text:
    In the Matter of the Estate of William H. Scoville, Deceased.
    1, ADMINISTRATION Off ESTATES —WIDOW’S AWARD.—The function of fixing the amount of the widow’s award is conferred upon, and the duty confided to the appraisers, and not to the probate or county court. For good cause shown, the court may set aside an appraisement bill, order another one made, or remove the appraisers, but has no power to modify the appraisement or estimate, and no power to substitute the judgment of the court for that of the appraisers.
    2. Same.—The widow’s award becomes her sole and exclusive property forever, and the award once properly made and approved by the court can not be abrogated and a part thereof given to any other member of the family by the court.
    Appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.
    Opinion filed December 16, 1886.
    It appears that William H. Scoville died in this county intestate, May 28, 1884, leaving Emma Scoville, his widow, and three children, as his only heirs at law, viz.: William II. Seoville, aged 33 years, George W. Scoville, aged 26 years, and Kate A. Scoville, aged 28 years, unmarried, and who, with said Emma Scoville, constituted the only members of the family of said intestate at the time of his decease; that June 11, 1884, letters of administration on the estate of said intestate were duly granted by the probate court to said George W. Scoville, who acted thereunder, and aé the same time said court issued a warrant, pursuant to the statute, to three appraisers, to appraise the goods, chattels and personal estate of said intestate; that June 28, 1884, said appraisers made and duly certified their estimate of the value of the property allowed to said widow as her award, amounting in all to $1,110, and July 21, 1884, filed the same in said court, which the said court then and there approved. It appears that afterward, and September 16, 1884, the said court, on the application of the said Kate A. Scoville, entered an order, which, after reciting that the family of said intestate consisted, at the time of his death, of the said Emma Scoville, his widow, and said Kate A. Scoville, an unmarried daughter, that the amount allowed in said estate is $1,110, that the widow is the stepmother of said Kate A. Scoville, and that they can not live together amicably and share said award in common, ordered that said award be apportioned, and that the widow be allowed the sum of $710, and that the daughter be allowed the sum of $400, and that the administrator distribute said sums accordingly.
    From that order the widow took an appeal to the circuit court, where, on a trial, without a showing of any other reason than that recited in the order, the latter was sustained, and she brings the case here by appeal, assigning such order for error.
    Mr. F. W. S. Brawley, for appellant.
    Messrs. Hamliste & Scott, for appellee.
   McAllister, P. J.

By the order appealed from, the probate court assumed to reconstruct the widow’s award which had been duly determined by the appraisers, pursuant to statute, and approved "by the court in the previous month of July, by taking from it a large portion and giving it absolutely to the daughter of the intestate, for the ostensible reason that the appellant being the stepmother of the daughter, they could not live together amicably and share the award in common. There was no attempt, so far as the record shows, to impute any fault to appellant, other than the mere fact that she was stepmother, which is of little force as a reason.

We must therefore, as the matter comes to us, regard the making of the order in question as involving an assumption on the part of the probate court of a power, not only to change or modify a widow’s award after it is made and certified to the court by the appraisers, pursuant to the statute, and formally approved by the court, but also a power of disposition of the money awarded, by taking it from the widow and bestowing it upon another, as the court may in its discretion deem proper. For if the court has the power to take four hundred dollars from an award of eleven hundred and ten dollars, and give it to another, why, the power being limited only by the discretion of the court, may not the latter take the whole from the widow and give it to some other member of the family of deceased?

We are of opinion that no such power is conferred upon the probate court by any provision of the statute in regard to the administration of estates, either expressly or by necessary implication. Section 74 of said statute provides that the widow, residing in this State, of a deceased husband, whose estate is administered upon here, whether such husband shall die testate or intestate, shall in all cases, in exclusion of debts, claims, charges, legacies and bequests, except funeral expenses, be allowed as her sole a/ud exclusive property forever, the following, to wit: Then follows twelve specifications of articles and items, “which,” the statute says, “shall be known as the widow’s award; or the widow may, if she elect, take and receive in lieu of the foregoing, the same personal property, or money in place thereof, as is or may be exempt from execution or'attachment against the head of a family residing with the same.” 1 Starr & Cur. St. p. 223.

Sect’on 75 then provides that “the appraisers shall make out and certify to the county court an estimate of the value of each of the several items of property allowed to the widow; and it shall be lawful for the widow to elect whether she will take the specific articles set apart to her, or take the amount thereof out of other personal property at the appraised value thereof, or whether she will take the amount thereof in mone)T, or she may take a part in property and a part in money, as she may prefer, and in all such cases it shall he the duty of the executor or administrator to notify the widow as soon as such appraisement shall be made, and to set apart to her such articles of property, not exceeding the amount to which she may be entitled, and as she may prefer or select, within thirty days after written application may be made for that purpose by such widow. * * When there is not property of the estate of the kinds mentioned in the preceding section, the appraisers may award the widow a gross sum in lieu thereof, except for family pictures, jewels and ornaments.”

The above statutory exposition shows that the function of fixing the amount of the widow’s award is conferred upon, and the duty confided to, the appraisers, and not to the probate or county court. Such court might, in the exercise of its supervisory powers over the administration of estates, for sufficient cause shown, set aside an appraisement bill, or report of appraisers making out and certifying to the court an estimate of the value of items of property mentioned in the statute as the widow’s award, and direct the appraisers to consider the subject again and make another appraisement or estimate; and for cause shown, the court may remove the appraisers and appoint others. But the court has no power to revise and modify the appraisement bill, or appraisers’ estimate, or substitute the judgment of the court for that of the appraisers, because the statute has conferred the power of making such estimate'upon the appraisers and not upon the court. Miller v. Miller, 82 Ill. 463. The same doctrine is re-affirmed in Marshall v. Rose, 86 Ill. 374.

These cases are really decisive of that in hand, because what the court did, by the order appealed from, amounted to an assumption of power, on the part of the court, to revise and modify the appraisement bill and appraisers’ estimate.

But there is a further view of the action of the court, which we think should he presented. By that order there ivas arbitrarily taken from the widow’s award of eleven hundred and ten dollars the sum of four hundred dollars, and given to the daughter of the intestate.

Upon the death of the husband, the statute vested in the widow the title to the specific articles mentioned in section 74, as her sole and exclusive property forever : Kellogg v. Holly, 29 Ill. 437; York v. York, 38 Ill. 522, and by that section and section 75, she is vested with the same title to substituted articles or money comprising the widow’s award. The award being her sole and exclusive property forever, there can be no support for the position that she holds it in trust for other members of the family of her deceased husband, and that view is clearly expressed in the opinion of the court by Mr. Justice Mulkey, in Weaver v. Weaver, 109 Ill. 229.

As matters stood at the time of the order appealed from, the appellant was vested with an absolute right in the award, and the money thereby payable belonged to her as her sole, exclusive property forever. This right having been conferred by statute, of course it would have been competent for the legislature to have prescribed a condition upon which the whole, or any part of the amount of the award, might become-forfeited to some other member of the family of the deceased husband. Stepmotherhood might have been made such cause of forfeiture. In the absence of any such conditions, we are unable to perceive any reason why the widow does not hold her right of property in the widow’s award, protected by the same legal sanctions as any other absolute rights of property are. We mean, of course, a widow’s award, properly made and approved by the court, as this was.

We are of opinion that the probate court exceeded its just powers in making said order, and that the circuit court erred in sustaining it; wherefore the judgment of the circuit court will be reversed and the cause remanded, with directions to that court to enter judgment that said order be vacated and held for naught.

Judgment reversed.


source: Caselaw Access Project

author: McAllister, P. J.

license: Public Domain

text:
    Allemania Insurance Company v. Daniel Little et al.

    1. Limitation—Insurance policy.—Where an insurance policy contained a stipulation that no action should be sustainable against the company unless commenced within six months next after the fire occurred, and afire broke out during the evening of August 23, 1884, and extending over into the 24th, held, that a suit begun February 24, 1885, was barred by the limitation clause, and could not be sustained.
    2. Insurance—Negotiations for settlement not a waiver.—Mere negotiations for a settlement are not sufficient to show a waiver of such condition of limitation.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 16, 1886.
    This was an action by appellees against appellant, upon a policy of insurance issued by the latter to the former June 21.1884, whereby appellant insured appellees, in the sum of one thousand dollars, upon certain specified parts of a steam saw mill situate upon leased ground, and situate at Duluth, in the State of Minnesota, against loss or damage by fire or lightning, for the period of one year from June 28, 1884. Said amount was divided by the policy into three sums, respectively applied to three different parts of said property; and the policy contained a stipulation that no suit or action against the company should be sustainable unless such suit or action “ shall be commenced within six months next after the fire has occurred.”
    The action was assumpsit, and was commenced February 24.1885. The defendant pleaded (1) non-assumpsit; (2) a special plea, setting ont said condition and averring that the fire occurred August 23, 1884, and this suit was not commenced until February 24, 1885, and so was not brought within the time limited in said condition. To this plea plaintiffs replied, first, by traversing the averment as to suit not having heen brought within six months next after the fire occurred; secondly, by setting up negotiations for a settlement as a waiver of said condition. To this latter replication the defendant demurred, and the court sustained the demurrer. Upon a trial by jury, the issues were found for the plaintiffs and their damages assessed at $1,060, for which judgment passed, and defendant brings the case here by appeal, the bill of exceptions containing all the evidence and proceedings, including a motion for a new trial.
    On the trial the policy declared on was given in evidence, which, aside from the. condition above mentioned, contained, among others, the following condition, for- breach of which the policy should become void: “By the failure or neglect of the assured to notify this company that a contract has been signed to sell the property so insured.” * *
    It appeared that the parties assured were a firm composed of D. E. Little, W. Gr. Peck and O. H. Simonds, the plaintiffs; that before the policy was issued, and September 7, 1883, the following contract was signed and delivered:
    “September, 7, 1883.
    “ It is agreed between D. E. Little and W. G. Peck, of one part, and O. H. Simonds of the other part, that said first party agree to sell their undivided, two-thirds interest in the saw mill property of Little, Peck & Co., on Rice’s Point, Duluth, to said Simonds, for the sum of $16,667, and also convey all their interests in the leases on which said saw mill and yard is situated, the premises being described as blocks 2, 10,14, 39, 150, and north half of blocks 4, 8 and 10, Rice’s Point, Duluth, Minnesota, and its appurtenances.
    “Said Simonds agrees to purchase said saw mill at the price above named, and agrees to pay $2,500 in three days, 2,500 in fifteen days, $5,000 in forty-five days, and balance within six months.

