author: Mr. Justice McG-oorty

text:
    J. L. Holmes, Appellee, v. City of Chicago, Appellant.
    Gen. No. 21,957.
    1. Municipal corporations, § 799

      —when want of power of city to employ person to do work on extension of waterworks system, must he pleaded. Where the commissioner of public works of a city having statutory authority to construct and maintain a waterworks system employed a party to perform certain work in the extension of a part of such system but without first complying with an ordinance of the city requiring prepayment by property owners or persons desiring the extension of the cost thereof, held in an action to recover for such work done and accepted by the city, to which the general issue only was pleaded, that such employment was within the general scope of the city’s authority and not ultra vires, and that the obligation could only be avoided, on account of the city’s want of power, by plea and proof.
    2. Municipal corporations, § 799

      —what capacity city acts in constructing and operating waterworks. When a municipal corporation undertakes to construct and operate waterworks it does so in the exercise of its private and not its governmental functions.
    3. Estoppel, § 55

      —when city is estopped to deny validity of contract of employment on waterworks system. Where a city constructing and operating its own waterworks accepts the benefit of work done at its request in.laying water pipes and extending its waterworks system, it is estopped from denying the validity of its contract of employment for such work.
    4. Municipal corporations, § 1219

      —when party doing work for city may recover on quantum meruit for his services. A party performing work for a city, at its request, upon the waterworks system constructed and operated by it may recover therefor on the basis of a quantum meruit for the fair value of the work accepted by the city, in the absence of a contract between the parties.
    5. Limitation of actions, § 121

      —when defense of statute may not he raised. A defense of the statute of limitations cannot be raised for the first time on appeal.
    Appeal from the Superior Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 9, 1917.

      Samuel A. Ettelson and Richard S. Folsom, for appellant.
    Hirsch & Schwartz, for appellee; Ulysses S. Schwartz, of counsel.

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

   Mr. Justice McG-oorty

delivered the opinion of the court.

The City of Chicago seeks to reverse a judgment of $7,570.75, rendered against it for work performed in 1893 by James 0 ’Laughlin, under the supervision and at the request of its commissioner of public works. This work, consisting of blasting rock for a trench in which to lay water pipe, was accepted by the city, and such trench was thereupon and has continued to be used by the city for that purpose. There was then in force and effect an ordinance of the City of Chicago, which so far as material is as follows: “The commissioner of public works shall extend the water main only where the owners of property or persons desiring such extensions shall advance and pay into the .city treasury a sum of money equal to the entire cost thereof, * * * to be repaid * * * when from the surplus of the net- income from the water rates not otherwise appropriated or pledged there is in the city treasury sufficient money therefor * * Said water pipe was laid without the advance payment required by said ordinance. Following the completion of the work of blasting, a certificate was issued by the city to 0 ’Laughlin certifying, in substance, that he had blasted rock amounting to $3,829 in certain streets for the purpose of laying water pipe, which amount would be refunded to him (and if not refunded within two years would thereafter bear interest) from any money belonging to the water tax fund not otherwise appropriated, whenever, upon survey, it was shown that a revenue from frontage water rates of ten cents per lineal foot was being derived from said pipe. About six years thereafter, viz., on December 22, 1909, plaintiff, who became the bona fide assignee of said certificate, was notified by the city that the required revenue, for the first time, was being derived from said pipe, but that no appropriation would be available until the succeeding month. Later the city refused payment of said certificate upon the ground of its alleged invalidity.

The case proceeded to trial upon the common counts and a plea of the general issue. The city interposed as a defense upon the trial (and presents the same questions here) that there was no evidence: (a) of any contract entered into between O ’Laughlin and the city to do said work; (b) that bids on the work (which amounted to more than $500) were called for, or advertised; (c) that an appropriation was made; and (d) that a deposit was made as required by said ordinance.

The city had the power, under statutory authority, to construct and maintain a waterworks system. The employment of 0’Laughlin by the city was within the general scope of its authority, and in such case “where there is general power to do an act, if the authorities have failed to take the requisite steps to authorize the act in the particular case, it must'plead and prove the facts which render the particular contract illegal. The obligation is not ultra vires, as being beyond the authority conferred upon the defendant by its charter, and if it seeks to avoid the obligation on account of its want of power, it must make good its defense by plea and proof.” City of Chicago v. Peck, 196 Ill. 260. In the instant case no evidence was offered by the city, and the only plea filed by it was that of the general issue.

The case of the Merchants Loan & Trust Co. v. City of Chicago, 182 Ill. App. 298, was a suit upon a claim evidenced by a certificate similar to the one in question, except such certificate was for money loaned. Questions similar in character to those presented here were raised in that case, and this court said: “As to all other objections to the finding that the city was liable on the certificate produced in evidence, it seems to us sufficient to say that there is no sufficient pleading by the city under which they can be considered. ’ ’

It is admitted that the city by accepting the benefits of O’Laughlin’s work is estopped from denying the validity of his employment, if, in laying said water pipe, and extending its system of waterworks, it was acting in its private capacity. It is well settled that when a municipal corporation undertakes to construct and operate waterworks it does so in the exercise of its private and not its governmental functions (Wagner v. City of Rock Island, 146 Ill. 139; City of Litchfield v. Litchfield Water Supply Co., 95 Ill. App. 647); and it therefore follows that the city in the instant case was acting in a private capacity, and having accepted the benefits of the contract is estopped from denying its validity. City of Chicago v. Norton Milling Co., 196 Ill. 580.

Furthermore, if there had been no contract between the city and O’Laughlin, plaintiff would be entitled to recover upon the basis of a quantum meruit for the fair value of the work accepted by the city. Sexton v. City of Chicago, 107 Ill. 323; City of East St. Louis v. East St. Louis Gas Light & Coke Co., 98 Ill. 415. It is urged by counsel for the city that, even if plaintiff were otherwise entitled to recover upon that ground, he is barred by the statute of limitations. But that defense was not raised below.

The propositions of law presented to the trial court in behalf of the city were based upon the same theories of law presented here, and were properly refused. For the reasons herein stated the judgment of the Superior Court will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Chicago Railways Company, Appellant, v. Selig Morris, George F. Davie and Louis Morris, copartners, trading as S. Morris & Company, Appellees.
    Gen. No. 21,980.
    1. Contracts, § 175

      —how construed when containing words of doubtful meaning. In construing a contract containing words of doubtful meaning, such contract should be construed in the light of the surrounding circumstances and the situation of the parties.
    2. Municipal Court of Chicago, § 13

      —what is effect of motion to strike statement of claim from files. A motion to strike from the files a statement of claim in an action under the Municipal Court Act is equivalent to a demurrer, and admits the material portions of such statement to be true.
    3. - Contracts, § 187

      -^when construction by parties governs. Where the terms of a contract are uncertain or doubtful, the practical construction given to the contract by the parties thereto will govern.
    4. Contracts, § 187

      —when parties presumed to have contracted with reference to knowledge of subject involved. Parties will be presumed to have contracted with reference to the knowledge they then had on the subject involved in the contract.
    5. Sales, § 15

      —when not void for uncertainty •or want of mutuality. Where a party proposed to buy scrap iron to be taken from a street by a street railway company, reserving, to the company the right to retain whatever portion “it may consider necessary,” and the company accepted the proposal, and thereafter such party hauled away a large quantity of the iron and the company tendered all of the material it had removed on a certain street, held that the contract was not shown to be void for uncertainty or want of mutuality in an action to recover damages for breach of the contract by reason of such party’s refusal to receive and pay for such tendered material.
    6. Sales, § 17

      —when promise to purchase is not without consideration. Where one party by accepting another party’s proposal to buy a quantity of scrap iron parted with the right to sell elsewhere and bound himself to cut the material at his own expense into certain lengths, held that the other party's promise to purchase was not without consideration.
    7. Contracts, § 173

      —when construction which will uphold should be adopted. Where an instrument is susceptible of two conflicting constructions, one imputing bad faith or fraud to one of the parties to the instrument, the other not, the latter construction should be adopted.
    8. Municipal Court of Chicago, § 13

      —when statement of claim sufficient on motion to strike. That a statement of claim, under the Municipal Court Act, enumerates some items which are not recoverable if true does not render it obnoxious tb a motion to strike equivalent to a general demurrer.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 9, 1917.
    Rehearing denied February 19, 1917.
    Statement by the Court. This was an action for damages for breach of contract. Plaintiff (appellant) at the time in question and for a long time prior thereto was engaged in reconstructing its railway system in the City of Chicago. Defendants (appellees), who were dealers in scrap iron, made the following proposal to plaintiff;

      ‘ ‘ Chicago, April 23, 1913.
    “We are pleased to offer the following prices on scrap material to be taken out of the streets:
    Girder rails, 11.75 Gross ton.
    Slot rails, 11.75 < C i Í
    Crossings and switches, 10.25 í Í í Í
    Cast iron, 14.00 ( Í <<
    Sheet iron, 9.00 i i < Í

