text:
    David M. Swain et al., Appellants, v. Chicago, Burlington & Quincy Railroad Company, Appellee.
    Gen. No. 5427.
    1. Nuisances—when public. It is a public nuisance to obstruct or impede without legal authority the passage of any navigable river or waters.
    2. Nuisances—when individual may maintain action on account of. The general rule is, that a public nuisance can only be proceeded against by public prosecution. There is, however, the exception to the general rule, that when a person sustains from a common nuisance a special damage different from that common to all the public he may have an action for damages therefor, but the injury must be special and peculiar to him, and different in kind and not merely in degree.
    3. Nuisances—when obstruction of navigation does not confer right of action. A steamship company cannot successfully maintain an action against a railroad company which has obstructed the navigation of a river by the building of a bridge prior to the time that such company embarked in business. The deprivation of the use of the most economical route for the carrying of freight while establishing a damage is only a -damage of a kind common to the public as a whole and will not support an action.
    Action in case. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 6, 1911.
    Statement by the Court. This is an action in case begun by David N. Swain & Son against the Chicago, Burlington and Quincy Railroad Company in which plaintiffs seek to recover damages from the defendant for obstructing the navigation of the Illinois river by using, operating and maintaining a railroad bridge across the river near La Salle in such a manner as to prevent the navigation of the river by plaintiffs’ steamboats.
    The declaration consists of five amended counts and three additional counts. All the counts contain the following averments: that on September 3, 1909, and for more than five years prior thereto, plaintiffs owned and possessed a line of steamboats nsed during all said time to carry passengers and freight for hire on the Illinois river between the city of Peoria and various cities and towns along said river, and to points on said river beyond the city of La Salle as far as the city of Ottawa; that said river during all said time was, as far up said river as the city of Ottawa, a navigable stream leading into the Mississippi river, and as such a public highway free to the plaintiffs to use steamboats thereon between the cities of Peoria and' Ottawa, except for the obstruction of said river by the defendant; that' on September 3, 1909, and for more than five years prior thereto the defendant was possessed of, using and maintaining a certain railroad bridge across said river near the city of La Salle; that defendant prior to September 3,1904, was notified that plaintiffs were engaged in the business aforesaid, and that defendant’s bridge obstructed the free navigation of said river and injured and damaged plaintiffs’ business of carrying passengers and freight between Peoria and Ottawa; that it was the duty of defendant to so maintain said bridge as not to obstruct the free navigation of said river, but the defendant not regarding its duty did, during all said time, unlawfully maintain said bridge too low above the waters of the river to permit plaintiffs’ steamboats to pass under said bridge to points of destination above and beyond said bridge, whereby plaintiffs during all said time were compelled to unload below said bridge, their passengers and freight destined to points on the river above said bridge, and were compelled to expend large sums of money in unloading and transferring passengers and freight from below said bridge to their destination above said bridge, and in transporting passengers and freight from points above said bridge to below said bridge, and thereby plaintiffs were deprived of great gains and profits that they would otherwise have acquired and were otherwise injured and damaged in and about their business of carrying passengers and freight.
    The fourth and fifth counts and the additional counts aver frequent notice to defendant during the time complained of.
    The fourth and fifth counts aver that for many years prior to September 1904 the river was navigable for steamboats from Peoria to Ottawa.
    The three additional counts aver that the bridge was built in 1887, and that the river was before the construction of the bridge and still is a navigable stream, and that the bridge was unlawfully built without any draw and too low, and that the defendant took possession of and begun to use said bridge prior to September 3, 1904.
    The fifth count avers that the acts of the defendant are contrary to the statute.
    The defendant demurred to each count and specified special grounds of demurrer. The court sustained the demurrer to each count and rendered judgment against the plaintiffs, who appeal and assign for error the action of the court in sustaining the demurrer and rendering judgment in favor of the defendant.
    Sucher & McNemar, for appellants.
    Jack, Irwin, Jack & Miles, for appellee; Chester M. Dawes and J. A. Connell, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellee contends that because the state of Illinois by an Act of the Legislature passed in 1831, authorized the State Canal Commissioners “to cause its engineer to examine the Illinois river from the mouth of the Fox river to the head of steamboat navigation and if in their opinion the navigation of the Illinois river can be improved by dams or locks or otherwise, so as to secure its navigability as far as the mouth of Fox river -with as little expense and as much utility as canaling from Fox river to the Vermilion to the foot of the rapids, they shall have the right to terminate said canal at the mouth of Fox river,” and the canal commissioners thereafter constructed the canal to Peru, therefore the river was not navigable above Peru; that the courts will take judicial notice of such historical facts and that averments inconsistent with such facts are not admitted by the demurrer and will be disregarded. In the view we take of this case it is unnecessary to express any opinion concerning this contention.

The statute, title Railroads and Warehouses (par. 5. sec. 20, chap. 114), authorizes corporations to construct railways across any stream but not unnecessarily to impair the usefulness of the stream and provides that nothing in the act “shall be construed to authorize the erection of any bridge or other obstruction across or over any stream navigated by steamboats, at the place where any bridge or other obstruction may be placed so as to prevent the navigation of such stream.” The declaration does not aver that the Illinois river was navigated by steamboats at the place where the bridge is when the bridge was built but only avers that the river was navigable. The proviso in the statute only relates to the building of bridges over streams “navigated by steamboats” and does not embrace navigable rivers that are not navigated. It leaves the inference that bridges may be built over navigable rivers that are not used by steamboats when a railroad is built.

The three additional counts aver the river was navigable when the bridge was built and contain all the averments of the preceding counts. If the demurrer was properly sustained to the additional counts it was properly sustained to all. It is a public nuisance to obstruct or impede without legal authority the passage of any navigable river or waters. The general rule is, that a public nuisance can only be proceeded against by a public prosecution. There is however the exception to the general rule that when a person sustains from a common nuisance a special damage different from that common to all the public he may have an action for damages therefor (Wylie v. Elwood, 134 Ill. 281), but the injury must be special and peculiar to him, and different in kind and not merely in degree. City of East St. Louis v. O’Flynn, 119 Ill. 200; Chicago Gen. Ry. Co. v. C. B. & Q. R. R. Co., 181 Ill. 605; Hill v. St. L. & N. R. Ry. Co., 243 Ill. 344; Hamilton v. Semet Solway Co., 227 Ill. 501; Guttery v. Glenn, 201 Ill. 275.

None of the counts contain any averment that the appellants had an established business on the river when the bridge was built, neither is there any claim that the appellants have been injured in any riparian right by the maintenance of the bridge. From each count of the declaration the only damages plaintiffs have suffered is purely a speculative one; the loss of profits they might or would have made in business where they have never been engaged in running boats but where they have been prevented from running their boats by the bridge, built over the river before they desired to engage in such business venture. The right of appellants to navigate the river is not a private, but is a public right, which they are entitled to only in common with the whole public. The facts alleged show that the damages resulting to them from being prevented from navigating the river, may be greater in degree but not different in kind from those suffered by any other person who may desire to use this public highway, even if the river was navigable when the bridge was built. There is no trespass alleged to the private property of appellants. The facts pleaded show a public nuisance, obstructing a public highway, which deprives appellants of the cheapest and most convenient route to carry freight and passengers to points on the river above LaSalle. There is no element of special damage alleged that is not suffered by all persons who may desire to navigate the Illinois river between Peoria and Ottawa.

The decisions of the courts of the various states are not harmonious in cases similar to that here presented. However the • following cases, with others from the same states, hold that a private action for damages will not lie for the obstructing of a navigable stream on behalf of a party prevented from navigating it, but the remedy must be by a public prosecution. Clark v. C. & N. W. Ry. Co., 70 Wis. 593; Potter v. Indiana and L. M. R. Co., 95 Mich. 389; Blackwell v. Old Colony R. R. Co., 122 Mass. 1; O’Brien v. Norwich Railroad Co., 17 Conn. 372; Hickok v. Hine, 23 Ohio St. 523; Jarvis v. Santa Clara Valley R. R. Co., 52 Cal. 438; Houck v. Wackier, 34 Md. 265; Billard v. Erhart, 35 Kan. 611; Rude v. St. Louis, 93 Mo. 408; Lammers v. Brennan, 46 Minn. 209. In some cases, even where an established business is interfered with by the erection of an obstruction, the same rule has been held. South Carolina Steamboat Co. v. S. C. R. R. Co., (S. C.) 4 L. R. A. 209; Swanson v. Mississippi and Rum River Boom Co., (Minn.) 7 L. R. A. 673; Jones v. St. Paul M. & M. Ry. Co., (Wash.) 47 Pac. R. 226; South Carolina Steamboat Co. v. Wilmington R. R. Co., 46 S. C. 327; Innis v. Cedar Rapids I. F. & N. W. Ry. Co., 76 Ia. 165.

The following cases hold that suit will lie at the instance of a private party damaged by a bridge over a navigable river. Smart v. Aroostook Lumber Co., 14 L. R. A. (N. S.) 1083; Texarkana & Ft. Smith Ry. Co. v. Parsons, 74 Fed. R. 408; Chatfield v. City of New Haven, 110 Fed. R. 788; Oliver v. Klamath Nav. Co., 102 Pac. R. 786; Carver v. San Pedro, Los A. & S. L. R. R. Co., 151 Fed. R. 334; Georgetown v. Alexandria Canal Co., 12 Peters 91; Union Pacific R. R. Co. v. Hall, 91 U. S. 343; Willamette Bridge Co. v. Hatch, 125 U. S. 2; Northern Pac. R. R. Co. v. U. S., 59 L. R. A. (N. S.) 80; Little Rock, Miss. River & Texas Ry. Co. v. Brooks, 39 Ark. 403; Rose v. Miles, 4 Maule & S. 101 (Ellenborough); Drake v. Sault St. Marie Pulp Co., 25 Ont. App. 251; New York, N. H. & H. R. R. Co. v. Piscatacjua Nav. Co., 108 Fed. R. 92; Weatherby v. Meiklejohn, 61 Wis. 67.

