month during the time the contract with Mrs. Jordan was being held in escrow and up to the time of its delivery to her. After the transfer to her he had no right to participate in profits thereafter earned. He did have a right to his share of the profits which had accrued and which in the usual course of business ought to have been distributed as a cash dividend. When the transfer to Mrs. Jordan took place, appellee ceased to be a member of the partnership and at that time he was entitled to his share of the profits, and to have an accounting in order to ascertain the amount of profits which could be paid out as dividends. The other partners, Orlando B. Iles and Charles L. Libby, refused to join with appellee in taking an inventory of the property of the partnership and in making an audit of its assets. Mrs. Iles accepted the transfer from her mother with knowledge that her father, appellee herein, was entitled to the profits which had accrued at the time of the transfer to her mother, and which in the usual course of the business ought to have been distributed as dividends. With this knowledge she and her husband, Orlando B. Iles, and Charles L. Libby continued to operate the business and had the exclusive possession of all the assets of the company as well as of all the profits of the business from January 1 to June 7, 1920, and retained all of such profits, using them in their business, and never made or rendered an accounting to appellee thereof. Clearly all of the defendants were accountable to ap pellee for his share of the profits. There was no error in the first conclusion of law. [9] When appellee transferred his interest to Mrs. Jordan, he was entitled to an accounting. Orlando B. Iles and Libby refused to join with him in making an inventory and audit, and it was necessary for appellee to employ experts to make an inventory and audit. These accountants made an inventory and audit, and were paid therefor, by appellee, $10,446.75, which was a conservative and reasonable amount. On the trial of the cause the court, in order to expedite its business and as a help to the parties, used the inventory and audit. The former partners of appellee should have joined with appellee in making an inventory and audit of the business. This they refused to do. Having denied appellee the right to an accounting, and having refused to join with him in taking an inventory and making an accounting, thus forcing him to employ expert accountants for that purpose, they should be required to pay their proportionate share of the cost of making the inventory and audit. It was the duty of the copartnership to make this audit. The court correctly concluded as a matter of law that Orlando B. Iles and Libby were accountable to appellee for an amount equal to two-thirds of the cost of the accounting, with interest thereon from the date when appellee paid the accountants for their work. There was no error in the second conclusion of law. If there was no error in the first and second conclusions of law, there was no error in the third. Appellant Esther D. Iles contends the court erred in the fourth conclusion of law, which is that she is not entitled to any relief by reason of her counterclaim. In support of this contention she says there is no finding that any money was or was not withdrawn, nor is there any finding as to any facts relevant to the issues presented by her counterclaim. [10,11] Mrs. Iles, by her counterclaim, sought to recover from appellee an account of money that had been paid to him by the partnership as his share of cash received from the sale of certain government bonds and which money had been paid to appellee before Mrs. Iles became interested in the business. The burden was on Mrs. Iles to prove the facts alleged in her counterclaim. There being no finding upon the issues thus presented, the presumption is that there was no evidence upon that issue. There is no claim that the facts are not correctly found upon this issue. Upon the facts found the court correctly concluded Mrs. Iles was not entitled to recover on her counterclaim. Iles and Iles jointly assail the fifth conclusion of law, which is that their property shall be exhausted before levying upon the property of Libby. They contend that, when they purchased the interest of Libby in the business they only assumed and agreed to pay such debts and liabilities as were shown on the records of the partnership, and assert that there is no "finding that this judgment appears on the books and record of the company" and that the only liabilities they assumed were those appearing on the records of the company. There is no claim that the books and records of the company did not and do not show the liability of the company to appellee. This conclusion is not subject to the objection urged. No reversible error being shown, the judgment is affirmed. DAUSMAN, J., absent. (159 Ν.Ε.) GLICK v. GLICK. (No. 12989.) Appellate Court of Indiana, in Banc. Dec. 9, 1927. 