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    Victor Baker et al., Appellants, v. S. A. Healy Company et al., Appellees.
    Gen. No. 40,949.

      Opinion filed December 13, 1939.
    Earl J. Walker, of Chicago, for appellants; Walter F. Dodd, of Chicago, of counsel.
    Rosen, Francis & Cleveland and Litsinger, Healy, Reid & Bye, all of Chicago, for appellee S. A. Healy Co.; Daniel M. Healy, Ralph Rosen and James B. O’Shaughnessy, of Chicago, of counsel.
    Ernst Buehler, Louis I. Fisher and Richard R. Mladic, all of Chicago, for appellee Sanitary District of Chicago.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiffs from the order entered by the court dismissing the complaint upon defendants’ motions, and entering judgment to that effect.

This is an action by 62 plaintiffs, each of whom claims personal injury, also of property damage to 40 different pieces of property. The street numbers of the property, scheduled in the complaint, indicate that the plaintiffs lived within two blocks of each other and that no piece of the property is more than 600 feet from another. The S. A. Healy Co., the Sanitary District of Chicago, and the city of Chicago were made defendants. The plaintiffs allege that they suffered personal injury and property damage as a result of numerous explosions and the subsidence of soil involved in the construction of an intercepting sewer. By municipal ordinance the city of Chicago granted the Sanitary District of Chicago a perpetual easement to construct, maintain and operate the sewer under, upon and through the streets and public ways of the city of Chicago. By contract between the Sanitary District and the Healy Co., that company constructed the sewer, and all plaintiffs claim to have been damaged in the performance of this contract. The relationship between the three parties defendant and the respective liabilities of each of the three are fully set out in the complaint.

As we have indicated, the trial court sustained motions by each of the defendants to dismiss the complaint, and the plaintiffs stood upon their complaint, and their appeal is now pending in this court.

Two motions to dismiss were presented by the S. A. Healy Co., each of which asked the court to dismiss as to it, or, in the alternative, that the several causes of action be severed. A similar motion was made by the Sanitary District of Chicago, which also asserts that the complaint “fails to charge this defendant with any of the acts complained of” and that the complaint “fails to allege a cause of action against this defendant.” The motions by the Healy Co. and the Sanitary District of Chicago are similar. Each alleged a misjoinder of parties and of causes of action. Each presented a statement that trial by jury would be difficult if all claims were tried together. Each alleged that the complaint was too indefinite in that it specified general periods of construction work, and did not specify the time of excavating, digging, and blasting. The motion of the Sanitary District alleged that the complaint failed “to set forth what specific charges of explosives, if any, did produce violent vibrations.” The first motion to dismiss filed by the Healy Co., asserts a violation of section 33 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 157; Jones Ill. Stats. Ann. 104.033], and asks for a severance of the allegations that it was negligent from the allegations that it was liable irrespective of negligence, these allegations already being in separate counts.

The motion to dismiss by the defendant city of Chicago states that Count IV of the complaint would not sustain a cause of action against the city of Chicago, and further says that the plaintiff seeks judgment against the city of Chicago for alleged personal injuries and that notice of injury had not been served upon the city of Chicago as required by statute. As against the city of Chicago the complaint alleged only damage to property.

The plaintiffs contend that the complaint in this case properly joins all plaintiffs, and states a proper cause of action against each of the defendants. The order of dismissal does not designate the specific grounds therefor, and must therefore be regarded as presenting to this court all issues raised in the motions to dismiss, and all such issues should be settled in order to avoid further error in the trial court. The issues relate (1) to the form of the complaint, including the joinder of plaintiffs, and (2) to the liability of defendants.

With reference to the form of the complaint and the joinder of plaintiffs, it is plaintiffs’ theory that:

(a) The complaint states, on behalf of the plaintiffs, an action “arising out of the same transaction or series of transactions,” and common questions of both law and fact present themselves — the complaint in this respect more than meeting the requirements of section 23 of the Civil Practice Act. There was no misjoinder of plaintiffs, but, if there were, this is not a ground for dismissal. (Civil Practice Act, section 26);

(b) Different breaches of duty are here involved, “growing out of the same transaction or based on the same set of facts,” and such breaches are properly set out in the same count, under specific authority of Supreme Court Bule 12;

(c) The complaint is sufficiently definite to inform defendants of the nature of the claim which they are “called upon to meet” (Civil Practice Act, section 42) and sufficiently states a cause of action against each defendant. Detailed facts, solely within the knowledge of the defendants cannot be, and are not required to be alleged; and if the pleadings were in fact insufficient this error should have been corrected, not by motion to dismiss, but by demanding a bill of particulars under section 37, or by motions, under section 42 or 45 of the Civil Practice Act, that other pleadings be prepared or that the pleading be made more definite; moreover, if the allegations of the complaint were inaccurate in that they were not in accord with the evidence, they may, before or after judgment, be amended “to conform the pleadings to the proofs” (Civil Practice Act, section 46).

(d) The right to join plaintiffs in one action is not narrowed by the fact that certain different issues of fact may present themselves as to the several plaintiffs. The right to join is a statutory right; where cases are properly joined in a complaint, the trial court is given a discretion to “order separate trials or make such order as may be expedient” (Civil Practice Act, section 23); it “may, in its discretion, order separate trials” (Civil Practice Act, section 44) and it may give separate judgments “for or against one or more of several plaintiffs and for or against one or more of several defendants” (Civil Practice Act, section 50). And “an action may be severed ... as an aid to convenience, whenever it can' be done without prejudice to a substantial right.” (Civil Practice Act, section 51).

(e) There is no question as to the propriety of joining the three defendants; nor as to the propriety of joining in the same complaint claims against the defendant Healy Co., based the one upon negligence and the others upon liability without negligence. The two types of liability may properly be pleaded in the complaint, either independently or in the alternative (Civil Practice Act, section 43); the two are here pleaded in separate counts, as recognized by defendant Healy Co., but joining the two in a single count would have been proper under Supreme Court Rule 12.

The plaintiffs contend that a cause of action is stated against each of the defendants, for the following reasons:

(1) The Healy Co., as a contractor with the Sanitary District of Chicago is liable to a direct suit for damages by plaintiffs: (a) by virtue of the terms of the contract between the Healy Co. and the Sanitary District of Chicago, under which the Healy Co. assumed such liability, irrespective of any negligence upon'its part; (b) the Healy Co. is also liable for damages caused by negligence upon its part, and specific allegation of such negligence is made in the complaint; (c) under the established law of Illinois, the Healy Co. is also liable for injury resulting from the use of explosives, irrespective of the degree of care exercised in the use of such explosives.

(2) The Sanitary District of Chicago is liable to plaintiffs, without regard to any negligence upon its part, (a) by virtue of Article II, section 13 of the constitution of Illinois under which “private property shall not be taken or damaged for public use without just compensation”; and (b) by virtue of section 19 of the act under which the Sanitary District of Chicago is organized (Ill. Rev. Stat. 1937, ch. 42, par. 339, sec. 19 [Jones Ill. Stats. Ann. 122.128]), such section mating the district liable “for all damages to real estate ... by reason of the construction, enlargement or use of any channel, ditch, drain, outlet or other improvement under the provisions of this act ...” Moreover, it is liable for negligence on its part or on the part of its contractor.

(3) Under the established law of this State, the city of Chicago is liable to plaintiffs, without regard to any negligence on its part, because it permitted intrinsically dangerous work to be done on a street, and with notice thereof, failed to take proper steps to prevent it. Knowledge by the city of Chicago is alleged in the complaint, and is admitted by the motion to dismiss. The complaint seeks damages from the city of Chicago only for injury to property, and the motion to dismiss, by the city of Chicago, on the ground that personal injuries were involved and that service was not made upon the city within proper time, is erroneous and irrelevant.

The contention and theory of the defendant S. A. Healy Company is that this defendant is a contractor who performed its part of a contract with the Sanitary District. Whatever acts it performed were in strict accordance with the terms of its contract. Plaintiff does not allege any breach of the terms nor is it urged the contractor acted beyond the scope of its contract in such a way as to affect the several plaintiffs.

Acting entirely under the plans and specifications furnished by the Sanitary District the defendant is responsible to third persons, only if it was negligent. It is not responsible to third persons under the contract because the provisions therein, presented and relied on by plaintiffs, were not made for their benefit, and therefore plaintiffs cannot sue on the contract.

This defendant is not responsible for any alleged damage resulting from the use of dynamite, because such use was required by the contract. It is not charged that more dynamite was used than was necessary nor that it was used carelessly. The use of dynamite required in a contract with a public body for a public improvement does not make the contractor liable for any alleged damage or injury unless he was negligent.

The sole cause of action upon which recovery against the defendant S. A. Healy can be predicated is negligence. The plaintiffs herein were located along the route of the construction work for a space of two blocks. To sustain their right to join in one suit to recover against the contractor for negligence the plaintiffs must establish that all were damaged by one transaction or a series of transactions and that there are common questions of law or fact. The complaint does not contain allegations showing plaintiffs’ right to join all of their respective causes of action in the one suit against this defendant.

