text:
    City of Chicago, Appellee, v. Harry S. Megartney, Appellant.
    Gen. No. 16,969.
    1. Courts — stare decisis. Where a petition is filed in a condemnation suit (brought by a city for the opening of a street) asking for a judgment against the city for the amount of the unpaid awards on the theory that the power of the city to levy and collect a special assessment has been exhausted, such contention cannot be sustained where at the time action is begun a suit was pending in the Supreme Court which subsequently sustained such special assessment.
    2. Municipal corporations — eminent domain. Where condemnation awards are required by ordinance to be paid by special assessment to the extent of benefits and the remainder by general taxation, this method of payment must be followed, and until it is shown that the city has exhausted its power to assess for benefits, no judgment can be entered against the city in the condemnation proceeding for any such remainder.
    3. Cities and villages — condemnation.' Where condemnation awards are to be paid by special assessments to the extent of benefits and the remanider to Toe paid by general taxation, judgment cannot be entered against the city for such remainder where the special benefits have not been determined.
    4. Municipal corporations — condemnation awards. A judgment cannot be entered against a city for the amounts of condemnation awards to be paid by special assessments although payment was delayed seventeen years through lack of diligence in collecting such special assessments.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Richard W. Clifford, Enoch J. Price and Everett M. Swain, for appellant; Everett M. Swain, of counsel.
    George A. Mason and Edgar R. Hart, for appellee; Edward J. Brundage, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

In July, 1893, the City Council of the city of Chicago passed an ordinance providing for the opening and widening of South Park avenue between Garfield boulevard and Fifty-sixth street by condemning the east thirty-seven feet of three lots owned by appellant and others. One section of the ordinance provides that “said improvement shall be made and the cost thereof paid for by special assessment to be levied upon the property benefited thereby to the amount that the same may be legally assessed therefor, and the remainder of such cost to be paid by general taxation, in accordance with Article 9” of the City and Village Act of 1872. In pursuance of the provisions of that act a petition was filed in the Circuit Court, praying that the just compensation to be awarded to the several owners and parties interested in the property proposed to be taken or damaged for said improvement be ascertained by a jury. Separate trials were had and verdicts rendered finding the aggregate value of the several tracts required to be taken for the improvement to be $19,499.88, and in June and October, 1894, judgments were entered on the verdicts. These judgments, after reciting the several amounts awarded by the jury as just compensation for the parcels of land proposed to be taken, provided “that upon payment to the county treasurer of Cook county, Illinois, of the said several sums of money for the use of the owner or owners of any or each of the said lots,” or upon proof made of payment of the same to such owners, “the city of Chicago shall have the right at any time thereafter to take possession of and damage the property in respect to which such compensation shall have been so paid or deposited.” Later, appellant became the owner, by assignments filed of record, of all of the awards included in the several judgments. Pending these proceedings, by an agreement between the city and land owners, the city was allowed to take possession of the tracts needed for the opening of the street, to lay water pipes therein and to pave the street, upon the understanding that the city would proceed with the pending condemnation and special assessment proceedings, to ascertain the value of the land taken and to collect the amount of benefits accruing therefrom.

In December, 1894, the city filed a supplemental petition under Section 53 of Article 9 of the City and Village Act, praying that a special assessment be levied to raise the amount necessary to pay the awards. Under this petition an assessment was made and returned for the full amount of such awards and costs, apportioned among the lots and parcels of property alleged to be benefited. A large part of tbe whole assessment was levied upon tbe parts of tbe land owner’s lots wbicb remained after taking tbe east thirty-seven feet thereof for tbe street. To this assessment objections were filed and sustained by tbe court. A second assessment proceeding was begun in 1895, wbicb after several trials upon objections filed thereto, was dismissed by tbe city in February, 1897. A third supplemental petition and assessment followed, to wbicb objections were filed by appellant and others. In July, 1898, this third assessment was confirmed as to all property except appellant’s, and tbe amount thus confirmed, $12,033.74, except $1,885, was paid from time to time, as collected, to tbe owners of tbe land taken. Tbe item of $1,885 was contested by tbe owner of tbe land against wbicb it was assessed and such contest was not finally determined until tbe Supreme Court in 1903 sustained tbe assessment as to tbe property there involved. Bass v. People, 203 Ill. 206. Notwithstanding this favorable decision, tbe city made no attempt to enforce tbe collection of this item of $1,885 for nearly seven years thereafter.

As to appellant’s objections to tbe third assessment, a trial was bad in 1898 resulting in a verdict which reduced tbe assessment against bis property about $2,300. Tbe city was granted a new trial, and nothing further seems to have been done until June, 1901, when tbe court sustained appellant’s objections on tbe ground that tbe question of benefits to tbe remainder of appellant’s lots bad been adjudicated in tbe original condemnation proceedings. Three years later, in 1904, tbe city sued out a writ of error from this judgment, and the Supreme Court, in 1905, reversed and remanded it. City of Chicago v. Mecartney, 216 Ill. 377. For some unexplained reason, no remanding order was filed in tbe Circuit Court within tbe statutory two years.

Meantime, in November, 1895 — thirteen months after the condemnation judgments were entered — appellant and two others of the land owners had brought suits in assumpsit against the city to recover the amounts of their awards. In these suits, they alleged (in amended declarations filed in October, 1897) that the city had begun supplemental proceedings to collect the amounts of the awards by special' assessment, but failed to prosecute the same with reasonable diligence and had abandoned such proceedings, whereby it was claimed a general liability in assumpsit had accrued. The city demurred to the declarations as amended. The demurrers were overruled and the city elected to stand by its demurrers; judgments were entered against it aggregating nearly $23,000 for the amounts awarded in the condemnation suit with interest. From these judgments the city appealed to the Appellate Court, which reversed the decision of the lower court and remanded the cases with directions to sustain the demurrers. (Mecartney v. City of Chicago, 150 Ill. App. 275; Thomasson v. Same, 150 Ill. App. 281; Phelps v. Same, 150 Ill. App. 281.) The Appellate Court held that the special assessment method of payment prescribed by the ordinance was exclusive and (in effect) that so long as the ordinance remained in force no suit in assumpsit would lie against the city to recover the awards until the city had collected the money by special assessment. In pursuance of the mandate of the Appellate Court, the lower court sustained the demurrers, and the plaintiffs in said suits electing to stand upon the declarations filed, the suits were dismissed at plaintiff’s costs, from which judgments the plaintiffs therein appealed to the Appellate Court, where the suits are now pending and undisposed of, in another branch of this court.

In November, 1909, appellant, as owner of all the awards made in 1894, filed in the condemnation proceeding a petition praying for “an absolute and unconditional judgment” against the city for the amount of such awards with accrued interest. The petition was amended in January, 1910, and, as amended, it set forth, in detail the foregoing facts regarding the entry of the condemnation judgments, the taking of possession in 1893, the subsequent unsuccessful attempts to assess a large part of the amount thereof upon the remainder of the lots of appellant after taking the part condemned, the great length of time consumed in such efforts and the final apparent abandonment of all effort to collect anything; it alleged that the city’s power to collect had been exhausted; that appellant’s rights had been grossly violated; that to deny him judgment in the premises after such a lapse of time and such proceedings, or to require him to wait longer for his money, would amount to taking his property without just compensation and without due process of law and would constitute “an impairment of the contract rights” of appellant, contrary to the provisions of the constitution of this state and of the United States. The city interposed a general demurrer, which was overruled, and then filed an answer admitting and setting forth in greater detail practically all the facts stated in the petition, but denying that the special assessment proceedings had been prosecuted in a negligent manner, alleging that the same “were brought to trial as speedily as possible and practicable,” and denying that the city had either abandoned its efforts to collect, or that its power, to collect had been exhausted. The answer also set up the proceedings in the three suits in assumpsit, and asserted that the decision of the Appellate Court therein is res adjudicata of all questions here involved. By a supplemental answer filed in July, 1910, the city alleged the further fact that between January and July, 1910, a fourth supplemental proceeding for a special assessment had been prosecuted in which, after a jury trial, a judgment of confirmation was entered as against appellant’s remaining property for $7,783.60, from which judgment appellant had perfected an appeal to the Supreme Court. (Since the briefs herein were filed the Supreme Court has affirmed this latest judgment in City of Chicago v. Willoughby, 249 Ill. 249.) The Circuit Court, after hearing evidence of the facts alleged in the petition and answer, denied and dismissed the petition, and from that order the petitioner appeals to this court.

