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    Stevens Hotel Company, Appellee, v. The Art Institute of Chicago and South Park Commissioners, Appellants.
    Gen. No. 34,885.

      Heard in the first divi-
    sion of this court for the first district at the June term, 1930.
    Opinion filed March 23, 1931.
    Rehearing denied April 6, 1931.
    Cutting, Moore & Sidley and West & Eokhart, for appellant Art Institute of Chicago.
    George E. Gorman, for appellant South Park Commissioners; Nathan G. Moore, Horace Kent Tenney and Percy B. Eokhart, of counsel.

      George P. Merrick and Hugh T. Martin, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This appeal is from a decree by which the Art Institute and the South Park Commissioners and all persons claiming through or under them were permanently enjoined “from constructing or continuing to construct, erecting or continuing to erect, causing or permitting or suffering to be erected or constructed or placed thereon, any building or other structure or obstructions of any kind, nature or description whatever, anywhere within the limits of . . . Lake Park, or Grant Park, or Lake Front Park,” in the City of Chicago. The decree further adjudged that complainant had a perpetual vested right to prevent the erection of buildings upon Grant Park and every part of it and the right to forever restrain and prevent the erection, construction or placing of any building, structure or obstruction thereon and to have this tract of land forever remain public ground as an open park vacant of buildings, structures or obstructions of any kind, and that this right “descends and extends to its assigns, representatives and grantees forever.”

From this decree the Art Institute and Park Commissioners prayed and were allowed an appeal to the Supreme Court of Illinois. That court held that it was without jurisdiction and transferred the cause to this court. Stevens Hotel Co. v. Art Institute, 342 Ill. 180.

Grant Park is a tract of land which covers little more than 303 acres situated in the heart of Chicago. It is bounded on the north by Randolph Street, on the east by Lake Michigan, on the south by Park Row, on the west by a line running north and south 90 feet east of the west line of Michigan Avenue. The title thereto and the rights of the public and of abutting property owners therein have for more than half a century been the subject of frequent litigation in the courts of this State and of the United States. The right of way of the Illinois Central Railroad passes through and over Grant Park in a north and south direction, and the rights of that road, of the City of Chicago and of the State of Illinois in and to this land were determined in the case of Illinois Cent. R. Co. v. People, 146 U. S. 387. The history of the title to this tract of land is set forth at length in the opinion filed in that case from the time that the north end of it was occupied by the government of the United States as a military site. At that time the shore of Lake Michigan in a general way was along the line of what is now Michigan Avenue, and when later the land fronting east on Michigan Avenue was subdivided this tract between that avenue and the lake was dedicated to a public use to the end that it should at all times be kept clear of any buildings or structures whatsoever. By this original dedication, by ordinances of the City of Chicago and by repeated decisions of the courts construing these, it has been determined that the owners of the property abutting on Michigan Avenue to the west have acquired a perpetual easement over this tract of land and a vested right to have the same kept free- from buildings, structures and obstructions of every kind and character, and that this easement extends to land created either by avulsion or accretion. City of Chicago v. Ward, 169 Ill. 392; Bliss v. Ward, 198 Ill. 104; Ward v. Field Museum, 241 Ill. 496. In South Park Commissioners v. Montgomery Ward & Co., 248 Ill. 299, it was held that the right of the abutting property owners to have Grant Park remain free from buildings, was more than a mere property right which could be compensated for in damages and that an attempt to take away this easement of these owners by exercise of the right of eminent domain was illegal. In McCormick v. Chicago Yacht Club, 331 Ill. 514, it was held that the erection of a clubhouse beyond the harbor line, as established by the Secretary of War in 1921 on submerged land formerly owned by the State was not an erection of a building in the dedicated park, and an injunction was refused upon that ground. This case seems to have been followed in Stevens Hotel Co. v. Chicago Yacht Club, 339 Ill. 463, but both these decisions are placed upon the ground that the building was erected upon submerged land which was outside the limits of the park and over which the Park Commissioners had no jurisdiction. The right, therefore, of abutting property owners to have this tract of land kept free and clear of buildings would seem to be finally determined, if it may be properly said that any legal question ever can be so determined.

The bill in this case was filed February 8, 1929, and prayed an injunction as afterwards granted. It was later amended by proper averments so as to allege that the contract of January 18, 1928, between the Art Institute and the South Park Commissioners constituted a violation of the rights of complainant under the Constitution of the United States, in that it would impair the obligation of a contract and deprive complainant of its property without due process of law and also was a violation of separate section 2 of the Constitution of Illinois, which provided in substance that no municipality should subscribe to the capital stock of any railroad or private corporation or make a donation or loan to its credit in aid of such corporation.

The bill alleged that by the contract of January 18, 1928, leave was given the Art Institute to use other tracts of land for erection thereon of additions to the building of the Art Institute, contrary to complainant’s rights under its easement. Defendants in their answers admitted the execution of this contract, claimed the right to do so and submitted a proposed plan for the enlargement of the Institute in conformity therewith. A plat showing the present location of the Art Institute, the land now occupied by it, and the proposed additional grants appears on the opposite page.

Since it is apparent that the proposed additions are to be erected on Grant Park, all of which was originally subject to the rights of complainant under the easement as above described, the conclusion of the trial court would seem to be unavoidable, unless the rights of complainant have been modified by some agreement to the contrary, either express or implied, or unless by some act or conduct of complainant or of its predecessors in title, complainant is precluded from asserting these rights, or unless there has been some adjudication by the courts to the contrary. Defendants contend that there was such consent and agreement ; that by the conduct hereinafter set forth complainant is precluded and estopped, and that it has been so adjudged by the courts.

In this connection it may be well to recite some material and undisputed facts. Defendant Art Institute of Chicago is a corporation, not for pecuniary profit, organized under the laws of the State of Illinois. Its only place of business is in Chicago, Cook county, Illinois. Its original name was “The Chicago Academy of Fine Arts.” It was organized May 22, 1879, for the object, as stated in its articles of incorporation, “the founding and maintenance of schools of Art of design, the formation and exhibition of collections of Objects of Art and the cultivation and extension of the Arts of design by any appropriate means.” On November 25, 1925, by amendment to its articles the objects were enlarged.

In 1893 the Art Institute enrolled 947 students and employed a faculty of 21 instructors and operated its school at an annual expense of $20,800. At that time its membership was 2,149. Its annual attendance of visitor^ numbered 215,600. It owned art objects of the value of $187,488.67 and held in trust endowment funds to the amount of $1,500. In that year the population of Chicago was 1,438,010 and the pupils enrolled in the public schools of Chicago at that time numbered 166,895. The public schools of the city then employed a teaching staff of 3,523 instructors. A permanent and suitable location for the Art Institute (it is conceded) had become imperative as early as 1891.

March 30th of that year the city council of the City of Chicago, the predecessor in title of the South Park Commissioners, passed an ordinance which recited that the World’s Columbian Exposition was desirous of erecting an art building on the Lake front and that the Institute and many of its students desired that the building so erected should become “a permanent building,” the use of which should be given to the Art Institute after the Exposition had been held. The ordinance recited that those interested had offered to contribute a large sum of money to the end that the building should be suitable “for the permanent accommodation of the said Art Institute.” The ordinance further recited that “to secure the erection of said permanent building” it was necessary action should be taken “granting the right to use said building to the said Art Institute.” It was therefore ordained that after the time limited for the use thereof by the Exposition, the title and ownership of the building “and all the appurtenances thereto, shall be vested in the City of Chicago . . . but the right to the use and occupation of said building, and of the grounds appurtenant thereto and necessary for the reasonable enjoyment thereof, shall be vested in the Art Institute of Chicago, a corporation organized under the laws of the State of Illinois, for the objects for which said Art Institute is incorporated, so long as said Art Institute shall faithfully keep, perform and observe the provisions and conditions of this ordinance hereinafter contained, or until the said building and premises shall be voluntarily surrendered by the said Art Institute to the City of Chicago under the conditions aforesaid, the said use of said building being granted to the said Art Institute upon the following conditions. . . .

These conditions were stated to be that as soon as practicable after the surrender of the possession of the building by the Exposition, the Art Institute should transfer to, place and arrange in the building its museum, library and collections, or such portions thereof as could be properly displayed to the public therein; that the exhibition halls of the building should upon certain days and under certain rules and regulations be kept open and accessible to the public, free of charge; that all professors and teachers of the public schools of Chicago, or of other institutions of learning in the city, should be admitted to the advantages offered by the Art Institute; that the Art Institute should each year submit to the City of Chicago a report of its operations, transactions, receipts, payments, etc., and that if the Art Institute at any time desired to surrender possession of the building it should give the city not less than three months’ notice; that the by-laws of the Institute should be amended so as to make the mayor and the comptroller of the City of Chicago ex officio members of the board of trustees; that “said permanent building shall not have a frontage of over four hundred feet on Michigan Avenue”; that the mayor and the comptroller of the city were authorized to execute in behalf of the city a contract with the Art Institute granting and securing to it the use and occupation of the building to be erected upon the terms as stated. This ordinance was duly approved by the mayor of Chicago on April 3, 1891.

May 8,1891, the directors of the Exposition adopted a resolution appropriating $200,000 to apply on the construction of the building, the resolution providing that the building should be permanently occupied by the Art Institute, the title to remain in the City of Chicago, then the predecessor of the South Park Commissioners.

December 3, 1891, the City of Chicago, the Exposition and the Art Institute entered into a written contract pursuant to and in conformity with the terms of ordinances enacted by the City of Chicago. This contract recites the desire of the parties that the building should be permanent with the right to use the same given to the Art Institute and states that a large sum of money has been given to the end that the building may be suitable for “the permanent accommodation of the said Art Institute.”