      “ Above sale to include all tramways westerly of the railroad tracks and the saw mill tracks, thirty-two in number.
    “ Conveyance shall be made January 1,1884.
    “ Daniel E. Little,
    “ W. G. Peck,
    “ O. H. Simonds.”
    It appeared that Simonds had paid upon this contract the sum of seven thousand dollars, previous to January 1, 1884, but nothing since.
    It appeared that in the proofs of loss made on behalf of the plaintiffs and verified by the oath of said Simonds, there is this statement: “Afire occurred on the 23d day of August, A. D. 1884, at about the hour of 8 o’clock p, m., by which the sawmill property was destroyed or damaged to the extent of $41-543.91, and originated as follows, viz., from the boiler room in the saw mill of Little, Peck- & Co.”
    Said Simonds testified, “ that the fire broke out at 8 o’clock in the evening of August 23d, and continued to burn during that night and a portion of the next day.”
    One White, a witness for plaintiffs, testified that the “ fire commenced on the night of the 23d of August, 1884, and lasted a couple of days before we got it out.” There was no other evidence tending to show when the fire occurred.
    At the instance of the plaintiffs, the court gave to the jury the following instructions:

      “ It is also claimed by the defendant that the suit was not commenced within the period of six months from the destruction of the property insured by fire limited in the policy. As to this question, the court instructs you, that it is for the jury to say from all the evidence when the property insured was destroyedj by fire. If you find from the evidence that it was so dest/royed within, six months from the beginning of this suit, which was February 24, 1885, then your verdict will be for the plaintiffs for the amount of the policy.”
    The defendant requested the court to give to the jury this instruction:
    “ The court instructs the jury that if they believe from the evidence that the property covered by the policy in -question was destroyed by fire, and tliat such fire occurred on the 33d day of August, 1884, and that the suit for the recovery of the loss sustained was not commenced until the 24th day of February, 1885, then the plaintiffs, under the condition of said policy, can not recover, and the jury must find for the defendant.”
    This the court refused to give as asked, but modified it by adding: “ But what the facts are in the ease, as to when the fire occurred and when the property was destroyed, must be determined by the jury, by a consideration of all the evidence in the case.” Exception was duly taken to the giving said instruction on behalf of plaintiffs, and the refusal to give that as asked on behalf of defendant.
    Mr. D. J. Schuyler and Mr. Myron H. Beach, for appellant.
    Hessrs. Flower, Remy & Gregory, for appellee.

       See Phoenix Ins. Co. v. Lebcher, 450.

   McAllister, P. J.

We are of opinion that the court below erred in giving the instruction on the part of the plaintiffs respecting the defense under the limitation clause in the policy, and in refusing that asked on behalf of defendant as to that defense. By that given for plaintiffs the court told the jury that it was claimed by the defendant that the suit was not commenced within six months from the destruction of the property insured; that as to that, it was for the jury to say, from all the evidence, when the property was destroyed by fire, and if they should believe from the evidence that it was so destroyed within six months from the bringing of the suit, which was February 24, 1885, then the jury should find for the plaintiffs the amount of the policy.

The insurance was against loss or damage by fire or lightning. The condition prescribing the limitation was that no suit or action against the company for the recovery of any claim by virtue of the policy should be sustainable in any court, “ unless such suit or action shall be commenced within six months next after the fire has occurred.”

It is manifest from that language that the six months begin to run from the happening of the fire, and not from the destruction of the property insured. An action, if brought within six months next after the fire had occurred, would lie upon the policy to recover for property damaged, and which had, in no proper sense, been destroyed.

The defense set up under the limitation clause, was not that the suit had not been commenced within six months next after the destruction of the property, but that it had not been so brought within six months next after the fire occurred. So that plaintiffs’ said instruction misstated in their own favor what the defendant claimed as a defense, and what was the real point in issue. It was misleading, therefore, to a degree that must have been prejudicial to the defendant, as the case stood upon the evidence bearing upon the real issue.

If the fire occurred, within the fail meaning of that clause, on the 23d day of August, 1884, then the suit not having been brought until the 24th day of February, 1885, it was too late, and the defense under the limitation clause was made out.

The fire was the cause, the destruction of or damage to the property insured would be consequences. The fire may have occurred, within the meaning and intention of said clause, on the 23d day of August aforesaid, and the destruction of the property may not have been fully consummated until the 24th day of the same month. It will not do to say that the fire had not occurred, unless the ruins had ceased to burn and smoke, and the destruction of the property had become complete.

The plaintiffs, in their proof of loss, deliberately made in writing and A-erified by oath, stated that the fire occurred on the 23d day of August, 1884. While, in the first instance, the burden Avas on the defendant to establish its defense, under the plea setting up the limitation clause and non-compliance Avith it on the part of the plaintiffs, yet, Avhen the plaintiffs introduced their proofs of loss in evidence, stating that the fire occurred on the 23d day of August as aforesaid, then we think the burden of proof became shifted, and it was for the plaintiffs to show that the fire, which indisputably broke out in their steam saw mill about eight o’clock in the evening of said 2-3d day of August, had not, during the remainder of that day, progressed to such a degree as to cause the substantial destruction of any of the three items or parts of said mill property, covered by the three respective sums of the whole amount insured, into which that amount was divided and applied by the policy. FTo evidence at all was offered by them tending to show the progress which the fire had made at the closing hour of that day, except what may be inferred from said statement made by them in their proof of loss.

The instruction for plaintiffs under consideration withdrew from the jury every other question of fact, and directed them to find for the plaintiffs the amount in the policy, if they found from the evidence that the destruction of the property was within six months from the bringing of the suit. The general issue was pleaded and that part of the instruction was clearly improper. Hovey v. Thompson, 37 Ill. 538.

The instruction which the defendant asked, and the court refused to give as asked, was, that if the jury believed from the evidence that the property covered by the policy in question was destroyed by fire, and that such fire occurred on the 23d day of August, 1884, and that suit for the recovery of the loss sustained was not commenced until the 24th day of February, 1885, then the plaintiffs, under the condition of said policy, can not recover.

That instruction was pertinent to the actual issue, and embodied a correct rule of law in perfectly clear language. The defendant had an undoubted right to have it given as asked; but the court modified it by importing into it a reference to the question, when was the property destroyed? That was error. The State, etc., v. Wilson, 2 Scam. 225; Cohen v. Schick, 6 Bradwell, 286.

Cross-error is assigned by plaintiffs below, upon the ruling of the court sustaining the defendant’s demurrer to their second replication, which set up, as a waiver of the limitation clause, mere negotiations for settlement of the loss, which did not terminate until said 24th day of February, 1885.

We are of opinion that mere negotiations for a settlement are not sufficient to show a waiver of the condition. Gordon v. Amoskeag Fire Ins. Co., 20 N. H. 73.

Other points for reversal have been presented by the counsel for appellant, which we have not the space to give in their discussion. We have fully considered those relating to the contract of September 7, 1883, and as to the state of the title, and do not think they are tenable. For the errors pointed out the judgment below will be reversed and the cause remanded.

Judgment reversed.


author: Bailey, J.

text:
    Gregory Vigeant v. D. B. Scully.
    1. Architect’s duties—Instruction.—Plaintiff brought an action for damages against an architect, claiming that certain defects in the walls of his building arose from their improper construction, and that such construction was permitted by the architect negligently and in violation of his duties as superintendent. The contract of employmentwas oral, and the nature and extent of the architect’s duties as superintendent were in controversy. Held, that the instruction given by the court was, under the peculiar circumstances of this case, erroneous, as it virtually left the whole matter as to what it was “proper" for the architect to do,to the judgment and caprice of the jury, unrestrained by the evidence in the case.
    2. Architect issuins certificates to contractors.—The instruction was also erroneous in announcing that the duty was imposed upon the architect to make a special inspection of the work before issuing any certificate sufficient to satisfy himself that the particular work for which the certificate was asked was done properly and in accordance with the plans and specifications. No such duty was imposed by the terms of the contracts.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed December 16, 1886.
    Mr. W. J. Hynes and Mr. F. W. Young, for appellant.
    Mr. Arnold Tripp, for appellee.
   Bailey, J.

This was an action on the case, brought by Scullv against Vigeant, to recover damages alleged to have resulted from the negligence of the defendant in the performance of his duties as architect and superintendent in the erection of certain buildings for the plaintiff. It appears that the plaintiff, being about to erect a block of buildings on the corner of Sheldon and Fulton streets, Chicago, employed the defendant, who was then engaged in the business and profession of an architect, to prepare the necessary plans, specifications, etc., and let the contracts for the various portions of the work, and superintend the erection of the buildings. In pursuance of said employment the defendant prepared said plans, etc., let the contracts, and undertook to act for the plaintiff as superintendent of the work.

