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    County of Cook v. Patrick J. Sexton.
    1. Breach of contract — Damages.—The rule as to the measure of damages where a building contract is broken by one party who delays the other party, and such other party, after notice that he will c'aim damages, proceeds and finishes the work, is to allow the second party to retain the contract so far as it can he traced, and to recover the contract price, and in addition such damages or increased compensation after the time for the completion of the contract had expired, as he can show was the proximate result of any breach of the contract, express or implied, by the first party. In favor of the first party, all provisions in such contract should remain in force until their final completion by the second parly, except as to the time of fulfillment, and the compensation, where affected by breaches by the first party.
    2. Instruction. — As tho instruction in this case wholly ignores the clause in appellee’s contracts that appellant should not be responsible for damages caused by delays occasioned by other contractors, it is erroneous.
    3. Question for court. — in an action on a contract, it is error for the court to instruct the jury to construe the meaning of the contract.
    Appeal from the Circuit Court of Will county; the Hon. J. McRoberts, Judge, presiding.
    Opinion filed February 5, 1885.

      There were origina ly three separate actions of assumpsit brought by the appel ee against the appellant to recover damages occasioned by de !ay to appellee by appellant failing to perform its covenants in three contracts existing between the parties to build portic ns of the court house of appellants, and the three suits were 1 y stipulation of the parties consolidated into one action for tl. 3 purposes of trial and determination. Formal pleadings wei 3 waived and the several causes as one suit were to be .heard, considered and determined upon such legal evidence as migl t be deemed competent by the court for the establishment of t íe claims of the appellee or the defense of the appellant, the r ght of appeal or writ of error on behalf of either party being eserved; that all evidence submitted to the jury under the cot imon counts, subject to any and all exceptions thereto for ncompetency or irrelevancy might be taken by either party; that the findings of the facts should be separately stated in su ;h findings, as well as the conclusions in the aggregate in respe ;t to the several claims of the appellee, and that such findings with the conclusions therefrom should be embodied in a verd ct to be entered of record in the consolidated cases, to any part of which findings and verdict, and the conclusions therefi nn, either party might except, with the light of appeal or wri of error; that the aggregate of the claims of the appellee , hould be the sum of the damages mentioned in the ad daim um clauses of the several declarations. That the claims of the ippellee are as follows:
    Damages on account of delay occasioned by the defendant to plaintiff in the perfo ■manee of his contract of June 30,1879, for fire-proof work an< carpentry of the Gook county court house, as follows:
    First — On carpenter w rk.....................$21,000 00
    Second — On fire-proof work................... 4,538 45
    Third — Balance due ui der carpentry contract.... 4,379 55
    Total....................................$29,918 00
    Damages on account >f delay caused by defendant to plaintiff in the performance )f his contract of November 23, 1876, for the masonry, brick ¡ nd iron-work of the new court house, and in consequence of the enhanced value of work and material after the time limited for the completion of said contract, and account of failure to pay in money upon estimates:
    On masonry, brick and iron work ............. $110,000 00
    Discount on county orders ........ ........... 25,296 01
    Total...................................... $135,296 01
    Balance due the plaintiff from defendant upon his contract of March 8, 1880, for the rotunda of the new court house, and completion of rear wall thereof:
    Balance as per architect’s certificate ............. $3,382 30
    Damage for delays ............................ 3,600 00
    Total...................................... $6,982 30
    That the above statements take the place of a declaration, and that defendant shall have the same advantage of defenses as if they should be specially pleaded.
    Attached to said specification is the following itemized statement, marked “Exhibit A:”
    CARPENTER AND EIRE7PROOE CONTRACT.
    Contract price fire-proof work 61,403 78
    Contract price carpenter work ................ 69,147 50
    Total.... .... ...................... .... ..$130,551 28
    Credit by cash on original contract.... ........ 126,171 73
    Balance due as per architect’s certificate. .....$ 4,379 55
    35 per cent, damage on $60,000 worth of carpen- • ■ ter work, by reason of advance in price of labor and materials after the time limited for the performance of the contract............. $21,000 00
    25 per cent damage on $18,153.78 worth of fireproof work executed after the time limited for the performance of the contract............. 4,538 45
    Total ... $29,918 00

      Claim on mason y, iron and brick contract:
    Advance in cost of urnishing and laying 5,955,-790 brick (origirn 1 contract) after Oct. 1, 1878, at $3 per thousan I....................... $17,865 00
    Ad van be in cost of urnishing and laying 98 2-3 cords of masonry after Oct. 1, 1878, at $6 .... 592 00
    Advance in cost of 61,000 pounds of rolled iron furnished after M rch 1, 1879, at 3 cents...... 16,830 00
    Advance in cost of -59,900 pounds cast iron at 2 cents................................... 9,188 00
    Interest on deferred payments................. 4,560 04
    Discount on county orders.................... 25,896 00
    Total........... ........................ $74,331 05
    Amount additional < n trial................... 36,000 00
    Total...................................$110,331 05
    Claim on rotunda :ontract:
    Balance due, as per s rchitect’s certificate ....... $3,382 30
    40 per cent, damage >n $9,000 of work done after the time limited for the performance of the contract................................. 3,600 00
    Total.................................... $6,982 30