The Sanitary District of Chicago contends that the plaintiffs were improperly joined because the relief sought by them did not arise out of the same transaction or series of transactions as required by section 23 of the Civil Practice Act and because a common question of law or fact is not presented as to all of the plaintiffs as required by said section. And this defendant further contends that both of the conditions above must exist before there can be a proper joinder; that if it is found that the relief sought by the plaintiffs does arise out of the same transaction or series of transactions, there is nevertheless no common question of law or fact presented so there is a misjoinder of plaintiffs; and that if it is found that a common question of law or fact is presented, the relief sought does not arise out of the same transaction or series of transactions so there is a misjoinder of plaintiffs.

This defendant further contends that there is a misjoinder of causes of action in the complaint as a whole and in the various counts thereof; that this constitutes multifariousness and requires the dismissal of the complaint; that this objection was properly raised by its motion; and that the question of the desirability of severing certain issues for trial is not presented where there is a misjoinder of plaintiffs or causes of action.

And lastly, the defendant contends that the complaint does not allege a cause of action against the Sanitary District of Chicago.

The other defendant, the city of Chicago, did not file a brief in this appeal, so we are deprived of the theory of the city of Chicago upon the questions involved in the complaint filed by the plaintiffs.

Plaintiffs’ action is based on par. 147, sec. 23, ch. 110, Civil Practice Act (Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.023]), which provides:

“(Joinder of plaintiffs.) Subject to rules, all persons may join in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons had brought separate actions any common question of law or fact would arise: Provided, that if upon the application of any party it shall appear that such joinder may embarrass or delay the trial of the action, the court may order separate trials or make such order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he or they may be entitled.

“If any one who is a necessary plaintiff declines to join, he may be made a defendant, the reason therefor being stated in the complaint” and section 24 of the same act:

“ (Joinder of defendants.) (1) Any person may be made a defendant who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the same arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative arising out of the same transaction or series of transactions, regardless of the number of causes of action joined.”

It is to be noted that the statute provides joinder of plaintiffs where there is the same transaction or series of transactions and “common questions of law or fact.” The plaintiffs’ contention in this case is that there is not only the same transaction but also common questions of both law and of fact. All claims arise out of the same contract and out of the construction of the same intercepting sewer. Within this single transaction, the case involves a subordinate series of transactions — excavation, digging and blasting — affecting the property and health of plaintiffs in a two-block area near a portion of the work of sewer construction. However, the defendants, S. A. Healy Company and the Sanitary District of Chicago, base their motions to dismiss on the assumption that each of the plaintiffs must set forth and establish the specific charges of explosives and the specific excavation which caused the injury to such plaintiff.

Of course common questions of fact present themselves as to the whole contract, for methods of construction are common to the whole project, subject to variations where differences in soil conditions may be found, and no contractor would enter into or undertake the execution of such a contract without full knowledge of the soil conditions to be encountered along the route of the work. The extent to which and the manner in which dynamite was used throughout the work of construction constitute an essential part of the plaintiffs’ case, and it is well said by the plaintiff that the contract was executed under a common plan, with the employment of the same methods in the construction of the sewer, except for variations required because of differences in soil or other conditions.

While the claims of the plaintiffs arise out of the same transaction of sewer construction, their right of recovery on trial depends upon a subordinate series of transactions within a limited area which resulted in injury to them, and it of course follows that the question of fact presents itself as to the manner in which the work was done in that area, for explosions and other acts are not limited in their effect to single properties. Proof of soil conditions in that area also involves^ common question of fact, for soil strata do not affect merely one piece of property. If at the trial it becomes necessary to show negligence on the part of defendant Healy Co., this will involve proof of the methods employed by the contractor, through competent testimony, proof of the proper methods of blasting, soil removal and construction under the soil conditions in the area affected. To require this of each plaintiff separately will defeat his right to relief. Substantially the only separate question of fact is as to the amount of damages to be awarded to each plaintiff who shows injury.

The plaintiffs contend that the judicial construction of the language of section 23 of the Civil Practice Act justifies the joinder of the plaintiffs in the present case. Common questions of both law and fact are involved. The only remaining question is that as to whether the right to relief is “in respect of or arising out of the same transaction or series of transactions.” The construction of this language has not been passed upon by this court or by the Supreme Court of Illinois, and plaintiffs quote the Supreme Court in which they say:

“A ‘transaction’ is something which has taken place, whereby a cause of action has arisen. It must therefore consist of an act or agreement, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered.” Van Meter v. Goldfarb, 317 Ill. 620.

In the construction of this section we might have in mind Bulo 12, which was adopted by the Supreme Court of the State of Illinois, which reads:

“Different breaches of a contract, bond or other obligation, and different breaches of duty, whether statutory or at common law, or both, growing out of the same transaction or based on the same set of facts may be treated as a single claim or cause of action, and set up in the same count.”

The plaintiffs support their contention by citing the opinion of several decisions of courts of last resort, and point to the case of Payne v. British Time Recorder Co. [1921], 2 K. B. 1, in which the rule of the court is stated:

“Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matter should be disposed of at the same time, the court will allow the joinder of plaintiffs or defendants subject to its discretion as to how the action should be tried.”

Then it is contended by the plaintiffs that an application of the same rule was made in Drincqbier v. Wood, L. R. 1899, 1 Ch. Div. 393, wherein the statement of claim alleged that several plaintiffs had suffered damages due to untrue statements in a prospectus and in letters to them individually, for which a loss had been sustained from their investments. The defendants contended that, though each plaintiff had a good cause of action, they could not be joined under Order XVT r. 1, which permits joinder where “in respect of or arising out of the same transaction or series of transactions any common question of law and fact would arise”; that there were separate contracts with each of the plaintiffs and a separate prospectus sent to each and that the defenses as to the respective plaintiffs were totally different. The court said, however, that if there had been separate actions, there would be common questions of law and fact, and that the prospectus was the same transaction. The court said:

“I do not consider the word ‘transaction’ in the rule necessarily implies something taking place between two parties as e. g. where a collision between two ships causes damage, or houses are shaken down by a traction engine passing along a highway; it is perfectly true that to establish their respective rights to relief the plaintiffs must prove their title on distinct evidence. But when each plaintiff has proved Ms title there is a common ground of action, viz. the loss to the plaintiffs caused by the defendants issuing the prospectus. . . . The latter part of the rule provides for the prevention of injustice being done if defendants are embarrassed by joinder of plaintiffs. In the illustration suggested of injury done to a terrace of ten houses by the illegal use of a traction engine passing in front of them, each owner would have to prove title to his house but the other questions of fact and law would be common to all the owners and I have no doubt that they could all sue in one action.”

The plaintiffs cite as an additional authority the case of Forbes v. City of Jamestown, 212 App. Div. 332, 209 N. Y. Sup. 99. In that case it appears that a city sewer emptied into a stream along which the respective plaintiffs had several farms separately owned, and their cattle became ill and their milk contaminated with tuberculosis from drinking water. The plaintiffs joined in an action at law for damages. The court in part said:

“It has long been the rule that in both legal and equitable actions parties having interests may unite as plaintiffs, though affected in a different degree. . . . Under the present practice all persons may he joined in one action as plaintiffs in whom any right to relief arising out of the same transactions is alleged to exist, whether jointly or severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise.

“The complaint alleges separate ownership by Grant A. Forbes and Merle R. Forbes of farms of 100 acres and 64 acres respectively. . . . There was presented therefore a case of several as well as of joint causes of action arising out of a single transaction. The present legislative and judicial policy is to make the practice more simple and to obtain speedy results and diminish the cost of litigation. . . .

“Upon proper application it (the defendant) might have obtained severance of the individual claims from the joint cause and separate trials thereof or upon request at the trial it might have required separate verdicts on the causes of action alleged. ’ ’ And again, the plaintiffs have called our attention to the case of Akely v. Kinnicutt, 238 N. Y. 466,144 R E. 682 (1924), where 193 plaintiffs joined in one suit each one claiming to have an individual, separate and independent cause of action against the defendants for damages” caused by the defendants inducing them to make separate investments in a stock of a corporation based upon separate letters and sales but where the same prospectus had been received by the several plaintiffs from the defendants. After quoting section 209 of the New York Statute, the court says that the object of the statute was: “to lessen the delay and expense of litigation by permitting the claims of different plaintiffs to be decided in one action instead of many, when, although legally separate and distinct, they nevertheless so involve common questions and spring out of identical or related transactions that their common trial may be had with fairness to the different parties. ... but it is insisted that these common questions when compared with all of the questions which must be determined in each case are not of such comparative weight or importance as to justify the union which is being attempted. We are not able to agree with this view. . . . But even on that theory we do not think that it can .be said by us as matter of law in this case that there are not present in each cause of action common issues which amply satisfy the test of the statute. . . . These are in the ones in substance whether the defendants conspired to organize a corporation and float its stock at much more than its real value and whether in pursuance of this conspiracy they fraudulently issued a prospectus showing the stock to be much more valuable than it really was. . . . These questions are common to every cause of action. The separate issues, which must be tried in each instance, will be in the main whether the plaintiff saw the prospectus or learned of its representations, was influenced thereby and at a certain date bought a certain amount of stock at a certain price in advance of its real value in reliance thereon. . . .

