text:
    City of Chicago, Defendant in Error, v. Frank Stone, Plaintiff in Error.
    Gen. No. 18,768.
    1. Gaming, § 42

      —when evidence sufficient to establish guilt of defendant. On prosecution to recover a penalty for a violation of a city ordinance in keeping a place for the purpose of permitting persons to gamble for money or other valuable things in violation of the ordinance, evidence held sufficient to establish the guilt of defendant in keeping a place for betting on races.
    2. Municipal corporations, § 864*—degree of proof required to sustain conviction for violation of ordinance imposing a penalty. A prosecution by a city of a party for violation of an ordinance imposing a penalty for such violation is a civil suit, and where no. crime is charged in the complaint, the violation of the ordinance may be proved by a clear preponderance of the evidence, and it is not necessary to establish the corpus delicti and defendant’s guilt beyond a reasonable doubt.
    3. Evidence, § 472*—degree of proof required in civil actions where crime is charged in pleadings. Where a crime is charged in the pleadings in civil actions, except in slander and libel, the rule of evidence in criminal cases is applicable and the crime charged must be proved beyond a reasonable doubt.
    4. Criminal law, § 173*—proof of corpus delicti. Corpus delicti may be established by circumstantial evidence.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed May 20, 1914.
    Henry M. Seligman, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

   Mr. Justice Duncan

delivered the opinion of the court.

Plaintiff in error was prosecuted by defendant in error for violating section 982 of the Chicago Code of 1911,- by being connected with the management and operation of the place known as Number 9, Quincy street, Chicago, which the complaint charged was then and there kept for the purpose of permitting persons to gamble for money or other valuable things in violation of said ordinance. Plaintiff in error filed a waiver of a jury trial and the cause was tried by the court. The court found the defendant guilty and assessed his penalty at twenty-five dollars, for which sum and the costs of prosecution a judgment was entered.

A reversal of the judgment is asked upon the sole ground that the evidence does not sustain the finding and judgment of the court.

Christian Horsmann, a police officer of defendant in error, testified, in substance, that on August 13, 1912, he and police officer Pfannkuche entered the saloon at 9 Quincy street through the roof and crawled through a toilet window at the top of the stairway leading-down into the saloon; that he heard the telephone bell ring and heard somebody answer it, saying, “Five to win;” that he could not see who was talking, but that it sounded like plaintiff in error’s voice; that then he heard some one say, “Jiggers, the coppers are next door”; that he and Pfannkuche then ran down stairs searched the place and searched plaintiff in error and found a jockey sheet and a racing form of said date in his pockets; that he then asked plaintiff in error if he was taking- any bets and that he said he “was not doing but very little, just making a living”; that when they got him he was standing back of the bar of the saloon; that a man named Jack Ford, whom they had arrested on the same charge before that in the building across the street there, and several other men were in the saloon; that he saw nobody make a bet there that day, and saw no other men in there doing anything, except those men just standing at the bar.

Officer Pfannkuche corroborated Horsmann’s evidence except in his testimony that he did not remember the conversation that day between Horsmann and plaintiff in error, and could not recall that on that date Horsmann asked him if he was making a book.

Plaintiff in error was the only witness in his own behalf and testified that he had no conversation with Horsmann in which he told him he was making a book; that no conversation whatever with Horsmann was had, and that nobody said “Jiggers, the coppers are coming”; that he was not at the telephone talking about bets, and was tending bar; that he never listened to them at all, and that the nearest telephone was ten feet from the bar; that he buys a racing form every morning, and that he bought the racing form in evidence that morning; that he found the jockey sheet in evidence in that place on the back table and put it in his pocket; that none of the figures or the writing thereon are in his handwriting, and that he never used it for the purpose of betting, and was not making or taking any bets at that time.

The evidence for defendant in error is sufficient to support the judgment, if true. The credibility of the witnesses was a question of fact for the lower court, and we see no reason for disturbing the court’s finding. Plaintiff in error’s testimony is a sweeping denial that any conversation whatever took place between him and Horsmann, although it is an undisputed fact that he searched plaintiff in error then and there and arrested him on the charge in question. He also denied all knowledge of any gambling at that place at that time. It is rather remarkable if no conversation took place between him and Horsmann. Another circumstance that the court was warranted in considering as having some bearing on the question was the undisputed fact that there were a number of men then standing at the bar of the saloon when the officers entered, and none of them were offered in evidence to sustain plaintiff in error’s evidence, and their failure to testify was not accounted for by him. .

It is insisted that as plaintiff in error was charged with a crime, the conviction cannot be sustained, because the corpus delicti and his guilt were not established beyond a reasonable doubt. A prosecution by a city of a party for violating an ordinance imposing a penalty for such violation is a civil suit. Where no crime is charged in the complaint, the rule is that the violation of the ordinance must be proved like any ordinary civil suit for the recovery of a penalty, by a clear preponderance of the evidence. Town of Lewiston v. Proctor, 27 Ill. 414; Toledo P. & W. Ry. Co. v. Foster, 43 Ill. 480; Ruth v. City of Abingdon, 80 Ill. 418.

Where a crime is charged in the pleadings in civil actions, except in slander and libel, the rule of evidence in criminal cases is applicable, and the crime charged must be proved beyond a reasonable doubt. Sprague v. Dodge, 48 Ill. 142; People ex rel Deneen v. Sullivan, 218 Ill. 419.

If it be conceded that a crime is charged in the present complaint, the evidence is sufficient to establish the guilt of plaintiff in error beyond a reasonable doubt. The corpus delicti may be established by circumstantial evidence. The jockey sheet offered in evidence and which was found in plaintiff in error’s pocket had marked on it in pencil the odds for that day’s races. It was proper evidence to be considered, as was the racing form, and while these two exhibits taken alone would not be sufficient to prove that a gambling house was being conducted in that place, still, when considered with the other evidence, the proof is ample to prove that fact without taking into consideration plaintiff in error’s confession to the officer. It is also ample to prove that plaintiff in error was connected with the operation of that business there, when considered with his confession, which was competent evidence on that question, jurors and judges are allowed to use their common sense and common observation and general knowledge in considering evidence and drawing the proper inference from it. Robbins v. People, 95 Ill. 175.

Every business is transacted in language specially coined for it, and with implements specially fitted to its use. One simply retailing liquor over the bar under the protection of a license would not be likely to use the language attributed to plaintiff in error just before and at the time he was being arrested by the officers under the charge in question. That language with the other circumstances tends strongly to convince us that the judgment is well supported, and it is, therefore, affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    In re Estate of Goris Vander Syde, Deceased. On Appeal of Gus Swanson, Claimant, Appellant, v. Estate of Goris Vander Syde, Deceased, Appellee.
    Gen. No. 18,820.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterlinq Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Action by Gus Swanson against Estate of Goris Vander Syde, deceased, in the Circuit .Court to have a claim allowed against the estate for labor and material furnished in extending a heating plant in certain premises owned by the deceased. From a judgment refusing to allow the claim, plaintiff appeals.
    The cause was heard by the court upon an agreed state of facts, in substance, as follows:

      Groiis Vander Syde, the owner of said premises, on August 9, 1905, leased them to William C. Wood for five years from that date at a rental of $50 per month, the lessee to pay all water and general taxes, special assessments and insurance, and to have the option to renew the lease for five years more at the expiration thereof. The lessee sublet the building and stated by letter of December 18, 1908, to the lessor that it would be desirable to extend the building to the alley at an estimated cost of $4,250, and that it would increase the monthly rental to $75 per month and give seven per cent, net on the additional investment. On January 21, 1909, Wood stated to the lessor by letter that he had secured bids for the cost of the proposed addition, the lowest bid being $3,900, and also stated: “As stated before, I will guarantee there will be no extras, so that $3,900 is all the entire work will cost you.”
    The next day the lessor made a new lease to the lessee, Wood, for five years from April 1, 1909, at an annual rental of $900, one-half thereof payable on the first of October, and the other half on the first day of April of each year of the new lease, the lessee to pay water and general taxes, special assessments and insurance, and to have a right to renew the lease for another five years. The lessor then contracted with J. L. Carnegie & Son to complete the said addition for $3,900, according to certain plans and specifications which did not include the extension of the heating plant, and the extension was completed and paid for by the lessor. The lessee had possession of the entire premises as enlarged, and had at his own expense previous to the extension installed a heating plant in the old building. He then directed appellant, Swanson, to extend the heating plant into the new portion of the building. The charges therefor were charged in appellant’s books of account to “William C. Wood, Vander Syde building,” and not against Vander Syde, the deceased, and Vander Syde had nothing to do personally with Swanson concerning the new heating job, or in contracting for the same. Swanson completed the job May 26, 1909, two weeks after the death of Vander Syde, and the claim of appellant is for the work and material so furnished, and there is no dispute as to the value or character of the work performed.
    Abstract of the Decision.
    1. Witnesses, § 133

      —when witness incompetent as interested in suit against administrator. In an action against an estate to have a claim, allowed for labor and materials furnished in extending a heating plant in a building owned by the deceased, where the facts showed that such heating plant was extended at the direction of a person who leased the building of the deceased and that the deceased had nothing to do with the claimant personally, or in contracting for the extension of the heating plant, held that the lessee was incompetent to testify against the executor of the deceased, for the reason that he was interested in the result of the suit, even though he would be liable over to the estate on a certain guaranty, it appearing that the testimony offered tended to make the estate liable for the claim.
    2. Landlobd and tenant, § 223*—-right of tenant to compensation for improvements. The right of a tenant to receive payment from his landlord for improvements placed upon the premises during his term must arise from his contract with the landlord.
    In addition to said stipulation, appellant offered the testimony of Wood, said lessee, in substance, that after considerable progress had been made on the addition, the testator, Vander Syde, authorized him to have the work in question done on the heating plant; that he employed appellant for that purpose, no definite price being qgreed upon; that appellant did the work therefor, and that appellant never had any conversation with Vander Syde about said job or contract.
    Smietanka, Johnson, Molthrop & Polkey, for appellant.
    Frederic R. DeYoung, for appellee.

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

   Mr. Justice Duncan

delivered the opinion of the court.


author: Mr. Presiding Justice Fitch

text:
    Ervin T. Wood, Defendant in Error, v. The Wabash Railroad Company, Plaintiff in Error.
    Gen. No. 19,159.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 21, 1914.
    Rehearing denied June 3, 1914.
    Statement of the Case.
    Action by Ervin T. Wood against Wabash Railroad Company to recover damages for personal injuries sustained by plaintiff while in defendant’s employ as a switchman in its yards at Fort Wayne, Indiana. From a judgment in favor of plaintiff for $12,500, defendant appeals.
    At the time of the accident the plaintiff, who was an experienced switchman, was the “field man” in a crew engaged in switching the cars of a train consisting of five freight cars and an engine. The train was in charge of a conductor named Mohl. The first or end car of the train was a heavily loaded box car. This car was “kicked back” past a switch, along what is called a “passing” track, to a point approximately two hundred feet beyond the switch. There was a slight upgrade from the switch to the point where the car stopped. While the first car was moving along the “passing” track, the next two cars of the train were switched to another track leading to an electric light plant. In this movement, the last of the two cars was not entirely clear of the switch when it stopped. Just as it stopped on the switch, Mohl noticed that the car which had been kicked into the passing track had started to run back and was moving toward the switch at the rate of two or three miles an hour. To prevent a'collision, he called out to the plaintiff: “Block that car.” The plaintiff, who was watching the second and third cars, turned, picked up a rusty “fish-plate,” or “angle iron,” which he saw lying on the ground, and holding one end of it in his right hand, laid the other end across the rail in front of the wheel of the moving car. The fishplate did not stop the car, but was pushed along the rail by the car wheel. The plaintiff and one other witness testified that thereupon Mohl called out to the plaintiff: “Put it lengthways,” and that in attempting to put the iron under the wheel in that manner, the plaintiff’s hand was caught between the" fish plate and the rail and his arm was run over.
    The plaintiff’s declaration stated, in effect and in substance, that the conductor was a vice-principal and that the plaintiff was bound to conform to his orders and directions; that under the statutes of Indiana (which were pleaded) a railroad company is liable for injuries sustained by an employe “where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform,” and also where the injury was caused by the negligence of a fellow-servant who was “at the time acting in the place, and performing the duty of the corporation in that behalf,” and the person injured was obeying an order of some superior at the time of such injury; and that the plaintiff was injured through the negligence of the conductor, to whose order the plaintiff was bound to conform, while obeying the conductor’s order to block the wheels of a moving car.
    Zane, Morse, McKinney & McIlvaine, for plaintiff in error; J. L. Minnis, of counsel.
    Henry R. Rathbone, for defendant in error.
   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 797—when refusal of requested instructions error. In an action against a railroad company for injuries sustained by a switchman alleged to have resulted in obeying an order of a conductor to stop a moving car, requested instructions stating in substance that if the jury find from the evidence that in obeying an order of the conductor, the plaintiff was injured, not by reason of any directions in the order itself but by reason of the manner in which he performed the order, then the jury should find the defendant not guilty, held to state a correct proposition of law, and refusal to give the same held error.

2. Master and servant, § 803*—when instruction as to assumption of rish and contributory negligence in obeying an order erroneous. An instruction on the question whether a servant assumed the risk or was guilty of contributory negligence in obeying a specific order of an employe he was bound to obey, which treated the defenses of assumed risk and contributory negligence as having the same meaning, and directed as a test to be applied to each whether the danger was so great that an ordinary prudent person would have obeyed such order or attempted to perform such act, held erroneous for the reason that such test was not applicable on the question of assumed risk, where it was a question for the jury whether the order was to perform an act in the scope of the servant’s employment


text:
    Benjamin F. McConnell for use of Longwell Teaming & Storage Company, Appellee, v. The General Roofing Manufacturing Company, Appellant.
    Gen. No. 19,204.
    1. Landlord and tenant, § 411

      —when contract by third person to pay rent is for benefit of lessor. Where a third party entered into a contract with a lessee of certain premises to make the latter the former’s selling agent and agreed therein to assume the payment of all rents provided in the lease, held that the promise of such third party to pay the rent was for the benefit of the lessor, though payment of the rent was not the primary object of the contract.
    2. Landlord and tenant, § 408*—what constitutes assignment of lease with consent of lessor. Where a third party under a contract with the lessee took possession of the demised premises and paid rent to the lessor, who accepted the rent with full knowledge of the facts, held that the facts constituted an assignment of the lease with consent of the lessor.
    3. Landlord and tenant, § 412