    Miscellaneous scrap, 11.25 i i ( i

    “We to haul as per instructions from the Chicago Railways Company.
    “The Chicago Railways Company reserves the right to retain whatever portion of the scrap material it may consider necessary.
    “All rails to be cut by the Chicago Railways Company at their expense in not over 30/ lengths and all cast welded joints to be included in the weight of the rails.
    “Each load to be weighed on .Chicago Railways Company’s scales if convenient, or on a public scale and tickets furnished daily showing the gross, tare and net weight of each load and kind of material.
    “The above price to cover all scrap material removed in connection with track work from April 2nd to December 31st, 1913.
    Tours truly,
    S. Morris & Company,
    By L. Morris.
    “O.K. J. F. B. 5/2/13.
    B. H. B.
    “Accepted: Chicago Bailways Company,
    By J. M. Boach, president.”
    Plaintiff in its second amended statement of claim alleged that defendants for several years prior thereto had purchased from plaintiff large quantities of material of the kind described in said proposal; that at the time said contract was entered into defendants knew that plaintiff was removing from the streets large quantities of material and was selling all of same that plaintiff might not need, and that defendants knew that plaintiff only retained a small quantity which might be necessary for reuse; that in pursuance to said proposal, defendants began to remove large quantities of said scrap material, and continued to do so', so long as profitable to them; that on or about November 1,1913, during the period covered by said proposal, plaintiff had removed from Montrose avenue a large amount of said scrap iron,, including rails cut at plaintiff’s expense, in not” to exceed thirty-foot lengths, and thereupon notified defendants to take and pay for same as agreed, which defendants refused to do by reason of a decline in the prices thereof, and that plaintiff was thereby damaged in the sum of $2,479.45. Upon motion of defendants, said statement of claim was stricken from the files on the ground that it was insufficient in law for plaintiff to maintain its action, and the suit dismissed at plaintiff’s costs.
    John W. Walsh and Frank L. Kriete, for appellant; W. W. G-urley and J. B. Cuilliams, of counsel.

      Benjamin B. Morris, for appellees.

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

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

   Mr. Justice McG-oorty

delivered the opinion of the court.

The principal question presented by this appeal for our determination is whether the contract in question is void for want of mutuality or uncertainty because of the following provision: “The Chicago Railways Company reserves the right to retain whatever portion of the scrap material it may consider necessary.” The foregoing was the only limitation upon plaintiff’s (The Chicago Railways Co.’s) absolute duty under defendants’ proposal of purchase, and plaintiff’s acceptance thereof, to sell to defendants all of its scrap material which it would remove from the streets during the period specified in said proposal. If plaintiff had sold such scrap material to another, it would have breached its contract with defendants, and the latter could have maintained an action for such breach. On the other hand, defendants became bound to take all of the scrap material which plaintiff might not consider necessary to retain, and, therefore, the contract was mutually obligatory, provided the amount of such scrap material was reasonably determinable.

In construing a contract containing words of doubtful meaning, such contract should be construed in the light of the surrounding circumstances and the situation of the parties. Defendants’ motion to strike is equivalent to a demurrer, thereby admitting plaintiff’s statement of claim (so far as material) to be true. In legal effect it is therefore admitted that defendants, when they made such proposal of purchase, knew, through a long course of similar business dealings with plaintiff, that the latter only retained a small quantity of such scrap, which was for reuse in reconstructing its street railway system. The parties will be presumed to have contracted with reference to the knowledge they then had upon that subject. The intent of the parties must also be gathered from the practical construction given by them to the contract. “When the terms of a written agreement are in any respect uncertain or doubtful and the contracting parties by their own conduct have placed a construction upon the provisions of such contract which is reasonable, such construction will be adopted by the court, and evidence of acts showing a practical construction of the instrument by the parties themselves is admissible.” Gillett v. Teel, 272 Ill. 106, 114.

The statement of claim alleges that defendants, after said proposal was accepted by plaintiff, began to haul away large quantities of the scrap removed from the streets by plaintiff, and continued to do so for several months. Furthermore, on or about November 1, 1913 (during the period covered by the proposal), plaintiff tendered to defendants all of the material which it had removed from its tracks on Montrose avenue. This indicates that at the time such proposal was made and accepted, the parties had in mind not only the purchase and sale of all of such scrap material, not required by plaintiff, but that plaintiff’s requirements or needs were approximately ascertainable by defendants. Hence the contract was not void for uncertainty. Nor was it void for want of mutuality. National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427; Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85; Burgess Sulphite Fibre Co. v. Broomfield, 180 Mass. 283, 62 N. E. 367. As said in Clark on Contracts (Hornbook Series) p. 171:

“If a person agrees to buy, and another person to sell, all the supplies of a certain kind the former ‘may need,’ or that the latter ‘may have to sell,’ there is no want of mutuality, and the contract is binding. One of the parties binds himself absolutely to take all the supplies he may need, not merely to take what supplies he may choose to take; and the other binds himself absolutely to sell all he may have to dispose of; and each promise is a consideration for the other. They differ from options, for, if there are any supplies needed, they must be bought, and if there are any to be sold, they must be delivered.”

The cases relied upon by defendants are clearly distinguishable from the case at bar.

Defendants’ counsel urge that there was no consideration given by plaintiff. The latter, by its acceptance of defendants’ proposal, not only parted with the right to sell its scrap material elsewhere, but also obligated itself to cut the rails at its own expense, in not to exceed thirty-foot lengths. It cannot be maintained therefore that defendants’ promise to purchase is without consideration. In the case of Burgess Sulphite Fibre Co. v. Broomfield, supra, a proposal and acceptance similar to the one in question was under consideration and the court said: “The contract is not lacking in mutuality because the amount of iron to be removed' is not defined. It is enough that the plaintiff came under some obligation to the defendants. If he did, there is a consideration for their promise. The extent of the plaintiff’s obligation is not material.”

It is further alleged in the statement of claim that from April 2, 1913, to November 1, 1913, both parties recognized the contract as valid and acted under it, and that not until plaintiff had fully performed all that was required of it did defendants refuse to comply with the terms of the contract. “Where an instrument is susceptible of two conflicting constructions, one of which imputes bad faith or fraud to one of the parties, and the other does not, the latter construction should be adopted. ’ ’ 9 Cyc. 587.

It is also urged by defendants that certain averments in plaintiff’s statement of claim relative to damages claimed are defectively stated. “That the statement of claim contained among the items of damages enumerated some which were unrecoverable, if it be true, did not render it obnoxious to an equivalent to ‘a general demurrer’ in the ‘motion to strike.’ ” Muller v. Bernstein, 183 Ill. App. 154, 158.

We are of opinion, for the reasons herein stated, that the statement of claim set forth a contract that was not void for uncertainty or want of mutuality, and that the trial court erred in striking plaintiff’s second amended statement of claim from the files and in dismissing suit at plaintiff’s costs. The judgment of the Municipal Court is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Emily Scott, Appellee, v. United Order of Foresters, Appellant.
    Gen. No. 22,005.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 9, 1917.
    Rehearing denied February 19, 1917.
    Statement of the Case.
    Action by Emily Scott, plaintiff, against United Order of Foresters, defendant, to recover $1,000 on a certificate of membership in defendant Order on account of the death of her husband. From a judgment for plaintiff for $1,000 on remittitur of $45, defendant appeals.
    Frank F. Aring, for appellant.
    Hoyne, O’Connor & Irwin, for appellee.

      Abstract of the Decision.
    1. Insurance, § 120

      —when interpretation of contract favorable to insured will be adopted. If a contract of insurance is susceptible of two interpretations, that one will be adopted which is most favorable to the assured.
    2. Insurance, § 747

      —when member of fraternal insurance association is bound by constitutional amendments or subsequently enacted by-laws. A member of a fraternal insurance association is bound by constitutional amendments or by-laws enacted after his admission to the association which impair the obligations of his contract on admission injuriously only when he in express terms agreed to be so bound, and in the absence of such express agreement his contract of membership cannot be impaired by subsequent changes effected by the association.
    3. Insubance, § 747

      —when member of fraternal insurance association is not bound by subsequently enacted by-law. Where a benefit certificate issued and delivered to a member of a fraternal insurance association on his admission provided that he assented to the by-laws of the association “prescribed from time to time” by the association, held that a subsequent by-law of the association did not become a part of his contract of insurance and that he would not be bound by it.

