author: Mr. Justice Kiley

text:
    Clarence Penwitt, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,839.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed June 24, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Russell Bundesen and L. Louis Kar-ton, Assistant Corporation Counsel, of counsel.
    Kamin & Kamin and Maurice A. Frank, all of Chicago, for appellees; Alfred Kamin, of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action for personal- injuries to plaintiff. The jury returned a verdict in his favor for $2,500. Defendant’s motions for a directed verdict and a new trial were overruled and judgment entered on the verdict. The City has appealed.

On June 26, 1937, at about 10:45 a.m., Clarence Pen-witt, 34 years old, was injured by an automobile in Green street, Chicago. At the time of the injury and before, for several blocks, plaintiff was seated on the cross-bar .of a bicycle of an acquaintance Hendricks who was propelling the bicycle and had volunteered to take plaintiff home. Plaintiff was seated between the saddle and the handle-bars with both feet on one side of the cross-bar, held up and forward at an angle in order to avoid Hendrick’s knee as it rose with the pedal. In this position plaintiff was seated between the arms of Hendricks whose hands were on the handle-bars and who was seated in the saddle. As they entered the 6300 block in Oreen street, going north, they heard a horn blow and turned to see what it was. Automobiles were parked solidly on both sides of the street and as they turned, plaintiff saw an automobile approaching in the center of the street from the rear, and Hendricks steered to the right to within 3 or 4 feet of the parked cars. They traveled for some distance in that position until the front wheel of the bicycle dropped into a hole in the street and plaintiff was thrown from the cross-bar into the path of the automobile which struck him as it was passing. Plaintiff received a. comminuted fracture of the upper left arm. The hole which the bicycle struck was about 2 feet wide, 3 feet long and 5 or 6 inches deep, and the driver of the automobile, plaintiff’s witness, had 5 or 6 weeks before seen and struck the hole. The only evidence introduced by the City was section 46 of the Chicago Revised Uniform Traffic Code, making unlawful the carrying of any other person upon the handle bar, frame or tank of any bicycle. The plaintiff seems to admit that he was violating that section.

The only question in the case is whether the plaintiff was guilty of such contributory negligence, as a matter of law, as should have caused the trial court to direct a verdict for the defendant.

The City contends that on the undisputed facts, all reasonable minds will agree that the plaintiff’s injury was the result of his own negligence and that there are no inferences of plaintiff’s due care that can be drawn from the evidence. We shall look to the evidence to determine whether there is any evidence in the record which, with the legitimate inferences that may be reasonably and legally drawn therefrom, tends to show plaintiff’s due care. If any such evidence is present, the plaintiff must prevail.

The defendant refers us to cases which hold that one riding a bicycle in the City must assume that the street is not perfectly smooth; that where an occupant of a vehicle contributes by his negligence with that of the driver to the accident, he may not recover, and that plaintiff should have looked forward while being driven and that if he had looked forward he would have seen the hole in the pavement. These cases are not helpful for it was not a question of the street’s smoothness, but of a hole 3 feet long and 2 feet wide and 5 or 6 inches deep; there is no claim or any evidence of negligence on the part of Hendricks; and, as will later appear, the evidence and inferences indicate that had plaintiff looked and seen the hole he would not have been any better off. We agree with the contention of the City and the rule set forth in Linehan v. Morton, 221 Ill. App. 70, that Hendricks and plaintiff both had a duty to use greater care than if plaintiff were not riding as he was. In connection with this last observation, the record does not disclose any evidence which proves, or from which an inference is justified, that Hendricks and ■plaintiff were not exercising reasonable care for their own safety under the circumstances. The defendant says that Hendricks and the plaintiff were bound to anticipate that the street might not be smooth, or that a defect in the pavement might cause the bicycle to fall. The plaintiff was not bound to anticipate negligence on the part of the City.

The defendant says that both plaintiff and Hendricks were violating an ordinance of the City of Chicago and that it “would seem” that violation of the ordinance was contributory negligence per se. The fact alone that plaintiff was violating an ordinance of the City does not bar his right to recover unless the violation proximately contributed to the accident. Streeter v. Humrichouse, 357 Ill. 234. A consideration of the circumstances of this accident, having in mind the width of the street, about 25 feet, with cars parked solidly on both sides; plaintiff sitting on the cross-bar with both feet on one side and extended ont and forward; an automobile passing at about the' center of the street, leaving a comparatively narrow path through which Hendricks and the plaintiff had to pass, and the presence of the hole in that path; leaves little room for doubt that the hole in the street was the proximate cause of the accident and the presence of the plaintiff on the cross-bar, simply a condition which made possible his propulsion from the bar into the path of the automobile. Where the facts, as here, show that plaintiff’s unlawful act furnished only a condition and not the proximate cause, the question of his due care was properly submitted to the jury. Streeter v. Humrichouse, 357 Ill. 234. Defendant argues that the plaintiff not only merely failed to produce evidence of due care, but that his own evidence proves his contributory negligence. We have said that the question is whether the conduct of the plaintiff contributed to the proximate cause of the injury. Plaintiff had ridden in the same position on the bicycle for several blocks before the accident occurred. Defendant says that plaintiff was further guilty of contributory negligence “in having blindly entrusted his safety to a man he barely knew” and also in riding “in sort of the center of the street” instead of complying with an ordinance providing that bicycles should be operated as close as conditions permit to the right hand curb. We think that plaintiff’s trust in Hendricks had nothing to do with the case and that solid parking of cars at the right hand curb prevented Hendricks from steering closer than he did to the right. Defendant also charges that the bicycle was overloaded and top heavy and more difficult for Hendricks to control than it would have been except for plaintiff’s position. There is no evidence that Hendricks did not control the bicycle or that he could have done so better, nor is there any evidence that better control would have avoided the hole in the street. The defendant further says that “poised as he was” on the cross-bar, plaintiff placed himself voluntarily in such a perilous position that when danger presented itself he was unable to extricate himself from it and he, therefore, cannot recover. The answer to this contention is that he need not have anticipated the hole in the street and that unless, from the evidence and just inferences, we can say that the plaintiff failed to prove his conduct did not contribute proximately to the cause of the accident, then defendant who presented the danger from which plaintiff could not extricate himself, must bear the consequences. Defendant also contends that plaintiff’s position obviously interfered with the vision of Hendricks who could not have had a ‘£ safe ’ ’ view of the road. There is no evidence of this and it is just as fair to infer that he could see and did have a fair view and, in this appeal we must draw the inference. Defendant also contends that plaintiff failed to perform his duty to look for and give warning of the hole in the street. We cannot say that plaintiff was obliged to look ahead since Hendricks was propelling the bicycle and it is just as reasonable to infer that plaintiff’s obligation when the horn sounded was to turn and keep Hendricks advised as to the position of the approaching car. Defendant, however, contends that the plaintiff would have seen the hole in the street had he been exercising due care and cites McKinley v. City of Chicago, 299 Ill. App. 58, and Briske v. Village of Burnham, 379 Ill. 193. These cases are distinguishable from the case at bar because in them the plaintiff’s conduct was found to be the proximate cause and the defendant’s negligence a condition making the injury possible, while here the reverse is true. Plaintiff cites on that point Perry v. People’s Gas Light & Coke Co., 119 Ill. App. 389, to show that plaintiff had a right to presume and to act on the presumption that Green street was reasonably safe for ordinary travel and that plaintiff was not bound to keep his eyes constantly upon the street in search of possible defects. We decided this dispute by considering what plaintiff, or Hendricks for that matter, could have done to avoid the accident, had either or both seen the hole. We cannot infer that they were traveling at a reckless rate of speed, the inference is otherwise, nor can we infer, though the evidence showed they traveled for some distance after steering from the right, that the bicycle could have been stopped before meeting the hole. Hendricks and plaintiff were between the cars parked on the right and the driver’s car passing them on the left. From the dimensions given in the record, we assume that the space between the parked cars on the right and the driver’s car which passed them on the left at the center of the street, could not have been more than 5 or 6 feet. They were, therefore, compelled to ride at some place near the center of that space in order to avoid contact with the parked cars and the passing car. In that precise path, however, was the hole 3 feet long and 2 feet wide. The reasonable inferences are that neither by looking nor doing any of the acts the defendant complains plaintiff did not do, could plaintiff have avoided the accident.

To sum up, while plaintiff may not, in view of his age, have acted with complete prudence, that fact is not decisive. We believe the question of plaintiff’s due care was properly for the jury and that the jury fairly decided the question.