It is first contended that the power of the city to levy and collect a special assessment for the amount necessary to pay the unpaid portion of the awards “has long since been exhausted.” At the time the briefs in this case were written, the Willoughby case, supra, in which that question was directly involved, was pending in the Supreme Court. Since then, it has been decided. The Supreme Court there sustained a special assessment against appellant’s remaining property, though levied more than sixteen years after the condemnation judgment was rendered, and after the filing of appellant’s petition in this case. That case must therefore be held to be decisive against this contention of appellant.

It is next urged that even if the power of the city to assess benefited property has not been exhausted, the act of the city in taking possession in 1893 of appellant’s land and using the same for street purposes, amounted to an appropriation of the land by the city, vested in appellant the immediate right to the compensation awarded, and entitled him to an absolute judgment against the city in the condemnation proceeding for the amount of the awards. If the condemning corporation were a railroad company or other like corporation, having power to condemn and using the provisions of the Eminent Domain Act for that purpose, this might be conceded, upon the authority of St. Louis & S. E. Ry. Co. v. Teters, 68 Ill. 144, for in such case, upon the fact being made to appear that the petitioner had taken possession of the land condemned, nothing would remain to be done except the payment of the money. But as to cities and villages organized under the general city and village act, the rule is otherwise. In the making of local improvements, they must proceed as directed by the latter act. Under that act as it existed prior to 1897, the first step towards the making of a local improvement was the passage of an ordinance prescribing “whether the same shall be made by special assessment or by special taxation of contiguous property, or general taxation, or both.” (Hurd’s Stats. of 1895, p. 278, Art. IX, Sec. 2.) It has been repeatedly held that it is within the legislative authority of a city or village to thus fix the mode of payment in advance by ordinance, and that while such ordinance remains in force, it excludes every other mode of payment. Hyde Park v. Corwith, 122 Ill. 441; People v. Hyde Park, 117 Ill. 462; Chicago v. Hayward, 176 Ill. 130; Chicago v. Shepard, 8 Ill. App. 602; Meeker v. Chicago, 96 Ill. App. 23; Mecartney v. Chicago, 150 Ill. App. 275. In C. & N. W. Ry. Co. v. Chicago, 148 Ill. 141, it was held that since 1872 a city or village has no authority to acquire property necessary for a local public improvement, such as the opening of a street, by means of private contracts with the owners, but must pursue the methods prescribed by Article 9 of the City and Village Act, i. e., by condemnation under an ordinance providing that payment shall be made by general taxation or by special assessment, or both. The same doctrine is repeated in Chicago v. Shepard, supra; in Snydacker v. West Hammond, 225 Ill. 154, and in Litz v. West Hammond, 230 Ill. 310. It has also been held that after an assessment for a local improvement has been levied and the improvement completed, a city has no power to change the prescribed method of payment. Chicago v. Brede, 218 Ill. 528.

Appellant’s counsel seek to distinguish the “Hyde Park cases” mentioned above and the Hayward case, supra, from the present case by calling our attention to the fact that in some, if not all, of those cases, the ordinance required the whole cost of the improvement to he paid by special assessment, while here the ordinance provides that the cost “shall be paid for by special assessment to be levied upon the property benefited thereby to the extent that the same may be legally assessed therefor, and the remainder of such cost to be paid by general taxation.” It is urged that this provision pledges the general funds of the city, as well as the special fund arising from the collection of a special assessment, for the payment of the awards. As above shown, the city had the right, under Section 2 of Article 9 of the City and Village Act of 1872, to prescribe in advance whether the proposed improvement should be paid for by special assessment, or by general taxation, or both. If 'its ordinance had prescribed that the whole cost should be paid by general taxation, doubtless the Circuit Court would have had the power to enter an absolute judgment for the amount of the awards, on proof that the city had taken possession, because by the terms of the ordinance in such case a general liability would have been assumed by the city, and nothing would remain to be done except to pay the money. But where part only of the cost is required by the ordinance to be paid by general taxation, and such part is that part only which remains to be paid after all property benefited by the improvement shall have been assessed all that it is benefited, the power of the court to enter a judgment upon the general liability of the city to pay the part thus described, obviously and necessarily depends upon the question whether there is, or will be, any such part, or “remainder,” to be paid. There can be no “remainder” to be paid by general taxation, until it shall be made to appear that all property benefited has been specially assessed “to the extent that the same may be legally assessed therefor.” Until that fact is shown, it cannot be known, or ascertained,- whether any amount or part of the condemnation awards, or if any, what amount, will have to be paid by general taxation. So long as the amount of this contingent general liability of the city remains thus unknown and unascertainable, there is no basis in fact upon which to found a judgment against the city. There was no such showing in the petition filed by appellant nor upon the hearing on the petition, as would warrant the court in finding that all property benefited had been assessed all that it is benefited. Hence the distinction pointed out between the ordinances under consideration in the Hyde Park cases and the ordinance in this case can be of no avail to appellant on the facts in this record.

It is urged that Chicago v. Smythe, 33 Ill. App. 28, is an authority to the contrary. We do not so read that case. It appears from the opinion there filed, that the only defense made by the City to a common-law action to recover the value of land taken for street purposes was that “the city offered to. prove that it had been unable to collect the special assessment levied to pay for the improvements,” and as to this offer, the court said: “Here such part of the cost of the improvement as should not be levied on property benefited is to be paid by general taxation. If, therefore, the City has not succeeded in finding property benefited, or has failed for any reason to collect assessments made on property being benefited, the deficiency is to be made up from the general fund.” From this language, it is apparent that the court proceeded upon the theory that there was, in fact, a “deficiency,” which is .precisely the contingency contemplated by the terms of the ordinance. There can be no such “deficiency” to be paid by general taxation until the power of the City to assess for benefits has been exhausted. Whenever that fact shall be made to appear, it will necessarily follow that the “deficiency,” or “remainder of the cost,” will have to be paid by the city out of its general funds. Newman v. Chicago, 153 Ill. 469; Goodwillie v. Lake View, 137 Ill. 51.

It is next urged that the decisions of the Appellate Court, in Mecartney v. Chicago, 150 Ill. App. 275, Thomasson v. Chicago, 150 Ill. App. 281, and Phelps v. Chicago, 150 Ill. App. 281, are in conflict with “a long-line of Illinois decisions” holding (it is said) “that the liability to pay became absolute upon taking possession by the condemnor;” that “the rights of appellant and his assignors had become fixed” under such prior decisions, and therefore the ruling in the three cases mentioned “infringe the constitutional rights of appellant,” under the doctrine announced by the Supreme Court of the United States in the “Elevated road case” of Muhlker v. N. Y. & H. R. R. Co., 197 U. S. 544.

This contention was merely stated without argument in the briefs filed. After the oral arguments were heard, appellant’s counsel filed a motion for leave to file “additional suggestions,” consisting of an argument covering twenty-nine printed pages, and a decision on this motion was reserved by the court. Ordinarily such palpable transgression of the rules of this court will not be permitted. As, however, we have reached the conclusion that the order of the court below must be affirmed, and no harm, therefore, will be done to appellee by granting the motion, the motion will be allowed.

In the three cases above mentioned (150 Ill. App. 275-281) the Appellate Court held that no count of the declarations in assumpsit there filed stated a good cause of action, for the reasons given in the Hyde Park cases, supra. This being true, if there is any conflict such as is claimed, the conflict has existed ever since the Hyde Park cases were decided by the Supreme Court; and if there is any conflict in the decisions of that court, as between the Hyde Park cases and the earlier cases cited by appellant’s counsel, this court would nevertheless be bound to accept and follow the rule laid down by the Supreme Court in the later cases. Inasmuch, also, as the last of the Hyde Parle cases was decided in 1887, and the rights of appellant and his assignors did not accrue, under any theory, until 1893, we are at a loss to perceive how any constitutional rights of appellant could possibly have been infringed by any supposed conflict in such decisions. We cannot, however, concede that any such conflict exists. The distinction between railroad condemnation cases and those of cities and villages, has already been shown. It does not appear from the opinions in the earlier cases cited in which a city or a village was the condemning party, that any question was raised, or could have been raised under the ordinances involved in those cases, or the statutes then in force, as to the mode provided for the payment of the awards. In some, at least, of such cases, the general liability of the City was predicated upon facts different from the facts recited in the opinions in the Hyde Park cases. For example, in the Wheeler cases (Wheeler v. Chicago, 24 Ill. 105, and Chicago v. Wheeler, 25 Ill. 478) the ruling of the court that “implied assumpsit” would lie to recover the amount awarded in a condemnation suit, seems to have been based upon the fact, alleged and proved, that the City had failed to collect a special assessment levied to pay the award, during the two years in which, under the statute then in force, such special assessment was a lien on the property assessed. In Clayburgh v. Chicago, 25 Ill. 535, upon similar facts, the court held .that an action on the case could be maintained for “the willful refusal of the city authorities to discharge their duty, ’ ’ or that the party injured might elect in such case to waive the tort and sue in assumpsit■ for the value of the land taken. No such wilful refusal, or wrongful failure, on the part of the City authorities, to perform a statutory duty, was alleged or shown in the Hyde Park cases.

