text:
    City of Chicago, Plaintiff in Error, v. South Side Elevated Railroad Company, Defendant in Error.
    Gen. No. 18,679.
    1. Municipal corporations, § 83

      —penal ordinances are strictly construed. Penal ordinances must be strictly construed and a penalty will not be imposed unless a defendant is clearly within the terms of the ordinance.
    2. Statutes, § 198

      —how construed. In ascertaining the legislative intent in statutes or ordinances they will receive that meaning which the ordinary reading of the language warrants, words not technical being taken in their ordinary, familiar acceptation with regard to their general and popular use.
    3. Elevated railroads, § 5

      —how ordinance requiring heated cars is construed. Since the specific language of the Municipal Code of Chicago of 1911, § 2210, requiring a certain average temperature to be maintained in street railway cars, does not indicate its application to elevated railroads, resort must be had to a construction of the section.
    4. Elevated railroads, § 5

      —when not required to heat car. The Municipal Code of Chicago of 1911, § 2210, requiring street railway cars to be maintained at a certain temperature, does not apply to cars of elevated railroads.
    5. Elevated railroads, § 1

      —distinction from street railway. One of the principal distinctions between elevated street railroads in cities and street railways is in their power to condemn property.
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term; 1912.
    Affirmed.
    Opinion filed November 4, 1913.
    Rehearing denied November 18, 1913.
    William H. Sexton and James S. McInerney, for plaintiff in error; John W. Beckwith and Ulysses S. Schwartz, of counsel.
    Addison L. Gardner and William H. Haight, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

By this writ of error the city of Chicago, plaintiff in error, seeks to review a judgment in an action brought by it in the Municipal Court of Chicago against the South Side Elevated Railroad Company to recover a penalty for an alleged violation of sec. 2210 of the Municipal Code of Chicago of 1911.

It is contended that on March 6,1912, the defendant, defendant in error here, operated a certain car within the city of Chicago, the temperature of which car, as indicated by a standard Fahrenheit thermometer located about the center or midway between the top and bottom of the car and affixed to the side of the car, was thirty-eight degrees above zero, or twelve degrees below the minimum required by the ordinance. It is further a conceded fact that the defendant in error is incorporated under the general railway act, for the purpose of constructing, owning and operating a railway between certain points in the city of Chicago. It owns and operates cars upon an elevated structure, which, in the downtown district known as the “loop,” is located upon the public streets, but about seventy-five per cent, of the structure is located upon private right of way, except, of course, where the structure crosses the streets. Stations for the passengers are located at intervals of three or four blocks within the city, and the travel thereon is from point to point within the city. The defendant in error operates its cars by electricity and does an exclusively passenger business. These are the facts shown by the record, and the question-presented is whether they constituted a violation of the ordinance in question.

Section 2210 is a part of article V of chapter LIX, entitled “Railways.” That section is as follows:

“2210. (Comfort and Safety of Passengers). It shall not be lawful for any person or corporation owning, leasing or operating any street railway cars or steam railroad cars, which run from point to point within the City of Chicago, either on elevated, surface or subway lines, to permit any car to he used or operated on any of the public streets or ways of said city unless the following conditions are complied with:
“(a) There shall be maintained within such car an average temperature not lower than fifty degrees Fahrenheit, nor (when such car is heated by artificial heat) higher than seventy-five degrees Fahrenheit.”

The articles under chapter LIX are as follows:

“Article I. Department of Local Transportation; Article II. Street Railways; Article LEI. Elevated Railroads; Article IV. Steam Railways; Article V. Miscellaneous Provisions; and Article VI. Viaducts. ’ •’

Under article II, Street Railways, section 2149, provides that “all street railway rails which shall hereafter he laid shall be grooved rails,” etc.

Section 2150 provides that every person or corporation operating a street railroad in the city shall keep the tracks of his or its road in such condition that such tracks shall not at any time be elevated above the surface of the streets on which they are laid, and so that vehicles can easily and freely at all times cross such tracks at all points in any direction without obstruction ; they shall also keep in good repair such portions of the streets as they severally have agreed or may agree with said city to keep in repair.

Sections 2151, 2152 and 2153 relate to the enforcement of the above provision and the notice and penalty to be given and enforced on a failure to comply.

Section 2154 provides, among other things, as follows:

“No person or corporation operating any street railway in the city shall operate any trailer, but cars shall be operated singly. ’ ’

Section 2155 prohibits stopping in front of fire engine houses. Section 2156 requires a watchman at steam railway crossings. Section 2157 provides a penalty for obstructing the right of way. Section 2158 prohibits the use of damaged cars. Section 2159 provides that every person or corporation operating or maintaining ‘‘street railway tracks” shall, with certain exceptions, keep moistened the streets upon and along which they operate or maintain their tracks. Section 2160 relates to the removal of street accumulations, such as snow, dirt, etc., from the surface of the street between the two outermost rails of the tracks, and section 2161 provides a penalty for failure to observe the provisions of the preceding sections. Section 2164 provides, among other things, that where the block is more than five hundred feet in length, street cars shall stop when so desired to receive or let off passengers at the middle of such block. Sections 2165 and 2166 provide for fenders and a penalty for operating without fenders.

An examination of the code of the city referred to or article alone which includes the ordinance in question shows that the city council, with certainty and conclusiveness, placed street railways in the class of railroads operating upon the surface of the street, and contains provisions which clearly indicate that they •do not apply to elevated railroads, for they have no application to elevated railway tracks. It needs no argument to show that by the use of the words “elevated railroads” in article III so frequently, and the use of the words ‘ street railways ’ ’ so many times in article II, the city council recognized the difference between the two kinds of railroads, and that when they used the words “street railways,” they meant one kind of railroad, and when they used the words “elevated railroads, ’ ’ they meant another kind of railroad.

Penal ordinances must be strictly construed and a penalty will not be imposed unless defendant is clearly within the terms of the ordinance. The doctrine is well stated in Chicago, R. I. & P. Ry. Co. v. People, 217 Ill. 164, which involved a prosecution for failure to file an annual statement of railroad track, etc., and it was held that the law provided a penalty only for fail-are to file a schedule or list, and that strictly a schedule or list is not the same as a statement, and therefore there was no violation of the statute. In deciding the case, the Court said:

“Penal statutes are, by well settled principles of law, to be strictly construed, and matters and things which are not clearly included cannot be brought within the operation of such statutes by mere construction. This rule of construction is stated in the Illinois Cyc. Digest (vol. 8, pages 980, 981), and in the foot-notes are there collected the many decisions rendered by this court in which this doctrine of construction has been declared and applied.”

In order to make section 2210, which is part of article V, apply to defendant in error, the court must resort to a construction of the section for the specific language of the section does not indicate its applica-' tion to elevated railroads.

In order to ascertain the legislative intention, the primary rule is that the statute or ordinance is to receive that meaning which the ordinary reading of its language warrants, words not technical being taken in their ordinary familiar acceptation with regard to their general and popular use. The term ‘ ‘ street railways,” in general and in the general and popular use does not include elevated railroads. In St. Louis & C. R. Co. v. Postal Tel. Co., 173 Ill. 508, the Court said:

“Where the language of the statute is plain and free from ambiguity and expresses a single, definite and sensible meaning, that meaning is conclusively presumed to be the one meaning which the legislature intended to convey.”

In the provisions of the code in question, the words “street railway cars” are words free from ambiguity and express a single, definite and sensible meaning. If a street railway car or street car is mentioned to any person in Chicago, it would convey the idea of one kind of car only, namely, the kind that the inhabitants of the city are accustomed to see on the surface of the streets of the city. We think it will be conclusively presumed that the'city council meant the same things that the inhabitants of the city would mean in using the words ‘‘street railway ears.” Frye v. Chicago, B. & Q. R. Co., 73 Ill. 399, 402; Steere v. Brownell, 124 Ill. 27; Stewart v. Hamilton, 66 Ill. 233; Chudnovski v. Echels, 232 Ill. 312; Culver v. Waters, 248 Ill. 163.

By the decisions of this State, elevated railroads, such as the defendant in error, are not street railways. Elevated railroads are organized under the general railroaú act, and have power to condemn property. A street railway -cannot condemn land unless it alleges and proves that it is necessary to depart from the highway. Harvey v. Aurora & G. Ry. Co., 186 Ill. 283. The distinction is pointed out in Gillette v. Aurora Rys. Co., 228 Ill. 261, p. 273.

For the reasons indicated, we are of the opinion that the judgment of the Municipal Court of Chicago must be affirmed.

Affirmed.

Me. Justice Clabk took no part in the decision of this case.


source: Caselaw Access Project

author: Mr. Presiding Justice F. A. Smith

license: Public Domain

text:
    The People of the State of Illinois for use of County of Cook and A. C. Wegner, Plaintiff in Error, v. Mutual Life Insurance Company of New York, Defendant in Error.
    Gen. No. 18,710.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action by the People of the State of Illinois for the use of the County of Cook and A. C. Wegner ex rel.

