text:
    The Rienzi Company v. Commissioners of Lincoln Park and Charles E. Affeld, on appeal of The Rienzi Company.
    Gen. No. 20,574.
    1. Contracts, § 139

      —when agreement between park commissioners and abutting property owners for maintenance and repair of street invalid as against public policy. An agreement between a board of park commissioners in the City of Chicago and owners of property abutting on a street in such city, providing for the payment of a yearly amount per front foot by such owners to the commissioners, held contrary to public policy, where such commissioners had previously accepted an ordinance making it their duty to maintain and repair such street, on the grounds that park commissioners have no authority to compel abutting owners to pay for the maintenance or repair of a street after the making of the initial improvement' as such expenses are to be met by general taxation.
    2. Municipal corporations, § 159*—what does not constitute a contract for improvement of streets for which municipality may accept aid from individuals. A contract for payment of a certain annual sum by abutting owners to park commissioners for the maintenance of a boulevard does not come within the doctrine that a municipality may accept aid from individuals in making an improvement to a street, so as to constitute such contract valid and enforceable.
    3. Contracts, § 85*—when contract between park commissioners a¡nd abutting property owners for maintenance of street without-consideration. An agreement between the Board of Park Commissioners of the City of Chicago and the property owners abutting on a street, for the payment of a yearly amount per front foot by such owners for maintenance purposes, is invalid as being without consideration.
    Appeal from the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed March 9, 1916.
    Rehearing denied March 21, 1916.
    Statement by the Court. On January 14, 1913, The Rienzi Company, an Illinois corporation, filed its bill of complaint in the Superior Court of Cook county against the Commissioners of Lincoln Park and Charles E. Affeld, defendants. In the bill as amended it is alleged in substance,- that complainant is the owner and in possession of Lots 10, 11, 12 and 13, in Block 3 in Le Moyne’s Subdivision, etc., in Cook county; that it acquired title thereto by warranty deed dated July 1, 1912, from James Coupland and wife, who acquired their title by warranty deed, dated June 28,1912, from the defendant Charles E. Affeld; that on July 19,1888, there was filed for record in the office of the recorder of deeds of Cook county a certain “pretended agreement” as follows:
    “agreement of property owners for maintenance and
    REPAIR OF DIVERSEY AVENUE .BOULEVARD.
    “Whereas, the Board of Trustees of the Town of Lake View, in the County of Cook and State of Illinois, did by an. ordinance approved Dec. 20, 1886, and by an amendatory ordinance approved May 2, 1887, grant permission to the Commissioners of Lincoln Park to accept and improve that portion of Diversey street in the said Town of Lake View lying East of Clark street.
    “And Whereas, the Board of Commissioners of Lincoln Park hesitate to accept said street because of the expense of maintaining said drive after the same shall be improved by a special assessment.
    “Now, Therefore, for the purpose of inducing the Commissioners of Lincoln Park to accept said street and for the purpose of providing a fund for the future maintenance of the portion of said Diversey street above mentioned, the undersigned owners of the property abutting thereon noted opposite our respective signatures hereto attached, hereby agree to pay, on or before the first day of May in each year, on request of the Commissioners of Lincoln Park, a sum not exceeding twenty-five (25) cents for each front foot of the property described opposite our respective names for the maintenance of said portion of Diversey street, and for the purpose of securing the payment of said sums respectively each of us, for himself and not for the others, hereby agrees that this covenant shall be made a charge or lien upon said property, to be enforced in any manner now or hereafter provided by law, and to this stipulation and covenant we severally bind our heirs, executors and assigns.
    “In Witness Whereof, we have hereunto set our hands and seals, and described the lots owned by us respectively, this --day of November, A. D. 1887.”
    That said document was signed by divers property owners owning property abutting on Diversey street, and among them the said defendant, Charles E. Afield, who was then the owner of the property above described, his signature thereto being as follows: “C. E. Afield, 186 feet, being for Lots 10, 11, 12 & 13 in Block 3, Le Moyne’s Subdiv.’’; that said document was not signed by the Commissioners of Lincoln Park; that said property abuts on what is now known as Diversey boulevard, and that at the time of the execution and the recording of said document, and in December, 1886, said street was known as that portion of Diversey street, lying east of Clark street, and was located within the Town of Lake View in said Cook county, and was under the jurisdiction of the board of trustees of said town; that said board of trustees, by ordinance approved December 20, 1886, and by an amendatory ordinance approved May 2, 1887, granted permission to said Commissioners of Lincoln Park to accept and improve said portion of Diversey street; that on June 7,1887, said commissioners accepted said ordinances and accepted and assumed control and jurisdiction of said portion of Diversey street as a boulevard ; that by said amendatory ordinance approved May 2, 1887, it was provided that said permission granted to said commissioners to take, control and improve said portion of Diversey street was granted upon the condition that “the cost of all improvement and repairs and maintenance” of said boulevard “shall be paid by the owners of property abutting thereon, to be assessed and collected on said abutting property in the manner provided by law;” that the only method then provided by law therefor was by general taxation or special assessment, and that said pretended agreement with' said commissioners was in violation of the terms of the aforesaid ordinance; that the defendant Charles E. Afield, for five years subsequent to the execution of said document, paid to said commissioners the amounts provided for therein and then discontinued such payments; that for more than fifteen years last past neither said Afield, nor any other property owner signing said document and owning property abutting on said boulevard, have recognized the validity of the same, or paid any sums of money thereunder or for the purpose of improving or maintaining said boulevard, except as such payments were made by way of general taxes or special assessments levied by the proper corporate authorities upon and collected from the respective premises owned by the signers of said document; that said Commissioners now claim and pretend that there is due from said Affeld for unpaid instalments under said pretended agreement a large sum of money, and claim and pretend that by virtue thereof said commissioners have a lien upon said premises of complainant for said amount; that said claim is false, and that said claim and said pretended agreement so recorded constitute a cloud upon the title of complainant to said premises, depreciate the value thereof and render the same unsalable; and that said pretended agreement was and is void and of no effect. The bill prayed that said pretended agreement be adjudged a cloud upon the title of complainant and be removed as such, etc.
    The defendant, Charles E. Affeld, filed an answer in which he admitted the material allegations of the bill.

