author: Mr. Justice Friend

text:
    Herman Ockenga et al., Appellants, v. John Alken et al., Appellees.
    Gen. No. 41,876.
    Heard in the second division of this court for the first district at the February term, 1941.
    Opinion filed February 10, 1942.
    Rehearing opinion filed April 28, 1942.
    Rehearing denied May 13, 1942.
    Thomas Tighe and Gold & Liebmah, all of Chicago, for appellants; Thomas Tighe and Charles Liebmah, both of Chicago, of counsel.
    Hoffman, Hoffman & McCabe, of Chicago, for appellees ; Harry Hoffmah, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiffs are the owners of three lots in Nixon’s Terminal Addition to Westchester, a village in Cook county approximately five miles west of the Chicago city limits. Their deeds of conveyance contain covenants restricting until 1970 the use of the lots for any purpose other than the construction of three-flat brick buildings to cost not less than $18,000. They filed a complaint in equity, referred to as a “quasi-representative” suit, in which other property owners who might choose to claim the benefit of these proceedings were invited to join,- seeking by the decree of the court to modify these building restrictions. Some 15' other property owners moved to strike the complaint on the ground that it did not set forth a cause of action and for various other reasons assigned, in7 eluding one that certain portions of the prayer for relief were in contravention of the Constitution of the United States. The court allowed the motion to strike, and plaintiffs having elected to stand by their complaint, the cause was dismissed for want of equity. They thereupon prosecuted an appeal direct to the Supreme Court of Illinois, where pursuant to an opinion filed April 15, 1941 (Ockenga v. Aiken, 376 Ill. 533), the court transferred the cause to this court for determination because no constitutional question was involved.

From the salient allegations of the complaint it appears that the village of Westchester was organized in 1925 and covers an area of approximately 2,200 acres. It contains a population of about 600 people, who reside in 145 buildings, 3 three-flats, 21 two-flats and 121 single-family dwellings, substantially all of which were constructed prior to 1929. The total area of the lots occupied by these buildings covers approximately 20 acres, so that improvements have been built on lots extending over less than 1 per cent of the total area of the village, and lots covering more than 99 per cent of the total area are still unimproved. No buildings have ever been constructed in this subdivision except one three-flat, which was built by the promoters prior to 1929 at a cost of $25,000 exclusive of the land. This property was recently sold for $9,500, including the land and a three-car garage.

The subdivision was laid out in 1926, the year after the village was incorporated. It is alleged that in order to make the lots thereof appear to have a higher value so that greater prices could be obtained for them, the subdividers caused the deeds of conveyance given to purchasers to contain covenants restricting the use of the lots for any purpose other than the construction of three-flat buildings to cost not less than $18,000; that the purchasers of the lots were told by the seller that the property subjected to these restrictions was particularly suited for three-story apartment buildings and that the purpose of the restrictions was to maintain the premises at a higher value and to enable them to be utilized on the basis of their highest economic value.

Plaintiffs further aver that these representations proved to be wholly groundless; that the promotion failed with the collapse of the real estate boom after 1929, and the village of Westchester failed to develop; that it has been impossible to obtain capital to finance the construction of three-flat buildings on plaintiffs’ lots and on the other portions of the subdivision; and that the recent sale for $9,500 of the 11-year old three-flat building originally costing $25,000 demonstrates that it is economically unfeasible to construct three-flats for $18,000 in this subdivision.

The complaint alleges that since the adoption of the United States Government housing policy, loans for the construction of single-family dwellings may be obtained upon property situated as in this subdivision; that by virtue of changing financial and general conditions, the subdivision is now well adapted for the construction of single-family dwellings, and for the same reason is wholly unadapted for the construction of three-flat residential buildings, as provided in the restrictions; that so long as the restrictions remain of record against the premises, they constitute a cloud on title and malee all the real estate wholly valueless for any purpose; that in other subdivisions in the village of Westchester which were restricted to two and three-flat buildings no such buildings have been erected, but when those restrictions were recently removed the building of single-family dwellings on a large scale immediately followed.

It is further alleged that a large number of the lots in this subdivision have defaulted heavily on general real estate taxes so as to become a drain and burden upon the community; that improvements have been constructed, for which special assessments have been levied, and many of the lots are in default on special assessments, whereby the owners of the special assessment bonds have been deprived of their security and of repayment of their money, and the credit of the community has been and continues to be damaged; that if and when the restrictions are removed, so that the parts of the subdivision adapted for residential purposes may have built on them single-family dwellings, then all the lots of the subdivision will obtain a substantial economic value, loans will be available for building and paying back taxes and special assessments, and the individual owners of the lots and the community as a whole will be greatly benefited.

It is alleged that the suit was brought to remove or modify the restrictions on the lots and to obtain a decree providing for the construction of one-family dwellings thereon costing not less than $5,000; that the suit is brought not only for the benefit of plaintiffs but of all other lot owners who desire to join in the prosecution thereof, or partake of the benefits of the decree which might be entered, and who will contribute a fair and just amount to the expense of the prosecution of the proceeding. Plaintiffs asked for an injunction from any attempt at enforcement of the $18,000 three-flat building restriction, and for such other relief as may be just and equitable.

The principal ground urged for reversal of the decree is that equity has jurisdiction to remove or modify restrictive covenants, when to do so will not unjustly injure other property. Cuneo v. Chicago Title & Trust Co., 337 Ill. 589, is relied on principally as authority in this State for the relief sought. In that case the court held that the evidence did not make out a cause for removal or modification of the restrictive covenants, but plaintiffs’ counsel in the case at bar rely on observations made by the court by way of dictum in its review of the general subject, that under certain circumstances not present in that proceeding the court may authorize the removal of restrictions. However, the circumstances which the court evidently had in mind must be such as to justify the conclusion that there has been such a change in the neighborhood of the property as to warrant a court in relieving the owner thereof from the restrictions imposed. The court pointed out that “if the character of the property on Castlewood Terrace had by the acts of the owners thereof changed to the extent justifying a court of equity to remove restrictions that court should not hesitate so to do, but the fact of change in the neighborhood . . . does not, alone, warrant a court of equity in relieving the property of appellants here from the restrictions imposed.” (Italics ours.) The opinion then proceeds with the observation that the property owners knew when they purchased their respective lots of the restrictions on the use to which they could put their property and that doubtless the knowledge of these restrictions, to some extent, affected their judgment as to the price which they should pay for these respective lots. “Having purchased them subject to restrictions they are bound by them so long as the restrictions are reasonable and not contrary to some public policy or some positive rule of law.” (Italics ours.) The Cuneo case seems to emphasize the requirement that the change in the character of the property and in the neighborhood must be due to some act or acts of the owners or grantors before equity will afford relief from the restrictions. Plaintiffs’ bill contains no such allegations, but on the contrary it alleges that no buildings have been constructed in the subdivision for many years and that no changes have taken place, either in the property or in the subdivision. Plaintiffs do allege that there have been changes in the general economic conditions and in the real estate market since the creation of these restrictions, but there is no claim that the change is due to any act of the lot owners or the grantors. It must be presumed from the allegations of the complaint that the reason more three-flat buildings of the kind provided for in the restrictions were not built during the period following 1929 was because some of the lot owners suffered financial reverses during the depression.

Another case relied upon by plaintiffs is Osius v. Barton, 109 Fla. 556, 147 So. 862. In that proceeding adjacent property owners in the subdivision which was restricted to residences sought to enjoin the use of a dwelling house on defendants’ lot for business purposes as a beauty parlor. Defendants interposed a cross bill setting forth change in the circumstances and character of the neighborhood without fault on the part of defendants, claiming that the property had become almost useless as a residential property and had practically no income value as such, although heavily assessed for burdensome taxes, and that a due return on the property could be realized from it only as business property and not as residential property. Defendants there argued that to enforce and continue the requirement imposed by the restriction would amount to a practical confiscation of the property, while on the other hand it would be to the best interests of the community that the restrictions be removed because they were no longer capable of serving the purpose for which they were imposed in the first instance. The court held that under such circumstances equity would not only refuse to enforce restrictive covenants by way of injunction, but that it would go further and remove the no longer useful restrictions as a cloud on title, on the theory that in such cases there is an implied condition in the original grant that the general policy of the law to dispense with encumbrances on title should prevail where enforcement of restrictive covenants is no longer of general usefulness nor capable of serving the purpose for which the restrictions were imposed. This rule is undoubtedly supported by respectable authority, as indicated in a note in 88 A. L. R. 405, but it applies only to cases where changes in the neighborhood have been so radical that the restriction can no longer serve the purpose for which it was imposed. The complaint in the case at bar indicates no such changes in the neighborhood of Westchester as to justify the application of the rule in the Osius case.

