text:
    Squire, Vandervoort & Company, Appellee, v. Martin A. Ryerson, Appellant.
    Gen. No. 14,598.
    Landt.okd and tenant—when former not 'liable for injury to property of latter. Held, under the evidence, that the landlord was not liable to the tenant for injury to his property occasioned by leakage in the sprinkler system installed by the landlord by permission of the tenant; the action being in tort, no liability being claimed under the existing contract relation or because of faulty construction.

      Tort. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed with finding of fact.
    Opinion filed October 7, 1909.
    Statement by the Court. The parties to this litigation sustain to each other the relation of landlord and tenant. Defendant leased, by an indenture under seal, to G. M. Henderson & Company, the fourth and sixth floors of 192 and 194 Market street, being part of a large building occupied by many tenants and numbered 180 to 194 Market street, Chicago, for a term commencing January 1, 1901, and expiring December 31, 1903. The evidence shows that C. M. Henderson & Company with the consent of defendant, sublet said two floors to plaintiff, who, prior to suffering the damages complained of, entered into the actual possession of said demised premises and was so in possession at and after the time of suffering such damage; that defendant, with the consent in writing of'plaintiff, installed in the building of which the demised premises were a part, an automatic sprinkler system, with sundry sprinkler heads in and about the fourth and sixth floors occupied by plaintiff, which system was installed for the mutual protection of the landlord’s building and the goods of the tenants against damage, and loss by fire. The installation was completed in the month of December, 1902. This system consisted of pipes running from wooden tanks on the roof of the building, with four steel pressure tanks about two-thirds full of water, with a pressure of about 80 pounds of air. The pipes ran downward through the building to the ground, the sprinkler heads being placed every few feet along these pipes. The sprinkler heads were constructed with solder that was fusible at 160 degrees in hot water. At a pressure of 80 pounds, 60 or 70 gallons of water a minute would be discharged from each sprinkler head. During the night of July 29, 1903, or early in the morning, while the premises of plaintiff were closed, a sprinkler head located in the ceiling of the sixth floor of plaintiff’s premises opened and deluged the premises of plaintiff and damaged its goods to the amount of $1192.75, the amount of the verdict and judgment. The cause of the opening of the sprinkler valve which resulted in the damage seems to have been the giving away of the solder, which caused the links of the sprinkler head to draw apart, opening the valve from which the water flowed.
    The action is tort and is grounded, both by averments of the declaration and arguments of plaintiff’s counsel in their briefs, on a duty which defendant owed plaintiff after installing the sprinkling system to maintain it in good order and to use reasonable care so to do, and that the damage resulted from defendant’s neglect to discharge such duty. The inspection made by defendant was confined to a daily examination of the system from the roof to see that the proper pressure was maintained, and an examination of the sprinkler heads from the floor by defendant’s engineer about twice a week. Plaintiff contends that such duty was not discharged by such a limited examination, but should have extended to a careful and thorough examination of the system in all its parts.
    Plaintiff did not put its lease in evidence, and now contends that liability is not predicated upon any covenant of the lease, but arises by implication of law, and that after the installation of the sprinkler system the law cast upon defendant the duty of such thorough inspection and care that such an accident as that which happened and damaged plaintiff’s goods would not have occurred.
    That there may be no uncertainty as to the attitude and claims of plaintiff, we quote from its counsel’s brief the following:
    “II. Appellee makes no claim that under any lease was appellant required to instal or maintain the sprinkler device”.
    “III. Appellee’s claim is that after granting permission to appellant to enter upon the demised premises occupied by appellee, for the purpose of installing the sprinkler system, appellant assumed the construction and maintenance of that system. It was therefore the duty of appellant to keep and maintain the system in good order, so that it would not injure the goods of appellee”.
    “IV. In order to keep and maintain the system in good order, it was necessary to maintain an inspection sufficient to discover defects that would cause the sprinkler head to open and allow the water to flow. Appellant did not maintain such an inspection and did not discover the defect which caused the damage”.
    Defendant, meeting' this contention of plaintiff, insists that no cause of action is stated in the declaration; that the law imposes no such duty upon defendant, and that such duty, if any, must rest in a contractual relation between parties, and not being a duty imposed by law, no recovery can be had in a tort action.
    Numerous assignments of error appear upon the record, but we shall confine our solution of the conflict to a decision of the one controlling question, the ground upon which plaintiff bases its right to recover, viz: Whether the law cast upon defendant, after installing the sprinkler system, the duty of inspecting and keeping the same in such condition that the difficulty which developed to the damage of plaintiff would not have occurred.
    Frank Hamlin and Herrick, Allen, Boyesen & Martin, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; Edward W. Everett and Walter H. Jacobs, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff argues under point 1, subdivision a, that it “makes no claim for damages caused by the negligence of the contractor who installed the system. The claim is for the negligence of appellant after the system has been installed and in use for a considerable length of time, and for his failure to use reasonable care in inspecting and repairing defects”. This would seem to eliminate from the case questions which might otherwise arise, as to damage resulting from faulty construction, or as to the employment of an independent contractor, which operated to exonerate the landlord for negligent construction by such contractor; so that the liability, if any, must be predicated, as frequently iterated by counsel for plaintiff in their brief, upon an obligation to inspect and maintain the sprinkler system in good order, imposed by law. It is therefore clear that if plaintiff’s contention in this regard is sound, neither the lease nor contract under which the landlord entered plaintiff’s premises and installed therein the sprinkler system has any relevancy. This .attitude is, we think, feasible from the further fact that the action is tort and not founded on the contractual relation of the parties.

The sprinkler head which caused the trouble was on the ceiling of the sixth floor, immediately back of the passenger elevator. The cause of the flow of water from the sprinkler head seems to have been the gradual disintegration or crawling of the solder in the link. Bice, the expert, testified on this point in substance that two parts of the link at the end of the lever are soldered together; that the defective head separated and pushed apart; that the solder does not hold the two parts of the link together securely; that they push apart or “crawl” and release the tension on the gauge, holding the water cavity, allowing it to leak; that the solder should melt and the parts draw apart when there is a sufficient degree of heat to fuse, to allow it to open as it should have done in case of fire; that there was no way of telling that the solder was soft or creeping except by a minute examination; that such a condition could not be ascertained from the floor. The sprinkler head, so far as we are able to judge from the evidence, gave no evidence of being out of order from the time it was installed in December, 1902, until in the night of July 29,1903, when, in the absence of plaintiff and its employes, the water burst through the sprinkler head. The defect must have been latent and not ascertainable except from a critical examination of all its parts. Such is the trend of the testimony. The most important object of inspection was to keep air pressure at all times of sufficient volume, so that in case of fire the solder holding the links in the sprinkler heads would fuse and precipitate water in the ample quantity which was intended when the apparatus was installed. This was done, and the inspection of the sprinkler heads was from the floor. Had the “crawling” of the solder been gradual, such condition would have been made manifest by a leak from the sprinkler head. No leak was discernible at the time plaintiff closed its place on the evening preceding the accident. In view of these facts a final analysis of plaintiff’s contention leads to the conclusion that the claimed duty of defendant, cast upon him by law, was to so scrutinize the sprinkler heads that by no misadventure could they become out of order and cause damage to plaintiff. This would practically impose upon defendant the liability of a guarantor of the absolute integrity of the apparatus at all times. We are unable to find any law which in these circumstances imposes any such duty' upon a landlord.

The cases to which counsel for plaintiff has cited us do not, in our judgment, have any application to the facts in this record. The cases of damage from water under the exclusive control of the landlord all resulted from the neglect of the landlord’s duty which he owed to the tenant under the contractual relationship existing between them. The cases of damage resulting from negligent conduct of a contractor while engaged in repairing demised premises for the landlord, while the landlord was upon such demised premises through such contractor for that purpose, is not by analogy akin to the case at bar, for in this case no damage occurred while the contractor was installing the sprinkling system, and not until more than seven months thereafter, and then through a latent defect not discoverable by an ordinary and usual inspection. We see no reason to differ with the rule cited to us by counsel for plaintiff from 18 Am. & Eng. Ency. of Law. 219, that “A landlord is liable to a tenant for injuries to the latter arising from any culpable negligence of the landlord in the use of the portion of the building retained under his control. This liability does not arise especially out of the relation of landlord and tenant, but is based on the broad principle that one must not so negligently use his property as to cause injury to a third person”; but the facts of this case in' no wise bring it within the scope of such rule. No culpable negligence of defendant in relation, to the sprinkling system or its management is inferable from the proofs, and certainly no negligent use of it which in the remotest degree can be said to have contributed to the precipitation of water from the sprinkler head, which caused the damage complained of to plaintiff’s property. We cannot say that the accident was brought about by a failure of defendant to do any act which the law imposed upon him as a duty. We think the defendant’s engineer’s account of his method of inspection was sufficiently thorough to meet every legal requirement, and this is quite apparent and convincing when coupled to it is the testimony of Bice, the expert, that “to constitute an inspection of this system it would be necessary to make an examination of the tanks, valves and pipes through the different floors of the building; an examination of the sprinklers such as could be made by walking through and looking at them from the floor”; also that “the commencement of that pulling away could not easily be noticed by an inspection. It is possible to do so if it had been gradual and slow; it could by close inspection, not by an examination from the floor”. The evidence last quoted is verbatim from plaintiff’s brief. We have no misgiving but that the inspection of defendant’s engineer fully met the requirements announced by Bice as sufficient.