In Chicago v. Barbian, 80 Ill. 482, a case brought under the City and Village Act, the City repealed the ordinance for the proposed improvement and dismissed the condemnation proceedings after an award had been made to a land owner. No part of the owner’s property was actually taken or damaged, yet he sought by mandamus, to compel the City to pay the damages awarded. The court sustained a demurrer to the petition, holding that so long as his land was not taken or damaged, the owner acquired no right to compensation. In one part of the opinion, the court said: “Of course, if by the owner’s consent, either expressed or implied, the property is taken or damaged before compensation is made, the owner has a vested right in the compensation.” This sentence — a pure dictum — was quoted later in Chicago v. Shepard, 8 Ill. App. 602, 608; but on the next page of the same opinion the court makes and applies to the facts of that case the distinction above stated between a railroad company and a municipality, and holds that where a city ordinance provides that an improvement be made by special assessment, that method of payment is exclusive. The learned Justice who wrote the opinion in the Shepard case, supra, afterwards, in Corwith v. Hyde Park, 14 Ill. App. 635, modified his former opinion, and held that the mode prescribed by ordinance was not exclusive, because it was not a mode available to both parties; but this modification (adhered to in Hyde Park v. Corwith, 20 Ill. App. 666) was overruled and his original view confirmed by the Supreme Court on appeal in Hyde Park v. Corwith, 122 Ill. 441.

It is contended by appellee’s counsel that in no event has the Circuit Court the power to enter, in the condemnation proceeding, such a judgment as prayed for in appellant’s petition. We are inclined to agree with this contention. The only precedent cited for such procedure is the Teters case, supra, but that case, as we have already said, was brought by a railroad company under the Eminent Domain Act, while this h« under the City and Village Act. The statutes, and the rights and duties of the petitioner under them, are essentially different. The final order for possession, after payment of the awards, is substantially the same, but in one case nothing remains to be done after the entry of the judgment fixing the awards but to pay the money and take possession, which may be done immediately; while in the other, a special assessment must be first levied and collected before the City is authorized to make payment, even though possession be given to the City by the property owner.

Doubtless the City in such cases owes to the property owner the duty of prosecuting its special assessment proceedings with reasonable diligence. That this duty has been neglected in this case is abundantly evident. The facts presented show an extraordinary absence of anything resembling diligence. The mere fact that appellant successfully contested the first two assessments and caused their dismissal, or that he objected unsuccessfully to the last two, is no excuse whatever for such unusual and unnecessary delays as are shown by this record. The facts that a supplemental petition for an assessment was filed in January, 1910, that the assessment made thereunder was confirmed over objections and after a jury trial in June, 1910, and that such confirmation was finally affirmed in the Supreme Court in October, 1910 — thus beginning and completing a whole assessment proceeding within one year’s time — are potent evidence of what might and should have been accomplished by reasonable effort sixteen years ago. In Winkelman v. Chicago, 213 Ill. 360, it was held that when a municipal corporation institutes a proceeding to condemn land, it is its duty to prosecute the suit with diligence, and to decide within a reasonable time after the conditional judgment is entered whether it will pay the damages awarded or abandon the proceeding; that if it wrongfully delays the trial, and omits to make such election within a reasonable time, and then elects to discontinue, it is liable to the land owner for damages. The court there said that the right to recover in such cases is based, not upon the mere fact of delay, but upon the theory that the delay has been wrongful and has occasioned damage to the land owner.

But during all the time the proceedings in this case have been pending, there was a statute in force (Hurd’s Stats. of 1895, ch. 24, sec. 53, p. 285) providing in substance, that where such a suit is brought, the City shall take and pay for the land sought to be condemned “within two years of the entry of judgment;” that after such two years, the court may, on motion, “enquire in a summary manner” whether the land has been taken and paid for; that if the court finds the land has been taken and not paid for, it shall enter an order requiring the City to pay the amount , awarded as the value of such land with interest, by a short day, and in default of such payment within the time limited, to dismiss the proceedings, issue a writ of possession in favor of the owner, and enter a judgment against the City “for interest from the day of such taking;” and that “every such cause shall be considered as pending in the court in which the same has been or shall be commenced until all the lands sought to be taken are paid for, or until the proceedings are dismissed where the lands have not been taken.” In Chicago v. Hayward, supra, the court said of this provision of the City and Village Act (p. 136): “By this statute, the cause is considered as pending for the purpose of giving an aggrieved party complete relief, and it provides a summary remedy for cases where cities have taken possession of land and have not paid therefor.” This section of Article 9 of the City and Village Act was not superseded, as to pending cases, by the Local Improvement Act of 1897. South Chicago City Ry. Co. v. Chicago, 196 Ill. 490. That the condemnation case is still pending was, in effect, admitted by appellant when he filed his petition in this case.. If, therefore, appellant was injured by the remarkable delay of the City, he had his remedy by motion in the Circuit Court for an alternative judgment under the provisions of the above mentioned section of the City and Village Act; and on familiar principles, the Circuit Court was not authorized to enter any other or different judgment in the condemnation proceeding after the lapse of the two years. We cannot agree with the argument of appellant’s counsel to the effect that said section does not cover cases where possession has been taken by consent. That section makes no such distinction. By its express terms it applies to all cases in which, upon motion and a summary hearing, the court shall find “that such city or village has taken possession of the land and had not paid therefor.” Chicago v. Hayward, supra. Whether appellant might also have a concurrent remedy by an action on the case for damages caused by the wrongful delay, as in the case of Winkelman v. Chicago, supra, is not before us for decision.

For the reasons indicated, the order or judgment of the Circuit Court will be affirmed.

Order affirmed.'


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Patrick H. O’Donnell, Administrator, Appellee, v. The Riter-Conley Manufacturing Company and The Columbia Malting Company, Appellants.
    Gen. No. 16,990.
    1. Building begubations — Chicago ordinance. The Act of 1907, providing for the protection and safety of persons constructing buildings, does not repeal section 204 of the Building Ordinance of the City of Chicago, imposing duties on owners and contractors of buildings in furtherance of the protection of employees.
    2. Abatement — statutory proceedings. Actions for personal injuries based upon an ordinance or act and pending at the date of its repeal are not ended thereby.

      3. Pleading — aider by verdict. A declaration in an action for death which does not directly set up facts showing a duty owed to plaintiff’s intestate, hut which alleges that defendant was engaged in the erection of a building and failed to comply with a duty imposed by an ordinance relative to laying floors, and that the plaintiff’s intestate while in the necessary performance of his duty and while exercising due care and diligence for his own safety was thrown from the fifth floor of such building, where the floors were not in compliance with the ordinance, and was killed, is cured after verdict.
    4. Pleading — aider by verdict. Where a declaration omits a matter necessary to be proved but contains terms sufficiently general which by fair and reasonble intendment include such matter, and without proof of which the jury could not have given the verdict, such defect is cured after verdict.
    5. Death — habits of deceased. In a suit to recover for the death of a person, caused by a fall from a building under construction, it is not error to receive evidence that the deceased was a careful man where no one saw him fall or knew the cause thereof.
    6. Appeals and errors — saving questions. The objection that an ordinance was improperly admitted in evidence, because the certificate attached thereto did not show that it was published in a newspaper as required by statute, cannot be raised for the first time in the Appellate Court.
    7. Master and servant — protecting floors. Section 204 of the Building Ordinance of the City of Chicago imposes the duty, to lay protecting floors, upon both the owner and the contractor.
    8. Master and servant — evidence. A verdict based on a finding that plaintiff’s intestate was not guilty of contributory negligence and that defendant’s failure to put down a floor as required by an ordinance was the proximate cause of the accident, is sustained by the evidence where it appears that deceased fell while passing along a poorly constructed runway, that it might have been necessary to pass along such runway, that there was no eyewitness to the accident, that deceased was a careful man, and that the accident would not. have happened had the ordinance been complied with.
    9. Negligence — when proximate cause a question of law. The question of proximate cause becomes a question of law only where the facts are clear and such that there could be no difference, in the judgment of reasonable men, as to the’ inference to be drawn therefrom.
    10. Negligence — proximate cause. To constitute proximate cause the injury must have been such as an ordinarily prudent person ought to have foreseen and must be the natural and probable consequence of the negligence.