      Abstract of the Decision.
    1. Appeal and error, § 1410

      —when evidence will not he reviewed. A judgment will not be reversed as against the preponderance of evidence unless it is manifestly against the weight of the evidence.
    2. Appeal and error, § 1632

      —how improper remarks of counsel are cured. Improper remarks of counsel will not reverse where the court sustains objections and strikes out the remarks and it does not appear that the remarks influenced the jury.
    A. C. Wegner as informer, against the Mutual Life Insurance Company of New York, a corporation, to recover a penalty for the giving of rebates. From a verdict of not guilty, plaintiff brings error.
    Frank H. Culver, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; Edward W. Everett, of counsel.

      Sce Illinois Notes Digest, Vols. XI to XIV, same topic and section number-

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    Edson Keith & Company, Defendant in Error, v. Thomas F. Keevan and Mrs. Thomas F. Keevan, Plaintiffs in Error.
    Gen. No. 18,746.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed on remittitur.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action by Edson Keith & Company, a corporation, against Thomas F. Keevan and Mrs. Thomas F. Keevan to recover balance due for goods sold and delivered to defendants by plaintiff. From judgment in favor of plaintiff for $194.77, defendant brings error.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when affidavit of merits insufficient. In an action for money due for goods sold and delivered, affidavit of merits held not to show an agreement to extend time for payment so as to constitute a defense where it does not show facts as to the extension of time for payment and does not state for how long the extension was made, but sets up an indefinite arrangement to pay out of the profits.
    2. Municipal Court of Chicago, § 19

      —when default judgment may he entered for full amount of plaintiff’s claim. Judgment by default, when affidavit of merits stricken may be entered for full amount of plaintiff’s claim without requiring the damages to be assessed by a jury, even though an appearance has been filed and a jury demanded.
    Harry H. Felgar, for plaintiffs in error.
    Eastman & White, for defendant in error; Ralph R. Hawxhurst, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Benjamin G. Elser, Defendant in Error, v. Henry L. Hughes, Plaintiff in Error.
    Glen. No. 18,538.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.

      Abstract of the Decision.
    1. Brokers, § 37

      —when broker is procuring cause of sale. In an action to recover commissions for the sale of real estate, where the plaintiff procured a purchaser who made an offer which the owner declined to accept and the owner afterwards through another closed the deal on the terms of the offer, evidence 'held to justify a finding that plaintiff was the procuring cause of the sale.
    2. Brokers, § 67

      —when part payment of commissions by check, not an accord and satisfaction. Finding that broker’s acceptance of a check given for commissions stating on its face “In full of all demands” did not constitute an accord and satisfaction, held sustained by the evidence where the evidence showed a concealment by the owner as to whom he sold the property and indicated bad faith and an intention on the part of the owner to deprive the broker of his commission.
    Statement of the Case.
    Action by Benjamin G. Elser against Henry L. Hughes to recover commissions for the sale of real estate. From a judgment in favor of plaintiff, defendant brings error.
    George E. Dawson, for plaintiff in error.
    Hoyne, O’Connor & Irwin, for defendant in error; Carl J. Appell, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Frank Orminski, Defendant in Error, v. Takla Kania, Plaintiff in Error.
    Gen. No. 18,576.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.

      Abstract of the Decision.
    1. Landlord and tenant, § 477

      —when widow of lessee hot entitled to notice to quit. Where a lessee for a term of years dies and thereafter his widow with their minor child remains in possession and pays rent until the end of the term, widow is not a tenant from month to month so as to require lessor to give notice before suing for possession, but is subject to an action brought against her under R. S. c. 57, If 4, § 2, as one holding under the lessee.
    2. Landlord and tenant, § 477

      —when widow of tenant hound hy terms of lease. Where a lessee for a term of years dies during the term, the widow in her capacity as heir inherits an interest in the lease as “real estate” and is bound by its covenants requiring surrender of possession at the termination of the lease.
    3. Forcible entry and detainer, § 51

      —joinder of parties. Where heirs are bound severally by the provisions of a lease, forcible detainer will lie against one heir without joining the others.
    Statement of the Case.
    Action by Frank Orminski against Takla Kania in forcible detainer to recover possession of premises leased by plaintiff to husband of defendant and possession retained by defendant after her husband’s death. From a judgment in favor of plaintiff, defendant brings error.
    Frank H. Janiszeski, for plaintiff in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Henry G. Anderson, Defendant in Error, v. Charles E. Miesse, Plaintiff in Error.
    Gen. No. 18,618.
    (Not to be reported in full.)
    Abstract of the Decision.
    Brokers, § 88

      —when commissions cannot he recovered against individual member of firm. A broker was employed by a firm to sell lands and in order to effectuate a sale it was necessary to sell the land of a purchaser. Such purchaser’s price could not be obtained and on making a sale for a less price the broker was charged on the firm books with the balance not obtained and he accepted a settlement with the firm on such basis. The broker claimed a member of the firm individually owed him the full commissions. A contract and letters were in the individual member’s name, but both partners took part in the transactions and the use of one partner’s name was a matter of convenience. Held, the broker could not recover from the individual member of the firm.
    Mr. Justice Clark took no part in this decision.
    Error to the Municipal' Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion filed November 4, 1913.
    Rehearing denied November 18, 1913.
    Statement of the Case.
    Action by Henry G. Anderson against Charles E. Miesse to recover commissions for the sale of land. From a judgment for plaintiff defendant brings error.
    Francis A. Harper, for plaintiff in error.
    Walter J. Miller, for defendant in error.

      See Illinois Notes Digest, Vote. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Pauline Siess, Defendant in Error, v. Robert Banzuly, Plaintiff in Error.
    Gen. No. 18,641.
    (Not to be reported in full.)
    Abstract of the Decision.
    Evidence, § 476

      —number of witnesses does not determine weight. A judgment for a plaintiff in an action on a breach of contract for employment will not be reversed merely because there were two witnesses against one.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action by Pauline Siess against Robert Banzuly for damages from a breach of contract for employment. From a judgment for plaintiff, defendant brings error.
    William Daniel Johnson, for plaintiff in error.
    Harold D. Huszagh, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Charles M. Hoff, Appellee, v. American Development Company, Appellant.
    Gen. No. 18,678.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed November 4, 1913.

      Abstract of the Decision.
    1. Judgments, § 302

      —when not to be vacated 6y infant. A minor filed a bill to vacate a judgment in the Municipal Court of Chicago for fraud on the ground it had been satisfied by paying the money to his father without his knowledge or approval. The plea set out the filing of a petition in the Municipal Court similar to the bill, that an order of continuance therein had not been complied with or any exception or appeal taken, and that the guardian’s subsequent motion in the same proceeding to vacate the judgment was denied without any exception or appeal taken. Held, either that a final order had been entered or the proceeding was still pending and the plea should be sustained and bill dismissed.
    2. Municipal Court of Chicago, § 19

      —nature of proceeding to vacate judgment. A petition in the Municipal Court of Chicago to vacate a judgment filed pursuant to the Municipal Court Act, § 21, J. & A. 3333, is in the nature of an equitable proceeding.
    Mr. Justice Clark took no part in this decision.
    Statement of the Case.
    Bill by Charles M. Hoff, a minor, by Walter F. Sommers, guardian, against the American Development Company, a corporation, to vacate a judgment in his favor for fraud. From a decree pro confesso for complainant entered upon bill and plea supported by answer, defendant appeals.
    Goodrich, Vincent & Bradley, for appellant; Warren Nichols, of counsel.
    Edward Maher and Frank D. Burgess, for appellee; Harry F. Brewer, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Violet Stone Ryerson, Appellee, v. Bankers’ Life Association, Appellant.
    Gen. No. 18,696.
    Evidence, § 435

      —when physician cannot give opinion whether death was suicidal or accidental. On an issue in an action on a life insurance policy whether a man’s body going over a' railing around a court of a high building was an act of suicide or resulted from an attack of vertigo or dizziness, a hypothetical question to a physician assumed some .facts pertaining wholly to social relations and mental characteristics and also other facts referring, mainly to physical conditions and called for an opinion as to relation between dizziness and deceased’s going over the railing on the building. The witness gave an opinion that deceased would have had an attack of dizziness which would lead him to go over the railing. Held, the question called for a medical opinion upon matters not of skill in the profession and invaded the province of the jury and both question and answer are incompetent.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed November 4, 1913.
    Rehearing denied November 18, 1913.
    I. M. Earle and O. S. Baylies, for appellant. .
    Shepard, McCormick & Thomason and Rose, Symmes & Kirkland, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

This was an action upon an insurance policy issued by defendant on the life of John Byers on who came to his death from a fall from the thirteenth to the ground floor of the Chamber of Commerce building, Chicago. The defendant relied upon evidence tending to show suicide, and plaintiff, in rebuttal, offered evidence tending to show that the fall resulted from an attack of vertigo or dizziness. This appeal is from a verdict and judgment in plaintiff’s favor.