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

   Mr. Justice McG-oorty

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Chicago Mill & Lumber Company of Cairo, Appellee, v. Mary Boynton Townsend, Appellant.
    Gen. No. 6,216.
    1. Covenants, § 2

      —what is nature of. A covenant is a species of express contract.
    2. Pleading, § 152

      —when defendant must file affidavit of merits with plea. Where a covenant in a warranty deed provided that the warranty should be for a specified amount and that the grantor should be liable to the grantee for such amount, in the event of a breach of the covenant, for interest thereon, taxes paid and for a reasonable attorney’s fee in defending any suit for the lands in which the claimants should prevail and costs of such suit, held that an action for recovery on such covenant is a suit on a contract for the payment of money within the provisions of section 55 of the Practice Act (J. & A. It 8592), requiring the defendant to file an affidavit of merits with his plea, when the plaintiff attached an affidavit of his claim to his declaration.
    3. Limitation of actions, § 21

      —when cause of action accrues for breach of covenant of warranty. Under a covenant of warranty contained in a deed of real estate providing that the grantor should pay a specified amount for all of the land which should be lost to the grantee in consequence of a breach of the warranty, held that no cause of action would accrue on such covenant until the grantee was actually evicted by the holder of the paramount title, and that the statute of limitations would not begin to run until that time.
    4. Limitation of actions, § 9

      —when foreign statute is inapplicable to cause of action arising in foreign State. Under section 20 of the Illinois Limitation Act (J. & A. f 7215), the statute of limitations of a foreign State does not apply to a cause of action arising therein unless the parties were nonresidents of the State of Illinois at the time the cause of action accrued.
    5. Interest, § 47

      —how should be computed on contract not providing method of computation. Where a contract for the payment of money contains a stipulation for the recovery of interest but does not, either expressly or impliedly, fix a time from which such interest is to be computed, the interest should be computed from the date of the contract.
    6. Covenants, § 42

      —what damages are recoverable for breach of covenant in warranty deed. In an action on a covenant in a warranty deed providing that the grantor should be liable for a specified amount, in the event of a breach of the warranty, interest thereon, taxes paid on the land, and a reasonable attorney’s fee in defending any suit for the lands in which the claimant should prevail and costs of such suit, where the grantee was allowed in such a suit credit for such taxes paid on an accounting for timber taken by him from the land and charged against him in such suit, held that such accounting for the timber taken was a necessary part of that suit and its defense, and that the grantee would not be entitled to the amount of such taxes paid and credited in such accounting as a part of the damages to be recovered in such action on the covenant; and that the grantee would be entitled' to recover all reasonable attorney’s fees and the entire cost incurred in the defense of such suit both before and after it was remanded and redocketed by order of the Supreme Court.
    7. Interest, § 7

      —when recoverable upon attorney’s fees and costs allowable under covenant in deed. Interest is recoverable, under Rev. St. sec. 2, ch. 74 (J. & A. If 6691), upon reasonable attorney’s fees and costs incurred and paid in defending a suit where the right to recover such fees and costs is based upon a covenant in a deed.
    8. Covenants—what questions are for court when defendant is in default. Where a defendant is. in default, in an action on a .covenant in a deed, the only question for the court is as to the amount of the plaintiff’s damages.
    9. Set-off and recoupment, § 8

      —when taxes paid by a grantor’s

      predecessors in title are properly matter of set-off in action on covenant of warranty. In an action by a grantee against his grantor to recover on a covenant of warranty for a breach of such covenant providing for recovery of taxes paid by the grantee, a recovery by the grantor for taxes paid by the grantor’s predecessors in title, if recoverable at all, could only be as a matter of defense under a plea of set-off.
    10. Appeal and error, § 1810

      —power of Appellate Court to render final judgment. The Appellate Court has power, on an appeal, to render such judgment as the trial court should have rendered.
    11. Covenants, § 37

      —when defendant in default may introduce evidence to reduce amount of damages. Where a defendant in an action on a covenant in a deed is in default and thus the only question for the court is the amount of damages, the defendant may, nevertheless, introduce evidence to reduce the amount of damages, but not by way of set-off.
    Appeal from the Circuit Court of De Kalb county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed in part on cross errors, and judgment in this court.
    Opinion filed April 26, 1916.
    Rehearing denied October 5, 1916.
    Montgomery, Hart, Smith & Steere, for appellant; William P. MacCracken, Jr., of counsel.
    Knapp & Campbell, for appellee; John B. Cochran, of counsel.

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

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from a judgment in favor of the Chicago Milling & Lumber Company of Cairo, appellee, for $4,795, in an action of covenant rendered in the Circuit Court of DeKalb county against Mary Boynton Townsend, appellant.

The covenant, which forms the basis of recovery, is a part of a warranty deed by which the appellant and nine other grantors on September 26, 1902, conveyed to the appellee 640 acres of timber land in Mississippi county, Arkansas, and is as follows: “It is hereby agreed that this warranty shall be for ten dollars ($10) per acre upon the lands hereby conveyed and, in the event of a breach hereof, the above named warrantors shall be liable to the said Chicago Mill & Lumber Company for said sum of ten dollars ($10) per acre for such lands as may be lost to said Chicago Mill & Lumber Company by a breach of the warranty herein, together with interest thereon at six per cent. (6%) per annum; all taxes and levee taxes that may have been paid by said Chicago Mill & Lumber Company, and a reasonable attorneys’ fee for defending such suit or suits as may be brought by claimants for said lands in all suits in which claimants shall prevail, together with the costs of said suit.”

The suit was commenced on April 24, 1913, against the appellant, Elmer E. Boynton and Frederick B. Townsend, who were all parties defendant in the original declaration. Afterwards, the appellee dismissed the case as to the defendants Frederick B. Townsend and Elmer E. Boynton, and by leave of court thereupon filed an amended declaration solely against the appellant. The amended declaration was filed November 16, 1914, and was supported by an affidavit of the amount due. The appellant moved to strike the affidavit of appellee’s claim from the files upon the ground that the suit was not upon a contract for the payment of money, within the meaning of section 55 of the Practice Act (J. & A. jf 8592), which motion .the court denied.

The appellant then filed pleas with an affidavit of merits, and subsequently, by leave of court, an amended affidavit of merits and additional pleas. .The pleas filed by the appellant were non est factum, a plea denying all the allegations of the amended declaration with the exception of those setting forth the deed, and the statutes of Arkansas, and a plea in which appellant set up repayment of taxes to appellee by the Osceola Land Company; also pleas based on parts of the Illinois statutes of limitations, and on the Arkansas Limitation Act by which actions of this kind are barred within five years. The amended affidavit of merits, which the appellant filed with her pleas, is as follows:

“State of Illinois L County of Cook.]ss.

“Wm. P. MacCraeken, Jr., being first, duly sworn, on oath says that he is one of the attorneys for the defendant in the above entitled cause and the duly authorized agent of the defendant, in this behalf; that he verily believes that said defendant has a good defense to the above entitled suit, upon the merits, to the whole of the plaintiff’s demand.

“Affiant further states that the nature of defendant’s said defense is that each and all of the plaintiff’s alleged causes of action are barred by the lapse of time, in that each and all of said causes of action arose in the State of Arkansas and that by the laws thereof an action thereon cannot be maintained by reason of the lapse of time, because they did not, nor did any or either of them, accrue to the plaintiff within five years next before the date of the filing of the amended declaration herein, as required by the laws of the State of Arkansas; and also in that they did not, nor did any or either of them, accrue to the plaintiff within 10 years next before the commencement of this suit, because at the time of the giving of the deed in plaintiff’s amended declaration mentioned, the said Section Fourteen (14), in Township Fifteen (15) North, Range Eight (8) East, located in Mississippi County, Arkansas, was wild and unimproved land, and that the constructive possession of said land was in one A. H. Chatfield, who was the owner and holder of the legal title thereto, by reason of which fact the plaintiff herein was constructively evicted from said land at the date of the giving of the deed, towit: on the 26th day of September, A. D. 1902, which date was more than 10 years next before the commencement of this suit.

“Further affiant saith not.

Wm. P. MacCracken, Jr.

“Subscribed and sworn to before me this 15th day of December, A. D. 1914. Lorenzo K. Wood,

(Seal) Notary Public.”

The appellee thereon moved to strike appellant’s amended affidavit of merits from the files, on the ground that the facts therein set forth did not constitute a defense to the appellee’s right of recovery, and also moved to strike all of appellee’s pleas from the files for want of a sufficient affidavit of merits. The court sustained appellee’s motion, struck the appellant’s affidavit of merits from the files, and the appellant’s pleas. The appellant was thereupon defaulted and the case was set down for hearing to assess appellee’s damages.

The proof shows that the land conveyed by the deed was located in the State of Arkansas, and that at the time of the conveyance it was all wild and uncultivated timber land; that appellee took possession of this land in May, 1904, had it surveyed and the corners ascertained, as established by Government survey, then established logging camps and built structures for housing men, horses and wagons, tools and machinery. Appellee also built a railroad track across the land to enable it to cut and remove the standing timber, and was engaged in removing timber from the land about May 1, 1908, when it was evicted by a decree of the Chancery Court of Mississippi county, Arkansas.

The suit to-dispossess appellee of the land.in question was commenced August 4, 1904, by the Osceola Land Company, which claimed to have the legal title. The appellee was served with process in that case, appeared in court and defended the suit, relying upon the deed, which it had received from appellant and her cograntors, to establish its title. The Chancery Court in October, 1905, entered a decree dismissing the complaint of the Osceola Land Company for want of equity, and finding the title of the land to be in appellee. The Osceola Land Company, however, appealed the case to the Supreme Court of Arkansas, which reversed the decree of the Chancery Court and remanded the case with directions to enter a decree cancelling the deeds under which appellee claimed its title, and quieting the title of the Osceola Land Company. It also remanded the case for further proceedings for the purpose of taking an account of the timber which appellee had taken from the land during its occupancy, and directed that the taxes paid by appellee and its predecessors in the title claimed, which were declared to be a lien upon the land.

The remanded case was redocketed May 1, 1906, in the Chancery Court, and a decree entered pursuant to the direction of the Supreme Court, and then referred to a special master to take proofs and report as to the taxes paid by appellee subsequent to 1902, and the taxes paid by those under whom appellee claimed title, giving the dates and amounts of the payment for each year, with interest at six per cent, per annum; also to take testimony and report how much and what kind of timber was cut and removed by appellee from the land, and the value thereof, with interest on the amount of the value, from the date the timber was removed.