The declaration under which the cause proceeded to trial does not state facts which affimatively show that the duty of defendant imposed upon him by law was to keep the whole of the sprinkling system installed on plaintiff’s premises in such safe condition as to make him liable to respond to plaintiff for damages resulting from any part of it getting out of order. Nor do we find any evidence in the record from which such a liability can be fastened upon defendant.

The judgment of the Circuit Court is not sustained • by either the declaration or the proofs, and it is therefore reversed with a finding of fact.

Reversed with finding of fact.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Chicago Auditorium Association, Appellant, v. The Corporation of the Fine Arts Building, Appellee.
    Gen. No. 14,606.
    1. Contracts—what competent to aid construction. Options, notwithstanding the making of a final contract, may he considered by the court for the purpose of affording a light by which the court may interpret the final contract, and in that way place itself in the attitude in which the parties stood to each other at the time of entering into the final contract.
    2. Contracts—how enforced in chancery. A court of conscience must enforce a contract made and entered into by the parties in good faith with full knowledge of its binding force, which the law imputes from the fact of entering into it, and will not relieve either party from the performance of any of its covenants because it may appear, forsooth, that the bargain made has turned out, in the lapse of time, to be hard or improvident.
    3. Contracts—when irregularity in appraisal made pursuant to lease, cannot he availed of. An irregularity not complained of prior to the report of the appraiser cannot thereafter be availed of in a court of chancery.
    4. Contracts—when appraisal made pursuant to lease will he sustained. An appraisal made pursuant to the terms of a lease will, where both parties have been heard, be sustained if no fraud or unfair dealing is shown.
    5. Contracts—what will not affect appraisal made pursuant to lease. The fact that the party satisfied with the appraisal paid the entire fees of the appraiser appointed by himself and half of the fees of the umpire, will not affect the validity of the appraisal made even though the instrument providing therefor specified that each party should pay one-half of the entire expense of the appraisal.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed October 7, 1909.
    Statement by the Court. Appellant filed its bill in the Circuit Court against appellee, seeking a decree setting aside and holding as nugatory two certain appraisements of the value of two lots demised and leased to appellant by the Studebaker Brothers Manufacturing Company, the immediate grantors of appellee, who acquired the fee title subsquent to the making of said leases and hold title subject thereto. The appraisement of value was for the purpose of fixing the yearly rental charge under the terms of the leases for the ten years ensuing from August 1, 1906. Upon hearing the chancellor dismissed the bill for want of equity and gave judgment for costs against appellant, from which decree and judgment appellant prosecutes this appeal.
    The contract of the parties is contained in three separate documents of even date and executed and delivered together, two of the documents being ground leases, one granting lot 18 and the other lot 19 for a term of 99 years, commencing August 1, 1887, the two lots so leased having a frontage of 52 67/100 feet on Michigan avenue, running with a uniform depth westward of 171 68-100 feet, and upon which is now situate the northern part of the Auditorium building. These instruments were preceded by two options to the moving spirit in the Auditorium enterprise—Ferdinand W. Peck—from the Studebaker Company, in which the substantial terms of the leasing were outlined, the leasing to be made to a corporation which Peck contemplated bringing into being. Until August 1, 1906, the leases provided that the annual rental for each lot should be eighteen hundred dollars plus taxes, etc.; that thereafter the rental should be fixed for ten yearly periods on the basis of six per cent on the fair cash value of the leased premises, exclusive of improvements thereon. Such fair cash value, it is provided, shall be ascertained by three appraisers, each of whom shall be residents of Cook county and the owners in fee of real estate in Chicago bounded by the Chicago river on the north and west, by Lake Michigan on the east and by Peck court on the south, and who shall be disinterested and not related to the parties in interest by consanguinity or affinity; one each to be selected by the parties in interest and the two so chosen to select the third appraiser. It is also provided that “it shall not be incumbent upon any appraisers selected under the provisions of this lease to give any notice of the time and place of holding their meetings or to hear any evidence or arguments”; and further, “that the award in writing under oath of said appraisers, or a majority of them, of the then value of said demised premises, exclusive of the improvements thereon, shall be binding upon the parties to this lease and all parties claiming under them for the purposes hereinafter specified”. All expenses of such appraisal, including reasonable compensation to the appraisers, to be borne equally by the parties.
    The third contemporaneously executed contract provided inter alia:

    “First. That the lessee shall construct and maintain during the term of the leases a driveway not less than fifteen feet in width along and upon the north side of lot eighteen, being the north lot of the two, and adjacent to the premises then owned by the lessor, which driveway was to extend from the west line of Michigan avenue to the west line of lot eighteen, and that the lessor and the occupants and owners of the premises, lying north and adjacent to lot eighteen, should, during the entire existence of the term, have a right to use the driveway, without contributing to the cost or expense of maintaining the same, and that the right to use the driveway should not be granted by the lessees to any other persons than its own successors and assigns and persons occupying or claiming through or under it or them, except by the mutual consent of the parties;
    “'Second. That the east seventeen feet and six in-, ches of the north fifteen feet of lot eighteen shall be at all times kept free and clear of all buildings, improvements and obstructions of every kind and nature above the driveway in question;
    “Third. That the lessor shall have the right to build over so much of the west ninety-six and'one-half feet of so much of said lots eighteen and nineteen as lies north of the north main wall proposed to be built upon the lots in question, as shown upon the plans prepared by Messrs. Adler & Sullivan, a copy of which is attached to the contract. The building to be constructed by the lessor under this clause of the contract was to be wholly above the fourth story of the building to be erected upon the lots by the lessee, as shown upon the plans above mentioned, and was to occupy a space ninety-six and one-half feet by about thirty-six feet;
    “Fourth. That the plans and specifications attached to the contract defining the kind, character and dimensions of the building to be erected on lots eighteen and nineteen are made part of the contract, and the contract is to be construed, in regard to the improvements to be placed upon said lots, with reference to such plans and the measurements shown thereon, and these provided that the twenty-four feet west of the east fifty feet for the entire width of the lots, or fifty-two and sixty-seven hundredths feet, should not be built upon, but should be left open as a lateral court”.
    The foregoing quotation is from appellant’s brief.
    The provision is also found in this contract “that the rights of the parties hereto shall be in all respects the same as though the provisions herein contained had been incorporated into the ground leases hereinbefore mentioned”.
    It is a fact that the lessor at the time of making the two leases and contract owned the building adjoining the demised premises on the north.
    In May, 1906, appellee notified appellant that it had selected E. Hall McCormick as one of the appraisers to fix the rental value of the leased premises for ten years from August 1, 1906. Soon thereafter appellee selected Thomas M. Hoyne as another appraiser, and these two selected as the third appraiser Nathaniel C. Sears. These three appraisers set about making the appraisement. They fortified their own opinions with those of some well known and reputable real estate agents in Chicago. Open hearings were had, at which the interested parties, the litigants before the court, were represented by their “experts” and counsel. Hoyne did not agree with his co-appraisers, McCormick and Sears, and so reported in writing. McCormick and Sears agreeing made two reports under oath, one appraising the fair cash value of lot 18, exclusive of improvements, on August 1, 1906, at $213,360, and the other in like manner fixing the fair cash value of lot 19 at the sum of $208,000. Each appraisement was based on an appraised value of $8,000 per lineal foot. The experts’ values ranged from 7,000 to $10,000 per lineal foot.
    The appraisers rendered a joint bill for their services of $7,500. Appellee paid McCormick $2500 and $1250 to Sears, leaving appellant under the contract to pay the balance due Sears and the whole amount due Hoyne, which it does not appear it had done at the time of instituting this proceeding.
    Appellant urges as grounds for reversal of the decree of the chancellor and its right to the relief sought and prayed for in its bill:
    First: That the appraisers did not appraise the value of the demised premises, but erroneously appraised the value of the whole of lots 18 and 19, disregarding those parts claimed to be reserved for the use and occupancy of the lessor.
    Second: That McCormick was not a fair and impartial appraiser, and that consequently the appraisement is void.
    Third: That McCormick’s receipt of compensation from appellee for his charges as appraiser, under the circumstances developed on the trial, nullifies his appraisal.
    Judah, Willard, Wolf & Reichmann, for appellant.
    Wilson, Moore & McIlvaihe, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

There is happily one point on which all parties are in accord, and that is that the three documents, under which the rights of all the parties must be admeasured, form in legal effect but one contract, which, in the solution of the matters in dispute, must be treated as a unit and read together. Indeed such is the very letter of the contract, which, in such circumstances, is also the spirit of the law.

