author: Mr. Justice McDonald

text:
    The People of the State of Illinois, Defendant in Error, v. Fred Buckminster, Plaintiff in Error.
    Gen. No. 22,426.
    1. Conspiracy, § 23

       — what is not an essential of crime of. The gist of a conspiracy is the unlawful' agreement, and a consummation of its object or the exercise of the unlawful means is not essential 'to the crime.
    2. Conspiracy, § 22* — when exists in State. Where a confidence game is begun with artifices to obtain the victim’s confidence before the conspirators take him to another State in which the confidence game is consummated, there is a conspiracy to such extent to exercise the unlawful means in the State of Illinois.
    3. Conspiracy, § 49* — when evidence of defrauding of others by confidence game is admissible. In a criminal prosecution for conspiracy to defraud by means of the confidence game, evidence that defendant and certain others had attempted with others of the co-conspirators to defraud witnesses by similar schemes, held admissible as tending to show guilty knowledge and intent on the part of the defendant.
    4. Conspiracy, § 49* — when error to require defendant to answer questions whether acquainted with notorious confidence men. In a criminal prosecution for cotispiracy to defraud by means of the confidence game, it is error to require defendant to answer questions as to whether he was acquainted with certain notorious confidence men, especially where he answers in the affirmative and one of the men referred to is not one of his co-conspirators.
    5. Criminal law, § 160* — what is evidence of guilt. The fact that an accused resorts to manifest perjury to explain his connection with criminals does not comport with innocence.
    6. Conspiracy, § 50* — when evidence shows guilt beyond reasonable doubt. In a criminal prosecution for conspirasy to defraud by means of the confidence game, evidence held sufficient to show defendant’s guilt beyond a reasonable doubt.
    7. Criminal law, § 553* — when judgment of conviction not disturbed because of improprieties of counsel. Where the guilt of a defendant in a criminal case is established beyond a reasonable doubt by an overwhelming amount of convincing proof, the judgment against the accused will not be disturbed because of improprieties of counsel, although ordinarily such conduct would be cause for reversal, where another trial would not properly result in a different verdict.

      Error to the Criminal Court of Cook county; the Hon. Robert E. Turney, Judge, presiding. Heard in the Branch Appellate Court at the March- term, 1916.
    Affirmed.
    Opinion filed July 19, 1917.
    Benjamin C. Bachrach, for plaintiff in error.
    Maclay Hoyne, for defendant in error; George C. Bliss, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

Plaintiff in error, Fred Buckminster, was found guilty of conspiracy and sentenced to serve three years in the penitentiary. By this writ of error it is sought to reverse the judgment of the lower court because of certain alleged errors in the record.

The indictment charged that plaintiff in error, together with one May and one Miller, conspired together, and with divers other persons whose names were unknown to the grand jurors, to obtain money from one Martin Hupe by means of the confidence game; also with obtaining money by false pretenses, contrary to the statute, etc.

The prosecuting witness (Hupe) testified that he lived on a farm near Homewood, Cook county, Illinois; that on or about May 18, 1915, a large red automobile was stopped in the road near his place; that he thought it contained four passengers; that among them was the plaintiff in error, who was driving the car, and one Miller; that, thinking they had lost their way, he approached them, whereupon the said Miller engaged him in conversation, informing the witness that he desired to purchase a farm in that locality; that after discussing the relative merits of farm lands in that vicinity, the said Miller asked if his (Hupe’s) farm was for sale, whereupon Hupe stated that the farm no longer belonged to him, he having sold it to his son; that Miller then stated that he would like to inspect some farms in that locality with a view to purchasing one, and asked if he (Hupe) would go along and give him the benefit of his many years of agricultural experience, in selecting land, for which the said Miller offered to pay the witness $5 per. clay; that he (Hupe) readily assented thereto, and that the said Miller then stated that they would call for him within a few days; that they returned within a few days as agreed, and the three, i. e., plaintiff in error, Miller and Hupe, started out, ostensibly in search of a farm; that they went to various places near by, but without selecting one, and that after several hours. of driving, they paid him $5 and took him back home; that the said Miller then informed the "witness that he had a few Indiana farms in view, and requested him to go along to give his opinion on their value, to which he agreed, and Miller then stated that they would call for him within a few clays; that they returned within the specified time, and the three started on the proposed trip to Indiana; that as they approached East Chicago, Indiana, plaintiff in error intimated that there was something wrong with the automobile in which they were riding, which would necessitate taking it to a garage immediately; that they then proceeded to East Chicago, where plaintiff in error made inquiry as to the nearest garage, and, upon being told of one, drove the car to the place designated; that meanwhile he (Hupe) and the said Miller stopped at a nearby saloon for a drink while plaintiff in error drove to the garage; that plaintiff in error returned from the garage a few minutes later, and informed the said Miller that it would require an hour to make the necessary repairs to the car; that the said Miller then suggested to the witness that the two, i. e., Miller and Hupe take a walk in the meantime, to which the latter consented.

It further appeared from the testimony of Hupe that he and Miller had walked but a short distance when they passed a man counting a large roll of paper money, whose appearance bespoke opulence, and whom the said Miller recalled having seen in St. Louis a short time before, and who, Miller explained, was reputed to have won about $100,000 on horse races a short time before. This belief was quickly verified, when the said Miller accosted the “stranger” in question, who modestly admitted having made a “killing” on the races, but stated that his winnings amounted to only $80,000. The “stranger” (whose name the witness afterwards learned was May) and Miller then conversed, within the hearing of Hupe, along lines calculated to arouse the curiosity of the latter, at the end of which May agreed to let the said Miller and Hupe “in” on a few good bets.

The said Miller and Hupe, in company with their newly-acquired “friend,” then walked down the street together until they reached an old frame building, which they entered. This frame structure was equipped with paraphernalia which, according to the testimony of Hupe, must have been similar to that used in betting establishments. In one room there were several old chairs and a table; in another there were blackboards, a bell and various other devices, and a “caller” who announced the results of the “races.” In brief, the place must have had the appearance of a handbook establishment, or at least must have borne enough similarity to one to deceive the inexperienced gambler.

