF THE ST..TS 
OF ILLINOIS, 
zefendant in rror, ERROR TO THE COUNTY COURT 


Va. GF SaLINE COUNTY. 


DICK NORMAN, 
Plaintiff in trror,. 


eo @e 6 ae ee 48 of we 


BARRY, P. 3. -=- Plaintiff in error was charged in ean information 
with a violation of the Prohibition Lay, Upon aracisnment and 
after being duly warned, he entered a plea of guilty and was 
sentenced te the Illinois State Farm, & few devs later he filed 
a Written isotion supported by his affidavit for leave to withdraw 
his plea, to set aside the judgiuent and for a new trial. 

He contends that the Court erred in overruling 
his said aeeh as The abstract of the record shows that a bill 
of exceptions Was signed by the trial court but it f-ils to show 
that the Court ruled on the notion er that pleintif? in error as 
cepted to the overruling of the sae, 

A motion of this kind, and the Court's ruling 
thereon, arc not parts of the Coimuon Law Record, To become such 
they must be incorvorated in a bill of exceptions, People vs. 
Levin, 318 Il. 227, The abstract of the record :wst be sufficient 
to present every error relied upon as the Court will not search 


the record to find errors not disclosed by the abstract, People 


vs, Armour, $07 Ill, 234, 






















Gee TY A pe ‘eVoek: = ies ter aon * 


ari iadedebebr ess, mabe re ae 4) ae ha 7 i 
6 .0f cA ot ki leer a 
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PAID VIMO GY OF Homie: : Sista: ak dasbaetec 
ry -_4¢ P i . 
YEQUOD MiTi.3 Ww -: ae 
oe el Os i ,»moxrat al ttirinisl 


noliceroetat ms ai bogteco saw aotirs at Stétntelt om. .% a Yeina 
bas F riouacty Fees nog wat acotstkdidexsS eff to aottsLokw & dtiw ; 
asw Oue yilisg to sefg a hetetns ed ,bearew vied ynied sofa : 
Beli sui total ays wat a joel odn3G eloail rg onlt se beonotiion 
wothdtiw o¢ avesl tot diweditta pid yd hod zoqqure not sos odd ia if 
-iaitt wer 8 Dok bans drecmbut ant ebhas goa od eolq ald 


gaifuxtsvo ai Serve FiwoD amt dads abtisines ol 





Ifid g #orld ewone Drooset sit to tonrvads off .30 kt 6am bane’ bd 


urs 


wotk of BLi-t $* ded dxvoo Loixtd scct vd bonnie asw snons qaoxe m 


“xo toutes ak ttidekals isd 


saitvyt s'ixsoU edt Sis bata elit Io aotvon A 


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fine saoosd of .S%05e6H wal mosmuod ant to aivad jon ote 
eae x good ,enoadgeoxs To Lf[id s at hodsxocteont os 


tasisitines ed sein: baoosx ed Yo sossdada salt 


douses ton Lidy dupod odd en noge bet fest core yaove Sa 


atod 


si¢cose tos & 


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If the Court overrulec the sotion ané there vas 
an excvension to the ruling, plaintiff in error has failed to pre~ 
serve the saue, and there is nothing for us to consider in that 
regarc, It is argued thet the information was not filed in 
the County Court. There is no basis for this contention ex- 
cept the mere fo-ct that the cleris failed to endorse the cate or 
the filing of the information and simply married it "filed", 
Tne contention of plaintiff in error cannot be sustained, Tor the 


reasons aforeseid the judcpiient of the tounty Court is arfirned,. 


AFFIRUED. 


Not to be reyorted, 


Decoy 







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y, 7 
f 7 : 
at 4 f ‘3 } paar) ? pian) ’ 
epee, FILED 
ff } 1A 
\ / / aie ; j ine Oy \ 
ea STATE OF / LLETFOIS APR 1&5 1927 
f “Vine ay » 
/ FOURTH jforstRIcT “Sam Qbear at Sy ak? 
f CLEAN Sr THE APPELLATE COURT 
LOOPLLATE CouRT URYK OISTRIGT OF ILLINOIS 
TRCN Te SoD. Loar, 
ToRL NO. 8, sGLEDA NO. 7, 


“BLDORADO ‘HOLS. LE 2 
COR2GR TION, : ACB 2, BRO?) 6. BILE 
Appellee, g 
. COUNTY CIRCUZ?T COURT, 
VS. . q 
JOHN TERZIS, OT ab, 3 w a Cie 
Appellants, 8 


BARRY, P. J. -= Appellee sued annvellants before a Justice of the 
Peace to recover for inerchandise sold to the Busy Bee Cafe. There 
was an appeal to the Circuit Court anda trial without a jury. 

The ceurt found the issues in favor of appellee and renr ed 
judgnent against appellants for $154,090, 

It was stipulated on the trial that the gocds in 
question were sold and delivered by appellee to the Busy Bee Cafe, 
fhe only questicn involved is whether avpellant, John Terzis, is 
liable for the value therevf. Appellee's imanager testified that 
he imew that Hr, Terzis was planning to start a Cafe; that he 
talked with him in regrd to doing sone business and that ir, 
Terzis told him that Roy iiargetes w.s going to run the Cafe; that 
he said to Terzis, “John, Roy's credit would not be any good to 
us;" that Mr, Terzis reglied, "I own the cafs, the fixtures and 
the whole thing, and Roy is simply going to run it;" that he wantec 
Roy te think he was responsible for the gcods; that he gscid to 
ir. Terzis, “very voll, your credit is good but Roy's is not" and 
ree ferzig replied, "I will teke care of that." He says that 


of 
lir, Terzis ordered soiue/ the goods in question, 


ir, Suick, a salebman for appellee, says that 
befozxe any of the goods were sold Mr. Terzis told him he was 
going to open gs cafe and that Roy liargetes was going to run it 
for him, He says that ne sold the first bill of goods to Terzis 
and iJargetes amounting to about 3100.00 and that the three of 
them were together on that octasion for an hour and a half; 
that Mr, Terzis tcok part in the ordering of the goods and over- 
ruled Mr. Margetes as to some things he wished to order, There 
was other evidence to the effect that Mr, Terzis was fre- 
quently in the cafe, that he often examined the ice-box and ine 
spected the cash register. 

‘hile Hr, Terzis and lr. Margetes testified that 
they were not partners and that Nr. Terzis was not interested 
in the business of the Busy Bee Cafe, yet, in the state of the 
proof, we would not be Warranted in holding that there was not 
sufficient evidence to render Mr, Terzis liable under Section 
16 of the Partnerships Act. The trial court was in a bet’ r 
position to judge the credibility ov the witnesses than we arc, 
and we cannot say that the conclusion of the court was manifestly 
against the weight of the evidence, Wo reversible error having 


been vointed out the judgment is affirmed, 


APEPTREED , 


Not tea be reported. 

















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A fi Fr 
ao f Ix 
once ; satin. Y iy~? : 
STATE Og oh ay rae Dy l L&R ee 
/ in ee 
APP - LA wf GF O UsRet b q ACR Sf) 
NS <q Q : ~ 
0, 1CHs 195, 
POUR DH (p13 PHI CG ts eae fy Se? 
EMGSY BE & ary oS Poe / Vv Voge 
MWA Ree on VeRO) (Ae De oe ee7 |, Coan 
23R NO. le. AGENDA #9, 3. 
——a 
at yas re D 
PAUL ALBRECHT, , 
Anos Sui tu i Spiga a : 
“a } APPBAT. TRO MADISON COUNTY 
CIRCULT COURT, 
OMPHGIN? TOUNSHIP, et si, 3 
t iP elle \ 
Beary Pe sy Apveliant sved the towship and Christ Bunte 


pefore a Justice of the Peace to recover damages alleged to have 
been occasioned to his horse, buggy and harness by reason of a 
bridge being out of revair. There was an appeal to the Circuit 
Jourt and thet court directed a verdict in favor of ayoellees. 

The Law is well settled that townships ere rot. 
‘liable to respond in damages for injuries resulting from roads and 


bridges allowed to kecome ovs of Yepair, Town of Weltham vs- 


Temp Oo el Sloe) Buscelh | vs. Tew of Siewoerm, 57 Mie Soin 
Me a2ecore Qisslosss that prior to the som- 
ans sued annelles Bunte to recover 


mencement of this suit anysii 


9 


dameces for nersonal injuries alieged to have pneen sustained as a 


3S 
result of the same accident and that the trial of thet case result- 
ed ina verdict and judgment in favor of Mr. Bunte. That being 
true there was an estonvel by verdict, There was no liability on 
“the part of the towmship and an estonpel by verdict as to apvellee 


Bunte. The Gourt, thereforc, Gid not err jn directing a verdict 


in favor of anvellees. ie might acd that there was no evidence 
d 


Bora) 





offered, so far as the abstract shows, tending to prove tho 
extent of the damages alleged to have beon sustained. If Mr. 
Bunts were shown to be lidblé the jury would not have been 
warranted in allowing apnéliant more than nominal dsmazes, in 
any event. The record fails to show that Mr. Bunte was High- 
way Commissio: er ovin an; way responsible for the accident. 


Having failed to point any reversible error the judgment must 


be affirmed. 


AUT TRMEDe 























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HOUR DE. PTs wR aot ee 
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OC'TU BER THRU fe. ADs OSG 
TEAM NO. 54 AGENDA NO. 57- 
YILLIAM B. SCHNEIDER,  ) 
Anpollee, ) 
) APPEAT: FROM CITY count 
VS ) ein 
\ EAST ST. TOULS ILLINOIS. 
FORT DEARBORN CASUALTY } ; a | 
UNDERRITERS , : ) 
Anellant ) ie ogee — 


Barry, P, J. Aopellent insured apvellee against any loss by reason 
of the liability imposed by law uynon him for damages on account of 
bodily injuries, fatal or non~fatel, accidentally suffered, or 
alleged to have been suffered, by any »erson, or persons, by reason 
of the ownership, maintenence or use of a certain automobile. 

