a contract may be such that it is not assignable, nevertheless, a claim for money which has become due under it may be assigned. Affirmed. (JONES, J.) Easements Railroads Non-Adjacent Owner of Property Cannot Compel Railroad to Maintain Crossing, Easement to Use Which Was Obtained from Owner of Land Adjacent to Railroad.

54b. C. B. & Q. R. R. Co. v. Malmgren, Gen. No. 6964. Facts: Bill to restrain tearing down of fences put up by complainant at a crossing. Held: An owner of property adjoining a railroad cannot grant an easement which he possesses to use a railroad crossing to an owner of property not adjacent to the railroad and thus compel the railroad company to maintain the crossing for the non-adjacent owner. Reversed and remanded with directions. (JONES, J.)

Practice Appeal and Error-In Appointment of Guardians Appeal Lies from County to Circuit Court-Relatives of Minor Child Have Appealable Interest from Order Appointing Guardian.

55b. McMahon v. Trautvetter et al., Gen. No. 6968. Facts: McMahon was appointed guardian of estate and person of a minor in county court, but Trautvetter et al., relatives, appealed to circuit court and had themselves appointed guardians. McMahon appeals on ground they had no appealable interest and appeal did not lie to circuit court. Held: (1) Proceedings for appointment of guardians are in no proper sense suits at law or in chancery within the meaning of §8, Appellate Court Act, and an appeal lies from county court to circuit court. (2) Relatives have an appealable interest in appointment of guardian of a minor. Affirmed. (JONES, J.)

Evidence-Evidence Illegally Seized Admissible in Criminal Case If

Otherwise Competent-Error in Putting Before Jury Thing Not in
Evidence Is Cured by Putting It in Evidence.

56b. People v. Schmidt, Gen. No. 6976. Facts: Defendant, convicted of illegal sale of liquor, sued out this writ of error on ground trial court erred in admitting evidence illegally seized in that the search warrant was defective, and in allowing a witness to read to the jury a label on a bottle before it was admitted in evidence, although it afterwards was. Held: (1) Papers and documents illegally seized from a defendant's possession are admissible in evidence against him in a criminal case if otherwise competent. (2) Error in allowing witness to read to jury from something not in evidence is cured if that thing is later submitted in evidence. Affirmed. (DIBELL, P. J.)

Pleading-Practice-Evidence-Granting Leave to Amend a Pleading Does Not Constitute an Amendment-Only a Sworn Witness May Contradict Another.

57b. People v. Sheldon, Gen. No. 6977. Facts: Defendant sues out writ of error on ground court erred in allowing a conviction on a count which did not correspond with the proof and which the state's attorney obtained leave to amend but did not. Another assignment of error was that state's attorney told the jury a witness made a different statement to him. Held: (1) Granting leave to amend a pleading does not constitute an amendment thereof. (2) An attorney cannot, without being sworn as a witness, tell the jury a witness made a contradictory statement to him out of court. Reversed and remanded. (DIBELL, P. J.)

Reversed on a Review of the Facts.

58b. Hinckley v. International Harvester Co., Gen. No. 6980. Reversed and remanded on a review of the facts. (DIBELL, P. J.)

Reversed on the Facts.

59b. Fay Lewis & Bros. Co. v. Brown, Gen. No. 6996. Reversed and remanded because verdict not sustained by the evidence. (PARTLOW, J.)

Landlord and Tenant-Leases Construed Most Strongly Against LessorDoubtful Agreements Construed According to Conduct of Parties. 60b. Goldberg v. Pearl, Gen. No. 7002. Facts: Suit to recover possession of theater building on ground of breach of lease. Defendant leased from plaintiff, agreeing to pay rent and run wholesome shows. He paid rent, but kept place closed, plaintiff accepting rent. Judgment was for plaintiff and defendant appeals. Held: (1) All grants, contracts, deeds and leases of every description shall be most strongly construed against the grantor, and if there is any doubt or uncertainty as to the meaning of a lease, or if it is capable of two constructions, the construction most favorable to the grantee shall be adopted. (2) Where the terms of an agreement are doubtful, and the parties to it have, by their conduct, placed a construction upon it which is reasonable, such construction will be adopted by the courts in the event of litigation. Reversed. (DIBELL, P. J.)