In 1903 the legislature of Illinois conveyed the fee to Grant Park to the South Park Commissioners, a municipal corporation (see Callaghan’s 111. Annot. Stats., chap. 105, fifí 151 and 152). Thereafter, on July 21, 1903, the city council of Chicago passed an ordinance giving the consent of the city to the transfer and granting to the South Park Commissioners the right to take, regulate, control and govern all that part of Grant Park lying west of the Illinois Central Railroad Company’s right of way and north of the north line of Jackson Street extended, subject to certain rights, reservations and exceptions, as stated:

“First. The right of the Art Institute of Chicago as defined by an ordinance of the City Council of the City of Chicago passed on the 30th day of March, A. D. 1891, and duly approved by the Mayor of said City on the 3rd day of April, A. D. 1891, and the contract between the City of Chicago and said Art Institute bearing date the third day of December, A. D. 1891, and the terms, provisions and conditions thereof, and to the rights, occupation, uses and benefits of the Art Institute of Chicago thereunder, all and every of which the South Park Commissioners accept, assent to and do and will permit.”

By the second section of this ordinance the mayor and comptroller were directed to execute, acknowledge and deliver all instruments necessary or proper in order to transfer all right, title and interest of the city “to the building known as the Art Institute of Chicago to the said South Park Commissioners, and to carry out the intent and meaning of this ordinance. ’ ’

December 30, 1903, by ordinance duly passed the South Park Commissioners accepted the transfer subject to all the legal rights, reservations and exceptions therein contained, and the jurisdiction of the South Park Commissioners was extended to all of Grant Park as the same existed at that time. It is stipulated that prior to the acceptance by the. Park Commissioners, a majority of the owners of lots and lands abutting on Grant Park, including complainant’s predecessors in title, who were owners at that time of all of the property now owned by complainant, had in writing consented to the transfer of Grant Park to the South Park Commissioners, but several of complainant’s predecessors in title expressly reserved in their written consents all their rights to their easements over the park. Pursuant to that ordinance the City' of Chicago by Carter Harrison, mayor, executed an indenture whereby the city granted, conveyed and transferred to the South Park Commissioners “all the right, title and interest of the City of Chicago aforesaid, in and to the building known as the Art Institute of Chicago, which is referred to in said ordinance of July 20, 1903, and which is situated upon that portion of the said premises known as Grant Park, otherwise known as Lake Front Park, in the said City of Chicago, which is referred to and described in and covered by said ordinance of July 20, 1903; . . . but subject, as in said ordinance of July 20, 1903, provided, to the right of the Art Institute of Chicago as defined by said ordinance of March 30, 1891, and said contract and the terms, provisions and conditions thereof, and to the rights, occupation, uses and benefits of the Art Institute of Chicago thereunder, all and every of which the South Park Commissioners have accepted, assented to, done and permitted, and accept, assent to, do and will permit, as provided in and by said ordinance of July 20, 1903.” This transfer is also signed by Lawrence E. McCann, city comptroller, is under seal and is attested to by Fred C. Bender, city clerk.

June 27, 1895, the City of Chicago enacted an ordinance which extended the limits of Lake Front Park eastwardly to the line then established, or to any other line that might thereafter be established by the government of the United States as a harbor or dock line. The General Assembly of Illinois by an act approved April 24, 1899, changed the name of Lake Front Park to Grant Park. By an amendment to that act approved May 10, 1901, the legislature granted to the City of Chicago the right to fill in the submerged land for park purposes. By an act of the General Assembly approved May 14, 1903, Grant Park was conveyed to the South Park Commissioners.

It is stipulated by the parties with reference to ordinances of June 27, 1895, and October 21, 1895, and acts of April 24, 1899, May 10,1901, and May 14,1903, and decisions of City of Chicago v. Ward, 169 Ill. 392; Bliss v. Ward, 198 Ill. 104; Ward v. Field Museum, 241 Ill. 496; South Park Commissioners v. Montgomery Ward & Co., 248 Ill. 299, and Illinois Cent. R. Co. v. People, 146 U. S. 387, that—

1 1 The findings of the respective courts and the facts as stated by said courts in all of said decisions, opinions and decrees, and the said Acts and Ordinances are hereby, by this reference, included in and by the agreement of the parties made a part hereof and are agreed facts in this proceeding as completely as though set forth verbatim herein.”

August 3, 1889, one Leland, an owner of lots abutting on Michigan Avenue, to which the easement in question was appurtenant, filed his bill in behalf of himself and other owners, making defendants thereto the City of Chicago and others. He prayed that the defendants should be enjoined from erecting any structures on this tract of land and that structures thereon should he removed. A temporary injunction issued October 26,1889. Sarah Daggett, another owner, similarly situated, was afterwards allowed to appear as a co-complainant. April 6, 1892, Leland withdrew as complainant. March 30,1891, while that suit was pending, the ordinance heretofore described was enacted and the contract pursuant thereto made. The Art Institute building was erected in 1892 while that suit was pending. Mrs. Daggett caused the Art Institute and the mayor of the city to be cited for contempt for violation of the injunction. The Art Institute and others filed a petition asking that the original order of injunction be modified so as to permit the completion of the building. The mayor and the Art Institute answered the rule to show cause, setting up in their answer the ordinance of March 30, 1891, and the contract entered into pursuant thereto, and alleging that “all the owners of property interested consented to the erection of the said Art Institute Building upon said Lake Front.” Evidence was heard upon this petition, and the court then ordered and adjudged that the injunction should be “so modified as not to interfere with the erection, construction and use of a building on the Lake Front, between Jackson and Monroe streets, in pursuance of, and as contemplated by an ordinance passed by the city council of the City of Chicago, on the 30th day of March, 1891, and of an act of the General Assembly of the State of Illinois, entitled ‘An Act in relation to the World’s Columbian Exposition, approved A.ug. 5, 1890.’ And of all contracts made in pursuance thereof. ’ ’ The original documents, by which the property owners consented, are not in the record.

October 16, 1890, A. Montgomery Ward et ah, filed a bill against the City of Chicago, the Illinois Central Railroad Company et al., in the superior court of Cook county, praying that the defendants might be restrained from erecting or causing the erection of any structure upon the land now described as Grant Park and might be required to remove lumber, timber, dirt, rubbish, garbage, etc., which had been placed thereon. This case was pending also at the time the Art Institute building was erected, and a decree was not entered therein until September 14, 1896. The decree was in favor of the complainants but contained the following clauses:

“Provided, however, nothing in this decree contained shall be construed to prohibit, enjoin or restrain the use, occupation, repair or necessary enlargement of the building known as the Art Institute, situated opposite the east end of Adams street, so long as the same shall be used in accordance with the terms of the ordinance of the City Council authorizing the construction and location of the same. . . .”

This decree was affirmed in City of Chicago v. Ward, 169 Ill. 392. The Supreme Court in that opinion, referring to the Leland case, says:

“It was then sought to have the above injunction in the Leland case modified to permit the erection of this building, and such modification having been assented to in writing by all the property owners, it was accordingly modified, notwithstanding the objections of Mrs. Sarah A. Daggett, whose husband had signed her assent to the proposed modification. In pursuance of the permission thus granted the Art Institute building was subsequently erected with a frontage of about 300 feet.

Again, the opinion says:

“The only permanent building, perhaps, that is excepted from the injunction is the Art Institute, and all the property owners gave their consent to its erection. ’ ’ The exception in favor of the Art Institute is also noted in the opinion of the Supreme Court in Ward v. Field Museum, 241 Ill. 496.

The exception in favor of the Art Institute is also noted in the opinion of the Supreme Court in Ward v. Field Museum, 241 Ill. 496.

As stated, the written consents of the owners are not before us, but the interpretation which seems to have been put upon the rights of the Art Institute after the erection of the building is significant. It is stipulated that between the years 1893 and 1911, the Art Institute added to the usable area of the original building and constructed additions thereto, all of these additions being east of the original building and west of the right of way of the Illinois Central Railroad; that Fullerton Hall was erected in 1897, Ryerson Library in 1900, Blackstone Hall in 1903, Grand Stairway in 1910, School Additions from 1898 to 1928, General Offices in 1911, and a shipping room in 1916. These various improvements occupied additional area of 56,825 square feet, and the total cost of such improvements was $386,345.31. It is stipulated that this expansion of the Art Institute was in the opinion of its trustees and officers rendered necessary by its growth and development coincident with the growth and development of the City of Chicago. Upon the completion of these improvements the expansion and enlargement of the Institute building had reached the west line of the right of way of the Illinois Central Railroad, and by reason of the fact that the ordinance of March 30,1891, limited the Institute to a frontage not to exceed 400 feet on Michigan Avenue, 320 feet of which had already been utilized, it became necessary that further enlargement and expansion should extend over the tracks and east of the right of way of the Illinois Central Railroad in order that the original building might retain its original height of two stories and its architectural beauty of form and method of sky lighting.

