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ther positive testimony or circumstantial evidence, vacant lot for $1,800; that witness had $1,-
cannot be disregarded by either court or jury, the 400 in cash, and Mrs. Peeler said she would
jury is not bound to accept the uncontradicted
testimony on a particular issue, given by a wit- give him time on the balance; that one day
ness who was contradicted on a vital point in Stephens asked him if he had saved any
the case by other witnesses, and whose testimony money, and he replied that he had saved a
was of such a nature that the jury would be jus- little, and was going to buy the Peeler prop-
tified in disregarding it.
[Ed. Note.-For other cases,

erty, and then Stephens asked him to see see Evidence,

Mrs. Peeler and see if she would take GilCent. Dig. $ 2431; Dec. Dig. 594.]

lespie's note, with Stephens' name on it alAppeal from Circuit Court, McLean Coun- so, for the whole property; that witness ty; Sain Welty, Judge.

found that Mrs. Peeler would take such a Ejectment by E. W. Stephens and others note for $1,600 if Stephens would take the against Jesse E. Hoffman and others. Judg- vacant lot for $200 cash; that this arrangement for the plaintiffs, and defendants ap- ment was carried out, and witness gave peal. Affirmed.

Stephens $1,400, and the latter signed a Samuel C. Dooley and Jesse E. Hoffman, note with Gillespie for $1,600; that the deed both of Bloomington,

for appellants. from the Peelers to Gillespie was executed, Charles M. Peirce, of Bloomington, for ap- and witness and Stephens took this deed to pellees.

William Mason to have a mortgage drawn

covering the property, in order to secure CARTER, J. This is an ejectment suit Stephens for signing the $1,600 note; that brought by appellees against appellants in Stephens was to give Gillespie a note for the circuit court of McLean county. The $1,400; that when the note to the Peelers case has been brought twice to this court be was paid these two notes were to be exfore. 263 Ill. 197, 104 N. E. 1090; 269 Ill. changed; that while they were at Mason's 376, 109 N. E. 994. There have been at office Mason was called out, and at about the least four trials between the parties, the same time Gillespie left, and when they verdict and judgment in the trial court in came back Stephens was gone and the deed each instance being in favor of appellees. also; that he found out later that Stephens The evidence in this record is substantially had gone to Alex. Keady's office, and that the same as it was on the first appeal, ex- the deed had been changed so that Stephens cept that the testimony of Frank Gillespie, was grantee, and recorded; that he met the refusal to admit which was the prin. Stephens coming out of Keady's ofice, and cipal reason for reversing the first time the charged him with doing wrong in having the case was here, was admitted in full on this deed changed, and Stephens agreed to give trial.

him a note for his (Gillespie's) $1,400, and Cynthia Peeler and her son, William Peel- later on did give him the note; that afterer, and his wife executed a deed to the propwards Gillespie gave up the $1,400 note to erty here in question, the consideration be Stephens, apparently without consideration. ing $2,000. The chief point in dispute is Gillespie further testified, on cross-examinawhether, when the deed was executed and tion, that the $1,400 he gave to Stephens delivered, the grantee was Frank Gillespie was all in currency, and had been in his or William Stephens, the deed having been house in a baking powder can; that he had originally written with Gillespie as grantee, a row with Keady about changing the grantee and that name thereafter marked out with in the deed after it was executed, and Keared ink and Stephens' name inserted. Ap-dy pushed him out of his office. Keady pellees argue, and offer evidence to show, swore in this case, as he did in the former that Stephens' name was inserted as grantee case, that Peeler and Gillespie brought the at the request of both Peeler and Gillespie, deed to him with Gillespie's name as granbecause Gillespie could not carry out his tee, and told him Gillespie couldn't carry part of the contract. Stephens died before through the trade, but that Stephens had the beginning of this litigation, and his tes taken it off his hands, and they asked him timony was never taken on the questions to change the grantee; that he told them here involved. The details of the transac- it was best to draw a new deed, but they tion are set out fully in the opinion given did not wish to pay for one, and suggested by this court on the first appeal, and we that he erase Gillespie's name with red ink shall not attempt to set out again what was lines and insert Stephens' name; that he there stated, but will give the substance of did so, and then took the acknowledgment Gillespie's testimony on this last trial. Gil- of the Peelers, who were the grantors in lespie was an employé of the street rail- the deed. Keady also testified that after way company in Bloomington at the time of Stephens' death Gillespie came to him and the transaction, and at the time of the trial asked him if he did not want to make some was living in Peoria. He testified that he money, and said the Stephens estate was knew the Peelers and Stephens; that Peeler worth from $75,000 to $100,000, and if he told him the family were going to move to would come into court and swear that GilCalifornia, and wanted to sell the property, lespie's name was not erased from the deed and offered him the house and lot and a before Keady took the acknowledgment, he