      The defendant, Commissioners of Lincoln Park, filed an answer admitting that complainant was the owner and in possession of said premises, that the agreement mentioned in the bill was signed by said Affeld and others, and duly delivered to said commissioners, and recorded on July 19, 1888; that the ordinance and amendatory ordinance mentioned in the bill were passed, and that on June 7, 1887, said commissioners accepted said ordinances and assumed control and jurisdiction over said portion of Diversey street as a boulevard. The ordinance of December 20, 1886, is set out in full in the answer. It is recited in said ordinance that a majority of the owners in frontage of the lots abutting on Diversey street, east of Clark street, have presented their consent and petition to said board of trustees for the taking over by said Commissioners of Lincoln Park of said portion of Diversey - street, laying east of Clark street, as.a boulevard, upon the condition, among others, that “one-half of the cost of all improvements and repairs and maintenance of said boulevard shall be paid by the- owners of property abutting thereon, to be assessed and collected on said abutting property in the manner provided by law.’’ It is further- recited in the ordinance that the General Assembly of the State of Illinois has passed an act amending sections 1 and 2 of an Act entitled: “An Act to enable park commissioners and corporate authorities to take, regulate, control and improve public streets leading to public parks; to pay for the improvement thereof, and in that behalf to make and collect a special assessment or special tax on contiguous property,” approved April 9, 1879. It is further recited in the ordinance that the Board of Lincoln Park Commissioners are desirous of taking over said portion of Diversey street, east of Clark street, for the uses and purposes in said act mentioned, and that it is deemed desirable that the prayer of said petition be granted. It is then provided in the ordinance that the consent be given to said commissioners to take, control and improve said portion of Diversey street in manner and form as provided in said act of the General Assembly, subject to the rights and powers on the part of said Town of Lake View as to the laying of gas and water pipes and the building and repairing of sewers, etc. After the setting out of the ordinance of December 20, 1886, the answer alleges that said commissioners refused to accept said ordinance or to assume control or jurisdiction over said portion of Diversey street unless the owners of the property abutting on said proposed boulevard would agree to pay the cost of all improvements and repairs and maintenance of the same; that thereupon, and before the passage of said amendatory ordinance of May 2, 1887, the owners of the property abutting on said proposed boulevard ‘ ‘ did agree to pay the cost of all improvements and repairs and maintenance” of said portion of Diversey street “if accepted by The Commissioners of Lincoln Park”; and that thereupon the said amendatory ordinance was duly passed. This amendatory ordinance of May 2, 1887, is set out in full in the answer. It is therein provided that the ordinance of December 20, 1886, “is hereby amended so that the consent therein given and granted shall be upon the further condition that the cost of all improvements and repairs and maintenance of the boulevard * * * shall be paid by the owners of property abutting thereon, to be assessed and collected on said abutting property in the manner provided by law.” .The answer further alleges, in substance, that said Charles E. Afield continued to make payments for maintenance of said boulevard to said commissioners, under the agreement mentioned in the bill, for a period of twelve years up to April 1, 1899, but that since then he has refused to make payments thereunder; that on August 13, 1912, this defendant, Commissioners of Lincoln Park, commenced a suit in assumpsit against him in the County Court of Cook county for the amount then due and unpaid, about $650, which suit is now pending and undetermined, and that there is now due this defendant from said Affeld the sum of $697.50, and lawful interest thereon. The answer denies that the claim against said Affeld is false, or that said agreement constitutes a cloud upon the title of complainant for the reasons charged in the bill; and further alleges, in substance, that the defendant is a municipal, or quasi municipal, corporation and by law has acquired jurisdiction and control over said portion of Diversey street, and has publicly exercised such control and jurisdiction for more than twenty-five years last past, during all of which time this defendant has improved and maintained said street so that it has caused the property of said Affeld to rise in value, etc.; that by reason of said agreement and the maintenance of said boulevard by this defendant, the said Affeld, and the other property owners on said boulevard, were spared the expense and cost of frequent special assessment proceedings for the improvements of said street, all of which said Affeld has for more than twenty-five years acquiesced in; and that by reason of said acquiescence and acceptance of benefits by him and his assigns complainant is estopped from now attacking the validity of said agreement.
    On October 29, 1913, said defendant, Commissioners of Lincoln Park, filed its cross-bill against complainant and said Charles E. Affeld, in which it alleges, in substance, that it is a corporation organized under an act of the General Assembly, approved and in force February 8, 1869, and amendments thereto; that said ordinance of December 20, 1886, and said amendatory ordinance of May 2, 1887, were passed by the Board of Trustees of the Town of Lake View; that the same were accepted by cross-complainant on June 7, 1887, upon the conditions therein stated; that thereupon, in November, 1887, in compliance with the condiiions named in said ordinances, the owners of a majority of the frontage on said portion of Diversey street, including said Afield, executed and delivered the agreement set out in complainant’s bill, and the same was recorded on July 19, 1888; that cross-complainant took upon itself the control, management and jurisdiction over said portion of Diversey street as a boulevard, has made all necessary improvements and repairs, and maintained the same as a boulevard up to the present date and ever since the time of the entering into of said agreement; that said Afield, from May 1,1888, to about May 1,1899, continued to pay to cross-complainant each year, on or before May 1, the sum of $47.50, but that since May 1, 1899, he has refused to pay said annual instalment of $47.50, as in equity and good conscience he was bound to do; that on July 1, 1912, The Rienzi Company acquired title to the premises in question, at which time there was due to cross-complainant for the maintenance of said boulevard the sum of $617.50, which, by the terms of said agreement of November, 1887, was a charge or lien upon said premises, and was a binding obligation upon said Rienzi Company, but which amount it has refused to pay; and that said agreement is a valid and legal contract and binding both upon said Afield and The Rienzi Company. The cross-bill prayed that an account be taken and that both said Afield and The Rienzi Company be decreed to pay cross-complainant whatever sums may be found due to it, and that in default of payment the said premises be sold, etc.
    To this cross-bill separate answers were filed by The Rienzi Company and Affeld, in which they denied that anything was due from either of them by virtue of said agreement, and alleged the invalidity of said agreement for reasons substantially as set forth in the original bill of The Rienzi Company. Replications were filed to the answers to the bill and to the cross-bill.

      After a hearing in open court before the chancellor; a decree was entered, March 13, 1914, dismissing complainant’s bill (as amended) for want of equity, finding the equities with the cross-complainant,. Commissioners of Lincoln Park, and adjudging that unless the cross-defendant Charles E. Affeld, or the cross-defendant The Rienzi Company, or one of them, pay or cause to be paid to the cross-complainant, within thirty days, the sum of $418.87, the said premises be sold, etc. From this decree The Rienzi Company and Charles E. Affeld severally prayed appeals to this court, which were allowed and subsequently perfected. This is the appeal of The Rienzi Company.
    The decree contained full findings of facts and the further finding that the facts as found were all the material facts proved at the hearing. The decree recites in haec verba the original ordinance of December 20,1886, and the amendatory ordinance of May 2,1887, the acceptance of said ordinances by the Commissioners of Lincoln Park on June 7, 1887, the property owners’ agreement thereafter signed on the-day of November, 1887, and further recites that said agreement was delivered to and accepted by said Commissioners and recorded July 19, 1888, and that about the time of the acceptance thereof the commissioners took control, management and jurisdiction over said portion of Diversey street as a boulevard, and have since managed and maintained the same as a boulevard. The decree further finds, in substance, that on January 15, 1900, the Town of Lake View, at the instance of said commissioners, filed its petition in the Superior Court of Cook county for the confirmation of a special assessment for the “improvement of said Diversey boulevard east of Clark street as a Lincoln Park boulevard” ; that said special assessment was duly confirmed on January 10,1901, as against the property of Charles E. Affeld, as well as against other property; that thereupon in the years 1901 and 1902 said Affeld “paid the amount of said special assessment levied against the premises in question, being more than the sum of $800,” and that said improvement of the street was duly made as provided; that said special assessment proceedings “did not take the place of or abrogate the agreement hereinbefore described—but that said special assessment was for a new improvement of said street”; that after said special assessment proceedings the Commissioners of Lincoln Park continued to control and maintain said portion of Diversey street as a boulevard; that after the confirmation of said Special assessment, and since the year 1901, the said Afield has refused to pay to the commissioners “his proportion of the cost of said maintenance as provided in said agreement,” although the commissioners have from year te> year demanded of him and of various other owners the amounts of 25 cents per front foot as the same accrued; that ever since the execution of said agreement the corporate authorities of the Town of Lake View, at the instance of the commissioners, have from year to year caused to be levied upon all taxable property in said town, as provided by statute, a park tax for the maintenance and government of Lincoln Park and all boulevards and streets under the control of said commissioners; that said taxes have been levied against the premises of complainant and been paid yearly by said Affeld, while he was the owner thereof, as a part of the general taxes, and by complainant since it became the owner thereof, and that said commissioners have received and applied all such park taxes so levied against said premises for the purpose of maintaining said park system, including Diversey boulevard; that beginning with the year 1888 and up to and including the year 1900, said Affeld has paid for the maintenance of said portion of Diversey boulevard the sum of 25 cents per foot of his said premises ; that from the year 1903 to and including the year 1912, the annual. expense to said commissioners for the maintenance of said boulevard has ranged from .203 cents per front foot in 1903, to .527 cents in 1912; that there is due said commissioners from May 1,1903, to May 1,1913, under the terms of said agreement, the total sum of $418.87 for the maintenance of said boulevard for said premises; that said commissioners are not entitled to recover any amounts under said agreement accruing prior to a period of ten years next preceding the filing of the bill herein, the said amounts being barred by the statute of limitations; that said Charles E. Affeld is legally obligated to pay said amount of $418.87 so found due to said commissioners, as well as any and all future amounts which may accrue to said commissioners, under the terms of said agreement, against said premises, and that said sum of $418.87 constitutes a lien and charge upon said premises, and that the interest of The Rienzi Company in said premises is subject thereto; that there is no' evidence that said Affeld signed the petition to the Town of Lake View relative to payment by abutting property owners on Diversey street of the cost of all improvements, repairs and maintenance of said boulevard, as recited in the ordinances of December 20, 1886, and May 2, 1887, but that there is evidence that said Affeld was in favor of said street being turned over at that time to said commissioners by said town for the purpose of said boulevard, and that he made no objections to said commissioners assuming control and jurisdiction thereof.
    Vincent D. Wyman, Charles E. Carpenter and Otto W. Jurgens, for The Rienzi Company.
    Richberg, Ickes & Richberg, for Charles E. Affeld.
    Francis O’Shaughnessy, for Commissioners of Lincoln Park,

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is contended that the court erred in dismissing the bill as amended, and in not dismissing the cross-bill for want of equity.

