cutting machine until all the patents herein mentioned shall have run out." This count alleges as the breach thereof that the appellee did not, after October 2, 1896, pay the semiannual royalties for said machine, and that said appellee "never did, prior to the commencement of this suit, return the said machine, with payments of royalties up to the date of such return, whereby," etc. The second count is the same, in substance, as the first, and the breach alleged is the failure to pay the semiannual royalties due on April 2, 1897, and thereafter. The third and fourth counts are common counts for royalties unpaid. There is no averment in either of the counts that after the delivery of the machine to the appellee corporation the appellee used any other cloth-cutting machines, and thereby became liable to pay royalties.

To the declaration the appellee pleaded the general issue, verified by affidavit, and also a plea of the statute of frauds, which latter plea alleged that the supposed agreement of April, 1895, was not to be performed within one year, and that no note or memorandum of it was signed by the appellee. This latter plea was disposed of by a demurrer which was sustained thereto by the court. The defense was that the machine was redelivered to the appellant, and the royalties due to that date tendered to her. This defense was sustained and judgment in the sum of $87.50 was entered in favor of the appellant, being the amount due for royalties to the date of the redelivery of the machine to the appellant. The appellant contends there was no evidence tending to support this defense. No motion for a peremptory verdict in her favor was entered.

It is urged by the appellant that the question whether there was any evidence tending to support the defense was raised and preserved for review in this court by her motion for a new trial. We do not think this contention can be sustained. In support of this insistence counsel urge that Reichwald v. Gaylord, 73 Ill. 503, and Geary v. Bangs, 138 Ill. 77, 27 N. E. 462, so hold. We have examined both of those cases on this point, and find the holdings there to be, that the question whether the evidence is sufficient to sustain the verdict may be raised for review by a motion for new trial. But the question so preserved for review would be one of fact, cognizable only in the Appellate Court, not a question of law for this court. In the latter of the cases cited we held that the question whether there was any evidence to go to the jury was raised by the demurrer to the evidence on behalf of plaintiff, but that defendant did not abide the demurrer but introduced testimony to controvert plaintiff's evidence and did not renew the demurrer at the close of all the evidence, and thereby waived the right to raise the question, on appeal, as to whether there was any

evidence tending to support the plaintiff's case. In Berriman v. Marvin, 162 Ill. 415, 44 N. E. 719, we held the practice is settled that by submitting the case to the jury without a motion for a peremptory instruction, a motion to exclude the evidence or a demurrer to the evidence, the right to raise as a question of law whether there was any evidence tending to support the cause was waived. The appellant, by submitting the case to the jury without a motion to direct a verdict in her favor, must be held to have conceded that there was evidence tending to support the defense, and that question was not raised by the motion for a new trial. Calumet Electric Street Railway Co. v. Van Pelt, 173 Ill. 70, 50 N. E. 678; West Chicago Street Railroad Co. v. McCallum, 169 Ill. 240, 48 N. E. 424.

The evidence disclosed that Emanuel Loewenstein was the president of the appellee corporation and the representative thereof with whom the negotiations leading up to the alleged contract were had, and that in November prior to the trial in March he went to Europe and was absent there at the time of the trial, and that his deposition had not been taken. It was insisted by appellant that the failure to produce Emanuel Loewenstein as a witness or to procure and present his deposition on the hearing justified the jury to infer that his evidence, if produced, would have been unfavorable to the cause of the appellee, and therefore appellant contends the giving of the following instruction in behalf of the appellee was error: "The court instructs the jury that they should not draw any inference unfavorable to the defendant from the fact that Emanuel Loewenstein has not appeared as a witness in this case on behalf of the defendant, if, froin the evidence, the jury believe that said Loewenstein is unavoidably absent in Europe at the time of this trial." The evidence for the appellant showed, and the brief of counsel for appellant here admits, that the only matter said Emanuel Loewenstein could have testified to, if present, was as to part of the negotiations had between Henry Warth, acting for appellant, and said Emanuel, acting for appellee, in reference to the alleged agreement of February, 1895. The verdict of the jury is consistent only with the view they found that the contract was made and ente tered into as claimed by the appellant, hence it is clear the instruction, whether accurate or not, did not produce any harmful result to the appellant.

