text:
    Sarah R. Dale, Defendant in Error, v. The Modern Woodmen of America, Plaintiff in Error.
    1. Sebvice of pbocess—when upon fraternal benefit society sufficient. The service in this case was upon The Modern Woodmen of America, the principal office of which was at the time in Rock Island county, the suit being instituted in Gallatin county, which was the residence of the plaintiff. Held, that the following return was prima facie valid.
    “State of Illinois, Gallatin county—ss.
    I have duly served the within summons upon the within named defendant, the Modern Woodmen of America, by delivering a true copy thereof to William Adams, Venerable Consul and Joseph Davis, Secretary of a branch Order of the said defendant No. 7591, located in the village of New Haven, Gallatin county, Illinois, each of them are agents of said defendant company. The president, clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor and station agent of said company not found in my county.
    This 19th day of March, 1906.
    V. A. Mills, Sheriff.”
    Assumpsit. Error to the Circuit Court of Gallatin county; the Hon. Jacob R. Cbeibhtojst, Judge, presiding.
    Heard in this court at the February term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Truman Plantz and William H. Hartzell, for plaintiff in error.
    W. E. MgKernon, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was an action brought against plaintiff in error, a fraternal benefit society, incorporated under the laws of Illinois, by defendant in error, to recover $1,000 claimed to be due her as the beneficiary of a certain policy or benefit certificate, issued by said society upon the life of her son, Charles A. Dale, who is said to have died on September 5, 1905.

The record discloses that plaintiff in error did not appear in the court below but that default was entered against it, a jury sworn to try the case, a verdict rendered against it for $1,000, the amount of the certificate, and judgment entered for that amount and the costs of suit.

The only question raised by plaintiff in error concerns the jurisdiction of the court below. It asserts there was no legal service of process upon it in this case and that consequently the court below had no jurisdiction to try the cause. The defendant in error resides in Gallatin county, Illinois, and this suit was commenced in that county. The summons was directed to the sheriff of Gallatin county and the return of the sheriff upon it was as follows:

“State oe Illinois, Gallatin county—ss.

I have duly served the within summons upon the within named defendant, the Modem Woodmen of America, by delivering a true copy thereof to William Adams, Venerable Consul, and Joseph Davis, Secretary of a Branch Order of the said defendant No. 7591, located in the village of New Haven, Gallatin county, Illinois, each of them are agents of said defendant company. The president, clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor and station agent of said company not found in my county.

This 19th day of March, 1906.

V. A. Mills, sheriff.”

Defendant in error claims the service is good by virtue of paragraphs 3 and 5 of the Practice Act, chapter 110 Revised Statutes (Hurd 1905)-.

This suit was brought and the briefs filed before the Practice Act of 1907 went into effect and consequently the references are to the sections of that act as they appeared in the old statute. Paragraph 3 is as follows: “The courts of record of the county wherein the plaintiff or complainant may reside shall have jurisdiction of all actions hereafter to be commenced by any individual against any insurance company, either incorporated by any laws of this state or doing-business in this state. And all process issued in any cause commenced in the county wherein the plaintiff may reside wherein an individual may be plaintiff or complainant and any such company defendant may be directed to any county of this state for service and return.”

Paragraph five of the same chapter uses the following language: “An incorporated company may be served with process by leaving a copy thereof with its president if he can be found in the county in which the suit is brought, if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county, and in case the proper officer shall make return upon such process that he cannot in his county find any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any other agent of said company, then such company may be notified by publication and mail in like manner and with like effect, as is provided in section twelve (12) and thirteen (13) of an act entitled ‘An act to regulate the practice in courts of chancery, ’ approved March 15, 1872.”

Defendant in error claims that by virtue of said paragraph three she had a right to commence her suit in Gallatin county where she lived and have the summons issued to the sheriff of that county; that as the president of said benefit society could not be found in that county, the sheriff had a right, by virtue of said paragraph five, to serve any agent of said society who could be found in the county, and by so doing gave jurisdiction to the Circuit Court of that county.

Plaintiff in error contests vigorously the position of defendant in error, - insisting that the principal office of appellant is in the city of Bock Island, in the county of Bock Island, in this state, where it has a building called the “Head Office Building” and that it was the duty of defendant in error to have process issued to the county of Bock Island and service had upon the president of the society if he could be found in that county, and if not upon one of the other persons upon whom service might be had in such case, as provided in said paragraph five.

It might be said there is no direct proof in the record before us that the head office of plaintiff in error is in Bock Island, nor is it so charged in the declaration. The declaration however contains statements from which the inference may be drawn that the head office is located as above stated, and we are content to treat the case as though that fact were distinctly alleged and proven. Section 1 of the Act of 1905 (paragraph 3 of the Practice Act) is an amendment of an act approved April 3, 1873, the only change in the latter act being that the words “courts of record” have been substituted for the words “Circuit Court” and the words “insurance company” for the words “fire or life insurance company.”

Prior to the act of 1873 there appears to have been some difficulty of obtaining service upon insurance companies. Two cases involving the question, viz.: Stephenson Ins. Co. v. Dunn, 45 Ill. 211, and Winnesheik Ins. Co. v. Holzgrafe, 46 Ill. 422, arose, in which it was held that where an action is commenced in the county where the plaintiff or complainant resides against a corporation of this state, having its principal office in another county, jurisdicton could not be obtained by sending summons to the county where the principal office was located and obtaining service there upon the president of the company.

In Ry. Conductors Benefit Assn. v. Robinson, 147 Ill. 138, it is said, in speaking of the two cases above referred to: “It is a matter of history that the statute in relation to suits against insurance companies now in force, was passed shortly after these two decisions were made and it is highly probable that it was passed in view of these decisions and for the purpose of remedying the serious inconvenience to parties desiring to bring suits against insurance companies arising from the provisions of the statute as thus construed. ’ ’ This case held that mutual benefit associations similar to the one in question, were in fact life insurance companies within the meaning of paragraph 3 of the Practice Act above referred to. While the act of 1873 and the amendatory act of 1895 gave the plaintiff in suits against insurance companies incorporated and doing business in this state, the right to have process directed to any county in this state for service and obviated difficulties in that direction which had existed before that time, yet they did not conflict with paragraph five providing for service of process upon incorporated companies, above referred to. In our opinion the latter paragraph supplements the former and the two must be construed together. If, for instance, a summons should be sent to the county in which the head office of an insurance company was located in this state and the president could not be found in the county, no doubt service could be had upon any other person connected with the company and included in the classes named in paragraph five. If that were not so and it is necessary to send process in such cases for service to the county where the home office is located as claimed by plaintiff in error, the means of obtaining service upon insurance companies would be more restricted than before the passage of the act, as no service could be had unless the president of the company could be found in that county.

Paragraph three exhibits no intention to restrict the powers conveyed by paragraph five of the Practice Act in the matter of the service of process upon incorporated companies. The return of the sheriff in this ease shows that the president of plaintiff in error could not be found in Gallatin county and it was therefore proper for bim to serve the process upon any other person connected with the company of the classes named in said paragraph five. The return of the sheriff shows that he served the process upon “William Adams, Venerable Consul, and Joseph Davis, Secretary of a branch order of the said defendant No. 7591 and located in the village of New Haven, Gallatin county, each of them are agents of said defendant company.”

Plaintiff in error contends that this return could in no event be sufficient for the reason that it is the local lodge which is the agent of the supreme lodge and not its officers. Defendant in error disputes this position and asserts effectively that both the local lodge and its officers are the agents of the supreme lodge and cites Pioneer Reserve Assn. v. Jones, 111 Ill. App. 156, in support of its position. But waiving this question, we are of opinion the statement that the persons named were “agents of said defendant company” was sufficient to bring them within one of the classes named by the statute upon whom service could be had and that the other words, describing them as “Venerable Consul and Secretary,” etc., were mere matters of surplusage so far as this return is concerned.

Holding the views of the law which we have above expressed, we are of opinion the court below committed no error in sustaining the service of the sheriff and retaining jurisdiction of the case. When briefs in this case were filed, the record of the judgment of the court below failed to show any default entered against plaintiff in error and its counsel argue questions based upon that omission. Since that time however, defendant in error, by leave of court, has filed a supplemental record showing the entry of default in the court below, so that question is not now before us for consideration.