In Turney v. Shriver, 269 Ill. 164, the court was called upon to construe a building restriction in a deed with respect to the surrounding neighborhood, and in discussing the matter of relieving property owners from the obligations of restrictive covenants voluntarily entered into, the court pointed out that although it may be a hardship on the owners to enforce a strict compliance with the covenant in question and thereby prevent them from devoting their property to a use which, by reason of the subsequent development of the subdivision and change in conditions was apparently advantageous to them, that fact alone would not warrant relieving the property owners from the obligations of their bargain, and said, “Appellants knew, when they purchased the lot, of this restriction in the deed and the manner in which it might be used and the restrictions to which it was subject. These matters were all undoubtedly taken into consideration by the parties in fixing the price of the lot at the time it was sold, and if such restriction was a damage to the lot appellants received full advantage of the same at the time they purchased the lot. At any rate, they purchased the lot subject to those conditions and restrictions, and are now bound by them so long as the restrictions are reasonable and not contrary to the public policy or some positive rule of law.” (Italics ours.) (Citing Frye v. Partridge, 82 Ill. 267; VanSant v. Rose, 260 Ill. 401.)

Counsel for defendants in the case at bar call our attention to the fact that there are many other lots in the same subdivision restricted to single-dwelling purposes, while others in the neighborhood are restricted for business purposes only. All restrictions were imposed as a part of a general plan for the benefit of all the lots, and each lot owner took the same with notice of the restrictions, which were undoubtedly used as an inducement in the sale of these lots, and the price paid depended on the nature of the restriction involved. The complaint does not charge that these restrictions were unreasonable, or contrary to public policy, or that they were improperly imposed upon property owners without full notice to the grantees. In fact, Oekenga, one of the plaintiffs, purchased his lot subject to the restrictions more than three years after they were created, and the Hintzes, the other plaintiffs, acquired their property subject to the same restrictions 14 years after the creation thereof, and only about six months before the complaint herein was filed.

One of the reasons assigned in support of the motion to strike the complaint was that the suit does not come under the classification of a representative suit. This question is discussed in counsel’s briefs, but in view of our conclusion on the principal question involved, we deem it unnecessary to discuss this proposition.

We hold that the superior court properly allowed the motion to strike the complaint and ordered dismissal thereof. The decree is, therefore, affirmed.

Decree affirmed.

Scanlan, P. J., and Sullivan, J., concur.

On Rehearing.

An opinion was filed in this cause February 10, 1942, and thereafter rehearing was granted. The principal argument advanced in the petition for rehearing is that there has been such a change in the neighborhood of the subdivision as to furnish cause for the removal or modification of the restrictive agreements. Plaintiff’s counsel sought by motion to supplement the record with photographs of the subdivision, maps and other data showing changes in the neighborhood and the development of such defense industries within a short radius as would create a demand for single-family dwellings in the subdivision if the restrictions were modified or removed. The proffered evidence not having been adduced upon the trial of the cause, we have no jurisdiction to consider it.

Upon careful consideration of the petition for rehearing we adhere to our original opinion. However, nothing stated in our opinion is intended to preclude parties in another proceeding from showing, if they can, that radical changes have taken place in the neighborhood of the subdivision since the decree in the case at bar was entered.

The decree of the superior court is affirmed.

Decree affirmed.

Scanlan, P. J., and Sullivan,- J., concur.


source: Caselaw Access Project

author: Mr. Justice Dady

license: Public Domain

text:
    People ex rel. W. T. Musgrave, Appellee, v. Lyman Talbert, County Superintendent of Schools of Wayne County, Appellant.
    Heard in this court at the February term, 1942.
    Opinion filed April 16, 1942.
    Francis S. Feiger, State’s Attorney, and S. E. Quindry, of Chicago, for appellant.
    Burgess, Loy & Burgess, of Fairfield, and Conger & Elliott, of Carmi, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Wayne county ordering the issuance of a writ of mandamus directing the defendant, as county superintendent of schools of said county, to call an election for the election of a board of education of an alleged community high school district.

The amended petition for the writ, filed by a taxpayer and legal voter in the territory in question, alleged the following material facts, all of which were admitted by defendant’s answer:

1. On January 2, 1941, a petition signed by at least fifty legal voters residing in the territory therein described was filed with defendant pursuant to section 89a of an act entitled “An Act to establish and maintain a system of free schools” (par. 97, ch. 122, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 123.102]), which petition stated that such territory was compact and contiguous and requested that an election be called for the purpose of voting for or against the proposition to establish a community high school in and for said territory.

2. The defendant duly called such election, as requested, and a majority of the votes cast at such election, which was held on January 18, 1941, favored the establishment of such community high school.

3. After the election, a demand was made upon the defendant that he order an election for the purpose of electing a community high school board of education for said district, as provided by said section 89a, but defendant refused to order such election.

Said amended petition for the writ then asked that a writ of mandamus issue commanding the defendant to call such election.

In his answer defendant based and now bases his refusal to call such election solely upon the following grounds:

1. That although the petition of January 2, 1941, alleged that the territory in the therein proposed district was compact and contiguous, yet as a matter of fact, by reason of certain flood conditions which isolated different portions of said territory during certain seasons of the year, such territory was not in fact compact and contiguous within the meaning of the statute.

2. That on January 17,1941, a petition was filed with the defendant, signed by a majority of the legal voters residing in a certain therein described part of the territory included in such proposed district, which territory was alleged to have then been a part of the non-high school district of Wayne county, and which petition was alleged to have been signed by a majority of the legal voters residing within Fairfield Community High School District, No. 225 in Wayne county, petitioning defendant to detach said described territory from the non-high school district and add the same to said District No. 225; that pursuant to said petition, which was alleged to have been in full compliance with section 104a of ch. 122, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 123.Ill (1)], the defendant on the same date, January 17, 1941, made and filed with the county clerk of Wayne county a map showing the new and added boundaries of said District No. 225 as requested in said petition.

3. That by reason of such detachment and annexation of said territory, and by reason of said community high school district not being compact and contiguous territory within the meaning of the statute, the election which was held upon the proposition of establishing a community high school district was a nullity and without any effect whatever.

On motion of the petitioner, the trial court struck such alleged defenses from the answer. The defendant elected to stand by his answer and the trial court then entered the judgment appealed from.

Defendant contends that the motion to strike admitted the facts set up in his answer and that if such facts are considered to be admitted then the alleged district was not legally organized under section 89a, and, therefore, it would be useless to issue the writ asked for.

A motion to strike admits only such facts as are well pleaded but does not admit any legal conclusions to be deduced from such facts. (County of Christian v. Merrigan, 191 Ill. 484; Barzowski v. Highland Parh State Bank, 371 Ill. 412.)

The vital question to be determined is whether the defenses which are set up in defendant’s answer can properly be asserted in this type of proceeding. If such defenses cannot be asserted in this proceeding, then they are not well pleaded. The answer to this question depends upon the nature of the duty which was imposed upon the defendant under the provisions of section 89a of the above mentioned act. This section was construed in this connection in the case of Frye v. Hunt, 365 Ill. 32, wherein the court made this statement of the law, at page 35: “Section 89a, imposes a mandatory duty upon the superintendent of schools to call an election to vote on the proposition of establishing a community high school district when a petition is filed signed by the requisite number of legal voters residing in any contiguous and compact territory. . . . The statute gives the superintendent no discretionary power, and his only function in this respect is to determine whether the petition is prima facie in compliance with the law. . . . He acts in an administrative capacity and not as a judicial officer. . . . It necessarily follows that if the petition filed with the defendant in the present case appeared to have been properly signed by a sufficient number of legal voters residing in contiguous and compact territory a duty rested upon him, as a ministerial officer, to call the election requested.” (See also People v. Dillon, 266 Ill. 272.) Although in the Frye case the court had reference to an election to vote on the proposition of whether a community high school district should be established, we can see no reason why the duty of the superintendent of schools should be any different in respect to an election to be held for the purpose of electing members of a school board. The defendant in instant case went beyond the face of the petition and election returns, and his refusal to order the election was based upon certain alleged facts and conclusions which could not be discovered or determined from an examination of the petition or such election returns. In determining whether the territory in question was in fact compact and contiguous and also in determining the effect of the alleged detachment and annexation proceedings, the defendant attempted to exercise a judicial function, which under the authorities he was without power to do.