A careful attention to the claims of the disputants, disclosed by the proofs, convinces us that the determination of what constitutes the demised premises under the contract governing the parties’ rights, is limited in scope to the sole purpose of fixing the rental payment subsequent to August 1, 1906, and every ten years of the term thereafter.

We think it clear, both from the terms of the options and the covenants of the instruments comprising the contract of the parties, that the premises demised are lots 18 and 19, and that the restrictions as to use in no way detracted from the quantum of the land leased, which by construction for rental valuation became and constituted the demised premises. This holding does no violence to the canons of construction as laid down in any of the cases to which we have been cited, or to other cases which an independent investigation has brought to our attention. We are inclined to view the cases of Springer v. Borden, 210 Ill. 518, affirming 112 Ill. App. 168, and Columbia Theatre v. Adsit, 211 Ill. 122, as being, in certain phases of the controversy, somewhat akin to the case at bar, and therefore supporting authority. By no clause or covenant, in either the options or the leases, is any part of the two lots, by direction or implication, excepted from the demise; together these two lots compose the premisos demised. A strong circumstance corroborative of such conclusion is inferable from the fact that the rental payable for the first nineteen years of the grant was the same for each lot, and the further fact that appellant, by uncomplainingly paying for nineteen years all the taxes and municipal charges against both the lots, has impliedly at least admitted that it regarded these lots as composing the premises demised. That this is appellant’s construction is dedueible from such actions. It is upon the demised premises appellant covenanted to pay taxes and assessments, and upon the basis of the value of the same demised premises, to be ascertained by appraisement, it agreed to pay rent every ten years of the term subsequent to August 1, 1906. While the options cannot be resorted to for the purpose of, in any manner, changing or altering the terms of the final contract made in discharge of obligations thus incurred, yet for the purpose of affording a light by which the court may interpret the final contract, and in that way place itself in the attitude in which the parties stood to each other at the time of entering into the final contract, it may have recourse to the options. Rector v. Hartford Deposit Co., 190 Ill. 380; Stone v. Mulvaine, 217 Ill. 40. With such light we are impelled to the conclusion that for the purpose of fixing rental value it was not in the mind of either party that any portion of either lot shold be excluded, but that all the documents considered, including the options, show a concerted purpose on the part of the lessor and an understanding on the part of the lessee, that both lots should constitute the premises demised, and upon the value of which, at the several times of appraisement, rent should be fixed and paid.

That the lessor intended, by its several contracts, terminating in the documents before us, to reserve to itself, and to exact from appellant, other terms and advantages besides the payment of a money rent, is patent and obvious from a reading of these several documents. The intent of the lessor is plainly discernible from the beginning, to which at all times appellant appears to have accorded its consent. This was the tenor of the Peck options, the terms of which have been embodied in the leases executed in fulfillment of such options. The situation of the lessor’s adjoining building sufficiently accounts for such exactions. All parties were cognizant of the situation, as it existed at the time, and appellant voluntarily, by its writings under seal, solemnly took upon itself the grant of the privileges and advantages thus sought to be attached as conditions to the demise. A court of conscience must enforce the contract made and entered into by the parties in good faith, with full knowledge of its binding force, which the law imputes from the fact of entering into it, and will not relieve either •party from the performance of any of its covenants because it may appear, forsooth, that the bargain made has turned out, in the lapse of time, to be hard or improvident. The two lots were properly appraised, as naked land, without any reference to any improvements thereon or their suitability as income producers. The question for the appraisers to solve was the cash value of the land divested of any buildings or improvements thereon and without the slightest regard to improvements.

The agreement executed simultaneously with the two leases recites that the lessor, the party of the first part, demised and leased to appellant lots 18 and 19, etc., “and in consideration of the premises and agreements herein contained” it is mutually agreed and covenanted, etc. Among other things appellant agrees to maintain a certain driveway for the joint use of the parties. Lessor grants the right to appellant to nse certain portions of the south wall of lessor’s building adjoining lot 18 on the north and appellant agrees to keep certain parts of lot 18 free and clear of buildings and obstructions and grants unto the lessor and its assigns the right to build, for its own use, above the fourth floor of certain parts of appellant’s building, to be erected on lot 18, etc., additional stories in height not to exceed that of its own building north of lot 18, all of which are more particularly referred to in the statement preceding this opinion. So far as these covenants inure to the benefit of appellee, the assignee of the lessor, we do not regard them, or any of them, as being restrictive of the land demised, but that they are in law a grant by appellant of an easement to the lessor, and such rights of appellee therein arise in virtue of such easements granted by appellant to its lessor, and are enjoyed by appellee as rights and privileges in virtue of such grant to appellant’s lessor. Durham & Sunderland Ry. v. Walder, 42 Eng. Com. Law, 987.

This is not a case of arbitration, but an appraisal of the value of the demised premises. The parties were not selected to settle any dispute as arbitrators, but to fix the value of the premises demised to appellant under the Studebaker leases. It follows that the cases cited as affecting arbitrations have no bearing on the appraisal in the case at bar. The three appraisers were appointed in accord with the terms of the leases. Each party participated and each appraiser seems to have been satisfactory to each party. No objection was made to either, and all the parties proceeded to the appraisal without any objection being interposed until after a majority of the appraisers made an appraisal and a return thereof, as provided in the leases. The objection, if valid, was made too late, and in any circumstances, for that reason, would be impotent to avoid the appraisement. But there is no irregularity here, in the appointment of the appraisers, and certainly nothing to which fraud can be imputed. Complaint is made about the appointment of R. Hall McCormick, and it is insisted that he was not an impartial appraiser. He certainly fulfilled all the qualifications made essential by the lease, and from that standpoint was impartial. It was not intended by the terms of the power of appointment that they should be disinterested as not being owners of contiguous property. The lease made it incumbent upon each appraiser to own in fee what is commonly designated as down town property. In other words, the parties wanted as appraisers persons who had knowledge of values of down town property based on ownership. While the law did not require the appraisers to hear evidence or arguments, still the leases expressly provided that the appraisal might be made by the appraisers without hearing evidence or argument. Notwithstanding this wide liberty of the appraisers to proceed and make the appraisal from their own knowledge or from information privately gathered, they proceeded with the utmost fairness and heard all the parties in open meeting and took evidence of expert witnesses, produced by each side, and heard the arguments of counsel for each disputant. The evidence of the various experts as to values per lineal foot ranged from $7,000 to $10,000. The appraisal as finally fixed by McCormick and Sears, a majority of the appraisers, was upon the basis of $8,000 per lineal foot, the exercise of a discretion favoring appellant. This effectually repels any inference of fraud or unfair dealing in the solution of the problem of value, which is in most cases fraught with difficulty. It is presumed, from the provisions as to appraisal, that the parties were content to rely upon the valuation of three persons, property owners within the limited district specified in the lease. By the value fixed by a majority of them, the interested parties are concluded. As said in Norton v. Gale, 95 Ill. 533, “So it is to be presumed the design was to select three who would need no evidence or argument, but be prepared at once to make a valuation.” In Pearson v. Sanderson, 128 Ill. 88, in which the court held in arguendo that while notice and a hearing were necessary in cases of disputes submitted to arbitration, it said: “But nothing of the kind is required in a case of this character. No evidence is to be heard. The appraisers ascertain such facts as may have a bearing on the value of the improvements in their own way, and act upon their own judgment.” Stose v. Heissler, 120 ibid. 433.

