time. That was his sole and complete contract, except that he further agreed that she should have possession of the third flat free of rent until January 1, 1915. Under a familiar principle of law this contract should be construed more favorably to Miss McNulty than to Fannin, who dictated the contract and prepared it himself. He was her agent at that time for the care and management of this property and had been for years and was her confidential adviser. Taking the contract literally, according to its terms, it was complied with in full when Miss McNulty secured a bona fide purchaser after October 6, 1914, and before May 1, 1915. She not only secured this bona fide purchaser, but she had him make complete payment therefor before delivering him the deed, which she did on April 24, 1915. The contract does not provide in express terms that Fannin was to be paid all the money due him before May 1, 1915. His obligation was complete to re-deed the property when she secured the bona fide purchaser before that date. He was asked by Seymour to make a statement of the amount due, and he gave Seymour an incorrect statement, as he well knew, by not giving him the benefit of the credits for the rents he had received from the property and which he acknowledged in his statements to Miss McNulty should be deducted from the amounts so paid out by him. Seymour, as her grantee, was entitled to redeem the property upon the same terms as was his grantor, Miss McNulty. This demand and statement were made before May 1, 1915, and no correct statement has ever been furnished to Seymour by Fannin although such request was repeatedly made.

Seymour's deed was recorded May 1, 1915, and Fannin's grantee, May Devine, is chargeable with notice of Seymour's rights in the premises. As the time was not fixed by the terms of the contract as to when Fannin should be re-paid all of his expenditures aforesaid and the $500 bonus, it was not absolutely necessary that it be paid by May 1, 1915, by Seymour. Even if it could be said that

the time for this payment was fixed by implication, time was not made of the essence of the contract. In equity time is not necessarily deemed of the essence of the contract when the time is fixed. The parties may make time of the essence of their agreement, and when it distinctly appears that they have done so and no peculiar circumstances have intervened to prevent or excuse a strict compliance, it must in equity be considered and treated as of the essence. (Morgan v. Herrick, 21 Ill. 481.) In this case it was Fannin's duty to have furnished a correct statement of the exact amount justly and legally due him under his contract. He had the opportunity to do so, and was requested to do so by Seymour more than five days before May 1, 1915. Having at all times refused to make a statement of the correct amount due, no good reason appears to us why Fannin and his grantee should not be required to deed this property to Seymour on the payment to him of all of his expenditures on the property and the amounts paid to and for Miss McNulty on the contract and the $500 bonus aforesaid. Plaintiff in error should also be required to pay him all subsequent amounts paid on said loans and all amounts paid out for reasonable repairs and expenses on the building, including insurance, taxes, and all other legitimate outlays by him since his last statement was rendered, less rents collected by him on the property, and for which he should be held to account under the cross-bill.

The decree of the circuit court is reversed and the cause remanded, with directions to dismiss the original bill for want of equity and for further consideration under the cross-bill according to the views herein expressed.

Reversed and remanded, with directions.

(No. 13062.-Judgment affirmed.)

ALVIN T. BRANT, Admr. Defendant in Error, vs. THE CHICAGO AND ALTON RAILROAD COMPANY, Plaintiff in Error.

Opinion filed October 23, 1920—Rehearing denied Dec. 8, 1920.

I. APPEALS AND ERRORS—when Appellate Court may permit belated petition for rehearing to be filed-effect as to petition for certiorari. If a motion to file a petition for rehearing is made in the Appellate Court during the term at which the opinion was filed, even though the time allowed under the rules has expired, the Appellate Court may act upon the motion at the next term, and if it denies the motion it may again reconsider it at the same term and permit the petition to be filed; and in such case the time for filing a petition for certiorari will be computed from the date the petition for rehearing is denied.

2. PRACTICE-Federal right or defense must be asserted in State court according to State rules of practice and pleading. A substantive Federal right or defense duly asserted cannot be lessened or destroyed by a State rule of practice, but such a right or defense must be asserted at a time and in such manner in the State court as will entitle the defendant to a consideration of the right or defense by the State court under its established system of practice and pleading.

3. SAME when a special finding of fact is binding on review. Where no motion is made in the trial court to set aside special findings by the jury and no question as to them is raised in the motion for a new trial, the question is not saved for review by motion for a directed verdict nor by a general objection that the verdict is contrary to the weight of the evidence but such findings of fact are conclusively binding on the review.

