text:
    Rebecca Milligan, Appellee, v. E. R. Darlington Lumber Company, Appellant.
    1. Landlord and tenant—when partnership accepts lease. The conduct of a partnership under and by virtue of the provisions of a lease constitutes an acceptance by such partnership of the lease and such partnership becomes bound by the provisions thereof notwithstanding it has not signed the same.
    2. Landlord and tenant—character of provision of assignment without former’s consent. A provision in a lease that the same shall not be assigned without the written consent of the lessor is a provision for the benefit of the lessor only and the failure of the parties to obtain such consent does not render the assignment void.
    3. Landlord and tenant—when latter obligated to pay special assessments. A lease providing that the tenant shall pay all taxes and “assessments” obligates such tenant to pay special assessments.
    4. Local improvements—when proceeding not subject to collat

      eral attack. A proceeding to levy a special assessment cannot be attacked in an action by the owner of the property assessed against his tenant to compel such tenant to pay an assessment which he has assumed by the lease to pay.
    Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    J. C. & W. B. McBride, for appellant.
    Hogan & Wallace, for appellee.
   Mr. Justice Baume

delivered the opinion' of the court.

On February 1, 1902, appellee, being the owner of lot 7 in block 16 in the City of Taylorville, executed a written lease of said premises to E. R. Darlington & Co. for the term of five years “for the purpose of carrying on the business of a lumber yard.” The lease provided that the lessees should pay to appellee as rent for said premises the sum of $75 annually and “all taxes and assessments that may be levied and assessed on said premises for the year 1902 and all subsequent years of the term, until they shall have paid the taxes and assessments thereon for five years, and that they will each year of the term and by the 15th day of March of each year of the term deliver to the said party of the first part at her residence in Taylorville, Illinois, a proper receipt or receipts for the taxes and assessments levied on said premises for the preceding rental year.” The several members of the copartnership, named as lessees in the lease, were non-residents of the state and did not sign the lease, but the same was signed upon their behalf by one Hagener, the local agent and manager for said co-partnership at Taylorville. From the date of the execution of the lease until some time in 1904, the co-partnership occupied the leased premises under said lease, and paid as rent therefor $75 annually, and the general taxes levied against the same. In 1904 the members of said co-partnership became incorporated as the Darlington Lumber Co., which thereafter continued to occupy the leased premises as the successor or assignee of said partnership, and paid to appellee as rent for said premises the sum of $75 per year and the general taxes levied thereon. In 1903 the city council of the city of Taylorville passed an ordinance providing for the paving of certain streets abutting upon the leased premises, and for the cost of such improvement to be paid for by special taxation levied upon the property abutting said streets. In pursuance of such ordinance the improvement provided for thereby was made and such further proceedings were had whereby a judgment of confirmation was entered by the county court for the amount of special tax assessed against the leased premises, and a levy was made for the payment thereof in installments. Appellant refused to pay any of the installments of the special tax so levied against the premises and appellee having paid the installments payable in 1904 and 1905, together with certain penalties and costs accrued thereon, brought this suit against Evans R. Darlington, James G. Berryhill and Samuel Berryhill, partners, doing business as E. R. Darlington & Company, and the E. R. Darlington Lumber Co., a corporation, to recover the amount so paid by her. Service was had upon the corporation' only, and a trial of the cause by the court without a jury resulted in a finding and judgment against said corporation, appellant here, for $258.72.

It is not necessary to determine whether Hagener, the local agent and manager of E. R. Darlington & Co., had either express or implied authority to execute the lease for said partnership as a party thereto. It is uncontroverted that the partnership of E. R. Darlington & Co. entered into possession of the premises under and by virtue of the lease in question, and that said partnership paid the sum of $75 per year and the general taxes levied against the leased premises as rent therefor, during the time it occupied the same and until the appellant corporation was organized. The liability to pay the general taxes levied against the leased premises as rent therefor could only arise under and by virtue of the lease, and the payment of the taxes by the partnership is sufficient to show knowledge on its part of the provisions of the lease. The conduct of the partnership under and by virtue of the provisions of the lease constituted an acceptance by said partnership of the lease, and it became bound by the provisions thereof notwithstanding the fact that it had not signed the instrument. McFarlane v. Williams, 107 Ill. 33; Henderson v. Virden Coal Co., 78 Ill. App. 437.

The provision in the lease that the same should not be assigned without the written consent of the lessor is a provision for the benefit of the lessor only and the failure of the parties to obtain such consent did not render the assignment from the partnership to the corporation void. Webster v. Nichols, 104 Ill. 160; Livingston County Telephone Co. v. Herzberg, 118 Ill. App. 599. The obligation of the appellant corporation to comply with the provisions of the lease rests upon the same foundation as does the liability of the partnership, viz., acceptance of the lease and payment of rent thereunder to appellee.

It must be conceded that if the lease in question merely provided that the lessee should pay the taxes assessed and levied against the leased premises such provision would not create a liability upon the part of the lessee to pay any special assessments or special taxes assessed and levied against said premises. I. C. R. R. Co. v. City of Decatur, 126 Ill. 92; DeClercq v. Barber Paving Co., 167 Ill. 215. In the cases cited it was held that there is a clear distinction between a tax and a special assessment; that a tax is imposed for a general or public governmental purpose and lessens the value of the property against which it is made a charge, while a special assessment is levied for a special purpose involving the improvement of the property against which it is levied and thereby adding to its value; that an exemption from taxation did not constitute an exemption from special assessments, and that an obligation to pay the taxes levied against certain premises did not create an obligation to pay special assessments levied against the same. By the terms of the lease here involved the lessee agreed to pay all taxes and assessments which might be levied and assessed on the premises during the term of the lease. The word “assessments” as used in the lease, whether it be given its plain, ordinary and popular meaning or its technical meaning, as a legal term, .must be held to include all charges which might be imposed upon the premises by special assessment or special taxation for purposes of local improvements in contradistinction to burdens imposed upon the premises for governmental purposes by general taxation, as expressed by the word “taxes.” Stephani v. Cath. Bish., 2 Ill. App. 249. The use of both words in the lease clearly indicates that it was within the contemplation of the parties that the lessee should pay all charges which might be imposed upon the premises for either of the purposes indicated.

It is finally urged on behalf of appellant that the ordinance under which the special tax here sought to be collected was levied was defective in that it did not fix the grade for the improvement, and that if appellee had filed objection to the confirmation of the special tax upon that ground such obligation would have been sustained and the payment thereof avoided. It is a sufficient answer to this contention to say that the regularity of the proceedings whereby the assessment was confirmed and judgment of sale was rendered is not open to collateral attack in this suit.

The rulings of the trial court upon the propositions submitted to be held as the law applicable to the case were in accordance with the views here expressed and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    H. C. Kennedy, Plaintiff in Error, v. Town of Normal et al., Defendants in Error.
    1. Mandamus—when lies. The remedy by mandamus can only be invoked where the relator sets forth and establishes the right to coerce the respondent to do the thing sought to be done.
    2. Mandamus-—when not awarded to compel municipality to pay salary. Unless the right to the salary sought to be collected by mandamus is clear, the right to the remedy will be denied.

      Mandamus. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Bracken, Young & Pierce, for plaintiff in error.
    R. L. Fleming, for defendants in error; Harvey Hart, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

Plaintiff in error on March 11 and March 30, 1908, filed his original and amended petition for mandamus in the Circuit Court of McLean county against the town of Normal and the president, clerk, and treasurer of said town, defendants in error, to compel the payment of an alleged balance due him for salary as street commissioner of said town, for the term beginning April 2, 1907, and ending April 1, 1908.

The petition alleges that the town of Normal is a municipal corporation organized under the laws of the state and a certain special charter granted to it by the state on February 25, 1867; that on March 18, 1905, the town council of said town enacted an ordinance known as Ordinance VIII, section 1 of which ordinance provided that at the first regular meeting of the town council after the regular annual election the said town council should appoint various town officers, including a street commissioner, which officers should hold their respective offices for a term of one year and until their successors were appointed and qualified, and that they might be removed from office for any good cause shown; that by the several sections of said ordinance it was provided that the compensation to be received by said officers should be fixed annually prior to their appointment; that it should be the duty of the street commissioner, under and by direction of the town council, to keep the streets, alleys, sidewalks and crossings in good repair, to keep the streets clean from rubbish and obstruction, and to do all other acts in relation thereto required by the said council, and that it should be the duty of the town treasurer to collect and receive all moneys belonging to the town and to pay over to the proper parties money on all orders signed by the president and town clerk; that b.y a public record of its proceedings then made and entered in said town council on April 1, 1907, it appointed plaintiff in error street commissioner of said town and fixed his salary at $2 per day; that plaintiff in error accepted said appointment and qualified and entered upon the performance of the duties of said office; that he has been paid on account of his salary as such officer the sum of $297.60, and that all the balance of his salary for such portion of his term of office as had expired remained due and unpaid; that after the payment to him of $142 on account of his salary the said town council on July 1, 1907, enacted an appropriation ordinance which included an apportionment of $600 for the salary of the street commissioner.