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(Gillespie) would give him $200, and that, sion, unless such presumption had been overwas the reason he put Gillespie out of his come by evidence in the case. They concede office, Testimony was also offered on this that this instruction states correctly an abtrial on behalf of appellees by several wit. stract principle of law, but insist that it was nesses that Gillespie's reputation for truth not applicable to the facts in this case, as and veracity was bad. Several witnesses they had contradicted, by direct testimony, testified on behalf of appellants that Gilles- the delivery of the deed to Stephens. “Le pie's reputation for truth and veracity was gal presumptions do not shift the burden of good.

proof. Their only effect is to create the ne [1] Appellants insist that they were inno- cessity of evidence to meet the prima facie cent purchasers of this property from Gilles- case created thereby, and which, if no proof pie, and had a right to rely upon the fact to the contrary is offered, will prevail." Hel. that an ejectment suit with reference to the big v. Citizens' Ins. Co., 234 Ill. 251, 84 N. E. same property had been decided in favor of 897; Graves v. Colwell, 90 Ill. 612. The evi. Gillespie and appealed to this court, which dence as to the delivery of the deed clearly appeal, after they had purchased the prop- did not rest, alone, on the testimony of Gilerty, was dismissed. The court refused to lespie. Keady's testimony that he had chang. allow the proceedings in this former suit to ed the grantee in the deed at the request of be introduced in evidence, as we understand Peeler and Gillespie and afterward took the the record, for the reason that the complete acknowledgment of the grantors, and that record was not offered. On the record be the deed had come back from the recorder's fore us this question cannot be raised. office to him for a certificate; the testimony, There is no evidence here that appellants also, that the deed was found among Stepurchased this property from Gillespie or phens' papers at his death; that the insurance paid him anything for it, although we have policy on the house had been assigned by assumed from the records in the other cases Mrs. Peeler direct to Stephens; that Stephens that they took this property for attorney's had possession of the property and collected fees growing out of this litigation. We think the rents and paid the taxes from the time the conclusion is necessarily drawn from the the deed was recorded until his death; and records in all the litigation over this matter other circumstances in the record-tended that appellants knew all about the condition strongly to corroborate the claim of the apof the title and the contest over it between pellees that the deed was delivered to SteGillespie and the heirs of Stephens at the phens. Taking all the instructions together, time they purchased the property. Manifest- the jury could not have been misled by this ly they cannot be held to be innocent pur-instruction. chasers. They took the title subject to all [4) Counsel for appellants argue that Gilthe equities that could be urged by Stephens lęspie's testimony as to how the name of the or his heirs with reference to Gillespie's grantee in the deed in question was changed claim of title.