In the year 1913, with the consent of the Illinois Central Railroad Company and the South Park Commissioners, the ’ Art Institute constructed Gunsaulus Hall, commonly called the “Bridge,” which extends from the Art Institute’s original building as enlarged on Michigan Avenue, a distance of 256 feet eastward over the Illinois Central railroad right of way to the park east thereof. This hall or bridge is 60 feet in width, has 14,370 square feet of area, is 74 feet 6 inches above city datum at its highest point, and cost $147,-585.75. Thereafter the Art Institute constructed other enlargements and extensions east of the right of way of the Illinois Central Railroad company, all connected with each other and with Gfunsaulus Hall and through the Bridge with the original Art building west of the right of way of the railroad company. From 1920 to 1926 Hutchinson Wing was constructed, in 1922 Mc-Kinlock Court, in 1923 Goodman Theatre, in 1924 Decorative Arts Gallery, in 1927 Temporary School, from 1927 to 1928 Permanent School, in 1928 Allerton Wing and from 1928 to 1929 Rehearsal Gallery. These various improvements occupied an additional area of 91,910 square feet and were made at a cost of $1,286,-948.81. Upon their completion these extensions and enlargements were occupied by the Art Institute, and it is stipulated that all were rendered necessary in the opinion of the trustees and officers of the Art Institute by the growth and development of that institution and of the City of Chicago. In 1929 the city had attained to an estimated population of 3,250,000. It enrolled in its public schools in 1928, 514,818 pupils, and the number of its teachers had increased at that time to 12,241. In 1929 the Art Institute school enrolled 4,437 pupils, employed a faculty of 85 instructors and operated its school at an annual cost of $297,000. In the same year the total attendance of visitors was 1,006,122. Its membership of persons making annual payments had increased to 19,017, its annual pay roll was $605,000, its employees numbered 343, the value of its art collections was $15,000,000, the endowment funds held in trust amounted to $7,552,387.59, and the value of its buildings was placed at $6,000,000.

It is further stipulated that all of the extensions and enlargements were with the express consent of the South Park Commissioners, were carried on openly and visibly, were discussed in the public press and were generally known to all of the citizens of Chicago and particularly to the abutting property owners, including complainant’s predecessors in title and the officers of complainant, who were all citizens and residents of Chicago; that the constructions were in plain view, and that during said construction the workmen, teams, material and all other activities were easily visible to all persons concerned and were apparent and known to the abutting property owners upon the west side of Michigan Avenue and all others interested in Grant Park; that at no time since the construction of the original building had any legal proceedings been instituted against the Art Institute by any abutting property owner or by others to recover damages or to enjoin its activities in Grant Park; that all of the constructions, including the original building and the subsequent enlargements and extensions, were carried on in good faith by the Institute, relying upon the modified order of injunction in the Leland case and the final injunctional decree in Ward v. City of Chicago, and the decisions of the Supreme Court of this State in these and other cases mentioned; that during all the time hereinbefore mentioned, the abutting property owners have vigorously and successfully opposed the construction of any other buildings in Grant Park, but that in all of the Supreme Court decisions growing out of such litigation, the right of the Art Institute has either not been questioned or has been expressly recognized and declared to be the only exception permitted.

The Art Institute building is located at the foot of Adams Street, in Grant Park, on the east side of Michigan Avenue, facing west. Complainant’s hotel is located on the west side of Michigan Avenue, facing east. Between the center line of the Art Institute and the center line of the Stevens Hotel the distance is 2,563 feet. The Art Institute is almost exactly north of the Stevens Hotel, and from none of the windows of that hotel is the view of Lake Michigan over Grant Park obstructed by the Art Institute. The erection of the concrete walls on both sides of the Hlinois Central railroad tracks, and the gradual raising of the level of the park by filling in up to a point 22 feet and 6 inches above city datum, have rendered the lake, as well as the Illinois Central trains, invisible from the street level.

We have before us the briefs filed in the Supreme Court while the appeal was pending there, and thé opinion of that court has eliminated from our consideration several of the points upon which complainant relies. That opinion distinctly holds (1) that no undecided question as to the infringement of constitutional rights is in the case either under the Constitution of the Hnited States or of Illinois; (2) that no question as to the validity of any ordinance of the City of Chicago or of the South Park Commissioners is involved; (3) that the contract between the South Park Commissioners and the Art Institute may not be properly considered as a municipal ordinance; (4) that a freehold is not involved. Complainant, still insisting that a freehold is involved, has entered a motion to dismiss upon the ground that this court is without jurisdiction, which motion, for obvious reasons, has been denied.

Defendants contend that there remain only three questions open for discussion: First, whether complainant at the present time has a right to raise against the Art Institute the question as to its right to and the extent of its site. Defendants contend that complainant does not have such right and that its bill should have been dismissed for that reason; that the earlier owner of the hotel property once had the right to raise such a question, but that right was long ago deliberately waived, as was held might be done in South Park Commissioners v. Ward, 248 Ill. 299, upon the authority of People v. Walsh, 96 Ill. 232. We do not entertain any doubt of the right of such owner to waive any and all his rights acquired under such an easement as exists here, as was held in City of Chicago v. Ward, 169 Ill. 392. Such right may be waived as to one party and not as to another or may be waived as to one part of the premises and not to another. Such waivers would not destroy the easement. The opinion of the court states (and we assume it to be true) that the original waivers were in writing, but as already stated, those writings are not before us and we can only know from adjudication of the courts, by necessary inferences from other documents, from the construction put upon the same by the parties, the terms and conditions, if any, upon which these waivers were made. As to the original building and additions thereafter erected prior to the filing of the bill, we entertain no doubt that under the adjudication of the courts and by reason of the admitted acquiescence of this complainant, its right to object that any or all of these violate its rights under the easement must be deemed waived. It by no means follows that its rights under the easement have ceased as against this institution, and upon a proper showing we do not doubt the right of complainant to object and in a proper case, obtain relief. In other words, its status as the holder of rights under the easement and to maintain these rights against the defendants has not been destroyed as defendants contend.

A second question is argued by the parties, namely, the question of the right of the South Park Commissioners on behalf of the public to stipulate with the Art Institute for the occupancy of a larger area of its site on which to enlarge its present building for the uses of the Institute. It is contended by complainant that the Institute has no such right, while defendants say that the question has been decided contrary to complainant’s contention in Furlong v. South Park Commissioners, 340 Ill. 363, 367. We do not understand that any question of the rights of property owners under the easement here considered or analogous thereto was involved in that case. That in general the Commissioners and the Art Institute have the right and the power to contract with reference to property in which they are mutually interested, is not questioned, and that decision, as well as Maskin v. Chicago, 93 Ill. 105; Mound City v. Mason, 262 Ill. 392, and Potter v. Fond du Lac Park Dist., 337 Ill. 111, sustain that proposition. Indeed, that power and authority has been expressly given by statute (see Cahill’s Ill. Rev. Stats. 1929, ch. 105, ¶ 369.) Defendants have the right to contract with each other concerning this property, but they cannot of right make a contract concerning it which would be destructive of complainant’s rights under the existing easement. The controlling question in the case is whether the proposed enlargement and additions provided for under the contract of January 18, 1928, as entered into between these parties would violate the rights of complainant under the easement. The contract itself recognizes the obligation of the parties to respect complainant’s rights under the easement. It specifically provides:

“Any and all of the permits and permission herein granted by the said South Park Commissioners to the Art Institute of Chicago, are subject to the rights, if any, of any persons, firms or corporations, referred to in the decisions of the Supreme Court of Illinois relative to Lake Front Park or Grant Park being forever free of buildings.”

Further, the contract recites that the present building in Grant Park occupied by the Art Institute has become inadequate; that the time has arrived for the Art Institute to secure final and definite plans for a complete museum building; that the most feasible plan submitted is for the construction of proper additions to the existing building now occupied, which additions should be large enough to take care of the extensions of the Art Institute for the next 50 to 100 years in order that it may keep step with the growth and development of Chicago and the Middle West. It recites that the Art Institute has arranged to conduct a competition among leading architects of America and Europe for the purpose of securing the best available plans and specifications, and that additional space in Grant Park is necessary upon which to build such additions. For this purpose the contract expressly grants the right to occupy the land as shown by the plat. It grants permission to erect such additions which shall become a part of the building now used and occupied and to be the property of the South Park Commissioners, but provides that such additions shall be used and occupied by the Art Institute for the purpose of a museum for the collection and display of objects pertaining to the arts and sciences, and subject to the conditions therein contained. These conditions, in substance, are: No work of construction on any of the additions should be done until a competition among the leading architects of Europe and America has been conducted and a comprehensive plan for the development of the additional land by the erection of a building or museum of distinguished architectural design and appropriate interior arrangement, including specifications for the additions, shall have been submitted to and approved by the South Park Commissioners. Detailed plans and specifications must also be submitted to the Commissioners before any such additions shall be erected. The building now used and occupied, as well as all additions, must be maintained by the Art Institute in good order and condition, and the public admitted thereto, in accordance with the terms and provisions of an act entitled, “An Act concerning Museums in Public Parks,” approved June 17, 1893, in force July 1, 1893, as amended by an act approved May 14,1903, in force July 1,1903, Cahill’s St. ch. 105, 11 369 et seq.; that the Art Institute shall furnish to the South Park Commissioners a detailed statement of the annual cost of maintaining and caring for the Institute and the buildings and grounds thereof; that the Art Institute shall open to the public without charge on Sunday and on two other days of each week, and to the children in actual attendance upon any of the schools of this State, at all times; that the buildings, lawn, walks and other appurtenances of the park allocated to the use of the Art Institute shall be kept in a manner to conform with the general park development according to the plans to be furnished by the Institute and approved by the Commissioners, and shall be kept in a clean and sanitary condition and free of any and all nuisances; that the Art Institute shall construct and maintain at its sole expense four enclosed bridges over and across the right of way and tracks of the Illinois Central Railroad Company, provided that the bridges shall be constructed according to plans and specifications submitted to and approved by the Commissioners, and provided that the Art Institute obtains the consent of the Illinois Central Railroad Company thereto.