The petition further alleges the duty of the president, clerk and treasurer of the said town in the premises, a demand by plaintiff in error, a refusal by the defendants in error, and that at the time of said demand and refusal there was ample funds in the hands of the treasurer of said town appropriated for the salary of street commissioner to meet said demand. The defendants in error filed their joint and several answer to the petition, wherein they deny that the salary of plaintiff in error was fixed at $2 per day for each and every day in the year, and aver that said salary was fixed at $2 per day for each and every day that the plaintiff in error should be employed in and about the duties of his office. The answer avers that at the first regular meeting of the town council held in each of the months of May, June, July, August, September and October, 1907, plaintiff in error presented to said council a written bill for services as street commissioner for the preceding month, which several bills were paid as presented and such payment was accepted by him as in full for all services during each of the said several months; that said bills as so presented included services during each of said several months as follows: April, 24-2/5 secular days; May, 22 days and 2 hours; June, 24 days and 2 hours; July, 26 days; August, 26% days, and September, 25% days; that for each of said months plaintiff in error made no claim for any services on Sunday, except for one-half day in September, as to which he especially reported that he had performed necessary services; that by so presenting his bills and accepting payment in accordance therewith plaintiff in error thereby construed the order fixing his salary as following: $2 per day for such days as he should be engaged in performing the duties of his office, and that by so presenting his bills and accepting payment in accordance therewith, plaintiff in error was estopped from setting up any claim for additional services up to October 1, 1907; that at the regular meeting in November plaintiff in error presented his bill for services for all of the working days in the month of October, when as a matter of fact he had been engaged only one-half of said days in performing his duties, and for that reason the committee of the town council refused to recommend the payment of said bill in full, but recommended the payment of only so much thereof as represented the days upon which plaintiff in error had actually performed any duty; that at the regular meeting in December, 1907, plaintiff in error presented his bill for salary for thirty-one days in October and thirty days in November, which bill the town council declined to approve because plaintiff in error performed no services on any of four Sundays in each of said months and because he was only engaged thirteen days in performing services during the month of October, but said council was ready and willing and offered to pay plaintiff in error his salary for all of the days he was actually employed during said months. The answer further avers that plaintiff in error was not then and had not been street commissioner of said town since December 9,1907, upon which day the plaintiff in error notified said town council in writing that all orders or commands from the council or its members to him should be in writing signed by them and delivered to the clerk and that thereby plaintiff in error declined to further discharge the duties of street commissioner as required by law, and thereafter ceased to be entitled to any salary as such street commissioner; that at the regular meeting of the said town council held December 16,1907, the committee on streets and alleys presented its report upon the conduct of plaintiff in error, wherein said committee recited the conduct of plaintiff in error in presenting his bill for services as theretofore stated, and in giving the written notice referred to, and adjudged that such conduct of plaintiff in error was good cause for his removal .from office; and that by a resolution then adopted by the town council plaintiff in error was removed from office for good cause shown.

A demurrer interposed by plaintiff in error to said answer was sustained by the court and plaintiff in error abiding his demurrer judgment was rendered against him in bar of his action and for costs.

It is elementary that the remedy by mandamus can only be invoked where the relator sets forth and establishes a clear right to coerce the respondent to do the thing which the relator seeks to have done. In The People v. Rose, 225 Ill. 496, it was said: “The writ of mandamus has always been regarded as one of the highest writs known to our system of jurisprudence, and it only issues where there is a clear legal right to be enforced or a duty which ought to be performed. It is never issued in doubtful cases. (People v. Salomon, 46 Ill. 415; People v. Trustees of Schools, 86 id. 613; People v. Town of Old Town, 88 id. 202.)

“The award of this writ even in cases where the relator has an undoubted legal right, is in the wise judicial discretion of the court.”

In the People v. Getzendaner, 137 Ill. 234, the court quotes approvingly from High on Extraordinary Remedies, as follows: “It is not the province of mandamus to settle the differences of opinion between municipal authorities and claimants as to the amount due for services rendered. All such cases of disputed accounts or claims against the municipality should be referred to the arbitrament of a jury or to the ordinary process of the courts; and they cannot be determined by proceedings in mandamus.”

The order of the town council fixing the salary of plaintiff in error at $2 per day is not necessarily to be construed as entitling plaintiff in error to $2 for each and every day in the year, and considering the fact that the amount appropriated to cover the salary of the street commissioner for the entire year was only $600, and considering also the conduct of plaintiff in error in presenting bills for his services which covered only as many days in each month as he was actually engaged in the performance of his duties, we think, to say the least, that the right of plaintiff in error to a judgment awarding a peremptory writ of mandamus as prayed in his petition, is very doubtful, and that the trial court did not err in overruling the demurrer to the answer to the petition. The denial of the writ was not a clear abuse of judicial discretion. Accordingly the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Peter Vindas, Appellee, v. Dering Coal Company, Appellant.
    1. Mines and miners—what wilful violation to comply with demand for timbers. Where a mine operator adopts an exclusive method whereby a miner is required to make his demands for necessary timbers, it must be held that a compliance by the miner with such method constitutes a demand for such timbers within the meaning of the statute, and that a failure on the part of the mine operator to comply with a demand so made constitutes a wilful failure within the meaning of the statute.
    2. Verdict—when not excessive. A verdict for $466.66 rendered in an action for personal injuries is not excessive where it appears that as a result of the accident in question the right ankle of the plaintiff was severely sprained, that he suffered considerable pain for a long time thereafter, that he was confined to his house for a month and was not able to resume his work for about six weeks after the injury, that at the time of his injury he was earning from $70 to $90 per month and that after he resumed work he was earning but $40 to $60 per month.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Buckingham & Troup, for appellant.
    C. H. Beckwith and S. M. Clark, for appellee.
   Mr. Justice Baume

Appellee recovered a verdict and judgment against appellant for $466.66 as damages for personal injuries alleged to have been sustained by reason of the wilful failure of appellant to furnish a sufficient supply of timbers, when demanded, for the purpose of securing the roof of the room neck where appellee Was employed as a miner, whereby loose rock fell from the roof of-said room neck upon his foot and ankle.

The evidence discloses that the miners employed in appellant’s coal mine Were required to deposit in a box provided by appellant slips of paper upon which, were designated the character, length and dimensions of timbers required by the miners to properly prop and secure the roof of their working place, and that no other provision was made by appellant whereby the demands of the miners in that regard might be made and supplied. On November 15, 1906, and for some time previous thereto, appellee and his buddy had been engaged in driving a room neck off of the seventh south entry in appellant’s mine. The evidence tends to show that there were no props or cross-bars in said room neck, and that for four or five days prior thereto the roof of said room neck was in a dangerous condition, due to the presence there of loose rock. Appellee testified that he was unable to read or write and that he procured his fellow miners, Zimontis and Bagutis, to fill out slips demanding nine foot bars for his working place upon each of the five days immediately preceding the day of the accident, and that he then deposited such slips in the box provided by appellant for that purpose, but that no props as demanded were delivered at his working place by appellant. Zimontis testified that he filled out slips at the request of and as directed by appellee upon two or three days immediately preceding the accident and that such slips were deposited in the box; that he thought appellee had requested him to order ten foot props and seven foot cross-bars, but could not remember positively, because he frequently filled out slips for other persons who could neither read nor write. Bagutis testified that he was unable to write and had written no orders for appellee, but that he had seen Zimontis write an order on one occasion four or five days preceding the accident, and had seen such order deposited in the box by appellee. A brother of appellee testified that he was working with appellee as his buddy at the time of the accident and saw Zimontis write orders for timbers at the request of appellee upon three several days within five or six days preceding the accident and saw such orders deposited in the box.