We do not regard the case of People ex rel. Bade v. Kennedy, 300 Ill. App. 16, as authority for the defendant’s contention that he had the legal right to determine that the proceedings for the organization of the district became void by reason of the annexation proceedings which were taken prior to the election. In the Kennedy case, the superintendent of schools refused to act on either of two petitions which had been filed with him by reason of the fact that a portion of the territory which had been included in the territory embraced in the first petition had been annexed to another district. However, the validity of that annexation proceeding had already been passed on by the Supreme Court in the case of People ex rel. Yohnka v. Kennedy, 367 Ill. 236, and the superintendent of schools was not required to nor did he assume to pass upon the validity of such annexation proceeding. In the case before us the defendant, prior to any court adjudication on the question, assumed that he had the right to decide that the alleged detachment proceedings in this case voided the original proceedings for the organization of the district. Clearly the Kennedy case furnishes no precedent for any such assumption of judicial power on the part of the defendant.

The defendant also relies upon the case of People v. Rose, 219 Ill. 46., In that case, a mandamus proceeding, it was held that the Secretary of State properly refused to issue a certificate of incorporation under a particular name, the use of which name could be enjoined by an existing joint stock company which had for at least 50 years established its business under such name. The use of such name by the joint stock company was a matter of common knowledge. The determination of the question by the Secretary of State as to whether such joint stock company was using the same name as that sought by the applicants did not involve the exercise of any judicial function, and the case has no application here.

It is our conclusion that the trial court properly struck such defenses from the answer and properly awarded the writ in favor of the petitioner. The judgment of the circuit court is affirmed.

Affirmed.


author: Presiding Justice Stone.

text:
    Nako Risto, Appellant, v. First National Bank of Madison, Appellee.
    Heard in this court at October term, 1941;
    opinion filed March 31, 1942;
    rehearing denied May 14, 1942.
    John B. Harris, for appellant; R. W. Griffith and Kramer, Campbell, Costello & Wieehert, for appellee.
   Opinion by

Presiding Justice Stone.

“Not to be published in full.”


author: Justice Matchett.

text:
    City of Chicago, Appellee, v. Lester Simon Imp. Milton H. Callner, Appellants.
    Gen. No. 41,972.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942;
    rehearing denied May 13, 1942.
    Levisohn & Levisohn, for appellants; Barnet Hodes, Corporation Counsel, for appellee; James A. Velde and L. Louis Harton, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.’’


author: Mr. Justice Kiley

text:
    Harry Adams, Appellee, v. Chicago and Erie Railroad Company, Appellant.
    Gen. No. 41,344.

      Heard in the third division of this court for the first district at the October term, 1940.
    Opinion filed April 8, 1942.
    Rehearing denied May 27, 1942.
    Follansbee, Shorey & Schupp, of Chicago, for appellant; Clyde E. Shorey and Gerhardt S. Jersild, both of Chicago, of counsel.
    Ryan, Sinnott & Miller, of Chicago, for appellee.
   Supplemental Opinion.

Mr. Justice Kiley

delivered the opinion of the court.

This is an action under the Federal Employers’ Liability Act brought in the superior court of Cook county for personal injuries suffered by plaintiff on the night of December 5, 1938, while he was a switch-man employed by the defendant railroad. A jury found in special verdicts that the defendant was engaged in interstate commerce and that plaintiff was in the exercise of due care, and returned a general verdict for plaintiff for $50,000. The trial court after plaintiff remitted $15,000' denied defendants' motions on the verdict and for a new trial and entered judgment for plaintiff for $35,000. Defendant has appealed from that judgment and from the orders denying its motions.

The complaint consists of two counts. Plaintiff, in the first count, alleged his employment with the defendant, and described the railroad yard in which the accident occurred; alleged that the defendant was subject to the provisions of the Federal Act and outlined the details of his work on the night of the accident; and charged the defendant with negligence through its servants, plaintiffs’ co-workers and others, who he claims, violated certain rules promulgated by the defendant and, as a result of which, an emergency was created in which plaintiff in the performance of duty was injured. In the second count in addition to the preliminary allegations of count one, plaintiff claims that he was injured as a result of the departure by the defendant from its uniform custom of protecting employees in a certain movement of freight cars. The answer denies the material allegations in both counts of the complaint; and admits the existence of the rules but denies their violation. It denies that there was such a custom as the plaintiff outlines in count two; states that the defendant was in the exercise of due care; that plaintiff was injured solely because he was negligent in not keeping proper lookout and in not using his faculties; and that he assumed the risks and dangers of his work and suffered no injuries because of any negligence of the defendant.

Defendant’s “51st Street Yards” is laid out in a north and south direction and has thirty-seven sets of tracks which run north and south numbered 1 to 37 from west to east. For our purposes we need consider only those north and south storage tracks numbered from 15 to 24, both inclusive; the “rolling lead” which extends northeasterly from 15 to 23, and to which the intervening tracks are connected by switches located at the points where those tracks meet the ‘ ‘ lead. ’ ’ The “lead” is used to facilitate switching operations. In gathering cars for a train, an engine is coupled to cars on the storage tracks south of the “lead” and moved north on to the “lead,” then northeast until the end car is north of the storage track switch. That switch is then closed and the cars “kicked” free of the engine on their own momentum or pushed southwest down the “lead” to the make-up track. The operation is different at 23 track for the “lead” there joins with 23.

It appears that the night of December 5, 1938 was dark and misty, the railroad yard dark and unlighted and plaintiff’s crew with Engine No. 1767 was engaged in making up a train. The crew consisted of Conductor Travis, Engineer May, Fireman Neely and Switch-men Fleming and Adams, the plaintiff, with Travis in control of the work under the supervision of Yardmaster Speaker. Just prior to the accident the engine had pulled a “cut” of cars north on track 23 beyond the “lead” switch and after the switch was closed had commenced pushing the “cut” southwest on the “lead.” This operation brought the line of the train into a curve, so that Travis southwest of switch 23 at the make-up track was out of view of Engineer May on the east side of the engine on track 23. Travis was directing the operation from the make-up track by means of signals given to the switchmen, and transmitted by them to the engineer, by lighted lanterns. During this movement on track 23 and the “lead” plaintiff was run down by a “cut” of cars which had been “kicked” south on track 24, by another switching crew under Conductor Pool, and the east wheels of the first car of the “cut” ran over plaintiff’s left leg. He caught hold of the brake rod beiieath the car, pulled himself off the rail, was dragged between the rails and received serious injuries. The evidence is in. direct conflict in a great many details of the circumstances of the accident and prior events. Defendant contends the verdict is against the manifest weight of the evidence.

Plaintiff says his crew worked on the day of the accident on the rip track from 4:00 to 6:00 p.m. and did not go to the Stock Yards and had no derailment that day, but that he had heard that Pool’s crew had one. A written report introduced as plaintiff’s exhibit 35, indicates that Engine No. 1767 passed the Chicago & Western Indiana Railroad Company 47th street tower at 4:27 p.m. going toward the Stock Yards and passed in the opposite direction at about 7:31. Defendant’s testimony is that the first operation of the crew was to go to the Stock Yards for a load of grain cars and that on the return trip the train was derailed for about an hour; that no wrecking crew aided in the re-railing; that part of the system was tied up for about an hour; that this was an “unusual” and “out of the ordinary” operation for plaintiff’s crew, but Conductor Pool of another crew which generally did this work, needed help that day. Fleming testified that when his pre-trial deposition was taken, he did not remember anything about the trip but that it came back to him since he saw the written report made by Travis of the movements of the crew. A report written by Travis indicates, and from Speaker’s testimony it appears that he believes, that plaintiff’s crew brought all 30 grain cars back to 51st street but Pool says that his crew brought 14 back, leaving only 16 for plaintiff’s crew.

Plaintiff testified that his crew after finishing work on the rip track, next took their caboose to the 14th street Freight House and brought a train back to 51st street, leaving 14th street at 8:00 or a few minutes after. The defense is that the train of 28 cars left 14th street at 8:40 and arrived at 51st street at 9:05. Travis said that before he saw the written report he was mistaken by an hour in the time of the arrival from 14th street; that he previously said 8:40, but now knows it was later. The “Wheel Report” shows Engine No. 1767 with one car passed 47th street interlocking plant at 7:44 and Engine No. 1657 passed that point with 28 cars at 9:01. Plaintiff’s exhibit 35 also shows Engine No. 1767 left 14th street going south at 8:40 p.m. with 28 cars.