“ . . . The transaction in respect of or out of which the cause of action arises is the purchase by plaintiff of his stock under such circumstances, and such purchases conducted by one plaintiff after another respectively plainly constitute a series of transactions, within the meaning of the statute. . . . and the many purchases by plaintiffs respectively do not lose their character as a series of transactions because they occurred in different places and times extending through many months.”

The defendants, however, cite the case of Gombi v. Taylor Washing Mach. Co., 290 Ill. App. 53, where 31 persons joined as plaintiffs in seeking to enjoin the enforcement of contracts for the sale of washing machines, and our attention has been called by the defendants that the complaint was objected to by defendant on the ground that it joined separate and distinct claims of individuals arising out of separate and distinct transactions. The plaintiffs contended that the joinder was proper under section 23 of the Civil Practice Act. The Appellate Court, however, sustained the objection of the defendant, and in answering plaintiffs’ contention that the joinder was proper under section 23 of the Civil Practice Act, said: “In our opinion this provision simply extends equity practice as to joinder of parties and causes of action, to actions at law. It will be noted that this section restricts the joinder of causes of action to actions arising out of the same transaction or series of transactions and which involves a common question of law or fact.” The court further said: “The representations to the several plaintiffs and the contracts were several and distinct, apparently made at separate times. No plaintiff has any pecuniary interest in the contract of any other plaintiff. Each contract is the separate and distinct agreement of the defendant with each individual plaintiff. While the complaint asks ‘for an accounting by defendant of money and merchandise received by it by reason of said contracts, ’ still there are averments in the complaint to the effect that the signatures of the plaintiffs to the contracts were obtained by fraud and circumvention and that the only instrument which any plaintiff executed was a receipt. The allegations of this amended complaint are not as definite and as certain as good pleading requires and it is apparent that the several causes of action of the several plaintiffs arose out of separate and distinct transactions and do not involve any common question of law or fact. ’ ’

It is apparent from the opinion of the court that the actions of the several plaintiff's were for separate causes of action, and of course the opinion in that case would not apply to the facts as- they appear in the instant case, in which the plaintiffs are seeking to recover for damage to their several properties, which was sustained by them. The construction of the intercepting sewer in this locality was carried on under a contract entered into between S. A. Healy Company and the Sanitary District of Chicago. This contract, as appears from the pleadings, was for the construction of this intercepting sewer by excavating and blasting where necessary in order to excavate a sufficient amount of the soil so that this intercepting sewer could be constructed. The blast was by the use of dynamite, and it would appear from the pleadings of the plaintiffs that their properties were damaged as the result of the construction of this intercepting sewer by reason of the means employed in the construction. Of course the removal of the soil that was necessary to construct this sewer would take away some of the lateral support from the buildings of the plaintiffs.

The defendants suggest that before any plaintiff could recover because of defendants’ acts, he must prove that there was negligence and that he was damaged thereby. He must prove that there was a blast or blasts and that he was damaged by such blast or blasts, and contend further that it is not sufficient to show that there were blasts. It is not sufficient if to that he added proof that the plaintiff was injured. He must show that the blast or blasts caused the injury. It is not alleged that all of the blasts damaged all of the property, or that any one blast or series of them injured all the property, and it is upon that theory that the defendants largely contend that the plaintiffs did not state a cause of action.

As we have already indicated, the plaintiffs have sustained damages, and the construction of the sewer was being brought about by the effort of the defendant S. A. Healy Company to excavate so as to make sufficient room to construct this intercepting sewer. Now, in doing this work it was necessary to use dynamite to blast, and in blasting it would appear from the pleadings that these dynamite blasts caused the injury to the plaintiffs’ property, and that during the progress of this work by the defendant Healy for the Sanitary District, the property of these plaintiffs was damaged. Now, there is no contention made that the plaintiffs do not allege damage, nor is there any contention that personal injury has not occurred to any of these plaintiffs by reason of the construction work. These plaintiffs are entitled to relief for this damage which occurred by reason of the transaction that was carried on by the defendant S. A. Healy Company under its contract with the Sanitary District and the damages as they occurred arising out of a series of transactions, that is, as the result of the use of dynamite, which caused a subsidence of soil involved in this construction of the sewer and the damage to the buildings.

One of the questions is whether the defendant Healy Co. is liable for injury to property and persons through the use of explosives, the probable effect of which would be injurious even though care and skill have been exercised in the use of the explosives. The plaintiffs cite, as an authority that there is such liability, the case of Fitz Simons & Connell Co. v. Braun & Fitts, 94 Ill. App. 533, affirmed by the Supreme Court in 199 Ill. 390, involving damage to property through blasting by a municipal contractor engaged in the construction of a tunnel in a public street. The trial court refused an instruction to the effect that the defendant was not liable if the vibrations or pulsations “were not negligently caused”; ignoring the question of negligence as essential to recovery in another; and gave the following instruction:

‘ ‘ 1 The jury are instructed as a matter of law, that a person uses a dangerous explosive at his peril, and that if the use of such explosive causes injury to the property of any other person, the person so using such dangerous explosive is in law liable for the damages so caused’ ” and this court said upon the question:

“The chief and controlling question presented upon this appeal is as to the extent of the liability of a contractor who, by use of dangerous explosives, causes injury to property of another. If, when the use is lawful, even though naturally dangerous in probable consequences, no liability can be predicated save upon a negligent manner of use, then this cause was submitted to the jury upon an erroneous theory of law. If, however, the contractor, who makes use of a dangerous explosive in the ground near the property of another, and when a natural and probable, though not inevitable, result of such use is injury to such property, is liable for the resulting injury irrespective of the degree of care exercised in the handling or exploding of the substance, then the case; was properly submitted and the recovery may be sustained. . . .

“In Wood on Nuisances (2d Ed.) See. 128, the author says:

“ ‘The usual question is whether the injury resulted from some act done outside the property injured, and is the natural and probable consequence of the act or thing complained of. If so, it is a nuisance, however lawful in itself, and however high a degree of care or skill may have been exercised to prevent the injury. ’

“We are of opinion that the instructions tendered by counsel for appellee and given by the court are substantially correct. . . . The charge is not confined to the manner of handling the explosive but goes to the negligence of any use of it, however careful. . . . While there is no evidence to establish any negligence in the specific manner in which the explosive was handled, yet the evidence does establish that negligence which the law imputes to an act by which the property of another will .naturally and probably be caused a consequential injury.” The Supreme Court in affirming this court, said: (199 Ill. 390)

“We need not set forth in full the instructions with relation to the liability of the appellant company for any injury or damage resulting from the use of dynamite. They announced, in substance, the proposition that one who makes use of an explosive in the ground near the property of another, when the natural and probable, though not inevitable, result of the explosion is injury to such property of the other, is liable for the resulting injury, however high a degree of care or skill may have been exercised in mailing use of the explosive. . . . The doctrine of the charge to the jury we think correct.”

The plaintiff states that the Sanitary District had no power to permit a dangerous use of the streets of Chicago. The city of Chicago merely by virtue of permitting intrinsically dangerous work on its streets is liable for resulting damage. This is independently of any negligence on its part, and is but a liability of the same type as that of the contractor who actually does the injury. This statement of course is pertinent and would apply to the instant case where the plaintiffs are seeking to recover damages to their property by the method and use, as outlined in this opinion, in making the excavation for the intercepting sewer.

Upon a further question of the liability of the defendant, under the terms of its contract with the Sanitary District, to the plaintiffs in this action for damages which they have sustained as outlined in the pleading under discussion, the plaintiffs state that by statute the Sanitary District is liable without regard to negligence, and the plaintiffs are entitled to sue the contractor Healy Company under the terms of the contract between it and the Sanitary District, under which it assumed liability without negligence, and base their theory upon the case in the Supreme Court entitled Carson Pirie Scott & Co. v. Parrett, 346 Ill. 252, where the court said: “The rule is settled in this State that if a contract be entered into for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct he may sue on the contract; if incidental he has no right of recovery thereon. ... In such a case no opinion in an adjudicated case, even of this court, is controlling unless the language of the contract or the circumstances surrounding the parties are substantially the same, since each case must depend upon the intention of the parties as that intention is to be gleaned from a consideration of all of the contract and the circumstances surrounding the parties at the time of its execution.” The plaintiffs suggest that the circumstances are substantially the same in all public contracts where injury to persons or property is foreseen and provided for in the contract by which the contractor “covenants and agrees to pay all damages for injury to real or personal property or for any death or injury sustained by any person,” and further suggest and use the following language: “And clearly the benefit to the injured third person is direct when the contractor agrees not only ‘to pay all damages . . . sustained by any person’ but also that ‘The Contractor shall at his own expense repair any damage to . . . buildings or other property of the Sanitary District or other owners or work under construction by other contractors. . . .’” And it would appear from the brief filed by the plaintiffs that by the covenants of the contract the contractor assumes three types of liability: “(1) one, to rebuild or repair damaged property — a liability to the owner of the damaged property; (2) two, ‘to pay all damages for injury to real or personal property or for any injury or death sustained by any person’ — a liability to the injured party, in the ordinary use of language and (3) three, to protect the Sanitary District from loss occasioned to it by suits or claims against the Sanitary District by virtue of its direct liability for injuries resulting from the sewer construction.” And then they set out the various provisions which are contained in the contract between the Sanitary District and the defendant S. A. Healy Company upon the question of payment of damages, and that the contractor shall “at his own expense” repair any damage to property as well as to persons, and the sole question before us is whether the provisions are intended for the benefit of third parties.