Within a short time May left his two companions and walked into another room to place a small “bet,” which a few minutes later he stated netted him ten per cent, profit; these successful “bets” were repeated in increasing amounts, apparently to impress the credulous Hupe with the marvelous facility with which May could win money, until May had “won” $4,000.

The said May then suggested to Hupe and the said Miller that they place a large bet on a “sure winner,”' which, after some persuasion by Miller, Hupe aéquiesced in. Accordingly the “bet” was placed, May selecting the horse upon which they were to wager their money; but instead of putting up the currency, the three signed a card or check for $4,000, this being the amount wagered on the “race.”

Presently it was announced that they had won $14-, 000, but the “cashier” informed Hupe that, in accordance with an inflexible rule of the institution, no bets were to be paid until the winner could show that he was financially able to meet the amount of his check. The said Miller and Hupe then held a consultation, the upshot of which was that the two agreed to go to their respective banks and raise enough money to make the proper showing with the “cashier” in question, to enable them to collect the $14,000.

Accordingly May, Miller and Hupe walked to the garage where they found plaintiff in error in waiting. Miller then ordered plaintiff in error to take the said May and Hupe to Homewood, where the latter was to draw $3,500 of the money just referred to, Miller agreeing to go to Chicago immediately to raise the balance of the $4,000 bet. In company with plaintiff in error - and May, Hupe went to Homewood, drew the money from the bank, and the three made a hurried return to East Chicago, where the money was promptly turned over to the “cashier” of the aforesaid gambling institution, $500 being in currency and $3,000 in the form of a cashier’s check.

Having fulfilled his part of the agreement, Hupe then demanded payment of the bet. Needless to state, the money was not forthcoming, numerous excuses being made therefor. It then dawned upon Hupe for the first time that the entire scheme appeared suspicious. In due course the cashier’s check for $3,000 was deposited in a Chicago bank by plaintiff in error, who immediately drew $2,000 against it. In the meantime, Hupe, after being satisfied that he had been duped, ordered payment stopped on the $3,000 check. Plaintiff in error was notified thereof, and subsequently returned to his bank $1,500 of the $2,000 received on this check. The episode resulted in a net loss to the said Hupe of $1,500.

The first point raised by plaintiff in error is, that the Criminal Court of Cook county had no jurisdiction of the crime charged because the evidence shows that the agreement constituting it contemplated the exercise of the confidence game in another State. The logic of this contention is that the conspirators can circumvent the law if they make as one of the express terms of their agreement that they will get the money by the confidence game in another State, no matter how far they may exercise their contemplated means to that end in this State.

The gist of a conspiracy is the unlawful agreement, and it is conceded that a consummation of its object or the exercise of the unlawful means is not essential to the crime. Ochs v. People, 124 Ill. 399; Gallagher v. People, 211 Ill. 158.

The evidence, however, shows that part of the acts constituting the confidence game were practiced in this State. The confidence game began with the artifices to obtain the victim’s confidence before the conspirators took him to Indiana. To that extent they conspired in Illinois to exercise the unlawful means in this State.

It is also strenuously argued by the plaintiff in error that the court committed reversible error in the admission of certain evidence by the witnesses Stein and Gottschalk, on behalf of the prosecution.

The witness Stein was permitted to identify plaintiff in error as the man who, under the alias of Curtis, had called at his place of business and represented himself as a manufacturer seeking to invoke his assistance'in locating a desirable factory site; that a few days later, plaintiff in error invited him, to dinner at the Auditorium Hotel, where he introduced him to one Wilson, who was represented as a mining engineer of Brooklyn, New York, but whose real name was 'Weil, and who was more commonly known as the “Yellow Kid.”

While this testimony did not show conclusively that the participants had actually conspired to defraud the said Stein, yet the circumstances surrounding these activities at least tended to -show, in its embryonic state, a scheme similar to that described by the prosecuting witness, Hupe. At any rate, the evidence was admissible as tending to show a guilty knowledge and intent on the part of plaintiff in error who steadfastly disclaimed any guilty knowledge of the fraudulent activities of his co-conspirators.

What we have just said applies with equal force to the testimony of G-ottschalk, the banker, located at Homewood, who testified that plaintiff in error called at his place of business on March 31, 1915, introducing himself as Frederick Bateman of New York, dealer in real estate; that he was seeking to purchase a tract of land in the vicinity of Homewood, and that plaintiff in error made a deposit of $1,000 in his bank under the name of Bateman. In the course of the negotiations which followed this visit, G-ottschalk met several supposed accomplices, including one “Harrison,” one “Spelsy,” and the aforesaid Yellow Kid. According to Grottschalk’s testimony, a deal for the sale of his real estate had been arranged and the parties agreed to meet at the office of his attorney 'in Chicago to close the deal. Needless to state, they never appeared, plaintiff in error in the meantime having withdrawn his deposit of $1,000 from G-ottschalk’s bank.

The witness Olson testified that he was defrauded out of $10,000 the latter part of June, 1915 (a few weeks after the Hupe incident) on fictitious horse race bets, by a gang of confidence men including plaintiff in error, the aforesaid Miller, May, Weil (the Yellow Kid) and others. The details which he related in his testimony are strikingly similar to those testified to by Hupe in describing his experience with these notorious lawbreakers; plaintiff in error being the chauffeur of the same red automobile which was “disabled” as they approached East Chicago, necessitating immediate attention; the walk to the gambling house, and the subsequent betting on “fake” horse races.

Complaint is made that plaintiff in error was unduly prejudiced by being required to answer questions regarding his acquaintanceship with certain notorious confidence men, viz., one Strosnider, and the aforesaid Weil. And it is strenuously argued that his affirmative answers to the questions seeking to elicit this information were highly prejudicial.

In our opinion, it was error to admit this evidence, particularly with reference to any acquaintanceship with the said Strosnider. There is no evidence in the record in any way connecting Strosnider with the conspiracy here charged. As to.the aforesaid Weil, there is evidence showing that he did have some part in the furtherance of this high-handed scheme. Nevertheless, we think the questions were improper as not bearing directly upon the issues here involved, and objections thereto should have been sustained.