Plaintiff testified the crew went to supper about 8:40 p.m.; Travis, 9:05; Fleming, 9:15; Speaker, 9:15; May, 9:20 or 9:30; and Neely, between 9:45 and 10:00 o’clock. The conductor’s report shows 9:15.

Plaintiff urges that errors in the reports and discrepancies between defendant’s witnesses and the various reports render the reports ineffective. Speaker indicates the crew brought 30 cars from the Stock Yards. Pool says he brought 14 of these cars to 51st street leaving plaintiff’s crew but 16. The report of Travis shows 30 cars. Speaker says that the crew dared to put only 20 minutes for supper in their report, thus implying a possibility of falsification. Engine No. 1741 is erroneously recorded as Engine No. 2019 in a report. The Wheel Report shows No. 1657, passed 47th street at 9:01 when other evidence would indicate that the engine actually was No. 1767. The jury is determining the weight to be given the evidence in this case, had before it these inaccuracies and discrepancies.

Plaintiff contends that the testimony of the movements prior to the accident is immaterial, but defendant insists that the conflicting stories of those movements show the falsity of plaintiff’s testimony and discredit his case throughout. We have examined the evidence closely and we cannot say that if the jury believed plaintiff’s testimony of these movements, or believed the defendant’s but considered the testimony immaterial, that the verdict is affected. Nor can we say that the jury or we, if defendant’s story of these movements is true, should disbelieve for only that reason the balance of the plaintiff’s testimony. The jury may have discredited the reports of trains, because of inaccuracies; may have refused to believe that plaintiff’s crew would have been permitted to tie up part of defendant’s system upwards of an hour in re-railing the engine when help might have been called; and may have viewed with misgiving the defendant’s story of the trip which was designated by its witnesses as “unusual” and “out of the ordinary.” .

Plaintiff testified that after supper the caboose was placed on track 15 for the make-up. The defense testimony is that the caboose was placed for the makeup on track 17. Fleming, May and Speaker were not convincing in support of this defense, stating that track 15 was ordinarily used for this purpose; that the custom was to make the train up on track 15 and that there was nothing to prevent using track 15 that night. Plaintiff had said there were cars intervening on north and south tracks between 23 and 15, so that one could not see the cars on 15 from 23 switch. The defense was that lanterns at 23 switch were visible from track 17 where Travis and Speaker were standing.

After several cars were taken off storage tracks and “kicked” down the rolling lead, the engineer pulled two cars off 22 and on to the rolling lead, then north-cast into 23 and after the 23 switch was opened, hacked south into 23 track for more cars. Plaintiff says that at this point, Fleming was west of the “lead”; Specker not in the vicinity; and Travis was at the coupling point on the east side of 23. Specker, Travis and Fleming say they were together on the east side of south 23 and May says he saw three lanterns down there. Fleming said he had walked east from the last movement on track 22. May says that plaintiff rode in and out of south 23 in the cab of his engine, though his fireman does not say so and Specker, Travis and Fleming inferentially contradict May. May also testified that that night he could see 200 feet, and, while he could not distinguish Travis and Specker on the east side of 23, about two cars away, he could see Fleming’s face clearly at the rear of the fifth car on the north movement after the coupling.

Plaintiff says that Travis made the coupling on track 23 and cut off the cars not wanted; that Fleming was on the west side of the “lead”; and that Travis signaled the cut north. Travis, Specker and Fleming say that Fleming made the coupling and cut. Coupling, however, was part of Travis’ work and he had coupled cars on preceding tracks in making up the same train and was at the coupling point involved. Fleming says he made the cut after the entire string of cars was moved up to where he had made the coupling, while Travis and Specker say that Fleming walked down to the end of the third coupled car and made the cut. The train moved north of 23 switch and Adams says Fleming who was on the west side threw the switch and came over to the east side to where Adams was. Fleming says he rode the “cut” north, then got off, threw the switch and crossed over to where Adams was. All agree that Travis walked west from the coupling point at track 23, while the defendant’s testimony is that Specker walked west with him. Fleming threw the 23 switch, but the defense testimony is that that work should have been done by Adams who was then head man; and further that men in switching operations frequently changed places. Adams says he and Fleming had changed places at 23 switch and that he had gone down the “lead” to keep Travis in view, Fleming denies that they changed places and says he went down the “lead” on the stirrup of the leading car of the “cut.” Adams says he went down to the vicinity of 19 or 20 switch leaving Fleming at 23 and the defense is that Fleming got off between 20 and 21 while Adams was still at 23. Adams says Travis went between cars in track 15 and out of sight. Travis says that he went in to adjust a knuckle on a car on track 17; that if cars were northeast of him at the time, he would be out of sight of a person in the vicinity,of 23 switch; and that when he had adjusted the knuckle, the leading car on the rolling lead northeast of him was within a half car or a car length away. Adams says he lost sight of Travis and gave the emergency signal to Fleming at 23 switch, that Fleming was not there and Adams then ran east and was run down. Fleming says he lost sight of the engineer when he rode the stirrup south of 23 on the “lead” and was attracted to the accident by Adams’ cry and light and that then he signaled the engine down. The engineer, however, was out of Fleming’s sight and Adams out of position to pass the signal. The Engineer May says that Fleming was out of sight when the first car passed 23 switch; that Adams walked southeast between 23 and 24 and that a “cut” kicked by Pool’s crew south on 24 obscured May’s view of Adams; and that he thereupon blew several blasts of his whistle which could be heard all over the yard, but kept on shoving southwest until he heard Fleming shout, then he stopped. Only Neely of the defense witnesses appears to have heard May’s whistle, but May, while he did not see Fleming’s signal to stop, heard Fleming call. Adams says he ran directly east for a place between 23 and 24 tracks, from which May could see his signal. The defense is that a point directly east of 19 switch on the west rail of track 24 is 227 feet south of 23 switch and that a point on that rail opposite 20 switch is 288 feet south of 23 switch. This testimony was to show that had Adams run directly east, he would have been cut down at one of those points south of 23. The defense testimony is to the effect that there was blood and pieces, of flesh on the east rail of track 24, only 79% feet south of 23 switch and foot prints and marks of dragging in the ballast between points 66% feet and 188% feet south of 23 switch. On the last measurement there is a difference in testimony of defense witnesses. The men who testified to the distances made their examinations the morning following the accident, while Speaker said he saw the blood marks and flesh clearly by lantern light shortly after the accident. This testimony is to support the theory of defendant that Adams stepped east into or walked southeast into track 24 from switch 23 and was struck down by reason of his own negligence in failing to use his senses to detect the “cut” of cars on 24. It would appear from the measurements that if plaintiff ran directly east from 19 or 20 he could not have been run down within 227 or 288 feet south of 23 switch. Plaintiff says he ran east and fell in the track after stumbling over something in his way. May says he walked-southeast into that track.

Plaintiff claims there was a custom of warning employees working on the “lead” at night of the movements of the cars south on 24, and also a custom, when employees were so engaged, of “shoving” cars down the track instead of “kicking” them down unlighted and unattended. The defense witnesses on this point deny there was any such custom and plaintiff testifies of cars and “cuts” of cars being “kicked” unattended down the “lead” that night by his own crew, and the inference would seem to be justified that the custom testified to by plaintiff did not in fact exist. Whatever the custom, however, we feel that defendant’s testimony of the movement of the cut of cars on 24 disclosed a highly dangerous practice in consideration of the lighting in the yard and the narrow path between tracks 23 and 24.

From this summary of what we consider the facts decisive of this case, we believe the conflicts therein presented a case for the jury and that the verdict of the jury was not against the manifest weight of the evidence. In causes such as this, where the conflict in the evidence is so sharp, an important factor in aid of the decisions is the opportunity of seeing and hearing various witnesses so that due credibility may be given their testimony. The jury saw and heard the witnesses in this case and believed the plaintiff’s story. We, have considered the unusual circumstances of the accident as related by plaintiff, as well as the coincidences and discrepancies in defendant’s testimony, and we cannot, in the view we take of the evidence, substitute our judgment for that of the jury.

There is evidence in the record to sustain the charges of plaintiff’s complaint and the trial court, therefore, did not commit error in denying the motion of defendant for judgment notwithstanding the verdict or for a directed verdict.

