author: Morar, J.

text:
    Metropolitan Gas Company of Hyde Park v. Village of Hyde Park.

      Injunction — Municipal Corporation — Gas Company — Eight to Lay Gas Pipes — Ordinance—Acceptance—Attempted Eepeal.

    Upon a bill filed by a gas company to enjoin a municipal corporation from preventing the complainant, from laying gas pipes in the defendant’s streets, it is held: That (he threat on the part of the defendant to use force to prevent the laying of pipes by the complainant, is sufficient to justify the interference of the court., if the complainant is otherwise entitled to relief; that the complainant was justified in not applj-ing for a permit to lay its pipes; that the ordinance in question was a valid grant to the complainant of the right to lay its pipes in the defendant’s streets and furnish gas to its inhabitants; that said ordinance was accepted and acted upon by the complainant within a reasonable time; that no formal acceptance of the ordinance was necessary, acts done upon its faith, in furtherance of its purpose, by virtue of it and known by the defendant to have been so done, being sufficient to operate as an acceptance; that the acts of the complainant must be regarded, under the evidence, as done in good faith; that the ordinance and its acceptance constituted a valid contract between the parties, which was not affected by the attempted repeal of the ordinance; and that, the case is not affected by a former ordinance granting exclusive privileges to another company.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the lion. Murray F. Tuley, Judge, presiding.
    Appeal from a decree of the Circuit Court of Cook County, dismissing appellant’s hill for an injunction. The main facts in the case are as follows:
    The Metropolitan Gas Company of Hyde Park became incorporated by that name under the general incorporation laws of the State, June 20, 1882, with a capital stock of §500,000, divided into five thousand shares of §100 each, the location of its principal offices being Hyde Park, in Cook County. The object for which it was formed was “the manufacture, sale and supply of gas for illuminating, heating and mechanical purposes.” Its certificate of incorporation .was recorded in the office of the recorder of Cook County, June 23, 1882. The village of Hyde Park is a municipal corporation, being incorporated August 19,1873, under and by virtue of “An act to provide for the incorporation of cities and villages,” in .force July 1, 1872.
    dime 28, 1882, the president and board of trustees of the village of Hyde Park passed an ordinance granting to appellant “ exclusive permission and authority irrevocable,” to lay its gas mains, pipes, feeders and service-pipes in all the streets, alleys, highways, etc., of the village, except in that part of the village territory south of 95th Street, and West of Stony Island Avenue and Lake Calumet. Section 2 of the ordinance makes it obligatory on the company to restore streets, opened for the purpose of laying pipe, etc., to a, condition as good as before the opening thereof, and section 3 provides as follows: “ The works of said company, of a capacity to manufacture and deliver at least 300,000 cubic feet of gas per day, shall be commenced within five years from this date, and the price of gas to consumers shall not exceed §3.50 per 1,000 cubic feet.”
    August 3, 1882, a written agreement, formally signed'by the proper officers, and sealed with the corporate seals of the two corporations, was entered into hv and between the village and the gas company, in and by which (after reciting that a necessity existed for a proper supply of gas for illuminating purposes in the village, that the village was not in a financial condition to expend the money necessary for the erection of gas works, and desired to induce the gas company to invest the necessary capital in the construction of works, mains and pipes, and in the manufacture and supqfiy of gas, at a reasonable cost to the village and its inhabitants,) the village, in consideration of said circumstances, and the undertakings and agreements of the gas company, agreed to take and use, for twenty years from date of agreement, such quantity of gas manufactured by the company as should he required to light the streets and public buildings of the city, such supply to commence when the company should be in condition to furnish the same, the village to pay §3 per 1,000 cubic feet for the gas and to erect such lamp posts as it might order, bear the expense of service pipes thereto, and of lighting the lamps and keeping them and the lamp posts in repair, the company to have the exclusive right to use such lamps and posts for lighting, etc.
    The company on its part agreed as follows: To construct, maintain and operate in the village, works of sufficient capacity to manufacture the necessary supply of illuminating gas, of standard quality, to meet the requirements of said village, “ at a cost not to exceed the terms of the ordinance granting permission to said company to lay gas mains, pipes, etc.,” and to credit the village with the sum of fifty cents on each one thousand cubic feet of gas supplied to and paid for by it, the amount so to be credited to be, at the end of each fiscal year of the village, certified to and entered on the books of the village and the company, the village thereupon to be entitled to the same pro roii».dividends as should be paid on the stock of the company; the village to have the right, at its option, to advance money for the extension of gas mains, any money so advanced to be credited and dividends paid thereon in like manner as above stated; to pay to said village, at the end of said time of twenty years, in case the village should compty with its contract, the amount standing to the credit of the village on account of said credit of fifty cents per thousand cubic feet, and in addition thereto, the then value of such pipes as might be laid by the village under its contract, etc.
    In conclusion it was mutually agreed that, in the event the village should refuse to take gas for public use from the company, then the provisions of the agreement for payment to the village by the company should be considered canceled.
    August 7,1882, the president and board of trustees of the village passed another ordinance, granting permission to appellant to lay its gas mains, pipes, etc., in all of the streets, etc., of the village. This ordinance is substantially the same as the ordinance of June 26, 1882, with the following exceptions: It does not purport to grant exclusive authority, as did the former ordinance. It extends to all the village territory, not excepting any part of the territory as did the former ordinance. It fixed the maximum price of gas supplied to private consumers at three dollars per thousand cubic feet, instead of three and one-half dollars, the maximum price fixed by the former ordinance, but provides that in case payment shall be made for the gas within twelve days next after the expiration of the month in which the gas shall have been used, there shall be a rebate' to the consumer of fifty cents per thousand cubic feet. It concludes with the provision that this rebate shall not apply to street lamps and public buildings, the supply therefor to be subject to a special agreement.
    Appellant purchased and obtained deeds of conveyance dated respectively November 15, November 25 and December 2, 1882, for the following described premises, situated in the village of Hyde Park, Cook County, Illinois: Lots 1 to 7, both inclusive, in block 2, in Crane & Mead’s subdivision of 7 92-100 acres in the N. W. of Sec. 2, T. 38 N., B. 14 E., etc., for the consideration of $10,800, appellant assuming and agreeing to pay a mortgage to secure $2,000 on lots 4 and'5. (Abs. 29.) These premises were purchased and held by appellant, as the evidence conclusively shows, solely for the purpose of constructing gas works thereon.
    May 1,1883, Joseph T. Torrence and David C. Bradley, who appear by the evidence to have been stockholders, and the former president and the latter vice-president of the company, made, in their own names, but for the benefit of the company, a contract with T. G. Springer, by which it was agreed substantially as follows: Torrence and Bradley, in consideration of Springer’s agreement, sold and assigned to Springer all their interest in the capital stock, property and franchise of the company. Springer on his part, agreed to build and equip, ready for use, first-class gas works, for the manufacture of illuminating gas, of a sufficient capacity to produce 400,-000 cubic feet of gas per day, on lots 1 to 7, inclusive, in Crane & Mead’s subdivision in section 2, town 38 north, range 14 east, etc., in Cook County, Illinois, and to have such works ready to furnish gas within six months from the date of the agreement, and to turn the completed works over to the Metropolitan Gas Company of Hyde Park. It was further agreed that, for the purpose of raising money for the construction of the works, Springer should cause the company to issue twenty-year seven per cent, bonds, secured by mortgage or deed of trust on the company’s property, the total amount of the principal of said bonds not to exceed §200,000, and that as soon as the bonds and mortgage were issued and the mortgage filed for record, and, in any event, not later than three months from date of agreement, Springer would assign to Torrence and Bradley one-third of the entire capital stock of the company, without further consideration, etc., and would also, out of the proceeds of said bonds, put in and lay in the village all mains, pipíes, etc., to supply the gas required of the company by the village, and that the gas company should make all necessary expenditures for perfecting its franchises and securing contracts for gas, etc.
    May 12, 1883, the following communication from appellant was presented to the president and board of trustees of the village, at their meeting held on that day:
    “ To the President and Board of Trustees of the Village of Hyde Park.
    “ Gentlemen : Ton are hereby notified that the Metropolitan Gas Company, of the village of Hyde Park, county of Cook and State of Illinois, a corporation duly organized under and by virtue of the laws of Illinois, and whose organization has been fully completed, has commenced business, and that, in view of, and under the provisions of the ordinance passed by the president and board of trustees of the village of Hyde Park, on, to wit, the 7th day of August, A. D. 1882, granting ‘said corporation the right to lay pipes and operate gas works in said village, said corporation has purchased the following real estate in said village on which to erect its works, to wit: Lots 1, 2, 3, 4, 5, 6 and 7, in block 2, in Crane and Mead’s subdivision, in section 2, town 38 north, range 14; the title to the same being taken and recorded in the name of said Metropolitan Gas Company, on which the said company has paid to the said village the taxes; and, further, that said company has entered into contracts for the erection of its works and machinery, and for the laying of sufficient iron pipe to supply the said village, and that, by such contract, it has provided that said works and pipe shall be in a condition to furnish a full supply of gas before the end of next November ; that all this has been done under and in view of the said ordinance, and said company are proceeding, in good faith, to the erection of works that shall have a capacity of about 400,000 cubic feet of gas per day. All of which is respectfully submitted.
    “ John M. Brown,
    “ Secretary of the Metropolitan Gas Company.”
    The foregoing communication was referred by7 the president and board of trustees to the judiciary committee of the board, and afterward at the same meeting, and before the judiciary committee had made any report, the following occurred: “Mr. Mason moves a reconsideration of the vote referring the communication from the Metropolitan Gas Company to the judiciary committee, with directions to confer with the officers of said company,” etc. “ The motion was carried,” etc. Afterward, and at the same meeting, the following ordinance was passed, approved and tiled:
    “Be it ordained by the president and hoard of trustees of the village of Hyde Park:
    “That the ordinance passed and approved Juno 26, 18S2, entitled, ‘An ordinance concerning the Metropolitan Gas Company, of Hyde Park,’ and the ordinance passed and approved August 7, 1882, entitled, ‘Ordinance for the Metropolitan Gas Company of Hyde Park,’ be, and the same are hereby repealed.”
    The contract made by Torrence and Bradley with Springer was not carried out. The company, early in the spring of 1884,-had plans and specifications for its gas works prepared, and let the contract for its work to one Courtney, who immediately7 commenced the work and had made a large excavation, about 120 feet wide by 18 feet deep, for the gas holder; had excavated for the foundation, built nearly all the foundation walls up above the surface of the ground ready to receive the brick work; had made a sub-contract for the brick, and had delivered on the ground 116,000 brick; had purchased lumber, and had the frames made and the cut stone work and everything pertaining to the finishing of the building, when he was stopped by the company, on account of certain condemnation proceedings in relation to the premises, commenced by the village. The amount expended by the company in fencing the premises and in payments to Courtney on his contract was over §5,000, in addition to which it bought §10,000 worth of pipes for gas mains to be used in the village in connection with its works, and had it delivered on the ground. The forcgoing was all done prior to June 11,1884, when the president and board of trustees passed an ordinance for the opening or extension of Waffiott avenue, in the village, which would necessitate, if carried out, the taking of about thirty feet from the ends of the lots 1 to 7, inclusive, leaving them 110 feet in depth instead of 140 feet, their original depth, and insufficient for the erection thereon of works of the capacity required by the ordinance of August 7,1882. The Metropolitan Gas Company of Hyde Park was made a defendant, by name, to the condemnation petition filed Juno 23, 1884, in the County Court, in accordance with the ordinance of June 21,1884, and was served with process and appeared, and compensation to the amount of §14,300, including damages of the remainder of the lots and to improvements, were awarded to it by the verdict of a jury and the judgment of the court. An appeal was prayed by the village' and allowed, which was, at the September term, 1888, of the Supreme Court, dismissed on a short record for want of prosecution, and nothing further has been done by the village in regard to the extension of Walcott avenue.
    November 25, 1883, appellant presented to the president and board of trustees of the village, at their meeting held on that day, the following communication:
    “ To the President and Board of Trustees of the Village of Hyde Park.”
    “ Tour honorable body is hereby respectfully informed that it has been advised by competent counsel that the ordinance passed by your honorable body May 12, 1883, and purporting to repeal a former ordinance passed August 7, 1882, was and is invalid, and that the Metropolitan Gas Company of Hydo Park will immediately proceed to lay gas mains and pipes in Myrtle and Lake Avenues, and other streets in the village of Hyde Park, under and in pursuance of the authority and permission granted by said ordinance passed, as aforesaid, August 7, 1882.”
    “T. G. Springer,
    “ President of the Metropolitan Gas Company of Hyde Park.”
    This communication was referred to the judiciary committee, which committee, at the same meeting, reported, recommending that the captain of police be instructed not to allow any persons to lay pipes in the streets of the village, without first obtaining permission from the board, which report was unanimously adopted. It is admitted in the answer that the board of trustees ordered the captain of police to prevent appellant, or any one acting under it, from laying pipes in any of the streets, and the captain of police testified that he so instructed his men.
    The village of Hyde Park had by ordinance passed June 21,1871, granted to the Hyde Park Gas Company the exclusive right north of 60th street to lay its gas mains, pipes and feeders, and in May, 1883, said Hyde Park Gas Company was located and in operation and furnishing gas to Hyde Park, and had works of sufficient capacity to furnish all required. The ordinance of the village relative to permits to lay pipe is as follows:
    “Seo. 1. Any company putting in pipes shall he required to lay their street mains at a distance of not less than ten feet from the center of the street in said village, and on the south or west, or southerly or westerly sides of streets; and in all cases so that they will not interfere with sewers or water pipes, and according to any resolution of the hoard of trustees. In case water pipes or sewers are laid in any street, so that a compliance with the above will cause gas pipes to be placed on the same side of the street or avenue as the water pipes or sewers, then, in such case, the gas companies shall obtain special permission as to the location of said gas pipes.”