The evidence shows beyond a reasonable doubt that plaintiff in error, along with others, had conspired to defraud innocent people out of their money; that in at least two instances they succeeded, and it tended to show that other unsuccessful attempts had been made. And althqugh plaintiff, in error now seeks to assume the role of an innocent victim who was induced to drive an automobile containing criminals who were bent on committing crime, yet we think the evidence shows that he was acting with full knowledge of their intentions and operations, and aiding in carrying them out.

There are numerous circumstances in evidence which refute his profession of innocence. For instance, when he called at the Homewood State Bank he introduced himself to the aforesaid G-ottsehalk as Frederick Bateman and represented that he wanted to purchase a factory site. His explanation for the assumption of a fictitious name at that time was, that he feared it might become known to his creditors that he had deposited $1,000 in the bank at Homewood, and they might seek to attach it. Yet the evidence shows that at that very time he had an account with a Chicago bank in his real name.

Plaintiff in error also testified that he met the afore-said Miller in a casual way, by reason of the fact that he was at that time endeavoring to sell his automobile and Miller was in the market for one. The falsity of this testimony became manifest when plaintiff in error admitted on cross-examination that he did not own the automobile in question, and nullified his explanation that the meeting with Miller was the result of the aforesaid coincidence. The fact that he resorted to manifest perjury to explain his connection with criminals does not comport with innocence.

Plaintiff in error also testified that he cashed the $3,000 check which the aforesaid Miller had fraudulently obtained from Hupe, and explained that this was done merely as an accommodation; that" he had no pecuniary interest in it, and that at the time he was without knowledge as to the transaction from which it emanated, although he admitted that he afterwards learned through his bank that it had been fraudulently obtained from the aforesaid Hupe. However, in the face of this knowledge, we find plaintiff in error, a few weeks later driving the same red automobile, with the aforesaid Miller and Olson as his passengers, to the same destination, and the same significant circumstances following in regular order, viz., the breaking down of the automobile as they neared East Chicago, the trip to the garage, and the subsequent horse race swindle.

It is indeed singular, to say the least, that a man who possessed the intelligence of the plaintiff in error; a man who had spent years as a detective on the Chicago police force; a man whose business brought him in frequent contact with all classes of criminals, could be so gullible as to be imposed upon by a gang of artful swindlers; and to expect a jury, in the face of evidence of unmistakable guilt, to believe that plaintiff in error was the unsuspecting tool of this hand of unscrupulous rogues is to place too severe a tax on their credulity.

The record is replete with the conflicting statements of the plaintiff in error wherein he unsuccessfully sought to explain acts which on their very face bespoke his guilt. And while the record reveals improprieties committed by the prosecuting attorney prejudicial to the defense, which ordinarily would necessitate a reversal of the judgment, yet, viewed in the light of the competent evidence in the case, the guilt of the plaintiff in error has been shown beyond a reasonable doubt, by an overwhelming amount of convincing proof, and we are satisfied that a retrial of the cause could not properly result in a different verdict. Therefore, following the rule laid down by our Supreme Court in People v. Cleminson, 250 Ill. 135, and later followed in People v. Halpin, 276 Ill. 363, the judgment should not be disturbed for the purpose merely of making a better record. Accordingly the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Michael J. Collins et al., Appellants, v. McVickers Theater Company, Appellee.
    Gen. No. 22,582.
    (Not to be reported in full,)
    Abstract of the Decision.
    1. Landlord and tenant, § 293

       — when appraisers may consider effect of lease with revaluation clause upon value of land. Under the provisions in a lease of school fund property providing for revaluation every ten years by a board of appraisers and authorizing the appraisers, in ascertaining the fair cash value of the land, to take into consideration certain enumerated items and “any other facts or information, from whatever source, bearing upon the question of the actual value of said land, the appraisers have the right to take into consideration the effect, if any, of the lease with the ten-year revaluation clause, upon the fair cash value of the land.

      Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed July 19, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Michael J. Collins and others, as and comprising the Board of Education of the City of Chicago, complainants, against the McVickers Theater Company, defendant, to set aside or reform an appraisal of the fair cash value of certain school fund property. From a decree dismissing the bill for want of equity, complainants appeal.
    Angus Boy Shannon, for appellants; Chauncey M. Millar and Jcitn E. Foster, of counsel.
    Byan, Condon & Livingston, for appellee; Andrew J. Byan and Irvin I. Livingston, of counsel.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topie awl section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

2. Landlord and tenant, § 294 — when award of appraisers fixing value of premises not disturbed. An award of appraisers fixing the fair cash value under the terms of a lease providing for revaluation of premises will not be disturbed, in the absence of mistake or fraud.

3. Landlord and tenant, § 294* — when admissions of appraiser are insufficient to impeach appraisal. Admissions by one of the appraisers authorized to fix the fair cash value of premises under a revaluation clause in a lease, held insufficient to impeach the appraisal.

4. Landlord and tenant, § 294* — when admissions of appraiser to impeach appraisal are inadmissible. Where an appraisal of the fair cash value of property under a revaluation clause in a lease appears to be regular on its face, admissions of an appraiser as to the method pursued in valuing the land are inadmissible.


text:
    Michael J. Collins et al., Appellants, v. Henry Friend, Appellee. Same v. R. C. Jenkinson et al., Appellees. Same v. Louis M. Stumer et al., Appellees. Same v. Ava W. Farwell et al., Appellees. Same v. A. Bishop & Company, Appellees.
    Gen. No. 23,130.
    (Not to be reported in full.)
    Gen. No. 23,131.
    (Not to be reported in full.)
    Gen. Nos. 23,132, 23,133.
    (Not to be reported in full.)
    Gen. No. 23,134.
    (Not to be reported in full.)
    Gen. No. 23,136.
    (Not to be reported in full.)
    Appeals from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed July 19, 1917.

      Certiorari denied by Supreme Court (making opinion final).