Company rules numbered 512, 526, 527, 548 and 582 were introduced in evidence in support of plaintiff’s case. Defendant objected to their admission and claims error in receiving the rules in evidence. It does not appear that the admission of Eule No. 526, was justified, for there is no evidence to connect it with the case. The other rules give directions to defendant’s employees as to safe procedure in making movements of trains. The plaintiff claims that Travis, the conductor, went between cars on track No. 15, out of view of the plaintiff, thereby violating a rule; that plaintiff immediately gave a stop signal to Fleming at switch 23 and Fleming had left his post there in violation of a rule; that having left his post, he was out of view of the engineer who should have stopped immediately and not having done so the latter violated a rule.

Plaintiff contends that these violations created an emergency in which he acted to save Travis and that while so acting he was injured by the further negligence of the defendant. Defendant answers that while plaintiff’s act may have been commendable and though he may have acted prudently, no liability attached to defendant because it had not negligently placed Travis in danger and owed no duty to plaintiff, the breach of which caused his injury. A rule the defendant invokes here, as stated in Ingram v. Jackson, 206 Ill. App. 466, is that, to remove the effect of contributory negligence on the part of a person injured while attempting to rescue a life in an emergency, the emergency must have been created by the negligence of the defendant. The Ingram case was not a proceeding under the Federal Employees Liability Act and the plaintiffs there were trespassers on the road. Defendant to benefit under the rule, seeks to absolve the defendant from liability for the negligent acts of its employees Travis, Fleming and May. The fellow servant rule, however, has been abrogated by the act. Minneapolis, St. P & S. Ste. M. R. Co. v. Rock, 279 U. S. 410; Devine v. Chicago R. I. & P. Ry. Co., 266 Ill. 248; Taylor v. Atchison, T. & S. F. Ry. Co., 292 Ill. App. 457. It would follow, therefore, that proof of negligence of plaintiff’s fellow employees in creating the emergency in which he was impelled to act, if the proximate cause of plaintiff’s injury, was sufficient to justify recovery against defendant. The evidence tends to show that plaintiff, as a result of the emergency and while running in defendant’s unlighted yard at night, stumbled over something in a path and fell, between the rails of another track, following which he was run down without warning by a “cut” of cars kicked down, unlighted and unguarded on that track. The defendant claims there is no showing that the violation of the several rules by the defendant was the proximate cause of plaintiff’s injury. The case of New York Cent. R. Co. v. Brown, 63 F. (2d) 657, cited by plaintiff states the rule applicable here, that the chain of causation is not broken by an intervening act which is a normal reaction to the stimulus of a situation created by negligence. It was plaintiff’s position at the trial that the emergency, created by the negligence of defendant’s servants, stimulated him to try and rescue Travis. We also believe that the discussion by this court of the proper rule of proximate cause, in. the case of O’Connor v. Brower, 262 Ill. App. 621, 625, is cogent. Applying the views expressed there to the instant case, we believe defendant’s claim is untenable unless it appears from the evidence that the injury to plaintiff would have happened, though his co-workers had not violated the rules. To sustain defendant’s claim it must appear that plaintiff would have run east, stumbled over something in his path and have fallen between the rails on track 24 and have been run down, though the rules had not been violated. The intervening circumstance, plaintiff’s movement east, was a direct and natural consequence of the violations and did not break the continuity of events leading to the injury. We cannot find that plaintiff would have been injured had his fellow employees not been negligent in violating the rules, consequently, we must find that their negligence was the proximate cause of his injury. The defendant to sustain its point cited the cases of Bacon v. Payne, 220 Mich. 672 and State ex rel. Lusk v. Ellison, 271 Mo. 463. The Bacon case held that the reckless conduct of the person struck by the train was the proximate cause of the accident. The decedent therein was held to have acted rashly and recklessly in what he considered an emergency, and thus broke the chain of causation. In the Ellison case the court held that the failure of the engineer to look for a signal from plaintiff, was not the proximate cause of the injury. There the plaintiff, when he observed the engineer looking away from the signal, stepped further out into the path of a train coming in the opposite direction and the court held that the engineer had a right to assume that plaintiff, so far as the other track was concerned, would protect himself. Juxtaposing those cases with the instant case, they are immediately distinguishable. The jury did not, and we cannot, find that the plaintiff here acted rashly or carelessly nor that any such conduct was the cause of his injury. There is no evidence here either that plaintiff could have protected himself against the “cut” of cars “kicked” down track 24. On the other hand the proof shows that the “cut” was “kicked” south on 24 in the nighttime without warning and without lights, unseen or unheard by any of plaintiff’s crew, except May and Neely, as the cars passed the engine. Nothing in the record justifies an inference that had plaintiff used his faculties, he would have seen or heard the “cut” which injured him. We find that the rules with the exception noted were properly admitted in evidence.

Defendant says plaintiff’s injury was solely and proximately caused by his own negligence. The jury decided this contention against the defendant and we see no reason to disturb its determination.

Defendant further contends that the injury sustained by plaintiff was the result of risks incident to his employment and were assumed by him. The jury was instructed on the question of the assumption of risk. Under the rule of assumption of risk plaintiff, it seems, would have assumed the dangerous movement of cars on track 24, had it not been for the violations of the rules by plaintiff’s co-workers. The rule might have precluded his recovery had his injury occurred while he was engaged in ordinary switching-duties, but, because of the violations, that is not the case here. He was injured while acting in an emergency created by the negligence of defendant’s servants, and the rule of assumption of risk is not applicable. Defendant in this connection relies mainly upon Fernald v. Boston & M. R. Co., 62 F. (2d) 782. In that case the sole ground upon which plaintiff sought recovery was negligence .in departure from a custom, consequently, the case is not decisive here.

At the beginning of the trial the court overruled defendant’s motion to exclude from the courtroom plaintiff’s wife and eight-year-old daughter. At the conclusion of the trial defendant filed an affidavit setting forth their attendance at the trial and affirming that before the jury retired after instructions, plaintiff’s daughter went to her father at counsels’ table in view of the jury. Counter affidavits were filed by plaintiff and his wife. The court had before it the various affidavits and we cannot say from a consideration of all the circumstances that the court committed error in determining the question of prejudice adverse to the defendant. Neither do we find error in the court’s ruling upon questions asked by plaintiff’s counsel on cross-examination of witnesses who had been examined before the trial. The questions sought to disclose why witnesses had omitted to state certain facts in pre-trial examination which were stated at the trial.

Defendant contends finally that despite the remittitur made after the verdict of the jury was rendered, the judgment for plaintiff in the amount of $35,000 is excessive. Plaintiff’s leg- was amputated six inches below the knee joint. The amputation left an irregularity of the stump which made suitable padding thereon impossible without further surgery. There is no assuranee that snch surgery would permanently correct the stump and, consequently, no assurance that plaintiff will be enabled to wear an artificial limb. In addition plaintiff sustained injury to his shoulder which disclosed crepitation at the time of the trial. It appears that plaintiff is not equipped to do office work, having passed the working years of his life in physical labor, and because of his bodily impairment his future earnings are questionable and uncertain. He was 30 years of age at the time of the accident, making an average annual wage of about $1,800. It appears that, with reasonable certainty, he would with the passing years in the employment of defendant, have bettered his position. We believe that the judgment of the trial court is not excessive. Pipal v. Grand Trunk Western Ry. Co., 255 Ill. App. 637 (Abst.).

We have given attention to the several points raised by counsel which we consider material to the decision, and for the reasons herein given, the judgment of the superior court is affirmed.

Judgment affirmed.

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


author: Mr. Presiding Justice Scanlan

text:
    John Traff Building Construction Company, Appellant, v. Roy D. Keehn and Board of Education of City of Chicago, Appellees.
    Gen. No. 41,161.

      Heard in the second division of this court for the first district at the April term, 1940.
    Opinion filed May 14, 1942.
    A. S. & E. W. Froehlich, of Chicago, for appellant.
    Keehn, Keelet & McGuire, of Chicago, for appellee Koy D. Keehn.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

The complaint prays to have cancelled and annulled a notice of attorney’s lien served by defendant Keehn upon the Board of Education of the City of Chicago against a fund representing the unpaid balance of $47,851.91 due plaintiff from the Board upon the contract price for the doing of the mason and concrete work in the erection of the Verdi High School and that the entire balance be awarded to plaintiff. Defendant Keehn’s amended answer and counterclaim prays: “ (1) That the court enter a decree herein finding the amount to which this defendant is entitled out of the funds now in the hands of the Board of Education owing to the plaintiff . . . . (2) That as a part of such decree, the Board ... be required and directed to pay to this defendant the amount which this court finds this defendant is entitled to, out of the balance of moneys remaining in its hands due to plaintiff . . . .” The cause was heard by the court and a decree was entered denying the prayer of the complaint and awarding Keehn an attorney’s lien upon the fund for the full amount of his claim, $15,976.05, and ordering the Board of Education to pay that amount to him out of the unpaid balance due plaintiff. The Board of Education, hereinafter called the Board, is a mere stakeholder and has not filed a brief in this court. Defendant Keehn will hereafter be referred to as defendant.

