text:
    The Union Central Life Insurance Company of Cincinnati, Ohio, Appellee, v. Robert M. Cooper, Appellant.
    Gen. No. 8,545.
    Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    W. O. Harp, L. A. Mehrhoff and W. B. Strang, for appellant.
    Brown, Hay & Stephens and Funk & McKeene, for appellee; Paul W. Gordon, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This suit is brought in equity to foreclose a mortgage upon 125 acres of land in Scott county. Charles M. Cooper and Mabel Cooper, his wife, on December 1, 1923, owned the lands in tenancy in common. On that day they executed a note in the following* form: $8,000 Winchester, Illinois, December 1, 1923. On October 1, 1934, for value received I promise to pay to the order of the Union Central Life Insurance Company of Cincinnati, Ohio, Bight Thousand and 00-100 Dollars, at the Home Office of said Company in Cincinnati, Ohio, with interest thereon at the rate of 5% per centum per annum from date, payable on October first of each year until maturity and 7 per centum per annum after maturity, until paid. (Provides for reasonable attorney’s fees placed in hands for collection and expenses of collection, etc.) Charles M. Cooper. Mabel Cooper.

They also executed other coupon interest notes in similar form. At the same time to secure said notes Charles M. Cooper and Mabel Cooper executed a mortgage in the following form:

The Mortgagors, Charles M. Cooper and Mabel Cooper, his wife, of Scott County, Illinois, mortgage and warrant to The Union Central Life Insurance Company, mortgagee, a corporation organized under the laws of Ohio, having its principal office in Cincinnati, Ohio, the following described real estate, situated in the County of Scott in the State of Illinois, hereby releasing and waving all rights under and by virtue of the homestead exemptions laws of this State, to wit:

The South 30 acres of the Northeast Quarter of the Southwest Quarter (S. 30 A. of NE¼ SW¼); the South 15 acres of the West Half of the North-West Quarter of the -Southeast Quarter (S. 15 A. of W½ NW¼ SE¼); the Southeast Quarter of the Southwest Quarter (SE% SW%) and the Southwest Quarter of the Southeast Quarter (SW44 SB44), all in Section Twenty-six (26), Township Fourteen (14) North, Range Twelve (12) West, containing 125 acres, more or less.

Together with the rents, issues and profits. To secure the payment of a debt evidenced by certain promissory notes of even date herewith signed by Charles M. Cooper and Mabel Cooper, mortgagors, and payable to the mortgagee, at its Home Office in Cincinnati, Ohio, more fully described as follows: One certain promissory note for the principal sum of $8,000 payable on October 1, 1934, with interest at 5y% per cent from date to maturity and 7 per cent per annum on principal after maturity and 7 per cent per annum on interest after maturity until paid, interest to maturity being evidenced by interest notes. Mortgagors covenant and agree to pay all taxes, assessments and charges which may be hereafter become a lien, also all taxes on notes or debt secured hereby providing* said latter tax does not exceed the maximum permitted by law to be paid; to keep said real estate, buildings, fences and other improvements in good condition and repair, to permit no waste, no cutting of timber except for fences, to keep the buildings insured, to pay a reasonable attorney’s fees, expenses of Continuation of Abstract, and in case the note is placed in the hands of an attorney for collection to pay all fees and expenses and on failure to pay when due any note hereby secured, failure to comply with any of the agreements hereof shall cause the whole indebtedness to, become due and collectible immediately or on demand at the option of the mortgagee, without notice. Dated December 1, 1923. '•

Signed by Charles M. Cooper and Mabel Cooperé

Acknowledged before Geo. W. Hogan, Master- in Chancery of Scott County, Illinois, on Jan. 8th, 1924. Filed for record Jan. 19, 1924, and recorded in Book 16, R. E. M., page 517.

After the execution and delivery of said notes and mortgage, the ¡said Charles M. Cooper died intestate and his administrator and heirs at law are made parties defendant to this bill.

It is further shown that since the execution of said mortgage deed and after the death of her husband, the said Mabel Cooper, by a warranty deed cpnveyed her undivided one-half interest in said' lands to appellant, Robert M. Cooper. It is stipulated in the. record that at the time said mortgage was given, appellee knew the title to said lands was held in tenancy in common by the mortgagors'.

Appellant, Robert M. Cooper, answered the bill, denied that Mabel Cooper, his grantor, was indebted upon the said notes, and denied that it was the intention of the parties that the undivided one-half interest in said lands owned by Mabel Cooper, the wife, should pass by said mortgage; but contended that the said Mabel Cooper signed said mortgage deed merely to release her dower and homestead rights in the portion of said lands owned by her husband, Charles M. Cooper.

The consideration for the notes and mortgage deed was shown to be a check in the sum of $8,000 made payable to Charles M. Cooper and Mabel Cooper, which was paid and personally indorsed by each of them and no other knowledge is shown on the part of appellee as to the purpose or interest of said loan.

There was a decree of foreclosure in said cause, and all interest in said lands held subject to the payment of the mortgage debt. Appellant has brought the record to this court by appeal for review.

Numerous cases are cited by counsel on both sides as to the construction of deeds and appellant contends that the rule is: “In order that a deed of husband and wife, which is otherwise unobjectionable, may operate to transfer the title of both, it is necessary and sufficient that both be named in the deed as grantors, and that the body of the deed contain apt words indicative of an intent on the part of both to grant and convey.” Practically all of the cases cited by appellant are cases where either the husband or the wife owned the entire fee of the lands. In the mortgage deed in question, each of the mortgagor's join in each and every covenant in the deed and under sections 9 and 11 of chapter 30 of the Revised Statutes (Conveyances) Cahill’s St. ch. 30, jfíí 9,12,- said conveyance, by each mortgagor “shall be deemed and held a conveyance in fee simple to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein, described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.”

The decree of the circuit court could be affirmed without going further. The mortgage deed fully comprehends all facts set out- in appellant’s rule of construction. The instrument names Mabel Cooper as one of the mortgagors and the body of the deed, by apt words, indicates her intent to convey, if she was the owner of any portion of the fee. The deed goes further and shows that Mabel Cooper was one of the debtors for whose debt the instrument was given to secure. The record shows that said Charles M. Cooper and .Mabel Cooper “who were husband and wife,” owned the real estate conveyed by said mortgage, as “tenants in common” in equal shares and the said consideration in said deed by which Charles M. Cooper and Mabel Cooper acquired title to said real estate was one dollar and other good and valuable consideration. We have searched the record in vain for a copy of this deed. Without doubt the lands were conveyed to “Charles M. Cooper and Mabel Cooper, his wife, as tenants in common,” in which case the words, “his wife,” would be-merely descriptio personae. In any event, Mabel Cooper, being one of the debtors and one of the mortgagors and joining in all of the covenants as to the lands conveyed, must have intended to convey her own interest in the lands. Whether the covenants made by Mabel Cooper in the deed applied to the portion of the lands owned by her husband, Charles M. Cooper, does not arise in this case, but from all the facts before us, it would be as reasonable to conclude that the debt and mortgage was the debt and mortgage of Mabel Cooper, and that Charles M. Cooper signed the instrument merely to release his dower and homestead right in his wife’s lands as to adopt appellant’s construction of the deed. There is no doubt about the construction contended for by appellant, in a proper case, where the wife had no interest in the fee of the lands, but the facts in this case do not bring the case within the rule. Neither are the cases cited and relied upon of much enlightenment to the court. Strawn v. Strawn, 50 Ill. 33; Sanford v. Kane, 133 Ill. 199; Warner v. Flack, 278 Ill. 303, and Center v. Elgin City Banking Co., 185 Ill. 534, cited by appellant, are all cases where the wife or husband had no interest in the fee of the lands, and the construction of the deeds was that the wife or husband signed merely to release dower and homestead right and were not bound by the other covenants in the deed.

In the case of Center v. Elgin City Banking Co., supra, the litigation was over the priority between two separate mortgages, the first having been transferred to The Elgin City Banldng Company, but no assignment of mortgage had been placed on record. Later the fee of the lands mortgaged came into the ownership of the wife of the first mortgagee and she and her husband gave a second mortgage. The cause being in equity, it was properly held that the covenants in the second mortgage by the husband, who had no interest in the fee of the lands, did not estop the foreclosure of the first mortgage or cause it to lose priority.

Appellees cite Lake Erie & Western R. Co. v. Whit-ham, 155 Ill. 514. This was an ejectment suit. Harriet M. Hutchinson, being one of the heirs of Johnston, with her husband, had given one of the deeds in question to make up plaintiff’s title. The court held on page 520: “Harriet M. Hutchinson is one of the heirs of Johnston, and one of the deeds offered in evidence purports to be executed by Joseph M. Hutchinson and Harriet M., formerly Harriet M. Johnston, his wife, party of the first part, to the plaintiff, party of the second part, and in which the party of the first part, for a certain consideration therein mentioned, convey and quitclaim to the party of the second part all interest in the land in question. It is objected that because the name of the wife is placed after that of her husband it will be intended that she joined with her husband merely for the purpose of waiving her dower, and not for the purpose of conveying-her estate. It is sufficient to say that, even if such intendment could arise under other circumstances, it is completely negatived here by the, very terms of the instrument, since she appears in the deed as one of the parties conveying and quitclaiming all interest in the land. To hold otherwise would do violence to the express language of the deed.”