It appears from section (5) of the contract that:

“The contractor shall at his own expense repair any damage to . . . buildings or other property of the Sanitary District or other owners.” Section (17) refers again to the contractor’s liability for repairs, and requires replacement by the contractor of lawns, trees, shrubs and plants upon “private property.” Section (47) requires the contractor, in case of injury by blasting “to any portion of the sewer or other structure or to the material supporting same,” to rebuild the sewer or other structures and to replace the material surrounding or supporting same, “without extra payment therefor.” It would appear from these provisions that the contractor has agreed to repair or rebuild injured properties at his own expense, and no showing of negligence is necessary to support that cause of action.

We believe there is sufficient in the statement of the plaintiffs to justify the court in denying the motion to dismiss.

The remaining question is as to the liability of the Sanitary District of Chicago, and from the provision of the statute under which the Sanitary District was incorporated, the district shall be liable for all damages within the district by reason of the construction, enlargement or use of any channel, drain, ditch or other improvement. Ill. Rev. Stat. 1937, ch. 42, par. 339, sec. 19 [Jones Ill. Stats. Ann. 122.128]. This is in addition to the constitutional provision relating to damages for injuries to real property by a public improvement.

The Sanitary District of Chicago obtained its right upon the street in question under and by virtue of the contract ordinance with the city of Chicago passed July 22, 1935, which the district accepted in writing. This ordinance recited that authority was thereby granted to the district to construct the intercepting sewer on Racine avenue upon condition that the city shall not be held responsible in any manner for the construction of the same and- that the district shall indemnify and hold harmless the city of Chicago from any and all claims for damage to real or personal property and injuries or death suffered by persons by reason of the construction of the sewer and shall restore the street to its former usefulness as soon after the completion of the construction work as is practicable. It seems but reasonable to consider that the ordinance was no lawful grant to the district to damage the property of the abutting owners. When the property of such owners is damaged, such owners may recover for the injury to their property which was the result of the acts alleged Aldis v. Union Elevated R. Co., 203 Ill. 567; Metropolitan West Side El. R. Co. v. Dick, 87 Ill. App. 40; Capital Electric Co. v. Hauswald, 78 Ill. App. 359. It would seem from the allegations of the complaint that the Sanitary District of Chicago was a proper party defendant in this action. This same conclusion will apply to the cause of action of the plaintiffs against the defendant city of Chicago, and the complaint sets forth that it was necessary in order to construct the sewer that rock be blasted in the trench. The city, by the contract ordinance with the Sanitary District, stipulated that work under the ordinance should be done “as may be agreed upon” by the commissioner of public works of the city and also stipulated that the district indemnify the city against all claims for damages by reason of the construction of the sewer.

In the case of Macer v. O’Brien, 356 Ill. 486, the city, by ordinance had granted authority to the Sanitary District to construct a sewer on LaYergne avenue. In that case it was alleged as in the instant case that dangerous work was carried on in a public street of the city and that with knowledge of such a nuisance being committed the city permitted the work to go on. In the instant case it was alleged also that high explosives were being used in excavating. Under such circumstances the rule as stated in the Macer case is that the city is liable no matter how carefully the work is performed, and although the acts complained of are performed by an independent contractor. See also City of Chicago v. Murdock, 212 Ill. 9.

In the Macer case the court said:

“The rule is well settled that a municipality is bound to exercise its control over streets for the protection of the public. That duty extends to abutting property. If the municipality permits work intrinsically dangerous to be done in a street it is liable for any resulting damage to the public or to abutting property even without notice that such damage is being done, and it cannot escape liability for damages occasioned by a dangerous method employed in work not of itself intrinsically dangerous if it has notice of such dangerous method and thereafter fails to prevent it.”

The further question to be considered is that by the motions to dismiss of the defendants Healy Company and the Sanitary District of Chicago they question the desirability of the action as presented in the instant case, for the reason that material difficulties would present themselves in the trial of the case with a large number of plaintiffs. However, the method of trial is largely within the discretion of the trial court. If ‘‘upon the application of any party” it appears that joinder of plaintiffs may embarrass or delay the trial “the court may order separate trials or make such other order as may be expedient” and judgment may be given for “one or more of the plaintiffs.” (Civil Practice Act, section 23.)

It is also suggested that section 44 of the Civil Practice Act permits a broad joinder of causes of action “but the court may, in its discretion, order separate trials of any such causes of action”; and by section 51 of the Civil Practice Act “an action may be severed, and actions pending in the same court may be consolidated as an aid to convenience, whenever it can be done without prejudice to a substantial right.” And with the joinder of parties and causes of action, it was necessary to provide that “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” (Civil Practice Act, sec. 50.)

From section 23 of this act, upon which the action is based, it appears that “if upon the application of any party it shall appear that such joinder may embarrass or delay the trial of the action, the court may order separate trials or make such order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief.”

As we have already indicated, this provision of the statute puts the method of trial within the power of the court having the matter before it.

Plaintiffs call our attention to the case entitled In re City of New York, 237 N. Y. 275, 142 N. E. 662, which involved a condemnation proceeding in which one party claimed title to all the property upon the basis of a royal grant, except as to 3 of 22 parcels, title to which was claimed to be derived from the same source. The court severed the proceeding as to title by royal grant, and tried this issue separately. The New York Court of Appeals said that this was proper in that a decision favorable to title by royal grant would make practically unnecessary the presentation of evidence by 18 claimants. Citing section 96 of the New York Civil Practice Act, the court said that: “The severanee of issues in a cause or proceeding is not unknown to the law.” (237 N. Y. 275.) And in the case of Schultz v. Gilbert, 300 Ill. App. 417, 20 N. E. (2d) 884, Mr. Justice Stone, concluded his opinion with the statement that “the same act which allows innumerable plaintiffs to be joined in one law suit, also gives the power to the court to sever the issues when in the interest of justice such severance seems expedient. ’ ’ So that from a consideration of the questions that are disturbing the defendants, we find that the trial court has control of the subject matter that is being discussed by this court, and may take such steps as will sever the parties or the issues and protect the several interests of the parties to the litigation. We believe from the allegations contained in the complaint that the court erred in sustaining the defendants’ motion to dismiss and in entering the judgment that was entered, and therefore, the cause is reversed and remanded to the trial court with directions to set aside its order to strike the complaint and to dismiss the suit; to overrule the motions of the several defendants to dismiss the suit, and to direct that the defendants answer the complaint within a reasonable time, as may be directed by the trial court.

Reversed and remanded with directions.

Denis E. Sullivan, P. J., and Burke, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Jtjstice Riess

license: Public Domain

text:
    George G. Clark, Appellant, v. Abraham L. Hall et al., Appellees. George G. Clark, Appellant, v. George M. Kincaid, Receiver, and H. O. Feldmann, Administrator of Estate of Abraham L. Hall, Deceased, Appellees.
    Gen. No. 9,184.

      Heard in this court at the April term, 1939.
    Opinion filed October 19, 1939.
    Opinion modified and rehearings denied January 2, 1940.
    F. K. Lemon, of Clinton, for appellant.
    Grover W. Watson, of Farmer City, for appellee H. O. Feldmann.
   Mr. Presiding Jtjstice Riess

delivered the opinion of the court.

Petitioner George G. Clark has appealed from a decree of the circuit court of DeWitt county, Illinois, wherein the court ordered payment in full of a certain deficiency decree and interest thereon to said appellant, but denied appellant’s claim for reimbursement for taxes personally advanced by him during the period of receivership, with interest thereon, out of the proceeds of rents and profits arising from certain farm lands in said county which proceeds were then in the hands of one George M. Kincaid, receiver, theretofore duly appointed by said court in a mortgage foreclosure proceeding in which Clark was complainant mortgagee and one Abraham L. Hall, mortgagor, since deceased, and certain of his judgment creditors were made defendants. A cross appeal was also taken by defendant H. 0. Feldmann, administrator of the estate of said Abraham L. Hall, deceased, from the order pror viding for payment in full of said deficiency decree of appellant Clark out of the funds reported by and remaining in the hands of said receiver for distribution. Certain other errors are assigned concerning the order of distribution of the residue of said fund, which will be considered herein.

Appellant Clark, an attorney at law, residing* at Plymouth, New Hampshire, had filed the foreclosure suit in 1931 in order to enforce a deed of trust or mortgage lien on 240 acres of land situated in DeWitt county, Illinois, securing* an indebtedness due Clark from said Hall on promissory notes in an amount somewhat in excess of $29,000. On December 12, 1931, the court appointed George M. Kincaid, trustee named in the deed of trust, as receiver to collect rents and profits pendente lite. A decree of foreclosure was later entered in favor of the plaintiff mortgagee. The premises were sold at public vendue by the master in chancery to the mortgagee for a purchase price of $29,583.77 on May 14, 1932, and a master’s certificate of purchase was issued and delivered to him subject to statutory rights of redemption. A deficiency of $2,285.85 was reported by the master in chancery, and a decree was entered against Hall, then a widower, and in favor of Clark for that amount.

