Personal Injuries-Duty of Railroad Toward Licensees Invitees.

14d. Fannie M. Van Velson, Admx. of Estate of Alonzo G. Van Velson, v. C. B. & Q. R. R. Co., Term No. 17, Agenda No. 23. Held That "a person has no right to assume that a track will be used only for trains running in a certain direction because customarily used only for such trains"; that "under the laws of this state a railroad company owes the trespasser or licensee no duty to ring a bell or sound a whistle or provide for a certain type of headlight, as these warnings are for the benefit of those who are about to cross the tracks at public crossings," and that deceased, riding on his employer's (defendant's) tracks, on a gasoline car or "speeder," while off duty, though with defendant's knowledge and consent, was a mere licensee and that to a licensee the railroad owes merely the duty not to wilfully or wantonly injure him. Affirmed. (BOGGS, J.)

Affirmed on the Facts.

15d. W. T. Carr v. Wm. Conrad, Term No. 18, Agenda No. 14. Affirmed on a review of the record. (BOGGS, J.)

Procedure-Party Claiming Error in Refusal of Instructions Must Point Out Error.

16d. Nicholas Umfleet v. Thomas Seed, Term No. 19, Agenda No. 5. Held: Assignment of following error insufficient: "We further contend that because of the court's refusal to give a large number of instructions on behalf of the plaintiff, the jury was ignorant of the duty and obligations which the law imposes upon persons using the highways." Affirmed. (BOGGS, J.)

Equity-When a Grantor Can Claim a Reconveyance of Property Conveyed by Deed Absolute in Form Under Agreement for Reconveyance Upon Repayment of Debt.

17d. John Swail v. Hugh K. Seed, Term No. 20, Agenda No. 2. Facts: In 1896 plaintiff gave defendant a mortgage on his farm for three years on a debt of $1,000. In 1901, when defendant threatened to foreclose, plaintiff made a conveyance to him of the farm, and the mortgage and notes were surrendered up. The conveyance was absolute in form, but it was mutually agreed by the parties that if plaintiff should later be able to pay the indebtedness, a reconveyance should be made. Plaintiff was able to pay the debt in 1904, but didn't. Nineteen years had passed and defendant's right to foreclose was barred by the statute of limitations. Held: That plaintiff could not now demand a reconveyance; he was obligated to repay the indebtedness as soon as he was able, and had not done so. That plaintiff's claim was barred by the statute of limitations, that the ""right to foreclose and the right to redeem are reciprocal, and when one is barred the other is barred." Decree affirmed. (BOGGS, J.)

OPINION FILED APRIL 9, 1922

Contracts-When Non-Compliance with Statutory Requirements Is No Defense to Action on Contract.

18d. W. H. Calverley v. R. F. Hein, Term No. 21. Agenda No. 51. Held: In an action for fees for the services of a jack on three of defendant's mares, that defendant's allegation that plaintiff did not post his license on the stall door or other conspicuous place in compliance with the statute providing that keepers of jacks for public use should do so, was no defense. Affirmed. (BARRY, J.)

OPINIONS FILED MARCH 24, 1922

Option of County Official to Retain Other Counsel When Entitled to Free Services of State's Attorney.

19d. C. S. Hayes et al. v. Aden N. Kellmus, County Collector of Clay County, Term No. 22, Agenda No. 13. Facts: Action to recover as damages solicitor's fees in having an injunction, restraining plaintiff from collecting certain taxes, dissolved. Plaintiff, as a county official, was entitled to the free services of the state's attorney, but he retained other counsel. The decree, except in the last paragraph, designated plaintiff without his official title, but from the decree as a whole it was clear that he was named in his official capacity. Held: (1) Although a county official may have the free services of the state's attorney, he may retain other counsel and recover damages for such counsel's fees. (2) A decree concerning a party in his official capacity is sufficient if from the decree as a whole it is clearly intended to designate him in his official capacity. Affirmed. (HIGBEE, P. J.) Evidence-Statute of Frauds-When It Is Admissible to Prove by Parol Evidence Consideration Which Is Not Mentioned in the Deed. 20d. Francis W. Kirsch v. Francis Kirsch, Sr., Term No. 23, Agenda No. 7. Facts: In an action of forcible detainer defendant gave evidence that the deed made to plaintiff was given partly in consideration of defendant's being permitted to occupy the premises until plaintiff should pay him a certain sum of money, and that such sum of money should be paid whenever plaintiff sold the premises. The lower court directed a verdict for plaintiff. Held: It is competent to introduce evidence to prove consideration not stated in the deed of an estate, under the Statute of Frauds, when it is possible to terminate the contract within a year from its inception. Reversed and remanded. (HIGBEE, P. J.)