We adopt the rule held by the cases first above cited on this proposition, and since there is no element of special damage averred as suffered by appellants that is not common to any person who may desire to navigate the Illinois Eiver between Peoria and Ottawa, the court properly sustained the demurrer. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Fred W. Low, Defendant in Error, v. Northwestern Malleable Iron Company, Plaintiff in Error.
    Gen. No. 15,364.
    1. Municipal Court—when questions of law preserved for review. In a case tried before tbe Municipal Court without a jury tbe presentation of propositions of law and tbe saving of exceptions are not required to preserve questions of law for decision and tbe Appellate Court is required to decide cases coming from tbe Municipal Court on tbe merits as they appear from tbe statement or stenographic report signed by tbe judge.
    2. Contracts—construction of employment providing for installation of cost system at per diem rate. To employ a concern to install a cost system at a rate of compensation of so much per day is not to give any definite employment and tbe right to discontinue tbe services of such concern may be exercised at any time.
    Error to tbe Municipal Court of Chicago;'tbe Hon. Sheridan E. Pry, Judge, presiding. Heard in tbe Branch Appellate Court at tbe March term, 1909.
    Reversed with finding of fact.
    Opinion filed March 3, 1911.
    Newman, Northrup, Levinson & Becker, for plaintiff in error.
    Fassett & Andrews, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

An action of the fourth class was commenced in the Municipal Court of Chicago by Fred W. Low, the defendant in error, against the Northwestern Malleable Iron Company, the plaintiff in error. The action was brought for the breach of an alleged contract in writing reading as follows:

“Milwaukee, Wis., Jany. 29, 1907.
Northwestern Malleable Iron Company,
Milwaukee, Wisconsin.
Q-entlemen:—
I herewith make you the proposition to plan and instruct, at your plant at Milwaukee, Wis., in installing the requisition voucher and cost systems, along the lines suggested in the report of Jany. 17, 1906, of the Committee on uniform cost system to the members of the American Malleable Casting Association.
My compensation for my services to be Twenty-five ($25.00) Dollars per day while actively engaged on said work, and all travelling expenses in connection with the work.
The above proposition is written in duplicate, the acceptance of which by you will constitute the contract between us.
Tours truly,
F. W. Low.
Accepted:
Northwestern Mall. Iron Co.
F. L. SlVYER.”

The evidence shows that on January 29, 30 and 31, and February 1,1907, the plaintiff, defendant in error, did certain work for plaintiff in error, in connection with planning for installing the system referred to in the above contract. .On February 1, 1907, after this work had been done, the above contract was entered into, and it was agreed that the time already put in by the plaintiff below was to be applied to and considered as done under the contract. Subsequently the defendant below paid the plaintiff for the work so done, at the stipulated rate in the contract of $25 per day. No further work was ever done by the plaintiff.

On February 1, 1907, when the contract was signed, the superintendent of the defendant company told the plaintiff helow that he wonld let him know when to continue the work. Thereafter the plaintiff asked Sivyer, the superintendent, several times,'whether he should go ahead with the work. Sivyer put him off from time to time, and finally, in the summer of 1907, told the plaintiff below that he did not want his services any more.

The case was tried below upon the plaintiff’s theory of the case, that he was entitled to recover at the rate of $25 per day for the time it would have taken to give instructions and install the requisition voucher and cost system complete. A judgment was rendered below on the plaintiff’s testimony that as nearly as he could estimate it would have taken from 30 to 33 days, in addition to the 3% days actually spent on the work and paid for by the plaintiff.

No other evidence of damages to the plaintiff was offered except the statement of plaintiff that after September 1, 1907, he could have given the defendant time to do the work almost any month from February 1, 1908, at its convenience.

The defendant introduced no evidence.

It is urged by the defendant in error that no grounds of reversal are preserved in the record, because there is no dispute in the evidence, and no propositions to be held as law in the case were submitted on the trial, a jury having been waived, and the cause tried before the court without a jury.

This contention is without merit, we think, for two reasons; first, the defendant on the trial moved the court to find the issues for it, and duly excepted to the overruling of the motion. Defendant also excepted to the finding and to the judgment, and we think that under that state of the record it was not necessary to present propositions of law in order to save for review all questions which arise on this record. Furthermore, under section 23 of the Municipal Court Act, paragraph 8, it is unnecessary to preserve exceptions to the rulings and decisions of the Municipal Court, upon the trial of cases in that court, in order to save the question for review in an Appellate Court; and by the same action the Supreme Court and the Appellate Court, as the case may be, are required to decide the case upon its merits, as they may appear from the statement or stenographic report signed by the judge.

We think therefore that the questions involved in the record are properly preserved for review here.

The contract sued upon is a contract “to plan and instruct, at your plant at Milwaukee, Wis., in installing the requisition voucher and cost system.” For this work, under the contract, the plaintiff was to be paid $25 per day. We do not find from the terms used in this contract, considering the evident intention of the parties as ascertained from the words employed, and the connection in which the terms are used, and the subject-matter about which the parties were contracting, that the contract stated any definite employment for any particular length of time, or for the completion of any particular amount of work.

According to the terms used in the contract the plaintiff below was to plan and instruct at the defendant’s plant at Milwaukee, Wisconsin, in installing the requisition voucher and cost system. It is not a contract to install the system in the defendant’s factory or plant or to do any complete piece or quantity of work. It is simply a contract to plan and instruct at the defendant’s plant in Milwaukee, and for that work the plaintiff was to receive $25 per day. There is no undertaking in the contract that the defendant should employ the plaintiff to plan and instruct until the requisition voucher and cost system was completely installed, nor is there anything in the contract from which such an inference may be drawn. A court may not read into the contract any such provision.

We are of the opinion therefore that under the terms of the contract the defendant below was at liberty to employ the plaintiff as many days and for so long a time as it saw fit; and it might stop snch employment whenever in its opinion it was deemed advisable to go no further in the installation of the system in their plant with the assistance of the plaintiff.

Such being our construction of the contract we are of the opinion that the plaintiff had no right of action against the defendant for breach of the contract, for the defendant below committed no breach by refusing to employ the plaintiff further to plan and instruct as provided in the contract.

In view of our conclusion that no recovery can be had on the contract sued on, it is unnecessary for us to discuss the measure of damages applied to the alleged breach of the contract in the trial court.

The judgment of the Municipal Court of Chicago is therefore reversed, with a finding of fact.

Reversed with finding of fact.


text:
    John McKechney et al., Plaintiffs in Error, v. City of Chicago, Defendant in Error. Three Cases Consolidated for Hearing.
    Gen. No. 15,360.
    1. Contracts—when do not hind municipal corporation. Held, that the document in question in this case was for various reasons specified in the opinion not a contract so entered into and executed as to he binding upon the municipality sought to be charged thereby.
    2. Contracts—hy whom question of validity determined. It is for the court to pass upon and determine the validity and binding effect of a contract.
    3. Instructions—when giving of erroneous, will not reverse. If it appears that substantial justice has been done the giving of erroneous instructions will not reverse.
    4. Evidence—self-serving declarations incompetent. A letter written by plaintiff to the mayor of a city setting up the claim of plaintiff against said city if self-serving in character is incompetent even though incorporated in the declaration filed on behalf of said plaintiff.

      5. Trial—when conduct of juror will not reverse. A personal test by a juror of a sample of material submitted to the jury for their inspection and examination, held, not ground for reversal.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Certiorari denied hy Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 7, 1911.
    Rehearing denied April 18, 1911.
    Park Phipps, Laurence Maxwell, Jr., Charles H. Aldrich and Pliny B. Smith, for plaintiffs in error.
    Edward J. Brundage and Robert N. Holt, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This writ of error brings before this court for review a judgment of the Circuit Court of Cook county in favor of the defendant in error in the above mentioned cases, which were consolidated in the Circuit Court and tried together. Suits were brought by the plaintiffs in error to recover in the aggregate sums approximating one million dollars under certain contracts for the construction of what is known as the Northwest Land Tunnel, in the city of Chicago, for labor performed and material furnished, not included in the contract under which the work was done, and for the value of construction plants seized by the city and never returned to the plaintiffs in error. The defendant pleaded the general issue and filed pleas of set-off, claiming over five hundred thousand dollars for alleged unlawful payments made by the city to plaintiffs below, and for a penalty or liquidated damages of two hundred dollars per day for delay in completing the tunnel and for other things. The trial below resulted in a verdict in favor of the defendant for one dollar on its plea of set-off.

In plaintiffs in error’s brief it is said:

“As the question of the verdict being against the evidence is not being argued, the abstract lias not been made as full as it would have been were it intended to argue that point, but it is sufficiently full to show the errors relied on.
“The errors relied on by plaintiffs are errors in instructions, errors in rulings upon the admission of evidence, and misconduct of a juror.”