That McCormick was part owner of the Victoria Hotel situate within 400 feet of appellant’s leasehold,the land of which was to be appraised for a basis of fixing the amount of future rent, was one circumstance which qualified him to act as an appraiser. This fact may have made him favorable to high prices for Michigan avenue property; but even if that be conceded we hold, as the court did in Glover v. Rochester German Ins. Co., 11 Wash. 143, that the fact of partiality will not be sufficient to set aside an award, if the fact was known to the other party in time to revoke submission before the award was made. McCormick’s interest in the Victoria Hotel property was known to appellant at the time he was accepted as an appraiser without objection. Mr. McCormick was justified in getting information as to the values in his own way, and privately applying to real estate agents and owners for information which might tend to influence or control his opinion and final judgment. Bradshaw v. Agricultural Ins. Co., 137 N. Y. 137; Story v. De Armond, 179 Ill. 510.

Finally, no complaint is made that the charge for services made by the three appraisers was improper or excessive. That appellee should pay McCormick, the appraiser of its choice, and half of the charge of the third appraiser, Sears,'who had joined with McCormick in making the appraisal and fixing the value of the land, thereby discharging its obligation in that matter, as provided by the leases, is not occasion for remark, much less for criticism. It could hardly be expected that appellee would pay Hoyne in preference to McCormick. It had no legal excuse to refrain from paying its share of the appraisers’ fees, and to whom it chose to pay the same is a matter of indifference to appellant.

The conclusion of the chancellor is without error, and the decree of the Circuit Court is therefore affirmed.

Affirmed.


text:
    Regina Lassers, Defendant in Error, v. North German Lloyd Steamship Company, Plaintiff in Error.
    Gen. No. 15,779.
    Municipal Court—when order fixing time for filing hill of exceptions, etc., must be entered. An order fixing the time for the filing of the hill of exceptions or stenographic report must he entered within thirty days of the date upon which the judgment was entered.
    Baker, J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 14, 1909.
    Ralph Brucker and Christian C. H. Zillman, for plaintiff in error.
    Blum & Blum, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

On the 5th day of June, 1909, the Municipal Court rendered judgment upon the verdict of a jury in favor of defendant in error and against plaintiff in error for the sum of $649. On the 30th day of June, 1909, plaintiff in error sued out from this court a writ of error, which said writ of error was, on motion made in vacation of this court, made to operate as a super sedeas. This is a case of the fourth class under the Municipal Court Act. On the first day of July, 1909, the Municipal Court of Chicago entered an order allowing plaintiff in error until July 15, 1909, to file a bill of exceptions. Thereafter, on the 14th day of July, 1909, said Municipal Court entered an order allowing an additional ten days in which to present a stenographic report of the testimony to opposing counsel and to the trial judge for approval. On the 21st day of July, 1909, plaintiff in error had signed by the judge of the Municipal Court before whom the cause was tried such stenographic report, and filed the same on that day in the office of the clerk of the court.

Defendant in error now moves the court to strike said stenographic report from the record filed in this court, upon the ground that the same was not signed by the trial judge, or filed within the time allowed by the statute, and that the court was without jurisdiction to enter an order extending the time for filing such stenographic report subsequent to the lapse of thirty days from the entry of the judgment. Upon the striking of said stenographic report from the record, defendant also moves that the judgment of the Municipal Court be affirmed. This presents to us for our interpretation paragraph 6, sec. 286, chap. 37, E. S. That portion of such paragraph here involved is as follows:

“Upon application made at any time within thirty days after the entry of any final order or judgment, or within such further time as may upon application therefor within said thirty days, be allowed by the court, it shall be the duty of the judge by whom such final order or judgment was entered, to sign and place on file in the case in which the same was entered, if so requested by either of the parties to the suit, either a correct statement, to be prepared by the party requesting the signing of the same, of the facts appearing upon the trial thereof, and of all questions of law involved in such case, and the decisions of the court upon such questions of law; or, if such party shall so elect, a correct stenographic report of the proceedings at the trial. * * *”
We think the statute is plain and free from ambiguity, and circumscribed the power of the court to enter an order fixing the time for the filing of the bill of exceptions or stenographic report within thirty days from the date upon which the judgment is entered. In that regard the practice in the Municipal Court is different from that which obtains in the Circuit Courts of this state. While the Municipal Court has power to grant time in which to file such stenographic report or bill of exceptions beyond thirty days from the date of the entry of the judgment, the order must be entered by the court within thirty days of the entry of the judgment. To hold otherwise would nullify the meaning of the words—“or within such further time as may upon application therefor within said thirty days be allowed by the court.”

The motion, therefore, to strike the stenographic report from the record is allowed. As all the errors assigned are confined to such matters as appear in said stenographic report and do not involve the statutory record, there is nothing further before us for determination.

The judgment of the Municipal Court will therefore be and is accordingly affirmed.

Affirmed.

Mr. Justice Bakeb dissents.


author: Mr. Justice Baker

text:
    Harry S. Mecartney, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,361.
    1. Pleadings—to what time relate. The pleadings in an action at law relate to the commencement, of the action, the same as if all were filed at that time, and the rights of the parties are to he determined by the state of facts as they existed at the time the action was commenced.
    2. Oedinances—providing for talcing of land for street purposes and for payment therefor construed. An ordinance which provides for the taking of land for the purpose of opening a street and for payment therefor excludes any other method of payment, and if such payment is provided to he in part by property owners benefited, recovery cannot be had of the municipality in an action of assumpsit for the entire cost of such land.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Cliffobd, Judge, presiding.
    Heard in this court at the October term, 1908.
    Rehearing denied October 21, 1909.
    Reversed and remanded with directions.
    Opinion filed October 7, 1909.
    Statement by the Court. Appellee as plaintiff brought assumpsit in the Circuit Court against appellant as defendant, November 21, 1895, to recover the amount of an award and judgment in a proceeding to ascertain the just compensation of the plaintiff on certain real estate which was taken by defendant for the purposes of a public street. Plaintiff filed an amended declaration June 27, 1907, consisting of four counts. The first count of the amended declaration was amended October 5, 1907, and the fourth count was withdrawn by the plaintiff. The court overruled the demurrer of the defendant to the amended declaration, as amended, and the defendant electing to abide, a jury was called to assess plaintiff’s damages, and assessed the same at $5650.29. From a judgment for that amount the defendant prosecutes this appeal.
    The first count of the amended declaration as amended alleged that August 28, 1893, an ordinance was passed by the city council of the city of Chicago to condemn for street purposes the strip of land therein described; that said Harry S. Mecartney at that time was the owner in fee thereof; that said ordinance provided that the cost of said improvement should be paid for by a special assessment levied upon property benefited thereby to the amount that the same might be legally assessed, the remainder of such cost to be paid by general taxation; that on the 29th day of August, 1893, the city of Chicago filed its petition in the Circuit Court of Cook county for the purpose of ascertaining the just compensation to he awarded for taking and damaging said land; that on the 26th day of October, 1894, a trial was regularly had in said proceeding and a verdict rendered in favor of the owner of said property for the sum of $4,162.50, upon which verdict judgment was rendered, and that said judgment has continued in full force and effect since that time; that after the passage of said condemnation ordinance and the filing of said petition, to wit: on the 1st day of September, 1893, said city of Chicago took actual possession of said strip of land with the consent of the owner thereof, and improved the same with pavement and sewer, water pipes, etc.; that said strip of land has since been used as a public street; that on the 4th day of December, 1894, the city of Chicago filed its supplemental petition praying for the appointment of commissioners to make a special assessment on the property benefited by said improvement; that said commissioners were thereupon appointed and an assessment roll was thereafter regularly filed; that thereafter from time to time the city of Chicago took further steps in said proceeding but failed to prosecute the same with reasonable diligence, and failed to collect said assessment, but did, on the contrary, abandon said proceeding and has taken no steps whatever in said proceeding for many years last past, to wit, more than four years; that the strip of land was reasonably worth $4,162.50, and that said city of Chicago became liable to pay said sum upon request, and though often requested to pay the same, did refuse so to do. The second count alleged that appellee was the owner in fee simple of the land heretofore described, and that the city of Chicago, on the 1st day of September, 1893, entered upon said land and appropriated it for the purposes of a public street, and that it improved the same with pavement, water mains, etc., and that said strip of land has remained since said date in the exclusive possession of the city of Chicago; that said land so appropriated was of the value of $4,162.50, and that the said city of Chicago did, in consideration thereof, promise to pay said sum on request of appellee, and that defendant, though often requested so to do, has refused to pay the same. The third count alleged substantially the same matters set forth in the second count; and, further, that-on the 26th day of October, 1894, appellee and the city of Chicago had an accounting as to the value of said strip of land appropriated on the 1st day of September, 1893; and that said accounting fixed the value of said land at $4,162.50; that said city of Chicago promised to pay this sum on request to the appellee, and though often requested has refused so to do.
    George A. Mason, Frank Johnson, Jr., and Edgar R. Hart, for appellant; Edward J. Brundage, of counsel.
    Oliver & Mecartney and Enoch J. Price, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The ordinance in this case provided that the cost of the improvement should be paid by special assessment to the extent that property legally benefited thereby could be legally assessed, and that the remainder of such cost should be paid by general taxation.