Evidence-Threats Made by Injured Party Against the Defendant Before

Defendant Assaulted Him Admissible to Show Character of ActWhat Necessary to Throw Discredit on Whole Testimony of Witness Swearing Falsely-Personal Injuries-What Degree of Force Permissible in Self-Defense-Damages-What Expenses Recoverable.

21d. Edw. Gilmore v. Carl Winkler, Term No. 24, Agenda No. 29. Facts: Action for personal injuries alleged by plaintiff to have been inflicted by defendant when he stopped plaintiff on the road with a load of fodder, and claimed by defendant to have been caused by plaintiff's own act, and that in all he did defendant had acted in self-defense. Defendant claimed for error: (1) That the lower court refused to allow evidence that plaintiff had, at several instances, made threats against defendant; (2) that the court admitted testimony as to amount incurred by plaintiff following his injury without reference to whether they were actually paid or expended; (3) that the court instructed the jury that defendant, in acting in self-defense, was only warranted in the force necessary or apparently necessary; (4) that with reference to credibility the court charged that if the witness had sworn falsely to any material matter his whole testimony might be disregarded. Held: (1) Threats made previously against defendant by the injured plaintiff are admissible to show the character of the act committed. (2) Only such amounts as are actually expended because of the injury are recoverable. (3) "A party has the right to act upon appearances, and if in so doing he acts as a reasonable, prudent man would act under the same or similar circumstances, it is all the law requires." (4) The instruction with reference to credibility should be qualified by the words "wilfully and knowingly" testified falsely. Reversed and remanded. (BOGGS, J.)

OPINION FILED NOVEMBER 21, 1921

Evidence-Error to Admit Testimony That Damages Recovered Will Be Paid by Liability Insurance Company.

22d. Wm. Phillips v. Wm. M. Becker, Term No. 25, Agenda No. 12. Held: That it was reversible error for the lower court to admit testimony that defendant's car, by which plaintiff had been struck and injured, was fully insured and that the insurance company would have to pay the damages recovered in the action. Reversed and remanded. (BARRY, J.)

Reversed on Review.

OPINIONS FILED MARCH 24, 1922

23d. Max Louzinski v. F. C. Blankenship, Term No. 26, Agenda No. 15. Reversed and remanded with directions on a review of the record. (BARRY, J.) Contracts Agreement of Agent to Forfeit Claims on Insurance Company Upon Violation of Rules of Company Strictly Enforceable.

24d. Wm. H. Barnes v. N. Y. Life Ins. Co., Term No. 27, Agenda No. 26. Held: An agreement in a contract of employment of an insurance agent that he shall forfeit all accrued interests upon a violation of a rule of the company prohibiting him from sharing his commission with others for work done in soliciting applications for insurance is strictly enforceable. versed with a finding of facts. (BOGGS, J.)

Re

Procedure-Right to Have Disputed Point Decided by Jury in Face of Admission by Counsel in Opening the Case.

25d. W. F. Loyd v. Chas. W. Robertson, Term No. 28, Agenda No. 6. Held: That plaintiff, payee on an altered note given by defendant and his son for the purchase price of an automobile sold to them by plaintiff, was entitled to have the question whether defendant signed the note as principal or surety go to the jury, even though plaintiff's counsel had in his opening of the case stated that plaintiff would not be entitled to recover if the note was altered without consent of the defendant. Reversed and remanded. (BARRY, J.) Agency-Volunteer Producer of Purchaser for Real Estate Not Entitled to Recover on Implied Contract.