Section 21 of the act entitled “An Act to fix the boundaries of Lincoln Park in the City of Chicago, and provide for its improvement,” approved and in force February 8, 1869, provided, among other things, that the Commissioners of Lincoln Park shall in regard to said park “possess all the power and authority now by law conferred on or possessed by the common council of said city in respect to the public squares and places in said city.” Section 17 of said act required the commissioners each year to make an estimate of the amount necessary to be expended for the improvement and repair of said park and drive during the next succeeding year and to certify the same to the county clerk, to be by him extended, as a “Lincoln Park Tax, ’ ’ upon the taxable property in the towns of North Chicago and Lake View; and it is therein further provided that the taxes so collected shall be paid tb the commissioners and used by them in improving and keeping in repair the park and drive. By section 2 of the Act of April 19, 1869, said section 17 was repealed, and the commissioners were directed to make an estimate of the amount of money required to pay any debt falling due during the next year and for the improvement,’ maintenance and government of Lincoln Park during the next succeeding year, which estimate shall be certified to the supervisors of said towns, who shall determine the amount of tax necessary for the purpose and certify the same to the county clerk, who shall extend the same as a “Lincoln Park tax,” and the “taxes so levied and collected shall be paid to the Commissioners of Lincoln Park and by them applied to purposes aforesaid.” On April 9, 1879, the Legislature passed an act entitled.“An Act to enable Park Commissioners or Corporate authorities to take, regulate, control and improve public streets leading to public parks; to pay for the improvement thereof, and in that behalf to make and collect a special assessment or special tax on contiguous property.” (Laws Ill. 1879, p. 216.) Sections 1 and 2 of said act were amended by an act approved June 27, 1885. (Laws Ill. 1885, p. 225.) Section 1 (as amended) provided, in substance, that every board of park commissioners shall have power to connect any public park, boulevard or driveway under its control with any part of any incorporated city, town or village, by selecting and taking any connecting street or streets, or part thereof, leading to such park, providing there be first obtained the consent of the corporate authorities having control of such street or streets, and also the written consent of the owners of a majority of the frontage of the lots and lands abutting on such street or streets so far as taken. Section 2 (as amended) conferred power on such board of park commissioners to improve, maintain and repair such street or streets as they might deem best, and such board were authorized from time to time to levy or cause to be levied or collected a special tax or assessment on contiguous property abutting on such street so improved, “for a sum of money not exceeding the estimated cost of such improvement or improvements and for the future ■maintenance and repair thereof, as shall be ordered and estimated by such board of park commissioners”; and to that end it was further provided therein that such board should have all the power and authority then or thereafter granted to them relative to the levy, assessment and collection of taxes or assessment for corporate purposes. Said act (as so amended) was in force when the ordinance of December 20, 1886, and the amendatory ordinance of May 2,1887, were passed by the Board of Trustees of the Town of Lake View. It is quite probable that the provision in the amendatory ordinance of May 2, 1887, ceding control of said portion of Diversey street to the Lincoln Park Commissioners upon condition that “the cost of all improvement, and repairs and maintenance” of the boulevard should be paid by the owners of property abutting thereon, “to be assessed and collected on said abutting property in the manner provided by lam,” had reference to the provision contained in said section 2 (as amended) relative to “future maintenance and repair. ’ ’ By- an act of the Legislature, approved June 16, 1887, said section 2 was again amended, and boards of park commissioners were authorized to cause to be levied and collected a special tax or assessment on contiguous property “for a sum of money not exceeding the estimated cost of such first improvement or improvements as shall be ordered and estimated by such board of park commissioners, but not for any subsequent care, maintenance or repair thereof(Laws Ill. 1887, p. 247.) Said section 2 was further amended by an act of the Legislature, approved May 25, 1909 (Laws Ill. 1909, p. 294), but the words last above quoted were unchanged. On June 17, 1893, the Legislature passed an act entitled “An Act to authorize corporate authorities having jurisdiction and control of parks and boulevards to levy a special tax upon contiguous property abutting on boulevards and pleasureways, for the maintenance and repair thereofIn the case of Crane v. West Chicago Park Com’rs, 153 Ill. 348, our Supreme Court at the October term, 1894, decided that said act was unconstitutional and void. The court, quoting from Hammett v. Philadelphia, 65 Pa. St. 155, said (p. 353): “Repairing streets is as much a part of the original duty of the municipality—for general good—as cleaning, watching and lighting. It would lead to monstrous injustice and inequality should such general expenses be provided for by local assessments.” During the year following the decision in the Crane case, supra, the Legislature, on June 21, 1895, passed an act entitled “An Act to enable Park Commissioners or park authorities to take, regulate, control and improve public streets, and to pay for the improvement thereof.” In section 2 of the act it is expressly provided that “no such special tax, or special assessment, shall be levied for the maintenance and repair of said improved street, but the same shall be maintained and repaired by said park boards or park authorities as in other cases.” (Laws Ill. 1895, p. 291.)

From the above we think it appears that, by the public policy of the State, park commissioners have not had, at least since the adoption of the Constitution of 1870, power or authority to compel abutting property owners ,by special assessment to pay for the maintenance or repair of a boulevard after the making of the initial improvement, but that the expense of such maintenance or repair must be met by general taxation. And we are of the opinion that the agreement of November, 1887, is without consideration and contrary to public policy. The court found in the decree that on June 7, 1887, the Commissioners of Lincoln Park accepted the ordinance of December 20,1886, as amended by the ordinance of May 2, 1887. This acceptance was prior to the date of the agreement, and by virtue of the acceptance it became the duty of the commissioners, after the making of the initial improvement, to maintain and Tceep in repair said portion of Diversey street as a boulevard. (City of Alton v. Hope, 68 Ill. 167, 169.) The doing by the commissioners of acts which they were required to do by law is not a consideration for the promise of Affeld and others. (20 Am. & Eng. Encyc. Law, 2nd Ed., 1159; City of St. Louis v. The Maggie P., 25 Fed. Rep. 202; Randolph County Com’rs v. Jones, 1 Ill. 103.)

It is contended by counsel for the commissioners that, under the doctrine that a municipality may accept aid from individuals in making an improvement to a street, the contract in question is valid and may he enforced. We do not think that the cases cited in support of the contention are in point. They are cases where the contracts were made with reference to contemplated improvements. The contract in question has reference to the future maintenance of the street, not to the improvement thereof.

Our conclusion is that the court erred in dismissing the bill of The Rienzi Company for want of equity and in entering the decree on the cross-bill in favor of the Commissioners of Lincoln Park. The decree is reversed and the cause remanded with directions to dismiss the cross-bill for want of equity, and to enter a decree in favor of The Rienzi Company, complainant, in accordance with the prayer of its bill as amended.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    The Rienzi Company v. Commissioners of Lincoln Park and Charles E. Affeld, on appeal of Charles E. Affeld.
    Gen. No. 20,612.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Joins M. O’Connor, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed March 9, 1916.
    Rehearing denied March 21, 1916.
    Statement of the Case.
    This appeal of Charles E. Affeld is taken from the same decree which was considered in Rienzi Co. v. Commissioners of Lincoln Park, ante, p. 218, in which proceedings he was one of the defendants in a cross-bill filed by the Commissioners of Lincoln Park. For the reasons stated in that decision the decree is reversed with directions to enter a decree in favor of The Rienzi Company in accordance with the prayer in its bill as amended.
    Vincent D. Wyman, Otto W. Jurgens and Charles E. Carpenter, for The Rienzi Company.
    Richberg, Ickes & Richberg, for Charles E. Affeld.
    Francis O’Shaughnessy, for Commissioners of Lincoln Park.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Charles C. O’Neill, Defendant in Error, v. Oscar Metz, Plaintiff in Error.
    Gen. No. 21,042.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Action by Charles C. O’Neill, plaintiff, against Oscar Metz, defendant, to recover a balance due of ninety dollars, on the sale to defendant of one second hand steam boiler and four second hand steam radiators at the agreed price of one hundred dollars, of which ten dollars had been paid by defendant. From a judgment in favor of plaintiff, defendant brings error.
    In his affidavit of merits defendant set up the defense that plaintiff expressly warranted that the goods were 11 sound and fit for the purpose of using the same in defendant’s building,’’ that defendant relied upon the warranty and paid plaintiff ten dollars as part of the purchase price, and after delivery and installation in defendant’s building they were found to be unsound and unfit for said purpose and of no value to defendant."
    Abstract of the Decision.
    1. Sales, § 329

      —when evidence insufficient to establish implied warranty as to soundness and fitness. In an action to recover the balance due on the purchase price of one secondhand steam boiler and four secondhand steam radiators, evidence held insufficient to establish an implied warranty as to soundness and fitness of the goods.
    2. Sales, § 329*—when evidence insufficient to establish an express warranty as to soundness and fitness. In an action to recover the balance due on the purchase price of one secondhand steam boiler and four secondhand steam radiators, evidence held insufficient to establish an express warranty as to soundness and fitness-of the goods.
    A. L. Williams, for plaintiff in error; George H. Sugrue, of counsel.
    Grover C. Niemeyer, for defendant in error.