The ordinance in People ex rel. v. Hyde Park, 117 Ill. 462, and Hyde Park v. Corwith, 122 id. 441, provided that the entire cost of the improvement should be paid by special assessment. In each case the municipality, after the filing of the petition in the condemnation proceeding, took possession of the property. In the case first cited a mandamus to compel the municipality to pay the condemnation judgment was. refused. The ground on which such refusal was based was stated in the opinion, p. 469, as follows:

“No street can be opened except under enabling ordinances and without such ordinance there can be no condemnation of property for public use by a city or village. There is and can be no doubt the mode of making payments for local improvements is within the discretion of the municipal authorities and that discretion is not subject to the control of the courts. Such improvements may be paid for in any mode provided by law, either out of the general fund, by special taxation, or special assessment, and the adoption of either mode excludes the idea of payment in any other way.”

The case was followed in Hyde Park v. Corwith, supra, where a judgment in debt on a condemnation judgment was reversed.

The mode of payment for the land to be taken for a street was fixed in advance by ordinance in this case as clearly and definitely as it was in the ordinances in the Hyde Park cases. We are unable to perceive any legal ground on which it can be held that the ordinance in the Hyde Park cases excluded any other mode of payment for the land taken than that provided in such ordinance, and that the ordinance in this case does not exclude any other mode of payment for the land taken than that provided in such ordinance. If the judgment is affirmed, the defendant will be compelled to pay, not the remainder of the cost of the land taken, left after assessing property benefited to the extent to which such property may legally be assessed, as the ordinance provides, but the entire cost of the land taken. We regard the decisions in the Hyde Park cases as controlling the decision in this case. They were held controlling in Meeker v. Chicago, 96 Ill. App. 23, where a judgment sustaining a demurrer to a declaration, in substance the same as the first count of the declaration in this case, was affirmed.

The first count of the amended declaration alleges that the condemnation judgment was entered October 26, 1894, and the supplemental petition filed December 4, 1894. This action was begun November 21, 1895, within thirteen months of the date of the condemnation judgment. The amendment to the amended first count of the declaration filed October 5, 1907, alleges that December 4, 1894, “defendant filed in said condemnation proceeding a supplemental petition praying for the appointment of commissioners to make a special assessment upon the property benefited by said improvement, and said commissioners were appointed and an assessment roll was made by them; and thereafter, from time to time, defendant took various steps in said proceedings, but failed to prosecute the same with reasonable diligence and to collect the same; but on the contrary has abandoned the said proceedings, and has taken no steps whatever in such proceedings, for many years last past, to-wit, for more than four years last past.”

All the pleadings in an action at law relate to the commencement of the action, the same as if all were filed at that time, and the rights of the parties are to be determined by the state of facts as they existed at the time the action was commenced. The first count as amended does not allege that the special assessment proceedings were abandoned before this action was begun, but alleges that they were abandoned after the action was begun.

If, however, the amended first count can be construed to aver that the special assessment proceedings were abandoned before this action was commenced, the count would still be fatally defective. The ordinance providing for the taking of plaintiff’s land must, under the allegations of the count, be held to be still in force, and while that ordinance remains in force it excludes any other mode of payment for the land taken than that provided by the ordinance. People ex rel. v. Hyde Park, supra.

No count of the amended declaration, in our opinion, states a cause of action against the defendant, and the judgment of the Circuit Court will be reversed and the cause remanded, with directions to sustain the demurrer to the amended declaration.

Reversed and remanded with directions.


author: Per Curiam.

text:
    Nina Thomasson et al., for use of Harry S. Mecartney, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,362.
    This case is controlled by the decision in Mecartney v. Chicago, ante, p. 275.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1908.
    Rehearing denied October 21, 1909.
    Reversed and remanded with directions.
    Opinion filed October 7, 1909.
    George A. Mason, Frank Johnston, Jr., and Edgar R. Hart, for appellant; Edward J. Brundage, of counsel.
    Oliver & Mecartney and Enoch J. Price, for appellee.
   Per Curiam.

The questions involved in this case

are the same as those presented and decided in Mecartney v. Chicago, ante, p. 275.

The reasons given in the opinion reversing the judgment, with directions, in that case, are equally applicable to this, and need not be repeated here. The judgment of the Circuit Court will be reversed and the cause remanded with directions to sustain the demurrer to the amended declaration as amended.

Reversed and remanded with directions.


text:
    George D. Phelps, for use of Harry S. Mecartney, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,363.
    This case is controlled by the decision in Mecartney v. Chicago, ante, p. 275.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1908.
    Rehearing denied October 21, 1909.
    Reversed and remanded with directions.
    Opinion filed October 7, 1909.
    George A. Mason, Frank Johnston, Jr., and Edgar R. Hart, for appellant; Edward J. Brundage, of counsel.
    Oliver & Mecartney and Enoch J. Price, for appellee.
   Per Curiam.

The questions involved in this case are the same as those presented and decided in Mecartney v. Chicago, ante, p. 275.

The reasons given in the opinion reversing the judgment, with directions, in that case, are equally applicable to this, and need not be repeated here. The judgment of the Circuit Court will be reversed and the cause remanded with directions to sustain the demurrer to the amended declaration as amended. .

Reversed and remanded with directions.


text:
    Phila D. Raymond et al., Appellants, v. The Northern Trust Company et al., Appellees.
    Gen. No. 14,573.

      Wills—rule against perpetuities defined. A perpetuity Is defined to be a limitation taking the property out of commerce for a longer period of time than a life or lives in being and twenty-one years beyond, and in case of a posthumous child, a few months more, allowing for the time of gestation.
    Bill to set aside trust. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed October 7, 1909.
    Statement by the Court. Appellants filed in the Circuit Court of Cook county their bill to set aside the trust provisions in the will of Oliver W. Barrett and to have the same declared void on the ground that such provisions violate the rule against perpetuities. The will was executed December 13, 1906, and the testator died January 13, 1907, leaving Prances M. Barrett, his widow, Phila D. Raymond, his daughter, and Oliver S. Barrett, his son, his only heirs at law and next of kin. The complainants in the bill are said Phila D. Raymond, daughter of the testator, Harold N. Raymond, her son, the husband of Phila D. Raymond, and the wife of Harold N. Raymond. The defendants are The Northern Trust Company as executor and trustee, Frances M. Barrett, the widow, Oliver S. Barrett, the son of the testator, and the wife of Oliver S. Barrett. The defendants other than Prances M. Barrett joined in a special demurrer to the bill, which was sustained, the bill dismissed for want of equity, and complainants appealed. The provisions of the will which appellants claim violate the rule against perpetuities are those provisions of the following section of the will printed in italics:
    “Section No. 4. I give, devise and bequeath unto The Northern Trust Company, a corporation organized and existing under the laws of the State of Illinois and located at Chicago, Illinois, as Trustee, all the remaining estate and property of all kinds whatsoever and whereever situated, belonging to me at the time of my death, in trust, for and upon the following trusts, purposes and conditions, to-wit:
    “During the period of trusteeship as hereinafter fixed, said Trust Company shall hold, manage, lease, care for and protect said trust property and collect the income therefrom, all in accordance with its best judgment and discretion, and any leases that may be made may be for any term of years that said Trustee may think best, even if-they extend beyond the period of the trust. Said Trustee may retain as a portion of said trust estate any investments made by me in my lifetime, and is also fully authorized to invest such part of said trust estate as may from time to time be converted into cash as income-producing securities, either within or without the State of Illinois, said Trustee to have as wide latitude in the selection and making of such investments as I myself would have if living’. I do not desire any investments to be made in real estate, excepting such as may result from the foreclosure of real estate mortgages. Said Trustee is hereby given full power to sell and convey any and all of said trust property and any reinvestments thereof, from time to time, for such prices and upon such terms as it shall see fit, either for the purpose of reinvestment or of carrying out any provisions of this trust, and the purchaser or purchasers shall not be obliged to see to the application of the purchase money. The Trustee shall be paid a fair and just compensation out of the trust estate for its services hereunder.
    “The entire net income from said trust estate, commencing at the time of my death, after paying taxes, assessments, insurance, repairs and the charges and expenditures reasonably necessary and proper in caring for and managing the trust estate, shall be paid to my son, Oliver S. Barrett, during the entire term of his natural life, in monthly instalments. Upon the death of my said son the net income from said trust estate shall be paid in equal portions to the child or children (not adopted), if any, of my said son, or their issue, until the youngest of his said children from time to time living reaches the age of twenty-one years, or until the death of the last survivor of said children, in case they should all die before the youngest child reaches the age of twenty-one years, at ivhich time the entire principal of said trust estate shall be divided among the children of my said son, the issue, if any, of any children that may have died to take the share that their parent would have taken if living. So long as any of said children are minors said Trustee may itself use or expend the minors’ share in the income or such part thereof as it deems best for the comfortable support and education of said minors. Any income not used shall be added to the principal of the minor’s share in the estate. In case of the death of my said son leaving no children or issue of deceased child surviving or in case he should die leaving a child or children surviving and such child or all of

