text:
    George Weber, Administrator, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    1. Peremptory instruction'—when should he given. Where there is no evidence tending to prove the plaintiff’s cause of action as alleged in his declaration, a peremptory instruction should be given for the defendant.
    2. Master and servant—what does not prevent operation of doctrine of assumed risk. Knowing and apprehending the danger to which he is exposed quite as well as his foreman, a servant in obeying an order of such foreman is not relieved of the risk or the necessity of caring for himself.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Effingham county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    R. C. Harrah, for plaintiff in error; S. F. Gilmore and W. B. Wright, of counsel.
    J. G. Drennan, for defendant in error; J. M. Dickinson, of counsel.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action on the case brought by plaintiff in error in the Circuit Court of Effingham county, to recover damages for the death of George D. Weher, struck and killed by an Illinois Central Eailroad Company train near LaClede, Fayette county, April 1907. The declaration is in two counts, in which.it is alleged that George D. Weber, plaintiff’s intestate, was employed by defendant as a section hand; that defendant had in its employ a foreman of switch repairs and cross-over tracks with authority to select from the section men laborers to assist'him; that he had full power and control of the men selected; that on the 6th day of April, 1907, he selected the decedent to assist him in repair work; that on said day while decedent and the foreman were engaged at LaClede" in putting in guard-rail fillers, between eight and nine o’clock a. m., a fast freight train passed south with signal that another train was following; that immediately after the passage of the said freight train the said-foreman commanded the deceased to assist him to place the track drill between the rails of the west or south-bound track and fasten the same to the west rail thereof for the purpose of drilling holes in the guard rails there placed; that the rules of the defendant then required that such work should not be attempted until warning signals of obstructions had been put out; that other rules of the company required that trains running in the same direction must be kept ten minutes apart; that the foreman negligently failed to put out signals; that the defendant negligently suffered one train to follow a.nother within ten minutes; that deceased attempting to remove the drill from the track was in peril from an approaching train, and that the foreman negligently failed to give warning and failed to signal the approaching train in time to prevent injury. It appears from the undisputed facts that deceased had been in the employ of the defendant as a fence man, and was, at the time of the accident under the direction of the road supervisor, engaged in switch repairing assisted by deceased, who likewise was under the direction of the road supervisor; that the work was such as may be done by two section men in the absence of a boss or foreman; that shortly before the morning of April 6th, Demondrum was directed by the road supervisor to work at LaClede in putting in guard-rail fillers and the section boss was directed to designate a man to work with Demondrum. On the morning in question while the two men were engaged with the usual appliances for such work, including a boring drill, and while they were adjusting the said drill to bore a hole in the rail, a south-bound train was seen approaching and the men stepped from the track to let it pass. The train bore a signal that another train was following. The track was straight; the day was clear and a train coming from the north was in plain view for a distance of about three miles. After the first train passed the men renewed their preparations for work. As the second train approached both men again left the track and took position between the north-bound and south-bound tracks, a place of safety. As the train approached near where the men were standing, the deceased moved toward or upon the track, was struck by the pilot of the engine, and killed. It is the plaintiff’s contention that, after the first train passed and before the other arrived, the track drill was placed in position and that they began the work of boring the hole in the rail; that seeing the approaching train they again stepped to one side leaving the drill in position, but that when the train was within about 350 feet of them, and going at the rate of forty miles an hour, Demondrum ordered Weber to go upon the track, release the drill from its fastening and remove it, and that in attempting to obey this order he was struck by the engine. The defendant contends that between the passage of the two trains the track drill was never placed upon the track and that Weber was not killed in attempting to remove the drill. The case was tried by a jury, and at the close of all the evidence the court instructed the jury to find the defendant not guilty. A motion for new trial was denied, judgment entered on the verdict, and by writ of error the record is brought to this court for review. Exceptions were saved and error duly assigned, upon which may be considered the complaint made of the trial court’s rulings in the admission of evidence an,d in taking the case from the jury.

The inquiry here to be considered is fully and accurately defined and limited in the case of Libby, McNeill and Libby v. Cook, 222 Ill. 206, cited in plaintiff in error’s reply brief. The court says: “If there is no evidence, or but a scintilla tending to prove the material averments, the jury should be directed to return a verdict for the defendant. If, however, there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proven, then the cause should be submitted to the jury * * * even though it may be that a verdict for the plaintiff, if returned, would have to be set aside on motion for new trial because against a manifest preponderance of all the evidence. In passing upon a motion for a peremptory instruction, the question of the preponderance of the evidence does not arise at all. Evidence fairly tending to prove the cause of action set out in the declaration may be the testimony of one witness only, and he may be directly contradicted by twenty witnesses of equal or greater credibility; still the motion must be denied, and if a verdict for the plaintiff follows, the question whether it is manifestly against the weight, of the evidence is for the trial court upon a motion for a new trial. * * * If the court is of the opinion that in case a verdict is returned for the plaintiff, it must be set aside for want of any evidence in the record to sustain it, a verdict should be directed. If the court is of the opinion that there is evidence in the record, which, standing alone, is sufficient to sustain such verdict, but that such verdict, if returned, must be set aside because against the manifest weight of all the evidence, then the motion should be denied. To hold. otherwise is to deny to plaintiff the right to trial by jury.” Keeping within the doctrine and principles here announced by the Supreme Court and giving full and fair consideration, not only to the evidence which was admitted in the trial of this case, but to all the evidence offered and excluded by rulings of the court, we are of opinion that there was not evidence tending to prove the cause of action alleged. We do not discuss the evidence supposed to have bearing upon the question, whether or not Demondrum was a foreman or boss over the deceased at the time of the accident for, though that be conceded in argument, there yet remains two material affirmative allegations, in proof of which there is no evidence whatever in the record. There is no evidence tending to prove that the deceased was ordered to go upon the track in front of the moving train. The gestures or “pointing” by Demondrum, of which the witness Mrs. Taylor testifies, is without significance amounting to proof that an order was given or that decedent was acting in obedience thereof. The gestures described by the witness might just as reasonably be interpreted as a warning to the deceased not to go upon the track as that they indicated that he should go there. This testimony standing alone, or when considered in the light of other undisputed facts, does not even tend to prove that an order was given, or if given, what it was. Another material allegation is that the deceased was in the exercise of due care for his own safety before and at the' time of the accident. This required affirmative proof whether he was acting under the orders of a foreman or not, and from the undisputed facts, appearing of record, we are of opinion that all reasonable minds will agree that his own negligence was a contributing cause of his death. The oncoming train was in plain view, running at a high rate of speed, seen by the deceased, an experienced railroad man, familiar with the danger attending any attempt to go upon or across the track, and, whether by direction of a foreman or voluntarily, it cannot be said that he was in the exercise of due care for his own safety to thus expose himself. There is no circumstance or fact shown by the evidence which in reason tends to explain or justify what so clearly appears to have been an act of reckless negligence on the part of the deceased. Knowing and apprehending the danger to which he was exposed quite as well as the alleged foreman, it cannot be said that, in obeying an order, he' was relieved of the risk or the necessity of caring for himself. Such is not the law applicable under the facts as here disclosed, and so we must hold. In this condition of the record the court was justified in directing the jury to find for the defendant. As we have indicated a different ruling by the court in the admission of evidence would not have changed the result, and it will therefore be unnecessary and will profit nothing to discuss other errors argued by counsel. The judgment of the court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Myers

license: Public Domain

text:
    William H. Hart, Appellee, v. Wabash Southern Railway Company, Appellant.
    1. Injuries tó real property—measure of damages in actions for. In actions for damages based upon negligence in the construction or maintenance of a permanent improvement the evidence is directed and limited to damage sustained prior to commencement of the suit, and recurring damage thereafter, from the same or like cause, will be ground for another action; but in actions for injuries to property caused by a proper and .legally authorized construction, which may not be abated as a nuisance but is to remain permanently, there can be but one recovery, and the measure of damages in such case is the depreciation of value in the land affected.
    2. Instructions—when cannot he complained of. A party cannot complain of an instruction which contains a vice common to an instruction asked by himself.

      Action in case. Appeal from the Circuit Court of Franklin county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court- at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    W. S. Cantrell and Forman & Whitnel, for appellant.
    W. H. Williams and Walter W. Williams, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This was an action in case brought by appellee against appellant to recover damages to real property alleged to have been caused by the construction of a railroad on premises adjoining that of appellee. In substance the first count. of the declaration alleges that the plaintiff was the owner and in possession of certain lots of land (describing them) of the value of $5,000; that the defendant purchased certain other lots (describing them) immediately adjoining the plaintiff’s premises on the north and erected upon its said premises and across said lots, in direction east and west, a permanent railroad bed of dirt to the height of six feet above the original surface of the ground; that the defendant also excavated a permanent ditch six feet deep and ten feet wide on the side the whole length of its lots adjoining the plaintiff’s lots; and also that the defendant threw up permanently the roadbed of the street on the west side of plaintiff’s property to the height of six feet and threw up permanently the road-bed of Main street, which is on the east side of plaintiff’s property; “by means whereof the lots of said plaintiff were made a reservoir and the natural drainage of said lots intercepted and prevented, and the said reservoir filled with water and the health of plaintiff and his family endangered and the buildings thereon rendered useless and the said lots of the plaintiff injured and rendered valueless, to the damage of $4,000,” etc. .