For the reasons herein given the judgment of the circuit court is affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    Anna L. Lyon, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,227.
    Heard in the third division of this court for the first district at the April term, 1942.
    Opinion filed July 3, 1942.
    Hoyne, O’Connor, Rubinkam & Melaniphy, of Chicago, for appellant; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of counsel.
    Harry George, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On August 16,1928, the Metropolitan Life Insurance Company issued a policy on the life of Waldo 0. Lyon in the sum of $5,000 with a provision for double indemnity in the event of accidental death. He died on February 1, 1935, while the policy was in force. Anna L. Lyon, his mother and chief beneficiary under the policy, filed a complaint in the circuit court of Cook county alleging that his death was caused by accidental means. Paragraphs 6 and 7, being the concluding paragraphs of her complaint, read:

“(6) That the plaintiff herein has made a demand upon the defendant to pay the sum or sums of money due her under and in accordance with the provisions of said Policy of insurance, but that said payments have been refused; that the defendant, although requested, has failed to pay plaintiff the sum due on said Policy of insurance or any other sum or sums whatever.
“(7) Plaintiff incorporates herein and attaches hereto a photostat copy of the Policy of insurance sued upon, and asks judgment for the sum of Ten Thousand Dollars ($10,000.00), together with interest at the rate of six per cent (6%) per annum on said amount from the 1st day of February, A. D. 1935.” The cause was transferred from the circuit court of Cook county to the District Court of the United States for the Northern District of Illinois. Issue was joined. Upon a trial before the court and a jury, a verdict was returned in plaintiff’s favor, assessing her damages at $9,768.45. On May 5, 1938, the district court entered judgment on the verdict. Upon appeal to the circuit court of appeals this judgment was affirmed. The judgment, statutory interest thereon from the date of its rendition to the date of payment, and the costs were duly paid. In an amended complaint at law filed in the circuit court of Cook county on November 25, 1941 by Anna L. Lyon against the Metropolitan Life Insurance Company, she alleged that she was the beneficiary under the policy on the life of Waldo O. Lyon; that he came to his death on February 1, 1935; that claim was duly made for payment of the benefits provided for in the policy; that during the month of May 1939, payment of the principal amount due as provided in the policy was duly made by the defendant; that the defendant failed and refused to make payment of the interest due on the benefits provided for in the policy as by statute in such case made and provided for the period between February 1, 1935 and April 8,1940, in the sum of $2,900, for which she asked judgment. Answering the amended complaint, defendant admitted the issuance of the policy, the death of the assured and the making of the claim. It further alleged (1) that all matters in controversy were adjudicated in the case tried in the District Court of the United States; that the jury rendered a verdict in favor of plaintiff and assessed plaintiff’s damages at the sum of $9,768.45, upon which verdict judgment was entered on May 5,1938; that the judgment was affirmed in the circuit court of appeals on February 2, 1939, and the defendant paid to the plaintiff and the plaintiff accepted the amount of said judgment, interest and costs assessed in said courts, and defendant received (a) a satisfaction of judgment; (b) a release executed by the plaintiff releasing defendant from any and all claims, a copy of which release was attached to the answer; and (c) release of attorneys’ liens executed by the attorneys representing plaintiff; that the satisfaction of judgment was filed in the district court on April 14, 1939; and that the judgment, interest and costs stand satisfied of record; (2) that the defendant is not indebted to the plaintiff for interest on benefits of said policy between February 1, 1935 and April 8, 1940, or any other period prior to the entry of the judgment; (3) that on April 17, 1939 the defendant deposited the amounts necessary to pay said judgment, interest thereon and costs with the Chicago Title & Trust Company under an escrow agreement with plaintiff, and plaintiff received from said es-crowee the proceeds thereof in April 1939; and (4) denied liability in any sum. Plaintiff filed a reply admitting the genuineness of the release but denying that payment was made to her of statutory interest on the benefits of the policy. She further alleged that the judgment referred to in the answer did not include statutory interest; and that there remained unpaid upon the policy at the time of the verdict the sum of $9,768.45 because there was a loan against the policy in the sum of $231.55. Her reply also alleged that the release was without consideration and she again claimed statutory interest. The case was tried by the court without a jury, and a finding and judgment was entered in favor of plaintiff in the sum of $1,477.69, from which defendant appeals.

After the judgment of the district court was affirmed by the circuit court of appeals, Emmet J. Cleary, the attorney who tried the case for plaintiff, made a demand on defendant’s atttorneys for the amount of the judgment with interest thereon at the statutory rate, and costs, and also for interest in the sum of $1,587.36 for the period prior to the rendition of judgment, that is, from the date of the death of Waldo 0. Lyon on February 1, 1935 to the date of the judgment, May 5,1938. This demand was refused. Several letters were written by Mr. Cleary to defendant’s attorneys between February 21, 1939 and March 30, 1939. In the last letter plaintiff refused to accept the sum of $10,155.10 offered by the defendant, which included the amount of the judgment, interest thereon and costs. Because of a dispute as to the fees arising between various attorneys representing plaintiff and their claims for attorneys’ liens, an escrow was entered into between plaintiff and defendant with the Chicago Title & Trust Company, as escrowee. Under the agreement the attorneys for the insurance company deposited with the escrowee (1) check for $10,155.10, drawn by the insurance company payable to its attorneys and by them indorsed to the order of plaintiff and all of the attorneys claiming a right to share in the fee. This check was indorsed by plaintiff; (2) check for $70.60 drawn by the attorneys for the insurance company payable to the order of plaintiff and her attorneys. This check was also then indorsed by plaintiff; (3) receipt of the clerk of the United States District Court for $157.07; (4) revised bill of costs in the United States District Court for $70.60; (5) notices of attorneys’ liens claimed by Charles C. Cooley, Harry George, Emmet J. Cleary and letters of Harry J. Myerson. Attorney Emmet J. Cleary deposited: 1. Satisfaction of judgment in the district court; 2. Satisfaction of judgment in the circuit court of appeals. Mr. Cleary agreed to deposit: 1. Satisfaction as to attorneys’ liens of the various attorneys; 2. Satisfaction of judgment as to costs taxed in the case originally filed in the circuit court of Cook county which was transferred to the district court. Plaintiff deposited the insurance policy and also deposited a general release under seal signed by her.

The escrow agreement further provided that when a judgment search was made and releases of the attorneys’ liens were delivered to the escrowee, the latter was authorized to pay $5,107.55 to the plaintiff, and $157.07 to the attorneys for defendant. The balance of the fund was to be held subject to the approval of the Attorneys Cleary, Cooley, George and Myerson. The satisfaction pieces, release, releases of attorneys’ liens and other documents were to be delivered to the attorneys for defendant. By check dated April 14, 1939, the escrowee paid out of the escrow $5,107.55 to plaintiff and Attorneys Cooley and George, after releases of attorneys’ liens had been delivered by the attorneys to the escrowee. The satisfaction pieces were delivered by the escrowee and filed on April 14, 1939, with the clerk of the district court, one satisfying the judgment of $20 attorneys’ fees, and another satisfying the judgment of $9,768.45 and costs. Plaintiff filed suit against Emmet J. Cleary and the escrowee in the circuit court after receiving and indorsing her check for $5,107.55. She averred that she only agreed to pay 25 per cent attorneys’ fees. This suit was settled. On June 22, 1939 the eserowee paid out of the escrow funds by check the sum of $2,922.90 to Attorneys Myerson, Cooley and George, and on June 27, 1939, made payment by check to Emmet Cleary of the sum of $2,008.18. The check of defendant for $10,155.10 has the following provision above the signatures of plaintiff and her attorneys: “The undersigned hereby acknowledges payment and release and discharges the Metropolitan Life Insurance Company from all claims under the policy designated on the face of this check.” Plaintiff introduced in evidence a release dated February 23, 1939, executed by plaintiff and witnessed by Attorney Cleary and her son Clifford, whereby she released and forever discharged the defendant from any and all sums of money due her as beneficiary under the policy, and from all manner of actions, causes and causes of action, suits, debts, dues, sums of money, accounts, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, executions, claims and demands whatsoever which she has against it or ever had.