      11. Master and servant — assumed rislc. Where an ordinance imposing a specific duty for the protection of employees is violated, an employe does not assume the risk of injury resulting from such breach of duty by continuing at work with knowledge thereof.
    Appeal from, the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    S. M. Meek and S. Leonard Boyce, for appellants.
    No appearance for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

Upon a third trial, appellee recovered judgment against appellants for $5,000 for wrongfully causing the death of Jeremiah Hennessy, on October 28, 1898, and this appeal is brought to reverse that judgment.

The Riter-Conley Manufacturing Company was one of the contractors in the erection of a grain storage elevator in Chicago for the Columbia Malting Company, but the contract covered the furnishing of all materials and labor for an “elevated working house” and three steel storage tanks. The foundations, the mason and concrete work, and divers other parts of the work were not included in the contract. The RiterConley Company had sublet the work of erecting certain of the steel columns to one F. J. Lynn. Shortly prior to the date of the accident, Lynn had given up his contract, but was induced to continue the same work under the direction of the manufacturing company’s superintendent. The construction of the building had proceeded to the fifth floor, which was about seventy feet from the ground. For the purpose of setting up the steel columns and beams, a derrick was used, which was held in place by guy ropes. Around the foot of the derrick, and in its vicinity, were some planks for the workmen to walk upon, but no compíete floor, either temporary or permanent, was placed on any of the floors except the first. Desiring to move the derrick, Lynn directed the deceased to loosen one of the guy ropes while he loosened another. They started in different directions. Lynn heard a cry, and on looking around, saw Hennessy falling through the building. The deceased had apparently walked to one side of his direct route to the guy rope. No one saw him at the moment he began to fall, nor during the interval from the time Lynn told him to loosen the guy rope to the time when Lynn saw below him the falling body. Lynn testified that there was “not a good walk” at the place from which'Hennessy apparently fell.

The first count of the declaration, after stating that the Columbia Malting Company was the owner of the building and the Riter-Conley Manufacturing Company was a contractor and builder engaged in the erection thereof, recites section 204 of the Building Ordinance of the City of Chicago, the material portion of which is as follows: “It shall be the duty of all owners, contractors and builders, and all persons who shall have the supervision or control of the construction or remodeling of any building more than thirty feet high, to put in and lay upon the upper sides of the joists or girders of each story in any building, as soon as the joists or girders are laid, a good and substantial temporary or permanent floor for the protection of employes or all persons engaged in and upon the construction of said building, wherein no unprotected opening shall be left; and it shall be unlawful to place or put the joists or girders up of another story until each lower floor is thus laid.” A penalty of from $100 to $200 per day is fixed for each violation of the ordinance. The count then avers that while Hennessy “with all due care and diligence for his own safety, and in the necessary performance of his duty, and while working upon the fifth story of the said building, then and there being erected by the said Eiter-Conley Manufacturing Company, contractors and builders for the said Columbia Malting Company, the owners as aforesaid, the said structure being at the time more than thirty feet high, and while the said structure was not protected by the putting in or laying upon the upper sides of the joists or girders of each of the said stories of the said building as soon as the said joists or girders were laid, of a good and substantial temporary or permanent floor, for the protection of employes and all other persons engaged in and about the construction of the said building, as by the ordinance provided, was then and there thrown with great force and violence from the fifth floor of the said building to and upon the ground there, and was thereby then and there killed.” The second count is substantially the same without, however, reciting the ordinance in full. To the declaration was filed a joint plea of the general issue, and another of the Statute of Limitations.

Upon the second trial, the trial court directed a verdict for the defendants, and on appeal to the Appellate Court, the judgment rendered thereon was reversed and remanded. O’Donnell v. Riter-Conley Mfg. Co., 124 Ill. App. 544. The Appellate Court there held that the ordinance is a valid exercise of the police power of the city, having for its object the prevention of a manifest evil and the safety of all persons employed in the erection of buildings; that it was within the power of the common council to pass, is reasonable, and is, therefore, law within the corporate limits of the city. It also held that proof of a violation of such ordinance, and personal injury directly resulting therefrom, makes a prima facie case of negligence, for which an action will lie, and that the evidence tended to prove such negligence and injury, and the absence of contributory negligence by the deceased. There was no substantial difference between the evidence heard upon the second trial and upon the third. The questions decided by tbe Appellate Court in tbe case mentioned must, therefore, be considered as settled.

It is first contended that tbe ordinance in question was repealed by tbe act of June 3, 1907, providing for tbe protection and safety of persons constructing buildings, and that all suits based upon tbe ordinance and pending at tbe date of such repeal are ended thereby. We think neither branch of this contention is sound. Tbe Act of 1907 is in no way inconsistent with or repugnant to tbe ordinance in question, and where such is tbe fact, tbe ordinance is not repealed by tbe statute. City of Spring Valley v. Spring Valley Coal Co., 71 Ill. App. 432. Counsel have cited as authority for tbe second branch of tbe contention several early cases bolding that prosecutions under a penal ordinance are ended by tbe repeal of tbe ordinance. This is not such a prosecution; and if it were, tbe old rule was changed by statute in 1874. Section 4 of Chapter 131 (Rev. Stat. Ills.) provides that no new law shall be construed to repeal a former law “as to any offense committed against tbe former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under tbe former law.” This section has been construed to mean just what it says. Farmer v. People, 77 Ill. 322; Roth v. Eppy, 80 Ill. 283; People v. Zito, 237 Ill. 434. Actions brought under statutes conferring jurisdiction, or providing a special statutory remedy, like Vance v. Rankin, 194 Ill. 625, are not here involved and are clearly distinguishable in principle from cases like tbe present. Jefferson Theatre Program Co. v. Crejczyk, 125 Ill. App. 1, 10.

It is next urged that tbe declaration does not state a cause of action, in that no facts are set up showing that tbe defendants owed any duty to plaintiff’s intestate. Tbe declaration contains general averments showing that defendants were engaged in tbe erection of a building; that the city ordinance made it the duty of all owners, contractors and builders to lay a temporary or permanent floor upon the upper side of the joists or girders of each story as soon as laid in each story, and making it unlawful to put up any joists above until such floor is laid; that while the plaintiff’s intestate was working upon the fifth story of said building, with all dne care and diligence for his own safety, and in the necessary performance of his duty, the building being at that time more than thirty feet high, and without any such floors as the ordinance required, he was thrown from the fifth floor of the building to the ground, and killed. It may be that this declaration would be obnoxious to a demurrer, but we think the language of the declaration embraces within its general terms, by fair and reasonable intendment, all the facts necessary to complete the defective statement of the plaintiff’s cause of action. “On demurrer a declaration is construed against the pleader, but after verdict, all intendments and presumptions are in its favor. If a declaration contains terms sufficiently general to include, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment of such matter is cured by the verdict.” Sargent Co. v. Baublis, 215 Ill. 428, 430.

It is also urged that the court erred in permitting Lynn to testify that the deceased was a careful man. Lynn had just before stated that he did not see what caused the deceased to fall, and was not sure as to the exact position from which he fell; and there was no eyewitness who could testify just what the deceased was doing immediately before he fell, or how he came to fall. Under these circumstances, we think the evidence was properly admitted. C. & A. R. R. Co. v. Wilson, 225 Ill. 50; Stollery v. Cicero Street Ry. Co., 243 Ill. 290.

It is urged that the ordinance was improperly admitted, because the certificate attached thereto does not show that it was published in a newspaper published in the City of Chicago. We do not find that this objection was raised in the trial court. It was a mere variance at best, and could have been remedied if the objection had been made on the trial. Appellants cannot raise the objection for the first time in this court.