The second count charges the defendant with wilfulness and wantonness in obstructing the natural waterflow, but as there is no evidence in support of this count, nor argument of appellee of right to recover thereon, it will not be considered. The defendant filed a plea of not guilty. The case was tried by a jury, which returned a verdict for the plaintiff, assessing damages at $1,400. A motion for new trial and in arrest of judgment were successively made and overruled, whereupon the court rendered judgment on the verdict, and the defendant appealed. Numerous errors were assigned, but assuming that only those relied upon are discussed in argument, our consideration of the record will be so limited.

It is first contended by counsel, that the court erred in its rulings upon the admisison of evidence relating to damages. Over appellant’s objections witnesses were permitted to testify to a depreciation of the market value of the premises in controversy by reason of the railroad construction, the estimate of depreciation in value ranging from $1,200 to $3,000. It is insisted by appellant that depreciation in market value caused by the embankment is not the true measure of damages in this case, and therefore that the admission of such evidence was erroneous and prejudicial. It is said in argument that the embankment and ditch complained of being upon the appellant’s land, it had the right to appropriate it to any lawful purpose without being subjected to liability for consequential depreciation in market value of appellee’s land. In further statement of his proposition counsel adds: “that the appellee can only recover, if at all, for injury occasioned to his property by outside elements being communicated thereto or held thereon by the embankment and ditch.” If we understand counsel’s completed or qualified proposition, it is to the effect, that appellee was entitled to prove and recover any damages occasioned by water, “an outside element, accumulated or held upon his land by reason of the ditch and embankment constructed by appellant.” Applying the proposition to the issues in this case, the question is, what is complained of, what is damaged? From the argument of both sides we incline to think there is not a clear apprehension of the issues or' discrimination be- • tween actions brought by the owner or reversioner of real estate for" permanent consequential damages growing out of legally and properly constructed improvements, and that other class of cases, similar in form of allegation, wherein the injury is transient or recurrent, the damage being occasioned by negligence in the construction or proper maintenance of a legal and permanent improvement. The rule as to the measure of damage is not the same in the two classes of cases. In actions for damages based upon negligence in the construction or maintenance of a permanent improvement the evidence is directed and limited to damage sustained prior to commencement of the suit, and recurring damage thereafter, from the same or like cause, will be ground for another action. But in actions for injuries to property caused by a proper and legally authorized construction, which may not be abated as a nuisance, but is to remain permanently, there can be but one recovery, and the measure of damages in such case is the depreciation of value in the land affected. Damages thus adjudicated and paid, the defendant will have acquired by purchase his right to maintain the structure as it was when suit was brought without liability to plaintiff, his heirs or assigns forever. The principle and rule to be applied in such case is given with citation of authority in I. C. R. R. v. Lockard, 112 Ill. App. 423, in which we said: “It is true that notwithstanding the lawful right to erect and maintain all such structures, still, just compensation must be paid to owners of property thereby injured; but such injuries are permanent for which one recovery can be had. The right to recover acernes to those who own the land or hold damageable interest therein at the time the cause of injury is created, and the measure of damages in such case is the decreased value of the property, i. e., the depreciation in market value.” See, also, opinion in the case of I. C. R. R. v. Ferrell, 108 Ill. App. 659.

The sufficiency of the declaration was not challenged by demurrer. By pleading over the appellant waived all irregularities and informality of statement. After verdict we aré only to inquire with liberal intendment, whether or not a cause of action within the evidence has been stated. This declaration we think is quite sufficient, certainly after verdict, under which to recover damages for permanent injury to the plaintiff’s property, and to admit evidence of the true measure of damages in such case, that is, evidence of depreciation in the market value of the property as affected by the ditches and embankment complained of. To determine the effect of the embankment upon the plaintiff’s property it was necessary and proper to prove the "obstruction of natural drainage and the overflow of Water as a resulting permanent condition or consequence from a permanent, though rightful construction" of the embankment and ditches. These were evidently facts of a permanent injury and depreciation in the market value of the property. All the witnesses for appellee, so far as we have observed or been directed, were duly qualified to testify and give their judgment or estimate upon the basis of market value and did so testify. In every instance, by .cross-examination, appellant .was rightly permitted to sound the witnesses as to elements entering into their estimates of damage, so as to exclude any allowance merely because of the proximity of the road and its embankments and ditches to the plaintiff’s premises. In a sense, it is true, as insisted by counsel, that appellee could" recover only for damages from overflow, for the reason that the only damage claimed, alleged or proven, was caused by the overflow under conditions brought about by the act of appellant—a damage to the market value. No other element of damage was introduced and as we have already indicated, there appears to have been some confusion or misapprehension in the minds of counsel as to the real issue in the case upon the question of damages. Nevertheless the case was tried and the jury instructed upon substantially the correct theory as to the law. §ome of appellee’s given instructions were subject to criticism because they do not direct the jury as to the proper measure of damages, and in one instruction, the right of recovery is predicated upon the defective manner of construction, viz.: that proper sluiceways and culverts were not provided, a fact which, if proven, has only a collateral bearing upon the questions at issue. The want of sluiceways, which the law required, might be shown in mitigation of the damages to which the appellee could claim in this action, for it may be inferred that, sooner or later, they will be provided. However, the appellant is in no position to complain of this error, for the reason, that it requested an instruction of like purport, which ■■ was given. In this connection it may be said that the injury to the property, the damage, was to be determined upon the assumption that the obstruction complained of was to be permanently maintained as it then stood in its completed condition. If appellant wanted to profit by changes or improvements contemplated, such as tiling, culverts, or other construction to remove the cause of injury, a stipulation to make such improvements could have been filed and entered of record. Thereby it would have been obliged to make the improvement and would have been relieved of liability in this suit for want of them. The defect or omission in appellee’s instructions in not properly directing and limiting the jury in their estimate of damage is corrected and supplied, inferentially at least, by a number of appellant’s given instructions. After a careful consideration of the whole record we are of opinion that there was no reversible error to which we have been directed in argument, and that under the evidence, which includes personal inspection of the property by the jury, we cannot say that the damages are excessive. The judgment therefore will be affirmed.

Affirmed.


text:
    Anton Slavik, Appellee, v. Cal Hirsch & Sons Iron & Rail Company, Appellant.
    1. Instructions—when peremptory, properly refused. A peremptory instruction asked by the defendant is properly refused where there is evidence tending to prove the material allegations of the plaintiff’s declaration.
    2. Master and servant—what within doctrine of assumed risk. A servant is held to assume the risks ordinarily incident to his employment, and also the risks incurred by obedience to a negligent order of the master, when the danger is to him as plainly apparent, open and understood as it is to the master who gives the order.
    3. Master and servant—what not within duty of former. It is not required that a master shall adopt precautions which will protect his servant from “avoidable danger.”
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    Dan McGlynn, for appellant.
    N. C. Lyrla, for appellee; J. Ralph McMurdo, of counsel.
   Mr. Justice Myers

delivered the opinion of the court.

• This is an action in case brought by appellee against appellant to recover damages for personal injuries received by appellee while in the employ of appellant, on the first day of November, 1906. The amended declaration, on which the. case was tried, consists of two counts, to which the defendant filed a plea of not guilty. A trial by jury resulted in a verdict in favor of plaintiff for $500. A motion for new trial was made by the defendant and overruled, by the court. Judgment rendered on the verdict, and the defendant appealed.

The first count of the declaration alleges that the defendant negligently and carelessly ordered the plaintiff to pile and stack certain pieces of iron against the wall of a building without bracing the same and that while so employed, in obedience to the order and direction of the defendant, and in consequence of the said negligent order, the pile of iron fell upon and injured him. The second count alleges that the plaintiff was piling certain pieces of iron in obedience to the order and direction of the defendant, and it became and was necessary to brace the same to prevent its falling, and after the pile had been properly braced by the plaintiff, the defendant carelessly and negligently removed the braces and negligently ordered the plaintiff to pile the iron without bracing, and that because of the removal of said brace and ■support, and by reason of the said negligent order to pile the iron without being properly braced, the pile fell upon and injured the plaintiff.