      Trial. — Verdict as follows:
    Damage on carpentrj and fire-proof contract.... $29,918 00
    Damage on brick, ma onry and iron contract.... 81,060 10
    Damage on second ro unda contract........... 6,982 30
    Total...................................$117,960 40
    Motion for new trif I in said consolidated cases. Motion for new trial overrule' . Motion in arrest of judgment overruled. Judgment on verdict.
    The building of tl 3 several portions of the work of the court house was let, ai d to several different parties.
    The first contract fo • the buildin g of a portion of the superstructure was made w th Wm. MclSTeil & Son, and was known as the cut-stone contn st. It was for the building of the outside course of the walls of the court house, which was to be of cut stone. The inner portion of the wall was to be filled in with brick, which the appellee afterward took the contract to perform, and out of the execution of which a portion of his damages as claimed arise. The contract was dated Aug. 24, 187G, and the work was to be completed on or before the first day of October, A. D. 1878. The contractors, MclSTeil & Son, whose contract one Walker undertook to perform under power of attorney, provided; among other things, that they were to furnish all the stone, and cut and set the same, together with all necessary and suitable instruments, scaffolding, tools and machinery for the proper execution, hoisting and setting of the work that might be required in and about the erection and construction of the court house according to the plans and specifications prepared for the same by J. J. Eagan, architect, a copy of which specifications were attached and made part of the contract. The stone to be furnished was to be Cook county limestone, and it was fur ther provided as follows, to wit:
    And it is further agreed that the first party shall deliver such stone and material, and erect, place and set such cut-stone work, so as to keep pace with the general progress of the building, and shall not cause any delay to other contractors engaged in the erection of said building.
    And it is further agreed on the part of said first party that they will not undertake to hold said second party responsible for any damages or delay that may be occasioned by the contractors during the progress of said work or erection of said building.
    It is further covenanted and agreed by and between the parties hereto that said second party has the right, and it is hereby reserved to said party of the second part, in case it desire so to do, to construct the columns and pilasters mentioned in said specifications of granite or material other than said limestone, and in case it should elect so to do, it is hereby covenanted and agreed that there shall be deducted from the price herein agreed to be paid the sum of twenty-eight thousand four hundred dollars. All materials of every kind shall fully answer the sp icifications, or if not particularly specified shall be of the bes quality.
    “ And it is furt íer agreed that if said first party shall refuse or neglect to p "oceed according to the terms hereof and in the time and m inner herein stipulated, the said second party shall have he right, and authority is hereby given to declare this coi tract forfeited, and to re-let the furnishing of said mater ais and performing said labor to other parties; but it is e :pressly agreed that such forfeiture shall not release said fir t party or his bondsmen from liability to said second party ly reason of failure to perform this contract.”
    The consideratio i for the work was to be $540,000, and other provisions are as follows, viz.:
    ‘If the contracto ■ shall be ordered to execute any work or make any addition! changes or alterations in the works as hereinafter describe 1 and set forth, and as indicated on the several drawings, pi ns and sections herewith submitted, then it shall be nnderstoi d and agreed upon that such changes, additions or alteration ■, if so ordered, shall not invalidate or impair the contract, bi t they shall be paid for as an extra work or deducted from tl e original amount of the contract, as the case may be, such e tras or deductions, if any, shall be subject to the valnatioi of the architect, whose appraisement of them shall be final nd binding upon the parties to the contract, provided such appraisement shall be ratified and approved by the joint < ommittee on public buildings and public service.”
    In the specificatio is it is provided among other things, that the contractors woul 1 not occasion or be cause of any delay to other contractors en¡ aged in the erection of said building.
    The appellee’s com "act of date of November 23,1876, for the materials and labor < f the masonry, brick and iron work, under which $81,060.1' of the verdict was based, has the same clause in respect to r jt causing delay to other contractors, and in regard to his not 1 olding the appellant responsible or claiming damages for an) delay that might be occasioned by other contractors during t .e progress of the work or the erection of the building, and the one in regard to the changes by the appellant in the work, as was in the contract with McNeil & Son, and these same clauses run through all the contracts mentioned and to be mentioned in the opinion.
    The consideration for this agreement was the sum of $328,-163. The entire materials and work required in the brick and masonry work indicated in the plans was to be delivered, executed and completed on or before the first day of October, 1878, and that required in the iron work on or before the first day of March, A. D. 1879. The appellant was, by the contract mentioned in the specifications, to keep pace with the other contractors in and around the building, such as the stone cutter, iron worker, contractor for fire-proof and other contractors, etc.
    After making the above contracts the appellant concluded to change the material to be put into the vestibules, arcades and main entrances, four in number, one on each of the sides and ends of the court house, and either by virtue of the provisions of the contract with McNeil & Son or by mutual consent, appellants entered into a new contract on June 4, 1877, with the Ilinsdale-Doyle Granite Co., by which the said Granite Company agreed to furnish the material and perform all the labor, cut and set the granite work required for the construction of the vestibules, arcades and main entrances of the court house, thus relieving McNeil & Son from any obligation to do the last named work and substituting the Granite Company in their places, and granite for limestone. The consideration was $149,970 and the contract had in it this provision: 111 The work herein specified shall be executed so that the work shall commence on the building within sixty days from the date of this contract and shall keep pace with other contractors from the time of this commencement,” but no particular time specified when it should be completed except the above last named provision, and the contract had the same clauses for forfeiture in case of failure to perform as the others above named.
    Afterward, on June the 30th, A. D. 1879, appellee entered into another contract with appellant to do the carpenter and fire-proof w >rk on the same court house. The work under this contri ct was to have been completed October 3, 1880. This contr ct had the same general provisions as all the others. The consideration for the five-proof work was to be $61,403.78 and for the carpenter work $69,147.50.
    On February 2; , 1880, appellee entered into another contract with the app llant to do the masonry and brick and iron work for the rotun la of the new court house, which was substituted for the do ne as originally proposed; the appellee having built the dome under his first contract some 44 feet high, which had to be tor 'down in order to build up the rotunda. The same general clans -s were in this contractas the others. This work was to have " een completed by the first day of September, 1880, but was rot done till the winter of 1881. The gap in the wall was 40 eet wide hut they had to lap over 55 feet.
    Row the damage, for which in greater part the appellee recovered judgment i the court below, was claimed to have been caused to him by r ason of his being delayed by the appellant in not performing i s part of the several agreements, and by means of which he ailed to finish any of his contract till the summer of 1881, di ring which time and after the times fixed, in the various agre< meats for the completion of the contracts liad expired, the pr ;e of labor and materials had greatly advanced and other gi lat hinderanees, causing him damage, laid occurred.
    Mr. E. R. Bliss and Mr. Cyrus Bentley, for appellant;
    cited Railroad v. Feet, 52 N. H. 379; Lintner v. Milliken, 47 Ill. 179; Tracey v. Chicago, 24 Ill. 500; Coey v. Lehman, 79 Ill. 173.
    No obligation can be implied in a contract which is inconsistent with its exp ’ess terms: Roebuck v. Dupuey, 2 Ala. 535; Blair v. Hardi, 1 A. K. Marsh, 232; Morris v. Harris, 9 Grill. (Md.) 19; Gates v. Caldwell, 7 Mass. 68; Sumner v. Williams, 8 Id. 20; Vanderkarr v. Vanderkarr, 11 Johns. 122; Kent v. Welcl , 7 Id. 158; Crouch v. Fowle, 9 N. II. 219.

      Messrs. Swett, Haskell & Grossoup, for appellee;
    as to measure of damages where a contract being broken by one party, the breach thereof is assented to by the other party; cited Butts v. Huntley, 1 Scam. 410; Herrington v. Hubbard, 1 Scam. 569; Reed v. Phillips, 4 Scam. 39; Bannister v. Reed, 1 Gilm. 92; Clarke v. Greene, 4 Pick. 114; Gillet v. Maynard, 5 John. 87; Richards v. Allen, 17 Me. 299; Weaver v. Bentley, 1 Caines, 47; Dearborn v. Cross, 7 Cowen, 48; Reed v. Phillips, 4 Scam. 50; Longworth v. Taylor, 1 McLean, 405; Chitty on Contracts, 249; Lemingdale v. Livingston, 10 Johns. 36; Dubois v. D. & H. Canal Co., 4 Wendell, 290; Britton v. Turner, 6 N. H. 481.
   Lacey, J.

The defense set up to the right of recovery of the appellee is that the causes of delay was in great part due to the fault of the other contractors and not by appellant, and that as to damages arising from such causes he had, in all his contracts with it, stipulated that he would not claim them.

It is claimed that upon this point the court improperly instructed the jury on the part of the appellee, and erroneously refused to properly instruct on the part of appellant. It is further claimed that the verdict is against the weight of the evidence, in that the jury gave to appellee, by their verdict^ all the damages accruing to him according to his claim on account of delays occasioned by whatever cause, while it was clear that appellant was not responsible for a large part of the delay if any; that the court below also by instruction given to the jury on its own motion, left it to them to construe the meaning of the contracts which the court should have done itself. In order to arrive at a proper understanding of the questions and points involved it will be necessary to examine the amount of damages claimed by appellee in each of the contracts and the cause thereof and the evidence bearing thereon somewhat in detail. And first we will consider the question involved under the contract for the masonry, iron and brick work, dated Nov. 28, 1876. The appellee claims damages thereunder for delays caused as he alleges by the appellant, for each of the years 1877, 1878, 1879, 1880, 1881. But before proceeding to consider the question we will state what we hold the law to be bearing upon the question of damages as well as on the liability of the appellant for the several delays.

The questions here raised are whether appellee, under all the circumstances, is entitled to retain the contract, so far as it can be traced, and recover the damages for increased expense in doing the work after the time for the completion of the contract had expired, in addition to the contract price, or whether he can abandon the contract entirely and recover for the reasonable value of all the labor and materials expended in the completion of the work, the county having received the benefit thereof, or whether having finished the work after the alleged breaches he could claim more compensation than the contract price.

After a careful investigation of the law and the facts in the case we have concluded to hold that the jnst and proper rule would be to allow the appellee to retain the contract, so far as it can be traced, and to recover the contract price, and in addition such damages or increased compensation, after the time for the completion of the contract had expired, as he can show was the proximate result of any breach of the contract express or implied, by the county, and that in favor of the latter all the provisions of the several contracts should remain in force until their final completion by appellee, except as to the time of fulfillment and the compensation, where affected by breaches by the county.

The law bearing on the question is not free from doubt, but we think the rule, as announced, is sustained by the authorities cited by appellee’s counsel, and it commends itself to us as being just and equitable. Alleman v. The Mayor, etc., of Albany, 48 Barb. 34; Dubois v. Delaware and Hudson Canal Co., 4 Wend. 285; Koon v. Graham, 7 Wend. 123; The Delaware and Hudson Canal Co. v. Dubois, 15 Wend. 87; Dermott v. Jones, 2 Wall. 1; Lincoln v. Schwartz et. al., 70 Ill. 134. In support of the negative of the last proposition, the appellant’s counsel in his brief makes the point, but it is not argued or referred to afterward, that the appellee having completed the contracts after the time had expired, affirmed it and could not disaffirm it and bring his action for alleged breach, and cites W. U. R. R. Co. v. Smith, 75 Ill. 496, as authority. In that case the railroad company had agreed to furnish iron, and Smith had agreed to lay the railroad track, before the ground froze in the winter. The railroad company failed to do this, but furnished it after the ground froze, and Smith, without making any complaint of the failure to furnish it before, went on and laid the track at a greatly increased cost, which he sought to recover; but the court in passing on the claim said, that as he had finished the work without any further agreement or understanding, the reasonable presumption would be that he was intending to perform the labor under the agreement.

