text:
    City of Chicago v. Samuel Cohen, Administrator.
    Gen. No. 13,664.
    1. Evidence—competency of coroner’s verdict. A coroner’s verdict is competent as a whole if it contains statements beyond the province of such a jury. The party objecting thereto should ask instructions of the court safeguarding his rights to the extent of any portions which were outside of the province of such verdict.
    2. Contbibutoby negligence—what does not constitute, in use of sidewalk. It is not contributory negligence, as a matter of law, to run upon a sidewalk.
    3. Instructions—what error will not reverse. An instruction in a sidewalk injury suit which is improper in containing a clause as follows: "And if such condition existed that the city of Chicago, by its officers, knew of such condition,” is not ground for reversal, where the question of constructive notice is sufficiently and properly covered by other instructions given.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    John R. Caverly, for appellant; Frank D. Ayers, of counsel.
    W. D. Elmer, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Appellee, as administrator of the estate of Bertha Krehs, deceased, plaintiff in the trial court, sued appellant, claiming that it was guilty of negligence, which caused the death. of his intestate. Ko question is raised by the defendant’s counsel in respect to the pleadings. Bertha Krehs was, at the time of her death, which occurred two days after the accident, eight years and seven months of age. The place where the accident occurred was on the west sidewalk of Forty-third avenue, a north and south street, and about 100 feet north of Hirsch street, an east and west street, in the city of Chicago. The place of the accident was opposite a vacant lot. There was a board sidewalk in front of the vacant lot, laid on stringers running north and south, and about six inches high. North and south of the board walk, the sidewalk was made of cinders and gravel. Bertha Krebs lived with her mother in the fourth house north of the wooden sidewalk.

The evidence for the plaintiff tends to prove that most of the stringers of the walk were rotten or decayed and the boards loose and in some places missing, and that the walk had been in that condition for two or more years at the place of the accident, and that May 22, 1904, about six o’clock in the afternoon, some children ran through the gate of the house on the lot next south of the plank walk onto the sidewalk, and south toward Hirsch street, and called to Bertha, who was then on the cement sidewalk about three lots north from the vacant lot. Bertha started south toward the children, walking fast, or running, or in a slow trot, as the witnesses variously testify, and about four or five feet south of the north end of the board walk, she stepped on the end of one of the loose planks in the sidewalk, which sank down, and she fell; that she rose up and walked two or three steps, and, being unable to walk farther, she again fell, when she was assisted into the house next north of the vacant lot, where she remained about ten minutes, when she was taken to her home, put in bed and a physician called, who diagnosed the case as internal hemorrhage, which in his opinion was caused by shock or some external violence. She died May 24th, the second day after the accident.

The evidence tends to prove that she was a bright, healthy child, and before the accident had never had any illness requiring the attendance of a physician, and that the accident caused her death.

The only evidence introduced by the defendant was the evidence of the coroner and three physicians. The coroner testified that Ida Netzke, witness for the plaintiff, testified at the coroner’s inquest that the deceased was running when the accident happened, which was quite unnecessary, as the witness admitted, on cross-examination on the trial, that she had so testified, and counsel for defendant said her answer in that respect was satisfactory. The testimony of the expert witnesses called by the defendant was directed to the question whether the accident could have caused internal hemorrhage.

The jury found defendant guilty and assessed plaintiff’s damages at $2,000, and judgment was rendered on the verdict.

Counsel for defendant contend that the court erred in admitting in evidence the verdict of the coroner’s jury. The verdict, omitting the formal part of it, is as follows:

“That the said Bertha Krebs, now lying dead at No. 755 North 43rd avenue, in said city of Chicago, county of Cook and State of Illinois, came to her death on the 24th day of May, A. D. 1904, at the house known as No. 755 North 43rd avenue, from internal hemorrhage and rupture of the liver, due to external violence caused by falling, while running on a defective sidewalk in front of the vacant lot known as No. 747 North 43rd avenue, May 22, A. D. 1904.”

It is well settled in this State that the coroner’s inquisition is competent evidence. United States Life Ins. Co. v. Vocke, 129 Ill., 557; Pyle v. Pyle, 158 ib., 289, 300.

Counsel objects specially to that part of the inquisition finding that Bertha Krebs died from a rupture of the liver, and that the sidewalk was defective; that this was beyond the province of the jury, and that, as there was no evidence in this case that the death was caused by rupture of the liver, the admission of the inquisition was prejudicial to the defendant. Section 14 in relation to coroners, provides: “It shall be the duty of the jurors, as sworn aforesaid, to inquire how, in what manner, and by whom or what, the said dead body came to its death, and of all other facts of and concerning the same, together with all material circumstances in anywise related to or connected with the said death, and make up and sign a verdict, and deliver the same to the coroner.”

We are not prepared to hold that it was beyond the province of the jury to find, if the evidence before them so warranted, that one cause of the death was rupture of the liver. It is not necessary, however, in this case, to decide that question. The inquisition being admissible, it was admissible as a whole, and if any part was outside the province of the jury or not competent evidence as against the defendant, the defendant might have guarded against it by requesting an instruction to the jury to disregard it, and having failed so to do, the objection cannot avail it here.

In Taylor v. Greenburg, 46 Ill. App., 511, relied on by defendant, the coroner’s jury found, among other things, as follows: “We, the jury, believe from the evidence that said switch-stand is too close to said tracks to safely allow switch-men to perform their duties.” The court held that the inquisition was admissible in evidence, hut that the part of it above quoted was beyond the province of the jury, and that it was error to refuse an instruction asked by the defendant that it was not evidence as against the defendant.

In Cox v. C. & N. W. R’y Co., 92 Ill. App., 15, one part of the inquisition was: “We further find that the aforesaid company is responsible for said deaths, on account of fast running, and the view to the track being obstructed by ears and depot.” The court held this finding to be beyond the province of the jury, and that an instruction by the" court to disregard it was proper. It frequently happens that in cases where there are several defendants, evidence is admitted which is competent against only one of them, and in such cases the holding is that defendants against whom it is not competent may guard against its effect against them by asking an appropriate instruction.

Counsel for appellant cite authorities in support of the proposition that a girl of the age of the deceased may be guilty of contributory negligence. The proposition is unquestionably sound. Counsel contend that the deceased was guilty of such negligence in running on a defective walk, with which she was familiar. Some of the witnesses testified that she was not running at all, hut walking fast, or on a slow trot, between walking and running; but even if she was running at the time of the accident, it could not be properly held, as matter of law, that she was guilty of contributory negligence. City of Chicago v. Keefe, 114 Ill., 222, cited by defendant’s counsel, does not, in the least, support their contention, but quite the contrary. The court say: “There is no limitation in the statute that the streets shall be kept in repair Tor travelers.’ They are to be kept in repair as streets, and, by necessary implication, for all the purposes to which streets may be lawfully devoted. We assume as self-evident that, with us, streets are open to the use of the entire public, as highways, without regard to what may be the lawful motives and objects of those traversing them—that those using them for recreation, for pleasure, or through mere idle curiosity, so that they do not impinge upon the rights of others to use them, are equally within the protection of the law while using them, and hence equally entitled to have them in a reasonably safe condition with those who are passing along them as travelers, or in the pursuit of their daily avocations.” And the court held that children may lawfully use the sidewalks for rolling hoops on them, in the absence of prohibition by ordinance, and on rehearing the court declined to recede from the views expressed in the opinion.