This litigation is not unfamiliar to the courts of this county and the Supreme Court. The litigation in one form or another has been before the Supreme Court of this state on two different occasions, namely, in the case of City of Chicago v. Weir et al., 165 Ill. 582, and City of Chicago v. McKechney et al., 205 Ill. 372. In the latter case appears a statement of the pleadings under which the trial before us was had, and also a statement of the substantial and controlling facts involved in the proceedings at bar, so far as those facts had developed at the time of the trial then under review, and it would serve no useful purpose to restate them here.

Although the plaintiffs in error have not furnished the court with a full abstract of the record in this ease, which occupies about 7,500 pages, the defendant in error has filed a supplemental or additional abstract which brings before us some of the additional facts shown by the record, bearing upon the general merits of the controversy. The evidence abstracted in the additional abstract of record, as well as that contained in the original abstract of record, and to some extent the record itself has been duly considered by us, in passing upon the instructions which it is claimed by the plaintiff in error are erroneous, and upon the errors claimed to exist in the instructions the plaintiffs in error chiefly rely to secure a reversal of the judgment below.

Although the authority of the opinion in City of Chicago v. McKechney, siopra, has been questioned in argument, we regard the decision of the Supreme Court as determining the controlling and decisive questions raised before us.

It is contended that instruction number 5 was misleading in that it gave the jury to understand that the Commissioner of Public Works could not make the contract of May 17, 1897, and it could not be ratified by the city. That instruction reads as follows:

“5. The Court instructs you that in the said contract of October 19,1895, it is provided that the plaintiffs shall perform all of said work under the immediate direction and superintendence of the Commissioner of Public Works of said City; but the Court instructs you that under such provision no power is therein given to the Commissioner to consent or direct that the work under said contract should be done contrary to its terms, for the only power which the said Commissioner possessed in this respect under said contract was to1 enforce its execution according to its terms, and to direct only such incidental changes as might be necessary in the prosecution of the work, and which tended3 rather to the complete fulfillment of its terms than to their substantial violation, and the jury will so consider the extent of such powers in arriving at your verdict.”

Plaintiffs in error contend that the above instruction is both misleading and positively erroneous. It is urged that the jury might well understand from this instruction that the Commissioner of Public Works had no power to make the alleged agreement of May 17, and having no such power, that it was void and could not be ratified by the city. We think the jury might so understand the instruction, and if they did so understand it, the instruction fulfilled its purpose, in stating correctly the law with reference to the alleged contract of May 17, 1897. In our opinion what is called in this case and in argument the contract of May 17, 1897, was not a contract at all. Upon the proof in the record it was never signed by any officer of the city, and it was never ratified by the city, and it was never intended by the city to express a definite contract with reference to the subject-matter of the writing called the contract of May 17,1897. We think this so-called contract was declared not to be a contract in the opinion of the court in City of Chicago v. McKechney, supra, at pages 432 to 452, inclusive of the opinion. Further than that, and as stated in that opinion, the statute specifically provides the method for making municipal contracts involving an expenditure of more than five hundred dollars. The city ordinance also covered the same subject. The power to make contracts without advertising for bids, and without a vote of two-thirds of all the aldermen was not conferred upon the Commissioner of Public Works when the alleged contract of May 17, 1897, was signed by Weir, McKechney & Co. and presented to the Commissioner of Public Works. It is admitted that it was never executed by any city official, and any remarks made by the Commissioner of Public Works could in no wise constitute an acquiescence in or ratification or execution of the paper on the part of that official. It purported to be a special contract that could only be made in the special manner provided by the statute, and no inference could be drawn in favor of its execution from any acts done by any officials of the city, with reference to it, shown by the record. The mere fact that the paper was put in the book of contracts kept in the office of the Commissioner of Public Works would have no significance under the law.

The legal effect of the action of the city council with reference to this alleged contract is fully discussed in the opinion last referred to at page 436. The recital in the contract of October 8, 1898, of the alleged contract of May 17,1897, has no possible bearing upon its validity as a contract, and could not have in law. Further, the context of the alleged contract of October 8, 1898, shows very clearly that whatever arrangement was contemplated was to be without prejudice to the questions at issue between the parties, all of which questions were left to the decision of the court. Instead of being a ratification of the alleged contract of May 17, 1897, it was apparently agreed, so far as it was possible to make an agreement, in the contract of October 8, 1898, that the making and the ratification of the May 17 paper and the validity of that paper as a contract was left for the future determination of the courts.

The facts in connection with the making of this alleged contract of May 17, 1897, are not in dispute. There is no controversy as to the material facts connected therewith. The question as to whether it was a valid contract was therefore a question of law for the court to decide. There was nothing in connection with the making of that alleged contract to be left to the jury. The court therefore had a right to pass upon the validity of that contract in the manner in which it did, inferentially, in the instruction under consideration. And if no such contract was made as a matter of law, then the rights of the parties were to be determined by the contract of October 19, 1895, and the provisions of that contract were not enlarged or modified in any way by the alleged contract of May 17,1897.

Errors are assigned upon the action of the trial court in giving other instructions at the request of the defendant in error. The instructions are conceded to be erroneous by counsel for defendant in error. The giving of them cannot be justified in our opinion. Substantial justice has been administered in the case in so far as plaintiffs in error were denied any right of recovery against the city.

In passing upon the instructions and errors therein and whether the judgment should be reversed because of such errors, we are influenced by the great preponderance of the evidence in the case, as it appears to us, in favor of the defendant in error.

The evidence would have warranted the jury, in our opinion, in returning a large verdict in favor of the defendant, city. From an examination of the record no verdict in favor of the plaintiffs could ever be maintained, we think, upon the evidence, when considered with reference to the law of this case as laid down by the Supreme Court.

In City of Chicago v. McKechney, supra, at page 452 of the opinion, the court says:

“Appellees claim that the changes in the plans and specifications, made by the Commissioner of Public «Works lead up to an excavation which was partly in earth and partly in rock. Therefore, the additional work required thereby should have been done by the contractors at the prices for like work as stipulated in the contract. What is the price for like work as stipulated in the contract? The contract of October 19, 1895, provides, among other things, as follows: ‘Bock excavation over and above cost of lineal foot of tunnel or shaft $2.00 per cubic yard.’ The ‘rock excavation’ applies to all rock tunnel and includes tunnel in mixed earth and rock. Indeed the contract of May 17, 1897, refers to ‘all material encountered in earth tunnel that is rock or of such nature that it is classified as rock.’ If it was rock or of such a nature as to be classified as rock it would come within the provision which provides for $2.00 per cubic yard for rock excavation, except that such additional price of $2.00 per cubic yard for rock excavation is over and above the unit price per lineal foot of tunnel in rock. It would seem to follow, therefore, that the contract of October 19, 1895, provided for the cost of tunneling partly in earth and partly in rock, at the price of $2.00 per cubic yard over and above the unit price per lineal foot of tunnel in earth. This being so the provision in the contract of May 17,1897, providing for an allowance of Six Dollars per cubic yard instead of Two Dollars per cubic yard, was unauthorized and the city cannot be bound by such payments, amounting to $6.00 per cubic yard. Therefore, the trial court erred in admitting evidence tending to establish the liability of the city for the payment of $6.00 per cubic yard instead of $2.00. ’ ’

And again further on in the same opinion, at page 454, where it speaks of the question whether or not the contractors are entitled to compensation for removal of rock which breaks outside of the cross section lines as indicated by the engineer, the court says:

“That question was decided in favor of the city, by the Appellate Court, which affirmed the ruling of the trial court; and such ruling not being assigned as cross error, by the contractors, was not passed upon in this court. The adverse decision of the Appellate Court on that subject, was apparently submitted to. The Circuit Court having thus decided that appellees were not entitled to compensation for such exterior breakage or excavation, and that decision not having been questioned in any reviewing court, it still stands and is binding upon appellees. Where there has been a final judicial decision of a question of law or fact directly in issue, by a competent court, and the same matter is again drawn in question between the same parties or their privies in a subsequent litigation, the former decision is conclusive. In the stipulation referred to it was claimed by the contractors that such exterior rock excavation was inevitable, and therefore it cannot be said that the question of the necessity of such exterior excavation in the all rock work makes the issue in this suit any different from the issue in the former suit.”

And then again, on page 457, the opinion proceeds:

“By the terms of this arrangement between Jackson and the contractors the latter were to be allowed $10.00 a cubic yard for back masonry in the third ring of brick in the mixed work. This arrangement was void, because the third ring of brick in the mixed work was necessarily a part of the tunnel proper, and the price therefor was included in the lineal foot price of the tunnel. The third ring of brick appears to have been placed in all of the earth and mixed parts of the tunnel, and so far as such third ring of brick in those portions of the tunnel is concerned, there was no alteration in the plans or specifications. The engineer had no power to bind the city to pay $10.00 per cubic foot for the third ring of brick, as back masonry. When the third ring of brick was put in and made a part of the tunnel, the city could not be made to pay for it an additional price to the price of each lineal foot of tunnel. When such third ring was placed in the lining of the tunnel, it became a part of the completed tunnel, to be paid for as such, according to the original contract price. The original agreement required the contractors to fill in the space between the excavation and the lining with solid masonry without extra cost, and for doing what the contractors originally agreed to do for the lineal foot price of tunnel they were not entitled to receive the extra amount of $10.00 a yard.”

The main claims set forth in the bills of particulars filed by the plaintiffs are for back masonry, change of grade in the tunnel, extra timber and lumber and other matters fully covered, we think, by the extracts from the opinion above quoted.

The other large claim sued for is for the value of the plants taken possession of by the city when they declared the contract ended and assumed the work of finishing the tunnel. This claim according to the evidence amounted to about $76,000.