      —when contract by assignee of lease to pay rent is for whole term,. A contract between a lessee and a third party whereby the latter agreed to assume payment of the rents provided by the lease, held to constitute an agreement to pay the rent for the whole term.
    4. Landlord and tenant, § 404*—effect of provision in lease requiring lessor’s consent to assignment. A clause in a lease providing for a written consent of the lessor to an assignment of the lease is for the benefit of the lessor only.
    5. Landlord and tenant, § 416*—when third party agreeing with lessee to pay rents not relieved of liability by assignment of lease to another. Where a third party under a contract with a lessee of certain premises assumed payment of the rent and paid rent to the lessor who accepted the same and such third party thereafter assigned the lease to another, held that such party’s assignment did not terminate its liability on its contract with the lessee to pay the rent thereafter accruing.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 21, 1914.
    Statement "by the Court. This is an appeal from a judgment for $2,000 entered in the Municipal Court after a jury trial, upon a directed verdict for the plaintiff.
    It appears from the evidence that on September 26, 1907, Benjamin F. McConnell, as lessor, executed a written lease of certain premises in Chicago to James C. Woodley & Co., an Illinois corporation (hereinafter referred to as Woodley & Co.), running for seven years, at a term rental of $19,374.93, payable in monthly instalments of $208.33 for the first twenty-one months and $250 a month for the remainder of the term. The lease contained the usual covenant that the lessee should not sublet the premises nor assign the lease without the written consent of the lessor. Under this lease, Woodley & Co. occupied the premises and paid the monthly instalments of rent as they accrued until October 1, 1908.

      On September 26, 1908, a written contract was entered into between appellant and Woodley & Co., in which, after reciting that appellant is engaged in the manufacture and sale of roofing and building materials, and Woodley & Co. is engaged in the sale of that kind of materials, and has an established office and warehouse in Chicago “and a lease thereon expiring May 1, 1914,” and the equipment and facilities for selling such goods, as well as an extensive trade therein, and after reciting further that appellant intends to establish a branch office and warehouse in Chicago and desires to avail itself of the “services, equipment, capital and net assets and other facilities” of Woodley & Co. “as its selling agent,” it was agreed that appellant should establish in Chicago, and maintain there during this contract,” a branch office and warehouse, under the management of Woodley & Co., as appellant’s agent, such branch office to be known as “General Roofing Manufacturing Company, James C. Woodley & Co. Branch;” that Woodley & Co. should “close out its present stock of metal goods” of a character different from those of appellant and devote its best energies, efforts, facilities and capital to the work of selling appellant’s goods exclusively, and for that purpose Woodley & Co., as the agent of appellant and as the manager of said branch, should have the sole and exclusive right “during this contract” to handle and manage the sale of appellant’s goods in Wisconsin, Michigan and certain counties in Illinois, Indiana and Ohio; that appellant should keep on hand and carry in stock at its Chicago branch such amounts and grades of its goods and products as in its (appellant’s) judgment would meet the reasonable business requirements “of the less than carload trade to be supplied by shipments to customers direct from Chicago,” all carload purchases to be shipped direct from appellant’s factory; that Woodley &¡ Co. should have no title to any of such merchandise and no interest therein except as agent of appellant, and should not be liable for any losses (except such as might occur through its negligence) in connection with the handling, storage or sales of such goods, or the collection, custody or transmission of the proceeds; that appellant “shall be liable for and shall pay all proper and legitimate expenses and obligations arising out of or in the conduct of the business under this contract, and from the operation and maintenance of the James C. Woodley & Co. Branch, as aforesaid, including among other things, advertising, rent, taxes, insurance, salaries, wages, commissions, traveling expenses, office and warehouse expenses, freight charges, cortage, and other reasonable and proper disbursements of all kinds, and shall pay the salary of the president of James C. Woodley & Co.;” that Woodley & Co., as the agent of appellant and in its name and behalf, “is hereby authorized and empowered to incur all such reasonable and legitimate expenses and obligations for the conduct of the business under this contract,” it being understood that appellant “will always keep and maintain in Chicago for use by said James C. Woodley, & Co. Branch, sufficient funds to meet promptly, as and when they are payable, the legitimate expenses and obligations arising from the conduct of the business under this contract;” that “the lease on said premises now occupied by the second party in the City of Chicago, and any and all extensions or renewals thereof, shall during this contract, be held for the use and benefit of the first party (appellant) and to that end the second party will, whenever requested by the first party, assign or cause to be assigned to the first party, its entire interest in said leasehold;” and that said contract should take effect as of September 1, 1908, and run for twenty years.
    It further appears that soon after this contract was made, a large sign with appellant’s name on it was placed upon the premises described in the lease; that about the same time, Woodley informed the lessor that appellant had taken over the lease and would continue the business and pay the rent, to which the lessor made no objection; that from October 1, 1908, until March 30, 1911, appellant paid to the lessor the monthly instalments of rent accruing under the lease, and said payments were accepted by the lessor; that appellant occupied the premises described in the lease and conducted its business in the manner specified in the contract, from the date of the contract until about August 1,1910, when it vacated the premises; that after vacating the premises appellant wrote a letter to the lessor, inclosing a check for the August, 1910, instalment of rent, and starting that “we have now vacated this property entirely and it is a dead loss on our hands, and anything you can do toward helping getting a tenant for same will be appreciated;” that for several months thereafter, appellant endeavored in various ways, without success, to secure a tenant for the premises ; and that on March 30, 1911, without the knowledge or consent of the lessor, appellant executed a formal assignment of all its right, title and interest in the lease and premises in question to one Albert 0. Miller, who was employed by appellant around its office, and whose other duties were described by appellant’s president as follows: “He waits during the noon hour.”
    Meantime, on May 13, 1910, a second contract had been entered into between appellant and Woodley & Co. This second contract recites that the parties had agreed that the contract of September 26, 1908, “should be cancelled, annulled and abrogated as of the first day of January, 1910, ’ ’ and that an adjustment of- all claims of either party against the other had been agreed on, which included the following provision: “The second party (Woodley & Co.) has assigned, and does hereby assign, to the first party (appellant) its lease, and all renewals and extensions thereof and rights thereunder, on the premises heretofore occupied by the second party in the City of Chicago, being the same premises as those recently occupied pursuant to said contract; and the second party further covenants that, at any time on demand, it will execute and deliver to the first party such further or formal assignments or transfers of said lease, and renewals and extensions thereof and any rights thereunder, as may be desired by the first party; the first party hereby covenanting that upon the second party securing any consent to the assignment of said lease that may be necessary under the terms of said lease, it will as-' sume the payment of all rents provided for in said lease, and will assume the faithful performance of all covenants imposed therein on the second party.” This contract also stated that Woodley & Co. had sold and transferred to appellant all of the office furniture, fixtures and equipment contained in the premises in question and the right to use all labels, trade-marks, brands and trade names theretofore used by Woodley & Co.; that Woodley & Co. had agreed not to engage in the same business for a period of five years within the States in which appellant is doing business; that appellant had paid to Woodley & Co. a certain sum of money and certain shares of its capital stock in full settlement of all demands; and concludes that “as a result of the foregoing,” the contract of September 26, 1908, and the selling agency constituted thereby, is cancelled and terminated as of January 1, 1910.
    Appellant refused to pay rent after March 30, 1911 (the date of its assignment of the lease to Miller), and appellee brought suit to recover the monthly instalments of rent due for the period beginning April 1, 1911, and ending November 30, 1911. At the close of all of the evidence each of the parties moved the court for a peremptory instruction in its favor. The motion of appellant was denied and the motion of appellee was granted, whereupon the court instructed the jury to find the issues for the plaintiff.