It is insisted that the court erred in permitting the witness Samuel Loewenstein, over the objection of the appellant that it was immaterial, to state why his brother, Emanuel, had gone to Europe. We do not think this was error. The correct rule is stated as contended for by counsel for the appellant, that the mere withholding or failing to produce evidence, which, under the circumstances, would be expected to be pro

The contention of the appellant that the court erred in allowing appellee, on cross-examination of Charles Warth, over the appellant's objection, to question him as to certain statements made by the witness in his deposition taken prior to the trial, but not introduced, is without merit. It is always proper, for impeaching purposes, to show that the witness has made prior inconsistent or contradictory statements on material points, and nothing more was done in this instance. Western Manufacturers' Mutual Ins. Co. v. Boughton, 136 Ill. 317, 26 N. E. 591.

During the hearing a certain paper was introduced on behalf of appellant. On the back of the paper certain words were written with a pencil. On objection by appellant the court held the pencil memorandum was not proper to be admitted, and excluded the same. It is complained the jury took this paper, with the memorandum on it, together with other documents, to the jury room when they retired to consider of their verdict. This instrument of evidence was introduced by appellant, and the court, on her motion, ruled that the penciled words on the back were not proper to be received in evidence, and it was the duty of the appellant to have caused the words to be covered or erased. She cannot, therefore, be heard to complain that this was not done.

It is complained by the appellant that instruction No. 3 given at the request of the appellee ignored all right of the appellant to recover royalties by reason of the use of other machines than those patented by the appellant. The declaration, as we have seen, did not set forth any liability to pay royalties because of any breach in the contract not to use other machines than those patented by the appellant, and the pleadings presented for decision no such issue. Instruction No. 2 given at the request of the appellant presented the cause and the issues in the same manner as did the pleadings, and as also did instruction No. 3 given at the request of the appellee.

The judgment was in favor of the appellant in the sum of $87.50, but it was adjudged that she should pay the costs. This order requiring the appellant to pay the costs was erroneous. The defense was that the appellee had redelivered the machine to the appellant, and at the same time tendered to her its check for $87.50, the royalties which had accrued at the date of such redelivery. Appellant refused to receive the sum so tendered, and brought the action to recover the

sum of $87.50. Tender, to be effectual to relieve from costs, must be pleaded, and the tender kept good by depositing in court with the plea the amount admitted to be due. Knox v. Light, 12 Ill. 86; Leonard v. Patton, 106 III. 99; 2 Ency. of Pl. & Pr. 554. The appellee did not plead the tender, but, on the contrary, pleaded the general issue, and thereby denied the justness of the appellant's demand in toto. If it desired to concede the demands of the appellant in part and to combat the remainder and to plead tender as to the part conceded to be just, the plea of the general issue properly limited and plea of tender should have been filed. Puterbaugh's Com. Law Pl. & Pr. p. 228. During the hearing of the testimony for the appellee the sum of $87.50 in gold coin was tendered in open court and deposited with the clerk of the court by the order of the court. But we are unable to see that this availed to relieve the appellee of liability to pay the costs. Section 4 of chapter 135 (Hurd's Rev. St. 1899, p. 1689) authorizes a tender to be made, after suit brought, in avoidance of future accruing costs, but the amount to be tendered is the amount conceded to be due and the "costs of suit incurred up to the time of tender." No tender of the costs of the suit which had accrued was made. The appellant having prevailed, was entitled to a judgment also for the costs by her expended, no tender having been pleaded or kept good by deposit of the money tendered in court and clearly due and unpaid.

The judgment in favor of the appellant in the sum of $87.50 is affirmed, and the judgment against the appellant for the costs is reversed, and the cause will be remanded, with directions to enter judgment for the appellant for her costs in the trial court. In this court each party will pay one-half the costs.

Affirmed in part, and remanded, with directions.

(219 Ill. 214)

CHICAGO & J. ELECTRIC RY. CO. v. PATTON.

