should be treated as a bequest of money, not a devise of land, but in such case all the devisees may elect to take the land and not the money, in which event there is a reconversion of the money into land. (2) A direct and positive statement of such election is not necessary; it may be by acts from which the intention is disclosed. (3) Where a person has a part interest in a note he may sue on it, and if the note is produced by plaintiff upon the trial he is presumed to be the legal holder. Affirmed. (HEARD, J.) Insurance-Burden of Proof Is Ordinarily on Plaintiff Alleging Full Compliance-Policy May Be Cancelled by Mutual Consent-PracticeDefendant Confined to Defenses Set Up in His Affidavit of Merits. 108c. Ingersoll v. Union Automobile Insurance Co., Gen. No. 7471. Held: (1) Ordinarily where a plaintiff alleges a full compliance with conditions of the policy, burden is upon him to show that proofs of loss were furnished as provided for by policy. (2) Where affidavit of claim is filed by plaintiff and an affidavit of merits by defendant, the latter is confined to defenses set up in his affidavit of merits. (3) An ordinary policy of insurance can always be cancelled by mutual agreement between the insured and an authorized agent of the company, and it is immaterial whether the request comes from the insurer or insured. (HEARD, J.)

Damages-Personal Injuries-Damages Resulting from Personal Injuries

Must Only Be to Compensate for Injuries Sustained Directly or
Approximately from Defendant's Negligence.

109c. Madison v. Loose-Wiles Biscuit Co., Gen. No. 7476. Facts: Action for damages for personal injuries received when appellant's truck overturned and injured appellee. Subsequent to the accident the appellee, while walking on crutches, slipped and fell, suffering further injuries. Held: Damages which may be recovered for personal injuries must only be to compensate for injuries sustained by the defendant's negligence or proximately resulting there from. Reversed and remanded. (HEARD, J.)

Practice Pleadings Construed Most Strongly Against the Pleader-Plea Must State a Good Defense to the Action or a Part Thereof. 110c. Grainey v. Schafer et al., Gen. No. 7475. Facts: Appellee recovered judgment on two promissory notes. Demurrer to the appellant's pleas was sustained, and his affidavits of merits-alleging lack of consideration and a gift (but no delivery) of the notes-stricken from the files. Held: (1) Every allegation of the plea is to be taken most strongly against the pleader, and a plea to be good must state a good defense to the action or some part thereof. (2) Pleas in this case fail to show a lack of consideration, nor do they set up facts sufficient to show a gift either inter vivos or causa mortis. Affirmed. (HEARD, J.)

Practice-Appeal May Be Made to Court at Law from a Decision of the Commerce Commission.

111c. Illinois Bell Telephone Co. v. Illinois Commerce Commission, Gen. No. 7478. Facts: Bill by appellee to have court in equity review and annul a decision and order of the commerce commission because of its alleged illegality. Held: (1) Any hearing pending before the commerce commission at the time the present act went in force (July 1, 1921) shall by the terms of that act be conducted and continued to final determination under the Act of 1913. (2) Provision is made for appeal from the decision of the commerce commission to a court at law, and equity will not intervene where petitioner has his remedy at law. Reversed. (NIEHAUS, P. J.) Practice-Appellate Court Will Search the Record for Purpose of Affirm

ing Judgment, but Errors Must Be Pointed Out by AppellantContracts-Evidence Necessary for Action for Fraud and Deceit. 112c. Logan v. Rees, Gen. No. 7479. Facts: Action by appellee for fraud and deceit, appellee charging that appellant fraudulently represented that certain hogs he purchased were sound and healthy and free from cholera.

Held: (1) Court of review will search the record for purpose of affirming a judgment, but not for errors not specifically pointed out by appellant in his brief and argument. (2) In order to establish an action for fraud and deceit the evidence must show: (a) Representations charged in declaration were made by defendant; (b) that the representations were false and known to be false, or recklessly made as a positive assertion without any knowledge of its truth; (c) that plaintiff believed such to be true; (d) that plaintiff relied on the representation in entering the contract; and (e) that the plaintiff has suffered damage thereby. Affirmed. (HEARD, J.)

Construction-Construction of Any Part of a Statute, Resolution, or Constitution Will Be Made in the Light of the Intention as Collected from the Whole.

113c. Rudolph v. County of Ford et al., Gen. No. 7480. Facts: Suit by appellee for mandamus to issue to Board of Supervisors of Ford County directing them to authorize payment of money alleged to be due appellee as extra compensation for services as superintendent of schools. Basis of appellee's claim was a resolution passed by the Board of Supervisors. Held: (1) Whether construing a statute, a constitution, or a resolution of a board of supervisors, the thing to seek is the thought expressed by resorting to the natural significance of the words employed in the order in which they have been placed; and to construe the meaning of any particular part in the light of the intention as collected from the entire instrument. (2) A demurrer searches the whole record and will be carried back to the first substantial defect. Reversed. (HEARD, J.)