The appellant was engaged in handling and dealing in all kinds of old iron and in certain kinds of new iron and for this purpose had a large yard in East St. Louis, where it employed a large number of men in and about the business. At the time of the accident, appellee was engaged with other men in unloading and piling a carload of angle-iron, which was in straight pieces, ten or twelve feet long and one or two inches wide on each side of the angle,- each piece weighing thirty or forty pounds. Appellee was directed by the foreman to attend to the piling of the iron as it was brought to him from the car by other men. He began by piling the iron upon a sill foundation, one side of the pile being against a wall, and for brace to the other side the appellee testifies that he drove two iron stakes two and a hálf feet from the wall and three feet apart. When the pile made in this manner had reached a height of eighteen inches, the appellee further. testifies that the foreman pulled up the stakes mentioned and ordered appellee to use binders or cross-pieces upon which to place the iron with angle up, the foreman at the same time showing how the work should be done, and told appellee that the pile would not fall and that he could safely proceed with the work in the manner directed. Some time after, while appellee was at work standing near the side of the pile, it toppled over and fell upon his foot and leg causing the injury complained of.

Appellant challenges the evidence and denies that negligence is shown, and in further defense invokes the doctrine of contributory negligence and assumed risk. There was evidence tending to prove the material allegations of the declaration, and therefore we must hold that the peremptory instruction asked by appellant was properly refused. But as there was sharp conflict of evidence bearing upon issues to be determined by the jury, a fair trial required that the instructions should clearly and correctly state the law to be applied. To sustain the action as alleged in the first count it was necessary to prove not only that the foreman ordered appellee to pile the iron in a particular manner, but that there was danger in doing the work that way, that the foreman knew, or by the exercise of reasonable care should have known, that it was dangerous, and that the appellee did not know, or by the exercise of reasonable care could not have known that it was dangerous to do the work in the manner directed. Swiercz v. Ill. Steel Co., 231 Ill. 456. The servant is held to assume the risks ordinarily incident to his employment, and, also, the risks incurred by obedience to a negligent order of the master, when the danger is, to him, as plainly apparent, open and understood as it is to the master who gives the order. The Gunning System v. LaPointe, 212 Ill. 274.

To sustain the second count, the plaintiff must establish by evidence that the removal of the stakes or braces, from the pile of iron caused it to fall, that the foreman knew, or by the exercise of reasonable care should have known, that this would probably ‘ result, that appellee did not know or by the exercise of due care for his own safety could not have known that he was endangered by the foreman’s act. . Here, as under the evidence applied to the first count, appellee assumed the known risk of consequence due to the foreman’s negligence. In any view of the case, it was important to the defense that the question of assumed risk should be fairly submitted to the jury. The. instructions should correctly state the law.

Appellee’s first given instruction read:

“The court instructs the jury that the law in this State is, that where an act is performed by a servant in obedience to a command from one having authority to give it, and the performance of the act is attended with a degree of danger, it is not necessary that the servant should balance such a degree of danger and decide with absolute certainty whether he must do it, or refrain from doing it, and his knowledge of attendant dangers will not defeat his right of recovery, if, in obeying such command, he acts with that degree of prudence ■ which an ordinary prudent man would exercise under the circumstances.”

The jury are told here that appellee’s “knowledge of attendant dangers will not defeat his right of recovery,” which is not the law, for, as already-stated, and within the established law of this state, if he knew the danger he assumed the risk and cannot recover. McCormick Harvesting Machine Co. v. Zakzewski, 220 Ill. 522. In that case the court says: “The true rule in this regard is that the servant assumes not only the ordinary risks incident to his employment, but also all dangers which are -obvious and apparent, and if he voluntarily enters into or continues in the service, knowing its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury resulting, from such dangers.” In discussing the doctrine of assumed risk, in C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492, the court said: “Contributory negligence and assumption of risk are entirely different things in the law. Although the two questions may both arise under the facts of a case, yet these are wholly separate and distinct. Every person suing for a personal injury must show that he was in the exercise of ordinary care and caution for his own safety, so that the question of contributory negligence may be involved in every case; but an employe may have assumed a risk by virtue of his employment, or by continuing in such employment with knowledge of the defect and danger, and if he is injured thereby, although in the exercise of the highest degree of care and caution, and without any negligence, yet he cannot recover.” Cichowicz v. International Packing Co., 206 Ill. 346. Instructions 2 and 3 authorize a recovery without regard to the question of assumed risk and for reasons stated are erroneous. The fourth instruction is erroneous and highly misleading, in that it imposed upon the master, appellant in this ease, the duty to adopt precautions that would have protected the servant, appellee, from “avoidable danger.” Prom this instruction the jury must have understood that the danger to which the appellee was exposed in piling the iron was “avoidable,” and because of appellant’s failure to adopt precautions to protect appellee, the verdict must be for' appellee. Appellee’s instructions should have been refused, and for the error of the court in giving them the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Albert B. Ogle et al., Plaintiffs in Error, v. City of Belleville et al., Defendants in Error.
    1. Municipal corporations—how legality of annexation cannot he questioned. The legality of annexation proceedings cannot be collaterally attacked.
    2. Municipal corporations—how legality of annexation must he questioned. The legality of annexation proceedings can only be questioned by quo warranto.

    Bill in chancery. Error to the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Winkelman & Ogle, for plaintiffs in error.
    A. H. Baer, for defendants in error.
   Mr. Justice Myers

delivered the opinion of the court.

This is a bill in chancery filed by the plaintiffs in error against the City of Belleville and others, members of the city council, for the purpose, as stated by counsel for plaintiffs in error, to compel the defendants to restore money alleged to have been squandered by city authority and to restrain by injunction the payment of other money in the erection of a police station, electric lights, etc., in territory alleged to have been illegally annexed to the said city of Belleville. A demurrer to the bill was sustained and the complainants elected to stand by the bill. A decree was entered dismissing the bill without prejudice at the costs of complainants, who prosecute this writ of error. It is represented by the bill that on the 18th day of June, 1906, a petition for the annexation of certain described territory to the city of Belleville was presented to the city council by whom the prayer of the petition was granted, and a resolution passed submitting the question of the proposed annexation to the voters at an election to be held July 31, 1906. It is further alleged that the petition did not contain the signatures of the legally required number of property owners within the territory proposed to be annexed; that on July 16th, certain parties notified the mayor and council that the petition presented did not contain a majority of the property owners; that on July 13, complainant and others filed their bill in the Circuit Court and obtained a temporary injunction, which was afterwards dissolved on motion of the defendants; that a majority of the voters at the election held July 31st were in favor of the annexation, and thereupon the city paid the election expenses amounting to the sum of $700. It is then alleged that the mayor and council have declared their intention and purpose to erect a police station and provide electric lights and other public improvements in the annexed territory, and pay for the same out of the public fund. The bill represents that the petition for annexation, when presented and acted on by the mayor and council, contained 272 names; that a large number of the names were improperly on the petition; that only 191 property owners had signed the same, and that there were in fact 902 property owners within the annexed territory. The foregoing is a substantial statement of the facts set out in the bill. We think, as must have concluded the chancellor who rendered the decree, that the complainants have mistaken their remedy for grievances set out in their bill of complaint. The relief prayed for is founded upon the supposed illegality of the proceedings by the mayor and council in annexing territory, for without this presupposition the payment of election expenses and the making of public improvements was legitimate and proper and the complainant is without cause of grievance alleged. This proceeding must therefore be treated as a collateral attack upon the corporate action of the city of Belleville and obnoxious to the well-established legal proposition that the remedy, if any, is by quo war-

Yanto and not bill in chancery. In the case of Evans v. Lewis et al., 121 Ill. 478, it was held, that the legality of the formation and organization of a drainage district, or of the extension of its boundaries, so as to take in additional lands, cannot be inquired into or questioned by bill in chancery to enjoin the collection of assessments and that the proper remedy in such cases is by quo warranto. See also, The People ex rel. v. Peoria, 166 Ill. 517; Keigwin v. Drainage Commissioners, 115 Ill. 347; Renwick v. Hall, 84 Ill. 162. From atight that appears in the bill, the city acted in conformity with every legal requirement in proceedings to annex territory, the only complaint being that the petition did not contain the required number of property owners. Whether it did or not was for the council to determine. It must be presumed that the council determined correctly, and that the petition was legally sufficient until challenged .by direct and appropriate proceedings, which, as already indicated, is not by bill in chancery. In Osborn v. The People ex rel., 103 Ill. 224, where it was held that the legality of the organization of a corporation cannot be attacked and judicially examined, only in a direct proceeding by quo warranto, the court gives the reasons which justify the rule: “That can only be done by quo warranto, which is a direct proceeding to determine its validity. 'This, from the nature of things, must be so, otherwise no question could ever be adjudicated. Every proceeding before tribunals and officers, if permitted, would lead to an inquiry whether they were legally acting. If it were permitted, in every suit before all courts, from the highest to the lowest, the defendant might question the election of the 'judge and enter into a contest of his election. In all suits by the state, its organization might be reviewed and decided. In suits by counties it might be claimed that the. law authorizing their organization had not been complied with, and efforts made to show a want of compliance with the law. It would lead to an inquiry whether the territory comprising a county had the requisite population to organize; whether the proper notices for elections had been given, and other statutory requirements performed; and the same would follow as to every municipal corporation, and the election of every officer, before his acts would be regarded as legal. If this was allowed, in every constitutional question for determination, the courts would, if insisted upon, be compelled to hear evidence and determine whether all of the required steps were taken in calling the convention that framed.it, or in giving notice and conducting the election that adopted it, and canvass the vote, purge the polls, and re-count the votes, to determine whether all of the requirements of the law were satisfied. Thus it is seen that the highest considerations of public policy forbid the inquiry whether a corporation is legally organized in any but a direct proceeding.”

