Practice To Support Motion to Vacate Judgment Given by Default Affidavit Must Show Meritorious Defense and Reasonable Excuse for Non-Appearance.

501a. Mark v. Loeser, Gen. No. 27249. Facts: Plaintiff brought suit to recover for goods sold to defendant. After the case was partially heard there was a postponement. Defendant was not present at the date set, and judgment was entered in favor of plaintiff. Defendant made a motion to vacate the judgment, on the ground that he misunderstood the date of postponement. Held: The affidavit to support the motion does not show that the defendant had a meritorious defense, nor does it show a reasonable excuse for his non-appearance; therefore the motion was correctly denied. Affirmed. (MORRILL, J.)

Tort-Child in Department Store Playroom Is There as Invitee-Prima Facie Case of Negligence.

Facts:

502a. O'Rourke v. Marshall Field & Co., Gen. No. 27252. Plaintiff, a child, was injured while playing in the playroom of defendant's store, conducted for the entertainment of children. The handle on a rockinghorse became detached, thereby causing the child to fall to the floor. Held: (1) From the conducting and maintaining of such a playroom an invitation to the public to use it is to be implied; therefore the rule which relieves the owner from negligent injury to a mere licensee is not applicable. (2) The fact that the handle, which the child was supposed to take hold of, became detached while the child was rocking established a prima facie case of negligence. Affirmed. (BARNES, J.).

Practice-Interrogatories Pertinent to the Determination of the Right to

an Accounting Must Be Answered-Enforcement of Court Order to File a Further Answer-Refusal to Obey Court Order Because Erroneous Is Not Justified.

503a. Duncanson et al. v. Lill et al., Gen. No. 27261. Facts: Complainants' bill prayed for an accounting and reconveyance of land held by defendant under a mortgage agreement. Defendant refused to answer certain interrogatories asked in the complaint on the ground that to do so would in effect grant to the complainants an accounting before the court had determined whether or not they were entitled to such. Exceptions to this were sustained. Defendant did not comply with an order to file a further complete and sufficient answer, and were found in contempt of court for failure to do so. Held: (1) The interrogatories being pertinent to the determination of whether or not the complainants were entitled to an accounting, an answer to them cannot be regarded as an equivalent to granting to complainants the accounting for which they prayed. (2) The order of the court for defendants to file a further answer is properly enforced by contempt proceedings. (3) A defendant may not rightfully refuse to obey an order of court on the ground that it was improvidently or erroneously made; even though an order of court is erroneous, it is not subject to collateral attack in a contempt proceeding arising from a refusal to obey it. Affirmed. (MORRILL, J.)

Practice-An Issue of Law Should Be Raised by Demurrer, but on Appeal Such Issue Will Be Passed Upon Regardless of Form.

504a. People ex rel. Lynch v. Village of Elmwood Park et al., Gen. No. 27264. Mandamus to compel the president, clerk and trustees of the village to appoint officers to certain offices. One defendant demurred and three filed answers presenting no, traversable facts, and so practically admitting the averments of the petition. The first defendant stood by his overruled demurrer, and as to the other three the order was entered on the pleadings. It is contended the cause should have been submitted to a jury. Held: There was no issue for the jury to pass upon, and in the circumstances it would have been better to raise the issue of law by demurrer, but because the order contemplates nothing more than proceedings according to law

(Art. VI, Cities and Villages Act, Cahill's Stat. 1921, par. 1196) the order will be affirmed. (BARNES, J.)

Mechanic's Lien, Waiver of-Intention of Parties-Specific Performance of Contract to Waive.

505a. Hettler Lumber Co. et al. v. Hodge, Gen. No. 27274. Facts: Bill to enforce a mechanic's lien. A carpenter contractor, Sundstrom, undertook to complete certain work for additional compensation in consideration of which he agreed to waive whatever liens he might have against the building. Appellant contends that there was thereby no waiver of the right to a lien; that such a waiver is essentially a matter of intention, and that it was the intention of Sundstrom in executing his instrument and of the owner in procuring it to effect an arrangement whereby the owner would be enabled to secure disbursement of the building loan negotiated upon the premises. Nothing remained to be done under the contract except to execute the waiver. Held: There is nothing upon the face of the contract to indicate that no waiver was contemplated. Equity regards that as done which ought to have been done. Therefore, Sundstrom cannot be permitted to urge his failure to comply with the terms of his agreement as a reason for avoiding the agreement. (MORRILL, J.)