This is further authority- in the case at bar that the mortgage deed executed by Mabel Cooper can as well be construed as the deed of Mabel Cooper, and that her husband signed merely to release his dower and homestead rights as to adopt appellant’s constrnction to the contrary. Both husband and wife owned the lands in question, both were obligated for the mortgage debt, and both husband and wife joined in all of the covenants in the deed and the circuit court of Scott county did not err' in the entry of the decree. Accordingly, the decree of the circuit court of Scott county is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Edna Blackaby, Appellant, v. City of Lewistown, Appellee.
    Gen. No. 8,560.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Fred H. Snyder, for appellant.
    Lyle Thomas, City Attorney, and Boyd, Ratcliff & Weber, for appellee.
   Mr. Justice Shurtleff

delivered the opinion .of the court.

This was an action commenced by the appellant against the appellee (appellee being a municipal corporation) returnable to the January Term, A. D. 1931. The declaration contained two counts.

The first count set forth that the City of Lewistown was possessed and had control of a certain public street and sidewalk in the City of Lewistown located on the north side of the public square in the City of Lewistown, Fulton county, in front of a building owned by one David Sheets and occupied by James Sorenson, in about the middle of the block on said north side of the public square, being about equal distance between Main street and Adams street, which said streets run north, and south in said City of Lewis-town, Fulton county; and it became and was the duty of the defendant to keep said streets and sidewalks at the time and place aforesaid, in a reasonable and safe condition for travel by the general public, yet the defendant disregarding its duty in that behalf while it was so possessed and had control of said sidewalk and other streets and sidewalks around the public square and courthouse of the City of Lewistown aforesaid, there wrongfully, unlawfully and negligently permitted divers persons organized as a business men’s club or an association composed of business men and merchants of the City of Lewistown aforesaid, to take possession of said streets and sidewalks around the public square and courthouse in said City of Lewis-town for the purpose of giving shows or exhibitions on said streets and sidewalks aforesaid, and at the time and place aforesaid, and for the purpose of giving publicity to said show, turkey trot or exhibition, said business men or merchants of the City of Lewistown aforesaid, did on the 20th day of November, A. D. 1929, cause to be published in the Fulton County Democrat, a secular newspaper of general circulation, and published in the City of Lewistown aforesaid, an advertisement of said show, exhibition and turkey trot in words and figures as follows:

Come to Lewistown!s Annual Turkey Trot, Tuesday, Nov. 26th- — Day and Night. 153 Live Birds and Pigs Given Away. 153

Absolutely Free!

35 Big Turkeys 35 60 Fat Chickens 60 50 Guinea Fowls 50 8 Greased Pigs 8

Programme

Ten Separate Releases of Fowls Fowls will be released from the tops of buildings in the business district at the following hours:

Morning

10:00 A. M. — 11:00 A. M. — 12:00 M.

Afternoon

2:00 P. M. — 3:00 P. M. — 4:00 P. M. — 5:00 P. M.' '

Evening

7:30 P. M. — 8:00 P. M. — 9:00 P. M. Greased Pig Chases will be held in between.

Loud Speaker -Installation on Square

Broadcasting a splendid program of music and entertainment.

Come — Bring the Family !

Our merchants ask you to spend the day with us, and share our hospitality.

That around said advertisement as aforesaid, appears in type the names of, to wit, 26 merchants and business men of the City of Lewistown aforesaid; that said advertisement was published in divers other newspapers of general circulation published in the county of Fulton and also by printed hand bills containing said advertisement which were circulated throughout the county of Fulton.

That at the time and place aforesaid a crowd of people, to wit, of more than 2,000 persons, assembled in the public square and around the courthouse of the county of Fulton aforesaid, for the purpose of witnessing or participating in said turkey trot, show or exhibition.

And the defendant then and there wilfully and negligently permitted certain streets surrounding the courthouse on the public square at the time and place aforesaid to be roped off or barricaded and then and there at the time and place aforesaid, turkeys were released from the windows of the courthouse of Fulton county in the public square in the City of Lewis-town aforesaid, for the entertainment of the crowd that had congregated as aforesaid, or for those of said crowd d,esiring so to do to capture said turkeys at the time and place aforesaid.

And the plaintiff then and there at the time and place aforesaid while walking along and upon the said street and sidewalk on the north side of the public square in the City of Lewistown, Fulton county, in front of a building owned by one David Sheets and occupied by one James Sorenson, in about the middle of the block on said north side of the public square, being about equal distance between Main street and Adams street, which said streets run north and south in the City of Lewistown aforesaid, and being in the exercise of ordinary care and caution for her own safety, was rushed and pushed by a mob or crowd consisting of, to wit, 300 persons in pursuit of said turkey which had been released from a window in the courthouse in Fulton county in the public square in the City of Lewistown at the time and place aforesaid.

And by reason thereof, while in the exercise of ordinary care and caution for her own safety at the time and place aforesaid, ‘was forced and pushed by said mob or crowd consisting of, to wit, 300 persons, in and through a heavy plate glass window in front of the building occupied by said James Sorenson at the time and place aforesaid.

That by reason thereof she sustained a deep cut upon the left leg, about 10 inches above the knee, severing the tissues, ligaments and muscles of said leg, producing a permanent disability of said leg and causing great pain, anguish and suffering and she became lame, sick, ill and disordered and so remained for a long space of time, to wit, from thence hitherto, during all the time she has suffered great pain and was hindered from transacting her business and affairs. She had laid out divers sums of money endeavoring to be cured.

The second count is in practically the same phraseology as the first count, except in this: That the second count alleges, to wit, yet notwithstanding the defendant having notice or by the exercise of ordinary care should have had notice of said intended show, exhibition and turkey trot as aforesaid, negligently suffered and permitted a common public nuisance to be perpetrated on the streets and sidewalks of the City of Lewistown at the time and place aforesaid.

All of said counts have allegations of statutory notice of the accident upon appellee, giving the time and place of accident, name and address of attending physician, name and address of the injured, and of leaving a copy of said notice with the mayor and city clerk of the City of Lewistown, á copy of said notices are set out in haec verba in each count of said declaration. .

Appellee presented a general demurrer to the declaration, which was sustained, and appellant standing by her declaration, the suit was dismissed and judgment entered against appellant and she brings the record to this court, by appeal, for review.

Whether the declaration states a cause of action is not to be determined by any exact rule heretofore laid down by the courts of this State, and some of the difficulties of the situation were expressed in Johnston v. City of Chicago, 258 Ill. 494, 497, where the court said: “The authorities have found it practically impossible to state any rule sufficiently exact to be of much practical value, ‘which will precisely embrace torts for which a civil action will lie, in the absence of a statute declaring the liability against a municipal corporation. ’ (4 Dillon on Mun. Corp. — 5th ed. — see. 1625; 1 Beach on Public Corp. sec. 263.) Indeed, itdias been said more than once that all that can be done with safety is to determine each case as it arises. (Lloyd v. New York, 5 N. Y. 369; Cobb v. Dalton, 53 Ga. 426.) It is frequently stated that to determine whether there is municipal responsibility the inquiry must be whether the particular agents or servants for whose acts of negligence it is sought to hold the corporation are its agents and servants for the performance of a public duty imposed by law, or merely for the carrying out of private functions which are for its special benefit or advantage. 28 Cyc. 1269, and cases cited; 20 Am. & Eng. Ency. of Law (2d ed.), 1203; Williams on Mun. Liability for Torts, sec. 11.”

The court further held in the Johnston case: “In considering the question of liability' the authorities usually hold that it must be considered that a municipality acts in a dual capacity, — first, in exercising its governmental functions; and second, as a private corporation, enjoying powers and privileges conferred for its own benefit. When such municipal corporation is acting within its authority, in a ministerial character, in the management of its property, it is liable for the negligent acts of its employees although the work in which they are engaged will inure to the benefit of the municipality. On the other hand, whether the municipality is exercising judicial, discretionary or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers. (2 Cooley on Torts, — 3d ed. — 1014; City of Chicago v. Seben, 165 Ill. 371; 20 Am. & Eng. Ency. of Law,— 2d ed. — 1197; Tiedeman on Mun. Corp. secs. 338, 349.) The mere fact that a particular work may incidentally benefit the public does not necessarily exempt the city for torts committed by its employees. (20 Am. & Eng. Ency. of Law, — 2d ed. — 1196.) Official action is judicial where it is the result of judgment or discretion. It is ministerial when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode and occasion of its performance with such certainty that nothing remains for judgment or discretion. A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. City of Chicago v. Seben, supra; 4 Dillon on Mun. Corp. (5th ed.) sec. 1741.”