Defendant urges that the judgment entered in the District Court of the United States is conclusive of all matters arising out of the insurance policy, including any claim for interest. Plaintiff bases her claim on section 2 of the Interest Act (sec. 2, ch. 74, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 67.02]) which provides that ‘ ‘ creditors shall be allowed to receive interest at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument in writing; . . . .” In the trial court she successfully maintained her position that she was entitled to statutory interest at the rate of 5 per cent per annum on the amount due under the policy from the day her son died until judgment was entered in the district court. She points out that the claim for the amount payable under the policy was a claim arising out of the insurance contract, and that the claim in the instant case for interest does not arise out of the insurance contract, but out of the statute, and insists that thé causes of action are separate and distinct. She seeks to repel defendant’s contention that the doctrine of res judicata and verdict by estoppel, apply. She asserts that while the prayer for relief in the district court asked for judgment for $10,000 together with interest at 6 per cent per annum, interest was not otherwise mentioned in the complaint; that the prayer was not for interest at 5 per cent per annum arising out of the statute, but was for interest on the contract itself and that the contract did not in fact provide for the payment of any interest. She argues that the interest prayed for could not he allowed on the allegations of the complaint, and states that the judge who presided over the trial in the district court (Judge Woodward) did not instruct the jury regarding interest, and that no evidence was introduced as to the amount of interest to which plaintiff was entitled. We are, therefore, asked to determine whether the doctrine of res judicata or estoppel by verdict applies to the factual situation before us. Disregarding for the moment the proposition presented as to whether plaintiff in any event had the right to sue separately for the statutory interest on the basis that such suit was a separate cause of action, we will address ourselves to the proposition as to whether she did sue for interest in the district court. In order to determine whether she did claim interest in the district court, it is necessary to revert to the record of that case. The relief which she was asking is best ascertained by a reading of her complaint in that case. In paragraph 6 of the original complaint plaintiff recited that she made a demand upon defendant to pay the stím or sums of money due in accordance with the provisions of the policy, but that payment was refused, and that defendant failed to pay her the sum due her on the policy, or any other sum or sums whatever. In the last paragraph plaintiff stated that she was incorporating and attaching to the complaint a photostat copy of the policy and asked judgment for $10,000 “together with interest at the rate of 6 percent per annum on said amount from the 1st day of February, A. D., 1935.” She was represented by able counsel. It was, of course, their duty to read the policy and to acquaint themselves with the law pertaining to the case before the complaint was filed, and we do not doubt that they did so. Having read the policy on which that action was based, these attorneys knew that such policy did not provide for the payment of interest. Nevertheless, they ask for interest. While the applicable statute (sec. 2, ch. 74, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 67.02]) provides for the payment of interest in such cases at the rate of 5 per cent per annum, the fact that plaintiff asked for 6 per cent would not affect the right of the jury and the court to award her interest at the rate of 5 per cent per annum. It will be observed that the complaint is silent as to the basis on which the interest was to be allowed. What stands out, however, is that she was asking for interest and that her attorneys knew that the policy did not provide for the payment of interest. It would follow that they knew that the interest claimed not being payable by contract, would have to be payable by virtue of the statute. Plaintiff points out that the jury in the district court arrived at the verdict in her favor of $9,768.45 by deducting from the $10,000 payable under the double indemnity feature of the policy, the sum of $231.55, the amount of the loan, plus interest on such loan made to the insured and charged against the policy. She points out that this clearly shows that the jury in the district court did not award any interest. It is interesting to note that Attorney Cleary, who tried the case in the federal court for plaintiff, called as a witness by plaintiff, testified without objection that “I had previously gone into the question of interest by going out and soliciting five or six of the jurors. Judge Woodward told me that the jury considered interest; so I went out to Wheaton and Aurora, and I talked to some of the jurors and they insisted that they had considered the question of interest. I believe in one of those letters to Mr. Rubin-kam [one of the attorneys for defendant] I cite that, because my conviction was that if I could go in before Judge Woodward on a sworn statement of the jurors that interest was not considered, I could be allowed interest. ’ ’ From this it appears that the attorney who tried the case for plaintiff inquired of Judge Woodward and some of the jurors as to whether they considered the question of interest, and that he was informed by the judge and the jurors that they had considered that question. Mr. Cleary testified that he made inquiry of the jurors so that if they answered that they had not considered interest he could go before the judge with a sworn statement that interest had not been considered and use that as the basis for .a motion that interest be allowed. Defendant filed a motion for a new trial in the district court. Before judgment was entered, plaintiff had a right to ask that interest he allowed. Apparently, after ascertaining that interest had been considered, plaintiff’s attorney decided to allow the judgment to be entered in accordance with the verdict. Defendant appealed and the judgment was affirmed. Had plaintiff in that case desired to have the court pass on her right to interest as she claimed in her complaint, she could have made an appropriate motion for that purpose and obtained a ruling. The rule in Illinois and in Federal Courts is that all defects in pleadings not objected to in the trial court shall be deemed to he waived. If the defendant in the district court felt that the allegations of the complaint did not contain sufficient allegations to warrant a claim for interest, it could have moved to strike that part of the complaint, or to require plaintiff to allege the ultimate facts on which she based her claim for interest. So far as the record shows, defendant did not make such a motion. We do not see how plaintiff can complain because defendant did not object to her pleading. The jury clearly had the right to award interest to her. If the jury did not do so, that would be an error about which she had a right to complain. She chose not to complain. Her claim for interest, however, was not withdrawn from the consideration of the jury. According to the testimony of Mr. Cleary, the jury did consider the matter of interest. Had the jury returned a verdict allowing plaintiff the sum of $9,768.45, plus interest at the rate of 5 per cent per annum from the time of the death of her son, defendant would not have been in any position to complain, not having objected to the pleading. In view of the factual situation disclosed by the, record, we are of the opinion that the judgment entered in the district court is conclusive of all matters arising out of the insurance policy, including'the claim for interest, which was included in that case and considered by the court and jury.

Defendant also argues that plaintiff cannot split her cause of action by suing for damages upon the contract and later suing for interest upon the amount of damages assessed in that action; that the payment of the judgment, interest thereon and costs completely discharged all obligations owed to plaintiff by defendant ; and that the release under seal executed by plaintiff and delivered to" defendant at the time of the payment of the sums due, is a further bar to the action and is not subject to attack in a court of law. In view of our determination that the judgment entered in the District Court of the United States bars the instant action, it is unnecessary for us to consider the other points urged by plaintiff.

For the reasons stated, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions to enter a judgment for costs for the defendant and against plaintiff.

Reversed and remanded with directions.

Hebel and Kilby, JJ., concur.


author: Mr. Justice Hebel

text:
    Frank J. Moskal, Appellant, v. Catholic Bishop of Chicago and City of Chicago, Appellees.
    Gen. No. 42,177.

      Heard in the third division of this court for the first district at the April term, 1942.
    Opinion filed July 3, 1942.
    Beckman, Healy, Reid & Hough, of Chicago, for appellant.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for certain appellee; Walter C. Senne, Thomas F. Scully and John M. 0 ’Connor, Jr., all of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for certain other appellee; Alexander J. Besa, Edward J. Kelly and John J. Mortimer, Assistant Corporation Counsel, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The plaintiff’s complaint prays for a decree to declare null and void an ordinance vacating a portion of an alley and to enjoin the erection of a church on the vacated portion of the alley. The court dismissed the complaint for want of equity after hearing before a master and argument on exceptions to his report. The City of Chicago, a municipal corporation, appellee herein, states that in the trial court this appellee interposed a defense based upon the proposition that the ordinance herein questioned is valid; that the law supporting this proposition is sufficiently brought to the attention of this court by the brief and argument filed herein by the appellee, Catholic Bishop of Chicago, a corporation sole; and that for this reason the appellee, City of Chicago, adopts the brief and argument for the appellee, Catholic Bishop of Chicago, upon that proposition and deems it unnecessary to file herein a separate brief and argument in support thereof.

The facts involved in this proceeding have to do with the vacation of part of an alley in the block in the City of Chicago, bounded by 25th street, Keeler avenue, 25th place, and Kildare avenue. The alley extended from Keeler avenue west to Kildare avenue and is midway between 25th street and 25th place; its width 16.8 feet. Defendant owned the land at the corner of 25th street extending 131.242 feet westward from Keeler avenue, and a frontage of 125 feet on Keeler extending southward from 25th street to the alley. It also owned the land south of the alley to 25th place, with a frontage on Keeler avenue of 125 feet and a frontage on 25th place of 131.125 feet.

Immediately west of this 131.125 feet on 25th place is the property owned by plaintiff — a piece of ground with 51 feet frontage on 25th place on which is plaintiff’s residence. The value of plaintiff’s property was'about $35,000.

At the request of defendant, the city council, on April 23,1941, passed an ordinance vacating 115.25 feet of the east end of the alley and dedicating the west 16 feet of defendant’s lot facing 25th place as a part of an alley in its place. This means that the whole of the east and west alley is closed from a point 115.25 feet west of Keeler avenue, thus shutting off ingress and egress to and from Keeler avenue. The dedicated 16-foot alley would run immediately alongside and the whole length of plaintiff’s property and leave only ingress and egress to and from 25th place instead of from Keeler avenue.

Plaintiff states that this vacation ordinance was passed to enable defendant to build its church across the vacated portion of the alley, and that there was no other purpose; that an attempt was made to show that there was some benefit to the public, but that an examination of the evidence will disclose that the attempt failed ; that, thus, defendant attempted to show that by cutting off access to Keeler avenue the public was benefited because, Keeler avenue being a stop street, there was danger in passing thereon from the alley; suggest that it is obvious that this is no public benefit, because if a person wanted to drive on to Keeler avenue or across it, that same danger would be met wherever the crossing was attempted; that the danger would not be in driving from the alley, but it would be in turning into the street, and this danger would be present whether one drove into that street from the alley or from 25th place; that the closing of the alley and compelling eastbound traffic in the alley to turn south in the proposed 16-foot alley would bring the traffic into 25th place, but would not, by means of the alley, eliminate the danger of crossing Keeler avenue; and that the only difference would be that in one case the traffic would enter or cross Keeler avenue at the alley, in the other case at 25th place.

The defendant, Catholic Bishop of Chicago, a corporation sole, does not question the plaintiff’s statement of facts, but questions his statement and contention that the public interest was not served in any manner by the vacation ordinance, and contends that the ordinance in question is valid and that the plaintiff is not entitled to injunctive relief. Defendant’s theory is that the vacation of alleys is a legislative function within the discretion of a city council and that courts will not substitute their judgment for that of the city council unless it clearly appears that the vacation was made solely for private purposes, and that here the vacation of that portion of the alley in question was not solely for private purposes, but was for the benefit of the public.