      Abstract of the Decision.
    Landlord and tenant, § 291

       — when motion to compel defendants in appraisement proceedings to pay into court amounts admitted to he due is proper. Where the object of a bill is to modify or' set aside appraisements of the value of the property as a basis for rent made under the provisions of a lease, and not to recover rent due, a motion by complainants to require defendants to pay into court the amounts admitted by the respective owners to be due under the appraisements as made, and which the complainants had previously refused to accept, is proper.
    Statement of the Case.
    Bill by Michael J. Collins and others, as and comprising the Board of Education of the City of Chicago, complainants, against Henry Friend, defendant, to modify or set aside appraisements of land made under the provisions of a lease. This case was consolidated with the similar cases against R. C. Jenkinson and others, Gen. No. 23,131; Louis M. Stumer and others, Gen. Nos. 23,132, 23,133; Ava W. Farwell and others, Gen. No. 23,134; and A. Bishop & Company, Gen. No. 23,136. From a judgment for defendants, complainants appeal. The decision in this case is governed by Collins v. McVickers Theater Co., Gen. No. 22,582, ante, p. 240.
    Angus Roy Shannon, for appellants; Chauncey M. Mular and John E. Foster, of counsel.
    Donald L. Morrill, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Keystone Oil & Manufacturing Company, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 22,639.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 40

       — when carrier liable for loss in loading and unloading goods. The general rule is that the loading and unloading of goods are under the carrier’s control and that the carrier is liable for any loss incident thereto, unless the shipper assumes this responsibility.
    2. Carriers, § 40* — what defects in loading carrier not liable for where shipper assumes responsibility. Where the shipper assumes the responsibility of loading, the carrier is absolved from any loss occasioned by defects in loading which are necessarily invisible to the carrier or his agent who accepts the freight for shipment, or which he cannot discover by ordinary observations, or such inspections as he can readily make.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed July 19, 1917.
    Statement of the Case.
    Action by the Keystone Oil & Manufacturing Company, a corporation, plaintiff, against the Illinois Central Railroad Company, a corporation, defendant, for the loss of a quantity of gasoline shipped over defendant’s railroad line. From a judgment for defendant, plaintiff appeals. 1
    William: S. Corbin, for appellant.
    Vernon W. Foster and Perry H. Keeney, for appellee; John G. Drennan, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

3. Carriers, § 40* — what is duty of carrier as to seating of gasoline tank car. The seating of the main -valve on the lower side of a tank car used for gasoline is an incident to the loading of the car, which it is the duty of the carrier to see is properly seated where the shipper does not assume the responsibility.

4. Carriers, § 40* — when refining company is agent of shipper in seating of valve and loading tank car. A refining company is the agent of the shipper in seating the main valve in a gasoline tank car and in loading it, where the refining company orders the car for the shipper and executes a bill of lading on behalf of the shipper and loads the car, pursuant to its custom, without making arrangement with the carrier therefor.

5. Carriers — when carrier charged with notice of defective valve in tank car. Where a valve in a gasoline tank car becomes leaky en route, the carrier cannot be charged with notice thereof until there are outward manifestations of such conditions.

6. Carriers — when carrier not liable for loss of gasoline due to defective outlet of tank car. Where the employees of a carrier, at a point where a tank car for gasoline is to be turned over to a connecting carrier, first ascertain the leaky condition of the outlet casting of the car and immediately take steps to prevent a total loss, and it does not appear that they are negligent, the carrier is not liable for the loss.


text:
    Lake Shore Building Company, Appellant, v. City of Chicago, Appellee.
    Gen. No. 22,656.
    1. Action, § 61

       — when all damages for trespass must be recovered in one action. Where a trespass is a permanent one, plaintiff must recover, if at all, for damages both past and future, in one action.
    2. Action, § 61* — what damages recoverable in one action where trespass is continuous. Where a trespass is continuous, the aggrieved party may sue from time to time for damages sustained only within five years next preceding the filing of the suit, but not for future damages.

      3. Trespass, § 11

       — what constitutes on land. Where a person unlawfully places a structure of any kind upon the premises of another, he commits a trespass.
    4. Trespass — what constitutes continuing. A city, in placing a permanent structure, a water supply tunnel, upon the premises of a property owner without his consent, commits a continuing trespass.
    5. Eminent domain, § 33* — what are rights of owner as to talcing of property for public use. By constitutional enactment, every property owner is assured that his property will not be taken for public use without compensation.
    6. Trespass, § 13* — what is effect of plea of statute of limitations in action to recover damages for continuing trespass. A plea of the statute of limitations, in an action to recover damages for a continuing trespass covering a period of more than five years, is a bar only to plaintiff’s right of recovery for damages accruing more than five years preceding the commencement of the action.
    7. Trespass — when counts alleging continuous trespass are not obnoxious to general demurrer. Although counts alleging a continuous trespass, otherwise good, do not limit plaintiff’s right to a recovery for the statutory period and seek to recover for future damages as well, they are not obnoxious to general demurrer.
    8. Trespass, § 11* — what is foundation of action guare clausum fregit. The foundation of the right to bring an action of trespass guare clausum fregit is the invasion or disturbance of the plaintiff’s possession.
    9. Trespass, § 5* — unassignability of cause of action. The action of trespass guare clausum fregit is personal and hence unassignable.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed July 19, 1917.
    Shepard, McCormick, Thomason, Kirkland & Patterson, for appellant; Perry S. Patterson and Louis Gr. Caldwell, of counsel.
    Samuel A. Ettelson, for appellee; Chester E. Cleveland and Donald P. Vail, of counsel.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

This is an appeal from a judgment entered against the plaintiff (appellant) on the pleadings, in an action of trespass. The declaration contained six counts. To the first four, defendant (appellee) pleaded the statute of limitations. To these pleas the plaintiff demurred and the court overruled said demurrers, after which plaintiff amended its fourth count. To the amendód fourth, the fifth and sixth counts defendant demurred, and its demurrers were sustained. Plaintiff then elected to stand by its amended fourth, its fifth and sixth counts.' The action of the trial court in overruling plaintiff’s demurrers to said pleas of the defendant to the first three counts, and in sustaining defendant’s demurrers to the amended fourth, the fifth and sixth counts, is now before us for review.

