author: Me. Presiding Justice Thompson

text:
    Frank L. Kyser, Appellee, v. M. L. Miller, Appellant.
    Gen. No. 5,046.
    1. Appeals and errors—what not final judgment. A judgment entered upon a particular issue in a cause is not final; the entire case must be disposed of by a judgment before the right or obligation to appeal arises.
    2. Contracts—what does not impart validity to void. A note void by virtue of statute even "in the hands of an innocent purchaser for value before maturity, cannot be rendered valid by matter of estoppel, as, for instance, the assurance of the maker to the purchaser that it was a valid obligation.
    Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed October 14, 1908.
    Statement by the Court. This is an action of assumpsit, brought in the Circuit Court of Livingston county, by Frank L. Kyser, appellee, against M. L. Miller and H. B. McGregor upon a promissory note dated April 27, 1905, for $500 payable to the order of H. B. McGregor, one year after date, with interest from date at six per cent. The note was indorsed by McGregor to appellee before maturity. The declaration contains two special counts against the maker and the indorser of the note and the common counts. The defendant Miller filed a plea of the general issue and special pleas alleging in various forms that the consideration for the note was money lost in illegal speculation and gambling on the market price of grain, options to buy and sell grain at a future time, puts and calls and margins for differences, etc., and averring that the note was void and of no effect under section 131 of the Criminal Code. The plaintiff filed a replication to the special pleas averring that the defendant should not be admitted to plead that the consideration of the note was for gains and losses in gambling, etc., because the plaintiff purchased the note before maturity, and before purchasing inquired of the defendant if the note was a just and legal obligation and all right, and the defendant Miller thereupon stated the note was given for value received, and that he, the plaintiff, might safely buy the same, and at that time the plaintiff had no knowledge of the facts attending this giving of said note and believing and relying on the statements of defendant Miller to be true, plaintiff was misled and induced to buy said note, and would not have purchased said note but for said statement, and prays judgment if the said Miller ought to be admitted against his own acknowledgment to plead, etc. The defendant filed a demurrer to this replication which was overruled. A rejoinder was then filed to the replication on which issue was joined. The defendant then withdrew the general issue and at the January term, 1907, the issue on the replication of estoppel was tried before a jury. At the close of the evidence the defendant requested an instruction directing a verdict for the defendant which was refused. The jury returned a verdict finding the issue in favor of plaintiff but did not assess plaintiff’s damages. The defendant then made a motion for a new trial which was overruled at the May term. Judgment was entered at the October term, on December 30, ,1907, that the defendant be barred from pleading the special pleas and that plaintiff recover his costs. The defendant Miller excepted to the action of the court in overruling the motion for a new trial and entering a judgment, and prayed an appeal and filed a bill of exceptions. The defendant Miller then entered a motion for leave to refile the general issue. This motion was overruled. He then moved that plaintiff’s damages be assessed by a jury; this motion the court .allowed. After various other motions and rulings the defendant Miller at the October term, 1907, was permitted to refile the general issue and an affidavit denying the execution of the note in manner and form as alleged in the declaration. In the note sued on the words “if not paid when due,” referring to the interest, are erased. The defendant in his evidence on the final hearing claimed the words “if not paid when due” were erased after the delivery of the note. A trial was had at the January term, 1908, on the issue of the execution of the note, and a verdict was found for plaintiff assessing his damages at $583.30. A motion for a new trial was overruled and judgment rendered on the verdict. The defendant Miller duly preserved exceptions and appeals to this court.
    Thomas Kennedy, John F. Bosworth and McIlduff & Thompson, for appellants.
    A. C. Norton and White & Tuesburg, for appellee.
   Me. Presiding Justice Thompson

delivered the opinion of the court.

The appellee has made a motion in this court to dis-. miss' the appeal so far as the same affects the judgment of the Circuit Court of December 30, 1907, on the issue of estoppel, on the ground that it is a final judgment and no appeal lies therefrom unless prayed and perfected at the term at which it was rendered. There was only one issue in the case when the first trial occurred. The jury when it found that issue for the plaintiff did not assess plaintiff’s damages. On November 7, 1907, the appellant by leave of court refiled the plea of the general issue. Thereafter on November 19, appellee moved for judgment on the verdict of estoppel. The judgment rendered December 30, on the issue of estoppel, did not dispose of the case and was not a final judgment, and no appeal could he taken therefrom until a final judgment disposing of the case was rendered. Wenom v. Fossick, 213 Ill. 70, 115 Ill. App. 605; Practice Act of Ill. sec. 91. The motion to dismiss the appeal is therefore overruled.

Appellant assigns for error that the trial court erred in overruling the demurrer to the replication of estoppel, filed in answer to the special pleas, which sets up facts which bring the consideration of the note within the provisions of the Criminal Code. Section 130 of the Criminal Code provides that whoever contracts to give another the option to buy or sell at any future time grain, etc., shall be fined, etc., and all contracts made in violation of this section shall be considered gambling contracts and shall be void. Section 131 provides that all notes made by any person where the whole or any part of the consideration shall be for money won by any gaming shall be void. Section 136 provides that no assignment of any such note shall in any manner affect the defense of the person executing the same. If the note was void because it was given for an illegal consideration, is the appellant estopped to plead the defense given to Mm by the statute, because he said to the appellee, before appellee purchased the note, that it was not given for any illegal consideration or any consideration which was contrary to the laws of the State of Illinois and thereby induced appellee to buy the note? The statute makes a note given in a gambling transaction void in the hands of an innocent purchaser, not as a favor to the signer of the note, but as a matter of public policy. If what appellant said can be construed as a promise there was no consideration for it and it was nothing more than a promise to pay a gambling debt. It was only a repetition of the original act of making the note. If a contract which is void or of no effect under the statute can be made a legal and valid contract by a subsequent statement of the maker, then the public policy of the state as declared by the statute can be forestalled, and the statute made of no effect. “It has been in general terms held that there cannot be any estoppel against showing that a contract is made void by the statute.” Dow v. Higgins, 72 Ill. App. 303; Treat v. Snydecker, 92 Ill. App. 458; Burkee v. People, 53 Ill. App. 396, affirmed in 155 Ill. 354; Shenk v. Phelps, 6 Ill. App. 612; Bigelow on Estoppel, 558, note; Rosebrough v. Ansley, 35 Ohio St. 107; Coppell v. Hall, 7 Wall. (U. S.) 542; Oscanyan v. Arms Co., 103 U. S. 268. We hold that a contract which is made void by the statute as being against public policy cannot be made valid by matter of estoppel. The court erred in overruling the demurrer to the replication to the special pleas, and the trial on the replication of estoppel was upon an immaterial issue. The judgments on the two verdicts are reversed, and the case is remanded for further proceedings in conformity with the opinion of this court.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Peter Eidem, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 4,937.
    1. Vbbdict—when set aside as against the evidence. While it is true that it is the province of the jury to determine conflicts in the evidence and the duty of the court to give their verdict due and careful consideration, yet when it is apparent that, such verdict may have been' brought about by some error of law on the part of the trial court or by passion, prejudice or bias on the part of the jury, it is equally the duty of the appellate court to set aside the judgment.
    2. Vbbdict—when set aside notwithstanding remittitur. A large verdict reduced by a considerable remittitur may be set aside on review if such action would best tend to promote an impartial administration of justice, as such a verdict which does not show complete accord between the trial judge and the jury is not entitled to the same presumptions as being fair as are accorded to a verdict where no such discord appears.
    3. Instructions—when upon preponderance of evidence erroneous. An instruction upon this subject is erroneous which merely tells the jury “that the weight of the testimony does not necessarily depend upon the greater number of witnesses sworn on either side of the question in dispute,” but that the jury are at liberty, as jurors, to consider all the facts and circumstances appearing from the evidence in the case and determine from that which of the witnesses are worthy of the greater credit.
    Dibell, J., dissenting.

      Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 14, 1908.
    Rehearing denied October 14, 1908.
    Jackson, Hurst & Stafford, for appellant; Benjamin S. Cable, of counsel.
    Searle & Marshall, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

As appellee, Peter Eidem, was crossing from a passenger car to the depot platform or station grounds at Moline, Illinois, he was struck by an engine of appellant, the Chicago, Bock Island & Pacific Bailway Company, and his legs so mangled that they had to be amputated above the knees. He brought this action in the Circuit Court of Bock Island county to recover damages therefor. The declaration as originally filed contained four counts, to which, at the close of the evidence, by leave of court, five more were added. The court directed the jury to disregard the first count of the original declaration. The substance of the negligence charged in the various counts is, that appellant made it a practice not to stop its train but negligently slackened the speed and compelled plaintiff and the other workmen to leap therefrom while it was in motion; that it negligently ran its road engine at a high and dangerous rate of speed and at a rate of speed forbidden by an ordinance of the city of Moline; that it negligently ran its engine without continuously ringing a bell in violation of an ordinance of said city; that it negligently ran its road engine between the depot platform and the passenger car from which plaintiff was alighting. The declaration in each count also averred due care on the part of appellee while alighting from the car and crossing to appellant’s depot platform. A plea of not guilty was interposed, a trial had resulting in a verdict for appellee of $25,000, a motion for a new trial was made, a remittitur was required by the court and entered for $9,000, the motion for a new trial was overruled, judgment was entered on the verdict for $16,000 and this appeal was taken by the defendant.

The evidence shows that appellant operated a double track railroad running east and west through the city of Moline, the east-bound track being next its depot. The space used for depot purposes consisted of a triangular strip of land extending from the east line of Thirteenth street to the west line of Fourteenth street in said city, a distance of 328.4 feet measured along the east-bound track, which strip outside the building was paved with brick and used for station purposes. Standing thereon with its west line 12.5 feet east of the east line of Thirteenth street, was the depot or station building 80.5 feet long and 26.77 feet wide, and adjoining it on the east, a baggage- room, 24.2 feet long and 20.5 feet wide. Along the middle of the north side of the main part of the depot, extended a wooden platform about 40 feet long with steps at each end leading to the pavement. In January, 1906, appellee who lived at Moline entered the service of appellant and worked from 1 p. m. to midnight daily as freight truckman at Silvis, some six miles east of Moline. A number of men who lived at Moline and other stations west worked at Silvis, and appellant ran a train consisting of a switch engine and one passenger car from some point west of Moline to Silvis and back, to carry these laborers to and from their homes. At one o ’clock a. m. on April 11, 1906, appellee with fifteen or twenty other workmen left Silvis on this work-train which proceeded to Moline on appellant’s west-bound track. When it was between Fifteenth and Fourteenth streets,' appellee went to the front platform, and between Fourteenth and Thirteenth streets stepped or jumped from the lower step and was struck by a road engine running east on the east-bound track.