The decree further set forth five judgment liens against defendants named in the foreclosure proceedings aggregating approximately $5,750, which judgments had been entered of record in said county during the year 1931 and upon which executions were duly issued and returned, whereby the same became liens subject to the prior lien of mortgagee Clark upon the mortgaged premises. Hall died intestate subsequent to the entry of the decree of foreclosure, leaving him surviving Eva L. Eeeser, his daughter and only heir at law, who, with her husband, were made party defendants in all proceedings.

The mortgaged premises were not redeemed by the mortgagor or any one holding under him or by any judgment or deficiency creditor during the 15 months statutory redemption period. Upon the expiration thereof, letters were repeatedly written to Clark by his counsel of record and by the receiver requesting that he surrender his certificate of purchase and receive a master in chancery’s deed to the premises. These letters, although received, were ignored by Clark and his certificate of purchase was not surrendered in exchange for a master’s deed until July 5, 1938, which was shortly before the expiration of the five-year statutory period of limitation for procuring a deed in exchange for his certificate of purchase.

The receiver continued to collect the rents and profits arising from the farm during said redemption period and each year thereafter until July 5, 1938, when the master’s deed was delivered. During this period, he had acted as agent for Clark in other loan transactions in the State of Hlinois, but had made no report to the court as receiver in the above foreclosure proceedings. On the sixth day of September, A. D., 1938, he filed a verified itemized report of receipts and disbursements as such receiver covering the respective years of 1932 to 1938, inclusive, showing a gross amount of rents and profits received from the farm of $10,974.44 and credits of $1,083.35, leaving a balance of $9,891.09 in the hands of said receiver for distribution.

The receiver’s report asked for an order approving the same and for the allowance of receiver’s and attorney’s fees for services performed and for directions for distribution of the remaining funds in his hands to the parties found by the court to be entitled thereto. The report did not specifically separate the receipts during the redemption period from those subsequently received, but reported receipts and expenditures for the respective calendar years of such receivership. Out of this amount, the court allowed the receiver $640.46 for his services and $438.98 for the services of his attorney, the allowance of which amounts are not questioned on appeal. A balance of $8,811.65 remained for distribution. On November 3 and 4, 1938, the appellant and appellee, respectively, also filed petitions for distribution of such fund, each making claim thereto. The court directed the receiver to first pay the above amounts allowed as receiver and attorney fees; then directed the receiver to pay the appellant the full amount of his deficiency decree with interest in the sum of $3,024.95 and that he pay the balance of $5,786.70 to appellee (cross appellant) Feldmann, as administrator. Appellant’s petition for the payment of the whole or any part of real estate taxes and interest advanced by him for the years 1932 to 1938, inclusive, in the total sum of $2,343.56 was denied by the court.

Appellant Clark assigned four errors, viz.: Failure of the court to direct payment to him of all funds in the hands of the receiver; failure to direct payment from such fund to appellant reimbursing him for taxes advanced on the foreclosed premises between the date of the redemption period and the date of appellant’s deed from the master- in chancery; error in directing remaining funds in the hands of the receiver after payment of his- compensation and attorney fees and the deficiency decree of appellant to be paid to appellee Feldmann as administrator, and in failing to direct such funds to be paid, if not to the appellant, to the heirs at law of said Abraham L. Hall, deceased, and not to his administrator.

Appellee Feldmann, as such administrator, assigned the following cross-errors: Failure of the court to direct the receiver to recast his accounts by showing net rents received prior to the expiration of the redemption period and net rents collected by him subsequent thereto and before delivery of the deed; in denial of appellee’s motion to modify stipulation as to payment of appellant’s deficiency judgment so as to make same payable solely from net rents accruing prior to expiration of the redemption period; in denying motion to vacate order directing the receiver to pay $3,024.95 in satisfaction of appellant’s deficiency judgment and in ordering payment thereof; in denying motion to apportion receiver’s commission and attorney’s fees and costs ratably between the net rents which accrued prior to expiration of redemption period and the rents accruing thereafter; in considering certain alleged stipulations concerning conclusions of law as binding upon the parties to this proceeding.

Certain stipulations were entered into by the parties at the time of the hearing on November 4, 1938, reciting that insofar as the pleadings and exhibits consisting of the mortgage and notes and foreclosure proceedings were pertinent to the issues, the same were to be considered by the court as in evidence. Additional stipulations as to the amount of the rents collected, taxes paid, interest accruing if the same were chargeable, amount of deficiency and interest, date of death of defendant Hall, the appointment of an administrator and certain other facts not in controversy were recited into the record either by counsel or by the court at the time of the hearing.

The trust deed contained provisions for the appointment of a receiver and pledged the rents and profits arising during the redemption period toward the payment of the indebtedness and contained the usual provision for repayment of taxes advanced by the mortgagee. Under the latter provision whereby the delinquent taxes, penalties and costs so advanced in default of payment thereof by the mortgagor became a part of the mortgage indebtedness secured by the deed of trust, and in the decree of foreclosure finding the amount of the mortgage indebtedness, there was included the sum of $461.50 as delinquent taxes so advanced by appellant and interest accruing thereon prior to March 12, 1932, when the decree was entered. The decree further recited “that the total amount due the complainant including principal and interest on said three notes and money advanced for the payment of taxes and interest thereon, is the sum of $29,583.77,” to which solicitor’s fees and costs were added, resulting in the mortgage sale of the premises and the deficiency decree for the unpaid remainder, as herein-above recited.

It is conceded by the plaintiff appellant in his brief that under the laws of Illinois he has no interest in the rents and profits collected by the receiver subsequent to the period of redemption, aside from his alleged claim for payment therefrom of his deficiency judgment and of taxes advanced by him subsequent to the expiration of the redemption period, with accrued interest thereon.

In raising the questions assigned as cross-errors, the defendant contends that the purported stipulation recited into the record by the judge concerning the payment of the gross amount of the deficiency judgment and interest out of the receipts of rents and profits was a purported stipulation as to law and not as to facts, was not binding upon and could not be entered into by the parties and that, therefore, the trial court erred in denying appellee’s motion to set the same aside and confine the stipulation in relation thereto to the redemption period and in not ordering a recasting of the account of the receiver to show the facts arising under the issues set up in the pleadings and contended for by said appellee.

We have carefully examined both the original and supplemental abstracts and record herein, and we are of the opinion that in view of the issues arising under the pleadings and of the questions of law to be determined in the disposition thereof, that the motion of the defendant to require the receiver to recast his accounts and show the amount of rents and profits received before the expiration of the redemption period rather than the gross amount received or accruing for that entire calendar year should not have been denied by the trial court; that the purported stipulation concerning the payment of the amount of deficiency judgment and interest out of the amount in the hands of the receiver does not specifically indicate whether the same was to be paid out of the gross receipts or out of that portion accruing prior to the expiration of the redemption period and is in that respect somewhat vague and ambiguous; that said purported stipulation should have been modified upon motion of the appellee so as to be more specific and as to be responsive to the issues arising under the petitions and pleadings, and we are further of the opinion that the same undertook to dispose of a question of law arising under the pleadings by a purported stipulation that denied the defendant’s right to present legal issues arising under the petitions, and thereby decreased the distributive shares properly payable to the heir and creditors of the deceased.

In Swift & Co. v. Hocking Valley Ry. Co., 243 U. S. 281, 61 L. Ed. 722, 37 Sup. Ct. 287, the Supreme Court, speaking through Justice Brahdeis, said: “ ‘It is stipulated by the parties hereto that the track on which the cars in question were placed was the private track of Swift and Company. . . . ’ For the record discloses, contrary to the statement in the stipulation, that the track in question was not a ‘private track.’ ” It was held that “If the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; . . . ‘The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. ... No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard. ’ ”

This principle has been recognized by the courts of Illinois in People ex rel. Harvey v. Vaughan, 282 Ill. 163, 118 N. E. 479, and in People ex rel. Reinhart v. Herrin, 284 Ill. 368, 120 N. E. 274, and we deem the same to be applicable to and controlling under the recitals set forth in the record and abstract herein.

The rents and proceeds arising from the mortgaged premises prior to the expiration of the redemption period were pledged to the mortgagee, and the net amount of such rents and proceeds were properly payable to the mortgagee, insofar as the same would extend in payment of his deficiency judgment. Beyond that amount, his claim would only be that of a common creditor. Powell v. Voight, 348 Ill. 605, 181 N. E. 403; Schaeppi v. Bartholomae, 217 Ill. 105, 75 N. E. 447; First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140, 51 N. E. 200; Williams v. Williston, 315 Ill. 178, 146 N. E. 143; Bogardus v. Moses, 181 Ill. 554, 54 N. E. 984.