      See Illinois Note» Digest, Vols. XI to XV, and Cumulative Quarterly, same te»ic and section number.

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    F. Behrends, Defendant in Error, v. Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 21,090.
    1. Carriers, § 243

      —when Mil of lading limiting UaMlity for delay in shipment of live stock not effectual. A hill of lading limiting the liability of the carrier for damages for delay in shipment of live stock in order to he binding, must be delivered to the shipper at the time the stock is accepted for carriage, unless there is an agreement that it shall he delivered at a future time.
    2. Carriers, § 248*—when evidence sufficient to sustain finding as to damag'es for delay in shipment of live stock. In suit by shipper of cattle against a railroad on account of unreasonable delay in shipment and mixture while in transit with other cattle, evidence of plaintiff’s damages held sufficient to sustain finding and judgment in his favor.
    3. Carriers, § 250a*—what is measure of damages for delay in shipment of live stock. Unless otherwise legally limited by the contract of carriage, the measure of damages for delay in shipment of live stock is the difference between the market value of the consignment at the time and in the condition it should have arrived and its fair, cash market value in the condition and the time it actually arrived at its destination, plus the necessary expenses caused to the shipper by the delay.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 9, 1916.
    M. L. Bell and A. B. Enoch, for plaintiff in error.
    Fulton, Garey & Deutschman, for defendant in error.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This action was commenced in the Municipal Court of Chicago on February 17, 1913. In plaintiff’s amendment to his' original statement of claim, filed April 24, 1913, it is stated that plaintiff’s claim is “for money damages incurred to a shipment of 22 calves; 6 cows, very good; 6 cows, medium; 3 heifers, fat; and 3 steers, fat; the property of plaintiff shipped from Conger, Minnesota, on, to-wit, March 30, 1912, via said defendant, to Chicago, Illinois, arriving thereat on, to-wit, April 2,1912; said damage being incurred by reason of the unreasonable delay in said transit and by reason of the negligence of said carrier during said transit in that said defendant allowed said stock to become mixed during said transit.” To this defendant filed an affidavit of merits in which it was denied that there was any unreasonable delay in transit or that any damages were suffered by plaintiff by reason thereof, or that it was guilty of any negligence, or that said stock had become mixed during transit. Subsequently defendant filed an amendment to its affidavit of merits in which it was alleged that the said shipment of stock moved under a written contract, entered into between plaintiff and defendant, known as a “Live Stock Contract,” and that in said contract it was provided, inter alia, that the live stock was not to be transported in any specified time or in season for any particular market; that as a condition precedent to the recovery for any loss or injury or detention the shipper should promptly give written notice of such loss or injury to some agent of the company before said stock be removed from the cars or mingled with other stock, which notice should be served within one day after the delivery of the stock at its destination, and that no suit should be instituted more than six months after the cause of action accrued. It was further alleged that plaintiff had not served the written notice referred to in said contract and that no suit had been commenced within said six months.

The cause was tried before the court without a jury. The- depositions of plaintiff and two of his witnesses were read in evidence. One F. S. Boothroyd, engaged in the live stock commission business at the Union Stock Yards, Chicago, also testified as plaintiff’s witness in open court. No evidence whatsoever was introduced by defendant concerning the shipment of March 30, 1912, in question. The court found the issues against defendant and assessed plaintiff’s damages at $129.50, upon which finding judgment was entered.

It is contended by counsel for defendant that the court erred in entering any judgment in favor of plaintiff for the reason that it appears from plaintiff’s testimony that a written contract or bill of lading was signed by plaintiff which was not introduced in evidenced by plaintiff. In support of their contention counsel rely upon the case of Kitza v. Oregon Short Line R. Co., 169 Ill. App. 609. It appears from the opinion in that cáse that the shipper of the sheep in question had signed a written contract or bill of lading, after reading the same, at the time of the making of the shipment and before the transit of the sheep had commenced. It was held that the burden of proof was upon the shipper to prove the written contract upon which the shipment was made, and that failing to do this he could not recover upon an alleged verbal contract which did not exist, the same having been superseded by said written contract. In the present case it appears from the uncontradicted testimony of plaintiff that before March 30, 1912, he had made arrangements with the agent of defendant, at Conger, Minnesota, for the shipment of the cattle on that -day; that he himself loaded the cattle in the cars on March 30, 1912, and that the loading was completed by 9 o’clock on the evening of that day and the cattle were then ready to start; that after said loading was completed he for the first time heard that a dam near a bridge at Albert Lea, Minnesota, had broken down and that a flood was impending which might delay the transit of the cattle; that said agent of defendant then wanted him “to sign a paper,” which he refused to do, saying that he “wouldn’t be responsible if anything happened down there,” and that said agent told him that the cattle would be carried forward immediately that evening; and that about two weeks after the cattle had been shipped and after plaintiff had made a claim against defendant for damages on said shipment said agent requested him to sign some sort of a contract, which he did, after said agent had stated to him that his signing it would make no difference and that he would get his claim anyway. Under the facts as disclosed we do not think there is any merit in counsel’s contention or that the ruling in the Kitza case, supra, is applicable. “To make the terms and conditions of the receipt effectual in limiting the liability of the carrier, it must be delivered to the shipper of the goods at the time they are accepted for carriage, unless there is an agreement that it shall be delivered at some future time.” (Hutchinson on Carriers, 3rd Ed., sec. 416; see also, Gemberling v. Grand Trunk Western Ry. Co., 192 Ill. App. 53, 56; Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400, 405.)

It is also contended that plaintiff’s evidence as to damages is not certain enough to sustain the judgment or any judgment against defendant. It appears from the evidence that the cattle arrived at the Union Stock Yards in Chicago at 11 o’clock on Tuesday morning, April 2, 1912, and were there unloaded. There was evidence tending to show that a reasonable time for a shipment of cattle to move from Conger to Chicago was about thirty-five hours, and that cattle leaving Conger at 9 o’clock on the evening of Saturday, March 30,1912,- would usually arrive in Chicago at or shortly before 8 o’clock on the morning of April 1, 1912. There was also evidence introduced as to shrinkage. “Unless otherwise legally limited by the contract to carry, the measure of damages by reason of a delayed shipment is the difference between the market value of the consignment at the time and in the condition it should have arrived and its fair, cash market value in the condition and at the time it actually did arrive at its destination, * * * plus the necessary expenses to the shipper caused by the unusual delay.” (Idaho Sheep Co. v. Oregon Short Line R. Co., 188 Ill. App. 591, 599.) There was also evidence tending to show that during the transit the cattle became mixed with other cattle and that some of the cattle received in Chicago were not the same as shipped from Conger and inferior to those as shipped. Without further discussion of the evidence we deem it sufficient to say that, in our opinion, the evidence as to plaintiff’s damages was sufficient to sustain a finding and judgment in his favor in the amount, at least, of the finding and judgment as rendered.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Merrick Bush, Defendant in Error, v. Farrington Automobile Company, Plaintiff in Error.
    Gen. No. 21,150.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Action by Merrick Bush, plaintiff, against Farrington Automobile Company, defendant, for commissions due plaintiff on account of sales of automobiles. From a judgment in favor of plaintiff, defendant brings error.
    Plaintiff claimed commissions due him as salesman on three, separate sales. One of the sales was to a man named Erncke, on which sale plaintiff claimed, and defendant admitted, a balance of $50 due plaintiff. Another sale was to a man named Blair, on which sale plaintiff claimed a commission of $127.50. The third sale was to a man named Tydings, on which sale plaintiff claimed that defendant agreed to pay him “$100 if defendant should be able to enforce the sale, or $50 if the deal did not go through. ’ ’ The defendant denied owing plaintiff anything on the Blair and Tydings sales and claimed a set-off of $131.30 for the expense of making repairs on a certain car which had been damaged because of the unskilful driving of the same by a prospective customer, during a “demonstration” of the car, permitted by plaintiff. The case was tried before a jury who returned a verdict for plaintiff in the sum of $210, upon which, verdict judgment • against the defendant was entered. Both counsel agreed that the jury in arriving at their verdict allowed plaintiff $50 on the Erncke sale, $110 on the Blair sale and $50 on the Tydings sale, and disallowed, in toto, defendant’s claim of set-off. Plaintiff was the only witness on his own behalf in making his case in chief. The principal witness for defendant was William H. Farrington,, president of defendant. The testimony of these two witnesses was very conflicting on material points. A bookkeeper of defendant and an employee of defendant in its repair department also testified for defendant. Plaintiff and two other witnesses in his behalf gave testimony in rebuttal.
    McArdle & McArdle, for plaintiff in error.
    Guerin & Barrett, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Evidence, § 475*—when preponderance of evidence is in favor of plaintiff. Where plaintiff’s testimony is overcome by the testimony of one witness for defendant on many material points, it cannot be said that the preponderance of evidence is not in favor of the plaintiff.