Appellee testified that he went out on the platform when the train was between Fourteenth and Fifteenth streets and stayed there until they were opposite the depot, when Jie got off. Just as he stepped on the track he saw the light of the approaching road engine about ten or fifteen feet away but did not hear the bell ring at any time. The head light was not bright but reddish or yellow and the place where he stepped off was directly in front of the steps which go into the depot. On cross-examination, he stated that he was the first one out of the car and that he stood on the step and did not look. He did not know whether a train was coming or not. He thought if he had stuck his head out he could have seen. When he got off he did not look to see if anything was coming. The work-train was moving when he got off and he did not think of such a thing as a train coming in there and did not pay any special attention to anything but getting off. He had plenty of time to look if he had thought a train was coming. He never knew the train to stop when he got off. They always got off before it stopped. Henry Maude, who also worked at Silvis for appellant, and who was on the work-train at the time of the accident standing directly behind appellee on the platform when he alighted from the car, testified that the custom was not to stop this work-train when the men got off. At the time of the accident it was going at about two miles per hour. He did not hear a whistle sound or a bell ring on the road engine. Maude said that appellee at the time he was struck was right opposite the steps on the east side of the depot. In his judgment the road engine was going at from ten to fifteen miles per hour and had a red or yellow head light, which in his judgment was an oil light. When appellee was struck he was opposite the. main door of the depot and when he was picked up he was four or five feet east of the baggage room. John Peacock testified that he went to the scene of the accident, where his attention was called to one of appellee’s feet wedged in the rail about five or ten feet east of the baggage room. Swan Larson, a patrol man at Moline, testified that he went to the scene of the accident and saw appellee’s foot squeezed in between the rail and planlc ten or fifteen feet east of the east end of the depot. Robert Carlson, employed by appellant at Silvis and on the work-train at the time of the accident, testified that sometimes the train would stop when it reached the station at Moline and sometimes it would not. He thought the train had stopped when appellee stepped off. The engine that struck him was going at the rate of from ten to fifteen miles per hour. He did not think the whistle was blowing. The engine had a light which he knew was not an electric light. Dale Baird, employed at Silvis by appellant and on the work-train at the time of the accident, testified that sometimes the train would stop at the Moline depot and sometimes it would not. The engine that hit appellee was going at the rate of from fifteen to twenty miles per hour and the work-train stopped as it passed. Appellee was about opposite the northeast corner of the baggage room after he was struck. Witness did not hear the bell on either engine and did not lmow whether the whistle on either engine was blown. Richard Thomas, fireman on the road engine, testified that their engine was going about four miles per hour and that its bell was ringing when it passed through Moline. When it stopped, the tender was opposite where appellee’s legs were cut off, just ninety-two feet from the west edge of Fourteenth street. The work-train was going about as fast as their engine when appellee got off. On cross-examination he testified that the engine had an electric light and that he first saw the ear of the work-train when the road engine was just east of Thirteenth street. The switch engine was Crossing-Fifteenth street when he first saw it. The whistle on the road engine was not blown then because there was no reason for it. He thought they had plenty of time to meet the switch engine before it reached the depot. They passed about 100 feet east of the depot and the road engine stopped in about sixty-eight feet. When it stopped it was ninety-two feet from the west line of Fourteenth street. Appellee was struck 117 feet east of the east end of the baggage room. Henry Geisenhagen, engineer on the road engine, testified that the engine had an electric head light and that it was lighted that night. It also had an automatic bell ringer and the bell was ringing when they passed through Moline. He first saw the switch engine when it was near Fifteenth street. His engine was going four or five miles per hour and the switch engine about as fast. He stopped his engine about seventy or eighty feet from Fourteenth street after appellee was struck. The road engine did not come between the work-train and the depot, and the train was not at the depot at the same time as the road engine. The work-train stopped close to Thirteenth street. James Hughes, fireman on the switch engine, testified that the road engine had an electric head light and was going about five miles per hour. He did not remember any nights that they had not stopped at Moline depot. He heard the bell on the road engine ring and said that appellee was about eighty feet from the depot when he was struck. The switch engine stopped so that the pilot was even with the baggage room, and as the cabs of the engines passed they were about thirty feet east of the baggage room. Fred Shaw, engineer on the switch engine, testified that the engines passed about sixty feet east of the baggage room. The work-train was going about four miles per hour. The bell on the road engine was ringing. He helped to take appellee’s foot from the track where it was wedged in, ninety-two feet from Fourteenth street. There was no night when they did not stop at Thirteenth street, and they always came to a full stop at the depot. August Sandberg, employed by appellant at Sil vis, and on the work-train at the time of the accident, testified that the train always stopped at Moline. He judged it was going four or five miles per hour at the time of the accident. Frank Strong, switchman in charge of the train crew on the work-train, testified that the road engine had an electric head light, and that he saw appellee’s legs wedged in next the rail about eighty-five feet from the east end of the baggage room. He did not hear the whistle or bell on the road engine. Oscar E. Samuels, employed by appellant at Sil vis, and on the work-train at the time of the accident, testified that it was the custom to come to a full stop at Moline. The road engine had a bright light and the work-train was going about three or four miles per hour. It always came to a full stop at the depot at Moline whether the men got off or not. He judged the road engine was going not over four miles per hour, and he did not hear the bell or the whistle. Henry G-lick, switchman on the train crew of the work-train at the time of the accident, testified that the work-train stopped east of the depot. The road engine had an electric head light and was not going more than four or five miles per hour.. The work train passed the road engine east of the depot seventy-five or eighty feet, and always came to a full stop at Moline. The men were in the habit of getting off before the train stopped every night and he had warned them not to do this. Appellee testified in rebuttal that he never was warned and never heard any such warning given.

There is no evidence tending to establish the averment that appellant compelled appellee to alight from the work train before- it stopped. There is some evidence tending to show that when appellee alighted from the work train it had stopped and was opposite the depot platform, but the preponderance of the evidence seems to be that it had not stopped but was running slowly and was still east of the depot building. It will be observed that the evidence is in great conflict as to whether,the road engine was running slowly or rapidly, under or above the rate of speed prescribed by the ordinance, and as to whether its bell was continuously ringing as the engine approached and passed the work-train. In fact the evidence is sharply conflicting upon every averment of negligence contained in appellee’s declaration on which there is any proof whatever, and also as to whether the acts of appellee indicated due care on his part. While it is true that it was the province of the jury to determine such conflict, and the duty of the court to give their verdict due and careful consideration, yet when it is apparent that their verdict may have been brought- about by some error of law on the part of the court or by passion, bias or prejudice on the part of the jury, it is equally the duty of the court to set aside the judgment.

In view of the fact that this judgment must be reversed and the cause submitted to another jury, we refrain from expressing any opinion on these disputed facts in this record.

Complaint is made of appellee’s fourth instruction which reads as follows:

“The jury are instructed that the weight of the testimony does not necessarily depend on the greater number of witnesses sworn on either side of the question in dispute, but you are at liberty as jurors, to consider all the facts and circumstances appearing from the evidence in the case, and determine from that, which of the witnesses are worthy of the greater credit.”

This instruction admitted the element of numbers which should have been considered by the jury with all the other elements that are mentioned in the instruction. Gage v. Eddy, 179 Ill. 492. In Chicago Union Traction Company v. Hampe, 228 Ill. 346, the court in passing on an instruction that enumerated the various matters to be considered by the jury, omitting, however, any reference to the number of witnesses testifying pro and con, said, “it omitted one very important element and for that reason should have been refused.” In E. J. & E. Ry. Co. v. Lawler, 229 Ill. 621, the court in passing on an instruction containing the following words, ‘‘ The jury are instructed that the preponderance of evidence in a case is not necessarily alone determined by the number of witnesses testifying to a particular fact or state of facts,” said, “The element of numbers should be considered by them with all the other things which are mentioned in the instruction. * * * We do not think that this court has given its unqualified approval to this instruction, or that it might not be misleading in a case where the question of numbers was important and no other instruction given supplementing it.” In this case, the instruction complained of was not supplemental, and the number of witnesses testifying on some of the issues involved may have been material.

It is urged that appellee’s seventh instruction was erroneous. We have examined this assignment of error and cannot see that there was any prejudicial error in the ruling of the court in the respect complained of.