On the other hand it appears from the record that unauthorized payments were made for rock excavation at $6 per cubic yard, amounting with interest to $86,943.88, two-thirds of which amount was wholly unauthorized under the contract. On shafts, payments unauthorized by the contract were made to the contractors to the amount of about $43,806. Not only that, but in July 1898, something over $41,000 of the fifteen per cent, reserve provided by the contract, and amounting to more than half of that reserve, was paid over to the contractors, contrary to the terms of the contract. The record shows that allowances were made for uncompleted work as completed work, and that in this manner there w^s paid over to the contractors upwards of $24,000 for work which was never done. Unlawful payments for back masonry were made to the contractors by the city officials to the amount of over $100,000. The evidence tends to show that unauthorized and illegal payments to the amount of $308,000 were made to these contractors on this work; and that if interest was allowed upon the same from the time of the payments to the time of the trial below, the unlawful payments which the city would be entitled to recover back from tbe contractors, would amount, with interest, to upwards of $425,000.

It is manifestly impossible to enter into any discussion or analysis of the great mass of evidence, in detail within any reasonable limits of an opinion. On many points tbe evidence is conflicting, but we do not think tbe erroneous instructions should cause a reversal of tbe judgment, for we are satisfied from the record that there should have been a judgment for a very substantial amount in favor of the City. Beard v. Maxwell, 113 Ill. 440; Heckle v. Grewe, 125 id. 58; Keeler v. Herr, 157 id. 57.

We do not tbink, for tbe reasons given above, in discussing instruction number five that tbe trial court erred in refusing to submit to tbe jury tbe question whether tbe supplemental contract, so-called, of May 17, 1897, was ratified by tbe city of Chicago, as requested in refused instructions 38 and 39. On tbe evidence we tbink that was a question of law for tbe court, there being no controversy as to the material facts, and tbe question having already been passed upon by the Supreme Court, as shown above.

Tbe court did not err in excluding tbe letter written by plaintiffs to Carter H. Harrison, Mayor of Chicago, set forth in the declaration. It was a self-serving statement setting up plaintiffs’ claims. It was not made admissible in evidence by being incorporated in the declaration. Nor did tbe court err in excluding tbe letter from Joseph Downey to MeGann, Commissioner of Public Works. Downey was a private citizen, and we can conceive of no theory or rule of evidence which made tbe letter admissible in tbe case.

We do not tbink that tbe conduct of the juror Veatch, in testing tbe specnnen of the material submitted to the jury for inspection and examination claimed by tbe plaintiffs to be conglomerate, constitutes ground for reversal.

Finding no reversible error in tbe record tbe judgment is affirmed.

Affirmed.


text:
    Strobel Steel Construction Company, Appellant, v. Sanitary District of Chicago, Appellee.
    Gen. No. 15,416.
    1. Contracts—when time limit or provision for liquidated damages waived. Delay by the owner in delivering a site upon which work is to be done either operates to waive the time limit of the contract providing for such work or the clause thereof providing for liquidated damages.
    2. Contracts—what not condition precedent to recovery. A provision in a contract requiring presentation of claims for extra work to an engineer within a certain time, etc., if not complied with will not bar a recovery, in the absence of the compliance being expressly made a condition precedent to recovery.
    3. Instructions—effect of refusal upon material issue. If the jury is not properly instructed as to a vital and material issue in the cause a reversal will be awarded.
    4. Evidence—what competent to rebut claim for liquidated damages. Evidence of conduct of the party claiming liquidated damages to the effect that he furnished indefinite plans and made material changes in the plans after submission, thus contributing to the delay in question, is competent.
    5. Evidence—what competent upon question of damages occasioned by interference with work. Held, that certain specific questions set forth in the opinion were proper as tending to call for evidence upon the question of damage sustained by interference with the work by the plaintiff.
    6. Measure os damages—where work has been interfered with. The rental value of the plant rendered idle by interference, affords a basis for the award of damages.
    7. Drainage—who not authorized to bind sanitary district. A consulting engineer and a committee of the trustees of a sanitary district in the absence of a showing of express authority to bind, are not authorized to bind such sanitary district to the payment of a money obligation.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed April 7, 1911.
    Charles T. Farson and Gardner, Stern & Anderson, for appellant.

      John C. Williams and A. Gr. Anderson, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, Strobel Steel Construction Company, appellant in this court, brought an action in the Municipal Court of Chicago against the Sanitary District of Chicago, appellee, to recover a balance alleged to be due for the construction of a dam known as the ‘ ‘Emergency Butterfly Dam” located in the drainage canal of the Sanitary District of Chicago. The plaintiff claimed a balance due on the contract appearing by the final certificate of the engineers, amounting to $12,915.92, and in addition thereto damages occasioned by various acts of interference of the defendant with the execution of the contract by the plaintiff, thus causing delay and expense to the plaintiff in completing its .contract.

The amended declaration contained 24 counts in which the claims and causes of action are set up in various forms, but inasmuch as no question is made as to the sufficiency of the averments to authorize the introduction of evidence in support of the plaintiff’s claim, we do not think it necessary to recite the substance of the declaration or any count thereof.

The contract set forth in the declaration under which the dam was constructed was dated July 25, 1906, and by its terms the plaintiff agreed to begin work within fifteen days after the execution of the contract and to complete the main structure of the dam so as to be able to move and close it by March 1, 1907. For a failure on the part of the plaitiff to complete the work on that date, it was agreed that the plaintiff should pay $100 per day as liquidated damages for as many days as the completion should be delayed beyond the time fixed by the contract. Other parts of the dam, including operating machinery, shaft house, etc., on the abutments were required to lie completed by June 1,1907, under a penalty of $25 per day as liquidated damages for failure to complete the work in the time mentioned by the contract. This latter penalty of $25 per day has been waived by the defendant, and no point was made thereon in the court below or is made here. The defendant claimed, however, that the completion of the dam proper was delayed by the plaintiff until about August 1, 1907, and that the defendant thus became entitled to off-set the liquidated damages or penalty of $12,000 against the plaintiff’s claim.

The bid of plaintiff for the construction of the dam was accepted on July 25, 1906, and the contract was awarded to it. The contract was not for a gross sum of money, but was awarded on the principle of “unit prices,” so-called, by which the plaintiff was to receive a certain price per cubic yard for the excavation and concreting and a certain price per pound for the steel construction, etc. The exact location of the dam had not been fixed upon and determined at the date of the contract, and it appears from the record that it was not until July 31st, that the exact location of the dam was determined by Mr. Bandolph, Chief Engineer of the Sanitary District. When the site was thus fixed upon, a considerable portion of it was still unexcavated and not cleared by the Sanitary District; some of it was still covered by the solid rock which had to be blasted out, and over other portions of it was strewn loose rock, which had been blasted out and not yet removed. The workmen of the Sanitary District were engaged on portions of the site in loading and removing this earth and rock by means of cars run upon tracks laid in the bed of the channel, and afterwards by means of a derrick and tracks upon the banks of the channel.

It appears from the record that although the site was thus fixed and determined upon on July 31, 1906, it was not marked and staked out so that work could be commenced until a later date. Under the contract, it was for the engineers of the Sanitary District to furnish lines, marks and grades, for all parts of the work included in the contract, so that the location of the various parts could he definitely ascertained and determined before work should be started. This was done from time to time after July 31, 1906, as the site was gradually cleared by the Sanitary District. The site of the south pier was staked out on August 24th and that of the center pit on the next day, August 25th. The site of the north pier was cleared and staked out somewhere from October 26th to November 6th and 7th, 1906, although blasting was still going on in the breast rock in close proximity to this pier at this date and for some time afterwards. The site of the east abutment was staked out about November 1, 1906, and that of the west abutment about November 27, 1906. The site of the west abutment was not cleared at the time it was staked out, and the portion of the solid rock which impinged upon this site and also upon the site of the tunnel, under the northwest quadrant, was not removed until early in the month of March, 1907.

As originally planned, a tunnel was to be built underneath the channel, extending from the west shore straight across to the north abutment. This tunnel was to have a shaft at each end, and was large enough for a person to go through for the purpose of communication between the shore and the parts of the dam located in midstream. Shortly after the work was begun it appears that the location of this tunnel was changed, so as to run diagonally from the north pier to the west abutment, and through the site of the west floor.

The removal of the rock at the site of the west abutment and the northwest quadrant was not completed until April 20, 1907. The work of concreting the west floor of the tunnel could not be completed until this rock had been removed and the site cleared. This, it will be noted, was after the date fixed by the contract for its completion, to wit, March 1, 1907; that is to say, that while the plaintiffs were under contract to complete the entire work by March 1, 1907, a portion of the site, according to the evidence, was not cleared, ready for the work, until a month and twenty days after that date. The work of erecting a steel superstructure necessarily awaited upon and followed the excavation and concreting.

On the trial of the case there was no dispute as to the amount which would be due the plaintiff in case no penalty was assessed for delay under the clause in the contract. It was agreed upon the trial that the amount of' the reserved percentage in the hands of the defendant on previous certificates, due and unpaid to the plaintiff, was $3,223.93.

The final estimate of McCartney, Assistant Engineer of the District, dated December 12, 1907, shows a balance due on that date of $6,003.35. In addition to this it was admitted by counsel for the defendant that there was due and unpaid for extra work and material furnished under the contract the sum of $3,688.64, making the total amount due on the contract and for extras $12,915.92. The amount of the verdict was $4,665.95,- and inasmuch as the only defense offered in the court below was based upon the clause of the contract providing for liquidated damages of $100 per day, the difference between the amount of the verdict and the amount due to the plaintiff according to the certificates of the engineers and the agreed amount for extras, can only be accounted for by the allowance by the jury of substantially $100 a day for 82% days to the defendant as liquidated damages.