The judgment of the court below will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Osro Shirk, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    1. Masteb and servant—when doctrine of assumed risk does not apply. A servant injured while performing work under the specific orders of his master is not subject to the doctrine of assumed risk.
    Action in case for personal injuries. Appeal from the Circuit Court of Mhssac county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    C. L. Y. Mulkey, for appellant; Homier T. Dick, of counsel.
    Courtney & Helm:, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee was injured while in the employ of appellant as a member of a bridge crew, loading piling on a flat car on appellant’s tracks, just south of St. Elmo, in Payette county. The piling to be loaded consisted of some twelve or more poles which were lying beside the track parallel with the flat car and were elevated over skids extended from the deck of the car to the edge of the embankment, which was about eighteen feet high. In raising the piling to the car an inch manilla rope, about 140 feet long, called the main line, was used. One end of the line was tied to a stake located on the east side of and about half way between the ends of the car. The other end of the line was then passed around the pole about to be raised and brought back to and passed over the wheel of a snatch block, .fastened to the stake and then carried to a locomotive south of but not coupled to the car. At a signal given by the conductor, the locomotive would be moved forward by the engineer, the pole drawn up the dump and over the skids onto the car, where it would be received and placed in proper position by members of the crew, stationed at each end of the car for that purpose. In raising a pole the main line was as near to the point of balance as possible, but as one end of the pole was larger than the other, a smaller rope, known as the tag line, was passed around the larger end of the pole to assist in keeping it straight. As the pole approached the car, the loose end of the tag, passing through the hands of the men handling it, was permitted to fall in a coil upon the deck of the car. There was no great strain upon the tag line as it was used more by way of precaution than as an assistance in drawing up the pole. Appellee and another employe named Henderson, were directed to take charge of the tag line. As the last pole was being loaded and had nearly reached the car, the main line broke, throwing the weight on the tag line, the loose end of which was coiled almost between and slightly to the rear of the two men handling it. As the pole slipped back the tag line ran out and while it was so doing, appellee’s left foot and leg became entangled in the line and he was pulled off the car, carried down the dump in front of him and received injuries for which he brought this suit and recovered judgment.

There were three counts to the declaration. The first two were based upon the theory that appellee was inexperienced and was injured in consequence of and while obeying the negligent orders of appellant’s foreman; and the third upon the theory that the injury resulted from negligence on the part of the company in knowingly furnishing unsafe and defective appliances for the work required to be done.

The evidence showed that the main line was worn and defective and had broken before that morning but did not hurt any one; that it broke close to the engine, and as there was enough to answer the purpose for which it was being used without the broken part, the short end was discarded and the remaining portion used to carry on the work. The work was proceeding rapidly as it was necessary for the working-party to get out of the way of a passenger train then nearly due. There was evidence that the main rope was too small to stand the strain put upon it when the engine moved rapidly.

The principal contention developed by the briefs of the respective parties, is whether the bridge crew was working under the direction of W. P. Lyansapp, a bridge inspector of the company, or F. M. Scurlock, the foreman of the crew. When the rope broke in the morning one of the crew, Sam Vick, said to Mr. Lyansapp, “Yon had better take that old line off and throw it in the ditch and use the new line. That will break some man’s neck if you don’t be careful.” To which Lyansapp replied, “I guess that line is strong enough, we haven’t got time to take it off. If you fool around very long, we will have to go back to St. Elmo to let the passenger train by.” Vick also testified, “Lyansapp said if they would handle the engine easily it would hold all right, not jerk the engine any.” Scurlock testified he was a stranger on the road and Lyansapp had gone along with him to locate the bridges for him to help him get straightened out on the work; that he went right along after the accident; that he was on the work train the next day unloading piling, etc.; that he was with the crew part of the time and part of the time he was not. While the piling was being loaded, Lyansapp was sitting or standing on a box car next to the flat car and the foreman was on the ground helping at the work. Appellee testified that Lyansapp told him to take hold of the line and also to keep his feet off the line; that he said, “come ahead, get busy;” that he was hurrying the crew all the time; that “he was keeping us right to that line, both of us, saying, stay with her boys, hold her,” and the witness Vick testified that Lyansapp said to appellee, “You fellows get hold of that line and help the boys keep that piling- straight on the skids”; that Mr. Lyansapp was hurrying the boys to get the piling on there. Witness Groves testified that Lyansapp was the boss to the best of his knowledge; that they were being hurried because it was about train time and Mr. Lyansapp wanted to get out of the way of the passenger; that Mr. Lyansapp said “hurry up, boys, it is pretty near train time. We want to get done or we have to go back to St. Elmo.”

Appellee introduced evidence to the effect that Scurlock had been appointed boss of the crew. Seurlock testified not only that Lyansapp went with him to locate the bridges, but also that he had a list of bridges and a list of material to make repairs and assisted in loading and unloading to the best advantage. The real facts as they appear to us from the testimony of all of the witnesses taken together, are that Scurlock was the nominal boss of the crew, but that he was a new man; that Lyansapp had gone out with him to show him where work was needed or for some other purpose and took charge of the work, giving orders both to Scurlock and the crew; that all the directions concerning the loading of the piling and the hurrying of the work were given by Lyansapp and obeyed without question by all engaged in the work. He appears to have actually represented appellant in directing the work in question, and for his actions and directions appellant must be held responsible. Notwithstanding the fact that Lyansapp knew of the defective and insecure condition of the main line, he continued to use it even after he was warned of the danger of so doing. It is insisted by appellant that appellee knew of the danger of using the rope and that he assumed the risk of continuing at work while that rope was being used. It was however shown that appellee was inexperienced in the kind of work in which he was engaged at the time of the injury, and that Lyansapp, when told of the danger of using it, and warned that some one might be injured by it replied, “I guess that line is strong enough, we have not got time to take it off hardly.” It also appeared that Lyansapp ordered appellee to do the work in which he was engaged at the time he was injured and that his companions were told by Lyansapp to “hold it and stay with it boys;” also, “Go ahead, go it, be quick, get busy here, be quick about it.”

Appellee, at the time he was injured, appears to have been acting under the direction of Lyansapp, who represented appellant as vice principal or agent in charge of the work being done, and that portion of the evidence concerning which there is no controversy shows a condition of affairs under which the doctrine of assumed risk on the part of appellee, has no application. C., R. I. & P. R. R. Co. v. Rathneau, 225 Ill. 278; Springfield Boiler & Mfg. Co. v. Parks, 222 Ill. 355; North Chicago St. R. R. Co. v. Aufmann, 221 id. 614; Hansell-Elcock Foundry Co. v. Clark, 214 id. 399; City of La Salle v. Kostka, 190 id. 130.

As to the question of ordinary care on the part of appellee there was evidence to warrant the jury in finding in his favor.

The only reason urged by appellant for reversing the judgment besides those which are based entirely upon the facts, is that the court erred in the matter of instructions, and the principal objection to them is that the court refused certain instructions and modified others offered by appellant in support of its theory of assumed risk. Entertaining the views of the law as applied to this case which we have above expressed, we are of opinion the court committed no error in this regard, and that the instructions as a whole presented the law of the case fairly to the jury.

The judgment of the court below will be affirmed.

Affirmed.


text:
    Mt. Pleasant Telephone Company, Plaintiff in Error, v. Ohio and Mississippi Valley Telephone Company, Defendant in Error.
    1. Fkanchises—who cannot raise question of failure to observe provisions of ordinance. Whether a telephone company has strictly observed all the conditions of a franchise ordinance is a question which can only be raised by the municipality granting the same.
    Bill in chancery. Error to the Circuit Court of Union county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Taylor Dodd, for plaintiff in error.
    W. A. Schwartz, J. S. Kendall and D. W. Karraker, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Plaintiff in error filed its bill in chancery in the Circuit Court of Union county, alleging it was engaged in the general telephone business and held a franchise from the city of Anna for said purpose, and that it had erected its poles and strung part of its wires on the southerly side of a certain alley, in said city; that defendant in error, a like corporation, holding a franchise from said city for the same purpose, was then engaged in erecting poles to transact its telephone business on the same side of said alley, upon which the poles of plaintiff in error were located and was threatening to string its wires thereon, in such manner as to interfere seriously with and obstruct the business of plaintiff in error, and to render its lines practically useless. The bill prayed for an injunction to restrain defendant in error from erecting poles and stringing wires at said place in the manner contemplated, and thereby interfering with and hindering its business. A temporary injunction was issued by order of the master in chancery, as prayed for in the bill. Afterwards defendant in error answered, admitted it was engaged, prior to the service of the injunction writ, in setting poles and stringing wires on the southerly side of the alley in question, and that near the easterly end of said alley on .the southerly side thereof it passed three poles, maintained by plaintiff in error on the same side of the alley, but it expressly denied that it in any manner interfered with the poles or wires of plaintiff in error, or with the operation of its telephone business. Said answer further stated that should defendant in error continue its system of erecting its poles, and stringing its wires throughout said alley, using the southerly side thereof throughout the entire length of said alley, such action would not in any way interfere with plaintiff in error’s poles, wires or business.

The cause was afterwards heard on bill, answer, replication and evidence introduced in open court, and a decree entered directing that the bill be dismissed and the injunction dissolved.