Said building was so constructed that there was a large opening or court, approximately 125x50 feet, extending from the main floor to the roof, and on each, floor around it was a railing three feet eight inches in height with a brass rail on top and iron grill work beneath. Said Eyerson was five feet seven and one-half inches tall. His body went over the top of the railing and to controvert the inference of suicidal intent, plaintiff introduced testimony tending to show that there was no motive for suicide, and that the deceased was subject to attacks of dizziness, which his physician, Dr. George Fiske, testified were due in his opinion to an affection of the semicircular canals in the inner ear, by which one is supposed, as he stated, to maintain his equilibrium. Thereupon a hypothetical question was put to him embracing in its assumed facts both the matters relied on to rebut a motive for suicide and those relied on to show a fall from vertigo.

The principal and only question we deem it necessary to consider is whether the court erred in overruling defendant’s objections to the hypothetical question and in refusing to strike out the answer thereto.

It assumed a hypothetical man of the age and height of the deceased, a history like his as to the character of his acquaintances, associations and business, in a good state of health, of a cheerful disposition, religious nature, tenacity of purpose, normal conduct on the day of his death, with pleasant family relations, hopeful business and financial prospects, freedom from worry, apparent absence of occasion for it; that there was nothing in his actions to indicate to any one that he contemplated suicide on the day of his death, and that he had been known to visit the building, where his death occurred, on previous occasions.

‘Thus far the facts assumed pertained wholly to social relations and mental characteristics. The other matters assumed had reference mainly to physical conditions, and were as follows: That the person had a ruptured ear drum when a boy,' from which there was a discharge at times and for which he received treatment; that he complained of dizziness when playing-tennis and at other times; that once while out with friends, riding through fields and over fences, he was seen to “sway or reel and fall from his horse,” without seeming to know that he had fallen; that immediately prior to and at the time .of the occurrence in question, one walking out of an office in the Chamber of Commerce building, when within ten feet of the court and railing above described, near a post which obstructed his view of the body of the hypothetical person except his hands and a portion of his right arm, heard “a gasp like a quick expelling of breath” and immediately thereafter saw “two hands extended on the railing * * * toward the west” * * * and the person go over the railing to the southwest, with head turned to the southwest, to the floor one hundred and twenty-five feet below at a point twenty-five feet south and fifteen feet west of where the body started,— all of which happening so quickly that the observer could not positively state but thought that the body did not touch the railing.

The question concluded as follows: “Have you an opinion, Dr. Fiske, based upon a reasonable degree of certainty as to whether there is any relation between the dizziness or vertigo that this man had suffered from and his going over that railing?”

Among specific objections made to it, were that it was not a proper question for an expert, and called for conclusions that usurped the functions of the jury. They were overruled and the answer was “I have.” The witness was then asked, “What is your opinion?” to which the same objections were reiterated and overruled, and the witness answered, “My opinion is that such a person would have had an attack of dizziness which would lead him to go over this railing.” A motion to strike out the answer was overruled and exceptions to the several rulings were duly preserved.

As tending to state a ground for such opinion, the witness testifying later to the nature of dizziness said it may produce the feeling that objects are moving around, from or towards the person affected, or that he is moving around, up or down, or toward or from the objects, and that such person “might then try to hold something to save himself,” depending which way things or the person seemed to move, and that “the attempt to grab something might be done with some considerable force.”

It is manifest that the supposed facts in the question, which related to social relations and mental characteristics, called for no science or skill, and were not the subject of expert testimony. It could not reasonably be asserted that they bore any relation to the subject of vertigo or tended to aid in the forming of a medical opinion thereon. They took up the greater part of the question (which covers five closely printed pages of the abstract) and rendered the question obviously vulnerable to the objection, that it was not a question for an expert. The contention that the objection was not sufficiently specific for the consideration of the court, we do not regard well taken.

Aside from what we above refer to as physical conditions, namely, those relating to a previous disposition to dizziness, and possibly (though we do not so decide) the position of the body as seen just before and as it went over the railing, the question embraced nothing that pertained to medical knowledge or skill, or upon which a medical opinion as to vertigo or its effects could be based. It therefore called for a medical opinion upon matters not of skill in the profession, which is inadmissible. Lawson on Expert and Opinion Evidence (2d Ed.) pp. 146-160. It is manifest that it involved excluding the theory of suicide, and to reach a conclusion upon that subject required consideration of the supposed facts not relating to science or skill. The whole question was tantamount to a request for an opinion on the subject of suicidal intent as well as.vertigo, and the answer given clearly indicates that it was so understood.

It has been frequently held that it is not competent for a witness to testify to another’s intention; that it must be left to the jury to decide from evidence of acts or declarations or both. Cihak v. Klehr, 117 Ill. 643; Walker v. People, 133 Ill. 110; Treat v. Merchants’ Life Ass’n, 198 Ill. 431; 17 Cyc. 45-48. In the cases referred to the ruling did not arise upon a hypothetical question, and for that reason and because, as has been said, a hypothetical question leaves the jury entirely free to determine for themselves the truth or falsity of the facts assumed for the purpose of framing the question (Economy Light & Power Co. v. Sheridan, 200 Ill. 439), appellee does not deem the cases pertinent. We are also cited to the case of Goddard v. Enzler, 222 Ill. 462, where the objection made to a hypothetical question propounded to an expert was that it usurped the functions of the jury, and it was said: ‘ ‘ The functions of the jury are not usurped by an expert witness who gives an opinion upon some assumed state of facts which the evidence tends to prove,” but, it will be observed, the Court added, “where it requires some special knowledge or skill in order to reach the proper conclusion from that state of facts.” In our opinion where a question wrongfully calls for an expert opinion on facts not calling for science and skill, and a conclusion that, but for the form of the question would be the ultimate fact the jury are required to find, the answer is none the less an invasion of the province of the jury. In such a case the question would accomplish indirectly what it could not do directly.

The inference that deceased - might have had an attack of dizziness at any time because of his previous attacks could be as easily drawn by the jury as an expert; and while we are not prepared to say that they might not also from the facts in the case determine as well as an expert whether deceased might not have been attacked with dizziness at the time of the occurrence, we do not hesitate to say that there was nothing in the premises of the question which would warrant the unequivocal opinion that the hypothetical person “would have had an attack of dizziness ”• at that precise time, or that it “would lead him to go over this railing.” The hypothetical form of the question did not relieve it from a plain attempt to invade the province of the jury; and such conclusion could not.possibly have been reached except by excluding the theory of suicide, and thus deciding the question of intent for the jury. In other words, the answer was based in part, if not wholly, upon the assumption of facts calculated to negative the idea of suicidal intent.

Nor is this a case, as contended by appellee, for the application of the doctrine in the Didier case. (City of Chicago v. Didier, 227 Ill. 571.) The ultimate fact here was a question in dispute, namely, whether the death was suicidal or accidental, and the jury should have been permitted to reach their conclusion thereon without the aid of an expert opinion based on matters from which they were as competent to decide as the witness. They knew a dizzy person might fall, and that one getting far enough over the railing would fall. Their common knowledge of affairs and every day experience made them acquainted with the results of muscular force, and what would be required to lift a man of Byerson’s height over such a railing. None of these matters called for science or skill, and too, we think the jury were quite competent to determine whether, from the meager facts furnished by the only observer of the occurrence, there were any visual indications of vertigo at the time of the fall. It is very-plain that both the question and answer were incompetent.

In view of our conclusions, we need not consider whether or not there was any abuse of discretion on the part of the court in not permitting defendant to file an additional plea, as the motion may now be renewed without meeting the same objections to it.

The judgment is reversed and the cause remanded.

jReversed and remanded.


author: Mr.. Justice Barnes

text:
    Jacob Weber et al., Defendants in Error, v. Jim Moy, Plaintiff in Error.
    Gen. No. 18,699.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action by Jacob Weber, Samuel Weber and Julia Weber, trustee of the estate of Louis Weber, deceased, against Jim Moy to recover rent due under a lease united with an action of forcible detainer. From a judgment for plaintiffs for four hundred dollars, defendant brings error.
    William A. Morrow and Charles F. Hille, for plaintiff in error.
    Bulkley, Gray & More, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number*

   Mr.. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Damages, § 88 —intention of parties determines whether deposit liquidated damage. In determining whether a deposit made by a lessee under the terms of a lease is a penalty or liquidated damages, the intention of the parties as evinced in the written lease must govern regardless of the terms used to designate the deposit.

2. Damages, § 88 —construction favored to exclude liquidated damages. Courts lean towards such construction as will exclude the idea of liquidated damages and will permit the recovery only of such damages as have been actually suffered.