Appellant urges that the verdict for $25,000 can only be accounted for on the grounds of prejudice, passion or misconception oh the part of the jury and that the remittitur of $9,000 does not remove the prejudice, passion or misconception and argues that these elements may have entered and probably did, into the finding of facts, if not the issues themselves. The trial court recognized the fact that the damages as found by the jury were excessive and appellee conceded that they were and entered the remittitur. While it must be said that by the law as settled it is in the power of the trial court to enter judgment on verdicts, as the one under consideration was, to an amount satisfactory to the trial judge, and the entering of such judgment is not error, yet the judgment is anomalous and in a reviewing court cannot be entitled to the presumption of a fair verdict which results from concurrence upon all the issues by the jury and the court. C. & N. W. Ry. Co. v. Cummings, 20 Ill. App. 333. In the exercise of the revisory power of this court, we may reverse a judgment rendered under such circumstances as appear in the record in the absence of errors of law, where in our opinion such course would best tend to promote the impartial administration of justice.

In view of the conflict in the evidence, the error indicated in appellee’s fourth instruction, and the impeachment of the verdict by the trial judge in compelling a remittitur of thirty-six per cent, of the verdict, in which appellee concurred, the rights of the parties should be submitted to the consideration of another jury.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Dibell, dissenting.

I am of opinion that this judgment should be affirmed.


author: Mr. Justice Dibell

text:
    Charles Wertz et al., v. Appellees, v. Alice Mulloy, Appellant.
    Gen. No. 4,954.
    1. Mechanic’s liens—section 1 of act of 1908 construed. The words “authorized or knowingly permitted” contained in section 1 of the act of 1903 apply notwithstanding the person who contracted for the improvement had an interest in the property improved.
    2. Mechanic’s liens—“knowingly permitted” defined. One knowingly permits a thing to he done who, knowing that it is to be done, and being present when he can object, and who has an interest to object, does not object.
    3. Mechanic’s liens—against whom relief cannot he granted. A lien cannot be decreed against the interest of a party in land sought to be subjected if no allegations have been made against such party.
    4. Mechanic’s lien—what decree in favor of sub-contractors should provide. Under ordinary conditions the balance due the original contractor after payment of the preferred claims of laborers should be divided by decree pro rata among those who furnished material, but held, under the special facts of this case, that the award to the subcontractors, whose status under the evidence was practically that of an original contractor, should be extended beyond the sum due the original contractor and should be in full of all of the claims of such subcontractors.
    5. Appeals and ebbors—upon what error cannot he assigned. A question not raised in the trial court by the pleadings or otherwise cannot be first raised on review.
    Mechanic’s lien. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 22, 1908.
    Rehearing denied October 13, 1908.
    A. L. Granger, for appellant.
    Eben B. Gower and Smith & Marcotte, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

In September, 1903, Mrs. Athenaiss Mulloy, a widow, lived in a house upon a lot in an addition to the city of Kankakee with her daughter Alice Mulloy, and with the six children of a deceased daughter-in-law. Mrs. Mulloy was then between sixty-three and sixty-four years of age and Alice was thirty-six years of age. Another daughter, Mary Mulloy, was a teacher in Chicago, and considered this place her home. On September 23, 1903, Mrs. Mulloy entered into a written contract with W. P. McIIatton, by which the latter was to remodel said house and build a new addition thereto, according to plans and specifications, for $1,125, upon which Mrs. Mulloy was to pay 85% of the amount of labor and material on the ground as often as every two weeks, and the rest when the building was complete and accepted and proof made that no liens or claims stood against the building. The contract described Mrs. Mulloy as owner. The signatures thereto appear as follows:

“W. P. McHatton. [Seal.]
Athenaiss Mulloy. [Seat,.]
In the presence of Alice Mulloy. [Seal.]”

McHatton began the work soon thereafter, and about October 15 the family removed to another house in order to permit the work to proceed. Mrs. Mulloy was last out of her house on November 19, 1903. By Thanksgiving day she was seriously ill. By or before January, 1904, her physicians had forbidden that any one be allowed to see her. She died on February 28, 1904. In May, 1904, the building had reached such a condition that it could again be inhabited, and Alice Mulloy then moved back into it with the grandchildren. The work was completed in June, 1904. The long continuation of the work is not directly explained in the evidence, but the proof shows that Mrs. Mulloy personally and by the hand of Alice paid McHatton $100 on October 17, $300 on October 31, and $125 in December, all in 1903; and that nothing further was ever paid upon the contract, except that after this suit was begun Alice paid a small bill to one party who furnished hardware for the building. It is a fair inference from the proofs that this delay in payment delayed the completion of the building.

In fact, Mrs. Mulloy was not the owner in fee of the premises. She owned a life estate in these premises and also in a farm in Iroquois county. The remainder in this lot was in her daughters, Alice and Mary. In certain questions and answers it is implied that this was under the will of her deceased husband; Mrs. Mulloy left a will giving all her property to Alice and Mary, and appointing Alice executrix, and that will was duly probated. Alice introduced proofs in this case tending to show that this state of the title was fully made known by Mrs. Mulloy to McHatton. The testimony introduced by the lienors tends to show that all McHatton was given to understand by Mrs. Mulloy was that the property would go to Alice and Mary after her death, leaving him to suppose that she was the owner and intended to will it to them. The cross-examination and a later examination of the witnesses for Alice Mulloy tended to show that the statement made to McHatton was as indefinite as he claims.

Charles Wertz furnished lumber used in this building. Walter H. Smith was a stone mason and furnished brick, stone and mortar, and did work on the foundations and plastered the building. John Paulissen furnished mill work for the building, such as doors and door frames, window and window frames, etc., all after Mrs. Mulloy’s death. McHatton paid to Wertz $100 of the money he received from Mrs. Mulloy. Nothing further has been paid to these subcontractors and material men. On August 24, 1904, Wertz filed his bill against McHatton, Paulissen, Walter H. Smith and Alice Mulloy personally and as executrix for a subcontractor’s lien for the amount due him. This bill was based on the theory that Mrs. Mulloy was the owner when the contract was made, and that these premises passed to Alice by Mrs. Mulloy’s will. Alice answered, setting up that Mrs. Mulloy was only a life tenant, and that the remainder was in Alice and Mary. Wertz then filed an amended bill, to which Mary also was named as defendant. Mary does not seem to have been served with summons but she and Alice filed demurrers to said amended bill, which were sustained. Afterwards Wertz filed a second amended bill, which set up correctly the title, and sought to charge Alice by virtue of her conduct as hereinafter stated. Alice answered. Smith and Paulissen each filed his combined answer and cross bill, seeking a decree for the amount due him. Proofs were taken and reported by a master, and further proofs were heard before the court, and there was a decree in favor of Wertz, Smith and Paulissen, respectively, against the undivided one-half interest of Alice Mulloy in this property. She appeals from that decree.