Plaintiff states that certain parts of the pleadings are important as in the nature of admissions by defendant because the trial court, over plaintiff’s objections, permitted defendant to twice amend his sworn answer without any showing of mistake, inadvertence, or other excuse. The first of the amendments whs filed during the trial, and the second, after the court had decided the case and directed defendant to prepare a decree.

John Traff Building Construction Company, a corporation, plaintiff, is the assignee of John Traff, a contractor who had been engaged in the construction business in Chicago for many years. On February 25, 1931, Traff entered into a written contract with the Board to do the masonry and concrete work in the construction of the Verdi Junior High, School, for $410,600, payable in installments aggregating eighty-five per cent of the contract price during the progress of the work. By the summer of 1931 Traff had built the foundation, the first floor, and the frame work for the second floor of the school. Then the Board, faced with an empty treasury, ordered Traff, as well as all of the contractors who were engaged in work upon eleven schools then under construction, to cease work, and no work was thereafter done upon the Verdi school until the latter part of 1937. Over one hundred contractors were engaged in the construction of the eleven schools. Defendant is a lawyer, and in June or July, 1932, George Getshaw (now deceased) and Bay Berry called upon him and stated the situation of the contractors. Defendant knew them prior to that time. Defendant testified that upon his recommendation the contractors authorized him to make a demand upon the Board that the work be continued and to notify the Board that the contractors would report for work on the buildings on the following Tuesday; that “my point was to try to create a-breach by the Board of Education, which I could construe as a legal breach of a contract”; that he went before the Board and demanded that the contractors be allowed to proceed with the work and that the Board pay them for the work; that the Board asked for delay so that an agreement might be reached as to how the work should proceed, and “it was suggested there might be three methods, one, an outright cancellation of the contract; second, an extension of the contract, and, third, a completion of the buildings”; that the Board refused to consider the third, “because they couldn’t pay”; that the Board finally concluded that there would be no advantage to it in considering the cancellation method. Defendant recommended to Getshaw and Berry that an organization be formed among the contractors for the purpose of having unified action on their part, and an association, composed of practically all of the contractors, was formed to protect their interests. Getshaw became chairman of the association, and Berry, treasurer. Meetings of the contractors were held during the summer months of 1932. In July or August, 1932, a resolution was passed authorizing Getshaw and Berry to call upon defendant, which they did. Defendant told them he would agree to act in a preliminary way without charge until he could familiarize himself with the situation and determine what could be done, but with the understanding that if he accepted the employment it would be upon the basis of a retainer and a percentage arrangement. Defendant stated to Getshaw and Berry the terms upon which he would undertake to represent the contractors, and at a meeting of the contractors on July 29, 1932, Getshaw stated defendant’s terms. On August 12, 1932, Getshaw and Berry sent to each contractor a letter that stated defendant’s offer. The essential paragraphs of the letter are:

“. . . we secured from him [Keehn] an informal proposition to handle the work on the following basis: each contractor who is connected with this group is to pay him a retainer fee of $100.00 which is to cover the contractor’s only obligation to Mr. Keehn with the following exceptions.
“If the contractor wishes the attorney to collect damages on a contract if it is canceled and anticipated profit on a contract not installed, the attorney wants 15 % of the amount of damages collected and 5% of the amount of profit collected. The damages are not to be construed as labor and materials manufactured or installed. In the event of extension of contract, and contractor wishes to secure damages for delays, etc., the "attorney wants 15% of the amount collected.” Late in August Getshaw and Berry asked defendant for a written confirmation of the terms of employment which he had authorized them to present to the association, and on September 1, 1932, defendant sent to Berry the following letter:
“Replying to your inquiry regarding the arrangement concerning retainers in the matter of the contracts with the Board of Education, the understanding is that each contractor is to pay a $100 fee as a retainer. This applies to all but a few contractors having very small contracts, who are to pay a less amount. This feature covers the retainer, and the additional fees to be paid later, as agreed upon with the contractors, is as follows:
“1. Cancellation of contract — 15% of the amount of damages collected and 5% of the amount of profits collected. In this case damages are not to be construed as labor materials manufactured and installed.
“2. Extension of the contract — the fee will be 15% of the amount allowed for the extension of the contract, over and above the contract price itself.”

On August 23,1932, Traff employed defendant under the above agreement by paying him the retainer fee, $100. Prior to that date defendant and Traff were strangers. In 1933, through the efforts of defendant, all of the contracts were extended for a period of one year and damages were awarded to the contractors in consideration of the extension. Traff was awarded $20,104 damages, which were paid. Defendant protected his fees in connection with the services he rendered in obtaining the extension agreements with the Board by obtaining from each of the contractors an assignment of fifteen per cent of the damages allowed to them. The fifteen per cent, in the case of Traff, amounted to $3,015.60, which Traff paid to defendant. Defendant, under his agreement, was entitled to the fifteen per cent, and there was and is no controversy between the parties as to this extension matter. Early in 1937 the Board, after it obtained financial aid from the National Government, decided to complete the work upon the schools. The completion work upon nearly all of the schools was made possible by the financial aid extended to the Board by the Federal WPA; the Verdi High School was otherwise financed. A number of conferences were held between defendant and representatives of the Board with a view to the preparation of a form of completion agreement for the contractors to sign, and defendant discussed the matter with the contractors. Defendant and the Board finally agreed upon a draft of the form to be used, and a copy of the same was mailed to plaintiff by defendant with a request that plaintiff sign it, which he did. The document bears date of May 6, 1937. From 1934 on, building material costs, labor and wage scales, and subcontractors’ demands had increased materially, and new items of expense, such as Retailers’ Occupational taxes, social security and unemployment insurance taxes, had been imposed. The subcontractors were making demands for increased compensation for the doing of their part of the uncompleted work. Defendant testified that practically everybody discussed the question of increased costs of labor and material; that the contractors told him that the wage rates and the prices of material had risen; that he was familar with that situation and knew when the rise started; that he told the contractors that he would draft a paragraph to cover the price increases of labor and material; “I told them that I would draw a provision in this paper that would give them the increased rates of labor and material for finishing up the work — everything. I believed that under the terms of it [the document of May 6,1937] they could recover all. I made a provision here for the payment of attorney’s fees to me.” The proposed agreement of May 6,1937, required Traff to furnish a surety completion bond and the surety company refused to write the bond upon the ground, as stated by the manager of the company, that the agreement was very ambiguous in respect to the total amount of money that the contractor was to receive and that as the surety company interpreted the contract the cost to Traff to finish the Verdi building would be some $70,000 to $80,000 more than the total amount that the Board agreed to pay Traff; “that was the reason assigned by my company for the refusal to write the bond.” Traff .thereupon called upon Christensen, the architect of the Board, and discussed with him the meaning of the proposed agreement of May 6, 1937. Christensen told Traff that the agreement did not provide for the payment of the increased costs and that the Board would not pay any increased costs. Christensen then wrote several letters to Traff emphasizing the said position of the Board. On August 19, 1937, Christensen wrote to Traff that any further discussion as to the interpretation of the document of May 6,1937, would be “a waste of time,” that unless Traff furnished the Board with the required surety bond within forty-eight hours he, Christensen, would lay the facts before the Board for “action which will permit the completion of the Verdi High School.” Traff attempted to secure a surety bond from several other bond houses, but without success. He testified that he then talked to defendant a couple of times about the matter and told him that he was unable to secure a bond because the document of May 6, 1937, was not clear enough to show what extras he would obtain; that “that is what the bonding company went by”; that he told defendant that Christensen told him that they were going to advertise for bids and might give the work to somebody else; that defendant answered, “I don’t care. I will collect from you anyhow.” Traff then made a fruitless effort to get the subcontractors to agree to furnish their parts of the work without demanding increases. Plaintiff justifiably complains that the document of May 6, 1937, proved to be very detrimental to his interests. Defendant, in his amendment to his answer and counterclaim, “admits that the written proposal attached to plaintiff’s complaint as Exhibit ‘A’ [the document of May 6, 1937] did not become operative at any time.” The Board finally advertised for bids for the completion of the contract on the Verdi school. After Traff had obtained permission from Christensen to become a bidder, he submitted a bid in the sum of $384,980, less certain deductions for omissions, and accompanied the bid with a certified check for $11,549.40. He testified that upon the advice of defendant he included in his bid an item of fifteen per cent to represent attorney’s fees for defendant. Eight or nine other contractors submitted bids to the Board. Traff’s bid was the second lowest. All of the bids reflected the increased costs for the completion of the work and it is clear that the Board hesitated to award the bid to the lowest bidder because it feared it would be liable to Traff for breach of contract. It therefore entered into negotiations with Traff seeking to secure a reduction in the amount of his bid. Defendant claims to have been instrumental in causing the Board to take this action. Traff claims that defendant had nothing to do with the matter. The negotiations appear to have been carried on between Traff and the Board, and during the negotiations Traff was consulting with his attorney, Mr. Froehlich. The Board refused to allow the item for attorney’s fees and required Traff to submit “an itemization or breakdown of his hid,” which he thereafter submitted. Defendant had nothing to do with the preparation of the “itemization.” Representatives of the Board and Traff then held a conference in respect to the items in the “itemization.” The Board finally eliminated the item of interest, which reduced Traff’s hid to $106,507, and awarded Traff the contract, which was signed as of December 15, 1937. The bond furnished by Traff to the Board was written by the same surety company that had refused to furnish a bond for Traff under the proposed agreement of May 6, 1937. The contract of December 15, 1937, stipulates that plaintiff releases the Board from all claims for damages of every kind and nature. The greater part of Traff’s bid represented subcontractors’ demands for increased costs of completion, as well as some increased costs in each of the remaining items; also taxes and other new items of expense. The second amended answer of defendant avers, and the decree finds, that the contract price of $106,507 was wholly made up of amounts of additional costs of completing the work of construction of said Verdi Junior .High School Building over the costs which prevailed in February, 1931. Plaintiff completed the work on the Verdi school under the contract of December 15, 1937. On March 28, 1938, defendant served a notice of attorney’s lien upon the Board. On January 6, 1939, defendant wrote the following letter to Traff:

“Will you also please drop in and see me on the damages and fees under the supplemental agreement so that we can determine the amount due you or which will be due you and the amount to be paid to the attorney for fees under our supplemental agreement? As soon as we get this matter agreed upon, I will release the Board so that the payments may be made. I understand that the Board ought to be in a position to make payments early in the year.
“Will you please call and make an appointment so that we can sit down and agree on any disputed questions?” (Italics ours.)

On January 11, 1939, Trail replied to this letter, as follows:

“I have your letter of January 6th regarding damages on the Verdi High School Building.
“I received an allowance of $20,104 as damages for one year. I understood that I should receive damages for at least two years. No part of this has been received as yet or will probably ever be received.
“In regard to the supplemental contract you are aware that I had to meet open competition with ten contractors and that when the bids were opened I was second low bidder. The Board of Education gave me the contract for a little less than the low figure. The supplemental agreement of $106,507 covers increased costs of construction due to increase in wage rates, material prices, sales tax, social security and unemployment taxes and other costs which did not exist or have increased since 1931. There was no damage fee figured by the other contractors. When getting my figure together with the Board I added 15% as attorneys fees to cover damages amounting to about $28,000.00. When presented to the Board they deducted the attorneys fees and also an item covering 6% interest on the unpaid balance.
“Mr. Keehn, I feel that I do not owe you a cent on the supplemental contract because your set up was not used and was of no help to me. If you want to collect 15% on the damages you will have to ask the Board to pay you direct, up and above the amount of my contract.”

Plaintiff contends that defendant is not entitled to an attorney’s lien in any amount upon the fund in question. While this contention has been very ably and exhaustively argued by plaintiff, in our view of this appeal it is not necessary for us to pass upon the contention.

Plaintiff further contends (a) that defendant did not negotiate the contract of December 15, 1937; and (b) even if he did negotiate it he had no contract of employment which gave him the right to compensation computed at fifteen per cent of $106,507.

When defendant was employed, in August, 1932, the country was in the depths of a great financial depression; building prices and costs were at their low point and so remained for several years. During 1935 and 1936 costs of labor and materials steadily rose and items of expense came into existence which were unknown in 1931; these items included social security taxes, payroll (unemployment) taxes, sales taxes, and increases in premiums for compensation and public liability insurance. Plaintiff had subcontracted substantial portions of the work under his contract and the subcontractors were demanding large increases in the event that they had to complete their parts of the work. It is undisputed that the increases to the subcontractors represented the largest part of the $106,507. Plaintiff testified that before defendant drafted the proposed agreement of May 6,1937, he informed defendant that he could not finish the work on the school unless he should be allowed a substantial increase in the original contract price. Defendant testified that he, and everybody else, was familiar with the situation. That the proposed agreement did not properly protect Traff in the matter of increased costs cannot seriously be disputed, although defendant, in his testimony, states that it was his understanding that the surety company refused to furnish the bond because of Traff’s financial irresponsibility. The testimony of the manager of the surety company completely refutes defendant’s “understanding.” Plaintiff ac7 companied Ms bid of September 28, 1937, with a certified check for $11,549.40 and when the contract of December 15,1937, was executed the same surety company furnished the bond. Defendant admitted in his verified pleadings that the proposed agreement of May 6, 1937, never became operative and it is clear that it caused Traff great trouble, and threatened for a time to deprive him of the opportunity to complete'the work on the school.

The parties have seen fit to discuss at some length the question as to whether or not the contract of December 15, 1937, resulted from defendant’s efforts Plaintiff contends that it did not. Defendant contends that he represented and acted for Traff throughout the negotiations; that he recommended to the architect and the officers of the Board “the arrangement” which was afterward carried out resulting in the said contract After the failure of the proposed agreement of May 6, 1937, Traff consulted his own lawyer in reference to his negotiations with the Board. Traff testified that he never requested or employed defendant to negotiate with the Board in respect to the matter of getting the new contract; that he did not confer with defendant after September 10, 1937; that he had other counsel write the Board in his behalf. Defendant admits that he did not draft nor file Traff’s bid; that he did not draft the itemization or breakdown bid submitted to the Board by Traff; that he first heard about it at the time of the • execution of the agreement of December 15, 1937; that he never saw the itemized bid until it was introduced in court and that he was not present when it was discussed by the Board and Traff and items therein were eliminated. That defendant had no knowledge of the make-up of the breakdown bid and the discussions that led to the completion agreement is shown by the following: The complaint avers that the $106,507 did not represent damages to plaintiff for the Board’s breach of the contract of February 25, 1931, but represented increased costs of construction over and above the cost of construction which formed the basis of the contract price under the contract of February 25, 1931, “namely, increased costs and demands of subcontractors of the plaintiff, costs of replacing forms and materials, increases in labor and wage scales, increases in prices of material, and new items of expense such as Retailer’s Occupational taxes, social security taxes, unemployment insurance levies, and other items not in existence or contemplated at the time of the making of the original contract.” Defendant, in his original and amended answers, denies the foregoing averments, but after the trial and decision of the case he filed a verified second amended answer wherein he avers: ‘ ‘ That the additional sum of $106,507, to be paid to plaintiff as recited in the preceding paragraph and as provided in the supplemental agreement of December 15, 1937, . . . was wholly made up of amounts of additional or increased costs of completing the work of construction of said Verdi Junior High School Building under plaintiff’s contract for such construction, over and in addition to the costs of construction prevailing at the time the contract for construction was made in February, 1931,” and the decree so finds. Defendant testified that after it appeared that Traff was not the low bidder he went to Christensen to try and save the contract for Traff; that he stated to Christensen that as Traff had a contract with the Board already, “the thing to do was to pass a resolution of the Board and extend the original contract to include $106,000,1 think it was, figures submitted in addition and lot Traff go ahead with the work, which was agreed upon.” Christensen was not called as a witness, although it appears that he was very friendly to defendant. Traff testified that after Christensen told him that they were going to advertise for bids and that he might give the work to somebody else he told defendant what Christensen had said, to which defendant answered, “I don’t care. I will collect from you anyhow.” We find no denial by defendant of this testimony. The complaint avers that Traff’s proposal of May 6, 1937, was never accepted by the Board. Defendant’s verified original answer denies that the proposal was never accepted by the Board, but in his second amended answer he admits that the proposal was never accepted by the Board and that it did not become operative at any time. The complaint alleges and the proof shows that the Board finally determined to take bids in the open market for the completion of the Verdi High School and to let the contract to the lowest bidder. Defendant’s answer denies this allegation in toto. The complaint alleges that Traff’s bid was accepted as the lowest bid. The original answer admits this allegation, but the amendment to the answer denies it. Defendant’s testimony and his verified original answer show such a lack of knowledge of the negotiations between Traff and the Board that led up to the agreement of December 15, 1937, that it is difficult to accord weight to his claim that he represented and acted for plaintiff throughout the negotiations. If we deemed it necessary to decide the instant question we would be forced to disagree with the finding in the decree that defendant “acted in behalf of plaintiff in all of the said matters and devoted much time, effort and services to securing the said adjustments of damages and arrangements for payment thereof to plaintiff, and therein, secured said adjustment of damages.”