      Adams, Follansbee, Hawley & Shorey, for appellant; Mitchell D. Follansbee and Clyde E. Shorey, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee; Edward W. Everett and George A. Kelly, of counsel.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

In this case there is no controversy as to the essential and material facts. The sole question is whether the uncontradicted and admitted facts are such as to warrant the trial court in directing a verdict in favor of appellee and against appellant. The principle upon which appellee rests his right to recover is that stated in Dean v. Walker, 107 Ill. 540, 545, as follows: “It is a familiar rule, and one well sustained by authority, that where one person, for a valuable consideration, makes a promise to another for the benefit of a third person, such third person may maintain an action upon it.” This doctrine has been recognized and approved in the later cases of Bay v. Williams, 112 Ill. 91; Webster v. Fleming, 178 Ill. 140; Harts v. Emery, 184 Ill. 560; Hartman v. Pistorius, 248 Ill. 568, and in many other cases. Upon this principle, appellee contends that by the express terms of the contracts between appellant and Woodley & Co., coupled with the assent or acquiescence of appellee as lessor of the premises described in the lease, appellant became the tenant of appellee and liable for the rent of the premises for the full term of the lease.

Appellant insists (1) that neither of the contracts in evidence contains any express promise to pay rent for the whole term of the lease; (2) that even if such a promise was made, it was made for the benefit of the parties to the contracts, and not for the benefit of appellee, and that the rule above stated is subject to the qualification that in order to enable a third person to recover upon such a promise it must appear that the promise was made directly and primarily for-the benefit of such third person; (3) that in any event, the contracts were purely executory and the rule invoked by appellee has no application to promises contained in contracts of that character; and (4) that appellant’s liability ceased when it assigned the lease to Miller.

First. The contract of September 26, 1908, states that Woodley & Co. “has an established office and warehouse ’’upon the premises in question, ‘‘ and a lease thereon expiring May 1, 1914,” and has the equipment and facilities for handling appellant’s goods as well as an extensive trade therein; that appellant desires to avail itself of all these facilities by making the office and warehouse of Woodley & Co. its branch office and warehouse, and making Woodley & Co. its agent in charge thereof; that the lease on such branch office and warehouse “shall be held for the use and benefit” of appellant; that “the entire interest” of Woodley & Co. therein shall be assigned to appellant whenever requested by it; and that appellant “shall be liable for and shall pay all proper and legitimate expenses and obligations arising * * * from the operation and maintenance of the James C. Woodley & Cor Branch, as aforesaid, including- * * * rent.” Under this contract, appellant took possession of the premises described in the lease thus referred to, maintained its branch office and warehouse therein, and for over two years thereafter paid to the lessor the rent stipulated in the lease, all with the full knowledge and consent of such lessor. These facts alone, in our opinion, constituted an assignment of the lease to appellant with the consent of the landlord, and also an agreement on the part of appellant to pay to appellee the rent therein reserved for and during the whole term thereby demised. All question upon this point is removed, however, by the provisions of the contract of May 13,1910; for, while that contract cancels the agency of Woodley & Co., yet by its express terms, as quoted in the statement of facts preceding this opinion, it recognizes and continues in force the obligation of appellant to pay the rent accruing thereafter under the terms of the lease. It is claimed by appellant’s counsel that the language in the contract of May 13, 1910, wherein appellant expressly agreed to ‘ ‘ assume the payment of all rents provided for in said lease,” was conditioned upon the securing by Woodley & Co. of the landlord’s written consent. The language used is: “The first party (appellant) hereby covenanting that upon the second party (Woodley & Co.) securing any consent to the assignment of such lease that may be necessary under the terms of such lease, it will assume,” etc. This language does not require a written consent to the assignment of the lease to be secured. It merely stipulates that “any consent that may be necessary under the terms of the lease” shall be secured. No written-consent was necessary at that time under the terms of the lease, for the reason that the lessor had already assented to the assignment by accepting rent from appellant with knowledge of the facts.- The clause in the lease providing for a written consent of the lessor to an assignment of the lease was for the benefit of the lessor only, and was waived by him long before the second contract was made. After such waiver, it ceased to exist as one of the terms of the lease, at least so far as the assignment to appellant was concerned. Webster v. Nichols, 104 Ill. 160; Willoughby v. Lawrence, 116 Ill. 11.

Second. The argument that the contracts of September 26, 1908, and May 13, 1910, were not made primarily for the benefit of appellee, and that for this reason no action can be maintained by appellee upon the promise to pay rent therein contained, while it is ingenious, is unsound, in our opinion. It is true that the principal purpose or main object of these contracts was not merely the payment of rent to appellee. It is equally true, however, that the principal or primary purpose of a warranty deed, containing a clause to the effect that the grantee assumes and agrees to pay a mortgage upon the premises conveyed, is not merely the payment of the incumbrance. The primary object of the deed in such case is the conveyance of the legal title to the property, but the promise to pay the mortgage is .nevertheless, always considered as a promise for the benefit of the mortgagee. Webster v. Fleming, supra. So, in this case, the. primary object of the contracts between appellant and Woodley & Co. was to establish and maintain a branch office for appellant in charge of Woodley & Co. as appellant’s agent, upon the premises described in the lease; but the promise of appellant to pay the rent was quite as directly and primarily for appellee’s benefit as the promise to pay the incumbrance „was for the benefit of the mortgagee in the cases above cited.

Third. When Woodley & Co, delivered possession of the leased premises to appellant under the contracts in evidence and appellee accepted appellant as his tenant, appellant had received the consideration for its promise to pay rent to appellee. The contract of Woodley & Co. was then fully performed on its part, so far as its interest in the demised premises was concerned. A distinction is sought to be made by appellant’s counsel from the fact that the phrase during the life of this contract” is frequently used in the contract of September 26,1908. It is said that this phrase tends to show that appellant’s promise to pay rent was obligatory, only while that contract was in force, and that in fact the contract of September 26, 1908, was cancelled by that of May 13, 1910. We do not think the first contract is fairly susceptible of the interpretation thus claimed. But even if it were, the situation of appellant would not be improved, for the reason already stated, viz.: that although the later contract cancels the first one so far as the agency of Woodley & Co. is concerned, nevertheless, by its express terms, the contract of May 13, 1910 recognizes and continues in full force and effect the liability of appellant to pay rent under the lease for the remainder of the term, as one of the matters which were considered and provided for in the settlement agreed upon at that time.

Fourth. As to the claim that appellant’s liability ceased when it made an assignment of the lease to Miller, we think it is clear that while that assignment may have had the effect of terminating the privity of estate'then existing between appellant and appellee, it certainly could not have the effect of terminating appellant’s liability under the express contracts with Woodley & Co. to pay the rent accruing thereafter. Springer v. DeWolf, 194 Ill. 218, 224.