In contradiction of this evidence introduced on behalf of appellee, appellant offered Exhibits 1, 2 and 3, designated as “timber sheets” of the mine for November 13, 12 and 14, respectively, purporting to be correct transcripts of all the timber tickets for said days found in the box. These timber sheets contain no orders by appellee for timbers upon the several days indicated. Upon this evidence we are not prepared to say that the finding of the jury that appellee ordered timbers by depositing slips in the box as claimed by him is against the manifest weight of the evidence. In order to reach this conclusion it would be necessary to wholly disregard the evidence of three witnesses who testified positively that order slips for timbers were deposited in the box by appellee. If the question was determinable upon the probabilities of the case, alone, we should be disposed to say that there was more likelihood that the record of order slips in the box made by servants of appellant in the regular course of their employment and duty was accurate, than the testimony of witnesses based upon their recollection of events some.time past, that they saw such slips placed in the box. It is possible that the slips in question may have been lost or overlooked after they were placed in the box, but it is hardly probable that such loss or oversight only occurred with regard to the order slips of appellee.

It is urged that the court erred in refusing an instruction offered by appellant which informed the jury that if the defendant or its agents never saw and never knew of the slips claimed by appellee to have been placed in the box by him they should find appellant not guilty, even though they might believe that such slips were actually deposited in the box; that in that state of the proof there would be no wilful failure on the part of appellant and, therefore, no liability.

At the instance of appellee the court instructed the jury in substance that, where a general custom or usage exists in a mine that timber orders shall be signed by the miner and placed in a box provided for that purpose by the mine operator, the signing of such order by a miner and depositing the same in such box constituted in law a demand for timbers upon the mine manager and mine operator, and that a failure to comply with such demand when so made constituted a wilful failure by the mine operator within the meaning of the statute. We think that the instruction offered by appellant was properly refused and that the instruction given at the instance of appellee correctly stated the law applicable to the case. Where a mine operator adopts an exclusive method whereby a miner is required to make his demands for necessary timbers, it must be held that a compliance by the miner with such method constitutes a demand for such timbers within the meaning of the statute, and that a failure on the part of the mine operator to comply with a demand so made constitutes a wilful failure within the meaning of the statute. To hold otherwise would result in enabling a mine operator to adopt a method in that regard whereby he might evade the responsibility and liability imposed upon him by the statute.

The eleventh instruction offered on behalf of appellant and refused by the court was sufficiently covered by the fourth, fifth and sixth instructions given at the instance of appellee and by the first and fourth instructions given at the instance of appellant.

It is lastly urged that the damages awarded to appellee are excessive. The evidence discloses that the right ankle of appellee was severely sprained; that he suffered considerable pain up to the time of the trial in October, 1907; that he was confined to his house for a month and was not able to resume work until six weeks after his injury; that at the time of his injury he was earning from $70 to $90 a month, and after he resumed work at the time of the trial he was earning from $40 to $60 a month. While the damages awarded to appellee are exceedingly liberal in amount, we do not think they are so excessive as to require us to reverse the judgment or to insist upon a remittitur therefrom.

There is no error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Clarence Shoot, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, Appellant.
    1. Common carriers—when liable for delays in transportation. In the absence of a special contract on the part of the carrier to deliver within a specified time, mere delay in transportation does not create a liability, but when the delay is beyond the time usually required to transport the shipment, the burden is cast upon the carrier to explain such delay and that it did not result from negligence.
    2. Common carriers—burden to show knowledge by shipper of restrictive conditions of contract signed by him. The burden is upon the carrier to show knowledge of and assent by the shipper to restrictive provisions contained in the contract signed by him and the fact that the shipper in making and presenting his claim for damages to the carrier complied with the provisions of such contract in that respect, is not conclusive evidence of his knowledge of and assent to the terms of such contract when he signed the same.
    Trespass on the case. Appeal from the Circuit Court of Coles county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald, and Andrews & . Vause, of counsel.
    A. C. Anderson, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit originally instituted by appellee’s intestate, T. T. Shoot, against appellant to recover damages alleged to have accrued by reason of the failure of appellant to carry and deliver thirty-five head of cattle within a reasonable time after the shipment of said cattle from Charleston to Chicago. A judgment recovered by plaintiff on the first trial was reversed upon appeal to this court and the cause remanded for another trial. C., C., C. & St. L. Ry. Co. v. Shoot, 130 Ill. App. 139. Thereafter the plaintiff died and upon suggestion of his death, his administrator, Clarence Shoot, was substituted as party plaintiff. Upon the next trial there was a verdict and judgment against defendant for $210.82, from which judgment this further appeal is prosecuted.

The evidence tends to show that on Tuesday January 19, 1904, in pursuance of a previous arrangement entered into between Shoot and the local agent of appellant at Charleston, Shoot drove his cattle to the local yards at Charleston for shipment to Chicago upon a freight train of appellant, scheduled to leave Charleston at 1:15 p. m.; that the usual shipping route for live stock from Charleston to Chicago was by way of Mattoon, from which latter place to Chicago, the Illinois Central R. R. Co. acted as the connecting carrier of appellant; that the freight train of appellant did not arrive at Charleston until 11:30 p. m., and that in consequence of the delay in leaving Charleston and the subsequent delay in carrying the cattle from Mattoon to Chicago the cattle did not arrive at their destination in Chicago until about 12 o’clock noon on Thursday, January 21st. The time consumed in transporting the cattle from Charleston to Chicago was so greatly in excess of the time ordinarily required for like shipments that the burden was cast upon appellant to show that the delay was without its fault and, therefore, not unreasonable.

In. the absence of a special contract on the part of the carrier to deliver within a specified time, mere delay in transportation does not create a liability, but when the delay is beyond the time usually required to transport the shipment, the burden is cast upon the carrier to explain such delay and that it did not result from negligence. St. L. N. B. T. Ry. Co. v. Tassey, 122 III. App. 339; Adams Ex. Co. v. Bratton, 106 Ill. App. 563; W. St. L. & P. Ry. Co. v. McCasland, 11 Ill. App. 491.

The obvious reason for this trial is that the facts relating to the situation and the circumstances attending the delay are peculiarly within the knowledge of the carrier and not readily ascertainable by the shipper.

As to the cause of the delay in transporting the cattle from Mattoon to Chicago appellant offered no explanation or excuse whatever. In an effort to explain the delay in the arrival of its freight train at Charleston appellant offered some evidence to the effect that one of its engines, which was hauling a passenger train, gave out en route because of leaky flues; that the freight train in question was side-tracked, the engine detached therefrom and attached to the passenger train, which was then hauled to its destination; that thereafter, the freight engine was re-attached to the freight train and the run of that train was then resumed. The evidence so offered by appellant consisted entirely of the conclusion of witnesses that the failure of the passenger engine could not be foreseen or anticipated, and that no engine, other than the freight engine, was available for the purpose of hauling the passenger train. No fact was stated which tended to show that appellant had exercised ordinary care in the inspection and operation of its passenger engine or that it was not guilty of negligence in the premises, and no offer of such proof was made by appellant. There is no competent evidence in the record in support of appellant’s contention that the delay in the arrival of the freight train at Charleston was not due to its negligence.

Previous to the shipment of the cattle by him Shoot signed what is known as a limited liability live-stock contract, which provided among other things that appellant should not be liable for any loss or damage on account of delay in shipment of the cattle beyond the actual expense of feeding and caring for them during the delay. The burden was upon appellant to show that Shoot had knowledge of and assented to the restrictive provisions of the contract signed by him. C., C., C. & St. L. Ry. Co. v. Shoot, supra. The evidence bearing upon this question of fact was conflicting and we are not prepared to say that the verdict of the jury upon the issue was against a clear preponderance of such evidence. The fact that Shoot, in making and presenting his claim for damages, complied with the provisions of the contract in that respect is not conclusive evidence of his knowledge of and assent to the terms of such contract when he signed the same.

It is urged that the court, over the objection of appellant, improperly permitted Shoot to testify that another freight train passed through Charleston bound for Mattoon while he was waiting for the local freight train which was to carry his stock. It is a sufficient answer to this contention to say that the evidence was admitted upon the direct examination of the witness without objection, and that counsel for appellant cross-examined the witness with reference thereto at length without offering any suggestion as to the impropriety of such line of examination.