The buildings were erected and finished, and, a short time after their completion it was discovered that in consequence of the imperfect construction of certain dwarf walls, upon which the interior portions of the buildings rested, the floors and interior structure had settled several inches, so as to render the buildings untenantable. The plaintiff thereupon caused them to be repaired and put in proper condition at a cost, as he claims, of about $2,900, and afterward brought this suit against the defendant. At the trial, before the comb and a jury, a verdict was rendered in favor of the plaintiff, awarding him $1,441.76 damages, and a judgment was rendered accordingly.

The plaintiff claims that the defects in said walls arose from their improper construction, and that such construction was permitted by the defendant negligently and in violation of his duties as superintendent. The defendant, on the other hand, claims that after the walls were built, deep trenches were dug, partly near and partly beneath the walls, for the purpose of laying sewer pipes and constructing cold air ducts; that sáid ditches were carelessly and improperly filled with frozen earth, by the workmen in charge of that part of the work, and that the digging and filling of said ditches in that manner was carried on and persisted in by said workmen, with the tacit, if not the express approbation of the plaintiff, in spite of the defendant, and contrary to his express directions and protests. On these questions the evidence was conflicting, and it would serve no useful purpose for us to analyze it with a view of determining in whose favor it preponderates.

The court, at the instance of the plaintiff, gave to the jury the following instruction:

The jury are instructed, as a principle of law, that if a person employs an architect to draw plans for him and superintend the proper erection of buildings, and such architect is made the superintendent in the contracts between the owner and the contractors, it is the duty of such architect to exercise proper skill and care in the superintending of such buildings, and such superintendent should issue no certificate to any of the contractors, unless such work appears, upon a proper inspection, to be properly done, and to conform to the requirements of the respective contracts, plans and specifications, unless otherwise directed by the owner.”

The contract by which the plaintiff employed the defendant to act as architect and superintendent was not in writing, and the precise terms of said employment are not very clearly shown. The plaintiff testifies, in substance, that he instructed the defendant to draw up plans and specifications, and let the contracts, and he admits that those duties were satisfactorily performed. He further testifies that the defendant agreed to superintend the erection of the buildings, and see that they were put up right, but admits that the details of his duties were not discussed, and that nothing was said as to how much time he was to spend at the buildings, or what he was to do there, or what was to be his compensation.

The contracts between the plaintiff and the various contractors and builders were in writing, and provided, among other things, that each contractor should do his part of the work and furnish the materials therefor, agreeably to the drawings and specifications made by said architect, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of said architect, to be evidenced by a writing or certificate under his hand, and to be paid for as the work should progress; provided,'that in each case the contractor should obtain a certificate from the superintendent or architect, who should in every case retain fifteen per cent, from each estimate, such fifteen per cent, to be paid when the bxxilding should be completed and accepted; but that no certificate should be issued by said superintendent and architect xxnless the material should be on the ground, and the work performed in the building. The right was reserved to the plaintiff to make such changes in the plans of the buildings as he should see fit during the progress of the work, and it was provided that in case of any difference of opinion between the plaintiff and contractors in relation to the contract, the work to be performed under it, or in relation to extra work or to any alterations in the plans, drawings and specifications, the decision of said architect should be final and binding on all the parties.

The defendant, on his part, testified in substance, that at the time he was employed by the plaintiff as architect and superintendent, nothing whatever was said between himself and the plaintiff in relation to his duties in superintending the work on the building, and that he only ixndertook to give such superintendence as an architect usually gives; that, by universal custom among architects throughout the country, the employment and duty of an architect in superintending the erection of a building consists in acting as a general adviser, director and interpreter of the plans, and in most cases as an umpire ; that he must stand ready to answer qxxestions, and if any defect be called to his attention he mxist give directions to have it remedied; that he should see the bottom of the excavations before the foundations are pxxt in, but that the number of visits to the building and the times of making them are left to his judgment; that as the work progresses, if anything is brought to his attention by the owner or contractor or by personal observation, it is his business to take proper steps in relation thereto and notify the contractor; that before issuing certificates he should visit the building and see how much work had been done, and before issuing his final certificate he should examine the work, but only so far as can be seen without tearing anything down ; that if there is anything to excite his suspicion, he is to withhold the certificate until the objection is removed, or adjusted by money differences, it being sometimes impracticable, where inferior work is done, to get it removed, and in such cases settlement must be made by deducting for inferior work; that on important buildings it is usual to have constantly at the work an overseer employed by the owner, acting under the directions of the architect, but that it is not usual to employ such overseer on such buildings as those in question in this suit.

It will thus be seen that the nature and extent of the defendant’s duties as superintendent were in controversy. The contract of employment being oral, and its terms being in dispute, it was for the jury to find those terms from the evidence, and until that was done, the character and measure of the defendant’s employment were undetermined. He was undoubtedly bound to exercise reasonable care and diligence in the performance of his duties, whatever they may have been, but what those duties were, was a question of fact and not of law.

We are of the opinion that under the peculiar facts of this case the foregoing instruction was erroneous. It is entirely abstract, and does not assume to submit to the jury any question of fact arising from the evidence. The care and attention the defendant had agreed to give to the plaintiff’s buildings as they progressed, and the amount of supervision he undertook to exercise over the work of building, were in dispute. The instruction, however, without directing the jury to pass upon this controverted question of fact, and determine what amount of care he bound himself to bestow upon the work, held that he was bound “to exercise proper skill and care in superintending the buildings.” This virtually left the whole matter as to what it was “proper” for the defendant to do, to the judgment and caprice of the jury, unrestrained by the evidence in the case. The jury, being wholly without a guide in the matter, may have been of the opinion that “proper” care involved the necessity of the defendant being constantly present as the buildings progressed, or of performing many acts which were entirely outside of the purview of his employment as shown by the evidence.

The instruction is also faulty in another respect. It held that the defendant, as superintendent, had no right to issue any certificate to any of the contractors, unless the work appeared, upon a proper inspection, to be properly done, and to conform to the requirements of the respective contract, plans and specifications, unless by the plaintiff’s direction. By the terms of the contracts between the plaintiff and the contractors, the agreed price for the work and material was to be paid as the work progressed, upon certificates from the superintendent, fifteen per cent, of each estimate to be retained, however, until the buildings were completed and accepted. The only condition or restriction imposed by the contracts upon the power or right of the superintendent to issue such certificates was the following: “ Ho certificate shall be issued by said superintendent and architect unless the material is on the ground and the work performed in the building.” These were the only facts of which the superintendent was required to inform himself before issuing any certificate except the final certificate. He was to satisfy himself merely that the materials were on the ground, and the work actually done. Fifteen per cent, of each estimate was to be retained as security for the performance of the work properly and according to the contract. But, by the rule announced in the instruction, the duty was imposed upon him to make a special inspection of the work before issuing any certificate, sufficient to satisfy himself that the particular work for which the certificate was asked was done properly and in accordance with the plans and specifications. This clearly superadded a duty not imposed by the terms of the contracts and not contemplated by the parties.

For the error in giving the foregoing instruction the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Moran, J.