There was a' sharp dispute as to the facts. We have, carefully read not only the evidence in the abstract, but also the evidence in the record, from which latter we gained a much more complete understanding of the controverted questions than from the abstract. The •proof introduced by appellees tended strongly to show that Alice participated with her mother in all the interviews and discussions with McHatton which preceded the preparation of the written contract; that she signed it in the manner above indicated for the purpose of being a witness to its execution; that after her mother’s illness began she took practical charge of directing the work; that both before and after her mother’s death she caused many radical and important changes to be made from what the plans and specifications required, and that she repeatedly promised Wertz and Smith to pay them for their work and materials upon the building and that she secured the completion of the work and the furnishing of the materials by her express and repeated promises to pay; that Paulissen made no contract with McHatton for the mill work, but that it was ordered directly by Alice from Paulissen, and furnished by him to the building or to Mc-Hatton upon her orders and upon her express promise to pay him therefor. Appellant denied many of these orders for changes; denied that the changes were so important and extensive as appellees claimed; and denied that she had ever promised to pay any of the claimants; and she also set up various slight defects in the work; and she denied that she contracted with Paulissen or ordered the mill work from him. It is not reasonable to, suppose that after Mrs. Mulloy’s serious illness, and after her death, these men would have continued to furnish labor and material and would have finished the building without any pay and without any assurances of pay from any one. Upon reading all the evidence upon these subjects in the record, we cannot say that the trial court decided these contentions erroneously and should have found the other way.

Section one of the act of 1903 in relation to mechanic’s liens gives a lien to any one whom the owner of a lot “has authorized or knowingly permitted to contract for the improvement of or to improve the same, furnish material, fixtures,” etc., for the improvement of such lot. The act of 1895 contained a similar provision. It is contended by appellant that the words “authorized or knowingly permitted” should not be applied to a case where the person who contracted to have the improvement made had some interest or estate in the lot upon which the improvement was to be made; and that as Mrs. Mulloy had a life estate in the property, the lien should have been confined to her life estate. To so hold would be to disregard the natural meaning of the words of the statute, and would practically defeat the statute. Even under former lien laws, it was possible for the owner to pursue such a course of conduct as to estop him from defeating a lien for an improvement put upon his premises by another. The present statute and the act of 1895 were intended to go further. He knowingly permits a thing to be done who, knowing that it is being done, and being present where he can object, and who has an interest to object, does not object; and still more has he knowingly permitted it to be done if he takes part in doing it. This statute and the prior act of 1895 seem to have been so construed in Carey-Lombard Lumber Co. v. Jones, 187 Ill. 203; McCarthy v. Miller, 122 Ill. App. 299; Hughes v. McCasland, 122 Ill. App. 365. In Com. v. Curtis, 9 Allen 266, the word “permit” was held to mean “to allow by not prohibiting.” We are of opinion that Alice Mulloy knowingly permitted this contract to be made and this labor and material to be expended upon this lot of which she owned an undivided one-half in remainder, even under her own testimony, and much more so under the testimony introduced by appellees; and that appellees were entitled to a lien upon her interest in the land. The defects in performance, which she sought to prove, were very ' slight, were partly attributable to her own conduct, and were amply covered by the deductions made by the court below, evidently for that purpose.

Appellant contends that if the estate in remainder is subject to any liens for these improvements, then those liens should have been enforced against the interest of Mary Mulloy as well as of appellant. Mary was never summoned. She was named a defendant in the first amended bill, and the attorneys for Alice filed a demurrer to said bill for Mary also, and that demurrer was sustained. Mary was also named as a defendant in the second amended bill. She did not answer it and no notice seems to have been afterwards taken of her as a party, and she was never afterwards named as a party in the title of the cause upon the docket. She was not named as a party in the cross bills. No facts were stated in the second amended bill or in the cross bills which would have entitled appellees to any lien against Mary’s interest. Alice did not in her answer state any facts which would make the interest of Mary liable with her interest. She did not raise this question in the court below. We are of opinion that she should not be permitted to raise it for the first time in this court; but, waiving that, we conclude no error was committed. As already said, there was no allegation against Mary that would have supported a decree against her interest. The proofs were very meagre to charge her interest. She was present at home when her mother had the first interview with McHatton, in which her mother discussed different methods of repairing the house but came to no conclusion. Mary then returned to her school in Chicago. She came home at Thanksgiving, and seems to have remained at home till January on account of her mother’s serious illness. The family were then living five or more blocks from this house, and Mary is not shown to have known what was being done or to have participated in it, except that she went once to Paulissen’s mill with Alice when Alice was considering what style of door to adopt, and this seems to have been in April, though Alice and Mary testified it was in December or January. Mary was home at her mother’s funeral, and stayed several days while her sister, Alice, was ill and confined to the house. It is obvious that it would be difficult to support a decree against Mary’s interest upon this proof. The liability of the interest of Alice to the liens rests upon substantial and unassailable grounds under this statute. We are of opinion appellees were not required to imperil their decrees for liens by taking it against Mary’s interest. It is urged that under this decree Alice will lose her home, and Mary will reap the benefits and that Alice cannot compel Mary to contribute. Not only did the same attorneys appear for Mary who appear for Alice, but Mary is the sole surety for Alice upon her appeal bond of $2,000 securing the payment of these liens in this case, and the sisters are evidently acting in entire harmony in resisting the decree. It must be assumed that Alice considered whether Mary would contribute or could be compelled to contribute, before she knowingly permitted this contract to be entered into and actively participated in making the improvement. The amount required to be paid by this decree, excluding interest, added to the amount already paid, only makes $1,693.35, while the proof shows it has cost McHatton and the others $2,333.55, excluding interest, and that it cannot be reproduced for less money. In other words, as McHatton shows, he entirely underestimated the work required to repair and renew this old building, and he took the contract at too low a figure, and there is a loss to those who have done the work and furnished the materials of about $640 when this decree is satisfied.