Whether plaintiff’s intestate was guilty of contributory negligence was a question of fact to be passed on by the jury, and was properly submitted to the jury by instructions 1, 9 and 11, given at defendant’s request. The jury, after hearing lengthy disquisitions of learned doctors, found that the death of plaintiff’s intestate was caused by the accident. Two stubborn facts were in evidence, viz.: that the deceased, prior to the accident, was healthy and had never been afflicted with any serious sickness, and that she died the second day after the accident, no intervening cause tending to produce her death having been shown. We think the verdict warranted by the evidence.

Instructions 2, 3, 4 and 5, given at plaintiff’s request, are complained of by defendant’s counsel.

An instruction substantially the same as instruction 2 was approved in North Chicago St. R’d Co. v. Kaspers, 186 Ill., 246. Instruction 3 informed the jury that if they believed from the evidence that the sidewalk was not reasonably safe for travel, from causes alleged in the declaration, “and if such condition existed that the city of Chicagoby its officers, knew of such conditionor if you believe from the evidence that it had been so unsafe for travel for such a period of time that the city of Chicago, by the exercise of ordinary care, would have known of its unsafe condition, if such it was, for a sufficient length of time to have repaired the same, in the exercise of ordinary care, so as to make the same reasonably safe for travel, then the defendant would be guilty of negligence,” etc. Counsel say that the italicized part of the instruction is erroneous in stating that if the city, by its officers, knew that the walk was unsafe, the city was guilty of negligence, even though it was not unsafe a sufficient length of time for the city, in the exercise of ordinary diligence, to repair it. We think the instruction obnoxious to the criticism of "counsel, but do not think the jury could have been misled by it, especially in view of the defendant’s 11th instruction, which informs the jury of the elements necessary to be found to entitle the plaintiff to recover, one of which elements is stated as follows:

“4. That the alleged defective condition of said sidewalk existed before the time of said accident, and that the city either had actual notice of such defective condition in time to have enabled it to repair the same, by the exercise of ordinary care, before the time of said accident, or that such alleged defective condition existed for so long a period prior to the time of said accident as to charge the city with constructive notice thereof—that is to say, that such condition existed for so long a period prior to the time of said accident that the city by the use of ordinary care would have discovered such condition in time to have enabled it to repair the same, by the use of ordinary care, before the time when said accident is alleged to have occurred.”

The uncontradieted evidence is, that the walk was very defective and unsafe at the time of the accident, and had been in substantially the same condition for more than two years, and the jury could not reasonably have found otherwise.

We find no error in instruction 4.

Counsel construe instruction 5 as requiring of the city greater care in respect to the sidewalk, in the case of children playing on it, than is required to maintain it in a reasonably safe condition for ordinary travel. We do not so understand the instruction. It is as follows:

“You are instructed that deceased girl might lawfully be on the sidewalk of the city of Chicago for the purpose of play, and the defendant would owe the same duty to exercise ordinary care to have such sidewalk in reasonably safe state of repair in respect to such use by the deceased that it does in respect to the use of such sidewalk by persons passing over it in going to and from their places of business and abode.”

Manifestly, the care required by the instruction in respect to the use of the walk by children playing on it, is the same that the city owes “in respect to the use of such sidewalk by persons passing over it.” It has been frequently held that instructions must be considered as a series, as one continuous charge, and so considering the instructions in this case, they state the law substantially correctly.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
    City of Chicago v. M. L. Fields.
    Gen. No. 13,675.
    1. Instructions—when, upon preponderance of evidence, erroneous. An instruction upon the subject of preponderance of evidence, as follows, is erroneous in that it assumed that the evidence sustained the plaintiff’s case:
    “If the jury find that the evidence sustaining the plaintiff’s case preponderates in his favor, although but slightly, that it is sufficient for the jury to find the issues in his favor, and to find a verdict against the defendant.”
    2. Instructions—what does not cure error. An instruction purporting to state elements which, if proved, will warrant a verdict for a party, and so informing the jury, must be accurate and if erroneous will not be cured by any other instructions.
    3. Instructions—when failure to explain references improper. It is improper to use in an instruction the phrase “the requirements of the law” without specifying in another instruction what such requirements are.
    4. Instructions—use of word, “urged” criticised. Held, that the word “urged” used in an instruction was of doubtful propriety, “alleged” being the appropriate word.
    Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed March 9, 1908.
    Jambs II. Lewis and Joky K. Oaverly, for appellant; Chas. B, Stafford, of counsel
    Adams & Froehlich, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Appellee recovered judgment against appellant in an action on the case, for injuries alleged to have been occasioned by a defective sidewalk in the city of Chicago. There is sufficient conflict in the evidence in respect to material matters to require that the instructions should he substantially accurate. The first instruction given at appellee’s request is as follows:

“If the jury find that the evidence sustaining the plaintiff’s case preponderates in his favor, although but slightly, that is sufficient for the jury to find the issues in his favor, and to find a verdict against the defendant.”

The instruction plainly assumes that the evidence sustains the plaintiff’s case. The verb to sustain, as used in the instruction, can only mean “to prove, to establish by evidence.” Webster’s dictionary. If the plaintiff’s case was established by the evidence, there was nothing for the jury to do except to find for the plaintiff. "The court does not, by the instruction, inform the jury what the plaintiff’s case is, or limit the jury to the declaration, as by the use next after the word case of the words, as stated in the declaration. Counsel for appellee, assuming that the vice of the instruction can be cured by other instructions, refers to instruction 3 given at appellant’s request, in respect to the preponderance of the evidence. But an instruction purporting to state elements which,.if proved, will warrant a verdict for a party, and so informing the jury, must be accurate, and if erroneous, cannot be cured by any other instruction. This, for the reason that the jury may have disregarded all other instructions and based their verdict solely on the erroneous instruction. “If an instruction directs a verdict for either party, or amounts to such direction, in case the jury shall find certain facts, it must, necessarily, contain all the facts which will authorize the verdict directed, * * * and the error in such an instruction is not obviated by giving conflicting instructions.” Pardridge v. Cutler, 168 Ill., 504, 512; Lake Erie & West. R. R. Co. v. Wilson, 189 ib., 89, 97-8; Ill. Iron & Metal Co. v. Weber, 196 ib., 526; Ill. Cen. R. R. Co. v. Smith, 208 ib., 608; Ill. Terra Cotta Lumber Co. v. Hanley, 214 ib., 243.