Shoot paid a charge of $49.75 for feeding and caring for the cattle in the stock yards at Chicago, and appellee introduced evidence tending. to show that such charge was reasonable. Manifestly, the cattle could not have been kept there without incurring some expense in that respect and there was no error in admitting evidence of such payment by Shoot and that the charge made therefor was reasonable.

As appellant neither introduced nor offered any competent evidence tending to show that the delay in the transportation of the cattle was not due to its negligence or the negligence of its connecting carrier, the court did not err in modifying and giving the first and second instructions tendered by appellee. The only issue of fact remaining in the case other than the amount of damages sustained by him, was whether or not Shoot had knowledge of and assented to the terms of the shipping contract.

We perceive no substantial error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Isaac Kuhn, Appellee, v. Samuel Eppstein et al., Appellants.
    Specific performance—relief accorded where property sought to be obtained pursuant to contract has been destroyed pendente lite. In a proceeding to enforce specific performance of a contract for the sale and conveyance of improved property if the improvements upon such property have been destroyed pendente lite, the difference between the market value of the land immediately before the destruction of such improvements and the like value immediately thereafter should be ascertained and a corresponding abatement made in the purchase price provided for in the contract.
    Bill in equity. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed November 17, 1908.
    William E. O’Neill and A. D. Mulliken, for appellants.
    Ray & Dobbins, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an original and supplemental bill in equity filed by appellee against appellant to enforce specific performance of the following contract:

“Champaign, Illinois, June 7, 1904.

“I herewith acknowledge receipt of five hundred dollars as part payment on my building, 41 Main Street, which I sell and convey to Isaac Kuhn for seventy-five hundred dollars; and I hereby agree to deliver to Isaac Kuhn, Champaign, Illinois, on or before July 1, a clear title and deed, free of any and all encumbrances whatsoever, taxes paid by me to date of delivery of abstract, on payment of balance by said Isaac Kuhn of seven thousand dollars.

Samuel EHPSTEiisr.”

At the date of the contract Samuel Eppstein was the equitable owner of the premises involved, the legal title to which was in his son, William D., and said premises were then occupied by one McDonnell as a tenant of Samuel Eppstein. Prior to July 1, 1904, William D. Eppstein executed a deed conveying said premises to appellee and the deed was sent to a bank in Champaign with instructions to deliver the same to appellee, upon the payment by him of $7,000, the balance of the purchase price. On July 1, 1904, appellee tendered to the bank the sum of $7,000 and then demanded a delivery to him of the deed and possession of the premises. The officers of the bank having no authority with reference to the delivery of the possession of the premises then occupied by McDonnell, refused the demand of appellee and he thereafter filed his bill for a specific performance of the contract, and for an abatement of the purchase price on account of damages claimed to have been sustained by reason of the failure of Samuel Eppstein to perform the contract. McDonnell remained in possession of the premises until December 22, 1904, when the building thereon was destroyed by fire, whereupon he vacated the same and claimed no further right or interest therein. Appellee then filed his supplemental bill wherein he alleged the destruction of the building by fire, and prayed that an abatement be made from the contract price of the amount of deterioration in the value of the premises resulting from the fire. The right of appellee to the relief prayed was sustained by the Supreme Court in an opinion reported in 219 Ill. 154. The cause was then heard" in the Circuit Court to determine the amount of damages to which appellee was entitled for the non-performance of the contract and the abatement to be made from the contract price by reason of the deterioration in the market value of the premises resulting from the fire. Upon such hearing a decree was entered, from which decree, appellants here prosecuted an appeal to the Supreme Court. Upon that appeal the decree of the Circuit Court was reversed and the cause remanded “with directions to the Circuit Court to hear further testimony of the parties, or either of them, as to the difference in the value of the premises, if any, resulting from the encumbrance by virtue of the lease to McDonnell and the deterioration in the market value caused by the fire,” and it was there further said by the court: “If the proof shows that the market value of the premises has been diminished by one or both of these causes, the amount of such diminution is to be deducted from the $7,000 and a conveyance ordered made to appellee upon payment of the balance.” Eppstein v. Kuhn, 225 Ill. 115. Upon the remandment of said cause to the Circuit Court the same was referred to a special master to take and report the proofs together with his findings thereon, and thereafter the said special master filed his report wherein he found:

“First. That while the evidence shows that the probable market value of the premises at the time of the sale to complainant Kuhn was less than if said premises had been free and clear of said lease thereon to McDonnell, still the evidence fails to show any definite amount, so that a finding of nominal damages is all that can he made on said account.

“Second. That the evidence shows that the market value of the premises in question has been damaged or deteriorated on account of the fire in question, which occurred on the 22nd day of December, 1904, to the amount of $3,918.”

Objections were filed both by the appellee and the appellants to said report of the master, which objections were by him overruled, and upon said objections standing as exceptions to said report, the cause was heard by the chancellor who overruled the exceptions and entered a decree finding that the market value of the premises had been damaged in the amount of $3,918, and that said sum should be deducted from the balance of the contract price of $7,000, leaving a balance of $3,082 due the appellants. The decree further directed that upon the payment of said sum of $3,082 by appellee to appellants, or to the clerk of the court for said appellants, that the bank deliver to appellee the deed for the premises in controversy; that upon the failure or refusal of the bank so to do, the special master execute the decree by conveying the said premises to said appellee.

It is insisted on behalf of appellants that the decree is predicated upon the admission and consideration by the chancellor of incompetent and improper evidence as to the damage resulting from the destruction by fire of the building upon the premises; that the destruction of the building by fire resulted in a permanent injury to the premises and that in such case the true measure of damages is the difference between the market value of the land immediately before the fire occurred and the like value immediately after the fire.

The evidence discloses that the building upon the premises was not merely damaged or rendered less capable of use for the purpose for which it was intended and used, but was practically wholly destroyed by fire. In such case the injury to the premises may

properly be held to be permanent in character and the measure of damages as contended for by appellants, should be applied. The case of Fitz Simons v. Braun, 199 Ill. 390, relied upon by appellee as announcing a different rule, is to be distinguished from the case at bar. The Fitz Simons case was an action to recover damages for an injury to a building caused by the use of dynamite in excavating a tunnel, where the evidence tended to show that the injury to the building was of such a character that it could be precisely remedied by repairs, and where no interest or right in the land apart from the building was involved, and it was held that the cost of repairing the building and restoring it to its proper condition was the true measure of the damages.

In Lombard v. Chicago Sinai Congregation, 64 Ill. 477, Lombard filed a bill to enforce the specific performance of a contract to convey to him certain premises including a church edifice, and before the contract was executed the building was destroyed by fire. It was held that Lombard was entitled to maintain his bill and to obtain so much of the property agreed to be sold as he could get and compensation to be deducted from the purchase money for the portion of the property destroyed, pending the option of the vendors. The compensation here mentioned we take to mean the amount required to make the vendee whole; that is, to give to him the equivalent of what he lost by the failure of the vendor to convey the premises contracted to be conveyed. And where, as in the case at bar, the premises contracted to be conveyed are permanently injured or are impossible of restoration, the compensation to be awarded to the complainant vendee is the difference between the market value of the property in its condition immediately before the injury and the like value immediately after the injury.

Appellants assume a somewhat anomalous position in this case. Notwithstanding their contention that evidence as to the cost of the restoration of the building upon the premises, or rather the cost of the construction of a new building similar in design to the one destroyed by fire, was improperly admitted and considered by the court, the record discloses that the only evidence introduced on behalf of appellants except the testimony of the witness Hefferman, was evidence of that character. Charles M. Ford and George S. Meades, two building contractors, called as witnesses on behalf of appellants, testified that they would be willing to put the building in its former condition for $2,100 and $2,140 respectively. Hefferman, the other witness called on behalf of appellants, did not assume to state his opinion as to the value of the premises before the fire, but merely testified that the property in its then condition was worth between $6,000 and $6,500 and that he would then give for it $6,500 in cash. The witness testified in February, 1907, or thereafter, and the valuations fixed by him were as of the date when he testified. It is obvious, therefore, that his testimony did not shed any light upon the real question at issue,, which was the value of the property at the date of the contract, July 1, 1904. That appellants have shifted their position with reference to the competency of evidence tending to show the cost of replacing the building upon the premises, as a proper element to be considered in determining the amount of damages to be awarded appellee, is apparent also from the fact that they interposed no objection to evidence of that character given by the witnesses Charles C. Glenn, J. H. Vredenburg, Frank H. Jahr and B. F. Miller, called upon behalf of appellee.