      Hr. Francis Adams, for appellant.
    The ordinance, its acceptance by the company and the acts of the company under and in pursuance of it, constituted a contract between the village and the company which the village was powerless to repeal. Dillon on Mun. Corp., Secs. 314, 450; City of New Orleans v. Wardens, etc., 11 La. Ann. 244; City of Chicago v. Sheidon, 9 Wall. 53; City of Quincy v. Bull et al., 106 Ill. 337.
    Appellee, having attempted to repeal the granting ordinance and passed an ordinance requiring the taking of part of appellant’s lots, which it well knew were purchased solely for the erection thereon of gas works, with part of the improvements made by appellant, having unnecessarily delayed and protracted the condemnation proceedings, leaving appellant, during such delay, uncertain as to whether it would proceed and make the improvements or exercise its right of abandonment, and having ordered its police to forcibly prevent appellant from proceeding to lay mains and pipes, is estopped from asserting that appellant has unreasonably delayed constructing its works. City of Chicago v. C. & W. Ind. Ry. Co., 105 Ill. 73.
    The answer set up contains ordinances of the village, passed respectively in 1871 and 1875, purporting to grant to the Hyde Park Gas Company permission to lay mains, pipes, etc., in the streets of the village, and contains allegations as to what that company did in the premises, and appellee’s counsel introduced the ordinances in evidence. Clause 2d of section 1 of the ordinance of June 21, 1871, purports to grant to the company exclusive rights within certain described territory. The authorities are clear that a municipal corporation can not grant such exclusive right, unless expressly authorized so to do by legislative enactment. Dillon on Mun. Corp. 692, 693, 695, 696; Indianapolis v. Indianapolis Gas Co., 66 Ind. 396; Chicago v. Rumpff, 45 Ill. 90.
    Appellant is not seeking to contest the right of any other corporation, and the sole question in this case is, whether appellant acquired vested rights under the ordinances of 1882, which the village of Hyde Park could not divest against ap_ pellant’s will by the repeal of the ordinance or otherwise. Such being the question, and it not being insisted that the , Hyde Park Gras Company has any exclusive rights under the ordinances in respect to it, I am unable to perceive that these ordinances are relevant to the issue.
    Messrs. Smith & Pence, for appellee.
    The gas company, assuming that the ordinances of June 28 and August 7, 1882, are in force, is not entitled to relief. Its works are not in readiness, and it can not furnish gas. The court will not assume that it will build and complete its plant. The proofs are that it abandoned in 1884 the thought of construction upon the lands purchased, and it has none other. The circumstances show that it is a speculative organization.
    Equity will not assist a speculation, nor cause a needless thing to he done. Healy v. J. & C. R. R. Co., 94 Ill. 416.
    The gas company has not shown a disposition or willingness to comply with the general ordinances. These ordinances are reasonable and not inconsistent with those of June and August, 1882. They are in force. City v. Bull, 106 Ill. 331.
    The gas company should have asked a permit. In fact the prohibitory order in terms goes only to the extent of requiring a permit.
    If the permit had been asked the village might have given it, and in doing so would have exercised its reserved right to designate location.
    The letter presented on November 25, 1885, was a threat, not a request.
    The refusal of the village was, under the circumstances, the exercise of a discretion with which courts will not interfere. Chicago v. Wright, 69 Ill. 318; Thornton v. Roll, 118 Ill. 350.
    The ordinance of June 26, 1882, was void. It purports to he exclusive. The village, without power conferred by law, attempted to exercise an authority belonging to the legislature. Louisville Gas Co. v. Citizens’ Gas Co., 115 U. S. 683. It allowed an unreasonable time within which to commence' work. In other words, it undertook to bind the village for five years, without a corresponding obligation on the part of the gas company. Garrison v. City, 7 Bissell, 480.