The instruction in question being the first given, was well" calculated to mislead the jury to appellant’s prejudice. Although the Supreme Court has held that it is not error to give an instruction that if the evidence preponderates in favor of the plaintiff, although but slightly, the plaintiff may recover, yet that court has never held that the refusal of such an instruction would be error, and, as we have heretofore stated in other cases, we think such an instruction is likely to impress a jury that the court favors the party at whose request it is given. We think the giving instruction 1 reversible error.

The 3rd instruction for appellee commences thus: “If the jury believe from the evidence that the corporate authorities of the city of Chicago did not exercise all reasonable care and supervision, according to the requirements of the law, as stated in the instructions herein, over that portion of the sidewalk where the injury in question is urged to have occurred, to keep it in good and safe condition,” etc. Do instruction was given stating “the requirements of the law” as to the duty of the city in the premises, so that the instruction is, in that respect, meaningless. Counsel for appellee say that the jury were advised by instruction 12, given for the defendant, what the requirements of the law are; but there were only eleven instructions given for the defendant. Defendant’s instruction 12 was refused. We do not like the word “urged” in the instruction. The word alleged would have been better. We merely call attention to this instruction with reference to a future trial. Because of the error in giving appellee’s first instruction, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    City of Chicago v. Ludwig A. D. Gathman.
    Gen. No. 13,688.
    1. Pleading—how declaration construed after discontinuance as to one defendant. A declaration is to he read as applying only to the defendants remaining after the discontinuance thereof as to one of the original defendants.
    2. Res judicata—when fellow-servant question is. The question as to who are fellow-servants, as a matter of law, is res judicata upon a second appeal, where it is presented upon substantially the same evidence as was contained in the record upon the first appeal, in which it was held that the question of fellow-servants was one of fact for the jury.
    3. Master and servant—what not within -doctrine of assumed risk. Reid, that a person working beneath a bridge did not assume the risk that the bridge at which he was employed would he raised without signal from him, where the employee, who caused such bridge to be raised without such signal, had specifically agreed not so to do.
    4. Master and servant—test as to existence of relation of. The real test by which to determine whether a person is acting as the servant of another is to ascertain whether at the time when the injury was inflicted he was subject to such person’s orders and control and was liable to be discharged by him for disobedience to orders or misconduct.
    5. Bbidges—duty of city with respect to. Where a bridge is a part of the street, a city owes the same duty in respect thereto that it does to other parts of such street. Likewise, the city having the exclusive management, control and operation of such bridge is bound to exercise ordinary care in its operation and to reasonably operate it so as to avoid injury to persons and property. This duty is a primary one, of which the city cannot divest itself so as to avoid liability for negligence in its operation and consequent injury.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Paul McWilliams, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    Statement by the Court. This is an appeal from a judgment for $5,000 rendered in a suit by appellee against appellant and James O’Connor. The declaration contains only one count, in which it is averred, in substance, as follows : The city of Chicago owned and controlled Van Burén street bridge in said city, and appointed James O’Connor bridge tender thereof. Plaintiff was employed by the said city as a machinist, and, to-wit, January 10, 1901, was by said city ordered to perform certain work and make certain measurements on and beneath said bridge; and Avhile plaintiff was performing said work beneath said bridge, and exercising reasonable care, said defendants negligently set in motion the machinery of the bridge, and by reason thereof plaintiff was caught between two heavy pieces of iron, and was greatly and permanently injured, etc.
    Each of the defendants pleaded the general issue. Subsequently the cause was discontinued, on appellee’s motion, as to O’Connor. The jury found the appellant guilty and assessed appellee’s damages at the sum of $5,000, and judgment was rendered on the verdict.
    Appellee, at the time of his injury, had been in the employ of the city for a number of years, in the bridge department, a subordinate department of the department of public works of the city. A Mr. Willman. had immediate charge of the bridge department under Patrick White, the superintendent of bridges, and hgd authority to give directions to appellee. January 10, 1901, Mr. Willman directed appellee to go to the Van Buren street bridge and take a measurement of the stroke of the arm of the heel lock, when the bridge was stationary, and then the bridge tender would raise the bridge for him to take another measurement, so as to get the full stroke of the arm. The evidence tends to prove that in order to ascertain the full stroke of the arm, it was necessary to take one measurement when the bridge was stationary and another when it was raised. Van Buren street lies east and west, and the bridge in question is across the Chicago river on the line of Van Burén street, and connects the part of the street east of the river with the part west of it, so that when it is closed it is a part of the street. The bridge is a rolling lift bridge, and is operated by machinery moved by electrical power. The machinery which operates the east part of the bridge is under the street on the east side, and that operating the west part under the street on the west side. The parts of the bridge each side of the center are operated separately by separate machinery, and each part requires a man to operate it, so that the operation of the bridge requires at least two men. There is a shanty at the southeast corner and another at the northwest corner of the bridge, in which are situated the appliances to turn on and regulate the power which moves the bridge machinery. When either part of the bridge is raised, the end next the approach to the bridge goes up. To take measurements as directed, it was necessary for appellee to' go beneath the part of the bridge which lay east of the center when the bridge was closed or stationary. James O’Connor was the bridge tender at the time of the accident, having been regularly appointed as such by the mayor of the city, with .the concurrence of the city council. The actual work of operating the bridge was done by James. O’Brien, who operated the part of it east of the center, and by James McDonald, who operated that part of it west of the center. These men were not employed or paid by the city, but were hired and paid by James O’Connor, the bridge tender. Patrick White, superintendent of bridges, testified that he “had authority, if he saw a man operating a bridge improperly, to discharge him or make him leave that work; that it made no difference who he was, if he was doing something wrong, he could discharge him immediately.” Appellee testified that after he was directed by Willman, as above stated, he went to the bridge and into the bridge house on the east side, and told O’Brien that he was sent there to take a measurement; that he would take one measurement first, and then would signal him, O’Brien, that he had taken that measurement, and for him to lift the bridge, and then he would take the other; and when through would signal him to lower the bridge, and O’Brien said “it was all right.” Appellee further testified that after the conversation above mentioned, and four or five minutes before he went beneath the bridge, he went to the west side of the bridge and talked with McDonald, and then went back to the east side and repeated to O’Brien what he had said to him before. McDonald, who operated the west side of the bridge, testified that plaintiff came to him about ten o’clock and said he wanted to take some measurements, and would want the bridge raised, and witness told him to notify the operator on the other side, and plaintiff said he would do so and give that operator the signal when he was ready, and the arrangement was that plaintiff and his helper, James Burke, Avere to notify the operator on the east side of the bridge, when they were ready to have that side raised, and that four or five minutes after plaintiff went underneath the bridge, witness was signaled from the east side to raise the bridge; that it was necessary for witness to raise his part of the bridge five feet to unlock the bridge, so as to alloAv the east half to be raised. It appears from the evidence that James J. Kennedy, a common laborer, who had been employed occasionally by McDonald and O’Brien to assist them, and paid by Avhichever of them employed him, was on the bridge at the time in question. He testified that he was in the shanty at the east end of the bridge when plaintiff was on his way below, and that O’Brien, who was shoveling snow at the time, told witness to get ready to make a lift, to go ahead and make the lift, that plaintiff wanted to make some measurements, and witness signaled to McDonald, who signaled back that he was ready, and rang the bell to clear the bridge, and started to raise his end, when the west side went up several feet, and witness turned on the current and started to raise the east end, when he heard a voice, “Stop, for God’s sake, stop,” and witness shut off the current. He also testified that before he made the lift he received no signal from below. While plaintiff was underneath the floor of the bridge, with James Burke, his helper, and engaged in making the first measurement of the arm of the heel lock, the power was turned on, the machinery set in motion and the east half of the bridge raised, without any signal from either him or Burke. The consequence was that appellee was caught and crushed between the moving arm of the heel lock and an iron column and was seriously and, as the evidence tends to prove, permanently injured.
    James II. Lewis and Johet B. Caveely, for appellant; Charles B. Stafford, of counsel.
    Charles J. Traihor, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel contend that inasmuch as it is averred in the declaration that James O’Connor was in the employ of appellant, as bridge tender, to have charge of the machinery and operation thereof, and to raise and lower the bridge, it was incumbent on appellee to prove that O’Con-nor was actually operating the bridge at the time of the accident, and was guilty of negligence. While we do not think this follows, we think the evidence is sufficient to show negligence of O’Connor. It was clearly his duty, as the regularly appointed bridge tender, to use ordinary care to so operate the bridge as not to injure appellee, the latter being in the discharge of his duty and in the exercise of care for his personal safety. O’Connor’s duty required that he should either assist in the operation of the bridge, or at least supervise its operation. It is apparent from the evidence that he was not on or at the bridge at the time of the accident. Whether he ever assisted in or supervised the operation of the bridge does not appear from the evidence. McDonald and O’Brien, whom O’Connor hired to actually operate the bridge, were mere instrumentalities used by him for that purpose, and O’Brien’s negligence was his negligence.