The several ordinances, contracts, agreements and decisions of the courts, as hereinbefore recited, seem to us in every provision to contemplate the possession of a portion of Grant Park by the Art Institute permanently for the purposes for which it was created and with a view to its future expansion and development as the city in which it is situated, should expand and develop. It seems to be a necessary inference from all the evidence recited that this was the intention of the respective parties at the time the owners upon Michigan Avenue executed their written consents to the location and construction of the original building. Not only does that intention appear from the language of the documents, but it is corroborated by the contemporaneous and continued construction which seems to have been put upon these waivers during the years in which no objection has been made to the continuous development of the Art Institute as an institution. We hold such to be the reasonable construction. The easement of complainant and other property holders is not destroyed, but they have, as the Baggett case shows and the Ward case holds, given their consent to the erection of the original building and to such enlargements as may become necessary by reason of the growth and expansion of the community in which the institution is located.

Such enlargements must be reasonably necessary. They must be made in good faith. They may not occupy more than 400 feet frontage on Michigan Avenue and must in all respects conform to the provisions of the ordinance of March 30, 1891, as construed and determined in the Baggett case and in City of Chicago v. Ward, 169 Ill. 392.

Both parties appeal to the doctrine of res adjudicaba. Defendants, as already stated, rely on City of Chicago v. Ward and the Daggett case, both of which have already been considered. Complainant relies on all the cases in which its rights under the easement have been repeatedly declared and definitely established. We hold that in substance the rights of the parties have been settled and determined in those cases. Complainant has its easement except in so far as it has been waived in favor of defendants. Complainant has waived its rights thereunder so far as the present use and occupation of the defendant Art Institute is concerned and so far as the enlargements of the Art Institute now or in the future may make necessary the erection of other buildings which are an essential part of the Art Institute. City of Chicago v. University of Chicago, 228 Ill. 605.

From a colloquy which occurred at the time the decree was entered and which appears in the record, it would seem that the trial court was of the opinion that there was no evidence in the record tending to show the proposed additions were reasonably necessary. The evidence, we think, appears in the stipulation, tending to show this; but if it did not so appear we would nevertheless be of the opinion and hold that under the facts such as appear here, the bill failing to state that the proposed enlargements were unnecessary, complainant is not entitled to relief as prayed.

Defendant Art Institute upon the trial offered to enter into a voluntary stipulation by which it would impose upon itself certain limitations to the effect that in case it should be held that the Institute might lawfully erect upon the site the further enlargements of its building now proposed and described in the pleadings, there might be incorporated in the decree the following as the meaning and intent thereof:

That the boundaries of the ground of the total area upon which it claims the right to erect such buildings are as follows:

Not further north than the south line of Monroe street extended.

Not further south than the north line of Jackson street extended.

Not further west than the present location of its Michigan Avenue frontage. And not further east than the west line of the west drive as shown on the plat (Ex. D — p. 56 stipulation of facts) of the ground in question attached to the stipulation of facts herein.

Also, that any such building on its Michigan Avenue frontage shall not extend more than four hundred (400) feet from the north to south.

Also, that no part of the proposed new structure shall be of any greater height above datum than the highest point of its present existing building on the Michigan Avenue frontage, unless merely by way of ornament, pinnacles or flagpoles.”

We think these stipulations might well be incorporated in the final decree entered in case complainant should agree.

For the reasons which we have indicated the decree of the circuit court will be reversed and the cause remanded with directions to enter a decree in conformity with the views expressed herein.

Reversed and remanded with directions.

O’Connor and McSukely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Margaret S. Piersol and Harriett A. Piersol Johnson, Appellees, v. Massachusetts Mutual Life Insurance Company, Appellant.
    Gen. No. 34,899.

      Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Defrees, Buckingham, Jones & Hoffman, for appellant ; Don Kenneth Jones and Robert E. Wright, of counsel.
    Haffenberg, Kopald & Burns, for appellees; Harry E. Kopald and Joseph Rosenbaum, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action in assumpsit upon an insurance policy issued by defendant upon the life of the father of plaintiffs, Ralph Gf. Piersol, issued as of July 22, 1907, for the sum of $1,000, in which plaintiffs were named beneficiaries, and upon trial by jury, a verdict was returned in favor of plaintiffs and against defendant in the sum of $1,194.05, on which the court overruling motions of defendant for a new trial and in arrest, entered judgment. Defendant seeks a reversal of that judgment. There was a motion by defendant for a directed verdict at the close of all the evidence, which was denied.

The declaration alleged the death of the insured on or about January 2,1927, and the defense was a denial of the death of the insured. The theory of plaintiffs is that proof of the continuous absence of the insured for seven years immediately preceding the filing of suit and proof that he was not heard from upon diligent inquiry during that time, is sufficient to raise a presumption that the insured was in fact dead prior to the filing of the suit. Defendant on the other hand contends that the facts proved are insufficient to establish that presumption and insists that the motion for an instructed verdict in favor of defendant should have been granted for that reason. It is also urged that the court erred in excluding evidence for defendant and in giving and refusing instructions.

The material facts proved are that the insured lived at Danville, Illinois, was 49 years of age and in good health when he departed from his home in Danville on August 31, 1919. He was then employed by the American Railway Express Company and had been so employed at Danville for 25 years. His daughter, plaintiff Margaret S. Piersol, was at that time also employed by that company. The insured lived with his family in Danville, the wife and mother had passed away in 1913, and the family consisted of the father, his mother, the daughter Margaret S. Piersol and her sister, who is now Harriett A. Piersol Johnson. The family life of the father appears to have been quiet and happy. The daughter Margaret Piersol testified that he was well known and well liked; that she did not remember of having ever seen any display of tern-per on Ms part; that he was an affectionate father, and that she did not remember having seen any disturbance of any kind in their home. She said that after the death of the mother his disposition changed quite a little; that thereafter he didn’t have much to say; that she would not say that he was sullen but' he was very quiet, gave short answers, was moody, “something bothered him.” After the death of the mother he didn’t care as much about his personal looks as before. This began at the time of the death of the mother and continued until the time of his disappearance. He had a lot of friends in Danville and was very well known there.

Margaret Piersol further testified that she last saw her father on the morning óf the Saturday before he departed. She learned of his departure from a note written by him, which she received on the Tuesday morning after his departure and in which he said he was very disgusted with everything that was going on and could not stand the way things had been any longer. He said “G-oodbye.”

At the time of his departure auditors of the Express Company for about ten days had been auditing the accounts of the Danville office of the Express Company. A shortage was discovered in insured’s accounts. It was found that he failed to account for the amount collected on a prepaid shipment of two carloads of horses and for a shortage in money order accounts. A few days after insured left a grand jury of the United States District court for the Eastern District of Illinois returned an indictment charging him with the embezzlement of $1,742.40, the money and property of the United States which had come into his hands as agent of the American Railway Express Company. RMl wg,s fixed at $5,000,

Thereafter Margaret Piersol worked for awhile at the office of the Express Company at Danville, after which she was transferred to Chicago at her own request, and she continued in the employment of that company for seven and a half years. The mother of the insured also came to Chicago. The other daughter, Harriett, married and took up her residence in Topeka, Kansas. The daughters both signed the proofs of death presented by the defendant company in which they stated that the place and date of death of the insured were unknown and that deceased was last heard from “on or about January 1, 1920.” Neither the mother nor the daughter Harriett testified, but Margaret Pier-sol testified to repeated inquiries as to the whereabouts of her father among his friends in Danville without avail.

Defendant introduced the testimony of George F. Hunter, who in 1919 was special agent in charge of the American Railway Express Company. He said that on September 1, 1919, he got a long distance telephone call and went to Danville, Illinois, and started an investigation of the Express Company’s accounts of the insured; that he inquired as to where the insured was and found that he had left on the night of August 31, 1919; that he checked the insured’s accounts and found them to be short; that he found the shortage in the collection of the prepaid charges on two carloads of horses, and that following this investigation of the insured’s account steps were taken looking towards the criminal prosecution of the insured. The witness was in Danville at the time the grand jury returned the indictment. He procured a picture of the insured, prepared a circular and caused 2,000 of these circulars to be distributed. Later 5,000 circulars of a second issue were put out, and they were distributed to every Railway Express office in the United States and were put on bulletin boards and in railroad stations. The circulars offered a reward of $50 for information leading to the arrest and detention of the insured, who was described as a former agent of the Express Company at Danville, Illinois, who absconded from that city on August 31, 1919, with funds of the company. The circulars contained a photograph of the insured and a facsimile of his signature, stated that a United States warrant had been issued for his arrest and asked that information be telegraphed to the United States Marshal at Danville or to certain named officials of the Express company. The first issue of circulars was dated at Cincinnati, Ohio, September 6, 1919, and the second at the same place on January 15, 1923.

Hunter further testified that he attempted to locate the insured; that during the first five years he received clues to his whereabouts- — about four each month; that afterwards he would get these every three to six months; that the last clue was received about the middle of September of the year of the trial of this cause. The circulars were sent to police departments of Indiana, Illinois, Wisconsin and Kentucky.

