Grant v. Mutual Protective League, 192 Ill. App. 4. ments of the ordinance were complied with. The record fails to disclose any good reason why defendant should not have similarly equipped the cars in question. While the testimony of the defendant might have been considered by the court in mitigation of the penalty, it was not of such a character as to have warranted a complete exoneration. We are therefore of the opinion that the court erred in finding the defendant not guilty. The judgment of the Municipal Court will be reversed and the cause remanded. Reversed and remanded. Julia Grant, formerly Julia Dunleavy, Defendant in Error, v. Mutual Protective League, Plaintiff in Error. Gen. No. 20,161. (Not to be reported in full.) Error to the Municipal Court of Chicago; the Hon. JOSEPH E. RYAN, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914. Reversed and remanded. March 11, 1915. Rehearing denied March 24, 1915. Statement of the Case. Opinion filed Action by Julia Grant, formerly Julia Dunleavy, against Mutual Protective League, a corporation, to recover the sum of $1,000 upon a benefit certificate issued upon the life of one Mary O'Brien. The application for membership in the defendant organization contained, among others, the following statements: "I, Mary O'Brien, having become acquainted with the objects of your order, do petition for membership in Council 840 and for a benefit certificate of $1,000. Grant v. Mutual Protective League, 192 Ill. App. 4. I was born on the first day of Nr., 1857, and was 54 years of age at my last birth-day, and am 54 years at my nearest birth-day. I do hereby warrant the truthfulness of the statements in this petition and consent and agree that any untrue or fraudulent statement made herein or to the Medical Examiner, or any concealment of facts by me in this petition, shall forfeit the rights of myself or beneficiaries to all benefits and privileges herein." The statement is then signed "Mary O'Brien." After this signature follows a list of 45 questions propounded to her by the medical examiner, Dr. Cummings. At the end of these questions appears the following language: "I hereby adopt as my own the foregoing answers and statements from 1 to 45 inclusive, whether written by me or not, and declare and warrant that they are full, complete and true to the best of my knowledge and belief, and I agree that the truth of each answer and statement mentioned above shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers. * "I further agree that the foregoing answers and statements together with the preceding declaration, shall form the basis of the contract between me and the Mutual Protective League, and shall constitute warranties of same, and are offered by me as a consideration of the contract applied for, and are hereby made a part of any benefit certificate that may be issued upon this application and shall be deemed and taken as part of such certificate; that this application may be referred to in said benefit certificate as the basis thereof, and that they shall be construed together as a part of my contract." (Italics ours.) From a judgment for plaintiff, defendant brings error. P. R. BOYLAN and H. R. LLOYD, for plaintiff in error. JAMES D. POWER, for defendant in error. MR. JUSTICE PAM delivered the opinion of the court. Devereaux et al. v. Jehu, 192 Ill. App. 6. Abstract of the Decision. 1. INSURANCE, § 208*-when statement constitutes a warranty. Where the application for membership in a beneficial society contained a statement of the age of the applicant and a distinct warranty of the truth thereof, it was held that such statement constituted a warranty separate and distinct from the answers to questions on the medical examination attached to the same instrument. 2. TRIAL, § 65*—when evidence may be considered for all purposes. In an action upon a beneficiary certificate, where defendant resisted recovery upon the ground of a false statement as to the age of the applicant, applications by the insured for insurance in other companies may be considered upon the question of the truth of the applicant's statement as to her age, where admitted in evidence without limitation or objection, although the parties might have intended their admission merely to show that the insured carried other insurance at the time of her application. 3. APPEAL AND ERROR, § 456*—what is effect of failure to object to evidence. Where the successful party below failed to object to the admission of evidence or to assign cross-errors, the competency of the evidence cannot be considered in the Appellate Court so as to prevent its consideration in connection with the issues presented. 4. INSURANCE, § 876*-who has burden of proving falsity of warranty. In an action upon a beneficiary certificate the burden is upon the defendant to prove that the insured's warranty as to her age in her application for insurance was false. 5. INSURANCE, § 904*-when verdict against weight of evidence. In an action upon a beneficiary certificate, a finding that the insured's statement as to her age, warranted to be true in her application for insurance, was in fact true, was held to have been against the manifest weight of the evidence. Robert E. Devereaux and John D. Rubly, trading as Devereaux & Rubly, Defendants in Error, v. R. O. Jehu, Plaintiff in Error. Gen. No. 20,176. (Not to be reported in full.) Error to the Municipal Court of Chicago; the Hon. JOHN R. CAVERLY, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914. Reversed with finding of facts. Opinion filed March 11, 1915. Rehearing denied March 24, 1915. *See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. Devereaux et al. v. Jehu, 192 Ill. App. 6. Statement of the Case. Action by Robert E. Devereaux and John Rubly, trading as Devereaux & Rubly, against R. O. Jehu to recover commissions for the sale of certain property owned by defendant to one Dr. Rosenthal, which sale, plaintiffs claimed, had been negotiated by their salesman, one Harvey. The property had been listed by defendant with another firm of brokers in whose employ Harvey then was. While in the employ of the latter he submitted Dr. Rosenthal's offer of nine thousand dollars to defendant, but the latter. rejected it because he would be required to pay a commission of two hundred and fifty dollars out of the amount offered. Dr. Rosenthal then abandoned the idea of purchasing the property, renewed his lease on the premises then occupied by him, and entered into negotiations with others for the purchase of other property. In the meantime Harvey entered the employ of plaintiffs and testified that he notified defendant of the fact and again took the matter up with Dr. Rosenthal, but this the latter denied. The property was subsequently sold to the doctor by defendant for the sum of nine thousand dollars, through another agent who accepted fifty dollars as his commission. From a judgment for plaintiffs, defendant brings error. WILLIAM B. JARVIS, for plaintiff in error. WINSTON, PAYNE, STRAWN & SHAW, for defendants in error; J. SIDNEY CONDIT, of counsel. MR. JUSTICE PAм delivered the opinion of the court. Moody v. Norton, 192 Ill. App. 8. Abstract of the Decision. BROKERS, § 37*-when not procuring cause. Where a salesman in the employ of a broker submitted to the owner of property an offer of a prospective purchaser, which the owner declined on account of the amount of commission which he would be required to pay out of the sum offered, and his client then abandoned the idea of purchasing the property, but afterwards purchased the same property for the sum previously offered, through another agent, who accepted less commission than was demanded by the salesman who had in the meantime entered the employ of plaintiffs, also brokers, and who testified that he had notified the owner of his change of employment and had thereafter again taken the matter up with the purchaser, which was denied by the latter, it was held, in view of all the evidence, that plaintiffs were not the procuring cause and hence were not entitled to commissions. Lydia Moody, Appellee, v. Edith T. Norton, Appellant. Gen. No. 20,186. (Not to be reported in full.) Appeal from the County Court of Cook county; the Hon. DAVID T. SMILEY, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914. Reversed and remanded. Opinion filed March 11, 1915. Statement of the Case. Action by Lydia Moody against Edith T. Norton to recover the sum of $735.25 for services rendered defendant and for money claimed to have been advanced. The latter claim was disallowed by the jury, who rendered a verdict for plaintiff for $660, from a judgment on which defendant appeals. CHARLES J. TRAINOR, for appellant. *See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. |