It appears from the evidence that the alley in question was eighteen feet wide and extended east and west, crossing Franklin street at right angles in the city of Anna, and that both the parties to this suit desired to use it for the purpose of erecting telephone poles and stringing wires. This alley ended some 400 feet east of Franklin street but continued west for some distance. Plaintiff in error entered the alley from the east and set one pole at the end of it on the north side. It then crossed over and set three poles on the south side, after which it crossed to the north side at the intersection of Franklin street, thence proceeding across Franklin street and along the north side of the alley.

Defendant in error in erecting its line set its poles along the south side of the alley throughout its entire length, being about one-fourth of a mile. The point in controversy is that portion of the alley east of Franklin street in which defendant in error erected its poles, five in number on the south side thereof, where plaintiff in error had already erected three of its poles.

It is contended by plaintiff in error that defendant in error at the time the bill was filed had not complied with the terms of its franchise in regard to the alley and was setting its poles therein without any permission from the city of Anna to so place them.

The brief of plaintiff in error fails to state wherein defendant in error failed to comply with its franchise but we infer from statements made in the brief of defendant in error and from an examination of the evidence, it is claimed that defendant in error failed to procure directions from the street committee of the city concerning the location of its poles and wires. The franchise of defendant in error required its “poles and wires to be of such dimensions and placed at such places as directed by the street committee of said city.”

The evidence failed to show that the street committee of the city had given specific directions to defendant in error where to place its poles- in that portion of the alley lying east of Franklin street but it did appear that the mayor and chairman of the street committee had been consulted and had approved of the general location of the line and that the mayor had told an employe of defendant in error, his company could put a lead along the alley in question east of Franklin street and had gone into the alley with him, and pointed out the place where one of the poles should be located on the south side of the alley.

In Chicago Tel. Co. v. Northwestern Tel. Co., 100 Ill. App. 57 (affirmed, 199 Ill. 324), where appellant sought to restrain appellee from constructing its telephone line in the city of Aurora in the manner proposed by it, upon the ground that such construction would interfere with the telephone system of appellant in that city, it appeared that the ordinance relied upon by appellee, provided that before opening any street, alley, avenue or other public way for the purpose of establishing its telephone system, it should obtain a permit in writing from the committee on streets and alleys to do so; that appellee placed its poles on various streets and alleys, which were not covered by the written permit of the committee, but that the work was done under the direction of the city electrician and the committee. It was there held that the question of a written permit for all the locations was a matter which concerned only the city and that it alone could take advantage of the failure of appellee to observe all the conditions of the contract. Upon the same theory as that advanced in the above case, we are of opinion that the question whether defendant in error had strictly observed all the conditions of the ordinance in locating its poles, concerned only the city, and that plaintiff in error could not take advantage in this suit of any informality of that kind, especially as defendant in error appears to have acted in entire good faith in the matter.

The ordinance granting the franchise to plaintiff in error to erect and maintain its telephone system in said city provided, “the rights and privileges herein granted shall not at any time.in the future prevent any other person, persons or corporations from erecting and maintaining a like or similar enterprise in said city.”

Plaintiff in error asserts that it is not seeking to prevent defendant in error from occupying the alley in question at all, but to prevent the erection of a parallel line directly under its own line.

The theory of plaintiff in error is that defendant in error, by so running its line along the portion of the alley in controversy, would seriously interfere with and obstruct the business of plaintiff in error to such an extent as to render its line practically useless. The question whether the proposed establishment of defendant in error’s wires along the south side of the alley, would obstruct or interfere with the proper operation of the wires of plaintiff in error or their maintenance at that point, was a controverted question, upon which evidence was heard on both sides. The court below found in favor of defendant in error and no reason appears from the record why that finding should be disturbed.

The decree of the court below will accordingly be affirmed.

Affirmed.


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    Henry V. Sloan, Appellee, v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.
    1. Wage claim—when notice given under act entitled “an act to protect contractors, sub-contractors and laborers in their claims against railroad companies or corporations, contractors or sub-contractors,” insufficient. A notice given under the above act is insufficient and will not avail where served after the institution of the suit in which it is offered.
    2. Wage claim—who not liable for. The doctrine that a party who stands by and sees work done of which he is ultimately to have the benefit, without making objection to the person doing the same, is liable to such person for the work done, has no application where the entire work is contracted to and placed under the control of another who has power to employ whom he pleases.
    3. Instructions—what does not cure error. A misstatement of the law contained in one instruction is not cured by a correct statement of the law in another instruction.
    Action commenced before justice of the peace. Appeal from the County Court of Wabash county; the Hon. J. A. Lapp, Judge, presiding.
    Heard in this court at the February term, 1907.
    Reversed.
    Opinion filed March 18, 1908.
    C. S. Conger and P. J. Kolb, for appellant.
    No appearance by appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On February 28, 1906, appellee brought suit before a justice of the peace of Wabash county against appellant, and the Widell-Finley Company for wages claimed to be due him, amounting to $11.80. On March 10th, judgment by default was taken against appellant for the amount of the claim and the cause continued as to the Widell-Finley Co.

Appellant appealed the case to the County Court where a trial before a jury resulted in a verdict and judgment against appellant for the same amount. Upon the trial in the County Court appellant introduced no evidence but it appeared from the testimony of appellee and a witness introduced by him, that the Widell-Finley Co. was engaged in constructing a certain concrete arch to take the place of old trestle work on the right of way of appellant; that appellee was employed by the Widell-Finley Co. through its foreman, Mr. Barnum, to assist in the construction of the concrete work; that appellee was told he was working for the Widell-Finley Co. and “never understood” that he was employed by appellant; that the .Widell-Finley Co. paid him his wages for all the time he was employed except six days, for which time it had failed to pay him and that the suit is for such unpaid wages.

Upon the trial plaintiff offered in evidence a notice dated March 6, 1906, notifying appellant that he had been employed by the Widell-Finley Co. as a laborer for appellant and that he should hold all the property of appellant to secure his pay. This notice had been filed for record in the office of the recorder of Wabash county and was intended as a notice of lien to appellant, under sections 2, 3, 4 and 5 of “an act to protect contractors, sub-contractors and laborers in their claims against railroad companies or corporations, contractors or sub-contractors” in force July 1, 1872. Rev. Stat. chap. 82, secs. 8, 9, 10 and 11, Hurd 1905.

The court below properly refused to admit this notice in evidence for the reason that the same was not attempted to be given until some days after the suit had been brought. Appellee however appears to have claimed the right to recover on the ground that while he was employed by the Widell-Finley Go., yet as that company was engaged in constructing the concrete arch for appellant, the latter ultimately received the benefit of his labor. Upon this theory appellee offered and the court gave the following instruction: “The court instructs the jury that if you believe from the preponderance of the testimony that the said Henry V. Sloan performed labor for the Widell-Finley Co., for the use of the C., C., C. & St. L. Ry. Co. and that they received 'the benefits of his labor, you should find for the plaintiff and your verdict should be rendered accordingly in such amount as the testimony shows is justly due him.”

What the contractual relations were between the Widell-Finley Co. and appellant is not shown by the meager evidence in this case. It does appear however” that the Widell-Finley Co. was engaged in constructing said concrete arch and that it employed the men at work upon the same and undertook to pay them for their services and was apparently an independent contractor. The doctrine that a party who stands by and sees work done of which he is ultimately to have the benefit, without making objection to the person doing the same, is liable to such person for the work done, has no application where the entire work is contracted to and placed under the control of another who has power to employ whom he pleases. Campbell v. Day, 90 Ill. 363.

The above instruction which was the only one given for appellee did not state the law applicable to this case correctly and was improperly given. It is true the court gave an instruction on behalf of appellant, which correctly stated the law applicable to the case, but this did not cure the error in appellee’s instruction as, under such circumstances, the jury should not be expected to know which instruction stated the true rule to be followed.

The judgment of the court below will be reversed, and as under the undisputed facts in the case, no recovery could be had, the cause will not be remanded.

Reversed.

Finding’ of ultimate facts, to be incorporated in the judgment.