For the reasons stated, we think there was no error in giving the peremptory instruction, and the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    In the Matter of the Estate of Permelia Brown, Deceased. Charles B. French, Executor, Appellant, v. University of Chicago, Appellee.
    Gen. No. 19,217.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook County; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.
    Statement of the Case.
    Application by Charles B. French, executor of the last will and testament of Permelia Brown, deceased, for an order of distribution. The Circuit Court, on appeal from an order of the Probate Court, directed the executor to pay to the University of Chicago, as the residuary legatee named in the will, a balance of $8,633.83 remaining in his hands at the time of the final settlement of Ms accounts as such executor. To reverse the order, the executor appeals.
    Abstract of the Decision.
    1. Executors and administrators, § 349

      —when published notice gives court jurisdiction to enter order of distribution. Under section 112 of the Administration Act, J. & A. j[ 161, requiring notice of final settlement to be given in such manner as the court may direct, notice by publication in accordance with a rule of the Probate Court of an executor’s application for final settlement held sufficient to give the court jurisdiction of the persons of missing legatees, if living, and of their sole heir, if they are not living, and to authorize it to enter an order directing the payment of their legacies as lapsed legacies to the residuary legatee.
    2. Executors and administrators, § 538*—matters of which published notice for final settlement gives notice. Notice by publication of an executor’s presentation of his final account and application for final settlement and discharge is constructive notice to missing legatees, if living, and to their only heir, if dead, either that a final order of distribution would be entered or that payment had already been made to the residuary legatee subject to the approval of the Probate Court.
    3. Executors and administrators, § 538*—sufficiency of notice for final settlement. Published notice of an application for final settlement held not insufficient, for the reason that the executor stated in his final accounts that he “proposed” to pay the legatees, “if living,” the amount of their respective legacies, and to pay the balance to the residuary legatee.
    Warwick A. Shaw, for appellant.
    Tenney, Harding & Sherman, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


author: Mr. Justice Fitch

text:
    Stanislav Cada by Marie Cada, Appellant, v. The Fair, Appellee.
    Gen. No. 19,251.
    1. Negligence, § 126

      —necessity that due care on part of plaintiff he averred and proved. Before a plaintiff can recover damages for an injury caused by the defendant’s negligence, he must aver and prove that he was himself in the exercise of due care.
    2. Negligence, § 126*—degree of care required to he alleged and proved in suit hy a minor. In an action brought in behalf of a minor over seven years of age to recover damages for injuries caused by defendant’s negligence, it must be averred and proved that plaintiff was in the exercise of such care as a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances.
    3. Negligence, § 196*—when proximate cause a question of law. The question of proximate cause is a question of fact for a jury where an issue is formed and a trial had, with evidence on that issue, but where the question is presented by a demurrer to the declaration followed by judgment on the pleadings, it becomes a question of law.
    4. Negligence, § 124*—when declaration not demurrable. In an action by a minor to recover damages for personal injuries alleged to have resulted from a sale to him of a toy firearm forbidden by ordinance, held that the declaration was not demurrable on the ground that the facts alleged did not show that the sale was the proximate cause of the injury.
    5. Weapons, § 1*—what constitutes toy firearms within meaning of ordinance. A toy air-gun held to be a toy firearm within the meaning of an ordinance forbidding the sale to minors of “any gun, pistol, or other firearm, or any toy gun, toy pistol, or other toy firearm, in which any explosive substance can be used.”
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.
    Sabath, Levinson & Stafford, for appellant.
    Smith & Wallace, for appellee; Carl L. V. Exselsen, of counsel.

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

   Mr. Justice Fitch

delivered the opinion of the court.

In this case, the Circuit Court sustained a general and special demurrer to the plaintiff’s declaration, and the plaintiff elected to stand by his declaration, whereupon judgment was entered against him for costs, and from that judgment this appeal was perfected.

The declaration contains six counts. Bach of them sets up an ordinance of the city of Chicago, forbidding the sale to any minor of “any gun, pistol or other firearm, or any toy gun, toy pistol, or other toy firearm, in which any explosive substance can be used,” under a penalty of not more than one hundred dollars for each offense. Each count also alleges that in July, 1912, the plaintiff was a minor, twelve years old, residing with his mother in Chicago, and that the defendant was conducting a retail store in Chicago for the sale of merchandise. The sixth count (which, so far as the objections raised by the demurrer are concerned, is the least vulnerable) stated that the defendant, wholly disregarding the duty imposed upon it by the city ordinance, sold and delivered to the plaintiff, without the knowledge or consent of his parents, “a certain toy gun in which an explosive substance, to wit, compressed air, could be used,” and thát “while the said plaintiff on said day after said purchase was playing with said gun, the said gun was fired off and exploded and a small shot therefrom was discharged, whereby, owing to said negligence of said defendant, the plaintiff was and became injured in his left eye,” etc.

Appellee’s counsel contend that the declaration is demurrable on three, grounds: First, that the declaration does not contain any averment that the plaintiff was in the exercise of due care for his own safety at and before the time of the accident; second, that the alleged sale of the toy gun to the plaintiff, in violation of the ordinance, is not and cannot be the proximate cause of the injury complained of; and, third, that in any event a toy gun operated by compressed air is not within the terms or meaning of the ordinance. Counsel for appellant, in their brief and argument, have only discussed the last of these objections.

As to the first objection, the rule is well settled in this State that before a plaintiff can recover damages for an injury caused by the defendant’s negligence he must aver and prove that he was himself in the exercise of due care. Gerke v. Fancher, 158 Ill. 375, 379. In some of the earlier cases in this State a contrary rule seems to have been held. Cox v. Brackett, 41 Ill. 222; Illinois Cent. R. Co. v. Simmons, 38 Ill. 242; Consolidated Coal Co. v. Wombacher, 134 Ill. 57; but in Walters v. City of Ottawa, 240 Ill. 259, 266, these cases were reviewed and held to have been overruled, in effect, by the later cases of Gerke v. Fancher, supra, and Jorgenson v. Johnson Chair Co., 169 Ill. 429. See also the review of these cases in Madl v. Chicago City Ry. Co., 121 Ill. App. 602. It is true that in an action brought in behalf of a minor, if the child is under the age of seven years, no such averment or proof is necessary; and if he is over seven years of age, it is not necessary to aver or prove that he exercised such care as an adult would have exercised under the same circumstances. Here the allegation is that the plaintiff was twelve years old. It was therefore necessary to aver and prove that he was in the exercise of such care as a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances. McGuire v. Guthmann Transfer Co., 234 Ill. 125. The want of such an averment cannot be defended on any theory that the alleged negligence of the defendant was wanton, reckless or wilful. If such a charge had been made, contributory negligence on the part of the plaintiff would not defeat a recovery. Wabash R. Co. v. Speer, 156 Ill. 244. But the mere statement in the declaration that the defendant sold to the plaintiff an article of merchandise in violation of a city ordinance is not equivalent to an allegation of wilful, wanton or reckless misconduct, and therefore it was incumbent upon the plaintiff to allege the exercise of due care on his part. Browne v. Siegel, Cooper & Co., 191 Ill. 226; Wilson v. Illinois Central R. Co., 210 Ill. 603. While the declaration in this respect would probably be held sufficient, after verdict, to sustain a judgment in plaintiff’s favor, because due care on the part of plaintiff might, perhaps, in such case be fairly and reasonably implied from the terms of the declaration, no such implication is permissible before verdict and upon demurrer. “Before verdict the intendments are against the pleader, and upon demurrer to a declaration nothing will suffice, by way of inference or implication, in his favor.” Gerke v. Fancher, supra.

