text:
    Duncan Lumber Company, Appellee, v. Leonard Lumber Company, Appellant.
    Gen. No. 32,091.
    1. Set-off, counterclaim and recoupment — right to counterclaim, for unliquidated damages not connected with original contract. A counterclaim for unliquidated damages and not connected with the contract between the parties to the original suit is properly stricken.
    2. Set-off, counterclaim and recoupment — when contracts for sale of lumber on different days do not relate to each other. A counterclaim relating to a contract for the sale of certain lumber by plaintiff to defendant on a specified date which is complete in itself does not relate to plaintiff’s claim under a contract for a similar sale on a different date, the amount due on plaintiff’s contract claim being admitted by the defendant.
    3. Set-off, counterclaim and recoupment — right to set. off claim for unliquidated damages against claim of nonresident. A nonresident corporation bringing suit in this State cannot be held in a plea of set-off to respond by reason of such nonresidence for a claim of unliquidated damages unrelated to plaintiff’s cause of action.

      4. Set-off, counterclaim and recoupment — origin of right to plead set-off. The right to plead a set-off is a creature of statute and unknown to the common law.
    5. Set-off, counterclaim and recoupment — when damages for breach of contract of sale are unliquidated. Damages for a breach of contract of sale that are arrived at by computing the difference between the contract price and the market value of the goods are unliquidated for the purpose of .set-off.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. C. F. McKinley, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Affirmed.
    Opinion filed February 9, 1928.
    Solomon P. Roderick and Leonard J. Handel, for appellant; Austin L. Wyman, of counsel.
    Herbert A. Schryver, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action of assumpsit brought in the municipal court of Chicago by the plaintiff, Duncan Lumber Company, a corporation, against Leonard Lumber Company, a corporation. The plaintiff sets forth in its statement of claim that on February 19, 1926, it sold to defendant certain lumber specifically set forth, at prices therein detailed, and for deliveries on dates therein specified, and claiming due from defendant for such lumber the sum of $1,219.53.

The affidavit of plaintiff’s claim, supporting the averments of the statement of claim, claimed the amount above mentioned as due to it.

Defendant appeared and on July 15, 1927, by leave of court, filed an amended affidavit of merits and set-off instanter. In such affidavit of merits defendant set forth that defendant contracted and became liable for the indebtedness mentioned in plaintiff’s statement of claim, and that the same has never been paid, but further states that plaintiff is indebted to defendant for the difference between its claim and that of defendant’s set-off in the sum of $2,690.39 with interest, etc.

In its amended statement of claim of set-off, defendant avers that on February 2, 1926, the plaintiff entered into a contract with defendant to sell defendant certain lumber therein set forth to be delivered one carload March 15, 1926, one May 15, 1926, and one July 15, 1926, at the price of $37.50 per thousand feet, f. o. b. Chicago, but plaintiff refused to deliver said lumber or any part of it upon demand made therefor; that by reason of plaintiff’s refusal to deliver said lumber defendant was compelled to and did purchase lumber of the same grade, quantity and quality as provided by a written contract between the parties for each of said three carloads of lumber, and that the difference between the market and the contract price paid by defendant for such lumber, after deducting the amount of plaintiff’s claim, was $2,690.39.

On motion the trial court struck the counterclaim of defendant and its affidavit of merits from the files for the reason that the counterclaim was for unliquidated damages and unconnected with the contract between the parties to the original suit. The defendant, electing to stand by its set-off and counterclaim, was defaulted and the damages of plaintiff assessed at the sum of $1,219.53. After overruling defendant’s motion in arrest of judgment, judgment for that amount was entered, and defendant brings the record here for our review.

It is apparent from the pleadings that the plaintiff seeks to enforce in this suit its claim against defendant under a contract entered into between the parties for the sale of certain lumber dated February 19, 1926, and defendant’s set-off and counterclaim relate to a contract for the sale of certain lumber by plaintiff to defendant of date February 2, 1926. That contract is complete in itself and has no relation whatever to the contract embraced in plaintiff’s suit against defendant herein.