We find nothing in authorities cited by plaintiffs in error which are in conflict with the legal proposition which, as above indicated, must control under the facts in this case. The decree of the Circuit Court is therefore affirmed.

Affirmed.


text:
    The People, ex rel. M. L. Williams, Defendant in Error, v. United States Life Endowment Company, Plaintiff in Error.
    1. Insurance—what does not repeal act of 1891 prohibiting unjust discrimination. The act of June 22, 1893, entitled “An act to incorporate companies to do the business of life or accident insurance on the assessment plan,” does not repeal by implication or otherwise the act of June 19, 1891, entitled “An act to prevent abuses and unjust discriminations,” etc.
    2. Insurance—what companies subject to provisions of act of 1891 prohibiting unjust discrimination. All insurance companies doing business in this state, including those organized upon the assessment plan pursuant to the act of June 22, 1893, are subject to the provisions of the act of June 19, 1891, prohibiting unjust discrimination.
    3. Insurance—act of 1891 prohibiting unjust discrimination construed. This act does not authorize the imposition of a penalty for each violation.
    Action in debt. Error to the Circuit Court of Union county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    Carroll C. Boggs and George W. Crawford, for plaintiff in error.
    James Lingle, for defendant in error.
   Mr. Justice Myers

delivered the opinion of the court.

The action was in debt by the People on the relation of M. B. Williams for a judgment inflicting fines on the plaintiff in error endowment company for alleged violations of the act of the General Assembly approved June 19, 1891, entitled “An Act to prevent abuses and unjust discriminations of and by Life Insurance Companies doing business in this state, between insurants of the same class and equal expectation of life, in the rates, amount or payment of premium, in the return of premiums, dividends, rebates or other benefits.”

The declaration contained four counts charging four alleged violations, but on the hearing the court found the endowment company not guilty of the charges in the 3rd and 4th counts. The court held the endowment company guilty on the first and second counts of the declaration and assessed two fines, each of $500, one on the first count and the other on the second count. The first count alleged the endowment company incorporated under the act approved June 22,' 1893, entitled “.An act to incorporate companies to do the business of life or accident insurance on the assessment plan,” etc., and that in Union county, Illinois, on the 18th day of April, 1906, it issued a policy of insurance to Jiles W. Adams, and “did not before that time or afterwards charge, collect, demand or receive from said Adams the sum to wit, of $2 membership fee and the sum of $1 certificate fee,” and that such membership fee of $2 and certificate fee of $1 were the regularly established fees and charges of the company in securing like insurance and were part of the established and published expenses of obtaining like insurance from the company, whereby the count alleged the company violated the provisions of the statute of June 19, 1891, relating 'to unjust discrimination, etc. The second count charges the issuance of a policy to Clarence Knupp, and the like omission to charge or receive the membership fee of $2 and the certificate fee of $1, and alleged that this was in violation of said act of June 19, 1891.

The court overruled a demurrer to the declaration, and the endowment company pleaded over. The cause was submitted to the court without a jury, on an agreed statement of facts, substantially as follows: That George W. Werner, an agent of the endowment company, took applications for policies of insurance from Adams and Knupp (the persons named respectively in the first and second counts of the declaration), and that policies were afterwards issued to said applicants; that said Werner, under his agreement with the endowment company, was entitled to receive and retain all membership and certificate fees; that such membership and certificate fees belonged to said agent as his individual property; that he was not required to report such fees to the company; that the company had no interest in such fees and no right to them if collected, and that said Werner did not require either Adams or Knupp to pay their membership or certificate fees, etc. A circular or folder issued by the company was made part of the stipulation which contained the following:

“the EXPENSES.

Membership fee, $2.00

Certificate fee, 1.00

Medical fee, 1.00

Total $4.00

and first' month’s dues in' advance.” The stipulation of facts also exhibited the form of the policy issued by the endowment company. The Circuit Court adjudged the endowment company guilty of two violations of the act of 1891, for which it imposed two fines, each in the sum of $500. The company brings the record to this court on writ of error to reverse this judgment.

It is first contended by counsel, that the Act of 1893, under which the plaintiff in error was authorized and organized, being made a complete code within itself for the organization, management and control of insurance business on the assessment plan, is a revisionary act, substituted for prior legislation upon that subject, and to operate as a repeal of the Act of 1891, under which the prosecution of this ease was instituted. The argument in support of this contention is able and elaborate in giving the history and analysis of insurance legislation in this state, and in the citation and review of authorities bearing upon the rule of construction applied by the courts under similar conditions, but we are not persuaded to adopt this construction. The Act of 1891 is a penal statute, a legislative provision to define and punish offenses deemed to be subversive of the public welfare, the exercise of police power and though the penalties are inflicted by civil process, it is quite within the scope and purpose of criminal legislation. For convenience in reference, the compiler of the statutés may have given it place in the “Insurance” chapter, rather than in the “Criminal Code.” The Act of 1893 provides for the organization of insurance companies on the assessment plan, and for the regulation and control of such companies, doing business in this state, and also provides penalties for violation of the statutory requirements; but there is no provision dealing with the subject of discrimination between insurants under policies issued by such assessment companies. This act is limited by title, and in all its provisions, to one class of insurance companies, whereas the Act of 1891 was made a general law to which all insurance companies, whatever their plan, organized or doing business under the laws of this State, are subject. There is nothing in the later statute which in terms or by construction may be held repugnant to the earlier enactment, and it is reasonable to suppose that because of an existing statute of general application the legislature did not deem it necessary to provide by the Act of 1893 against discrimination. There was no attempt to repeal by express provision, nor can we hold that such was the legislative intent in passing the Act of 1893. Holding to the construction of the statute, as indicated, that it was intended to prevent discrimination between insurants by insurance companies, then in existence or thereafter organized, we are of opinion that the plaintiff in error may be subject to the penalty provided, upon allegation and proof that it transacts its business in this state in violation of the provisions of the Act of 1891. And as evidence tending to show that it so transacts its business, proof of payment or allowance, or promise of payment or allowance, by the company or its authorized agent “as an inducement to insure” would be admissible in a trial to establish the charge of unlawful discrimination before a court or jury.

The statute does not authorize a penalty of $500 to $1,000 for every act which may evidence that the “business” of the company is being conducted in violation of law. Section 1 of the statute provides, that no life insurance company shall make or permit unjust discrimination as therein defined. Section 2 provides, that if such life insurance company shall make the prohibited discriminations it shall be deemed guilty of having violated the act, and (section 3) “Any such life insurance company * * * which shall transact its business in this state in violation of the provisions of this Act shall * * * be subject to a penalty of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000). * * * And it shall be the duty of the Auditor of Public Accounts, upon conviction had as aforesaid or penalty recovered against any ° such company or the agent thereof * * * at once to revoke, cancel and annul the certificate of authority issued to any such agent by the Auditor of Public Accounts.”

Penal laws are strictly construed, and no intendment will be allowed to extend the meaning so as to create an offense not clearly defined, or impose penalties not expressly authorized. There is nothing in the wording of this statute or by any intendment justified under well-established rules for the construction of penal statutes, to warrant a penalty for each and every evidentiary fact that may be shown in evidence to establish the statutory offense, viz., that the insurance company transacted its business contrary to law. The magnitude of the penalty imposed and the consequence of non-compliance with the law—forfeiture of the right to do business in this State—precludes the inference that such was the legislative intent. The purpose of the law was not to destroy, but to regulate the insurance business. Under the construction urged by defendant in error a vigorous and industrious informer on the trail of well-meaning but over-zealous agents who use a part of their allowance to ■ secure policy-holders would find “discriminations” within the letter of the law sufficient to bankrupt and destroy the company, even though such agents acted without authority or knowledge of their principal. In such case can it be said that the insurance company “transacted its business in violation of the provisions of the Act” and-is to be subject to the heavy penalties imposed for each and every act which may go in proof, that it does so “transact its business?” It is not so expressed by the statute and cannot by legal and proper intendment be read into the law.