The master took the evidence under the reference and on March 10, 1909, made a report concerning the matters embraced in the reference, which was approved by the court and a decree entered against the appellee in the sum of $15,461, and all costs, including a master’s fee of $500. From this decree the appellee appealed to the Supreme Court of Arkansas where the decree was affirmed, but it was modified by reducing the master’s fee to $250. The appellee afterwards, on April 2, 1910, satisfied this decree in full.

The ruling of the court striking the amended affidavit of merits from the files and the pleas filed in connection therewith is assigned by appellant as error, and she contends that this action is not a suit on a contract for the payment of money and therefore does not come within the provisions of section 55 of the Practice Act, whereby the plaintiff in a suit may file with his declaration an affidavit showing the nature of his demands, and the amount claimed to be due from the defendant, and thereby compel the defendant to file an affidavit of merits which must specify the nature of his defense, and show that he has a good defense to the whole or a portion of the plaintiff’s demand; and it is further contended that the matters which are set up in the affidavit of merits constituted a good defense to the appellee’s demand.

In reference to the first question raised,, it may be said that a covenant is a species of express contract. (Vol. 2, Chitty’s Blackstone, 126; Clark v. Devoe, 124 N. Y. 120; 11 Cyc. 1042.) And the covenant involved in this case expressly provides for the payment of money in the event of the breach thereof, thus coming clearly within the rule laid down by the Supreme Court in Coursen v. Browning, 86 Ill. 57; Mestling v. Hughes, 89 Ill. 389; Myers v. Shoneman, 90 Ill. 80. This is a suit, therefore, based upon an express contract for the payment of money.

The appellant’s position that the affidavit contained matters which constituted a good defense to appellee’s demand is equally untenable. One of the defenses alleged in the affidavit is that the action was barred by the ten-year limitation of the Illinois act, because the land conveyed by the warranty deed in question was wild and uncultivated land, and that the constructive possession of said land was in one A. H. Chatfield, who was the owner and holder of the legal title thereto, by reason of which fact the appellee was constructively evicted from the land, at the date of the giving of the deed, namely, the 22nd day of September A. D. 1902, which date was more than ten years prior to the commencement of this suit. And appellant contends in this connection that “where land is unoccupied, the possession follows the legal title and an outstanding paramount title in a third person at the time a deed is given, carrying, as it does, possession with it, amounts to a constructive eviction, and there is a breach of all the covenants of warranty, eo instanti, and the statute runs from the date of the deed.” But no allegation appears in the affidavit from which the inference can be legally drawn that the land was unoccupied; that the appellee did not take actual possession of the land after the execution and delivery of the deed in question. In the absence of such averment, it must be presumed that the land was occupied, and that appellee did take possession of the land; as the evidence shows it did, and that it was actually evicted therefrom subsequently, that is to say, about May 1, 1908. No breach of the covenant, therefore, occurred, and no cause of action accrued to appellee until the time .it was actually evicted by the holder of the paramount title, and it could not have maintained suit against the grantors until that time. (Scott v. Kirkendall, 88 Ill. 465; Moore v. Vail, 17 Ill.185; Roberson v. Tippie, 126 Ill. App. 582.) The statute of limitations did not begin to run until the cause of action had accrued to appellee. (Davis v. Munie, 235 Ill. 620.)

The other defense specified in the amended affidavit of merits is that the appellee’s action was barred by lapse of time, because the Statute of Limitations of the State of Arkansas barred actions of this character after the lapse of five years, and appellant claims that by virtue of section 20 of the Illinois Limitation Act (J. & A. Tf 7215) the Arkansas statute applied. It is well settled, however, that the Arkansas statute of limitations does not apply unless the parties were nonresidents of Illinois at the time the cause of action accrued. This is the construction placed upon section 20 of the Illinois Act by the courts of review in this State. (Davis v. Munie, 235 Ill. 620; Wooley v. Yarnell, 142 Ill. 442, 46 Ill. App. 112; Berry v. Krone, 46 Ill. App. 82; Story v. Thompson, 36 Ill. App. 370.)

There is no averment in the affidavit that the appellant and appellee were nonresidents of Illinois at the time the cause of action accrued.

For the reasons stated, the trial court did not err in striking the amended affidavit of merits and appellant’s pleas from the files.

Upon the hearing for the assessment of damages, the court allowed the sum of $10 per acre for the 640 acres of land conveyed to appellee, and six p.er cent, interest on the total sum from the date of the deed, September 26, 1902. The court also allowed the amounts, with interest, claimed by appellee as a part of the cost of litigation in the State of Arkansas, but limited the cost of the litigation, and attorneys’ fees which appellee had incurred and paid, to the items which accrued prior to the redocketing of the case and the reference to the special master for the accounting for timber removed, and the court refused to allow attorneys ’ fees and expenses of the litigation which appellee had incurred and paid after the reference to the master. The court also refused to assess as damages the amount of the general and levee taxes which appellee had paid, and for which appellee had already received credit in the accounting before the master. And the refusal of the court to allow appellee these additional damages claimed is assigned as cross errors.

The court allowed the appellant a set-off of $644 as a credit on the amount of appellee’s damages. This set-off was the sum total of taxes and interest thereon which had been paid by the predecessors of appellee in the title claimed. The amount of these taxes and interest had been allowed to appellee as a credit on the sum found to be due for the timber it had taken from the land in question. The allowance of this set-off is also assigned by appellee as a cross error.

We are of opinion that the court did not err in allowing interest on the sum of money to which appellee became entitled under the terms of the covenant from the date of the deed containing the covenant. Where a contract for the payment of money contains a stipulation for the recovery of interest but does not, either expressly or impliedly, fix a time from which such interest is to be computed, the interest should be computed from the date of the contract. (22 Cyc. 1538; 6 Am. & Eng. Encyc. of Law, 1040; Miller v. Cavanaugh, 99 Ky. 377; Graham, v. Burgiss, 78 S. C. 404, 59 S. E. 29; Smith v. Goodlett, 92 Tenn. 230, 21 S. W. 106.)

Considering the cross errors assigned by appellee, we are of opinion that the court properly refused to allow appellee, as a part of the damages to be recovered, the amount of the general taxes and levee taxes paid by it. These taxes had already been allowed to the appellee in the accounting before the master in chancery in Arkansas, as a credit against the amount due for timber taken from the land in question, and appellee had been reimbursed thereby for the taxes so paid, and they were no longer a subsisting claim against the appellant at the time its damages were assessed. But the court should have allowed all reasonable attorneys’ fees and the entire cost of the Arkansas case, which the appellee had incurred and paid in the defense both before and after the case had been remanded and redocketed by the order of the Supreme Court of Arkansas. The matter of accounting was a part of the case involving the title of the land, which appellee had to defend against. Appellee had removed the timber, which was a part of the land, on the assumption that it had title to it under appellant’s deed and warranty, and the same question of the title was involved in the right to the timber as to the land itself. The Osceola Land Company having established its paramount title to the land had a legal right to recover the timber or the value of the timber taken, and the accounting for the timber taken was a part of the suit for the recovery of the land and a necessary part of the defense involved in the case.

The right to recover reasonable attorneys’ fees and the cost incurred and paid by appellee in the Arkansas litigation being based upon an instrument in writing, appellee is also entitled to recover interest on the payments made in that regard, at the rate of five per cent, per annum, from the date of payment under section 2, chapter 74, of the Revised Statutes (J. & A. ¶ 6691). Elgin, J. & E. Ry. Co. v. Northwestern Nat. Bank, 165 Ill. App. 35; A. B. Dick Co. v. Sherwood Letter File Co., 157 Ill. 325; Holmes v. Standard Oil Co., 183 Ill. 70; People v. Pacific Surety Co., 155 Ill. App. 586; Leman v. United States Fidelity & Guaranty Co., 137 Ill. App. 258.

We are of opinion that the trial court erred in allowing the appellant the set-off of $644 on account of faxes paid by appellee’s predecessors in title. If appellant was entitled to recover for this claim, which may well be doubted, it could not do so except as a matter of defense under a plea of set-off. Appellant being in default, however, the only question that remained for the court to inquire into was the amount of appellee’s damages. (Town of South Ottawa v. Foster, 20 Ill. 296; Herrington v. Stevens, 26 Ill. 298; Sandoval Zink Co. v. Hale, 133 Ill. App. 196.)

While appellant had a right, though defaulted, to introduce evidence tending to reduce the amount of damages claimed, she was not entitled to introduce evidence by way of set-off. (Barnes v. Sisson, 44 Ill. App. 327; Jerseyville Shoe Mfg. Co. v. Bell, 125 Ill. App. 496; Sandoval Zink Co. v. Hale, supra.) It is apparent, therefore, the judgment rendered is not for the proper amount of damages to which the appellee is entitled and is partly erroneous. This court has power to render such a judgment as the trial court should have rendered. (Minnesota Mut. Life Ins. Co. v. Welsh, 131 Ill. App. 103; Manistee Lumber Co. v. Union Nat. Bank, 143 Ill. 490.)

The C. D. Boynton Estate and Elmer E. Boynton, together, have paid appellee in liquidation of its claim, on March 13, 1914 ......................................................$ 6,666.66 ;

and the trial court therefore properly took the date of this payment, and the payment, as the basis for the adjustment of the damages.