      The same may also be said of the ordinance of August 7, 1832. Cornell v. People, 197 Ill. 372.
    The ordinance of June 26, 1882, was not accepted, and was inconsistent with that of August 7, 1882.
    The contract of August 3, 1882, was ultra vires and void. It was also inconsistent with the preceding ordinance. It was not ah acceptance in intent, nor in fact; nor was it made in good faith. It appears upon its face to have been corrupt.
    The ordinance of August 7, 1882, was a revocation of that of June 26th, because they are not reconcilable.
    The ordinance of August 7,1882, was not accepted, nor was any work done until May 12, 1883, the day of the repeal.
    Lands were purchased in November, 1882, hut nothing was done upon them until May 12, 1883. They could have been sold at any time. The ordinance was not, as regarded the village, acted upon prior to the repeal. C. C. R. W. Co. v. People, 73 Ill. 341; M. C. R. W. Co. v. C. W. D. R. W. Co., 87 Ill. 317; City v. Bull, 106 Ill. 331.
    The contract between Bradley, Torrence and Springer, to which the gas company was-not a party and by which it was not bound, was, as regards the relations between the village and gas company, of no moment. The repeal was, therefore, a revocation which was within the power of the village.
   Morar, J.

Appellee takes the position in its answer that appellant had no authority whatever to lay gas pipes or mains in the streets of the village, and admits that, after the receipt by the authorities of the communication from appellant that it would immediately proceed to lay gas mains and júpes in Myrtle and Lake avenues and other streets, the,president and hoard of trustees ordered the captain of police to prevent aj>pellant, or any person acting for it, to lay gas pipes or mains in „ any part of the streets. That being the position of the village authorities, it was wholly unnecessary for the gas company to make an actual attempt to lay pipe in some street before applying to the court to restrain the officers from forcibly preventing the operations of the company.

The threat to use force will justify the interference of the court if the complainant is otherwise entitled to the relief,and particularly is this so when, in the answer, the legal right of the complainant is denied and the intention-to use force to prevent the accomplishment of the act is admitted.

The suggestion by counsel for appellee that complainant should have applied for a permit is not tenable, for the reason that the answer and proof shows that no permit would be granted, as the village authorities denied complainant's legal right, and for the further reason that the conditions are not shown to have been in existence, which made it necessary for the company to have a special permit under the ordinance of the village.

The propriety of the action of the court below in refusing the relief sought by the bill depends on the question whether there was a valid ordinance which had been passed by the village and accepted by appellant, and which thus became a binding contract between appellee and appellant before the repealing ordinance of May 12, 1883, was passed by the village board.

We are disposed, in the determination of this question, to confine ourselves to the consideration of the ordinance of August 7, 1882. The only objection to the validity of this ordinance is that it gave complainants the period of five years in which to commence the erection of gas works. If the provisions of the ordinance relating to the time within which the operations of the company were to be commenced were treated as invalid,, the remaining provisions of the ordinance would stand as they are, not connected with or dependent upon the time clause. The company would be forced to accept the ordinance and act under it within a reasonable time. The ordinance then as passed must be held to have been a valid grant to the company to lay gas pipes and mains in the streets of the village and to furnish gas to the inhabitants, and the remaining question is whether said ordinance was accepted and acted upon by the appellant within a reasonable time.

It appears from the record that within four months from the passage of the ordinance appellant, through its officers, procured a person who had experience in the construction and operation of gas works, to examine certain real estate in the village, in order to determine its suitability as a location for such gas works as appellant was required to erect; and that upon said expert reporting favorably as to said real estate, the same was purchased by appellant for the sum of §10,800, and the title to the same vested in appellants by a sufficient deed.

On May 1, 1883, and within nine months after the passage of said ordinance, Bradley and Torrence, who were promoters, stockholders and officers of the appellant company, made in their own names, with Springer, a contract for the erection and equipment of gas works upon the land so purchased and held by appellant; said works to he ready to furnish gas within six months from the date of said contract, and the works, when so completed, to be turned over to the appellant. As consideration to Springer, Bradley and Torrence assigned to him all their interests in the capital stock of the appellant company, and in and to its property and franchises, and authorized him to issue bonds of the company secured by trust deed upon its property, and, after said bonds were issued, Springer was to re-assign to said Bradley and Torrence one-tliird of the capital stock of the said company.

On May 12th the village was notified of the purchase of said land by appellant, and of the making of said contract, and that such acts had been done under and in view of said ordinance.

Did those acts, done, as we are hound to believe from the evidence they were done, in good faith, constitute a sufficient acceptance by the appellant of said ordinance, so as to bind the company and create an obligation to erect gas works and furnish the inhabitants of the village with gas?

There does not appear to have been any formal acceptance of the ordinance at the meeting of the board of directors of the company, bnt while such an acceptance would probably be sufficient, yet that the ordinance was so accepted need not be shown, as acts done upon the faith of the ordinance, which are in furtherance of its purposes and induced by it, and which are known to the village or city granting the ordinance to have been done in pursuance and by virtue of the ordinance, will amount to a binding, acceptance without any formal acceptance by the managing board of the 'company. Acts which will constitute such acceptance must not be such as are merely equivocal in character, but there must be such acts as, given their fair import and interpretation, can be said to be done in furtherance of the purpose of the act.

Thus, it was held by the Supreme Court of Indiana, it was evidence of the acceptance of a railroad charter passed by the legislature in January, 1849, that in October, 1851, a meeting was held by a majority of the corporators named, when they determined to build the contemplated railroad under the charter. State v. Dawson, 22 Ind. 272.

We are of opinion that the purchase by appellant of land on which to erect its works after the passage of the ordinance, and the contract made for the benefit of appellant by persons who had invested a considerable sum for the promotion of the enterprise and who were stockholders of appellant, for the erection of gas houses and apparatus for appellant, were acts of an unequivocal character, done in pursuance of the object and purpose of the ordinance, and that when appellee had notice of those acts and the intent and purpose for which they were done, it became too late for appellee to repeal the ordinance, and that the same was and continues to be a valid and binding contract between the appellant and the village of Hyde Park.

The suggestion by counsel for appellee that the land which appellant purchased could be sold again, and therefore the purchase of it was not acting upon the ordinance as regarded the village, might be said of any act which the company could perform short of the actual laying of its pipe in the streets. A building erected by the company could, after its erection, be put to other uses than the manufacture of gas, and excavations made in the streets for pipe might be filled up again and no pipe be placed therein. The land might be purchased and the building erected and the pipe laid as a sham and a pretense, it is true,' but, if such acts were done in good faith, it is difficult to perceive why they would not be sufficient acceptance of such an ordinance as this when brought to the notice of the village.

Such acts should be regarded as done in good faith under the ordinance when the officers of the company so swear and there is no evidence to indicate the contrary.

The ordinance having been accepted before the repeal of May 12, 1883, constituted a binding contract between appellant and the village, and the village was therefore powerless to set it aside, and the attempted repeal was futile and without legal operation. City of Quincy v. Ball et al., 106 Ill. 337; City of Burlington v. Burlington Street Ry. Co., 49 la. 144; Railway Co. v. Village of Carthage, 36 Ohio St. 631.

The fact that the village had, by ordinance, granted exclusive privileges to the Hyde Bark Gas Company, and that said company have works in operation and can supply the wants of the village, can have no influence on the result of this case. The interests of the village, or the inhabitants thereof, are not likely to be injured by permitting two gas companies to distribute gas instead of one, and it is even possible that some advantage may come to the users of gas by allowing tlie competition.

We are of the opinion that the court erred in refusing the injunction prayed for, and the decree must be reversed and the cause remanded, with direction to allow the injunction in accordance with the prayer of the bill.

Reversed and remanded..


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    Lewis Umlauf v. Victoria Umlauf.

      Divorce — Custody of Children — Petition to Change — Scope of Inquiry,

    1. Where a decree of divorce provided that the children should remain under the care, custody and tuition of the mother, until the further order of the court, and such decree has not been brought to this court for review, upon a petition by the father to have the custody of the children changed, the inquiry is limited to matters set up in the petition, arising since the entry of the decree.
    2. Upon the entry of a decree of divorce, the court will chiefly regard the good of the children in making provision for their custody.

      [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Wm. T. Ament and C. C. Stbawn, for appellant.
    Messrs. Blanice & Chytraus and John Woobbridge, for appellee.
   Gary, J.