is not contradicted by any other testimony in [2] Appellants further argue that the trial the record, and that his testimony stands uncourt erred in refusing to admit the testimo- impeached, and therefore the verdict cannot ny of Charles A. Marshall given on a former be upheld. The rule undoubtedly is that the trial, that witness being outside the jurisdic- positive testimony of a witness, uncontration of the court at the time of this trial. dicted and unimpeached, either by positive The only difference between the record in testimony or by circumstantial evidence, canthis case and in Hoffman v. Stephens, 269 Ill. not be disregarded by either court or jury; 376, 109 N. E. 994, was that in that case it but there may be such an inherent improbawas not shown that he was outside of the ju- bility in the statement or testimony of a witrisdiction of the court, while in this trial a ness that the court may disregard it, even in witness testified that he was in Oklahoma, the absence of any direct conflicting testimo having left Illinois several years ago. The ny. He may be contradicted by the facts he witness knew this only from correspondence states as completely as by direct adverse teswith his mother. No reason is shown why timony, and there may be so many omissions his evidence might not have been taken by or discrepancies in his testimony as to disdeposition if appellants had exercised due credit him. Quock Ting v. United States, diligence. Under the reasoning of the court 140 U. S. 417, 11 Sup. Ct. 733, 851, 35 L. Ed. in 269 Ill. 376, 109 N. E 994, when the case 501; Podolski v. Stone, 186 Ill. 540, 58 N. E. was last here, the trial court properly refus- 340; People v. Davis, 269 IIL 256, 110 N. E. 9. ed to admit Marshall's testimony given at a Gillespie's testimony was contradicted by the former trial. See, also, Cassady v. Trustees testimony of Keady on the vital point in this of Schools, 105 Ill. 560; Bergen v. People, 17 case concerning the change of the name of Ill. 426, 65 Am. Dec. 672 ; 16 Cyc. 1098. the grantee, and also as to several other im

[3] Appellants further argue that the court portant features by other witnesses in the erred in giving an instruction on behalf of case. Furthermore, his own testimony is of appellees with reference to the presumption such a nature that the jury would be justi. of delivery that would arise from the deed fied in disbelieving his story as to the trans

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We find no error in the record, and the ev was ordered that the child be committed to idence, in our judgment, sustains the verdict. the house of correction in the city of Chicago The judgment of the circuit court will there -an institution suitable for the care of defore be affirmed.

linquent girls—and that the Mother Superior, Judgment affirmed.

the superintendent of that institution, be ap

pointed the guardian of her person and be di(275 Ill. 453)

rected to place the child in said institution,

and to hold her there and care for, train, and PEOPLE v, PICCOLO et al. (No. 10810.)

educate her until she arrives at the age of (Supreme Court of Illinois. Oct. 24, 1916. Re- 21 years. From this order Marie Piccolo and bearing Denied Dec. 8, 1916.)

her parents prayed and were allowed an ap1. INFANTS Eww16 – PROCEEDINGS UNDER JU- peal to this court. The appeal was perfected, VENILE COURT ACT-COMPLAINANT.

Under the Juvenile Court Act (Hurd's Rev. and the appellants have filed the record of St. 1915-16, SS 169–1900), the people, and not the trial court, abstracts, and briefs. the person filing the petition charging delinquen In the brief for appellants Bertha B. Howcy, neglect, or dependency, are the parties com- ell is treated as appellee. Neither Bertha B. plainant.

[Ed. Note.-For other cases, see Infants, Cent. Howell nor the people have entered an apDig. § 16; Dec. Dig. Om16.)

pearance in this court, joined in error or 2. INFANTS 16-JUVENILE COURT PROCEED-filed briefs.

ING-MODE OF REVIEW="SUIT OB PROCEED It is urged that the order of the trial court ING AT LAW OR IN CHANCERY."

should be reversed for the reason that the Proceedings under the Juvenile Court Act are purely statutory and not proceedings either Juvenile Court Act is unconstitutional and at law or in chancery, and therefore cannot be the order is contrary to the great preponderreviewed by appeal, under Practice Act (Hurd's ance of the evidence. Rev. St. 1915–1916, c. 110) $ 91, providing for

(1) The Juvenile Court Act provides that an appeal or writ of error in any suit or proceeding at law or in chancery, especially since the any reputable person who is a resident of the last section of the Juvenile Court Act provides county may file, with the clerk of the court for review by writ of error only.

having jurisdiction of the matter, a petition [Ed. Note.-For other cases, see Infants, Cent. setting forth that a certain child is either deDig. & 16; Dec. Dig. Om 16.)

pendent, neglected, or delinquent, as defined Appeal from Circuit Court, Cook County; in the act, and that it is for the interest of Victor P. Arnold, Judge.