The court allowed as damages: $10.00 per acre for the 610 acres of land................$ 6,400.00

and six per cent, interest on $6,400 from date of deed, September 26, 1902........................................ 4,402.13

and the cost of litigation, prior to remanding and redocketing the case, May 1, 1908, with five per cent, interest from the dates of payment of the various items, to March 13th 1914.................................................. 1,021.11

Total..............$11,823.24

To this should be added the following additional items of reasonable attorneys’ fees paid, and necessary cost incurred in defense of the Arkansas case, and five per cent, interest from the date of payment of the same to March 13th 1914, viz.:

1908.

(From date of payment to March 13th, 1914)

Sept. 26, W. C. Gilbert’s expenses...............$ 5.00

Interest .............................. 1.37

Sept. 30, M. L. Mathis, expenses................ 3.25

Interest .........................*..... .88

Oct. 19, W. C. Gilbert’s expenses................ 5.00

Interest .............................. 1.35

Nov. 30, W. J. Lamb, attorney, expenses......... 26.00

Interest .............................. 6.88

1909.

April 20, Premium on appeal bond............... 80.00

Interest .............................. 19.49

Sept. 30, W. J. Lamb, court costs................ 11.50

Interest .............................. 2.58

1910.

Jan. 31, W. C. Gilbert’s expenses................ 25.00

Interest .............................. 5.15

Jan. 31, W. J. Lamb, printing briefs............ 31.50

Interest .............................. 6.49

March 28, Copy of opinion, Ark. Sup. Court........ 1.50

Interest ...............................30

March 31, J. C. Coston, court costs:

($80.50 of a total of $426.25 shown under this date was .on account of costs, first appeal; and the trial court allowed the $80.50, thus leaving balance of) ____'....................... 346.75

Interest ........................... 68.28

March 31, W. C. Gilbert’s expenses................ 10.00

Interest .............................. 2.00

April 30, W. J. Lamb’s fees and expenses......... 276.25

Interest .............................. 53.44

July 30, W. J. Lamb, court costs.-............... 42.85

Interest ............... 7.75

- $ 1,040.56

Which makes the total amount of appellee’s damages, - on March 13, 1914.............................. $12,863.80

Deducting from this sum the payment of $6,666.66 - made by C. D. Boynton Estate and Elmer E. Boynton, leaves a balance due as of that date of....... $ 6,197.14

And appellee is entitled to five per cent, interest on this balance from the date of the adjustment, March 13, 1914, to the date of the judgment here, which amounts to the sum of.......................... $ 630.89

and this should be added to the above balance. The - judgment entered here, therefore, should be for____ $ 6,828.03

The judgment of the trial court is therefore reversed in part, on cross errors, and it is ordered that judgment he entered in this court in favor of appellee against the appellant for $6,828.03.

IReversed in part on cross errors, rnd judgment in this court.


author: Mr. Presiding Justice Dibell

text:
    Harry E. Jarvis, Appellee, v. G. & J. Coal Company, Appellant.
    Gen. No. 6,203.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 33

      —token description of premises in lease is not erroneous. Where premises intended to he leased were correctly, completely and precisely described in the lease by boundary monuments, held that the lease was not rendered void by a purported description therein also of the lands according to legal sectional subdivisions which was erroneous.
    2. Notice, § 13

      —when possession of surface of land is notice of rights to land underneath surface. Possession of the surface of land is possession also of the land underneath the surface, and is notice to every one of the rights of the possessor.
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1916.
    Rehearing denied October 5, 1916.
    Statement of the Case.
    Action by Harry E. Jarvis, plaintiff, against Gr. & J. Coal Company, defendant, to recover a rental of fifteen dollars per year for the years ending July 22, 1913,1914 and 1915, for certain coal mining rights beneath the surface of certain lands pursuant to a written lease. From a judgment for plaintiff, on trial by the court without a jury, defendant appeals.
    I. I. Hanna, for appellant.
    E. A. Green, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

3. Corporation's, § 175 —when withdrawing stockholder may not buy adverse interest. Where certain stockholders in a corporation took for the corporation in their own names a lease of the right to haul coal through all entries, passages and openings in certain land, which lease they thereafter assigned to the corporation, held that one of such stockholders would have the right, after his withdrawal from the corporation, to buy the lessor’s interest in the lease and his mining rights in the land, and to enforce the payment of rent under the lease against the corporation as assignee of the lessees therein.


author: Mr. Justice Niehaus Per Curiam :

text:
    Frank H. Hayes, Administrator, Appellee, v. Chicago, Ottawa & Peoria Railway Company and Andrew Ward and Joseph Orr, copartners, trading as Ward & Orr, Appellants.
    Gen. No. 6,185.
    1. Master and servant, § 856

      —when relation of independent contractor exists. The right under a construction contract of the party for whom the construction is to be done to forfeit or abrogate the contract does not create the relation of master and servant between the parties, nor the right under such contract of such party to exercise supervisory control over the character, quality and quantity of the work change an independent contractor into such party’s servant.
    2. Master and servant, § 857

      —when relation of independent contractor is not affected by control of work. Where a construction contract taken as a whole showed there was no intention that the party for whom the work was to be done should have any control over the contractor’s individual employees or the details of the work, held that a provision in the contract that the contractor should carry on the work in such manner and at such time and place as such party should direct would not take from the contractor the right to select, direct and discharge his own men, and would not militate against his independence as a contractor.
    • 3. Master and servant, § 856

      —when subcontractor is an independent contractor. Where a contract for the construction of a railroad provided that the contractor should carry on the work in such manner and at such time and place as the railroad company should direct, and that all subcontracts should be upon the same form, terms and conditions as the original contract, held, in an action against the company, the original contractor and a subcontractor for blasting work to recover damages for the death of a party by reason of alleged negligence in such blasting, that the subcontractor was an independent contractor, and neither the company nor the original contractor would be liable for negligence by the subcontractor’s employees.
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stougii, Judge, presiding. Heard in this court at the October term, 1915.
    --Reversed and remanded.
    Opinion filed August 10, 1916.
    Rehearing denied October 5, 1916.
    Duncan & O’Conor, Frank M. Cox and B. J. Fellingham, for appellants.
    J. W. Bausch, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This action resulted from the death of William Youngren, who was struck and fatally injured by a stump which was blasted out of a borrow pit on the right of way of the Chicago, Ottawa So Peoria Bailway Company at a point between the City of Morris and the Village of Seneca. The suit as originally brought was by Frank H. Hayes, as administrator of the estate of William Youngren, and against the Chicago, Ottawa & Peoria Bailway Company and E. S. McMillan; but afterwards the Chicago, Bock Island & Pacific Bailway Company and Ward & Orr were also made defendants, and two additional counts to the declaration were filed, which contain the charges of negligence upon which the case was tried. No service was had upon the defendant E. S. McMillan.

At the time of his injury Youngren was looking after the safety and repair of telegraph wires, which were strung on poles located on the right of way of the Chicago, Rock Island & Pacific Railway Company, and adjacent to the point where blasting was carried on.

The first of the two additional counts charges that the Chicago, Ottawa & Peoria Railway Company was possessed of a certain right of way extending from the City of Ottawa to the Village of Crotty (also known as Seneca) and the Chicago, Ottawa & Peoria Railway Company and Andrew Ward and Joseph Orr, copartners as Ward & Orr, and E. S. McMillan, were, on the 17th of October, 1909, engaged in constructing a right of way roadbed; and, in order to carry on said business, the parties defendant owned, were possessed of and used ordinary drills and high and dangerous explosive powders and dynamite in blasting stumps, rocks, stone and other material; and that the Chicago, Rock Island & Pacific Railway Company on the date mentioned, owned, possessed and controlled a certain railway which ran contiguous to and parallel with the roadbed and right of way of the Chicago, Ottawa & Peoria Railway Company, and that the deceased, William Voungren, on the date mentioned, was in the employ of all of the defendants, and while in such employ was rightfully in and upon the right of way and roadbed of the Chicago, Ottawa & Peoria Railway Company; that the defendants used great quantities of dynamite and that in the ordinary use of the same, when ex-1 ploded and discharged, great quantities of stumps, rocks, stone and other debris would be discharged and fly in all directions, all of which was well known to the defendants; that it was the duty of the defendants to afford and provide deceased with a safe place while he was in their employ where he might safely discharge his work, and that it was the duty of the Chicago, Rock Island & Pacific Railway Company to warn and instruct him of the dangerous and perilous position in which he was placed under its orders and directions, and that it was the duty of the Chicago, Ottawa & Peoria Railway Company and of Andrew Ward and Joseph Orr, and E. S. McMillan, to use reasonable care and caution to warn the deceased, who might then be in a position to be injured by the explosion of dynamite, that the explosion was about to take place; and further avers that while the deceased was in the exercise of due care for his own safety in discharging the duties imposed upon him by the defendants, without knowledge, or means of knowledge, that an explosion was about to occur, and in a position where the defendants knew he was likely to be injured, without warning him that an explosion was about to take place, or giving him sufficient time to escape to a place of safety, the defendants carelessly and negligently exploded a large amount of dynamite, towit, twenty-five pounds, which explosion caused rocks, stumps, etc., to strike and injure the deceased with such force that he was killed.

The particular negligence charged in the second additional count of the declaration is that, in the prosecution of the work mentioned, an unnecessary amount of dynamite, towit, thirty-five pounds, was used by the defendants, and that the deceased, while engrossed in his work and without any knowledge, or means of knowledge, that a great and unusual amount of dynamite was about to be used, the- defendants without warning the deceased of the great and unusual amount of dynamite to be used, and without giving him an opportunity, before exploding the dynamite, to get to a place of safety, carelessly and negligently exploded said dynamite, and thereby the deceased was struck and killed.