McHatton testified that he had furnished extras to the amount of $436. The correctness of this is disputed, and there is some uncertainty to a small amount in the items entering into that sum, but upon a caréful examination of the whole record we are satisfied that that amount is substantially correct. There was proof of slight defects in foundation and cistern and plaster, and of the cost of repairing these; of a failure to furnisk one screen down stairs, and four screens for the attic, and it was a disputed point whether the specifications called for screens over openings in the attic; and there was proof authorizing a slight deduction for a difference in the kind of lumber used in the hall floor. Because of these matters the court below reduced the allowance for extras to $383.75, making the contract price and extras amount to $1,508.75, and we conclude appellant cannot justly complain of that allowance. Deducting the $525 paid from that total, left $983.75, which the court found was due Mcliatton at the completion of the entire contract on June 13, 1904, and upon which the court allowed interest at 5% per annum to the date of the decree. It is argued that as the contract provided that the last 15% of the contract price should be paid when proof was made that no liens or claims stood against the building, and as there are liens against the building, the court should have allowed interest to the date of the decree on only 85% of the amount found due. But the contract required 85% of the labor and material on the ground to be paid as often as every two weeks. That contract was broken. No payment was made after December, 1903. The owner was very much in arrears long before the work was completed. It is evident there would have been no liens if the owner had kept that agreement. The claims for liens and this law suit arise from the failure of the owner to pay as agreed. Under such circumstances, we conclude that this decree as to interest is equitable and proper.

The $525 was paid without requiring the contractor to furnish the statement under oath, which it was the duty of the owner to obtain before paying money to the contractor, under section 5 of the lien law. But McHatton paid $425 of this for labor, and under sections 26 and 27 of that act the wages of laborers constitute a claim which is preferred to the claims of subcontractors and material men. Therefore if such statement had been required and furnished, the $425 must still have been paid to the laborers, and as to that sum the subcontractors were not injured by the failure of the owner to require such a statement. The remaining $100 which McHatton received from the-owner he paid to Wertz, and it reduced Wertz’s bill by that amount. This was an injury to Smith, and the court adjusted that by the decree, and allowed a lien in favor of Smith for his pro rata share of said $100.

The decree found that there was due Wertz from McHatton $559.01, and that he was entitled to interest thereon at 5% per annum from May 10, 1904, when he completed his subcontract,- to the date of the decree; that there was due Smith from McHatton $492.80, and that he was entitled to interest thereon at the same rate from June 9, 1904, when he completed his subcontract, to the date of the decree; and found that Wertz and Smith should share pro rata in said balance of $983.75 and the interest thereon to the date of the decree due from the owner to McHatton, and have liens therefor on the interest of appellant; and fixed the sums to which they were entitled to a lien at the date of the decree at $601.75 for Wertz and $528.40 for Smith, besides $36.15 additional to Smith for his pro rata share of said $100 improperly paid to McHatton. The decree found that Paulissen was an original contractor with appellant as to materials furnished by him, and that he finished furnishing materials on May 18, 1904, and that there was due him $184.60 therefor, with interest from that date to the date of the decree, and that the principal and interest amounted to $212.03; and the decree gave him a lien therefor on the interest of appellant. It will be observed that by this decree the balance due to McHatton for the contract • price and for extras is divided between Wertz and Smith, and that as to them appellant’s interest in the property is only made liable for what McHatton is entitled to enforce against the property; but that the amount awarded to Paulissen is outside of and beyond the contract price and extras. The correctness of this feature of the decree is the only question which we have found it difficult to solve.

McHatton and Paulissen each testified that they did not contract with each other concerning the material which Paulissen furnished, hut that appellant dealt directly with Paulissen in that matter. They testified that appellant and Mary and McHatton went together to Paulissen’s the first time, and appellant selected the style of some doors, but that McHatton did not contract for nor order the material. The proof shows that afterwards appellant telephoned to Paulissen, giving orders for material for the house; that sometimes McHatton’s men at the house telephoned to Paulissen for material that was needed; that part of the material furnished by Paulissen was sent directly to the house and part of it was sent first to McHatton’s shop. Paulissen testified that appellant expressly promised to pay him for this material. Appellant testified, denying such promise, but afterwards qualified her denial by saying she did not remember so promising. The court found these issues for Paulissen and that he was an original contractor with appellant. But the testimony that Paulissen contracted directly with appellant is somewhat weakened by the fact that he charged the goods to McHatton on his books; that one of the exhibits attached to his answer and cross bill is an alleged notice which recites that he had been employed by McHatton to furnish him the necessary mill work for this improvement; that another of his exhibits, entitled “Statement of claim for lien,” recites a verbal contract with McHatton to furnish such mill work, and that he did furnish it at the special instance and request of McHatton. The answer and cross bill of Paulissen, however, did not aver a contract between McHatton and Paulissen, but a contract directly between appellant and Paulissen, and that Paulissen furnished the material directly upon appellant’s orders. It is contended by appellant that Paulissen was a subcontractor only, and did not give the necessary notice within the time fixed by law therefor, and because of that failure had no lien. We are satisfied that appellant was present when the original order was given, and selected the styles she wished, and either gave the order or joined with McHatton in giving it, and afterwards ordered material directly from Paulissen, and that she so dealt directly with him that she cannot now complain of any delay in furnishing the subcontractor’s notice required by statute; and that the statement of his account which he furnished her a few days after he finished delivering materials, and which she accepted without objection, and which truly stated the condition of his account, does not permit her to now defeat his claim for a lien by alleging non-compliance with the subcontractor’s duty to give notice, etc. But the material he furnished was to a greater or less extent a part of what" McHatton contracted to furnish, and the serious question is whether the decree should have divided the amount remaining due to McHatton among Wertz, Smith and Paulissen, instead of dividing that balance between Wertz and Smith, and requiring Paulissen to be paid outside that sum. We conclude that under ordinary conditions the balance due the original contractor after payment of the preferred claims of laborers, should be divided pro rata among those who furnished material, and that the lien upon the premises should not be extended beyond the sum due the original contractor for the contract price and extras.

But this proof presents an unusual case. Although Mrs. Mulloy said she was improving this house “for the girls, ’ ’ meaning Alice and Mary, yet she refused to put into the plans and specifications some things which appellant wanted done. Soon thereafter Mrs. Mulloy was taken seriously and fatally ill. She soon ceased to be able to give directions. Appellant then took the entire direction of the improvement into her own hands. There is nothing indicating that there was any further substantial reference to the contract or to the plans and specifications. When appellant saw some work finished, or partly so, and concluded she would like it different, or that it would look better built wider or longer or of better material or finish, she ordered the change, and it was made. We are satisfied that Wertz and Smith came to her repeatedly after her mother’s disability, and both before and after her mother’s death, desiring money, and especially desiring to know where their money was to come from if they went on furnishing material and doing work; and that she did not refer them to McHatton or say that she would pay him the contract price, but that she treated it as a matter between herself and Wertz and Smith, respectively, and expressly promised to pay their bills if they would go on and finish the work; and that she did this repeatedly, and thereby procured the completion of the improvement as she wanted it done, and without further special reference to the original contract or to the plans and specifications. When she asked Smith when he was going to plaster, and he replied that he wanted some money before he plastered, she told him there would be no trouble about the money, that she was going to pay all those bills, but no more money to Mc-Hatton. Paulissen furnished nothing till the second month after Mrs. Mulloy died. He had appellant’s express promise to pay. Under these circumstances we conclude that she could not justly complain if Wertz, Smith and Paulissen were each given a lien for all that is due them. Wertz and Smith have not questioned the decree in giving them slightly less than the full amount of their bills. The errors alleged by appellant are not well assigned. The decree is therefore affirmed.