1. Divorce 237-Refusal of alimony to wife granted divorce for husband's cruel treatment held error, where husband had property valued at $2,850 over Indebtedness, monthly salary, and there were no children (Burns' Ann. St. 1926, § 1110). Where there were no children and wife having property of value of $200 was granted divorce on grounds of cruel treatment of husband, who locked her out when she left on account of his epileptic fits, thought to be due to syphilis, refusal of alimony to wife, under Divorce Act, § 20 (Acts 1873, c. 43; Burns' Ann. St. 1926, § 1110), as against husband having property of value of $2,850 in excess of indebtedness, and regularly employed at monthly salary of $122, held abuse of discretion. 2. Divorce 235-Amount of alimony is within discretion of trial court (Burns' Ann. St. 1926, § 1110). Amount of alimony to be allowed, under Divorce Act, § 20 (Acts 1873, c. 43; Burns' Ann. St. 1926, § 1110), allowing alimony as circumstances of the case shall render just and proper rests largely within discretion of trial court, and determination in each case must depend upon its own facts. 3. Divorce 240 (2)-In determining amount of alimony, court must consider husband's financial condition, income, earning power, conduct towards wife and value of wife's estate (Burns' Ann. St. 1926, § 1110). In fixing amount of wife's alimony on divorce, under Divorce Act, § 20 (Acts 1873, c. 43; Burns' Ann. St. 1926, § 1110), court must take into consideration husband's financial condition, income, earning capacity, value of wife's separate estate, and husband's conduct towards wife. 4. Divorce240(1)-Court will generally allow divorced wife sufficient alimony to make her condition as good as if she were survivIng widow (Burns' Ann. St. 1926, § 1110). Suit by Solomon Glick against Goldie M. Glick, his wife, for divorce, in which defendant instituted a cross-suit. From a decree granting defendant a divorce and attorney's fees, and denying her application for alimony, defendant appeals. Affirmed in part, and reversed in part, with instructions. Joseph & Collier, of Indianapolis, for ap pellant. Chester L. Zechiel, of Indianapolis, for appellee. REMY, C. J. Suit by appellee against appellant for divorce on the ground of cruel treatment. Appellant, in addition to a denial, instituted a cross-suit against appellee for divorce and alimony, alleging, in her petition, cruel treatment and that at the time of the marriage appellee falsely represented that he was in good health, when in fact he was an epileptic and was suffering from a venereal disease. Trial resulted in a decree granting to appellant a divorce, with an allowance of $200 for her attorney, but denying her application for alimony. Motions by appellant to modify the judgment and for new trial having been overruled, this appeal followed. [1] Whether the court abused its discretion in refusing to award alimony is the only question presented. It appears from the evidence that the parties were married June 18, 1924, neither of them having previously been married, though they were in middle life. In January, 1925, арpellee had an attack of epilepsy, and a second attack in April, 1925. There is no direct evidence that he had suffered from epilepsy prior to the marriage. In May, 1925, after the second attack of epilepsy, appellant left her home and went to the home of her parents where she remained until August, 1925, when she returned, and she and appellee lived together as husband and wife until January 11, 1926, at which time appellee had a third attack of epilepsy. A physician who was consulted, suspecting that the cause of the epilepsy was syphilis, recommended a blood test. A specialist made the test, and, in appellee's presence, reported that the test showed syphilis, and suggested that appellee see his physician "a couple of times a week and that at the end of 20 days a complete test would be made." Thereupon appellant told appellee that she would not live with him as his wife if he had syphilis; that she would go to the home of her parents and await the result of the final test which was to be made by the physicians. Appellee then became angry and struck appellant, following which she left appellee's home and went Appeal from Superior Court, Marion Coun- to the home of her parents. Appellee then ty; J. M. Milner, Judge. put new locks upon the doors of his house to Court in allowing alimony to wife, under Divorce Act, $ 20 (Laws 1873, c. 43; Burns' Ann. St. 1926, § 1110), will generally be guided by rule allowing wife such sum as will leave her in as good condition as if she were surviving widow on husband's death, though such rule is not mandatory. 5. Divorce287-Decision granting wife divorce and allowing attorney's fees, where unquestioned, is not disturbed on wife's appeal from denial of alimony. Where wife, granted divorce, on cross-bill appealed from denial of alimony, decision granting divorce and allowing wife attorney's fees will not be disturbed, where remaining unques tioned. For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes 159 Ν.Ε.