Practice The Appointment of a Referee to Determine a State of Facts Does Not, Under the Practice Act, Transfer an Action at Law to the Chancery Side.

506a. In re Dadie's Estate, Gen. No. 27295. Facts: On motion of complainant against the estate, a referee was appointed to state and report certain accounts. Complainant filed exceptions to the report and demanded a jury trial. The case was directed to be regarded as an action in chancery. Held: The reference of a case to a referee, under the Practice Act, Sec. 68, does not transfer the action so far as procedure is concerned, from the law to the chancery side of the court. The case should have been submitted to a jury. Reversed and remanded. (MORRILL, J.)

Contract-Sale-Goods Ordered by Sample May Be Rejected if They Do Not Correspond.

507a. Siegel v. Greenberg, Gen. No. 27298. Facts: Action for the purchase price of certain coats, which were to correspond to coats purchased under a previous order. The court found that the coats did not so correspond. Plaintiff contended that it was difficult to obtain two bolts of precisely the same color, and that the difference was not material. Held: The finding of fact cannot be disturbed. Judgment for defendant affirmed. (BARNES, J.)

Practice A Verdict and Judgment Must Be Manifestly Against the Weight of the Evidence to Justify Reversal on that Ground.

508a. Pikora v. Royal Neighbors of America, Gen. No. 27304. Affirmed on the facts. (MORRILL, J.)

Chattel Mortgages-Replevin-Retorno Habendo-Under Retorno Habendo the Defendant Can Claim in Mitigation Only the Amount of His Prior Lien (Less Costs).

509a. Egan v. Szabo, Gen. No. 27319. Facts: Szabo replevied an automobile worth $950 under the prior of two chattel mortgages. Failing in his action a writ of retorna habendo was issued in favor of Ganzler, in whose favor this action is brought, the automobile not having been returned. The court below allowed Ganzler $75 attorneys' fees, but not the balance over the amount of Szabo's claim of $515. Held: Ganzler being entitled to the automobile, or its value, under the writ, Szabo could only claim in mitigation of damages what was due him under his prior lien. Reversed and judgment here for $510. (BARNES, J.)

Administration-Accountability for Property in Dispute Is Entitled to Trial Upon the Merits.

510a. Martin v. Coyner, Gen. No. 27345. Facts: Appeal from order dismissing a motion of plaintiff to vacate an order of the Probate Court removing him as administrator of an estate and directing him to file an account. The affidavit in support of the motion alleged that the final account had previously been filed, that he had been compelled to inventory goods whose ownership was disputed, and that he was not accountable for such goods. Held: Plaintiff was entitled to a hearing and a determination upon their merits of the questions indicated. Reversed. (MORRILL, J.)

Contract of Sale-Accord and Satisfaction.

511a. Cohen v. Kite, Gen. No. 27349. Facts: A check marked "payment in full" was sent to plaintiff in payment for part of an order of goods alleged to be defective. On action for the balance of the price, found, that the check was accepted in full settlement. Held: Affirmed on the facts. (BARNES, J.)

Torts-Personal Injury-Negligence.

512a. Meyer v. Chicago, Gen. No. 27355. Facts: A minor suing by his next friend recovered verdict and judgment below for injuries received by contact with an electric wire. The child had climbed a tree standing between sidewalk and curb. Falling, he clutched the wire and was badly burned. Contended by the city that it was not negligent, that the wire was not an attractive nuisance, and that the minor was guilty of contributory negligence. Held: The boy had a right to climb the tree and his conduct should have been anticipated. Affirmed. (MORRILL, J.)

Reversed on the Facts.

513a. Claussen v. Pannier, Gen. No. 27367. Reversed on findings of fact. (MORRILL, J.)

Contract of Sale-Implied Warrants.