Defendant contends that the instruction asked in its favor at the close of all the evidence should have been given for several reasons. First, it is said that the evidence does not meet the requirements as to diligent inquiry among relatives and friends. It is pointed out that Margaret Piersol, daughter of insured, was the only member of the family who testified as a witness; that the other daughter, Mrs. Johnson, did not testify and that the mother of insured was not called as a witness; further, that Margaret Piersol did not testify that she ever inquired of either her mother or her sister as to the whereabouts of her father. Modern Woodmen of America v. Graber; 128 Ill. App. 585, and Hitz v. Ahlgren, 170 Ill. 60, are cited. The proof of death offered in evidence by defendant was verified by the affidavit of both plaintiffs. Therein Mrs, Johnson stated that she did not know at that time the whereabouts of the insured. There is no doubt under the authorities cited that evidence of the kind suggested would have been admissible, and it is probable that an inadvertence accounts for the failure to offer it. Its absence bears materially on the weight of the evidence and was proper matter for the jury to take into consideration; but we cannot say that because of the. absence of this evidence there was no evidence on this point from which a jury could reasonably find for plaintiffs.

Again, defendant says that plaintiffs failed to prove that at the time the insured left his home he intended to return within a short time; further, that the reason for the absence of the insured was explained by the condition of his accounts and the indictment returned against him, and that no presumption of death would arise for these reasons. Kennedy v. Modern Woodmen of America, 243 Ill. 560, and Gayton v. Equitable Life Assur. Society, 245 Ill. App. 432, are cited. We have carefully examined these cases but do not understand the holding to be as defendant contends. It is true that in the Kennedy case there was proof tending to show that the insured at the time he disappeared intended to return in a short time, and the opinion (quite naturally) included that fact in its statement of the rule applicable, but the language used does not, in our opinion, warrant an inference that the presumption of death could not arise in any case where the insured left home without intending to return. The decisions of our Supreme Court before as well as after the Kennedy case, show that this interpretation of the rule has not been accepted. Whiting v. Nicholl, 46 Ill. 230; Johnson v. Johnson, 114 Ill. 611; Reedy v. Millizen, 155 Ill. 636; Stevenson v. Montgomery, 263 Ill. 93; Keystone Steel & Wire Co. v. Industrial Commission, 289 Ill. 587; Eddy v. Eddy, 302 Ill. 446.

The history of the development of the rule has been stated in Steen v. Modern Woodmen of America, 296 Ill. 104. Its origin seems to be found in “judicial legislation” in analogy to two English statutes, one of which (1 Jac. I, c. 2) provided that the presumption of death of the spouse after an absence of seven years might be used as a defense to a prosecution for bigamy; and the other (19 Car. II, c. 6) which provided that the presumption would be entertained in this respect to holders of life leases which were dependent upon their lives. The opinion points out that the rule arose in a primitive state of society; that since that time the social aspects of our civilization have been revolutionized, and states:

“. . . there is now no sound reason for continuing the rule except that it has existed for so long a time that convenience makes it the best rule to follow where no other rule is established by statute or by agreement. ’ ’

In the Gayton case, upon which defendant relies, the court held that an instruction directing a verdict for plaintiff which ignored evidence tending to show that the cause of the absence of the insured was known and explained, was erroneous, but we cannot regard that ruling as justification for holding that it was error to submit a case to the jury where evidence of that nature had been given. The general rule is that if there is any evidence from which, taken in the light most favorable to a plaintiff, a jury could reasonably find for the plaintiff, then the case should be given to the jury. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Devine v. Delano, 272 Ill. 166; Shannon v. Night ingale, 321 Ill. 168; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164.

An examination of the cases indicates that the prerequisites which would justify a presumption of death are (1) that the person whose death is in question has disappeared from his last known abode, domicile or residence; (2) that he has neither returned thereto nor communicated with those with whom he would naturally communicate if alive; (3) that inquiry has been made at the last known place of abode of the persons who would naturally hear from him without obtaining information indicating that he is alive. Out of proof of such material facts a presumption of death arises as a matter of law, but it is a rebuttable presumption which may be disproved by evidence of facts tending to show that the party presumed to be dead is alive. See Jones, Commentaries on Evidence, 2nd ed., vol. 1, secs. 285-294; 8 B. C. L. pp. 708, 709, and see page 714. We hold that the court did not err in denying the motion of defendant to instruct in its favor at the close of all the evidence.

Defendant also contends that the court erred in refusing to receive offers of testimony by defendant to the effect that the insured prior to his departure was supposed to have had some affairs with women and that a charge of seduction was about to be made against him. The evidence as offered, however, was mere hearsay and was, we think, properly excluded. Gayton v. Equitable Life Assurance Society, 245 Ill. App. 432, upon which defendant relies, is to that effect.

The controlling question in the case, as we see it, is raised by defendant’s further contention that the court erred in giving and refusing certain instructions. Plaintiffs say that this question has not been preserved for review because defendant did not object at the time the instructions were given and refused. The instructions are in writing and exceptions by defendant were taken thereto before the final judgment. Under the practice in the circuit court, this is sufficient. See section 74 of the Practice Act, Cahill’s St. ch. 110, 74, and Collins Ice Cream Co. v. Stephens, 189 Ill. 200. Defendant complains in particular of plaintiff’s given instruction No. 3, which is as follows:

“The jury are instructed that if,.after considering all of the facts and circumstances shown by the evidence, they believe from the evidence that the facts and circumstances so shown do not rebut and overcome the presumption of death, if any, from the seven years’ continued absence of the insured, Ralph G. Piersol, from his last known place .of abode and residence, if he was so absent, without his having been heard from, if he wasn’t heard from, by those who would most likely hear from him and without his whereabouts having been discovered after diligent search ' and inquiry made, if any was made, then your verdict shall be for the plaintiffs and you shall find the issues against the defendant and for the plaintiffs.”

Defendant contends that this instruction is erroneous for the reason that while it directs a verdict for plaintiffs it omits therefrom the defense arising out of the fact that the absence of the insured was explained. We think the instruction is erroneous in this respect, and as it directs a verdict the error could not be cured by other instructions. The instruction is also objectionable in that it seems to assume the existence of the presumption .that the insured is dead. This was the issue which the jury was required to decide, but the instruction says, that the jury should find for plaintiffs if they believed from the evidence that the facts and circumstances shown did not rebut and overcome that presumption. While the words, “if any” are used, the effect of the instruction is to ignore the principal defense of defendant and to tell the jury that the evidence established a presumption of death and that the verdict should be against defendant unless that presumption was rebutted. The instruction is confusing and, we think, clearly erroneous.

The fourth instruction given at the request of plaintiffs also in effect directs a verdict and omits therefrom the defense that the insured’s absence is explained.

A similar instruction was condemned in Gayton v. Equitable Life Assur. Society, 245 Ill. App. 432. In that case the court said that the instruction was argumentative and erroneous because it told the jury that even though the insured had some reason for leaving home, nevertheless if he had been absent for seven years and if his family and relatives had been unable to find him during that time, the jury was authorized to find that he was dead. There, as here, there was evidence tending to show that the insured left because he was about to be accused of a crime, and the court said:

“The instruction entirely deprives the defendant of the defense that the insured was a criminal; that he had a strong motive for disappearing and that he had planned to escape the consequences of his crime.”

It was urged there (as plaintiff insists here) that a similar instruction was held not to be erroneous in Policemen’s Benevolent Ass’n v. Ryce, 213 Ill. 9. The court in that case did not hold the instruction free from error but on the contrary that the error was cured by other instructions given.

Defendant insists that the court erred in refusing its requested instruction No. 5. That instruction, too, directs a verdict and includes as one of the necessary elements that the insured must have left home “with the expectation of returning thereto within a short time.” Such a finding was not essential to a recovery by plaintiffs, and for that reason we think the court did not err in refusing defendant’s request to give the instruction.

This case is exceedingly close upon the facts, and in such case it is important that the instructions to the jury he accurate and clear.

For the error in giving plaintiffs’ instructions Nos. 3 and.4, the judgment will he reversed and the cause remanded.

Reversed and remanded.

O’Connor and McSubely, JJ., concur.


author: Mr. Justice McSurely

text:
    Elise Graham, Appellee, v. City of Chicago, Appellant.
    Gen. No. 34,810.

      Heard in the first divi-
    sion of this court for the first district at the December term, 1930.
    Opinion filed March 23, 1931.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Matilda Fenberg, Assistant City Attorney, and Boy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Walter J. Miller and Walter L. Wenger, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, while walking on the sidewalk on North Lawndale Avenue near Ohio Street, Chicago, slipped upon an icy place and received severe injuries. Upon trial of her action for damages she had a verdict for $16,000. From the judgment thereon defendant appeals.

The Byerson School is a public school in the city of Chicago with a playground extending from the school building to the north side of Ohio Street and the west side of Lawndale Avenue. A skating pond was constructed in the playground by erecting a clay embankment and flooding the enclosure with water which would freeze. The side of the embankment nearest Ohio and Lawndale was about a foot or more in height and about five feet from the respective sidewalks on those streets.

January 12, 1926, which was 13 days prior to the date of the accident to plaintiff, this pond was flooded with water by firemen, according to one witness. In flooding the pond the water overflowed across the sidewalk on Lawndale Avenue near Ohio Street and froze, making a strip of ice about two or more feet wide, extending clear across the sidewalk. The accident happened January 25th at about 11 o’clock at night; the entire sidewalk, including the strip of ice, was covered with a light fall of snow. Apparently, there was no general condition of iciness on the streets or sidewalks. Plaintiff testified that before she stepped on the icy strip ‘1 it was nice walking ’ ’; that she did not see the ice under the snow, but stepping thereon slipped and fell with resulting injuries.