But in this ease it will be observed that the appellee frequently notified appellant that he would not do the work, when delay was caused by it, for the same price stipulated under the contract, but would claim all the “ damages” caused by the several delays. He did not notify it that he would abandon the contract and sue for the reasonable value of the work and labor, but would claim “ damages” for the delays. If he had abandoned the contract entirely they could have paid him for what he had done up to that time and discharged him, but from his notices they could not so understand it, but that he claimed the benefit of the contracts. Mor do we understand from the appellant’s briefs that it seriously contests the right of appellee to recover damages arising after the breach of the contracts, if any, caused by delay for which it was responsible. Its main argument and contention is that the delays were caused by other contractors, damages for which appellee had agreed to make no claim against it.

We do not think, under the circumstances, that appellee would have the right to recover entirely for the reasonable value of the work without reference to the contracts, if this would be more than the contracts called for. The contract can not be regarded as wholly abrogated.

To return again to appellee’s claim for damages under the contract of date Movember 23, 1876.

The appellee testifies that the damages accruing to him by reason of all delays on the contract mentioned, spread over the entire time, was three dollars per thousand on 17,000,000 brick laid, amounting to the sum of §52,500, and his damages on the iron was §30,000, and his damages for interest and discount was §30,000, making in the total §112,500. The jury, of this account, allowed him §81,060.10, rejecting the §30,(h 0 for discount on county orders and interest, being nearly the entire claim. What were the specific causes of these damages and for what portion was the appellant responsible % It will not be necessary to recite the substance of all the evidence, but enough of it only to show what the evidence tended to prove as to who was responsible for the various delays caused to appellee and how they affected him. -We will mostly recite from appellee’s testimony, supposing he understands his own case best. His specifications of the causes of delays and damages are these: In the year 1877 he was ordered to begin laying the brick, March 1, 1877, but actually begau about the middle of April. The first cause of delay was changes in the cut-stone contract between the appellants and McMeil & Son, or Walker, requiring thick stone to be laid in the outer wall instead of thin, as the contract first required. The stoppage on this account was not very great — less than thirty days, but after that the stones came very slowly — they began to come about June, 1877. The next cause was the granite contract made with the Hinsdale Granite Company, which delayed tlie work at the four entrances of the court house. By this contract the Granite Company was to commence work within sixty days from the date of the contract, and should keep pace with the other contractors from the time of that commencement. The date of the con tract was June é, 1877. There was no evidence that it was not within the power of the Granite Company to comply with the contract that was made. A delay in the work on the entrances of only sixty days could he charged against appellant, and how much such a delay would have impeded the progress of appellee’s work there is no evidence to show. Any delays after sixty days had expired, it would seem, should have been charged to the Granite Company and not to appellant, and also any other inconveniences that the appellee was put to on account of the operation of the Granite Company, should not be charged to the county. The appellee states in his cross-examination “ that the substantial delay was due to the slowness with which the cut-stone contractor set the stone. With proper apparatus and with the granite on the ground, the Granite Company could have pr. - gressed with their work in such a way as to have caused no delay.” Surely as against delays caused by the Granite Company and the cut-stone contractor, which the county was not responsible for, there could, under the contract with the appellee, be no claim for damages against appellant.

blow in the year 1877 the appellee laid 8,750,000 brick and 1,140,000 pounds of iron. Upon this material on account of the irregular wajr appellee claims he had to do this work and on account of the delays caused as stated, he lost $3 per thousand on the brick and one half cent per pound on the iron, making a loss of $32,250. Then the granite derricks were laid in the passage way which caused him inconvenience to deliver the brick — this cost him 60 cents per thousand — amounting to $5,250. One other cause was the failure on the part of the county to provide for construction of dome to fill in the west wall of the building. The amount of damages this was to appellee is not stated. The damage in being unable to use his organized force was put at $9,000.

Appellee claims that appellant was chargeable for all these delays. But it appears to us that it was chargeable in a very slight degree if at all. The clause in the contract relieving the county against damages caused by delays occasioned by other contractors applies to contracts made after the one signed by appellee as well as before, and so with all others, and the county would have the right to change contracts and make as many as it pleased, and this clause would hold good as to all of them if the change did not put it out of the power of the new contractor or contractors to fulfill the contract the same as it could have been fulfilled before the change — • that is, not to delay appellee. If it was within the power of the new contractor, in accordance with the terms of his contract to not delay appellee, and he failed from some cause to keep his contract, appellant would not be responsible for such failure.

This would seem to very nearly dispose of $46,500 of the $81,000 allowed by the jury, if indeed such a class of damage is allowable at all, which question we will consider hereafter.

The balance of this $81,000 was lost to appellee during the years 1878,1879, 1880 and 1881, which question we will proceed to consider and the causes of it and the responsibility of appellant therefor.

It appears from appellee’s evidence that save for the hinderances and delays of the year 1877 he would have put in one third more of the work and would have saved any further loss on it — but in this hinderance the county, as in case of the above loss, was not largely responsible. We will not consider the discount on the county orders, as that claim was properly rejected by the jury.

In the year 1878, the year in which the appellee’s contract for doing the brick and masonry work expired, there was more delay than in 1877, and he attributes it to the failure of Walker, the cut-stone contractor, not finishing up the cut-stone work, and that for this reason he had to suspend work about the last of May, and the county did not cash orders until in October, 1878; but appellee was not delayed in the work on that account. There is a claim for damages on account of the cut-stone contractor not keeping the walls up level, building them zig-zag up and down, how much he does not state, but some of the witnesses put it very high, and this was caused to some extent because the granite work was not kept up even pace with the cut-stone, and for another and the greater reason that the cut-stone contractor failed to use proper derricks which caused him to build his part of the wall as he did. For this cause of delay and damages the appellant was not responsible. Another cause of delay and expense to appellee was the introduction of bond stone in the building; some bond stone was provided for in this contract, but the cut-stone contract was changed so that the wall in certain other places had to be bound with a layer of bond stone clear across the wall, that portion being put in place by appellee as well as the other, and was put across every few feet. The cause of delay was the waiting on the cnt-stone e -ntractor to set the bond stone after the wall was leveled up by appellee. Tills caused very much delay. For this delay the appellant was not responsible unless by the terms of the changed contract it was put out of the power of the cut-stone contractor to avoid delay. If it could not be done, then the county was at fault for making the change, otherwise not. On Oct. 1, 1878, one half the brick work was done — could not do the rest because the cnt-stone was not set. From the last of Hay till fall very little was done. It is true that Walker, the cnt-stone contractor, states that his delay in 1875 was caused because the county treasurer failed to cash his orders which he received for the work, and that lie did just as little work as possible, on that account. If this be so the county would be fairly responsible for this delay. But after October, 1878, there was no lack of money and no cause of delay as to Walker, except he claims that lie was delayed on account of the discussion as to taking off the upper story had by the building committee in 1879, whicli was about one month, and this was in the fore part of the year, which did not interrupt the work of any consequence, and after that there was no delay caused by the county. The appellee commenced work in the spring ofl879, and we can see no reason why his entire work should not have been completed in that year, for it was at least one half done with the exception perhaps of a small portion in fitting up around the rotunda wall which was not yet completed, and also a portion of the iron work could not have been fitted on that account. But it does not appear that the balance of the work was done or that the want of that wall was very much felt, but all of the work except that around the rotunda might have been completed. In 1879, the appellee testifies that the work went on very slowly on account of the irregularity of setting the stone. The cut-stone contractor charges his failure to do the work faster to the granite contractor, whom he blames for his delay; the records fail to disclose, but whether the delay was caused, by one or both of these contractors, the appellee'could have no claim for damages, and if but for delays caused in this way the latter could have completed the most of the work in 1879, he could in no event recover from appellant for any increased price of doing work in 1880 and 1881 that might have been done in 1879 but for other contractors’ delays, and it seems that there was a continual advance in prices for labor and material, commencing in 1879 and continuing till 1880 and 1881.

The terms of appellee’s contract and good faith to the county would compel him to finish the work even after the time for completion fixed in the contract had expired; as speedily as possible, and as the appellee chose to hold on to the contract, and only claim damages for delays caused by the county, that portion of the contract absolving the appellant from the payment of damages for delays caused by other contractors would remain in force to the end.