Affirmed.


text:
    Harry L. Fordham, Appellant, v. William C. Thompson, County Clerk, et al., Appellees.
    Hen. No. 5,040.
    1. Counties—power to appropriate in aid of hospital. A county by virtue of statute is authorized to appropriate money to aid a non-sectarian public hospital for the sick and infirm located within its limits.
    2. Hospitals—what does not discharge public character of. A hospital is not prevented from being of a public character by the fact that those patients received by it who are able to pay are required to do so, or that it receives contributions from outside sources, so long as all the money it receives is devoted to the general purposes of charity, and none of it goes to the benéfit of any private individual or corporation organized for profit.
    3. Injunctions—when solicitor’s fees awarded upon dissolution will be sustained. An allowance of solicitor’s fees by way of damages upon the dissolution of an injunction will be sustained where they have been shown to be reasonable and the usual and customary charges for such services as were rendered. It is however better practice to show what contract, if any, was made with respect to the rendition of such services.
    4. Injunctions—when award of solicitor’s fees in favor of county will be sustained. Upon dissolution of an injunction an award of solicitor’s fees in favor of a county against whom the injunction ran, will be sustained, notwithstanding the attorney engaged to obtain the dissolution was not the state’s attorney whose duty it might have been to represent the interests of the county, it not appearing from the record for what reason the state’s attorney did not represent the county.
    Bill in equity. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Rehearing denied October 13, 1908.
    Statement by the Court. The city of Dixon was incorporated under an act found in the private laws of 1859, on page 135, which in section 9 of article 8 is declared to be a public act. Section 4 of article 5, prescribes the powers of the city council and among these are to appropriate money and provide for the payment of the debts and expenses of the city; to make regulations to prevent the introduction of contagious diseases into the city; to establish a hospital and make regulations for the government of the same; to make regulations to secure the general health of the inhabitants; and to make all ordinances which shall be necessary to carry into execution the powers specified in the act.
    On November 1, 1895, and while, as we understand it, the city of Dixon was still acting under said special charter, its city council adopted an ordinance entitled “An ordinance establishing a public hospital in the city of Dixon, Illinois, and regulating the control thereof. ’ ’ The first section provided “that there be established and maintained by the city of Dixon, Illinois, in said city, a public hospital for the use and benefit of the inhabitants of said city,” upon certain described real estate. The second section authorized the mayor, with the approval of the city council, to appoint a board of nine women directors of said hospital, chosen with reference to their fitness for such office. Section 3 fixed the terms of office of said directors, provided for filling their places by appointment as before when they retired, and for the removal by the mayor, with the consent of the city council, of any director for misconduct or neglect of duty. Section 4 provided for filling vacancies in like manner, and that no director should receive compensation for services. Section 5 provided how the directors should elect their officers and adopt regulations for the government of the hospital, and that they should have exclusive control of the management of the hospital. Section 6 is as follows: “Any person desiring to make donations of money, personal property or real estate for the benefit of such hospital shall have the right to vest the title of the money or real estate, so donated, in the board of directors created under this ordinance, to be held and controlled by such board, when accepted, according to the terms of the deed, gift, devise or bequest of such property; and as to such property the said board shall be held and considered to be special trustees.”
    By an undated deed, acknowledged on May 26, 1896, Solomon H. Bethea conveyed to nine women, described as the board of directors appointed on November 1, 1895, by the city council of the city of Dixon, as provided by said ordinance, certain real estate (being the same real estate which had been described in section one of said ordinance), “to have and to hold the same in trust solely and exclusively for the uses and purposes of a public hospital, subject to the following conditions and limitations only.” Here followed many provisions. Among them are that the board of directors should have exclusive control and management of the hospital, except as to money appropriated for the hospital by the city of Dixon, which appropriation they should expend under the direction of the city council; that the directors should at least once a year report to the city council, all their acts and show all moneys • received by them or expended; and such report, so far as the the moneys appropriated by the city council were concerned, should be approved by it; that so long as the city council contributed at least $500 per year for the purposes of the hospital, if called upon therefor, the mayor, with the aproval of the city council, should appoint directors to fill vacancies occurring on the board, and that if in any year the city council did not make such appropriation when called upon to do so by the board of directors, the mayor and city council should forfeit the right to fill the vacancies, and the circuit court of Lee county, upon a bill in chancery filed for that purpose by not less than ten citizens of the city of Dixon, should fill the vacancy. The deed further provided that the directors should forever be chosen from the women of Dixon; that no physician should ever be a director; that the directors should serve without compensation; that no funds of the hospital should ever be used directly or indirectly to compensate any director for services rendered; and that neither the property conveyed by that deed nor any funds of the hospital should be used for any purpose of gain or profit, except such gain or profit as shall be again used for the purpose of the hospital. It provided that the directors should have the right to accept donations of money, personal property and real estate for the use and benefit of the hospital, and to hold and control the same according to the terms of the deed or gift; and that, if necessary, the board of directors might by unanimous consent of all its members, convey the property covered by that deed, provided the proceeds should be invested in other property to be used for the same purposes and conducted in the same manner forever.
    The ninth clause of the deed read as follows: “There shall never be any discrimination, either in the choosing of directors or in the admission of patients, or in the selection of employes, on account of religion, nationality or politics, nor in the employing of physicians shall there be any discrimination between the different schools of medicine.”
    The act of 1889 (Hurd’s Statutes 1905, page 261) provided: “That it shall be lawful for any county or any city of this state to contribute such sum or sums of money towards the support of any non-sectarian public hospital for the sick or infirm, located within its limits, as the county board of the county, or city council of the city shall deem discreet and proper.”
    On September 12, 1907, the board of supervisors of Lee county adopted a resolution appropriating $250 to the Dixon Public Hospital, “providing said hospital board of trustees agree to furnish the care, board and attendance of a nurse for all paupers in Lee county sent to said hospital for $1 per day.”
    On September 16, 1907, appellant, a member of said board of supervisors who voted against said appropriation, filed a bill in equity against the county clerk and the county treasurer of said county, appellees herein, to enjoin them from paying said $250 to said Dixon Public Hospital, on the ground, stated in said bill, that there was no authority of law for said appropriation. An injunction was ordered without notice, and was served. Appellees filed an answer asserting that said appropriation was authorized by law, and setting up and relying upon the statute above quoted, and also that the actual expense of furnishing care, board and attendance of a nurse for a pauper, or for any other person, at said hospital greatly exceeds $1 per day; that the directors of the hospital agreed with the board of supervisors to furnish such services for the paupers of Lee county at said hospital for $1 per day, and that such contract is a great financial advantage to Lee county and its taxpayers, and that said contract and the appropriation were lawful and proper. Appellees entered their motion to dissolve the injunction and the same was heard upon affidavits and documentary evidence. There is some conflict on the question of fact in the affidavits, but in those respects the affidavits presented by appellees were by persons who best knew what the facts were. The court dissolved the injunction and dismissed the bill. Appellees filed a suggestion of damage upon the dissolution of the injunction, and were allowed $100 for their solicitor’s fees in procuring the dissolution of the injunction and $7 for the costs of procuring certified copies of certain documents. This is an appeal by complainant below from that decree.
    John P. Devine and Brooks & Brooks, for appellant.
    Henry S. Dixon, George C. Dixon and A. C. Bardwell, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