(Supreme Court of Illinois. Dec. 20, 1905.) 1. APPEAL-HARMLESS ERROR.

In an action for personal injuries, error in refusing to strike out an answer to a question to plaintiff as to her physical condition since the injury, "I have been a nervous wreck ever since," is harmless error, where there is ample evidence to show plaintiff's physical condition.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4161-4166.] 2. NEGLIGENCE-TRIAL-INSTRUCTIONS.

Where, in an action for personal injuries, the court instructed that the questions involved, as alleged in the declaration, as to negligence of defendant, if any, and reasonable care by plaintiff, if any, "are what is known as ques

tions of fact, which it is the duty and province of the jury to determine under the law and the evidence," the instruction was not erroneous, as summarizing the elements of recovery and directing a verdict without requiring proof of injury.

3. TRIAL-QUESTIONS OF LAW.

An instruction, in an action for personal injuries, that, if the jury believe the plaintiff has proved the allegations in one or more of the counts of the declaration by a preponderance of the evidence, she can recover, does not submit a question of law to the jury.

4. APPEAL-REVIEW-QUESTIONS OF FACT.

In an action for personal injuries, question whether the verdict is excessive is a question of fact, on which the judgment of the Appellate Court is conclusive.

Appeal from Appellate Court, Second District.

Action by Nancy J. Patton against the Chicago & Joliet Electric Railway Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant appeals. Affirmed.

Rehearing denied February 7, 1906.

E. Meers (E. C. Hall, of counsel), for appellant. John W. D'Arcy, for appellee.

HAND, J. This is an appeal from a judgment of the Appellate Court for the Second District affirming a judgment of the circuit court of Will county for $6,000 in favor of appellee, in a suit brought to recover damages for an injury she is alleged to have received while leaving one of appellant's cars in the city of Joliet. The evidence introduced by appellee tended to show that the car was stopped for the purpose of allowing passengers to alight, and that, while she was attempting to leave the car, it was suddenly and violently started forward without notice or warning, thereby throwing her to the pavement and injuring her side and hip severely, which injury was permanent in its nature. At the close of all of the evidence appellant moved the court to instruct the jury to find for the defendant, and at the same time presented an instruction to that effect, which motion was overruled and the instruction refused, and this action of the trial court has been assigned as error. The motion made and the instruction offered raised the question, as a matter of law, as to whether there was any evidence before the court fairly tending to support the case made by the plaintiff's declaration. We are of the opinion that there is ample evidence in the record fairly tending to make a case for appellee. In fact, appellant's argument upon this assignment of error is largely a discussion of the weight of the evidence and the credibility of the witnesses-questions upon which the judgment of the Appellate Court is conclusive, and which this court is not permitted to consider. The trial court properly refused to take the case from the jury.

It is next contended that the court erred in refusing to strike from the record an an

swer to a question, upon direct examination, interrogating appellee as to her physical condition since the injury. The answer was, "I have been a nervous wreck ever since." The answer was more a statement of a conclusion than a statement of fact. There is, however, ample evidence in the record to show the condition of appellee's health since the injury, and the jury saw and heard her testify, and had opportunity to observe her condition, and could not have been misled by the foregoing statement. The refusal of, the trial court to strike such answer from the record was not such error as should work a reversal of this case. Chicago City Railway Co. v. Saxby, 213 III. 274, 72 N. E. 755, 68 L. R. A. 164, 104 Am. St. Rep. 218.

It is next objected that the trial court erred in giving two instructions for appellee. The first was as follows: "The court instructs the jury that the questions involved herein, as alleged in the plaintiff's declaration, of negligence on the part of the defendant, if any, and the exercise of reasonable care on the part of the plaintiff, if any, are what are known as questions of fact, which it is the duty and province of the jury to determine under the law and the evidence in the case." It is contended that this instruction is defective, in that it attempts to summarize the facts necessary for the plaintiff to prove in order to entitle her to recover, but does not require her to prove she was injured. The instruction, in the opinion of the court, does not assume to point out the elements of proof necessary to a recovery and direct a verdict, but merely informs the jury that two of the elements in the case, those of due care and negligence, are questions of fact for their determination under the law and the evidence, and is within the rule stated in West Chicago Street Railroad Co. v. Schulz, 217 Ill. 322, 325, 75 N. E. 495, 496, where it was said: "In framing instructions it is not ordinarily required that any one instruction should state all the law of a case, but if an instruction is correct so far as it goes, and does not assume to point out all the elements of proof necessary to a recovery and direct a verdict, it may be supplemented by other instructions, and omissions therefrom may be supplied by other instructions." Taking the instructions in this case as a series, the question of the injury to appellee was fully presented to the jury as an element that must be proved before she could recover.