      such children should die before the youngest from time to time living reaches the age of twenty-one years, leaving no issue, then I direct that, upon the death of my said son or upon the death of the last surviving of his said children, the entire balance of said trust estate be paid to my daughter, Phila D. Baymond, if she be then living, but if she be not then living, the said balance of said trust estate shall be held and the income therefrom paid to my grandson, Harold Baymond, until he shall reach the age of thirty-five years, at which time the principal of said trust estate shall be paid to him. If, at the death of my said son Oliver S. Barrett, leaving no child or issue of a deceased child, or after the death of all his children before the youngest from time to time living reaches the age of twenty-one years leaving no issue, neither my daughter Phila D. Baymond nor her son Harold Baymond shall be living or in case said Harold Baymond shall be then living but shall die before reaching the age of thirty-five years, then I direct that said trust estate remaining in the hands of said Trustee shall be divided among my heirs at law as the same would be ascertained under the present laws of descent of the State of Illinois if I myself had died at that time.”
    Underwood & Manierre, for appellants.
    William S. Miller and George W. Gordon, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

The provisions of the will which appellants claim are void as creating a perpetuity are contained in the following clauses of the will:

‘ ‘ The entire net income of said trust estate * * * shall be paid to my son, Oliver S. Barrett, during the entire term of his natural life, in monthly installments. Upon the death of my said son, the net income from said trust estate shall be paid in equal portions to the child or children (not adopted), if any, of my said son, or their issue, until the youngest of his said children from time to time living reaches the age of twenty-one years, or until the death of the last survivor of said children, in case they should all die before the youngest reaches the age of twenty-one years, at which time the entire principal of my said trust estate shall be divided, etc. * * *
“In case of the death of my said son, leaving no children or issue of any deceased child surviving, or in case he should die leaving a child or children surviving and such child or all of such children should die before the youngest from time to time living-reaches the age of twenty-one years leaving no issue, then I direct that, upon the death of my said son, or upon the death of the last surviving of his said children, the entire balance of said trust estate be paid to my daughter if living'; if not, income to be paid to her son Harold until he reaches the age of thirty-five, and the principal then to be paid to him.
“If, at the death of my said son, Oliver S. Barrett, leaving no child or issue of a deceased child, or after the death of all his children before the youngest from time to time living reaches the age of twenty-one years, leaving no issue, neither my daughter, Phila D. Raymond, nor her son, Harold Raymond, shall be living, or in case said Harold Raymond shall be then living, but shall die before reaching the age of thirty-five years, then I direct that said trust estate shall be divided,” etc.

The first clause above set forth of the will provides for the termination of the trust estate in either of two contingencies. The first is when the youngest of the children of deceased’s son, Oliver S. Barrett, “from time to time living reaches the age of twenty-one years.” The second is upon the death of the last survivor of the children of Oliver S. Barrett “in case they should all die before the youngest child reaches the age of twenty-one years.” Upon the happening of either of said contingencies, the trust estate is to be divided among the children of Oliver S. Barrett, or their issue if any be dead.

The second clause above set forth- of the will provides for the termination of the trust estate in case of the death of the testator’s son, Oliver S. Barrett, “leaving no children or issue of a deceased child surviving, or in case he should die leaving a child or children surviving, and such child or all of such children should die before the youngest from time to time living reaches the age of twenty-one years, leaving no issue.” TJpon the happening of either of such contingencies, the trust estate, is to be paid to the testator’s daughter, Phila D. Baymond, if then living, but if not, to be held and the income therefrom paid to testator’s grandson, Harold Baymond, until he reaches the age of thirty-five years, when the principal is to be paid to said Harold.

The third clause above set forth of the will provides that if at the death of testator’s son, Oliver S. Barrett, “leaving no child or issue of deceased child, or after the death of all of his children before the youngest from time to time living reaches the age of twenty-one years leaving no issue,” neither testator’s daughter, Phila D. Baymond, nor her son, Harold Baymond, shall be then living, or in case Harold Baymond shall be then living, but shall die before reaching the age of thirty-five years, then the trust estate shall be divided among the heirs at law of the testator.

“A perpetuity is defined to be a limitation taking the property out of commerce for a longer period of time than a life or lives in being and twenty-one years beyond, and in case of a posthumous child, a few months more, allowing for the time of gestation.” Waldo v. Cummings, 45 111. 421, 426.

“If by any possibility a devise (or bequest) violates the rule against perpetuities, it cannot stand. If there is a possibility that a violation of this rule can happen, then the devise (or bequest) must be held void.” Bigelow v. Cady, 171 Ill. 229, 232-3.

The contention of appellants is that each of said clauses fails to provide for the termination of the trust or a distribution of the trust estate, m case testator’s son, Oliver S., shall die leaving two or more children, and the youngest of such children shall die before reaching the age of twenty-one years, leaving surviving a child or children of said Oliver 'S. Barrett then above the age of twenty-one years. With this contention we are unable to agree. In the contingency suggested, the child of Oliver S. Barrett over twenty-one, or the youngest of his children over twenty-one, if there be more than one, will be the youngest of the children of Oliver S. Barrett “from time to time living, ’ ’ and such youngest child having reached the age of twenty-one years, the trust will, under the terms of the will, be terminated, and it will be the duty of the trustee to pay over or distribute the estate in accordance with the provisions of the will. The fact that such child becomes the youngest child of Oliver S. Barrett after reaching the age of twenty-one, cannot continue the trust after the time that such child becomes the youngest child.

The chancellor did not err in sustaining the demurrer to the bill and dismissing" the same for want of equity, and the decree will be affirmed.

Affirmed.


text:
    Michael Montague, Administrator, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 14,580.
    1. Negligence—when question of wantonness for jury. If a motorman sees a trespasser upon a bridge over which his car is about to pass, running to leave the same by the only means open, namely, at the end, and runs his car so closely to such trespasser and at such a speed that he would be unable to stop at any time to prevent injuring such trespasser if he should fall, the question as to whether such conduct was negligence amounting to wantonness is for the jury.
    2. Evidence—when question calls for fact, not conclusion° The following question: “Was there any place for the deceased to have gotten off that bridge other than at the end,” calls not for the conclusion of the witness but for a fact.

      Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Juman W. Mack, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed October 7, 1909.
    John A. Rose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    Bowles & Bowles, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $5,000, recovered against it by the administrator of Walter Hardt, deceased,- for wrongful death. Defendant operates in Madison street an electric street railway. At the Desplaines river the track of the defendant curves to the north and crosses that river on a trestle bridge, which is five feet north of a wagon bridge, used also by pedestrians, which is on a line with Madison street east of the river. The railroad bridge is the private property of the defendant. On the west side of the river the west end of the railroad bridge is directly north of the west end of the wagon bridge, but on the east side of the river the railroad bridge extends twelve feet farther east than the wagon bridge and is 142 feet long, and the wagon bridge 130 feet long. The railroad bridge is a single track bridge, without railings, and is about twenty-five feet above the river. The rails are laid on ties placed ten inches apart. The deceased, then thirteen years of age, and another boy, were crossing the railroad bridge from east to west. When they were about half way across the bridge a west-bound car of defendant reached the east end of the bridge.. The boys started to run, and the car followed them. The other boy reached the west end of the bridge and jumped to the ground, or to a pier, but when the deceased was within a few feet of the west end of the bridge he fell and the car ran against him .as he was lying on the track, and so injured him that he died. The motorman on defendant’s car testified that he first saw deceased when the car was at the east end of the railroad bridge; that deceased was then about the middle of the bridge; that when he fell he was five or six feet from the west end of the bridge; that the car was fifteen feet from him when he fell; that a distance of thirty-five feet was required to stop the car; that he made every effort to stop the car when deceased fell, but was unable to stop it before it reached and struck deceased; that it stopped within four feet of the point where it struck deceased.