text:
    Wilson D. Darlington et al. v. Thomas W. Chamberlain.
    1. Agency—Factor or broker—Lien of.—It seems to be well settled that agents doing business as usually conducted at the stock yards, have a lien on the stock coming to their possession to he sold by them for their principal, for general advances ; and this lien is not limited to property acquired with the money advanced, but it seems to extend to all property which comes to the agent’s hands.
    2. Same—Waiver of factor’s lien.—The right of the factor to hold the goods of his principal for an account due him, may be waived by the factor, and the waiver may be inferred from the manner of dealing betw.een the parties.
    3. Same.—The court is of the opinion that the taking of judgment notes by the appellants, together with the course of dealing shown by the testimony, and the instructions given to appellants when receiving the property to sell, all constitute a waiver of any lien to which they might otherwise have been entitled.
    Appeal from the Circuit Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 16, 1886.
    This action was brought by appellee to recover from appellants the proceeds of the sale of certain cattle and hogs made by appellants’ firm, as commission brokers, at the Union Stock Yards, in Cook county, for Holderman Bros., who were engaged in purchasing stock in the country about Pontiac, and also in the vicinity of Rantoul, Ill., and shipping the same to Chicago market for sale. Appellants had for many years acted as the factors or commission firm for Holderman Bros, in receiving and selling the live stock which they sent in, and from time to time made considerable advances to said Holder-man Bros, to enable them to purchase feed and ship stock.
    In the summer of 1883, advances to the amount of six thousand dollars were made on the request of Holderman Bros., which money was used in buying and feeding stock, and a portion thereof in paying off some old debts. Judgment notes were taken by appellants from Holderman Bros, for this advance. Something about twenty-six hundred dollars was paid on what was due to appellants out of the proceeds of cattle shipped, and they declined to keep on making advances for the Holderman Bros, unless the cattle were in the yards. The Holdermans then made an arrangement with appellee, who is a banker doing business at Bantoul, to furnish them money to pay for the stock they should purchase in Champaign county, they agreeing that as soon as the stock reached Chicago and was sold, the. amount appellee advanced on each shipment should be placed by appellants, who were to be the commission brokers to sell the stock, to the credit of the appellee, in the Commercial ¡National Bank of Chicago. Under this arrangement the appellee advanced to the Holder-mans up to June, 1885, nearly every week, money to pay for stock purchased and ready to ship, and in all a sum amounting to nearly twenty-five thousand dollars. Appellants were aware that the Holdermans were getting money to buy the stock shipped to them to sell from appellee, and the course of business was for the Holdermans to ship the stock in their own names, and advise the appellants by telegraph or letter how much of the proceeds of the shipment they should place over to the credit of appellee. This course of business was pursued by appellants in dealing with the stock shipped by the Holdermans, and the directions of the Holdermans with regard to placing the proceeds of sale to the credit o"f appellee were observed until about July 1, 1885.
    On June 30, 1885, appellee advanced to the Holdermans about four thousand dollars to purchase cattle and hogs, in pursuance of the course of dealing, and three car loads of cattle and one of hogs were shipped, and one of the Holderman brothers came up to Chicago with the stock, and saw one of the appellants before all of the stock was sold, and told him that the money for the stock was to be paid right over to the credit of appellee, telling him that the stock was purchased with money from appellee, and was given to understand that it would be done as soon as the stock was all sold. He then, before the stock was all sold, directed the proceeds to be paid over to appellee, and went home to Rantoul. On July 2d, appellants telegraphed to Holderman Bros, that they had applied the proceeds of the sale of the shipment, amounting to §4,285.07 net, on the notes which they held against them, and therefore there was nothing to deposit for appellee. Appellee was not aware of the indebtedness of Holderman Bros, to appellants. There was a verdict against appellants for §3,330.11 and judgment, and the case is brought to this court by appeal.
    Mr. Masor B. Loomis, for appellant;
    as to the lien of a factor for advances, cited Winne v. Hammond, 37 Ill. 103; 3 Parsons on Contracts, 258 ; 2 Chitty on Contracts, 803; Brown v. Combs, 63 N. Y. 598; Grief v. Cowgill, 2 Disney (Ohio), 54; Fain v. Jones, 3 Head (Tenn.), 308; Davis v. Bradley, 28 Vt. 118; Sewall v. Nichols, 34 Me. 582; Archer v. McMechan, 21 Mo. (6 Burn) 43; 2 Kent’s Com. 852; Story on Agency, § 376.
    The lien of the defendants was not waived or lost, nor were they in any manner estopped from asserting such lien: Conover v. Warren, 1 Gilm. 498; Van Court v. Bushnell, 21 Ill. 624; Brady v. Anderson, 24 Ill. 113; Bayard v. McGraw, 1 Bradwell, 134; Peck v. Standart, 1 Bradwell, 228; 4 Kent’s Com. 153; 2 Story’s Eq. Jur. 475, note 2.
    In order to have a lien on property or goods for advancements of money made thereon, possession of such property or goods is necessary: 3 Parsons on Contracts, 259; Baker v. Fuller, 21 Pick. 318; Bk. of Rochester v. Jones, 4 Comst. (N. Y.) 497; Oliver v. Moore, 12 Heisk. (Tenn.) 10.
    Messrs. C. H. & C. B. Wood, for appellee ;
    that a factor’s lien may be controlled by express stipulation, cited Overton on Liens, 143; Walker v. Birch, 6 D. & East, 258; Frith v. Forbes, 4 De Gex, Fisher & Jones, 409.
    As to waiver of factor’s lien : Overton on Liens, 137, 142; Stoddard W. Manufactory v. Huntley, 8 N. H. 441; Fielding v. Mills, 2 Bosworth, 489; Hutchins v. Olcutt, 4 Vt. 549; Rushforth v. Hadfield, 7 East, 224; Jarvis v. Rogers, 10 Mass. 389.
   Moran, J.

Appellants claim the right to apply the proceeds of the stock to the discharge of the indebtedness due them from the Holdermans, on the grounds that as factors to sell they had a general lien on the proceeds of stock sold by them, for any balance due them for advances made, not only on the particular shipment of cattle which they seek to hold, but arising on general account. It seems to be well settled, that agents, conducting business in the manner in which it is usually conducted at the stock yards, have a lien on the stock coming to their possession, to be sold by them for their principal for general advances. And this lien is not limited to property acquired with the money advanced, but it seems to extend to all property which comes to the agents’ hands. Winne v. Hammond, 37 Ill. 99; Strahorn et al. v. Union Stock Yard Co., 43 Ill. 424.

The lien, however, rests upon the circumstance that there is a continuous service in the regular course of business between the agent and the principal, and being implied from the business and relation of the parties, the parties may so deal or so stipulate that no such lien for general balance will attach.

The right of the factor to hold the goods of his principal for an account due him, may be waived by the factor, and the w'aiver may be inferred from the manner of dealing between the parties. Thus, where a special contract is made as to a particular time or mode of payment, a lien will notarise, when, were it not for the special contract, the lien would attach. When the agent takes other security for the debt due him, unless it appears that it was the intention of the parties that the lien should still exist, the lien would be waived.

Here the appellants made a loan to the Holdermans of a sum of money, and did not rely upon their right to retain the money out of the proceeds of stock shipped to them for sale, hut took the judgment notes of the Holdermans therefor. If the money had been advanced in the regular course of business, and they had taken notes for the same in payment, the account would be merged in the higher security, and no action could be brought on the account. While that alone might not waive their right to assert a lien upon property coming to their hands subsequently, it would at least suspend the right to assert such lien till after the notes became due. Such would be the apparent intent arising from the taking of the notes in settlement of the account, and while it appears from the evidence that at the time the $6,000 was advanced it was intended to be used in buying and feeding cattle, yet we think that the fact that the judgment notes were taken, considered in connection with the subsequent conduct of the appellants in dealing with the stock shipped by the Holdermans, raises a fair inference that they did not intend to retain a right of lien for such advance on stock thereafter shipped to them to be sold. While there are well considered authorities which would justify holding that the taking of the judgment notes for amount advanced is, in itself, such a manifestation of the in-, tention of appellants to rely on the personal security of the Holdermans, as to constitute a waiver of any lien which they might otherwise have on subsequent shipments of stock for such advance, we do not put the case on that ground solely, but treat that as a circumstance to be considered in connection with their subsequent course of dealing, which, when examined, appears to us to show a tacit understanding between the parties that no such lien should be asserted. It appears that after said money had been advanced, and after some of it had been repaid, the Holdermans, with the knowledge of appellants, made an arrangement with appellee to have him furnish them money to pay for stock purchased and about to be shipped. One of the Holdermans testifies that he told one of the appellants what the arrangement with the appellee was, and that when stock was sold the proceeds should always be placed to appellee’s credit, and that said member of appellants’ firm agreed that the money should be so placed. This is denied, but for a period of more than two years appellants appear to have recognized the arrangement, and to have placed to the credit of appellee such portion of the proceeds of the shipment of cattle as the Holdermans directed. The whole proceeds of shipments were not so placed, it is true. The Holdermans at times shipped some cattle of their own raising, and the proceeds of these, together with- the profits that might accrue from the transactions which were made, went to their own credit; but as we regard these facts, there is enough in them all taken together to show that it was the intention of the parties that appellants should not have the right to assert a lien upon the stock which the Holdennans shipped, and which was purchased with money furnished by appellee. Jardine v. Roberts, 15 Mass. 389; Hutchins v. Mills, 4 Vt. 549.

On another view we think appellants were prevented from asserting any lien on the proceeds of the shipments of stock. One of the Holderman brothers came with the stock, and told one of appellants that the proceeds of the sale were to be placed to appellee’s credit. This was an instruction practically accompanying the delivery of the stock to appellants. Appellants did not refuse to receive and sell the stock under such instructions, but after it was sold sought to hold the proceeds for themselves. In Walker v. Caldwell, 6 Term Reports, 124, the cotton was deposited with the agents, by J. Forbes, for the particular purpose mentioned in the note signed by them, and a special receipt was given by them for it. Lord Kenyon said : “ In that note they acknowledge that they had received the cotton for sale, and promised to pay the proceeds of it when sold to J. Forbes or his order. The lien which a factor has on the goods of his principal arises upon an agreement which the law implies; but where there is an express stipulation to the contrary, it puts an end to the general rule of law. Here the parties are bound by their express stipulation, which excludes all idea of alien.” In Brandoo v. Barnett, 12 Clark & Finnelly R. 786, where the question was whether a banker had a lien on certain exchequer bills deposited with him, and which he was directed by his customer, when placed with him, to get the interest due on them and get them exchanged for others, the banker had been in the habit of getting the interest on such bills and getting them exchanged for the customer, and then handing them to the customer to place in tin boxes which he kept at the banker’s. Lord Campbell, giving the judgment of the lords, said: “ It is hardly denied that if there had been an express understanding by the defendants to exchange the bills and to return the new ones as soon as obtained to Burn (the customer), that he might lock them up, no lien would have been acquired; but the special verdict shows the course of dealing between them, and raises an implied promise on their part, which operates as if it was express.” In Bock v. Gonison, 2 De Gex, F. & J. 434, where the correspondents of a London firm directed the firm to purchase certain bonds at a certain price, and hold them at the disposal of the correspondents, and the London firm bought the bonds as directed and wrote that until further order they would retain them safely, the court said: “ That from the dealings between these two houses, they came within the category of factors or bankers, with respect to whom it has been proved, .and often judicially acknowledged that there is a general lien, unless when there is an express agreement to the contrary, or a particular mode of dealing, inconsistent with a general lien. Whatever the rights of the parties might have been, had there been no special agreement between them respecting the purchase and custody of these bonds, I am of opinion that the evidence proves such a special agreement to have existed, and that this special agreement negatives the claim, set up in behalf of the London house, of a general lien.” So it is held in Frith v. Forbes, 4 De Gex, 499, that “The general lien of a consignee can not be set up in opposition to positive directions given to him by the consignor. If a consignee thinks proper to accept a consignment with express directions to apply it, or the proceeds of it, in a particular mode, he can not, as we apprehend, set up his general lien in opposition to those directions.”