Appellee, however, offered competent evidence to determine the amount of damages under the correct rule. The uncontradicted evidence tends to show that the lot without the building was worth on July 1, 1904, from $3,000 to $3,500. F. H. Jahr testified that the improvements on the lot were worth $5,000 prior to the fire. Seeley Brown testified that the building without regard to the lot was worth probably from $3,500 to $4,000 at the time of the fire. Charles J. Mulliken testified that the building without reference to the lot was worth about $4,000 at the time of the fire, and that the building and lot free and clear of encumbrances was worth about $7,000 on July 1, 1904. Robert C. Wagner testified that the property on July 1,1904, prior to the fire was worth about $7,000. E. A. Gardner testified that the building was worth about $4,000 just prior to the fire. John B. Weeks testified that the building was worth about $5,000 just prior to the fire. J. F. Hessel testified that the building was worth at least $4,900 at the time of the fire. H. T. Sperry testified that the value of the building prior to the fire was about $4,500. There is ample competent evidence in the case to determine the amount of damages which appellee is entitled to recover measuring the same by the true rule, and we are of opinion that the finding of the master approved by the chancellor, fixing the amount of such damages at $3,918, is approximately correct and .should be sustained. The evidence tends to show that there was a marked advance in the market value of business property in the city of Champaign following July 1, 1904, and in view of the fact that much of the evidence as to the value of the building prior to the fire related to the 22nd of December, 1904, when the fire occurred, it is probable that such advance in the market value of property following July 1, 1904, influenced the witnesses to fix the value of the building immediately before the fire at a greater amount than the building was actually worth on July 1, 1904.

Appellee has assigned cross errors on the finding of the master approved by the chancellor that the evidence fails to show any definite amount of damage sustained by appellee by reason of the fact that the premises involved were subject to an encumbrance thereon of a lease to McDonnell, and that appellee was entitled to no more than nominal damages on that account, and also upon the finding that appellee was only entitled to $3,918 as damages for deterioration in the market value of the premises caused by the fire. Appellee insists that the evidence in the record is ample to sustain a finding that damages amounting to at least $500 were sustained by him because of the leasehold encumbrance. Aside from the testimony of appellee that he gave at least $1,000 or $1,200 more for the property than he would have given if there had not been a lease on it, there is no evidence in the record to sustain the claim of appellee for damages upon that account. Such testimony was wholly insufficient to justify a finding in favor of appellee of any depreciation in the market value of the premises occasioned by the leasehold encumbrance. Appellee was only entitled to recover the damages to the market value of the premises occasioned by said encumbrance, and any personal considerations which may have moved him to pay more for the property without such encumbrance manifestly constituted no proper basis upon which to determine the depreciation, if any, in the market value of the premises occasioned by such encumbrance.

Upon a consideration of the whole record we are not persuaded that the decree is erroneous and it will, therefore, be affirmed.

Affirmed.


author: Me. Justice Baume

text:
    Abraham Lunger, Appellee, v. City of Chrisman, Appellant.
    1. Drainage—when obligation to repair arises. Having voluntarily assumed to construct a drain, a district, by virtue thereof, impliedly assumes the obligation to keep such drain in repair.
    2. Verdict—when not disturbed as against the evidence. A verdict not clearly against the weight of the evidence will not be set aside on review.
    Action on the case. Appeal from the Circuit Court of Edgar county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Dyas & Dyas, for appellant.
    W. H. Clinton, for appellee.
   Me. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for wrongfully causing the natural flow of surface water over and across appellee’s premises to become obstructed, whereby said surface water was caused to back up and stand upon appellee’s premises, thereby injuring and destroying his garden and damaging his well and other property. A trial by jury resulted in a verdict and judgment against appellant for $200. The only ground urged for a reversal of the judgment is, that the evidence does not sustain the charge that the injuries complained of resulted from the negligent and wrongful acts of appellant.

Appellee is the owner of and resides upon three adjacent lots, located in the southwest .part of the city of Chrisman. The right of way of the C., H. & D. Ry. Co. adjoins appellee’s premises on the south, and the right of way of the C., C., C. & St. L. Ry. Co. is located about 400 feet west of appellee’s premises. The natural flow of the surface water in that locality is toward the north and east. Some time prior to the injuries complained of, appellant constructed a 15-inch tile drain from the right of way of the C., H. & D. Ry. Co. northeasterly through the premises of appellee, thence east in an alley through the middle of the block east of appellee’s premises, thence north on Illinois street a distance of a block and a half, thence east and north to its outlet. The evidence tends to show that appellant permitted this tile drain to become partially choked up and obstructed by mud, roots of trees and debris. Through the middle of the block, situated east and northeast of appellee’s premises, an alley is laid out, which the evidence tends to show was graded by appellant to a height of several inches above the natural level of the ground in that locality, without providing any outlet for the surface water, and that this elevation in the grade of the alley prevented the surface water from escaping from appellee’s premises to the east and north in the course of its .natural flow.

While the obligation of the appellant to construct drains was voluntarily assumed, yet, when it constructed such drain for the benefit of the public, it then became the duty of appellant to see that said drain was kept in repair. City of Chicago v. Seben, 165 Ill. 371. And while a municipal corporation may regulate and establish the grade of its streets and alleys it may not do so in such manner as to obstruct the natural flow of surface water and thereby cast it upon the property of a citizen, to his injury, without being liable to respond in damages therefor. City of Dixon v. Baker, 65 Ill. 518; Elser v. Village of Cross Point, 223 Ill. 230.

The evidence in the record fully sustains the charges of negligence against appellant in the respects mentioned, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Mary Reavely, Appellee, v. Clara Harris, Appellant.
    1. Evidence—when not competent to corroborate witness. A witness who has made contradictory statements may rarely he supported by the introduction oí evidence that at other times and places he has made consistent statements.
    2. Evidence—when objection to lack of foundation for telephone conversations comes too late. The laying of the foundation for the introduction of telephone conversations is waived by a failure to object thereto in the trial court and by the complaining party having introduced like conversations without laying a foundation therefor.
    3. Witnesses—when may he permittéd to testify notwithstanding they have remained in the court room during the-trial contrary to order of court. It is within the discretion of the court to permit such a witness to testify.
    4. Witnesses-—when attorney justified in testifying. An attorney is justified in taking the stand in an emergency to prevent a possible miscarriage of justice and to meet a false aspersion cast upon his professional character.
    5. Instructions—-when action of court in refusing waived. The action of the court in refusing a peremptory instruction is waived by the defendant thereafter introducing evidence upon his own behalf.
    6. Pleading—when declaration in action for alienation of affections sufficiently avers marriage. Held, that the allegations of the declaration in this case sufficiently averred the existence of the marriage relation between the plaintiff and her husband whose affections it was alleged had been alienated; likewise that such declaration sufficiently averred that prior to the acts of the defendant complained of plaintiff had the affections of her husband.
    7. Pleading—when declaration charging alienation of affections sufficient. In an action for alienation of affections the pleader is not required specifically to aver the means used by the defendant to effect the wrongful alienation but an averment of the ultimate fact is sufficient.
    Action in case. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed November 17, 1908.
    John C. Snigg, John Gr. Fbiedmeyer and C. F. Mortimer, for appellant.
    S. H. Cummins and Stevens & Stevens, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The defendant, Clara Harris, prosecutes this appeal to reverse a judgment against her for $5,000, rendered upon a verdict for that amount in an action by the plaintiff, Mary Reavely, to recover damages for criminal conversation and for alienating the affections of her husband, John S. Reavely. It is urged that the trial court erred in the following particulars: First, in refusing to admit competent evidence offered on behalf of defendant; second, in admitting incompetent evidence offered on behalf of plaintiff; third, in refusing to give the peremptory instruction offered by defendant at the close of plaintiff’s evidence; fourth, in ruling upon the instructions, and, fifth, in overruling the motion for a new trial upon the ground that the verdict was not supported by the evidence.

There was evidence tending to show that the witness, Bose Link, called on behalf of defendant, had made contradictory statements relative to certain transactions involved in the case, and defendant for the purpose, as it is claimed, of corroborating said witness, sought to show that the witness had upon a prior occasion made statements consistent with her testimony upon the trial. Evidence of this character and for the purpose indicated is rarely admissible (Chicago City Ry. Co. v. Matthieson, 212 Ill. 292), but the record discloses that the purpose was not made known to the court, even after inquiry, and it did not appear what the alleged consistent statements were or when they were made. There was no error in sustaining plaintiff’s objection to the evidence as offered.