It is next contended that the owner is not liable in any event, because (it is said) the building was in charge of an independent contractor, and we are referred to the case of Gibbons v. Chapin & Gore, 147 Ill. App. 575, as supporting this contention. That case is certainly in point, and was decided upon a consideration of the same ordinance which is involved in this case. Our Supreme Court, however, in the later case of Claffy v. Chicago Dock Co., 249 Ill. 210, had occasion to construe the act of June 3, 1907 (Hurd’s Stat. of 1909, chap. 48, p. 1098), which appellants’ counsel insist covers the same ground and was intended to remedy the same evils, as the ordinance here in question. Section 6 of the Act of June 3, 1907, contains language which is very similar to that part of the ordinance here involved. Section 7 provides that “the contractors or owners” shall cause elevators in buildings under construction to be enclosed or fenced by substantial barriers or railings; and in the Claffy case, supra, it was contended that the duty of complying with the statutory requirements was imposed upon the contractor and not upon the owner. The Supreme Court, after mentioning the construction placed upon a similar statute by the Court of Appeals of New York, said: “In our opinion, it was intended by section 7 to, and said section 7 does, impose upon both the contractor and the owner the duty of complying with the provisions of said section, so far as civil liability is concerned.” It is true that in that case the court further states that the fact there was, that there was no general contractor having a contract for the construction of the entire building, but separate contracts were let to different contractors for the different kinds of work to be done. Nevertheless, as we read the opinion, the court did not intend to make that question of fact controlling in the construction placed by it upon the statute above quoted. The fact that there were separate contracts was only cited as an additional argument going to show that the contention made in that case could not even be sustained on the facts. The same condition exists here. It appears from the contract offered in evidence, that the Biter-Conley Manufacturing Company was not the only contractor, for its contract expressly excepts the mason and concrete work, some of the doors and windows, and the ‘ ‘ elevator legs, ’ ’ so that if any distinction was intended to be made on the facts by the Supreme Court in the Claffy case, the facts in this case, as well as the language of the ordinance, bring this case squarely within the reasoning of the court in that case. In view of this decision of the Supreme Court, we are not at liberty to follow the case cited from 147 Ill. App. Reports, supra, but must hold that the ordinance imposes the duty to lay protecting floors upon both the owner and the contractor. A similar construction was placed by the Supreme Court upon the fire escape statute, which made it the duty of "owners, lessees or occupants” to construct such fire escapes. Landgraf v. Kuh, 188 Ill. 484; Arms v. Ayer, 192 Ill. 601; Streeter v. Western Scraper Co., 254 Ill. 244. It may also be said, in passing, that in this case, the contract provides that the architect shall also be the superintendent of the work, and the owner reserves the right to make such alterations or changes in the character and extent of the work to be done as he may see fit, without affecting the contract.

It is urged that the verdict is not sustained by the evidence. It is said that appellants’ failure to put down a floor as required by the ordinance was not the proximate cause of the accident; that if Hennessy had not heedlessly gone out of his way, the absence of a floor would have done him no harm, and that he was therefore guilty of negligence contributing to his injury. These are questions of fact. The question of proximate cause only becomes a question of law when the facts are not only clear, but are such “that there can be no difference, in the judgment of reasonable men, as to the inferences to be drawn from them.” I. C. R. R. Co. v. Siler, 229 Ill. 390. “To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence.” Seith v. Commonwealth Electric Co., 241 Ill. 252, 259. It is clear from the evidence, that but for the appellant’s failure to comply with the ordinance the accident could not have occurred. The act of Hennessy, in going to or passing by, or over, the un: protected place, was a natural act, and one which, with its probable consequences, appellants ought to have foreseen and guarded against. The injury was the natural and probable consequence of appellants’ negligence, and its character was such that it should have been anticipated. In I. C. R. R. Co. v. Siler, supra, a woman was burned to death while endeavoring to put out a fire caused by sparks from the railroad company’s locomotive; and it was urged that her own act, and not that of the defendant, was the proximate cause of the accident. But the court said: “The voluntary act of decedent * * * was not a new and independent cause intervening between the wrong and the injury or disconnected from the primary cause and self-operating, but was itself the natural result of appellant’s original negligence.”

Whether decedent exercised due care or was guilty of contributory negligence is to be determined from all tbe circumstances in evidence; with other circumstances, it was proper for the jury to take into consideration the habits of the deceased and “what are known as the instincts of self-preservation.” C. & A. Ry. Co. v. Wilson, supra. We are unable to find any evidence in the record justifying the assertion so frequently made in the argument of appellants’ counsel, that the place towards which Hennessy turned when last seen by Lynn, was obviously and “glaringly” dangerous to one accustomed, as decedent was, to working upon steel buildings at dizzy heights. It is true that Lynn said that there was a safe “runway” of planks leading directly to the place where the guy rope was tied, over which Hennessy might, perhaps, have walked in safety (though this conclusion is pure inference) and that there was “no good walk” in the direction taken by him; but it does not necessarily or manifestly follow from that statement alone that the deceased did not act as a reasonably prudent man of his skill and experience would have acted under like circumstances. There was evidence that there was a high wind blowing at the time. This may have influenced his decision to take the route he did take. He might have intended to adjust the planks before moving the derrick. The jury had the right to draw reasonable inferences from the evidence, and both or either of such inferences would account for his departure from the straight path to the guy rope, and relieve him from any imputation of negligence in so doing. Under these circumstances, we are unable to say that the verdict is manifestly against the weight of the evidence, nor that the jury were not justified in finding the issues of proximate cause and contributory negligence in favor of the plaintiff.

It is also contended that the decedent assumed the risk of injury by continuing to work where he did, with knowledge that the ordinance intended for his protection was being violated or ignored. Counsel say tbat be must be presumed to know tbe law and to know tbat be was participating in its violation in putting up-iron columns and beams under tbe direction of appellants without a floor beneath. This raises tbe serious question in this case, viz: Can a master employ a servant to do an act in a manner forbidden by an ordinance designed for tbe servant’s protection, and when sued for damages for a personal injury directly resulting therefrom, be relieved from liability by invoking tbe principle tbat tbe injured employe assumed tbe risk by bis contract of employment? Tbe point raised tbat decedent’s participation precludes recovery is necessarily involved in tbe answer to this question.

In tbe recent case of Streeter v. Western Scraper Co., 254 Ill. 244, tbe Supreme Court held tbat where a statute or an ordinance is passed, tbe object of which is to provide for tbe safety of employes, and which imposes upon tbe master tbe absolute duty of furnishing safeguards, tbe duty so imposed cannot be delegated to another, nor can tbe master contract against bis neglect or failure to perform it; and tbat in such cases, tbe servant does not assume tbe risk by continuing at work, with knowledge of tbe failure of tbe master to perform tbe duty thus imposed upon him. “If tbe employe must assume the risk of tbe employer’s violation of tbe statute tbe act is a delusion so far as tbe protection of tbe former is concerned. He is in tbe same condition' as before it was passed. * . * * Tbe more completely tbe master has neglected tbe duty imposed upon him by statute for tbe servant’s protection tbe more complete is bis defense for tbe injury caused by tbat neglect. Justice requires tbat tbe master, and not the servant, should assume tbe risk of tbe master’s violation of tbe law enacted for tbe servant’s protection.”

A valid ordinance has tbe force of law within tbe limits of the municipality passing .the same. In the Streeter case, supra, the court, in distinguishing that ease from the case of Browne v. Siegel, Cooper & Co., 191 Ill. 226, in which the negligence charged was a failure to comply with ah ordinance requiring all elevator shafts to have iron doors opening from the inside only, said that the ordinance in that case did not impose a specific duty for the protection of employes, but was an ordinance passed in the interest of the public generally; thus plainly intimating that if an ordinance is one that imposes a specific duty for the protection of employes, it will have the effect of requiring the master, instead of the employe, to assume the risk of the master’s violation of such ordinance. The ordinance violated in this case is clearly of that character. It expressly makes it the duty of all owners, contractors and builders, in constructing or remodeling buildings more than thirty feet high, to lay upon the joists or girders of each story as soon as the same are put in, a “floor for the protection of employes or all persons engaged in and upon the construction of said building.” The duty imposed, and its object, are so clearly expressed as to be beyond dispute; and this was the construction given it by the Branch Appellate Court in O’Donnell v. Riter-Conley Mfg. Co., supra. We conclude, therefore, that the decedent did not assume the risk of injury resulting from the negligence of appellants in failing to comply with the ordinance regarding the laying of floors as the work progressed, by continuing at work with knowledge of such violation.