See also Pickett v. Bullock, 52 N. H. 354 ; Beadier v. Hartaras, 7 Baxter (Tenn.), 476 ; Schiffer v. Fagni, 51 Alabama, 335. In view of these authorities, the directions given to appellants with regard to the proceeds of this particular shipment of stock, and the fact that they proceeded to deal with the stock and indicated their assent to the instructions given, placed appellants in an attitude toward the property, wholly inconsistent with the assertion by them of a lien upon it for a general balance. They received the property with directions to which they assented; they advanced nothing on the particular property, and they in no way changed their position toward the Holdermans upon the credit of it. There is no ground left to them under"the circumstances upon which their right to a lien can rest. In this view it is unnecessary to consider the assignment of error as to the two ref used instructions. Assuming them to be correct in point of law, the refusal could not affect the result. Appellee was the proper plaintiff. The proceeds were directed to he placed to his credit, and there was abundant evidence to support the jury in finding that appellants agreed that it should be done. Failing to deposit the money for him as they agreed to do, and wrongfully converting it to another purpose, entitled appellee to maintain an action for money had and received. The money came to their hands from the sale of the stock for appellee’s use. The judgment of the superior court must be affirmed. ,

Judgment affirmed.


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    Phoenix Insurance Company of Brooklyn v. Chester B. Lebcher.
    1. Insurance—Limitation clause valid.—The clause in insurance policies limiting the time for bringing suit to twelve months next after the date of the fire, is a valid agreement between the parties, and is a legitimate defense to a suit brought after the twelve months have expired, unless it appears that the company has waived the limitation, or has estopped itself by holding out reasonable hopes of an adjustment and settlement without suit, sufficient to actually deter the claimant from bringing suit till after the expiration of the time limited.
    2. Same—Limitation—Negotiations no waiver.—The mere pend-ency of negotiations during a part of the period of limitation, conducted in good faith, with a view to a compromise, is no waiver of the limitation clause, and will not estop the company from setting up the defense.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed December 16, 1886.
    This was an action on an insurance policy to recover for the loss, by fire, of the house insured by the policy, situated in Miles City, Montana. The policy was dated January 29,1884, the fire occurred February 11, 1884, and this suit was not commenced until August 25,1885. The policy contains the following provision:
    Condition B. It is furthermore hereby expressly provided and mutually agreed, that no suit or action against this company, for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery until after an award shall have been obtained, fixing the amount of such claim in the manner above provided, nor unless such suit or action shall be commenced within twelve months next after the date of the fire from which such loss shall occur; and should any suit or action be commenced against this company after the expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.
    The company relied for a defense on the limitation contained in the foregoing condition.
    It appeared from the evidence that one W. L. Wilder, a special adjuster for the insurance company, called on the insured, Dr. Lebcher, early in March, 1884, for the purpose of adjusting the loss, and after some investigation, refused to pay the loss in full, negotiations looking to a compromise were had in several conversations, in the last of which an offer waspinade by Wilder which the assured declined to accept. On making the offer, Wilder said that he would not admit or deny liability, but made the offer to get up the policy. Wilder swears the offer was six hundred dollars, and the appellee swears the offer was seven hundred and fifty dollars, but whichever the amount was, appellee declined it and said he would sue the company. Wilder then said that he was going West, up into Montana, and on his return he would communicate with the company and would write and let the appellee know what he could do; that the company disliked to have suits brought against it, and it would cost it about what he offered to fight a suit in Montana. After Wilder returned from his trip the following correspondence took place between the parties.
    Grand Forks, D. T., 4-7, ’84.
    Dr. O. B. Lebcher, Miles City :
    Dear Sir: In regard to your loss, the company has referred the whole matter to you and myself.
    You will remember the last conversation I had with you on the sidewalk, and I simply wish to say that when yon find that we can make a settlement, write me here; and I will either write to you fully, or come to Miles City myself.
    I should be much pleased to visitMiles ” again, but do not want to make the trip for nothing.
    Begards to Harry. Yours very truly,

      W. L. Wilder, S. A.
    C. B. Lebcher, M. D., dealer in drugs, patent medicines, paints, oils, glass, perfumery, toilet and fancy articles.
    Miles City, Montana, Apr. 24, 1884. W. L. Wilder, Esq., Grand Forks, D. T.
    Dear Sir: Yours of the seventh, relative to the settlement of my claim against your company, at hand. My delay in replying was due to my absence in the East.
    I think we shall have no difficulty in coming to an understanding, as all I desire is what is right and my just due.
    If you conclude to come, we can, without doubt, reach a settlement. Yours very truly,
    0. B. Leboher.
    Grand Forks, D. T., 4-29, ’84.
    Dr. 0. B. Leboher, Miles City, Montana-
    Dear Sir: Yours of April 24tli now lies before me. I should like very much to make some definite understanding with you in regard to the matter.
    I would like to get up the Phoenix policy, and will give you for it the sum I mentioned in our last conversation on the sidewalk—no more. You have also an adjustment clause in your policy, which must he taken into account in this connection.

      I neither affirm nor deny liability in the matter, but simply desire to get up our policy, and will give you that amount for it, less one half adjustment.
    Tours very truly,'
    W. L. Wilder, S. A.
    C. B. Lebeher, M. D., dealer in drugs, patent medicines,
    paints, oils, glass, perfumery, toilet and fancy articles.
    Hiles City, Hoetaea, Hay 3d, 1884.
    W. L. Wilder, Esq., Grand Forks, D. T.
    Dear Sir: In reply to your recent letter, I will say, I will accept your offer of §750 for the Phoenix policy, but will not allow any adjustment fees as you mentioned.
    I am entitled to more than this amount, and have made this concession simply because I do not care to spend the amount of money necessary to adjust the matter in court, and I do not propose to accept any less than the above amount. If you can settle on this basis, I should be glad to see or hear from you at an early day.
    Tours very truly,
    C. B. Lebcher.
    To further communications were had between the company or its agents and the appellee.
    There was a verdict against appellant for §1,301.50, and judgment thereon, and the case comes here by appeal.
    Mr. Adelbert Hamilton, for appellant;
    that the limitation clause in the policy is a valid stipulation, cited Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill. 466 ; Williams v. Vt. Mut. Fire Ins. Co., 20 Vt. 230 ; Wilson v. Ætna Ins. Co., 27 Vt. 101; N. W. Ins. Co. v. Phenix O. & C. Co., 31 Pa. 449; Brown v. Savannah Mut. Ins. Co., 24 Ga. 101; Portage Co. M. F. I. Co. v. West, 6 Ohio St. 602; Amesbury v. Bowditch M. F. I. Co., 6 Gray, 606; Nute v. Hamilton M. I. Co., 6 Gray, 108 ; Croy v. Hartford F. I. Co., 1 Blatch. 280; Humboldt Ins. Co. v. Johnson, 1 Bradwell, 309.
    The mere pendency, during the running of the period of limitation, of negotiations, entered into in good faith by the company, for the purpose of effecting a settlement or compromise, does not estop the company from setting up the limitation clause: Gooden v. Amoskeag F. Ins. Co., 20 N. H. 73; May on Insurance, §§ 485, 488 ; Little v. Phoenix Ins. Co., 123 Mass. 380; Underwriters Agency v. Sutlierlin, 55 Ga. 266; Colonnis v. Hibernia Ins. Co., 3 Mo. App. 59.
    Unless the conduct of the company is such as to induce the well-founded belief that no advantage will be taken of this clause: 2 Wood on Insurance, § 470; Curtis v. Home Ins. Co., 1 Biss. 485; McFarland v. Peabody Ins. Co., 6 W. Va. 425 ; Blanks v. Ins. Co., 36 La. Ann. 599; Davis v. Canada Farmers Mut. Ins. Co., 39 N. C. Q. B. 452.
    As to waiver: Martin v. State Ins. Co., 44 N. J. 485 ; Ripley v. Ætna Ins. Co., 30 N. Y. 164; Ketcham v. Protection Ins. Co., 1 Allen, 136; Coursin v. Penn. Ins. Co., 46 Pa. St. 323; Doe v. Brindley, 4 B. & Ad. 84; Lampkin v. West Assurance Co., 13 N. Can. Q. B. 237; Ins. Co. v. Lacroix, 45 Tex. 158.
    Mr. Oliver N. Goldsmith, for appellee;
    as to waiver of the limitation clause, cited Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill. 466; F. & M. Ins. Co. v. Chestnut, 50 Ill. 117; Derrick v. Lamar Ins. Co., 74 Ill. 408; Andes Ins. Co. v. Fish, 71 Ill. 620.
   Moran, J.

The clause in the policy sued on which limited the time for bringing suit thereon to within twelve months next after the date of the fire from which the loss occurs, is a valid and binding agreement between the parties, and furnishes a legitimate defense to the company where suit is not brought within the time limited, unless it appears that the company has waived the limitation or has estopped itself from asserting such defense by holding out reasonable hopes of an adjustment and settlementwithout suit, sufficient to actuallydeter the claimant from bringing suit until after the expiration of the time limited. Peoria Marine Ins. Co. v. Whitehall, 25 Ill. 466.

The mere pendency of negotiations during a part of the period of limitation, conducted in good faith, with a view to a compromise, is no waiver of the limitation and will not estop the company from setting up the defense. Gooden v. Amoskeag Fire Ins. Co., 20 N. H. 73 ; May on Insurance, sections 485—488, and cases cited.

The evidence in this record discloses that about six weeks after the fire the agent of the company and the assured met, and some talk was had about a settlement, which ended in a promise by the agent to communicate with his company, and write to the appellant what he should be authorized to do. The agent promptly informed appellee that he had full authority to arrange the matter, and renewed the offer which he had verbally made to appellee, saying: “ I would like to get up the Phoenix policy, and will give you for it the sum I mentioned in our last conversation on the sidewalk—no more. Ton have also an adjustment clause in your policy which must be taken into account in this connection. I neither affirm nor deny liability in the matter, but. simply desire to get up our policy, and will give you that amount for it less one half adjustment.”