The policy contained a »rovision to the effect 
that a»npellant shoulda not be idepie while the avtoinobile was being 
operated in any manner 3rohibited by law. While the po icy was in 
force, appellee, while driving his car, struck and injvred Albert 
Scheik. Mr. Svheik sued ayvellee and thereupon he gave arvellant 
notice thereof. Avvellant eroloyed counsel to defend. apvelles oWwates 


" 


the trial resulted in a verdict and judgment fer “5000.00, 

| Avpellee sued to recover on the inusrence contract 
which he set out in his declaration with the usual averments. 
Anpellant filed the general issue and four special »nleas. The 
secend special »lea was to the effect that the polic. sued on pro- 


vides that avpellant shall not be liable for injury occasioned while 


seid automobile is being operated in any manner orohibiteda by Js77, 
fie 





iy iny 








and that at the time of the alleged bodily injuries sustained by 
Athbext Screik, mentionei in the declaration, the eutomobile covered 
ay said policy was being overated and driven by avpellee in a 
manner prohibited by law; that is to say, at a speed greatcr than 
was then and t: ere reasonable and vroper, having regard to the 
traffic and the use of the way, and so as to endanger the life of 
iimb or injure the property of another person, towit: ut a rate of 
spsec greater than twenty miles an hour on a public highway in a 
elosely built up residence district within the limits of the City 


Heeb Ge WOvuls | Tat di sS.< 


ri 


6 

Appellee replied to the second special ples that 
ppellant waived the provisions of the policy set forth in said 
olea, because imniedately following the ' dAnjury to Mr. Scheik, 
he gave rotice thereof to appellant and when sued by Mr. Scheik 
anpvellant employed attorneys and defended appellee in said suit, 
rmnowing all the facts and circumstances, etc. Appellant demurred 
40 said replication and the same was overruled, and it then elect— 
ed to stand by its. demurrer, The trial resulted in a verdict end 
judgment in favor of apvellee for 45,303.13. 

Avpellant contends that it is not liable and the 
Court should have directed a verdict in its favor because ef tho 
fact that appellee has never peid the judgment recovered against 
him by Mr. Scheik, This cannot te sustained. The obligation of 
appellant was to indemmify appellee against less by reason ef the 
liability imposed by law upon him for damages on account of bodily 
injuries, etc. ‘shen lir. Scheik was injured the liability was in- 
curred and when the Court enetered judgment against appellee the 
Loss on Dott of said liability was sustained, Ravenswood Hospit— 
al vs. Casualty Co., 280 Til. 103- 

Arpellant contends that the Sourt erred in  wersruling 


its damurrer to the veolication to the second | special plese. 


a 


2 





Pos23 the cecora shows that szpeliant elected to stand by its 

Satu demurrer yet if arec eappvears thet upon the trial of the case 
enoeliant cffered ev dence as to the circumstances under which Mr. 
Scheik was ilijuyed and questioned its witnesses as to the rate of 
‘speed at which appellee was @eiving his cay at the time of the in- 
jury. It also offered proof as to the injury having occured in a 
built-up residence pertion of the City of East St. Lotis. It sub- 
mitted instructions to the effect that if appellee, at the time he 
injured Mr. Scheik, was driving his car at a° speed greater than 
was then and there reasonable and proper, having regard to the 
traffie and the use of the way, etc.,then, and in such case, the 
jury should find in favor of anpellart. Several of such instruct-— 
ions were given at the request of annellant. Having been vermitted 
to produce its evidence in sunport of its second special plea and 
the Court having instructed the jury at the request of anveliant 
upon the theory that anpellee had denied the averments of the said 
plea, appellant is in no position to contend that the Court erred 
in overruling its demurrer to the reolication to its said plea, 

But at any rate the second plea does not aver that 
the operation of the car by appellee in a manner prohibited by law 
was t.ie cause of the injury to Mir. Scheik. Accident insurance 
policies usually zontain provisions whereoy the insurance is not te 
extend to injuriss caused by, 02 wuile, cx im consequence of, Violet 
Baz the Loews In order to bring She injury o1 Geath witain the terms 
9i this exception there must be a elsax violation sf some criminal 
law; and no protection is afforded to the insurer by the fact that 
when injured or killed he was violating & civil right, a law or 
ordinance not cirminal in its mature, or s rule of morality. In 
order te relieve the insurer of liability the insured must hare 
been actually engaged in a violation of the law at the time sf the 


4 


injury, acd the injury must be shown to have resulted from the act 
36 


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which is claimed to be unlawfu es at least to have hed a causati- 
_connectien therewith, 1 Corpus Juris, 457, 

In ordér to defeat a recevery under policies avo 1d 
ing or limiting liability where death or injury results from the 
insured's eriminal action, or in consequence of any violation ef 
law, or from an unlawful act on his part, it is hela that there 
must be some causative connection between the inusrer's act and 
his death or injury, 17 A. I. 2. 1005. ‘there a policy reduced the 
Liability of the insurer in case the insured was injured while: ¢ 
violating the law it was held to aodply only when tho injuries re- 
sukts from the causes named and not to limit liability where the 
insured was kiiled in a collosion between a motorcycle which he 
was riding and another motorcycle, though he had so procured a 
registration sertificate or license number as required by law, 
Fischer vs. Midland Causalty Co., 189 Anp.e 486, 

In a suit uvon a policy, providing that no claim 
should be made for an ’ injury which might han»en “in cense~ 
guence of voluntary exposure to unnecessary danger, or while 
engaged in, er in consequence of any criminal act," an answer 
that, at the time plaintiff was injured, he was in a public high~ 
way, in a state of intoxication, which is a criminal act under 
the statute, and, "that the injury happened to tke plaintiff while 
he wes engaged in, and in consequence of a criminal act," is bad 
en demurrer; the conclusion being. <« mere conclusion of law,and 
mo causative connection being shown between the alleged eriminal 
act and the injury, National Benifit Association, vs. Bowman, 11 
N. Bb. (Ind) 316. It is immaterial whether the death 9f the insured 
resulted from a violation of a criminal law, or of a positive rule 
of civil law, provided the vielation of law was such as increesed 
the risk and naturally led to %i1s death, Bloom, vs. Franklin Ins. 


Co., 97 Ind. 478. 


We are of the opinion that in any event the nlea was 
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aa v2scaugé It failed to show any causative sonnaction vetween the 
(3500 W10la¢ion of the law and the injury, I the revlication 
Wes 104 4&2 390d one it was a suffisient answer t3 « bad. plea, Gould's 


Pic Ghe 9, SG. 57% People vs. Central Televhone Go., 23 


Rabat 


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AGiRnE: 
260-276; “leatherfora, vs, School Directors, 317 Jil. 495-508, 
Appellant cannot complain that the defective revlication wes allew- 


ed to stang to a defective plea, 1 Chitty’s Pi., p. 668; L. N.. 


A. & Co Ry. Coo, VS. Carson, i69 Til. 247-255. The replication an? 


the plea being tad, they aust Tali together. Ill. Fire Ins. to- 
7So Stentom. 57 PLL. Sb4—-S59, 

Then. again. appellent insured eppsllee against any 
toss by reason cf ths lisbility imposed by law, etc. Another prs- 


7ision purports tu re.ievs appellant from all liability if the 
injury occured while apoe.ice was operating his car in any manne's 
vrohitited by law. These xrovisions are very inconsistent. If 

the polisy in question is to be so construed as to relieve appoll-- 
ent from liakrility in all cases where the insured was operating 

his car in a manner prohibited by law, the insurcd would have na 
protection in most cases, Tractically all automobile accidents 

ere due to the fact that some law has been violated by one ox both 
of the drivers, Where there are conflicting clauses in an insurance 
contract, the one which affords the most protection tm the insured 
Will control, Monehan vs. Fidelity Ins. Co., 242 ili, 486. Tae 
policy in cuestiecn is so framed as to be susceptibls wf cne cen- 
Sivucsion in the hands of the Soliciting agent, amd of quite e dixt- 
ferent ene in the hands of the adjuster. It has been sn held that 
oclicies should not be so fremed, Travelers Tass Cos, vVSe Dunlap, 


160 Till. 642-247, 


Ww 


Appellant contends that the Court erred in modifying 
two of its instructions by striking out the word "fifteen" where 


it apveared in said instructions, and inserting in lieu therecf, 
ie 


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the word, "twenty". The secon? ee at ples avers that appslilens 
was operating his car at a rate of speeA greater than twenty miles 
an hour, etc. The instructions in question were svidently banca 
upon that plea as there was no other plea presenting that defense. 
The Sourt Simply chang3:d the instructions so as to correspond 

with the pleae Appellant is in no »esition to complain of that 
modification. No compigint is made of the Gourt's ruling en any 


of the other instructions. No revers.»le error having been shown 


the judgment is affirmed. 


AFTIRMED» 


Not to be reported, 








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AP: SuLure COURT 


AFR 1 5 jgo 
FOURTH DISTRICT 
ee ee eee ee 7" Wi . ‘ AN | \ 5 X s ey 
t FOUR; ArRE! i 
oc? "OBER TERif, A. D. 1926, OURTH DISTRicT OF LET 
THRE NO, 1, AGENDA NO. 32. 