2. Evidence, § 476*—what does not constitute weight of evidence. The mere fact that more witnesses testify on one side than on the other does not, of itself, determine the weight of evidence.

3. Set-off and recoupment, § 40*—when evidence insufficient to establish claim, of set-off. In suit by an automobile salesman for commissions due him, evidence held sufficient to sustain a finding disallowing a claim of set-off for expense of making repairs on a certain car, alleged to be due to the unskilful driving of the same by a prospective customer during a “demonstration” of the car.


text:
    North End Paper Company, Plaintiff in Error, v. State Bank of Chicago, Defendant in Error.
    Gen. No 21,188.
    Attorney and client, § 61

      —when attorney implied authority to indorse check received in payment of collection to bank. In an action of trover for the conversion of a check, of which plaintiff, a foreign corporation, payee, and defendant, a local bank, indorsee and which had been converted after it had been indorsed to defendant by a local attorney, who had been instructed by plaintiff’s foreign attorney to collect a local account from plaintiff’s debtor, where such account was paid in part by such check drawn to plaintiff’s order and where plaintiff’s foreign attorney instructed the local attorney to remit amount collected less fees and enough to start suit on the balance, and such local attorney indorsed the check with plaintiff’s name and his own to defendant bank which credited his account therewith, ■ held, that the local attorney had implied authority to indorse the check to the bank and that there could consequently be no recovery against the latter.

      Error to the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.'
    Affirmed.
    Opinion filed March 9, 1916.
    Cavender, Kaiser & Wermuth, for plaintiff in error.
    Butz, von Ammon & Johnston, for defendant in error.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

The North End Paper Company, a New York corporation having its principal office at Fulton, New York, brought an action against the State Bank of Chicago, in the County .Court of Cook county, in trover for the conversion, on March 25, 1914, of a certain bank check for the sum of $330.92. The check was drawn by Hanchett Paper Company, a corporation having its principal office in Chicago, Illinois. The defendant filed a plea of the general issue. The case was tried before the court without a jury upon a stipulation of facts. The court found the defendant not guilty and entered judgment against the plaintiff for costs.

The facts as stipulated are, in substance as follows: On March 13, 1914, Claude E. Guile, an attorney at law at Fulton, New York, was duly authorized by plaintiff to forward, and did forward, for collection, to Percival Steele, then a duly licensed attorney at law in Chicago, a claim of plaintiff against said Hanchett Paper Company for the sum of $616.26. In the letter which accompanied the claim, Guile stated that it was important to his client (plaintiff) that the collection of the claim be made at once and that Steele should “leave no stone unturned to get the money,” and requested Steele to wire if the claim was not paid on presentation. On March 17th Steele wrote Guile that Hanchett Paper Company had stated to him that it would pay all or one-half of the account by Wednesday, March 25th, and that he thought .it advisable to wait until that date. On March 30th Guile wired Steele inquiring if the account had been paid, to which Steele wired a reply and also wrote a letter to the effect that the Hanchett Paper Company had given him a check for $330.92, and had promised payment of the balance on April 15th, and that in view1 of the payment he deemed it advisable to wait. On April 2nd Guile wired in reply: “Please remit amount collected North End against Hanchett Paper Company, less fees and less enough to start action on balance.” Guile on the same day wrote Steele, confirming the telegram and saying: “Unless these debtors will promise to pay the interest on this account, and your .fees for collection, we want you to bring an action against them for the balance due and the interest on the whole account at once.” On the morning of April 3rd Steele died. In the meantime, on March 25th, the Hanchett Paper Company had delivered to one Hoering, a duly authorized agent of Steele, its check for $330.92, payable to the order of “North End Paper Co.,” and drawn on the National City Bank of Chicago, where it then had funds on deposit. Hoering, with Steele’s authority, took the check to the defendant bank, where for a long time previously Steele had had a checking account, and indorsed the check “North End Paper Co.,” and immediately thereunder, “Percival Steele,” and deposited the same to the credit of Steele’s account with the defendant bank, and said check was regularly paid through the Chicago Clearing House on March 26th. At the time the check was deposited Steele’s account with the defendant bank was overdrawn in the sum of $39.86. Afterwards checks were drawn by Steele and charged to said account, and at the time of his death, April 3rd, there remained to his credit, including the credit of said check for $330.92, the sum of $113.99. Plaintiff received no part of the proceeds of said check.

Counsel for plaintiff contend that an agent, or attorney at law, employed to collect a claim and to compound, discharge and give releases therefor, who receives in payment of said claim a check payable to the order of his client, has no authority to indorse said check in the name of his client unless such authority is expressly given. Counsel for defendant, on the other hand, contend that, under the facts of this case, where it appears that Steele was employed by the authorized agent of plaintiff to make a collection for plaintiff and was expressly instructed to “leave no stone unturned to get the money,” and that plaintiff was at a place far distant from where Steele and plaintiff’s debtor resided, Steele had at least implied authority to indorse plaintiff’s name to the check in question received in due course of his employment, and that defendant is not liable to plaintiff in the present action.

Under all the facts of this case and under the following adjudicated cases, we are of the opinion that the trial court did not err in rendering the judgment in favor of defendant. (National Bank of Republic v. Old Town Bank of Baltimore, 112 Fed. 726; National Fire Ins. Co. v. Eastern Building & Loan Ass’n, 63 Neb. 698; Same v. Same, 65 Neb. 483, 485.) In the case first cited the facts were somewhat similar to the facts in the present case. A Chicago attorney, named Fairman, had received certain checks payable to the order of his clients in payment of certain sums of money which they had employed him to collect and which were due them from certain executors. He indorsed the checks in the names of his clients and deposited them to the credit of bis account with the National Bank of the Republic of Chicago and they were subsequently paid. He had no express authority from his clients to indorse any of said checks, aside from such authority as may have been vested in him by virtue of his employment. He failed to pay over to his clients all of the money due them and suit was brought against said bank. The United States Circuit Court of Appeals, for the Seventh Circuit, held that there could be no recovery against said bank, and in the course of the opinion said (pp. 727-729):

“The authority to collect and to receive from the executors the amount coming to the distributees included all the. usual means of executing that authority with effect, * * * and all appropriate modes and reasonable modes are deemed to be within the scope of the authority conferred. * * * The authority is limited to the particular subject, but should be construed to effectuate the design and object. The authority of an attorney in the course of a litigation and in the prosecution and collection of claims has been often considered, but the courts have not at all times been at agreement. * * * There appears a tendency to relax the strict limitation of implied authority to meet the necessity of prompt action in modern business methods, particularly when client and attorney are at considerable distance from each other. After all, the question of authority must depend, as Mr. Mechem observes, largely upon circumstances; and ‘authority to do a given act carries with it the implied authority to do those things which are necessary in order to accomplish the main end, and what is necessary must be determined in many cases by reference to the particular facts. ’ Mechem, Ag. sec. 816. In the case at bar, Fairman, the attorney for the legatees, alone was authorized to receive from the executors the amount coming to the distributees. It was also his duty to take only money in payment of the claims. * * * Fairman was authorized to collect this money, and for that purpose to execute these indorsements upon the checks. His clients were scattered, some of them in distant states. * *' * The checks were not payment to him of that amount. They were but a convenient mode or means of remitting to him the money collected. * * * We do not mean to say that the implied authority of an attorney authorizes an indorsement of his client’s name in such way as to bind the client as an indorser, but that, under the circumstances of this case, Fairman was authorized to collect the money of his clients, and for that purpose to make these indorsements as a proper means to that end. The indorsement was availing to protect the drawer of the check, and that is sufficient.”