26d. J. L. Walker v. Frank Armstrong, Term No. 29, Agenda No. 1. Facts: Plaintiff, a real estate agent, introduced to defendant a man who, after some negotiations with defendant, purchased his farm. Defendant knew plaintiff was a real estate agent, but he had never employed plaintiff to produce a purchaser for his farm. Held: A real estate agent who acts voluntarily in producing a purchaser for real estate cannot recover for such voluntary services on an implied contract. Affirmed. (HIGBEE, P. J.) Mortgages-Chattel Mortgages Neglecting to Take Possession-What Is a Sufficient Description of the Property.

27d. Southern Illinois National Bank of East St. Louis v. Melvin Thaxton, Sheriff, etc., Term No. 30, Agenda No. 18. Facts: Plaintiff was a chattel mortgagee of a 10-ton steam roller and a 2-ton steam roller. The mortgage permitted mortgagor to keep possession of property conditioned on his not removing it from the county, when plaintiff should be entitled to take possession of and sell the chattels. They were so removed and defendant levied on them to satisfy an execution on a judgment against the mortgagor, claiming plaintiff lost his lien by not taking possession. Defendant also claimed description was insufficient. Held: (1) A chattel mortgagee does not lose his lien by not taking advantage of a right to take possession of the chattels on a condition specified in the mortgage. (2) “A description which will enable a third person, aided by inquiries which the instrument itself suggests, to identify the property is sufficiently definite." Reversed and remanded. (BARRY, J.)

Contracts-Agreement to Enter Into a Lease Not a Lease.

28d. W. T. Grant Co. v. Henry T. Jaeger et al., Term No. 31, Agenda No. 34. Held: That a letter from plaintiff to defendant accepting defendant's offer to lease premises from plaintiff on certain terms, and stating that a lease would be drawn up accordingly, did not amount to a lease and defendant did not have the right to retain possession of the premises. Reversed and remanded. (HIGBEE, P. J.)

Practice Mandatory Upon Trial Court to Pass Upon Propositions of Law Submitted by the Parties.

29d. Alexander County Savings Bank v. Hugh V. Murray, Exr., Term No. 33, Agenda No. 39. Held: That where propositions of law are submitted to the trial court under Sec. 61 of the Practice Court within such time as the court may require, it is mandatory upon the court to pass upon such submitted propositions. Reversed and remanded. (BARRY, J.) Personal Injuries-When It Is Not Negligence to Omit Stopping and Listening at Railroad Crossing-Evidence-Photographs of Place of Injury Under Materially Altered Physical Conditions Inadmissible.

30d. Ferd. Althoff v. Ill. Cent. R. R. Co., Term No. 34, Agenda No. 50. Facts: Plaintiff's automobile, while driven by plaintiff's brother, was struck and damaged by defendant's train at a crossing where plaintiff alleged the view of the tracks in the direction from which the train came was obstructed by growing corn and trees The lower court instructed the jury that it was negligence per se not to look and listen before crossing railroad tracks, and admitted in evidence photographs taken by defendant of the crossing several months later, when the leaves had fallen from the trees and the growing corn had been removed. Plaintiff assigned these acts of the court for error. Held: (1) A party may be excused from looking and listening at a railroad crossing when under such circumstances such caution would be futile by reason of obstructions along the right-of-way or adjoining land. (2) It is error to admit photographs of the place of injury when the physical conditions of such place are altered materially. Reversed and remanded. (BOGGS, J.) Wills-No Presumption of Undue Influence Where Legatee Does Not Benefit by Will-Animus Testandi-What Constitutes.

31d. Jos. Sweeney et al. v. Wm. E. Trombley et al., Term No. 35, Agenda No. 30. Facts: Appellants contested a will propounded by appellee on the ground of undue influence of appellee, arising presumptively because appellee was legatee of almost the entire estate and had drawn the will himself. They also attacked the will on the ground that testator did not have the animus testandi according to the terms of the will, but had left written directions with proponent for the disposition of the property, which proponent agreed to. Held: (1) Presumption of undue influence arises only when a legatee prepares a will by which he benefits. (2) When a will is made according to law it cannot be proved that there was no animus testandi by the fact that directions are left to the legatee for the disposition of the property. Affirmed. (BARRY, J.)