Objections are raised to a number of the refused instructions, but after having given them due consideration, we think the court did not err in refusing any of such instructions, for the reasons stated in the foregoing opinion.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Thomas & Smith, Appellants, v. Chicago Pump Company, Appellee.
    Gen. No. 17,000.
    1. Patents — royalties -prior to issuance. An inventor constructed, in consideration of royalties to he paid for the use of an invention, to give a manufacturer the exclusive < right to use and sell the invention during the life of the patent and to obtain letters patent as soon as possible. The first annual settlement was to be made on a certain day whether patents had been issued or not, and on such day the manufacturer agreed to give an accounting, though patents had not been issued. Held, that both from a construction of the contract based upon the acts of the parties and from the contract itself, the inventor was entitled to royalties on sales prior to the issuance of the patents.
    2. Sales — when purchaser may remedy defects and recover under warranty. Where a manufacturer guaranties that the material and workmanship of a 'pump is the very best and that he will replace defective parts, if a purchaser from the manufacturer gives notice of defects, and no attention is paid thereto, he may remedy the defects and recover the costs of the materials and labor.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    John T. Booz, for appellant.
    Whitman & Horner, for appellee; Lloyd C. Whitman, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for $23.38 in favor of appellee, and involves the construction of certain contracts. Appellant brought suit against appellee to recover the price of certain “automatic bilge pumps” sold and delivered by appellant to appellee. The plaintiff’s claim, as filed, was for $1,594.66, and upon the trial it was conceded by the defendant that plaintiff was entitled to recover that amount less certain allowances, which were not contested by plaintiff, amounting to $160.21. Appellee filed a set-off claiming an amount due from plaintiff in excess of the plaintiff’s claim. Upon a trial before the court, without a jury, the trial court found the following items due from plaintiff to defendant, viz: For damages on account of defects in certain of the pumps sold by plaintiff to' defendant, $291.57; for unpaid royalties accrued under the provisions of the contracts hereinafter mentioned, $1,119.50; and gave judgment for the difference between the amount conceded to be due to plaintiff, and the aggregate of the two items due the defendant, as above stated. The first item of the set-off was allowed by the court upon the theory that the pumps sold were warranted by plaintiff, who was the manufacturer thereof, and the second item was allowed upon the theory that the contracts provide for the payment of royalties to appellee upon all automatic switches manufactured by the plaintiff and sold and delivered prior to July 1, 1908, and upon all pumps manufactured and sold prior to the cancellation of the pump contract. Appellant denied appellee’s right to recover anything, and the action of the court below in allowing the items of set-off presents the only real question in this case.

The following facts were either conceded or were hot seriously disputed: In May, 1907, and prior thereto, Thomas and Smith, doing business as a partnership, were engaged in the manufacture of heating and ventilating systems, hot air pumps, and other machinery. Maurice I. Weil was a salesman in their employ. Augustus C. Durdin, Jr, was the inventor of an automatic pump and an automatic switch. Weil had an interest in Durdin’s invention of the bilge pump but no interest in the invention of the switch. No patents for these inventions had as yet been obtained, but Durdin and Weil had consulted a patent lawyer and expected to obtain them in due course. On May 9, 1907, Durdin and Weil, as inventors and joint owners of the pump invention, made a written proposition to Thomas & Smith regarding the use, manufacture and sale of the automatic bilge pumps invented by Durdin, ■and at the same time Durdin, as inventor of the automatic switch above mentioned, made a similar proposition in writing for the use, manufacture and sale of such switches. Both propositions, after some minor changes in the phraseology of some of the specified conditions, were accepted by Thomas & Smith on May 15, 1907. The language of the first paragraph of each of the propositions as accepted, is the same. That portion of the pump contract reads as follows:

‘ ‘ Gentlemen :
In consideration of the following royalties to be paid us for the use of an automobile bilge pump and motor combined, we hereby agree to give you, your successors or assigns, the exclusive right to use, manufacture and sell this automatic bilge pump and motor combined during the patent term, and to cover same as soon as possible by letters patent in and for the United States of America and Canada. Also the exclusive right to use, manufacture and sell any improvements thereon or any other automatic bilge pump and motor combined or improvements thereon invented by us or either of us during the life of said United States patent and to cover same by letters patent in said United States and ■ Canada, the exclusive use of improvements or of any new automatic bilge pump and motor combined and improvements thereon to continue during the life of the letters patent secured thereon.”

In the contract for the manufacture and sale of the automatic switch the consideration is expressed in the following words:

“In consideration of the following royalties to be paid me for the use of an automatic switch to be used in connection with your compression water systems I hereby agree to give you, your successors or assigns, the exclusive right to use, manufacture and sell this automatic switch during the patent term, and to cover same as soon as possible by letters patent, etc.”

The royalties specified in each of said contracts are fixed on a sliding scale according to the number of pumps or switches sold during each year, the royalties on the sale of pumps being fixed at $15 each for yearly sales of fifty or less, and diminishing to $5 for each pump on yearly sales of 40*3 or more. In like manner the royalties upon the sale of switches were fixed at $8 each for yearly sales of fifty or less, and diminishing to $1.85 each, in case of yearly sales aggregating 3,000 switches or more.

On the same day that these contracts were executed, Durdin entered the employ of Thomas & Smith under a written contract which provides that Durdin is employed as engineer and to take charge of their pump department at a salary of $1,500 the first year; that Durdin is to invent such machinery as appellant’s business will require from time to time and see that the same is properly manufactured, and take such charge and direction of the electrical installations of appellant as may be assigned to him; that appellant shall have the right to own, and to secure patents for any invention Durdin may make, or any ideas he may receive, in connection with the business, except improvements in the automatic switch and bilge pump, which are to be governed by the prior agreements of the same date between the parties. Durdin continued in the employ of appellant from June 1, 1907, to October 23, 1909. Soon after the latter date he became secretary and director of the Chicago Pump Company, appellee, a corporation organized by Weil, and at that time substantially in his control. It was stipulated on the trial that the partnership of Thomas & Smith are now the corporation known as Thomas & Smith, and that Durdin and Weil are now the Chicago Pump Company; that the two corporations are to be treated as principals, whether as parties to the various contracts involved, or as parties who have assumed the obligations of such contracts, except that appellant does not admit that there was any legal assignment to the Chicago Pump Company of Durdin and Weil’s claim for royalties. As to the exception, it was shown that the claim for royalties was first orally assigned by Durdin and Weil to the Chicago Pump Company, and that a formal written assignment thereof was executed on the same day this suit was brought, but before the prcecipe was filed in the Municipal Court.

Each of the royalty contracts contains the following provision: “Settlement of all royalties shall be made annually, and you (appellant) shall make full and true returns to us (Durdin and Weil) in writing annually during the month of July, beginning July, 1908. * * * Should you at any time fail to pay the royalties' above mentioned within thirty days after such returns are made as above, or fail to make prompt and true returns as above provided, then this license shall, at our option, be void, and your rights herein cease and determine. Such option shall be exercised by giving you notice in writing of such termination.” It also appears, without contradiction, that about June 1, 1907, Durdin made drawings of the automatic switch on appellant’s time, had some patterns made, and appellant soon after began the manufacture of the same; and that during March and April, 1908, Durdin made drawings of the bilge pumps, and that appellant began to manufacture the same in May, 1908, the first one being completed in June, 1908; that Durdin applied for a United States patent on the bilge pump on May 12, 1908, .-and a patent was issued' on August 10, 1909; that no application was ever made for a Canadian patent for the bilge pump; that Durdin made application for a Canadian patent on switches September 5, 1907, and a patent issued therefor November 5, 1907; that the United States patent for switches was issued March 30,1909.