We think that the decision and the language of the opinion are particularly applicable to the facts of the present case. The judgment of the County Court is affirmed.

Affirmed.


author: Mr. Justice Barnes

text:
    Karl Puswaskis, Defendant in Error, v. Conrad Seipp Brewing Company and Math Kersting, Plaintiffs in Error.
    Gen. No. 19,492.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the - Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed March 9, 1916.
    Statement of the Case.
    ' Action by Karl Puswaskis, plaintiff, against Conrad Seipp Brewing Company and Math Kersting, defendants, to recover $750, alleged to be money had and received by defendants without consideration. From a verdict and judgment for $641.67 in favor of defendant, the plaintiff brings error.
    It appeared that Kersting executed a written lease of certain premises to Puswaskis to be used for saloon purposes, dated January 30, 1911, for a period from February 20, 1911 to April 30, 1916, at a rental of $100 per month.. Attached thereto, evidently as a part thereof, was a separate paper by which the lessee covenanted with the lessor to use in and about said premises only such draught beer as the lessor might designate, the price to be $5 per barrel. On February 8, 1911, Kersting (who was manager of said brewing company), on the company’s writing paper containing its letter head, wrote Puswaskis, and referring to the lease “between us” designated said company’s beer as the beer to be used on the premises.
    On March 1, 1911, he again wrote Puswaskis a letter which he signed as manager, in which he referred to said provision fixing the price of the beer and to a verbal understanding that it might vary with the revenue tax, and asked for confirmation of such understanding.
    An arrangement for the lease was made on January 23, 1911. A memorandum of it, signed by Kersting and given to Puswaskis, is to the effect that the latter was to pay the former a bonus of $500 for said lease, and that he then made a part payment of $150 thereon, and would pay the balance in two instalments, which were subsequently paid to Kersting. That the said sum was to be paid as a “bonus,” as stated therein, was corroborated by Kersting and another witness’ account of the verbal conversation at the time said ■receipt or memorandum was given, against which interpretation there was Puswaskis’ evidence that the money was to pay for “bonds.”
    Mechem & Bangs, for plaintiffs in error.
    Frank P. McGinn and Robert D. Melick, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Assumpsit, § 89 —when evidence insufficient to establish joint liability of principal and agent. In an action against a brewing company and its manager for money had and received by defendants without consideration, weight of evidence held to show that the money was paid to the brewing comjjany’s manager in accordance with a personal contract and to not establish joint liability of the brewing company and the manager.


text:
    William A. Navigato for use of Virgilio Cimino, Defendant in Error, v. Allessandro Melone and Angela Melone, Plaintiffs in Error.
    Gen. No. 20,807.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Garnishment proceedings by William A. Navigato, for the use of Virgilio Cimino, plaintiff, against Allessandro Melone and Angela Melone, defendants, based on indebtedness of five hundred dollars on the part of Navigato to Cimino, the usee, and an indebtedness of two hundred and fifty dollars for an unpaid real estate commission due from the Melones to Navigato. From a judgment for plaintiff, defendants bring error. '
    William A. Jennings, for plaintiffs in error.
    Brown & Navigato, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Assignments, § 31*—when assignee of part of partnership debt may sue alone as plaintiff in garnishment action. Where a commission for the sale of real estate is due a partnership consisting of two persons, and one partner assign's his interest to the other the latter has the right to sue thereon in his own name in a garnishment action under the Practice Act, sec. 18 (J. & A. U 8555), without joining his partner.


text:
    F. M. Woodsmall Construction Company, Defendant in Error, v. Dr. George F. Hall, Plaintiff in Error.
    Gen. No. 21,085.
    1. Municipal Court of Chicago, § 14

      —when jury may not consider inconsistency of grounds of defense in affidavits of merits or defense. Inconsistency of grounds of defense contained in affidavits of merits or defense filed in Municipal Court of Chicago is not a matter for the jury’s consideration.
    2. Municipal Court of Chicago, § 14*—when affidavits of merits or defense not admissible in evidence. Affidavits of merits or defense filed in action in Chicago Municipal Court, two of which had been stricken, were not admissible in evidence before the jury in such action, to impeach the defendant who had filed them, on the theory that they were inconsistent and made in bad faith, and that defendant’s testimony, which conflicted with plaintiff’s, was on that account less reliable, nor were they admissible for any other purpose, but were calculated to be prejudicial to defendant in the weight the jury gave to material evidence.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed March 9, 1916.
    William Gillespie, for plaintiff in error.
    Mather & Hutson, for defendant in error; William A. Sheehan, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This action was brought to recover the balance of the contract price for building a cement fence. The jury rendered a verdict in favor of plaintiff, the Construction Company, for $802.50, and judgment was entered thereon.

Defendant Hall claimed and sought to show that the work was not done in a careful, workmanlike manner, and that there was faulty construction in laying a foundation of insufficient depth so that the frost cracked the cement.

There was direct conflict of evidence between plaintiff’s president and defendant as to conversations had between them bearing on their arrangement and the liability of the cement to crack. . The former said he told defendant that cement laid on a two-foot foundation, such as the plans used called for, was liable to crack, and defendant denied that he was so informed. Their evidence was somewhat conflicting on other points so that the jury’s verdict may have been determined on the question of their respective credibility. , On the points of difference the evidence was so close as to render it important that improper and prejudicial evidence calculated to affect such question should not have been received or should have been excluded. But evidence of that sort was admitted.

Defendant filed three affidavits of merits or defense. The first two had been stricken. The three were offered and received in evidence, but not on the theory that any one of them set up admissions against defendant’s interests. In fact none did. Nor were they used, nor admissible in this case for use, in the usual way of impeachment. It is difficult to see, however, that they could have been considered for any other purpose. They were admitted on the theory of their “inconsistency,” as stated by the court in the hearing of the jury, and while the record shows the court said it would instruct the jury thereon and no instructions are saved in the record, still as they were inadmissible, the instructions, whatever they were, could not cure the error of permitting them to go to the jury for any purpose. Inconsistency of pleadings is not a matter for the jury’s consideration. Different grounds of defense were stated in the different affidavits. What influence they had on the jury cannot be determined. But the jury may have reasoned that the defenses in the different affidavits, were, as the court intimated, inconsistent, and therefore made in bad faith, and hence that defendant’s testimony was less reliable on that account. We can conceive of no other purpose of their introduction than to impeach defendant’s credibility, or of any other significance a jury would attach to them. As they were admissible for no purpose and calculated to be prejudicial to defendant in the weight the jury gave to material evidence, there should be a new trial.

Reversed and remanded.


text:
    Lewis Rinaker and Gustav E. Beerly, Defendants in Error, v. American Bond & Mortgage Company, Plaintiff in Error.
    Gen. No. 21,138.
    (Not to Tbe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Intervening petition to enforce lien for attorney’s fees of Lewis Rinaker and Gustav E. Beerly, attorneys at law, against the American Bond & Mortgage Company, which was defendant in a suit brought by Tiny Johnson, plaintiff. From an order directing the defendant to pay petitioners $150, defendant brings error.
    Petitioners were employed by one Tiny Johnson to prosecute a claim against the American Bond & Mortgage Company. One of them acting for his firm did considerable work to effect a settlement of the claim before bringing suit therefor. A suit was finally commenced in which his said firm and another firm (the attorneys for the American Bond & Mortgage Company in this appeal) appeared as attorneys of record. Most, if not all of the work connected with the litigation thereafter was conducted by the latter firm, resulting in a judgment against the American Bond & Mortgage Company for $2,650.
    After commencement of the suit and prior to the rendition of the judgment, the petitioners served notice in due form on such judgment debtor of their claim to an attorney’s lien under the statute for the services they had performed and were to perform in the matter, and filed an intervening petition in said cause to enforce said lien. On the hearing thereof, the American Bond & Mortgage Company was ordered adjudged and directed to pay petitioners $150.
    There was evidence that the services rendered by petitioners were worth that sum. It was contended that the contract between petitioners and said Johnson called for an entire service, including prosecution of the suit, and that they abandoned the contract and thereby lost all right to compensation. This arose over the fact that the other legal firm was called in to aid defendants in error about the time the suit was commenced and conducted the trial without assistance from petitioners. Apparently the other firm was expected to conduct the trial, but it did not appear that petitioners did not perform all the services their client expected of them.
    Wilson & May, for plaintiff in error.