When a city authorizes the occupation of its streets by the temporary structures of a street fair, it is reasonably to be apprehended that unless considerable care is used in their construction some injury may result, and if an injury does result which is the natural consequence of the city’s failure to exercise reasonable care to see that the structures were reasonably safe, the city is liable. Van Cleef v. City of Chicago, 240 Ill. 318.

In Van Cleef v. City of Chicago, supra, the city council, on the application of the business men of the eighth ward, passed a resolution giving permission to use certain streets for a merchants’ carnival and street fair to be held for six days, with the necessary shows, stands and attractions. Under that authority the streets named in the resolution were occupied by tents, booths and other structures, and there were three shows in tents erected in the street intersection. Steps to a platform in the street were erected by which Anna Van Cleef, in coming out from one of the shows, was injured. The court held that the1 occupancy of the street for the carnival and street fair was a public nuisance and that “the city was guilty of a serious wrong and violation of duty by permitting the occupation of the streets for show purposes and creating a nuisance in them.” The exact cause of injury in that case was that Anna Van Cleef, from lack of railing or defect of construction, fell from the platform in the street to the ground. The ground of liability in the case, as stated by the court, was: “We do not regard that as necessary, but as the city had changed the ordinary conditions governing the highway and had actively participated in creating a carnival and street fair in public streets, we think it assumed the obligation to use reasonable care to see that the structures were reasonably safe.”

It is a part of the ministerial duty of a city to keep its streets and sidewalks in a reasonably safe condition for public travel. (Gathman v. City of Chicago, 236 Ill. 9; Lehigh Valley Transp. Co. v. City of Chicago, 237 Ill. 581, 582.) In the latter case it is held: “Cities have always been held liable in this State for injuries resulting from negligence in the care or management of their streets.” Hogan v. City of Chicago, 168 Ill. 551, lays down the same rule.

But in the case at bar, appellee did not make itself a party to or promote the nuisance by granting a permit or doing any affirmative act, but is charged merely with wrongfully, unlawfully and negligently permitting divers persons organized as a business men’s club, etc., to produce a nuisance upon the streets of Lewis-town, etc. There is no question but that the declaration charges negligence, because the court said in the Van Cleef case, supra, page 325: “When the city authorized showmen to fill its streets with tents and structures of the temporary character usual in carnivals and street fairs, it was reasonably to be apprehended that unless considerable care was exercised injury might result. It.was not necessary that the city should have contemplated or been able to anticipate the injurious consequences to the plaintiff or the precise form of her injury, but it is sufficient that the city might have foreseen that some injury might result from its wrongful act, and when the injury did result, it could be seen that it was the natural consequence of the occupation of the street by structures of the nature of this platform under the permission given by the city.”

The court in that case further said: “The negligence of the one who constructed the platform would not exempt the city if the permission was also a proximate cause.” In the Van Cleef case, the appellee was apparently injured by a substantive defect in the sidewalk or street, in and about which the obligations, of the city were in its private capacity or ministerial duties.

The law is that police officers, appointed or employed by a city, are not its agents or servants so as to render the city liable in the performance of governmental duties or in executing or enforcing police ordinances or regulations. (Culver v. City of Streator, 130 Ill. 238; Tollefson v. City of Ottawa, 228 Ill. 136; City of Chicago v. Williams, 182 Ill. 135, 139; and Vossler v. DeSmet, 204 Ill. App. 292, 296; Roumbos v. City of Chicago, 332 Ill. 70.)

In City of Chicago v. Williams, supra, the court held: “In Craig v. City of Charleston, 180 Ill. 154, where an officer had been appointed by the city to keep a street free from obstructions, and, while in charge of the street, had made an unjustifiable assault upon plaintiff resulting in serious injury to the latter, it was held that, in such a case, the city is not liable for injuries received, and we there said, that a ‘municipal corporation, while simply exercising its police powers, is not responsible for acts of its officers in violation of the laws of the State and in excess of the legal powers of the city. ’ In the performance of its police regulations a city cannot commit a wrong through its officers in such a way as to render it liable for their torts; where the city is simply exercising its police powers, acts of its officers or agents, which are illegal and unlawful, are ultra vires; and a citizen has no remedy against the corporation for damages caused by such acts of its officers. (Blake v. City of Pontiac, 49 Ill. App. 543; Arms v. City of Knoxville, 32 Ill. 604.)”

In Roumbos v. City of Chicago, supra, The court said: “A city in the use of the police powers conferred upon it by the legislature does not act in its private capacity or in the local interest but in the exercise of a governmental function — a part of the political and governmental authority of the State and in the general public interest — and it is therefore not liable for the acts of its officers in the enforcement of police regulations. So it has been held that an incorporated town is not liable for the imprisonment of a person by one of its officers upon a verbal order of a police magistrate for a violation of an ordinance (Town of Odell v. Schroeder, 58 Ill. 353;) that a city is not liable for the negligent shooting of a person by a-police officer in attempting to enforce an ordinance forbidding the running at large of dogs without being muzzled and providing that all dogs running at large in violation of the ordinance should be destroyed (Culver v. City of Streator, 130 Ill. 238;) or for a brutal and unjustifiable assault made by a police officer under pretense of discharging his duty to prevent the obstruction of the streets. Craig v. City of Charleston, 180 Ill. 154.”

It is of interest to note that in the last case the city was held liable for the negligence of a street cleaner in setting fire to rubbish and without being watched the flames spread to adjoining premises and caused the death of a child, whose clothing caught fire from the flames. The court held that it was the duty of the city to keep its streets clean, and that the benefit to the public health was a mere incident. This case adopts a more liberal view than the reasoning in the earlier cases would indicate.

In the case at bar, the declaration charges that the proximate cause of the injury was the negligence of the city authorities of appellee. The real injury was the result of, or grew out of, a riot under the Criminal Code or under paragraph 65(59) of Cahill’s St. ch. 24, giving city councils power “To prevent intoxication, fighting, quarreling . . . and all disorderly conduct”; or under paragraph 65(72), giving city councils power ‘ ‘ To prevent and suppress riots, routs, affrays, noises, disturbances, disorderly assemblies in any public or private place.”

The declaration charges that the defendant, then and there, wilfully and negligently permitted certain streets surrounding the courthouse on the public square, at the time and place aforesaid, to be roped off or barricaded, and that then and there turkeys were released from the windows of the courthouse, etc., for the entertainment of the crowd that had congregated, as aforesaid, or for those of said crowd desiring so to do, to capture said turkeys, at the time and place aforesaid; and the plaintiff, then and there walking along and upon the said street (Sorenson’s store), and being in the exercise of due care, was rushed and pushed by a mob or crowd, etc.

As to the “certain streets surrounding the courthouse on the public square,” etc., nothing is set out in the declaration as to where these streets were situated that were roped off. Whether they adjoined the public square or lay a mile back is not indicated. “On the public square” only indicates where the courthouse stood. What effect the “roped off streets” had upon the crowds, the turkey or appellant is not made plain or described in the declaration. Whether it accelerated, retarded or had any effect upon the crowd or appellant is not charged in the declaration. Likewise, the declaration does not attempt to indicate where the barricade was or what effect or influence it had, or might have had, upon the crowd or mob or upon appellant, so that this court, under the rule that the pleading of a party is to be construed most strongly against him (People ex rel. Brinkerhoff v. Swigert, 107 Ill. 494), cannot find from the declaration that the roping off of streets or barricading streets, or any defect in a street or sidewalk, in any manner contributed to appellant’s injury.

But appellant bases her case upon the theory that the carnival or fair was a public nuisance; that appellee negligently permitted it to go along and is therefore liable for any injury. The “permission” as construed in Arms v. City of Knoxville, 32 Ill. App. 604; Wertz v. Mulloy, 144 Ill. App. 329, 334; Caspers v. Anglo-American Provision Co., 159 Ill. App. 573, 575; Commonwealth v. Curtis, 9 Allen (Mass.) 266; and other cases, means, — not to prohibit or prevent; that is, it was simply negligent. A city is not liable for negligently failing to abate every nuisance within its limits.

In Arms v. City of Knoxville, supra, the city was held not liable for its police or police officers failing to stop the firing of a cannon, known to be dangerous, upon its streets, which caused the death of plaintiff’s intestate; and numerous cases are cited where cities are held not liable for the nonfeasance and misfeasance of its officers or police.

In Culver v. City of Streator, 130 Ill. 238, the city was held not liable for personal injury from one of its officers or agents, in enforcing an ordinance prohibiting the running at large of unlicensed dogs.

In Evans v. City of Kankakee, 231 Ill. 223, the city was held not liable in the enforcement of police regulations.

In Roumbos v. City of Chicago, supra, the court further held: “In this State the care of the streets and sidewalks, their lighting and maintenance, have always been held to be the corporate functions of the municipality, and the municipality has been held liable for the negligence of its employees in the performance of those functions which has resulted in injury to others. There is no difference in kind between these functions and the cleaning of the streets. All are provided for by the same statute in the same terms, and the same rule of liability should apply to all.