On the 22d day of April, 1887, in the Superior Court, the appellant obtained a decree for divorce from the appellee on the ground of desertion, and in that decree the court ordered that the two sons of the parties, then aged nine years and six years and six months, respectively, should remain under the care, custody and tuition of the defendant (appellee) until the further order of the court.

The court found and recited in the decree, that both parties were fit to have the custody, care and tuition of the children, hut that “on account of the tender ages and present physical condition of said children, it is for their better welfare that they remain” with her. The decree also required him to pay her forty dollars per month for their support. That decree remains in force; neither party appealed from it. It is now to be taken as a wise exercise of the judicial discretion of that court.

On the 13 th of October in the same year, the appellant presented to that court his petition, asking that the custody of the children might be “restored” to him. The only matters of fact which he alleges as the ground of Ms petition, and which by any construction can be considered as relating to what has happened since the decree, are stated in his petition as follows: "

“This petitioner further states to the court that the slight indisposition of said children, alleged to have existed at the time of the entry of the aforesaid decree, has long since passed away; that he can properly support and maintain them under his own roof for about one half the sum of money which the said decree required him to pay for their maintenance elsewhere, and that he can not afford the said unnecessary expenditure.” The petition then proceeds: “Petitioner further says that he ought to be invested with the care, custody and control of his said son Arthur, who is now about nine years and six months of age, and of the brother of said Arthur, who is now about seven years of age, for the reasons following:
“1. Because it is for the unquestioned best moral and physical welfare of the said children.
“2. Because he can maintain the said children on less expense at his own home.
“3. Because your petitioner has never waived, lost or forfeited his right to the custody of the said children.
“ 4. Because your petitioner has never committed any act or deed for which the law of the land will compel him to maintain two separate homes, or to enforce a separation of his children, or that any of them should, during their minority, be taken and kept away from him, and to be raised as in hostility and as strangers to him.
“ 5. Because the law of the land does not reward the guilty and punish the innocent.
“Wherefore, for the reasons aforesaid, and for others not above stated, your petitioner respectfully asks that justice may be done to him and to his children, and that the said children, Arthur and Oscar, may be restored to the custody of petitioner.”

On the hearing of the petition the only evidence introduced as to what in this opinion are called “matters of fact,” related to the physical health of the children, and the cost of the petitioner of maintaining the children at his own house, being less than he was required to pay to the appellee. As to the amount he is, by the decree, required to pay, it appears by the record that the court was inclined to reduce it, but the appellant did not, in his petition or at the hearing, ask for a reduction, and he can not assign as error that the court failed to do what was not asked.

Without reciting the evidence it is sufficient to say that it does not appear that the condition of the children had changed since the decree, except that they were a few months older. The effort of the appellant, on the" hearing of the petition and on this appeal, is, in effect, to review the decree of divorce so far as it relates to the custody of the children. That can not be done on this appeal..

That this court should review that decree, it must be brought here by appeal or writ of error. All reasons addressed to this court, on this appeal, why the court ought to have changed the custody of the children, must be based upon wliat has happened since the decree, and not upon the character or condition of the parties, or of the children, at the time the decree was made.

The relative cost to the petitioner of the two modes of supporting the children is not a new ground. It exists, and at the time of the decree existed, in the nature of things.

The custody of children in cases of divorce is a subject as delicate as any with which, courts have to deal. The good of the child is .the chief thing to be regarded. 2 Bishop M. & D. Sec. 529; Hewitt v. Long, 76 Ill. 399.

In Wilkinson v. Doming, 80 Ill. 342, it is held that where a decree of divorce gives to the complainant absolutely the custody of a child, it takes from the defendant all power thereafter over the infant until it shall be restored by the action of a proper court. Whether the custody shall be given to the complainant or defendant, is to be determined by the court when it enters the decree for divorce. A decree, if wrong, is just as invulnerable to collateral attacks as aright one. This court does not intimate that the decree between these parties was not right. The court that has before it the parties and the children has the same superior facilities for judging as to the proper custody that a jury, or a court trying a cause without a jury, has for passing upon the credibility of the witnesses. The whole case is not here for a trial de novo.

Great stress is laid by the appellant upon the assumed facts that the appellee treats the children with cruelty, is raising them in hostility to the appellant, and permits them to associate with one person named, with whom no association by them ought to be allowed. In this petition no such ground for changing the custody was alleged. If, however, 'the rule that the allegations and the evidence must correspond to each other were relaxed, the case only shows that the appellant and his witness testify that the oldest one of the children, in interviews with them, said that this improper associate came and stayed frequently over night, and played with him; that, at the time of one of the interviews, this boy had a bruise on his head, and said his mother whipped him often; and they described the conduct of appellee and the chi'dren, especially the youngest, indicating that the children were taught to regard the appellant with aversion.

The children, who were on the stand as witnesses, deny the whole matter, as does the appellee, and to some extent she is corroborated in several particulars by other witnesses. It appears that the boys have two uncles of the same first name. The appellant insists that the boys are permitted to associate with the bad one, while the appellee contends that it is the other. What was the extent of the intercourse, and with whom, was for the Superior Court, upon the conflicting testimony, to decide.

And as to the sentiments of the children toward the apjiolían t, and the influence exerted to produce them, the treatment of the children by the appellee, and the many considerations by which what would be for the welfare of the children is to he determined, the presence of the parties and the children in the court was an aid which a court of review can not have.

The only inquiry is whether the court erred in not changing the custody because of a changed condition of the parties or the children, or improper conduct by the appellee since the decree, and there being no such error the decree dismissing the petition is affirmed.

Decree affirmed.


author: Horan, J.

text:
    South Park Commissioners v. Charles B. Phillips et al.

      Intervening Petition to Enforce Equitable Lien on Fund in a Court of Equity — Jurisdiction—Jury—Discretion—Findings of Fact — Practice—• Attorney’s Fees — Lien.
    1. A court of equity having custody of a fund is the proper forum in which to assert an equitable lien thereon. Where an intervening petition is filed for that purpose, and the defendant answers, he thereby submits the issue to the court and is bound by its action. Whether the issue shall thereafter be submitted to a jury is wholly within the discretion of the chancellor.
    2. In the case presented it is held: That the master’s report contains findings of fact which fully support the decree; that the confirmation of the report by the decree was, in legal effect, the adoption of such findings as the basis of the decree; that the defendant should have preserved the evidence in the record, if he desired to have this court review the findings of fact upon which the decree is based; and that the question of lien for attorney’s fees is not involved, as the lien sought to be asserted grew out of an express contract and assignment of a portion of the fund.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Hr. John Gibbons, for Charles B. Phillips.
    Hr. H. S. Honroe and W. J. Tewkesbury, for petitioners.
   Horan, J.

On Hovember 2,1885,Honroe and Tewkesbury, attorneys at law, filed an intervening petition in the above entitled cause against said Charles B.'Bhillips, alleging, in substance, that petitioners had gendered to Phillips certain legal services in trying and arguing the cause of said Phillips against South Park Commissioners, which services were rendered in pursuance of two certain agreements of said Phillips, which were in the words following:

“ For and in consideration of the legal services of Henry S. Monroe in appearing, trying and arguing the case now pending before Judge Tuley, or in appearing and trying said cause in the United States Court in and for the northern District of Illinois, in case said cause is transferred to that court, so far only as the validity of certain pretended contracts between ChariesB. Phillips and the South Park Commissioners, or between said C. B. Phillips and Corydon Beckwith are concerned (it being understood that the only service to he required of said Monroe is to defend said Phillips against said pretended contracts to the best of his ability), I, the said C. B. Phillips, hereby agree, out of whatever I may receive from said park commissioners, or through an order and decree of any court, distributing the fund, I shall receive for the land appropriated for park purposes, to pay to said Monroe for such service the sum of §2,000, and this contract shall be regarded as an order and voucher for 'said above mentioned service. It being understood that said sum shall be paid only out of said fund. The further sum of §500 is to be allowed for the transfer of this cause to the United States court.
(Signed) “ C. Burton Phillips.”
5!In consideration of the past services of Monroe and Tewkesbury in my suits, and in consideration of their procuring a bondsman to appeal the case lately decided by Hon. M. F. Tuley to the Supreme Court, and of their preparing and arguing said cause and rendering such service in my other cases as I may desire them to perform, I hereby assign, transfer and set over to said Monroe and Tewkesbury sufficient of the moneys to become due from the South Park Commissioners to me for my interest in the land mentioned in the decree of said M. F. Tuley aforesaid, to indemnify fully any one signing my said bond, and also to pay said Monroe and Tewkesbury for the services rendered and to be rendered by them and all their advances and expenses in my case over and above the sum of two thousand dollars, for which I have given them an assignment as stated therein. In case of any disagreement between myself and said Monroe and Tewkesbury as to the value of their services, the judge of the court who shall have charge of the case and the distribution of the moneys to he paid by the South Park Commissioners, shall decide upon the amount due said Monroe and Tewkesbury, and said Monroe and Tewkesbury shall have the right to draw said amount and their receipt therefor shall be a full accpiittance for the same.
“ Chicago, March 4, 1885.
(Signed) “C. B. Phillips.”