the child and the state that it be taken from Proceedings by the People against Marie its parents, custodian, or guardian and placPiccolo and others under the Juvenile Court ed under the guardianship of some suitable Act. From an order finding the named de person, and that the parents, guardian, or fendant a delinquent child and committing custodian are unfit or improper guardians or her to the house of correction, the defendants are unable or unwilling to care for, protect, appeal. Appeal dismissed.

train, educate, control, or discipline such Joseph D. Irose, of Chicago, for appel- child, or that such parents, guardian, or lants.

custodian consent that such child be taken

from them. The filing of such petition does COOKE, J. Bertha B. Howell iled a peti- not make the petitioner a party to the suit. tion in the juvenile branch of the circuit This is simply a method provided whereby court of Cook county under what is common- the people and the court may be informed ly knowu as the Juvenile Court Act (Hurd's of the situation which the petitioner alleges Stat. 1916, p. 242), charging that Marie Pic-exists. Upon the filing of the petition the colo was a delinquent child and that her par- people become the real party complainant ents were unequal to the task and responsi- and must prosecute the proceeding. The bility of controlling and correcting her and Juvenile Court Act is based upon the right preventing her from committing repetitions inherent in the state to take over the custody of delinquency. Summons was issued and of a child when circumstances make it necesserved upon the parents of the child, who sary for the welfare of the child and of the was then 17 years of age, and on the return state to do so, and upon the institution of day, the child not being in court, a warrant any proceeding under the act the people bewas issued under the provisions of the act come the real party to the controversy. Berfor her arrest. She was arrested, brought tha B. Howell was in no sense a party to the into court, and a trial was had, which re- proceeding in the trial court and could not sulted in an order finding that Marie Pic- become a party in this court colo was a delinquent child, that her parents [2] The people not having followed up this were unequal to the task and responsibility appeal and having made no attempt to join of controlling and correcting her and pre- in error, the question presents itself whether venting her from repetitions of delinquency, appellants are entitled to this method of reand that it was for the best interests of the view. The provisions of the Juvenile Court child and the people of the state that she be Act are purely statutory. The proceedings taken from her parents and placed under the therein provided for are not such as are instiguardianship of some suitable person. It tuted and carried on in substantial conform

Ford For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indezes

114 N.E.-10

ity with the forms and modes prescribed by Appeal from Cook County Court; John H. the common law or by the rules of chancery. | Williams, Judge. The remedy provided by the act is one un Proceedings by the Village of Oak Park known to the common law or to chancery against D. H. Lane and others to collect a jurisdiction. It is purely statutory, and the special assessment for improvements. Judgproceedings provided by the act are special ment for defendants, and plaintiff appeals. throughout. The act itself provides for no Affirmed. appeal from the order of the trial court, and

F. W. Pringle, of Chicago, for appellant. the proceedings are not such as to entitle a George P. Foster, of Chicago, for appellees. party to an appeal under the general provisions of the Practice Act. The right of an COOKE, J. This is an appeal from a judgpeal or writ of error, in so far as the same ment of the county court of Cook county, is granted by the Practice Act (Hurd's Rev. modifying and confirming a special assessSt. 1915–16, c. 110), is conferred by section ment as to certain lots, in a proceeding insti91 of that act. That section provides for an tuted by the village of Oak Park, to pay the appeal or writ of error "in any suit or pro estimated cost of paving Harvard street from ceeding at law or in chancery," and, as the the east line of East avenue to the west line term "suit or proceeding at law or in chan- of Austin boulevard, and also the roadways cery" only includes suits instituted and car- of all intersecting alleys extended from the ried on in substantial conformity with the curb line to the street line. forms and modes prescribed by the common Harvard street is an east and west street, law or by the rules of chancery, section 91 and the lots involved in this appeal are loconfers no right of appeal in any case which cated and front on North and South streets, is instituted and carried on in conformity which cross Harvard street, and do not abut with forms and modes not according to or the line of the proposed improvement. These recognized by the common law or rules of lots were assessed for what is generally chancery but solely in accordance with the termed indirect benefits, and in the county statutory provisions. Myers v. Newcomb court appellees, the owners of the lots, obDrainage District, 245 Ill. 140, 91 N. E. 1070.jected that the lots were assessed more than