514a. Pacific Lumber Co. v. Chicago Toy Works, Gen. No. 27397. Facts: Action on account stated for lumber delivered. Defense, breach of implied warranty of fitness. Found, that defendant company had lodged no complaint except one which had been satisfied. Held: It therefore waived all other objections if it ever had any. Affirmed on the facts. (MORRILL, J.)

Affirmed on the Facts.

515a. Anderson v. Gilmartin, Gen. No. 27409. Affirmed on findings of fact. (MORRILL, J.)

Principal and Agent-For Contracts of the Agent Within His Authority It Is the Principal Who Must Be Sued.

516a. Stollof v. Elenbogen, Gen. No. 27433. Facts: Plaintiff purchased steamship tickets from defendant as agent of the company. On cancellation of the passages he seeks to hold agent for the price, the agent having agreed to cancel. Held: Plaintiff had no cause of action against defendant. Judgment for plaintiff reversed. (MORRILL, J.)

Contracts.

FILED JUNE 9, 1922

517a. Bell & Howell Co. v. Spoor, Gen. No. 26433. Modification of cause consolidated with Bell & Howard Co. v. Spoor, Gen. No. 26432. A review in each case of substantially the same matters as found in Bell & Howard v. Spoor, 216 Ill. App. 221. (TAYLOR, J.)

FILED JUNE 26, 1922

Practice-Mandamus-Laches in Bringing Petition for Reinstatement of Police Officer.

518a. People ex rel. Grantier v. City of Chicago et al., Gen. No. 24960. Facts: The Circuit Court overruled a demurrer to relator's petition for a writ of mandamus to compel the respondents to reinstate him in the police department of the City of Chicago, and the writ was awarded. The petition filed on January 6, 1916, alleged that relator was unlawfully reduced in rank on January 21, 1897. No valid excuse was offered for the delay in filing the petition. Held: The delay of nineteen years between the time of the alleged unlawful reduction and the filing of the petition is sufficient to bar the right of the petitioner to the relief sought. Reversed. (McSURELY, P. J.)

Burglary Insurance-Employee of Assured Implicated in the Crime.

519a. Lund et al. v. U. S. Fidelity & Guaranty Co., Gen. No. 26471. Facts: Plaintiffs obtained a judgment for $3,053.12 in the Superior Court of Cook County on a policy of burglary insurance which specified that it did not cover any loss "if assured, any associate in interest, or servant, or employee of the assured, or any other person lawfully upon the premises is implicated as principal or accessory in effecting or attempting to effect the burglary." One Mitchell was employed by plaintiffs infrequently, usually on Saturdays, Sundays and holidays, as floor man, to supervise public dancing, and for this service he was paid $5 for each evening. Mitchell and several accomplices made the plan which effected the burglary, but after leaving the plaintiff's place of business on the night of the burglary Mitchell did not return to the vicinity. Held: Acts of advising, encouraging, aiding or abetting by Mitchell took place while he was employed by the plaintiffs, and he was therefore implicated as an accessory to the burglary which occasioned the loss. Judgment reversed and judgment of nil capiat entered. (McSURELY, P. J.)

Domestic Relations-Torts-Husband and Wife-Responsibility for Wife's Tort.

520a. Johnson v. Keystone Oil & Mfg. Co. et al., Gen. No. 26720. Facts: Appeal by defendant James Hawkes from a judgment for $2,000 against Hawkes and his wife Anna L. Hawkes for an injury to plaintiff, a crossing policeman. The injury was occasioned by the negligence of Mrs. Hawkes while driving an automobile belonging to the Keystone Oil & Mfg. Co., placed by it in the custody of James Hawkes. The action against the company was dismissed. James and Anna Hawkes denied that the latter had permission to use the automobile on the occasion of the accident. Anna Hawkes was using the machine to take her sister to a real estate office. It is not claimed that she was using it in her husband's business. Held: Even though a husband gives his wife permission to use his automobile (permission which was denied here), the husband is not responsible for the wife's negligence, if the latter is not at the time of the occurrence performing some service for her husband or engaged about his business. Reversed. (DEVER, P. J.)