The proof shows that the Chicago, Ottawa & Peoria Railway Company during the summer and fall of the year 1909 was engaged in building a line of railroad to be extended from Seneca, in LaSalle county, to Morris, in Grundy county; that the Central Illinois Construction Company, which for the purposes of this case is admitted to be the same company as the Chicago, Ottawa & P'eoria Bailway Company, let contracts for grading on the right of way for the purpose of laying the ties and railroad track'on this extension; that on or about the 1st of June, 1909, this company entered into a written contract with Andrew Ward and Joseph Orr, as copartners, for grading the roadbed preparatory to laying the superstructure, the work to be finished in the best and most workmanlike manner and in conformity with the certain specifications and conditions annexed to the contract, and expressly made a part thereof. Ward & Orr sublet part of their contract to E. S. McMillan, which part was the grading of a roadbed for a distance of 3,300 feet between Seneca and Morris, and it was on this part of the right of way which McMillan was constructing that the deceased received the injuries from which he died.

The original contract awarded to Ward & Orr contained the provision that all subcontracts should be written on forms identical in terms and provisions with the original contract, and that a duplicate and original of such subcontract, properly executed by the parties, should be delivered to the chief engineer of the company after his written assent thereto had been secured ; and it also contained the provision that the contract should not be assigned, nor any portion of the work subcontracted, without the written consent of the chief engineer .of the company. The evidence does not show that in letting the subcontract to McMillan these provisions in the original contract were complied with; but the subcontractor was performing his work under a verbal contract with Ward & Orr and with the knowledge, acquiescence and consent of the construction company, and it must be assumed from the evidence that the work performed by McMillan was to be performed on the basis of and in accordance with the terms and provisions of the original contract between the construction company and Ward & Orr.

The case was tried by jury, and at the conclusion of the plaintiff’s evidénce the court directed a verdict in favor of the Chicago, Bock Island & Pacific Bailway Company, then the case was afterwards submitted to the jury on the question of the liability of "the appellants, the Chicago, Ottawa & Peoria Bailway Company, and Andrew Ward and Joseph Orr. The jury returned a verdict in favor of the appellee for $3,500 against both of the appellants, and a judgment was rendered on the verdict, from which judgment this appeal is prosecuted.

Various questions of law and fact are raised on this appeal. But the controlling question upon which all other questions of liability depend is whether or not the defendant, E. S. McMillan, in carrying out his contract, was an independent contractor. If he was, then in this action he alone would be liable for the negligence of his employees.

It is insisted by appellee that neither McMillan nor Ward & Orr were independent contractors, but that certain terms and provisions in the original contract, which they were carrying into effect, made them so dependent upon and subservient to the Chicago, Ottawa & Peoria Bailway Company that the doctrine of respondeat superior applies, and that therefore the railway company is liable as master for the negligence charged in the declaration. The particular terms of the. original contract which appellee contends transformed Ward & Orr and E. S. McMillan from independent contractors into servants of the railway company are specified as follows, namely: The clause which makes time the essence of the contract; the clause which provides that the contractor will carry on and prosecute the work in such manner, at such time, and at such places or points, as the chief engineer of the company shall direct, and will complete and prepare for the superstructure any portion of the work that may be required by the chief engineer of the company ; also the clause which forbids the subcontracting of any part of the work without first obtaining the written consent of the engineer; and the clause that all subcontracts must be written on forms identical with the original contract, and a duplicate and original subcontract be furnished to the engineer; the clause which provides that the contractor shall remain responsible to the company for the proper performance of the work, notwithstanding any subcontracts; the clause which provides that such engineer may, on ten days’ written notice, suspend operations, reduce the working force from time to time, at any particular point or points, or upon the whole work, such suspended work to be again resumed, either in whole or in part as the chief engineer of the company may think proper, and upon receipt of three days’ written notice from the chief engineer of the company that the suspended operations are to be resumed; and the clause that requires that the contractor shall within three days resume work upon the contract and diligently carry on the same; and the clause whereby the engineer, may forfeit the contract for imperfect work and eject the contractor from the works using such force as may be deemed necessary for the purpose; the clause by which the company shall also have the right, upon forfeiture of the contract, to employ such force and means as in the judgment of its engineer shall be necessary to complete the work in the manner and within the time provided for in the contract, and that the cost and expense thereof shall be paid by the contractor, and that the company may use in completing such work not only the horses and mules, machinery and other plate and materials provided on behalf of the company, hut also such as may have been or may be provided by or on behalf of such contractor; also the clause by which the company has the right to stop the work contracted for and cancel the entire contract by giving ten days’ written notice; and the clause by which the company is given power to cancel and annul the contract on failure of the contractor to comply with the provisions of the contract, and in such event that the contractor shall have no claim or demand whatever against the company for damages, or for compensation; and the clause by which it is agreed that the chief engineer of the company shall be constituted and appointed an umpire to finally settle all questions in case of dispute or misunderstanding between the parties in relation to any of the stipulations and provisions contained in the contract, and of the specifications annexed, and of the plans, profile and drawings relating thereto, or in the matter of the performance of the contract; and finally the clause by which it is agreed that the chief engineer shall have power to appoint the necessary assistant engineers and other agents who shall possess the same power as the chief engineer, in reference to the contract.

It is apparent that none of the provisions referred to interfere with the independence of the contractor or subcontractor while actually carrying into effect the contract, in the employment of the men or the means by which the contractor or subcontractor might see fit to accomplish the results provided for by the contract. Special emphasis is laid upon the reservations in the contract by which it is agreed that the company shall have the right to limit the number of men to be employed and the time and place and manner of doing the work, and the right of the company to forfeit the contract for imperfect work, or abrogate it entirely upon notice. It is clear, however, that the right to forfeit or abrogate the contract did not create the relation of master and servant between the parties; nor does the right to exercise a supervisory control over the character, quality and quantity of work change an independent contractor into a servant of the other party to the contract. (Foster v. City of Chicago, 197 Ill. 264.)

The stipulation in the contract that the contractor will carry on and prosecute the work in such manner at such times and at such points or places as the chief engineer of the construction company shall direct, and will complete and prepare for the superstructure any portion of the work that may be required by the chief engineer, must be construed in connection with all the other provisions of the contract to arrive at its meaning, and when so construed it is apparent that it has reference to the work of the contractor as a whole, and is not intended to give any control to the company over the individual employees of the contractor; nor does it give the construction company any control over the details of the work to be done by the contractor; nor the means, mechanical or otherwise, by which the work may be accomplished. There is nothing in this provision which takes from the contractor the right to select his own men and to direct their labors and to discharge them if negligent in the performance of their work; and hence it does not militate against his independence as a contractor. (Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100.)

What the contract contemplated in giving the right of direction and supervision to the chief engineer of the company was to effect the kind of grading which would result from carrying out the contract in question with reference to its being done in the best and most workmanlike manner and according to the specifications designed for the work, such work to be taken as a substantive whole. The grubbing of stumps was incidental to the grading to be accomplished; and even if it may be assumed that the construction company, under the clause referred to, could have prevented the grubbing by blasting and eonld have compelled the substitution of other means, yet it must be remembered that it is not the blasting as such, which is complained of, in the declaration, but certain specified negligence which the appellants are alleged to have been guilty of in connection with such blasting. It is clear, therefore, that the men engaged in the blasting were the employees of the subcontractor and under his sole control, and that the means employed by them in the grubbing were under the sole control of the- subcontractor. Neither Ward & Orr nor the railway company had any control over the kind of men to be employed or the conduct of the men employed in the work of blasting. They were employed by McMillan for that purpose and his employees only. McMillan under his contract was bound to furnish his own labor and such labor was under his sole control; he must, therefore, be regarded as an independent contractor. (Rosenbaum Bros. v. Devine, 271 Ill. 354.)

It is clear that neither the Chicago, Ottawa & Peoria Bailway Company nor Ward & Orr could be legally liable for negligence of McMillan’s employees. The judgment in this ease against the appellants is therefore erroneous and should be reversed.

Judgment reversed and cause remanded.

Additional Opinion on Behearing.

Per Curiam :

In his petition for a rehearing, appellee asks that if we deny the rehearing we so modify the judgment as to reverse the judgment without remanding the cause, so that he may have an opportunity to remove the cause to the Supreme Court, as McMillan is a bankrupt and appellee does not desire judgment against him. Accordingly the rehearing is denied but our former judgment is so modified as to reverse the judgment of the court below with the following finding of facts:

We find that 'the death of plaintiff’s intestate was caused by the acts of employees of E. S. McMillan, and not of the other defendants, and that McMillan was an independent contractor and that the other defendants are not responsible for his acts.


text:
    Susan K. Antrim, Appellee, v. A. M. Legg, Executor, Appellant.
    Gen. No. 6,213.
    1. Judgment, § 401

      —when finding acquitting defendant of negligence is an adjudicated matter. Where no motion was made to set aside a verdict acquitting a defendant of negligence charged against him or for a new trial on that ground, or appeal prayed from the judgment on such verdict, held that such finding was an adjudicated matter.
    2. Master and servant, § 848

      —when master not liable for alleged negligence of servant. A master cannot be held liable for alleged negligence of his servant after the latter’s acquittal of the charge.
    Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard 'in this court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed August 10, 1916.
    Rehearing denied October 5, 1916.
    H. E. Torrance and E. A. Simmons, for appellant.
    F. A. Ortman and Lyle M. Shelly, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This case was considered by this court on a previous appeal and reversed and remanded for another trial. (Antrim v. Noonan, 186 Ill. App. 360.) The opinion in the previous appeal fully states the facts involved in the litigation.