The case having been discontinued as'to O’Connor, the declaration is to be read as charging negligence against appellant only.

Appellant’s second contention is, that O’Connor or O’Brien or Kennedy, or whoever was operating the bridge, and the appellee, were fellow servants. In Gatham v. City of Chicago, 127 Ill. App., 150, which was an appeal from a former judgment in the cause, the question was presented whether Kennedy, who was operating the bridge under the direction of O’Brien, was a fellow-servant of appellee, and we held, Mr. Justice Brown delivering the opinion, that it could not be held, as matter of law, that they were fellow-servants; but that the question whether or not they were such was for the jury to find from the evidence. The evidence bearing on that question was substantially the same on that appeal as in the record now before us. Therefore, the question is res adjudicata in this court. Geiman v. Town of Browning, 87 Ill. App., 418; Newberry v. Blatchford, 106 Ill., 584; 591-2, and cases cited. On the last trial the question whether appellee and O’Brien were fellow-servants was submitted to the jury by instructions given at appellant’s request, and the jury, by their verdict, found that they were not. We concur in that finding’.

It is next contended by appellant’s counsel that appellee assumed the risk. It is uncontroverted that appellee, before he went below the bridge, told O’Brien that he was sent to make a measurement, and that he would take one first, and when he would have done so, he would give to him, O’Brien, a signal to lift the bridge, and another to lower it when he, appellee, would be through, and that O’Brien agreed to that arrangement. Appellee knew that the place in which it was necessary for him to be, to take the first measurement, would be safe while the bridge remained stationary; but if the bridge should be raised and the machinery thereof set in motion, it would be a dangerous place in which to be. He was unwilling to assume the risk of this danger, and by his arrangement with O’Brien did all in his power to avoid the risk. Therefore, the proposition of counsel is, that appellee assumed the risk of O’Brien raising the bridge without any signal from him, wrhich O’Brien had specifically agreed not to do. We regard the proposition as a good illustration of the quintessence of nonsense.

Excluding the hypothesis that appellee and the operator of the east half of the bridge were fellow-servants, and the hypothesis that appellee assumed the risk, it is not argued or claimed that the appellant is not liable. Therefore we might, in accordance with the well-settled rule that matters not argued are waived, omit, in this opinion, further consideration of the question of appellant’s liability, But the question being an important one, we will briefly consider it. What is appellant’s duty in respect to the bridge in question? Van Buren street bridge is a part of the street, and the city owes the same duty in respect to it that it does to other parts of Van Buren street. 2 Dillon on Mun. Corp., 4th ed., p. 881, section 728; City of Chicago v. Powers, 42 Ill., 169; City of Chicago v. McGinn, 51 ib., 266; Pres’t & Trustees, etc., v. Meredith, 54 Ill., 84; Gavin v. City of Chicago, 97 ib., 66, 70; City of Chicago v. McDonald, 57 Ill. App., 250, and cases cited. That duty is to exercise ordinary care to maintain the bridge in a reasonably safe condition for public travel. But manifestly there is an additional duty in the case of a movable bridge such as the one in question. The city has the exclusive control, management and operation of the Van Burén street bridge, and it is incumbent on it to exercise ordinary care in the operation of the bridge, to reasonably operate it so as to avoid injury to persons and property. And if one, without fault on his part, is injured by reason of the city’s negligence in the operation of the bridge, we think it necessarily follows that the city is liable. Suppose that while persons and teams were on the bridge and others approaching it for the purpose of passing over it, that the city, without warning, •¡as by ringing a bell or otherwise, should suddenly and unexpectedly raise the bridge, carrying up persons thereon, and in consequence thereof some of such persons should be injured, without, fault on their part; can it be doubted that the city would be liable? In the present case there was not only the absence of any warning to appellee, but an express agreement that the bridge would not be raised without a signal from him, and he gave no signal. The duly of the city to exercise ordinary care in the operation of the bridge is a primary, duty, of which it cannot divest itself so as to avoid liability for negligence in its operation and consequent injury. Kreigh v. City of Chicago, 86 Ill., 407. The action was properly brought against the city. Tift v. Towns, 53 Ga., 47.

Lastly, counsel contend that each of the instructions 2, 3, 5, 6 and 7, given at appellee’s request, is erroneous. Instruction 2 is as follows:

“If the jury believe from the evidence in this case that one O’Connor was the bridge tender for the bridge in question, regularly appointed as such by the defendant, city of Chicago; that one. O’Brien was appointed as assistant bridge tender of said bridge by said O’Connor in his capacity as said bridge tender, and that he, said O’Brien, was paid his wages or salary, if any, by said O’Connor; and if the jury further believe from the evidence that the city of Chicago, by its superintendent of bridges, if any, or by some of its officers, if any, other than said O’Connor, had the right to discharge said O’Brien, then the jury are instructed that said O’Brien was at the time of the accident testified to in this case a servant of the city of Chicago.”