The errors relied upon by the appellant to reverse the judgment below are errors in rulings on evidence, errors in instructions, and that the verdict and judgment are not supported by the evidence.

The evidence in the record tends to support the facts above stated, and that the plaintiffs were greatly delayed in the delivery to them of the site upon which the emergency dam was to be erected. There was not only delay in delivering the site properly marked and staked out, but there was some delay in the location of the site of the dam itself, according to the testimony; and after the location was made, there was a change made in the location, and a change made in the course of the tunnel as above indicated.

The evidence shows that the defendant, Sanitary District, continued to occupy part of the site after the time fixed for the plaintiff to commence work, and during the time that the plaintiff was at work upon portions of the site of the dam, and also in connection with the prosecution of its work in completing the Duffy contract immediately adjoining the site of the Butterfly Dam.

The evidence tends to show that this occupation of the site by the defendant and the failure to excavate the channel, and the work being done by the defendant immediately adjoining the site, greatly interfered with plaintiff’s work. The plaintiff contends, and we agree with its contenton, that the contract and the work required to be done thereunder was an entirety, and that the date when the plaintiff was to receive the site was the date provided for in the contract when it was to commence the work; and that it did not receive the site under the contract until every part of the site had been cleared of obstructions and the entire location of the dam delivered over to the plaintiff for the performance of its work. In our opinion there was an implied obligation on the part of the defendant to furnish to the plaintiff, within fifteen days from the date of the contract, the entire site of the dam cleared of obstructions upon which to build the dam in question, without interference on the part of, the defendant.

We are of the opinion further that the delay of the defendant in locating to the plaintiff the site bleared of all obstructions, for the eiection of the dam, and the fact that defendant permitted the plaintiff to proceed with the work after the time fixed for its completion and accepted the work, tends to show that the time limit was either waived altogether, thus giving the plaintiff a reasonable time to complete the contract, or, that defendant extended the contract time of completion by a period equal to the delay caused by the defendant either in failing to deliver the site or in obstructing the ■work of the plaintiff after the work had been commenced, and that the defendant thereby waived any and all right to the liquidated damages provided for in the contract for delay on the part of the plaintiff. Taylor v. Renn, 79 Ill. 181; Paddock v. Stout, 121 id. 571; Bloomington Hotel Co. v. Garthwait, 227 id. 613; Nibbe v. Brauhn, 24 id. 268; City of Chicago v. Duffy, 117 Ill. App. 261; Smith v. Sanitary District of Chicago, 108 id. 69; Eyster v. Parrott, 83 Ill. 517.

We think it is a necessary inference from the terms of the agreement that the Sanitary District of Chicago undertook to provide the site for the dam in question properly excavated in its channel; and that the failure of the Sanitary District to deliver over the entire site of the dam to the plaintiff for the prosecution of its work under the contract for the length of time as shown by the evidence, resulted in the delay in completing the contract by the plaintiff, and that thereby the provision in the contract for liquidated damages of $100 per day was as effectually eliminated from the contract as if the parties had cancelled it by express agreement. King Bridge Company v. City of St. Louis, 43 Fed. Rep. 768; Mansfield v. N. Y. C. & H. R. R. Co., 102 N. Y. 205.

We do not think that a construction should be given to the contract between the parties to this action which would enable the Sanitary District to retard the prosecution of the work by the plaintiff, or prevent it from employing all the agencies which, in its judgment, could wisely and advantageously be used in the performance of the work called for by the contract, from the date of which the plaintiff was, by the terms of the contract, compelled to commence work, to a much later date, and, nevertheless, enforce the clause providing for $100 liquidated damages per day for every day after the date fixed by tbe contract for tbe completion of the work. Tbe plainest principles of justice would forbid sucb a construction of tbe contract. It is unreasonable to suppose that tbe parties intended that tbe contract should be interpreted in that manner, and that it should be left optional with tbe Sanitary District to retard the work contemplated by tbe contract, at its pleasure, discretion or convenience, accept tbe work, and at tbe same time enforce tbe heavy penalty for the non-performance by tbe plaintiff. Taylor v. Renn, supra; Tobey v. Price, 75 Ill. 645; Marsh v. Kauff, 74 Ill. 189; Sanitary Dist. of Chicago v. McMahon & M. Co., 110 Ill. App. 510; W. H. Stubbings Co. v. World’s Col. Exp. Co., 110 id. 210.

In our opinion tbe following refused instruction requested by tbe plaintiff on this question should have been given:

“Tbe court instructs tbe jury that if you find from tbe evidence that tbe plaintiff did not complete the work covered by tbe contract on which recovery in this suit is sought, within tbe time fixed in said contract for its completion, but that after sucb time for completion bad expired said defendant allowed said plaintiff to proceed with said work without raising any question as to delay, or making any claim for liquidated damages therefor, then, as a matter of law, tbe defendant waived tbe time of completion of said work fixed in said contract and is not entitled to tbe liquidated damages provided in said contract to be paid by tbe plaintiff for delay in completion.”

It was error to refuse to give tbe instruction. The first and last instructions given for tbe plaintiff did not fully cover the question. Tbe jury were not properly instructed as to what in law constituted a waiver of tbe time limit of tbe contract for completing tbe work—a vital and material issue in tbe case.

It is urged in argument that tbe trial court committed error in rulings on evidence.

Tbe witness Edward Haupt was asked on direct ex-animation as to whether it was possible, from an inspection of the plans delivered to plaintiff, to ascertain the location of the dam. This the court erronneously ruled out. The witness stated that he had been in the steel construction business twenty-three years, and had handled plans constantly and made figures on them. He had an engineer’s education and was familiar with the plans showing scales. He was further asked what was the function and purpose of a scale of the kind shown on the plans. To this question the court sustained an objection, erroneously, as we think.

An offer was made to show by the witness, from his expert knowledge of the subject, that the scale marked on the plat or plan had nothing to do with the surrounding objects; that it was merely intended to apply to the structure itself, and to this offer of testimony the court sustained an objection. We think that it was error to so rule.

The witness Haupt was asked in regard to changes that were made in the steel work, and what changes were made January 17, 1906. The court sustained objections to the question, erroneously.

An offer was also made to show by the same witness that further changes were made in the plates of the dam on September 17,1906, which were substantial and material changes. The court ruled out the testimony, erroneously, we think. It was plain, we think, that the changes sought to be shown were material, and that the making of the changes contributed to some extent to the delay in the completion of the contract. Whether they were material changes in the plans and whether the changes caused delay, were questions of fact for the jury. It may be that the changes required extra work and involved the making of new drawings and occasioned much delay, as contended by plaintiff, but the ruling of the court prevented the plaintiff from making the proof material to its cause.

We think that the court committed error in refusing to allow the witness Fitzpatrick, superintendent of the erection work for the plaintiff, to answer the following question which was propounded to him by counsel:'

“Q. I will ask you to state, from the knowledge which you have as an expert, and from the figures that you made at the time, what would have been the actual cost of the labor necessary to complete the superstructure of the Butterfly Dam, in accordance with the plans and specifications in this case, if the site had been delivered to you as an entirety, and you had been able to start the work at all points at once, and had been able to carry on the work free from all interferences by reason of the acts of the Sanitary District?”
To this question the court sustained a general objection. We think this was error.
The same witness was not permitted to answer the question put to him by plaintiff’s attorney:
“Q. If the site had been delivered to you as an entirety so that you were able to do all the work at the same time as originally planned, what would have been the cost of the labor necessary to complete the entire structure of the Butterfly Dam?”
This was error.
The witness Haupt was asked the following question :
Q. “Did the delay in the delivery of the site, the fact that you got the site from time to time instead of all at once, and the interference with your work, if any, because of the blasting operations carried on by the Sanitary District, and the progress of that work in close proximity to yours on the site, and the fact that your men had to work under adverse conditions, as recited by you in your previous answer to the previous question, have anything to do with the matter of the cost of completing this contract, or the time of completing it?”

The court sustained a general objection to this question. We think that this was an erroneous ruling.

The same witness was asked by counsel for plaintiff the following question:

“Q. What was the cost, as figured by you at that time, in accordance with your present experience and knowledge on that subject, and what was the actual cost which would have been incurred for labor, if the dam had been constructed according to the plans and specifications upon a site free from all interference by the Sanitary District?”

The court sustained a general objection to the above question and the witness was not allowed to answer. This, in our opinion, was error. The interrogatories were directed to the question of damages sustained by the plaintiff, if any, occasioned by the interference with the work by the defendant.

The witness Haupt testified describing the nature of plaintiffs’ plant used in the work of steel erection, and that he knew the market rental value of the plant. He was then asked the market rental value per day. The court sustained a general objection to the question. This ruling was erroneous: There was testi-

mony before the jury which would have warranted them in finding the number of days or parts of days during which the plant was not in use because of acts of interference and hindrance on the part of the defendant. With the rental value of the plant before them, they would have had a basis for finding the amount of damage sustained by the plaintiff because of such acts of the defendant. Green v. Mann, 11 Ill. 613; Consumers Ice Co. v. Jenkins, 58 Ill. App. 519; Wood v. State, 66 Md. 61; Griffin v. Colver, 16 N. Y. 489; Sedgwick on Measure of Damages, 6th ed., 81, margin p. 76, note 1.