3. Damages, § 88 —when lessee’s deposit is a penalty. Where a lease provides for a deposit by the lessee as security for performance and to be forfeited on any breach of the lease, giving the lessor a right to recover any further damages in excess of the deposit and no other damages than unpaid instalments of rent are or can be claimed, the deposit should be considered as a penalty and not as liquidated damages.

4. Damages, § 88 —when damages for breaches of different conditions cannot be exactly computed. Where damages from breach of some of the conditions of a lease are capable of exact computation and the nonperformance of other conditions may not be measurable by any exact pecuniary standard, a sum of money made payable in gross for the breach of any condition is a penalty and not liquidated damages.

5. Landlord and tenant, § 311 —when lessee entitled to off-set on failure to retitrn deposit. Where a lessor terminates the lease and sues for four hundred dollars unpaid rent and the lessee claims off-set from a deposit of one thousand dollars made as security for faithful performance and to be forfeited for any breach of the lease, it is proper to give judgment for the lessee for six hundred dollars.

6. Landlord and tenant, § 486 —when termination by lessor limits recovery of damages. Where a lessor elects to terminate the lease on failure to pay rent and sues for the unpaid rent on the lessee claiming an off-set from a failure to return his deposit made to secure faithful performance, the lessor can assert no right to damages other than the unpaid rent.

7. Pledges, § 24 —when lessee’s deposit should be returned. In the absence of any express provisions in a lease relating to the return of a sum deposited as security, it should be returned when the occasion for its retention no longer exists, such as where the lessor elects to terminate; and the doctrine that an implied contract cannot exist where there is an existing express contract upon the same subject has no application.

8. Pledges, § 44 —time to claim deposit not returned as off-set. Where in an action for rent the lessee claims an off-set for failure to return a sum deposited as security, the principle requiring a party to a contract seeking damages for nonperformance by the other party, to allege and prove that he has complied with the provisions of the contract required to be performed by him has no application.

9. Pledges, § 44 —when lessee claiming Ms deposit need not prove performance. Where a lease provides that lessee’s deposit to insure performance shall be retained until termination by lapse of time of the lease and the lessor declares a termination for failure to pay rent, the lessee need not wait until the time expiration of the lease to sue for his retained deposit, and may claim it as an off-set in the lessor’s action for rent.


text:
    J. Clinton Grant, Defendant in Error, v. George Schwartz, Plaintiff in Error.
    Gen. No. 18,711.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action of forcible detainer by J. Clinton Grant against George Schwartz for certain rooms leased. From a judgment for possession, defendant brings error.
    Percival Steele, for plaintiff in error; Harvey L. Cavender, of counsel.
    No appearance for defendant in error. '

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Forcible entry and detainer, § 71 —defendant’s possession must Be proved. In an action of forcible detainer by a lessor against a lessee, in absence of proof that the lessee, where no one was holding under him, was in actual possession of the premises at the time suit was brought, defendant’s motion for a peremptory instruction should be granted.


text:
    Joseph Chobot, Appellant, v. Anna Laznovsky, Appellee.
    Gen. No. 18,755.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Bill by Joseph Chobot against Anna Laznovsky to enjoin defendant from appropriating seven feet of an entrance or driveway forty-three feet wide leading into certain premises, a part of which was leased by defendant’s grantor to complainant for saloon purposes. From a decree dismissing the. bill for want of equity, complainant appeals.
    Winston & Lowy, for appellant.
    August Marx and August R. Marx, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Injunction, § 184 —irreparable injury. Bill for an injunction must set forth facts tending to show that the injury is irreparable and that defendant is not able to respond to any judgment of law which might he obtained.

2. Injunction, § 177 —when bill demurrable for want of equity. Bill to enjoin defendant from appropriating seven feet of an entrance or driveway leading to premises leased by complainant, held demurrable where from the indefiniteness of the description of the premises it cannot be determined whether such driveway is embraced in the lease or whether the driveway is necessary to the beneficial enjoyment of the lease, or whether complainant would he seriously injured by narrowing the entrance, or whether if so narrowed, a way convenient for ordinary, necessary and reasonable ues of the premises would not still remain.

3. Injunction, § 177 —when bill demurrable for want of equity. The owner of leased property will not he enjoined, at the suit of the lessee from appropriating seven feet of a driveway leading to the premises where it appears from the copy of the lease attached to the hill as an exhibit that the lessor is given the right to enter the premises at all times for' the purpose of making alterations, additions and improvements he may deem desirable and the lessee may not claim any damages from the lessor from the making of any alterations, additions or enlargements to the building and where it also appears that the lessee gave notice of her intention to exercise the right so reserved by enlarging one of the buildings bordering on the driveway so as to appropriate the seven feet in question.


author: Mr. Justice Clark

text:
    Richmond-Smith Company, Plaintiff in Error, v. William J. Richardson, Defendant in Error.
    Gen. No. 18,550.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson,Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and judgment here.
    Opinion filed November 4, 1913.

      Abstract of the Decision.
    1. Sales, § 15

      —when contract of sale not void for want of mutuality. A contract for the sale of milk consisting of a written order signed by two persons requesting seller to ship milk daily to one of the two, the schedule of price being given and there being incorporated an agreement to receive the milk during a certain period of time, held not void for want of mutuality."
    2. Appeal and error, § 367

      —when defenses not reviewable. Defenses alleged in affidavit of merits not relied upon at the trial cannot be considered.
    Statement of the Case.
    Action by Richmond-Smith Company, a corporation, against William J. Richardson and Mat Anderson to recover for milk sold and delivered to defendants by plaintiff. Service was had only on William J. Richardson. From a judgment in favor of William J. Richardson, plaintiff brings error.
    William A. Bowles and James E. Bowles, for plaintiff in error; William L. Hart, of counsel.
    Jones, Bryant, Keener, Ring & Posvic, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Frank Zimmermann, Defendant in Error, v. Andrew Kreinek, Plaintiff in Error.
    Gen. No. 18,666.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.

      Abstract of the Decision.
    Indemnity, § 18

      —form of action. An oral guaranty whereby one party agrees to. reimburse another for any loss the latter might sustain by reason of purchasing from the' former a certain saloon business, held a transaction between vendor and vendee, and not a transaction between partners in equity.
    Statement of the Case.
    Action by Frank Zimmermann against Andrew Kr'einek to recover upon an oral guaranty in which defendant undertook to reimburse plaintiff for any loss sustained by plaintiff by reason of his purchase of a saloon business. From a judgment in favor of plaintiff for two hundred dollars defendant brings error.
    Elmer O. Rathfon, for plaintiff in error.
    Frank Foster, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Allie M. Best, Executrix, Plaintiff in Error, v. William C. Hunter, Defendant in Error.
    Gen. No. 18,700.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action by Allie M. Best, executrix of the estate of Walter T. Best, otherwise known as E. Maro, deceased, against William C. Hunter on a contract between defendant and deceased alleging that defendant refused to take back certain shares of stock at the price paid by deceased, contrary to the agreement. From a judgment entered against plaintiff for costs on sustaining a demurrer to plaintiff’s declaration, plaintiff brings error.
    Abstract of the Decision.
    Contracts, § 353

      —when declaration in action on, demurrable. In an action by an executrix on a contract with decedent in the form of a letter whereby the defendant agreed to take back certain shares of stock from deceased at any time within two years at the price paid, a declaration which does not allege the name of the corporation and does not aver that the shares were delivered by defendant and received by decedent, held demurrable.
    Kern & Clare, for plaintiff in error.
    Charles H. Wells, for defendant in error.'

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


author: Mr.. Justice Clark

text:
    Ashland Auto Garage, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 18,716.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action by Ashland Auto Garage, a corporation, against Chicago Railways Company, a corporation, to recover damages sustained by reason of one of plaintiff’s automobiles being struck by one of defendant’s street cars. From a judgment in favor of defendant for costs, plaintiff brings error.
    Abstract of the Decision.
    1. Street railroads, § 95

      —when driver of automobile is guilty of contributory negligence as a matter of law. A chauffeur who does not look for a street car within two minutes before attempting to drive his machine across a street car track is guilty of contributory negligence as a matter of law.
    2. Negligence, § 204

      —when direction of verdict for defendant, proper. A peremptory instruction directing the jury to find the defendant not guilty should be given in an action of tort where there is no evidence tending to establish a cause of action.
    3. Negligence, § 157

      —burden of proof. In all cases of negligence it is incumbent upon the plaintiff to show that defendant was guilty of negligence and that he, the plaintiff, was not guilty of contributory negligence.
    Joseph E. Paden and Oscar A. Kropf, for plaintiff in error.
    Edward C. Stearns and William H. Symmes, for defendant in error; Frank L. Kriete and John R. Gtuilliams, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number*

   Mr.. Justice Clark

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    James S. Deming, Plaintiff in Error, v. Agnes Grunenberg, Defendant in Error.
    Gen. No. 18,475.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.