The question presented by this instruction is not free from difficulty. The evidence is that it required at least two persons to operate the bridge, by reason of the fact that there was separate machinery for the operation of each leaf of it, and at each end a controller for letting on and regulating the power by which the machinery is moved, and the city must have known that it was necessary for O’Con-nor to employ at least one man, and that, in fact, he employed two, McDonald and O’Brien. Patrick White, superintendent of bridges, knew, as his testimony shows, that O’Connor employed two men to operate the bridge, and his knowledge was, in law, the city’s knowledge. White testified that his duty was to see that the bridge tenders attended to their business, and that he had authority to discharge any one whom he saw operating the bridge improperly, no matter who he was. It is true that O’Brien was hired and paid by O’Connor, and that it was in O’Connor’s power to discharge him, but we are not prepared to hold from that circumstance, that he was not the servant of the city, which knew of his employment, the necessity for it, impliedly acceded to it, and had the power, by its bridge superintendent, to discharge him.

In Wood’s Law of Master and Servant, section 317, it is said: “The real test by which to determine whether a person is acting as the servant of another is, to ascertain whether, at the time when the injury was inflicted, he was subject to such person’s orders and control, and was liable to be discharged by him for disobedience of orders or misconduct.”

In Johnson v. Ashland Water Co., 71 Wis., 553, the plaintiff, Johnson, was employed, temporarily, by the defendant’s servant in charge of its work, and while so employed was injured. Held, that the plaintiff was defendant’s servant and was entitled to recover, citing numerous authorities. But even if O’Brien was not appellant’s servant, but merely the servant of O’Connor, this would not, as we think, affect the question of appellant’s liability, and the giving of the instruction is not reversible error.

We find no reversible error in any of' the other instructions. Appellant’s 18th instruction was properly refused, for the reason that there is no evidence in the record on which to base it.

The judgment will he affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Charles P. Treat v. Cora Smith.
    Gen. No. 13,533.
    1. Principal and agent—hoio far latter may hind former. The principal is bound by the acts of his agent within the apparent authority which the principal knowingly permits the agent to assume or which he holds the agent out to the public as possessing.
    2. "Vendor and vendee—construction of contract as to election of rights. A contract for the purchase and sale of real estate which contained as well a forfeiture clause as a clause giving to the vendor in case of default in payment by the vendee an option by election to treat the covenants and liability of the. vendee as living, obligatory and enforceable and to collect all the consideration money from the vendee by proper proceedings at law or equity, is considered, but the court does not finally pass upon the question as to whether or not under the contract involved the right to a forfeiture is lost by an apparent election to keep the contract alive.
    3. Forfeiture—when notice of intention to enforce, essential. A forfeiture cannot be enforced under a contract providing therefor in event of default without notice of intention to enforce a forfeiture where the party seeking to forfeit the same has by his conduct induced the other party thereto to believe that the provision that time whs of the essence of the contract would not be insisted upon.
    4. Contract—when right to rescission arises. A vendee may rescind where the vendor without warrant and right has sought to enforce a forfeiture and has placed himself in a position where he cannot perform.
    5. Contract—when purchase money may he recovered tipon rescission. A vendee of real estate may recover payments made under a contract to purchase where the vendor has illegally sought to enforce a forfeiture by making to a third party a conveyance of the property covered by the contract of purchase.
    6. Measure of damages—in action to recover money paid under rescinded contract. Where a vendee is entitled to rescind, and has rescinded, he may recover as his measure of damages any money paid under the contract in question plus interest from the time of the commission of the act which entitled rescission.
    Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed December 23, 1907.
    Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county in favor of Cora Smith, the appellee, who was plaintiff helow and will he so denominated in the opinion, against Charles P. Treat, the appellant here and defendant below. The suit was begun below on February 14, 1905. It was in assumpsit, and the amended declaration on which the case was tried contained five special counts and the consolidated money counts. The special counts were, however, alike, except in the description of the lot involved in the transaction sued on.
    The first count alleged that on August 20, 1890, the plaintiff and defendant entered into a contract in writing for the sale by the defendant to the plaintiff of lot twenty in block four of Treat’s subdivision of the northeast quarter of the southwest quarter of section two, township thirty-nine, north, range thirteen cast of the 3rd P. 21., in Chicago, Illinois. The contract is then set out in Jicec verba.

    It provides for the payment of $100 for the lot by the plaintiff to the defendant in this manner: $10 cash in hand, $7 or more, on September 20, 1890, and $7 or more “at the end of each and every period of one month thereafter until the whole sum of $400 shall be fully paid, with interest at the rate of 6 per cent per annum from date. The interest was to be payable semi-annually and principal and interest were made payable at the office of Treat, “his attorney, executors, administrators or assigns,” in Chicago. Any improvements placed on the lot were to be held as a part of the security for the prompt payment of each of the payments contracted for.
    A clause relating to the payment of taxes reads:
    “And also that he will well and faithfully in due season pay or cause to be paid all taxes and assessments " * * subsequent to 1889.”

      (EOTE. It is impossible to tell from the context to luhom the pronoun “he” relates, but it may be assumed, as it was so treated, that it refers to the vendee.)