It is urged, in favor of the validity of the ordinance, that the legislature, by statute (Ill. Rev. Stat. 1939, ch. 145, par. 1) has conferred upon cities the express power to vacate streets and alleys, the title to the vacated portions vesting in the abutting owners, unless the instrument of dedication expressly provides otherwise; that this statute has been held valid in People v. City of Chicago, 321 Ill. 466 and Nielsen v. City of Chicago, 330 Ill. 301. Section 1 of the above statutes provides:

“Whenever the city council of any city, or the board of trustees of any village or town, whether incorporated by special act or under any general law, or the council of any city or village operating under the commission or managerial form of government, shall determine that public interests will be subserved by vacating any street or alley, or part thereof, within their jurisdiction, they may by ordinance vacate such street or alley, or part thereof; provided that any such ordinance shall be passed by the affirmative vote of at least three-fourths of the members of such city council, or of such board of trustees or of such council, authorized by law to be elected; such vote to be taken by ayes and noes and entered on the records of such council or board. Such corporate authorities, in behalf of any such city, town or village, may in such case contract for and receive from the owner or owners of property abutting upon such street or alley, or part thereof, so vacated, compensation in an amount which, in the judgment of such corporate authorities, shall be equal to the benefits which will accrue to the owner or owners of such abutting property by reason of such vacation. The validity of any such vacation shall not be questioned by reason of the payment of any such compensation, nor by reason of benefits specially accruing therefrom to the owner or owners of abutting property. The determination of such corporate authorities that the nature and extent of the public use or public interest to be sub-served is such as to warrant the vacation of such street or alley, or part thereof, so vacated, shall be final and conclusive, and the passage of such ordinance shall be sufficient evidence of such determination, whether so recited in the ordinance or not. The relief to the public from further burden and responsibility of maintaining such street or alley, or part thereof, so vacated, shall constitute a public use or public interest authorizing such vacation. When property is damaged by the vacation or closing of any street or alley, the same shall be ascertained and paid as provided by law.” Section 2 of this act vests the title to the vacated street or alley in the then abutting owners, unless the instrument dedicating the street or alley expressly provides otherwise.

It appears that the ordinance in question was passed, pursuant to this statute, by the affirmative vote of three fourths of the members of the city council. The ordinance (vacating the east 115.25 feet of the alley) required the Catholic Bishop of Chicago, a corporation sole, within 60 days (1) to dedicate 16 feet of its property as a public alley, (2) to pay to the city the sum of $100, which sum in the judgment of the city council will equal the benefits accruing to the Catholic Bishop, and (3) to pay into the city treasury a sum sufficient to defray the costs of paving the entrances and fixing the curbing on both the old and new alleys. And it appears that the above conditions have been satisfied by the Catholic Bishop.

The preamble to the ordinance reads as follows:

“Whereas, the City Council of the City of Chicago, after due investigation and consideration, has determined that the nature and extent of the public use and the public interest to be subserved is such as to warrant the vacation of part of alley described in the following ordinance; therefore,
“Be it Ordained by the City Council of the City of Chicago”: And the ordinance provides that the portion of the alley was vacated: “inasmuch as the same is no longer required for public use and the public interest will be subserved by such vacation.” It appears to be well settled that whether a street or alley should be vacated is a legislative and not a judicial question. (Nielsen v. City of Chicago, 330 Ill. 301; Hoerrmann v. Wabash Ry. Co., 309 Ill. 524.) And courts will not interfere with the discretion manifested by a city council in the exercise of its legislative power, except where that power is being exercised solely for private purposes (which it is urged is not the fact in this case). And it would appear further that an ordinance passed by a city council in the exercise of the legislative powers conferred upon it for the purposes of police regulations or municipal government cannot be impeached by an inquiry into the motives of the members of the council who voted for it. If within the legislative power granted to the council, a court cannot declare an ordinance invalid on account of the improper motives which induced its passage. This question is not involved in the passage of this ordinance. Courts must assume that legislative discretion has been properly exercised. And the same rule applies in the case of the exercise of legislative power granted to a city council. (Murphy v. Chicago, R. I. & P. Ry. Co., 247 Ill. 614; People v. Atkins, 295 Ill. 165; People v. City of Chicago, 321 Ill. 466; Nielsen v. City of Chicago, 330 Ill. 301; People v. Wieboldt, 233 Ill. 572.)

The defendant calls attention to the case of People v. Wieboldt, 233 Ill. 572, — a case in which the court refused to hold that it was an abuse of discretion to vacate a part of an alley lying between the ends of certain lots, thus permitting the owner to maintain one building covering all the lots and the vacated part of the alley, and to require the owner to dedicate two strips 16 feet wide, furnishing outlets for the alley, extending at right angles with the alley along the sides of the building, thus making not one, but two, “L” shaped alleys. The court there said:

“Whether it is expedient to vacate a street or alley is a question for legislative decision, and when the authority to discontinue is delegated to local officers and no restrictions are placed upon its exercise, the officers are invested with a very broad discretion, and unless their discretion has been abused the courts cannot interfere. This is in accordance with the general rule that where officers are invested with discretionary powers, courts will not substitute their judgment for that of the officers invested by law with the right to determine upon the necessity or expediency of doing a designated act. Elliott on Boads and Streets (2d ed.) sec. 879.” Also, in support of its position, the defendant cites the case of People v. Benson, 294 Ill. 236.

However, on the other hand, plaintiff contends that the city is without power to authorize a private person having property on both sides of a street or alley to erect a building or structure of any kind across the street or alley or to vacate the street or alley for the use and benefit of such person, and in support of his theory cites Ginter-Wardein Co. v. City of Alton, 370 Ill. 101. In that case the approach to a bridge across the Mississippi River was nearly in the center of Langdon street and occupied the whole of that street which was paved, except that along the east side of Langdon street there was room enough left for the passage of loaded trucks,— i. e. a space having width of about 10 feet between the bridge structure and the curb, while on the west side of the approach there was a space of only 6.8 feet, which was insufficient to permit trucks to pass. The appellant had a lumber yard on Front street and had always used, and found it most convenient to use, Langdon street for access to Broadway. Front street roughly paralleled Broadway and was one block south of Broadway. Broadway was an important street and if Langdon • street was obstructed at Broadway, trucks delivering merchandise from appellant’s place of business and the customers coming to that place of business could still go to and from Broadway, but only by traveling an inconvenient and round-about way. The Y. M. C. A. acquired the property east of Langdon street between Front street and Broadway and made an agreement with the Standard Oil Company for the erection of a filling station at Broadway and Langdon contingent on the City of Alton passing and sustaining an ordinance granting to the Y. M. C. A. the right to construct and maintain a concrete covered fill between its property on the east and the east line of the bridge entrance on the west and extending from the south line of Broadway. Appellant filed a complaint against the city and the Y. M. C. A. to enjoin the enforcement of this ordinance and to prevent the obstruction of Langdon street. The decree of the lower court refusing the injunction was reversed and the cause was remanded with directions to grant a permanent injunction. The court stated that from the facts it was apparent that this was an effort on the part of the city to grant a part of a public street to a private corporation for private use and profit. The court then says:

“In this State, by statute and judicial decision, there has always been a firm public policy against such a procedure as has here been attempted, and it has always been held that a mere recital in an ordinance of supposed benefits to the City will not be conclusive on the Courts as to the true nature of the transaction.” It is urged that the only difference between the Ginter-Wardein Co. case and the one at bar is that the evidence that the ordinance was passed for a private use and benefit is contained in the ordinance itself, while in the case at bar the evidence which shows this is dehors the ordinance. And it is urged that the latter evidence is just as admissible as the former; that if, in the case at bar, the ordinance recited that it was enacted for the purpose of authorizing the building of a church on the vacated alley, we would have precisely the same situation as in the Ginter-Wardein Co. case; that there is no rule of law which requires that the evidence be contained in the ordinance; and that the facts govern regardless of the recitals in the ordinance. The case of People v. Corn Products Refining Co., 286 Ill. 226, is also relied upon by plaintiff. There the court held that a recital in an ordinance, permitting the erection of an overhead bridge and vacating the street, to the effect that it is passed for the benefit of the city, is not conclusive upon the courts, and while the courts will not inquire into the motives of the city council they may hear oral testimony, as to the purpose of the ordinance and determine whether it is public or private. Plaintiff urges that in the case at bar, as in the Corn Products Refining Co. case, defendant requested the city council to vacate the alley so that a structure could be built thereon; that in the case at bar the only ordinance is the vacation ordinance; that in the Corn Products Refining Co. case, there was a similar ordinance, plus one authorizing the structure; but that this does not change the situation, because it was the vacation ordinance that was held void; that the other ordinance was simply a permit to build, just as in the case at bar, even though the alley were vacated, the church cannot be built until a permit is obtained. It appears that a permit had not been secured to build the church, but that plans and specifications had been prepared.