      Abstract of the Decision.
    Attorney and client, § 138

      —when attorney entitled to lien for services. Where attorneys at law filing an intervening petition to enforce lien for attorneys’ fees were employed to prosecute a claim and did considerable work to effect a settlement of same, after which a suit, in which the petition was filed, was brought by other attorneys on such claim, and it did not appear that petitioners did not perform all the services their client, expected of them, held that such services on account of such claim and cause of action were sufficient to give a lien, within the purview of the statute, in such action.
    Gustav E. Beerly, pro se and Roy S. Gaskill, for defendants in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Jacob Horvitz, Defendant in Error, v. Nathan Shanfeld, Plaintiff in Error.
    Gen. No. 21,174.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Action of forcible detainer by Jacob Horvitz, plaintiff, against Nathan Shanfeld. The court directed a verdict for plaintiff and gave judgment for possession of the premises, from which defendant brings error.
    The lease under which Nathan Shanfeld, the defendant, held the premises was in writing and under seal. ’ The rent was payable monthly in advance and had been paid from time of entry until November, 1914. Defendant refusing to pay the rent for that month on demand therefor, a five days’ notice was duly served, and on November 11th, a suit for forcible detainer was begun in the Municipal Court of Chicago, and on account of failure to pay the December rent on demand therefor, made December 14th, the suit at bar, without further notice, was begun December 16, 1914. After institution of and before judgment in the suit at bar, plaintiff took a nonsuit in the former. Defendant asked for dismissal of the latter suit because the former was pending when the suit at bar was begun.
    At the trial the grounds of defense were (1) that defendant had not been given complete possession of the premises leased, he claiming that a room of the basement had been withheld from him and contained goods of the plaintiff which plaintiff on request had failed to remove; and (2) that when he paid the October rent plaintiff made a verbal agreement that he could stay and pay no more rent until plaintiff gave him possession of the basement. Defendant admitted that before the suit at bar was begun, plaintiff put a lock on the basement and left the key with him, which he refused to take because plaintiff had not removed said goods therefrom. There was also uncontradicted evidence that defendant refused to permit plaintiff’s agent, sent there for that purpose, to remove the goods from such room.
    William L. Martin, for plaintiff in error.
    Bernstein, Grossman & Zolla, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Abatement and revival, § 48 —when motion to dismiss because of pendency of prior action properly denied. A motion in a suit of forcible detainer to dismiss same because of the pendency of a prior suit is properly denied, where the plaintiff after the institution of the second suit but before judgment took a nonsuit in the former suit.

2. Forcible entry and detainer, § 22*'—what constitutes sufficient possession. Where defendant in action of forcible detainer contended that he had not been given complete possession of the premises leased because a room in the basement was withheld from him and contained goods of the plaintiff which plaintiff on request bad failed to remove, held in view of delivery of key to such room by plaintiff to defendant and the refusal of defendant afterwards to permit plaintiff’s agent to remove such goods, that the defense of want of possession was without foundation.

3. Landlord and tenant, § 55*—when oral agreement for nonpayment of rent unenforceable. In an action of forcible detainer of leased premises where defendant contended that plaintiff verbally agreed with him that he could stay and pay no more rent until plaintiff gave him possession of the basement, a room in which defendant contended, contrary to the evidence, was withheld from him, such agreement was nudum, pactum, without consideration, and so long as the contract contained in the lease under seal remained executory, the plaintiff had the right to repudiate the parol agreement and claim the full amount of rent.

4. Trial, § 191*—when verdict properly directed. There being no evidence that warrants a finding of the issues of fact for the defendant, no error in the rulings of the court and no complaint concerning instructions, a verdict for plaintiff is properly directed.

5. Forcible entry and detainer, § 31*—when notice to quit not necessary as prerequisite to maintenance of action. In an action of forcible detainer where the terms of the lease expressly waive notice and demand, a contention that the lease sued on was terminated by bringing a prior action of forcible detainer which was dismissed, and that the action at bar would not lie until after the statutory notice to quit, is not tenable, as no notice or demand is necessary.

6. New trial, § 81*—when oral motion for new trial may be overruled without allowing additional time for presentation. Overruling an oral motion for new trial at the close of the case without allowing additional time for its presentation deprived defendant of no right and was not an abuse of discretion.


text:
    Augusta Albrecht et al., Plaintiffs in Error, v. Joseph Pinger et al., Defendants in Error.
    Gen. No. 21,202.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and ebbob, § 1186

      —when question of applicability of instructions uAll not be reviewed. Under a record which consists of mere abstract questions of law and which contains neither evidence nor a certificate of the trial judge as to what it tended to prove, nor anything to determine the applicability of instructions complained of, the Appellate Court will not be justified in reviewing the case unless they can determine, that the instructions are vicious under any and all circumstances.
    Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Action under Dramshop Act (Hurd’s Rev. St., eh. 43, J. & A. 4600 et seq.), brought by Augusta Albrecht and others, plaintiffs, against Joseph Pinger, and others, defendants. From a judgment against them, plaintiffs bring error.
    I. W. Foltz and William C. Dunn, for plaintiffs in error.
    Day & Guenther, W. H. Nelms and F. P. Drennan, for defendants in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Henry E. Strassheim and Adolph S. Boericke, trading as Henry E. Strassheim & Company, Defendants in Error, v. John C. Reuttinger, Plaintiff in Error.
    Gen. No. 21,240.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and judgment here.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Action by Henry E. Strassheim and Adolph S. Boericke, trading as Henry E. Strassheim & Company, plaintiffs, against John C. Reuttinger, defendant, for a commission of $143.75 on account of furnishing a prospective purchaser with whom defendant entered into a written contract to sell a certain lot. From a judgment for plaintiffs, defendant brings error.
    Against defendant’s denial of an agreement to pay a commission was the testimony of plaintiff Strassheim and his clerk or agent, who began the negotiations, and the recognition in said written contract of the vendor’s obligation to pay his broker a commission. Defendant fixed his price at $3,750 and agreed to pay a commission of two and one-half per cent, thereon ($93.75). Plaintiffs drew the contract and in it designated the purchase price as $3,800 with a mutual understanding between plaintiffs and defendant that the excess of $50 was to go to plaintiffs, though the purchaser supposed that $3,800 was the actual purchase price. The contract provided for a deposit of $200 with plaintiffs as earnest money to be retained by defendant as liquidated damages in case the purchaser failed to perform, and if retained was to be applied “first, to the payment of any expenses incurred for the vendor by his agent in said matter, and second to the payment of vendor’s broker of a commission of $143.75 for services in procuring this contract, rendering the overplus to the vendor.” Because of the failure of defendant to furnish an abstract in accordance with the terms of the contract, the purchaser demanded of and received from plaintiffs the return of said earnest money.
    Abstract of the Decision.
    1. Bbokebs, § 88