Tamed ¥4 Keeley and John 
Keeley,Partners, doing 
business as Keeley Brothers 
Contracting Company, 
Plaintiffs in Error, 


Error to the Circuit 


os Court of ladison County, 


©@ gee en oe eh te oe 


Tllinoia Glass Gompany, : pin 
Defendant in Error. : 


ee 


HIGHZE, re Plaintiffs ‘in error, hereinafter called shane 
tiffa, brought this suit te recover danages from defendant 
in error, hereinafter called defendant, for the alleged 
breach of a contract entered into by said parties on august 
24, 1920, whereby plaintiffs undertook to construct certain 
buildings at Bridgetown, New Jersey, for defendant. The 
contract contained the following, among other provisions; 
Gencral Conditions, 


3e The Contractor agrees to furnish 211 material and- 
equipment and to perform all labor necessary to the excayv <- 
ation, erection and completien of all plain and reinforced 
concrete foundations, walls, eolums, flo@rs and machinery 
cmplacenents in the following buildings: Power House, Worth 
and South Producer, Houses, Batch Plant and Factory Building. 
All material and labor to conform exactly with the crawings 
mentioned herein and with thesé specifications. 


Drawings. 


4, Drawings of the various portions of the werk will 
be furnished by the ommer as the work progresses and accepted 
by the Contractor in writing, as a binding portion of this 
Contract. Any suggested changes of alterations therefrom 
mst be submitted in duplicate form, as sketches or drawings, 
and must bear the approval signature of the Owner's author- 
ized representative or agent. 


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2 moa toned? anoltates Le to aayiete boda : 
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A=396 Plan of Sauitary Sewer System, 
A=397 Plan of Drainage System, 

A-398 Foundation pian, 

A=399 Detail of Piers, 

A=405 Detail of Piers, 

A=407 ixcavation Plan, 

4-429 Plan and Elevation Main Building, 

It appears that in order to enable prospective bidders 
under the contract to submit their bids the Plans above 
mentioned were furnished to then prior to the Petting ef the 
contract, One exhibit in the case was a letter from the 
defendant in error te plaintiff, under date ef August 5, 1920, 
containing the following: "Under scparate cover please find 
Prawings in396, 597, 598, 399, 405, 407 and 429, A407 is 
correct for excavation on Hain Building, The remainder of 
these drawings should be used for general information only, 
until such time as they are completed and checked, which will 
be done in ample time to avoid any delay," Plaintiff's bia 
was on the unit basis, se that they were to be paid 
at the prices named for the material used and labor performed, 
The amended declaration, after averring that plaintiffs were 
engaged as building contractors with their principal effice 
in the city of Zast St. Louis, Illinois, and that defendant 
Was & corporation engaged in the manufacture of glassware 
with a factory and its principal office in Alton, Illinois, 
then averred that defendant desiring to enlarge and improve 
its plant at Bridgetown, New Jersey prepared specifications 
and plans for the purpose of securing bids for the work de 
Sived, and furnished plaintiff with the sae. 

The declaration then stated in det.:il what was shown 
by such plans and specifications, and alleged that plaintiffs, 
after determining from said plans the amount of miterial and 
labor required submitted their bid which was accepted and the 
contract in question was entered into @ the 24th day of 
dugust 1920; that after the oxecution of the contract plain. 
tiffs went into possession ef the lands and lots, inen tioned 


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in the contract where said improvements were to be constructed 

and incurred a great expense for equipment, machinery, tools afid 
appliances necessary for the work; that afterward on September 

29, 1930 and on Noveiaber 12, 1920, modifications of the contrac y 
were agreed to by both parties, The dedlaration then alleged that 
after the cxecution of the contract and commenceiient of work thbwet 
under by the plaintiff's,defendant "furnished detailed drawings 
for a portion of the work described in said contract, plans and 
specifications, in conformity with section four (4) of said eens 
tract, and that plaintiffs proceeded without delay and completed 
said portion of seid work in atcordante with said contract, plans 
and specifications, and to the satisfaction of the defendant and 
the defendant accepted the work se performed by the plaintiff's and 
paid them the full price to which they were entitled for said sae 
tion of such work in accordance with the unit prices, providing 
compensation to the plaintiff*s for such work." 

That on April 4, 1921, defendant, without any reason or 
justification, notified plaintiffs that owing to business de- 
pressions and other unavoidable circumstances, they would proceed 
no further with the performance of the Se ae ee plaintiffs 
to place no further order for material or equipment or any work 
exclusive of the buildings they were then enjaged on, and that 
when defendant was ready to prooeed with the work it would notify 
plaintiffs; that since that time centracts had been let by de- 
fendant to other parties for portions of work covered by the con- 
tract; that while plaintiffs had at «11 times been ready and: 
willing to furnish the material and perform the labor, yet de = 
fendcant refused to yeriit them to do any more of the work they 
were entitled to do under the contract; that said contract was 
advent2geous, beneficial and of great velue te plaintiffs, anc 
had they been permitted to furnish the imaterial and perform 
the work according to the contract they would have mede large 


profits amounting to the sum of $157,628,50, 4 plea of the -- 


































IOUSTANGS Ss OY 
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~ Of dou , Novel ods. aaoteae bua Lobresemaeds, tak 
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general issue ane notice of special matters of defense thereunder 
were filed by defendant. 

On a trial before a jury a verdict wds returned in . 
favor of defendant «nc this writ of error was sued out to reverse 
the judgment entered on that verdict. Plaintiffs offered no in« 
structions and no criticism is made of those given in behalf of de- 
fend=nt. It is however contended by Counsel for plaintiff that 
the trial court erred in rulings on admwissibility of evic ence 
and that the proof failed to sustain the verdict, 

While the declaration claims damages ohly for the refusal 
of deféndant to permit plaintiffs to furnish material and labor 
for certain buildings, claimed to be covered by the contract yet 
the bill of particulars furnished by the plaintiffs on iaotiion of 
defendant states that dcoimages are claimed for the refusal of de~ 
fendant, "to permit the plaintiffs to furnish any material and to 
perform any labor necessary to the excavation, erection and com 
pletion of ali plain and reinforced concrete foundations, walls, 
columns, floors and machinery emplacements in accordance with the 
contract between the plaintiffs and defendent and plans and specifi- 
cation made a part thereof as herein referred to in and about the 
following structutes inciuded in said contract, viz: 

South Producer House, 
Secené unit of factory building, 
Third antt of factory building, 

and e2lso for failure to vermit plaintiffs"to furnish all naterial 
ana to perform all labor necessary to the excavation, erection and 
completion of all plain and reinfor¢ed concrete foundations, walls, 
columns, floors and machinery euplacements in accordance with the 
contract between the pisintiffs and defendant. and the plans and : 
specifications made a part thereof as herein referred to by permitt- 
ing the plaintifis to furnish only a portion of such labor under 
such contract, plans and specifications in and about the folloving 
structutes included in ssid contract, viz: 


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Power housc, 

worth producer house 

Batch plant, 

First unit of factory building," 
In other words while the deolaration claimed damages only for 
defendant's refusal to permit plaintiff to furnish any of the 
materials and work for certain buildings named therein, yet the 
bill of particulars, alse included a claim for damages bedause 
of defendant's refusal to permit plaintiffs to furnish all the 
material and work fer the construction of a main factory building 
ef the general dimensions of approximately 700 feet north and south 
330 feet east and west compesed of three units, while defendant 
centended that the detail drawings provided for a factory building 
of only ene unit which was to be 220 feet north and south by 330 
feet east and west. The trial court adopted defendant's views, 
the holding of the court being based upon the theory that there 
was no binding contract between the parties until detailed craw -~ 
ings ef each building were furnished by defendant and accepted by 
plaintiffs in writing under that portion of the contract which 
provides, “drawings ef the various portions of the sork will be 
furnished by the ovner as the work progresses and accepted by the 
contractor in writing as a binding portion of this contract®, It 
is further contended. by plaintiffs that the plans submitted to 
them for the purpose of making their bid, provides for a Factory 
building 330 X 700 feet, In this connection it should be remem- 
bered that the letter to plaintiffs in error accompanying these 
plans under date of August 4, expressly stated that all of those 
plans except A407, which was merely for excavation on the main 
puilding, "should be used for general information only until such 
time as they are completed and checked", It is contended by plain- 
tiffs thet plan A397 provided for the construction of a South "ro- 
@ucer House and other buildings and showed that the factory build- 
ing was to be 330 x 700 feet, but that plan was Bimply entitled 


"Plan of Drainage System" and plaigitiffs' contract did not include 

































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east tarts yived? od? aogi bessd sited #209 ods ‘to ai 

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—HSuSt sd Deionae Ft xoltoanses 


Stordd aalinsgumsss taxa mi atte: 


“Hisig NX Sabautaeo ab +¥ .“beaideria bruss vasekqnee 6 


sox stened 2 to nodtemv ties Sat" ot bobiverg 
~bitud grodoct od? taht bowsta Ana aaalbbsiud 
: Selti¢as yYiquse sp wale Ioad Sed tae, 





phirtoets Poiati wh I onad nay rata bait 


the drainage system, Et seens that sid plan A397 did show the 
lacetion of different buildings as conteiided by plaintiffs and 
while no dimensions of the buildings were wentioned therein, it 
is claimed such dimensions could be ascertained by application of 
of proper skill to the intetpretation os such plan. It appears 
from the prrof however, that these buildings were only sketched 
in this plan and that there were no deteaihked drawings of the sane 
as providec for by the contract. 