      Abstract of the Decision.
    1. Bills and notes, § 472

      —when payments made to beneficial plaintiff may be set off against nominal plaintiff. In suit against maker on promissory notes made payable to the plaintiff, where the suit is tried on the theory that plaintiff is only a nominal plaintiff, a judgment in favor of the nominal plaintiff for the balance due after deducting amount shown by the evidence to have been paid by defendant to the beneficial plaintiff, held proper.
    2. Bills and notes, § 420

      —what evidence admissible in suit on note. In an action on promissory notes on the theory that plaintiff is only the nominal plaintiff, memorandum cards or orders sent by the beneficial plaintiff to the defendant upon which defendants made payments in-merchandise, held admissible.
    3. Bills and Notes, § 373

      —when presumption as to ownership of note overcome. Prima facie case of ownership made by the introduction of a note in evidence, held overcome by other facts subsequently appearing upon the trial.
    4. Appeal and error, § 1445

      —when temporary absence of affidavit from court room harmless. Refusal to grant a motion to strike an affidavit of merits from the files because it was not brought into court until the trial was in progress cannot be complained of where the appellant was not harmed thereby.
    5. Bills and notes, § 407*—burden of proving fraud and want of consideration. In an action on promissory notes, brought by the payee, where fraud or want of consideration is alleged as a defense, the burden of showing the fraud or want of consideration is on the defendant.
    Statement of the Case.
    Action by James S. Deming against Agnes Cronenberg to recover on several promissory notes, aggregating $255, executed by defendant and made payable to plaintiff. From a judgment in favor of plaintiff for $24.46, plaintiff brings error.
    Thomas J. Young, for plaintiffs in error.
    No appearance for defendants in error.

      gce Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Ludwig A. B. Gathemann, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 18,515.
    1. Municipal corporations, § 149

      —when employe not entitled to overtime pay. A municipal foreman of machinists, charged with general duties, of supervision and superintendence, employed at a fixed yearly salary, by performing manual labor incidental to his employment, does not thereby become entitled to overtime pay under an ordinance making eight hours a day’s work for city employes performing manual labor and providing overtime compensation for laborers working more than that number of hours.
    2. Municipal corporations, § 145

      —when no appropriation is made for overtime pay. Where a municipal foreman of machinists who is employed at a yearly salary performs manual labor incidental .to his employment, an appropriation bill which provides for his yearly salary and for compensation for machinists is not an appropriation for his overtime work and he cannot recover for it.
    3. Municipal corporations, § 149

      —when overtime payment from appropriation does not entitle employe to overtime pay. Where a municipal foreman of machinists claims overtime pay and the appropriation bill provides for Ms yearly salary, it is immaterial that overtime for machinists was paid out of the appropriation specified for them.
    4. Municipal Corporations, § 149

      —promise to pay more than legal compensation is not binding. Promises by officials of a city to pay an employe for overtime to which he is not entitled are not binding.
    Error to the Municipal Court of Chicago; the Hon. Rufus J. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.
    Charles J. Trainor, for plaintiff in error.
    William H. Sexton, for defendant in error; George L. Reker, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number,

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff in error, employed by the City as foreman of machinists, brought this action to recover wages for work performed outside of regular hours in 1910 and 1911. The caseg was tried by the court and resulted in a judgment for the defendant. Plaintiff contends that we should reverse this judgment.

Prior to January 1, 1910, plaintiff was paid by the day at the rate of six dollars per day, and seventy-five cents an hour for overtime, and was paid for such time only as he worked. On January 1, 1910, by the appropriation bill, he was placed on a salary basis at two thousand dollars a year. He also was given certain rights which he did not have before, in that he received an annual two weeks vacation with pay, received his salary while sick, and if he should take a day off there was no deduction. He had general charge of repair work of machinery on bridges, supervising the men and the work, and while doing this he would at times work with the men, doing manual labor. The work of repairing broken bridges was considered emergency work, and the foreman and the men were, expected to keep at the job until it was finished.

By a city ordinance eight hours was made a regular day’s work for those performing manual labor for the City; consequently, all such laborers working more than eight hours a day received extra compensation for overtime. In the emergency work of repairing broken bridges there naturally would be a considerable amount of overtime.

After the new salary basis of paying plaintiff went into effect, he inquired of the head of his department as to the overtime, and was finally told by the chairman of the finance committee of the city council to send in his overtime and it would be paid; subsequently his reports for overtime were O.K.’d by the head of his department. Plaintiff continued to draw his salary and send in his reports for overtime, but the defendant refusing to pay anything more than his salary, plaintiff brought this suit.

After giving careful consideration to the points thoroughly and ably presented by counsel for the plaintiff, we have reached the conclusion that the 'Supreme Court of this State has already passed upon the principal question involved, adversely to the claim of the plaintiff. In City of Decatur v. Vermillion, 77 Ill. 315 (317), the Court quoted with approval the general principles stated by Dillon in his work on Corporations, page 206, section 172, as follows: “It is a well settled rule, that a person accepting a public office with a fixed salary, is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of. those duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case, that by subsequent statutes or ordinances his duties are increased, and not his salary. Whenever he considers the compensation inadequate he is at liberty to resign. The rule is of importance to the public. To allow changes and addition in the duties of an office to lay the foundation for extra services, would soon introduce intolerable mischief. The rule, too, should be very rigidly enforced. The statutes of the legislature and the ordinances of our municipal corporations seldom prescribe, with much detail and particularity, the duties annexed to public offices; and it requires but little ingenuity to run nice distinctions between what duties may, and what may not, be strictly official; and if these distinctions are much favored by courts of justice, it may lead to great abuse.”

Guided by these rules, can it be said that the eight-hour ordinance limits the time which the foreman, an official of the city, employed at a fixed salary, should spend each day upon his duties? We do not think that the fact that at times plaintiff performed actual manual labor changes the situation,, for this was merely incidental to his employment as a salaried officer, charged with the duty of general supervision of work. We understand our Supreme Court to discountenance “running nice distinctions between what duties may, and what may not, be strictly official,” and therefore, we cannot assent to the claim that the plaintiff, by-changing somewhat the details of the performance of his duties, can place himself in a different class of duty from that for which he was primarily employed. Plaintiff was a salaried official, charged with the general duties of supervision and superintending work, and we are of the opinion that the eight hour ordinance has no application to his position and duties.

In Tyrrell v. City of New York, 159 N. Y. 239, where a salaried foreman of street cleaning sought to recover extra pay for Sunday work, it was held that he could not recover. The Court in its opinion says: “A public officer, who receives an annual salary for his services cannot recover extra compensation for services rendered on Sunday, unless some statute allows it.”

We also are of the opinion that the defense of no appropriation for the payment of plaintiff’s claim is good. The appropriation bill, under the heading “Bridge and Viaduct Repairs and Replacements,” provides for plaintiff’s compensation as follows: ‘ ‘ Foreman of Machinists $2,000. ’ ’ Below this is a subheading, “Mechanics.” Then follow items of amounts appropriated for carpenters, painters, etc., and for “machinists.” There was testimony that overtime was paid out of the last item, and it is argued that therefore there was an appropriation for plaintiff’s overtime. If we are correct in holding that the eight hour ordinance has no application to plaintiff, then it follows that it is immaterial that overtime for machinists was paid out of the appropriation specified for them. There was legally no such thing as overtime work so far as the plaintiff was concerned. But even if this were not the case, still there appears no appropriation for plaintiff’s overtime work as foreman, which is clearly the only kind of services for which he was entitled to compensation. The argument that he would be entitled to pay as a machinist for manual labor done outside of regular hours, is on a parity with a claim for machinists’ wages for manual labor and also his salary as foreman, no matter whether the services were rendered in or out of regular hours. Such a claim, of course, could not be entertained.

Any promises by officials of the city to pay plaintiff’s claim are not binding. In City of Decatur v. Vermillion, supra, the Court further quotes from Dillon as follows:

“Not only has an officer, under such circumstances, no legal claim for extra compensation, but a promise to pay him an extra fee or sum beyond that fixed by law is not binding, though he renders services and exercises a degree of diligence greater than could legally have been required of him.”

In May v. City of Chicago, 222 Ill. 595 (599), which involved a claim similar to the one before us, it is said:

“It is contended that the city was bound by the city collector’s promise to pay for the extra work. Section 91 of the City and Village act (Hurd’s Stat. 1905, p. 308, J. & A. ¶1363) provides that no contract shall be made by the city council or any committee or member, and no expense incurred by any of the officers or departments of the corporation, unless an appropriation shall have been previously made. No appropriation having been made for this extra work of the plaintiff, it is impossible by any act of the city officials to create a liability against the city for the work. (City of Chicago v. Shober Lithographing Co., 6 Ill. App. 560; Trustees of Lockport v. Gaylord, 61 Ill. 276; West Chicago Park Com’rs v. Kincade, 64 Ill. App. 113; Dillon on Mun. Corp. sec. 445.) A person dealing with a municipal corporation is charged with the knowledge of the limitations of the power of that corporation for any contract attempted to be entered into by any of its officials.”