“It is argued that the great weight of authority in the decisions of the courts of final jurisdiction in other States is contrary to the conclusion we have reached. We have not overlooked or failed to consider those decisions. Those denying the liability of the city are more numerous than those to the contrary, but in our judgment the view which we have expressed is sustained not only by our own decisions but by the better reason and is more just in its operation than the other view.”

The obstruction in the street mentioned in the rule that renders the city liable, relates to a physical defect or obstruction. In Craig v. City of Charleston, 180 Ill. 154, 156, the court held: “Appellant further contends that the placing of Apgar in the street and in control of it was the creation of a nuisance, upon which ground it is liable, — in fact, his chief contention is that he became thereby an obstruction in the street, — and cites a long list of authorities in support of the proposition that it is the duty of a city to keep its streets free from obstructions, and a failure in that regard will render it liable for injuries caused thereby. We cannot regard a human being in the exercise of police powers as an obstruction, in the sense contemplated by the unquestioned doctrine announced by those cases. ’ ’

The whole subject is intelligently discussed in Hanson v. Berry, 54 N. D. 487, 47 A. L. R. 816, where the court says: “The rule that subjects a municipality to liability for the failure to maintain its streets in a reasonably safe condition, though generally established and well approved, is nevertheless exceptional and anomalous. 4 Dill. Mun. Corp. 5th ed. sections 1714, 1715. This exception, however, is predicated upon a duty with respect to the physical condition of the streets rather than with respect to the manner in which it shall exercise other governmental powers which may in turn affect the convenience or safety of those who may have occasion to use the public streets. The failure to arrest pickpockets and gunmen may render the streets as unsafe at night as the violation of an ordinance limiting the speed of automobiles. Yet it is universally held that the city may not be held for the failure to efficiently exercise its powers of government. The failure on the part of the city to abate a nuisance upon private property which affects the - safety of travel upon the public streets, such, for instance-, as shooting galleries, does not result in liability to one who is injured. Leonard v. Hornellsville, 41 App. Div. 106, 58 N. Y. S. 266; Hubbell v. Viroqua, 67 Wis. 343, 30 N. W. 847, 58 Am. Rep. 866. To seize upon the exceptional doctrine that holds a city to liability on account of the unsafe condition of the streets as a means of qualifying the rule of nonliability involves a sacrifice of logic to supposed expediency. The obligation that a city owes with respect to the maintenance of its streets in a safe condition does not differ in character or in the consequences of its violation from the numerous other duties it owes to its inhabitants,. and the governmental power vested in it for the protection of the public is all to the same purpose, viz., that it shall be used to promote the safety, comfort, and convenience of the citizens. The failure to enforce quarantine regulations may involve the spread of a contagious disease, leaving death in its wake. The sacrifice of life as a result of the failure to exercise this governmental function is as deplorable as though sacrificed under the wheels of a speeding automobile, and there is even more direct causal connection in the former case than the latter because of the independent act of -negligence on the part of the driver- of the vehicle. In our opinion, a holding that a municipality is liable on account of an unsafe condition of the streets, where such unsafety is due to no physical imperfection, would involve the modification of well-established principles of law.”

If there is to be any liberalizing of the rule in this State from the former and repeated holdings of the courts, it should be done by the court of last resort, and not by the lower courts.

We conclude that the City of Lewistown is not liable for the injuries charged, and the judgment of the circuit court of Fulton county is affirmed.

Affirmed.


text:
    Foley and Company, Appellee, v. Excelsior Stove & Manufacturing Company, Appellant.
    Gen. No. 8,569.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Hartzell, Cavanagh & Martin and C. H. Wood, for appellant.
    Rosenberg, Corlett & Toomin and M. Finlay Carrott, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellee brought a suit in assumpsit against the appellant at the January, 1927, term of the circuit court of Adams county. Appellee filed its declaration consisting of seven counts.

The first and second counts declared on a written contract dated September 15, 1924, which was set out in full in each count. Under the contract set out, the appellee agreed to deliver in about 10 weeks 25,350 catalogues printed according to certain specifications, and appellant agreed to pay therefor, $14,300, the tenth of the month following delivery.

The third, fourth, fifth and sixth counts declared on an order, without stating whether written or printed, for 25,350 catalogues for which the appellant agreed to pay $14,300. The third and fifth counts alleged that the catalogues were shipped to and received, accepted and retained by appellant.

The fourth count alleged a compliance with the order in all respects.

The sixth count alleged that said catalogues were sold to appellant, the time of delivery was extended to include January 30, 1925, and that said catalogues were on that date shipped, and consigned to appellant at Quincy, Illinois.

The seventh count consisted of the consolidated common counts for the' sum of $14,385.16, due March 10,1925.

Pursuant to the contract, on January 30, 1925, appellee shipped 25,502 catalogues to the appellant at its plant in Quincy, and on January 31 of the same year, addressed a letter inclosing an invoice which advised of the shipment of 25,350 catalogues at the agreed price of $14,300. On February 18, appellee wrote that inasmuch as it had delivered 150 books over the amount theretofore billed, an invoice was inclosed for that number at the contract price.

On the same day appellant wrote to appellee in Chicago requesting that it send someone in full authority, “to look over the catalogues sent us,” claiming they were not in accordance with the contract. In compliance with this request, one J. B. Whalen, appellee’s plant superintendent or foreman, was sent by officials of appellees “to make an investigation at Quincy and find out what was wrong with the catalogues and report back to Chicago.” ■ •

On February 21, Whalen arrived and examined from six to ten catalogues. He then reported back to Chicago. The next step in the dealings between the parties occurred on February 23, when appellant wrote advising of Whalen’s call and examination of part of the catalogues and calling on appellee to confirm his conversation; also requesting the return,of the electrotype plates which had been shipped to appellee for use in printing the catalogues.

On February 26, appellant again wrote demanding the immediate return of the electrotypes. Before returning them, appellee sent Whalen and the witness Ohlin, its secretary and comptroller, to Quincy, March 14, 1925, to see what adjustment could be made.

The testimony as to what occurred on this visit and the conversation between the representatives of the' parties is sharply disputed, appellant’s witnesses stating that the representatives of appellee, after examining an armful of catalogues, agreed to reprint the entire 25,000 without additional charge and gave appellant permission to use such of the catalogues furnished as they desired to send out to the trade, also without charge. On behalf of appellee, the witness Ohlin, who was no longer connected with it at the time of trial, testified that he examined 20 to 30 books, all of which had printing defects; that he asked the Fishers, appellant’s president and vice president, how they wanted to adjust the controversy, whether they wanted the books reprinted or the bad sheets removed and new ones put in; that they responded it was too late in the season, and the books couldn’t be used; that the witness stated at that time he had no authority to settle the controversy, but would report back and appellant would hear from Chicago.

The witness denied saying the books would be reprinted or that appellant could use all they needed without charge and added that his offer to send trained bindery girls from Chicago to examine the books for imperfections was refused.

The only witness to this conversation outside of the representatives of the parties was the witness Schmidt, an employee of Brock & Rankin who handled the binding of the catalogues, who testified on behalf of appellant. He stated that Ohlin asked the Fishers if it would be all-right to reprint the defective pages and they asked him if they could then be inserted satisfactorily. The witness rejoined that this could be done, but John Fisher said the season was practically over and 'since the electrotype plates had been returned, he didn’t-think this could be done in time; that Ohlin then suggested, “If Foley will print the whole job over again,” he said, “Of course, I can’t say whether 'they will do that or not,” he said, “but if they would print the whole job over, would that be satisfactory”; so John Fisher said, “No, it is too late, as I have told you, the season is over, and we have lost our whole year’s business by not having perfect books.”

On March 16, Foley and Company wrote appellant requesting permission to send trained bindery girls at its expense to sort the good books from the bad, -and offering to reprint the bad books at its expense or allow appellant for them, asserting that the entire order of catalogues was a fine job, and that an overrun of 400 books was printed to take care of spoilage which should have been caught in the bindery. To this letter appellant responded, March 25, refusing the offer of appellee, claiming Ohlin and Whalen had made promises and findings which the letter did not'disclose, and demanding new catalogues in compliance with the contract or return of the plates, so they could be printed elsewhere.

On March 31, appellee replied by letter refusing to reprint the entire order of catalogues and asserting that appellant’s refusal to permit an examination of the books was unjustifiable. The letter went on to deny that either Ohlin or Whalen had made any promises or findings inconsistent with the position taken in the letter.

This letter was unanswered, and on April 15, Foley and Company wrote that pursuant to request it was returning the half tones and cuts and inclosed with this letter copies of the invoices of January 30 and February 18 in the amounts of $14,300 and $85.12 respectively, and demanded payment.