Appellant’s counsel contend that by the terms of the contracts in question, appellant was given the exclusive right to use, manufacture and sell the inventions of Durdin “during the patent term,” which term, it is said, had a fixed time of beginning, viz: The date of the issuance of the patents, and a fixed duration, viz: The life of such patents; that although both switches and pumps were admittedly manufactured and sold by appellant prior to the issuance of the patents, nevertheless, it is said, no royalties accrued to appellees thereon, because of this language in each of the contracts ; and that, therefore, the trial court erred in allowing appellee any sum for royalties upon pumps and switches sold before the patents issued. To this contention appellee’s counsel reply that the contracts are ambiguous in this respect, and that the understanding of the parties in relation thereto, as evidenced by their acts, should be given effect, unless a construction based upon such acts is so contrary to the language of the contracts that it would do violence to the meaning of the terms expressed in the contracts. It was shown that sixty-one or sixty-three switches were manufactured and sold by appellant, of which forty-seven were manufactured and delivered prior to March 30, 1909, when the United States patent issued; that exclusive of the bilge pumps sold to appellee, forty-two were manufactured by appellant, of which thirty-three were sold and delivered prior to August 10,1909, when the United States patent on bilge pumps issued; that twenty-nine or thirty were sold and delivered by appellant prior to July 1, 1908, and, as we understand the evidence, only two bilge pumps were sold and delivered by appellant prior to July 1, 1908. Durdin testified that about July 1, 1908, he reminded Thomas that the first year for royalties to be paid on switches and bilge pumps had expired, and asked Thomas to have his bookkeeper prepare a statement of the number of switches and pumps sold; that Thomas replied that his bookkeeper was busy, and asked Durdin to prepare such a statement; that .in this conversation Dnrdin said that he needed money and would like to get what was due him for royalties; that Thomas said he did not have any money then and did not know how much was due, but would take care of the matter later; that soon after, Durdin handed Thomas an itemized list showing sales of thirty switches and two bilge pumps, upon which he claimed that royalties amounting to $270 had accrued; that in August, 1908, Durdin paid Thomas $50 on account of these royalties; that in November, 1908, Thomas & Smith executed and delivered to Durdin a series of notes aggregating $220, being the $270 above mentioned, less the $50 paid in August, 1908; that appellant paid $205 additional, in items of from $10 to $50 each, all prior to March 30, 1909; that in June, 1909} Durdin requested payment of royalties which had accrued for the year ending July 1, 1909; that Thomas requested Durdin to wait ninety days, which he did; that in September following, Durdin again spoke to Thomas’ about the matter, but Thomas asked for further time, and later proposed to pay a part of what was due and give a note for the balance; but that Dnrdin declined to accept the note unless it was secured. Thomas denies most of these alleged conversations, but admits that payments were made as stated, that the notes for $220 were given, and -that the consideration therefor was the accrued royalties; and admits that Durdin, in October, 1909, made a request for a settlement, and that he, Thomas, told Durdin he would “look the matter up and see where he stood.” In view of this evidence, it would seem that appellant’s present theory of the contracts was an'afterthought. Be that as it may, we think the contracts, when examined closely, bear out the construction which the parties themselves gave them.

It will be noted that in both the royalty contracts the consideration therein expressed is in substance as follows: “In consideration of the following royalties to be paid for the use of” the article specified “we hereby agree to give” an exclusive right to use, manufacture and sell the same “during the patent term.” In our opinion, this language is fairly susceptible of the construction first, that an immediate use by appellant of the specified inventions of Durdin on the basis of the stipulated royalties was contemplated by the parties, and second, that it was further agreed that as soon as the patents should be obtained, appellant should have the exclusive right to use and manufacture the articles invented and patented. In the construction of contracts it is an elementary rule that the whole contract must' be considered. The intention of the parties cannot be gathered from any one clause or provision standing by itself, but by so reading the several provisions as to give effect to all of them, if possible. To give the single phrase “during the patent term” the effect claimed for it, would be to ignore the language of the first part of the same sentence, as well as other provisions of the same contract. The contract speaks of “this license,” as a thing granted in prcesenti, while the “exclusive right to use, manufacture and sell * * * during the patent term,” is something the inventor “agrees to give” when the patents shall have been issued, which shall be “as soon as possible.” The use of the inventions is to be paid for by royalties; the exclusive right to manufacture under the patents will be included when the patents shall have been issued. The fact that the contracts required the first annual settlement to be made in July, 1908, is significant in this connection. It could not be definitely known, at the time said contracts were signed, that any patent could be secured prior to July 1, 1908; yet the first annual statement of royalties was required to be then made, whether patents had issued dr not. This provision clearly contemplates the payment of royalties precisely as stated in the first sentence, viz: “for the use” of the inventions of Durdin, as well before as after patents should be obtained. This construction is consistent with the acts of the parties, while that suggested by appellant’s counsel is inconsistent therewith. We, therefore, conclude that the trial court did not err in giving to the contracts a construction which not only gives effect to all the language of the contracts, but is borne out by the acts of the parties themselves.

It further appears that when appellant manufactured the bilge pumps it issued a catalogue containing the following guarantee: “We guarantee that nothing but the very best material for the purpose is used in the construction of our pumps, and the workmanship of same is thoroughly first class. And if, after ten days’ trial, they do not prove as represented, pumps can be returned to us and we will cheerfully furnish another pump and pay the freight charges. We further agree to replace, at our factory, any parts giving out on account of natural wear, imperfections in workmanship or material that occur within one year from date of purchase, providing pump has received proper care.” It was shown that several of the pumps sold to appellee, for the price of which this suit was brought, proved to be defective in workmanship or material; that as soon as such defects were reported, Weil notified appellee or its superintendent; that on some occasions attention was paid to such notices and on other more frequent occasions no attention whatever was paid; that Weil was obliged to, and did furnish materials, and employed and paid mechanics to remedy the defects. The trial court evidently considered with care and much patience the details of the evidence concerning these defects and repairs, and after such consideration, allowed to appellee $291.57 as the cost of making such repairs and remedying such defects as were fairly within the terms of the guarantee. We, in turn, have carefully examined the abstract of the record and the briefs of counsel concerning this item, and without entering into a discussion of the numerous details, it will suffice to say that, in our opinion, the finding of the trial court in this respect was fully warranted by the evidence.

A number of minor propositions have been suggested, rather than insisted upon, in argument; but all of them are, we think, substantially covered by what has been said above. Finding no reversible error in the record, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Edward A. Berger, Appellant, v. R. A. Nants and W. E. Nants, Appellees.
    Gen. No. 17,011.
    1. (Damages — penalty or liquidated, damage. In determining whether a sum agreed to be paid as damages for the violation of a contract shall be considered as liquidated damages or as a penalty, the primary question is to determine the meaning and the intent of the parties from the contract itself, the subject-matter thereof, the terms used to express the intent, and the circumstances under which the contract was made.
    2. Damages' — contract for liquidated damages. A declaration averred that defendant agreed to sell and deliver a certain quantity of first-grade eggs to be delivered weekly for two months and also all the second-grade eggs he would have for shipment during such months and that he had had on hand during such months a certain quantity of second-grade' eggs. The contract was set out in full and required each party to deposit $500 with a bank to be paid over to either party on a default by the other. The pleas averred that the deposit was intended as liquidated damages, that it was agreed that damages were impossible of precise ascertainment by •reasons of fluctuations in price and delivery, and that the uncertainty was a reason for making the deposits. Held, on demurrer to the pleas, that the amount deposited was not unconscionable and the contract should be construed as providing for liquidated damages.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    J. Homer Sullivan, for appellant.
    Archibald Cattell, for appellees; Dayton Ogden, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

Appellant brought suit in the Municipal Court against appellees, who are residents of Paris, Tennessee, claiming $7,500 for breach of contract, and served as garnishee the Peter Fox Sons Company, a copartnership, in Chicago. The trial court overruled a demurrer filed by the plaintiff to certain amended pleas to the amended declaration, and the plaintiff electing to stand by his demurrer, a judgment was entered in favor of the defendants, from which the plaintiff appeals.

Though several errors are assigned upon the record, only one is discussed in the briefs of counsel, as to the alleged error of the trial court in overruling the demurrer as to two amended special pleas involving the question whether a provision of the contract in question should be construed as a penalty or, as liquidated damages. The amended declaration consists of nine counts, which allege, in substance, that on February 23,1909, in Paris, Tennessee, the Peter Fox Sons Company entered into a written contract with appellees, in and by which appellees agreed to sell and deliver, and the Peter Fox Sons Company agreed to purchase from appellees, ten cars of eggs, to grade as “Storage Packed Firsts” at the price of $5 a case, to be delivered during the months of March and April, 1909, in car lots, the first shipment to he made not later than March, 1909, and the last not later than April 30, 1909, and also agreed to pack and ship to the Peter Fox Sons Company all the second grade eggs they would have for shipment during the same months, at the price of $4.12% a case, and it is alleged that appellees had on hand, during said months, ‘ ‘ to-wit: 1,500 cases ’ of such eggs; that said contract further provided that appellees should prepay the freight on all such shipments, and give notice to the Peter Fox Sons Company whenever a car was ready to he shipped; that although the time for the delivery of said eggs has elapsed, and the Peter Fox Sons Company has always been ready and willing to accept, receive and' pay for the same, yet appellees did not deliver or ship the eggs, nor give any notice to the Peter Fox Sons Company, as required by the contract, but refused to do so, whereby the Peter Fox Sons Company was deprived of great gains and profits, which would otherwise have accrued to them; and that on July 21, 1909, the Peter Fox Sons Company, in writing, assigned all their rights under said contract to appellant.