The first three counts set forth, substantially, that defendant had, during the years 1897 and 1898, and at other times since, broken and entered the close of the plaintiff in the City of Chicago; that the defendant, unknown to the plaintiff, made an excavation some fifty feet below the surface of plaintiff’s premises and constructed therein a water tunnel, for the purpose of supplying water to the people of the City of Chicago; that since the aforesaid date, defendant has continued and still cohtinues to operate the said water tunnel; that said trespass was committed with force and arms; that the said tunnel was constructed by the defendant without first invoking the power of eminent domain; that in the year 1912 plaintiff began, the construction of a large building upon the said premises ; that in excavating for the foundation, it then and there discovered for the first time the existence of the said tunnel; that the said tunnel greatly obstructed and impeded the laying of foundations for the said building, thereby rendering it necessary for plaintiff to expend additional sums of money in special construction work, amounting to approximately $1,900, for the purpose of bridging over the said tunnel; and that plaintiff will suffer additional future damage by reason of said tunnel.

It is contended by plaintiff that its demurrers to defendant’s pleas of the statute of limitations to the first three counts were erroneously overruled.

Under section 15 of the Limitations Act, ch. 83, Rev. St. Ill. (J. & A. ¶ 7210), an action to recover damages to real property must be brought within five years next after the cause of action accrued.

Where the trespass is a permanent one, plaintiff must recover, if at all, for damages both past and future, in one action. Not so, however, with a continuing trespass, in which case the aggrieved party may sue from time to time for damages sustained within five years next preceding the filing of the suit, but not for future damages. It follows, therefore, that if plaintiff’s action is for a permanent trespass, the statute precludes a recovery.

It will be noted that defendant, in constructing the tunnel in question, entered upon private property and that it actually occupies plaintiff’s premises. In other words, defendant has unlawfully appropriated private property to its own use without compensation. Where a person unlawfully places a structure of any kind upon the premises of another, he commits a trespass. Such a trespass, by the great weight of authority, is a continuing one, even though the obstruction may, in a physical sense, be considered as of a permanent character — such as a railroad (Chicago & I. R. Co. v. Hopkins, 90 Ill. 316; Adams v. Hastings & P. R. Co., 18 Minn. 236 (260); Smith v. Chicago A. & St. L. R. Co., 67 Ill. 191); a subterranean water tunnel (City of Chicago v. Troy Laundry Machinery Co., 162 Fed. 678); or telephone, telegraph and electric light equipment (Carpenter v. Capital Electric Co., 178 Ill. 29; Burrall v. American Telephone & Telegraph Co., 224 Ill. 266).

By constitutional enactment, every owner of land is assured that his property will not be appropriated for public use without just compensation. Even the State itself must observe this right which is guaranteed to every citizen. The defendant is, therefore, in the position of a trespasser who has taken property belonging to another, without his consent, and, having held it for some fifteen years, claims that by reason of the lapse of time plaintiff’s right to a recovery for damages is precluded, and further, that because of the fact that plaintiff’s acquisition of the property was antedated by the trespass, its right of action is now barred.

In Toledo P. & W. R. Co. v. Darst, 61 Ill. 231, the railroad company had appropriated to its own use privately owned lands without first bringing condemnation proceedings or obtaining the consent of the owner. In a condemnation proceeding brought by the railroad company some fifteen years later, Darst was awarded damages for the trespass, from which judgment the railroad company appealed. Its principal contention was, that the lapse of time should have been considered as a bar to a recovery by Darst. The court held, however, p. 233:

“No one would contend that, because a trespasser had gone upon the lands of another and occupied them for fifteen years, when an action of trespass was brought he could not recover for such portion of the time as was not barred by the statute. ’ ’

In Chicago & I. R. Co. v. Hopkins, supra, a similar situation arose and the same position was taken by the trespasser as in the case at bar, viz., that the right of action existed only in the owner of the property at the time the trespass was committed. The court, in affirming the judgment in favor of Hopkins, used the following significant language, p. 321:

“The company was a mere intruder. It had no easement or right of way, and the purchaser at the judicial sale was not bound to take notice of a right that had no existence in fact. The constitution itself provides, private property shall not be taken or damaged for public use without just compensation, and the act of the corporation in taking and retaining the land was a continuing trespass.”

In Smith v. Chicago, A. & St. L. R. Co., supra, the owner of certain real estate brought an action of ejectment against the railroad company for occupying lands appropriated to its own use without permission and without having first acquired title thereto by condemnation proceedings. The Supreme Court, in reversing the judgment rendered in the lower tribunal in favor of the railroad company, stated, p. 195:

“Unfortunately for appellees, they have not legally taken appellant’s land. The power to do so has not been exercised by the company. No proceedings were ever commenced against the owner to justify the entry upon his land, building a railroad upon it, and using it for such purpose. We are at a loss to understand why ejectment will not lie in such case, unless it is conceded such corporations have rights and immunities not accorded to the individual man. That they can enter upon and take and keep possession of the land of another, on which their chartered powers have not been exercised, with impunity, is inconceivable to us, and cannot be admitted. Such a claim strikes fatally at the foundation of property rights, leaving them valueless.”

To the same effect are, Burrall v. American Telephone & Telegraph Co. and Carpenter v. Capital Electric Co., supra. We see no distinction between the trespass herein complained of and that of a railroad or telegraph company invading private lands to carry on its business.

We note that plaintiff’s declaration does not limit its right to a recovery to damages accruing within the period of five years next preceding the filing of the suit, but, on the contrary, alleges that during the entire period, i. e., since 1897 or 1898, up to the filing of the suit, plaintiff has been deprived of the full use and enjoyment of the said premises.

In Wheeler v. Sanitary District of Chicago, 270 Ill. 461, where the court was confronted with a situation very much akin to that now before us, the court held that the plea of the statute of limitations was the proper one to meet an allegation of damages accruing more than five years next preceding the filing of the suit, and concluded that a general demurrer to such a plea was properly overruled. So in the case at bar, we are of the opinion that the court properly overruled plaintiff’s demurrers to defendant’s pleas to the first three counts of the declaration. The pleas, however, did not affect plaintiff’s right to a recovery for damages accruing within the statutory period, but precluded only the right to a recovery for damages accruing more than five years before the filing of this suit. The court therefore erred in holding that the statute of limitations was a complete bar to plaintiff’s right to a recovery under the first three counts of the declaration.