While these letters were passing between the parties early in 1925, and continuing down to March of 1926, appellant sent out to its trade thousands of these catalogues and between 50 and 100 truck loads, furnishing them also to its salesmen for use in calling on the trade. Many orders were received as a consequence, this being the only general stove catalogue in use by appellant for over a year. •

It was established that of the 25,502 catalogues shipped, 14,143 were on hand at the time of trial and 2,828 were damaged by a fire in appellant’s plant in September, 1927, leaving 8,361 as the total number shipped out by appellant to its trade despite the alleged printing defects. There is no showing in the record that this was less than appellant customarily used for a similar period or that the next catalogue was printed sooner than usual, because of the alleged defects in this catalogue No. 37.

In September, 1927, a fire occurred in appellant’s plant at Quincy which practically demolished it. While claims could have been made upon the insurance companies for payment of the loss to goods held in trust, commission, consignment or storage, or sold but not delivered, appellant failed to characterize its holding of these catalogues in either of those capacities, but filed with the insurance companies sworn proofs of loss, a sample of which appears in evidence, under which appellant through its president, John J. Fisher, swore that “Insured was the absolute and unconditional owner of the property described.” And “that no articles are mentioned herein or in the annexed schedules, but which were in or on the premises described, and which belonged to and were in the custody or control of Insured at the time of said fire.”

The schedules which were referred to consisted of several hundred pages of items made up from appellant’s records by its auditor and insurance adjuster, and were identified as plaintiff’s Exhibit 11; The page which contained the itemization of the claim for loss to these No. 37 catalogues was received in evidence as plaintiff’s Exhibit 14 and indicates a claim for 14 cases of No. 37 catalogues, averaging 202 to the case, at the cost of 66^ each, or a total value of $1,866.48. This loss which was claimed to be 100 per cent was disputed by the insurance company adjusters, and was finally settled at the sum of $622.16.- .At the trial, appellant conceded under a stipulation of facts that the loss claimed by it in connection with these No. 37 catalogues which it had received from appellee, was settled at the sum of $622.16, and that this sum had been received from the insurance companies.

Upon the issue of compliance with the contract, the record fails to bear out the statement that it is undisputed the catalogues were not in accordance with the agreement. The only witnesses who examined more than an armful of catalogues were Straus and W. J. Fisher, both employees of appellant, neither of whom testified as to the results of their examination, save that Fisher stated, after examining a few from six or eight cases, that he was unable to find any good ones.

The witnesses Anderson and Freeland, employees of a printing house under contract with appellant, had examined no more than 50, and Freeland admitted that printing defects would be expected to appear in a small percentage of the total run, and that this accounted for the provision in the contract as to spoilage and a 90 per cent acceptable delivery.

The so-called proof of noncompliance, then, rests not on the testimony of any witness who purports to have examined any considerable number of the books, but on admissions claimed to have been made by appellee’s employees Ohlin and Whalen at their visit to Quincy March 14, upon examination of not more than 30 books of a possible 25,000. In answer to this, it should be noted that on rebuttal, Ohlin testified that neither he nor Whalen characterized the job as “rotten,” but that the few books he looked at had certain printing defects, and that he suggested sending down a crew of bindery girls in order to make an examination so as to determine how many of the books were unfit for use.

This offer was refused by appellant so that Foley & Company never had an opportunity to make a complete examination of the catalogues.

There was a trial by jury and a verdict and judgment in behalf of appellee in the sum of $12,500, and appellant has brought the record to this court, by appeal, for review.

Appellee, on the trial, offered exhibits, proofs of loss made by appellant as to destruction of catalogues by fire, made under oath and affirming that the catalogues were the sole property of appellant. Appellant complains because the court refused to admit in evidence the entire policies, which authorized appellant to make claim for supplies as “their own or held by them in trust or on commission.”

The fact that claim could have been made for loss to the goods of others is entirely immaterial in the face of the fact that to induce the insurance companies to pay the loss, appellant swore the goods were its own; that it was the absolute and unconditional owner and made its claim based upon a valuation of 100 per cent of the cost price; that this claim was adjusted at $622.16, and this amount was paid over by the insurance companies without any knowledge that the catalogues were claimed to be the property of others, and that payment had been refused because of printing defects.

On the adjustment of this claim for $1,866.48, it appears that the final basis of agreement was that the catalogues were considered to have only 50 per cent of their invoice value or $933.24, because of age, and the loss was agreed upon as two-thirds of their actual value, namely $622.16. There was no error in not admitting the policies in evidence.

Neither was it error in refusing to permit appellant to introduce records, made upon its own books, by its employees, at the direction of appellant, which were never brought to the attention of the insurance companies. The testimony was self-serving and of no probative force. (Wright v. Raftree, 181 Ill. 464; Gray v. Morey, 57 Ill. 221; E. H. Bindley & Co. v. Watson, 151 Ill. App. 123.)

It is insisted by appellant that there was no basis for the jury’s finding and that it should have been $18,659.28 or nothing.

There were 14,143 catalogues on hand with an invoice price of 66$S each. Appellee showed by the testimony of the witnesses Mehagen and Nelson, the insurance adjusters, that in making the adjustment on these catalogues it was agreed between them and the Fishers that the value was 50 per cent of the invoice price. The jury in reaching their verdict doubtless assumed that even if there was cause for complaint on the part of appellant in the alleged printing defects, having agreed with the insurance companies upon a 50 per cent valuation for the purpose of adjusting the fire loss, this would be considered as an admission the catalogues were worth that much for all purposes.

Half the catalogues on hand or 7,071, at 66<¡; amounts to $4,666.86, which leaves a debt after deduction. from the invoice price of $14,385.12, in the' amount of $9,718.26, as of February 10,1925. Interest on this sum for six years would be $2,915.46, or a total of $12,633.72. Since the case was tried in the January, 1931, term, or somewhat less than six years after the debt was due, it is easy to see how the jury could have arrived at its verdict of $12,500.

Moreover, if there was an acceptance of the catalogues, and if appellee was entitled to recover the full amount of its claim, certainly appellant is in no position to complain that the verdict should have been substantially higher.

It is next contended by appellant that the evidence shows the catalogues furnished were inferior in quality and workmanship and numerous pages of the abstract and record are quoted as authority therefore, but upon examination they prove not to bear out this contention. The references to pages of the abstract consist of remarks attributed to Ohlin, appellee’s comptroller, after examining 30 books, that the job was a “bum one.”

This statement was denied.

The witness Schmidt stated that when the sheets came in for binding, he noticed they were torn, and the paper was not up to sample. So far as the torn sheets are concerned, there is nothing of record to show how many were torn or whether the books containing these torn sheets were shipped to Quincy, or that if they were, this resulted in spoilage of over 10 per cent of the total number. The contract, it will be remembered, provides that 90 per cent of the order shall be considered an acceptable delivery, and Foley and Company printed an overrun of 400 books to take care of any spoilage.

The witness Freeland, an office employee of a competitive publishing house, testified that the paper in the books was of a lower quality than the sample in evidence and that one of the catalogues contained certain printing imperfections. The contract in writing provided that the paper used should be 70 pound white enamel, a common type of paper used in printing. Nowhere is it denied that the paper was of this quality, and in view of the fact that no sample is referred to in the contract, the court should not have received it in evidence. In any event, it is undisputed that the paper stock was 70 pound white enamel and Freeland’s testimony at best refers only to a scanty number of the books. There is no support in the testimony of the charges made.

Complaint is made that the court refused to admit in evidence the statements made by the witness Whalen when he went to Quincy. The authority of the witness Whalen, when he was sent to Quincy by appellee, was expressly limited to securing information and investigation and reporting back. Whalen was plant superintendent for appellee and had no authority to speak or negotiate for appellee. Any statement that he made was not binding upon appellee. No tender of proof was made as to what this witness would testify to, and there was, therefore, no error. (Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 328; Strong v. Friedman, 261 Ill. App. 602, 618; Wigmore on Evidence, 2d Ed., vol. 3, sec. 1769.)

There was some testimony offered quoting Whalen and Ohlin that the catalogues could be used without charge and that appellee would reprint. Under no theory could this promise be held as binding on appellee for Whalen was merely a plant superintendent or foreman, and not an official of the corporation, and as such, had no implied authority to make any promise binding upon appellee. Fletcher Cyc. Corp., vol. 3, p. 3271, and numerous cases there cited.

Moreover, his authority was expressly limited by instructions from the company’s president and general manager, who wrote, upon being apprised in the letter of March 25, that findings and promises were claimed to have been made by Whalen and Ohlin, denying any such promises or findings, and stating the findings were exactly as set forth in appellee’s letter of March 16. Ohlin flatly denied that any such conversations took place.