The foregoing was written on April 29, 1884, and on May 3, 1884, appellee wrote: “ In reply to your recent letter will say, I will accept your offer of $750 for the Phoenix policy, but will not allow any adjustment fee as you mentioned. I am entitled to more than this amount, and have made this concession simply because I do not care to spend the amount of money necessary to adjust the matter in court, and I do not propose to accept any less than the above amount. If you can settle on this basis, I should be glad to see or hear from you at an early day.”

This letter marked the determination of the negotiations and of all efforts to compromise. In view of the peremptory statements contained in Wilder’s last letter and in appellee’s reply, appellee could have no possible reason for supposing that the negotiation would continue. He had written his ultimatum, and requested an early reply, if settlement could be made on the terms which he proposed. He received no reply, and the necessary inference was, after a reasonable time for an answer had passed, that his proposition would not be. accepted. It does not appear from the evidence that anything; whatever was said by either the agent or appellee about the' limitation clause in the policy—all that was said or written was wholly without reference to- such clause, and apparently without its being thought of.

The negotiations on the part of the agent to get up the policy were commenced within a short time after the fire, and were wholly dropped by both parties more than nine months before the limitation fixed by the policy had run. This record is barren of evidence which will support the conclusion that there was any agreement or intention on the part of the company to waive the limitation, or that efforts at a compromise between the agent Wilder and the appellee were of such character as to constitute a waiver of it by way of equitable estoppel.

No promises or pretenses were made "which eould possibly extend the period of hope that a settlement would be made, beyond a reasonable time for acceptance, by the agent, of appellee’s offer in his last letter. After that time elapsed, the attempted negotiations furnished no longer an excuse for not bringing suit. Were the efforts to compromise continued by the company till the period of limitation had expired, the ease would be different, but they were ended in am le time for action to be brought. Indeed, in view of the evidence, we cars not see that the negotiation actually delayed appellee at all. McFarland v. Peabody Ins. Co., 6 West Va. 430; Blanks v. Ins. Co., 36 La. Ann. 599.

The verdict is contrary to the evidence and the judgment must therefore be reversed and the case remanded.

Beversed and remanded.


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    Illinois State Board of Dental Examiners v. The People, ex rel., etc.
    1. Mandamus.—A petition for a mandamus to compel the State Board of Dental Examiners to issue a license to relator to practice dentistry. The petition set forth that relator tendered the proper fee for a license and presented to the hoard a diploma issued to him by a dental college regularly organized, which complied in all respects with the rule of the board defining reputable colleges, and that the board, knowing such college to be reputable, refused relator his license, to the injury of relator, and falsely, fraudulently and maliciously, and with the purpose of unjustly discrimi noting against the the Northwestern college, from which he had received his diploma, and in favor of a college in which four out of the five members of the board were pecuniarily and professionally interested, pretended to find that said Northwestern college was not a reputable college. The Board of Dental Examiners demurred to such petition. Held, that the court below properly overruled the demurrer and awarded the writ of mandamus.
    2. Judicial discretion—Exercise of, by prescribing rule.—Where a State board is vested by statute with a discretion judicial in its nature to determine what colleges are reputable, when such board prescribes a general rule or regulation-specifying that “ it will recognize as reputable only such colleges as require ” etc., it has exercised its judicial power, and so long as the rule is in force, only the ministerial act remains to be done.
    3. Abuse of discretion.—Where discretion is vested it can not be exercised arbitrarily, for the gratification of feelings of malevolence, and for the attainment of merely personal and selfish ends. When a discretion is abused and made to work injustice, it is admissible that it shall be controlled by mandamus.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed December 22, 1886.
    A petition for mandamus was filed in the circuit court, which petition is in the words following:
    State of Illinois, County of Cook, ss. In the circuit court, of the June term, A. D. 1886.
    To the Honorable Lorin C. Collins, one of the judges of the said court.

      Tour petitioner, the people of the State of Illinois, on the relation of John M. Cooper, respectfully shows unto your Honor that relator is a resident of the city of Chicago, county of Cook and State of Illinois, and is a citizen of said State, of lawful age.
    The relator further shows that having Selected the practice of dentistry and dental surgery as his profession and life work, in order to fit and prepare himself for said profession and work, he did, on or about the 4th day of November, 1884, enter and matriculate as a student in the Chicago College of Dental Surgery, an institution situated in the said city of Chicago, organized for the purpose of and engaged in educating persons who might become students therein, in the theory and practice of dentistry and dental surgery.
    That relator remained as such student in said college, and diligently prosecuted his studies therein throughout the whole course of instruction, of not less than five months, given by said college during the years 1884 and 1885, and that during the summer and fall of 1885 he was engaged in receiving practical instruction in dentistry and dental surgery up to the time of entering, as a student, the dental college hereinafter named.
    Relator further shows that on, to wit, the 2d day of November, 1885, he entered the Northwestern College of Dental Surgery and matriculated as a student therein. That said last named institution was then and is now an institution organized for the purpose and engaged in educating persons who become students therein in the theory and practice of dentistry and dental surgery, and was duly incorporated and organized under the laws of the State of Illinois, October, 1885, and is now, and has been since its organization, a reputable dental college, duly authorized by the law of this State, in which there was at the time of the issue of the diploma to relator, as hereinafter mentioned, annually delivered a full course of lectures and instruction in dental surgery, not less than five months in length.
    Relator further shows that he attended regularly and faithfully said last mentioned college, as a student therein, during the one full, regular course of instruction held and given in said last mentioned college during the years 1885 and 1886, which course was of not less than five months duration. That relator thus completed two regular, full five months courses in the practice of dentistry and dental surgery, one in each of said colleges, said courses being had in separate years, with practical instruction intervening between the two courses.
    Relator further shows that on certification and proof of the above facts, the said Northwestern College of Dental Surgery graduated your petitioner in due form on the 3d day of April, 1886, and thereupon, to wit, on the day and year last aforesaid, a diploma was issued to your petitioner by the faculty of said Northwestern College of Dental Surgery, duly certified by the signatures of the members of the faculty of said college, and the officers thereof, conferring upon petitioner the title and degree of Doctor of Dental Surgery.
    Relator further shows that the said Northwestern College of Dental Surgery has in all respects complied with the requirements of the law of the State relating to and regulating the practice of dentistry in the State of Illinois, and is in all respects a reputable dental college, and has been decided to be entitled to be recognized as reputable by said State Board of Dental Examiners, by strictly complying with the standing rule of said State Board of Dental Examiners, which was adopted by said board in September, 1884, and has been since June, 1885, and still is, the rule of said board for the recognition of dental colleges as reputable, which rule is as follows :

      “ Resolved, that after June, 1885, the Illinois State Board of Dental Examiners will recognize as reputable only such dental colleges as require, as a requisite for graduation, attendance upon two full, regular courses of lectures and practical instruction ; which courses shall each be of not less than five months duration, and shall be held in separate years with practical instruction „ intervening between the courses. Such colleges must also require a preliminary examination before admitting students to matriculation, provided that no certificate fi om a high or normal school, or other literary institution is presented by the candidate.”

      Relator avers that said Northwestern College of Dental Surgery has, from its organization and during the time your relator was a student therein, strictly and entirely complied with all and each of the requirements of said rule, and was so complying with the same at the time the diploma was issued to relator; and that by virtue of said compliance, and by virtue of the terms of said standing rule, the said" college has been recognized by the said State Board of Dental Examiners as a reputable dental college, and was so recognized at the time of the presentation to said board of the diploma of relator, as hereinafter set forth, and is still so recognized.
    Relator further shows to the court that, desiring to engage in the practice of his profession of dentistry, he afterward, to wit, on or about the 11th of May, 1886, presented his said diploma, so received from the faculty of the Northwestern College of Dental Surgery, duly authorized, to the Illinois State Board of Dental Examiners, at a regular meeting of said board held in the city of Rock Island, Illinois, on or about the 11th day of May, 1886, and tendered to said board a fee of one dollar as provided by law, and demanded that said board issue to him, the relator, a license to practice dentistry in the State of Illinois, as provided by law.
    Relator further shows to the court that it was the duty of said Board of Dental Examiners, upon the presentation of said diploma and the tender of the fee of one dollar, as aforesaid, to said board by said relator, and the demand as aforesaid, to ascertain, if it was not already informed, whether the said Northwestern College of Dental Surgery had complied with the above mentioned rule of said board, as to recognition as to being reputable, and finding it had so complied and was under said rule to be recognized by said'board as reputable, as aforesaid, to issue to relator a license to practice dentistry in the State of Illinois, but that said Board of Dental Examiners, not regarding their duty in this behalf, thereupon, to wit, upon the day and year aforesaid, refused and neglected to issue to relator a license to practice dentistry in this State, and have continually refused and still do refuse to issue to relator such license.