In sustaining defendant’s demurrers to the last three counts, the court evidently acted upon the theory that plaintiff’s cause of action was for a permanent trespass on the premises in question. In view of our holding that the trespass is a continuing one, and of the specific allegations that plaintiff, within the statutory period, sustained damages approximating $1,900 in bridging over the said tunnel, it follows that the last three counts of the declaration set up a good cause of action. The mere fact that the said last three counts do not limit plaintiff’s right to a recovery for damages to the statutory period, and seek to recover future damages as well, does not render them obnoxious to a general demurrer. 6 Amer. & Eng. Encyc. Pl. & Pr. pp. 303-305.

The last three counts of the declaration also set forth that plaintiff has procured assignments from its predecessors in title, of their respective rights to a recovery for damages sustained by them as a result of the said trespass, and plaintiff makes the point that, because the said trespass was concealed from it, such damages may now be recovered in this suit by virtue of the said assignments.

The foundation of the right to bring an action of trespass quare clausum fregit is the invasion or the disturbance of the plaintiff’s possession. The action is personal and hence unassignable. Chicago & A. R. Co. v. Maher, 91 Ill. 312; Galt v. Chicago & N. W. Ry. Co., 157 Ill. 125.

We conclude, therefore, that the trespass complained of is a continuing one, for which damages may be recovered by the present owner of the premises; thát notwithstanding defendant’s pleas to the first three counts of the declaration, plaintiff was entitled to a recovery thereunder; that although the last three counts fail to limit plaintiff’s right to recover damages to the proper period and seek to recover future damages as well, yet such impropriety cannot properly be reached by a general demurrer; and that hence the trial court erred in sustaining defendant’s demurrer to the last three counts of the declaration and in entering judgment for the defendant.

Accordingly the judgment will be reversed and the cause remanded.

Reversed and remcmded.


text:
    The People of the State of Illinois, Defendant in Error, v. Tony Augustino, Plaintiff in Error.
    Gen. No. 23,092.
    (Not to be reported in full.)
    • Error to the Criminal Court of Cook county; the Hon. Geobre P. Barrett, Judge, presiding.. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed July 19, 1917.
    Statement of the Case.
    Criminal contempt proceedings by the People of tin State of Illinois, plaintiff, against Tony Augustino, defendant. From a judgment finding him guilty of contempt, defendant brings error.
    The order in question recited, in part, as follows:
    “That one Tony Augustino, in wilful contempt of court, came into the court room of the said Judge George F. Barrett, * * * during the trial of said cause, and then and there approached Daniel Cruice, the attorney for the defendant William Rooney, and spoke to him, and that immediately thereafter he approached and laid his hands upon the shoulder of the said William Rooney and then and there said to William Rooney aforesaid, ‘Hello, Rooney’ and certain other words, and that all of said acts and occurrences above recited occurred in the presence of the entire jury, duly chosen, sworn and selected to try the said cause and while a witness for the People was testifying upon the witness stand. It is the judgment .of the court that the said conduct of the said Tony Augustino was committed for the purpose of influencing the said jury and thereby interfering with the due course of justice in the said court and to impair the respect due to the authority of the said court.
    “Be it therefore remembered, that the said Tony Augustino is adjudged to be guilty and is convicted of a criminal contempt aforesaid, before the said Judge George F. Barrett, and adjudged by the said Judge George F. Barrett to be imprisoned in the county jail of said Cook county for the term of thirty days.”
    Abstract of the Decision.
    ■ 1. Contempt, § 72a

       — what is basis for determination of liability for criminal contempt on review. In order to determine whether the one accused of criminal contempt is guilty as charged, the court, on review, must look solely to the recitals contained in the contempt order itself.
    2. Contempt, § 70* — when order insufficient to sustain charge. An order of contempt held insufficient to sustain the charge of criminal contempt.
    Cruice & Langille, for plaintiff in error; Daniel L. Cruice, of counsel.
    Maclay Hoyne, for defendant in error; George C. Bliss, of counsel.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Celia A. Broad v. Henry A. Broad. Henry A. Broad, Appellee, v. Celia A. Broad and Morris Katz, Appellants.
    Gen. No. 23,367.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed July 19, 1917.
    Rehearing denied July 30, 1917.
    Statement of the Case.
    Bill by Celia A. Broad, complainant, against Henry-A. Broad, defendant, for divorce, alimony, and for relinquishment of Ms dower in property she and her brother, Morris Katz, had bought jointly.
    The bill alleged that during their married life the complainant conducted a rooming-house business in the city of Chicago, from which she derived a large income ; that for upwards of four years _of said time, she not only supported her husband, as 'well as herself, but also paid the expense of his education at a medical college and furnished his office at the completion of his college course; that altogether she advanced to him, and paid on his account, upwards of $10,000; that in addition thereto, she saved a part of said income, the amount of which is not alleged, which she invested with her brother, one Morris Katz, in certain real estate, each taking an undivided one-half interest therein; said real estate is worth $18,000, and is incumbered to the extent of $9,000; that she owes her said brother the sum of $2,200 for moneys which he advanced her on account of the purchase price, taxes, maintenance, etc., of said property; and that he has an equitable lien on her undivided one-half interest therein for the moneys so advanced. Cross-bill by Henry A. Broad, cross complainant, against Celia A. Broad and Morris Katz, cross defendants, alleging that the money with which his wife bought the property was the proceeds derived from a partnership rooming-house business; that the title was taken in the wife’s name and that said Katz was collecting all the rents, pursuant to a conspiracy between such cross defendants, to -defraud complainant, and praying for an accounting, a decree to be owner of an undivided one-fourth interest in the property, the appointment of a receiver of the property, and an injunction against cross defendants to prevent interference with the receiver or disposition of the property. From a decree appointing a receiver, and granting an injunction as prayed, defendants appeal.
    Harold J. Finder, for appellant Celia A. Broad.