Defendant asserts that it was not negligent under the rule announced in certain cases to the effect that a city will not be held liable for mere slipperiness of a sidewalk occasioned by ice and snow; that it is liable only where the ice forms hillocks or ridges amounting to an obstruction which the city, after due notice, suffers to continue. Hobbs v. City of Chicago, 248 Ill. App. 183, and cases there cited. Defendant also invokes those cases where it has been held immaterial whether the slipperiness is caused by natural or artificial means. Miklaszewski v. City of Chicago, 194 Ill. App. 614; Metzger v. City of Chicago, 103 Ill. App. 605; Mareck v. City of Chicago, 89 Ill. App. 358.

In answer plaintiff presents the case of King v. Swanson, 216 Ill. App. 294, where it was held that the use made of the sidewalk by the defendant, who operated a laundry next to the sidewalk, rendered it unsafe and therefore he was responsible. This case was followed by Loyd v. City of East St. Louis, 235 Ill. App. 353, where a judgment against the city was affirmed on the ground that the slippery condition of the sidewalk was caused by the adjacent property owner, which condition the City of East St. Louis failed to abate, although having ample opportunity to do so. This case cited City of Muncie v. Hey, 164 Ind. 570, where it was held that, although the walks in the other parts of the city were slippery, the accident took place on ice negligently allowed to accumulate on the sidewalk. In Hubbard v. City of Wood River, 244 Ill. App. 414, the judgment against defendant was affirmed on the ground that the slippery walk was caused by water flowing from a leaking pipe which had frozen and which condition the defendant had permitted to remain. In discussing the claim that a city cannot be held liable for mere slipperiness of its walks and only when the ice or snow is in ridges forming an obstruction, the opinion said:

“It is difficult to perceive the ground for such a distinction. Of course, the distinction is based on the rule that there is no liability in case of slippery walks caused by freezing rain, but why should that rule apply? The conductor pipe casting water onto the walk where it will freeze must, of necessity, render the walk defective, and it can make no difference in the liability of the municipality whether, at the particular time, the ice is smooth or rough. 58 L. R. A. 324. The liability of a city for injuries resulting from the accumulation of ice upon a sidewalk is not confined to the cases where the ice is in hills or ridges. A city may be liable for an accident caused by reason of the slippery condition of its streets caused by the negligence of its officials, even where the ice and snow do not form into hills and ridges. Holbert v. City of Philadelphia, 221 Pa. 266, 70 Atl. 746; Magaha v. Hagerstown, 95 Md. 62, 51 Atl. 832; Boyland v. City of Parkersburg, 78 W. Va. 749, 90 S. E. 347.” See also 13 A. L. R. 37; Reedy v. St. Louis Brewing Ass’n, 161 Mo. 523.

These latter cases announce the rule applicable to the instant case. Here, the liability of defendant is predicated upon the affirmative act of the defendant through its agents in causing the overflow of the skating pond so as to cause an icy strip across the sidewalk. Manifestly, the situation does not come within the rule that the city will not be liable for icy and slippery conditions which are general. Here, the slippery condition was occasioned by the careless manner in which the’ skating pond was flooded across the sidewalk. Under such circumstances the city must be held responsible.

The jury could properly find that plaintiff was not guilty of contributory negligence. She had no difficulty in walking on the sidewalk before she stepped on this icy strip, and the light snow which covered it and the rest of the sidewalk concealed it from her sight. She had no reason to suspect its presence before she stepped on it. A pedestrian is not obliged to keep his eyes glued to a sidewalk, but may assume that it is in a reasonably safe condition. City of Chicago v. Babcock, 143 Ill. 358.

Defendant next argues that plaintiff failed to prove the contents of the statutory notice served upon it. The notice contained the statement that the attending physician was “Dr. Edwin Brucker, 4100 W. Madison Street, Chicago, Illinois.” When plaintiff fell some of the neighbors took her home and a doctor was called, but his name was not given by any witness, although they all agree that this doctor gave her only first aid. Plaintiff the next day was taken to the County Hospital and while there she was under the care of a Dr. Steinberg and a Dr. Kronenberg. Defendant argues that plaintiff, having named Dr. Brucker as the attending physician in her notice, has failed to prove the case made in her declaration, citing Hamilton Co. v. Channell Chemical Co., 327 Ill. 362, where it was held that there could be no recovery upon a declaration for not accepting goods where the proof shows that the goods were not manufactured or tendered to the buyer. This is manifestly not applicable to the instant case. In Frey v. City of Chicago, 330 Ill. 640, whether the plaintiff’s place of residence and the physician’s address were correctly given in the notice, were controverted questions of fact, to determine which evidence was necessary.

Here, there was no controversy as to anything contained in the notice nor as to the extent of plaintiff’s injuries nor the medical treatment given her. At most there was a variance between the statement in the notice as to the attending physician and the evidence. Defendant did not raise the point upon the trial. Under such circumstances the rule is that, not having raised the point in the trial court, it is too late to raise it upon review; that advantage may be taken of a variance upon appeal, it must appear that it was specifically pointed out in the trial court. City of Waukegan v. Sharafinski, 135 Ill. App. 436; Chicago, B. & Q. R. Co. v. Dickson, 143 Ill. 368.

If defendant had made the point upon the trial, slight evidence undoubtedly could have shown the connection of Dr. Brucker with the case. The name of this doctor also appears in the police report made when plaintiff was removed to the County Hospital. It is a reasonable inference that Dr. Brucker, whose name was inadvertently not given upon the trial, was the first doctor who saw plaintiff, but, had attention been called to this upon the trial, this undoubtedly could have been cleared up.

There is no reversible error in the record and the judgment is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


text:
    Thomas L. Owens, Plaintiff in Error, v. Union Bank of Chicago, Defendant in Error.
    Gen. No. 34,840.

      Heard in the first division of
    this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    R. Sebastian Rivera, for plaintiff in error; Clyde C. Fisher, of counsel.
    Millard R. Powers and Michael G-esas, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainant filed his bill seeking the cancellation of his contract with defendant for the purchase of an unimproved lot and to obtain the repayment of $1,085 with interest from the date of the contract. Defendant filed a general and special demurrer, which was sustained by the court, and complainant electing to stand by his bill it was dismissed. By this writ of error the reversal of this order is sought.

The gist of complainant’s bill is the alleged fraudulent representation made by defendant through an agent that the lot would be located in Calumet City.

The bill alleges that on July 1, 1925, complainant was approached by Charles G-. Schultheiss relative to the purchase of a piece of real estate located in Calumet City, Cook county, Illinois; that on July 8, complainant went with Schultheiss to Calumet City to look over certain unimproved real estate with the purpose of purchasing the same. Schultheiss told complainant the legal title to the real estate was in the defendant and that Frank Croissant was the sales agent of defendant and that he, Schultheiss, was employed by Croissant to solicit prospective purchasers of real estate. Complainant further alleged that on July 8 he was brought to the offices of Croissant, who represented himself to be and, as a matter of fact, was the agent of the defendant; that in an interview there had complainant informed Croissant that he would only buy the said lot if it was located in Calumet City; that thereupon Croissant assured complainant that the lot in question would be located in Calumet City. Complainant refused to accept this verbal assurance and Croissant thereupon informed him that it was within his (Croissant’s) knowledge that the real estate would be in Calumet City; that he was an expert in real estate and was well acquainted with the real estate he was selling and the lot in question, and that he, Croissant, knew from most definite sources that the lot he was offering to complainant would be in Calumet City; that the defendant corporation was back of each and every one of the statements made to complainant as aforesaid and that Croissant then and there agreed to 'insert in the contract immediately following the description of the real estate the words, “which will be in Calumet City,” and that thereupon these words were so inserted in the contract.

The bill further asserts that thereupon, relying upon these representations and the representations that Croissant had inside information that the real estate would be located in Calumet City, the complainant on said date executed the contract with defendant for the purchase of the real estate for a consideration of $2,200, of which complainant paid $725 in cash, the balance to be paid in monthly instalments of $40 each on the 10th day of each month thereafter.

The bill further alleged that all of the aforesaid representations made by Croissant were false and fraudulent and were known to the defendant to be false and fraudulent and were made with the fraudulent intent and for the purpose of obtaining complainant’s signature to the contract and complainant’s money; that complainant believed every one of said representations to be true and relied upon them and would never have paid the money except that he relied upon said representations.

The bill further alleged that the real estate is not located in Calumet City and it was never intended nor attempted to have said real estate located therein and that Croissant, as agent for the defendant, had no knowledge from most definite sources or from any sources that said real estate would be in Calumet City.

The bill further alleged that in the latter part of February, 1926, complainant met with a serious automobile accident causing him great expense and that as a result of this, arrangements were made with Croissant to discontinue the monthly payments on the contract, but thereafter complainant called at the office of defendant and made a payment of $40 which brought the total payments made by complainant on the contract up to $1,085.

The bill also alleged that on November 2, 1926, complainant learned facts tending to show that said real estate was about to be annexed to the Village of Lansing or had already been annexed to the Village of Lansing and that it could not be in Calumet City, and that up to that time he did not know and could not know that said real estate would be annexed to the Village of Lansing and that immediately upon learning the same he refused to make further payments on the contract. May 11, 1927, defendant sent to complainant by registered mail a “Declaration of Forfeiture” on account of the unpaid balance due on the contract; that thereupon complainant called at defendant’s office and informed defendant he would not make any further payments on the contract because he had learned that the real estate had been annexed to Lansing and could not therefore be located in Calumet City, in accordance with the terms of the contract, and thereafter on May 24, 1927, complainant served notice on the defendant that he had abrogated or rescinded the contract for this reason and tendered defendant a quitclaim deed of the real estate and at the same time demanded the return to him of the amounts paid under the contract.