We find that the services for which appellee seeks to recover in this case were performed for the WidellFinley Co., which was an independent contractor for the work upon which appellee was employed, and that there was no contract of ‘ employment, either express or implied, between appellant and appellee.


text:
    William McNeilly, Appellee, v. N. O. Nelson Manufacturing Company, Appellant.
    1. Contbibotoby negmgenoe—ivlien servant guilty of. A servant is guilty of contributory negligence if he disregards safe means of doing the work at which he is engaged.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Bubboughs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed with finding of fact.
    Opinion filed March 18, 1908.
    C. H. Burton, for appellant.
    Brown & Geers, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee recovered a judgment of $1,300 against appellant in the Circuit Court of Madison county for personal injuries incurred by him while in appellant’s employ, on February 1, 1905. The facts on which appellee based his right to recover, as disclosed by the record, are substantially as follows:

Appellant has for some years been engaged in operating a manufacturing plant at Le Claire, a suburb of Edwardsville, Illinois, where appellee had been employed for twelve or thirteen years as a woodworker. For the last three years prior to his injury he had worked in what was known as the cabinet mill where he was accustomed to run several different machines, used for preparing material and manufacturing articles out of wood, among which was a pony planer which he was operating at the time he was injured. This pony planer was a machine for planing smooth boards, was about three feet wide and had a table or feed bed through the center. Across the feed bed was a cylinder on which were fixed three planing knives some thirty inches long and when the machine was running the cylinder revolved at the rate of 3,600 revolutions a minute. In front of the knives and about four inches from them were in-feed rollers between which the lumber passed on its way over the feed bed to the knives, where it was cut and planed down. The feed rollers were about four inches in diameter and the upper one was corrugated so as to grip the lumber and push it towards the knives. Between these rollers and the knives was a straight edged piece of iron or steel which pressed down on the lumber close to and parallel with the knives, called a chip breaker, the office of which was to prevent the lumber from splintering as it was struck and cut by the knives. After the lumber passed between these rollers and the knives, it again passed between two rollers called the out-feed rollers which continued it in motion until it was carried entirely through the machine. The boards were inserted in the machine from the front by hand. The feed table over which the lumber passed could be easily lowered or raised to accommodate the planer to the size of the timber to be planed, by turning a wheel at the left of the machine. It had a guage and could be set to plane timber from a quarter of an inch or less to six inches in thickness. On the left of the planer also and within reach of the operator was a lever, by moving which he could stop or start the feed rollers as desired. At the right of the machine within easy reach was a lever, which came up through the .floor below, called a shifter, by moving which the belt which ran the planer could be shifted from one pulley to another so as to start or stop the machine. This lever came up through a narrow slit in the floor and, it was claimed by appellee, was out of repair so that when set to shift the belt on a tight pulley and put the machine in motion, it would fly back to its former position, thus stopping the machine. This defect in the lever made it necessary for the operator to place a wedge behind it in the slit to prevent it from flying back. When the machine was started the operator would place the wedge in the slit in the floor behind the shifter and when it was desired to stop the machine the operator would have to first take out the wedge and then push the shifter over. Over the top of the knives was a metal hood connecting above with a funnel through which a blast was forced, intended to carry away the shavings, chips and dust caused by the operation of the machine. It is claimed that when the blower was in proper repair it would carry up a knot, weighing four or five ounces but that at the time of the injury it was out of repair.

On the day of the injuiy appellee was running short boards through the planer. He had the knives and rollers set by adjusting the feed bed to plane them down to about % of an inch. He pulled the shifting-lever over so as to throw the belt on the tight pulley and wedged it so that it could not go back. While he was at work a knot from one of the boards dropped in behind the front or in-feed rollers and he reached between .them with his left hand to remove it. His hand was at once caught by the rollers, the upper one of which was corrugated, and pulled or fed into the machine, under the chip breaker, and mashed and bruised so as seriously to and permanently injure it before the machine could be stopped by another employe who came to his assistance. He says he tried to stop the machine himself by throwing the shifter over but could not do so on account of the wedge behind it.

Appellee asserts in his declaration that appellant was guilty of negligence in suffering the shifter and the blower to become and remain out of order; that he notified the foreman the machine was out of repair and the latter promised to repair the same but failed to do so, and that within twenty-four hours after such notice appellee was injured. The theory of appellee is that had the blower been in repair the knot which he was striving to reach when he was injured would not have dropped behind the rollers but would have been carried away, and had the shifting lever been in order so that it was not required to be wedged he could have thrown it back with his right hand after his left was caught between the rollers.

Appellant urges a number of reasons why the judgment should not be permitted to stand, several of which appear to us to be well founded. As, however, the judgment must be reversed upon the facts it is not necessary for fis to consider any other reason for reversal than that the verdict was not supported by the evidence. Appellee claims and cites authorities to sustain his position that it is the duty of the master to use reasonable care to provide reasonably safe appliances for the use of his servants; that he should use reasonable care to provide a reasonably safe place for his servants to work; that after notice to the master of a defect in the machinery and a promise to repair, the burden of the added risk from the defect, shifts to and remains with the master for a reasonable length of time, required to make the repairs. The fault of appellee’s position is that the evidence did not show he was injured by reason of defective machinery or an unsafe place in which to work. Appellee’s natural and proper place at the machine was entirely safe and so long as he operated it with ordinary care for his own safety, he was not subject to injury.

It appeared from the evidence that after the knot fell in behind the rollers there were four ways open and known to appellee, by which he could have removed it with safety to himself. One was to stop the machine entirely by using the shift lever at the right. Another to stop the feed rollers by moving the lever on the left side of the machine. Still another to remove the knot with a stick or piece of wood which he could have obtained a short distance away, and the last, to have lowered the bed of the machine so as to separate the feed rollers six inches, by turning the wheel at the left. Disregarding these safe means however, appellee recklessly put his fingers between the rollers to remove the knot and his hand was caught and injured. Appellee was entirely familiar with the machine and its dangers and testified that he knew if his hand was thick enough to fill the place between the rollers, it would be fed into the machine and also that he knew if his-hand was caught in the rollers, it would get hurt. But even if he had not been as familiar with the machine as he was, ordinary prudence must have suggested that it would be dangerous for him to attempt to insert his fingers between the two moving rollers, only some three-fourths of an inch apart, with a cylinder behind them bearing knives and revolving 3,600 times a minute. Appellee’s own testimony shows that the act was done with such reckless disregard of care and caution for his- own safety that he should not be permitted to recover damages from appellant for the injuries' sustained.

The judgment of the court below will be reversed.

Reversed.

Finding of facts, to be incorporated in the judgment of the court: We find that at the time of and just prior to the occurrence of the injury complained of, appellee was not in the exercise of ordinary care for his own safety; and that his injuries were brought about by his own negligence.


text:
    Ira Summerville et al., Appellants, v. Martin Klein, Appellee.
    1. Instructions—when should he accurate. The instructions should he particularly accurate where the case is close upon the facts.
    2. Instructions—rules of law governing. An instruction should be refused which is indefinite in its terms and which does not announce a principle of law applicable to the facts.
    3. Instructions—particular phrase condemned. It is rarely proper for the court to instruct the jury as to the “state of the proof” of any portion of a case.
    4. Instructions—upon what must he predicated. Instructions are improper which are not predicated upon any evidence in the cause.
    5. Contracts—when cannot he varied hy parol. An unambiguous contract cannot be altered, varied, modified or explained by parol.
    Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    Albert D. Rodenberg and Charles H. Holt, for appellant.
    W. F. Bundy and Frank F. Noleman, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit in assumpsit by appellants to recover $250 claimed to be due them as commission, under a contract with appellee, giving them the sale of his farm.

The declaration contained a special count upon the contract and the common counts. Appellee filed a plea of the general issue and two special pleas, one alleging that at the time of making the agreement for the sale of the premises in question, it was expressly stipulated that appellants would not sell them to Louis Klein, appellee’s brother, and that the sale for which appellants were claiming commissions had been made to said Louis Klein; and the other that appellee did not make and deliver the contract in writing declared upon, this plea being under oath. The jury gave a verdict in favor of appellee and judgment was rendered against appellants for costs.

On April 17, 1906, as it appeared from the proofs, appellants who are father and son, were engaged in the real estate business in Centralia, Illinois, doing business as the Summerville Realty Co. Appellee who also resided in Centralia, owned a farm of 160 acres some four or five miles from that place. He was a Frenchman with an imperfect knowledge of the English language. Appellants testified that on the day named, appellee came to their office and in their presence signed an agreement, employing them to sell his farm. The agreement claimed to have been signed by appellee, was introduced in evidence and consisted of a printed card, a portion of which contained blanks which were filled in with writing. The first part of the card, contained a description of the premises, with information concerning the house, barn, well, fruit trees, etc., and stated the list price at $5,000. The latter portion of the card was as follows: “I hereby list for sale with the Summerville Realty Co. authorizing them to negotiate a sale and sell the above described property and in consideration of their listing, I agree that they shall be the sole salesmen of the same. I agree to furnish a sufficient and properly executed warranty deed, with abstract to date of sale showing good title. In consideration of their services and advertising, I agree that if a sale or transfer of the property is effected, directly or indirectly through their efforts, to pay them a commission of five per cent, of the price for which it may be sold. April 17, 1906.”

Appellants further testify that after the son had made out and appellee had signed the agreement, he started to make a copy of the same, but that after the same was partially filled out, appellee said it was not necessary, and the copy was not completed. The father testified that when appellee left the office, he took the partially filled cop3 with him. Appellee and his daughter testified that the contract was not entered into at appellants’ office, but that the son came to their house about ten o’clock on the morning of the day named, and in their presence made out the contract; that the son misrepresented it to appellee, telling him it was only a description of the property and furnished appellee what he represented to be a copy of the paper appellee had signed; that the purported copy contained that portion of the contract which related to the price and description of the premises, while that part listing the farm and agreeing to pay commission, which is above set forth in full, was scratched out. The copy was produced by appellee on the trial and it appeared that the latter portion was marked out with different ink from that used in writing in the blanks in the descriptive part.