    Covenants as follows are included in the contract:
    “In case said party of the second part (i. e. Cora Smith) shall make default or fail to make any of the payments above mentioned at the time and times above limited (the said time and times of payment being hereby declared to be an essential part of this contract), or shall fail to perform punctually any of the covenants and agreements herein mentioned at such time or times and for ten days thereafter, then in such case this agreement and all the covenants and agreements on the part of the said party of the first part (i. e. Treat) herein contained shall at the option of the said party of the first part, his representatives or assigns, be and are declared null and void, and no longer binding, and all the right or interest either in law or equity of said party of the second part shall cease and be determined, and all the payments which shall have been made hereon, or in pursuance hereof, and all buildings and other improvements which are now on or shall hereafter be placed on said premises, shall be absolutely and forever forfeited to said party of the first part, and he shall have the right to re-enter and take possession, or at the election of the said party of the first part, his representatives or assigns, the covenants and liability of the said party of the second part shall continue and remain obligatory upon the said party of the second part, and may be enforced, and the said consideration money and every part thereof be collected by proper proceedings in law or equity from the said party of the second part, her heirs, executors, administrators or assigns.
    The said party of the second part further agrees that in case she shall not make the payments above named on the days they are respectively made payable, she will pay interest on any payment or part payment which shall remain unpaid after due at the rate of 8 per cent per annum until paid. But nothing herein contained shall be construed as a waiver of the right of said party of the first part to declare this contract forfeited for non-payment as hereinbefore provided.”
    The contract is signed: Charles P. Treat,
    by Henry C. Decker [Seal] Attorney in fact.
    Cora Smith. [Seal]
    After setting out the contract the declaration alleges that in pursuance of it the plaintiff paid on it at various dates sums amounting in the aggregate to $341.16; being $10 on August 20, 1890; $7 on September 27, 1890; $7 on November 4, 1890; $7 on December 17, 1890; $7 on January 20, 1891; $7 on February 5, 1891; $7 on March 2, 1891; $7 on April 6, 1891; $10.08 on June 9, 1891; $33.89 on November 25, 1893, and $238.19 on November 27, 1893; and that the defendant on the said respective dates accepted the payments without objection to the times when made, and at various times prior to the date when the final payment by the plaintiff was due under contract and subsequent thereto, requested the plaintiff to make payments under said contract and to provide for taxes and assessments levied upon said real estate, and made no attempt to forfeit said contract, but in his communications with said plaintiff referred to the same as in force, whereby the said defendant waived the provision that time was of the essence of said contract and elected to hold the plaintiff to her liabilities thereunder.
    It also alleges that notwithstanding the premises, the defendant on October 22, 1901, sold and conveyed said real estate to one Gross by warranty deed, that the plaintiff made no objection to said sale and conveyance, and thereafter made demand upon the defendant for the sums of money paid by her under said contract, whereupon the contract became and was rescinded and the defendant became and w7as liable to repay to the plaintiff the payments made by plaintiff under the contract amounting to $341.16, and being so liable promised to pay the same.
    The second, third, fourth and fifths counts respectively are in identically the same terms as the first, except that they deal respectively with contracts involving lot 21, lot 22, lot 23 and lot 24 in block four of Treat’s subdivision.
    To this declaration the defendant pleaded the general issue. On a rule to file a bill of particulars setting forth the dates of the waiver of time of performance of the contract alleged by plaintiff, she filed one giving the date of the payments on the contracts subsequent to the second one, as set forth in the declaration, and also the dates of August 19, September 8, September 12 and November 17, 1899, and February 15 and December 5, 1900—these additional dates being those of certain letters written by Mr. Collins, an agent of the defendant, to the plaintiff, which will be alluded to in the opinion.
    The cause was submitted to the court, a j nry being waived, and after a trial the court found the issues for the plaintiff and assessed the damages at $2,057.19, giving, after a motion for a new trial and a motion in arrest of judgment had been overruled, judgment for that amount against the defendant.
    In this court the assignments of error challenge the rulings of the court below on the admission and exclusion of evidence, his holdings on certain propositions of law submitted to him and his refusal to find for the defendant.
    Huff & Cook, for appellant; Hamlin & Boyden, of counsel.
    James S. Weight and ¡Robert I. Gregg, for appellee; Frederick Peake, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

There is in this case very little conflict of evidence. The contest is chiefly over the rules of law applicable to conceded facts.

The defendant, Charles P. Treat, although describing himself as of Chicago in conveyances, seems, during the longtime involved in the matters under discussion herein, to have almost continuously been away from it. He was oceupied in other’ places far remote. He had an office in the Rookery Building in Chicago, but he was in that office and in Chicago but four or five times from 1891 to 1903, according to the testimony of his employee, Collins. Whether he was here more frequently before or after this twelve years, the record does not show. But he was the owner of land in Chicago divided into several hundred lots and platted under the name of O. P. Treat’s subdivision, etc. In the advertisements of these lots his “office” in connection with their sale was indicated to be at “Room 1106, Rookery Building, and also on the premises at the corner of Central Park avenue and Division street.”

In August, 1890, a man named Decker seems to have been in charge of the business of Mr. Treat in relation to this land, in the office at the Rookery Building. Just when Mr. Decker left the office or employ of Mr. Treat does not appear, nor whether Mr. Decker, a Mr. Lane and a Mr. Collins were all there together. But the counsel for Mr. Treat stated in open court that “Mr. Decker was first there and Collins followed him,” so that we may assume that Decker and Collins were not to any material extent contemporaneous. Mr. J. A. Lane was there, however, according to Mr. Collins’ testimony, as head bookkeeper for Mr. Treat for several years after he, Collins, “went in there.” “He passed on all the stuff,” Collins says, “I turned in.”

But for several years Collins was the only representative or employee of Treat in his office in Chicago, which was moved from 1106' to 520 Rookery Building. He says, “We sublet desk room to other people. There was no one else in charge of Mr. Treat’s businessand to the leading question, “You were the only one in charge of his (i. e,., Treat’s) business ?” he answered, “I was the only one there.”

Under date of August 20, 1890, the plaintiff, Mrs. Cora Smith, purchased and executed contracts in relation to twenty of the lots in Treat’s subdivision, doing the business with Decker at the office in the Rookery Building. For each of the lots a separate contract was executed, and all were in the form set forth in the declaration in this case and recited in the statement hereto prefixed.

Mrs. Smith, after her first payment of $10 on each of the lots on receiving the contracts, made payments on each of the twenty contracts at somewhat irregular intervals between and including September 27, 1890, and June 9, 1891. On each of the five contracts which are involved in this suit there appear indorsements of $10, paid when apparently the contracts were delivered August 29, 1890, and $7 on September 27, 1890 (which would be seven days late under the strict terms of the contract, but within the ten days grace given therein), $7 on November 4, 1890 (15 days late), $7 on December 17, 1890 (27 days late), $7 January 20, 1890 (31 days late), $7 February 5, 1891 (16 days late), $7 March 2, 1891 (10 days late), $7 April 6, 1891 (17 days late), and $7 June 9, 1891 (50 days late) ; also on June 9, 1891, $3.08 for the taxes of 1890.

It may be assumed that payments were made on the other 15 contracts at the same time, although apparently there was some difference in the price and consequently in the installments on one or more of the lots.

On some account in connection with her purchases Mrs. Smith evidently paid $82.60 on June 2, 1892, also, and $5.0 on August 8, 1892, after which her payments ceased. She herself testified that her last payment “seems” to have been made on June 9, 1891, but we think that the account received by her from the defendant’s office (Plaintiff’s Exhibit 20) is evidence to the contrary.

On June 24, 1893, for an expressed consideration of $100, which may or may not have been -as much or more than she had paid on that contract, Mrs. Smith assigned one of the contracts to one Emma Mast, with the assent and concurrence of Mr. Oollins, who must have been in this acting as the agent of Mr. Treat, and this one lot was eliminated from the transactions between the parties hereto.

At or about November 25, 1893, an agreement was made between Mrs.. Smith and Mr. Treat, the latter acting through a representative, which the evidence fairly leaves us to infer was Mr. Collins—although the indorsements involved are in the hand of Mr. Lane, “the head bookkeeper”—by which Mrs. Smith gave up any claim on fourteen of the contracts and cancelled them in consideration of having the money she had paid on them, which apparently amounted to $1,360.40, credited to her on whatever was due on the remaining five lots for interest, taxes or installments or principal.