      —when evidence sufficient to sustain finding that vendor agreed to pay brokers a commission. In an action for commission due plaintiffs, as real estate brokers, where it appeared that against defendant’s denial of agreement to pay such commission there was testimony of plaintiff and his clerk or agent who began the negotiations, and a recognition in the contract of defendant to sell, on which the action was based, that the vendor was obliged to pay such broker a commission, evidence held sufficient to sustain a finding that defendant agreed to pay plaintiffs a commission.
    2. Brokers, § 61*—when liability of vendor not affected by deception of purchaser by brokers. In an action by a real estate broker for his commission against the vendor of property where there was an agreement between the broker and vendor that, unknown to the purchaser, a certain sum out of the supposed purchase price was to go to such broker, the apparent deception of the purchaser does not affect the vendor’s liability.
    3. Brokers, § 66*-—when only entitled to additional commission. Where a real estate broker is entitled to a certain sum in addition to his stipulated commission only in case the contract of sale is consummated and the entire purchase price paid, or in the event that a certain sum as earnest money is retained as liquidated damages under the terms of such contract of sale, and neither of such events happens, he is entitled to recover only such stipulated commission.
    Everett & McGonigle, for plaintiff in error; John C. Everett, of counsel.
    William G. Wise, for defendants in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Alfred S. Greiner, Appellee, v. Pennsylvania Company, Appellant.
    Gen. No. 21,278.
    (Not to "be reported in full.)
    Appeal to the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed with finding of fact.
    Opinion filed March 9, 1916.
    Rehearing denied March 21, 1916.
    Statement of the Case.
    Action by Alfred S. Greiner, plaintiff, against the Pennsylvania Company, defendant, on a claim for damages to plaintiff’s automobile resulting from a collision with defendant’s train at a public crossing in Indiana. From a judgment for $900 in favor of plaintiff, defendant appeals.
    Plaintiff charged negligence generally in operating the train, and specifically in disregarding his signal of danger and in maintaining a crossing of inadequate width.
    Plaintiff at night was unable to move his automobile from defendant’s tracks and detaching the tail light therefrom, which gave a dim red light, he ran westward along defendant’s tracks towards the train which approached from the west at an estimated speed of from 50 to 60 miles an hour. The distance he had run when he waved the lamp at the train was disputed. The engineer, who could stop his train within about 1,000 feet, applied his emergency brakes and stopped the train with its rear end at a point estimated at from 50 to 250 feet beyond the crossing where it had struck plaintiff’s automobile.
    About 400 feet west of the crossing was a semaphore showing a white signal for a clear way, and pursuant to the company’s rules the engine crew called the signal “white” to each other when they saw it. About 800 or 900 feet west of the crossing was a whistling post where the whistle was given for the crossing. Both the engineer and fireman testified that they did not see plaintiff until just before he stepped from in front of the train, which plaintiff said was when it was 30 feet away; that they were then about 500 or 600 feet from the crossing. Plaintiff estimated the distance at 1,200 feet, and one of his witnesses judged it was “in the neighborhood of 1,000 feet or a quarter of a mile,” and the other at “about a quarter of a mile” but admitted that he “did not see how anybody could judge the distance at night to an accurate point.”
    Abstract of the Decision.
    1. Automobh.es and garages, § 3

      —when evidence of driver of automobile insufficient to establish distance from automobile to point where train was signaled. In an action for damages for injury caused by defendant’s train to plaintiff’s automobile, where plaintiff alleges that defendant disregarded his stop signal and the burden rested upon him of fixing the distance he had advanced along defendant’s tracks when he gave such stop signal, and his estimate was formed under circumstances of excitement and concern, in the nighttime, with no fixed' objects at definite distances for comparison, and this estimate was contradicted by equally credible evidence given by persons shown to be more familiar with the location and whose daily occupation required them to exercise knowledge' of distances, held that plaintiff’s estimate did not afford a sound basis upon which to base a verdict.
    2. Automobiles and garages, § 3*—when evidence insufficient to establish negligence in failing to stop train so as to prevent collision with automobile. In an action for damages for injury to plaintiff’s automobile caused by defendant’s train at a crossing, where it appeared that the train could be stopped at a distance of about 1,000 feet; that it was dark at time of the accident; that the speed of the train was about a mile a minute; that the railroad signal in the vicinity was set for a clear way; that plaintiff’s lamp with which he endeavored to signal gave dim light which might have been passed unobserved while defendant’s servants were watching for block signals; that distances in question are mere estimates, a slight variation from which' would change the entire ground for a charge of negligence, provided brakes were promptly applied, held that a finding of negligence of defendant was contrary to the weight of the evidence.

      Loesch, Scofield & Loesch, for appellant.
    Frederic R. De Young and Wiley W. Mills, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Barnes Mr. Justice Barnes

text:
    J. R. Newport and Earl L. Cook, trading as J. R. Newport Lumber Company, Appellees, v. John J. McPherson and Ralph T. McPherson, trading as McPherson Brothers, and J. O. Nessen Lumber Company (Garnishee), Appellants.
    Gen. No. 21,296.
    1. Appeal and ebbob, § 1343

      —when it will be presumed that shortest time allowed by statute to file appeal bond was given. Where no time is specified within which to file an appeal bond, it is assumed that the time given was twenty days, the shortest time allowed by the statute.
    2. Appeal and ebbob, § 671*—when basis for order nunc pro tunc allowing filing of appeal bond does not exist. Where on February 16th, twenty-nine days after allowing the appeal, the court on motion of defendant entered an order nunc pro tunc allowing forty days from January 18th in which to file the bond, and the order does not appear to have been made to supply any omission from the record, where the court does not on such later date actually make an order of that character that the clerk omits to enter, there is no basis for an order nunc pro tunc.

    3. Appeal and ebbob, § 723*—when record must show authority to enter order nunc pro tunc allowing filing of appeal bond. Facts supporting authority to enter an order nunc pro tunc, allowing the filing of an appeal hond within forty days, must affirmatively appear of record.
    4. Appeal and ebbob, § 671

      —when trial court no jurisdiction to extend time for filing bond. Where the time for filing an appeal bond expires on a certain date, the court has no jurisdiction thereafter, even within the thirty days it retained control over the judgment, to extend the time for filing the bond by a nunc pro tunc order.
    5. Appeal and ebbob, § 667*—when appeal is not perfected because of defective appeal bond. Even though an appeal bond is filed within the period designated, if it is not approved as shown by the indorsement of the judge until after such period has expired, there is a failure to perfect the appeal.
    6. Appeal and ebbob, § 13*—when right of appeal exists. The statute granting right to appeal must be strictly complied with, and it manifestly contemplates the approval of the bond before it is filed within the period allowed by the court for such filing.
    7. Appeal and ebbob, § 667*—when signature of judge to appeal bond must be affixed. The procedure with regard to the period during which an appeal bond is filed is not analogous to that which justifies the judge’s retention of a bill of exceptions after the period for filing the same before affixing his signature.
    Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Appeal dismissed.
    Opinion filed March 9, 1916.
    Rehearing denied March 29, 1916.
    Adams, Crews, Bobb & Wescott, for appellants.
    Soboroff & Newman, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samp togio and section number.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Motion is made by appellees to dismiss the appeal herein, which was prayed and allowed January 18, 1915, from a judgment of the Municipal Court of Chicago rendered the same day. No time was specified within which to file the appeal bond. In such a case it is assumed that the time given was twenty days, the shortest time allowed by the statute. (Bairstow v. New York Life Ins. Co., 148 Ill. App. 186.)

On February 16th, twenty-nine days after allowing the appeal, the court on appellants’ motion entered an order nunc pro tunc allowing forty days from January 18th, in which to file the bond. The order does not appear to have been made to supply any omission from the record. If the court did not on January 18th actually make an order of that character that the clerk omitted to enter, there was no basis for an order nunc pro tunc (Lindauer v. Pease, 192 Ill. 457), and facts supporting authority to enter such an order must affirmatively appear of record. (People v. Rosenwald, 266 Ill. 548.) As, therefore, the time for filing the bond expired twenty days after January 18th, viz., on February 7th, the court had no jurisdiction thereafter, even within the thirty days it retained control over the judgment (Grubb v. Milan, 249 Ill. 456), to extend the time for filing the bond. This was settled beyond all question in Hill v. City of Chicago, 218 Ill. 178.

But, even if the court had not lost jurisdiction to enter the order of February 16th, and even though the bond was filed February 27th, the last day of the period fixed thereby, still as the bond was not approved (as shown by the indorsement of the judge thereon) until February 28th, forty-one days after January 18th, there was a failure to perfect the appeal, which required the approval as well as the filing of the bond within the time allowed therefor. (Phoenix Ins. Co. v. Hedrick, 69 Ill. App. 184.) The statute granting the right of appeal must be strictly complied with (Hill v. City of Chicago, supra), and it manifestly contemplates what, so far as we have knowledge, has always been the practice, the approval of the bond before it is filed; and the procedure with regard thereto is not as appellants contend analogous to that which justifies the judge’s retention of a bill of exceptions after the period for filing the same before affixing his signature. The appeal will be dismissed.

Appeal dismissed.

Opinion on Application for Rehearing.

Mr. Justice Barnes

Since entering the order dismissing this appeal appellants have filed a corrected transcript of record showing the bond was approved on February 27th instead of February 28th, and have asked for a rehearing. While that part of our opinion as to the approval of the bond has no application to the record as corrected, that part of it relating to the want of power to extend the time for filing the bond was controlling of the question, and finding no occasion for changing our views the petition for a rehearing will be denied.

Rehearing denied.