The last section of the Juvenile Court Act they would be benefited. This objection was provides that cases under the act may be sustained, and the assessment on the lots obreviewed by writ of error. This affords an jected for was reduced 20 per cent. Each additional reason why an appeal will not lie of the lots objected for was assessed at the in this case, as where in a special statutory rate of $1.36 per front foot. Two witnesses proceeding one form of review is specifically testified for appellant, and two for appellees. given all others are excluded. Allerton v. These men were real estate experts. The Hopkins, 160 Ill. 448, 43 N. E. 753.

two witnesses for appellees testified that each Had the people entered an appearance, 25-foot lot would be benefited no more than joined in error, and filed briefs, we might, $20 by the proposed improvement, and that under our practice, have regarded the appeal all other lots objected for would be benefited as a writ of error and determined the ques- in that proportion. The witnesses for appeltions presented. The people, however, were lant each testified that the lots objected for under no obligation to thus recognize and would be benefited $2 per front foot, or $50 follow up the appeal, and, not having done for each 25-foot lot. Each of these witnesses so, the appeal is dismissed.

gave at length the basis upon which he arAppeal dismissed.

rived at the conclusion reached, testifying that the elements which entered into the

question of benefits were accessibility, fire (275 Ill. 420) VILLAGE OF OAK PARK v. LANE et al.

protection, sanitary condition, and general

appearance. (No. 10820.)

The character of the territory

along the line of the improvement was de(Supreme Court of Illinois. Oct. 24, 1916. Re scribed, and the court had before it plats of hearing Denied Dec. 8, 1916.)

the territory which were introduced in eviMUNICIPAL CORPORATIONS Om508(7) IM-dence. PROVEMENTS-ASSESSMENTS.

Appellant contends that there was no eviIn a proceeding to confirm assessments for benefits from street improvements, where wit dence whatever to sustain the finding of the nesses for both parties were equally well in-court that the reduction of 20 per cent. was formed, but differed in their estimate as to bene- necessary to bring the assessment of appelfits, the court was not bound to accept the exact lees' property within the amount of benefits. estimate of either set of witnesses, but could con- This contention is based largely upon the fact sider all the testimony, including the facts upon which they based their conclusions, and, the that the court did not adopt the figures fixed amount of benefits found by the court being by either set of witnesses, but adopted a figwithin the range of the testimony of the witness- ure which was more than the benefits testies, it will not be disturbed.

fied to by appellees' witnesses and less than [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 8 1181; Dec. Dig.

that testified to by appellant's witnesses. It 508(7).]

is contended that there was nothing in the

testimony of these witnesses, aside from the in them, and that this trust and confidence was arbitrary amounts to which they testified, accepted by them. cpon which the court might base the con

[Ed. Note.-For other cases, see Principal and clusion reached. The court was not bound Agent, Cent. Dig. $ 41; Dec. Dig. Cm 23(5).]

2. PRINCIPAL AND AGENT Em 69(3)–FIDUCIto accept the exact amount testified to as

ARY RELATION OF PARTIES BURDEN OF benefits by either set of witnesses. It was PROOF. proper to take into consideration all the tes. relation are prima facie voidable, and, the rela

Transactions between persons in a fiduciary timony of these witnesses, including the facts tion being established, the one receiving the upon which they based their conclusions, if benefit has the burden of showing an absence such facts were helpful and aided the court of undue influence, by establishing facts satisfyin arriving at the correct amount of benefits ing the court that the dealing was at arm's

length, or that the transaction was in the most to the property. The witnesses on each side perfect good faith, and was equitable and just. were apparently equally well informed and

[Ed. Note.-For other cases, see Principal and equally credible. The amount of benefits Agent, Cent. Dig. $$ 134, 135; Dec. Dig. found by the court was within the range of 69(3).] the testimony of the witnesses and will not be 3. VENDOR AND PURCILA SER Cw44-FRAUD

EVIDENCE. disturbed upon the mere contention that the

Defendants in a suit to rescind an executed court should have adopted the amount of contract of sale

of land between persons in a benefits testified to by one or the other of fiduciary relation held to have failed to show these sets of witnesses, or should have re- that the dealing between the parties was at

arm's length, or that the transaction was benegarded the testimony as equally balanced ficial to complainant. and allowed the amount fixed on the assess (EL Note.-For other cases, see Vendor and ment roll to prevail.