Our conclusion is also in accord with what is said in the opinion in Sheahan v. City of Chicago, 127 Ill. App. 626, involving in principle the points under consideration.

Believing as we do, that the judgment of the trial court was in accord with the principles announced by our Supreme Court, it will be affirmed.

Affirmed.


text:
    Edwin A. Wise, Appellee, v. City of Chicago and Carter H. Harrison, Mayor, et al., Appellants.
    Gen. No. 20,014.
    1. Building restrictions and regulations, § 1

      —what constitutes a block. Where a city ordinance provides that no garage shall be built on a street where a certain per cent, of the buildings on both sides of the block are residences, a “block” is construed not to extend between two streets that completely cross the street in question, but to stop at a street running into it though not across it.
    2. Building restrictions and regulations, § 1

      —how consent to building of garage is determined. Where a city ordinance provides that no garage shall be built on a street where a certain per cent, of buildings are residences unless certain frontage consents are obtained, the ruins left by a building destroyed by fire are not to be counted at all, a structure divided by frame partitions into three small shops is to be counted as one business building, a structure having two street numbers may be counted as one residence building, and a building at a corner having shops on the street level with their entrances on another street, but its main entrance on the street in question, may be counted as a fiat building on the street in question.
    3. Building restrictions and regulations, § 1

      —when court buildings are to be considered in determining frontage consents. Where a city ordinance requires a certain frontage consent to building a garage on a street having a certain per cent, of residences, and a court, extending from the street, is a front yard for residents, used in common for light and air, and egress and ingress to the street, two court buildings abutting on the street and two buildings at the rear of the court and facing the street are to be counted.
    4. Building restrictions and regulations, § 1

      —no estoppel from permit issued without authority. Where a commissioner of buildings issued a permit for the erection of a garage and withdrew the permit after the owner had done preliminary erection work, the owner not being entitled to a permit without having frontage consents, the city is not estopped from interfering with the erection.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 20, 1913.
    William H. Sexton, for appellants; Loring R. Hoover and Leon Hornstein, of counsel.
    West & Eckhart, for appellee.

      See Illinois Notes Digest, Vois. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Appellee filed a hill for an injunction, asking that appellants be enjoined from interfering with the construction of a garage at 6016-6018 Washington avenue, Chicago, which injunction was granted temporarily with bond. This injunctional order is before us on appeal.

The ordinance touching the building of a garage provides in substance that no garage shall be built on any street where two-thirds of the buildings on both sides of the street in the block are used exclusively for residence purposes, unless the consents of the majority of property owners, according to frontage, are obtained. By the word “block,” as used in the ordinance, is meant only that part of the street lying between the two nearest intersecting streets, one on either side of the location of the proposed garage.

Some claim is made by appellants that the block in question extends along Washington avenue from East 60th street on the north to East 61st place on the south, and not to East 61st street, which is a street running into but not across Washington avenue from the west at a point approximately midway between East 60th street and East 61st place. The argument is that East 61st street, because it does not run across Washington avenue and continue eastward therefrom, is not an intersecting street within the meaning of the ordinance.

The answers to this claim are (1) that appellants have stipulated that this is an intersecting street, and (2) where one street cuts into another street, as is the case before us, it intersects it, following the definition of the word “intersect” given in the dictionaries.

• The more serious question arises in the determination of the uses, character and location of the respective buildings on both sides of Washington avenue between East 60th street and East 61st street, in seeking to arrive at a conclusion as to what should be counted as used exclusively for residence purposes and whether the number of such buildings is two-thirds of those to be counted in the block.

We shall refrain from discussing the details of each building, our conclusion thereon being as follows: The ruins left from the destruction by fire of the property at the southeast corner of Washington avenue and 60th street should not in our opinion be counted either way. Numbers 6022, 6022% and 6024, a one story structure which has been divided by frame partitions into three small shops, should be counted as one building used for business purposes. Numbers 6026 and 6028 should be counted as one building used exclusively for residence purposes; 6030 and 6032 also for residence purposes. We are of the opinion that 6038 and 6040 should be counted as one building occupied for residence purposes, and 6044 and 6046 as one building used for residence purposes. The building on the corner of East 61st street, being number 6050, should be counted as a building used for business purposes. While it is true that certain shops on the street level have their entrances on 61st street, yet the building is primarily a flat building with its main entrance on Washington avenue. The building across the street, number 6041-6043 is one building used for business, as is also the building at 6039. This leaves the count at this point as four buildings used exclusively for residence purposes and four for business, so that the solution of the matter depends upon the conclusion as to how, if at all, the property and structures called Plaisance court shall be counted. This property has a frontage of two hundred feet on Washington avenue, its north line being immediately opposite the north line of the location of the proposed garage. Washington avenue at this point is forty feet wide. The Plaisance court property extends east about one hundred and fifty feet. A seventy-five foot strip of the north end and an eighty-five foot strip of the south end of said property are divided into lots about twenty feet in width, all fronting on the court, which is about forty feet wide, on each of which lots is a separate and distinct brick and stone two story dwelling, numbered as on Plaisance court. The two westerly dwellings abut on Washington avenue but they face on Plaisance court, one south and the other north. At the east end of said court are two separate stone dwellings facing across Plaisance court on Washington avenue. There are fifteen of such buildings on the court, and it is not denied that they are all exclusively used for residence purposes. On the Washington avenue end of the court is an iron fence with two gates to permit foot passengers access to the walk running around the court in front of the dwellings. Access to the rear of the buildings is had from alleys on the north and south sides of the property.

It is contended by appellee that none of these buildings should be counted for the reason, as is claimed, that they are not located on Washington avenue but on another street, which is called Plaisance court. As we view the matter, if it be true that Plaisance court is another street, then clearly appellee has no right to construct his garage at the place contemplated by him, for the ordinance forbids the construction of a garage in a street in which two-thirds of the buildings “on both sides of the street are used exclusively for residence purposes, or within 100 feet of any such streetand it is apparent that appellee’s location is considerably less than one hundred feet from Plaisance court, in which court not only two-thirds but all of the buildings are used exclusively for residence purposes. This consideration completely answers any argument favorable to appellee based upon the contention that Plaisance court should be considered and treated as a separate street.'

However, we should consider Plaisance court as what in fact it appears to be, namely, simply the front yard for these residents, used by them in common not only for light and air but as a means of egress and ingress to Washington avenue. In this view of the matter it is only reasonable to count at least the two buildings which abut on Washington avenue, and also the two buildings at the rear of the court which face on Washington avenue, which makes four buildings in the court. It might be well to consider that if the owner of these dwellings had built them fronting on Washington avenue, he would have been able to build, ten buildings on his frontage of the same size as are these. We can perceive no equitable reason for holding that the dwellers in these buildings should not be counted in a question of this sort simply because their homes are arranged, with reference to Washington avenue, so as to give them certain front yard room and privacy which they would lack if fronting directly on the avenue. But even if it should be conceded, as we have indicated, that only four of these homes should be counted, these added to the other buildings give a result of twelve buildings in all, four of which are used for business purposes and eight of which are used exclusively for residence purposes; and eight is two-thirds of twelve. It therefore follows that under the provisions of the ordinances appellee was prohibited from building any garage on Washington avenue at this point until he had obtained the written consent of a majority of the property owners according to frontage on both sides of the street.

It is claimed that the Commissioner of Buildings at one time issued a permit for the erection of the garage, which was subsequently withdrawn after the appellee had negotiated a loan for the purpose of erecting the building and had entered into contracts and done some work. Appellee claims that by reason of these facts the city is now estopped from interfering with him. We do not agree with this contention. If, as we have seen, the appellee was not entitled to a permit to build his garage at the point proposed without consents, the Commissioner of Buildings was wholly without authority and power to grant him such a permit. The doctrine of estoppel does not apply where a city official has exceeded his authority in issuing a permit in violation of a city ordinance. J. Burton Co. v. City of Chicago, 236 Ill. 383; Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91; Meltzer v. City of Chicago, 152. Ill. App. 334.