Personal Property-Gifts—Administration of Estate-Putting Money in Bank Payable to Infant Relative Is Valid Gift-Delivery of Gifts to Infant Relatives Not Closely Scrutinized-Estate Must Pay Costs Where Administrator in Good Faith Sues to Recover Assets and Fails.

61b. Smith, Admr., v. Brook et al., Gen. No. 7010. Facts: Deceased made a gift to defendant, a minor relative, by putting money to his credit in the bank. Plaintiff attempted to recover back the money, but judgment was rendered against him and costs were taxed against him personally. He appeals. Held: (1) A putting in the bank of money payable to an infant relative is a complete gift. A delivery of gifts to relatives and infants is not so strictly scrutinized as a delivery of gifts to adults and strangers. (2) Where an administrator brings a suit in good faith to recover assets of the estate, and fails, a personal judgment against him for costs is erroneous. The estate must pay the costs. Affirmed in part and reversed in part. (DIBELL, P. J.)

Equity Jurisdiction-Court of Equity Will Reform Incorrect Instruments Mandatory Injunction Will Not Be Issued Till Final Hearing. 62b. Utterback v. Estill, Estill and Jones, Gen. No. 7025. Facts: Bill to correct a lease and to obtain an injunction. Defendants had leased to complainant and a clause against subletting was inadvertently left in. Complainant sublet and defendants entered. Bill prays for correction and a temporary mandatory injunction compelling defendants to move out of the house and premises. Bill was granted and defendants appeal. Held: (1) A court of equity has jurisdiction to correct mistakes in deeds, leases and other instruments in writing and so reform the same as to conform with what was intended by the parties. (2) A mandatory injunction ordering parties to do affirmative acts will not be issued until a final hearing. Affirmed in part and reversed in part. (PARTLOW, J.)

Carriers-Practice-Carrier of Passengers Must Exercise Highest Degree of Care-Error to Submit to Jury a Question Not Supported by Any Evidence.

63b. Wennmacher, Admr., v. Choate, Recr., Gen. No. 7026. Facts: Plaintiff's deceased was killed while a passenger on defendant's car and plaintiff obtained a judgment for the damages suffered. Defendant appeals on ground trial court erred in refusing its instructions: (1) that carrier of passengers need only exercise ordinary prudence; (2) that if jury finds a truck backed up and brushed the deceased off car, defendant is not guilty. There was no evidence of the truck backing up. Held: (1) A carrier of passengers must exercise the highest degree of care consistent with the mode of conveyance adopted and with the practical operation of the road. (2) It is error to submit to the jury a question which is not supported by any evidence. Affirmed. (DIBELL, P. J.)

Affirmed on the Facts.

64b. Short, Extrix., v. C. R. I. & P. Ry. Co., Gen. No. 6943. Affirmed on the facts. (DIBELL, P. J.)

Contributory Negligence-One Who Voluntarily Places Himself in Known Danger Cannot Complain If He Is Injured.

65b. Dushane v. City of Ottawa, Gen. No. 6954. Facts: Plaintiff rented and moved into a house which was located in a hollow, although he was warned and could see that it was liable to be damp and perhaps flooded. The heaviest rainfall in the history of the city flooded the place and caused serious damage to him, partly because the defendant allowed a drain to become clogged. The trial court placed the blame entirely on defendant who appeals. Held: A person cannot place himself, or his property and family, in a position of known danger and then, because he and his property have been damaged, recover for his own negligence, even when the damages are the result of ordinary conditions; much less can he place himself in such a position and recover for extraordinary occurrences against which he cannot be protected. Reversed and remanded. (PARTLOW, J.)

Equity Jurisdiction-Practice-Bill by Sub-Contractor Will Lie to Establish Lien on Funds in Hands of Owner Which Are Due Contractor -Court Need Not Refer Case to a Chancellor to State an Account. 66b. Beatty, Beatty and Beatty v. Monahan & Monahan, impleaded with City of Wilmington et al., Gen. No. 6956. Held: It is proper for a subcontractor to bring a bill to establish a lien on funds in the hands of a city for a balance due for materials furnished by the sub-contractor to a contractor on a city job (namely, the construction of sewers); and it is proper for the court to hear the evidence and state an account where the items are few instead of referring the case to a chancellor. Affirmed. (PARTLOW, J.)