The declaration does not charge the offense for which a penalty may be recovered, and therefore the judgment was unauthorized and will be reversed and the cause remanded.

jReversed and remanded.


text:
    William A. Lagow, Appellant, v. John Hill et al., Appellees.
    1. Injunction—when does not lie at instance of taxpayer. An injunction does not lie against school directors at the instance of a mere taxpayer where it does not appear that he has been injured in his property rights or that such rights are in anywise threatened or in danger.
    2. Schools—power of directors to lease school property. Held, that the lease of school property made the subject of attack in this case was within the authority of the school directors to make.
    Bill in equity. Appeal from the Circuit Court of Lawrence county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the February term, 1308.
    Affirmed.
    Opinion filed September 12, 1908.
    Gee & Barnes, for appellant.
    George W. Lackey, Noah M. Tohill and J. A. Benson, for appellees.
   Mr. Justice Myers

delivered the opinion of the court.

This was a proceeding by bill in equity filed by appellant as a taxpayer against appellees as school directors, to enjoin and prevent the use by certain fraternal societies of an otherwise unoccupied part of a school house in a district where appellant owns land subject to taxation. A temporary injunction was granted, which, upon final hearing by the court, upon bill, answer and replication, was dissolved and the bill dismissed for want of equity. To reverse this decree an appeal was taken and the record brought to this court for review.

It appears from the evidence that in District.No. 6, township 5, north range 11 west, in Lawrence county, there is a large two-story brick school building erected years before the commencement of this suit. The building was much larger than was required or needed for school purposes. There were two school rooms on the first floor and on the floor above one large room and a small room designed for a superintendent’s office when there should be a superintendent and need for an office. In order to supplement and enhance the meager funds that could be raised by taxation within the legal limit, and thereby maintain the school for the full period of six months during the year, the directors rented the unoccupied and unused upper part of the building to certain fraternal societies for lodge purposes. For this they realized and turned into the school fund about $75 a year. It was the express understanding and agreement between the directors and lodges that the leases or lettings were contingent upon the need of the premises for school purposes, and could be terminated by the directors at any time. Whether so understood or not, the lodges were tenants • at sufferance and could have been ousted by the directors at any time the premises were needed for school purposes. There is no allegation, averment or proof that the school house or school property was in any way damaged, or that the schools. were in any manner disturbed or interfered with, or that teachers, pupils or patrons were inconvenienced, annoyed or molested in any way. It does not appear that anybody, other than appellant, ever complained, so that it may fairly be inferred that other citizens and taxpayers in that neighborhood and district are unconscious of the alleged wrong-doing of the directors. It is not shown or contended in argument, that appellant or any other taxpayer has been injured one cent by reason of the thing complained of. The taxes have not been increased, nor is the collection and appropriation to public use of the rent received calculated to increase the burden of the taxpayer. It is an established principle in equity practice, that where it appears from the pleading or evidence, at any stage of the proceedings, that the complainant has not been injured in his property rights, and ■ that such rights are in nowise threatened or endangered, his bill should be dismissed. “A court of chancery will not entertain a bill to enforce a mere valueless abstract right and the court will of its own motion raise the point for its own protection. ’ ’ Dunnom v. Thompson Mfg. Co., 58 Ill. App. 390. The action of the directors in this case was within the express powers conferred by statute, which provides that “they shall have the control and supervision of all school houses in their district, and may grant the temporary use of school houses when not occupied by schools * * * for such meetings as the directors may deem proper.” • The letting of the premises was only “temporary” within a reasonable construction of the statute, the lodges being tenants at sufferance, under their lease as well- as under the law, subject to ouster whenever the directors so willed. They occupied the premises from time to time and day by day, and the length of time they have so used and been in possession of a part of the school building does not determine the character of their lease or privilege. The decree of the Circuit Court was right and should be affirmed.

'Affirmed.


text:
    The Andrews Heating Company, Appellant, v. George B. Abbott, Appellee.
    1. Recoupment—limit of rights under 'defense, of. Where á recoupment is interposed, the amount of the plaintiff’s claim may be reduced or totally defeated but no recovery over may properly be allowed.
    2. Appeals .and errors—when reversal will not he ordered. Where the error determined by the Appellate Court is merely that a judgment was rendered for an amount in excess of what the law would, under the state of the pleadings, in any event, permit, the error is one which may be corrected in the Appellate Court without remanding the cause for a new trial.
    Mechanic’s lien. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed in part; affirmed in part, and judgment here.
    Opinion filed September 12, 1908.
    O. L. Voigt and C. E. Pope, for appellant.
    Keeps & Sullivan, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

Appellant filed a bill in the City Court of East St. Louis against the appellee to establish a mechanic’s lien for an unpaid part of the purchase price of a hot-water heating plant. The substance of the contract set out in the bill is, that appellant agreed to furnish and install a complete hot-water heating apparatus in-.a building owned by appellee, for which appellee was to pay the sum of $434, fifty per cent upon receipt of radiators, and the balance, $217, “upon receipt of heater properly installed and all labor well and fully performed by first party” (appellant). The size, material, design, pipe connections, radiation, room-space to be heated, and other details usual in such construction were fully specified in the contract. Appellant guaranteed “all material to be perfect * * * and the plant to-be capable of continuously heating the designated rooms to seventy degrees in the most severe weather if the building is well constructed.” It is alleged by the bill that appellant installed the heating plant according to the contract and that appellee accepted and used the same after the work was completed.

It is conceded that appellee paid the first instalment, $217, when the radiators were delivered, but refused to pay the balance; and to enforce the payment of this balance of $217 this proceeding was commenced. It is also conceded that proper and timely statutory notice was filed by appellant with the circuit clerk. The bill prays for an accounting and decree for lien upon the premises for the balance found to be due the complainant. By answer filed, the appellee admits the making of the contract and the installation of the plant, but denies that the apparatus supplied and the construction of the plant was in accordance with the contract or the guaranty contained therein. It is averred in the answer that the heating apparatus was insufficient and incapable for heating the building to seventy degrees in severe weather, as guaranteed by the contract. Other defects relating to the construction of which complaint is made, are set out in sufficient detail by denials in the answer. Under leave of the court the appellee amended his answer wherein he claimed to have sustained loss and damages by reason of appellant’s failure to install the plant according to agreement. The damages specified by the amendment are as follows: Loss in rents $600; paid on' order of appellant $100; damage to building $300; janitor service $240; first instalment paid $217. A general replication to the answer was filed and the case tried by a jury which returned the following' verdict: “We the jury find the issues for the defendant and assess his damages at $200, the amount of damages that the defendant has sustained.” From a' decree rendered on the verdict in favor of defendant and against complainant for the sum of $200, the complainant appealed to this court.

All the questions discussed in argument are within the assignment of errors. There being no complaint that the issues to be tried by the jury were not formulated and directed by the court as required by statute in chancery practice, we assume that the parties consented to the mode of trial adopted. At any rate, not having objected, they may now be held to have waived the informality. As we understand the record in this case, it is not material whether the verdict is conclusive upon questions of fact as in a trial of an ' action at law, or merely advisory and in aid of the chancellor, as in equity proceedings. After careful examination of the evidence we are of opinion that the evidence justifies the finding of court and jury that appellant failed in its guaranty of a plant capable of heating, the building to seventy degrees in severe weather according to proposal and contract, and that the failure in this respect was not due to the construction of the building, nor to the improper use of the plant by appellee. We are furthermore of the opinion that there is evidence to support the counter-claim filed by appellee to the extent, at least, of the unpaid balance claimed by appellant under the contract, and that the verdict and finding of the court should have been for the defendant. But as the verdict and decree in favor of appellee for $200 in excess of. appellant ’s claim must have been by the allowance of damages in recoupment, and not in set-off, the verdict over, the allowance of damages in excess of appellant’s claim was without authority of law, and may, therefore, be disregarded by judgment in this court. In statutory proceedings to enforce a mechanic’s lien “the owner shall be entitled to make any defense against the contractor, by way of set-off, recoupment or counterclaim that he could in any action at law, and shall be entitled to the same right of recovery on proof of such in excess of the claim of the contractor.” In an action at law the defendant may recoup unliquidated damages arising out of the same transaction to the extent of plaintiffs demand, but may not recover over. Such is the familiar and well-established doctrine in this State. The evidence of appellee’s counter-claim in this case related to unliquidated damages, excepting, only, the item specified for money “paid on order of appellant,” and as to that item more than $100 was claimed or proved. Under the evidence there is no basis for appellee’s claim to have refunded in set-off the $217 payment made by him on the contract. There is no evidence of timely refusal to accept the apparatus, nor demand for return of the money paid, nor was there any express rescission of the contract on his part. So that it is apparent of record the allowance to appellee of $200 damages, in excess of appellant’s demand, is based wholly upon proof of unliquidated damages which, in this proceeding as in an action at law, may not be done. Inasmuch as there was error in allowing a judgment for damages in excess of what the law permits, that is a judgment on items which could only be allowed in recoupment, and as this is the only error to be corrected, it will not be necessary to remand the cause. Lyman et al. v. Kline et al., 128 Ill. App. 497; Indiana Millers Mut. F. Ins. Co. v. People, 65 Ill. App. 355; Chicago Smokeless Fuel Gas Co. v. Lyman, 62 Ill. App. 538.