Hot much more need be said as to the other two contracts, one for the carpenter and fire-proof work, and the other for the rotunda, as the same rules would apply to these two contracts as does to the one that -we have been discussing.

The carpenter work was delayed because the roof was not on the building in time, and the roof was not on because the walls were not up, and they were not up because appellee was delayed by the cut stone and granite contractors, and the fireproof work was not done because the carpenter work was not done; so that it is seen that, by a chain of facts, the responsibility for delay is traced back to the cut-stone and granite contractors, as shown in the forepart of this opinion. The want of the building of the rotunda was another cause of delay assigned. But by the appellant’s contract for the fire-proof and carpenter work, the latter was to have been completed by the first day of October, A. D. 1880, and he himself had the building of the rotunda, which contract was dated February 23, 1880, and which was to be completed by the first day of September, 1880, a period of time prior to that when the carpenter and fire-proof work was to be finished. So if that was not out of the way, he was at fault himself because he had no cut stone, and he liad no cut stone because Walker, another contractor, did not furnish it in time. So, if this be the case, the appellant would not be responsible for the delay in the rotunda contract. Under the state of facts in the case the instruction became important, and it is equally important that the law be correctly laid down to the jury.

The appellee’s first given instruction is complained'of for the reason that the jury are plainly told, after reciting the appellee’s contract with appellant for the masonry, iron and brickwork and the relation it bore to McUeil & Sons’ contract and others, that “ there was an implied obligation in said contract on behalf of defendant, that it would have the court house in such condition as to render it possible for the plaintiff to do his work within the time stipulated in his contract; and if the jury further believe from the evidence that said defendant did not have said building in a condition that it was possible for said plaintiff to do said work within the time stipulated for its being done; by reason of the default of the county of Cook” etc., etc., the appellee would be entitled to recover such additional sums (above the contract price) as the work has cost him by reason of the increase of price of labor and material and inconvenience under which the work was done, etc.

It will be seen that this instruction wholly ignores the clause in all appellee’s contracts that appellant should not be responsible for damages caused by delays occasioned by other contractors. The county would not be compelled, at the penalty of forfeiting their contracts with appellee and rendering itself liable to him for damages, to compel the other contractors to perform their contract so as not to cause appellee any delay; if that were so such a clause in the contract would be useless, and might as well be left out altogether. It certainly had some purpose; nor do we conceive that the county, for the benefit of appellee, was bound to declare its contract with any contractor forfeited for the reason that such contractor was violating its contract with it by causing delay to appellee. This was a matter that was and should be left to the sound discretion of the county, the same as though no contract had been made with appellee. There should be no combination between appellant and any contractor to canse delay to appellee; but they were under no obligation to forfeit such contract for the appellee’s benefit. Therefore, the instruction was erroneous and should not have been given. That part of the instruction that told, the jury that the appellee could recover the increased expense of doing the work in ’79, ’80 and ’81 should have been qualified in accordance with this opinion. In case the work or any portion of it could have been accomplished by reasonable diligence by appellee within the year 1879 unless prevented by some fault of the county, then such increased expense for the portion of the work that could have been so completed after that time could not be recovered from appellant. It is also claimed by the appellant that the court erred in refusing refused instructions hios. 20,22 and 23, which in substance tells the jury that appellee can not recover for any delay occasioned by any other contractor or contractors in the prosecution of his work under said contract, and that it makes no difference whether such delays, if any, occasioned by other contractors, were ordinary or extraordinary. These instructions should have been given, and the appellee’s first instruction refused or modified. The instruction given on the court’s own motion, to the effect that the jury should construe the meaning of the contract, was erroneous. The proper construction to be given to it belonged to the court and not to the jury, and the jury should not have been sent off into the field of speculation in that manner. Ogden v. Kirby, 79 Ill. 555; Canter-berry v. Miller, 76 Ill. 355.

We wish to discuss somewhat the right of the appellee to recover certain damages claimed by him of appellant, on account of delays alleged to have been caused by it in the execution of the several contracts.

The nature of the damages claimed to have accrued under the first contract have been set out above and are, first, increased expense in laying the brick in 1877; second, increased expense in laying the iron in the same year; third, increased expense in delivering the brick on account of the granite contractor’s derricks being put in the passage way, which were in appellee’s way in delivering tin brick; fourth, failure to provide for the construction of the rotunda and filling in the gap in the west wall of the court house, the amount not named for this failure; fifth, damages in being unable to use his organized force. The damages claimed for the year 1878, while the contract was in force, are of the same general nature. The damage after that year is the increased cost of the work on account of the increased price of labor and material, and because some of the work had to be done in the winter — a more expensive season. The first class of damages, or those charged for 1877 and 1878, arises on the assumption that there was a breach by appellant of what is claimed by the appellee’s counsel to be an implied “obligation on its part that it would have the court house in such a condition as to render it possible for the appellee to do his work in the time stipulated in his contract.”

We understand that unless appellant itself caused delay in the execution of one of the contracts, to such an extent as to prevent the completion of it within the time agreed upon with appellee, then there would be no such breach of the contract as would authorize its abandonment entirely by the latter and give him the right to sue for the reasonable value of the work and labor done without reference to the contract. Although there might have been some delays caused appellee by the fail" ure of appellant to have everything in readiness to allow him to do all the work in 1877 that he wanted to do in that year, and as fast as he wanted to do it, yet there was no breach of the contract, as the appellant had not agreed to prepare the court house work and have everything ready to have the brick and iron work completed in 1877, but if it gave facilities so that the appellee could complete it in 1878 it filled its contract. In the year 1878 there was plenty of time left for the appellee to have completed the work if everything had been in readiness in that year. Hence, in 1877 there was no time in which a forfeiture could have been rightfully declared by the appellee, and during that year a large amount of damages is claimed on the increased price of putting in the masonry and iron that was put in during that year, and for not being able to use his organized force; and the same claim for damages might continue until it was put out of his power by acts of omission or commission of appellant to finish the work within the contract time. Hence the damages had accrued before there could have been a forfeiture. Then it follows that no increased price for doing the work could be charged till the time when the contract for doing the iron and brick work expired, unless the entire contract should be considered abandoned and this suit be regarded based on a quantum meruit, without reference to the terms of the contract which we have said we do not regard as the proper basis. But even in that case no element of recovery, such as is claimed in this cause, could be allowed. It would then be what it was reasonably worth to do the work; i. e., what it could have been done for generally, without reference to damages resulting from failure to use appellee’s organized force and other like damages. Again, as long as the contract is to be regarded as the measure of damages for what portion of the work had been done prior to the time of its expiration, we do not think damages above the contract price, such as is claimed,-should be allowed for delays.

It is laid down in two of the cases cited by appellee’s counsel — Delaware and Hudson Canal Co. v. Dubois, 15 Wend. 87, and Dermott v. Jones, 2 Wall. 1 — that where the contract was rescinded by the acts of omission of the contractee, so as to authorize the plaintiff to recover on the common counts upon a quantum meruit, that in ascertaining the amount to which the plaintiff was justly entitled for his services, the price was fixed upon by themselves by the rescinded contract, and that it should conclude the parties so far as the work had been done in the manner and within the time prescribed in the contract; and in the Dermott-Jones casé, it is laid down as a rule that the contractor “must produce the contract upon trial, and it will be applied as far as it can be traced, but if, by the fault of the defendant, the cost of the work or materials has been increased, in so far the jury will be warranted in departing from the contract price.” There is great conflict of authorities upon this subject. But the court regard the rule as “ reasonable and just and sustained by a preponderance of the best considered adjudications.” If appellant failed to allow the appellee to finish the work in the time allowed by the contract, then from the time of such fa'Iure alone could increased compensation be allowed. Another rule of law is laid down by the law writers in some of the text book's, that is, “ In cases where, in progress of particular work, periodical measurements or inspections are provided for, and made for the purpose of partial payments, the sums thus ascertained to be payable are the measure of the compensation to be recovered for the work so measured or inspected; if the employer afterward breaks the contract bystoping the work and the reserved payments have not been paid,” they immediately become due. 2 Sutherland on Damages, page 521. “He (the contractor) is also concluded by these statements and by reason of their being closed as distinct and separate portions of the contract; and he can not open them again to prove and recover the actual value of the work. But so far as other work has been performed which remains unadjusted between the parties, the contractor is at large on 1ns quantum meruit, and at liberty to prove the actual value” etc., etc. Ibid, page 522. It seems that such a provision was in these contracts and estimates and payments made under estimates established by the architect before the contracts were forfeited, if they were forfeited by appellant’s fault, at least as to some of the contracts.