Appellees filed, among other pleas, two special pleas to all the counts of the declaration. These pleas first crave oyer of the contract, and set it out in full. Said contract consists of five paragraphs or clauses. By the first clause appellees agreed to pack and ship to the order of the Peter Fox Sons Company, ten cars or 4,000 cases of eggs, to grade as “Storage Packed Firsts,” and in addition thereto, “all the second grade eggs that they may have for shipment” during the months of March and April, 1909; the shipments of the first grade to begin not later than March 15, 1909, and continue one or two cars every week until the total of 4,000 cases is delivered; the last shipment to be made not later than April 30, 1909; all eggs to he packed in new gumwood cases, to he forwarded in refrigerator cars, kept fully iced, and appellees to prepay the freight. By the second clause or paragraph, the Peter Fox Sons Company agreed to accept and pay for the eggs at the rate of $5 per case for the first grade, and $4.12% per case for the second grade, and that upon notice of the fact that a car is ready to be forwarded from Paris, Tennessee, they should have one of the banks in Chicago, with which they do business, wire the First National Bank of Paris, Tennessee, that the Chicago bank will pay to the order of the Paris bank “Nants Bros, draft with prepaid bill of lading attached, on the Peter Fox Sons Company, for the value of the shipment, figured according to the price herein named for the different grades.” By the third clause it was provided that shipments could be made from several towns in Tennessee, naming them.' The fourth clause provided, that if on reaching Chicago, any car of eggs fails to grade, appellees, on receiving notice of that fact, will repack them and make them grade, or make an allowance for the difference in value. The fifth clause is as follows:

“That each of the parties to this contract agrees to immediately after the signing of this contract, to deposit five hundred dollars ($500) each in the First National Bank of Paris, Tenn., to be held by said bank in trust for the contracting parties, until sufficient proof can be presented to them that one of the parties has failed to live up to their part of articles one (1) and two (2) of this contract, and at such time the said bank shall pay to the party remaining in good faith the entire one thousand dollars. But if both parties shall faithfully live up to all the terms of this agreement, that then the First National Bank shall return to each one of the parties hereto the five hundred dollars- ($500) deposited by each party. This payment then to be made on May 5, 1909.”

The pleas then aver that coincident with the signing and delivery of the contract, and as a part of the same transaction, and in compliance with said fifth clause, the parties did deposit with the First National Bank of Paris, Tennessee, the sum of $500 each, which sums have ever since been retained by said bank in trust for the purposes mentioned in said clause. Then follows an averment that the parties to said contract thereby “fixed, determined and liquidated the damages recoverable by either party for the breach by the other of the provisions of the first and second clauses,” at the amount so deposited, and that it was the intention of the parties to thus ag’ree upon the sum of $500 as liquidated damages, to the exclusion of all other methods of liquidating any damages that might accrue to either party through the breach of said contract. One of the pleas further avers that at the time of the making of said contract, it was agreed that actual damages which might accrue, from the breach thereof, were impossible of precise ascertainment, for the reasons, known to the parties at the time, that the price of eggs was subject to extreme fluctuation, and that it was impossible to ascertain in advance the price or value of the classes of eggs described in the contract, which might be obtained at the timé when a breach of the contract might occur. The pleas then aver that the Peter Fox Sons Company and their assignee are limited or confined to the amounts so deposited as liquidated damages, which amounts are recoverable, if at all, from the Paris bank and not from the defendants, and conclude with a verification. To these pleas a general demurrer was filed and overruled.

It is frequently difficult to ascertain from the language of a contract and the surrounding circumstances, whether the parties intended that a sum which is agreed to be paid as damages for the violation of the agreement shall be considered as liquidated damages or only as a penalty. The primary question is to determine the meaning and intent of the parties from the contract itself, the subject-matter thereof, the terms used to express the intent, and the circumstances under which the contract was made. In Burk v. Dunn, 55 Ill. App. 25, the court said, (p. 29): “When the damages are considerable, are not capable of exact ascertainment and rest mainly in estimation, and are based upon matters which are more or less uncertain, and where there is no fraud in procuring the contract, the amount fixed by the parties ought to be the guide for the court; ’ ’ citing as authority for the rule so declared, Gobble v. Linder, 76 Ill. 157; Scofield v. Tompkins, 95 Ill. 190; Boyce v. Watson, 52 Ill. App. 361, and Poppers v. Meagher, 148 Ill. 192. The case of Gobble v. Linder, supra, was a case arising out of an agreement for the exchange of property, in which it was provided that if either party failed to make a deed at the appointed time, he should forfeit and pay as damages $1,500. On the principle that the contract was in the alternative, it was there held that the stipulation was hot a penalty, but was a provision for liquidated damages, which limited the recovery to the amount stated.

In Scofield v. Tompkins, supra, a contract for the sale of real estate provided that if $22,000 was not paid by a certain day, it could be recovered as liquidated damages, and it was held that such a provision was unconscionable and was not enforceable as liquidated damages, but should be construed as a penalty only. It was stated as a further reason, that the provision was intended to secure performance of the contract.

In Poppers v. Meagher, supra, a lease provided that for holding over after the expiration of the term, $30 a day should be paid as liquidated damages. The court reviews a number of prior decisions upon this subject, and then states (p. 205): “The rule deducible from these cases may be stated: First, where, by the terms of a contract, a greater sum of money is to be paid upon default in the payment of a lesser sum at a given time, the provision for the payment of the greater sum will be held a penalty; second, where, by the terms of a contract, the damages are not difficult of ascertainment according to the terms of the contract, and the stipulated damages are unconscionable, the stipulated damages will be regarded as a penalty; third, within these two rules parties may agree upon any sum as compensation for a breach of contract.” Then, after reciting the facts, the court holds that under the evidence, the amount there fixed “is not unconscionable, and is reasonable.”

In McCullough v. Moore, 111 Ill. App. 545, the penalty of a bond for $5,000 conditioned upon a full compliance with the provisions of a fifty year lease, requiring the erection of buildings after sixteen years, was held to be liquidated damages, upon the grounds that the amount stipulated was reasonable under the facts there disclosed, and that the damages could not be ascertained with certainty. The court also quoted from 1 Sedgwick on Measure of Damages, 8th Ed., Sec. 416, to the effect that the uncertainty contemplated by the rule is an uncertainty as to the extent and amount of the damages and not as to the proper measure of damages. In Pinkney v. Weaver, 216 Ill. 185, a provision in a contract for the sale and conveyance of real estate to the effect that if the deed therein provided for should not be accepted, the sum of $300, paid as earnest money, should be forféited as liquidated damages, was held to be reasonable and enforceable as an agreement for liquidated damages.

In this case the general demurrer admits such facts to be true as are well pleaded. It does not appear from such facts that the stipulated amount is unreasonable or unconscionable. It does appear that the contract called for an uncertain and indefinite quantity of eggs to be delivered, namely, such second grade eggs as appellees might have on hand for shipment during the months of March and April, 1909. The averment under a videlicet that appellees had on hand during those months 1,500 cases of eggs, does not, in our opinion, remove the uncertainty in this respect. It also appears that the extent and amount of damages for failure to deliver the ten cars of first grade eggs would be very difficult to arrive at with any degree of certainty, for the reason that the contract permits the delivery at the rate of one or two cars a week, extending over a period of two months; and assuming that a proper measure of damages would be the difference between the market price and the contract price on a particular day when any car or cars would be delivered, the amount of such damages, under such circumstances, is purely conjectural. Moreover, in one of the pleas it is expressly averred that this uncertainty was one of the reasons for the agreement as to the deposit being made, and whether this averment is a mere conclusion or a statement of fact, it is certainly a fair and reasonable construction of the contract itself. In our opinion the fifth clause of the contract in question was an agreement for liquidated damages, and the trial court therefore properly overruled the demurrer.

The judgment of the Municipal Court will be affirmed.

Affirmed,.