Smpert witnesses in behalf of plaintiffs testified that 


plan A397 did show the number of buildings and buildings of the 


dimensgiens as contended by plaintiffs and testified in detail as 


to the amount of materials and labor recuired for the construction _ 


of such buildings had plaintiffs been permitted to complete sae, 
Other expert witnesses in behalf of defendent testified that it 
contained only genexal plans concerning a drainage system with 
Which plaintiffs had hothing to do; that it was onky a general 
plan of contemplatec enlargement in the future and didnot include 
such detsilec dravings as would be submitted to a contractor for 
his guidance in the work, No detailec dravings were ever sub : 


mitted for the buildings whih plaintiffs contend they were not 
permittedto construct, It seeis to be conclusively established 


that the only detailed drawings or working plan submitted to 
plaintiffs in error prior to the execution of the contract other 
han the plan of the ey ee were the plans for the con- 
struction of the First Unit of the Factory building, and that 
those detcils showed such builcing was to de 220 x 330 feet, 

The Court refused to admit said plan A397 in evidence 
upon the ground that such plan did not contin the detailed draw- 
ings ef the buildings referrea to as proviced for by the contract 
ana that such detailed plans were never furnished, and hele that 
there could be no completed or binding contrect between the parw 


ties for any certain building or buildings until such detailed 


drawings were furnished to and accepted in writing by plaintiffs, 




























oe 
aid woes bib SOtA asf¢g bise said Bese a 


t+! .nierary batodtno: ot B uassthas oti. as 
* 
eae ie A apate pm 


to nokscotiqgge qd, Senisiseose ad Sisoo Bookamscth Sone 


i 


arssqqs a1 ieig deve vo coksts torgtotak ant oF. 
betiotois yYine otev spaliiiod sass fz he stevorod | 
OHtt5e out te. anotvesb bodilnish on stew otertt doris ag: 


stogzdnos ond bs i Pode 


tic} Settitesd ekeiintalg to Bieted mi soasond Ly sons 


ag, Listed a boeltisasd pra emittatste “es sebastna east 


bE Syarit hot igeat Fuiwncles to eesiod ak voswent ty feogee: 
< iit ott lag 


fitiw wetaye sueniarh s nulaxsonoo Dyer, harxenss iso 


7 


Lar UPN ee oe Fly 
Esteneg 2 vdeo vaw Jf tad?  7Ob of ynddzod bast ovttindesg 
ae bs 


obufoni Sombib Soe eustul ot as taonenta tae Seeniqesame Yo a 


tot sofsstinos sos Said haiue of bisow 38 sated | pottnteb 


fom gtew ett Bbratnoo 2 sttidntetq dist. ‘apabbiiwd acd ‘Re 
bedeiidasas vieviewlanos sdé-od aiese FF oe i 


+ | a 2 Py oot pe -« 
« of bettinduce ante 


talio Josttxon 2nd to nottueeze oft ot aolsq- tests “ah wits 
“ao ofS tot nasiq od saw wade Teneditedea: ‘eat 29. ase 
dodt boas ,eotbityd » crotoa® oxit to, $i sexet ewe Yo not 


Me me tg 


eis es ee i oe + 2 . be 
SRiehrLyve of VOSA nal 7 Stas Jibs 


“nah Salirngebh alt aisaade gon BLS nna sans, 2 oad avons by 


: hn pares . 


bolinjoh slowea LE dow attend, bet) > Sabha 


ation moa Ve kd daw ok peers Sra9 oe) 3 DOU 


A ‘ k rer ts) a i ; a. » " oH 
44 i R patie 5 
° ie at 


foes 


This apvears to us to be the correct construction to be 
placed upon the portion of the contract to which it relates. 

The same contention arises concerning the Porer House, 
which plaintiff claims was to be 100 x 100 feet in diiensions, 
However, it is shown that plaintif? -did construct 2 power house 
50 x 50 feet for the defendsnt for vhich they were paid the sum 
of $4195,15, Under a supplemental agreement dated Eny 15, 1922 
a Batch Plant was constructed by plaintiffs for a lump sum of 
$31000, The Batch Plant built under the supplemental contract 
was only one half the size of the Batch Plant claimed by plain a 
tiffs to be shown under A397, The North Producer House was built 
under the general contract as was also the First Unit of the 

factory building, 220 x 330 feet, For all the work done both 
that under the genercl contract and under the supplemental con- 
tracts above referred to detailed drawings were furnished by de-- 
fendant., These detailed drawings were all furnsihed subsequent 
to the date of the contract, sugust 24, 1920, save probably draw- 
ings A407 hich as above stated covered only tne excavation onthe 
main ocouilding as stated in defendant's letter of sugust 5, 19:20 
3t also appears that the North rroducer House was er- 
rected under a supplemental contract on the unit basis dated Oct- 
ober £0, 1921, and that detailed drawings were furnished for this 
work. 

It is further contended by plaintiffs that the eviéence 
shows plaintiffs were prevented from furnisning all the material 
and work on certcin other buildings for which detailed drawings 
xere furnished and acce»ted. There were however introducec in 
evidence receipts signed by pleintifis reciting that they are in 
full for work on the buildings in question or in full for final 
payment, and se are not disposed to disturb the ver - 
dict of the jury on this ocuestion, 

Pleintiffs further insist thet in any event tlicy are 


entitled to recover for 421 tons of reinforcing steel which it is 













‘sd od mofdenttanos Joes108 ont. oF od" as ball 
.vwoteior §£ oid: oF sosiines asia to » nots 
,BeoK tel of 


, Bid Fanos h ad Jan% ooL x aor ‘od of enw ‘ante Io 2 


wre silt Siar ay ow ors array ros drsbasted ond Bits 


GRE 80 ut Aedah dronoemgs is Jucouts Lage % bed 


















to mre opi £ TO? Bettis 
+ pore too Cagmnie Lee ue 
“i Books ac $n Lt inde! ecut to esta ie ‘edt sao 


= ite end ‘ fica 


$tisd osw enuoli xopubots dtioM onft VOSA. Tehay avon of 


aid to die gJaai% od? onie api ue soextaoo faronsp 


dtod osteb uxor ale Fie 20% 599% O86. x: 088 andb isd fica 
: hee Highah > Wye aera ne ot 
ton Igdgomotgdya adi teas bas ioomtiod: iokoney ra 








¢ S5ofaloxet otew andiwntb belfisieb of sornotes av aaa ast 


ulino moitcrenxe odd ulao Soreveo Sotndea evods aa dob v0 


Sree: 


-f90 Soteb ektead dteur oft mo forrdnao. sronomoiaque bt reba 


gone hits ot Inde ettiisaisia ¥d 


(nttsd ey ott Ufo paeicaniw® 1 


ME. DAONHOTITL xayower Sra 
. L * e eg 
WA 3s Yous Jeut suisiaas Bae: TES Riley, ee baagte 


” 


- Tov om. -; le ders BE ed- Sones ase ws sol 


iN i 


“ ja aN > 
was out Theva: Vig at Sci ai 


a 


il 
her 


bi» st Ji dotsy Loote pike 10° 





contended they ordered for tie job anc were not peruitted to use. 
The claim apvyers to be that 700 tons of reinforcing steel were 
furnished by plaintifi of which 278,9 tons were used and paid for, 
and the balance not used, The only evidence on this subject 
appears to be certain Gata taken from: a letter fro plaintiffs 
to defendant in which it is st..ted tnuat pleintiffs have estimated 
such steel at 700 tons, but we find no proof whiecn would justify 
us in disturbing = verdict of the jury on the ground the pleain-~ 
tiffs had not been paid for all steel furnished by them to be used 
in buildings covered by the contract. 

In our opinion the court committed no error in ruling 
upon the evidence and the proof is sufficient to sustain the 


verdict. lo other errors are called to cur attention and the jucg-. 


ment therefore should be and is affirmed. 


AZPUPMED, 


Not to be reported, 


it, out Dt, sottastia tuo of belise-eta etotre tadto ‘ot ~totbisy © 

















ot Dott ium ton wae Sus dot, as 20, devebta wat bebmotace 
‘ ‘fa sto gees 9t ‘to pant OOY dest od od ax..8qge ainto est 
Sieer Bug beans stew snot @,8°S gin tie to stidniotg ae | datatics? 
odfdse ofa ao gonohtve wire att ,hsan ton sons tad oni hee 


7 COomt tecgelL | -iert novet giat aistrso od ot Se 





itee sve eYitiaiale jens bet de ek @) dodo nine Siotsh ot 
we Sisow okt) Toet; oat Heit. ow sd laa GOT ¢s foots ove 
t2ic sid bawors akc aco wart edt io- +2 stbver p nakdzuders mi bondi 
o¢ meds yd Ssdairrut Loots iis ar froad tom bec! exaks 

sfoota oa 9nd Yd betevoo. gmk biband | ak 


eo 
ut oi toute on Soitkaes Fxoo ‘ont ao kako sto al 


t- 
+ 


sid mindveauve of tnatsictee al Loot ent Bos Sonobkye ony ld ; 


-houitie ef bas of bistode ototstens saem | 


6 TY Sa ES : 


bsttogex of ad Som 4 


xf 








TATS “OF” coe (eee 


Robe ; Ys \. 
/ APPELLATE COURT ClEAK me “y NOG 
f — FOuey s Hoa i uc auar 
aq 





Nols 


T>RU NO, 8, 


HAZEL MILLARD, 
Appellee, 





Appeal from the City Court 
V3, 
ef BAST ST, LOUIS, ILLINOIS, 
ARCADE FURNITURE CO., 

-ppellant, 


(FE) 


" 
ee 2 oe 92 ©f OP oe 


HIGHIG, J, Appgllee, Hazel lhillard, brought this 
suit against appellant, Arcade Furniture Company, to the January 
Term, 1926 of the City Court of East St. Louis, to recover dame 
ages for an injury which she sustained on the 16th day of 
Wovember, 1925, 