The question of proximate cause is a question of fact for a jury to decide where an issue is formed and a trial had, with evidence upon that issue. But where the question is presented by a demurrer to the declaration followed by judgment on the pleadings, it becomes a question of law. Schulte v. Schleeper, 210 Ill. 357. It has been said that “to constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence;” that “it is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence;” and that “if the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury.” Seithe v. Commonwealth Electric Co., 241 Ill. 252. In this case, however, we do not think a court can fairly hold that the facts presented show, necessarily and as a matter of law, that the negligence charged did nothing more than to furnish a condition by which the injury was made possible. On the contrary, we think a jury might reasonably find, from the facts alleged in the declaration, that the injury was the natural and probable consequence of the negligence charged, and was of such a character that an ordinarily prudent person ought to have foreseen that such injury might probably occur as a result of negligence. In Illinois Cent. R. Co. v. Siler, 229 Ill. 390, a woman, in order to protect her property, endeavored to put out a fire caused by sparks from one of the defendant’s locomotives, and in so doing was burned to death; and it was held that the voluntary act of the woman, although it was an intervening cause, was nevertheless a consequence of the wrongful act of the defendant, which with reasonable diligence it might have foreseen and therefore ought to have anticipated. The Court there said (p. 395): “It was not a new and independent cause intervening between the wrong and the injury or disconnected from the primary cause and self-operating, but was itself the natural result of appellant’s original negligence.” On page 394 of the same opinion, the Court quotes as follows, from Atchison, T. & S. F. Ry. Co. v. Stanford, 12 Kan. 354: “Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might with reasonable diligence have been foreseen, the last result, as well as the first and every intermediate result, is to be considered, in law, as the proximate result of the first wrong cause.”. The manifest object and purpose of the city ordinance set forth in the declaration in this cause was the protection of children and the public generally against the consequences of permitting children to handle toy weapons in which án explosive substance can be used. The very fact that such an ordinance was passed tends to prove that the city council, at least, deemed such consequences sufficiently natural and probable, as well as sufficiently serious, to require an ordinance forbidding the sale of such toys to children.

As to the third and main objection to the declaration, it is urged that the use of the word “firearm” in the ordinance shows that the city council only intended to prohibit the sale of such real or toy weapons as can be discharged by the ignition of gun powder or other explosive substance in which fire is one of the essential elements. The common meaning of the word “firearm” is “a weapon which acts by the force of gun-powder” (Webster’s Dictionary; 40 Cyc. 852). No doubt this is the meaning in which the word “firearm” is used in the phrase “gun, pistol, or other fire.arm.” Immediately following that phrase, however, is another clause, viz.; “or any toy-gun, Í0í/-pistol, or other toy firearm, in which any explosive substance can be used.” In this clause the words “gun,” “pistol” and “firearm” are each qualified by the word “toy”. A toy is “a plaything for children” (Webster’s Dictionary). Manifestly, a “firearm” designed to be a plaything for children must be something different from a real “weapon which acts by the force of gun-powder.” The natural meaning of a “toy firearm” is a child’s plaything resembling a firearm in some respects.

The ordinance does not forbid the sale of all toy firearms, however. It only prescribes the salé of “toy firearms in which an explosive substance can be used;” and it is insisted, with much force, that compressed air is not an “explosive substance,” within the meaning of the ordinance. In many of the older dictionaries and encyclopaedias, compressed air is not mentioned as among the explosives in common use. In the last edition of the Encyclopaedia Britannica, however (11th Ed. Vol. 10, p. 81), after defining the word “explosives” as: “a general term for substances which by certain treatment ‘explode’, i. e., decompose or change in a violent manner so as to generate force,” it is said that explosives are divided into two classes, “propellants” and “detonatorsthat “the simplest example of propellants of the smokeless class are compressed gasses,” and that “compressed air was the propellant for the Zalinski dynamite gun.” The declaration in this case does nót describe the toy weapon sold to the plaintiff, further than to say in different counts that it was an “air-gun,” or that it was “so constructed as to be discharged by the explosion of air,” or “by the sudden release of compressed air, causing explosion,” or (in the sixth count) that it was “a certain toy gun in which an explosive substance, towit, compressed air, could be used.” For aught that appears in the declaration, the air gun sold to the plaintiff may have been a toy constructed in imitation of the Zalinski dynamite gun, in which the explosive substance or “propellant,” known as compressed air, could be used.

As to the last two of the grounds above stated, we think the demurrer should have been overruled. But for the reason that the declaration does not contain any allegation that the plaintiff was exercising due care for his own safety, or state any facts equivalent thereto, the judgment of the Circuit Court must be affirmed.

Affirmed.


text:
    The People of the State of Illinois, ex rel. William H. Stead, Attorney General, Appellant, v. City of Chicago, Appellee.
    Gen. No. 19,532.
    1. Quo wabbanto, § 17

      —when lies to test right of city to issue dramshop licenses. Quo warranto may be properly brought against a city to test its right to issue licenses for the sale of intoxicating liquors in annexed territory where such territory at the time of annexation had an ordinance in force providing against the issuance of dramshop licenses except on petition of voters residing in such territory. The right to proceed by quo warranto against the licensees is not an exclusive remedy.
    2. Intoxicating liquors, § 18

      —effect of statutory grant of power to city to license. The statutory grant of power to a city to license the sale of intoxicating liquors does not take effect as a “power conferred” until after an ordinance has been adopted authorizing the issuance of such licenses.
    3. Intoxicating liquors, § 19*—binding effect of ordinance of annexed territory. Section 18 of the Annexation Act, J. & A. If 1655, providing that an ordinance of the annexed territory in force at the time of annexation relating to the licensing of dramshops in such territory shall remain in force until repealed by the voters in such territory, gives to such ordinance all the force and effect of an express statutory limitation.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 21, 1914.
    Rehearing denied June 3, 1914.
    William H. Stead, for appellant; William F. Mulvihill and O’Donnell & O’Donnell, of counsel.
    William H. Sexton, for appellee; Bryan Y. Craig, of counsel.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

An information in the nature of a quo warranto was filed in the Circuit Court by the Attorney General to test the right of the City of Chicago to issue licenses for the sale of intoxicating liquors within territory which formerly constituted a part of the town of Cicero, without requiring applicants to comply with an ordinance of that town which, it is alleged, was in force at the time of annexation and is still in force. The Circuit Court sustained a demurrer to the information and dismissed the proceeding upon the ground (as stated by counsel in their briefs) that the information does not charge a usurpation of power by the City, but merely the unwarrantable, exercise of a granted power.

Section 1 of chapter 112 of the Eevised Statutes (J. & A. 8687) provides “that in case * * * any corporation * * * exercises powers not conferred by law,” the Attorney General may present a petition to any court of record of competent jurisdiction for leave to file an information in the nature of a quo warranto in the name of the People of the State of Illinois, and if such court shall be satisfied that there is probable grounds for the proceeding, the court may grant the petition and order the information filed. Other sections of the same chapter provide that each defendant shall be required to demur or plead to the information within such time as may be allowed, and that in case a defendant corporation is found guilty as charged in the information, the court may impose a fine not exceeding $25,000, or enter a judgment of ouster.

The theory of the information is that the City of Chicago has been and is “exercising powers not conferred by law.” The information states that in 1889, certain territory therein described, which was then a part of the incorporated town of Cicero, was annexed to the City of Chicago in the manner provided by the Annexation Act of that year; that at the time of such annexation, and at the present time, there was and is in force an ordinance of the town of Cicero, which provides that “no application for a license to sell or give away fermented, malt, vinous or intoxicating liquors shall be granted unless the same shall be accompanied with a petition praying that a license to sell liquor be issued to the applicant, and stating the exact locality where the applicant proposes to sell liquor, and signed by a majority of the legal voters residing within one-half mile of the proposed place where liquors are to be sold;” that for more than six months “last past,” the City of Chicago has unlawfully issued and granted licenses to sell liquor in said territory to applicants who did not file with their several applications the petitions required by said ordinance, and still continues so to do, in violation of section 18 of the Annexation Act of 1889. (J. & A. U 1655.) The information concludes with a prayer that the City be required to answer to the People of the State of Illinois by what warrant it claims to exercise the power of granting such licenses without petitions therefor, signed by the requisite number of legal voters, as required by said ordinance. ¡

In People ex rel. Longress v. Board of Education of Quincy, 101 Ill. 308, the board of education of the. city of Quincy had adopted a rule which provided that no pupil of African descent shall be permitted to attend any school except a certain one set apart for that purpose, and the Attorney General filed an information under the statute above quoted charging that the board were maintaining and enforcing said rule “without authority of law.” The Supreme Court held that the proceeding was properly brought under the statute in question, and said as to this point (p. 312): “The board of education is a corporation created by law, clothed with the exercise of certain powers in relation to the public schools of Quincy. Now, if the board, in the discharge of its duties as a corporation, exercises powers not conferred by law, it is apparent that it will fall within the obvious meaning of the statute, unless the plain reading of the statute is to be disregarded. The very gist of the complaint here is, that the board of education, a corporation, is exercising powers not conferred by law, unless it had the right to adopt and enforce the rules set out in the information. We are therefore clearly of opinion that, under the statute, the Attorney General had the right to file the information.” This case was cited and its principle indorsed in Commissioners v. Griffin, 134 Ill. 330, 343.