Appellee testified that he told the son and it was agreed betwen them at the time, that appellants should not sell the farm to Louis Klein, appellee’s brother, and that the son said at that time he would have a buyer down in two or three days. Appellee further testified that he had never been in appellants’ office and did not know where it was.

In November, 1905, appellee had sold an option for the coal underlying the premises to another person and while this was known to appellants by hearsay, appellee said he never mentioned it at the time the contract was made nor was that fact mentioned in the contract. Appellants on May 15, 1906, made a contract in writing with Louis Klein for the sale of the premises, for the sum of $5,000, upon the delivery of a warranty deed properly and sufficiently executed, with an abstract to date showing good title. It appeared from the evidence of the son, Ira Summerville, that while Louis Klein was to pay $5,000 cash for the premises, appellants were to divide their commission with him; that they were to give him $100 so that the place would only cost Louis Klein in fact $4,900. After making the contract with Louis Klein, appellants applied to appellee for a deed on several occasions, but appellee on each occasion refused to execute one. The first time appellee was requested to make a deed he gave as a reason for refusing, that he did not want to sell his farm, that it was getting late and he had concluded to sell his coal. Upon the second occasion, a few days later, he refused because the land was to be conveyed to his brother Louis Klein, and on the third occasion in refusing to make the deed, he said his land had coal under it, that the land in the vicinity was going up and he thought his land was worth more money; also that he would not under any circumstances sell the farm to his brother Louis, that he despised and hated him and would not sell to him. Finding it impossible to obtain a deed from appellee to his brother Louis, appellants brought this suit.

It was shown upon the trial that Louis Klein had the ability and stood ready to purchase the farm at the price agreed upon and that he had been induced to become the purchaser through the efforts of appellants.

A number of reasons are urged by appellants why the judgment should not be permitted to stand, the principal ones being that the verdict was contrary to the evidence and that the court erred in its rulings upon the evidence and in passing upon the instructions. There was a sharp conflict in the evidence introduced by the respective parties but we desire to express no opinion concerning that question, further than to say that the case was a very close one upon the facts and that it was therefore important the jury should be' accurately instructed as to the law. Street R. R. Co. v. Dougherty, 170 Ill. 379; Sinnet v. Bowman, 151 Ill. 146; I. C. R. R. Co. v. Smiesni, 104 Ill. App. 194.

Six instructions were given for appellee. The second was as follows: “The court instructs the jury that the plaintiff, Ira Summerville, testified that he had agreed with Louis Klein, defendant’s brother, that he would allow him $100 of plaintiff’s commission, and in such state of the proof, the recovery of this $100 is a question for you to determine in this ease in the light of all the testimony.” We do not understand how the promise of Ira Summerville either to divide the commission to the extent of $100 with Louis Klein or to give him $100 of his own money, as he also testified, could affect appellee or be used as a defense for him in this case. Even if the proposed disposition of the $100 was a proper subject of defense, the instruction in regard to it is indefinite and does not attempt to lay down any principle of law to guide the jury under the conditions of the evidence alleged by the instruction to exist. It may be further said that it is rarely proper for the court to instruct the jury as to the “state of the proof” in regard to any portion of the case. The third instruction given for appellee told the jury, if they believe from the evidence that the coal under the farm in question was optioned at the time of the listing in question and that the plaintiffs knew it and the defendant reserved the coal from said listing, then the defendant would not be required to make a deed without reserving the coal and the plaintiffs could not recover commission for sale of the farm, unless the coal was reserved. There was nothing said in the written contract relied on by appellants concerning the reservation of the coal underlying the land, and appellants claim they had no positive knowledge concerning that question.

Appellee while he denies making the written contract and says the contract between him and appellants was an oral one, also says that at the time of listing his farm with appellants, he “did not talk to Summerville about the coal.” This instruction appears to assume the claim of appellee that there was no written contract for the sale of the land to be true and then tells the jury defendant would not be required to make a deed and plaintiffs could not recover commission if they believed from the evidence the “defendant reserved the coal from said listing,” when the defendant does not claim that he did so. The instruction therefore was not based upon the evidence in the case.

The fourth instruction told the jury, if they believed from the evidence that at the time of the listing of the farm in question, the defendant and plaintiffs agreed that the farm was not to be sold to the defendant’s brother Louis Klein, then the plaintiffs could not recover commission for selling the farm to defendant’s brother. If the written or printed contract relied upon by appellants was executed by appellee then this instruction was not proper, as the previous agreements and conversations between the parties were merged in the contract. There was no ambiguity in this contract and its language was simple and free from technical terms so there was no need of parol evidence to explain it, and it could not be varied or contradicted by such evidence. 9 Enc. of Law and Procedure, p. 773; Commercial Mutual Accident Co. v. Bates, 176 Ill. 194; Town of Kane v. Farrelly, 192 Ill. 521.

This instruction necessarily assumed that the contract was the parol one relied on by appellee and not the written or printed one relied upon by appellants, which was a question of fact for the jury and not the court.

The fifth instruction given for appellee was subject to the same objections as the fourth, as well as others. The sixth instruction refers to the coal underlying the premises and is subject to the same criticism as the third, but it has the additional vice that it tells the jury that before plaintiffs could recover, they must-prove by a preponderance of the evidence that defendant gave them the exclusive contract to sell his farm, including the underlying coal, etc. The question whether the contract was exclusive or not could not possibly be of any moment under the facts in this case, nor does it appear to have been otherwise raised on the trial.

Appellee’s defense to the claim of appellants was that lie never executed and delivered the written or printed contract and that appellants failed to comply ■with the terms of the conditions of the oral contract, which appellee says he did enter into, and the question whether appellee had listed his property with or given the contract to any one else for its sale, could not affect appellants’ right of recovery. There were also errors in the rulings of the court in regard to the evidence, which it is not necessary to discuss as what is above said concerning the instructions presents suggestions which will readily prevent their occurrence upon another trial.

For the errors above indicated the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    City of Centralia, Illinois, Appellant, v. D. W. Norton & Co., et al., Appellees.
    1. Chancery—character of hill of interpleader. A bill of inter-pleader presupposes that the stakeholder has in his possession a certain definite fund concerning the ownership of which there is controversy among the several defendants. A bill which seeks to ascertain the amount due to several parties, as between whom there is no controversy; is not a bill of interpleader in the technical sense.
    2. Local improvements—when must he let hy contract. The statute which requires all local improvements the expense of which shall exceed $500 to be let to the lowest responsible bidder is mandatory, and a city is not justified in assuming and itself doing the work by virtue of the arising of a sudden emergency.
    3. Mechanics’ liens—lohat not valid set-off against claim. A city cannot set off against the claim of sub-contractors the amount of a loss suffered by reason of the abandonment of the work by the contractor, where it has compromised the liability upon the bond given by such contractor for a less sum than the penalty thereof; nor can such, city charge against such sub-contractors an amount expended by it in completing the improvements where it has failed to comply with the law with respect to the re-letting of the work to the completion thereof.
    Bill of interpleader. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    William G. Murphy and J. J. Bundy, for appellant.
    W. F. Bundy and Frank F. Noleman, for appellees; Howard Garrison, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a bill of interpleader filed in the Circuit Court of Marion county by the city of Centralia against D. W. Norton & Co., a contracting company, and certain other persons, creditors of said Norton & Company, who claimed to have furnished labor and material to said Norton & Company in the construction of an outlet sewer for said city óf Centraba, in the year 1904. There seems to be practically no controversy as to the facts in the case which are substantially as follows:

On October 12, 1904, appellees, D. W. Norton & (-ompany, as the lowest bidders for the work, entered into a contract with appellant for the construction of an outlet sewer system for the city. The contractors entered upon their work and continued in the construction of the sewer system until the 22nd day of February following, when they abandoned the contract, leaving it only partially completed and soon afterwards went in bankruptcy. The city thereupon undertook the work and completed it by day labor without calling for bids and letting it to the lowest bidder, appropriating for this work all the material which had been furnished Norton & Company and remaining unused. The contract price to be paid to Norton & Company for the completed work was $16,649.20 of which amount $10,966.66 was paid to them before the work was abandoned, leaving $5,682.54 still unpaid. In completing the work appellant extended the sum of $2,831.35. Norton & Company had given a bond to appellant in the sum of $8,000 for the performance of its contract with the National Surety Company as surety. Before proceeding with the work of completing the sewer system, appellant settled or compromised with the Surety Company for its liability on the bond covering the contract in this case and also in what is known as the service sewer case, for the sum of $3,000 and of this amount they credited Norton & Company with $1,000 on the contract involved here, known as the outlet sewer contract. After deducting the amount received from the Surety Company from the total amount expended by appellant in completing the work there remained the sum of $1,831.35 which appellant paid out of its general fund. The defendants in the court below were the contractors and a number of firms and individuals who had furnished material or labor or both to the contractors. Twelve of these firms and individuals, having aggregate claims amounting to $4,770.66, are represented as appellees here. These creditors of the contractors served notice of lien on the city, of their respective claims under the mechanics’ lien law prior to the settlement of the city with the Surety Company, but after the city had paid Norton & Company the $10,966.66 above referred to. The contractors were not to be paid by the city in money but in special improvement bonds issued by the city for that purpose and in its bill of interpleader the city offers to deliver said creditors of the contractors an amount of said bonds equal to the balance unpaid on the original contract, less the sum of $1,831.35, taken by the city from the general fund in its treasury to complete the contract, that is the sum of $3,851.19, which was less than the amount claimed by said appellees to be due them by $919.47. Appellees filed their several answers to the bill of inter-pleader alleging among other things that appellant had no right to cancel the bond given by the National Surety Company for a less sum than was necessary to complete the contract; that it had no authority to go ahead and complete the contract, but should have let it to the lowest bidder and either compelled the National Surety Company to complete it or to stand the entire cost of the work of completion; that appellant unlawfully expended said sum of $1,831.35 and should be compelled to bring the whole of said sum of $5,682.54 in bonds into court. A decree was entered by the court in favor of appellees and finding that there was in the hands of the mayor of the city of Centralia improvement bonds of said outlet sewer system, subject to the lien of said appellees, of the value of $5,682.54, and that said city was not entitled to any liens or deductions against the same and it was ordered and decreed that the city by its mayor turn over said bonds to the master in chancery of said court; that said master after obtaining possession of said bonds proceed to advertise and sell the same, or so much thereof as might be necessary to pay the costs of this suit and the claims of appellees.

Appellant here insists that the court erred in entering a decree against it for any amount above that which it offered to bring into court, that is the sum of $3,851.19, claiming that Norton & Co. could only have been entitled to what was left of the contract price after deducting the amount paid to them, and the additional amount necessarily paid for the completion of the contract after they had abandoned it; that appellees had no greater rights than Norton & Co.; that the bond of the National Surety Company was not given for the benefit of subcontractors or lien claimants but solely for the protection and benefit of the city of Centraba, which had a perfect right to deal with it as it saw fit and make such settlements as it thought best.

The bill in this case is called a bill of interpleader and is in the usual form of such bills. It states that the complainant is not colluding with any of said defendants, touching the matters in controversy and has not exhibited the bill at the request of any of them, but merely of its own free will to avoid being molested and harassed touching said matters. It states that the complainant is willing to deliver said bonds of the city to the amount of $3,851.19 to such person or persons as shall be lawfully entitled to recover the same, and offers to bring the same into court if so directed; and asks that the defendants may be required to inter-plead and settle and adjust their said claims among themselves and that complainant may be permitted to bring into court the special assessment bonds of the city to the amount above named, for the benefit of such defendants as shall appear to the court to be entitled thereto.

A bill of interpleader presupposes that the stakeholder or fundholder has in his possession a certain definite amount in money or funds, concerning the ownership of or right to which, there is a controversy among other persons; that he, the fundholder, is impartial as between the parties and desires to dispose of the fund without trouble or expense to himself and that he therefore files his bill offering to bring the fund into court, and asking that the parties who are claiming the same as against each other, be required to litigate their claims at their own expense, and relieve him from further care or trouble in reference to the matter. That however is not the case presented here. In this case there is no conflict or dispute whatever between the subcontractors who are the claimants of the fund, as to the amount due them respectively. The only contention whatever is between appellant on the one side and appellees on the other as to the amount appellant should be required to pay in bonds. When the amount of appellant’s liability shall have been determined, the controversy is disposed of and distribution can be made according to the admitted and uncontroverted claims of the respective appellees. As however no question is raised here by either party as to the right of the court to determine the question arising between appellant and appellees, we are not disposed to question that right here. The bill, however, must be treated as one filed by appellant against appellees to determine the amount of its own liability and for its own relief and such being the case the right of appellant to obtain relief must be construed by the rules of equity.

Section 23 of the Mechanics’ Lien Law of 1903 (Revised Statutes, Hurd, 1905, par. 37), provides that “any person who shall furnish material, appartus, fixtures, machinery or labor to any contractor, for a public improvement in this state, shall have a lien on the money, bonds or warrants due or to become due such contractor for such improvement,” and it further provides for giving the proper officials a notice of claim, which requirement was complied with by appellees in this case.

Section 74 of the statute in relation to local improvements, under which the work in question was being done (Revised Stat., Hurd, 1905, chap. 24, par. 580) provides that, “All contracts for the making of any public improvement to be paid wholly or in part by special assessment or special tax and any work or other public improvements, when the expense thereof shall exceed five hundred dollars ($500), shall be let to the lowest responsible bidder in the manner herein prescribed, such contracts to be approved by the president of the Board of Local Improvements.”

In this case the work done by the city in completing the contract was both to be paid for by special assessment and exceeded in amount $500, so that the law required the contract should be let to the lowest responsible bidder. This however was not done by the city but it proceeded to do the work itself, employing labor by the day.

It is claimed by appellant that an emergency existed and had the outlet sewer not been immediately completed the whole sewer system would have been ruined. We are not satisfied that proof was made of the existence of such condition of affairs, but even if it had, we do not think it would have warranted the officials in doing the work as they did by day labor. The section in question is mandatory in requiring the advertisement for bids and the fact that the work done by the city was made necessary by the abandonment of the contract by the contractor makes no difference in the rule.

In City of Chicago v. Hanreddy, 211 Ill. 24, it was held under section 50 article 9 of the City and Village Act, which contains similar language to that above referred to that “to. hold that the statute does not apply to an unfinished public improvement after the work has been abandoned by the contractor, would be to permit contracts for public improvements to be let to irresponsible parties, which, when abandoned after some portion of the work had been done, would open wide the door to fraud and destroy competition, and enable city officials to do indirectly what in express terms they are prohibited from doing by the statute. The object of the statute is to require the municipalities of this state to advertise for bids upon any work or other public improvements which they propose to construct, and to let the same to the lowest responsible bidder. The statute is in general terms and applies to all public improvements where the costs exceed $500, and the fact that a contract for the improvement had once been let and the work abandoned before completion, if the cost of completing the same will exceed the sum of $500, does not authorize the municipality to complete the improvement by day labor, but a contract for its completion must be let to the lowest responsible bidder after an advertisement for bids. To hold otherwise would be to nullify the statute.”

Appellant also had a bond from the National Surety Co. to insure the completion of the contract of Norton & Co. This bond provided, “if the said D. W. Norton & Co. shall well and truly build, construct and complete the said outlet sewer system according to said agreement and according to the plans, profiles and specifications hereto annexed or referred to, and shall indemnify and save harmless the said city of Centralia, Illinois, of and from all mechanics’lien or liens of any kind for work done or material furnished in and about the construction of said outlet sewer system, then this obligation to be void,” etc.

This bond was to fully indemnify the city and save it harmless from all mechanics’ liens, but for some reason which does not fully appear from the record, but which may have been satisfactory to the city officials at the time, the amount due on the bond was compromised and settled for a much less sum than its penalty and the city only proposes to give a credit for $1,000 of .that sum to these lien holders.

Section 82 of the Local Improvement Act above referred to provides, that where the owners or contractors who have taken any contract, shall not complete the same within the time mentioned in the contract or within such further time as the board of local improvements may give them, said board may relet the unfinished portions of said work after pursuing the formalities prescribed hereinbefore for a letting of the whole in the first instance, and also provides: “All contractors, contracting owners included, shall at the time of executing any contract for such public work, execute a bond to the satisfaction and approval of the Board of Local Improvements of said city, village "or town in such sum as the said board shall deem adequate, conditioned for the faithful performance of the contract,” etc.

It is claimed by appellant that this provision of the statute is simply for the benefit of the city and not for the benefit of subcontractors or lien claimants. This defense might possibly be available in a suit at law, but this is a suit in chancery where appellant seeks relief for itself and it must therefore do equity. The fact is it had in its control a bond which would have completely indemnified it for all amounts necessarily paid to subcontractors who had established their liens as appellees had done. This bond is surrendered without requiring the payment of full indemnity and it now seeks to make appellees bear the loss. This we think is inequitable and should not be sustained in a court of equity.

Appellant also comes into court to seek relief after having failed to comply with the law which requires it to let its contract to the lowest bidder. It should not be permitted to be heard to say it did the work as cheaply as it could have been done had the completion of the contract been let to the lowest bidder. The law requires it to make the letting and the presumption of the law must be that such a letting would have been for the benefit of the city and appellees. The liens of appellees were established before appellant proceeded in an illegal way to complete the contract itself and before it had compromised the bond. The officials of the city were then fully advised of the claims of appellees and all further steps were taken by them with that knowledge.