In the execution of this arrangement the following indorsements (with a variation of a few cents only in one or two of the items) were made on each of the contracts involved here:

Nov. 25, ’93, Received $4.47 for Grand Avenue sewer assessment.

Nov. 25, ’93, Rec’d $3.40 for 1891 tax.

Nov. 25, ’93, Rec’d $10.75 for first installment sewer tax.

Nov. 25, ’93, Rec’d $3.64 for 1892 tax.

Nov. 27, ’93, Rec’d $1.63 for second installment sewer tax.

Nov. 27, ’93, Rec’d $28.16 for interest to Nov. 30, 1893.

Nov. 27, ’93, Rec’d $210.03 on principal.

The indorsements altogether make on the five contracts the aggregate $1,705.83.

After November 27, 1893, the matter affecting this transaction appearing in the record consists entirely of correspondence and a warranty deed of the lots in question with many others, made by Mr. Treat and wife to Homer E. Gross for the alleged consideration of $50,000 on October 22, 1902.

All the correspondence between the parties connected with the transaction does not appear. Various letters are referred to in answering communications, which are not in the record. But enough of it appears to show clearly, we think, the intentions and attitude of the parties on the material questions here presented.

The correspondence, so far as it appears in the record, begins with a letter purporting to be from O. P. Treat, the defendant himself, dated at 97 Gresham street, London, Rovember 16, 1898, which, it should be noted, is more than seven years after the last cash payment had been made on the lots by Mrs. Smith, and almost exactly five years after the last indorsement had been made on the contracts. In that letter Mr. Treat says: “I could not buy your lots at present, as I have all of that sort of property that I can carry. It seems to me that there is no doubt that within a year or two there will be a good demand for them at fair prices.”

A strenuous attempt was made by the appellant to keep this letter out of evidence on the ground that it was not shown to be the letter of Mi*. Treat, or that it referred to the property involved here, and the action of the trial judge in admitting it is vigorously attacked in this court as erroneous.

The plaintiff testified that prior to receiving this letter she had addressed a letter to Mr. Treat, marked “Strictly Personal,” and that she had received this letter introduced in evidence purporting to be personally signed by him in London, in reply. She testified also that the lots referred to were the lots described in the five contracts introduced in evidence, which she purchased from Mr. Treat. Mr. Collins, a witness produced by the defendant, was asked on direct examination by the counsel for the defendant, if he was familiar with the handwriting of Mr. Treat, and answered that he was. Asked by counsel for defendant if the letter was in Mr. Treat’s handwriting, he said “No, he didn’t write the letterBut in this answer he was plainly referring to the body of the letter and was hardly ingenuous, for being immediately asked by the court if the signature was Mr. Treat’s, he answered, “Yes, it is his signature—it looks like his signature, and I think it is.”

If the signature was Mr. Treat’s, it certainly was of no importance that the body of the letter was the work of an amanuensis. The letter plainly treats the lots in question, at this very considerable length of time after the payments had ceased, as still the property of Mrs. Smith, in which she had at least a subsisting and substantial equitable interest.

The rest of the correspondence appearing in the record is entirely between Mr. Collins, before mentioned, who generally, however, signed his letters, “C. P. Treat, Collins,” and Mrs. Smith.

’ There were introduced three letters and a receipt from one George W. Wilbur to Mrs. Cora Smith, but two of these letters bore indorsements or additions by Mr. Collins and were admitted only to the extent and for the purpose of showing knowledge by Mr. Collins “of what was being done and his action in the premises.” The other letter and the receipt were stricken out of evidence by the court before the finding was made.

The letters from Collins to Mrs. Smith were introduced for the purpose of showing that the defendant considered and treated the right of forfeiture given by the contracts for the non-payment of instalments due promptly as waived, and had elected in accordance with the terms of the contract to continue them in force.

It is urged that they were inadmissible and can be held to prove nothing against Mr. Treat, the defendant, because there was no showing that Mr. Collins had authority to sign the name 'of Mr. Treat to these letters,—that as interpreted by the plaintiff and the court below, they changed the contracts, and that Mr. Collins was a bookkeeper with only the powers ordinarily possessed by a bookkeeper and could not change the contracts.

To sustain this position counsel cite Mr. Collins’ own testimony, who, although testifying that he was the only one in- charge of Mr. Treat’s business in Chicago, that he received money on contracts for lots and carried on correspondence with the contracting parties, that he wrote the letters referred to and signed them with Mr. Treat’s name, and that Mr. Treat was in Chicago but four or five times in the twelve years he worked for him, answered thus, over the repeated objections of defendant’s counsel, to questions of the plaintiff’s counsel who called him as a witness:

“Q. Who attended to all these real estate matters in connection with C. P. Treat’s Subdivision ?

A. I had charge of collecting the payments as made on contracts and when people were slow of poking them up. •x- * -x-

Q. Is it not a fact that you had the general charge of Mr. Treat’s real estate business in Chicago, especially of real estate in C. P. Treat’s Subdivision for Mr. Treat ?

-x- * * A. Well, the interest I had in it was to collect such payments as were made.

Q. Well, hadn’t you general charge of it?

A. Well, I paid the general taxes on it.

Q. Hadn’t you general charge of it?

A. When Mr. Treat would send me the money I would pay the taxes.

Q. Hadn’t any other interest in it ? A. Ho. * * *

Q. Do you remember when Mr. Peake (of the plaintiff’s counsel) first came to see you a few weeks ago ?

A. Yes, sir.

Q. Did you at that time make the statement to him that you were in general charge of Mr. Treat’s real estate business here in Chicago during the time that you have stated you were in his employ ?

A. As to whether I was his agent or not ?

Q. Whether you had general charge of his real estate ?

A.- As I recollect it, this gentleman put the question in that way. I made the statement, and I probably said it to him, that is my recollection of it. My understanding of the question was that I had charge to keep his books, collect the payments as made, turn them over to him and report them to him—in that way I had charge of it.

The Court: Let me understand you correctly. That to the best of your recollection he asked if you were general manager, as you understood it, as you now define your duties ?

A. That is it exactly; that is just what I meant to say.”

He was then asked on cross-examination by Mr. Treat’s counsel: “You had no further authority that the authority just testified to ? A. Ho, sir.”

Upon this testimony and the legal proposition that “one who deals with an agent is bound to know the extent of his authority,” the defendant claims that he was not bound by the letters written by Collins.