The master heard the evidence in the instant case and made his report and the court overruled the exceptions filed thereto by the plaintiff. The court in doing so passed upon the questions contended for by the plaintiff.

In reply the defendant contends that the Ginter-Wardein Co. nor the Gerstley v. Globe Wernicke Co., case, 340 Ill. 270, which were cited by plaintiff, involve vacation ordinances. In the Ginter-Wardein Co. case the court specifically stated that the ordinance in question was a contract ordinance and not a vacation ordinance, and that cases involving the power of cities vacating streets had no application. In the Gerstley case, too, it is pointed out, the court specifically stated that vacation ordinance cases did not apply. In addition, the Corn Products Refining Co. case and the Gerstley case dealt with overhead bridges which obstructed the air and light rightfully belonging to adjoining parties. It is urged that while it is true that in the Corn Products Refining Co. case a vacation ordinance was considered by the court, this was done solely because of the fact that it was passed for the purpose of vacating the street so that at the time when the overhead bridge was attacked it was then upon private property; that the court considered the two ordinances (the one allowing the construction of the overhead bridge and the other vacating the street) and held that both were void.

In discussing the questions involved in the instant case, it is, of course, important to consider the admissibility of the evidence which was offered. In the case of People v. Atkins, 295 Ill. 165, the court said, in passing upon the kind and scope of the evidence admissible in a matter of this character, as follows:

< < is considerable discussion in the briefs in this case on the question whether or not parol evidence is admissible to determine if the city council acted within its powers. In the section above cited in Dillon on Municipal Corporations, and in note 4 thereto, the learned author, after stating the well settled rule that the judicial branch of the government cannot institute an inquiry into the motives of the legislative department in the enactment of laws, states what we consider to be the true rule as to the admission of parol evidence, and that is, that the courts may hear and consider evidence as to the nature and effect of the laws or ordinances without any inquiry into the motives of the members of the council and determine the legality of the ordinances in question. The rule in this State is also well settled that where the records of the city council by their recitals show that the intention of the council in passing the ordinance was solely to confer rights and privileges upon private persons the ordinance so enacted will be declared illegal because not within the power of the council to pass it. It was also decided by this court in People v. Corn Products Co., supra, that in determining the question of the legality of an ordinance the court may, and should, inquire whether or not the purpose of the ordinance passed is one which lies within the power of the legislative body to carry out, — that is, whether the purpose of the ordinance is to serve a public benefit or a private use. This rule was expressed in almost the same language in Ligare v. City of Chicago, supra. The meaning of this expression was elaborated or explained in the case of Smith v. McDowell, 148 Ill. 51, where this court used this language; ‘But the purpose accomplished by the ordinance, — the object attained, — -may always be considered, indeed must be, in determining the validity of the ordinance. If the purpose effected by the ordinance is within the power of the city council their act will be valid. The question to be determined is one of power in the municipality, in the determination of which the legal effect of the action of the municipality becomes the controlling matter for consideration.’ It is made clear in that case that it is the result or effect of the action of the city council upon public interests that the court may inquire into and consider in determining the legality of the passage of such an ordinance by the city council.
“Under the foregoing rules it was admissible to put in evidence the position, size and condition of the alley and how it served the public and the adjoining lot owners before the action of the city council and afterwards when completed and improved as provided by the ordinance. In fact, all evidence was proper which showed or tended to show that the alley after the alteration and vacation were completed would be more beneficial and more useful to the public in their use of it as a public alley, as well as all evidence, if any, that would show or tend to show that it would be of no use or of less use to the public as a public alley in its altered condition. So all evidence, if any, showing or tending to show that the alley in its altered condition would only benefit private parties owning lots in the block, and particularly those at whose instigation the alteration and vacation were made, is admissible. While all such evidence is admissible to show the result of the alteration or vacation of the alley — that is, the effect that it would have upon both public and private interest, — yet no evidence would be competent which bore directly upon the question of the motive of the city council in the passage of the ordinance, such as statements made by members of the council with reference thereto or conversations between them and the parties at whose instance the ordinance was passed....” So, upon the questions that are before us, it would appear that the purpose or effect of the ordinance in question is not for the gratification of private interest solely, but that there is evidence that the public interest will be better served by the vacation as laid out by the provisions of the ordinance in question. It does not appear that plaintiff or other adjacent owners are deprived of the right of ingress or egress, and the changing of a straight alley into a right angle turn is not enough to require the court to invalidate the ordinance. (People v. Benson, 294 Ill. 236.)

The question of payment of damages is called to our attention by the plaintiff as a question which should be considered by this court as showing that the vacation ordinance was not in the public interest, but was in fact a detriment to the public. In any event the question of damages would seem to be one for the legislature, and the legislature'by statute (Ill. Rev. Stat. 1939, ch. 145, par. 1), after empowering the city authorities to obtain compensation from abutting owners for the benefits received, specifically provided: “When property is damaged by the vacation or closing of any street or alley, the same shall be ascertained and paid as provided by law.” Thus the legislature in providing for the vacating of streets and alleys expressly recognized that while the vacation of a street or alley might benefit one and damage another, it was not necessary to require the one benefited to pay for the damage to the one harmed as a condition precedent to a showing that the ordinance subserved the public interest. It placed the determination of that question within the sphere of the city council ’s decision. It is urged further that plaintiff has made no showing that he has been damaged. The property for the new alley is coming from the Catholic Bishop and not from the plaintiff. Neither is the plaintiff deprived of access to the rear of his lot. At the most he is merely inconvenienced, but this is not peculiar to him; it affects all the other property owners in the same manner. It further appears from the suggestions of defendant that plaintiff endeavored to make some showing that certain trees along the east boundary of his property would be damaged, especially a large tree at the corner of the proposed alley and his property; that the evidence, however, both oral and photographic, showed that this “large tree” was nothing more than a large stump of an old tree which had burned down somewhere between six and eleven years before; and that about one third of it is on plaintiff’s lot. Therefore, from a consideration of the evidence in the record and an examination of the authorities cited, we are of the opinion that the evidence supports the conclusion of the court and that the order which was entered is affirmed by this record.

There is one further question which we might consider and that is as to whether plaintiff is estopped to question the vacation ordinance. Defendant urges that plaintiff is so estopped, and that such estoppel is based upon the fact that the city council by passing the ordinance has induced this defendant to dedicate a portion of its property to the city as an alley, and to pay to the city the sums of money required by the ordinance. Defendant cites in support of its theory the case of People v. Wieboldt, 233 Ill. 572, where the court said:

“We think, therefore, the court was correct in holding the power vested in the city council to vacate the portion of the alley now occupied by the building, in part, of Wieboldt was not so far abused as to make such vacation void. If, however, we were in doubt as to the power of the city council to vacate the portion of said alley vacated, we think the city council by the passage of said ordinance and the granting of the permit to Wieboldt to erect thereon a building connecting the two buildings formerly owned by him, and by said action inducing Wieboldt to dedicate to the city a portion of lots 5 and 10 and to otherwise comply with the terms of said ordinance, has estopped itself to now evict Wie-boldt from the possession of the portion of said alley vacated by the city council and now in the occupancy of Wieboldt by his building; ...” Therefore, it would appear that the question is one which was considered by the trial court there and that the complaint was dismissed for want of equity.

After careful consideration, we believe, as we have stated before, that the court was justified in dismissing the complaint, and the decretal order is affirmed.

Affirmed.

Burke, P. J., and Keley, J., concur.


text:
    Elmer Haumesser, Appellant, v. Maezie Barbara Woodrich, Administratrix of Estate of Daniel Burkhartsmeier, Deceased, Appellee.
    Gen. No. 41,792.

      Heard in the third division of this court for the first district at the June term, 1941.
    Opinion filed July 3, 1942.
    William O. Burns and Carl Pomerance, both of Chicago, for appellant.
    Campbell, Clithero & Fischer, of Chicago, for ap-pellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal from an order disallowing plaintiff’s claim against the estate of Daniel Burkharts-meier, deceased. An appeal was taken to the Circuit Court from an order of the Probate Court which sustained exceptions to the amended report of a referee recommending allowance of the claim.

The claim for $2,500, and accruals, is based upon an agreement between plaintiff and decedent, executed April 29, 1931, under which plaintiff was given an option to acquire one half of the outstanding capital stock of the Daniel Burkhartsmeier Cooperage Company. A concurrent contract of employment was executed under which plaintiff entered the Company’s employ. Similar contracts were executed between decedent and one Latz. The option was to continue for 15 years from May 1, 1931, subject to earlier termination by certain events including plaintiff’s resignation. The contract further provided that if the option terminated by that event, decedent was to return plaintiff’s $2,500; and also provided how the option price should be determined, with deductions in the event of purchase, of certain items including plaintiff’s $2,500 payment and any subsequent payments or bonuses and interest on both.