An itemized bill of services rendered is set out in the petition and it is alleged that there was a decree rendered in said case of South Park Commissioners v. Phillips whereby said Phillips was to receive a large sum of money, which money was paid into court; that said Phillips has prayed an appeal in said cause, and declines to pay the amount due to petitioners, and petitioners claim a lien on the fund decreed to be paid to said Phillips, and have given notice of such claim to the South Park Commissioners. Prays for a rule on Phillips to answer, and that petitioners ;be awarded the amount of their claim, and said Phillips be decreed to pay the sum out of said fund, etc.

Phillips did not demur to this petition, but answered the same, denying that petitioners were entitled to recover anything for their alleged services, but admitting the making of the contracts above set out. A replication was filed to the answer, and on May 21, 1887, on notice to Phillips, the court ordered the matter of said petition to be referred to a master to take proof of the material allegations in said petition contained, and report the same with the findings thereon to the court.

On May 25, 1887, Phillips filed a motion in writing for a trial by jury upon the issues of fact made by the petition, and to set aside the reference to the master, which motion the court denied.

On November 7, 1887, the master filed his report, finding the amount due the petitioners to be $5,317. Exceptions to said report were filed and were heard by the court, and were sustained as to certain items, so as to reduce the amount allowed to petitioners to $4,317, for which a decree was entered in favor of petitioners, and that amount directed to be paid out of the fund in court in said cause of South Park Commissioners v. Phillips.

From this decree an appeal is prosecuted by Phillips to this court.

Counsel for appellee makes as his first point against the decree that the court of chancery had no jurisdiction to try the question, and that even if the court had jurisdiction it had no right to deprive appellant of trial by jury on the issues involved.

The objection to the jurisdiction of the court comes too late. The case belongs to a class of cases involving contracts and the like, which, while they do not come within the ordinary jurisdiction of a court of equity, yet, inasmuch as these matters only want some equitable element to bring the case within such jurisdiction, the defendant, by answering to the merits instead of demurring, submits the cause to the court, and will not he permitted to afterward raise the question of jurisdiction for the first time on the hearing, much less on appeal. Richards et al. v. L. S. & M. S. Ry. Co., 124 Ill. 519; Same case, 25 Ill. App. 344.

A court of equity having custody of a fund is the proper forum in which to assort an equitable lien upon the same, and while it is true that the amount due petitioners for services was an issue properly triable in a court of law, yet appellant by his answer submitted that issue to the court in equity, and the court acted thereon and he is bound. 1 Dan. Ch. Pr. 608-610. Having submitted his case to the court of chancery he was bound to proceed with the trial thereof in compliance with the practice of that court. The regular mode of settling issues of fact in chancery is by reference to the master, and, while it is in the power of the court to submit issues of fact to the jury, still the granting or refusing a motion to refer an issue to a jury is a matter wholly within the discretion of the chancellor, and his action on the matter will not he reviewed. Dowden v. Wilson, 71 Ill. 485; Russel v. Paine, 45 Ill. 350; Milk v. Moore, 39 Ill. 584; Flaherty v. McCormick, 113 Ill. 538.

The master’s report is on file and is a part of the record, but there is no certificate of evidence, and we are unable to say what evidence was heard by the master or by the court, except as certain testimony is recited in the report of the master.

There were certain exceptions filed to the report by appellant, the third of which was sustained by the court, and the report in all other respects confirmed by the court. The master’s report contains findings of fact which fully support the decree, and the confirmation of the report by the decree is a confirmation of such findings of fact, and in legal effect an adoption of such findings as the basis of the relief granted by the decree.

If appellant desired to have this court review the findings of fact upon which the decree is based, he should have brought the testimony to this court in the proper manner, so that we might inquire from it whether the facts were erroneously found.

In the absence of such evidence we are obliged to conclude that it warranted the findings made by the master and confirmed by the decree. Groenendyke v. Coffeen, 109 Ill. 325.

Counsel has cited a number of authorities on the question of lien for attorneys’ and solicitors’ fees. Ho such question is involved in this case. Here the lien sought to be asserted grew out of an express contract and assignment of a portion of the fund.

The decree of the Circuit Court must be affirmed.

Decree affirmed.


text:
    Orson H. Brooke v. Bridget O’Boyle.

      Trespass — Peaceable Entry — Fence in Street — Instructions.
    1. If a fence is in a street, any person may remove it without being guilty of trespass.

      2. Where the owner of land, having the right to immediate possession, makes entry thereon in a quiet and peaceable manner, or without actual force or violence, he is not liable in trespass to one who has neither the right of property nor to the possession.
    [Opinion filed December 7, 1888.]
    Appeal from Circuit Court of Cook County; the Hon. Kiohard S. Tuthill, Judge, presiding.
    Messrs. Hutchinson & Luff, for appellant.
    Ho counsel appeared for appellee.
   Gary, J.

This was an appeal from a justice of the peace, and the cause of action which, by the evidence, the plaintiff claimed to have, was for a trespass committed in tearing down a fence.

There was conflicting evidence as to possession by the plaintiff and as to title in the plaintiff, or in Drexel, for whom the appellant acted. Also as to whether the fence was in a public street.

For the appellee the court instructed the jury as follows:

“ 5. The court further instructs the jury that in order to maintain an action for trespass it is only necessary for the plaintiff to prove that she was in the actual peaceful possession of the property upon which the trespass is alleged to have been committed, and that the defendants, or some one or more of them, unlawfully interfered with such possession.

“ 6. The court instructs the jury that although possession of land may be acquired wrongfully by the plaintiff, this will not justify even the owner of property in entering and taking possession forcibly against the will of the person in posses- • 99 sion.

There was no evidence of any breach of the peace, if that would make any difference in trespass guare clausum fregit. The appellee was not present when the fence was torn down. One of the witnesses, who does not appear to have any relation with her, said lie saw it being done and told the men that the fence belonged to appellee, and ordered them to stop, which they did.

The first instruction is wrong in taking from the jury the question whether the fence was in the street. If if was, anybody might tear it down. Marcy v. Taylor, 19 Ill. 634. The word “unlawfully” in the last line does not help it. Questions of law are not to be left to the jury. Bailey v. Godfrey, 54 Ill. 507; Howard F. & M. Ins. Co. v. Cornick, 24 Ill. 455.

And if appellant acted under one claiming title, and if there was any evidence tending to prove that title, then both instructions were wrong. The heresy introduced into the law of this State in 1886, based upon Dustan v. Cowdry, 23 Vt. 635, has, after much pruning, been got rid of in Fort Dearborn Lodgv. Klein, 115 Ill. 177. The owner may take from a wrongful holder his own, if he can do so without a breach of the peace-If a breach of the peace is committed, then, in trespass vi et armis, it may be determined who was in the wrong as to that. Sec. 2, Chit. Pl. 696 et seq. (16th Am. from the 7th Eng. Ed.)

The remedy by forcible entry is not touched by this return to the common law in trespass.

For these errors in the instructions the judgment is reversed.

Reversed, and remanded.


author: Per Gwriam.

text:
    The Chicago City Railway Company v. Mary Gillam, Adm’x, etc.

      Personal Injuries — Next of Kin — Damages for Widow’s Sorrow.

    In action by a widow to recover damages from a street railway company for causing the death of her husband, it is held: That, to sustain the verdict for the plaintiff, the record should show who were the next of kin, and whether the death of deceased was a financial loss to any of his family; and that an instruction touching the allowance of damages for the plaintiff’s sorrow was erroneous.

      [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Johh P. Altgeld, Judge, presiding.
    Mr. C. M. Hardy, for appellant.
    Messrs. Muhh & Wheeler, for appellee.
   Per Gwriam.

This Is an appeal from a judgment for 84,000 damages awarded to appellee by a jury, as compensation to the widow and next of kin of Gabriel Steiger, for the negligence of appellant in causing the death of said Steiger. The record presents no case for recovery, much less a recovery of 84,000. There is no proof as to who were the next of kin of deceased, nor whether his death was a financial loss to any of his family or relatives who may have survived him.

It is practically admitted by appellee’s counsel that the evidence in the ease must be supplemented by the averments of the declaration to make out a case. The second instruction for the plaintiff contained an implication that damages might be allowed for the widow’s sorrow. That is contrary to the well known and familiar rule settled by repeated adjudications of the Supreme Court of this State.