In People ex rel. Cooney v. City of Peoria, 166 Ill. 517, it was held that quo warranto may be properly brought against a municipal corporation to test the question whether such a corporation has exceeded its corporate powers and is acting illegally, if the legal existence of the municipality he not questioned and the contest involves the investigation of facts not appearing of record. This rule is in harmony with the prevailing current of authority elsewhere. 17 Encyc. of PI. & Pr. 396 and cases cited; City of Uniontown v. State ex rel. Glass, 145 Ala. 471, 473; State v. City of Topeka, 30 Kan. 653; State ex rel. Walker v. McLean County, 11 N. D. 356, 360.

The gist of the complaint in this case being that the City of Chicago is “exercising powers not conferred by law,” in granting licenses within the annexed territory contrary to the express prohibition contained in the Cicero ordinance (which, as the demurrer admits, was at the time of annexation, and still is, in full force and effect as to such' territory), it seems clear from the foregoing authorities that this proceeding is properly brought under the quo warranto statute, if the granting of such licenses constitutes an exercise of powers not conferred by law.

It is contended by counsel for the City that in issuing licenses in the manner and under the circumstances set forth in the information, the City is not exercising a power which it does not possess, but is merely exercising, in an irregular or improper manner, a power “conferred” upon it by statute; and it is urged that the only remedy in such cases is against the licensees and not against the City. By the forty-sixth paragraph of section 1 of article V of the act for the incorporation of cities and villages (J. & A. if 1334), the City is given the general power to “license, regulate and prohibit” the sale of liquors within its corporate limits. By section 16 of the Annexation Act of 1889 (J. & A. jf 1655), it was provided that if at the time of annexation there was in force in the territory annexed an ordinance providing that dramshop licenses shall not be issued except upon the petition of a majority of the voters residing within a certain distance of such proposed dramshop, then such ordinance shall continue in full force and effect, notwithstanding such annexation, until the voters in the territory annexed shall have voted to repeal the same. In People ex rel. Morrison v. Cregier, 138 Ill. 401, the effect of both these statutes was considered. That was a mandamus proceeding brought to compel the mayor of Chicago to issue a license to keep a dramshop in certain annexed territory, as to which an ordinance of the character above described was in force at the time of annexation. The court in that case held that the right to engage in the business of selling intoxicating liquors in quantities less than one gallon “can no longer be claimed as a common law right, but is a right which can be exercised only in the manner and upon the terms which the statute prescribes;” that while the general power is given to cities, towns and villages by statute to license, regulate and prohibit the sale of intoxicating liquors, yet this mere statutory grant of power does not, of itself, authorize the corporate authorities to' issue licenses; that this power “is dor-' mant until called into exercise by appropriate municipal legislation;” that “mere non-action” on the part of a municipality “of itself results in prohibition;” that it is lawful for a city or incorporated town to provide by ordinance that in specified districts no licenses shall be issued except upon the petition of the legal voters residing therein; that so long as an ordinance of that character remains in force as to any such specified district the municipal authorities have no power to issue licenses therein contrary to the terms of such ordinance; and that by section 18 of the Annexation Act, if such an ordinance was in force at the time of annexation, it was continued in force notwithstanding the annexation, and “placed beyond repeal by the city council of the City of Chicago except by consent of the voters of said districts.” This case was followed and its application extended in the later case of People ex rel. Krause v. Harrison, 191 Ill. 257.

It is an elementary principle of the law of municipal corporations that such corporations possess only such powers as are granted to them by the legislature. If, as was held in the cases cited, the mere statutory grant of power to all cities, towns and villages in the State to “license, regulate and prohibit” the sale of liquors within the corporate limits does not, of itself, authorize the corporate authorities of any particular city, town or village to issue licenses for the sale of liquors, and such general grant of power can only become effective in any-particular city, town or village after the passage of an ordinance authorizing the issuance of such licenses, then it follows that until such an ordinance has been adopted, the city, town or village is wholly without power to issue licenses to any one. People ex rel. Besse v. Village of Crotty, 93 Ill. 180, 188; People ex rel. Conlon v. Mount, 186 Ill. 560, 570. Until such an ordinance has been passed, the general grant of power is only a conditional or contingent grant, and it is therefore manifest that such granted power cannot and does not take effect as a “power conferred” until the prescribed condition has been performed. When, therefore, the town of Cicero adopted an ordinance specifically providing that no license shall be issued except upon the .petition of a specified number of legal voters, it follows that in any case arising before annexation where no such petition was presented, the town of Cicero was as wholly without power to issue the license as it would have been if no ordinance on the subject had ever been adopted by it. Hence, it would seem to be clear that under the circumstances stated in the information, and under section 18 of the Annexation Act, the granting of licenses by the City of Chicago within the annexed territory without the petition of voters required by the ordinance of the town of Cicero was an exercise of power which the City does not possess and has no lawful right to exercise, assuming, of course, as we must on this appeal, that said Cicero ordinance has never been repealed.

The construction placed by the Supreme Court upon other paragraphs of the same section of the Cities and Villages Act, which provides for other kinds of licenses, tends to support the views we have thus expressed. The twenty-fourth paragraph of that section gives to the city council the general power “to permit, regulate or prohibit the locating, constructing or laying a track of any horse railroad in any street, alley or public place.” The ninetieth paragraph provides that the city council shall have no power to grant the right to lay down railroad tracks in any street except upon the petition of the owners of the land representing more than one-half of the frontage of the street. This paragraph has repeatedly been construed and held to be a limitation upon the general power given by the twenty-fourth paragraph; and it is also held that the effect of such limitation is that a municipality is wholly without power to issue a license to lay railroad tracks in a public street until the required consent of property owners has been first obtained. McCartney v. Chicago & E. R. Co., 112 Ill. 611; Hunt v. Chicago Horse & Dummy Ry. Co., 121 Ill. 638; Doane v. Chicago City Ry. Co., 160 Ill. 22; City of Chester v. Wabash, C & W. R. Co., 182 Ill. 382; McGann v. People ex rel. Coffeen, 194 Ill. 526. In McCartney v. Chicago & E. R. Co., supra, it was said, p. 639: “Where this required consent has not been obtained, the city is absolutely without power to grant the license, and the exercise of it would be wholly without warrant, and unlawful.” In Hunt v. Chicago Horse & Dummy Ry. Co., supra, it is said, p. 645: “The charter of the city confers upon the council the power to grant the use of the streets to horse or steam railroad companies, and paragraph 90 restricts and limits the exercise of that power to cases where there is a petition of property owners; ’ ’ and on page 646, this language is explained thus: “That power lies dormant until the requisite number of owners authorize its exercise by petition. When they do so, the limitation upon the poiver of the council no longer exists. That body is then prepared to deal with the railroad companies and not before.” In Doane v. Chicago City Ry. Co., supra, it was said, p. 31: “The provision of the statute embodied in paragraph 90 is a limitation upon the power of the council to grant the use of the streets to a street railway company. Unless there is a petition of those owning more than one-half of the frontage to be used, the council is without power to grant the license.” Similar expressions are used in each of the cases above cited, and the reasoning adopted in each of them is similar to that of the Cregier case, supra. It is true that paragraph 90 is a statutory limitation upon the power of the council, while the limitation here involved is contained only in an ordinance of the town of Cicero. But an ordinance, duly enacted, has all the force of a statute within the territory affected by it; and moreover section 18 of the Annexation Act, as construed in People ex rel. Morrison v. Cregier, supra, gives to the ordinance here in question all the force and effect of an express statutory limitation. It is also true that none of the railroad cases above cited is a proceeding brought under the quo warranto statute. Most of them are informations in chancery, filed by the Attorney General. But unless we are to entirely disregard the plain provisions of the statute, as well as the decision of the Supreme Court in People v. Board of Education of Quincy, supra, we must hold that an information filed under the quo warranto statute is an appropriate remedy, under the facts of this case.