For the purpose of contradicting the witness Bose Link, as to the matter of a conversation between her and one of the attorneys for the plaintiff, the latter deemed it necessary to take the stand and testify to his version of the conversation. The court had ordered that all of the witnesses for the respective parties be excluded from the court room until called for examination, and it was objected that as the said attorney had been present during the trial he should not be permitted to testify. The enforcement of the rule was within the discretion of the trial court, and the exercise of that discretion in such case is not open to review. Notwithstanding his relation as attorney in the case, we think, the witness, in view of the emergency and in order to prevent a possible miscarriage of justice and to meet a false aspersion cast upon Ms professional character, was justified in testifying in the case.

It is argued that the court erred in admitting in evidence conversations over the telephone, without requiring sufficient foundation to be laid as to the identity of the parties involved. Evidence of this character was introduced indiscriminately by both parties without any objection by either, and the competency of such evidence cannot be challenged for the first time in this court. For the same reason defendant is precluded from raising any question as to the competency of the evidence of plaintiff and her daughter detailing the substance of conversations between plaintiff and her husband.

Defendant, after her request that a peremptory instruction be given at the close of plaintiff’s evidence was denied, introduced evidence in support of her defense, and did not renew her request for a peremptory instruction at the close of all the evidence.

In this state of the record this court is not called upon to consider and determine the propriety of the action of the trial court in refusing the peremptory instruction offered at the close of plaintiff’s evidence. P., C., C. & St. L. Ry. Co. v. Hewitt, 202 Ill. 28; Union Trac. Co. v. O’Donnell, 211 Ill. 349; Streator Ind. Tel. Co. v. Cont. Tel. Con. Co., 217 Ill. 577.

It is insisted that the first, second, third and seventh instructions given to the jury at the instance of plaintiff are erroneous because they refer to the second count of the declaration, which it is contended does not contain the necessary allegations that plaintiff was married to John S. Reavely and had the affections of her said husband, and does not set out the particular acts and conduct employed by defendant to influence the alienation of the affections of plaintiff’s husband. The allegations of the second count of the declaration in the respects mentioned, are as follows:

“For that, whereas, the defendant contriving and wickedly intending to injure the plaintiff, and to deprive her of the society and assistance of John S. Reavely, the husband of the plaintiff, on to-wit, the 1st day of August, A. D. 1906, and on divers other days between that time and the commencement of this suit, in the county of Sangamon and state of Illinois, did wilfully and maliciously destroy and alienate from the plaintiff the affections then and there had by the said John S. Reavely, then and there the husband of the said Mary Reavely, for' the said Mary Reavely, the said Mary Reavely in no wise consenting thereto, by means whereof the plaintiff has from thence hitherto wholly lost and been deprived of the society, affections, assistance and comfort of the said John S. Reavely, her said husband, in her domestic affairs, which the plaintiff during all of said time ought to have had, to the damage of the plaintiff,” etc.

These allegations of the declaration sufficiently aver the existence of the marriage relation between plaintiff and John S. Reavely, and that plaintiff had the affections of her husband. The rule of pleading applicable in such cases seems to be that the pleader need not specifically aver the means used by the defendant to effect the wrongful alienation of the affections of the plaintiff’s husband or wife, but that an averment of the ultimate fact is sufficient. Williams v. Williams, 20 Col. 51; Wales v. Miner, 89 Ind. 118. To aver the specific acts, conduct and means employed by the defendant to effect the ultimate purpose, would be to plead the evidence in the case. Defendant, however, is in no position to criticise the declaration or the instructions in the respects mentioned because the first instruction given at her request authorized a verdict for the plaintiff upon proof of the allegations of the declaration.

It is next urged that the court erred in improperly modifying certain instructions asked on behalf of defendant. The modifications in the main consisted in striking out of the instructions as offered the requirement that plaintiff, in order to recover must show by a preponderance of the evidence that the defendant by her wilful and malicious acts and conduct caused the wrong complained of, and inserting in lieu thereof the requirement that plaintiff, in order to recover, must show by a preponderance of the evidence that the defendant alienated the affections of plaintiff’s husband in manner and form as charged in the second count of the declaration. The insistence, that such modification of the instructions eliminated the requirement that the conduct of the defendant in that regard must have been wilful and malicious, conceding that to be necessary is without merit, because, as we have heretofore shown, the second count of the declaration contains the express averment that defendant did wilfully and maliciously alienate from the plaintiff the affections of her husband. The modification, therefore, did not affect any substantial change in the instructions as offered.

The defendant is a confessed prostitute and keeper of a house of assignation. That she successfully practiced every art and allurement known to a woman of her character to induce the husband of plaintiff to unfaithfulness and the abandonment of plaintiff, is fully established by the evidence. The evidence also tends to show that the conduct of the defendant in that regard was persisted in wilfully and maliciously. That she had threatened to separate the plaintiff and her husband or die in the attempt.

Some evidence was introduced by defendant tending to show that plaintiff was a frequent visitor at the house of defendant for the purpose of illicit intercourse, but a careful examination of the testimony bearing upon that question, as it appears in the record, convinces us that it is a mere tissue of fabrications. Neither the motion for a new trial nor the assignment of errors challenges the amount of the verdict as being excessive.

There is no error in the record prejudicial to appellant and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Boldman & Davis, Appellees, v. Illinois Central Traction Company, Appellant.
    1. Mechanic’s liens—when subcontractor entitled to recover in excess of amount due to contractor. Held, under the particular facts of this case, that the decree in favor of the subcontractor for a greater sum than that which was shown to he due from the owner to the original contractor was justified.
    2. Mechanic’s liens—when notice of claim filed in time. Held, under the evidence in this case, that the notice of claim for lien was filed within twenty days after the completion of the subcontract relied upon as the basis of the relief sought.
    3. Master in chancery—when report of, conclusive as to findings of fact. In the absence of objections and exceptions to the report of the master, the same is conclusive as to all findings of fact.
    Mechanic’s lien. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Graham & Graham, for appellant.
    Albert Salzenstein and John L. King, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This is a petition filed by appellees against appellant and one Connors, the original contractor, to enforce a subcontractor’s lien, under the Railroad Lien Act, for work done in grading the track of appellant’s railway between stations 210 and 299 near Riverton.

The amount claimed in the petition to be due to appellees on October 1, 1904,' is $4,500. The answer of appellant admits that Connors was the original contractor and that appellees were subcontractors. Further, the answer avers that there was due and unpaid to said Connors, on October 1, 1904, the sum of $1,000, of which amount the sum of $840, less the sum of $159.15, owing by appellees to Connors on a set-off, was due to appellees, and that appellant was ready and offered to pay the same but appellees had refused to accept it. The answer of Connors is the same in substance as the answer of appellant, except that it avers a formal claim of the set-off for said sum of $159.15, and sets up in detail the several items of said claim. The cause was referred to the master to take the proofs and report the same together with his conclusions. The master found that the original and subcontracts were made as alleged in the petition; that appellees entered upon the performance of their, subcontract and ceased work thereon the latter part of 1903 or the first part of 1904, and that additional work was done by Boldman, one of the appellees, on September 30, 1904; that a notice of lien as required by statute was filed by appellees on October 19, 1904; that under the contract with Connors there was due to appellees from appellant the sum of $840, which amount was subject to a set-off in favor of Connors for $159.15; that ever since appellees ceased said work appellant and Connors had been ready and willing to pay to them the said sum of $840 after deducting therefrom the said sum of $159.15; that the equities of the cause were with appellant and Connors, and that appellees were not entitled to a lien upon the property of appellant. Objections filed by appellees to said report were overruled by the master, and thereafter the cause was heard by the chancellor upon such objections standing as exceptions to said report. Upon such hearing, the. exceptions filed by appellees as to the amount due and as to their right to a lien was sustained. The decree finds that the equities of the cause are with appellees; that' under the contract with Connors there is due appellees from, appellant the sum of $1,542 less the sum of $159.15 due from appellees to Connors, and that appellees are entitled to a lien upon the property of appellant for the sum of $1,382.85.