It will be a question for the jury under all the evidence in the case, to determine whether the time for the execution of the brick and iron contracts was extended by mutual consent of both parties, even if the county was in default. Of course the west wall that was to be filled by the rotunda east wall, was not complete and for that reason the contract could not be finished within the time, October 1, 1878. The contract for doing the rotunda work was not even let; but whether, if it had been seen that the other work, the cut-stone and granite work, had been in a sufficient state of forwardness to allow of the completion of the brick and iron contract by the stipulated time, the rotunda work would not have been done by appellant in sufficient time to allow appellee to complete his contract, is also a question for the jury, as well as all other facts and circumstances as bearing on the question of the intention of the parties; that is, whether or not the primary cause of failure to allow appellee to do his work within the stipulated time was not the backwardness of tbe cut-stone and granite work; for if they had been in such a state of backwardness as to prevent tbe completion of the work within the time, even with the rotunda completed, the completion of the rotunda would have failed entirely to allow appellee to do his work in time; and it would have been useless for the county to have done that work for the mere purpose of allowing the appellee to complete his work within the contract. Also it is a question, whether the cut-stone work was not delayed by fault of the county not furnishing money to pay for it according to contract. ■ Also the communication of appellee of October 10, 1876, wanting directions what to do, thus claiming the right impliedly of still finishing the work, even if the time had expired. If the time of the completion of the contract with appellee for the brick and iron work was extended by mutual consent, then the appellee would have the right to recover on a quantum meruit for the increased price of the work done after that time, he having the right to hold his contract in force so that if there were any profits in it, he could enjoy them by charging the increased costs to the county; but he should not be allowed to charge speculative damages for hinderances and delays. 2 Sutherland on Damages, page 508, and authorities in note 1. But the appellee, if the contract remained in force, except as to time of completion and price, should be governed by it and should do the work as speedily as possible and should be bound by the provisions in the contract not to claim damages for delays caused by other contractors. But we think appellee should not be allowed to repudiate the contract entirely. The appellee at no time notified the county that he would not do the work under the contract, but only that he would expect damages for delays, that is, such damages as the law would allow him in case the time of completion as fixed by the contract was extended. If he went ahead with the work, as did Smith, reported in 75 Ill. 496, and completed the work after the default of appellant, if there was any, without making any complaint, then it would be presumed that he did the work for the prices'named in the contract. Smith was refused the right to recover §900, his extra expense, on this theory.

But we think it would not be just, under all circumstances in this case, to hold so rigid a rule against the appellee. The same rules would be applied to the other contracts so far as the facts justify. If the jury should find that the county has not been in fault and did not prevent the finishing of any of the contracts in time and the fault lies at the door of the other contractors, then appellee, as to such contract, could only recover the contract price, for such we understand to be the meaning of the contract.

All instructions should conform to the rules laid down in this opinion.

The judgment reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Lacey, J.

license: Public Domain

text:
    Adam Smith et al. v. James Dinsmore.
    1. Subrogation — Release op part op mortgaged premises. — A executed to B three notes, and mortgages to secure the same. Subsequently 0 and D obtained liens on all of the lands described in B’s mortgages. E purchased of A 220 acres of the land covered by B’s largest mortgage ($8,200 on 410 acres), and by arrangement his tract was discharged from B's mortgage by his paying a portion of the purchase money on the principal, etc., of the $8,200 mortgage, and by paying the balance on the interest, etc., due on B’s two other mortgages. Held, that in case of a sheriff’s sale of the 220 acres to satisfy D’s lien, E would be entitled to be subrogated to the amount paid on the principal, interest, etc., of the $8,200 mortgage, but not to the amount paid on the two other mortgages.
    2. Same — Taking other security. — The court is of opinion that the fact that E took other security from A to secure him from the C mortgage, does not affect his right to subrogation.
    3. Subrogation — Release.—When a party is subrogated to the rights under a prior mortgage which he has been compelled to pay, he simply steps into the shoes of the mortgagee nncl takes the latter’s rights and no more. The fact that the form of the transaction is a release and not an assignment, does not affect the right to subrogation. The amount of the mortgage can not be increased by means of subrogation.
    Appeal from the Circuit Court of Whiteside county.
    Opinion filed February 5, 1885.
    One Peter Bressler executed to the .¿Etna Life Insurance Company his three several notes and several mortgages to secure the same. The first note was for $8,200, and the second for $6,500, and the third for $6,000. The number of acres of laud contained in all the mortgages was 1,080, and the number in tiie mortgage to secure the larger note was 410 acres. The date of the several notes and mortgages was March 21, 1881, and recorded on same day. Afterward Bressler executed to Henry Smith a second mortgage on all the lands described in all the -¿Etna mortgages, to secure $1,500, which note and mortgage was assigned to Adam Smith after the filing of the original bill by Henry Smith. On March 15, 1883, one John Martin obtained a third lien on all the land by judgment in the circuit court for $3,395.
    It appears also that on March 26, 1883, James Dinsmore, one of the parties to this suit, and who has filed a cross-hill, purchased of said Bressler 220 acres of the 410 acres of the land covered by the $8,200 mortgage above mentioned, and received a deed from Bressler therefor for the sum of $7,700, which by agreement was to be applied in discharge of the said .¿Etna mortgage on this land if it could be done. f.That after this transaction, in order to clear the said 220 acres ot land from the .¿Etna mortgage, Dinsmore, by agreement with the -¿Etna Company, procured a release to be executed by it of said mortgage, which release was duly recorded March 27, 1883. It further appears that John Martin, on April 3,1883, had execution issued against Bressler, and levied on the 220 acres of land covered by the release, and had it sold by the sheriff to satisfy his judgment on July 13,1883, and "bid it in himself, and certificate of sale issued to him, as set out in cross-bill, for $2,035.

      The court, upon the proof and pleadings, decreed that the defendants in the cross-bill of Dinsmore pay to the latter §8,292.86, with interest, with costs of proceedings on the cross-bill, within twenty days; that the premises be sold at public auction; that the master shall first pay from the avails of said sale the costs of cross-bill and his own commissions; that he shall next pay said sum of money and interest to Dinsmore; the balance he shall hold subject to the order of court; that the certificate of purchase of John Martin be canceled. The court also ordered sale of the lands described in the original bill by Smith to satisfy his mortgage. The .¿Etna Life Insurance Company was not a party to this suit. From this decree Martin and Adam and Henry Smith appeal and assign for error:
    1st. That Dinsmore is not entitled to subrogation as decreed by the court.
    2d. That if he is entitled to be subrogated, he is not entitled to the amount which had been allowed him by the court on the land he purchased, and which the release covers.
    Mr. J. E. McPiierran and Messrs. Manahan & Ward, for appellants;
    as to subrogation, cited Sanford v. McLane, 3 Paige, 122; Constant v. Matteson, 22 Ill. 547; Bassett v. Lockard, 60 Ill. 165.
    Messrs. J. & J. Dinsmore, for appellee;
    cited Conway v. Parkham, 24 Miss. 665; Hunt v. Hunt, 14 Pick. 384; Gibson v. Crehore, 3 Pick. 475; Towle v. Hoit, 14 N. H. 61; Bell v. Woodward, 34 N. H. 90; Young v. Morgan, 89 Ill. 200.
   Lacey, J.

We will first determine the right of Dinsmore to subrogation. It appears that upon the purchase of the two hundred and twenty acres of the land of Bressler, he went to the JEtna Life Insurance Company to procure a release of the mortgage on the land, and he found that in one bill and proceeding the company had procured a decree of foreclosure in the United States Circuit Court in the Northern District of Illinois, on all said ./Etna mortgages, though the decree was several as to each mortgage. He then made a contract with it to set aside its decree and allow him to pay up all the interest on all the mortgages and all costs and attorneys’ fees and a certain amount to be paid on the principal of the large mortgage, and it to release the land he had purchased from Bressler, which contract was carried out as agreed upon.