The second instruction is as follows: "If the jury believe, from the evidence, that the plaintiff has proved the allegations contained in one or more counts of her declaration by a preponderance of the evidence, and if the jury believe, from the evidence, that the plaintiff was injured as therein alleged, and if the jury believe, from the evidence, that the plaintiff, at the time of such injury, was in the exercise of reasonable care for her safety, and if you further be

lieve, from the evidence, that such injury, if proved, was caused by or through the negligence of the defendant, as alleged in such count of the declaration, then the plaintiff is entitled to recover such damages as you believe, from the evidence, will compensate her for the injury sustained." It is objected that the first clause of the instruction submits a question of law to the jury. This court has repeatedly held an instruction telling the jury that if they believe, from the evidence, the plaintiff has proved his or her case as laid in his or her declaration, they will find the issues for the plaintiff, not to be objectionable. Mt. Olive & Staunton Coal Co. v. Rademacher, 190 Ill. 538, 60 N. E. 888; Central Railway Co. v. Bannister, 195 Ill. 48, 62 N. E. 864; West Chicago Street Railroad Co. v. Lieserowitz, 197 Ill. 607, 64 N. E. 718. It is further objected that the subsequent clauses of said instruction fail to instruct the jury as to the degree of proof required to establish plaintiff's case. In Village of Altamont v. Carter, 196 Ill. 286, 63 N. E. 613, in passing upon a similar objection, it was said: "A requirement in the first part of an instruction that the jury must base their findings upon the evidence applies and extends to all subsequent clauses in the instruction, and it is unnecessary in each of the succeeding sentences to inform the jury that they must find from a preponderance of the evidence." The objections urged as to the second instruction are not well taken.

The last assignment of error is that the verdict is excessive. That question was one of fact, conclusively settled by the judgment of the Appellate Court. City of Elgin v. Nofs, 212 Ill. 20, 72 N. E. 43.

A careful consideration of all errors assigned by appellant fails to disclose any error which would justify a reversal of this case. The judgment of the Appellate Court will therefore be affirmed. Judgment affirmed.

The report of the superintendent of assessments reciting that he has investigated the district in which it is proposed to locate a sewer system, as required by Local Improvement Act, § 39 (Hurd's Rev. St. 1903, c. 24, § 545), cannot be impeached by calling the superintendent and showing by him that he has not discharged his duty in that respect.

Appeal from Cook County Court; Orrin N. Carter, Judge.

Application by the city of Chicago for the confirmation of a special assessment against the Washington Park Club and others. From a judgment confirming the assessment, objectors appeal. Affirmed.

Rehearing denied February 8, 1906.

MacChesney & Bradley and F. W. Becker, for appellants. Robert Redfield and Frank Johnston, Jr. (James Hamilton Lewis, Corp. Counsel, of counsel), for appellee.

HAND, J. This was an application for the confirmation of a special assessment for the construction of a system of sewers in the city of Chicago. The appellants appeared and filed objections to confirmation. Their objections were overruled and the assessinent confirmed, and the objectors have prosecuted an appeal to this court. The appellants urge four objections as grounds for reversal in this court:

First. It is urged that the provision of section 41 of the local improvement act (Hurd's Rev. St. 1903, c. 24, section 547, p. 400) that an affidavit shall be filed before the final hearing, showing a compliance with said section 41, was not complied with. The point was made upon the argument of the case that the affidavits filed were not a compliance with section 41 of the local improvement act. Afterwards and before the case was finally decided, but after the evidence had been introduced, arguments heard, and the court had held the matter under advisement for some weeks, an amended affidavit was permitted to be filed on behalf of the city. This affidavit, we think, complies with all the requirements of that section of the statute, and was sufficient. It is also said section 41 should be so construed as to require the affidavit mentioned in that section to show a compliance with the provisions of sections 38 and 39 of the local improvement act. Section 41 limits the affidavit to that section. Its language is: "Showing a compliance with the requirements of this section." The statute does not require the affidavit to show a compliance with the requirements of sections 38 and 39 of said act (sections 544, 545), and the court did not err in overruling the objection.