It is therefore ordered, adjudged and decreed that the bill or petition herein be dismissed for want of equity or right to mechanic’s lien as. therein prayed, that final judgment as above indicated be rendered in this court in favor of appellee and against the appellant for costs.

Reversed in part, affirmed in part, and judgment here.


author: Mr. Presiding Justice Smith

text:
    Charles W. Colehour et al., Appellants, v. George Bass Appellee. Charles W. Colehour, et al., Plaintiffs in Error, v. Ira J. Geer, Executor, etc., Defendant in Error. Charles W. Colehour et al., Appellants, v. George Bass et al., Appellees.
    Gen. No. 13,244.
    Gen. No. 13,801.
    Gen. No. 13,611.
    Consolidated for Hearing.
    1. Costs—power of court to order payment of master’s fees. Where it appears that a master in chancery has performed services and earned fees in connection with pending litigation and with reference to the fund which was in the possession of the court in such litigation for administration and settlement, the court has power to order the fees of such master to be paid out of such fund.
    2. Assignments—what constitutes equitable. A written acknowledgment of an indebtedness and an agreement to pay the same out of a fund in litigation, which likewise contains a consent to the entry of an order by the court decreeing such payment, constitutes an equitable assignment of the fund in litigation to the amount of the indebtedness in question.
    3. Assignments—what essential to equitable. No particular form of words is necessary in order to constitute an assignment valid in equity. Any instrument is sufficient which shows an intention of transferring or appropriating a fund or chose in action to the assignee for a valuable consideration to constitute an assignment in equity.
    4. Assignments—rights of equitable assignee. A person having an equitable assignment of a fund which is in control of the court will be permitted, under the modern equity practice, to file an intervening petition in the cause wherein the court has control of the fund and set up his interest therein, and his interest will be protected by the court.
    5. Practice—when not error to refuse to set aside default. It is not error for a court of chancery to refuse to vacate a default if the motion to vacate is unaccompanied by an answer and if the affidavit made in support of the motion fails to show the necessary diligence upon the part of the moving party.
    6. Practice-—when answer may not be filed as matter of right. The mere fact that a court of chancery permits an amendment correcting a clerical error, does not authorize a party, as a matter of right, to file an additional answer.
    Bill in chancery. Appeals from and error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 6, 1908.
    Rehearing denied October 23, 1908.
    Statement by the Court. These eases are here upon appeals and a writ of error. The appeal in No. 13244 brings up for review a decree of the Circuit Court in favor of appellee George Bass allowing to him fees as a master in chancery. The writ of error in 13801 brings before us for review a decree of the Circuit Court entered April 30, 1906, in favor of George Bass and Ira J. Geer, executor of the will of William C. Goudy, deceased, and also a decree entered October 24, 1906, in favor of Geer, as executor, and Bass, And the appeal in No. 13611 brings up for review- a decree entered in the Circuit Court October 24, 1906. These decrees were entered in the litigation known to the courts and the profession as Colehour v. Roby. An order was entered by this court July 16, 1907, consolidating the three cases in this court.
    The history of the litigation in Colehour v. Roby up to the dates of the opinions in Roby v. Colehour, 135 Ill. 300; Roby v. Colehour, 146 U. S. 153; and in Roby v. Title Guarantee & Trust Co., 166 Ill. 336, is stated in those cases. It was begun in January, 1890, by the filing in the Circuit Court of four separate bills which were afterwards consolidated, and in May, 1890, William H. Colehour filed a cross-bill against Roby and Charles W. Colehour. Upon the issues made and the evidence offered a decree was entered by the Circuit Court which was affirmed in Roby v. Colehour, supra.

    A receiver was appointed and the record shows receiver’s accounts, petitions presented by the receiver and orders entered thereon, and actions taken by the receiver in pursuance of the court’s directions, the main features of which may be indicated as follows:
    The receiver was unable to realize by sales of the lands sufficient funds to make redemptions and pay the taxes upon the land; it was authorized to advance money to pay the taxes and was allowed interest upon its advances for that purpose, and was given a lien upon the land for moneys so advanced, subject only to the liens established by the decree, and the advances so made were to be paid out of the sales of the land. The receiver was authorized to issue receiver’s certificates bearing interest at eight per cent, and to raise $110,000. It was afterwards authorized to take up these certificates with its own funds at seven per cent, interest and was given a first lien on the trust estate. With the money raised and advanced by the receiver redemptions were made from tax liens and foreclosure sales. On March 7, 1893, the receiver’s disbursements in excess of its receipts were upwards of $100,000' .
    The accounts of the receiver were referred to a master in chancery, whose report was approved by the court in the decree of January 30, 1896, which was affirmed by the Supreme Court in Roby v. Title Guarantee & Trust Co., supra.

      William H. Colehour died June 30, 1895, leaving him surviving his widow Carrie M. Colehour, and two daughters, Carrie and Edith; and by his will he made his widow sole devisee of his estate. The cause was revived and proceeded in the name of the widow and two daughters above named in place of said William H. Colehour, deceased.
    A decree was entered April 24,1896, based upon the master’s report on the accounting, and the evidence returned therewith. By this decree it was adjudicated that Carrie M. Colehour, as executrix of the estate of William H. Colehour, was entitled to. his share in the net profits to be derived from the sale of lands; that Edward Boby owed the trust estate $37,961.93; that Carrie M. Colehour, as executrix, owed said trust estate $5,361.76 and owed Roby $400; and that the trust estate owed Charles W. Colehour $43,656.68; and that in order to properly adjust the rights of said parties as in the decree of June 12,1890, and in this decree declared, it was necessary to sell and convert into money all the real estate belonging to said trust estate remaining unsold in the possession and control of said receiver. No appeal was ever perfected from this decree.
    The appellees and defendant in error George Bass, and Ira J. Geer, executor, etc., filed separate intervening petitions by leave of court, praying for relief against the estate in the hands of the receiver.
    George Bass was the master in chancery to whom, by the decree of June 12, 1890, the cause of Colehour v. Roby was referred for an accounting. There was also a reference to him of the cause by an order entered February 24, 1890. Much testimony was taken and reported and applications were made to the court to secure the payment of his master’s fees, and two orders or decrees were entered in the cause in his favor prior to the decree of June 25, 1906, now before us.
    The first order or decree upon the claim of Bass was entered July 8, 1892, upon a petition by him, by which the receiver was ordered to “pay said master the sum of $393 for taking testimony on the part of said complainant,” as soon as the receiver should have money belonging to said estate after paying the present indebtedness of the receiver in behalf of said estate. This was for testimony taken before the case went to the Supreme Court.
    The second order or decree in favor of Bass was entered May 4, 1895, on the motion of Charles W. and William H. Colehour, finding that there was due him $2,000 for taking testimony and for his reports and his various charges since June 12, 1890, and that said sum be paid to him by the receiver with five per cent, per annum thereon out of any money in the receiver’s hands belonging to said Charles W. Colehour and William H. Colehour or either of them.
    The services for which compensation was allowed by the second decree were additional to those covered by the first decree.
    On June 21, 1905, Bass filed an amended petition which set up the decrees for $393 and $2,000 and the. decree of June 12, 1890, appointing the receiver and ordering a sale of the property, and the decree of April 23, 1896, in which the court declared that to adjust the rights of the parties it was necessary to sell all the real estate belonging to the trust, and directed sales to be made. The amended petition shows that some of the property is still unsold, and alleges facts tending to show the futility of further delay in selling, and prays for a rule upon the parties to show cause why said fees should not be paid, and that the receiver, if without funds, be directed to sell, and for general relief.
    A hearing was had on this petition and answers thereto, and the decree of June 25, 1906, now before the court for review, was entered. The decree finds the entry of the two previous orders or decrees for $393 and for $2,000 and interest; that no part thereof has been paid; that the Chicago Title & Trust Company is the present receiver, and that said Bass is entitled to be paid the said sum of $393 as soon as the receiver has moneys as the proceeds of the property in its hands, after paying itself; that Bass is also entitled to be paid $2,000 with interest at five per cent, from May 4, 1895, out of any moneys that may at any time be in its hands belonging to Charles W. Colehour or the estate of William H. Colehour, deceased, or either of them; and that it appears from the receiver’s report that it has no moneys out of which to pay either sum or any part thereof. It is ordered that Bass have leave to apply hereafter for an order respecting the payment thereof; and further, that the decree entered in the cause April 24, 1896, shall be regarded as in full force and effect and unaffected by any agreement of settlement that may have been made since its entry.
    Charles W. Colehour, Carrie M. Colehour and Edward Roby were allowed an appeal jointly or severally. Charles W. Colehour and Edward Roby gave bond and perfected this appeal from that decree.
    The writ of error in No. 13801 brings before us for review a decree entered April 30,1906, in favor of Ira J. Geer as executor of the last will of William C. Goudy, deceased, against Charles W. Colehour et al., the plaintiffs in error. The decree finds and adjudges that Geer as executor is entitled to have and recover from Carrie M. Colehour $11,300.98, and from Charles W. Colehour and Carrie M. Colehour $17,419.14, and that said sums are payable out of such funds, if any, as may be in the receiver’s hands after paying costs, etc.
    The appeal in No. 13611 is from the order or decree of October 24, 1906, which was entered under the following circumstances: After the entry of the decrees in favor of Bass, and of Geer, as executor, a decree or order was entered on August 23, 1906, by a judge of the Circuit Court, sitting to hear emergency matters during the so-called summer vacation period. This order was entered without notice to either Bass or Geer, and recited that the Colehours and Roby had settled their differences, and directed that the decree of April 24, 1906, determining their interests and the necessity for the sale of all the property he annulled, and that all pro visions of the decrees in said cause as to costs he vacated, and that no costs be recovered by or against any party, etc. On the motion of Bass and Geer, made at the same term of court and continued, the order of October 24, 1906, appealed from, was entered, modifying’ the order of August 23, 1906, so that nothing contained therein shall prejudice or in any wise affect the rights or liens of Bass or Geer under said respective decrees theretofore entered, and holding their said rights and liens in full force and effect, and not affected by the order of August 23, 1906.
    Edward Roby, for appellants and plaintiffs in error.
    Timothy F. Mullen, Ira J. Geer and J. R. Custer, for appellee and defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The first general contention on behalf of appellants is that the nature of the suit and the proceedings in Colehour v. Boby and the receivership therein were of such a character that neither Bass, nor Geer, as executor, etc., could have or acquire any standing in the case for relief, and therefore the orders or decrees giving them relief were and are erroneous.