The above being our conclusion in the matter, it follows that appellee was not entitled to the temporary injunction granted by the chancellor, and the order will therefore be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Fitch

text:
    T. S. Howell, Appellee, v. Empire State Surety Company, Appellant.
    Gen. No. 17,883.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed November 20, 1913.
    Statement of the Case.
    Action by T. S. Howell against Empire State Surety Company, a New York corporation, to recover for work done under a contract. From a judgment for plaintiff for $1,770.83, defendant appeals.
    Abstract of the Decision.
    1. Evidence, § 331

      —receipt may be explained by parol evidence. Where a voucher and receipt, reciting a payment in full, is a receipted bill or statement of account, oral evidence as to the circumstances under which the voucher and receipt was given is admissible for the purpose of showing the real intention of the parties and that the money was not-received.
    2. Payment, § 37

      -—when instruction is misleading. An instruction referring to the giving of notes or a receipt as though it were claimed by defendant that the receipt was given and the notes accepted “in full settlement of the debt in controversy” is misleading when the debt in controversy had no existence at such time.
    3. Payment, § 36

      —when instruction is confusing. An instruction to find for the plaintiff if defendant had not paid for a part of the work, and further if a receipt was given for notes ip payment which were not paid is misleading and confusing where there is no claim that the notes were paid but it is claimed that the debt was paid by a third party.
    4. Instructions, § 87

      —weight of evidence. An instruction requiring a defendant to “satisfy” the jury by a fair preponderance of evidence as to a certain payment requires an improper degree of proof.
    5. Appeal and error, § 1639

      —when improper instruction is not cured. An instruction improperly requiring defendant to “satisfy” the jury as to a certain payment is not harmless where there is no other language which can be construed as correcting or explaining the statement.
    6. Appeal and error, § 1526

      —improper instruction not harmless where verdict may not be proper. Error in instructions cannot be considered harmless on the grounds that the merits of the controversy are with the appellee where there is evidence which, if believed by the jury, would have justified a different verdict.

      Stein, Mayer & Stein, for appellant; Harry M. Rosenblum, of counsel.
    Eastman & White, for appellee; Ralph R. Hawxhurst, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

7. Interest, § 24*—payment vexatiously delayed. Where plaintiff is advised before signing a contract that defendant would not make a certain payment, the mere fact that defendant contested the claim to such payment does not constitute an unreasonable or vexatious delay, justifying an allowance of interest.


text:
    Michael Donohue, for use of Harry E. Weese, Appellee, v. Village of La Grange, Appellant.
    Gen. No. 18,342.
    1. Municipal corporations, § 403

      —when costs of an improvement cannot be paid out of general funds. Under a statute making it the duty of a village to levy and collect a special assessment to defray the cost of making an improvement described in the ordinance and contract, the performance of that duty may be compelled by mandamus, but there is no liability on the part of the village to pay such cost out of its general funds in case of any deficiency in the special assessment funds.
    2. Municipal corporations, § 404

      .—retroactive effect of section S6 of Local Improvement Act. Section 86 of the Local Improvement Act as amended in 1901, J. & A., If 1479, which provides that if from any cause an instalment against which a special assessment bond is issued has not sufficient money to its credit to pay the bond, the whole assessment, or any instalment thereof, may be applied towards such payment, held not to apply to assessments levied and bonds issued under prior acts.
    3. Municipal corporations, § 404

      —-when not liable for failure to collect delinquent special assessments in cash. A village cannot be made liable to pay out of 9ther instalments special assessment improvement bonds issued against delinquent assessment instalments merely because of its failure to collect in cash the amount of such delinquent instalments. The village performs its full duty in the collection of delinquent assessments when it receives and tenders the tax titles obtained by it.
    4. Municipal corporations, § 404

      —when liable for diverting special assessment funds. Where a village wrongfully diverts any of a special assessment fund, or uses it to pay claims not legally chargeable against the fund, the village is liable in assumpsit, to the extent of such wrongful use or payments, to the person to whom the moneys so used were rightfully due.
    5. Municipal corporations, § 404

      —when liability of village on improvement contract becomes merged in improvement bonds. Where a contractor for a village improvement accepts in full payment of his demand for work under his contract special assessment improvement bonds payable solely out of certain specific instalments of the assessments when collected, the liability of the village upon the contract becomes merged in the specific liability evidenced by the bonds.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and judgment here.
    Opinion filed November 20, 1913.
    Frederic L. GoFF, for appellant; Lyman, Lyman & O’Connor, of counsel.
    Tolman & Redfield, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for $2,275.26 rendered in an assumpsit suit brought by appellee against the Village of La Grange upon certain special assessment improvement bonds. The case was tried by the court without a jury upon stipulations as to the facts. From these stipulations it appears that in June, 1895, the Village of La Grange passed an ordinance providing for the construction of a system of sewers in divers streets of the Village, the cost thereof to be paid for by a special assessment to be levied in accordance with the provisions of the statutes then in force; that a petition for the levy of such an assessment was filed in the County Court of Cook county and an assessment levied and confirmed for $20,510, payable in ten instalments, the first instalment being being $3,500 and the remainder $1,890 each; that a contract for the doing of the work described in the ordinance was then let to Michael Donohue at a price not stated-in the stipulations; that “said contract provided for the issuance of bonds by the Village to the plaintiff,” such bonds to conform to the requirements of the Act of June 17, 1893; that Donohue completed the construction of the improvement in due time, in accordance with the ordinance and to the satisfaction of the Village authorities, “whereupon vouchers, payable out of the first instalment without interest, amounting to $1,567.21, and special assessment bonds, bearing interest at the rate of six per cent, per annum, payable out of the second and subsequent instalments of the assessment, amounting to $7,200, were delivered to -the plaintiff in payment of the balance due on said contract;” that each of the b.onds so delivered to the contractor recites on its face that it is issued to anticipate the collection of a specified instalment of the assessment, and also states that “this bond and the interest thereon are payable solely out of said instalment when collected;” that the Village proceeded to collect the special assessment and “collected sums of money” (the amount not stated) “all of which it has paid out except $43.90;” that all of the vouchers issued to the contractor have been paid and that of the bonds delivered to the plaintiff, bonds amounting to $3,500, face value, have been paid; that of the bonds remaining unpaid, “the plaintiff” holds bonds to the amount of $3,100, face value, which by their terms are payable solely out of the fifth, sixth, seventh, ninth and tenth instalments of the assessment, and that the remaining $6000, face value, of bonds, which are payable out of the eighth instalment, are held by persons unknown; that only sixty per cent, of the second, third and fourth instalments was collected because of a resolution adopted in November, 1896, by the Board of Trustees of the Village, directing a rebate or reduction of forty per cent, of the assessment to be made; that in pursuance of the same resolution, wherever property owners had paid the second and succeeding instalments in advance, a cash rebate of forty per cent, was paid to them, the total of such cash payments amounting to $307.20; that in June, 1900, the Board of Trustees repealed the resolution providing for such rebate, and the fifth and succeeding instalments were put in collection for the full amount thereof; that “only a small portion” of the fifth instalment was paid when due; that the remainder was returned as delinquent and when the property assessed was offered for sale by the County Collector of Cook county at the ensuing tax sale for nonpayment of the fifth instalment, it was bid in by the Village in default of other bidders and certificates of sale were issued to it; that in December, 1902, a tax deed was obtained from the county clerk conveying to the Village, the lots thus bid in by it, which deed was duly recorded and is now held by the Village; that none of the subsequent instalments of the special assessment against such lots were paid and each of such instalments was returned delinquent, and the lots were again offered for sale by the county treasurer and for want of bidders were “stricken off” to the Village and certificates of sale issued to it; that “more than $12,000 of such assessment is represented by said tax certificates; ’ ’ that the Village has tendered to the plaintiff proper deeds conveying to him a part of the property described in its tax deed, and certificates of sale covering the same property, representing more than $5,000 of the amount of such tax sales, and has also offered to pay the plaintiff the $43.90 remaining in its hands.

It was also stipulated that all of the money collected by the Village on account of said assessment was properly paid out and expended except certain specified items, amounting to $1,612.88, all of which items the plaintiff claims were improperly paid out of the assessment fund. Of the amounts thus specified, $202.09 were paid out of the instalments named in the bonds held by the plaintiff, and the remainder was paid out of other instalments. Sundry propositions of law were submitted to the court and marked “held” or “refused,” from which it appears that the court held, as a matter of law, that while each “instalment of a special assessment is a separate trust fund for the payment of vouchers and bonds legally issued against that instalment,” yet “after the vouchers and bonds issued against that instalment are paid, any amount collected on account of such instalment in excess of the sums legally disbursed out of the funds in the same, is applicable to the payment of the legal obligations against subsequent instalments of the same assessment.” Upon the theory thus stated and held to be the law applicable to the facts of this case, the trial court found that all but two of the disputed items were not legally chargeable against the special assessment fund and were wrongfully paid out of the same, and held the Village liable to the plaintiff for the full amount of such disbursements, whether the amounts thus disbursed were taken from the instalments against which the plaintiff’s bonds were issued, or not.