The testimony of other witnesses tended to show that deceased was half way across the bridge when the car reached the east end of the bridge; that other boys who had gone out with deceased, and were then crossing on the wagon bridge, called to him, and that he began to run; that he made two ties at a time, jumping; that he ran ahead of the car until he was within a few feet of the west end of the bridge, and then fell on the track and was struck by the car.

The cause was submitted to the jury on the fourth count of the declaration, and defendant’s plea of not guilty. That count averred that while deceased was crossing said bridge with all due care, etc., “the defendant then and there, by its servants, carelessly, negligently, improperly, wrongfully and wantonly ran, drove and propelled its said motor or electric car, without exercising reasonable care to control the management thereof; that by and through the wrongful and improper management, and careless and wanton conduct of the defendant by its servants in that behalf,” the car ran against the deceased, etc. We think that this count, after verdict, must be held to sufficiently allege wantonness on the part of the defendant.

As to the evidentiary facts, there is no dispute as to facts that we regard as material or controlling.

Deceased, in going upon the bridge, was a trespasser on the private property of the defendant, to whom the defendant owed no duty except not to wilfully or wantonly injure him. Deceased was about half way across the bridge when the car reached the east end of the bridge, and the motorman then saw him. At the same instant deceased was informed by his companions, who were on the wagon bridge, of the approach of the car, and began to run west, no doubt intending to leave the track at the west end of the bridge. There is some dispute as to the rate of speed of the car, but it is clear that it was nearly double the rate of speed of deceased as he ran over the ties. He was in the middle of the bridge, and therefore seventy feet ahead of the car when the car reached the east end of the bridge; he was within a few feet of the west end of the bridge when he fell, and therefore had run a little less than seventy feet, and the car had run a little less than 140 feet, from the time the car reached the east end of the bridge and the deceased started to run from the middle of the bridge. The motorman knew that he could not stop his car within less than thirty-five feet, and yet ran it so rapidly that it was only fifteen feet behind deceased, according to his testimony, or still nearer to deceased according to the testimony of other witnesses, when deceased fell. Deceased could not, while on the bridge, get out of the way of the car by stepping to either side of the track, but could only avoid the car by keeping ahead of it until he reached the west end of the bridge and then stepping to one side. He was running over cross ties placed ten inches apart on a structure twenty-five feet above the river, and the motor man, with full knowledge of all the facts and circumstances, ran his car so rapidly, so close behind the deceased that if he fell on the track the car could not be stopped before it reached him. We think that the question whether the motorman ought reasonably to have anticipated the danger that deceased might, under such circumstances, stumble and fall on the track, was a question for the jury. We also think that it was a question for the jury, under all the circumstances in evidence, whether defendant’s motor man was guilty of such negligence as amounted to and was wantonness. If he was, the defendant was liable although the deceased was a trespasser in going upon the bridge. Chicago Ter. R. R. Co. v. Grass, 200 Ill. 195; Chicago Ter. R. R. Co. v. Kotoslti, 199 id. 383; Martin v. C. & N. W. Ry. Co., 194 id. 138, and cases there cited.

In our opinion the trial court did not err in denying defendant’s motion for a new trial on the ground that the verdict is not supported by the evidence, or is against the law and the evidence.

The only other error assigned is the ruling of the court in permitting a witness for the plaintiff to answer the question, over the objection of defendant: “Was there any place for Walter (the deceased) to have gotten off that bridge other than at the end, the west end”? The witness answered, “that there was not”. We do not think the question called for the opinion of the witness, but for a fact. But however this may be, in view of the other evidence in the case the answer was not harmful to the defendant.

Finding no reversible error in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.


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    Katerina Kristan, Appellant, v. Joseph Nepil et al., Appellees.
    Gen. No. 14,582.

      Pleading—allegations and proof must correspond. Although a good case may appear in the evidence, yet if it be variant from the one stated in the bill, the bill will be dismissed.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed October 7, 1909.

      Charles A. Fanning and E. J. Herdlicka, for appellant.
    H. M. Pierce, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the complainant from a decree dismissing her bill of complaint for want of equity.

Complainant is the owner of a lot and building thereon known as No. 1055 West Nineteenth street, in the city of Chicago. Defendants were engaged in constructing a building on the lot known as No. 1053 West Nineteenth street, which adjoins complainant’s lot on the east. The east wall of complainant’s building is about three feet west of the east line of her lot. The west wall of the building defendants were constructing is about six inches east of the west line of the lot. The bill was filed to enjoin the defendants from continuing the construction of the building they were constructing.

After answer and replication the cause was referred to a master, “to take proofs and report his conclusions.” The master, in his report, recommended that the bill be dismissed, and the court overruled the exceptions of complainant to the report, dismissed the bill for want of equity and complainant appealed.

The contention of appellant, as stated in her brief, is, “that a certain ‘court’ termed in the ordinances of the city of Chicago, as a ‘lot line court,’ the area and dimensions of which are prescribed by said ordinance, was being constructed in violation of said ordinances, thereby depriving complainant of the unimpaired light and air to which she had been accustomed for four years prior thereto. That the failure of defendants to observe said ordinance constituted a nuisance, and that the defendants, although often requested to abate the nuisance and to discontinue the violation of the ordinances, persisted in such violation to the irreparable loss and damage of complainant.” The averments of the hill in reference to the ordinances of the city of Chicago and the violation thereof by the defendants are, that defendants are constructing said building, “in violation of certain ordinances of the city of Chicago, now in force and in force prior to and at the time of said construction, to-wit: an ordinance known as Chap. XV of Revised Municipal Code, governing the erection of buildings, Article IX, Paragraphs 637-414 and 638-415 and 639-416, as follows:

“Windows in lot line walls, windows in addition to those provided for in section 413 of this chapter, if placed in any lot line wall, or in any wall nearer to the lot line than is specified in section 416 of this chapter, from such lot line, then the sash in such windows should be stationary and glazed with fire-resisting glass.
‘638-415. Courts, inner. Sizes of lot line courts. The ‘inner courts’ of all new tenement houses, as defined in section 389 of this chapter, shall have areas and minimum widths in all parts not less than the width and area as follows:
Building Square Feet Least Width
2 stories 100 6 feet
3 stories 120 7 feet
4 stories • 160 8 feet
‘639-416. Courts, outer. Sizes of width increased.
The outer courts of all tenement houses defined in section 389 of this chapter shall have not less than the following widths for their minimum in all parts: Buildings Least Width
2 stories 3 feet
3 stories 3 feet, 6 inches
4 stories 4 feet’.”

The answer avers that the ordinance set out in the bill in reference to windows in “lot line walls” had been repealed. No evidence tending to prove a violation of that ordinance was reported by the master.

The brief of appellant contains no reference to said ordinance, and so much of the bill as relates to said or-(finance or bases any claim to relief on an alleged violation thereof must be regarded as abandoned.

The defendants were engaged in constructing a three story and attic building extending back from the street seventy-four feet. On the west side of this building is a court or recess in the west wall, beginning at the second story, seven feet six inches long from north to south and four feet six inches wide from east to west.

■ The Municipal Code of Chicago defines “courts” as follows:

“605. ‘Court’ is an open, unoccupied space, other than a yard, on the same lot, with a tenement house. A court entirely surrounded by a tenement house is an ‘inner court.’ A court, bounded on one side and both ends by a tenement house, and on the remaining side by a lot fine, is a ‘lot-line court.’ A court extending to a street, alley or yard is an ‘outer court’.”

It is clear that the recess or “court” in the west wall of the building defendants were constructing is neither an “inner” nor an “outer” court, within the definition of such “courts” in the ordinance, and the conclusion of the master, stated in his report, that it is neither, is not challenged in the brief of appellant. The contention of appellant is, that the master erred in his conclusion that such “court” or recess was not a “lot fine court” within the definition of a “lot fine court” in the ordinance. It is a sufficient answer to this contention that the bill makes no reference to any ordinance prescribing the dimensions or area of “lot line courts,” and of course alleges no violation of any ordinance as to such “courts.”

“Although a good case' may appear in the evidence, yet if it be variant from the one stated in the bill, the bill will be dismissed.” McKay v. Bissett, 5 Gil. 499505; Dorn v. Geuder, 171 Ill. 362; Higgins v. Higgins, 219 id. 146.

The evidence reported by the master fails to support the allegations of the bill, and the bill was therefore properly dismissed.

Appellant complains of the finding contained in the decree dismissing the bill, that the building in question “was not and is not constructed in violation of the building ordinances of the city of Chicago.” A finding of fact has no proper place in a decree dismissing a bill for want of equity. Such finding is only proper when the decree grants relief. But we are unable to perceive how appellant can possibly be prejudiced by such finding in the decree in this case.