4. RAILROADS-the defendant must prove its defense of assumed risk. In an action under the Federal Employers Liability act the burden of proof is on the defendant to establish its defense of assumed risk.

5. SAME what does not establish defense of assumed risk. Under the Federal Employers Liability act an employee is not required to exercise care to discover danger which results from the employer's negligence, and where a brakeman is knocked off a moving train by a bridge because of defective "tell-tales," the railroad company cannot escape liability on the ground of assumed risk where it is not shown that the employee was aware of the defects in the tell-tales though he knew of the existence of the bridge.

6. SAME contributory negligence is not a defense under Federal Employers Liability act. Contributory negligence is not a defense under the Federal Employers Liability act but only goes in mitigation of damages, and the finding of the jury and the judgment of the Appellate Court are conclusive of such question if there is evidence to sustain the verdict.

7. SAME-an agreement to assume risk of conditions of his employment is not binding on employee-instruction. An agreement in an application for work to assume the risk of the conditions of the employment is not binding on the employee as a waiver of conditions due to the employer's negligence, and in an action under the Federal Employers Liability act it is proper to so instruct the jury.

8. SAME what is proper instruction as to credibility of witnesses. In an action for damages it is not error to instruct the jury that if they are satisfied, from all the facts and circumstances proved, that a witness is mistaken in the things testified to by him they may disregard his testimony, and if they are satisfied, from all the facts and circumstances proved, that for any reason his testimony is untrue or unreliable they are not bound to take it as absolutely true.

9. SAME-counsel should object to harmful argument to preserve question for review. Counsel desiring, on appeal or writ of error, to preserve objection to the argument of opposing counsel should object to the argument at the time it is made, so as to give the court opportunity to stop the argument and remove all hurtful effects possible by sustaining objection to the same and by proper reprimand to counsel and instructions to the jury.

WRIT OF ERROR to the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Pike county; the Hon. HARRY HIGBEE, Judge, presiding.

BRACKEN & YOUNG, and WILLIAM & BARRY MUMFORD, (SILAS H. STRAWN, of counsel,) for plaintiff in error.

BEN H. MATTHEWS, for defendant in error.

Mr. JUSTICE DUNCAN delivered the opinion of the court: Defendant in error, Alvin T. Brant, administrator of the estate of Mayo Earl Sutton, deceased, recovered a judgment in the circuit court of Pike county for $8500 against

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plaintiff in error, the Chicago and Alton Railroad Company, for the death and conscious pain and suffering of the deceased, who was killed while in the employ of plaintiff in error. The judgment was affirmed in the Appellate Court and this court granted a writ of certiorari, and the record is brought to this court for review on a writ of error.

At the time of the injury to the deceased, August 29, 1916, and prior thereto, plaintiff in error maintained at Roodhouse, Illinois, a depot and seven railroad tracks, numbered from 1 to 7, which run east and west. North of the tracks plaintiff in error maintains an ice house 460 feet long, 64 feet wide and 28 feet from the ground to the eaves. Extending a distance of seven feet and six inches from the south side of the ice house there is a platform. Immediately south of the platform track No. 7 is laid, and immediately south of that track there is another platform called the icing platform, which is about 12 feet wide and about 16 feet from the ground. Track No. 6 lies just south of the icing platform. There is a bridge or cross-over above track No. 7 connecting the platform south of the ice house with the icing platform. The under part of the bridge structure is about 15 feet and 10 inches above the top of the rails of the track. This bridge is used for the purpose of taking ice from the ice house to the icing platform, to be placed in the top of refrigerator cars in trains standing on either track No. 6 or No. 7. The clearance between the underside of the bridge and the top of the refrigerator cars is approximately three feet. Sixty-three feet west of the bridge across track No. 7 is a "tell-tale," consisting of numerous strands of rope suspended from a wire netting, the lower ends of the ropes being three and a half or four feet above the top of ordinary Swift refrigerator cars. There is another similar tell-tale 300 feet west of the bridge over track No. 7. Tell-tale No. 1, farthest from the bridge, is supported by a pole, while tell-tale No. 2, nearest to the bridge, is fastened to the south side of the ice