      Abstract of the Decision.
    1. Divorce, § 144

       — when court has jurisdiction to adjust property rights. In a suit for divorce, a court of 'chancery has complete jurisdiction to grant all necessary relief, including a division or settlement of the property interest of the parties thereto.
    2. Divorce, § 34* — when cross-bill is germane to original bill. On a bill for divorce, a cross-bill setting up cross complainant’s claim to property held in the wife’s name, held germane to the original bill.
    ■3. Divorce, § 27* — when third person conspiring with wife to defraud husband of property is proper party. Where a bill by a wife for divorce alleged that a cross defendant advanced to the wife, the other cross defendant, certain money on account of the purchase price of property brought by them jointly and was entitled to an equitable lien thereon, and the cross-bill alleged a conspiracy by cross defendants with the intent to defraud cross complainant of his interest in said property, held that the cross defendant other than the wife was a proper party.
    4. Receivers, § 4*- — when appointment of receiver to collect rents of property improper. On a bill by a wife for divorce and cross-bill by the husband against the wife and a third person, charging conspiracy to defraud cross complainant out of his interest in property held in the wife’s name which the wife claimed was bought by cross defendants jointly, and for a receiver to collect the rents from the property, held that as there were no adverse or conflicting claims to the property and no emergency or danger of loss was shown, the appointment of a receiver was improper.
    5. Receiver, § 3* — when showing insufficient to warrant appointment of receiver. On a bill by a wife* for divorce and the relinquishment of the husband’s dower interest in property in her name, and cross-bill by the husband against the wife and a third person, charging conspiracy to defraud cross complainant out of his interest in the property and asking for a receiver to protect his interests, held that as it did not clearly appear from the showing made — which consisted merely of the sworn cross-bill and affidavit denying the allegations therein — that the wife’s interest in the property had been purchased with partnership funds belonging to herself and the husband, a court of chancery would not interfere by appointing a receiver.

      Donald L. Morrill, for appellant Morris Katz.
    Samuel J. Andalman and Leon A. Berezniak, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

6. Receivers, § 2 — when appointment of receiver to protect interest in property is unnecessary. The appointment of a receiver in a suit for a divorce to protect the husband’s interest in property in the wife’s name, and which she owns jointly with a third person, is unnecessary where, upon proper showing, the wife could have been enjoined from disposing or incumbering her interest therein during the pendency of the suit.


author: Mr. Justice Matchett

text:
    Sophie Spiehs, Administratrix, Appellee, v. Samuel Insull, Receiver, Appellant.
    Gen. No. 21,848.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed July 19, 1917.
    Statement of the Case.
    Action by Sophie Spiehs, as administratrix of the estate of Adam Spiehs, deceased, plaintiff, against Samuel Insull, as receiver of Chicago & Oak Park Elevated Railroad Company, defendant, to recover for the death of said Adam Spiehs while employed as gate-man or flagman for defendant. From a judgment for plaintiff on a verdict of a jury, defendant appeals.
    See Spiehs v. Insull, 202 Ill. App. 30.
    Addison L. Gardner and Carroll H. Jones, for appellant.
    Francis J. Woolley, for appellee.

      Abstract of the Decision.
    1. Workmen’s Compensation Act, § 2

       — what is effect of employer electing not to pay compensation on availability of defenses.

    Where an employer has elected not to pay compensation as provided in the Workmen’s Compensation Act of 1911 (J. & A. If 5449 et seq.), the defenses of assumed risk, negligence of a fellow-servant and contributory negligence are unavailable.
    2. Death, § 46* — what evidence is admissible in action for death of employee in absence of eyewitnesses. In an action for the death of a gateman of a railroad company, alleged to have been caused by his being struck, while at his post between two tracks, by one of defendant’s westbound trains and thrown so as to be run over by an eastbound train, held, in the absence of eyewitnesses to the accident, that evidence that deceased was a good workman, in good health, and a man of careful and cautious habits was admissible.
    3. Trial, § 153* — when case should be submitted to jury. Where there is in the record any evidence from which, if it stood alone, the jury, without acting unreasonably in the eye of the law, could find that all the averments of the declaration have been proved, the case should be submitted to the jury.
    4. Death, § 71* — when manner of occurrence of accident is question for jury. In an action for the death of a railroad gate-man by being run over by one of defendant’s trains where it appeared that the platform on which deceased worked was unguarded; that the center of the lever that operated the gates was 4 feet 5% inches from the south rail of the north or eastbound track and 2 feet 8y2 inches from the north rail of the south or westbound track; that a car overhung the rail 1 foot 10% inches; that deceased was a man 68 years of age, in good health, and was careful in his habits, and that deceased was run over by an eastbound train, and there were no eyewitnesses to the accident, evidence held to tend to show that deceased was first struck by a westbound train while at his work and thrown so as to be run over by the eastbound train, and warrant the submission of the question to the jury.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    John Mikusz, by Katerina Mikusz, Defendant in Error, v. Harris Kahn, Morris Kahn and Marcus Kahn, Plaintiffs in Error.
    Gen. No. 22,303.
    Landlord and tenant, § 257

       — when declaration in action for injuries to child of tenant does not state cause of action in tort. In an action by a minor child of the tenant of a portion of a building against the landlords to recover damages for injury to his eye, due to being struck by a protruding bolt in a door on the premises, upon the wind blowing the door shut, a declaration alleging that defendants rented a part of said building to parents of plaintiff, who lived on the premises; that at the time the premises were rented the lock protruded three inches and was in a dangerous condition; that at the time of leasing defendants promised to repair it; that it became the duty of defendants to repair the lock and keep it in a reasonably safe condition, which they failed to do, and that plaintiff was injured by being struck in the eye by the bolt, upon the wind blowing the door shut, held not to state a cause of action in tort.
    Error to the Superior Court of Cook county; the Hon. H. Sterlino Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed.
    Opinion filed July 19, 1917.
    Sigmund Zeisler and Leonard B. Zeisler, for plaintiffs in error.
    S. P. Douthart and Fred C. Smith, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiffs in error, defendants below, have sued out ■ this writ of error to reverse a judgment entered against them by the trial court in an action of trespass on the. ease.

With other points they urge here that the declaration failed to state a cause of action.