The cause was tried at the January Term, 1926, of 
court before a jury, and resulted in a verdict for appellant, 
This verdict was set aside and anew trial granted. The casc was 
agoin tried at the lay term, 1926 of said Court and a verdict and 
judgment Sareea in favor of appellee in the sum of '33000,00. 
The declaration as originally filed consisted of three counts , 
put before the second trial the first and second counts were 
dismissed and the case wes tried on the third count which, in 
subst-nee alleges that on the 16th day of November, 1925), appeiie 
ant vas conducting a genercl retail furniture store on the ground 
floer and baseiaent of a certein building on Collinsville Avenue 
in the City of Jast St. Louis; that in this store a stairway led 
froin the ground floor to the bascment as a itcans of access to 
the besement for appellant's eustomers,; that it wap the duty of 


appellant to keep this stairway su_ficiently wellelighted for the 






















TOLATLIA 


s 2) echae a So 0 an clliew dete OY ae eb relate 1 Poe x 
: : : 

k 

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$ etROL: a oh ME. 2: O00, 


~ elon mae aes Se ak eh ne ee aoe OE He poe ey 


_ CoA cat 
99 Lfeata is 


4 


,.00_ SHNEIUAOE au % 
vats ‘ | 


+e @e SS 6% «hb RE Oe 


abil} 3 finword bart? i foxelt 06 Llpgok ; ae < oan 7, 
Burs OFS OF —Fj¥SogmeD saat ici ebeota _imsifleage Janet ye die 
i CoC ot  tisokd .id tae <0. g2u0D | yiid et to ase. pea 
to Yah 23S ert to benksteve ede dio kaly Ysias as 23% Boye 
| OSes ae 
to" ,8ceL rel vrovaet eft ta bstat sew eames ent ee 
JJapiteggs tot Joibievy a at bed fvest bag uaet 2 oxoted etu00 
em Suan aft ,fodicr Isiat wea’s bas often tea ong fotbrey ‘aiat 3 
foLhroy 8. brn assoD Bian. to OS@L arrest yeat ons to hoing atcpe, 
0 ) 00! Si to me 5 et silacgs to tort. ak hoaxes om tony our 7 
- PEN if Ro botekanos Aattt yiienkjita eA nokta safoeb) od 
oe 










toes bas Satii oft Lobtd heaps ong oxoted ce 
gauoo Hrd) s8t me beisd is eed. ont ben bocainale 
~Tadinevel Jo Bab Ad wkd ao ind asgolis sonsvadia 


o1088 cutioms Lister Loreneg # ‘gaisoubaoa eat dims 


SUNS TZ) BEAT ERERE AT Stirs ae ud wt i189 a to Sasegatd bee 20082 


& skose ‘ahild ok dacs sainmd td test: to ED ott 





Ets ag >t 


are of its customers; that on the cay aforeerid, while anpellee 
Was exercising due cure and eon for her own safety, she was 
using this stairway in going to the basement, and that appellant 
then undertook through its servant or agent to illuminate the 
stairway by means of a flashlight, but that aptellant's servant 
or agent carelessly and negligently failed to light the stairway 
sufficiently, which stairway was then and there in 2 dark and 
poorly illuminatec condition; that as a result thereof appellant 
fell with force and violence down the stairwey to the basement 
breaking her right leg and sust-ining cther injuries. To this 
declaration a wles of the general issue was filed. 

at appears from the evidence that on the day in 
question whill appeilee was in the basement of appellant's store 
purchasing some furniture the electric lights went out. «Appellee 
was accompanjed by her three year olc son and rs, J.J.#ddings.- 
her sister in law, After the lights went out appellee and her 
party, together with appellant's salesman, IncNichois, who was 
Waiting upon appellee, returned to the upper floor through this 


1, > 


stairway, vhich consisted of one straignt flight of steps and 

led to the southwest corner of the basement. #rom the foo t 

of the stariway there was anaisle or passege-way about three 
feet wide leading to the right or north. After returning to the 
uppver floor appellant sent one of its cimloyees out to purcnase 
“lash lights, snd the seme when secured, were then distributed to 
avpellant's salesmen, It would appear that other customers who 
were in the basement when the lights went out remained there 
until they were cenducted upstairs by salesmen ecuipped with 
flashlizhts, Appellee testified that when heWichols, the sales-~ 
man, was supplied with a fl-shlight he suggested that they return 
to the basement and look at some more furniture, The said sales. 


however, 
aon ,/ testified that apyellee suggested returning to the basement 


tow 
ané that he objected, but upon her insistance they did return. 
appellee was corroborated by her Sistcr-in-law, that it was the 


9 





rate at to ks cod 
athe SLO ai AB: todd - paak dibs SotankewhEe 4 ehioog 


‘niveteut tao ated ae: ime gel es cor Yakiaome 


tren atuinil ofidoote att sist in? soos pitssslot 





mort, ,tressesed eff ke tamrros Saandiane aald: ot: bet” 


ines Tongs isa wd eek ‘at gee bedoubads ‘omoWw yous Lkiras 


es peed 
rn ToaeG FARE. eh 

























sa hkst 
ated? hes odd enw badetints ote dodely celmnotot eae 


a’ yYowsksso ed} seed eonafobly pag goto? abe £fe% 
polt? ecw aueel Intaces’ att to adie se aotterasoed 
jest: sonebive oft mort ereecge TH" <= 2) 


loiqe to tnomoend ent a sew pstlleq¢a  Litiw aods aap: 


eyi bre ope hio taey ead? sted a belnaegmoson: ‘aw 





“5 ¢uw trow etdyii oz rod LA : omen ag sotaty: roe 
roto Aamo tee 6 *sncileggn ad tw wautdogod: ong 
sooft teqqy ot of Dominges .eelieg¢ds nour: peiks bam 


capit® Iigteuta sao to boteleaes dokmr eats 


We O93 ABBY so eleiens usw exon warktnte. eit ke : J 
westA- decom mo Frieda: odt-oF pabbael abiwy. 4 
isavol@uo afi to one save tasiisera <o0tt noggitt nt 
iems oigy  betsass. tec amish -ead srs seodgil Aout ; 
fous Sect tveqes Bivow #2] jaomuedee @ "iaekbouee 


ie. Git ££ ott epsciye Jnomdead ould "BE oxow 


‘ioiie:i sodwitact beltibtaed sellsegga. ends Slee te” 
eteoggue of - tdetbisk LY « Asie bebigque aps, : ee : 
STUSLIP?T stom anog - 3 


MEE UES. Soest 


r 


p MS LE oe EES 


saiecsman who suggested they return to the basement, The testimony 
of appellee and her sister-in-law is that the sclesman started 
down the stairway with the sister-in-law imuediately following 
hia and appellee with her three year old son in the rear. Appellee 
ana her sister-in-law both testified that the stair-ay was very 
dark; that the salesmen kent the flashlizht directly in front of 
him, end when he reached the foot of the stairway turned to the 
right up the aisle to the north and thus left the stairway in 
darkness: and it was at this time that appellee fell and sues 
tained her injuries, KkeNichols, testified that appellee was 
imnediately behind nif. as he went down the stairway, and that he 
80 walked and helé the fleshlight that it wes © directed back of 
him so as to lisht the stairwsy in front Ries He also testi- 
fied that appellee was followed by her sister-in-law, ana that 
anotner salesman with a flashlight in his hand was coming down 
the stairway back of appellee's sister-in-law. 3; that appellee's 
child began crying as they started down the stairway, and that 
when appellee was within two or three steps of the bottom she 
attempted to quiet the child, by slapping or shaking him, and 
it was then when she fell; that he attempted to catch her, but 
was °°. unable to do so. This witness wes corroborated by 
gnotner sal<«siuan who testified that he was immediately following 
this part down the st-irway. 
Four grounds are presented by appellant for a re- 
versal of this jud;ment as follows: (1) that apzellee did not 
show by a preponderance of evidence she was exercising due care 
and caution for her own safety, just before and at the time of her 
injury; (2) that she did not prove that her injury was due to the 
negligence of appelian*; (3) that the trial court erred in re- 
fusing to give four instructions offered by eppellant; (4) that 
the verdict is excessive. It is claimed that the evidence shows 
appellee was not using due care and e:ution for her own safety 
for the reason it appears she knew the Lishts were out, and that 


a. 



