Divorce Court May Allow Alimony During Pendency of Suit on Appeal. 114c. Davis v. Davis, Gen. No. 7481. Facts: Appeal from decree of court ordering payment of $50 per month pending appeal of the divorce case or until further order from this court. Appellant contends this order is not in compliance with statute. Held: While the statute only authorizes allowance of alimony during the pendency of appeal, the proper construction to give this order is that payments should be made during the pendency of appeal unless the court should before the termination of the appeal proceedings make some other order. Affirmed. (HEARD, J.)

Wills-Devise of a Future Interest Vests a Present Right in the Devisee, Enjoyment of the Property Being Deferred.

115c. Mills, Extr., v. John Sawyer et al., Gen. No. 7482. Held: Though a gift in a will arises wholly out of direction to pay in future, yet if such payment or distribution is not deferred for reasons personal to the legatee, but merely because the testator desired to appropriate the subject matter of the legacy to the use and benefit of another for and during the life of such other, the vesting of the gift in remainder will not be postponed, but will vest at once, the right of enjoyment only being deferred. (HEARD, J.) Partnerships-Practice-Creditor of Partnership May Proceed Against

Assets in Hands of Surviving Partner or Against Estate of Deceased Partner for Payment of His Debt-Equity JurisdictionWills.

116c. Cunningham v. Cunningham, Gen. No. 7484. Facts: Appellant filed claim for contribution based upon the fact that a specific devise or bequest was made to him; that he lost the benefit of it by reason of the fact that the whole of it was taken to pay the debts of testator, while the other devisees or legatees did not contribute ratably. Held: (1) A partnership debt is joint and several and in the case of death of one partner a creditor has the right to elect whether to proceed against the assets in the hands of the surviving partner or against the estate of the deceased partner. (2) Where the benefit of a specific devise and bequest is lost by reason of the fact that the whole of it was taken to pay the debts of the testator, the legatee has a right in equity to be reimbursed by the other devisees and legatees ratably. Reversed and remanded. (HEARD, J.)

ILLINOIS APPELLATE COURT CASES

MONTHLY DIGEST

Affirmed on the Facts.

IN THE FIRST DISTRICT

McCue v. Quattrocki, Gen. No. 27061.

Haight v. Bell, Gen. No. 27110.

McLean v. Consumers Co., Gen. No. 27242.

Wheaton v. Blau, Gen. No. 27351.

Kriebel & Co. v. The Allen Filter Service, Gen. No. 27366.

Lilienthal v. Mathews, Gen. No. 27423.

Norton and Brown v. Edward, Gen. No. 27307.

Todd v. National Life Ins. Co., Gen. No. 27327.

Affirmed Upon a Review of the Record.

Bartowski v. Hoefeld, Gen. No. 27313.

Gatts v. Essanay Film Co., Gen. No. 27361.

Agency.

A written notice of termination of a lease by a landlord's agent, under the landlord's verbal and not his written authority, is sufficient notice as from the landlord. Justinich v. Smith, Gen. No. 27200.

Execution of diversion orders by a broker or agent in regard to shipments of freight, without disclosure of the agency, or of the identity of the principal, renders the agent personally liable for the freight charges. Atchison, Topeka & Santa Fe Ry. Co. v. North American Fruit Exchange, Gen. No. 27270.

Arbitration and Award.

Where both parties fail to comply with an award and arbitration clause, a reasonable amount of compensation may be recovered for extra work done by the contrctor. Greene Construction Co. v. Monighan, Gen. No. 27436.

Bailment.

When a bailment is gratuitous, the bailor may terminate it at any time. Weyand v. Curtrell, Gen. No. 27615.

Banks and Banking.

A bank is under no duty to verify a certified check not drawn upon itself. A statement by the cashier as to its genuineness is nothing more than a statement of his opinion. Sibley v. Central Trust Co., Gen. No. 27246.

Carriers.

An assumption of dominion by the owner over goods entrusted to a common carrier and delivered by the carrier to the wrong place relieves the carrier from liability for subsequent loss. Unger v. Parmelee Co., Gen. No. 27040.

Contracts

Real estate broker has earned his compensation when he has procured a purchaser ready, willing and able to buy at seller's price, even though seller later refuses to proceed and even though contract of sale is not executed. Clarke v. White, Gen. No. 27131.

If purchaser is not ready, able and willing to buy in accordance with terms of vendor's contract, party acting as broker cannot recover commission regardless of vendor's understanding that payment will be accepted if made in another than the prescribed method. Meinshausen v. Dickinson, Gen No. 27143.

Unless there be reasonably clear evidence that the plaintiff's copartnership was misrepresented to the guaranty company in making the_contract of guaranty, that fact is no defense to an action on the contract. Riabushinsky v. U. S. Fidelity & Guaranty Co., Gen. No. 27209.