Upon the second trial, after the remanding order, the defendant Thomas Noonan was found not guilty by the verdict of the jury; and, in the same verdict, the appellant, A. M. Legg, executor of the estate of Adele. L. M. Carothers, was found guilty and plaintiff’s damages were assessed at $3,500. The court rendered judgment on the verdict of the jury, and this appeal is prosecuted from the judgment rendered against the appellant, A. M. Legg, as executor.

The appellant insists that the declaration upon which the case was tried seeks to establish a liability on the part of the deceased testatrix, under the doctrine of respondeat superior; that is to say, that she was liable, because the negligence charged in the declaration was the negligence of her servant and employee, Thomas Noonan; and that inasmuch as the jury, by their verdict, have found that her servant and employee, Thomas Noonan, was not guilty of the negligence charged, she cannot be held liable for the negligence of which her servant and employee was acquitted.

The declaration in this case consists of nine counts, and it is charged in each of seven counts that Thomas Noonan was the driver or chauffeur or servant of the deceased intestate, Adele L. M. Carothers; and, as such driver, chauffeur or employee, he drove her automobile at a high and dangerous rate of speed; and that in consequence of this alleged negligence, the appellee was injured and damaged. In two counts, namely, the sixth and seventh, it is alleged that the defendant Noonan, as the servant of Adele L. M. Carothers and Adele L. M. Carothers as owner, carelessly and negligently permitted the brakes of the automobile to become out of repair, so that they would not act promptly and stop said automobile within a reasonable distance, when applied for that purpose: and that, in consequence thereof, the appellee was injured. No evidence, however, was offered to sustain these two counts; and at the conclusion of the case the court instructed the jury that there was no evidence before the jury to sustain the allegations of the counts mentioned, so that the case went to the jury to be determined upon the other seven counts, which based the liability of Adele L. M. Carothers, deceased, solely upon the negligence of her employee and servant, Thomas Noonan.

No motion was made to set aside the verdict of the jury acquitting Thomas Noonan of negligence, nor was any new trial asked on that ground, and no appeal was prayed from the judgment on the verdict acquitting Noonan, so that the finding of the jury, that Thomas Noonan was not guilty of the negligence charged in "the declaration, must be regarded as an adjudicated matter; and the question is therefore fairly raised in the record whether, under these circumstances, the estate of Adele L. M. Carothers can be held liable.

There are decisions in some states to the effect that a master can be held liable on account of the negligence of his servant, even though the servant may be acquitted of such negligence, but the Supreme Court of this State has sanctioned the contrary doctrine, which also has the approval of the courts of review in most of the other States. Under the circumstances, as presented in this record, the master or principal cannot be held. (Hayes v. Chicago Tel. Co., 218 Ill. 414; Anderson v. West Chicago St. R. Co., 200 Ill. 329.)

In the case of Hayes v. Chicago Tel. Co., supra, our Supreme Court quote with approval the language used by the Supreme Court of Washington, in the case of Doremus v. Root, 23 Wash. 710, which has also special application to the case at bar: “In such an action, whether brought against the employer severally or jointly with the employee, the gravamen of the charge is, and must be, the negligence of the employee; and no recovery can be had unless it be proved and found by the jury that the employee was negligent. Stated in another way: if the employee who causes the injury is free from liability therefor, his employer must also be free from liability.” “So, too, from the principle that there can be no liability on the part of an employer for the act of his employee in which he took no part, if the employee is free from liability, it follows that a judgment in favor of the employee in an action brought against him for an injury caused by such an act is a bar to a recovery against the employer in an action brought against him for the same cause of action.”

For the reasons stated, it is evident that the judgment against appellant is erroneous and must be reversed, and it is not necessary to discuss the other assignments of error.

Judgment reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find that Adele L. M. Carothers, deceased, was not guilty of the negligence charged in the declaration.


author: Mr. Presiding Justice Niehaus

text:
    William H. Frederick, Appellee, v. City of Peoria, Appellant.
    Gen. No. 6,260.
    1. Municipal corporations, § 120

      —when formal' approval of bond of police officer does not affect its validity. A surety company bond given by a police officer, as required by a city ordinance, is a valid and subsisting obligation, upon continued payment of the yearly premiums thereon, notwithstanding it was not formally approved by the city.
    2. Municipal corporations, § 135

      —when certificate of appointment as police officen is admissible in action for salary. A certificate regularly issued to a police officer by a board of fire and police commissioners of a city, certifying to his appointment by the board as such officer, is competent and admissible evidence in an action by him to recover salary claimed to be due him as such officer.
    3. Municipal corporations, § 131

      —when status of police officer is not affected by failure to renew oath of office. Where a police officer of a city was regularly issued a certificate by the board of fire and police commissioners of the city of his appointment as such officer, gave bond as required by the ordinances of the city, which he renewed from year to year by payment of the annual premium thereon, and took the required oath of office when first appointed as such officer, held that such officer was to all intents and purposes a legal officer of the city, notwithstanding he did not, under instructions of his superior officer, renew each year his oath of office, and such fact could not be taken advantage of by the city to defeat his claim for salary.
    4. Municipal corporations, § 135

      —when city is estopped from denying that police officer is entitled to salary. Where a city paid a police officer a certain amount as salary and deducted therefrom a certain per cent, as a legal contribution for the pension fund, held that this would be a conclusive admission by the city that the amounts paid were the correct amounts to which such officer was entitled as salary, and by regularly paying such officer his monthly salary as an officer the city would be in effect estopped from denying he was legally entitled to such salary.
    5. Municipal corporations, § 135

      -—when 'deduction from salary of officer may not be made. A city has no right to withhold from a police officer a part of his salary on account of his absence from duty when he was sick.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Rehearing denied October 5, 1916.
    R. H. Radley, for appellant.
    Sucher & Moore and Kirk & Shurtleff, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This suit was instituted by the appellee, William H. Frederick, in the Circuit Court of Peoria county, against the City of Peoria, to recover $239.53, which he claimed as a balance due him, on account of salary, as patrol officer in the police department of the City of Peoria. The case was tried by the court without a jury, and the court found in favor of the appellee, and gave him a judgment against the city for the sum of $239.50; from this judgment appellant appealed.

It is not disputed that the appellee served the city as a patrolman, but it is claimed by the appellant that the proof does not show that appellee was an officer de jure and in order to establish a right to recover a salary, as an officer, it is necessary that there should be proof that he was an officer de jure and not merely a de facto officer.

The appellee was 'first appointed as a police officer in November, 1905, and qualified as such officer by giving the bond required by the ordinances of the city, and taking the required oath of office. He served as a police officer continuously until June, 1909, when he was laid off from service by the chief of police, his superior officer, until January, 1910, having, however, been assigned to some special work in the fall of the year 1909. In January, 1910, the appellee was again assigned to duty by the chief of police, and then served continuously as a patrol officer (except where sickness intervened) until the 14th of April, 1913.

Commencing with October, 1911, until April 13, 1913, there were certain periods of time when appellee was disabled from performing service as an officer by attacks of inflammatory rheumatism, a disease which he had contracted during his service for the city. During all the time that he served as police officer for the city, the city regularly paid him his monthly salary, but, in the last three years of such service, deducted therefrom certain amounts for the time that he was laid up on account of sickness. Appellee testified that in this way he was “docked” from October 15 to October 31,1911, $25.25; from November 1 to November 15, 1911, $37.50; from January 1 to January 15, 1913, $7.35; from September 16 to September 30, 1912, $5; from October 1 to October 15, 1912, $15; from October 15 to November 30, 1912, $112.50; and from April 1 to April 14, 1913, $36.92; a total of $239.52.

Appellee’s first appointments to office were made by the mayor of the city, with the approval of thé city council, but on the 5th day of April, 1910, the City of Peoria adopted the Act of the General Assembly, providing for the appointment of a board of fire and police commissioners; and in conformity with this act the mayor, on the 26th of April, 1910, appointed a board of fire and police commissioners, consisting* of John Newsam, P. A. Wendell and F. B. Dalzell, and this board was regularly approved by the city council. The appellee received his last appointment, which directly relates to this controversy, by this board of fire and police commissioners. The board, in the regular course of the official business, issued to him a certificate authenticating the fact that he had been examined by the board, as to his qualifications for the position of patrolman, had passed the necessary examination, and had been appointed and confirmed, by the board as such patrolman, with all the rights, powers and duties which by law pertain to that office.

The appellee had, under a previous appointment, in March, 1908, filed in the office of the city clerk a surety company bond, in the sum of $1,000, in accordance with the requirements of the city ordinances. After his appointment by the board of fire and police commissioners, and during the years covering the matters in controversy, he had renewed this official bond by the payment of the annual premiums, by which the bond was renewed. The bond filed in 1908, and by its renewal during the years 1911, 1912 and 1913, was a valid and subsisting obligation as an official bond of appellee, without the formal approval of such bond by the city, according to the principles enunciated by the Supreme Court in Ramsay’s Estate v. People, 197 Ill. 572. Appellee did not take his oath of office anew, because, as he testified, the chief of police, his superior officer, told him that he need not do so; that the oath previously taken would hold.