Counsel for the City points out that the quo warranto act expressly gives the right to the Attorney General to file an information against the licensees who are operating under the licenses granted by the City, and urges with much force that such is the proper and only remedy under the quo warranto statute. That such a proceeding may be brought against the licensees is not only apparent from the language of the act itself, but the right to bring such proceedings against the licensees has several times been affirmed by the'Supreme Court. Swarth v. People ex rel. Paxton, 109 Ill. 621; Martens v. People ex rel. Searle, 186 Ill. 314; People v. Heidelberg Garden Co., 233 Ill. 290. But b-y the same section the right is also given to proceed directly against the corporation whenever the corporation is exercising powers not conferred by law. This being true, we do not think the mere fact that each individual licensee may be required to prove his right to use the license granted to him precludes the State from challenging the right of the City to issue such licenses.

For the reasons stated, we are of the opinion, that the Circuit Court erred in sustaining the demurrer and dismissing the information. The judgment will, therefore, be reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


author: Mr. Justice Gridley

text:
    John H. O’Neil, Administrator, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    Gen. No. 19,224.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.
    Rehearing denied June 3, 1914.
    Statement of the Case.
    Action by John H. O’Neil, administrator of the estate of Rocco Marrone, deceased, against Illinois Central Railroad Company to recover damages for personal injuries sustained by deceased resulting in his death. The deceased was employed by defendant to do general work of cleaning up in and about the yards and tracks of defendant, and while so engaged he was struck by a car which was being pushed by a switch engine. A judgment was entered in favor of defendant upon-the verdict of a jury finding defendant not guilty. To reverse the judgment, plaintiff brings error. .
    Abstract of the Decision.
    1. Master and servant, § 615

      —when ordinance relating to speed of railroad cars inadmissible. In an action against a railroad company to recover damages for the death of an employe who was run over by cars which were being pushed by a switch engine at a place in a city where the tracks were depressed below the level of a street at a street crossing, refusal to admit in evidence certain ordinances of the city limiting the rate of speed, held not error.
    2. Master and servant, § 795*—when requested instruction properly refused as assuming negligence as a matter of law. In an action against a railroad company to recover for the death of a person employed by the company to do general work about a railroad station, a requested instruction offered by plaintiff which, in effect, told the jury that failure to blow the whistle after the persons in charge of the train had discovered deceased on the track in a position of peril was negligence as a matter of law, held properly refused.
    E. W. Rice, for plaintiff in error.
    Calhoun, Lyford & Sheean, for defendant in error; John G. Drennan, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Frank J. Hathway, Appellant, v. Cassius F. Smith, Appellee.
    Gen. No. 19,247.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 21, 1914.
    Statement of the Case.
    Action by Frank J. Hathway against Cassius F. Smith, of the first class, in contract, in the Municipal Court of Chicago, to recover the sum of $12,500 for commissions due plaintiff for procuring a purchaser for all the capital stock of the Ocmulgee Biver Lumber Company, a corporation doing business at Lumber City, Georgia, which purchase was not consummated, it is claimed, on account of misrepresetnations of the defendant, and his failure to deposit said stock in escrow as agreed.
    Two jury trials have been had. The first resulted in a verdict in favor of plaintiff for $12,500. A new trial was granted. At the conclusion of all the evidence introduced by both parties at the second trial, the court, on motion of defendant, directed the jury to return a verdict finding the issues against the plaintiff. From a judgment entered on the verdict, plaintiff appeals.
    Archibald Cattell and Carl A. Waldron, for appellant.
    Harry A. Biossat, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 93 —when plaintiff’s evidence sufficient to require submission of questions to jury. In an action to recover commissions for procuring a purchaser for all the capital stock of a corporation of which the defendant was president, evidence introduced by plaintiff held sufficient to go to the jury on the questions whether defendant made false representations as to the property and as to his ability to deliver all the stock, whether plaintiff relying on such representations had obtained a purchaser ready and willing to buy the property upon the stipulated terms and upon the basis that defendant’s representations were approximately true, and whether the defendant was in default on his contract with plaintiff, and the action of court in directing a verdict for defendant held error.

2. Evidence, § 338*—lohen parol evidence admissible. Where an agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms.

3. Evidence, § 359*—when parol evidence admissible. Although it is not competent to contradict or enlarge the terms of a written agreement by parol evidence, it is competent to resort to parol evidence in order to ascertain the nature and qualities of the subject to which the instrument refers.

4. Evidence, § 185*—when declarations of agent admissible. Relevant declarations of an agent, provided they are within the scope of his authority and in the course of the negotiations to which they refer, hut not otherwise, are admissible in evidence against the principal.


text:
    Robert P. Henry, Appellee, v. Walter E. Woolf et al., by William A. Dunn, Assignee, Appellant.
    Gen. No. 19,268.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.

      Abstract of the Decision.
    1. Mortgages, § 635

      —when deficiency decree may direct a Men on rents and profits. Where by the terms of a trust deed the rents and profits of the land as well as the land were pledged for the security and payment of the indebtedness, the court in a foreclosure proceeding may, in a deficiency decree, direct that complainant have a lien for the deficiency upon the rents and profits arising from the premises until the expiration of the period of redemption.
    2. Mortgages, § 650*—when deficiency decree cannot he attacked on appeal. On appeal from an order denying a petition by an assignee of the mortgagor to have certain moneys collected by a receiver from the rents and profits of the land up to the time of expiration of the period for redemption from the foreclosure sale paid over to him, held that the petitioner could not attack the validity of a deficiency decree on the ground that there was no personal service on the mortgagor, for the reason that the validity of the order appealed from did not depend upon that portion of the deficiency decree of which petitioner complains, and also for the further reason that the appeal was not taken from the deficiency decree.
    Statement of the Case. •
    Petition by William A. Dunn praying for an order of court turning over to Mm certain money collected by a receiver in a foreclosure proceeding in which Bobert P. Henry was complainant. The petitioner, William A. Dunn, claimed the fund as assignee'of Walter E. Woolf, who was the mortgagor and the defendant in the foreclosure suit. A deficiency decree had been entered against said Woolf and the same made a lien on the funds in the hands of the receiver. From an order denying the prayer of the petitioner and directing said funds to be paid to complainant, petitioner appeals.
    Charles Scribner Eaton, for appellant.
    M. L. Raftree, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.