Nwow ace Ye siate ett dadt beltiteed ciad welmabisdabs 5 ted 


af dr bus ,yornists sdf avob tase orf “an a 1 fitkdod fed fai 
to ford Seteot hs ~ m $2. Seif der fstanet iid Sted: ‘omy bosttow i 
: bs 

~it eer: oats: ok be ~ te. ton? ai: Yawkiewta say sive Ot): ae 08 
sate orn yatislent—tedeien sed Yd fewelto® wae eokingme dat 


mwosh yataes cw eet eiei sik triskfiesrt ‘Be shin nasinaias an | 





| s'ealisccs taki 7 wilt vedete 2 selfegge tes ose isan 
“ bas ,.“yowriciea ely awok SséteJda wot aa: ankeso naged %. 
ada siocvtod 13 So agate gourd to oi mal iw aw ential 
bas; gt sniustle co Ratega tds Yd ipit ide oly chia at a 
“eS to} tip liogys: ue £ Wenig ote ebaitorn Da, eee 
jor bio sellers tant (0) teweliet-ga Prony batt, wists : 20 
SEso id inh!) a ecw. orla: eonebt we: Yo a ee al 
eae SO arid wild bien 
4 Dit OF “Sih, cagw agru Labs 


iT he sees typos 


203 ({3.) 42dcts i Louts Kes hove hth wnototee ae sue ‘nied 





Svea eopshivea cots tadt boskeke. ahh £04 owt sesoRe Ok 







Weise oo sod wk: soksure Ga pias:. ox gu Jon 


~ Riecis& Om i: Oke atou: as ELH. och 





the stairway was dark before she started to descent the saije, 

It is true thet the evidence shows she had such lmowleiige of her 
surroundings but it must be noted that the negligence charsed 
by appellee is not a failure to light the starway as she vas des 
cending it but the alleged negligent act on the part of the sales- 
man in turning up the aisle to the right after he had reached the 
foot of the stairway, and failing to keep the flashlight so that 
it would shine upon the stairway, Both apvellee and her sister- 
in-law testified that the salesuan was several stens in advance 

of appellee who wes a large woman weighing 250 pounds and that 

the sister-in-law was between her and the selesman. These alleged 
acts of the salesman wes clearly something which appelleec ould 
es foreseen as she started down the stairway. If appellee's 
injury Was caused by the action of this salesman and not the 
failure of appellant to properly illuminate its stairway, the 

jury wes justified in finding appellee was not guiity of con. 
tributory negligence if they believed ner and her witnesses, 

as the verdict shows they did, As to appellants second contention 
that is that appellee filed to prove her injury was due to the 
negligence of appellant we are of the ovinion that if her injury 
had been shvon to have been caused solely by the darkened con~ 
dition of the staircry, this position vould be well taken, if 
however, it wac @ue to the action of the salesimn in turning the 
flashlicht from the foot of the stzirway, tue wosition would not 
be vell token. Upon both of the abore cuestions of fact there 

Was conflict in the testimony, Appellee and her sister-in-law 
svore to facts which if true, sustained appellee's alleg-tions in 
her declaration of negligence on the part of the servant of appeil- 
ant and due care on her part while appellant's selesman, HeNichols, 
swore to fucts testified to by appellee and her said wit- 
ness, licNichols, was corroborated to a considerable extent by 

We H. Symonds another sslesiman and Cora Lipount esshicr of appell- 
ant, swore to a siatement made by appellce soon after the accident 


which waa to soc oxtcent contradictory of her testimony on the 







atoiate ted prs oelfouge fyod Law hed 6G. iit’ Og ie 





gom.vie of acode Eptover epy egetee one roid bok te, 
fnate ebavog OaS pakiyiow smew eptsl a sow Bait. 










a9 F 


ay maka ab asunetes alt 


icon: : 
erm oLtrew SS £EOL One ,¥ 
P sod = as A 
Lots “SOE 25.8 20 £ Bak 25) 


isferienotata axon bees satisdak curombsood oil — if 


as 


MG tdodae side nbiaaos 
“fifsuis 4 ssidacn S1sHoy wht gro) brig 
FieS L7G ae Tovia gece solfegde “Ey 


MLS AO YRndi zoos won 30. GEasS haa Say. 


trial. The jury sav all these-witnesses and heard their tes. 
tinony and were in a iaueh better position than we are to de«~ 

termine, wiiech ones were siore wortuir of credit. They decided 
the preponderance of the evidence wos favorable to the sik 


tiff, and we do not feel that this covrt is in a yOSition to 


el 


over=ride the verdict of tue jury in thet 6Zare, 

Appellant ofvered seven instructions anc the court 
refused four of then. he three instructions siven cic not in 
any neanner cover the question of contributory neglizence on the 
part of appellee, nor were any such instructions given at her 
instance, The first of eppellant's refused instructions stated 
a generel proposition tiiat iv one goes upon the vrenises of another 
by invitation anc is injured by reason or soe defect or existin:: 
dangerous condition wiicn the injured persou knew to be danserous, 
danages cannot be recovered for the injury. This instruction 
men advised the jur: that if it believed frou the evidence that 
while appellee was in the store the electric lights ceased to 
burn; th-t anpellec expressly desired to go to the baseient, and 
that apoellant procured e, face er Waien but partially Li-vted 
the stairway, anc that appellee Imew of these cenditions or had 
1 : 


imowins ther as appellant; that notwith~ 
As > 


the sae opportunity of 
stendin:; suc knowledge sas ctteiitec to descend the stairwes and 
was injured . While so coing, then she covld not recover any 
danages, This instruction does not apoly to the case stxrted b 
the ceclaration, upon which apoellee aust rely, Which was that ner 
fall was caused by the salesiian so turning the flashlight at tne 
foot of the stairs that what light it did give was not reflected 
upon the st:irway. The second and tnird of adpellant's refused 
instructions arc along this saie line <néd ignore this sate eléuent 
of this case aac as all these instructions directed a verdict, it 
seeus to us ther wers properly refused. "An instruction -shica 
nresents a different cuse froi: tuat declarea on, is erroncous?, 
Schnidt v, Balling, 91 Tll., App. 388, The fourth refused instruc - 
jury 


dsiogs stated aiong other things, tuct if the “believed fron the 


evicence - = - = = - = 8 =e ee ee eee eee eH eee 




















- ah ae rs gh Mone sty Re rete bss 3 oitdea” SOUR nk ‘erer, 





- 
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" rer a¥ | ifacow: +22 ee gonrcb hws: ear to sotirr abitog ete 
at maks ! ak of gahboe etht gach Leek ger os amr bas 
| huoeat sace me ae oie 0. fokbxsy bas ‘abt 
x! J urerj our heck coved Sere eia sd on LLoergt 
ek tom SES 1 uae ty, proitserderk Seads oo Scart te nator tise 
act aa Socéeilesn wishribetaed Te netiaesp omy 18¥00 | a9) 
sort te mevtS, “esto Hourésnt deve eas etew ton: calle on 
i 78 andivovasadh bsdvlot eins tleqggs Fo! duxkt ad? 
eerie =o 248 . Gib Ft 


Sndduras tO oO 2ae Sipe 
auoieiiinh o¢ Of wats vesioy bertal sav soe 80£3 £00 
og torrpenti- eiatt ° ne Nas silg vol Ssxevoost od donne. 
tict ‘gonedive aly poat bewekLed Jf Tk seams Yaug sas boa tvhe,. sc 

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of Soacso ktrkit orgteoets 


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beri to ssokii ices seat? to weet selfLocgs Sats! Sas « caeiaes am 


wtiviwten gait witriLoqges es regi tukwordl Te eo Lapdtoqdo. ote ast fe 
bas ‘owetata end beooued of Set aodts ete apse iver Sone ae 
Cts govoags dom bio sia cond .antoh on etiaw” ‘somutat : 
a8 a8n0 aid oF viogs ton seo a iajatinle abet z 
to Pigs acw cadet: \xflor Fou osiisegn tie brew oes oontniatged git 
oar 1G ee hivierty sata Pyke EEF He nevada ony vd: boanio sor Kiet 
bstoeliat dou aav evig bth S2-TeekLl Fete are ends eo a axe to. | | 





ASGNTet eliastiec.s to Sehey bes Baooes: ear 4 naene ste ects 
Meelis sis8 Bh orenek ban sail eee wees aie ote: ‘anoks \n 3 
hy g bolostis anokaguisant ouact 1 ao 556 e800 ote 
Pi iby tir hobtoos tank oA® DAsurror «<Ireveay otaw cent 
"BNOSNOCIS @£ .moO Sevekoss snd (OTE atid | Hose TAED 
~oosnient beastei ddtot off .65e Rese | as ie | | 


wast 
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- ~ - ~ ~~ ~ ~ ~ - ~ ~~ ~~ —_ = 


appellee knew of the conditions with reference to ligat and noi. 
withstanding such knowledge attempted to descend the stairway in 
question then the appellee "assumed whatever risk there was", 
This instruction was properly refused as the doctrine of assured 
~isk which it seems to invoke is only applicable to cases aris-~ 
ing between master and servant. Conrad v; Springfield Ry.Co. 
249 Fis. X25 

While the verdict may be somewhat high vet we do 
n-t believe that we can held it ‘.. is excessive under the 
proof in this care, It was shewn by the evidence that anrnellece 
suffered a fracture which extended into her ankle; that shewas 
unable ta be on her feet for two montha and even then wes coia. 
pelled to use crutches; that ner ankle was still at the time of 
the trial swollen and painful, enc that this conditien - may 
last for a yeor or more from the time of the Aes In the 
case ef heyszels v. Chicago City Ry. Co. 177 i112, App. 534, where 
the injuries complained cf were very similar te those shown by 
the evidence here, a verdict and judgment for 32000 were sustained 
by the Appellate Court from the First Distr’ct and while the 
verdict in this case. in our ered nay be large. we do not 
feel jutified in helding that it is so excessive as to warren 


a reversal and ve must therefore affirm the judgment. 


JUDGLGNT AFFERMMD . 


Net te be reported, 





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THE PROPLE OF THD 
STATE OF ITLINOIS, 
Defendant in 5Srror,. 


RIT OF ERROR TO, CIRCUEP, COURT 
or 
MaDISON / COUNTY. 


VS> 


EARRY CLARK and IR JIN 
EATRIDGE, 
Plaintiss in Error. 


OPINION BY HIG3u., Je 


Pleintiffs in error, @arry Clark and Irwin Ratridge, to- 
gether with Stowell Beach, were indicted in the circuit court of 
Madiscn county, Illinois,for violation of Section 1 of the 
Criminal cede which is Section 1 of "An Act for the protection 
of bank devositers." All three of the defendants named in the 
indictment were found guilty, but a new trial was granted Stoweli 
Beach and the case against him was afterwards dismissed. The 
indictment grows out of the failure of the First State and Savings 
Bank of Woodtiver, Illinois, and the same conditions in substance 
exsist in this case as exsisted in the case against these same 
plaintiffs in error in which an 9 .inion was filed by this court 
on March 31, 1925- The verdict of suiltyas returned by the jury 
found each of the persons charzed guilty anc fixed their fine at 
- 290,00 each, and imposeé an additional penalty oe plaintiff 


in error Eatridge of ene year imprisonment. The court enterec. 