Appellant further contends that the court erred in giving plaintiff’s instructions Nos. 8, 9, 10, 11, 12, and 13, and in failing to give defendant’s instructions Nos. 33 and 34. Appellee’s given instructions objected to are as follows:

“No. 8. The jury is further instructed that if it finds from the evidence that the plaintiff delivered to defendant catalogues in accordance with the contract, in the number specified by the contract taking into account the 10 per cent clause, then you must find the issues in favor of the plaintiff and assess plaintiff’s damages at the contract price of said catalogues plus interest on said amount at the rate of 5 per cent per annum from March 10, 1925, to the present date, less freight charges so far as the same is shown by the evidence.
“No. 9. The jury are further instructed that if you believe that the defendant did any act with respect to the said catalogues, without the consent or direction of the plaintiff expressed or implied, which the defendant would have had no right to do unless the defendant were the owner of the catalogues, they should find that the defendant in law and in fact accepted said catalogues, any actual intention to the contrary on the part of the defendant is wholly immaterial.
“No. 10. The court instructs the jury that in law defendant is deemed to have accepted the catalogues if after receiving the catalogues it has done any act in relation to them which is inconsistent with ownership in the plaintiff,- or retained the catalogues in its possession an unreasonable length of time without permission or consent of the plaintiff; even though the catalogues were not printed in accordance with the contract.
“No. 11. The jury is instructed that if the catalogues were not in accordance with the specifications and terms of the contract, the defendant to relieve himself of the obligation to pay therefor, might have refused to take delivery of them or if defendant took delivery, it might have within a reasonable time thereafter, rescinded the contract by returning or offering to return the catalogues to the plaintiff unless the catalogues were entirely worthless; the defendant cannot accept part of the catalogues and reject another part, but any such rescission must be of the whole of the catalogues.
“No. 12. The court instructs the jury that if it finds from the preponderance of the evidence that after the delivery of the catalogues the defendant used them as its own but that such use was with the permission and consent of the plaintiff, but further finds from a preponderance of the evidence, that after the giving of such consent and permission the plaintiff withdrew its consent and permission for defendant to use said catalogues as its own by demanding the contract price therefor and further find from a preponderance of the evidence that after the withdrawal of such permission and consent the defendant continued to act towards and use said catalogues in a manner inconsistent with the ownership in the plaintiff, then such acts and use by the defendant constituted acceptance of the catalogues and you should find the issues in favor of the plaintiff and assess damages at the full contract price and add thereto interest at the rate of 5 per cent per annum from March 10, 1925, to the present time, less freight charges, so far as the same are shown by evidence.
“No. 13. The court instructs the jury that the burden is on the defendant of proving its set off by the preponderance or greater weight of the evidence, and if you believe the evidence on the defendant’s set off is evenly balanced, or preponderates in favor of plaintiff then you should find as to that issue in favor of plaintiff, Foley and Company. ’ ’

In American Theater Co. v. Siegel-Cooper & Co., 221 Ill. 145, it appeared that 600 opera chairs, “K. D.” flat, were ordered in writing in accordance with a sample submitted. The chairs were delivered and set up in defendant’s theater. The declaration consisted of the common counts. The court directed a verdict for the plaintiff, and the contention was made in the Súpreme Court, after affirmance of the judgment by the Appellate Court, that the plaintiff had failed to prove the chairs delivered complied with the description contained in the contract. The Supreme Court held this to be unnecessary, in view of the proof that the defendant had received and retained the chairs and had set them up in his opera house for use, and held as follows, page 147: “With this proof in the record, it was not necessary for appellee to prove that the chairs exactly corresponded with the sample or with the description contained in' the contract. The law does not permit a person to receive goods under a contract, appropriate them to his own use, and then defeat an action for the purchase price on the ground that the goods were not of the exact quality or description called for by the contract.”

It will be noticed that in this case the only evidence offered by the plaintiff was that the chairs delivered were K. D. opera chairs, with iron frames and upholstered backs, corresponding to the proof in the instant case that the catalogues delivered were National Stove catalogues.

To the same effect is Hommel Wine Co. v. Netter, 197 Ill. App. 382, and Waukesha Canning Co. v. Henry Horner & Co., 138 Ill. App. 564, and indeed, this rule of law appears to be based on sound principle, for if the goods tendered in pursuance of the contract are received and used by the vendee with knowledge of their condition, to require the vendor to make proof of quality and compliance with the contract conditions, would tend to make of every lawsuit in which the facts are practically undisputed a complicated and difficult procedure.

The objection to appellee’s instruction number 8 could equally apply to appellant’s instruction number 19, as each is based upon the same principle and present the same rule, as applied to each side of the case. As to instructions numbers 9 and 10, there can be little doubt as to their propriety, as the principle' enunciated therein that any act done by the defendant which it would have no right to do unless the owner of the catalogues, would amount to an acceptance of the delivery, has been approved in many cases and is part of the Uniform Sales Act, Cahill’s Ill. Rev. St. ch. 121a, Ü 51. Wolf Co. v. Monarch Refrigerating Co., 252 Ill. 491.

.We are unable to agree with appellant’s construction of plaintiff’s given instruction number 11. This instruction was more than fair to appellant, for it indicated the action which might have been taken by it to relieve itself of liability without indicating that such action had not been taken. As to the contention that this instruction advised the jury that defendant had accepted part of the catalogues and endeavored to refuse the remainder, there was ample undisputed evidence that appellant had accepted at least part of the catalogues by claim for their loss in the fire as the absolute and unconditional owner. It has been held in this State that including goods received by vendee in his proofs of loss for insurance upon his stock amounts to an acceptance. Telford v. Albro, 60 Ill. App. 359.

In addition, over 8,000 were mailed to the trade after withdrawal by appellee of any alleged permission to do so. This being the case, the question arises whether appellant could accept part and reject the balance of the shipment, it being' clearly established that there was a partial acceptance. Under the usual definition, we submit it is apparent the contract was indivisible. “A contract is entire, when, by its terms, nature and purpose, it contemplates and intends that each and all of its parts and the consideration shall be common each to the other and interdependent. ’ ’ 13 Corpus Juris 561; Bank of Antigo v. Union Trust Co., 149 Ill. 343. Being indivisible and entire the vendee has no right to accept part and reject the rest. (Wolf v. Dietzsch, 75 Ill. 205; Steinberg v. Schwartz, 219 Ill. App. 138.) It follows then that these instructions both correctly stated the law and were supported by the evidence.

It is claimed that appellee’s instruction number 12 improperly assumed there was evidence that the appellee had withdrawn permission previously given to use the catalogues in question. Bearing upon this point are the letters of March 31 and April 15, written by appellee and stating appellee’s refusal to reprint the catalogues and demanding payment of the bill on the theory that there had been a compliance with the contract.

Even going so far as to assume that Ohlin and Whalen were authorized to and did give permission to appellant to ship out such books as they needed, without charge, there is no evidence whatever of any consideration received by appellee for the alleged promise such as to constitute the arrangement a contract. This being so, it was a mere permissive use, and appellee served notice that it considered it was not in default and would not reprint, and demanded payment of the bill on the theory that it had performed.

Moreover, under appellant’s given instructions numbers 22 and 23, appellant was fully protected through the advice to the jury that if the usé was by agreement with the plaintiff, such use would not of itself constitute an acceptance.

There was no error in giving appellee’s instruction number 13 as it was expressly limited to a set-off and appellant’s instruction number 17 was to the same effect.

As to defendant’s refused instruction number 33, this was properly refused, for it limited the jury in determining whether there had been an acceptance to an examination of what the parties did, whereas the court had given on behalf of appellant its instruction number 18, which instruction advised the jury upon this question of acceptance to take into consideration all the facts and circumstances surrounding, the delivery of the catalogues as shown by the evidence, and from such facts and circumstances and all the facts and circumstances in evidence, determine whether there was an acceptance by the defendant,

The real vice in instruction number 33 is that the jury is to consider only what the parties did as determining their intentions. Since an acceptance may be predicated upon failure to do anything where there is a duty to act, this instruction did not correctly state the law. In view of the giving of defendant’s instructions numbers 18, 22 and 23, it appears that the jury was fully instructed upon this question of acceptance.

Construing all of the given instructions as a whole, it is apparent that the law applicable to the facts was properly presented to the jury.

The further point is made that there can be no recovery on the pleadings for the reason that the contract was not performed, and that appellee should have pleaded an excuse for nonperformance.

This objection was not raised on the motion for a new trial and therefore must be considered as waived.

In support of this point are cited cases involving suits on insurance policies and building contracts, under which conditions precedent are set forth which must be complied with before a cause of action accrues. In such cases, it is doubtless true that there is no cause of action without showing performance of the condition precedent or an excuse for nonperformance. Generally, it is true that what must be proved must also be alleged as a part of proper pleading. The essential difference between this principle and the case at bar lies in the fact that there is no condition precedent in the contract in evidence, nor can acceptance be considered an excuse or waiver of nonperformance. The theory of acceptance is that it constitutes an admission of performance such as dispenses with proof thereof. (American Theater Co. v. Siegel-Cooper Co., 221 Ill. 145; Hommel Wine Co. v. Netter, 197 Ill. App. 382.) In the latter case, which involved a claim to recover for wine, a portion of which was sold by vendee after delivery, and the balance claimed to be not in compliance with the contract, the court on page 391 affirmed the language of Eureka Cast Steel Co. v. Morden Frog Works, 23 Ill. App. 591: “that, in the absence of fraud or latent defects, the acceptance of an article sold upon an executory contract after an opportunity to examine it, amounted to an agreement that the article conformed to the contract and was satisfactory. ’ ’

From these cases, it clearly appears that, quite the contrary to considering an acceptance as tantamount' to an excuse for nonperformance, the courts were of the opinion that it amounted to a representation of full compliance with the contract to the vendee’s satisfaction.