In support of this position much of the argument of counsel for appellants is based on matters which must be regarded as settled adversely to appellants’ contentions by the decrees of June 12, 1890, and of January 30, 1896, which have been affirmed by the Supreme Court. Roby v. Colehour, 135 Ill. 300, and Roby v. Title G. & T. Co., 166 id., 336. These decrees are binding adjudications under which the title and possession of the property involved became vested in the receiver. The Colehours and Roby were adjudged partners in the net profits of the venture and their proportionate interests in the profits and also their rights inter se were settled. Before the decrees now before us for review were entered, it had also been adjudged necessary in order to adjust the rights of the parties to sell and convert into money the entire property in the receiver’s hands. The propriety of the appointment of the receiver and the powers conferred upon the receiver are settled, we think, by those decrees, whether all the questions upon-those decrees were raised in the Supreme Court or not, on the appeals prosecuted therefrom. In our opinion the original suits were brought to settle a partnership, and under the pleadings an accounting was necessary for that purpose. The court had the power to appoint the receiver and order the parties to convey their titles to the lands in controversy to the receiver as a necessary step to preserve and protect the partnership assets and to a proper administration of the partnership affairs. The receiver was not a mere trustee only with the powers limited by the order of appointment, but it was the hand of the court in the practical settlement of the controversy before the court; and the powers of the receiver might be enlarged or withdrawn as the exigencies of the situation demanded, in working out the equities of the case. These appeals, and this writ of error, do not bring before us any questions of that nature. The relief asked for by the appellees and the defendant in error was subordinate to such orders and proceedings, and in recognition of their validity, and the relief granted was of the character asked by the petitions. All errors therefore assigned upon other orders or decrees than those before us must be disregarded, and likewise all arguments based thereon.

Regarding the decree of June 25, 1906, the record shows that Bass was a master in chancery of the Oircuit Court in which the litigation was pending’, and that the fees charged and allowed were incurred by the parties for the master’s services under orders of reference. The items allowed were not at the time they were allowed questioned by Charles W. Colehour and William H. Colehour, at whose instance and request, as well as at the request of Bass, they were ordered paid out of the Colehour fund in the receiver’s hands. It appears that the master’s services were performed and his fees earned in the litigation, and with reference to the subject of the litigation or fund which was in the possession of the court for administration and settlement. We think the court had the power to protect its officers and order the fees to be paid out of the funds named in the decree. 2 Daniels Ch. Pr., pars. 378 and 1380; 2 Beach Modern Eq. Jur. 979, sec. 1013. Courts of equity have a-large discretion in the matter of costs, and frequently give costs in intermediate stages of a case without waiting for a final decree. 11 Cyc. 98; Avery v. Wilson, 20 Fed. R. 856.

The objection that the petition of Bass is informal is without merit, for no petition was necessary. A mere motion was sufficient.

In our opinion, the decree of June 25, 1906, is free from material error and must be affirmed.

The decree of April 30, 1906, in No. 13801, in favor of defendant in error Ira J. Geer, executor, etc., is based on a claim for services rendered and loans to the Colehours guaranteed by William C. Goudy, deceased, in his lifetime, in regard to the lands involved in this cause, and other lands. Mr. Goudy as solicitor for the Colehours procured the decree of June 12, 1890, in favor of the Colehours and against Boby declaring that the lands and lots involved in the litigation were unlawfully held by Boby, directing an accounting and .appointing a receiver to take title to the property and to hold and sell it, etc.

The trust estate was liable to be lost by the expiration of redemption under foreclosure. At the last moment and under the most difficult circumstances Mr. Goudy procured loans of about $146,000, $110,000 of which "was secured by receiver’s certificates, the payment of which was personally guaranteed by him. Roby v. T. G. & T. Co., supra.

It appears that in June, 1891, Mr. Goudy and the Colehours made a settlement of the amounts then due to Mr. Goudy from the Colehours, and they gave him three written instruments dated June 30, 1891, acknowledging the indebtedness to him and assigning to him the amounts thereof out of the moneys to become due to the Colehours from the. sale of the lands by the receiver. These three instruments are shown by the exhibits attached to' the petition of Geer designated as “Exhibit A,” “Exhibit B,” and “Exhibit C,” respectively in the record. The last one, “Exhibit C,” is different in form from the others and does not contain formal words of assignment, but it contains an acknowledgment of the indebtedness and an agreement to pay it out of the fund in question and authorizes and consents to. the entry of such an order by the court whenever Goudy shall apply for the same. We are of the opinion that it was an equitable assignment by the Colehours of the amount therein named out of their shares of the estate in the receiver’s hands.

The record shows that Mr, Goudy continued to render services to the Colehours until his death, April 27,1893, and that the Colehours at that time owed him further moneys for legal services and disbursements. On September 19, 1893, the Colehours executed an assignment to the executors of Mr. Goudy for $1,622, to be paid out of moneys due to them arising from the sales of lands by the receiver, with interest thereon at five per cent. The assignment contained their consent to the entry of an order in the case for the payment of the money by the receiver.

On June 30, the first three instruments above named were exhibited to the receiver, and on December 13, 1893, the fourth one of said instruments was exhibited to the receiver. Copies of said instruments were also furnished the receiver, and the record shows the admission by the receiver of such copies.

The intervening petition of Geer as executor is based upon the instruments above enumerated, and sets up the death of Mr. Goudy, the probate of his will, the death of the other executor, the death of William H. Colehour and the probate of his will devising his estate to Carrie M. Colehour, his widow, and the amounts due on said instruments, and prays for an order or decree directing the reeéiver to pay out of any proceeds of the trust estate belonging to the Coleliours the moneys mentioned in said instruments after payment by it of costs and moneys borrowed by the receiver.

Answers were filed by the receiver and Charles W. Colehour, and the defaults of Carrie M. Colehour and Eoby were entered after said respondents were ruled to answer. Proof was made in open court of the averments of the petition, and the court allowed the claims set up therein, and thereupon entered the decree sought to be reversed by this writ of error.

We are of the opinion that the instruments attached to the intervening petition as exhibits and executed by the Colehours to Goudy and his executor were equitable assignments of funds in the control of the court through its receiver or of funds to be derived from the sale of property in the control of the court, which gave Geer, as executor, the right to intervene in the case. No particular form of words is necessary in order to constitute an assignment valid in equity. Any instrument is sufficient which shows an intention of transferring or appropriating a fund or chose in action to the assignee for a valuable consideration to con-. stitute an assignment in equity. Am. Eng. Ency. of Law, Vol. 2, 1055; 2 Story’s Eq. Jur. (12 Ed.) p. 266; Savage v. Gregg, 150 Ill. 161.