In the declaration defendant in error, as a minor by his next friend, alleged that the defendants were the owners of and renting certain premises with a building thereon to tenants; that defendants rented a part of said building to the parents of the plaintiff, who, during all the time, lived with his parents in said building and was of the age of five years; that at the time the premises were rented the door belonging to said premises with the lock, latchet or fastening of said door was weak, worn, broken, out of order and insufficient and that a certain lock, latch or fastening protruded a great distance beyond the edge of said door, which was then and there dangerous; that at the time of the leasing the defendants ‘ ‘ agreed to and with the parents of the plaintiff, and promised then that they would repair, mend and put said door, lock, latch and fastenings in good repair and in safe condition”; that it became and was the duty of the defendants to keep said door and said house in a reasonably safe condition and to have used reasonable care in providing and keeping said lock, latch or fastening upon said door in a reasonably safe condition and not to permit it to be and remain out of condition, and the bolt or a part of said lock, latch or fastening to project a great distance from the edge of said door, to wit, the distance of about three inches; that the defendants did not regard their duty, etc., and that by means and in consequence thereof, while the plaintiff was passing through the door or standing in the sweep of said door, the wind blew against said door so that it swung with great force and violence, and the projecting lock, latch or bolt struck with great force and violence upon and into one of the plaintiff’s eyes, injuring him, etc.

Plaintiffs in error having briefed and argued this case upon the theory that the suit was based upon the agreement of the landlord to repair, the defendant in error replied as follows: “The plaintiffs’ suit is not based upon an agreement to repair and it is not his theory that he has a right to recover upon the breach of ,such a promise. The theory upon which the plaintiff bases his right to recovery is that the premises were let with the nuisance upon it; that it was let in a dangerous condition, which condition the defendants knew, or by the exercise of reasonable care ought to have known, and that the defendants voluntarily set in motion an agency, which, in the ordinary and natural course of events, would expose persons entering through said storm door to personal injury, and this the defendants could have anticipated; and, therefore, they are chargeable with the consequences.”

To support this view of the law the defendant in error cites several authorities of which it is only necessary to say that they are readily distinguishable from the case at bar in that the premises in those cases were knowingly rented by the landlord with a concealed defect or nuisance, or he retained some control of them, or the action was brought by a third party and not by the tenant or a member of his family.

Among the cases cited is Borggard v. Gale, 205 Ill. 512, where the wife of the tenant sued the landlord for injuries sustained by stepping into a hole in the floor of premises rented by her husband for use as a store, and the trial resulted in a judgment for the defendant. She sued out a writ of error and sought to reverse the judgment on account of instructions - given. The trial court instructed the jury that the defendant was not liable to the plaintiff for any injuries which she sustained after her husband took possession of the premises under the terms of the lease, even though the premises were let with a nuisance upon them by means of which the injury was received, unless, through the fraud or concealment of the defendant, the husband was induced to take possession of the premises without knowledge of the existence of such nuisance. The Supreme Court held this instruction proper and affirmed the ¡judgment. The case is an authority against, rather than for, the defendant in error.

Another case relied on by the defendant in error is that of Sontag v. O’Hare, 73 Ill. App. 432, which is distinguished as to the facts in the later case of Cromwell v. Allen, 151 Ill. App. 404, where the tenant undertook to uphold a judgment against the landlord in tort, claiming the landlord had covenanted to make repairs and failed to do so, and relying on the Sontag case, supra. Mir. Justice Duncan delivering the opinion says:

“The theory upon which this case was tried in the lower court is evidently based upon some expressions found in two cases cited by appellant, to wit, Sontag v. O’Hare, 73 Ill. App. 432, and Schwandt v. Metzger Linseed Oil Co., 93 Ill. App. 365. The Sontag case seems to have been contested and decided on a question of evidence. In that case there probably was a clear right of action upon the principle that where a portion of the premises, as a stairway, hall or porch, is retained under control of the landlord by contract or by implication of law, and other specified portions of the premises are rented to different tenants, and the landlord neglects to repair the portions so retained by him, and injury thereby results to a tenant or any of his family, while exercising ordinary care, etc., the landlord is liable. This is surely one of the stated grounds of j ecovery in the Schwandt case. We are left in doubt as to this point in the Sontag case. We do not question a right of action in either case on that principle. The grounds of the liability, if at all, do not rest simply in breach of contract. The authorities cited apparently in support of this doctrine in the Sontag case, it must be noted, do not at all support the doctrine. For that reason we are led to believe that the real ground of recovery in that case was not breach of contract simply.”

The court further says:

“On principle, we would say, that there can be no such liability unless the covenant to repair amounts to a covenant to keep the premises reasonably safe; or unless the contract was made under such circumstances as plainly indicated that such damages were contemplated by the parties at the time of making the contract; or unless there is some duty resting on the landlord to make the repairs not arising from the contract. The weight of the authorities is decidedly against such a recovery, except under such special circumstances above named.”

The facts pleaded in the declaration present none of these circumstances and none in our opinion that will sustain an action in tort. While contrary decisions may be found, yet we think the weight of author-: ity is as stated in Mr. Justice Duncan’s opinion. An analysis of the authorities on the subject may be found in a note to Dustin v. Curtis [74 N. H. 266], 11 L. R. A. (N. S.) 504. We are not aware that the precise point has been decided by our Supreme Court.

As the declaration did not state a cause of action in tort, the judgment should be reversed.

Reversed.


text:
    Ralph Longenecker, Appellee, v. W. Scott Matthews, Appellant.
    Gen. No. 22,912.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and ebbor, § 1751

       — when judgment affirmed. Where the only errors assigned on appeal are matters preserved by a stricken bill of exceptions, the judgment of the trial court will be affirmed.
    Appeal from the Municipal Court of Chicago; the Hon. Chabi.es A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed July 30, 1917.
    Statement of the Case.
    Action by Ralph Longenecker, plaintiff, against W. Scott Matthews, defendant, to recover for services as a broker in effecting the exchange of land of defendant for that of a third person. Judgment by default for $1,000 was entered in plaintiff’s favor. Upon the overruling of his motion to vacate the judgment, defendant appeals.
    Charles E. M. Newton, for appellant; Claude R. Church, of counsel.
    Thomas W. Prindeville, for appellee; Thomas J. O’Hare, of counsel.

      See Illinois Notes Digest, Vais. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.