-3 der proper and just," and in the light of the authorities above cited, we are constrained to hold that, under the facts as shown by the record, the failure of the trial court to award any alimony was an abuse of its discretion. prevent the entrance thereof by appellant, "as the circumstances of the case shall renand 10 days later began this suit. It appears that appellee, after his wife's departure, was treated for syphilis for some time, and later an examination showed no traces of the disease. It further appears from the uncontradicted evidence submitted at the trial that the value of appellee's property, in excess of his indebtedness, was $2,850, and that he was regularly employed at a monthly salary of $122. The property of appellant was of the value of $200. There were no children. Under the evidence, did the court err in refusing to award alimony? [2-4] Section 20 of the Divorce Act of 1873 (Acts 1873, с. 43, p. 107; section 1110, Burns' Ann. St. 1926) provides: "The court shall make such decree for alimony, in all cases contemplated by this act, as the circumstances of the case shall render just and proper." The amount of alimony to be allowed, under the statute, rests largely in the discretion of the trial court, the determination in each case depending upon its own facts (Huffman v. Huffman [1913] 53 Ind. App. 201, 101 Ν. Ε. 400), and in fixing the amount it is the duty of the trial court to take into consideration the financial condition of the husband, his income, his ability to earn money, the value of the wife's separate estate, and the husband's conduct toward his wife (Stutsman v. Stutsman [1903] 30 Ind. App. 645, 66 Ν. Ε. 908). It is also a general rule for the guidance of the trial court, though not mandatory, that in awarding alimony to an innocent and injured wife, as a part of a divorce decree, the wife should receive such sum as would leave her in as good condition as would have been her condition as a surviving wife upon her husband's death. De Ruiter v. De Ruiter (1901) 28 Ind. App. 9, 62 Ν. Ε. 100, 91 Am. St. Rep. 107. The facts in Yost v. Yost (1895) 141 Ind. 584, 41 Ν. E. 11, were very similar to those in the instant case. That was a suit by a husband for divorce; a cross-complaint by his wife, each alleging cruel treatment. The value of the husband's property was found to be "from $2,200 to $3,750." The wife was granted a divorce on her cross-complaint and awarded $100 alimony. On appeal, the judgment was reversed, the Supreme Court hold ing that the action of the trial court in awarding but $100 alimony was an abuse of its discretion. In principle, the case at bar is not distinguishable from the Yost Case. If, as decreed by the court, appellant was entitled to a divorce from appellee on the ground that she had suffered cruel and inhuman treatment at the hands of appellee, then, under the statute which requires the trial court to make such decree for alimony [5] The decision of the trial court granting the divorce and allowing attorney's fees not having been questioned, it is unnecessary, under the facts of this case, to disturb that part of the judgment, but in so far as it denies alimony, the judgment is reversed, with instructions to grant a new trial. DAUSMAN, J., absent. (327 111. 472) PEOPLE ex rel. CARR, County Collector, v. SEAQUIST. (No. 18021.) Supreme Court of Illinois. Oct. 22, 1927. Rehearing Denied Dec. 7, 1927. Taxation 649-Appeal will be dismissed where record does not contain authenticated copy of the record of any final judgment, notwithstanding stipulation (Practice Act, § 100). An appeal in a proceeding for the sale of real estate for delinquent taxes will, in view of Practice Act (Smith-Hurd Rev. St. 1925, с. 110) § 100, be dismissed where the record does not contain any authenticated copy of the record of any final judgment, even though the parties have stipulated that such copy should not be required. Appeal from Cook County Court; John D. Biggs, Judge. Application by the People, on the relation of Patrick J. Carr, County Collector, for judgment and order of sale of real estate owned by Seth Seaquist for delinquent taxes. The county court refused to sustain the owner's objections to such application, and he appeals. Appeal dismissed. Leo D. Schein, of Chicago, for appellant. Robert E. Crowe, State's Atty., and Robert C. O'Connell, both of Chicago (Hayden N. Bell, W. W. De Armond, and James F. Clancy, all of Chicago, of counsel), for appellee. DUNCAN, J. The people, on the relation of Patrick J. Carr, county treasurer and ex officio county collector, applied to the county court of Cook county for judgment and order of sale of the real estate of Seth Seaquist, appellant, located at the northeast corner of Southport avenue and Eddy street, in the city of Chicago, for $999.58 delinquent general taxes for the year 1925. Appellant objected to the application on the ground that the assessed value of the real estate had been increased in the sum of $10,000 by the board For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (159 Ν.