The seven thousand seven hundred dollars purchase money that he had agreed to pay to Bressler was applied in discharge of the /Etna mortgages and interest as follows: On the larger mortgage, covering the land in question, he paid on the principal the sum of $4,400 and two interest coupons of $574 each, making in all $5,548, paid on that note and mortgage, lie paid on the interest of the $6,500 mortgage two other coupons of $455 each, making $910 on that mortgage, and the last smaller mortgage of $6,000, two coupons for $420 each, making $840, making in all $7,298, leaving a balance of the $7,700 of the sum of $402, which we presume was the costs and attorneys’ fees incurred in the foreclosure suit in the United States Circuit Court.

We are clearly of the opinion that Dinsmore has the right to be subrogated to the position of the original mortgagee as far as he has paid and discharged the mortgages. After having purchased the land he was compelled, if he made his title good to the land which he had purchased, to pay off and satisfy at least the mortgage on the 410 acre tract, or by some arrangement, as he did make, to get his land discharged by the payment of a less sum.

As a part of the condition the company compelled him to pay all the interest due, and one year in advance on the other two mortgages, and all costs and attorneys’ fees.

It is claimed that Dinsmore took other security from Bressler to secure himself against the Smith mortgage, and for that reason has lost his right of subrogation. We do not think that he forfeited his right by the transaction to insist on his claim to be subrogated to the rights of the ¿Etna mortgage. What right has Smith to claim the benefit of any mortgage Dinsmore may have taken from Bressler? He was no party to the transaction and was put in no worse position by it. What matters it to him if he was in no worse position as regards the ¿Etna mortgage than he was before Dinsmore took the release? And what matters it that the form of the transaction between Dinsmore took the form of a release instead of an assignment?

What right has Martin to claim the benefit of Dinsmore’s money that paid off the ¿Etna mortgage? He wants to take the land from Dinsmore free from incumbrance created by ■ the JGtna mortgage, and deprive Dinsmore of the land and of the money he paid to .the ¿Etna company. What injustice that would be! It would indeed be a windfall for Martin, but at the expense of a man that owed him nothing.

The doctrine of subrogation is well supported and illustrated by the ophiion of the Supreme Court in the following cases, viz.: Young v. Morgan, 89 Ill. 200; Beaver v. Slanker, 94 Ill. 175. Those cases support the doctrine here announced.

There remains now the question whether Dinsmore has not been subrogated in too large an amount to his rights under the ¿Etna mortgage. And in that matter we think it is clear that he has been. The decree of the court requires the 220 acre tract of land to be sold and §8,292.86 paid to him on account of his interest in the mortgage. When a party is subrogated to the rights under a prior mortgage which he has been compelled to pay, he simply steps into the shoes of the mortgagee and takes the latter’s rights, and no more.

All that was p¿id on the §8,200 mortgage was the §4,400 and the two coupons of §574 interest on it, making §5,548, and the proportionate share of the expense, costs and attorneys’ fees in the United States Circuit Court, which, as we figure it, allowing the §402 to be divided between the three ¿Etna mortgages in- the proportion that §8,200 bears' to the other two, we make it $163.20, making $5,711.20. The last amount, as we understand the evidence, is all that can be charged to be the proper amount for subrogation on the §8,200 mortgage. But after the payment on the latter mort£ra$re had been made there would remain due the ¿Etna on the O r) mortgage the sum of $3,800 of the principal. How, adding the amount remaining dne to the /Etna Life Insurance Company to the amount the court allowed to Dinsmore, §8,292.86, the total sum would be §12,092.86. But the sum due on the mortgage at the time, and its accrued costs and attorney’s fee, was only §9,511.20, showing that the combined claim remaining due the /Etna company and Dinsmore by this decree is made to exceed the amount of the mortgage, costs and interest, by the sum of §2,581.66.

We do not think that by means of subrogation the amount of the mortgage can be increased. Subrogation is simply a kind of purchase recogn'zed by the law for the purpose of forwarding the ends of justice. A party who should purchase a portion of a mortgage can only claim the interest purchased, leaving to the party from whom he purchased the balance. We suppose that Dinsmore might claim his rights of subrogation out of the sale of the other two mortgaged premises for the amount of the interest, expenses, and costs he paid on them, if occasion required and when the time arrives. The substance of the transaction between Dinsmore and the /Etna company was that the former took an equitable assignment of a portion of the mortgage on 220 acres of the land. The consideration for this was the amount above shown, which he paid on the §8,200 mortgage and expenses. This was done by agreement with the /Etna company. If Smith or Martin, or both, are willing to accept this division of the mortgage and redeem from it and pay Dinsmore the amount he has paid and interest, or if the land is sold and that amount paid him, we see no objection, and Dinsmore can not complain. But if they insist that the division is not a proper or just one, they would have to redeem from the entire /Etna mortgage of §8,200 and interests and costs, and ask subrogation themselves if the court upon investigation should allow it after giving the /Etna company the right to be heard.

The decree of the court below is therefore reversed and the cause remanded with the directions to allow to Dinsmore no more than he appears to have paid for the release on the 220 acres, which was credited on the §8,200 mortgage, and interest and costs of the United States Court foreclosure and attorney’s fee paid, which by proper proportion would belong to it. The amount paid on the interest of the other two mortgages and their proportionate share of said costs and attorney’s fee should not be allowed him out of the sale of the 220 acres of land. We do not require the court to be governed by the calculations made by this court as to the amounts, unless they should prove accurate, upon a further hearing.

Decree reversed and remanded.


text:
    Lewis Keith v. William P. Buck.
    1. Compounding a felony — No grounds for criminal charge.— Where A, against whom proceedings in a.'case of bastardy had been instituted, and B, who was acting as his friend in the matter, were falsely told by the woman’s agent that there were four several charges against A growing out of the bastardy case, and that he had writs out against him and he would be sent to the penitentiary unless he settled, and under the pressure of these fraudulent charges and threats A made the settlement, and procured of B a note of §500, which was given to the woman, and in return gave B his note for §500, upon which suit is now brought, and there was no ground for the two charges of attempted abortion and abduction. Held, that A was not guilty of compounding a felony, and was not in pari delicto with the woman and her agents. A can not, as against B, make such defense. The fact that no consideration passed as between A and the woman can not affect B.
    2. In pari delicto. — In cases where both parties are in delicto concerning an- illegal act it does not always follow that they stand in pari delicto, for there may be, and often are, different degrees in guilt.
    Error to the Circuit Court of Winnebago county; the Hon. Wm. Brown, Judge, presiding.
    Opinion filed February 5, 1885.
    The plaintiff in error, who was the survivor of G. W. Lobinsón (deceased), his co-payee of the note hereafter mentioned, sued defendant in error on his promissory note, given by him to plaintiff in error and G. W. Robinson (now deceased) for the sum of $500, due one year after date, with interest at the rate of ten per cent., payable annually, dated June 8, 1875.
    The defense set up to the note grew out of the following circumstances, viz.: Two or three days before the giving of the note in question the defendant in error was charged by oneTillieLettow, who was then an unmarried woman of about the age of fourteen years, of being the father of her unborn child, and that she had instituted proceedings against him in a case of bastardy, before Win. R. Hovey, a justice of the peace of the county, charging him with being its father, and that a warrant had issued against defendant in error, who, hearing of the circumstances, secreted himself so that the warrant could not be served on him; and on Saturday night preceding the Tuesday next following, on which the note was given, about 12 or 1 o’clock at night, he went to the house of the plaintiff in error, who was a farmer living in the country, and woke him up and engaged him to act as his friend in the matter, and procured him to go and see a lawyer to ascertain what the law was in the matter; and on Sunday, the next day, plaintiff in error went to Rockford and saw a lawyer, and ascertained what the law was in a case of bastardv, that beinothe only charge he knew of at that time. He went back into the country to a Mr. Hawkeye’s and called for defendant in error, who came out of the barn. This was after night on Sunday night. The next day, on Monday, at request of defendant in error, the plaintiff in error went to see O. H. Wright, the attorney who had charge of the bastardy proceedings for Tillie Lettow, and on his return at night he met Mr. Wright and had a talk with him, and went that same night and saw defendant in error, and told him what Wright said and his offer of compromise, and advised him to settle, as he understood that there were several charges he washable for; and that Wright, after first asking $1,500 and some expenses, had offered to settle for $1,000, and left the offer open till 11 o’clock the next day. On the next day plaintiff in error met him in the road near Cherry Valley, where he informed plaintiff that he had been to see Wright, and had settled it for $1,000, and made arrangements to get the money, but had been disappointed, and said plaintiff had to help him, or “he had to run the country and leave his family.” Then plaintiff saw Bobinson and they agreed to fix it up for defendant, and all three went to Belvidere the same day and went to Wright’s office, and there the matter was fixed up. There were present Tillie Lettow, her father and two brothers, and Mr. Wright and plaintiff, and defendant and Bobinson, and others. Wright refused to take defendant’s note, and the matter was adjusted by the plaintiff loaning defendant $100 in cash, which was paid over, and by his turning out for defendant a span of black horses at $280, and plaintiff and Bobinson gave Tillie Lettow their two judgment notes — one for $120 and one for $500. The defendant paid the $120 note after it had been put into judgment, and also paid the plaintiff for the horses and repaid the $100. The judgment note for $500 was dated June 8, 1875, due in one year at 10 per cent, interest. Then the note in suit was given to secure the plaintiff in error and Bobinson for the $500 note given to Tillie Lettow by them. It seems that Wright, as the agent of Miss Tillie Lettow, falsely represented and stated to both the plaintiff in error and defendant, that there were four several charges against the defendant in regard to the facts growing out of the bastardy case, to wit: bastardy, abortion, abduction and seduction, and that he had writs out for him on all the charges, and that unless the bastardy ease was settled and a full compromise made of the matter the defendant would be sent to the penitentiary; that under the pressure of these charges and threats thedefendantmade the settlementtliat he did, and gave the money and procured the plaintiff’s note to be given to her, and gave the note in suit. The plaintiff, it appears, and Bobinson, in his lifetime, were sued on the note ofiven to Tillie Lettow bv Win. H. Hovev, to whom she had indorsed it in a few days after'it was given, and judgment recovered and the plaintiff paid it in full, being $520, and costs and interest. Plaintiff in error was defeated in the court below and appeals.
    Mr. J. C. Carver and Mr. Wm. Marshall, for plaintiff in error;
    cited Steuben Co. v. Matheson, 5 Hill, 249; Catlin v. Henton, 9 Wis. 496; Baehr v. Wolf, 59 Ill. 474.
    Mr. C. M. Brazee, for defendant in error;
    cited Gray v. Hook, 4 Comstock (N. Y.), 449; 2 Kent’s Com. 466; Winston v. McFarland, 22 Ill. 38; Valentine v. Stewart, 15 Cal. 389; Gaston v. Drake, 14 Nev. 175.
   Lacey, J.