On January 12, 1934, plaintiff wrote decedent that he wanted advice on the balance due on the purchase price, “as we wish to exercise our option” in accordance with the contract. The advice was given, a dispute subsequently arose regarding deductions, in addition to those in writing, which plaintiff claimed were verbally agreed to following the written agreement. Plaintiff made offers to purchase on the basis of the disputed deductions and in March, following, advised decedent that plaintiff intended to seek redress in court unless the offer was accepted. March 19, 1934, plaintiff sent decedent his resignation from employment with the Company, effective April 1, or any time before that date the Company “may see fit.” In that letter plaintiff gave as reasons for resigning his humilitation and vexation at decedent’s hands since the election to purchase, and decedent’s refusal to comply with the agreement for the purchase, of the stock, which agreement he said furnished the principal reason for entering the Company’s employ. He demanded the return of all money due him. March 20, 1934, decedent by letter accepted plaintiff’s resignation, effective at once, unless plaintiff desired to remain until April 1st; disclaimed having desired to vex plaintiff, and implied disappointment that a misunderstanding had arisen. March 23, 1934, plaintiff and Latz sued decedent for breach of contract claiming damages of $375,000; March 26th, decedent sent plaintiff his check to plaintiff’s order in the sum of $3,007.12 representing plaintiff’s option payment, plus accruals ; and Company’s check for $100 compensation for the week ending March 24. April 24, 1934, plaintiff returned decedent’s check saying that if it were reissued with no restrictions, plaintiff would be glad to accept it. April 27, 1934, decedent returned the check to plaintiff, with restrictions removed. September 24, 1934, plaintiff’s attorney again returned the check advising decedent that plaintiff’s acceptance would seriously prejudice his damage suit. September 27, 1934, decedent’s counsel responded advising plaintiff’s counsel that the check would be held subject to delivery to plaintiff on request. February 3, 1936, the Superior Court found the issues in the damage suit for the defendant and against the plaintiff. September 3, 1936, decedent’s counsel advised plaintiff that since the damage suit was decided adversely to plaintiff, decedent’s counsel had returned the check to decedent under the belief that in view of the litigation, plaintiff was not entitled to the check. February 7, 1939, Frank Burkhartsmeier died. A claim and an amended claim, the subject of this appeal, were filed June 19, 1939 and November 4, 1939, in the Probate Court.

The plaintiff contends on this appeal that he is entitled to the refund under the Option Contract of the $2,500, plus interest or accruals in the sum of $507.12; that the agreement contemplated a purchase or refund and that the option terminated when plaintiff’s employment ended and -that no purchase can now be had; and that no election of remedies is involved. Defendant contends on the other hand that when plaintiff exercised his option, the contract to purchase became a binding obligation on both parties and, making such election, plaintiff exhausted his right to have his money returned; that plaintiff’s employment ceased March 21, according to his own claim, and thereafter on March 23, he still persisted in his election to purchase, claiming he had a binding contract, by filing his suit on that day, alleging that he had exercised the option; that the judgment, being against plaintiff in the damage suit, is res judicata of every question raised here; and that under no circumstances was plaintiff entitled to interest on his $2,500 if he rescinded and terminated his employment.

Considered in the light of the entire contract we are concerned principally with the conditions surrounding the $2,500 paid by plaintiff thereunder. If plaintiff’s employment terminated of his own volition within 5 years from the date of his employment, the $2,500 was to be returned. There is no provision in the contract as to what should be done with the $2,500 and any additional sums in an event such as occurred here, and we must look to the general law on the subjects involved for the determination of this appeal.

An election to exercise his option was made by plaintiff and the offer tendered thereunder not having been accepted, we infer that it was rejected. If the rejection terminated the option, the question of plaintiff’s rights are not to be determined as of the time he quit, for the rejection preceded the latter event. The option here was an executed contract and had as its own consideration $2,500. It gave plaintiff an exclusive right for 15 years to buy decedent’s stock. If plaintiff properly exercised the option, the one-sided contract became bilateral, binding both the optionor and the optionee. Was the decedent optionor hound by any contract which arose under the election made here? If he were, specific performance would lie or an action for damages. If he was not, he was excused from the obligation because the election was not of such quality as to bind him. Where an option is exercised by an unconditional election a contract arises binding both parties to the terms expressed. (James on Option Contracts, sec. 801.)

The plaintiff elected, but as will appear hereinafter, made an offer less than the written contract price, saying that optionor had verbally modified the writing. Optionor denied such modification and by refusing to accept the tender, rejected plaintiff’s offer. In the damage suit he denied there was a contract. Can it be said there was an unconditional election to exercise the option? It would seem that the election was conditional for surely plaintiff could not have the right to bind optionor to sell at a lesser price than was agreed upon. Both sides to this controversy rely upon the case of Lake Shore Country Club v. Brand, 339 Ill. 504, a suit for ‘ ‘ specific performance of an alleged contract for the sale of real estate arising out of an option contract” in a lease. The option contract there provided that at the time the lessee exercised the option there should be no default in the terms of the lease. When lessee sought to exercise the option, lessor denied its right on the ground that defaults existed. The Supreme Court discussed option contracts and decided the case in favor of the lessors because the record showed that conditions precedent to the right to exercise the option had not been met. The circumstances in that case and the case at bar are not identical. In that case there was no right to exercise the option unless certain conditions were met. Here, that right was unrestricted. The plaintiff seeks to apply that case, claiming that his failure to make sufficient tender under the terms of the purchase contract was a failure to meet conditions precedent to his right to make the election. It is apparent that the case is not applicable in that respect. In the instant case plaintiff paid $2,500 for the right to elect to purchase the stock. “The right to elect under an option contract is the right to convert an option into a binding promise, and an election is the act which so converts that unilateral contract into a bilateral one.” Lake Shore Country Club v. Brand, 339 Ill. 504.

The contract before us has a dual nature. It is a contract of option and of sale based on the option. There were no conditions to be met by plaintiff, after he paid the consideration, preparatory to making the election. When the money was paid and the contract executed, decedent was bound, at plaintiff’s election under the option, to perform under the sale contract, but only upon its terms. The letter of January 12, 1934, which defendant contends was plaintiff’s election under the option, reads:

“January 12, 1934
Mr. Daniel Burkhartsmeier,
7240 S. Chicago Ave.,
Chicago, Illinois.
Dear Sir:—
Pursuant to our verbal offer to you today. Please advise what the balance of the Option Price is as of this date as we wish to exercise our option to purchase your Capital Stock in the Daniel Burkhartsmeier Cooperage Company at 7234 to 7254 and 7247 to 7255 South Chicago Avenue, Chicago, Illinois, in accordance with our Option Agreements date April 29th, 1931.
Yours very truly,
(Signed) Frank A. Latz
’ ’ Elmer Haumesser. ’ ’

Obviously, plaintiff did not intend or make an election in that letter. He asked for advice because he wished, when the advice was given, to exercise his option. The word “wish” implied a desire at a future time to exercise the option. The decedent advised plaintiff the basic option price was approximately $177,000 and plaintiff responded in a letter of February 9, 1934, which introduced conditions. The sufficiency of an election must be determined as of the time option is exercised. Lake Shore Country Club v. Brand, 339 Ill. 504. The letter of March 1, 1934 offered to purchase for $144,801.22. This letter was the election and was conditional. Plaintiff made an insufficient election because he offered to buy for less than the price at which decedent was bound to sell. James on Option, sec. 842. The effect of an insufficient election is to end the option rights of both parties under the contract. James on Option, sec. 871. There was consequently, and obviously, no contract of sale arising from the election, because there was, in effect, no election. It would appear, that the Superior Court so held in determining the damage suit adversely to the plaintiff. The judgment in that suit determined that the provisions of the contract to sell were not modified by verbal agreements subsequent to the writing. It follows that the consideration paid for the option by plaintiff was not applied to the purchase of the stock. Plaintiff’s claim must be determined, therefore, on the contract of option only, unless barred by election of remedies or by the rules of res judicata or estoppel by judgment of the Superior Court in the damage,suit.

The principle of res judicata is not applicable because the issue is not the same in this action as that in the action for damages, nor does the rule of estoppel apply because the issue heré was not raised or controverted in the damage suit and the latter rule does not apply where the point was not controverted, but might have been. People v. McKibben, 377 Ill. 22. When plaintiff selected-the damage suit as his remedy on March 23, did he thereby lose his right by election of remedies to maintain this claim? Defendant contends that he did. In our view, the contract for the sale of the stock did not arise because plaintiff did not exercise his option. Plaintiff did not have a cause of action upon the contract, and, accordingly, there were not two remedies between which he could have elected. People v. Marx, 370 Ill. 264. The doctrine of election of remedies is not applicable.