The amount of real estate taxes advanced and paid by the mortgagee during the redemption period was not properly chargeable against the rents and profits in the hands of the receiver, and the courts of review in this State have so held in a number of cases. Appellants, in their argument, have stated that “the law is probably against our contention during the period of the fifteen months equity of redemption,” conceding that the principles announced in Davis v. Dale, 150 Ill. 239, 37 N. E. 215, and Builder’s Bond & Mortgage Co. v. Bickley, 274 Ill. App. 638, are controlling on that issue. In the latter case it was held that money in the hands of the receiver during the redemption period, after foreclosure, sale and entry of deficiency decree, should be applied in reduction of the deficiency decree, and that it was error to order the receiver to pay taxes. Wolf v. Fischman, 273 Ill. App. 237. The general power of receivers to pay taxes to prevent a superior lien being established is discussed in Builder’s Bond & Mortgage Co. v. Bickley, supra, and it was there held by the court (p. 646) that: “ ‘It is also the rule in this State that taxes upon property foreclosed cannot he paid hy the receiver after sale. Reeve’s Illinois Law of Mortgages, vol. 2, sec. 564. This distinction was discussed and observed in Bothman v. Lindstrom, 221 Ill. App. 262; also in Stevens v. Hadfield, 196 Ill. 253, and Davis v. Dale, 150 Ill. 239. The reason for this is that the owner of the equity of redemption is not chargeable with payments of taxes for the purchaser, except in case of redemption as provided by statute. ’ ” But it is earnestly contended by the appellant that the rents and profits collected by the receiver subsequent to the expiration of the redemption period and before the mortgagee purchaser surrendered his certificate of purchase and procured the master’s deed to the premises on July 5, 1938, was properly chargeable with both the payment of the deficiency judgment and of all taxes advanced by him during that period. In this contention of the appellant, we cannot concur. Until the execution and delivery of the master’s deed, which may be procured by him at any time within five years after the expiration of the redemption period by surrender of his certificate of purchase, the title to the premises, together with right to enjoy the rents and profits arising therefrom, remain in the title holding-mortgagor or those who may have acquired title or right thereto through him.

In Allison v. White, 285 Ill. 311, 120 N. E. 809, it is clearly pointed out that there was no distinction between the rights of the mortgagor as owner of the title, to the rents and profits before and after the expiration of the redemption period until the purchaser receives the deed, before which time no title or right to the rents and profits vests in him. There, one Isabelle Allison held title as a life tenant and no redemption of the mortgaged premises had been made. The court said (p. 321): “Until the execution of the master’s deed she was still the owner of the life estate, subject, to the incumbrance of the sale. She was entitled to the possession and control of the property. The certificate of sale conferred no title to the land. It was only evidence of a right to obtain the title, and as against every right except that right, and until it was exercised and a deed made, Isabelle Allison was the owner of the life estate. By failing to redeem from the master’s sale she did not lose her title, and if the master’s deed was not executed within the time limited by the statute she was then the absolute owner of the life estate. Lightcap v. Bradley, 186 Ill. 510; Schroeder v. Bozarth, 224 id. 310.”

In the case of Chicago Joint Stock Land Bank v. McCambridge, 343 Ill. 456, 175 N. E. 834, it is said (p. 460): “A sale under a decree of foreclosure of a mortgage extinguishes the mortgage and satisfies the debt secured by it to the extent of the purchase price received. It does not, however, convey the title, which remains in the mortgagor or his grantee until the expiration of the fifteen months’ period of redemption and until a conveyance by the master’s deed. (Bradley v. Lightcap, 202 Ill. 154; Schroeder v. Bozarth, 224 id. 310.) ” It is there further said (p. 461) : “Until the conveyance by the master the mortgagor or his grantee is entitled to the possession and use of the premises to the same extent as before the sale and may convey them as he chooses, bnt upon such conveyance by the master the grantee becomes vested with the complete title to the land, . . . including all crops growing or grown, matured or unmatured, and not severed from the land.”

Prior to the delivery of the master’s deed under a foreclosure sale, the purchaser acquires no title to the land, either legal or equitable, but merely the right to receive the redemption money or a master’s deed in case the property is not redeemed. Strauss v. Tuckhorn, 200 Ill. 75, 65 N. E. 683; Hack v. Snow, 338 Ill. 28, 169 N. E. 819; Klein v. Mangan, 369 Ill. 645, 17 N. E. (2d) 958.

The owner of the equity of redemption has the same estate in the land both before and after the sale under a foreclosure decree. Klein v. Mangan, supra; Hack v. Snow, supra.

In the case of Corsiglia v. Brown, 295 Ill. App. 611, 15 N. E. (2d) 603 (Abst.), it was expressly held that the owner of the equity of redemption in premises which had been sold at foreclosure sale was entitled to rentals collected by the receiver appointed by the court during an interval of 28 months elapsing between the end of the period of redemption and the issuance of the master’s deed as against the holder of the master’s deed and owner of the deficiency decree under the facts and circumstances therein recited.

We hold that the trial court did not err in denying appellant’s right to reimbursement of taxes which were voluntarily advanced by him during and subsequent to the redemption period and prior to the delivery of the master’s deed, until which time no right to rentals became vested in the purchaser.

We further hold that it was error to allow the appellant to receive any part of the rentals accruing after the expiration of the period of redemption and prior to the execution and delivery of the master’s deed as payment in whole or in part of his deficiency judgment. Only the net rentals accruing prior to the expiration of the redemption period were properly payable to appellant as a credit on his judgment.

That part of the rents collected by the receiver for the period between the expiration of the redemption period and the death of Hall, less its pro rata share of the expenses of the receivership, became a part of the assets of Hall’s estate, while that part of such income arising after the death of Abraham L. Hall and prior to the delivery of the master’s deed would properly go to the holder of the title, who was the heir of the deceased mortgagor, except insofar as any prior or valid subsisting lien may have existed against the same, if any, in favor of judgment or other lien creditors of the deceased properly asserting the same.

It appearing that the personal estate of Abraham L. Hall is insufficient to discharge all just demands against his estate, that part of such rents and profits in the hands of the receiver which would otherwise go to the holder of the title acquired as heir of the deceased mortgagor, should be paid to the administrator' of the latter’s estate to be first applied toward the payment of claims properly allowed and chargeable against his estate in due course of administration under the provisions of sec. 12, ch. 59, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 55.12], and the balance, if any, should be paid to said heir.

The reasonable costs and charges of the receivership, aside from those incurred prior to the expiration of the equity of redemption, are proper equitable charges against the funds remaining in the hands of the receiver.

The cause is reversed and remanded to the circuit court of DeWitt county with directions to proceed in accordance with the rulings of this court herein.

Reversed, and remanded with directions.


author: Justice Riess.

text:
    Joseph C. Gould, Appellee, v. Ross C. Swartz, Appellant.
    Gen. No. 9,192.
    Heard in this court at April term, 1939;
    opinion filed October 19, 1939;
    rehearing denied January 2, 1940.
    Frank K. Lemon and Grover W. Watson, for appellant; John Bedinger and George J. Smith, for appellee.
   Opinion by

Justice Riess.

“Not to be published in full.”


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Benjamin G. Kilpatrick, Appellee, v. Joseph Schmitt et al., Defendants, and Florence M. Woolley and William P. Doerr, Appellants.
    Gen. No. 40,576.

      Heard in the third division of this court for the first district at the February term, 1939.
    Original opinion filed October 25, 1939
    and rehearing opinion filed December 13, 1939.
    Ela, Grover & March, of Chicago, for appellants; Lyle H. Rossiter, of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This cause was before this court on a former appeal from an order vacating the first sale of certain premises. An opinion was filed on May 11, 1938, in said cause, being Gen. No. 39,907, 295 Ill. App. 620 (Abst.), dismissing the appeal for want of jurisdiction as no final order had been entered and no showing of damages had been made by the parties bringing the appeal. The facts presented for our consideration at this time are substantially the same as on the former appeal.

Intervening petitioners, Florence M. Woolley and William P. Do err, bring this appeal from the superior court and complain of the action of that court in denying their petition to vacate an order denying the prayer of their petition. The petition sought to have the court set aside an order to vacate the sale of certain premises at a foreclosure held by plaintiff.

The following statement of the case made by petitioners is agreed upon as being a fair statement. Some modifications have been made by the court, conforming to the facts.

Pursuant to the decree of foreclosure, the master in chancery held a sale of foreclosure on November 5, 1936, at which sale the highest bidder was Saul Plast who bid $15,600. The sale was approved by a court order entered on July 7, 1937, and certificate of sale issued to the buyer. Thereafter this sale was set aside and the order of July 7, 1937, approving the same was also set aside, both by court order dated October 8, 1937, and the purchase money ordered returned to the certificate holder and a new sale ordered. A second sale was held on July 15, 1938, at which a bid of $40,000 was made by Joseph Walhala, and approved on September 8, 1938. Florence M. Woolley and William P. Doerr who say they own all of the fee except 3/16 of the fee for the use of Esther Levy, and who also say that they are not liable as mortgagors, bring this appeal to reverse the orders of the superior court entered September 8, 1938 to vacate the sale of July 15, 1938, to reverse the order of October 8, 1937, and to reaffirm the order of July 7, 1937, so that the first sale will stand. Appellants request a reasonable time within which to exercise their right to redemption from said first sale.