A person having an equitable assignment of a fund which is in control of the court will be permitted, under the modern equity practice, to file an intervening petition in the'cause wherein the court has control of the fund and set up his interest therein, and his rights will be protected by the court. Marsh v. Green, 79 Ill. 385; Phillips v. Edsall, 127 id. 535. We think Geer, as executor, etc., had a right to exhibit his petition, and that the court did not err in protecting and enforcing the clear intent and effect of the instruments upon which the petition is based. Gage v. Cameron, 212 Ill. 171; Wightman v. Taryan Co., 217 id., 376.

The recitals of the record showing jurisdiction over Eoby and Carrie M. Colehour are sufficient and conclusive. ’ The order of revivor on the death of William H. Colehour adjudged that the suit be revived and continued in the name of Carrie M. Colehour, the Widow and sole devisee, and Carrie Colehour and Edith Colehour, “they standing in said suit in the name and stead of said William H. Colehour, according to their respective interests and rights in and to the estate of said William H. Colehour or touching the same.” Carrie Colehour and Edith Colehour were not interested in the property, and therefore were not necessary parties to the petition.

The motion of Eoby on April 25, 1906, to vacate the default entered July 21, .1900, was not accompanied with an answer; and the affidavits in support. of the motion failed to show the necessary vigilance on his part. Burge v. Burge, 88 Ill. 164; Dunn v. Keigan, 3 Scam., 297.

The amendment of “Exhibit B” attached to the petition, made at the* hearing by leave of court, by simply correcting a clerical error in the figures making the date 1885 instead of 1895 as recited in the exhibit, did not entitle the parties to file an answer subsequently when the draft of the decree was presented to the court for entry. No new matter was presented by the amendment. No new issue was raised. It was within the reasonable discretion of the court under the circumstances to allow or refuse leave to answer, and we think the court did not err in refusing leave to answer. Mosier v. Knox College, 32 Ill. 155; Farwell v. Meyer, 35 id., 41; Gordon v. Reynolds, 114 id., 118; Booth v. Wiley, 102 id., 84. The decree in No. 13801 is free from material error, we think, and must be affirmed.

This brings us to the decree of October 24, 1906, from which Charles W. Colehour and Roby prosecute an appeal in No. 13611.

The record shows that after the above decrees had been entered in favor of Bass, and Geer, as executor, Mr. Boby, without notice to anyone, on August 23, 1906, went ■ before one of the judges of the Circuit Court, sitting during the summer vacation period to hear emergency matters, and procured to be entered the order of that date shown in the record.

We think the decree of August 23, 1906, was inadvertently entered. It seriously affected the rights and interests of Bass, and Geer, as executor, without any notice to them or opportunity to be heard. As soon as the intervening petitioners Bass and Geer learned of the entry of the decree, and at the same term of court, they gave notice and entered a motion to vacate the decree. The motion was entered of record and was continued to October 8, 1906. On that day it was further continued to October 11, 1906, and then was again continued to October 24, 1906, when upon full hearing the decree of that date was entered, modifying the decree of August 23, 1906. In our opinion the decree of October 24, 1906, appealed from, was just and proper, and it is affirmed.

The decree of June 25, 1906, in No. 13244, and the decree of April 30, 1906, in No. 13801, and the decree of October 24, 1906, in No. 13611, are each affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    T. F. Hagan et al., Appellees, v. John Rawle, Appellant.
    Gen. No. 14,088.
    Measure oe damages—where vendor fails to deliver. In ordinary cases where the seller fails to deliver goods sold, the measure of damages for the breach of contract, if the price has not been paid, is the difference between the contract price and the market price of the goods at the time and place of delivery; but when at the time the contract of sale is entered into a re-sale of the property was in contemplation by the parties, the proper measure of damages is the difference between the contract price in the original contract and the contract price on such re-sale.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 6, 1908.
    Poynton & Poynton, for appellants.
    James J. Kelly, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of assumpsit brought to recover damages for the breach by the defendant of a contract to sell and deliver to the plaintiffs 30 stone posts and 48 feet of stone coping within a specified time, the cause was submitted to the court, without a jury, and plaintiff had judgment for $414.30, to reverse which the defendant prosecutes this appeal. The contract of sale was made April 21, 1904, the stone to be delivered f. o. b. cars, Chicago, at the price of $1,095.70. The plaintiffs had, before the contract was made, contracted with one contractor to furnish and set twenty of said posts at the Wendell Phillips High School, Chicago, for $1,245, and with another contractor to furnish and set ten of said posts and the 48 feet of coping at the McKinley High School, Chicago, for $725. The defendant failed to furnish any posts or coping to the plaintiffs. The plaintiffs failed to furnish any posts or coping to either of said contractors, and because of such failure each of said contractors' cancelled his contract with the plaintiffs, one August 23, the other September 17, 1904. The trial court awarded to the plaintiffs as damages for the breach of said contract by the defendant, the difference between the original contract price and the amounts plaintiffs were to receive from said contractors under the contracts of. re-sale. In arriving at the amounts plaintiffs were to receive under such contracts of resale, the court deducted from the contract price on such re-sales, the costs and expenses of hauling the stone from the railroad to said school buildings and of finishing and setting the same.

Three grounds of reversal are stated in the brief for appellant, viz.:

“I. There is no sufficient averment in the pleadings to support proof as to special damages.

II. In computing the damages the court did not follow the best and most certain rule.

III. The appellant had the right to insist upon the complete performance of the conditions of the contract on the part of appellees to be performed before delivering any part of the stone.”

The fourth special count avers, that the defendant knew when the contract was made, that the stone contracted for was intended by the plaintiffs for re-sale and that plaintiffs had orders therefor; that by reason of • defendant’s default, plaintiffs were prevented from fulfilling contracts for the re-sale of said stone, and thereby lost profits and were compelled to pay damages to parties to whom they had re-sold the said stone, etc. We think these averments sufficient to make proof of special damages" admissible.

The general rule is familiar, that'in ordinary cases, where the seller fails to deliver goods sold, the' measure of damages for the breach of contract, if the price has not been paid, is the difference between the contract price and the market price of the goods at the time and place of delivery. But when at the time the contract of sale is entered into a re-sale of the property was in contemplation by the parties, the proper measure of damages is the difference between the contract price in the original contract and the contract price on such re-sale.

In I. C. R. R. Co. v. Cobb et al., 64 Ill. 128, it was said, p. 141: “The rule undoubtedly is, as between vendor and vendee, or shipper and carrier, that where the article is destined for a special purpose, that fact should be communicated to the vendor or carrier if it is to be made the foundation of special damages against them, and if it is of a character likely to affect the action of the vendor or carrier. Hadley v. Baxendale, 26 E. L. and Eq. 402; Griffin v. Colver, 16 N. Y. 490.

“The fact that this corn was intended for the government was undoubtedly known to the managing officers of the company, and we are not of opinion that this rule, as expounded in these cases, requires that the shipper should communicate to the carrier the terms of a contract of sale in order to recover the contract price as damages. ’ ’

It was not necessary under the rule thus stated by the Supreme Court that the terms of the contracts by which plaintiffs had agreed to furnish said stone for use in the erection of said school buildings should be communicated to the defendant in order to recover as damages the difference between such original contract price and the prices on such re-sales. It was sufficient if the defendant knew when he entered into the contract with the plaintiffs that the stone was intended to be used in the erection of .said school buildings.

One of the plaintiffs testified that he called on the defendant before the contract of sale was entered into between plaintiffs and defendant, showed defendant certain blue prints which he had received from the contractor with whom he had contracted to furnish the posts and coping for the McKinley school, and asked defendant for a figure to furnish, f. o. b. Chicago, 30 posts and 48 feet of coping, as shown on that blue print; that he then told defendant that said stone was for two public high schools in Chicago; that after receiving defendant’s proposition to furnish said stone for $1,095.70 he gave defendant said blue print, told him to go to work, and a "few days afterwards gave him the detailed drawings. This testimony was in material particulars contradicted by the defendant in his testimony.

We cannot say that the trial judge erred in accepting as true the testimony of said plaintiff, and taking his testimony as true, we are of opinion that the trial judge did not err in holding that the proper measure of damages for a breach of the contract by the defendant was the difference between the original contract price and the price the plaintiffs would have received for said stone on such re-sale, in the condition and at the place it was to be delivered by the defendant to the plaintiffs. In arriving at such price the court properly deducted from the "gross amounts of the contracts of re-sale, the costs and expenses of whatever was required to be done by the plaintiffs under their contracts of re-sale after the delivery of the stone by the defendant to the plaintiffs.

Nothing is better settled than that in order for the buyer to maintain such an action as this, he must have performed all conditions precedent to his right to a delivery of the property. Whether in this case the plaintiffs had performed all such conditions was a question on which the testimony was conflicting, and we cannot say that, on the evidence, ■ the trial court erred in holding that plaintiffs had performed all such conditions.

The record is, in our opinion, free from reversible error, and the judgment will be affirmed.

Affirmed.