The decisive question is whether plaintiff is entitled to the $2,500 under .the option. We have said herein-above that the contract in this case has a dual nature. It recites that for $2,500 the option is granted plaintiff and later provides when the option is exercised, that that sum .should be deducted from the purchase price. The option contract is complete and by it plaintiff in exchange for $2,500 was given an exclusive privilege. The detriment to decedent therein was giving up the right to sell the stock to others while plaintiff had the right to purchase. Under a contract such as this, there are two elements: An offer to sell, which does not become a contract until accepted, and the complete contract to leave the offer open for the specified time. Bates v. Woods, 225 Ill. 126. Since the option contract is complete in itself and by it decedent bound himself to plaintiff on the terms written in the contingent contract, the consideration given by plaintiff was absorbed in the executed contract, subject to be refunded in certain events. Plaintiff says he has nothing for his money and that permitting the estate to retain it, would be unjust and inequitable. He was not vigilant in protecting his interest for, had he been, he would have had written into the contract any modifications of the terms of the contingent contract.

There is one final consideration. The general rule is that an insufficient election to exercise an option ends the rights of the parties under the option. The election here was conditional and, therefore, unless the conduct of the parties modified the general rule, their respee-tive rights under the option contract were determined. The record shows, however, that on March 21, plaintiff’s resignation was accepted and his employment with the Company ceased. The option contract gave the privilege of a refund in case of plaintiff’s resignation. Plaintiff resigned, demanded the refund and decedent responded with a check for $2,500, plus accruals. This was several months after plaintiff’s notice of election under the option and it is evident that, at the time of plaintiff’s resignation, both parties treated the option contract as in existence and, as a consequence, the general rule was altered. Plaintiff, however, did not accept the check but, after holding it for several months, returned it under the belief that keeping it would prejudice his damage suit. After the damage suit was determined, he redemanded it, but decedent refused to relinquish it under the belief that plaintiff had made an election of remedies by suing in damages. It would seem under these complicated circumstances, that the last two events, plaintiff’s last return of the check and defendant’s final refusal to accede to plaintiff’s demand for it, were based on mistaken theories and do not affect their rights and obligations at the time of plaintiff’s resignation. Defendant had the right when he rejected plaintiff’s offer under the conditional election made under the option in January 1934, to end their rights and duties under the contract. He waived the right and permitted the option contract to continue in existence, subject to be terminated by plaintiff’s resignation. Accordingly, since plaintiff is not barred under any contentions advanced by defendant, and treating as we must the option contract in force at the time of his resignation, plaintiff is entitled to the return of the $2,500 under the terms of the optional contract and that amount should have been allowed.

The judgment of the Circuit Court is, therefore, reversed and the cause is remanded with directions to allow plaintiff’s claim for the principal amount of $2,500.

Judgment reversed and cause remanded with directions to allow plaintiff’s claim for $2,500.00.

Burke, P. J., and Hebel, J., concur.


author: Mr. Justice Kilet

text:
    Carl Schiffmann Lumber Company, Appellee, v. John Rzepecki and H. L. Mooar, Defendants. Appeal of H. L. Mooar, Appellant.
    Gen. No. 41,830.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed July 3, 1942.
    Nelson, Slater & Boodell, of Chicago, for appellant; Drennan J. Slater, of Chicago, of counsel.
    John C. DeWolfe and John C. DeWolfe, Jr., both of Chicago, for appellee.
   Mr. Justice Kilet

delivered the opinion of the court.

This is an action to recover the price of lumber plaintiff claimed it sold to the defendants Rzepecki and Mooar. The jury found Rzepecki not guilty and returned a verdict against Mooar for $610.45. Plaintiff remitted $95.26 and judgment for plaintiff was entered for $515.19 and costs. Mooar has appealed.

The parties apparently agree that Rzepecki was the agent of Mooar and that the relationship was disclosed to plaintiff. The vital questions presented are, whether plaintiff extended credit solely to Rzepecki, so as to preclude its recovery from Mooar, and whether the instructions given to the jury were erroneous and prejudicial. The first question was for the jury to decide, if there was any evidence that credit was not extended solely to Rzepecki..

Mooar employed Rzepecki as agent to collect rents and to make repairs on properties of Mooar in order that the rentals therefrom would be increased. Rzepecki’s commissions and the cost of the improvements were to be paid out of the rents so far as possible. Prior to February 1938, Rzepecki ordered from plaintiff the lumber involved in this suit. The lumber was delivered in due course and was received either by Rzepecki or a workman, and plaintiff sent the bills in his name to Rzepecki. The latter says that he sent statements of receipts and disbursements monthly to Mooar and forwarded the bills; that when plaintiff communicated with him several times regarding payment, he in turn talked to Mooar who promised to pay when the work was completed; and that Mooar knew the lumber was needed and ordered, and knew it was purchased from plaintiff. Rzepecki says that upon completion of the work, instead of receiving a check for moneys due him and material men, he was discharged by Mooar on July 14, 1938, and that from the rents he was able to pay labor, but nothing on account of lumber.

It appears that Mooar paid for some of the repairs and some of the materials. It is admitted that the lumber was delivered and that most of it was used in Mooar’s properties. Part of it only is in dispute as between Bzepecki and Mooar on the question whether it was used for Mooar’s benefit. Bzepecki is a real estate broker and not a contractor. Mooar says that he had an agreement with Bzepecki as to what should be done and authorized the making of the repairs; that he knew lumber was being used, did not know where it came from, or whether it was paid for; that he did not know Bzepecki was buying from plaintiff and if plaintiff had told him before he settled with Bzepecki, he would have been glad to pay; and that he had an understanding that Bzepecki would be paid when the work was finished. His testimony would indicate that he received statements and bills from Bzepecki and, accordingly, should have known that plaintiff was furnishing the material. In addition,' an employee of Mooar’s testified that during the Summer of 1938, she worked upon bills and statements which he gave her; and that plaintiff’s bills were among them. Her testimony supports our view that Mooar had knowledge that the lumber was delivered by plaintiff and that the bill was unpaid.

There was evidence that plaintiff knew the lumber was for Mooar’s property and knew of the relationship between Bzepecki and Mooar. Bzepecki’s name appears on plaintiff’s ledger sheets as the customer in the transaction and they show payments by him on the account. Plaintiff’s witness testified that Bzepecki bought lumber for various buildings which plaintiff understood he did not own. Bzepecki says he told Wear of the plaintiff company that he was purchasing the lumber for Mooar and not for his own property; that he later made purchases and told Wear the same thing. The presumption in a case of this kind is that in the absence of evidence to the contrary, the agent is liable only where the principal is undisclosed or where he undertakes in his own name or exceeds his power. Laguna Valley Co. v. Fitch, 121 Ill. App. 607, 610. There is no question here as to the manifest weight of the evidence. Many authorities are cited by both parties, and most of those to which we are referred by Mooar are based on the fact that credit was extended solely to the agent and so to apply those authorities here would compel us to assume a fact in issue. The case of Kusek v. Allied Packers, Inc., 246 Ill. App. 209, relied upon by Mooar, is not applicable because the agent there gave his own check in payment of the goods and no ag’ency was proved between him and the defendant sought to be charged. Mooar argues that the evidence discloses that plaintiff’s ledger shows Rzepeeki as the customer; that the delivery slips for the merchandise were made out to Rzepeeki; that the monthly statements were sent to Rzepeeki in his name, even after Rzepeeki was discharged; that plaintiff never demanded payment from Mooar and that it had filed and prosecuted its suit against Rzepeeki; and that these circumstances indicate that plaintiff extended credit solely to Rzepeeki and. looked to him solely for collection of the account. These facts are not conclusive on the point. John Spry Lumber Co. v. McMillan, 77 Ill. App. 280. The important consideration, we believe, is the intention of Rzepecld. There is nothing in the evidence which justifies any inference that he at any time intended to be personally liable for the lumber or that he obtained credit for himself. Credit must be accepted when extended and the evidence plainly shows Rzepeeki did not request or accept credit in his own behalf for the lumber delivered. The first question was properly submitted to the jury, because in addition to the presumption, there was evidence that credit was not extended solely to Rzepeeki.

Mooar complains of plaintiff’s instructions A. B. C. and E. Instruction A told the jury that if a preponderance of the evidence showed Bzepecki was Mooar’s agent to repair buildings and bought lumber in the course of his employment and plaintiff sold the lumber to him and delivered it to Mooar’s property and Bzepecki did not pay for it, that the jury should then find against Mooar, regardless of whether Mooar’s relation as principal was or was not disclosed. This instruction is not erroneous when read together with defendants’ instruction E, which told the jury that if it found at the time of sale that plaintiff knew Bzepecki was Mooar’s agent and nevertheless extended credit and billed Bzepecki for the lumber, it should find Mooar not guilty. Defendant’s instruction E, also aids plaintiff’s instruction B which informed the jury that even though a preponderance of the evidence showed that Bzepecki was not authorized by Mooar to purchase the lumber, still if the preponderance of the evidence showed the lumber was delivered to Mooar’s property and he permitted it to be used in improving the building and accepted the benefits, that he is responsible. Plaintiff’s instructions 0 and E complained of are statements of the law on undisclosed principal and while it would appear that they should not have been given, plaintiff’s evidence of the circumstances of the purchase of the lumber might have given rise to a doubt whether plaintiff knew of Mooar’s relationship with Bzepecki, and we believe giving the instructions was not error. We see no inconsistency in the instructions and while one or two of plaintiff’s instructions, standing alone, may be inadequate, when read together the instructions given on behalf of both parties appear to have presented the issues in the case fairly.