We think it patent that the counterclaim of defendant was in no way related to that of plaintiff as set forth in its statement of claim, the amount due thereunder being admitted by defendant in its affidavit of merits. There were two separate and distinct transactions, neither depending upon the other for their fulfillment in any way. In argument, defendant tacitly admits that its set-off is for damages that are unliquidated, and that notwithstanding that fact, the set-off may be maintained in-this action because the plaintiff corporation is nonresident of the State of Illinois and is a foreign corporation, and not licensed to do business in the State of Illinois, nor has it any office or agent within the State. And in support of such contention counsel rely upon General Platers Supply Co. v. L’Hommedieu & Sons Co., 228 Ill. App. 201. We do not think that case, supra, is applicable to the condition in the instant case. That case was tried “solely upon the issue of accord and satisfaction.” In the case, supra, we adopt the reasoning of Mr. Presiding Justice McSurely, where he states:

The general rule is that unliquidated damages cannot be set off in an action of this kind, but defendant cites certain decisions of this court apparently holding that where a nonresident plaintiff brings an action at law against a resident defendant,' the defendant may assert a claim of set-off even for unliquidated damages.
“The decisions of this court have occasioned some uncertainty as to the law on this proposition. One of the first cases touching this question, decided by this branch of the court, was Ideal Coated Paper Co. v. Cupples Envelope Co., 169 Ill. App. 484. Reference to that opinion shows, however, that the decision turned upon whether or not the claim of set-off was for unliquidated damages, and it was there definitely held that the claim involved was for liquidated damages and a proper subject of set-off. In Nissly v. Wainer, 211 Ill. App. 254, it was held that the set-off should be regarded in the nature of liquidated damages. In both of these opinions certain language was used indicating a favorable disposition towards the argument that unliquidated damages might be set off by a resident defendant against a nonresident plaintiff, and in Guenther v. Miller, 222 Ill. App. 653, it was so held. However, in Hammans v. Powell Meyers Lumber Co., 220 Ill. App. 196, it seems to be decided otherwise, although the question was not directly involved, for it appears from the opinion that both parties, plaintiff and defendant, were nonresidents of Illinois. In Gates Co. v. Armstrong Tire & Vulcanizing Co., 226 Ill. App. 633, while inclining to folloiv the Guenther case, supra, we held that defendant’s set-off was for liquidated damages. We cannot consider this point as definitely established by any reported decisions in this State. There is unanimity as to what the law should be, and in Wisconsin the legislature has by statute declared that where the plaintiff is a nonresident, the defendant may assert any cause of action whatever arising within the State and existing at the commencement of the action. ’ ’

Neither by the foregoing opinion nor in the cases therein cited is it established that the doctrine of this State is that a nonresident corporation bringing suit within this jurisdiction can be held in a plea of set-off to respond by reason of such nonresidence for both liquidated and unliquidated claims. Furthermore, the decision of the court was not based upon the reasoning above quoted, the court saying: “There is, however, another and firmer basis which requires a reversal of the judgment. We are of the opinion that the greater weight of the evidence supported the defense of accord and satisfaction,” Mr. Justice Matchett concurring in part simply upon the theory that the judgment should be reversed “because the greater weight of the evidence tended to show an accord and satisfaction.”

We are referred to Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 240 Ill. App. 216, in which some aspects are similar to the case at bar, that case being disputed contracts for coal, while in this case the subject of the differences of the parties is confined to lumber. However, that case is dissimilar to the instant case. We hold in the case at bar that the contract set up in the counterclaim did not grow out of the contract counted upon in plaintiff’s statement of claim, that it is a separate and distinct undertaking and complete in itself, and we further hold that the set-off arises out of a claim in which the damages are unliquidated, and if the Sterling-Midland Coal Co. case, supra, is in conflict with this holding, we join Mr. Presiding Justice Matchett in his dissent to the opinion in that case. The right to plead a set-off is a creature of the statute and unknown to the common law.

In Turnbull Joice Lumber Co. v. Chicago Lumber & Coal Co., 152 Ill. App. 347, it was held that claims for unliquidated damages growing out of transactions not connected with the subject matter of the contract sued on are not proper subjects of set-off, and in that case it was further held that notwithstanding damages may be arrived at by computing the difference between the contract price and the market value, they are none the less unliquidated. In this case the late Mr. Justice Smith, in his opinion said:

“From the stipulation it appears that the controversy between the parties arises, not on the items constituting the claim of the plaintiff, but upon the items of the defendant’s set-off. * * * The trial court was correct in ruling that the several claims were for unliquidated damages growing out of transactions not connected in any way with the subject-matter or contracts sued upon by the plaintiff and were not proper subject-matter of set-off in the suit. This is the well-settled law in this State. Clause v. Bullock Printing Press Co., 118 Ill. 612; Robinson v. Hibbs, 48 id. 408; DeForrest v. Oder, 42 id. 500.”

This language is equally applicable in the instant case.

There are no decisions of our Supreme Court, of which we have any knowledge, holding that where a nonresident plaintiff brings suit in any court of this State against a resident defendant, he may set off in such action any demand which he may have against such plaintiff on the sole ground of the nonresidence of the plaintiff, whether the damages arising from such counterclaim are liquidated or unliquidated. Neither are we aware of any decision of our Supreme Court holding that a claim for unliquidated damages unrelated to a plaintiff’s cause of action can be set off in such suit.