We are of opinion that the equities of this case are with appellees and that the decree of the court below should be affirmed.

Affirmed.


text:
    City of Centralia, Illinois, Appellant, v. D. W. Norton & Co., et al., Appellees.
    The decision in this case is except as to the ensuing point controlled by the decision in the preceding case, ante, p. 46.
    1. Appeals and errors—when cross-errors cannot he assigned. Cross-errors cannot properly be assigned upon the record filed upon an appeal taken by parties who are unaffected by the matters to which the cross-errors refer.
    Bill in chancery. Appeal from - the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    William G. Murphy, and J. J. Bundy, for appellant.
    Frank F. Noleman, for appellee; Howard G-arrison and I. B. Lipson, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On June 30, 1904, appellant, the City of' Centralia, entered into a contract with D. W. Norton & Co., a firm of sewer contractors, for constructing a system of sewers in said city, the price named in the contract to be paid to said contractors being $36,315.05, but it appears that certain changes were made effecting a slight reduction so that the net price was $35,938.11 The city took from Norton & Company a bond in the sum of $18,158, with the National Surety Company as surety thereon, the conditions of which were that said Norton & Company should well and truly build, construct and complete said sewer system, according to said agreement and indemnify and save harmless the Board of Local Improvements and the city of Centralia, Illinios, of and from all mechanics’ liens of any kind for work done.or material furnished in and about the construction of said system. On February 22, 1905, Norton & Company who had undertaken the construction of said work and to a large extent completed it, became involved financially and abandoned it. Soon afterwards they filed a petition in bankruptcy and were adjudged bankrupts. The referee in bankruptcy refused to take up the contract and complete it, so the city authorities, after some investigation as to the probable cost of completing the work, proceeded to complete the same by day labor. Previous to taking-up said work, however, the city compromised with the National Surety Co. for its liability upon the above bond and another given the city upon a different sewer contract, for the sum of $3,000, $2,000 of which was applied and apportioned by the city to assist in the completion of this contract. Soon after Norton & Company abandoned the work and before the city compromised its claim with the surety company or undertook to complete the work by day labor, certain creditors of Norton & Company, who are appellees here, served notice of claims upon the city under the mechanics’ lien law. The unpaid claims due to all of the other appellees against Norton & Company except the Old National Bank and the Merchants’ State Bank, were for labor and material furnished Norton & Company for said work. A portion of this material had not been used at the time work was stopped and was subsequently appropriated by the city and used in the completion of said sewer system. The amount due from the city on its contract with Norton & Company at the time of the suspension of work by the company was $9,404.77. The amount required to complete the work as it was done by the city was $4,251.95. The city deducted from the amount expended by it the $2,000 received from the Surety Company and proposed to charge the balance of $2,251.95 against the amount in its hands, due on the contract. The amount due from Norton & Company to the appellees, except the two banks, for labor and services, was $10,764.13. The city was to pay to Norton & Company the amount provided for by the contract in special assessment bonds. During the prosecution of the work by Norton & Company $7,000 of the bonds provided for by the contract with the city and issued thereunder, had been purchased by the Old National Bank and $5,000 by the Merchants’ State Bank. In October, 1904, two opinions were handed down by the Supreme Court of this state in cases involving another municipality and relative to the act under which the city of Centralia was building its system of sewers, which were considered to affect adversely the validity of said improvement bonds. By reason thereof Norton & Company were unable to sell any more of their bonds or raise more funds to continue the work. To avoid the abandonment of the work at that time Norton & Company applied to said banks for an advance of money to carry on and complete the same. Up to this time no notices had been served upon the city, or any of its officials by any of the appellees or any one else, claiming a lien upon said fund. An arrangement was thereupon made by which Norton & Company gave an order on the president of the Board of Local Improvements to turn over to the Old National Bank $4,000 in sewer bonds, as they should become due on the work, and this order was immediately filed with the mayor who gave a receipt for the same. Norton & Company also executed to said bank, notes to the amount of $3,150, and they were given credit by the bank for that amount and drew checks upon it from time to time to satisfy their pay rolls. Norton & Company also had an over-draft which with the notes above mentioned, made the total amount of $3,634.41 due from them to the Old National Bank, for which it held an order on the mayor for sewer bonds to the amount of $4,000. Under a similar arrangement the Merchants’ State Bank advanced money and took orders on the mayor for bonds, one of which was for $5,500 and the other for $4,500. Certain bonds were delivered to the Merchants ’ State Bank under its orders upon the mayor, but when Norton & Company suspended work there was ,still due to it $1,150, secured by an order on the mayor for bonds to the amount of $4,500. On March 6, 1905, the Old National Bank served a notice on the mayor of its claim, the purpose for which it paid out the money, and requesting him to withhold a sufficient amount of said bonds to pay its claims and on March 25, 1905, the Merchants’ State Bank served a like notice on the mayor in reference to the amount of its debt and the bonds it had an order for. Notices of liens under the Mechanics ’ Lien Law were served by the appellees other than the banks upon the city at various times, from February 25 to March 31, 1905.

After the work was completed the city filed its bill of interpleader against appellees, stating there was due to Norton & Company under the contract, the sum of $7,152.82; that appellees claimed liens upon this amount and it feared there was not sufficient amount coming to the contractor to pay all of said liens. It stated that it was willing and asked to be permitted to bring into court special assessment improvement bonds to the amount of $7,152.82 and that said appellees be required to settle and adjust the amounts of their claims among themselves.

The only question of dispute so far as appellant was concerned upon the hearing was, whether it was entitled to deduct from the total amount due on the contract when Norton & Company suspended work, the sum of $2,251.95, paid by it out of its general fund in addition to the $2,000 received from the Surety Co., or whether it must bring into court the whole amount of $9,404.77. The court decreed that appellant 'was not entitled to the credit claimed by it, but must account for the whole amount due on the contract when the work was suspended by the contractors. It also decreed that the Old National Bank was entitled to be subrogated to the rights of the other lien holders to the amount of $3,634.41 and was entitled to its pro rata share of the funds, pledged to it and held by the mayor; and that the Merchants’ State Bank was entitled to be subrogated to the rights of the other lien holders to the amount of $1,150 and was entitled to have its pro rata share of said funds pledged to it and held by the mayor.

The city alone appealed from the decree of the court below and while the other lien holders contested the right of the two banks to participate in the fund held by the city, they did not appeal, but certain of them filed cross errors.

This case so far as the right of appellant is concerned is similar to another case also entitled, City of Centralia v. D. W. Norton & Co. et al., ante, p. 46, in which an opinion is filed in this court at this term. The two cases grew out of contracts entered into by Norton & Company with said city of Centralia, for the construction of a general system of sewers, but this case involves what was known as the service sewer, while the other case related to what was known as the outlet sewer, otherwise, so far as the rights of appellant are effected, the two cases are identical, except as to the names of the parties claiming the fund and the amounts involved. It is true that while there was .no question as to the amounts due the respective claimants, there was a contention between the banks on the one side and the other claimants on the other, as to whether the banks should be permitted to participate in the fund, and had the amount due from appellant been undisputed, it could well have insisted that the claimants contest their rights at their own expense. Appellant however by its bill asked positive relief, insisting that it be given a credit of $2,152.95 for money paid out of its general fund in completing the sewer, upon the total amount of $9,404.77 due upon the contract at the time of the suspension of work by the contractors, and its only objection to the decree of the court below is that it was not allowed credit for said amount.

As appellant failed to advertise for bids in completing the sewer in question, but did the work by day labor and for the further reason that it compromised the bond of the National Surety Company which had been given to secure it in just such an emergency, for a much smaller amount than was sufficient to save it and far within the penalty of the bond, we are of opinion appellant was not entitled to the relief prayed for and that such relief was properly refused by the court below. It was immaterial so far as appellant’s claim of credit was concerned whether the claims of the two banks stood upon the same footing as those of the claims of the other appellees for material and labor or not, for the reason that even if the claims had been wholly disallowed, the claims of the other appellees were more than sufficient in amount to cover the total amount of bonds due upon the contract at the time of the suspension of work by the contractors. Our views upon this subject are more fully set forth in the opinion this day filed in the other case of the City of Centralia v. D. W. Norton & Company et al., above referred to. (Ante, p. 46.)

The two banks interested in this case filed a motion to strike the cross-errors filed by certain of the other appellees, from the files. These cross-errors relate entirely to the right of the two banks to participate in the fund held by the city and the decree of the court permitting such participation. The appeal taken by the City of Centralia, the appellant in this case, did not seek to review that question at all but related wholly to the question whether appellant should receive the credit it asked upon the fund, held by it. The two parts of the decree were wholly distinct, one relating solely to appellant’s claim of credit and the other to the right of distribution between the parties. They are in effect as distinct as though they had been involved in two different suits. We are of opinion that had the appellees who filed the cross-errors, desired to question the decree of the court in reference to the claim of the two banks they should have prayed for and effected an appeal or taken such steps that they could have after-wards sued out a writ of error, but that they cannot prosecute an appeal by filing cross errors where the appeal is taken by a party who is not affected by the matters with which the cross errors are concerned.