      Your relator further shows that after waiting for his license for a reasonable time after making application therefor in the manner aforesaid, he afterward, to wit, on the 25th day of May, 1886, wrote to George H. Gushing, secretary of the said Illinois State Board of Dental Examiners, and inquired why his license had not been issued, to which inquiry he received a reply of which the following is a copy :
    “ Illinois State Boaed of Dental Examinees.
    Chicago, May 26th, 1886.
    De. J. M. Coopee,
    Dear Sir:—In reply to yours of 25th I would say that the matter of issuing a license on your diploma from the Northwestern College of Dental Surgery was referred to the national Association of Dental Examiners, which will meet in August. Until their decision I can not issue any license.
    Resp’y yours,
    Geo. H. Cushing.
    Sect. 111. St. Bd. Den. Exs,
    P. S.—I return herewith the $1.
    G. H. O ”
    Relator shows that the said Board of Dental Examiners not only refused to issue him the license to which he was entitled, and returned to him the dollar paid by him to said hoard for such license as required by law, but voluntarily assumed to refer the application of relator to a so-called national Association of Dental Examiners for decision as to whether relator could have license to practice dentistry in the State of Illinois, which he has by law a right to; thus unlawfully, willfully and designedly usurping powers not given said board by law, and neglecting, failing and refusing to perform the duty imposed by law upon said board, in reckless disregard of the rights of relator, and of their obligations to the people of the whole State.
    Relator further shows that the said so-called national Association of Dental Examiners is, as your relator is informed and believes, a mere vol antary association of men who meet in convention in Saratoga in the State of new York, in August next; that it is composed mostly of men residing outside of the State of Illinois, and is clothed -with no executive or legal power to decide upon the rights of relator, or any one else, to a license to practice dentistry in the State of Illinois. That in pretending to refer the question to a voluntary and irresponsible body of men outside the State of Illinois, clothed with no legal power, said State Board of Dental Examiners refused to perform the functions of the office for which such board was created, and for which said board was constituted and appointed.
    Delator further shows that after the above described action was taken by the board, he employed an attorney to bring suit for mandamus against said board of Dental Examiners to compel them to issue to your relator his license to practice dentistry in the State of Illinois, which he was entitled to by law, and that his attorney was preparing a petition for that purpose when- the State Board of Dental Examiners, by and through a written official communication signed by the secretary of said board, notified relator’s attorney, that if he would wait before commencing a suit for mandamus a reasonable time, the said board would call a meeting as soon as practicable and would issue to relator a license to practice dentistry in the State of Illinois, as aforesaid, and repeated said promise to issue said license as soon as they could have a meeting, both to relator and his attorney; and that relator’s attorney did wait as requested by said board, for it to have a meeting and issue said license as the board had promised and were required by law to do, and that said board held a meeting as promised in the city of Chicago in said State, on the 24th and 25th of June, A. D. 1888, and instead of issuing said license to relator, as promised, the said board refused to issue such license to relator and falsely and fraudulently pretended then to find that said Northwestern College of Dental Surgery was not a reputable college.
    And relator avers that said last mentioned action of the board was not taken as the deliberate judgment of the board after due inquiry as to whether said dental college was reputable or not, and was not based upon proper evidence to that effect, but such action was taken arbitrarily, with the wicked and malicious design, solely, of depriving relator of the license and right to practice dentistry in the State of Illinois, on account of the malice of the members of said board toward relator, because he had left the said Chicago College of Dental Surgery, after attendance there of one course, and had graduated at the said Northwestern College of Dental Surgery, and for the further wicked and malicious design of injuring the said Northwestern College of Dental Surgery, and preventing it from getting patronage by arbitrarily and wickedly refusing to license its graduates. The cause of such malice and hatred of said Board of Dental Examiners being hereinafter fully set forth.
    Relator further shows that at the time of the refusal of said hoard to issue license to relator, the said board well knew that the said Northwestern College of Dental Surgery was a reputable dental college, duly organized under the laws of the State of Illinois, and well knew that said college had fully complied with the rule adopted by said board for the recognition of dental colleges as reputable by said board, and well knew that said board had already recognized said dental college as being reputable.
    Relator further shows that said State Board of Dental Examiners consists by law of five persons, and that the persons composing said board at the time of refusing to issue said license and now, were as follows: G. Y. Black, A. W. Harlan, Homer Judd, C. A. Kitchen and George IT. Cushing, and that four of the five members of said board, to wit, G. Y. Black, A. W. Harlan, George H. Cushing and 0. A. Kitchen, are interested in and connected with the said Chicago College of Dental Surgery, either as members of the faculty or as instructors in the same. That the said Chicago College of Dental Surgery is an older dental college in the city of Chicago than the Northwestern College of Dental Surgery, from which petitioner graduated and received his said diploma, the said last mentioned college having been organized as such only in 1885. That the two colleges aforesaid are rivals and competitors for patronage of students, and reputation as institutions for teaching dentistry and dental surgery, and that the said State Board of Dental Examiners is entirely under the control of the said Chicago College of Dental Surgery, and four fifths of said board belonging to said Chicago college, the said board is determined, if possible, to cripple and destroy the said Northwestern College, and for that reason are willing to abuse, and in the acts above mentioned have shamefully abused their power as such officers and members of such State Board to protect the college to which they belong from competition and to destroy and cripple a rival.
    And relator charges the fact to be that the said State Board of Dental Examiners, controlled by the said Chicago College of Dental Surgery, intend and design by their action in refusing a license to relator, not only to prevent relator from practicing his profession for which he has, at great expense of time and money, fitted himself, and which he is lawfully entitled to practice, hut also to hinder and cripple and destroy the said Northwestern College of Dental Surgery, by unlawfully and maliciously withholding from its graduates license to practice dentistry in the State of Illinois; thus deliberately abusing the powers in them vested and prostituting them to the malicious design and purpose, as relator verily believes, of destroying and crushing out an honorable rival, which in all its appoint-" ments and requirements for dental education is justas re putable and complete as is the Chicago College of Dental Surgery, which the said board is thus wrongfully endeavoring to protect, all of which the said board and the members thereof well know.
    Delator therefor distinctly charges that said State Board of Dental Examiners, in total and reckless disregard of the duties of their office, refuse to perform the duties which they are required by law to perform; and they have, so far as relator’s rights are concerned, endeavored to evade the performance of their duties by pretending to shift the performance of those duties upon a voluntary association outside of the State, and that the said hoard has, in the actions aforesaid, deliberately, wantonly, recklessly and maliciously abused the power and discretion vested in it by law, and still continues so to do, in flagrant and outrageous disregard of relator’s rights, and the rights of the people of the State.
    Delator further shows that he has at great expense, and in the manner aforesaid, qualified himself for the practice of said profession; that he has spent much time and money in such preparation, and desires to make it his life' profession, and that he depends upon the same for a living, and that by the failure and refusal of said Board of Dental Examiners to so issue and grant relator a license to practice dentistry as aforesaid, he, the relator, has been prevented from practicing dentistry in this State, as he is lawfully and by right entitled to do, and still is so prevented; that he is a citizen and resident of, and desires to remain in the State and follow the practice of dentistry for which he has prepared himself.
    Relator further shows that the questions here presented not only involve the individual rights of the relator, which are.of grave importance to him, but the right of dental colleges, other than the said Chicago College of Dental Surgery, to which four out of five of said board belong, to exist and be recognized as reputable, after complying with all the provisions of the law of the State and the rules established by the said State Board, and also the right of the whole State to have the said State Board of Dental Examiners perform their duty and issue license to applicants who come within the law and the rules established by said board, without arbitrarily, unlawfully and maliciously referring the rights of citizens to irresponsible self-constituted associations, outside of the State, and unknown to any of the provisions of our laws.
    Wherefore, being without other adequate legal remedy, relator makes the said Illinois State Board of Dental Examiners and each member thereof, to wit: G. Y. Black, A. W. Harlan, Homer Judd, 0. A. Kitchen, and George H. Cushing, parties defendant to this petition, and p:ays for the people’s writ of mandamus directed to said board and each member thereof, commanding them forthwith to receive from relator the fee of one dollar, which is hereby rendered as required by law, and upon proof of diploma of relator being presented to said board to issue relator a license in the usual form, to practice dentistry • and dental surgery in the State of Illinois.
    Johe M. Cooper.
    Subscribed and sworn to.

      A general demurrer to the petition was filed by the respondents, which was overruled by the court, and respondents electing to stand by their demurrer, there was judgment in accordance with the prayer of the petition. To reverse the judgment respondents bring the record to this court by appeal.
    Mr. George Hunt, Mr. James P. Root, and Mr. Sidney G. Eastman, for appellant;
    that if the right to a mandamus is doubtful, it will be refused, cited People v. Davis, 93 Ill. 133; People v. Mayor of Chicago, 51 Ill. 17; People v. C. & A. R. R. Co., 55 Ill. 110 ; City of Ottawa v. People, 48 Ill. 223; Canal T. v. People, 12 Ill. 254; People v. Klokke, 92 Ill. 138; People v. Masonic B. Asso., 98 Ill. 638; Zanone v. Mound City, 103 Ill. 553.
    Messrs. Campbell, Hamilton & Custer, for appellee;
    that the board may exercise its discretion in any reasonable manner it may see fit, and in this case, having exercised its discretion by the adoption of a general rule as to what dental colleges would be recognized as re-pntable, the board is bound by that rule so long as it stands as such, cited Zanone v. Mound City, 103 Ill. 552; Wood on Mandamus, 19.
    The discretion vested can not be exercised arbitrarily for the gratification of feelings of malevolence, or for the attainment of merely personal and selfish ends: Village of Glencoe v. People, 78 Ill. 389; Tapping on Mandamus, 66; Moses on Mandamus, 55; Wood on Mandamus, 64; People v. Osterhout 13 Barb. 206; Arberry v. Beavers, 6 Tex. 457.
   Moran, J.