There being no discoverable error in the record before us, the judgment of the municipal court is affirmed.

Affirmed.

Taylor, P. J., and Wilson J., concur.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    George J. Annes, Appellee, v. Carolan, Graham, Hoffman, Inc., Appellant.
    Gen. No. 32,131.
    1. Insurance — liability of insurance agent on insurance binder disclosing the principal. A person insured against robbery under a binder agreement which refers to the insurer as Lloyd’s of London, and which is signed in such name by an agent, cannot hold such agent liable for a loss on the theory that it was acting for an undisclosed principal.
    2. Insurance — Lloyd’s of London as not an unknown prinocipal. Lloyd’s of London is a body of underwriters that is known in insurance circles all over the world, and a person obtaining insurance from such body through an agent cannot claim that the agent was acting for an undisclosed principal on the ground that Lloyd’s of London is unknown.

      3. Appeal and error — entry of judgment for appellant upon a reversal. The Appellate Court may enter a judgment for a defendant on reversing a judgment for plaintiff which was entered on a directed verdict.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Harry C. Stuttle, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Reversed and judgment here for defendant.
    Opinion filed February 9, 1928.
    Rehearing denied February 21, 1928.
    Jay Stough and George F. Carolan, for appellant.
    Wetten, Pegler & Dale and Richard H. Mather, for appellee; James P. Haffner, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This action was brought in assumpsit on what is known to the insurance fraternity as a “binder agreement” by which the plaintiff, George J. Annes, was indemnified by “Lloyd’s of London” against the loss by robbery of one diamond ring valued at $2,000. The declaration consisted of one count, to which defendant filed seven pleas, among which was one of the general issue, and another averring that the defendant was not liable to the plaintiff for the reason that, in all that it did, it acted as the agent of Lloyd’s of London. To the last plea plaintiff replied that “although the defendant in everything that it did and in all its transactions with the plaintiff, acted as agent of 'Lloyd’s of London,’ yet said 'Lloyd’s of London’ or ‘Underwriters of Lloyd’s, London’ are persons or corporations unknown to the plaintiff.” Other issues were made by other pleas which are not necessary to be considered in the conclusion to which we have arrived in this case.

While plaintiff did not set forth in haec verba the binder agreement, it attached a copy thereof to the declaration. The theory of plaintiff is that the defendant is liable because he was acting for an undisclosed principal. All the evidence in the record on this subject refutes such contention. The binder agreement starts out thus:

“Binder Issued For Account Of Underwriters at Lloyd’s London.
Chicago, Illinois, January 28, 1925.
“In consideration of the stipulations contained herein and Fifty and no/100 Dollars, Underwriters at Lloyd’s London, are bound to George J. Annes from twelve o’clock noon of January 22, 1925, until twelve o’clock noon of January 22, 1926, in the sum of Two Thousand One Hundred Eighty-seven Dollars against direct loss or damage as per specifications in form attached hereto for not exceeding the above amount to the following described property, viz.: One 3 5/8 ICarat Whole Gold Diamond Ring, $2,000.00 against all risks and in all situations,” etc.
This binder agreement was signed “Carolan, Graham, Hoffman, Inc., by Jos. Penn Carolan.”
Indorsed on the reverse of the binder is the following :
“It is hereby understood and agreed that the first Fifty Dollars ($50) of each loss will be paid by the assured. All other conditions remaining unchanged. Attached to and forming a part of Binder No. 52.
(Signed) Lloyd’s of London, Carolan, Graham, Hoffman, Inc., By Jos. Penn Carolan.”
There further appears on said binder the following:
“Binder issued for account of Underwriters at Lloyd’s London. Issued to George J. Annes, from January 22, 1925, to January 22, 1926.”
Plaintiff introduced in evidence the binder „agreement with all its indorsements thereon, showing inter alia the matters above set out.

At the close of the evidence defendant moved for a directed verdict in its favor, which was denied. Whereupon plaintiff moved for an instructed verdict in his favor for $2,000, which the court heeded and gave. After making the usual motions the court entered judgment upon the directed verdict for $2,000, and defendant brings the. cause here by appeal for review.

There is no evidence in this record that defendant represented a principal which it did not disclose to plaintiff. The binder, wherever the insurance company is mentioned, is always “Lloyd’s of London,” and there is no evidence to contradict the fact that the defendant was the agent of Lloyd’s of London. It was Lloyd’s of London who were bound by the binder issued to the plaintiff, not the defendant. With this evidence before plaintiff, he cannot consistently be heard to claim that the principal of defendant was not disclosed to him in all the dealings which the defendant had with him on behalf of Lloyd’s of London.