Banking-Notice to Bank Not Established.

521a. Kasper State Bank v. Goldberg, Gen. No. 26778. Facts: Defendant obtained judgment in the Superior Court in an action by the plaintiff to collect a check signed by the defendant. The defendant claimed that the check was obtained fraudulently by Charles Jacobs and that the bank received notice not to cash the check. Held: Reversed because of insufficient evidence of notice to the plaintiff before the check was cashed. Reversed. (DEVER, P. J.)

Installment Contract-Refusal to Accept Last Installment.

522a. Ennis-Bayard Petroleum Co. v. Macomber et al., Gen. No. 26863. Facts: Defendant obtained a judgment for damages on a claim of set-off to an action on an installment contract. The plaintiff refused to give shipping instructions to the defendant for shipping a last installment of wax, and refused to accept the goods in December, 1918 The defendants held the wax until April, 1919, when they notified the plaintiff that they would sell it. Held: When the plaintiff company signified its intention not to receive the goods, the defendants had a right to sell them for the account of the plaintiff and are entitled to recover damages based upon the difference between the contract price and the amount actually received by the defendant. Affirmed. (DEVER, P. J.)

Agent's Commission-Agent's Right to Commission Not Abrogated by Principal Taking the Making of Terms from Agent's Hands.

523a. Alfred H. Wiedhofft v. Commercial Car Unit Company, Gen. No. 26881. Facts: Plaintiff below, Wiedhofft, as agent for Hudford Co., defendant's assignor, sold to Andrew Murphy & Sons six carloads of automobile trucks. Final terms in regard to deposits and deliveries made by Hudford Company. Plaintiff obtained judgment below for $1,140 as commission. Appealed and affirmed. Held: (1) If agent delivers order to principal, this is prima facie proof that contract was made by agent and must be contradicted by principal who has peculiar knowledge by his position to show that sale was not completed. (2) Agent's right to commission not lost by the taking from his hands the final terms of contract. (3) Plaintiff alleges employment by Burah, proved employment by Hudson. Even though this was a material variance, which it wasn't, defendant must object to evidence at trial. (DEVER, J.)

Set-Off-When Vendee Pays for Goods at So Much per Unit and Goods Are Valueless Vendee's Claim Is Liquidated and Can be Used as Set-Off Against Claim for Purchase Price by Vendor.

524a. The Gates Co. v. Armstrong Tire & Vulcanizing Co., Gen. No. 25947. Facts: Plaintiff filed claim for sum of $1,616 owed by defendant for certain goods delivered to defendant. Goods were "second tubes," which were new tubes without manufacturer's name. Plaintiff delivered old, worn, second-hand tubes, which were paid for by trade acceptances before opportunity of inspection by defendant. Tubes were invoiced at $1.15 a tube. Defendant filed set-off to plaintiff's claim for defective, valueless tubes. Defendant's set-off stricken off by plaintiff's motion. Plaintiff was a foreign corporation. Held: (1) When claim is for return of purchase price paid in trade acceptances at a specific price per unit because goods were valueless, it is liquidated and good as a set-off. (2) Defendant can file for liquidated damages against a foreign corporation, as a set-off. (Guenther v. Miller, Gen. No. 26548.) (DEVER, J.)

Joint Liability-In Action Ex-Contractu Against Several DefendantsError to Enter Judgment Against More Than One and Less Than All Defendants by Default Unless Declaration Amended.

525a. Carl V. Wisner v. Cornelia H. Catherwood, Maude H. Catherwood, Naomi C. Hokanson, and Nels M. Hokanson, Gen. No. 26988. Facts: Declaration alleged joint indebetdness of four defendants to plaintiff in sum of $17,000 for legal professional services. Default of two defendants entered of record. Other two defendants were in default also. Later suit was dismissed as to two defendants not entered in default. Judgment rendered against two defendants entered in default for $7,620.18. This judgment against only two defendants alleged in appeal as error. Reversed. Held: When on face of declaration four defendants are charged jointly, a judgment cannot be entered against two in default after dismissing suit against the remaining defendants without first amending the declaration. (DEVER, J.)