It is urged, that the trial court erred in refusing to admit in evidence the letter or report of Mr. Randolph, dated January 29, 1908, addressed to the Committee on Engineering; and also the report of the Committee on Engineering which accompanied the final certificate of Wisner. We do not think the letter or report of Mr. Randolph, or the report of the Engineering Committee recommending that the final certificate he paid, and that all damages be waived, were admissible in evidence against the defendant. Mr. Randolph was then consulting engineer merely, and had no power under the contract to bind the defendant. The committee of the board was also without power to bind the board by its report as far as the record shows. In our opinion the trial court did not err in excluding the papers.

The court gave to the jury instruction No. 8 as follows :

“It is provided in paragraph 3 under the head ‘general conditions ’ of the contract declared on herein that ‘all claims for extra labor or materials furnished by the contractor or for damages from any cause whatever, must be reported to the engineer at the time such labor or material is furnished or such damages occur, and they must also be presented to him in writing at the end of the month, provided that nothing shall be paid for as extra work that can be classified under any of the heads upon which prices are fixed by the contract and provided, further, that nothing shall be paid for extra labor or material or for damages unless the same be reported and presented to the engineer as above required.’ You are therefore instructed that it was the duty of the plaintiff under said contract to have presented any and all claims for extra labor or material furnished or any damages that may have occurred, if any such have been proved, to the chief engineer in writing at the time such labor or material was furnished or damages occurred, and if you find from the evidence that the plaintiff failed so to do, the jury may take such fact into consideration in determining whether or not plaintiff is entitled to recover anything therefor.”

In our opinion this instruction was erroneous, for such a provision, unless expressly made a condition precedent to recovery, does not bar a recovery by the plaintiff, but leaves the defendant to its action for a breach thereof. Birmingham F. I. Co. v. Pulver, 126 Ill. 329, 338; Sanitary Dist. of Chicago v. McMahon & M. Co., supra. The jury were justified in believing from the instruction that the plaintiff could not recover for extras or damages not reported to the engineer at the time.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    I. S. Ginsburg et al., Appellees, v. Adams Express Company, Appellant.
    Gen. No. 15,435.
    1. Common carriers-—by what law contract of shipment governed. A contract of shipment made in another state is to be governed by the laws of that state both as to interpretation and effect.
    2. Common carriers—effect of acceptance of express receipt. Under the laws of New York in the absence of fraud, misrepresentation or concealment, the acceptance of such a receipt containing limitations upon the amount of the recovery unless the true value of the merchandise shipped is stated in the receipt, is valid and enforceable as a contract.
    3. Contracts—when laws of another state enforced. The law of the place of the contract will be enforced in our courts although opposed to the law of this state, unless to enforce it would contravene our criminal laws, or would sanction vice or immorality, or be opposed to natural justice, or transgress a positive prohibition of law, or be opposed to the general interests of our citizens.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Edgar Eldredge, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed April 7, 1911.
    Charles B. Elder, for appellant.
    Adolph Marks, for appellees; E. N. Zoline, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This action was commenced before a justice of the peace, who entered judgment for $200, from which an appeal to the Circuit Court was taken. The case was there tried before a court and a jury, and the trial resulted in a judgment in favor of the plaintiffs, appellees, for $217.50. This appeal is prosecuted from the judgment.

The recovery sought was for the value of a package of silks, said to be worth $212, being one of two packages shipped April 27,1905, to the plaintiffs, appellees, by L. F. Dommerich & Company at New York City. The goods had been made, or selected by the shipper, from stock, to fill a purchase order from the plaintiffs.

At the time of the shipment a receipt purporting to acknowledge the receipt of the articles, subject to the contract printed below, was signed by the driver of the defendant, appellant, who received the packages in question. This receipt had been filled out by an employe of Dommerich & Company, from a book of similar receipts in his possession, and was tendered to the driver, for signature, with the goods. It contained a space for stating the value of the goods, and one of the printed conditions at the foot provided that the shipper agreed that the value of the property was not more than $50, unless a greater value was stated therein, and that the defendant should not be liable in any event for more than that amount, if no value was stated, or for more than the value stated. No value was stated in the receipt nor was anything said about the value of the goods at the time of shipment.

It appears from the record that the rates of the express company increased with the value of the goods shipped over $50 at the rate of ten cents per hundred dollars, and that it treated goods of greater value than $50 in a different manner than it did goods of a value not exceeding $50. The former were handled through the money department, with greater care than the latter, and kept under the personal charge of a messenger all the time. The latter were handled with the ordinary matter. The charge for carriage of the package in question was fixed at the $50 rate, and it was handled as an ordinary package of a value not exceeding $50. The package was lost in transit and the defendant express company was unable to find it or to explain its loss.

The case was tried below without any reference to the provisions of the Interstate Commerce Act, and no questions are raised under that act by the evidence in the case. Hence Ellison v. Adams Express Company, 245 Ill. 410, is not applicable. In that case the shipment was made by the consignors to their own order and there was no evidence, and claim made thereon, that they knowingly and wilfully by failing to state the value, obtained the transportation at less than the regular rate in violation of the Interstate Commerce Act. There is no such evidence in this record.

The defendant asked a peremptory instruction in its favor, at the close of all the evidence, having first tendered the sum of $50 to the plaintiff, and kept the tender good in court. The court overruled the motion for a peremptory instruction and refused to give the instruction. The court also refused instructions submitting the question to the jury under the New York law limiting the recovery to $50, and all other instructions upon the right of the plaintiffs to recover more than $50 under the contract in question. These .rulings of the court, as well as certain rulings on evidence, are assigned for error in this court.

The first question in contention between the parties is whether the contract of shipment here involved is a New York contract or an Illinois contract.

The second question of importance in the case is whether as matter of law the receipt in evidence is to be treated as a binding contract between the parties in each and all of its provisions.

The further contention between the parties is whether the clause of the receipt limits the right of recovery in case of the loss of the goods, to the sum of $50, because the true value is not stated therein, or whether plaintiffs, notwithstanding the restriction as to the question of carrier’s liability, can recover the full value of the goods as shown by the evidence.

The evidence shows without dispute that the contract of shipment here involved was made in New York State, and under the well settled rule of law, it must be held that it is a New York contract, and governed by the laws of New York applicable to such a contract, both as to the interpretation and effect of the contract. Pennsylvania R. R. Co. v. Fairchild, 69. Ill. 260; M. & St. P. Ry. Co. v. Smith, 74 Ill. 197; Merchants Dispatch T. Co. v. Furthmann, 149 Ill. 66.

The law of the place of the contract will be enforced in our courts although opposed to the law of this state, unless to enforce it would contravene our criminal laws, or would sanction vice or immorality, or be opposed to natural justice, or transgress a positive prohibition of law, or be opposed to the general interests of our citizens. Phinney v. Baldwin, 16 Ill. 108; C. & E. I. R. R. Co. v. Rouse, 178 Ill. 132.

jJVe deem it unnecessary to discuss the question as to whether the law of this state differs from the law of New York, for the law of New York must govern the case, for the reason that it does not fall within any of the exceptions to'the rule that the law of the state where the contract is made must be applied to the contract. In other words the public policy of this state, or the considerations above enumerated, do not apply to the contract in qnestiorfl

The second question is as to whether as a matter of law the receipt in evidence is to be treated as a binding contract between the parties, in each and all of its provisions. Upon that question the defense offered in evidence the statutes of the State of New York establishing and showing the jurisdiction of its courts, and decisions of those courts were read in evidence at the trial. The decisions of the New York State courts show that the law of that state is well settled as to the effect of the acceptance of a receipt from a common carrier, at the time of shipment of goods, containing provisions limiting its liability. The decisions show that snch a provision in a contract between the parties, in the absence of fraud, misrepresentation or concealment, constitutes a valid and legal contract, and that where a receipt such as the one given in evidence in this case is made out and accepted, under the conditions shown as to the receipt in question here, the shipper and consignee are bound by the provisions thereof, and that the receipt constitutes the contract between the parties. Magnin v. Dinsmore, 56 N. Y. 168; Belger v. Dinsmore, 51 N. Y. 166; Tewes v. North German Lloyd Steamship Company, 186 N. Y. 151; Kirkland v. Dinsmore, 62 N. Y. 171; Zimmer v. N. Y. Central R. R. Co., 137 N. Y. 460.

We must hold, therefore, that the receipt in question, including the provision for the limitation of liability to the sum of $50, constitutes the contract between the parties, and that a recovery of more than $50 cannot be allowed under the contract in question.

It follows, from these considerations, that the court below erred in refusing to instruct the jury, as requested, that the defendant’s liability would be limited to $50, and in refusing the peremptory instruction for the defendant on the ground that under the evidence no larger verdict could be recovered.

We think also that the rulings of the court in allowing interest were erroneous. There is no evidence in the case of any unreasonable or vexatious delay. A tender of $50 was promptly made by the express company.

The verdict and judgment is excessive in amount. The court also erred in not permitting the cross-examination of Ginsburg as to plaintiff’s title to the goods in question.

For the reasons given the judgment is reversed and the ease remanded.