The common law right of every person to practice dentistry is restrained in this State, by an act approved May 30, 1881, which makes it unlawful for any person not at the time of the passage of said act engaged in the practice of dentistry.in this State, to commence such practice “unless such person shall have received a diploma from the faculty of some reputable dental college duly authorized by the laws of this State, or of some other of the United States, or by the laws of .some foreign country, in which college or colleges there was, at the time of the issue of such diploma, annually delivered a full course of lectures and instruction in dental surgery.” Section 2 of said act creates a Board of Examiners, to consist of five practicing dentists, “ whose duty it shall be to carry out the purposes of the act.” Section 6 provides for the licensing of persons who shall, upon an examination by the board at any of its regular meetings, be found to possess the requisite skill and knowledge in dental surgery, and to possess the requisite qualifications to practice dentistry, “ but said board shall at all times issue a license to any regular graduate of any reputable dental college without examination, upon the payment by such graduate to the said board of a fee of 81.” The question is whether the relator in this case has, by the facts alleged in his petition and admitted by the demurrer, shown himself entitled to a license from the Board of Examiners, under the terms of the clause of the statute last above quoted. It is alleged that the Board of Examiners, in September, 1884, adopted a standing rule for the recognition of dental colleges as reputable, which rule is as follows: “Unsolved that after June, 1885, the Illinois State Board of Dental Examiners will recognize as reputable only such dental colleges as require, ás a requisite for graduation, attendance upon two full regular courses of lectures and practical instructions; which courses shall each be of not less than five months duration, and shall be held in different years, with practical instructions intervening between the courses. . Such colleges must also require a preliminary examination before admitting students to matriculation, provided that no certificate from a high or normal school, or other literary institution, be presented by the candidate. ” It is further alleged that the ¡Northwestern College of Dental Surgery was duly incorporated and organized under the laws of the State of Illinois, in October, 1885; that suc-li institution was organized for the purpose of, and, at the time petitioner matriculated therein as a student, engaged in, educating persons who became students thérein in the theory and practice of dentistry and dental surgery, and that there was annually delivered in said college a full course of lectures and instruction in dental surgery not less than five months in length. Relator avers that said Northwestern College of Dental Surgery has, from its organ'zation and during the time he was a student therein, strictly and entirely complied with all and each of the requirements of said rule, and was so complying with the same at the time the diploma was issued to relator. Though not very accurately pleaded, we think this averment must, on general demurrer, be held to be a sufficient allegation that said Northwestern College did require as a condition of graduation all the requisites specified in the said rule of the Board of Examiners. Relator further avers that he completed two regular full five month courses of instruction in the practice of dentistry and dental surgery, and that said courses were had in separate years with practical instruction intervening between the two courses; that said Northwestern College of Dental Surgery graduated relator in due form, and issued to him a diploma duly certified and executed by the faculty and officers of said college; that he presented his said diploma to the State Board of Examiners at a regular meeting of said board, and tendered to said board the sum of one dollar, and demanded that said board issue to him a license to practice dentistry in the State of Illinois, and that said board refused and neglected to issue said license and still refuses to issue the same.

It was expressly decided in The People v. Dental Examiners, 110 Ill. 180, that the Board of Dental Examiners was vested by the statute with a discretion judicial in its nature, to determine what dental colleges are reputable, and upon a petition for mandamus, 'alleging that the college therein named was reputable, the court said that whether it was reputable or not was a question of fact the decision of which was reposed in the board, and there being no allegation that the board had found the college to be reputable, the issuing a license wouldnot be compelled by mandamus. The petitioner in this case presents a different question from the one considered by the Supreme Court. Here it appears that the Board of Examiners have promulgated a rule, general in its terms, setting forth that only such colleges will be recognized as reputable by the board as require the course of lectures, instrnctions and examinations as therein specified, as a requisite of graduation. The word “reputable” as used in this statute, has manifest reference to the scholarship and the attainments in the art or science taught, which shall be required by the college to entitle a graduate therefrom to his diploma. There are colleges, as stated by Mr. Justice SchoTfield in the opinion in the case cited, in which full courses of lectures and instructions were professed to be given, that were not reputable, because they graduated for money without referdnce to scholarship. A diploma from such an institution afforded no evidence of scholarship or attainments in its holder, , and it was as against such diplomas the law was intended to protect the public, and therefore required that the colleges be reputable.

The Board of Examiners properly so interpreted the word “reputable,” and, it must be assumed, for the guidance and information of those who were desirous of qualifying themselves for the practice of dentistry in this State, defined what requirements as to terms of lectures and intervening practical instruction and preliminary examination, on the part of a college, as conditions of obtaining its diploma, would entitle such college to be classed as reputable. Having done this, what remained for the board to do when a graduate presented his diploma and tendered the fee for his license? Manifestly nothing more than to ascertain whether the diploma was issued by a college which exacted, as the conditions of graduation, all the requisites specified in the rule of the board. An argument- is sought to be drawn from the wording of the rule. It is said that the board do not declare colleges who comply with the rule to be reputable, but that it “ will recognize as reputable only such dental colleges as require,” etc. There is no force in the argument. It imports bad faith to the board in the formulation of the rule, and would deny relator his legal right on the turn of an expression. The law requires the discretion which is lodged in such boards to be exercised in a reasonable manner; and discretion which is uncontrolled and undefined, subject to no examination or review, and which is regulated only by the changing opinion or caprice of the tribunal in which it is reposed, becomes partial and corrupt in administration, is destructive of confidence and dangerous to the public weal. Hence, when such a body exercises its judgment and apparently covers the subject-matter confided to it, by a general rule or regulation specifying what will be required to meet its approval, it is but just to the citizen to treat such general rule as being the full expression of the body upon the subject, and as specifying all that will be required to fulfill the conditions. The board can not be permitted to hold the word of promise to the ear when the student.enters his college, and break it to his hope when he presents his diploma for a license to practice. It has exercised its entire discretion as to what are reputable dental colleges, by prescribing the general rule. It has no discretion in reserve on that question, at least, until it shall have repealed its rule or prescribed additional requirements. What relator now requires the board to do, is not a judicial act or an act involving the exercise of any discretion, but a ministerial act, the duty of performing which is imposed on the board of dental examiners by law. Two duties, different in their nature, were imposed upon them, the one judicial and the other ministerial; the judicial power has been exercised; the ministerial act only remains to be done. When a judicial body has found all the facts necessary to a judgment, so that the judgment is nothing but a conclusion of law upon these facts, the entering up of the judgment is in its nature ministerial and mandamus will lie to enforce the duty. Carpenter v. Commissioners of Bristol, 21 Pick. 259; People v. Supervisors of Schenectady, 35 Barb. 408; People v. Contracting Board, 46 Barb. 254.

The rule which we think should govern in such cases is analogous to that applied to bodies with powers to let contracts, where they have a discretion as to the sufficiency of the bond, or to receive bids for the doing of work where a deposit satisfactory to the body is required to accompany each bid.

In such cases, wdiile such bodies are recognized as having a discretion as to the security, yet if they give notice as to what security will be required, or adopt general regulations on the subject, a substantial compliance with such regulations on the part of a bidder is sufficient, and the regulation will be held an exercise of the discretion. So in The People v. The Contracting Board, supra, it was said by Hogeboom, J., that the certificate of deposit conforming in substance, if not absolutely in form, to the requirements of the notice published by the board, and the relator’s bid being the lo vest, there was no discretion left in the board, and the relator was entitled to be awarded the contract as a matter of right and law. And in Zanone v. Mound City, 103 Ill. 552, which was mandamus to compel the issuing of a license to keep a dram shop, and the relator alleged that a general ordinance provided for the issuing of licenses upon certain conditions set out in the ordinance, and that his application was in strict conformity with all the requirements, the same general principle was applied, and it was held that one who brought himself within the requirements regulating the licensing power, might compel the authorities to issue the license, even where the municipal authorities have a discretion as to the fitness and character of the person to be licensed, it not appearing that the authorities had decided that the applicant was not a fit person to be licensed.

The allegation by relator that the said Board of Dental Examiners had found that the said Northwestern Dental College was not á reputable college, will not bar relator’s right to relief. Such action of the board is alleged to have been fraudulent and not the result of due inquiry, and not based upon proper evidence, and to have been taken arbitrarily and maliciously, with the design and purpose of injuring the said college and preventing it from getting patronage, and from competing with -the Chicago Dental College, with which last mentioned dental college four out of five of the members of said Board of Dental Examiners are stated to be connected, either as members of the faculty or as instructors. These statements must be taken as true for the purposes of this case, as their truth is admitted by the demurrer; and taking them as true, they show a clear abuse of discretion on the part of the board. It was held in the Village of Glencoe v. The People, 78 Ill. 382, that where discretion is vested it can not be exercised arbitrarily, for the gratification of feelings of malevolence, and for the attainment of merely personal and selfish ends. “ It must,” said the court, be exercised for the public good, and should be controlled by judgment, and not by passion or prejudice; when a discretion is abused, and made to work injustice, it is admissible that it shall be controlled by mandamus; ” and the village board having exercised its discretion in such a mañuelas to perpetuate its own power to the utmost period and to defeat the desire of the people, it was said the discretion was abused and perverted to the attainment of an unjustifiable end, and the board was compelled to act properly and its former act was disregarded.

The case here, then, stands thus : The board, by demurring to the petition, admits that relator tendered the proper fee for a license, and presented to the board a diploma issued to him by a dental college regularly organized, which complied in all respects with the rule of the board defining reputable colleges; and that the board, knowing such college to be reputable, refused relator his license, and to the injury of relator, and falsely, fraudulently and maliciously, and with the purpose of unjustly discriminating against the Northwestern College and in favor of the college in which the individual members of the Board of Examiners are pecuniarily and professionally interested, they pretended to find that said Northwestern College of Dental Surgery was not a reputable college. The board can not admit such allegations and escape the control of the courts, on the suggestion that the discretion reposed in it can not be interfered with. The duty to be performed by the board is one in which the relator has a direct interest, and by its non-performance he is injured and aggrieved. As heretofore stated, under the facts as alleged in the petition and ad- ° mitted by the demurrer, what is sought by the petition is the performance of a ministerial act, all discretion having been exhausted, and mandamus is the appropriate proceeding to compel its performance.

The judgment of the court below awarding the writ will therefore be affirmed.

Judgment affirmed.