Some complaint was made as to the court’s refusal to admit in evidence one telegram received by appellant and a copy of a telegram sent by appellant. What we have said about the Whalen and Ohlin testimony answers all criticisms as to the court’s ruling upon these proffered exhibits. They could have affected the result of the suit in no manner and were not competent.

Under all of the undisputed proof in this case appellee was fully entitled to a verdict and judgment in a larger amount than that entered, and there is no error pointed out in the record that would warrant a reversal of the judgment. (Catholic Bishop of Chicago v. Bauer, 62 Ill. 188; Concord Apartment House Co. v. O’Brien, 228 Ill. 360.)

Accordingly, the verdict and judgment of the circuit court of Adams county is affirmed.

Affirmed.


text:
    Farmers Exchange Bank of Elvaston, Appellant, v. Marie Sollars, Appellee.
    Gen. No. 8,572.
    Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    John W. Williams and O’Harra, O’Harra & Roeth, for appellant.
    Clyde P. Johnson and Mack & Mack, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

The Farmers Exchange Bank of Elvaston, appellant in the above case, confessed a judgment against the appellee, Marie Sollars, in the circuit court of Hancock county, Illinois, in vacation during the June term, 1930, of said court.

Judgment was confessed on two notes, one for the sum of $3,000, and one for the sum of $600, each of said notes being signed by J. E. Sollars and Marie Sollars, husband and wife. Included in each of said notes and forming a part thereof was a power of attorney to confess judgment.

J. E. Sollars, the husband of said Marie Sollars, appellee, died some time before judgment was entered on the notes, which fact was set out in the declaration and in the affidavit showing the execution of the notes. Judgment was entered against appellee for the amount due on both of said notes. The largest of said notes was in the words and figures following:

$3,000.00

Elvaston, Ill., Dec. 5, 1929.

Six months after date, we, or either of us, for value received promise to pay to the order of The Farmers Exchange Bank Three thousand dollars with interest thereon from date until paid, at the rate of seven per cent per annum, payable annually at the Farmer’s Exchange Bank of Elvaston, Illinois.

And if not paid when due and placed in the hands of an attorney for collection the further sum of ten per cent upon the amount due as attorney’s fees, the same to be included in any judgment rendered hereon. The makers and all indorsers hereof severally waive presentment for payment, notice of non-payment, protest and notice of protest of this note, and to secure the payment of said amount, authority is hereby irrevocably given to any attorney of any court of record to appear for the undersigned in any court of record in term time or vacation, at any time hereafter, either before or after the maturity of this note, and waive the issuance and service of process and confess judgment against the undersigned in favor of the holder of this note, for the amount of the above note and all costs, including said ten per cent of the amount due, as attorney’s fees and to file a cognovit for the amount and an agreement waiving and releasing all errors which may intervene in any such proceeding, and with an agreement that no writ of error or appeal shall be prosecuted upon such judgment, nor shall any bill in equity be filed to intervene in any manner therewith and also to consent to the immediate issuance of an exception upon said judgment, all that said attorney may do by virtue hereof being hereby ratified.

J. E. Sollars (Seal)

Marie Sollars (Seal)

P. 0.............

No. 8677 Due June 3.

The other note was exactly the same in form, differing only in date and amount, and was executed by the same parties.

Execution was issued out of the clerk’s office upon said judgment served upon appellee and in due time returned nulla bona and thereafter garnishment proceedings commenced against various garnishees and writs issued and served upon the garnishees.

On October 20, 1930, during the October term of said court, appellee appeared in said court by. her attorneys and entered her appearance specially, and moved the court to vacate said judgment on the ground that it was void for the want of jurisdiction of the person of appellee, as shown upon the face of the record. The motion to vacate was based upon the fact that the warrant or power of attorney to confess judgment was joint as to the two signers thereof and there was no power or jurisdiction to confess and enter a judgment against one of the makers only, and .that the judgment was void. The court granted the motion and vacated the judgment, and appellant has brought the record to this court, by appeal, for review.

It would appear that all questions raised by this appeal had been fully settled by what the court said in Mayer v. Pick, 192 Ill. 561, and Keen v. Bump, 286 Ill. 11,14, in which last case the court fully affirmed all that it had said in Mayer v. Pick, supra.

But appellant cites paragraph 3 of Cahill’s St. ch. 76, as to joint rights and obligations, which provides: “Except as otherwise provided in this Act, all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants,” and the intimation is that there has been some change or modifications made to this section since the court decided the case of Mayer v. Pick, supra, that might lead to a different conclusion in this case from the conclusion arrived at in Mayer v. Pick, supra. The Mayer case, supra, was decided in 1901 and we have examined the language of said section 3 of chapter 76, as it stood in 1877 and as it read to a date later than 1906. It then read: “All joint obligations and covenants shall be taken and held to be joint and several obligations and covenants,” and it reads exactly the same way now, except the words added in the beginning, “Except as otherwise provided in this act,” referring to changes made in the laws of joint tenancy and survivorship. The rule as to joint obligations and covenants has remained the same as it was as early as 1877, and must have been fully considered by the court when the opinion in Mayer v. Pick was handed down, which was an adoption of the opinion of the Appellate Court in that case.

The facts in Mayer v. Pick, supra, were the same in all particulars as the facts in this case. The note was signed by two parties, husband and wife, and the obligation upon the note was a joint and several obligation. The only difference in wording as to the warrant to confess judgment is that in Mayer v. Pick, supra, the power was, “to appear for us,” while in the case at bar, the authority was “to appear for the undersigned.” The rule laid down in Mayer v. Pick, supra, was based upon the rule adhered to in England from the earliest times and is in conformity with the rule in the majority of the American States. It is a reasonable rule and has been -followed in Illinois now for 30 years, and it is not within the discretion of this court to change the rule. After the judgment was set aside in the circuit court upon the motion of appellee, she then moved to quash various writs against the garnishees, and appellant contends that thereby appellee entered her full appearance and became bound by the judgment. This is a misapprehension. The judgment was entered in vacation and having been entered without any power or- authority, the judgment was void and could be attacked collaterally. Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312. .

Finding no error in the record, the judgment of the circuit court of Hancock county is affirmed.

Affirmed.


text:
    Amanda Hendricks, Administratrix of the Estate of Marcine A. Hendricks, Deceased, Appellant, v. Urbana Park District, Appellee.
    Gen. No. 8,576.
    Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.

      Barr & Thomas and Herrick & Herrick, for appellant.
    Busch & Harrington, for appellee; C. E. Tate, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellant brought this suit in the Champaign county circuit court to recover damages alleged to have been sustained by her, growing out of the death of appellant’s intestate, which occurred on August 5, 1930, charged to have been caused by the negligence of appellee, a municipal corporation, organized under the laws of this State, by virtue of an act of the General Assembly entitled, “An Act to provide for the organization of park districts and the transfer of submerged lands to those bordering on navigable bodies of water,” approved June 24, 1895. Cahill’s St. ch. 105, ÍI295 et seq.

It was alleged in the declaration that appellee “under authority vested in it by the laws of the State of Illinois, had the control, management and supervision of the park system in the City of Urbana and had and was maintaining among other conveniences for. amusement and entertainment of the general public, a swimming pool to be used for swimming and bathing for the use of which the defendant charged the public a fee of 25 cents a person; that it was the duty of the defendant to take all precautionary measures required by reasonable prudence to guard against injuries and dangers which might arise in the use of the swimming pool by the patrons, and to exercise care and diligence in the operation and management of the swimming pool to prevent'injuries to persons using the pool; that on, to wit, August 5, 1930, while the plaintiff’s intestate, who was an infant of 12 years of age, and who was then and there in the exercise of all due care and caution for her own safety and the safety of others, and while the parents and next of kin of said intestate were not guilty of any contributory negligence, the plaintiff’s intestate having paid the charge made by the defendant for the use of the swimming pool, the defendant, by its agents and servants, who were then and there in charge of, managing and operating the swimming pool, so carelessly and negligently managed and operated the same that by reason of such carelessness and negligence the plaintiff’s intestate, while in said swimming pool, was drowned; that the decedent left surviving her, her father and mother and one brother as her heirs and next of kin, who are still living.”

There were six counts in the declaration and various charges of negligence made. Appellee demurred to the declaration, the demurrer was sustained and appellant electing to stand by the declaration, the suit was dismissed and appellant has appealed.

Appellant contends that the use of a park for a swimming pool is not a use for a park for public purposes and if the use is diverted from other than public purposes, in violation of the statute, it is negligence per se, citing Carstens v. City of Wood River, 332 Ill. 400, 409; and Partridge v. Eberstein, 225 Ill. App. 209.