The judgment will have to be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Rachel Davies v. Iva I. Phillips.

      Practice— Trial by the Court — Presumption—Conflict of Evidence.

    1. Where a case is tried without a jury, and no propositions of law are submitted to be held by the court, it will be presumed that all questions of law were correctly decided.
    2. In such a case, if the evidence is conflicting, and the finding of the court below is not manifestly against its weight, such finding is conclusive upon this court. '

      [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. ¡Richard S. Tuthill, Judge, presiding.
    Mr. George W. Cass, for appellant. ■
    Messrs. C. E. Cruikshank and Fred. H. Atwood, for appellee.
   Per Curiam.

This case was submitted to the court for trial without a jury, and the finding of the court was against apj>ellant and in favor of appellee.

Mo propositions of law were submitted to the court to be held by either party, and it must therefore be assumed that the court decided all questions of law which arose in the case, correctly.

The assignment of error is that the finding of the court is contrary to the Jaw and the evidence. If the court was correct in finding the issue of fact in favor of plaintiff, then the law entitled him to a judgment. So that the question here is, does the record contain evidence which supports the finding of the court. The question arises just as it would upon a verdict in favor of the plaintiff where the jury had been fully and correctly instructed by the court.

Wé have examined the evidence in the record with care, and while it is certainly conflicting on material points, we are unable to say that there is not evidence to sustain the finding of the court; while, if the finding of the court had been the other way, we should not have felt authorized to interfere with it on appeal, we find no such preponderance against the finding as it stands, as would warrant our setting it aside. Where there is a conflict of evidence and no error of law intervenes, it necessarily follows that the finding of the trial court must be treated as binding on the parties, unless it appears, from an inspection of the entire record, that such finding is clearly and manifestly against the weight of the evidence.

So where the evidence would warrant conflicting inferences to be drawn from facts proved, as might be contended in this case, the inference drawn by the trial judge must be held conclusive on the parties, and binding on a reviewing court.

lío such conditions appear on our inspection of this record as warrants interference by us with the judgment rendered by the Circuit Court, and the same must therefore be affirmed.

Judgment affirmed.


author: Moran, J.

text:
    William L. Brown v. Horace A. Tuttle et al.

      Practice — Default as to One of Two Defendants — Discontinuance as to the Other — Material Amendment — Right of Remaining Defendant to Plead.

    1. Where two or more are sued jointly ex contractu, the recovery must be against all or none of the defendants.
    2. After a default by one of two defendants who have been sued jointly ex contractu, the plaintiff can not discontinue as to the other and so amend the declaration as to change a joint liability to a several and individual one, and then enter judgment without notice against the defendant who has suffered a default.
    3. After such material amendment a refusal to allow the remaining defendant to plead to the declaration as amended, is error.
    [Opinion filed December 7, 1888.]
    Appeal from the Supreme Court of Cook County; the Hon_ Elliott Anthony, Judge, presiding.
    Mr. Frederic TTllmann, for appellant.
    Messrs. Gorton & Blaine, for appellees.
   Moran, J.

Appellees brought an action against appellant impleaded with A. B. Meeker. Meeker filed a plea of nonassnmpsit, and on his motion a bill of particulars was ordered, which, when filed, showed an account between A. B. Meeker & Company and Tuttle, Masters & Company. After the filing of said bill of particulars appellant was defaulted, and at the. January term, 1888, plaintiff discontinued the cause as to A. B. Meeker, without notice to appellant and without taking any rule on him to plead, and, without making any change in the declaration, damages were assessed and a judgment entered against Mm. At the same term appellant moved to .set aside the judgment, but the court refused said motion, but on a cross-motion ordered that the name of Meeker and the word co-partners be stricken from the declaration wherever they occurred therein, and that such other amendments be made therein as might be necessary to show that said declaration was against Wm. L. Brown individually. Thereupon appellant asked leave to plead to the amended declaration, but the court denied such leave.

We are of opinion that the course of practice adopted by the court below in this case was irregular. The action, as it stood at the time Brown was defaulted, was for a joint liability against Meeker and himself. Had the proof shown that such joint liability did not exist it would have been fatal to plaintiff, for the rule is where two or more are sued jointly ex contractu, the recovery must be against all or it can be against none.

-Brown might be willing to let a judgment go against himself and Meeker; he might have no defense to such action, and yet, after the suit was dismissed against Meeker, he might have a defense by a plea in abatement, because Meeker was not joined with him. He should have been allowed an opportunity at some stage of the proceeding's to plead to the amended "declaration, and as he had no notice of the dismissal of Meeker, and had not been ruled to plead before judgment, leave should have been given him to plead when the amendment in the declaration was actually made. To dismiss one of two persons sued jointly out of the action, and so change the declaration as to charge a several and individual instead of a joint liability, is to make a material amendment.

When such a material amendment is made in the declaration the defendant has the right to plead to the declaration as so amended, and a refusal to permit him to do so is error. McCarthy v. Neu, 91 Ill. 130; Griswold v. Shaw, 79 Ill. 449; Johnson v. Glover, 20 Ill. App. 588.

The court erred in refusing to allow appellant to plead to the declaration when amended, and for such error the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Garnett, P. J.

text:
    James Turner v. Hynek Klekr.

      Personal Injuries — Elevator Shaft — Invitation to Enter — Instructions.
    1. Where one is injured by falling into an elevator shaft in a portion of a meat market which is not open to the public, he can not recover damages therefor unless he entered such part of the premises upon express or implied invitation.

      ‘¿. In the case presented the question whether it was proper for the plaintiff to go to the place where he was injured except upon invitation, was not submitted to the jury by the instructions given.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Appellant was the owner of a. meat packing house in January, 1885, where appellee, who was in the retail butcher business, and others, were in the habit of resorting to buy meats for their trade. On January 27th of that year, between three and five o’clock p. h., appellee called at said packing house to purchase meats in the usual course of his business. The superintendent of the packing house, seeing him, called the-foreman, John Paul, to attend to his wants. There was a business office in the packing house and from twenty to twenty-five feet distant from the office was an elevator shaft, which at that time was unguarded, the car being at some higher point in the building. Adjoining the elevator shaft was the sweat box, where the meats were stored for the purpose of keeping them from freezing.
    Paul, under the instructions of the superintendent, after learning what kind of meats appellee wanted, proceeded to the sweat box. Appellee testified that he was told by Paul to come on, and in this he was corroborated by Paul, although there was other evidence tending to discredit both ©f them on that point. In attempting to follow Paul, appellee fell into the elevator shaft and was injured. Evidence was given tend" ing to prove that the customers were not in the habit of going to the sweat box for meats. •
    This action was brought by appellee against appellant to recover damages for the injury received by such fall. There was a verdict and judgment for §1,000 against appellant, from which he appeals.
    Messrs. Stiles & Lewis, for appellant,
    Messrs. Blum & Blum, for appellee.
   Garnett, P. J.

One theory upon which this ease was tried in the court below, and lias been argued here, is that appellee was present at the particular place in the building where the injury occurred without any justification or excuse, unless he was invited there hy appellant’s foreman. That element we consider the turning point in the case. Whether appellee was 'so in the wrong or not, was a question of fact for the jury, and should have been submitted under proper instructions.

The first instruction given for the plaintiff was as follows:

“ The jury is instructed, as a principle of law, that a customer has a right to expect that reasonable care will he exercised by the occupier of premises to prevent injuries from any unusual danger to which he may be exposed of which the occupier has knowledge or ought to have knowledge. And this is true whether the customer is actually bargaining at the time of the occurrence of the injury or actually buys or not.”

Following that instruction the jury might have found a verdict for the plaintiff, while believing that customers were not in the habit of going to the sweat box, and that there was no express or implied invitation to them to go to that part of the building where the elevator shaft was located. That statement is a broader proposition than the authorities sustain. The case is not different in principle from Zoebisch v. Tarbell et al. 10 Allen, 385, where it was held that a customer of defendants, calling on business at the shop of the latter and going to a place in the building where customers or visitors were not accustomed to go, without any invitation, express or implieds and without the knowledge or assent of the defendants, or their servants, could not recover damages for injuries received in falling through a trap door in that part of the building where he had no right to be, as betook upon himself the risk of the, perils to which he was thus exposed. A similar case is Grand Tower M. & T. Co. v. Hawkins, 72 Ill. 386, where the action was brought against the owner of a wharf boat for injuries to appellee, who went upon the boat at an hour when the usual .passway for passengers was kept closed and attempted to walk around the boat on the after-guard. There was no evidence that the passway through the boat was insufficient to accommodate the public, or that it was unsafe, or that the owner had invited the public to pass around on the after-guard. The court held that appellant owed no duty to the public which it did not discharge; that while it was its duty to have the pass-way safe which it permitted the public to use, the rights of the public were limited to that passway and its use when kept open for that purpose. See also, Murray et al. v. McLean, Adm’x, 57 Ill. 378.