It is first insisted by appellant that as the answers filed by it and by Connors to the petition both allege that the amount due Connors is $1,000, and the amount due appellees is $680.85, and that as appellees are, in any event, only entitled to a lien to the extent of the amount due from appellant to Connors on October 19, 1904, the date when the notice of lien was filed for record, appellees are concluded by the allegations of the answers of the respective defendants in that respect and can claim no greater amount. Section 2 of the Lien Act under which the lien in this case is asserted, provides that the aggregate of all liens thereby authorized shall not, in any case, exceed the price agreed upon in the original contract, to be paid by the corporation to the original contractor. Hurd’s Stat. 1905, 1316.

Neither the original contract nor the subcontract provided for the payment of a sum in gross by appellant for the work and labor to be performed, but the amount thereby provided to be paid depends upon the quantity of material excavated or used in constructing the grade, and the price to be paid therefor depends upon the character of the material so excavated or used. If in performing the contract appellees, as sub-contractors, excavated or used a greater quantity of material than they were given credit for by the estimates made by appellant or Connors, they are entitled to recover therefor, notwithstanding appellant and Connors may have agreed among themselves that the latter had, under his original contract, excavated or used a less quantity of material in constructing the grade.

If the amount payable by appellant to Connors for the work performed under the original contract had been a sum in gross, there would be merit in appellant ’s contention that a subcontractor could not enforce a lien for a greater amount than was due and owing to the original contractor, and if the payments made to the original contractor were not in derogation of the rights of the subcontractor, that the subcontractor would be limited in his recovery to the amount due the original contractor at the date of filing a notice of claim or lien. In the case at bar the controversy arises upon the claim of appellees that they have excavated and used a greater quantity of material than they have been allowed credit for by either the appellant or Connors. Furthermore, there is evidence in the record tending to show that because of differences which arose during the progress of the work between appellees and Connors, it was agreed between all the parties that appellant should deal directly with appellees in paying them the amount due under their contract.

It is next claimed by appellant that the notice of claim or lien was not filed by appellees within twenty days after the completion of their subcontract, and that they are, therefore, barred from asserting and enforcing a lien. Both the original and subcontracts provided that the work should be completed by November 30, 1903. The evidence tends to show that the work was practically completed in January, 1904, and that almost continuously thereafter appellees attempted to arrive at a settlement with appellant for the work and labor performed; that appellees claimed that they had performed much more work and labor than appellant was willing to concede, and that appellant finally made a claim that appellees had not completed the work according to contract, in that there were some fence fixing and brush burning to be done, and that on September 30, 1904, appellee, Boldman, performed such work. It is conceded by appellant that additional work was done on the day named, and we think it clearly appears that such additional work was done to meet, in part at least, a complaint by appellant that the work had not been performed according to contract.

The finding by the master that additional work was done by one of the appellees on September 30, 1904, manifestly has reference to the doing of such work under the contract, and as appellant filed no objection or exception to the finding of the master in that regard, it is precluded from raising the question in this court. In the absence of objections and exceptions thereto the report of the master must be held conclusive as to all findings of fact. Matthews v.Whitethorn, 220 Ill. 36. According to the estimates furnished by appellant to appellees the work performed by the latter was 56,281 yards of embankment, while the amount claimed by appellee is 73,854 yards, making a difference in favor of appellees of 17,573 yards. By the decree the court allowed appellees for 59,671 yards or 3,390 yards in excess of the quantity as estimated by appellant. The amount of yardage claimed by appellees is predicated solely upon the evidence of Harvey, a civil engineer, who made measurements in July, 1906, nearly two years after the work was completed, and it is manifest that the finding of the chancellor was not influenced to any considerable extent by the evidence of such witness as to the amount of work performed by appellees. Counsel for appellant express their ignorance of the theory adopted by the chancellor in arriving at the amount fixed in the decree, and counsel for appellees have not considered it necessary to enlighten this court upon that question.

A careful consideration of the evidence in the record however, leads us to the conclusion that the chancellor substantially adopted the estimate of appellant as to the quantity of material in the grade and then added thereto a certain percentage for shrinkage, which it is admitted by all of the witnesses is properly allowable in such cases, and which does not appear to have been taken into account in the estimate made by appellant.

Assuming that the chancellor predicated his finding as to the amount of work performed by appellees upon the theory here suggested we are opinion that it approximates very nearly the actual amount of work performed by appellees.

We are not persuaded that the decree in this case is palpably erroneous and it will, therefore, be affirmed.

Affirmed.


text:
    Truman L. Crowder, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Master and servant—duty to furnish safe place to work. A master is only bound to use reasonable care to furnish his servants with a reasonably safe place to work.
    2. Master and servant—duty to furnish safe place to work. Held, that the platform in question in this case claimed to have caused the injury of the servant, was not so defective as to establish a failure by the master to exercise reasonable care to provide such servant with a reasonably safe place to work.
    3. Verdict—when set aside as against the evidence. Where it is apparent to the Appellate Court upon an examination of the record that the verdict of the jury upon a material issue is not supported by the evidence and that the plaintiff has failed to adduce evidence sufficient to sustain a verdict in his favor upon such issue, it becomes the duty of such court to set aside such verdict.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed with finding of fact.
    Opinion filed November 17, 1908.
    W. H. Crow and William Mumford, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Williams & Williams and A. C. Whitson, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an action on the case by appellee, as administrator of the estate of Fred W. Genrich, against appellant, to recover damages for wrongfully causing the death of his intestate. A trial in the Circuit Court of Pike county resulted in a verdict and judgment against appellant for $5,000.

The declaration charges that appellant not regarding its duty in that behalf permitted its platform at its station at Nebo, Illinois, to remain in an unsafe condition, in that it was rough and uneven and composed of planks of uneven thickness; that the said planks had shrunk to such an extent from exposure to the weather or other causes as that said platform was lined with cracks between the said planks; that some of said planks were new and some were old and worn and were full of knots and nails projecting above the surface; that the deceased while engaged in the performance of his duties as brakeman, in the employ of appellant, was then and thereby exposed to unnecessary danger and liability, and that while alighting from a train of the appellant on the said platform, necessarily and unavoidably stumbled and fell thereon by reason of its defective condition, and rolled under the train, whereby he was killed, etc.

Of the many grounds urged by appellant for a reversal of the judgment in this case, we only deem it necessary to consider and determine the one relating to the question whether or not there is sufficient evidence in the record to support the charge of negligence alleged in the declaration. Considering the evidence in the record most favorable to appellee, it tends to show that on December 19,1906, the deceased, who was then employed as a brakeman upon a freight train operated by appellant, was riding in the locomotive cab as the train approached Nebo from the west; that as the locomotive was nearing the east end of the station platform, and running at a speed of about seven miles an hour, the deceased alighted from the lower step of the cab onto the station platform, at a point about eighteen inches from the south edge of the platform, and that as he did so the heel of his left foot slipped upon a knot in the surface of the platform,, whereby he fell under the train and received the injuries which resulted in his death; that at the time of the accident the deceased was wearing a pair of new or recently repaired hob-nailed shoes; that the station platform was about 221 feet in length and sixteen feet in width, and was constructed of pine planks fourteen to sixteen feet in length, ten inches in width and two inches in thickness, nailed to sleepers or sills of the same dimensions; that from time to time as the old planks were broken, or became so worn as to be unfit for use, they were removed and new planks inserted; that when the platform was so repaired, a new plank, by reason of its greater thickness, if inserted next to an old plank, projected from one-half to three-fourths of an inch above the surface of such old plank; that the edges of the planks as laid in the platform at the place in question did not come in close contact, but were separated a distance of one-fourth to three-fourths of an inch; that the platform at the place in question was used by the general public in going to and from appellant’s station, and was also used by appellant .in loading and unloading freight; that the plank in question was somewhat worn, and the knot upon which the deceased slipped projected about one-eighth of an inch above the surrounding surface of the plank; that the plank next east of the plank in question was comparatively new and projected from one-half to three-fourths of an inch above the edge of the old plank, and was separated from the old plank a distance of from one-half to three-fourths of an inch.

It is conclusively established by the evidence that the immediate occasion of deceased’s falling, was the slipping of the heel of his hob-nailed shoe upon the smooth surface of the slightly projecting knot in the plank of the platform as deceased alighted thereon from the step of the locomotive cab.