Ε.) of review without notice to him. The county court at the July term, 1926, overruled appellant's objections, and he thereupon prayed an appeal to this court. At the August term, 1926, of the county court, the court vacated and set aside its former order overruling appellant's objections, and, upon further hearing, again overruled the objections. To the overruling of his objections, appellant prayed an appeal to this court. 2. Bills and notes 537 (6)-Whether plaintiff transferee is holder in due course becomes question for jury, where bad faith may be inferred from circumstances surrounding negotiation (Cahill's Rev. St. 1925, c. 98, par. 72). In action on notes, though there is direct testimony that plaintiff is holder in due course within purview of Cahill's Rev. St. 1925, с. 98, par. 72, if reasonable inference tending to prove bad faith may be drawn from facts and circumstances surrounding negotiation, question whether plaintiff is holder in due course becomes one of fact for jury. It was stipulated and agreed by the parties that the original bill of exceptions "may be incorporated into the record in lieu of a copy." It was also stipulated and agreed that the clerk may omit from the record the 3. Bills and notes 537 (6)-Whether plaintiff certificate of publication, tax judgment, and record, certificate of county treasurer, certificate of county clerk, and rule to file objections. The record does not show that any final judgment and order of sale of appellant's property were entered by the court. The record simply shows that, after the court overruled objections, appellant prayed an appeal to this court. The record contains all matters necessary for a review by appeal except the final judgment and order of sale, but does not show that any such judgment was entered. In the case of People v. Mitchell, 325 Ill, 472, 156 N. E. 341, wherein the record did not show a final judgment and order of sale of property for delinquent taxes, we held that an appeal from such order overruling objections to a tax must be dismissed, as section 100 of the Practice Act (Smith-Hurd Rev. St. 1925, c. 110) requires the filing of an authenticated copy of the record of the final judgment or order appealed from, and that the parties cannot stipulate against the positive provision of that section. Since the record does not contain any authenticated copy of the record of any final judgment, the appeal must be, and is, dismissed. Appeal dismissed. (327 111. 455) FONCANNON v. LEWIS et al. (No. 17618.) Supreme Court of Illinois. Oct. 22, 1927. 1. Bills and notes 501-Exclusion of evi- In action on notes by transferee, evidence offered by defendant held to tend to show that title of payee was defective within meaning of Negotiable Instruments Act, § 55 (Cahill's Rev. St. 1925, c. 98, par. 75), and exclusion of such evidence was error. transferee of notes was holder in due course held question for jury (Negotiable instruments Act, §§ 52, 56, 59). In action by transferee of note who purchased it from payee at discount, evidence as to facts and circumstances surrounding purchase of notes held, in view of Negotiable Instruments Act, §§ 56, 59 (Cahill's Rev. St. 1925, с. 98, pars. 76, 79), to raise question for jury whether plaintiff was holder in due course within section 52 (par. 72). Error to Appellate Court, Fourth District, on Appeal from the Circuit Court, Franklin County; J. C. Eagleton, Judge. Action by H. A. Foncannon against J. A. Lewis and another. Judgment for plaintiff was affirmed by the Appellate Court for the Fourth District, and defendants were awarded a writ of certiorari. Reversed and remanded. Moses Pulverman and H. F. Knox, both of Benton (T. B. Cantrell, of Benton, of counsel), for plaintiffs in error. Shaw & Huffman, of Lawrenceville, and H. M. Robbins, of Vincennes, Ind., for defendant in error. DE YOUNG, J. On January 4, 1923, Η. Α. Foncannon recovered a judgment by confession for $1,765 and costs against J. A. Lewis and H, H. Lewis in the circuit court of Franklin county. The suit was based upon three promissory notes executed by the defendants, dated October 14, 1922, each for $518.51, payable to the order of the Standard Auto Insurance Association, and due, respectively, in six, nine, and twelve months after their date, with interest at 7 per cent. per annum until paid. By indorsement the payee had transferred the notes to the plaintiff without recourse. After the rendition of the judgment, the defendants, upon their motion supported by affidavit, were given leave to plead to the merits of the action. The general issue and six special pleas were filed. A jury trial resulted in a verdict for the defendants. The plaintiff made a motion for a new trial, which was granted. Subsequently the parties stipulated that each For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes might introduce on the trial, upon the plea of the general issue and the similiter thereto, all evidence that might be admissible upon any special pleas properly pleaded. On the second trial the court instructed the jury to return a verdict assessing the plaintiff's damages at $1,976.04. The defendants' motion for a new trial was denied and judgment was rendered upon the verdict. The defendants prosecuted an appeal to the Appellate Court for the Fourth District, and that court