(1) Intention of parties construed from their actions and statements govern as to whether formal written order is a condition precedent to the taking effect of the contract or not. (2) Practice and custom does not govern if parties intention is otherwise construed. (3) Impossibility of performance no defense. Illinois Moulding Co. v. David Lumber Co., Gen. No. 27230.

Provision in a contract relieving seller from liability for failure to perform due to various external causes, does not void the contract for lack of mutuality. Fried, Mendelson & Co. v. Mayer Shirt Co., Gen. No. 27330.

Defendant who has received benefits under the contract is estopped from denying liability on the ground that it was ultra vires for being opposed to provisions in the by-laws that no one over 49 years should be insured. Ballard v. Easter Lily Club, Gen. No. 27369.

Where additional construction work incidental to and of the same nature as the work contracted for, is necessary, its proper classification is as extra work and not as work done under a new contract. Greene Construction Co. v. Monighan, Gen. No. 27436.

Settlement.

The fact that the party to a disputed contract acquiesces in the conditions of the agreement, and join with the other party in the execution of a letter certifying that there has been a full compliance with all conditions and authorizing payment under the contract to the other party, constitues a complete settlement and adjustment of all matters in controversy and is binding on all the parties thereto. Keller v. Stobo, Gen. No. 27443.

Corporations.

Under the corporation act of 1919 a corporation organized under the laws of this state may borrow money at such rate of interest as the corporation may determine, regardless of statutes upon the subject of usury, but these statutory provisions in no way prevent the corporation from filing and maintaining a bill for an accounting. International Lamp Co. v. Levin, Gen. No. 27857.

Damages.

Expense of obtaining fruitless evidence as not being admissable being immaterial, cannot be recovered in damages. McCarthy v. McCarthy, Gen. No. 27109.

Damages for failure to deliver are to be estimated in regard to the difference between contract price and market value at time when goods should have been delivered. Illinois Moulding Co. v. Davis Lumber Co., Gen. No. 27230.

An excessive verdict, due if not to passion or prejudice on the part of the jury, at least to a misconception of the measure of damages applicable to the case, may be reduced on appeal. Foreman Bros., Guardian, v. Consumers Co., Gen. No. 27341.

In a suit brought upon the death of a child of tender years by wrongful act of another, no verdict of the jury which is within statutory limits is excessive. Foreman Bros. Banking Co. v. McInerny Bros., Gen. No. 27377.

Equity.

Injunction.

Where notice to defendants would defeat the object of complainant's bill for an injunction to restrain a transfer of stock, and the injunction imposes no hardship on defendants as would justify insistence on a bond, a temporary injunction may properly be granted, without notice or bond. Loftis v. Loftis, Gen. No. 27827.

A motion to dissolve an injuntcion operates as a waiver of irregularities in the affidavit attached to the original bill of complaint. International Lamp Co. v. Levin, Gen. No. 27857.

Estoppel.

Where a person liable upon a security represents to a prospective purchaser that the obligation is valid, and there is no defense to it, he is estopped to resist payment in an action by such person who has taken the paper in reliance upon such representation. Meller v. Golden, Gen. No. 27352.

Evidence.

Where the effect of a written release seems questionable, extrinsic evidence may be admitted "to show the surrounding circumstances and the nature of the transactions to which it was intended to apply." Sutton Mfg. Co. v. Beltine Chemical & Mfg. Co., Gen. No. 27258.

Testimony of person who supervises repairs on an automobile damaged by defendant, is admissible. Carlson v. Huck, Gen. No. 27337.

Res Gestae.

In a suit to recover damages for injury by automobile, the statement of the driver is properly a part of the res gestae. Foreman Bros. Banking Co. v. McInerney Bros., Gen. No. 27377.

Insurance.

In order to constitute fire, the proximate cause of the loss through the falling of a wall of the adjacent building where the fire occurred, it is sufficient if the fire sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by an independent cause. Sutlir v. Indemnity Co. of America, Gen. No. 27099.

Judgments.

Petition to vacate judgment when showing judgment inequitable and not due to any negligence on the part of the petitioner, is, in fact, the beginning of a new suit and must be answered by the defendant. McKay v. Horwath, Gen. No. 27251.

Landlord and Tenant.

That a notice of termination of lease does not describe the premises is immaterial if the notice properly designates the lease. Justinich v. Smith, No. 27200.

(1) The date of the notice to surrender premises is immaterial if 10 days are allowed to elapse after service. (2) A clause in the lease to the effect that the lease shall not be assigned without written consent of the lessor is for the lessor's benefit, and an assignment made without such consent is not absolutely void, but may be ratified by subsequent act of lessor or his agent. Psimoulis v. Sarantopoulas et al., Gen. No. 27231.

When lease provides that lessee could purchase electricity only from such company or companies as lessor may have contracted with to furnish such service, an injunction may issue to restrain the lessor from acquiring control of and retailing the electric current to tenants. Blackstone Shop v. Blum's, Inc., Gen. No. 27403.