The main and only defense to the note sued on, which the defendant in error has any claim in reason to maintain, and the only one we feel called upon in the main to notice, is that the consideration in part of the settlement between him and Tillie Lettow was the compounding of the crimes of abortion and abduction, which she or her attorney had charged him with, and threatened to prosecute unless there was a compromise, and that the defendant was guilty of crime and moral turpitude in compounding them, and that the plaintiff, being cognizant of all the facts, and his agent in bringing about such a result, aiding and abetting therein, is as much guilty of moral obliquity in the transaction as the defendant, and therefore should not be heard in the courts or assisted in recovering from him the money he has paid out at his request, and for his benefit; that he and the plaintiff are in jpari delicto and for that reason no recovery can be had.

The question arises whether under the facts and circumstances of the case and the law applicable thereto, there was any compounding of the crimes of abortion and abduction.

It is contended by the counsel for the plaintiff in error that if the defendant in error was not guilty of either of the crimes of abortion or attempted abortion, and abduction, and no criminal prosecution had been commenced against him, and that mere fraudulent threats were made by the Lettows and Wright, their attorney, to prosecute him for these criminal charges to frighten him into a settlement of a matter which he had a lawful right to settle, and the defendant yielded out of fear of criminal prosecution and settled by reason of such fear, and it was agreed as part of the consideration that the crimes so charged were not to be prosecuted, then there was no compounding of a crime within the meaning of the law, and that defendant Buck would not be guilty of such moral turpitude as would avoid the agreement between him and the Lettows on the ground alone that the consideration was against public policy and void. That under such circumstances Buck would not be prohibited and barred from bringing his action against the Lettows to recover from them any consideration he may have paid them by reason of such agreement, in case the consideration had failed and he was otherwise entitled to bring the suit, on the ground that the contract was against public policy and he was in pari delicto with them. This question seems to be a new one in this State. There is no doubt, however, of the general doctrine that any agreement made in consideration of compounding a crime is utterly void, and that when this appears courts will refuse to aid either party to enforce such an agreement, but will leave the parties without any remedy where they left themselves. The courts regard such parties as being in pari delicto and not entitled to relief in court where one party refuses to perform the agreement. But the question, so far as we have been able to discover, has never been raised in this State, as to whether in case there are i o grounds for the criminal charge and no prosecution has been instituted, there can be any compounding of such false charge as to bring the case within the general rule with all its consequences. And in other States we can find but four cases where the- decision turned directly upon this point, to wit, James v. Roberts, 18. Ohio, 548; Chandler v. Johnson, 39 Georgia, 85, and Catlin v. Henton, 9 Wisconsin, 496, and Steuben Co. National Bank v. Matheson, 5 Hill (N. Y.), 249. In the last cited case one of the grounds for demurrer to the plea was that it failed to aver that the crime of forgery had been in fact committed. The court says, “ The plea is bad, I think, for the single reason that it fails to aver the fact either of a forgery or a criminal uttering of the note.”

“ In the case before us it is not averred that a criminal prosecution had been instituted. If the plea had shown thus much and an agreement to stop the prosecution or in any way em-ban-ass its course, that would have been illegal and vitiated the bond whether the prosecution had been founded on the truth or not. The public have an interest that such prosecutions should be carried on to conviction or acquittal; and the plea need not in such case aver the fact that the crime was committed; nor do the precedents contain such an averment.” But in case there is no prosecution instituted the court hold, in order to make out a case of compounding of a crime there must have been a crime committed.

The case of Catlin v. Henton, 9 Wis. 496, above cited, the same rule is announced as in the above case cited from 5 Hill, which is cited in the Wisconsin court in support of the doctrine. The case of James v. Roberts, the facts were that Roberts accused him of being guilty of the crime of perjury and went by James’ house and told him he was on his way to get out a warrant for him, and by these threats of prosecution frightened James into executing the notes and mortgage that he was trying to get relief from in the court, and upon executing the notes and mortgage, received an agreement from Roberts that he would not prosecute him outlie charge of perjury. Roberts set up in defense the same claim that is relied on in this case, that the contract was against public policy and that James should not be heard by the court in his prayer for relief.

The majority of the corn-tin passing on the point say: “We are of the opinion that James was entirely innocent of the crime charged against him, and that this was known to all the parties concerned; that the charge was got up merely for the purpose of extorting money from him by operating on his fears, and that fearing the consequences of prosecution, notwithstanding his innocence, he executed the note and mortgage.”

The court finds that the notes and mortgage were executed through intimidation and fear and say that “ where a party through cowardice and fear do acts which are only calculated to injure himself, they have never, in a legal sense of the term been regarded as immoral or contrary to public policy.”

“ A true public policy requires that all groundless proseentions lionld, if possible, be prevented, and that every facility shall be afforded the innocent to escape from such calamity, and we think an innocent party may with great propriety ask to be relieved from the consequences of a groundless charge.” The court granted to James the relief sought against the notes and mortgage.

The next and last case is that of Chandler v. Johnson, 39 Georgia, 85. This was an action of assumpsit on a promissory note, given by Johnson and his co-makers to John H. Lovejoy and indorsed to Chandler; the plea set up in defense of the note,was that it was given in consideration of compounding a felony, to compromise the offense of stabbing committed by Johnson on Lovejoy. Uo legal proceedings were instituted against Johnson lor the offense. The verdict was for plaintiff and appealed to the Supreme Court of Georgia on a new trial being granted. The point in controversy arose on the instruction given to the jury on the trial, which was “ that there must be proof that a felony was actually committed before the note sued on could be deemed illegal on the ground of having been given in whole or in part to compound a felony, and that the jury must determine from the evidence whether in fact a felony had been committed or not.” The court in deciding upon the carelessness of this instruction said, “Thecharge of the court, that the defendant must prove that a felony had been actually committed was, we think, too strong and calculated without explanation to mislead the jury. The natural inference from the charge is that it was upon the defendant to make out a clear case of guilt on his part. We do not think this is the law. It is sufficient if there be a dona fide charge against the defendant of a felony. Any stronger case than this required to defend an act tinctured with illegality by reason of its being given to compound a felony, would make the law a farce. It is a high requirement of public policy that felonies shall be punished, since the law frowns upon any attempt to suppress the investigation of such a charge, and the agreement not to prosecute is the illegality. Chitty on Contracts, 582, and notes.”