Second. It is next urged there was a variance between the first resolution of the board of local improvements and the ordinance in the description of the improvement. The resolution described the improvement as "a system of brick and vitrified tile-pipe sewer," while the ordinance described it as "a system of brick and vitrified tile-pipe sewers." The streets and character of the sewer in each street are described in the resolution as well as the ordinance, and the omission of the letter "s" in the word "sewers" in the resolution could not have misled the property owners. The variance was immaterial, and the objection was properly overruled.

Third. The ordinance provided for house slants every 25 feet, and it is urged such provision is unreasonable and an arbitrary subdivision of appellants' lands. It has been repeatedly held that such provision in an ordinance is not unreasonable or an arbitrary subdivision of the property owner's land. Vandersyde v. People, 195 Ill. 200, 62 N. E. 806; City of Chicago v. Corcoran, 196 Ill. 146, 63 N. E. 690; Duane v. City of Chicago, 198 Ill. 471, 64 N. E. 1033; Walker v. City of Chicago, 202 Ill. 531, 67 N. E. 369.

Fourth. The appellants called John A. May, the superintendent of special assessments, and sought to show by him that he had not investigated the district in which it was proposed to locate said system of sewers, in accordance with the provisions of section 39 of the local improvement act. In the report filed by the superintendent of assessments he certified he had made such investigation, and the appellants could not impeach his report by showing by him he had not discharged his duty in that particular. Wright v. City of Chicago, 48 Ill. 285; Quick v. Village of River Forest, 130 Ill. 323, 22 N. E. 816.

Finding no reversible error in this record, the judgment of the county court is affirmed. Judgment affirmed.

Under Local Improvement Act, § 41, as amended by Laws 1901, p. 107 (Hurd's Rev. St. 1903, c. 24, § 547), requiring an affidavit to be filed before final hearing "showing a compliance with the requirements of this section," such affidavit need not show a compliance with sections 38 and 39, relative to making the assessment and how it shall be made.

2. SAME-SUPPLEMENTAL ASSESSMENTS.

Under Local Improvement Act, § 59 (Hurd's Rev. St. 1903, c. 24, § 565), authorizing the levy of a supplemental assessment, objectors to a supplemental assessment cannot attack the insufficiency of the ordinance for the original as

sessment.

3. EVIDENCE-PREPONDERANCE OF TESTIMONY -EQUALITY OF WITNESSES.

In special assessment proceedings, the fact that an equal number of witnesses testifies

RICKS, J. This appeal is prosecuted from a judgment of confirmation of the county court of Cook county upon an assessment levied against the property of appellants. The assessment proceeding was begun under section 59 of the local improvement act (Hurd's Rev. St. 1903, c. 24, § 565); there being a deficiency caused by the fact that the contract price was in excess of the amount of the original estimate. The supplemental assessment is payable in one installment, and the ordinance provides that it shall bear interest at the rate of 5 per cent. per annum. The objections urged below were that no affidavit was filed showing a compliance with the requirements of section 41 of the act, that no estimate of the cost of the original improvement was made and appeared on the record of the first resolution, that the amount of benefits was res judicata by the finding and judgment in the original proceedings, that the ordinance was void in providing for interest, and that the assessment was not made in the same manner as the first.

Under the objection that no affidavit was made in compliance with the requirements of section 41 of the local improvement act it is argued that an affidavit or affidavits should be filed showing a compliance, not only with the provision of section 41, but with sections 38 and 39 also. It may first be remarked that the objection as filed in the court below makes no reference to sections 38 and 39,