Reversed and remanded.


text:
    John F. Devine, Administrator, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant.
    Gen. No. 15,450.
    1. Pleading—when declaration states cause of action. Held,, that the declaration in this case stated a cause of action where it charged that the death of the plaintiffs intestate (who was a car repairer) was caused by the negligent striking of him by an engine which had approached without the giving of warning.
    2. Master and servant—right of latter to rely upon observance' of custom. A servant working as a car repairer upon a track is entitled to rely upon a custom of giving warning to employes so engaged, and the doctrine of assumed risk does not apply.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Certiorari denied by Supreme Court' (making opinion final).
    Affirmed.
    Opinion filed April 7, 1911.
    W. O. Johnson, Gale & Johnson and W. L. Reed, for appellant.
    Beach & Beach, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This action was brought by the administrator of the estate of Luigi Russo, deceased, against the Chicago & Erie Railroad Company, James Briney, and the Chicago & Western Indiana Railroad Company. At the trial it was dismissed as to defendant Briney, and was submitted to the jury as to the other two defendants. The jury returned a verdict against the Chicago & Western Indiana Railroad Company alone, for $2,000, and returned no verdict as to the Chicago & Erie Railroad Company. The suit was later dismissed as to the last named defendant. Judgment was entered on the verdict against appellant.

The declaration contains one count in which the negligence alleged is that both defendant companies possessed, used and operated a certain railroad; that the Chicago & Erie Eailroad Company possessed a certain locomotive which was under the care of James Briney, as engineer, who was in the employ of the Erie Eailroad Company, and was driving the locomotive along the railroad; that the deceased, Eusso, was in the employ of the appellant as a day laborer in a gang of track repairers, and while Eusso, with all due care and diligence for his personal safety was engaged in performing his duties under the direction of appellant, the defendants carelessly, negligently and improperly drove, or caused to be driven, the locomotive upon and along the track which Eusso was engaged in repairing, and carelessly and negligently failed and neglected to ring a bell, sound a whistle, or to give other proper warning of the approach of the locomotive, and as a result of the negligence and improper conduct of the defendants, the locomotive violently struck Eusso, and he was thereby killed.

It is further alleged that Eusso left him surviving his widow, a son and a daughter, naming them, his next of kin, and only surviving heirs at law, who are still living, and that by reason of the death of Eusso they have been deprived of their means of support.

The evidence offered and received on the part of the plaintiff tends to prove that at the time Eusso was killed the locomotive then operated by the Erie Company did not stop at all, did not ring a bell or blow any whistle, but came from the south to the gang of men ■engaged in working upon the track at a speed of about twelve miles an hour; that there were about sixty men in the gang, all near together, except four or five of them, and that Eusso was working with his partner some little distance north of the main body of workmen; that all of the gang got out of the way of the locomotive, but Eusso and his partner were run down and killed by the locomotive.

The evidence offered on the part of the defendants tends to controvert the evidence of the plaintiff.

It is urged as a ground of reversal that the declaration does not state a cause of action against appellant, and that the evidence does not support the declaration. We are of the opinion that the declaration states a cause of action against appellant, and that the evidence offered on behalf of the plaintiff tends to prove the negligence averred in the declaration. Considering the whole evidence in the case, we think it warranted the verdict of the jury. We cannot say that the manifest weight of the evidence in the record tends to show that Eusso came to his death by reason of his own carelessness and without any negligence on the part of appellant. Nor can we reach the conclusion that Eusso came to his death by reason of danger, the risk of which he assumed. From the evidence the conclusion is warranted that Eusso was entitled to rely upon appellant’s foreman to warn him of an approaching locomotive, and the custom of sounding a whistle or ringing a bell whenever a locomotive was approaching or passing over sections of the road under repair, when workmen were at work on the tracks and liable to be struck by such approaching locomotive. The jury might and did infer from the evidence that the rules or customs of procedure as to giving warning to Eusso, shown by the evidence, were violated by appellant’s foreman and by the engineer of the locomotive, and that the deceased came to his death as a direct result thereof and while in the exercise of due care for his own safety. Illinois Steel Co. v. Ziemkowski, 220 Ill. 324. The servant does not assume risks arising from the master’s negligence. Western Stone Co. v. Muscial, 196 Ill. 382; City of LaSalle v. Kostka, 190 id. 130; Sinclair Co. v. Waddill, 200 id. 17.

Upon the facts averred in the declaration and the evidence offered in support thereof, we do not think that instructions 1 and 3 are erroneous, in that they entirely ignore the defense of assumption of risk by the deceased. The facts averred in the declaration impliedly negative the assumption by Eusso of the risk of injury caused by the direct negligence of appellant as alleged. The work Eusso was doing was not imminently dangerous, and if appellant had not neglected to perform its duty to deceased, there would have been no danger and no injury. If it was dangerous, it was being performed under the directions of appellant, and Eusso was relieved from the assumption of risks incident thereto. North C. S. R. R. Co. v. Aufmann, 221 Ill. 614. In the Aufmann case, in passing upon an instruction to the effect that if the jury believed from a preponderance of the evidence the plaintiff had proved his case as laid in the declaration, or any count thereof, they should find the defendant guilty, held, that the instruction was good, and distinguished Ill. Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243, .cited and relied upon by appellant in support of its criticism of the instructions. Under the authorities cited above, we do not think the doctrine of assumed risk applies to the facts averred in the declaration and proved by the evidence. We think the instructions were proper as applied to the facts averred and proved in this case. Furthermore, under instructions 8 and 17, given at the request of appellant, it cannot complain of a verdict given under the instructions complained of, for they proceed upon the same hypothesis.

Finding no error in the record, the judgment is affirmed.

Affirmed.


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    Lemuel M. Ackley, Plaintiff in Error, v. Agnes V. Ackley, Defendant in Error.
    Gen. No. 16,638.

      Decbee—how must be supported. A decree granting separate maintenance, allowance for support and solicitor’s fees unless supported by the evidence contained in the certificate of evidence or by findings in the decree, will be reversed.
    Divorce. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 7, 1911.
    Leo V. Boeder, for plaintiff in error.
    William H. Holly, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Plaintiff in error filed his hill for divorce in the Superior Court of Cook county against the defendant in error, and subsequently his amended bill. Defendant in error filed her answer thereto, and plaintiff in error filed his replication. Thereafter defendant in error filed her cross-bill for separate maintenance, alleging that cross-defendant had been guilty of certain specific acts of cruelty. Cross-defendant filed his answer thereto, denying each alleged act of cruelty. Upon the hearing before the court a decree was entered dismissing plaintiff in error’s bill and granting the prayer of the cross-bill. The decree orders the plaintiff in error to pay defendant in error $10 per week as and for separate maintenance for herself and their two children, and the costs to be taxed in the cause, including $200 solicitor’s fees, which were to be paid on or before December 10, 1908. The decree contains no findings of fact, and it is not supported by a certificate of evidence, as appears by the record. The decree is therefore reversed and the cause is remanded.

Reversed and remanded.


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    Frank W. Rieder et al., Appellees, v. Levi B. White et al., Appellants.
    Gen. No. 16,890.

      Injunctions—what essential to granting without notice. To avoid the necessity of notice under the statute the complainant must show such facts by sworn statements, either in the bill or by affidavit, as will lead the court to the conclusion that the rights of the complainant will be unduly prejudiced if notice be given before the writ issues.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Abthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed April 7, 1911.
    Benjamin C. Bachrach, for appellants.
    Beach & Beach, for appellees.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an appeal by Levi B. White, Benson Landon and Arthur C. Bachrach, defendants below, from an interlocutory injunction order of the Superior Court entered against them on July 22, 1910.

The bill of complaint was filed on that day, and avers that the complainants, Prank W.- Rieder - and Edith K. Rieder, his wife, of the city of Chicago, county of Cook and State of Illinois, were, on that day, the owners in fee simple of the following described lands, to wit: The southeast quarter of the southwest' quarter and the southwest quarter of the southeast quarter of Section thirteen, township nineteen, range two east, also the northeast quarter of the northwest quarter, and the northwest quarter of the southeast quarter of section twenty-four township nineteen, range two east, situated in Juneau county, State of Wisconsin; that said lands were on that date and for several months prior thereto, of the fair cash value of $960, or six dollars per acre, and were subject to certain liens or encumbrances for taxes and assessments theretofore levied thereon, but not then due and payable; that prior to September 22, 1906, upon or about September 1,1906, Levi P. White, the defendant below, desired to purchase from complainants the above described lands, and the complainants offered to sell the lands to Levi B. White for $960 net to themselves, and White agreed to buy the land and pay therefor the sum of $960, and to take the lands subject to liens, encumbrances or charges against them, on account of any and all installments of taxes or assessments which should become payable thereafter; that prior to September 22, 1906, White personally inspected the lands and was informed of the taxes and assessments which had prior thereto been levied and were a lien or charge upon said premises, amounting to about $600, payable in annual installments during a period of years after September 22,1906, and agreed to assume and pay the installments of taxes and assessments so levied; that for the purpose of carrying out the verbal agreement above described between White and the complainants, on September 22,1906, a warranty deed was prepared, conveying and warranting the premises to White, which deed was executed by the complainants and was delivered by them to White, and White thereupon paid the complainants the price agreed upon for said conveyance, namely, the sum of $960; that by a mistake and an oversight of the complainants and of the defendant White, no apt or proper provision was inserted in the warranty deed to show that the conveyance was made by the complainants subject to the taxes and assessments above described, which had been theretofore levied against the property; that the complainants had no knowledge or information, and had no notice of any kind, until about three years after the deed was executed, that it failed to convey the lands in accordance with the contract or agreement for the sale thereof, which had been made,, and had no notice or information that White made any claim against the complainants, or either of them, by reason or on account of the unpaid installment of taxes or assessments which became payable after September 22, 1906, until on or about October 14,1909, when the complainant received a statement or bill from White of a claim by him of $625.38 for a drainage tax upon the land.