The statutes regarding the making of local improvements by special assessment, which were in force at the time the contract with Michael Donohue was entered into, made it the duty of the Village of La Grange to levy and collect a special assessment to defray the cost of making the improvement described in the ordinance and contract, and the performance of that duty could have been compelled by mandamus. People v. City of Pontiac, 185 Ill. 437. But none of such statutes imposed upon the Village any general liability to pay such cost at all events, i. e., any liability to pay such cost out of its general funds in case of any deficiency in the. special assessment funds. On the contrary, its liability, both under the law and under the contract, was and is limited to the amount actually collected upon the special assessment. City of Alton v. Foster, 207 Ill. 150. If, however, the Village wrongfully diverted any of the special fund, or used it to pay claims not legally chargeable against the fund, then the Village is liable in assumpsit to the extent of such wrongful use or payments, to the person to whom the moneys so used were rightfully due. Conway v. City of Chicago, 237 Ill. 128. As to that part of the special assessment which was not, in fact, collected but was returned to the county collector as delinquent, the Village performed its full duty when it received and tendered to appellee the tax titles obtained by it, and was not therefore liable to appellee in assumpsit for the amount of such delinquent assessments. Conway v. City of Chicago, supra. These general principles are not disputed, and the main question here involved is whether the trial court correctly applied them to the facts of this case.

In the Conway case, supra, the Supreme Court applied the principles above stated to facts which were in many respects similar to the facts in this case, and gave judgment against the municipality for all amounts which were actually collected and afterwards wrongfully diverted from the special assessment fund. This conclusion, however, as the opinion in that case shows, was based upon findings of fact to the effect that the moneys so diverted by the municipality, after its receipt of the same, had been in fact received by it “to the use of appellee” (Conway) and, therefore, equitably belonged to him. So far as appears from the opinion, no contention or claim to the contrary was made in that case. The action there, as it is here, was for money had and received by the defendant to the use of the plaintiff. It is always necessary, in such an action, to show that the money claimed rightfully belongs to the plaintiff (Wilson v. Turner, 164 Ill. 398, 403); and that fact being conceded in the Conway case, supra, the judgment in that case necessarily followed upon proof of the receipt of the money by the defendant and the subsequent wrongful diversion thereof. In this case, the nominal plaintiff is the contractor. The real plaintiff (the usee) is the holder of some of the outstanding bonds. The contract provided for the issuance of these bonds, and they were in fact issued, in aceordance with the provisions of the Act of June 17, 1893. (1 Starr & Curtis Stat. 855, J. & A. ¶¶1993 et seq.) Section 2 (J. & A. ¶ 1994) of that act gives the form of the bonds, and provides that “said bonds may be sold or paid to the contractor * * * at not less than their par value.” By the express terms of the stipulation of facts, the plaintiff’s bonds, with others, “were delivered to the plaintiff in payment of the balance due on said contract.” The contract was then fully performed on both sides, according to its terms. In full payment of his demand for work done under his contract, the contractor received and accepted obligations of the Village to pay “to the bearer” specific amounts at specified' dates, with interest, but payable “solely” out of certain specified instalments of the assessment, when collected. The liability of the Village upon the contract, as such, was thereby merged in the specific liability evidenced by the bonds. In legal effect, the contractor thereby released and waived all claim to any part of the proceeds of other instalments, and thereafter the Village was accountable to him only for the proceeds of the instalments specified in the bonds so delivered to and accepted by him. The proceeds of the instalments so specified were the only moneys which could be said, in any legal sense, to “belong” to him. The only duty the Village thereafter owed to the legal holder of such bonds was to do all it might lawfully do to collect the instalments specified in his bonds and pay over the amounts thus collected when due by the terms of the bonds. To the extent that it failed in that duty by making illegal payments (if they were illegal) out of moneys collected upon such instalments, the Village became liable to the legal holder of the bonds as the equitable owners of the moneys so collected; but only to that extent. The stipulations recite that “only a small part” of the instalments named in the plaintiff’s bonds has been collected in money. The remainder is represented by tax certificates and tax deeds, which have been tendered to him in amounts more than sufficient to cover the amount due upon his bonds. It is also stipulated that all except $202.09 of the moneys collected upon the instalments named in his bonds was properly expended. The utmost, therefore, that the plaintiff can recover in this action is $202.09, with interest at five per cent, from the time appellee became entitled, under the terms of his bonds, to demand and receive the payment of that sum. Conway v. City of Chicago, supra.

We are unable to find any warrant or authority in the statutes which were in force at the time appellee’s bonds were issued, or in any of the reported decisions in this State, for the claim that because a large part of the instalments out of which appellee’s bonds were payable was not paid by the property owners but was returned delinquent and is now represented by tax titles covering the delinquent property assessed, therefore, appellee may require the Village to account to him in this action for the proceeds of other instalments against which he waived all claim over eighteen years ago. In our opinion, the moneys collected upon other instalments are trust funds in which he has no interest whatever. It was not the fault of appellant that its efforts to collect the instalments out of which appellee’s bonds are payable resulted in collecting tax titles instead of money. Nor were the property owners whose money was collected upon the first four instalments responsible for that result. The money thus collected was charged with the payment of the bonds and vouchers legally issued against the same, and all such bonds and vouchers have been paid out of the fund so charged. The surplus remaining in those instalments equitably belongs to the property owners who paid such instalments. To now hold that such surplus may be used to pay the bonds of appellee, merely because a large part of the instalments against which his bonds were issued was not paid to the Village in money, but in tax titles which the Village was obliged to take, would be equivalent to holding that the money of those who pay their special assessments may be charged, not only with the payment of their fair proportion of the cost of the improvement, but with the delinquency of all those who fail to pay anything towards such cost. If the Village performed its full duty with reference to the collection of the delinquent assessments when it tendered the tax titles to appellee, and is not liable to him for the amount of such delinquent assessments, as was held, on similar facts, in the Conway case, supra, then it would seem to follow naturally and logically that the Village cannot be made liable to pay bonds issued against delinquent instalments out of other instalments merely because of the failure on its part to collect in cash the amount of such delinquent instalments. Especially is this true when, by the express terms of the bonds, they are payable solely out of such delinquent instalments when collected.

It is true that there is a provision in section 86 of the Local Improvement Act of 1897, as amended in 1901 (J. & A. ¶ 1479), to the effect that if from any cause an instalment against which a bond is issued “has not sufficient money to the credit thereof to pay the same,” then the whole assessment, or any instalment thereof, “may be applied” towards such payment. But such provision of the statute had not been enacted when appellee’s bonds were issued, nor was it the law when the alleged improper payments were made. Section 86 of the Local Improvement Act, as adopted in 1897, did not contain this provision. It first appeared in the amendments of 1901. The rights of the parties were fixed, therefore, long before the provision of the present statute above mentioned was in force. We are unable to agree with the contention of appellee’s counsel that this amendatory provision is merely declaratory of the purport and. effect of the original Act of June 17, 1893. There is no language in that act which supports that theory, and the fact that the Legislature deemed it necessary in 1901 to add the provision mentioned is gome evidence, at least, to the contrary. The provision in the Act of 1893, requiring the bonds to recite that they are payable solely out of a specified instalment when collected, is equivalent to an express statement that the liability of the municipality thereon is limited to the collections upon the instalment so specified. A similar conclusion on this point was reached by this court in Barber Asphalt Paving Co. v. City of Chicago, 139 Ill. App. 129, 131.

It follows from what has been said above that in our opinion the trial court erred in applying the proposition of law above quoted to the” facts of this case. As a general abstract proposition of law it is correct when applied to assessments levied under the present Local Improvement Act and to bonds issued under section 86 of that act as amended in 1901. But it has no application to assessments levied and bonds issued under prior acts. For this reason, the judgment of the Circuit Court must be reversed. The case having been tried by the court on a stipulation of facts, it will not be remanded, however, but judgment will be entered in this court in favor of appellee and against appellant for $307.10, being the amount, with interest, admitted to have been wrongfully disbursed out of the moneys collected upon the fifth, sixth, seventh, ninth and tenth instalments.

Reversed and judgment here.


text:
    John A. Watson, Appellee, v. Wilber Mercantile Agency, Appellant.
    Gen. No. 18,435.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 20, 1913.

      Abstract of the Decision.
    1. Attorney and client, § 137

      —when instruction erroneous. In an action for attorney’s fees claimed to have been rendered to defendant by plaintiff at defendant’s request, an instruction which directs a verdict for plaintiff and ignores defendant’s contention that he acted as agent of a third party in hiring plaintiff, of which there was evidence, held erroneous.
    2. Appeal and error, § 1646

      —when erroneous instruction not cured 6y other instructions. Where an instruction assumes to direct a verdict if the jury believe from the evidence that certain stated facts are true, it is error to omit from the hypothesis any material disputed element of fact as to which there is any competent evidence, and such an error cannot be cured by other instructions.
    Statement of the Case.
    Action by John A. Watson against Wilber Mercantile Agency to recover attorney’s fees for services claimed to have been rendered by plaintiff for defendant at the latter’s request. From a judgment in favor of plaintiff, defendant appeals.
    Bryan, Duval, McCormick & Wilber, for appellant.
    Bastrup & O’Neill, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.