As a general proposition a court of equity will relieve one from the results of a forfeiture, especially where the contract has been induced by fraud. Pomeroy on Equity Jurisprudence, vol. I, para. 451. Fraud is a recognized subject of general equity jurisdiction and there is no ground upon which the jurisdiction is so readily entertained and so freely exercised as that of fraud. Wright v. McKinney, 287 Ill. 529. It is immaterial whether a party misrepresenting a material fact which induced a contract knows it to be false or makes the assertion of a fact without knowing it to be true, for the affirmation of what one does not know to be true is unjustifiable, and if another acts upon the faith of it he who induced the action must sutler and not the other. Borders v. Kattleman, 142 Ill. 96, and cases there cited.

The misrepresentation of the location of real estate which has induced a purchaser to enter into a contract has been generally recognized by the courts as ground for voiding the contract. In Kerts v. Dunlop, 13 Ind. 277, a bill was filed to rescind a contract for the purchase of lots and a demurrer to the same was sustained. The seller made representations that the City of Indianapolis had agreed to open up a street which would lead directly to the lots. The bill alleged that these representations were false and were made for the express purpose of deceiving the prospective purchaser. The order of the lower court sustaining the demurrer was overruled, the court holding that the representation as to the street was material. In Day v. Taylor, 123 Wash. 286, the court canceled a contract on the ground of a misrepresentation that certain streets had been opened and dedicated to the public. In Grismore v. Utley, 159 Ark. 479, it was held that the false representation that the land was not in a certain drainage district to which the prospective purchaser had objected, when as a matter of fact it was within the district, was ground for rescission of the contract. Upon the point made that it was the duty of the would-be purchaser to examine the records to see where the land was located, the court held: “It would be inequitable to say to any one who, in good faith, has relied upon the express declaration of another that the land he owned was not in a drainage district, that he might have learned its falsity by going to the county seat and examining the records. The obligation of ordinary good faith precludes the vendor from seeking shelter under such a claim. . . . It is enough that the purchaser believed the statement, that inquiry was necessary to discover the truth, and that he executed the contract on the strength of the representation.” Similar circumstances were involved in Jackson v. Meinhardt, 99 Cal. App. 283, 278 Pac. 462, the court saying: “A prospective purchaser of land may rely upon the owner’s positive statements with respect to its location, . . . and the purchaser relying on such representations buys the lot and is damaged thereby, he may maintain an action based upon fraud, either for damages or rescission.”

This opinion also said that the purchaser is not required to search the records to ascertain the true location of the lot, quoting from 46 C. J. 545:

“He who practices bad faith ought not to be permitted to invoke the doctrine of constructive or imputed notice to aid his wrongdoing. ’ ’

Defendant argues that the representation that the lot in question would be in Calumet City was nothing more than a prophecy or a statement of what might happen in the future and therefore not a misrepresentation of an existing fact. However, it is the law that the fact concerning which the statement is made refers to the future does not of itself prevent the misrepresentation from being fraudulent. The statement of a matter in the future, if affirmed as a fact, may amount to a fraudulent misrepresentation, as well as a statement of a fact as existing at present. Pomeroy on Equity Jurisprudence, vol. II, para. 877. This rule was recognized in Miller v. Sutliff, 241 Ill. 521, the opinion saying: “While a statement of a matter in the future, if affirmed as a fact, may amount to a fraudulent misrepresentation, it must amount to an assertion of a fact and not an agreement to do something in the future.” The rule is also stated in Bielby v. Bielby, 333 Ill. 478.

The representation which complainant’s bill alleges was fraudulently made by Croissant was that he knew that the real estate would be in Calumet City; that he was well acquainted with the facts and knew from definite sources that it would be in Calumet City. We are of the opinion that this comes within the rule laid down in the above cited cases. It was not a prophecy of future developments nor a representation merely boosting the property. It was a representation as to the location of the property which Croissant is alleged to have made as based upon his knowledge of the facts. “When one assumes to have knowledge on a subject of which another may well be ignorant, and knowingly makes false statements regarding it, upon which the other relies, to his injury, we do not think it lies with him to say that the party who took his word and relied upon it, was guilty of negligence in so doing, so as to be precluded from recovering compensation for the injury.” Eaton v. Winnie, 20 Mich. 156; Hicks v. Stevens, 121 Ill. 186.

Defendant argues that complainant was guilty of laches. In Allmon v. Salem Bldg. & Loan Ass’n, 275 Ill. 336, it was held that a court of equity will apply the doctrine of laches in denial of relief only where from all the circumstances to grant relief would presumptively be unjust. In the instant case the alleged fraud was discovered in November, 1926. Immediately thereafter complainant refused to make further payments. In the following May he received a declaration of forfeiture upon the contract from the defendant and thereupon called at defendant’s office demanding a return of the payments made for the reason that the real estate had been annexed to the Village of Lansing, and in the same month served notice that he had elected to rescind the contract. The bill alleges that between the date of serving this notice and the filing of the bill, which was on January 24, 1928, complainant at the request of defendant on several occasions called at defendant’s office with a view of arriving at an agreement in the matter and was informed by defendant that complainant’s rights were being considered by one authority and that a final decision was forthcoming very soon. One who has caused the delay cannot complain of laches on the part of the other party.

There is some question suggested as to whether Croissant acted within the scope of his employment. The bill alleged that Croissant was, in fact, the general agent of defendant for the purpose of disposing of this tract of land and the contract itself is signed by defendant. This was sufficient showing of the agency of Croissant.

We are inclined to hold that the allegations of the bill, which are admitted by the demurrer, sufficiently present a case calling for the consideration of a court of equity. The demurrer should have been overruled. The decree dismissing the bill is therefore reversed and the cause is remanded for further directions consistent with what we have said in this opinion.

Reversed and remanded.

Matchett, P. J., and O’Connor, J., concur.


text:
    The People of the State of Illinois ex rel. The Metropolitan Casualty Insurance Company of New York, Appellee, v. Calumet National Bank, Defendant. Chester D. Masters, Appellant.
    Gen. No. 34,892.

      Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Rehearing denied April 6, 1931.
    Kirkland, Fleming, Green & Martin, P. J. Murphy, Gerald Kyan and John 0. Melaniphy, for appellant; Egbert N. Golding and John 0. Melaniphy, of counsel.

      Silber, Isaacs, Silber & Woley, for appellee; Frederick D. Silber, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal Chester D. Masters (hereafter called respondent) seeks the reversal of an order finding him in contempt of court and committing him to the county jail of Cook county until such time as he offers to appear and testify and produce certain books, documents, etc., concerning the suit of The Metropolitan Casualty Insurance Company of New York, a corporation, (hereafter called complainant) against Calumet National Bank, a corporation (hereafter called defendant).

The original proceedings, out of which grew this contempt, arose on a bill filed August 21, 1930, by the complainant, alleging that defendant was the trustee under a certain indenture of trust which provided for the issue of $250,000 in bonds, on which the complainant was the guarantor; that it was the duty of defendant not to authenticate the bonds until the issuer, a building corporation, had performed all conditions precedent, which included the building of a 12-story apartment building at Flint, Michigan; that the defendant notwithstanding its duty had so authenticated the bonds and delivered them to the Illinois Standard Mortgage Company, a corporation, the underwriter of the issue; that by virtue of a conspiracy with the defendant and persons named in the bill the proceeds of the sale of the bond issue were applied to the payment of a personal indebtedness to the defendant due from a man by the name of Fred C. Bristol; that the issuer of the bonds was insolvent and that the building had not been built and as a result the complainant, as guarantor of the principal and accrued interest of the entire bond issue, found itself compelled to pay the bonds and had paid some of them and was obligated to pay the remainder and had absolutely no security of any kind. Complainant prayed an accounting from the defendant.

Attached to the bill of complaint was a copy of the underwriting agreement, which provides that the underwriter was authorized to purchase the bond issue for $250,000, and was further authorized to pay to the trustee from the proceeds such sums as might be necessary to pay interest and was authorized to hold at all times sufficient funds out of the proceeds to complete the building.

August 26, 1930, and before the cause was at issue, the complainant caused Edward J. Yogel, a notary public, to issue a subpoena duces tecum against the defendant requiring it to produce on September 3rd certain papers duly specified in the subpoena touching the matter alleged in the bill. The subpoena was served upon the respondent, the vice president and trust officer of the defendant.. The respondent did not appear before the notary or respond to the subpoena. September 13, the notary filed a petition in the superior court setting forth the above facts and on that date an order was entered by the court directing that a subpoena duces tecum be issued out of the clerk’s office, as prayed by complainant. Such subpoena was issued calling for the production of the same papers as in the subpoena issued by the notary, but this subpoena issued by the court ran to the respondent as vice president and trust officer of the defendant. This subpoena was served upon him and on September 17, he appeared before the notary and answered certain questions, namely, that he was the* vice president, trust officer and director of the defendant bank. In answer to the questions as to the papers called for by the subpoena he said in substance that he stood mute and refused to answer except to say that he had not produced any of the papers called for.

September 19, defendant filed a demurrer to the bill, challenging the right of complainant to maintain its suit in equity and asserting that the damages, if any, were liquidated and that the suit should have been at law.