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io yigoo diverio ot of betothai extow ,foaed LLewote dtiw tedton 
oid to £ uottoes@ to soitsicty tok, elaatiit etasos moe tbaeli 
mnoitostorgy ent «ok toA ah "eig. I aottoe& af dot ctw ebeo Lantnixd 
ig of bomex. atashioteS edt te eexdt ILk ",exotiaoveb dod to. 
rlowese Betasts easw icoitt won es tod wins Basot - oxew tuomtol bak 
ont? -Seenivedh ebtewredts saw mia ventians sesso eit bras donk 
Parives Six a¥ese tealy eis TO ori tet edt to tue a0 tno itethuct 
be mt enettibaco onied edt hxs ,efoniif{l ,xevitboot!. to xaadt = 
omnes oeedt tgontess oneo sit at betalexss eb eass ‘eiat ot tales 
vases aids yo Beffit ees moinice an dotee at tonte of attivatele ‘ 
Sat od Bada? eeytlinn te toi sicoy asdf 2aeer , £& so Tali pe: 
tieid Boxikl Sas ytlinog bereede ano atag out to no8e Brsok 
ttttnisiq of es . utlexee fasciitis os semcent bas ,fose 00,008" 
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judgment on this verdict fining eech of plaintiffs in error 
$290.00 and sentencing piaintiff in error Hatxidge to imprison-— 
ment in the Southern Illinois Penitentiary at Chester for one 
year or until discharged according to-law. Since the record 

in this case is in all substantial matters the same as the form 
er case above referred to egainst these nlaintif’s in error, 

and since nothing nas been callea to our attention changing 

our opinicn as to the csrrectness or the ovinion rendered in 
that case, we adopt, so far as appiiceble, the former opinion 
of the courte 

The only difference between the two indictments is thet 
in the present indictment plaintiffs in error are charged with 
accepting a deposit from one Emil Krauss ot the sum of $145.00 
on Cetober 23, 1922, knowing that the bank was on that date in- 
solvent. The history of the bank from the time cf the acventing 
of the deposit in question to the clesing of its coors on Nevomber 
17, 1922 and during its Liquidation, as shown by tho record in 
this casc, is fully set forth in the fexrmerx opinion in this 
court, and it seems t: us to be wholly unnectessary to incorpo~ 
rate the same ih this »ninion. 

Plaintiffs in error devote no little portion of their 
argument to discussing the contention that the closing of the 
bank was due to unfavorable business conditio s and not to any 
miscenduct on the part of plaintiffs in error. The cause of the 
insolvency of the bank and of plaintiff in error's contribution 
thereto are immaterial. The material issue in this case is, was 
the bank insolvent on the date the deposit was made,and did 
plaintiffs in error know of such insolvency when the deposit was 
accepted, and was the deposit lost to the depcsiter? 

It is earnestly contendec by plaintiffs in error that 
the burden was upon the people to show the insolvency of the bank 
on the date in question, and that the peo»le did not meet this 


a> 

































i , se ee at 
ea is r aly 4 
store of api ate to 
WO MT TePBoth te yastisehtaetl Bs oe RET syeieteioe batik aR 
G-roc ett 2 .wol ow enibroons beguadbers gitag sis 
ams ext Sa enaa ott enetia fathietidae fie mt et “ORR. ‘Sisit Fed dua} 
aoe a serine ‘ceade fankens betcotle: emnds: aane: me 
x Sit hae ja seo feed ear giddom eo icra baa, 
Ry tanite y rors as f mross “to ont ot ses motatee EEO: ai 
tclaiges coiext sit volisaliqga 28 Tat Ga (sae en 10880. sae: 4 
ohh: 00 oat. ». a 
oysid bys ry woah owl sd? meevted, soe tatters cae oat. Sine 
Sty * OD pte cote of etht ditede Sxemt os Sat inene ng a on 
CO,ga5) foe eft to segecd Lint poo moet Jiaoged, a aniktaees 
2 adah Veit ao esy Aned edt sem 3 natwona gaSO@L | eS sedtoto? AO, 
ftdigese ht ts euid edd mort, shoad pat. ho [monet aan: ‘tana’ 
Be. eeod 4G qiiattlo ect of goidmanp ah dt eogeh oat ee 
i Srowei it awode ¢6. ,wiisebingsl edk ied) ‘bow SBOE, as 
aidt ah sofeteo sorter end af sina vee “et Lae peekace! 
room .ot wrareer sige ci fode ad of pa aut 
‘tad? to wobbrog actsi! en eteveb, fo%¢e ah sttsateld | 
eit To snteote-om ted? soi tadtgo@ ent attieesoets a¢ Baie. 
Yils oF Toaman # Olt ibaco saenhene ohierowerge, oF 90h, sew, aoned 5 
ods to-2c0so BAe .xonte sf aliicsiaig: 26 Pay end: oe tombqeos fm - 
. dinjoo9.s' sorte.at tWidaieiq. te bos gad edd 49, woaar toast. 
Say | ogi 526 iid. ok eee t feivatem 997. -fatretamat’ ona are 
‘ Beh ise, of eiw Jisovea oct eteb 
ow Fieoces..¢ “eB 
He ye. ah as 
ech i strids LBC G at LIB OC 
es ott te godevivent odd rate of oly a5 9 Te 
teen Tot BLh otoogg edd tact big sneataea, a 





kurcene 

In this case, as in the former one, the testimony of the 
witness, Slivka, is largely relied u»on tc establish the insol- 
vency of the bank uyvon the date in question, and his testimony 
ard other proofs on this question are substantially the same in 
this case as in the other. ‘The witness, Slivka, it is true, did 
not testify in detail as to the investigation he made as to each 
note, dut he did testify that he had made an investigation of 
the unvaid notes and was of the ovinion he could arrive at their 
Wetue as a whole. We are of the ovinion that there was ample 
evidence te justify the jury in believing beyond a reasonable 
deubt that the bank was insolvent on the date in question, and 


that the plaintiff in error knew of such insolvency and there 


sontention 
is no/ . ' that the deposit was not lost to the de vesitor. 
:-contendea 
Ete ef Gar . ° that the indictment charges that the de- 


pesit was mace en October 23 while the preof shows it was made 
on October 27 ane that the jury by the instuctions was required 
to find that the bank was insolvent on October 23. It ap dears 
that s@ne cf the instructions refer to the insolvency ef the 
bank on Cetober 23, yet most of these instructions oertained 
the following: "It is sufficient if you believe bLeyond a reason— 
able doubt from the circumstnnces in evidence that the bank was 
insolvent at the time said deposit was so received.” Further, 
several of the instructiors offered by plaintiff in error alse 
refer to the date in yvestien as October 23. 

Even if vlaintiffs in error were in »osition to complain 
of this discrenancy, yet ve are of the epinion thet sconsidcring 
the instructiexs as @ whole they were not prejudiced thereby. 


The samc comylaint is made in this case es in the former, 
36 


































22 eTOMLE Task m4 , Ts “y ‘ alt sf . Spy 2889 iad of ei yt 
aLonces deiids? : ‘or pakiet vflostal af svile pepentie 8 
; : " MSW eee nee Siok ie 
= ghana ele =F mitaging sf efan emt 1 ied oo he Yous 
ai ouiee odf Vifateundsdas sic wottacdy afdd wo ateoug vende Bas! 
; . ; see ws 4s lhies ee 
»autt ef +b evils”, 4cecciw off -.tedto Sit af ge Saae ekar 
: ; ; ; ; ‘ ; er a ae ce cs) We 
920 of-se@ aban ed metas svi adé St -aa Lfeiob af Uti seert slicu 
+3 ttanitaowsk as of her ed ted «tifest ae oF ton ota 
‘ Ur Ms Se 
 Se-eyitee Bfacs ea sokaieo edt To eee Ban ‘Betos  ptemw ont. 
- “ pe a Pan ny es " mal eee 4 Sad 
a ear Bord AS + rar any STS BF ott Foite x ee nse 
jidaxcanet s bthyed gukrotied Af Wark ed vanedit se ‘eotoBE¥0 
5 matt ext tf SS ark ceo. hvevyBRoent way shore? ety tend Saien | 
rticd3 Bos zoaovleent sown te watt rere of Shen eeie aff fet 
no ttretaop a 
»Tetivaged eft .ct teot tem saw Sineged oat Saat \on "Ty 
pobastave ar) 
~ab add tact esos tromtoibet sit. fades Ng ar, Hane 
Ag os ay O48 i alidw &&8 tedofo0 om sian aaw Heer 
exits itoutent © J yxut act cad? Soa. ¥S. zedpgo0 meas 
ig@o.gs @ OF a0 ioaxt eaw tasd eae Ft aut pabecee 
any i9 Yoaoy i tf Scr od 5 tiometent ait Xo atest 
Thad ae are I c > taon toy ,8& tedete 0 go: game, 
EME EBT 4, DIS ES esa ai ‘tise ef #3" sgntwoligk eit, 
: & Ly Sock emmMotto edt next tdreb sida, 
gry Pa sf: z ;4 g 4. 3 Ha 5 ay iii + 2) xt + 7 trovicaak 
oad oitogrieat edt to Inseved- 
: £ for 
; - ~ 3 - *% ROVE 
put d re ro a6 
a fea 98 Pet — er § Fin } 


that the verdict was improper in that it fixed the penalty. As 


held before, that part of the verdict may properly 


that the verdict was improper in that it fixed the penalty. 