We have not considered the remaining point with reference to Mooar’s claim that he settled in full with Bzepecki before learning of plaintiff’s claim. This is a factual question resolved in the jury’s verdict against Mooar. The evidence clearly shows that Mooar’s contention on this point has no merit.

For the reasons herein given the judgment of the Municipal Court is hereby affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.


author: Presiding Justice Burke.

text:
    Anita Grossman, Appellee, v. Samuel Grossman, Appellant.
    Gen. No. 41,810.
    Heard in third division, first district, this court at October term, 1941;
    opinion filed June 24, 1942.
    Rathje, Hinckley, Barnard & Kulp, for appellant; Francis E. Hinckley, of counsel; Ehrlich & Cohn, for appellee; Benjamin H. Ehrlich and Aaron H. Cohn, of counsel.
   Opinion by

Presiding Justice Burke.

“Hot to be published in full.’’


author: Justice Hebel.

text:
    Leo P. Harris, Appellee, v. Oxford Metal Spinning Company, Inc., Appellant.
    Gen. No. 41,980.

      Heard in third division, first district, this court at October term, 1941;
    opinion filed June 24, 1942.
    Whitty & McGah, for appellant; William E. Moran, of counsel; Archie Sehimberg, for appellee; Harold J. Finder, of counsel.
   Opinion by

Justice Hebel.

“Hot to be published in full.”


text:
    People of the State of Illinois ex rel. Virginia Bondy, Appellee, v. Walter Morey, Appellant.
    Gen. No. 42,091.
    Heard in third division, first district, this court at December term, 1941;
    opinion filed June 24, 1942.
    Marshal I. McMahon and Kart & Sassan, for appellant; John J. Sassan, of counsel; Thomas J. Courtney, State’s Attorney, and L. Sheldon Brown, for appellee.
   Opinion by

Justice Hebel.

“Hot to be published in full.”


author: Justice Kiley.

text:
    Albert F. Diegley, Appellee, v. Mabel E. Lilly, Appellant.
    Gen. No. 41,775.

      Heard in third division, first district, this court at June term, 1941;
    opinion filed June 24, 1942.
    Pollock & Latehford and Samuel S. Brown, for appellant; Edward Gr. Berglund, for appellee.
   Opinion by

Justice Kiley.

“Not to be published in full.’’


author: Per Curiam.

text:
    John J. Crowe, Trading as John J. Crowe and Company, Appellee, v. Elsinor Apartments, Inc., Appellant.
    Gen. No. 41,751.
    Heard in third division, first district, this court at June term, 1941;
    opinion filed June 24, 1942.
    Sonnensehein, Berkson, Lautmann, Levin-son & Morse, for appellant; I. E. Ferguson and Jesse H. Brown, of counsel; J. Edward Newberger and Frankel & Frankel, for appellee; Barnie E. Frankel, of counsel.
   Per Curiam.

“Not to be published in full.’’


text:
    Walter Kudela, Appellee, v. Northwestern Securities Company et al., Appellees. Gustave Spitzer, Appellant.
    Gen. No. 42,038.

      Heard in third division, first district, this court at October term, 1941;
    opinion filed July 3, 1942.
    Bernard Roseneranz, for appellant; Max Krauss, for appellee; Merwin S. Rosenberg, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    People of the State of Illinois, Plaintiff, v. Peter B. Schyman and Horace B. Hannon, Defendants. In re Peter B. Schyman and Horace B. Hannon. Peter B. Schyman, Appellant, v. People of the State of Illinois, Appellee.
    Gen. No. 42,077.
    Heard in third division, first district, this court at December term, 1941;
    opinion filed July 3, 1942.
    Ode L. Rankin, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Nu-Enamel Nortown Distributors, Inc., Appellee, v. Nu-Enamel Corporation, Appellant.
    Gen. No. 42,334.
    Heard in third division, first district, this court;
    opinion filed July 3, 1942.
    Francis L. Boutell, for appellant; A. D. McMahon, of counsel; Blum & Jacobson, for appellee; George M. Shkoler, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


author: Mr. Justice Wolfe

text:
    Rose Wesbrock, Appellant, v. Colby, Inc., Appellee.
    Gen. No. 9,777.

      Heard in this court at the May term, 1942.
    Opinion filed August 21, 1942.
    William 0. Atten, of Wheaton, and Leo G-. Hanna, of Chicago, for appellant.
    Edgar F. Thoma, of Elmhurst, for appellee; G-eorge E. Billett, of Chicago, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The plaintiff, Bose Wesbrock, brought a suit to recover for personal injuries sustained by her when she fell down the basement stairs of Colby’s Inc., store building, as she attempted to use the telephone located in a stairway of the store. In her petition, filed in court, she charged she was an invitee in said store; that the vestibule where the" telephone was placed, was not lighted; that the stairway was open and unguarded, and that the defendant failed to give any warning to the plaintiff of the danger of the surrounding condition. At the close of the plaintiff’s evidence, the defendant entered a motion for a directed verdict, and at the close of all of the evidence, the motion was renewed. These motions were taken under advisement by the court. The jury returned a verdict in favor of the plaintiff for $6,600. After the verdict, the defendant entered a motion for judgment notwithstanding the verdict. This motion was sustained, the verdict set aside, and judgment entered in favor of the defendant and against the plaintiff for costs. It is from this judgment that the plaintiff has perfected an appeal to this court.

There is very little, if any dispute, in regard to the evidence in this case. The record discloses that the plaintiff visited the store of the defendant on “Dollar Day, ’ ’ with the intent of making some purchases; that she was in company with her cousin, Estelle Gartner; that the two ladies entered the store and each made some purchases; that after they had concluded their business in the store, they started to leave; that they got to the front door when Mrs. Wesbroek stated to her cousin that she wanted to telephone her sister; that the cousin said to give the parcels to her, and that she would wait for Mrs. Wesbroek; that Mrs. Wesbroek then turned around and went back and asked one of the clerks at a counter if she might use the telephone; that the clerk replied, “that there was the telephone,” and pointed toward the vestibule; that Mrs. Wesbroek then opened the door, went into the hallway to use the telephone; that according to plaintiff ’s testimony, she could see the telephone on the wall, but it was of the dial kind, and it was so dark in the hallway that she could not see the dial; that she left the hallway with the telephone book, but saw that the girl that she had asked about the telephone, was waiting on some one; that she then stepped back into the hallway and felt around the side of the wall for a light, and was looking for a light switch; that she did not find the switch, but saw what appeared to her to be a light cord; that she reached to pull the light on, and that was the last she remembered; that when she regained consciousness she was at the foot of the stairs. The light had been turned on; that she was in pain, and was taken up the stairs and then to a hospital. This is substantially the only evidence in regard to how the accident occurred, and it is upon this evidence that the court held that the plaintiff was not entitled to recover.

The question arises whether the plaintiff, at the time the accident occurred, was an invitee of the store, or merely a licensee. The rule of law is, that a person visiting a store for the purpose of transacting business in the same, is an invitee, and the owner of the store must use reasonable care to see that the premises are in a reasonably safe condition, so that the customers visiting the store have a reasonably safe place to do their shopping. The rule is entirely different to a licensee of a store. If a person enters a store, not for the purpose of business, but on some personal errand, or if a person goes into a part of the store where customers are not supposed to be in the ordinary course of their business, then the person becomes merely a licensee, and the only duty that the storekeeper has to such licensee is, to not wilfully or wantonly injure the person. In this case there is no contention that there is any wilful or wanton misconduct on the part of the defendant.

Under the evidence as presented in this ease, it shows that the plaintiff visited the store for the purpose of making some purchases, and really did do so, but her business transaction with the store had been completed, and she was on her way and practically out of the store when she thought of telephoning* her sister, which was a transaction wholly not connected in any way with the defendant except that she attempted to use the defendant’s telephone. Evidently this telephone was not intended for the use of the public, as there was no sign, as is usual at public telephones. There is no evidence that the clerk, employed by the defendant, had any authority to give the plaintiff permission to use the telephone, nor according to the evidence did she give such authority, but in answer to the plaintiff’s question if there was a telephone, she answered that there was, and pointed towards the place where the telephone was.

It is our conclusion that at the time Mrs; Wesbroek received the injuries in question, she was a licensee instead of an invitee of the store, and the court properly held that a judgment in her favor could not stand.

Before the plaintiff could recover, it was incumbent upon her to show that she was free from contributory negligence that was the proximate cause of her injury. She went into a hall which was so dark, that she says she could see the telephone, but could not see the dial ; that she opened the door, and went back into the store with the telephone directory in her hand, then went back into the same unlighted dark place; that she felt around the dark walls for a light switch, then in attempting to reach for what appeared to be a light cord, she fell and was injured. It seems to us that under such circumstances the plaintiff herself was guilty of contributory negligence that was the proximate cause of her injuries, and is barred from a recovery in this case.

We find no reversible error in the case, and the judgment of the trial court is affirmed.

Affirmed.