Taking these authorities for our guide, we have no difficulty in pronouncing the above instruction erroneous. This error was not cured by the instruction for defendant, which informed the jury that if they believed from the evidence that plaintiff approached the elevator against the remonstrance of the super intendent, and that the plaintiff, without the invitation of any person, walked to the elevator, and, through the want of reasonable care on his part, met with the accident, the defendant was not liable. It will be observed that by the terms of this instruction, before a verdict could be found for the defendant, the jury must have found three separate facts, viz.: (1).remon-strance of the superintendent; (2) absence of invitation from any person; (3) want of reasonable care by the plaintiff. But there is nothing in either of these instructions which can be said to submit to the jury, as a question of fact, whether the place where the injury occurred was or was not a place to which the plaintiff had no right to go unless he was expressly invited. If it was not a place to which he was invited by implication, then the mere absence of express invitation imposed the risk upon him, though there was no remonstrance by any one.

The judgment of the Superior Court is reversed and the cause remanded.

JReversed and remanded.


text:
    Lelia P. Roby v. Louisa Murphy.

      Slander — Words Actionable Per Se — Question for Court — “ Bitch”— “Slut" — Instructions—Reversal—Practice.
    1. In an action for slander, where the declaration contains words, some of which are, and some of which are not, slanderous per se, it is error to instruct the jury that, in order to entitle the plaintiff to recover, it is sufficient to prove the slanderous words in some one or more of the statements contained in the declaration.
    2. It is error to leave the jury to determine what words are s!anderousi that question being for the court.
    3. The words “ bitch ” and “ slut,” where applied to a woman, and Liken in their common acceptation, are not actionable per se.

    4. Where there is manifest error in the instructions, which’ma,y have

      injured the appellant, this court will reverse, unless it appears that such error did not affect the result.
    5. When the evidence is conflicting, and the right of the successful party is not clear, this court will reverse for an error in the instructions which may have misled the jury.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Johet P. Altgeld, Judge, presiding.
    This was an action for slander, and the declaration was as follows:
    “ In the Superior Court, September Term, 1886.
    ‘‘ State of Illinois, 1 gg County of Cook, j s "
    “ Louisa Murphy, plaintiff, by John
    M. Beverly, her attorney, complains of Mrs. Lelia P. Boby, defendant, of a plea of trespass on the case; for that, whereas, the plaintiff, before and at the time of the committing by the defendant of the several grievances hereinafter mentioned, was a person of good name, credit and reputation, and deservedly enjoyed the esteem and good opinion of all her neighbors and other worthy citizens of this State, yet the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff, and to bring her into public scandal and disgrace, on or about the 30th day of July, 1886, in the county of Cook, aforesaid, in a certain discourse iu which the defendant then and there had, of and concerning the plaintiff, in the presence and hearing of divers persons, falsely and maliciously, in the presence and hearing of said persons, spoken and published of and concerning the plaintiff, the false, scandalous, malicious and defamatory words following, that is to say: £ She,’ (meaning the plaintiff) £ is a thief.’ ‘ She ’ (meaning the plaintiff) £ steals everything she can put her hand on.’ £ She ’ (meaning the plaintiff) £ has stolen my’(meaning the defendant’s)‘silver, ware.’ ‘She’ (meaning the plaintiff) ‘has stolen my’ (meaning the defendant’s) ‘jewelry.’ ‘ She’ (meaning the plaintiff) ‘has stolen my’ (meaning the defendant’s) ‘towels, sheets and napkins.’ ‘She’ (meaning the plaintiff) ‘has stolen my’ (meaning the defendant’s) ‘clothing.’ ‘I’ (meaning the defendant) ‘have taken my’ (meaning the defendant’s) ‘clothing off her’ (meaning the plaintiff) ‘back, which she’ (meaning the plaintiff) ‘had stolen.’ ‘She’ (meaning the plaintiff) ‘has stolen my’ (meaning the defendant’s) ‘flour and sugar, and carried it out the back way.’ Meaning and intending thereby to charge that the plaintiff had feloniously stolen, taken and carried away the goods and chattels of the defendant.
    “By means of the committing of which said several grievances by the defendant, the plaintiff has been and is greatly injured in her said good name, credit and reputation, and brought into public scandal and disgrace, and has been and is shunned and avoided by divers persons, and -has been and is otherwise injured; to the damage of the plaintiff of $15,000.
    “And for that, whereas also, the plaintiff before and at the time of the committing by the defendant of the several grievances hereinafter mentioned, was, and always has been, virtuous and chaste, and was a person of good name and reputation, and deservedly enjoyed the esteem and good opinion of her neighbors and other worthy citizens of this State, yet, the defendant, well knowing the prernises, but contriving and maliciously intending to injure the plaintiff in her said good name and reputation, and to bring her into public scandal and disgrace, and to cause it to be suspected and believed by divers persons that she xvas unchaste, on or about the 30th day of July, 1885, in the county of Cook aforesaid, in a certain discourse with the defendant then and there had in the presence and hearing of divers persons, of and concerning the plaintiff, falsely and maliciously, in the presence and hearing of the said persons, spoke and published of and concerning the plaintiff, the false, scandalous, malicious and defamatory words following, that is to say: ‘She’ (meaning plaintiff) ‘is a prostitute.’ ‘She’ (meaning the plaintiff) ‘slept with a man in my house, when I’ (meaning the defendant) ‘was away, and I can prove it.’ ‘She’ (meaning the plaintiff) ‘is a dirty bitch.’ ‘She’ (meaning the plaintiff) ‘is a dirty, lying slut.’ ‘She’ (meaning the plaintiff) ‘is a filthy, lying slut.’

      “By means of the speaking and publishing of which said several false, scandalous and malicious words by the defendant, the plaintiff has been and is greatly injured in her said good name, credit and reputation, and brought into public scandal and disgrace, and has been, and is, otherwise injured, to the damage of the plaintiff of §15.000, and therefore she brings her suit, etc.”
    On the trial the court gave the jury, at the request of the plaintiff, among others, the three instructions following:
    “(1.) The court instructs the jury that slander is regarded in law as a malicious wrong and injury, and an action for it has as legitimate a standing in a court of justice as any other action.

      “ (2.) The court instructs the jury that if they believe from the evidence in this case that the defendant spoke and published, of and concerning the plaintiff, the words charged in the declaration, then the law presumes they were spoken maliciously, and with a view to defame and injure the plaintiff.
    “(3.) The court instructs the jury that while it is necessary, to entitle the plaintiff to recover in an action of slander, that she should prove the slanderous words alleged in the declaration, still it is not necessary to prove all the words that are charged to have been spoken. It is sufficient to prove substantially the words in some one or more of the statements of slanderous words contained in the declaration.”
    The jury returned a verdict in favor of plaintiff, and assessed the damages at §2,500. The court required the plaintiff to remit §1,000 of the verdict, and the plaintiff having done so, the court overruled the motion for a new trial and returned judgment against the defendant for §1,500, and the record is brought here by appeal and error assigned.
    Mr. W. N. Low, for appellant.
    Mr. M. J. Gormar, for appellee.
   Moran, J.

Several sets of. words are set out in the declaration as being false, scandalous, malicious and defamatory, and among others, in the second count, are the following: “She is a dirty bitch.” “She is a dirty slut.” “She is a dirty, lying slut.” “ She is a filthy, lying slut.” These words are laid without any colloquitom going to show that they were used and understood in a slanderous sense. They must therefore be taken in their common acceptation. The word “bitch,” when applied to a woman, does not in its common acceptance import fornication or adultery, and is not actionable per se. K. v. H., 20 Wis. 252; Schurich v. Kallman, 50 Ind. 336; Logan v. Logan, 77 Ind. 558.

The word “ slut,” according to Webster, means an untidy woman, a slattern, and also a female dog, the same as “bitch.” While such terms undoubtedly are coarse, vulgar and brutal when applied to a woman, they do not amount to a charge of crime or of want of chastity, and are not, therefore, in their common meaning, slanderous words.

The declaration then contained sets of words that were actionable, and also sets of words which were not slanderous or actionable as set out. The third instruction given by the court to the jury told them that it was not necessary, in order to entitle plaintiff to recover, that she should prove all the slanderous words alleged in the declaration. It is sufficient to prove substantially the words in some one or more of the statements of slanderous words contained in the declaration.