The trial court was at liberty to judge of the directness, thoroughness and ingenuousness of Mr. Collins’ denial of authority to write the letters which he did write, inferred by defendant’s counsel from this testimony, and the rule of law alluded to certainly has its limitations; The principal is bound by the acts of his agent within the apparent authority which the principal knowingly permits the agent to assume or which he holds the agent out to the public as possessing. It was to an office of which Mr. Treat was, during the years when these letters were written, the only occupant, as an employee of Treat, and which Treat was hardly ever near, that persons desirous of dealing with the land in question were directed. The contracts themselves were executed by an agent or representative of Mr. Treat, not by Mr. Treat himself, and of that agent or representative, Mr. Collins, whatever his actual authority, seems to have been the ultimate sole apparent successor. Mr. Treat himself did not take the stand to deny the alleged unauthorized acts and letters of his agent, although at the time of the trial there had been on file for more than a year a bill of particulars which gave dates of alleged waivers by defendant, which he must have reasonably inferred were claimed to have been made by the acts or declarations of his sole representative here, Collins. Moreover, the defendant himself introduced in evidence, as a part of his case, two letters in the series, each signed “C. P. Treat, Collins,” one of which, dated May 20, 1899, was certainly material in the very view of the matter claimed to be correct by the plaintiff.

We cannot hold that the letters of Collins were improperly admitted, or that they must not be considered as binding on Treat, whose declarations by his agent they purported to be.

These letters running from May, 1899, to December 5, 1900, bear out the plaintiff’s contention that during that time the contracts were by the defendant considered and treated as in force. They contained advice and suggestions as to Mrs. Smith’s procuring loans on the lots and notified her of taxes and assessments and tax claims. They treated the property as primarily hers, but requested further payments on account of the contracts. As late as December, 1900, Mr. Collins (in the name of Treat) says, “I am still waiting for you to make some payments on account. * * * I wish you would piase remit me something on account. * * I have made enough concessions to you and now expect you to take care of the property. I do not care to take hack any more of them. Have already taken back 15 out of 20, which is quite enough I think to ask of me.”

It is said that a letter of Mrs. Smith received May 15, 1899, by Mr. Collins, and another received May 20, 1899, showed an abandonment on her part of the lots and of any attempt to fulfill her contract in the future. They were despondent and discouraged in tone, but we think they were not intended, and they certainly were not understood by the recipient, to be letters of abandonment. On May 22, 1899, we find Mrs. Smith, on the contrary, speaking about her “equity,” and asking advice as to what she should offer it for sale for. She evidently then did not regard her right in the property as abandoned. On August 19, 1899, Mr. Collins tells her of an offer he had of $1,000 for the five lots, and asks her if she will sell them for that sum, advising her to do so, although he assures her it is a low price. She did not owe a thousand dollars on them at that time, and it is not to be presumed that with this offer made to her she abandoned the lots. She evidently declined the offer and requested Mr. Collins to procure her a loan of $1,000 on the lots, and he replies under date of September 8, 1899, that he knows a party who he thinks would make the loan at 6 per cent, and says: “I think yon are wise to borrow on the property and hold it for a time yet. You will certainly get more for it later.”

The next question presented to us for decision then, is what effect this recognition by the defendant of Mrs. Smith’s rights in the property for so many years after the last payments made by her or credits given to her on the contracts, had on his right to declare the contracts forfeited and the rights of Mrs. Smith forever annulled.

The appellee first calls attention to the peculiarity of the contracts in that they give to the vendor, in case of default in payments by the purchaser, an option by election to treat the covenants and liability of the purchaser as living, obligatory and enforceable, and to collect all the consideration money from the purchaser by proper proceedings in law or equity. She contends that the action of the appellant shows that he made his election, and also contends that having made it, he could not afterwards withdraw or modify it.

We are not prepared to say that this position is not well taken, nor that the appellant would not, after the course of conduct and declarations imputable to him, be compelled, in order to enforce his legal rights under the contracts, to proceed either in equity to foreclose the plaintiff’s rights to the land, or at law to secure judgment against her, when he might levy on and sell her interest in these lots under execution.

The clause in the contracts, on which the defendant relies to avoid this result of the alleged election, assuming that it is proven, viz.: “Hotting herein contained shall be construed as a waiver of the right of said party of the first part to declare’ this contract forfeited for non-payment as hereinbefore provided,” may well, we think, be construed so as to make the first “herein” refer to that paragraph or section of the contract only, in which the clause occurs. In other words, it may well be considered that it is only the provision that the purchaser agrees to pay interest on any defaulted payment, which shall not have the effect of waiving the right of the vendor to declare the contract forfeited for such default.

But we do not feel ourselves called on to decide this question, for we are clearly of the opinion that even if without legal proceedings in equity or by execution, the defendant could properly have foreclosed and forfeited the interest of the plaintiff in these contracts and the land described in them, he could not do so except in the manner indicated by this court in Vider v. Ferguson, 88 Ill. App., 136, and by the courts whose decisions were therein cited, as alone effective where such communications had been made to the vendee in a contract like this as would induce in his mind the conviction that the provision that time was of the essence of the contract would not be insisted on. That manner involves a reasonable notice served on the vendee of an intention to be subsequently carried out, of resorting to the strict terms of the contract and declaring a forfeiture.

Ho such notice was given here—no intimation that this course of enforcing defendant’s rights was to be taken appears in the correspondence—but under the date of August 3, 1901, a letter signed “C. P. Treat, Collins,” contained the announcement that the course had been adopted. “You must know,” it says, “that the same” (the contracts) “have been cancelled on face of cont. for non-payment, consequently you have no further interest in the property,” etc., and it appears by Mr. Collins’ testimony that he wrote on the face of the five contracts, “Forfeited for non-performance of conditions,” upon Mr. Treat’s verbal order and instruction—• Treat then being in Chicago, on January 5, 1901. These memoranda were signed by Mr. Treat. We fail to find any distinction making a difference in principle between the facts in Vider v. Ferguson (supra) and the case at bar, and this court is still of the opinion as to the rules of law applicable, that it was when the opinion in Vider v. Ferguson was rendered. We do not think the attempted forfeiture of the contracts was effective, nor that there is any evidence that before or after the attempt was made the plaintiff abandoned the said contracts until the conveyance of the lots by the defendant to a third party occurred on October 22, 1902.

The remaining question is the effect -of that conveyance on the rights of Mrs. Smith.

We think it gave her the right to treat the contracts as rescinded by the defendant at her election—which she has made by bringing this suit, and that what this court said the parties did in Vider v. Ferguson, the parties here have done —-made a rescission of the contract by mutual consent, the defendant ceasing to claim from the plaintiff any of the purchase money due by the terms of the contract, and the plaintiff ceasing to claim any interest in the premises described in them.

Under these circumstances, as the Supreme Court said in Hurd v. Denny, 16 Ill., 492, the vendee under the contracts was entitled to recover back what had been advanced without performing a condition precedent to a specific enforcement of the contract. This doctrine has not since been departed from.

The proper rule of damages seems to us to have been followed in computing them at the amount credited in the contracts, with interest from the time of the conveyance by the defendant to a third party.

The rulings on propositions of law held and refused are in accordance with our views herein expressed.

The judgment of the Superior Court is therefore affirmed.

Affirmed.