It is agreed that the detail of the facts and the proceedings in chronological order with regard to this case are as follows:

On December 7, 1932, Benjamin Gr. Kilpatrick, as successor trustee on behalf of- the holders of first mortgage bonds, executed by Joseph Schmitt and his wife, aggregating an indebtedness of approximately $154,000 and secured by trust deed conveying real property located in Chicago, Illinois, at 5510-12 Cornell avenue, otherwise known as the Cornell hotel, filed his bill of complaint in chancery to foreclose the lien of said trust deed because of defaults in the payment of interest and certain principal prepayments.

A decree of sale was entered June 6, 1936. On November 5, 1936, Saul Plast bid $15,600 at the master’s sale, and this was approved by an order of court dated July 7, 1937.

On August 6,1937, one Helen Wells, by her attorneys, after due notice to all attorneys of record, filed a sworn petition alleging she was the owner of $6,000 of bonds secured by the Cornell hotel property, that the premises were worth $60,000 gross, that delinquent taxes amounted to $25,000 and that a bid of $15,600 over and above the amount of delinquent taxes was inadequate; that she would bid $25,000 if the sale of November 5, 1936 was set aside, and to guarantee said bid, offered to deposit $1,000 with the master in chancery to be forfeited if she failed to make a bid' of at least $25,000. This motion was entered and continued to September 13, 1937, without further notice, and on September 13, 1937, the motion was again continued to September 17,1937. On September 17,1937, the motion was continued to October 15, 1937.

On October 8,1937, an order was entered purporting to be on the petition of said Helen Wells, vacating the order of July 7, 1937, approving the master’s report of sale, and setting aside the sale of November 5,1936. The order of October 8,1937 also provided that the purchase money of $15,600 should be repaid to the holder of the certificate of sale on surrender of said certificate and that said master resell said premises.

On October 13, 1937, said Helen Wells filed a petition to set aside and vacate the order of October 8, 1937, and to reinstate the sale and order approving it. This petition was denied by the court on the day it was presented.

On October 20, 1937, appellants filed a sworn petition alleging ownership of the fee title to the property which they claimed they obtained from one Herbert W. Schmitt, a bachelor; that on May 6, 1937 by quitclaim deed an undivided % of said fee title was conveyed to William P. Doerr and on June 16, 1937 by quitclaim deed said Herbert W. Schmitt conveyed an undivided % fee title to Florence M. Woolley, of which 11/16 is held for her own use and benefit and 3/16 for the use and benefit of Esther H. Levy.

Petitioners further claim that the order of October 8, 1937 had been entered without notice in violation of rule 16 of the superior court rules and that the petition of Helen Wells, dated August 6, 1937, stated no legal grounds on which to vacate a sale; that appellants desired to redeem the property from the sale and prayed the sale be reinstated and the order of October 8, 1937 be vacated.

As before stated an appeal was taken to this court, being Gen. No. 39,907, wherein an opinion was filed by this court on May 11,1938, and said appeal was dismissed for want of a final and appealable order.

The appellants’ or interveners’ theory of the case is, that when the court approved the first sale, the rights of the parties to the litigation became fixed and could not be upset without a clear showing of fraud; accident or mistake in the sale, or in procuring the approval of the sale; that since no attempt was ever made by anyone to show any fraud, accident or mistake, it was error to vacate the sale of $15,600, regardless of how much more some offer 10 months later might be. Since appellants are owners of the right of redemption, but not liable for the payment of the deficiency judgment, the vacation of the first sale and approval of the second sale destroys the equity of redemption for practical purposes, or, at least, reduced its value $24,600. This is inequitable and contrary to the established law of Illinois.

We have made a diligent search of the record and it appears that on June 3, 1936, a decree of sale was entered and pursuant to the provisions thereof a public sale was held on November 5, 1936, at which time the premises were sold to Saul Blast for $15,600. On May 6, 1937, Herbert W. Schmitt, the then owner of the equity of redemption conveyed % of the property by quitclaim deed to William Doerr, one of the appellants, and on June 16, 1937, Herbert W. Schmitt conveyed % of the property by quitclaim deed to Florence M. Woolley the other appellant. No appearance was entered for these petitioners. We do not see how they were injured by the sale of property which was deeded some six or seven months before they even claimed to own it or have any interest in it. However, on July 15, 1937, they filed a petition asking that the order of confirmation be vacated because the purchaser had not paid the balance of the purchase price. When the purchaser paid the balance of the purchase price the petition was withdrawn. No formal appearance was entered or appearance fee paid by the appellants, nor was there any request that notice of motions be served upon their attorneys. Intervening petitioners as claimed owners of the equity asked in their petition, among other things, that a new sale be had. This request was granted by the court and intervening petitioners, appellants here, are now estopped from claiming error on the part of the trial court for having done that which they had requested it to do.

On August 6, 1937, one Helen Wells filed a petition setting forth that the sale price was grossly inadequate; that she was prepared to bid $25,000 for the property and to deposit $1,000 to guarantee the bid. The petition of Helen Wells was filed by order of court with leave granted to the parties to answer the petition within 30 days, and so far as we have been able to discover no answer was ever filed or objection made to this petition. The hearing on this petition was continued several times, the last being continued to October 15, 1937.

On October 8, 1937, an order was entered which vacated the order of July 7, 1937 approving the master’s report of sale and setting aside the sale of November 5, 1936 and which provided for the return of the purchase money to the holder of the certificate of sale. This order was approved by the attorneys for the plaintiff and the attorney who represented the purchaser and no one else.

On October 13, 1937, Helen Wells filed another petition alleging that she had previously filed a petition to set aside said order of confirmation of the sale; that an order was entered October 8,1937, vacating the sale, which order was entered without notice to her and that she now wishes to withdraw her petition of August 6, 1937 and to vacate the order of October 8, 1937. The court entered an order denying the relief prayed. No complaint is made by Helen Wells of this action.

When Helen Wells filed her original petition an order was entered granting leave to all parties to answer said petition within 30 days. The appellants filed no answer in opposition to the petition of Helen Wells, although they had been served with notice of the petition. The record does not disclose that anyone filed an answer in opposition to this petition to vacate the sale of November 5, 1936. The only person who could complain of the order of October 8, 1937, was Helen Wells and she has not appealed. Inasmuch as she obtained the relief she sought, doubtless she realized that she could not sustain an appeal from an order when she had obtained the relief asked. Williams v. Breitung, 216 Ill. 299; Gray v. Jones, 178 Ill. 169.

It might be said in passing that in all of the various petitions which were filed, no order was requested or entered by the court to make an issue thereon by ruling the interested parties to answer. One of the benefits of our system of common law pleading, in the main adopted by our Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 1 et seq.; Jones Ill. Stats. Ann. 104.001 et seq.], is that an issue shall be made by pleadings, to which evidence may be introduced. Otherwise, when evidence is offered it becomes very difficult to determine upon what theory, or as to what allegations or denials it is presented.

We wish at this time to reiterate that which we said when this cause was before this court on the former appeal, namely: “No certificate of evidence was presented and we must presume that the trial court had sufficient before it to justify the action taken by said court. It was the duty of the court to get the best price possible for this property and if in the court’s discretion it appeared possible to obtain $50,000 at the sale instead of the $15,600 for which the property was sold, and the purchaser consented to this, no one could have been injured thereby, neither the bondholders nor the owners of the equity.”

In the instant case no certificate of evidence or report of all the proceedings is presented to us, so that we must indulge the trial court in the presumption that there was sufficient evidence produced at the hearings to convince the court that the order he entered was proper and that he was meting out justice as between the parties. In addition to this we do not see how the plaintiffs-appellants can complain when the purchaser of the property consented to the entering of the order setting aside the sale.

It is admitted and quite apparent, that the only purpose of the appellants here is to have the original sale of the premises by the master for the sum of $15,600 reinstated, so that they may redeem the premises at a less sum than they would have to pay were this not done. The equity of their claim does not appeal to a court of equity. The record does not show how much they paid for their so-called fee in the transfer to them, nor does it show any loss by them by reason of the court’s action, but the record does show that there are approximately $154,000 represented by bondholders who invested their money and purchased the bonds for the building of this hotel. Necessarily their interests were in the mind of the trial judge when he was attempting to obtain in the sale of this property an amount somewhere near the approximation of its value. As before stated the purchaser at the first sale consented and accepted the return of his money, so we cannot see how appellants are injured.

Inasmuch as this record shows no rights or equities of the appellants which have been denied to them, we think the action of the chancellor was correct and therefore the orders and decree are hereby affirmed.

Orders and decree affirmed.

Hebel and Burke, JJ., concur.

On Rehearing.

On a petition for a rehearing which was filed in this court, we have re-examined the points made by the appellants as to law and the facts. Appellants contend in their point 8, that an error was made in the opinion heretofore filed. In our former opinion on page. 7, paragraph 2, line 6, the words, “ plaintiffs-appellants ” appear, whereas, this should have read “Florence M. Woolley and William P. Doerr.” To that extent the original opinion is modified.