This was manifestly erroneous. What are slanderous words is a question of law, and the jury could not tell what were and what were not actionable -words, and in any event it was error to leave them to determine what were slanderous words. Carter v. Carter, 62 Ill. 439; Howard Fire Ins. Co. v. Cornick, 24 Ill. 455.

But the undoubted effect of the instruction was not to set the jury to determine what sets of words were slanderous, but to convey to them the impression that all the words stated in the declaration were slanderous, and the proof that the defendant had published any of them against plaintiff would justify a verdict of guilty.

For aught we can see the verdict may in fact rest upon a finding by the jury that the non-actionable words were the ones which defendant was guilty of using. There is, it is true, about the same proof as to one set of words as another, and practically the same conflict in the evidence as to the speaking of all the words alleged, but we can not determine that the verdict finds the speaking of the actionable words particularly in view of this instruction in which plaintiff deemed it prudent to have the jury told that they ought to find a verdict of guilty on proof of the speaking of any of the sets of words. It is not unlikely that the jury would more readily believe that the vulgar and opprobrious epithets had been used than the words imputing fornication or larceny. The graver charge usually requires clearer proof to establish it than the lesser offense.

The rule is that where there is manifest error which may have injured the defendant, there must be a reversal, unless from an inspection of the entire evidence, this court can say that the error did not affect the result.

"When there is no conflict in the evidence, or when from all the evidence we can see that the successful party is so clearly right that the same verdict must necessarily have been rendered had the jury been correctly instructed, the case will not be reversed for error in the instructions alone; but when the right is not clear and there is error in the instructions which may have misled the jury, there must be a reversal, that the issues may be determined under proper instructions. C., B. & Q. R. R. v. Van Patten, 74 Ill. 91; Howe Machine Co. v. Rosine, 87 Ill. 105; Beard v. Maxwell, 113 Ill. 440; Union Stock Yards Co. v. Managlian, 13 111. App. 148; Frantz v. Rose, 89 111. 590.

A careful inspection of the whole record does not satisfy ns that no injury was done to the appellant by the instruction pointed out. Taken in connection with two other instructions set out in the statement of facts, it was calculated to mislead, and it does not affirmatively appear that it did not have that effect.

For error indicated the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    Mary L. Lambert et al. v. Frances Hyers et al.

      Practice — Reversal of Decree — Defect of Parties — •Supplemental Bill— New Decree — Rule to Plead by Day Certain.

    1. Upon the reversal of a. decree by this court for defect of parties and the filing of a supplemental bill to cure such defect, a new decree on the merits is necessary.
    2. Under a rule to plead by a day fixed, it is sufficient to plead after the day so fixed, if it is done before default is asked.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. C. M. Hardy, for appellants.
    Messrs. George C. Christian and C. H. & C. B. Wood, for appellee.
   Gary, J.

The former proceedings in this court in this case are shown in 22 Bl. App. 616. In accordance with the opinion there reported a supplemental bill was filed, alleging the death of Beal, and the succession of Christian to the trust, but, unfortunately, it was supposed in the Circuit Court that the cause was remanded solely to bring in the trustee.

The original decree was gone, by the proceedings in this court. The judgment here was that the decree ‘‘be reversed, annulled, set aside, and wholly for nothing esteemed, and for the purpose of correcting the error pointed out in the opinion filed therein,” the cause was remanded. The opinion filed was not the judgment of this court, but the reasons for the judgment.

The decree now appealed from is only upon that supplemental bill, correcting the error of not having the legal estate represented in the cause, and there is now no decree upon the merits.

The cause should have been wholly reheard, and a wholly new decree on the whole case rendered.

It seems to be the practice, approved by the Supreme Court, that under a rule to plead by a day fixed, if it is done after the day, but before default is asked, it is sufficient. “ It is the general practice also to consider such plea, answer or demurrer in due time, if • filed before the default is asked for.” Dunn v. Keegin, 3 Scam. 292. The same rule at law, Castle v. Judson, 17 Ill. 381; Cook v. Forrest, 18 Ill. 581. The case of Flanders v. Whittaker, 13 Ill. 708, to the contrary, is in the minority.

Even if the former decree had not been reversed here, query, whether the mere filing of the supplemental bill did not open it Gibson v. Rees, 50 Ill. 383.

Because there is no decree upon the merits, and because the answer of the appellants was stricken out, the decree must be reversed, and the cause remanded for further proceedings upon the whole case, with the answer of the appellants reinstated, if they wish it.

Reversed and remanded.


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    Edward H. Van Ingen et al. v. Ida E. Brabrook.

      Husband and Wife — Property—Common Law hi Other States — Presumption — Trespass—Alleged Wrongful Levy.
    1. In the absence of evidence to the contrary, it will be presumed in the courts of this State that the common law prevails in the other States.
    2. Where a wife, who has lived with her husband in Massachusetts and Missouri, brings money to this State and invests it in business in her own name, it will be presumed, in the absence of contrary evidence, that the title to such money and the personal property of the wife vested in the husband. This court so holds, although the investment was made in the name of the wife, and although the goods have been sold and replaced many times, thereby largely increasing the fund.
    8. In the case presented, in the absence of such evidence, the judgment against the defendants as trespassers for an alleged wrongful levy of an execution against the husband on the property in question, can not be sustained.
    [Opinion filed December 7, 1888].
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. David Pales and A. S. Trude, for appellants.
    The Supreme Court of this State has repeatedly laid down the rule that if a married woman advances her own separate money, and places the same in the hands of her husband for the purpose of carrying on any general trade, although in the wife’s name, and the husband, by his labor and skill in that undertaking, increases the funds, the entire capital embarked in the enterprise, together with the increase, will not constitute the separate estate of the wife, but will be liable for the debts of the husband. A married woman can not engage in general trade or business with her husband as her managing agent, to which he must devote all his time, energy and skill, and yet place all his earnings and the profits of said business beyond the reach of his creditors. Wortman v. Price, 47 Ill. 22; Wilson v. Loomis, 55 Ill. 352; Robinson v. Brems, 90 Ill. 351; Snell v. Hannay, 1 Ill. App. 490; Card v. Robinson, 2 Ill. App. 19.
    Messrs. Drench & Mat, and Crattt Bros. & Ashcraft, for appellee.
    A married woman may, with her own means, engage in business, and may employ her husband as her agent, either with or without compensation, and the original investment and all profits will be and remain her own estate. Langford v. Greirson, 5 Ill. App. 362; Dean v. Bailey, 50 Ill. 481; Garvin v. Gache, 72 Ill. 447; Primer v. Clabaugh, 78 Ill. 94; Blood v. Barnes, 79 Ill. 437; Bongard v. Core, 82 Ill. 19; Bennett v. Stout, 98 Ill. 47; Tomlinson v. Matthews, 98 Ill. 178; Abby v. Deyo, 41 N. Y. 343; Miller v. Peck, 18 W. Va. 75; Cooper v. Hain, 49 Ind. 393; Dayton v. Walsh, 47 Wis. 113.
   Per Curiam.

Appellee was married to William F. Bra-brook in 1863. They resided in Massachusetts for a number of years immediately preceding the year 1880, when they removed to Kansas City, Missouri, where they made their residence until September, 1881. At that time they removed to, and have ever since resided in, Chicago, where appellee, assisted by her husband, has carried on the merchant tailoring business. Appellee owned real estate in Massachusetts, but converted it into money, which was invested in real estate in Kansas City while she was living there. Her husband having failed in the tailoring business in that city, she sold her real estate there, brought the money to Chicago, and soon after invested it, or the larger part of it, on her own account and in her own name, in the tailoring business in Chicago, which business was continued by her until the date of the alleged trespass hereinafter stated.

Appellants having an unsatisfied judgment against William F. Brabrook, caused an execution thereon to be issued, and levies made by the sheriff of Cook county on the stock of goods in the store of appellee, supposing and charging that the goods were in reality the property of the execution debtor. This was a suit in trespass, brought by appellee against the execution creditors and said sheriff and one Westrow, for such alleged wrongful levies, judgment being rendered against appellants for $2,912 in the court below.

It will be observed that the title of appellee must depend on the law of Massachusetts or Missouri, or possibly both. There being no proof of those laws, the presumption is that the common law prevailed in both States, by virtue of which the title to the wife’s money and personal property, other than dioses in action, vested in the' husband. This is the rule, though the money has been invested in goods in the wife’s name, the goods sold and replaced many times, and the fund largely increased in amount. We need only refer to the case of Hanchett v. Rice, 22 Ill. App. 442, where this question is carefully considered, and, for this court at least, settled as stated.

On the evidence in this record, the court should have found the defendants not guilty, for the reason here given. There is no other error in the record, but for that set forth the judgment of the court below is reversed and the cause remanded for a new trial.

Reversed and remanded.