As held before, that part of the verdict may be preperly consid- 
ered 2s surniusage. It is also contended in this case that the 
judgment of the court was impreper in se far as it attempted te 
fix the time for which pleintiff in error Hatridge should be 
cenfined to the penitentiary. This is not such an error as td 
necessitate a retrial ef this cause as such judgment may be 
corrected by the trial court under the direction of this court, 
s® as to make the >rison sentence of plaintiff in error Hatridge 
an indeterminate one in accordance with the lew. (Armstrong vy. 
Peeple 57 Ill. 459; Henderson v. People 165 Id. 607; People rv. 
Boer 262 Id. 152). 

The judgment will therefore be affirmed as to the plain- 
tiff in error Harry Clark. As to plaintiff in error Irwin 
Hatridge the judgment will be reversed and the cause remanded 
with directions to the trial court te enter oa proper judgment 


in accordance with what we have cboeve said. 


not to be renorted. 

























Mia a cat 


oA WET inceg ost Soxik #4 tort nt te orga enw tokirer 


yitoqnig em talbvey eat to bia. teas is oot 


walt tad? omen sity of kobe tnan nals at ¥F -ogseutiava 
_ fotemetts fi es tat ea at teqeiqnd eow saad ost. 20; 
et Sines enSintel torre af treidatsle ao ide tot oaly 
ch e&@ 1Cxte na deve gon ‘ef ald? .yxettaetioe on? ot. 
eg yan txemabal dave es eaveg etdt te Satater a oops tae 


Per? 


,tuse aidt fe woltostib oft sehay damog fata eae we bots 


enbitish tonto wi 2titutstia to eqaedieg moo kar ont exam 0 
+¥ Beoutdaara) .wal ent otin somebroses af en ot 


-y aleoet 3708 .6£1 Gal efeook av noatebaok A8OD ue 


Try att ot en bosrcitte ed oto Rete at Lhe taacabet oat 
“iwey torte ar Teitntnigq of BA #x0L9 gree rote i 

foSinred: seuss od? pra foeatevear od Ihe topmabag eae 
faaugbyt roqdaq 2 veane et Sisco Inked ort of anette 


-bies oveds ovet ow fadwaidiw sons 











f 4 ‘ 1} I | cS : [ r iy 
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f ) : . | | Aj at 2 a 257 
; f ay eee 
: / ff er r F ‘ - CL E \ \ ry > VN AS Pe 
— STATE OLRAI L Lit WA 1 Sot OHI SIS TRICT OF A ERURE 
APPELLA@tE ‘feootR, 
FOURTE DISTRICT. 
MAROC HT BRM 5 Ab Dod 82 7 
TOR’: NO. 13. ACENDA NO. 5< 
LARNER LEEDS, ) 
Avpellant. 
APPEAL FROM COUNTY COURT 
VS6 ) OF 
WABASH COUNTY. 
GLEN NADING ‘and ‘ 
PAUL NADING, ) 
Apyellees,. )} ee 
) 


OPINION BY HIGBuL, J. 


Appellant, Larner leeds brought suit in repievin against 
anpellants Glen Nading and Paul Nading before a Justice of the 
Peace of Wabash county charging in his affidavit for replevin, 
that he was lawfully ertitled to the possession of 200 bushels 
ef yellow ecérn and that appellee wrongfully detained said gocds 
and chattels from him. A weit of renvlevin was issued and duly 
served, a echanse of venue taken to anothcr Justice of the Peace 
Gid a trial had on Jamary 2, 1926. The Trial Justice found 
from the evidence that appellant was not lawfully entitled to 
nossession of the prceserty reolevindd and ordered that ea npellee 
have and recover pessession of the samo. On the day of trial, 
a writ of Retorno Habendo was issucd by the Justice. An anneal 
was asked for . to the sounty court by avvel‘ant, an appcal 
bond execute by anvellant, with a surety, which was 4p roved 
and filed by the Justice. The parers in the case anc transcript 


of the Justice of the Peace were eertificd by him to the county 



















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aivotoces to dia sé oni eet afettaga 
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facnte dh “soothe “elt GA SOneek Aue PREM tote of tt 
shew te dea Cheese “ef ed edad ‘oad so ae 


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fq trons 


oat pedo ert af ate au sat’ Lb tape o 


Yn oft that d va sePe pete vex ava 


court, the certificate bearing date of January 22, 1926. 

Upon the trial in the county court ap»ellees, by their 
attorneys, entered a motion in writing tc quash the writ of 
replevin and dismiss the an-eal for the following reasons: 

L's The court from which this action or cause was appealed 
had no jurisdiction to hear and dctirmine said pedis in that 
no demand was made by the plaintiff of the defendant er either 
of them for such proverty before suit was begun, as is by law 
required. 

Be This court is without jurisdiction to hear and detirmine 
said cause, in that the matter in difference is the adjustment 
of partnership affairs, such matters being of the jurisdictien 
of a court of equity and should have been commenced in a city 
court or circuit court. 

Be County courts have no jurisdiction to hear and detirmine 
questions of dissolution and winding up pertneorship affairs, 

4. that ene pertner. of a partnership cannot maintain 
en action of replevin against a co-partner during the term of 


rmination 
ef. permina ts of such co- 


such co-partnership, nor after th 
partnership until after their partnership affairs have been 
previously adjusted. 
5. The anpeal taken in the above cause was not perfected 
as is by law required and should be dismissed. 
Ee Ana for ether and further good causo to be shown to the 
courte 

On the hearing of tho motion, the county csurt granted 
the sama, dismissed the appeal, directed the clerk to issue a 
orocederndo to the Jusitce and entered judgment against a .pellant 
for costs and he prayed for and perfected ar apneal te this court- 


Appellant assepts and the record sustains his clain, that 


appellees introduced ng eviderce and filed no affidavits to 
2 



























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gAl-yd gi aa fuged saw five 94 voted 4 wineqoxq soma 


a - be es \n 
belay Wye, SRE eo 


extaxitoh Sirs teed ot a0? totbal et condi: a #000 be 
taems aut ba ant el SOG TIED, nat ned tam ont tad a, 
See : j : Ne ele ocrts wie ie + Oy j rep + “a 


2. 


a) ee 
gait! ‘hatuat eat To gates am item sos stiatia. iaront 


“tio se of accmen ist) ne0d ave : Sivodta ‘bus ae to’ 
on ee RAE fi + RE ES ep ROT 


acai 


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-ettette qidevearaie mg nbbotw Site. ol akouans to ano? 
MEST or Force didesontuag ad Yo 


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ie xoltaabergt ” : nok 


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bother’ takseo tii oft ~ottom ait * 


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tudd -nzals ald athetede 


suppsrt seid métion. 

As te the fitst réagon absigned hy appellee for the @is~ 
missal of the eaepoeal, it must be borne in mind that a demand 
is not always necessary before bringing an action in replevia. 
Kee & Chapell Dairy Co. v. Pennsylvania Co. 291 Ill. 248; Crans 
Ye Kroger 22 id. 74. Whether a demand was made sr not, was a 
question of fact which could not be taken for granted from the 
mere statement Pelion that no demand was made. Whether a 
demand was necessary would alss have to be detirmined from the 
facts in the case énd there was no proof on this subject sub- 
mitted. 

The second, third and fourth reasons relied on by anpoiless 
in their motion, are all based on the theory that the suit grov 
out of differences which arose between the parties ctver certain 
partnership affairs. There is however nothing in the record t% 
show that any partnership ever exsisted between appellant anda 
appellees and the ceurt could not detirmine the question raised 
by points 2, 3 and 4 of the motion without o~oof as to whether 
such a partnership had ever exsisted. Point Number 5 of the 
motion states that the apoeal from the Justice of the Peace to 
the county court was uot perfected according to law. It appears 
from the transcript of the Justice and the papers filed and 
certified to the county court, that the appeel was prayed for, 
allowed and the ap»neal bond filed with the Justice and appreved 
on the day of the trial. Nothing then remained to be done but 
for apvellent tp: pey the feo for the filing of the transcript 
in the county court and for the Justice to file the same in said 
courte It was necessary for annellant to pay the Justice of the 
Peace tho filing fee within 20 days after the judgment was 
entered. T.o record ghows that the case was tried by the Justico 


of the Peace on January 2, 1926 and the certificate made by 




































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him sand attached to the transcript, was dated January 22. 

1926, which would be within the proper time cnd shows the pay- 
ment of a filing fee. It is however contended by anvellees 

that the record does not show that anpellants paid the full 
amount of five dollers filing fee required by law. This claim 
is based uyon an entry in the transcript under ths head of cost 
as follows: 


Piling fees for Co.Court, naid by Larner Lecds, "3.00 


There is nothins in the transcrivt of the Justice of the 
feace or elsewhere in the record to explain this item. Apnellees 
interpret it to mean that only $3.00 of the required ‘5.00 was 
paid, while aspellant insists that it shows that the fvll amount 
of ‘5,00 was paid as the filing fee. In the absence of any 
further evidence on this subject, we must assume that the ‘ustice 
of the Peace did his duty and collected the full amount of the 
filing fee within the time required by law, for otherwise he 
would have had no legal authority to file the transcript and 
other pavers in the county court, as he did. 

The courty court erred in sustaining the motion of 
avpellees and dismissing the ap-eal from the Justice of the 
Peace with judgment against annellant for costs. 

The judgment will thorefore be reversed and tho cause 


remanded. 


REVERSED AND REViANDED. 


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