The decree of the Circuit Court will be affirmed.

Affirmed.


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    J. W. Coey, Appellee, v. C. A. Coey & Co., Appellant.
    Gen. No. 14,587.
    Accord and satisfaction—when payment of compromise sum effects. If the amount due is unliquidated or there is a bona fide dispute as to how much is due, a payment of the amount claimed by the debtor to be due, in full settlement, if accepted by the creditor, is a satisfaction of the claim.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed upon remittitur.

    Opinion filed October 7, 1909.
    Benjamin Levering, for appellant.
    William A. Jennings, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Appellee brought this action in assumpsit in the Municipal Court against appellant, a corporation, and the declaration consisted of the common counts. Upon the trial plaintiff’s claim was for commissions for the sale of automobiles for the0 defendant, in whose employ he was as a salesman from September, 1904, to July 19, 1906. The defense was accord and satisfaction as to the claim of the plaintiff other than his claim for $175 as his commission on the sale of an automobile to McFell and a like sum as his commission on sale of another car to Mrs. Beiger.

Plaintiff had judgment for $975, $350 of which was for commissions on the McFell and Beiger sales, and $625 for commissions on the sale of other cars made prior to July 19, 1906.

The case presents two distinct questions; the one, whether the defense of accord and satisfaction was established as to all of plaintiff’s claim other than his claim to commissions on the McFell and Beiger transactions; the other, whether the evidence is sufficient to sustain the recovery of commissions on said two transactions.

The contract of employment was verbal, and was made by plaintiff and O. A. Coey, his brother, the president of the defendant corporation. About July 19, 1906, a dispute arose between plaintiff and C. A. Coey, acting for and representing the defendant, as to the terms of the contract of employment and the right of the plaintiff to the commissions for which he recovered other than the commissions on the McFell and Beiger transactions.

July 19, 1906, the defendant delivered to the plaintiff a statement of the account between the parties as claimed by defendant, and with it the following letter:

“Chicago, July 19, 1906.

Mr. J. W. Coey:—

Enclosed find check to balance account to date as per statement, excepting seventy dollars, which is due on the McFell deal as soon as the Mitchell car is sold for $1,200. Also seventy dollars on the Beiger sale, which will be paid to you as soon as the car is settled for.

Undoubtedly you will raise a howl, but it will do you no good to do so. The understanding I have always had with my salesmen, as you know, is that five per cent will be paid on sales they make through their own efforts, and two per cent on all sales made to those who come into our store, or who were encouraged through our advertising sources. The check for fifty dollars was given to your wife when she needed it. The sixty dollars is the amount deducted from the steamer deal, which you had no right to do. You were not authorized to sell this car for $1,200, as we were holding it for $1,400.

You will notice I have given you full five per cent on the Bosley, Fox, McCarthy, Conway, True, Young, Keene and O’Gar a sales when, by right, you were entitled only to two per cent. This will even the matter up. Checks will be mailed to you as soon as these other sales are settled.

Inasmuch as you do not seem to take any interest in my business, in fact working against it, which is evidenced by different remarks you have made, it would be better for you to seek employment elsewhere, as a man cannot work for my interests when he gets sore when someone else sells a car. Please turn the keys for your desk over to Miss Geyer, and any adjustments you may wish to make, take up with her. Your threat to sue does not concern me in the least, and if this settlement is not satisfactory, I will reduce the commission to two per cent on those I have allowed you five per cent, which really belong to us. I am merely making you a present of this extra three per cent. Respectfully yours,

C. A. Coey.”

With this letter the defendant enclosed a check as follows:

“No. 6517.
C. A. Coey & Co.
Automobiles.
Chicago, July 19, 1906.
Pay to the order of J. W. Coey $849.43.
Eight Hundred and Forty-nine 43/100 Dollars.
In full to date excepting amt due you on McFell & Beiger sale.
C. A. Coey & Company,
By C. A. Coey,
Pres. & Treas.
To the First National Bank,
Chicago, Ills.”

The statement contained a long list of items of charges against plaintiff, principally for cash, and credits for commissions conceded to plaintiff by defendant, showing a balance due plaintiff of $849.43, the amount of the check enclosed. Previous to the delivery of said letter and check to the plaintiff, he and the president of the defendant company discussed in detail the claim of the plaintiff to the commissions for which he recovered, and the defendant, through its president, protested that plaintiff was not entitled to any of said commissions other than commissions on the McFell and Beiger transactions. Plaintiff held the check some little time and then endorsed and collected it.

The amount due from the defendant to the plaintiff was unliquidated and in dispute. The defendant claimed that the plaintiff was not entitled to the commissions on sales for which he recovered, other than the McFell and Beiger transactions, on the ground that such sales were not made by the plaintiff, and also that he was, under the terms of his contract with defendant, entitled to only commissions of two per cent on certain sales, on which defendant in said statement allowed him commissions of five per cent. The check in terms purported to be in full payment except such amount as might be due plaintiff on the McFell and Beiger sales. Plaintiff was told, both verbally and in the letter enclosing the check, by defendant, that the check was offered by defendant as payment in full, with the exception of plaintiff’s claim for commissions on said two transactions, and with full knowledge of the terms and conditions on which the check was offered, plaintiff accepted and collected it.

“The law is, that where the amount due a creditor is ascertained and not in dispute, the payment by the debtor and acceptance by the creditor of a less sum will not operate as a satisfaction of the demand, but if the amount due is unliquidated or there is a bona fide dispute as to how much is due, a payment of the amount claimed by the debtor to be due, in full settlement, if accepted by the creditor, is a satisfaction of the claim. It is not necessary that the debtor shall pay more in such a case than what he admits to be due, and if a check for such sum is offered in payment of a disputed account, it must be accepted by the creditor upon the terms upon which it is offered, or must be rejected. If a check is offered under such circumstances as amount to a condition that it is to be received in full payment of-the demand, an acceptance will satisfy the demand, although the creditor protests at the time that it is not all that is due him or that he does not accept it in full satisfaction of his claim. An acceptance in such’ a case is an acceptance of the condition notwithstanding any protest he may make to the contrary. (Ostrander v. Scott, 161 Ill. 339; Lapp v. Smith, 183 id. 179; Canton Coal Co. v. Parlin & Orendorff Co., 215 id,. 244; 1 Cyc. 229; 1 Am. & Eng. Ency. of Law—2d ed.—419.)” Snow v. Griesheimer, 220 Ill. 106, 109.

The defense of accord and satisfaction as to all of plaintiff’s claim except his claim to commissions on the McFell and Beiger transactions was, in our opinion, clearly established by the evidence.

The contract of employment of plaintiff by defendant, as has been said, was verbal, and the testimony as to its terms was conflicting. We think that on the evidence the jury might properly find that the contract was that plaintiff should receive commissions of five per cent on all contracts for the sale of automobiles negotiated by him for defendant which were accepted and approved by defendant; and this as well where it was agreed that another machine should be received in payment of a certain part of the purchase price, as where such price was to be paid wholly in money.

Plaintiff negotiated the sale of a machine to McFell for $3,500, $1,300 of which was to be paid by another car. Defendant ratified and approved the sale, delivered the new car to McFell and received the old one from him, and we think the evidence justifies a recovery of $175 for commission on such sale.

Plaintiff also negotiated a sale of another machine to Mrs. Beiger for $3,500, which sale was ratified and approved by the defendant. Some time after the sale was so made and approved by defendant it was agreed between defendant and Mrs. Beiger that the contract of sale should be cancelled and a part of the purchase price, paid in advance, returned to her. It does not appear that the defendant in the contract of employment of the plaintiff reserved the right to cancel contracts of sale made by plaintiff after they had been accepted and approved by the defendant. In the absence of a special agreement we think that plaintiff became entitled to his commission on the Beiger sale when it was accepted and approved by the defendant, and that the subsequent cancellation of the contract by agreement between defendant and the buyer could not defeat or affect plaintiff’s right to such commission.

Our conclusion from the evidence is that the plaintiff in the judgment is not entitled to recover anything beyond his commissions on the McFell and Beiger sales, amounting to $350. If within ten days J. W. Coey, plaintiff in the judgment, shall remit tire sum of six hundred and twenty-five dollars, the judgment of the Municipal Court for the remainder will be affirmed; otherwise the judgment of that court will be reversed and the cause remanded.

Affirmed on remittitur of $625; otherwise reversed and remanded.

Remittitur filed October 8, 1909.