As evidence of the fact that he was regularly appointed as a police officer of the City of Peoria, the appellee offered in evidence the certificate of appointment, issued to him by the board of fire and police commissioners ; and appellant contends that the certificate was not competent evidence of appellee’s appointment to the office; that he should have proven such appointment by the records of the board. We are of opinion that the issuance of the certificate in question to appellee, which appears to have been done regularly in due course of the business of the board, though not especially required by law, was a proper official act of the board, for the purpose of furnishing the appellee with notice of his appointment, and the indicia of his authority to serve as a patrolman, and was competent evidence in a case of this kind brought to recover the salary pertaining to the office, to which the certificate shows he was regularly appointed. The certificate was therefore properly admitted in evidence.

We are of opinion that the competent and legal proof in the record not only shows that the appellee was legally appointed to the office of patrolman, but that he substantially complied with the requirements of'the city ordinances in giving an official bond; and that, while he did not renew his oath of office, he was to all intents and purposes a legal officer of the city, recognized as such by the city, and served as such for the city during the years 1910, 1912 and part of 1913. The fact that he failed to renew his oath of office under the instructions of his superior officer could not be taken advantage of by the city, under the circumstances detailed, to defeat his claim for his salary.

Appellant also contends that there is no competent evidence offered to show that the amount of appellee’s salary was fixed at. $70 during the time that he was' receiving $70 per month; and that there is no proof that it was raised to. $75 per month, and finally to $80 per month. We are of opinion that the fact, which appears in evidence and which is undisputed, that the city paid these respective amounts at the different periods, and also deducted therefrom the one per cent, legal contribution for the pension fund, under the law, is a conclusive admission by the city that the amounts so paid were the correct amounts to which the appellee was entitled as salary, and no other proof was necessary in the first instance to establish these facts. Moreover, the city, by regularly paying appellee his monthly salary as a patrolman, is in effect estopped to deny that he was not legally entitled to such salary. In this state of the proof the only real question left for determination is the right of the city to withhold from the appellee certain parts of the salary which the city was paying him, on account of absence from duty when he was sick. It has been clearly settled in this State that the city had no such right. (People v. Bradford, 267 Ill. 486.)

For the reasons stated, the court did not err in finding the issues in favor of the appellee, and rendering judgment in his favor, and the judgment should be affirmed.

Affirmed.


text:
    A. W. Weston, Appellee, v. John Hicks, Appellant.
    Gen. No. 6,304.
    1. Landlord .and tenant, § 249

      —when landlord not liable for negligence of tenant. A landlord cannot be held liable for the negligence of his tenant in the use and occupation of the leased premises.
    2. Landlord and tenant, § 249

      —when landlord voluntarily repairing awning not liable for negligence of tenant in lowering it. Where a tenant who was in the sole possession and control of an awning which was appurtenant to the leased premises allowed same to be lowered so that it was below the height required by a city ordinance, and the plaintiff was thereby injured, held that the landlord, who was under no agreement to make repairs or improvements to such awning, would not be liable in an action to recover damages for such injuries, notwithstanding he had voluntarily contributed to the expense of putting canvas on the awning.
    Appeal from the Circuit Court of Boone county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed with finding of facts.
    Opinion filed August 10, 1916.
    Rehearing denied October 5, 1916.
    William Biester and Covet & Roberts, for appellant.

      B. Jay Knight and James Hupp, for appellee; Karl J. Mohr, of counsel.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is an appeal from a judgment for $750 recovered by the appellee, A. W. Weston, in the Circuit Court of Boone county against John Hicks, appellant, for damages on account of alleged personal injuries suffered by appellee, in consequence of bumping into an awning which was attached to a building owned by appellant. As a ground for recovery, the appellee alleges in the first count of his declaration that at «the time of suffering the injury, and previous thereto, the appellant was the possessor of and had control of a certain two-story store building in the City of Belvidere; and that he kept and maintained in front of said building a certain awning, which when in a lowered condition projected out over the sidewalk; and that it was the duty of the appellant to keep the same, and the appurtenances thereof, in a good, safe and suitable condition; and that at the time of the injury, the awning had become out of repair, and had been lowered to such an extent as to be dangerous to persons passing along the street; and that it was the duty of the appellant to keep said awning high enough above the top of the sidewalk so that persons could pass under without danger; and that the appellant, while so possessed of said property and awning, and while in control of the same, wrongfully, carelessly and negligently suffered the same to be and remain in a lowered, dangerous and unsafe condition; and that while the appellee was using due care and caution for his own safety, he ran into and struck against the awning, and was thereby injured.

In the second count, the appellee charges that it was the appellant’s duty to keep and maintain the awning above the sidewalk at a height of seven feet, by the requirements of a city ordinance of the City of Belvidere, which appellant neglected to do.

. The proof shows that the awning in question was attached to iron arms, which were fastened to the building. James Devlin, who put up the awning in question, testified with reference to its construction as follows: “There is a roller that goes above the windows, all along the front part of the building; and canvas is tacked onto this roller; then there is a wood front-piece, and four projecting arms fastened into the building, and projecting out to the front-piece; and the canvas is put on the front wood piece with screw eyes.”

The awning was raised or lowered by means of a crank. When the awning was lowered properly, the iron arms holding the canvas would stand out at a level, and in that case the lowest part of the awning would be seven feet above the sidewalk. An awning of this character can be lowered to the extent of the length of the canvas on the roller, and in this case an extra lap of canvas had been tacked on the roller, and if all the canvas was unrolled, the awning could be lowered a foot and a half more than seven feet above the sidewalk. At the time of the injury to appellee it had been lowered to about five feet seven inches above the surface of the sidewalk, and appellee’s height was five feet ten inches.

The evidence also shows that appellant was the owner of the building, and that it was all leased to and occupied by tenants, and that the awning in question was appurtenant to the store appellant had leased to his tenant, Harry Brown; that Brown had the canvas put on the roller, to complete the awning for his use, and that the awning was used by and in the exclusive possession and control of Brown, as tenant of appellant. There was no agreement between appellant, as owner, and Brown, as tenant, by which appellant was bound to make any repairs or improvements with reference to the awning, or by which he could in any way control its use or possession, or by which he was bound to furnish the canvas which was necessary to complete the awning for use, but appellant did make a voluntary contribution of $5 towards the expense of putting on the canvas.

The proof clearly shows that appellee was not injured on account of any defect in the iron frame work, but on account of lowering the awning below the height required for safety, which was a matter entirely under the control of appellant’s tenant; and if it was negligence not to keep the awning at the height of seven feet above the sidewalk the negligence was that of the tenant. It is well settled that a landlord cannot be held liable for injuries resulting from the negligence of a tenant, in the use and occupation of premises leased. Our Supreme Court has stated the rule applicable to this class of cases to be as follows: “The landlord is not responsible for the misconduct or negligence of his tenants, even though occasioned by the manner in which the premises were constructed, provided they were capable of being used in a proper manner, whereby no injury could have resulted.” (West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210.)

It is apparent, therefore, that there is no cause of action against the appellant as landlord for the fault of his tenant in lowering the awning below the line of safety, and thereby causing an injury to the appellee. The judgment should therefore be reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find that the appellant was not guilty of the negligence charged in the declaration.


author: Mr. Justice Carnes

text:
    George E. Sadler, Appellee, v. Jacob P. Schnelbacher, Appellant.
    Gen. No. 6,287.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed with finding of facts.
    Opinion filed August 10, 1916.
    Rehearing denied October 5, 1916.
    Statement of the Case.
    Action by George E. Sadler, plaintiff, against Jacob P. Schnelbacher, defendant, to recover a commission as a real estate broker for effecting a lease of defendant’s premises. From a judgment for plaintiff for $7,500, defendant appeals.
    Plaintiff occupied an office with another real estate broker. They were not partners, but were frequently on opposite sides of deals. Plaintiff, learning from his office associate that the latter had a client wanting a business location, went to defendant, who showed plaintiff over his building and told plaintiff to have the party come there and he could do business. Plaintiff called again for more information which the party, through plaintiff’s associate, wanted, and thereafter the party came to the city and was introduced by plaintiff to defendant, and at a meeting in the office of defendant’s attorney a proposition for a lease was made by said attorney and at first accepted, whereupon plaintiff sug-gusted that defendant pay him a commission. Plaintiff’s testimony was conflicting as to whether defendant then refused to pay any commission or to pay the amount asked by plaintiff. He later refused to pay any. The lease was abandoned at that time because of a mistake in figures, and was later concluded elsewhere as a result of negotiations between the parties and said attorney in which plaintiff had no part.
    Abstract of the Decision.
    Brokers, § 88

      —when evidence insufficient to show contract for sale of property on commission. In an action by a real estate broker against the owner of a building to recover a commission on a leasing of the building, evidence held, insufficient to show any contract, express or implied, between plaintiff and defendant in relation to any service to be rendered by plaintiff for defendant in relation to the renting of defendant’s property or by defendant to pay plaintiff for any services rendered.
    William Jack and Winslow Evans, for appellant.
    George W. Sprenger, for appellee; Weil & Bartley, of counsel.

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

   Mr. Justice Carnes

delivered the opinion of the court.