Purchaser, Cent. Dig. $$ 69–76; Dec. Dig. ww The record discloses that in giving his rea- 44.] sons for the conclusion reached the court 4. FRAUD 38-LACIES-CONFIDENTIAL RE

LATIONS. said that the witnesses were equally well in

Laches will not apply to a cause of action formed and equally truthful, and that the for fraud between persons in a fiduciary, relacourt was left in the same position as though tion, till the defrauded party has possession of there were no evidence at all. It is insisted all the facts; he having no duty to use rea

sonable diligence to discover the fraud. that, this being the view of the county court and the basis for the conclusion reached, the Dig. 34; Dec. Dig. Ow38.]

(Ed. Note.-For other cases, see Fraud, Cent. judgment of the county court should be re- 5. VENDOR AND PURCHASER 13(1)-FRAUD versed, and the cause remanded, with direc -RATIFICATION. tions to overrule the objections and confirm Complainant not having, till the filing of the assessment roll. It is immaterial upon

his bill for rescission, been in possession of all what ground the county court based its de- the facts and discovered the fraud practiced

on him by defendants, who were in a fiduciary cision. The only question here is whether or relation to him, not knowing of the misreprenot the judgment of the county court is cor- sentations as to value, but only those as to rect, and it is immaterial what reasons may the transaction.

title, cannot be held to have ratified or affirmed have been given by the court for the conclu

(Ed. Note.-For other cases, see Vendor and sions reached. People v. Gary, 166 Ill. 143, Purchaser, Cent. Dig. $ 67; Dec. Dig. 46 N. E. 745; In re Estate of Grossman, 175 43(1).] III. 425, 51 N. E. 750, 67 Am. St. Rep. 219; 6. VENDOR AND PURCHASEB Ow43(1)-FRAUD Illinois Central Railroad Co. v. Smith, 208 --RATIFICATION. 111. 608, 70 N. E. 628; Kehl v. Abram, 210 the executed contract of sale of land to him

Complainant seeking to rescind for fraud Ill. 218, 71 N. E. 347, 102 Am. St. Rep. 158.

by defendants, made while they were in a fiduThe judgment of the county court is af- ciary relation to him, cannot be held to have firmed.

affirmed the transaction, because of paying the

taxes, which he was bound to do, in order to Judgment aflirmed.

be in a position to restore to defendants the property as he had received it, or because of executing a deed of part of it to one who had

contracted for it, with defendants, complainant's (275 Ill. 292)

agents for its sale, and had paid the full purVOORHEES v. CAMPBELL et al chase price; complainant also being bound to (No. 10537.)

do this.

[Ed. Note.-For other cases, see Vendor and (Supreme Court of Illinois. Oct. 24, 1916.

Purchaser, Cent. Dig. $ 67; Dec. Dig. Rehearing Denied Dec. 6, 1916.)


SION-RESTORATION TO PRIOR CONDITION. Under the facts in a suit for rescission of Defendants cannot object to rescission for an executed contract of sale to complainant of fraud of their executed contract of sale to land belonging to defendants engaged in the real complainant of a tract of land made while they estate business, title to which they represent- occupied a fiduciary relation to him, on the ed to be in another, and the value of which they ground that they cannot be restored to the pogrossly misrepresented, they being at the time sition originally occupied by them, because of his agents in the management of other proper- sale by complainant of part of the lots; the ty, held, that they acted throughout the trans- saies being made through them, as his agents, action as his agents, that he reposed confidence at prices fixed by them, and a return of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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