As to the other points raised in the petition for rehearing this court has decided to adhere to its former opinion filed herein on October 25, 1939.

Affirmed as modified.

Hebel and Burke, JJ., concur.


author: Presiding Justice Denis E. Sullivan.

text:
    Rembrandt Lamp Corporation, Appellee, v. Tyne Company, Appellant. Milwaukee Valve Company, Appellee.
    Gen. No. 40,771.
    Heard in third division, first district, at June term, 1939;
    opinion filed December 13, 1939;
    rehearing denied January 8, 1940.
    Owens & Owens, for appellant; Jacobson, Merrick, Nierman & Silbert, for certain appellee; David Silbert and Robert B. Shapiro-, of counsel; Warren B. Buckley, for certain other appellee; James A. Velde, of counsel.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


author: Presiding Justice Dove.

text:
    Carrico and Wilgus, Inc., Appellee, v. C. E. Freeman, Appellant.
    Gen. No. 9,336.
    Heard in this court at October term, 1938;
    opinion filed December 15, 1939.
    Andrews & Essington, for appellant; Shultz & Reid, for appellee.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”


author: Justice Huffman.

text:
    Roland K. Ross, Administrator of Estate of Gordon Lee Ross, Deceased, Appellee, v. Russell Crank, Appellant.
    Gen. No. 9,468.
    Heard in this court at October term, 1939;
    opinion filed December 15, 1939.
    Champion & Gaskins, for appellant; E. V. Champion and F. J. Lee, of counsel; Herget & Hoffman, for appellee; Roscoe Herget, of counsel.
   Opinion by

Justice Huffman.

“Not to be published in full.”


author: Mr. Justice Huffman

text:
    Armien Eilts, by George R. Eilts, His Next Friend, and George R. Eilts, Appellees, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 9,500.

      Heard in this court at the October term, 1939.
    Opinion filed December 15, 1939.
    Charles A. Helsell, of Chicago, and Barnes & Magoon, of Lacon, for appellant; V. W. Foster and E. C. Craig, both of Chicago, of counsel.
    Wallace J. Black and Kenneth W. Black, both of Peoria, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

On May 1, 1938, appellee Armien Eilts, and another boy named John Monser, drove from the city of Wenona to the city of Toluca, where they spent the afternoon. It was on Sunday and Armien Eilts was using his father’s automobile. On the way back, smoke was encountered upon the highway due to burning grass along the side of the road and upon the right of way of defendant railroad company. This was shortly before 5 o’clock in the afternoon. The Monser boy, who was riding with appellee, states that he was riding in the front seat, on the right of appellee, with his feet extended outside the car through the open window; and that as they approached the place upon the highway where the smoke was across the road, he removed his feet from the window, closing same, in order to keep the smoke out of the car. While driving along the highway at this place, the car Eilts was operating collided with the rear of a car which was proceeding in the same direction.

The driver of the car brought suit against appellant by his father, as next friend, for personal injuries sustained in the collision, and the father joined therein to recover for damages to his automobile. Appellant prosecutes this appeal from judgments rendered on verdicts in favor of the plaintiffs.

About one and a half miles south of Wenona, U. S. highway 51, and State highway 17, meet. Highway 51, runs north and south and parallels appellant’s track on the east. Highway 17, comes from the west and as it approaches highway 51, it branches north and south to form a “Y.” This is the place near which the accident happened and is referred to in the record as the “Y.” A gravel road comes from the east to intersect highway 51, at the “ Y.” The accident happened on this gravel road a short distance from its intersection with highway 51. It appears that a fire had spread through the grass and vegetation along the public highways and along appellant’s right of way where they meet at this “Y.” Appellees maintain that the fire started from sparks emitted from one of appellant’s engines. It appears from the testimony of appellees’ witness Hess, who is towerman, agent, and telegrapher at the junction of appellant’s track with the New York Central track, a few miles south of the “ Y, ” that the only train of appellant that passed the place in question on that day, prior to the origin of the fire, was a freight train going north, at about 10:30 in the morning.

Appellees have three witnesses who drove past the place in question, ranging from 11 o ’clock in the morning to 1:30 o’clock in the afternoon. They saw the fire. Appellant’s witness, Carpenter, passed the “Y” at about 9 o ’clock in the morning. As he drove along the highway he saw a man burning grass and weeds on the side of highway 51, between the railroad track and the hard road. He states the man was Charles Nodine. On his return that afternoon at about 3 o’clock, he saw the fire still burning along this territory and says he drove through smoke on the highway as he passed. Appellant’s witness, Cleve Franklin, states that he was section foreman for appellant; that he was driving his car on the day in question; that about 5:30, in the afternoon he arrived home and saw the smoke from this fire; that he went to see what it was, and found fire burning on the right of way of appellant’s track and along the sides of the highways at the “Y.” He saw appellee’s car at the side of the road. Irving Nodine drove by the “Y” at about 6 o’clock in the morning on the day in question. His brother, Charles Nodine, was riding with him. Charles left the car at the “Y. ” He farmed some of the land situated in the territory included within the “ Y. ” Charles Nodine testifies that on this morning he set fire to dead grass and vegetation on the east side of appellant’s right of way, north of the intersection at the “ Y”; and that he did not stay to extinguish the fire.

Appellant introduced evidence by the engineer and fireman of the engine that went north over its tracks on the morning in question. The engineer states that he passed the “Y” that morning sometime between 9 and 10 o’clock; that his engine was properly equipped with a spark arrester, and that it was in good working order. He described such equipment and states that his engine was not throwing any sparks. The fireman states that no sparks were being emitted from the smoke stack of the engine that morning; that the spark arrester was in good repair and working properly.

Appellees urge sec. 54, of ch. 114, Ill. Rev. Stat. 1939, [Jones Ill. Stats. Ann. 114.090] relative to appellant keeping its right of way free from dead grass, weeds and other dangerous combustible material, and that by virtue of such provision of statute, appellant is liable for damages resulting from a fire started by sparks emitted from its engines. However, in this connection the burden is on the plaintiff, in such actions, to prove that sparks or cinders from the engine started the fire in question. Although such proof may not be positive in its character, yet it should be sufficient to fairly establish that the engine did emit sparks from which it was possible for the fire to originate and that such fire did probably originate from that cause and from no other. First Nat. Bank v. Lake Erie & W. R. Co., 174 Ill. 36, 43, 44; Harts v. Chicago & Alton R. Co., 184 Ill. App. 123, 126; O’Connor v. Aluminum Ore Co., 224 Ill. App. 613, 619.

The above section of ch. 114, was enacted in 1874. That was long prior to modern highways, automobiles, and the many opportunities for fire to start in the grass and vegetation that grows along the roadside and which are so common today, and which are in no way connected with the operation of railroads. The changes incident to the last 65 years, demand a reasonable construction of this section of the statute. The law must maintain its power of adaptation. An ever expanding future has produced new conditions to which a court cannot close its eyes. Locomotives have undergone vast improvements since the belching Pegasus of 1874. They are now equipped with modern spark arresting devices, while individuals on the open road, feel under no constraint in their conduct toward the origin of fires, which may quickly spread in all directions.

The facts in this case are not similar to those that existed in such cases as Atwood v. Chicago M. & St. P. Ry. Co., 313 Ill. 59, and Chicago & Alton B. Co. v. Quaintance, 58 Ill. 389. In those cases, although the origin of the fire was unknown, yet the evidence afforded no possible theory for the origin of the fire except by sparks emitted from the engine, and under such circumstances the origin of the fire was held to be a question for the jury. In this case the witness, Carpenter, on the morning in question, before appellant’s train passed the “ Y,” saw Charles Nodine burning weeds on the east side of U. S. highway 51, near the “Y.” Charles Nodine admits starting a fire north of the intersection of the “ Y,” and east of appellant’s track. He says he started it for the purpose of burning dead grass and vegetation; that it was burning when he left; and that he did nothing to extinguish it. No. one saw the origin of any other fire on that day. There is no evidence of the origin of any fire near this place other than that set by Nodine.

Appellees’ witnesses who later in the day saw the fire burning, have no knowledge of how it originated. The only engine of appellant company that passed the “Y” on that day prior to the origin of the fire, passed at about 9:30 in the morning. The accident did not happen until 5 o’clock in the afternoon. The fire had been burning for an extended period of time prior to the accident because, the proof shows that it had burned over a large area of ground adjacent to the “Y,” and on both sides of appellant’s right of way, and along the sides of the highways.

In the state of the record we do not consider ap-pellee’s evidence sufficient to establish a prima facie case of negligence against appellant. There is no evidence showing, or tending to show that the engine in question did throw sparks and that the fire was probably caused by such sparks. If the fire was started by the act of another, and not in connection with the operation of the railroad, appellant is not liable. Illinois C. R. Co. v. Oswald, 338 Ill. 270; Sycamore Preserve Works v. Chicago & Northwestern Ry. Co., 366 Ill. 11, 17, 20; reversing 284 Ill. App. 445.

The judgment herein is reversed and the cause remanded.

Reversed and remanded.