But assuming that defendant was activé in the matter of negotiating that contract, and assuming, further, that he rendered all necessary legal services in connection with the matter, still the vital question to be determined is, Had he a right to compensation for his services computed at fifteen per cent of $106,507 ?

Defendant’s letter of September 1, 1932, to Berry forms the basis of his claim against Traif. In defendant’s verified original answer he alleges that Traff agreed to pay him “for his services in case of cancellation of the contract, ‘15% of the amount of damages collected, damages not to be considered as labor or materials, manufactured or installed,’ and in case of extension of the contract, ‘15% of the amount allowed for the extension of the contract over and above the contract price itself’ and in addition thereto agreed to pay to this defendant the sum of $100.00 as a retainer fee.” That statement of the agreement is in strict accord with defendant’s agreement in his letter of September 1, 1932. Defendant testified: “I am claiming under the original agreement which I had in the year 1932 plus subsequent agreements verifying or re-affirming it.” He further stated, “I mean the original understanding which I confirmed in writing to Mr. Berry.” It is perfectly plain that the agreement set out in defendant’s letter to Berry did not contemplate such an agreement as the one of December 15, 1937, between Traff and the Board. The reason why a completion of the contract provision was not put in the letter of September 1 appears in the testimony of defendant wherein he states that he reported to a meeting of the contractors held prior to the agreement of September 1, 1932, that he had learned from the Board that because of its financial position it could not consider the completion of the work, “so, I reported the only thing I could see that was feasible at all, sound, and that would be to negotiate on terms for extensions of the contracts until the Board could be in a position to proceed, and that in that event we should work out an agreement between us as to what compensation I should receive.” Defendant further testified that he also reported to that meeting what his terms would be, and that he confirmed the said terms in his letter of September 1, 1932. It must be noted that it was only when the National Government came to the aid of the Board in 1937 that the latter was in a position to even consider the completion of the schools.

However, at the close of defendant’s direct testimoney he injected into the case a new claim, vis., that he had an oral agreement' with Traff as to his fee for services in connection with the agreement of December 15, 1937. Defendant testified that he had a discussion with Traff about the figures that went to make up the $106,000; that he told Traff he should include in the figures fifteen per cent attorney’s fees. “He reported back to me later he had put an item of fifteen per cent for attorney’s fees and they struck it out. I then explained to him he couldn’t expect them — I told him to include it in the figures. I didn’t tell him to include it as the fifteen per cent attorney’s fees, which he did, or at least he said he did. He said they said they could not allow outside attorney’s fees; they had attorneys of their own. That was just before the resolution of the Board early in December. I told him specifically he was to pay fifteen per cent attorney’s fees over and above the contract, the original contract, that he should prepare his figures so that would be included. In fact, I said, ‘So you will be protected.’ That is what I said. That fifteen per cent had been discussed from the very start. He said I would be entitled to fifteen per cent, our understanding is: You are to get fifteen per cent of what I get. The Court: When did he tell you thatf The Witness: That toas the first time, when we first started. It was understood when I had talks with him. 1 can give you specific dates, October 26, 1937, November 10, 1937.” On cross-examination defendant stated: “I don’t think that the matter that he [Traff] was going to pay me fifteen per cent on money that he had to pay subcontractors was discussed.” Traff denies that he had any talks with defendant in the fall of 1937 in which he agreed to pay him fifteen per cent of what he received in excess of the original contract price. After the decision of the cause defendant obtained leave to amend his verified original answer for the second time by striking out all references to damages for deferment or extension and including an averment that plaintiff in July or August, 1932, “agreed to pay this defendant for his services the sum of $100.00 as a retainer fee, and the further amount of fifteen per centum of any and all amounts thereafter paid by said Board of Education to plaintiff over and above the amount provided by plantiff’s said original contract and referable to the said stopping by said Board of Education of work under said contract and to the damages to plaintiff resulting therefrom.” The decree finds that there was such an agreement. Traff strenuously contends that defendant’s testimony as to the alleged oral agreement was an afterthought and false, and he complains that defendant was allowed to withdraw admissions made under oath in the pleadings, without making any showing, and to shift his ground for recovery. Defendant answers this contention as follows: “If a modern defendant, becoming better informed during a trial, changes a denial into an admission of plaintiff’s allegations, on what barnacle encrusted relic of outmoded doctrines can plaintiff base objection thereto?” An admission in a sworn answer is not relieved against merely by filing an amendment withdrawing it. (See People ex rel. Nelson v. Central Mfg. Dist. Bank, 306 Ill. App. 15, 30, and cases cited therein.) That the verified original answer of defendant was not based upon the alleged oral agreement is not disputed. Counsel for Traff argues that defendant was an able, experienced lawyer, and knew the facts as to his claim when he filed the verified original answer. As we view it there is written evidence that proves conclusively that defendant’s testimony as to the alleged oral agreement is not entitled to any credence. On January 6, 1939, nearly fourteen months after the execution of the contract of December 15, 1937, defendant wrote a self-serving letter to Traff, which we have heretofore incorporated in this opinion. If Traff made the oral agreement that defendant claims he did, then on January 6, 1939, defendant was entitled to fifteen per cent of $106,507, yet, in that letter defendant asks Traff to drop in and see him on the fees under the supplemental agreement, “so that we can determine . . . the amount to be paid to the attorney for fees under our supplemental agreement,” and “As soon as we get this matter agreed upon, I will release the Board so that the payments may be made. . . . Will you please call and make an appointment so that we can sit down and agree on any disputed questions?” We are constrained to believe that if Traff had made the alleged oral agreement defendant would never have written this letter, and his verified original answer would not have been absolutely silent as to the oral agreement. While defendant was upon the stand, but before he had .testified to the alleged oral agreement, the following occurred: The court addressing counsel for defendant: “After all, don’t you depend on the matter of contract, on the question of contingent fees here? Mr. Keeley: That is what I thought about, your Honor. My thought about it is that we are suing here — The Court: Well, if there was the question of quantum meruit here, it would be a different thing. Mr. Keeley: We are not in on that basis at all.” The thought expressed by the court that the defendant, to recover, would have to rely upon the quantum meruit for any services he might have rendered in connection with the agreement of December 15, 1937, was answered by the testimony as to the alleged oral agreement.

In our judgment it would be highly inequitable to allow the instant decree to stand. The $106,507 that Traff received was not a payment of damages for the breach of the original contract by the Board. Indeed, the agreement stipulates that plaintiff releases all claims for damages of every nature. It mats no difference whether the agreement of December 15, 1937, be considered a new agreement or a supplementary agreement, the $106,507 represented the consideration for a new agreement by Traff to do work in the future, work that he was then not legally obliged to do, which work entailed costs and expenses upon him that were not in the contemplation of the parties at the time of the making of the original contract between Traff and the Board. The said sum did not go into Traff’s pocket. In receiving it he was akin to a conduit, through which payments were made to governmental authorities, subcontractors, laborers, insurance companies, and others, in order that the Board might get the work done. The amazing changes in the conditions between 1931 and 1937 made such action necessary, and yet defendant was awarded fifteen per cent upon numerous items that Traff was compelled to pay out to others. If defendant considers that he rendered services to Traff in the matter of the contract of December 15 he has the right to file a suit at law against plaintiff for fees based upon the quantum meruit. His counsel refused to rely upon the quantum meruit in the instant case.

The judgment decree of the superior court of Cook county is reversed and the cause is remanded with directions to the trial court to enter a decree in conformity with the prayer of plaintiff’s complaint.

Judgment reversed; and cause remanded with directions.

Sullivan and Friend, JJ., concur.