It seems from the decision in the last case cited that the charge must be Iona fide, that is, made in good faith. We think that if it was a fraudulent charge, made with sinister de^ sign for the purpose of extorting money, even under the decision of the Chandler-Johnson case, it would not be illegal for the accused to yield to such an extent as to deprive him of the right to maintain his action for the recovery of his rights.

We are not called upon by the facts in this case, or the claim made by counsel, to decide whether the rule announced by the courts of Hew York and Wisconsin, above cited, is correct as broadly as there laid down, but only whether under the facts of this case the defense that the contract is contrary to public policy can be maintained.

The facts are scarcely disputed. The evidence of the de fendant in error is allowed by him to stand as the truth in the case, and the evidence of a party to the suit is always regarded by the courts as against himself, of having peculiar force and weight and generally conclusive against him. What does he testify to in regard to the matter of abortion and abduction? He says in his testimony, speaking of what took place at the time the note was executed, “After the execution of the note I told Keith it was a put up job to get money; that there was no ground for any such charges. At the time the note was given they told me there were four charges and they would sock me for on all; it was given to settle all the four charges, nothing else.” * * * “ When we went to Belvidere he told Wright there was no abortion and Wright says, ‘ Wait till those two doctors come out and we will see.’ Then he went into the office and we gave the notes.”

In the affidavit which he made for the purpose of a new trial in the case of Hovey v. Keith and Robinson, on their $500 note, and which he introduced in evidence in this case on the trial in the court below, he says:

“The said note was given in settlement of charges of bastardy, of attempt to procure abortion upon Tillie Lettow, of abduction and seduction, and upon an agreement of said Tillie Lettow that none of said charges should be prosecuted,” etc., * * * “ and that before said note was given I saw Wright and attempted to convince him that there was no possible ground for the charge of attempted abortion. That said Wright, for the evident purpose of alarming me, said Wait till the two doctors come up and swear and then see; that I then asked him what Tillie Lettow said about it; that he replied Rever mind now; that when he spoke of the two doctors his manner was such as to leave me to fear that a job was put up on me, and that they had some doctors that would swear to something very hard against me; that then I did not know what constituted the crime of abduction. That I have since read the statute defining abduction and know its contents, to wit, Sec. 1, Chap. 38, R. S. 1874, and that I now know that I was in no sense guilty of abduction or of anything approaching to said crime; about six months after that the note was given."{

This ought to settle the question against the defendant that there were no grounds for the charges of abduction or attempted abortion, and the charges were falsely and knowingly made by Wright and Tillie Lettow for the purpose of frightening him into paying her a large amount of money. This is almost identical in its facts, so far as the principle is involved? with the James ease in 18 Ohio, supra,, and of course is covered in principle by the cases in Row York and Wisconsin, which even go farther. To hold that under the facts no compounding of crime took place in this case would not be opposed to the principle announced in the Georgia case, supra, for there it was held that the criminal charge should be bona fide made, and not fictitious.

Whether the Supreme Court of Ohio meant to hold that for no purpose could the case there decided be regarded as compounding a crime, or whether it meant to hold that under the facts as found by the court, the parties, James and Roberts, could not be held in pari delicto, so as to bar James from maintaining his action, is not so clear from what was said, nor does it make any difference, as any rule that would free the party asking relief from turpitude to that degree as would enable him to maintain his action in court, would answer every purpose. Sometimes a party is held to be in clelicto but not in pari delicto, and in such case the rule sought to be invoiced by defendant in error would not bar plaintiff from maintaining his action. Story says in his work on Equity Jurisprudence: “In cases where both parties are in delicto concerning an illegal act it does not always follow that they stand in pari delicto, for there may be and often are, different degrees in guilt. One party may act under circumstances of oppressive hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associates in the offense.” 1 Story’s Eq. Jur., Sec. 300, quoted in Baehr v. Wolf, 59 Ill. 470; see also other cases there cited. In that case the Supreme Court made the application of the principle to the following facts: Wolf being under indictment, charged with crime, and Baehr being on his bond for $600, afterward, with the aid of his wife, who was a sister of Wolf, represented to him that he stood in great danger of being convicted and sent to the penitentiary, and advised him to abscond, and by working on his fears procured him to do so, and to secure Baehr on his recognizance they induced him to deed them the real estate sought by Wolf to be recovered in that suit, and with the expectation on the part of Baehr and his wife, that Wolf would never return and they would get the land at a great sacrifice to Wolf. Wolf did leave, and Baehr took possession of the land, and the bill was filed by Wolf to recover it back, setting up that the deed was only a mortgage. Baehr set up as a defense that the deed was given for criminal purpose, to assist Wolf to run away and avoid trial, and claimed the benefit of the principle here invoked, that Wolf and himself were pari delicto in the transaction, and asked the court to refuse to aid Wolf on that ground. The court held that they were not under the rule laid down in Story in pari delicto, and granted the complainant the relief asked, to set aside the deed. In that case there was no question that it was illegal and against public policy that Wolf should be induced to abscond, or that lie was in the wrong to leave and flee from justice. To the suggestion that if Wolf was innocent he ought to have remained and asserted his innocence before the court and not taken the advice, the court say, by'Justice Scott, who delivered the opinion, “ Some allowance must always be made for the imperfections of the human judgment under certain circumstances; the conduct of persons accused of crime, although they may be entirely innocent, is often most inexplicable. Such persons often magnify manifold the dangers that surround them. Under such circumstances their fears are easily wrought upon, and the law will not always require of them the exercise of that clear and accurate judgment that would otherwise be expected. Under the facts in the case we can not regard the parties as standing in pari delicto. The moral turpitude attaching to appellant in the illegal transaction is much greater than that of the appellee, Wolf.”

We think that the same rule should apply in this case. Through fears caused by threats of being sent to the penitentiary on groundless charges, the contract was extorted from Buck. The law in its humanity regards a person in such condition in a different light from the party who by fraudulent and dishonest means gets possession of another’s property, and the courts of justice will not be closed against him on the ground that they are similarly guilty with the other party who overreached them. If, then. Buck was not guilty of compounding a crime, or was not in pari delicto with the Lettows, much less would the defendant in error, who is charged with being an accomplice with Buck in doing an illegal act, be guilty, and hence it follows that Buck can not, as against the plaintiff, make the defense sought to be made. The position of plaintiff in error in aiding Buck out of his troubles was that of a disinterested friend who lent him his money, property and credit, which saved him from prosecution and further public exposure, mortification and disgrace.

But this case has another phase. It may be that there was no consideration passing between the Lettows and Buck on account of the fraud practiced upon him by them, but of this we will not express an opinion.

Blaintiff in error, however, would not be barred from any recovery against him on that account for money advanced to Buck to liquidate such illegal consideration if any. The money and credit were loaned at Buck’s request, and it was no concern of plaintiff that the former did not receive value.

If the note given by plaintiff to Tillie Lettow was indorsed to Hovey he could have no defense if Hovey, as he claims, was an innocent holder without notice. And if he was not, and when the defendant had an opportunity to defend it and he consented to judgment on the note to Hovey, and plaintiff in consequence paid it, the latter would have the right to recover the amount of the judgment and costs, and interest paid on the judgment, with the interest specified in the note in suit from time of payment of judgment. We think the evidence largely preponderates in favor of the plaintiff on the question as to whether or not Buck consented to the entry of judgment in the Hovey suit. If Buck did not consent to the entry of judgment, before he can make any defense on the grounds that the Hovey suit was settled without his consent and against his will, he must prove by a preponderance of the evidence, 1. That the note was indorsed to Hovey with notice of defense; and, 2. That he had a good and valid defense to it.

It is charged in the defendant’s brief that O. II. Wright, Hovey and plaintiff were intending to get the most of the $1,000. In substance, that there was a conspiracy between them to extort money from the defendant. If this were so, the plaintiff would have no meritorious claim against defendant, and should go out of court and pay all costs, but we see no warrant in the evidence for any such charge, there being none on which to base it.

We will not examine the instructions in detail, but say all are erroneous which are in conflict with the principles here announced.

The verdict is manifestly contrary to the evidence, and the judgment is therefore reversed and the cause remanded.

Judgment reversed and remanded.