Liens-No Right to Resort to Equity for Enforcement of Common Law Liens.

32d. Thos. A. Blazier v. Calloway N. Streeper et al., Term No. 36, Agenda No. 9. Held: That since plaintiff had a common law right to recover in replevin an automobile he was holding under common law lien for charges for repairs made and which had been sold to defendants on execution of a judgment against the owner, plaintiff could not resort to equity. Affirmed. (BARRY, J.)

Libel-What Is Libel Per Se.

33d. Frank C. Campbell v. Chas. C. Morris, Term No. 37, Agenda No. 33. Held: That a bulletin, called "Official Warning Circular, No. 403," pub

lished by the Masonic Relief Association, stating: "Campbell, Frank, Dixon, Ky., 1897. Not affiliated since. Poses as a Mason in good standing. Reported by Xenia 485, Xenia, Ill.," which plaintiff claimed was intended to hurt him in his campaign for election as state senator, was not libelous per se, and that it must therefore be proved that plaintiff suffered special damage. Affirmed. (BARRY, J.)

Reversed on the Facts.

Re

34d. K. Ovian v. Valin Kerzirian, Term No. 39, Agenda No. 41. versed without remanding on a review of the record. (BOGGS, J.) Procedure-Statute of Limitations a Bar to Amended Declaration if Original Declaration Stated No Cause of Action.

35d. Dosey Douglas, Admx. of Estate of R. D. Douglas, v. Lesser Coal Co., Term No. 41, Agenda No. 43. Held: That the Statute of Limitations was a good defense to an amended declaration which stated a cause of action, although before the statute had run a former declaration had been filed which stated no cause of action. Reversed. (HIGBEE, P. J.)

Equity-Reformation-Refusal of Decree Because of Fraud.

36d. Fred French v. Melvin Johnson et al., Term No. 42, Agenda No. 32. Held: Equity would not reform a written authority to a real estate agent, which contained a wrong description of the premises to be sold, when the agent had contracted to sell the land at the price originally asked, four years before, without informing the principal, who lived in a distant state, that the value of the property had increased 25 to 50 per cent. Affirmed. (BARRY, J.)

Affirmed on the Facts.

37d. Eichenseer Bros. v. Wm. Guild, Term No. 43, Agenda No. 22. Affirmed on a review of the record. (BARRY, J.)

Procedure-Right of Appeal Purely Statutory.

38d. Frances E. Fritz v. Wm. J. Lemp, Jr., and Edwin A. Lemp. Held: That the right of appeal is purely statutory and if not exercised within the statutory period the Appellate Court must of its own motion dismiss the appeal. Appeal dismissed. (BOGGS, J.)

Evidence What Declarations of a Third Person Are Admissible-Conspiracy-Husband and Wife Cannot Be Guilty of Conspiracy.

39d. Herby Worthy v. Christian H. Birk et al., Term No. 45, Agenda No. 10. Facts: Plaintiff charged defendants with forming a conspiracy against him to found a charge of murder. Only the Birks, husband and wife, were found guilty. Over objection, declarations of one of the defendants found not guilty in a former trial of being a co-conspirator were admitted in evidence against the Birks. Held: (1) It is only when a party, making declarations without the hearing of his co-defendant, is a co-conspirator with said co-defendant that such declarations are admissible against such co-defendant. (2) Husband and wife cannot be co-conspirators. Reversed and remanded. (BARRY, J.)

Contracts-As to Whom a Bill of Lading Is a Written Contract.

40d. Pennsylvania R. R. Co. v. William R. Cunningham, Term No. 46, Agenda No. 20. Facts: Defendant refused to pay freight and demurrage charges on certain cars of hay shipped from Cirne, Ill., the B. & O. S. W. R. R. Co. being the initial carrier and plaintiff the terminal carrier; defendant set up the five-year statute of limitations; and plaintiff claimed the tenyear statute applied because the bill of lading was a written contract. Question-whether the bill of lading was a written contract as to plaintiff as well as to initial carrier. Held: A bill of lading is a written contract as to all carriers to destination. Affirmed. (BARRY, J.)