1. We hold that, under the proofs, this is a nonsectarian public hospital for the sick or infirm, located within the limits of Lee county and for the support of which its board could contribute a sum of money, under Sisters of St. Francis v. Board of Review, 231 Ill. 317, Board of Review v. Chicago Policlinic, 233 Ill. 268, and County of Hennepin v. Brotherhood of Grethsemane, 27 Minn. 460. It is not prevented from being a public hospital by the fact that those patients received by it who are able to pay are required to do so, or that it received contributions from outside sources, so long as all the money it receives is devoted to the general purposes of charity, and none of it goes to the benefit of any private individual or corporation organized for profit. There was no private gain to any person connected with the institution. No obstacle was placed in the way. of those who needed treatment, for which they were not able to pay, in obtaining admission to the hospital and the benefit of its appliances and the services of its nurses. The word “public” applied to property may either mean the character in which it is held or the uses to which it is applied. The proof shows that up to the time this cause was heard, this property had been held and controlled by trustees appointed by the mayor and city council of the city of Dixon, that the city had annually paid $500 to the hospital, and the hospital had annually made a report to the city of its receipts and disbursements. Its property is therefore held and its affairs are controlled by trustees appointed by a public municipal corporation, having statutory authority to establish it, and it reports its receipts and disbursements to the municipality. As the municipality appoints and controls the directors, and may remove directors for misconduct and fill the vacancies thus created, it controls the hospital in a certain sense through the directors of its appointment. This seems to us to make it a public hospital in the fullest sense. We do not think it is deprived of the character of a public hospital because the deed from Bethea provides that if the city ceases to contribute, the appointment of the trustees shall be made by the circuit court sitting in chancery, upon a bill to be then filed for that purpose. Bethea did not reserve to himself or to his heirs or assigns the right to nominate directors or to control the hospital. It would not cease to be a public hospital if the circuit court, in chancery, should be called upon to appoint its directors or administer its affairs. The court of equity is as truly a branch of the government as is the city council, and the protection and administration of charities is within the scope o,f its powers when such intervention becomes necessary to protect public interests.

2. The uses of this hospital are public. Though those who are able to pay are charged, yet it is established and conducted without a view to profit, and without any chance for any one to make a profit out of its receipts. It is obviously operated at a loss, made up in whole or in part by the contritutions of the city and the county, and it is operated solely for the public good and for the promotion of the health of the public.

3. The action of the board may also be sustained on the ground of contract. Though paupers should be kept at the poor-house, yet that is not necessarily true of paupers who need the nursing and appliances which can only be obtained in a hospital. If the county has in its charge paupers who need such treatment, no one would doubt its power to furnish necessary nurses and hospital appliances at the poor-house. But it might be much cheaper to employ the services and appliances of a hospital already established, especially if the needs of the county in that respect would be only occasional and spasmodic. This contribution of $250 by the county board was upon condition that the hospital would furnish the care, board and attendance of a nurse for all paupers in Lee county sent to said hospital for $1 per day. The proof showed that such services were worth much more than $1 per day. There is nothing to show how many such pauper patients the county was likely to have or usually had in the course of a year; and for aught that appears, this appropriation may really have been an advantageous business arrangement for the county to make and not really a donation at all. Under the proof the court properly dissolved the injunction.

4. Upon a suggestion of damages filed by defendants, it was shown that defendants hired two solicitors who appeared for them, prepared and filed their answer and a number of affidavits, procured certain certified copies of documents used as proofs on the hearing of the motion to dissolve, at a cost of $7.50, presented the proofs and argued the motion to dissolve and charged defendants $100 for their services, and that they had not been paid. They also proved that that was a reasonable, usual and customary fee for such services in that county. The court allowed $107. We should be better satisfied if it had been shown whether there was any express contract between appellees and their solicitors as to the amount to be paid to the solicitors for procuring the dissolution of the injunction, for there could be no recovery for a larger sum than appellees had agreed to pay, if there was an agreement. But we conclude that the proof that the solicitors had charged them $100 and that that was a reasonable, usual and customary fee for the service, and had not been paid, is- sufficient prima facie to charge appellant with that amount, under Marks v. Columbian Yacht Club, 219 Ill. 417, and Fry v. Radzinzki, 219 Ill. 526, in which cases proof similar to that here introduced was held to justify an allowance for solicitor’s fees.

5. But it is argued that it was the duty of the state’s attorney to defend this action, and that he could not have been allowed a solicitor’s fee, and that appellees had no right to employ other solicitors and thereby create a charge against appellant. We do not decide whether the duty of the state’s attorney required him to defend, nor whether, if he had done so, appellant would have escaped payment of the solicitor’s fees necessarily incurred in procuring the dissolution of the injunction. The state’s attorney did not defend. There was no proof that he could have done so. He may have been ill or absent or interested in sustaining the injunction.

We do not think that the unsuccessful appellant can resist an allowance for appellees’ solicitors’ fees in such a case by merely saying that there was an attorney who perhaps could have been compelled to act for appellees without compensation. The law awards against appellant a reasonable fee for the solicitors who did procure the dissolution of the injunction.

The decree is affirmed.

'Affirmed.