In Carstens v. City of Wood River, supra, the court held: “The conversion of a large portion of a small public park into a swimming pool, pavilion and concessions, and surrounding the portion of the park converted into a swimming pool with a wire fence to prevent the free use of it by the public, are certainly not park purposes.”

This opinion was -rendered in December, 1928. On May 20,1929, section 14 of the act, Cahill’s St. ch. 105, 308, was amended to include the following language: “The, power conferred herein, as above set forth on any park district shall include the power to construct, equip and maintain field houses, gymnasiums, assembly rooms, comfort stations, indoor and outdoor swimming pools, wading . pools, bathing beaches, bath houses, locker rooms, boating basins, boat houses, lagoons, skating rinks, piers, conservatories for the propagation of flowers, shrubs and other plants, animal and bird houses and enclosures, athletic fields with seating stands, golf, tennis, and other courses, courts, and grounds, and the power to make and enforce reasonable rules, regulations, and charges therefor. The express enumeration of. each of the foregoing recreational facilities and equipment which park districts are herein given the power to provide shall not be construed as a limitation upon said park districts nor prohibit any park district from providing any other athletic and recreational facilities or equipment which may be appropriate in any park acquired, laid out, established, constructed and maintained by any park district under this Act, nor shall the same in any way be held to limit the power and authority by this Act conferred upon park districts and the commissioners thereof. Any recreational or athletic facilities of the character hereinabove enumerated which have heretofore been acquired, constructed and maintained by any park district organized under this Act áre hereby declared to have been constructed under and by lawful authority under the provisions of this Act, and all things properly and regularly done in pursuance thereof by said park district and the commissioners thereof are hereby declared to have been done lawfully under the provisions of this Act.”

Section 14 of said act was also amended at the same time to include the following powers: “Such park district shall also have power to sprinkle streets lying within its territory, and to take charge of and maintain the parkways upon such streets: Provided, however, that the power to sprinkle streets and take charge of and maintain the parkways in such streets shall not be exercised by such park district until the question as to whether or not it shall exercise such power shall have been submitted to a vote of the people in such district. ’ ’

As to the negligence charged in the declaration, it is sufficient to say that appellant’s intestate came to her death by drowning in a pool of water, and it was alleged that appellee did not take precautionary measures to protect those using the swimming pool, but managed and operated the same in a careless and negligent manner; that the pool was improperly constructed and was in a dangerous and unsafe condition; that said pool was without sufficient lights; that appellee did not furnish sufficient guards and failed to erect notices as to the depth of the water; that there was not sufficient lookout for the protection of swimmers and that the amusements and pools, maintained by appellee, were of the kind and character that would appeal to and were attractive to and would entice children of tender years.

There is no claim that appellant’s intestate was injured in any manner in or about the streets or parkways of the park, or that the park district had ever, by vote or otherwise, adopted the later clauses of the act.

Partridge v. Eberstein, supra, is a case where a suit was brought between individuals for injuries caused in an automobile accident where both were using the public highway, and it was held between these parties that, as a general rule, under the laws of the road the violation of a statute was negligence per se. Neither of the cases cited is applicable to the facts in this case. A great many cases are cited where the relationship with the municipal body was of a different nature and character than the facts in this case, and the Supreme Court of this State does not seem to have passed upon an identical case. The question is whether this appellee exercises a public and governmental function, or whether it is local and proprietary.

In Quinn v. Irving Park Dist., 207 Ill. App. 449, a district organized under the same act, it was held: “It follows, therefore, that the park, swimming tank and gymnasium located therein are held for the use of the citizens of the State generally and not for the exclusive use of the citizens of the park district, and the ordinance which seeks to limit the use to the citizens of the district is null and void.”

In Stein v. West Chicago Park Com’rs, 247 Ill. App. 479, 483, the court held: “It is a well-recognized principle that municipal corporations have a dual character, the one public and the other private, and exercise correspondingly two-fold functions and duties. On the one hand, its powers are of a public and general character, to be exercised by virtue of certain attributes of sovereignty delegated to it for the welfare and protection of its inhabitants or the general public. On the other hand, its duties relate to those of special or private corporate purposes, for the accomplishment of which it acts through its proper officers or agents. In the first classification, its functions are political and governmental and no liability attaches to it under the common law, nor is it liable for the nonuser or misuser of its power. When acting in its private capacity, however, it may incur liability by reason of its negligence or failure to perform its duties in a proper and careful manner. 43 C. J. 921; Bedtke v. City of Chicago, 240 Ill. App. 493.”

Of course, Stein v. West Chicago Park Com’rs, supra, is based upon the broader ground that the West Chicago Park Commissioners, a municipal corporation, was created by the State legislature as a separate entity for the health, welfare and enjoyment of the general public.

In Holt v. City of Moline, 196 Ill. App. 235, 237, Mr. Justice Dibell, rendering the opinion of the court, said: “We are of the opinion that a city is not required by law to keep every , part of a public park safe for public travel. Certain parts of a public park should be kept in a safe condition for public travel, but there often are in such a park, ponds, lakes, knolls, ravines and forests not intended and not understood by the public to be intended for public travel; and machinery and appliances with which a park is kept in order may very reasonably be stored in some part thereof.”

In Tollefson v. City of Ottawa, 228 Ill. 134, 137, it was held that, under the statute, the city had the right to erect and establish hospitals and medical dispensaries and control and regulate the same. The court say: “If the purpose be charitable, then the city is not liable for the negligent acts of its employees in the institution. (Parks v. Northwestern University, 218 Ill. 381.) ” After considering the statute and ordinances as water works and furnishing water for hire, the court say: “The statute plainly gave to the city the right and power to establish and maintain waterworks, in its private or proprietary capacity, .for the benefit and profit of the city. No such right or power is given to the municipality in reference to the erection and maintenance of a hospital, and the case last cited is in this way distinguished from the one at bar. The city did not possess the power, in its private or proprietary capacity, to engage in the business of conducting a hospital for revenue. If the municipal authorities have unlawfully entered upon a course of that character the city cannot be made liable for negligence on their part or on the part of those employed by them in carrying out their purpose. ‘In the performance of its police regulations a city cannot commit a wrong through its officers in such a way as to render it liable for their torts. Where the city is simply exercising its police powers, acts of its officers or agents which are illegal and unlawful are ultra vires, and a citizen has no remedy against the corporation for damages caused by such acts of its officers.’ City of Chicago v. Williams, 182 Ill. 135.”

Other cases hold that where the officers of a city institution are making charges and securing revenue or meeting expenses in part by charges, in violation of law, the city is not liable for their unlawful acts.

In the note to Bisbing v. Asbury Park, 80 N. J. L. 416, 33 L. R. A. (N. S.) 523, many cases are collated on this subject and the author of the note states: “The weight of authority supports the fundamental proposition of law upon which Bisbing v. Asbury Park rests, that a municipality maintaining public parks is discharging a public duty, and is not performing a private, corporate function for'its own advantage.” The subject is further discussed in Corpus Juris, vol. 43, pages 921 and 930, and the author states on page 926: “Whether the duty is absolutely imposed or voluntarily assumed, immunity from liability is made to depend upon the condition that the acts or duties are for the general public good, as distinguished from such acts as inure to the special profit or advantage of the municipality, or are legislative or discretionary, as distinguished from ministerial,” citing Wilcox v. Chicago, 107 Ill. 334. In Wilcox v. Chicago, supra, involving the Fire Department voluntarily established by the City, the court sets forth fully the doctrine applied in that case. The court says: “The exemption from liability is placed upon the ground that the service is performed by the corporation in obedience to an act of the legislature, — is one in which the corporation has no particular interest, and from which it derives no special benefit in its corporate capácity; that the members of the fire department, although appointed by the city corporation, are not the agents and servants of the city, for whose conduct it is liable, but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty- no action lies against the city without being expressly given, and the maxim respondeat superior has, therefore, no application.”

The court further states: “In favor of the doctrine, it may be that an additional, if not more satisfactory, reason for its adoption and rendering it an exception to the general rule may be found in public policy. If liable for neglect in this case, the city must be held liable for every neglect of that department, and every employee connected with it, when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employees had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person’s property within the limits of its jurisdiction. It would assuredly become too burthensome to be borne by the people of any large city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions. When the excitement is over and calm reason assumes its sway, it may appear to many where other methods could have been adopted to stay destruction, that appear plausible as theories, and their utter fallacy cannot be demonstrated by any actual test. To allow recoveries for the negligence of the fire department’ would almost certainly subject property holders to as great, if not greater, burthens than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority.”

No authority is given by law to the municipality to pay damages in any such case, and no provision is made by law or otherwise to levy and collect taxes or other funds to be applied to such purpose and under the well known rule that municipalities can only exercise such powers as are specially conferred by statutes, or such as may be inferred from the express grant, we are constrained to hold that park districts of the nature of appellee are not liable in damages for the negligent acts of its officers, such as are charged in the declaration in this case.

The judgment of the circuit court of Champaign county is, therefore, affirmed.

Affirmed.