The rule is well settled in this state that where different parts of a decree relate to matters wholly independent of each other, so that the decision of one part has no influence or bearing upon the decision as to the other part, they are severable and in effect distinct decrees and for that reason it has been held that an appeal may be made from either part without affecting the decision made as to the other part. Walker v. Pritchard, 121 Ill. 221; Union Trust Co. v. Trumbull, 137 Ill. 140.

It appears therefore that the cross-errors of said claimants might properly be dismissed. We have however considered the other questions raised by the cross-errors and are of opinion that the banks in question had legal and equitable rights to the funds in the hands of the city which were established prior to the time the other appellees gave notice of their liens, and that the decree of the court sustaining the right of said banks to participate in said fund, was proper.

We find no substantial error in the decree of the court below and it is accordingly affirmed.

Affirmed.


text:
    David B. Yezner, Interpleading Claimant, Appellee, v. Roberts, Johnson and Rand Shoe Company, Appellant.
    1. Verdicts—when not disturbed as against the evidence. "A verdict will not he set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Practice—when special interrogatory properly refused. A special interrogatory which does not relate to an ultimate fact in dispute and which would tend to confuse the jury, is properly refused.
    3. Instructions—need not refer to excluded evidence. It is not error for the court to refuse an instruction which tells the jury that they must disregard particular evidence which has been excluded.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Choisser, Choisser & Kane, for appellant.
    Whitley & Somers and W. F. Scott, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This case has been before this court at a former term and is reported.in 116 Ill. App. 40, where the facts as they were then shown by the record, were fully set out. The judgment was there reversed and the cause remanded for another trial. When the case was again tried in the court below, there was a verdict returned by the jury in favor of appellee, which was set aside by the court and a new trial granted. After the second trial appellant by leave of court hied what is termed by counsel, a special replication in estoppel, alleging that prior to the levy of the writ of attachment upon the goods in question, G. W. Yezner and Charles L. Rice were indebted to appellant in the sum of $262.75; that appellee was at that time in charge of a stock of goods, of which the goods attached were a part; that appellee knew of said indebtedness and that the same was unpaid; that appellant was desirous of collecting the same and of finding property of G-. W. Yezner, out of which to make the debt; that in response to inquiry made by the agents and attorneys of appellant, appellee stated, immediately prior to the issuance of said writ of attachment, to said agent and attorneys, the goods in question were the goods of G. W. Yezner and that the latter was a resident of the State of Missouri; that relying upon the truth of said statement appellant employed attorneys and instituted this attachment suit; that had not appellee made such statements and representations, appellant would not have instituted said suit and seized said goods; that by bringing said suit and employing counsel, appellant expended a large sum of money and incurred large pecuniary liability, which facts appellant said barred and estopped appellee from maintaining his plea against appellant. Afterwards issue was joined upon this special plea. Upon the third trial the jury again found in favor of appellee, and a motion for a new trial having been overruled, the court ordered and adjudged that appellee have and recover the shoes, which constituted the property attached, from appellant and gave judgment against appellant for costs, from which judgment this appeal is prosecuted.

From a careful inspection of the record in this case, we must say, as we did when the case was here before, that upon the question of the ownership of the goods in question, there was a conflict of evidence which properly required the careful consideration of a jury. Two juries have since considered this question and found in favor of appellee, and while the case was close there was evidence to justify their verdict.

Upon the questions raised upon the last trial by the special replication of estoppel, filed by appellant, there was also a conflict in the evidence. Appellant introduced testimony tending to show that appellee had made the statements concerning the ownership of the goods alleged in the special replication to three parties, two of whom were attorneys for appellant in this suit and the other one of its traveling salesmen. Appellee denied that he made such statements to the two attorneys, but was not interrogated in reference to the statement claimed to have been made to the traveling salesman. It was also shown by appellee through witness W. F. Scott, now one of his attorneys, that this claim, with others against the firm of Tezner and Bice, had been in his hands for collection and that after appellee-became interested in the stock, an agreement was made for the settlement of the claim, by which appellee was to pay it in preference to the other claims at the rate of $75 a week; that the first payment of $75 was made and appellee came the next week to pay the second $75 at which time witness had an agreement prepared by appellant for appellee to sign; that appellee refused to sign the agreement because he said he did not owe appellant the amount claimed therein but that he would sign it if witness would get the claim reduced; that witness told appellant to keep the $75 until he wrote to the company and got information; that he wrote to appellant and the latter ordered' the claim to be returned; that the claim was thereupon returned and put in the hands of other attorneys, who later commenced the attachment suit.

The evidence showed that appellant knew through its attorney, sometime before bringing the attachment suit, that appellee claimed the stock and had assumed the indebtedness; that it had received part payment from him and was ready to take him for the balance provided he signed the contract prepared by them, but that they disagreed over the amount of the claim. The affidavit for attachment itself alleged that the said George W. Tezner had within two years preceding the filing of the affidavit, fraudulently conveyed or assigned his effects or a part thereof, so as to hinder or delay his creditors, and it is apparent from the proofs that the transfer of property alleged by appellant to have been fraudulent, was that claimed by appellee to have been made to him. Upon the whole, while this question, like the other, was a close one, there was evidence to sustain the finding of the jury and we do not feel at liberty to disturb the verdict.

In addition to complaint made by appellant against the verdict, it also claims that the court erred in not submitting a special interrogatory presented by it, in excluding proper evidence offered by it and also in regard to instructions.

The special interrogatory submitted by counsel for appellant which the court refused to submit to the jury, was as follows:

“Did David B. Yezner, the claimant in this case, state to the attorneys and agent of the Bobert, Johnson & Band Shoe Co. a short time prior to bringing of the attachment against George W. Yezner, that the stock of goods of which he, David B. Yezner, was in possession, belonged to his brother George W. Yezner, and that he lived in St. Louis, Missouri.”

The questions which may be submitted to a jury for special findings are not questions which rélate to mere evidentiary facts, but such as relate to the ultimate facts upon which the right of the parties directly depend. The questions which the jury were called upon to answer by the special interrogatory, related to evidentiary rather than ultimate facts. The interrogatory was also improper because it asked the jury to find whether David B. Yezner stated to the attorneys and agent of appellant both that the stock of goods belonged to George W. Yezner and that he lived in St. Louis, Missouri, because the attorney for appellant, Mr. Kane who testified upon this subject, swore that appellee told him the goods belonged to George W. Yezner, but expressly stated that appellee did not at the time tell him where George W. Yezner lived and afterwards stated that he got the information as to the residence from Charles B. Wheeler, appellant’s traveling salesman, and D. W. Choisser, one of appellant’s attorneys. The interrogatory submitted to the court would therefore have been confusing to the jury and could only have properly been answered in the negative, according to the evidence introduced by appellant.

The court gave instructions for appellee, telling the jury if they found from the weight of the evidence that George W. Yezner sold his interest in the goods in question to appellee, for a valuable consideration, and that appellee took possession thereof, then appellee had the right, under the law, to hold said goods as against the claim of appellant, unless they further found from the evidence that at the time appellee purchased the interest of George W. Yezner, he did so with the actual fraudulent intent and design of hindering and delaying the creditors of Yezner and Bice in the collection of their debts or was estopped from claiming the goods as explained in other instructions. Substantially the same instruction was likewise given in relation to the interest of Elvira Bice in said goods, also claimed by appellee to have been purchased by him. They were also instructed that appellant must prove the estoppel set up by him by the weight of the evidence and that in case they found that appellee did make the statements claimed to have been made by him in the additional replication, still such statements would not estop him from claiming the goods in question unless they further found from the greater weight of the evidence, that such statements were the sole cause moving appellant to sue out said writ of attachment, and that said writ of attachment would not have been sued out but for such statements. We think these instructions stated the law applicable to appellee’s case as shown by the evidence, with substantial accuracy, and that appellant’s objections to them are not well founded.

Appellant claims that an instruction offered by it telling the jury that all of the evidence of the witness W. F. Scott pertaining to conversations “by or to himself” in regard to the sale or purchase of the goods in question, had been excluded and should not be considered by them in making up their verdict, was refused by the court. The court had already in the course of the trial excluded this evidence from the jury and while the instruction might have been given it was not error for the court to refuse to call attention again to the exclusion of the evidence in an instruction. Some four other instructions offered by appellant, were refused, but so far as they were correct and proper they were fully covered in a most favorable way for appellant in the eighteen instructions given for it.

The holdings of the court upon the evidence objected to by appellant are few in number and while not in all cases strictly accurate, do not appear to have been sufficiently important to warrant a reversal. The judgment of the court below will be affirmed.

Affirmed.