The complainants further aver that on or about June 24, 1910, the defendant, Levi B. White, commenced suit in the Municipal Court of Chicago against the complainants on a claim for breach of covenant of the warranty deed, and claiming from the complainants the sum of $625.55 by reason and on account of the taxes and assessments against said premises.

The bill claims and asserts that the claim against the complainant is inequitable and injust, and is, in effect, a fraud upon the complainants, and the prosecution thereof should be enjoined until the hearing of the cause, and that upon the hearing a decree should be entered perpetually enjoining the defendant White and his agents and attorneys from prosecuting the suit or claim, and that the deed made by the complainants should be reformed, so as to conform to the agreement or contract for the sale of the lands, and that they are informed and believe that unless the defendant White and his agents and attorneys be enjoined from prosecuting the suit in the Municipal Court of Chicago, a judgment will be entered against the complainants in the suit on July 26, 1910, because of the inability of the complainants to file any better, further or more specific affidavit of merits therein than has already been filed therein, and that the complainants will suffer irreparable injury by reason thereof; that Benson Landon and Arthur C. Bachrach, who are also made parties defendant, are the agents and representatives of White in the prosecution of the suit in the Municipal Court, and that they, together with White, should be enjoined from prosecuting the suit.

The bill further avers that in the deed above mentioned Levi B. White was described as a resident of the city of Chicago, county of Cook and State of Illinois, but the complainants are informed and believe that White is in Chicago only a portion of his time, and at present is not in the city of Chicago, and in consequence thereof it is impossible to serve notice upon him of the application for an injunction; that by reason thereof the complainants will be unduly prejudiced and will suffer irreparable injury if the injunction is not issued immediately, or without notice, restraining the defendants, their agents and representatives from prosecuting the suit in the Municipal Court. The bill is supported by the affidavit of the complainant, Frank Rieder, which says that he is one of the complainants in the foregoing bill of complaint, and has read the same, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters and things which are therein stated to be upon information and belief, and as to those matters and things he believes them to be true. No other affidavit was presented to the court, according to the record, upon the application for an injunction.

Section 3 of chapter 69, Hurd’s Revised Statutes, entitled “Injunctions,” reads as follows:

“No court, judge or master shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can be conveniently served, unless it shall appear from the bill, or affidavits accompanying the same, that the rights of the complainant will be unduly prejudiced, if the injunction is not issued immediately or without such notice.”

We think the statute contemplates that either in the bill or affidavit such facts must be stated from which the court can see that irreparable injury will ensue unless the injunctional order prayed for is issued without notice. The courts in this State have frequently-held, under this statute, that to avoid the necessity of notice under the statute, the complainant must show-such facts by sworn statements, either in the bill or by affidavit, as will lead the court to the conclusion that the rights of the complainant will be unduly prejudiced if notice be given before the writ issues. Goldberg v. Laughlin, 137 Ill. App. 283; South Park Commissioners v. Farson, 119 Ill. App. 337; Sprague v. Monarch Book Company, 105 Ill. App. 530.

We find in the bill no statement of any fact constituting a reason for the complainants to fear that irreparable loss will be suffered by them unless the injunction is issued without notice. The mere conclusion of the pleader is stated. The bill was filed and the injunction was issued four days before there could have been any judgment entered in the Municipal Court in the suit mentioned in the bill. No facts are shown in the bill from which the court can infer that irreparable damages will follow the failure to grant the injunction without notice. There appears simply the statement that the complainants are informed and believe that White is in Chicago only a portion of his time, and at the time the bill was filed was not in the city. From whom the' information is obtained, or the character of the information, or when the information was obtained, is not shown by the bill. What portion of time White is in the city and what portion of the time he is out of the city is not alleged, nor is it alleged how long he will remain out of the city; and for all that appears in the bill, White might have been in the county of Cook at the time the bill was filed. Further, it does appear that Benson Landon and Arthur C. Bachrach were shown to be the agents and representatives of White in the prosecution of the suit in the Municipal Court, and no facts are shown excusing the complainant from serving Landon and Bachrach with the notice of an application for an injunction.

The averments of the bill fail to show the statutory grounds for excusing the failure to give the notice required by the statute. For this reason we think that the injunction was improvidently granted, and the order appealed from must be reversed.

Reversed.


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    John Walker, Appellee, v. Jacob Walz and the Gaelic Athletic Association, Impleaded, etc., Appellant.
    Gen. No. 17,049.

      Injunctions—do not lie as substitute for ejectment suits. After the termination of a lease the remedy of the landlord is by action at law to recover possession rather than by bill in equity.
    Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed April 7, 1911.
    John J. Coburn and William H. Barnum, for appellant.
    Gardner, Carton & Gardner, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an appeal by The Gaelic Athletic Association from an interlocutory injunction order of the Superior Court entered against the Association on July 26,1910, upon a bill filed by John Walker, appellee, against Jacob Walz and the Gaelic Athletic Association.

The bill avers that the complainant Walker, long prior to March 1, 1908, and at the time that the bill was filed was the owner of the following described premises: Except the right of way of railroad the east quarter of the northeast quarter of section 12, township 38, north, range 14, east of the third principal meridian in Cook county, Illinois; that prior to March 1, 1908, certain parties unknown to the complainant, but whom he believes to be the representatives of the Gaelic Athletic Association applied to Henry A. Gardner, complainant’s agent, for a lease of a part of the premises, for the use of a ball park, and Gardner, acting under the complainant’s instructions, informed said parties that under no circumstances would the complainant lease the premises for use as a ball park, and still less would he lease them for five years; that on March 9, 1908, the complainant made a lease of said described premises to one Jacob Walz, defendant in the bill, and that in said lease it was expressly agreed that the premises were to be occupied as a farm only by the lessee for a term commencing April 1,1908, and ending March 31, 1912, and said lease provided that the lessee should not assign the lease, or sub-let the premises, or any part thereof, without the complainant’s written consent endorsed thereon, and that the lease might be terminated by the complainant on ninety days’ written notice.

The bill shows that the premises are in Chicago and are valuable, and if used as a ball park, or place of public entertainment, or for the sale of liquors, or if leased for a long period, so that the complainant could not sell or lease and deliver possession thereof, great damages would be caused to the complainant; that after the making of the lease to Walz, and without the knowledge of the complainant, or his agent Gardner, Walz made a lease of a part of the premises to one James F. Cassidy, and Cassidy thereupon placed the Gaelic Athletic Association in possession, but made no lease to it so far as the complainant is informed and believes, but on December 21, 1909, Cassidy made a written assignment of all his interest in the lease to a corporation known as the Illinois State Gaelic Athletic Association, and that the Association entered into possession of the premises by some agreement with Cassidy unknown to the complainant, erected buildings thereon, and opened a saloon for the sale of intoxicating liquors on the premises, and that it continues to be and is now in possession thereof; that the complainant had no knowledge of the leasing of the premises to Cassidy by Walz until recently nor of the occupation of the premises by Cassidy or the Association; that he first had notice that the Association was occupying the premises about February, 1910, and immediately thereafter notified Walz that he had elected to terminate immediately the lease to Walz for violation of the conditions and covenants thereof; that the complainant has never authorized any different use of the premises than that specified in the lease to Walz, and has never authorized Walz to sub-let or assign the lease, nor authorized the making of the lease to Cassidy, nor has he authorized Cassidy or the said Association to take or remain in possession of the premises, and he never has received any rent from the lessee, or the Association; that the Association is still in the possession of the premies using the same as an athletic field, giving public entertainments to a large number of football teams and hurling clubs, and maintaining a saloon for the sale of liquors, which use of the premises will operate to the great damage of the complainant.

The bill makes the Association and Walz defendants, and prays for an answer to the bill, waiving the oath to the answer and for an injunction from using the premises or any part thereof as an athletic field, and giving public entertainments thereon, either by games between football teams or games between hurling teams or otherwise, and from operating a saloon thereon, and from using the premises or any part thereof for any use inconsistent with farming purposes, and that Walz and the G-aelic Athletic Association may be required to surrender possession of the premises forthwith.

The defendant, The G-aelic Athletic Association, answered the bill on May 28, 1910, setting up that it had been in possession of the premises and using them as a ball park for amusement and entertainment purposes, and denying that it occupied the ground without the knowledge and consent of complainant or his agent. It denies that it is occupying the premises and operating a saloon thereon without the knowledge and consent of complainant or his agent, and denies that the complainant is entitled to the relief demanded by the bill, and prays that same advantage of the answer as if the defendant had pleaded or demurred to the bill, and denies all other allegations of the bill.

ITpon the hearing of the motion for an order for an injunction the complainant offered in evidence his lease to Walz, and the affidavits of Henry A. Gardner, James F. Cassidy, John T. Cahill, Michael Sullivan, David T. Layman, Jr., and the complainant stating facts tending to support the averments of the bill.

From a reading of the bill we are of the opinion that it does not set up sufficient facts to show that the controversy is one over which a court of equity has jurisdiction. It seems to be a controversy in which the complainant has a complete and adequate remedy in. law by an ejectment suit or by a forcible detainer suit. It seems to us to be in reality an ejectment bill, and it cannot be maintained as such. The bill shows that the lease and all rights under it have been terminated, and that there is no possible reason why the complainant should not resort to his legal remedies above suggested, which will afford him a complete and adequate relief more expeditiously than a bill in equity.

We think that a court of equity was without jurisdiction to enter the injunctional order appealed from and that this sufficiently appears upon the face of the bill. The case made by the bill presents no ground for equitable relief, and the granting of the injunction was therefore without authority of law, and the order is therefore reversed.

Reversed.