September 25, a transcript of the proceedings before the notary was duly certified to the court and complainant petitioned the court to enter an order directing the respondent to answer the questions asked before the notary and to produce the papers called for by the subpoena. Respondent filed an answer to the petition asserting that the order entered by the court directed merely that a subpoena duces tecum issue, and was not a subpoena that he should testify; that no notice had been served upon defendant of the taking of the deposition, as required by section 24 of the Evidence Act, Cahill’s St. ch. 51, if 24; that the cause was not at issue and there had been no showing that it was necessary to produce the documents called for by the subpoena; that the documents were the property of the defendant and that respondent had no legal right to remove them from the rightful possession of the defendant.

October 6,1930, the court entered an order requiring the respondent to appear before the notary on October 9 to answer questions and to produce the said books and papers. On this last date respondent failed to appear. His attorneys were present when this order was entered, although from a subsequent answer filed by him it appears that he was not present at the time and was not notified that this order was entered. On October 9 the respondent not appearing, the notary continued the taking of depositions until October 14, and complainant procured from the clerk of the superior court another subpoena duces tecum in all respects like the former subpoena. This was served upon respondent, requiring him to appear October 14, which he failed to do. •

Subsequently, complainant filed a petition setting forth the above facts and asking for a rule to show cause, Pursuant to the rule, the respondent filed a verified answer, in which he repeated, in substance, his first answer, questioning the authority of the court to issue the order and asserting that he did not know until after October 9 that he had been ordered to appear on that date before the notary; also denying the power of the clerk of the court to issue the last subpoena of October 10. There was a hearing upon the petition and answer and the court thereupon adjudged that respondent was in contempt and he was ordered committed to the county jail of Cook county to be there kept until he offers to appear and testify at such time and place as the court may direct and to produce and bring with him the books and documents described in the subpoena duces tecum.

Respondent’s first point is that, while the demurrer was pending the cause was not at issue and that under section 9 of the Evidence Act (Cahill’s St. ch. 51, fí 9) books or writings may not be produced by the opposite party unless they contain evidence “pertinent to the issue,” citing Lester v. People, 150 Ill. 408; Carden v. Ensminger, 329 Ill. 612; and Wynn v. Taylor, 109 Ill. App. 603. To this complainant replies that this is not a proceeding under section 9, but under section 24 of the Evidence Act; that under this latter section it is unnecessary that there should be an issue and no showing of the necessity or pertinency of the evidence is required. It was held in Wynn v. Taylor, 109 Ill. App. 603, following the earlier cases, that section 9 was intended to obviate the necessity for a bill of discovery. The notice to produce books under this section must be based upon some showing by affidavit that the production of- the documents was necessary and pertinent to the issue. In Lester v. People, 150 Ill. 408, it was held that the application for the production of the documents should be denied unless a showing was made that the evidence sought or books required contained evidence pertinent to the issue. To the same effect was First Nat. Bank v. Mansfield, 48 Ill. 494.

The instant attempt to procure the testimony of the respondent before a notary public was clearly not under section 9 but was under section 24 of the Evidence Act. This provides, in substance, that when the testimony of any witness residing or being within the State shall be necessary in any suit in chancery, the party wishing to use the same may cause the deposition of such witness to be taken before any notary public or other named officials on giving certain notice. It is the familiar statute under which depositions in chancery cases are taken. In Schmidt v. Cooper, 274 Ill. 243 (affirming 195 Ill. App. 531), after an extended discussion of this section, it was held that:

“Our statute gives a complainant a right to take depositions to prove the averments of his bill before issue formed.”

And further the opinion said: “Necessarily, if complainant has the right there must be power in the court to enforce the right, and there is no ground for distinction, in the exercise of the power, between a case where testimony is necessary after issue is formed or before. To deny such power would render a court impotent and deny the power to secure testimony in any case or at any stage of any case. The statute permits the taking of depositions either before or after issue is formed, but if a witness refuses to appear and testify, an order is necessary to enable the court to punish the witness for contempt, whether the deposition is taken before issue formed or upon a reference to the master after issue.” See also Hill v. Jeffery Co., 292 Ill. 490, in which the opinion says that it was “for the party to determine whether there was cause for taking the deposition. . . .

“The statute has declared under what conditions a deposition may be taken. ... So long as the party is within the terms of the law there is no authority for the investigation of his motives.” To the same effect are Doyle v. Wiley, 15 Ill. 576; Harding v. American Glucose Co., 182 Ill. 551.

People v. Bushworth, 294 Ill. 455, cited by respondent, is not in conflict. There it was held that under section 36 of the Evidence Act the refusal to give testimony before a commissioner in Chicago who was appointed by a Canadian court could be punished in the local circuit court since the amendment to section 36 made in 1919. Puterbaugh v. Smith, 131 Ill. 199, declared a portion of section 36 unconstitutional, but this was prior to the amendment of 1919.

This question of whether a party is entitled to take a deposition without any showing of necessity or materiality was the subject of consideration by this court in the recent case of Pennsylvania Tank Line v. Jordan, number 34854, opinion filed March 2, 1931, where we held that such showing was not necessary, following Schmidt v. Cooper, 274 Ill. 243, and cases above cited.

In that case we also considered a further point made by respondent, namely, that while it was in form a chancery case, yet the bill showed that complainant should have brought its suit at law. We there held that the bill made out a prima facie case in chancery and that this was sufficient to give the right to complainant to proceed under section 24. We will not pass upon the demurrability of the instant bill in this court before the trial court has done so. Furthermore, the instant bill prays for an accounting, which is peculiarly within the jurisdiction of the chancery court.

Respondent says there was no order of court authorizing the clerk to issue a subpoena calling for his appearance on October 14. We hold that there was no necessity for procuring another order. Such order had already been entered September 13, authorizing the clerk to issue a subpoena, and there would be no necessity for filing another petition and procuring another order for the same thing.

It is argued that the order of the court entered September 13 did not authorize the taking of the testimony of the respondent but only to produce papers. The definition of a subpoena duces tecum given by Bouvier (3rd revision), vol. Ill, page 3165, is: “A writ or process of the same kind as the subpoena ad testificandum, including a clause requiring the witness to bring with him and produce to the court books, papers, etc., in his hands, tending to elucidate the matter in issue. ’ ’

It would be a strained construction to say that the command of a subpoena duces tecum could be complied with by the witness merely producing the documents called for and departing. Furthermore, the subpoena issued by the clerk of the court pursuant to the order called upon the respondent to testify and give evidence and also to produce the papers mentioned.

The proper practice was pursued in this case in issuing the subpoena to the vice president and trust officer of the corporation, as it is a well known principle that corporations can act and testify only through its officers. In re Bolster, 59 Wash. 655, 110 Pac. 547, 29 L. R. A. (N. S.) 716, where the president and vice president of a corporation were subpoenaed to produce books and papers of the corporation, but the witness refused on the ground that they contained trade secrets of the corporation and were privileged, it was held that the witness should be compelled to appear and testify and to produce the books and records of the corporation. The opinion quoted from Wertheim v. Continental Ry. & Trust Co., 15 Fed. 716, as follows: “It may be inconvenient, and sometimes embarrassing, to the managers of a corporation to require its books and papers to be taken from its office and exhibited to third persons, but it is also inconvenient and often onerous to individuals to require them to do the same thing. Considerations of inconvenience must give way to the paramount right of litigants to resort to evidence which it may be in the power of witnesses to produce, and without which grave interests might be jeoparded, and the administration of justice thwarted.”

A similar question was raised in Wilson v. United States, 221 U. S. 361. In the opinion written by Mr. Justice Hughes it was said:

“Where the documents of a corporation are sought, the practice has been to subpoena the officer who has them in his custody. But there would seem to be no reason why the subpoena duces tecum should not be directed to the corporation itself.” The first subpoena in the instant case was to the Calumet National Bank, the defendant. The opinion in Wilson v. United States, 221 U. S. 361, further said: “A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt.” See also Dreier v. United States, 221 U. S. 394.

Counsel for respondent characterized this as a “fishing expedition.” We do not think so. The documents and papers described in the subpoena duces tecum were all material to the allegations of the bill of complaint.

Other objections are made by respondent which are not of substantial importance. The whole record leaves no doubt whatever that it was the disposition of the respondent to refuse to produce the documents ■ or to attempt to do so or to give any testimony concerning the same. The proceedings followed the requirements of sections 24 and 36 of the Evidence Act. The finding of the court that respondent was guilty of contempt was fully justified and the order is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Presiding Justice Wilson

text:
    First District.
    Emma Stut, appellee, v. James H. Hooper, appellant.
    Gen. No. 33,998.
    Heard in the third division of this court for the first district at the December term, 1929.
    Opinion filed January 28, 1931.
    James H. Hooper, pro se. No appearance for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Sarah Smargon, appellee, v. David Ellis and S. Ellis, appellants.
    Gen. No. 34,008.
    Heard in the third division of this court for the first district at the December term, 1929.
    Opinion filed January 28, 1931.
    Isadore Kaplan and Grossberg, Lyon & Brill, for appellants. Gallagher, Shulman & Abrams, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Frank E. Davidson, appellant, v. Wood Equipment Company, appellee.
    Gen. No. 34,102.
    Heard in the third division of this court for the first district at the February term, 1930.
    Friend, J., not participating.
    Opinion filed January 28, 1931.
    Walter S. Holden, for appellant. Montgomery, Hart, Pritchard & Herriott, for Illinois Society of Architects; Walter S. Holden, Norman H. Pritchard and Victor C. Milliken, of counsel. C. T. B. Goodspeed and Alfred R. Bates, for appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Ollie Sanford, plaintiff in error.
    Gen. No. 34,370.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed January 28, 1931.
    Rehearing denied February 9, 1931.
    Harris B. Gaines and Fleetwood M. McCoy, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.