affirmed the judgment of the circuit court. Upon application by the defendants this court awarded a writ of certiorari, and the record is here for a further review. Upon the second trial, Foncannon, the defendant in error, testified that he was engaged in the real estate and loan business at Bicknell, Ind.; that he was acquainted with two of the officers of the Standard Auto Insurance Association, but was unacquainted with J. A. Lewis and H. H. Lewis, the plaintiffs in error; that he bought the three notes from the association on October 24, 1922, and paid $1,300 therefor; that he was not connected with and did not own any stock in the association; and that he had no knowledge or information of any defense to the notes. The notes were introduced in evidence, and upon the first and second the following indorsement appeared: "The Standard Auto Ins. Ass'n, by R. C. Phillippe." Across this indorsement were stamped the words, "This clause void." Further below, and also upon the back of the note due in twelve months, appeared the indorsement: "For value received we hereby transfer and assign the within note to H. A. Foncannon without recourse. The Standard Auto Ins. Ass'n, by R. C. Phillippe, Treas." The defendant in error admitted on cross-examination that he had testified on the former trial that he bought the notes on January 2, 1923, and while he had testified that he gave a check for the purchase price of the notes and kept a check book, yet he was unable to produce either the canceled check or the stub of the check. He testified that the reason for the liberal discount allowed him was that the association needed money; that prior to his purchase of the notes they had been held by a bank as collateral security, and that the qualified indorsement was on each of the notes when he acquired them; that he had been informed that one of the makers of the notes was about to sell a farm and that it would be advisable to reduce the notes to judgment; and that he did so without making a demand upon the plaintiffs in error for payment. He admitted that he knew the notes arose out of some transaction with reference to the association's business at West Frankfort, Franklin county, Ill., but that he made no investigation to determine whether at the time the notes were given the associa tion was authorized to do business in this state. The plaintiffs in error offered to show upon the trial that in 1921 S. C. Gilmore was the association's agent at West Frankfort to write automobile insurance in Southern Illinois; that Gilmore conducted his business under the name of the Motor Car Abstract & Security Company; that in the same year he invited the plaintiff in error J. A. Lewis to join him; that Lewis did so, and the partnership conducted its business under the name and style which Gilmore had adopted originally; that in September, 1922, the association's auditor discovered that Gilmore was indebted to the association in the sum of $1,555.53 for premiums which he had not remitted; that about one month later J. F. Organ, the association's general superintendent of agencies, came to West Frankfort and represented to the plaintiffs in error that he had complete authority to adjust the shortage and to appoint a new agent; that if Lewis would pay the amount of Gilmore's defalcation, he (Lewis) would be appointed the association's exclusive agent during the ensuing year for all of Illinois south of the Baltimore & Ohio Railroad, and that from the profits of the agency during that period Lewis could not only reimburse himself for Gilmore's shortage but enjoy a comfortable living in addition; that Lewis did not possess the sum of money required and Organ thereupon agreed to take his three notes, each for one-third of the sum, due in six, nine, and twelve months, with interest at 7 per cent., provided his father would also execute the notes; that, relying on Organ's representations, plaintiffs in error accepted his proposition and executed the notes, and Organ promised to forward the requisite appointment, documents, and policies; that the appointment was not forthcoming, and on or about November 1, 1922, Lewis went to the association's main office, at Vincennes, Ind., where its officers promised, upon the execution of a fidelity bond in the sum of $5,000, that the appointment would be made; that the bond was executed and delivered to the association, but shortly thereafter, by a letter dated November 14, 1922, and addressed to Lewis, the association stated that it did not care to renew its license to do business in Illinois and that it would not be able to accept any business from him; that at no time after October 14, 1922, did the association appoint Lewis its agent; and that it never surrendered to the plaintiffs in error the notes which it had obtained from them. The plaintiffs in error further offered to show that on February 13, 1922, the association had written the superintendent of insurance of Illinois that it had withdrawn from the state and would not ask for a renewal of its license to do business during the ensuing year; that when the plaintiff in |