Real

Property-Contracts-Practice-Deed Signed by Seller Satisfies
Contract to Convey Signed by Seller-Market Value of Land Is
Question of Fact for Jury.

67b. McMillen v. Betz, Gen. No. 6972. Facts: Assumpsit to recover damages for breach of contract to convey land and to recover part payment. Defendant signed an agreement in writing to convey land to plaintiff and accepted part payment. He tendered deed signed by himself also, but plaintiff refused it because it was not signed by his wife also. Plaintiff brought this action, but the verdict was for the defendant. He assigns as error this ruling and the finding of the jury of the value of the property. Held: (1) Where a party makes a contract to buy land and accepts the seller's signature on the contract without that of his wife, a deed tendered by the seller and signed by him alone and not by his wife is sufficient deed to satisfy the contract. (2) The question of the market value of land is one of fact for the jury and the court will not set it aside on appeal unless clearly against the weight of the evidence. Affirmed. (Partlow, J.) Contracts-Builder Not Liable for Defects Appearing After He Has Com

plied With His Contract, When Defects Are Caused by Nature of Soil.

68b. Portable Elevator Mfg. Co. v. Dutton, Gen. No. 6982. Facts: Assumpsit for material and labor in erecting elevator and corn cribs. Defense: That after the completion of the elevator and crib they settled and cracked. However, the evidence showed this was no fault of the builder, but due to an unknown condition of the soil. Upon verdict for plaintiff defendant appeals. Held: A builder is not responsible for defects in a building where he has complied with his contract and the defects are subsequently caused by the nature of the soil or the action of the elements. Affirmed. (PARTLOW, J.)

Contracts-Agency-Appeal and Error-When Compensation for Services Is Not Determined Reasonable Compensation Is Implied-To Entitle Agent to Commission for Selling Property He Must Produce Purchaser Able to Buy-If Party Induces Court to Commit Error He Cannot Rely Upon It on Appeal.

69b. Pusey v. Vorland, Gen. No. 6983. Facts: Action by agent to recover commission for procuring a purchaser for farm of defendant. Evidence showed that defendant beforehand refused to pay a 21⁄2 per cent commission (which would be $1,000), but agreed to pay plaintiff well. Defendant then refused to sell to purchaser plaintiff procured. Plaintiff recovered only $100 and appeals on ground this is insufficient. Defendant assigns as error also the fact that purchaser never stated he was financially able to buy, in spite of the fact that defendant himself successfully objected to the putting of a question to the purchaser which would have elicited this information. Held: (1) One who performs services with an unnamed compensation is entitled to a reasonable compensation there for. (2) When an agent sues for his commission in procuring a purchaser for land, the fact that the purchaser is able to buy is material. (3) A party who induces the trial court to commit an error cannot rely upon this error on appeal. Reversed and remanded. (DIBELL, P. J.)

Appeal and Error-Practice-Until Appeal Disposed of Writ Error Will Not Lie-Where No Cross-Bill on File, Complainant Can Dismiss His Bill-Errors Not Preserved in Certificate of Evidence Cannot Be Argued on Appeal.

70b. Sinclair v. Sinclair, Gen. No. 6986. Facts: Bill for dissolution of a partnership. Verdict was for respondent and complainant appeals. Without any dispostion of the case on this appeal, he then sued out a writ of error. On this appeal he assigns as error the refusal of the trial court to allow him to withdraw his bill as no cross-bill was on file. However, this is not included in the certificate of evidence. Held: (1) An appeal operates as a continuance of the case and until it has been disposed of no second appeal or writ of error will lie. (2) When no cross-bill is filed, complainant has a right to dismiss his bill at any time. (3) Errors not made a part of the record on appeal by preserving them by a certificate of evidence cannot be relied upon. Affirmed. (PARTLOW, J.)

Suretyship-Surety Can Demand Reimbursement Only From One Who Is a Principal on the Instrument.

71b. Hathaway v. Bole, Gen. No. 6997. Held: Where a party is a surety on a partnership note, and the partnership is dissolved, and the first partner takes up the new note with a new one signed only by himself as principal and by the former surety as surety, the latter, if he has to pay the second note, cannot recover from the second partner. The second partner was discharged from liability when the new note was accepted in place of the old. Reversed. (DIBELL, P. J.)