Appellee advances several theories in an effort to couple the space of from one-fourth to three-fourths of an inch between the planks, and the projection of the edge of the new plank above the edge of the old plank, together with the knot in the plank, as producing causes of the fall of the deceased, but such theories are purely conjectural, not supported by any substantive evidence in the record, or by any evidence tending to create a reasonable inference from which such theories can be properly or reasonably deduced. The proximate cause of the death of the deceased, so far as it related to any act of the appellant charged as negligence in the declaration, must, therefore, be held to have been the knot which appellant permitted to he and remain in the plank of the platform and to project one-eighth of an inch above the surrounding surface of such plank, as shown by the evidence.

Appellant cannot be held to he an insurer of the safety of the platform as a place where the deceased was required to work. In their brief and argument, counsel for appellee repeatedly make the statement that the duty devolving upon appellant was to construct and maintain a safe and suitable platform for the use of its servants, in the performance of their regular duties. The duty of appellant in this regard is thus too broadly stated. It has been repeatedly held that the master is only bound to use reasonable care to furnish his servants with a reasonably safe place to work. Armour v. Brazeau, 191 Ill. 117; Schillinger Bros. Co. v. Smith, 225 Ill. 74. The rule as thus stated was the measure of appellant’s duty with respect to the platform in this case. Whether or not the master has performed the duty imposed upon him by law in a given case is ordinarily a question of fact for the jury, and the finding of the jury upon such issue is not to he lightly set aside. When, however, it is apparent to this court upon an examination of the record, that the verdict of the jury upon such issue is not supported by the evidence, and that the plaintiff has failed to adduce evidence sufficient to sustain a verdict in his favor upon such issue, it becomes the duty of this court to set aside such verdict. C., C., C. & St. L. Ry. Co. v. Alfred, 123 Ill. App. 477.

It is a matter of common knowledge that wooden planks ordinarily procurable for the construction of platforms, sidewalks and the like, are not free from knots, and it would be unreasonable to hold that the presence of knots in such planks constituted a failure to exercise reasonable care to construct a reasonably safe platform or sidewalk.

It is also a matter of common knowledge that the texture of a knot in a pine plank is much harder than that of the wood immediately surrounding it, and that the ordinary use of a platform or sidewalk necessarily tends to wear down the surface of a plank free from knots, to a greater extent than that portion of the surface where a knot exists. And it would be manifestly unreasonable to hold that the slight projection of one-eighth of an inch of such knot above the surface of the plank surrounding it, convicted a party permitting such condition to exist, of a failure to exercise reasonable care to maintain a reasonably safe platform, and constituted in itself actionable negligence. The evidence in this record together with all the inferences reasonable and proper to be drawn therefrom, compels us to the conclusion that the death of the deceased was caused by an accident unmixed with any actionable negligence upon the part of appellant.

The judgment of the Circuit Court will be reversed with a finding of fact to be incorporated in the judgment of this court.

Reversed with finding of fact.

Finding of fact: We find as an ultimate fact that appellant was not guilty of any actionable negligence which contributed to the death of appellee’s intestate.


text:
    W. K. Newcomb, Appellee, v. County of Champaign, Appellant.
    1. County courts—character of jurisdiction of. County courts are not courts of general jurisdiction within the meaning of section 31 of the Counties Act.
    2. County courts—when without jurisdiction. County courts have no jurisdiction with respect to counties sued in actions of assumpsit.
    Assumpsit. Appeal from the County Court of Champaign county; the Hon. Thomas J. Roth, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    F. A. Coggeshall, for appellant; F. M. & H. I. Green, of counsel.
    Bat & Dobbins, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by W. K. Newcomb, appellee, against the county of Champaign, appellant, instituted in the County Court of Champaign county to recover for professional services in performing certain surgical operations upon Martha Smith and Henry Knell, poor persons, residents of said county. A trial by jury resulted in a verdict and judgment against appellant for $75.

Appellant has filed its motion to reverse the judgment and to remand the cause with directions to the County Court to dismiss the suit, upon the ground that the County Court had no jurisdiction of the cause of action. Section 31 of Chapter 34 entitled “Counties,” provides as follows: “All actions, local or transitory, against any county, may be commenced and prosecuted to final judgment in the Circuit Court, or any court of general jurisdiction, in the county against which the action is brought. Any action, local or transitory, in which any county shall be plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant in such action resides.”

In the County of Schuyler v. The County of Mercer, 4 Gilm. 20, the word “may” as used in this section of the statute was held to mean “must,” or “shall,” in conformity with the rule there announced that, in cases where the public interests and rights are concerned, and when the public or third persons have a claim de jure that the power should be exercised, the word may means must or shall. Brokaw v. Com’r. of Highways, 130 Ill. 482.

It is insisted by appellant in support of its motion that the County Court is not a court of general jurisdiction, within the meaning of the section of the statute in question. Prior to its amendment, that section of the statute provided that “All actions, local or transitory, against any county may be commenced and prosecuted to final judgment in the Circuit Court of the county against which the action is brought.” By the amendment, the words “Or any court of general jurisdiction,” were added after the words “Circuit Court.” Section 7 of the Act relating to County Courts, provides that such courts “shall have concurrent jurisdiction with the Circuit Courts in all that class of cases wherein justices of the peace now have or may hereafter have jurisdiction, where the amount claimed or the value of the property in controversy shall not exceed $1,000, and concurrent jurisdiction in all cases of appeals from justices of the peace and police magistrates.” Hurd’s Stat. 1905, 618.

While it has been repeatedly held that the County Court is a court of limited jurisdiction, it has also been repeatedly held that it is not a court of inferior jurisdiction. Propst v. Meadows, 13 Ill. 157; Von Kettler v. Johnson, 57 Ill. 109; Barnett v. Wolf, 70 Ill. 76; Cassell v. Joseph, 184 Ill. 378. It has also been held that every presumption will be indulged in favor of the regularity of the proceedings and in favor of the jurisdiction of county courts, and that county courts in this state are courts of general jurisdiction with respect to all matters coming within the scope of their jurisdiction as given by law. Field v. Peeples, 180 Ill. 376; Bradley v. Drone, 187 Ill. 175; Commissioners of Highways v. Drainage District, 207 Ill. 17. Whether the jurisdiction exercised by a County Court is to be designated or termed general is under the authorities cited, dependent wholly upon whether or not the jurisdiction so exercised is conferred upon that court by the legislature. It is to be observed that In every instance in which the County Court has been characterized a court of general jurisdiction, such characterization has been expressly limited to those cases in which it exercised jurisdiction under and by virtue of legislative authority. If no jurisdiction to act in a particular case is conferred upon the County Court by the legislature, the exercise of jurisdiction by such court in such case is unwarranted, and when so acting such court is not, in any sense, a court of general jurisdiction.

The case at bar is an action at law in assumpsit. Section 7 of the act relating to County Courts does not confer jurisdiction upon County Courts in all actions at law where the amount claimed or the value of the property in controversy does not exceed $1,000, but its jurisdiction in that respect is limited to “that class of cases wherein justices of the peace now have or may hereafter have jurisdiction.”

It is not pretended nor can it be successfully urged that a justice of the peace ever had or now has jurisdiction in any action local or transitory against a county. Justices of the peace having no such jurisdiction and the jurisdiction conferred by the statute upon county courts being limited to that class of cases wherein justices of the peace have jurisdiction, except as to the amount or the value of the property involved, it necessarily follows that no jurisdiction is conferred by the statute upon county courts in actions against counties, and with respect to its exercise of jurisdiction in such actions, the County Court cannot be said to be a court of general jurisdiction. In Dandurand v. County of Kankakee, 196 Ill. 537, where a suit was brought by the county of Kankakee, against one Dandurand, for board, lodging, etc., and the defendant filed a plea to the jurisdiction of the court, averring that the County Court did not have jurisdiction of a suit brought by the county, it was held that, while section 31 of the chapter entitled “Counties,” restricts the courts in which suit against a county may be brought, said section contains no such restriction in cases of suits brought by a county, and that the county in bringing a suit may resort to any court having jurisdiction of the subject-matter in the county where the defendant resides. It is clearly inferable from the holding of the court in that case that if the suit had been against the county it would have been held that the County Court was without jurisdiction in the case.

The motion filed by appellant will be allowed, and the judgment of the County Court will be reversed and the cause remanded with directions to dismiss the suit for want of jurisdiction.

Reversed and remanded with directions.