Negotiable Instruments-Personal Property-Joint Tenancy-Administration-Note Made Payable to Either of Two Persons Is Payable to Both-There Can Be Joint Tenancy in Personality-On Death of Joint Tenant, His Share Goes to His Personal Representative. 72b. W. Bolton et al. v. M. Bolton and Schneider, Admrs., and M. Bolton, Gen. No. 7000. Held: (1) When a note is made payable to X or his wife, it is construed as payable to X and his wife, and they both become joint tenants of the note; on the death of either the other is entitled only to his share or one-half, the other half going to the personal representative_of the deceased. (2) There can be a joint tenancy in personal property. Reversed and remanded. (PARTLOW, J.)

Appeal and Error-Statutes-Construction of Payment of Fees Within Prescribed Time Is Condition Precedent to An Appeal-In Construing Statute Intention of Legislature As Evidenced by All Circumstances Governs.

73b. Conklin v. Tobey, Gen. No. 7009. Held: (1) When an appeal is prosecuted from a justice of the peace court to the 'circuit court the appellant must pay the fees prescribed within twenty days as provided in the statute, or the appeal will be dismissed. (2) In construing whether or not the fulfillment of this provision as to the payment of fees is a condition precedent to the perfecting of the appeal, the intention of the legislature in passing the law must be considered; it is evidenced by the necessity for the law, the previous condition of the law on the subject, and the defects, if any, in such former law which were intended to be remedied by the later enactment. Affirmed. (PARTLOW, J.)

Reversed with Finding of Fact.

74b. Lindhout v. Director General of Railroads, Gen. No. 7012. Reversed with a finding of fact that plaintiff was guilty of contributory negli(PARTLOW, J.)

gence.

Sales Where Vendee Has Had No Opportunity of Inspection, Representation As to Quality by Vendor Is a Warranty.

75b. Wiener v. Lincoln Crushed Stone Co., Gen. No. 7018. Facts: Action to recover purchase price for railroad ties sold by plaintiff to defendant. Plaintiff had ties piled in his yard, and when defendant came to look at them he could only see the outside ones. Plaintiff assured him the inside ones were like those on the outside, but when all were delivered, the inside ones turned out to be rotten. Defendant returned them. Verdict was for defendant and plaintiff appeals. Held: Where the purchaser of personal property has had no opportunity to inspect the goods and there have been representations as to quality made by the seller of facts of which the buyer was ignorant, there is a warranty. This representation must not have been merely an expression of opinion on which the seller had no special knowledge. Affirmed. (PARTLOW, J.)

Negotiable Instruments-Maker Cannot Avail of Set-Off Against Note Against One Who Became Indorsee Before Maturity-Every Negotiation of a Note Deemed Prima Facie to Be Before Maturity. 76b. Allen v. Zechlin, Gen. No. 7021. Facts: Action on a promissory note by an indorsee against the maker. Defendant attempted to file a plea of set-off as against the note and, when this was denied him, he appealed. Held: (1) The maker of a negotiable instrument cannot avail of a set-off which would be good against the payee of the note in a suit by one who became indorsee on the note before maturity. (2) Except where an indorsement bears date after maturity, every negotiation of a note is deemed prima facie to have been effected before the instrument was overdue. Affirmed. (DIBELL, P. J.) Chattel Mortgages-Chattel Mortgage Operates As Conditional SaleRecording of Instrument Is Prima Facie Evidence of DeliveryNo Particular Ceremony Necessary to Constitute Delivery. 77b. Talty v. Schoenholz, Sheriff, Gen. No. 7030. Facts: Replevin to recover property levied upon on ground plaintiff was holder of a chattel mortgage on the property given by her son, the debtor and owner of the property. Defenses: That the mortgage was fraudulent as to creditors and in violation of the Bulk Sales Act in that mortgagor was still in possession; that mortgage was not delivered and accepted, but only mailed by mortgagor to mortgagee after being recorded. Judgment for defendant; appeal. Held: (1) A chattel mortgage does not come within the sales act. but is only a conditional sale and operates as a lien or security for money due. (2) Recording of an instrument is prima facie evidence of delivery. (3) Any act, words or conduct which clearly manifests the intention of the maker of an