Lloyd’s of London is a body of underwriters with its headquarters in London, England, that is known in insurance circles the world around. It is therefore idle in the light of the undisputed facts for plaintiff to claim that defendant was acting for an undisclosed principal.

In Stone v. Kreis, 202 Ill. App. 43, the court said:

“ ‘Where an agent discloses the fact-of his agency, or where the other party knows at the time that he is acting as such agent, the latter will not be liable, unless he binds himself to be responsible.’ St. Louis Southwestern Ry. Co. v. White Limber Co., 169 Ill. App. 482, 483; Yuckman v. Considine, 191 Ill. App. 192.”

In Durham v. Stubbings, 111 Ill. App. 10, the court said:

“A contract made for the principal by his agent or attorney in fact is the contract of the principal and not of the agent or attorney in fact, and where the fact of his agency is known to the party with whom he is contracting, and he acts within the scope of his authority, the agent incurs no responsibility.”

There was no contractual relationship between the parties to this action, either express or arising by implication from the evidence, and the plaintiff has no claim whatever against the defendant. Defendant acted openly as agent of Lloyd’s of London, and the court therefore erred in instructing the verdict found in the record. Therefore the judgment of the superior court is reversed and the judgment being that of the court on an instruction to the jury, judgment is entered here in favor of defendant.

Reversed and judgment here for defendant.

Taylor, P. J., and Wilson, J., concur.


author:
Mr. Justice Wilson
      Holdom, J.,

text:
    Otto Stein, Administrator of the Estate of Evelyn Stein, Deceased, Appellant, v. West Chicago Park Commissioners, Appellee.
    Gen. No. 32,112.
    1. Municipal corporations — public and private functions. Municipal corporations have a dual character, the one public and the other private, and exercise correspondingly twofold functions and duties.
    2. Municipal corporations — liability for negligence when acting in sovereign capacity for general public. A municipal corporation is not liable for the nonuser or misuser of powers of a public and general character which are exercised by virtue of attributes of sovereignty delegated to it for the welfare and protection of its inhabitants or the general public.
    3. Municipal corporations — liability for negligence when acting in private capacity. A municipal corporation when acting in its private capacity may incur liability by reason of its negligence or failure to perform its duties in a proper and careful manner.
    4. Parks and public grounds — lagoon as public nuisance as affecting liability of parle commissioners for negligence. The West Chicago Park Commissioners cannot be held liable for negligence in maintaining an ordinary lagoon on the theory that the lagoon-is a public nuisance, since lagoons in parks are too well recognized as means of decoration and recreation to be considered as public nuisances.
    5. Parks and public grounds — liability of West Chicago Pa/rTc Commissioners for negligence. The West Chicago Park Commissioners are a municipal corporation created by the legislature as a separate entity, and, considering the purpose for which it was organized, namely, for the health, welfare and enjoyment of the general public, is not liable on the ground of respondeat superior for the negligence of its servants and agents.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Affirmed.
    Opinion filed February 9, 1928.
    Sissman & Sissman, for appellant.
    Daniel A. Roberts, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

The plaintiff, Otto Stein, administrator of the estate of Evelyn Stein, deceased, filed his declaration and complains of the West Chicago Parle Commissioners of a plea of trespass on the case. The declaration consists of two counts. The first count charges that on, to wit, the 31st day of October, 1925, the defendant, under the authority vested in it by the laws of the State of Illinois, had control, management and supervision of a park system in the town of West Chicago, a part of the city of Chicago, and particularly that part known as Douglas Park; that the defendant erected and maintained various conveniences, comforts and means for diversion for the convenience of the general public, and, among other things, created and maintained a small body of water, commonly designated as a lagoon or pond, to be used for boating and swimming in summer and skating during the winter season; that it should have been known to the defendant that it was an attraction for children, particularly as a place for skating during the winter season, and that it was its duty to take all precautionary measures required by reasonable prudence to guard against dangers which might arise because of insufficient thickness of the ice, and to warn the unwary against such danger by proper signs; that the defendant disregarded its duty in this regard and failed to provide placards or warnings as to the danger of walking on such ice; that plaintiff’s decedent; an infant of, to wit, 10 years of age, was walking through the park seeking diversion and amusement, and, while in the exercise of care and caution for her owm safety, was attracted by the ice and went upon it; that it gave way and broke and decedent was precipitated into the water and was drowned. It further charges the appointment of plaintiff as administrator, and names the next of kin surviving said decedent, consisting of the father and mother and certain brothers and sisters, and seeks damages in the amount of $10,000. The second count is practically the same as the first, except that the charge of negligence is that it was the duty of the defendant to provide a watchman or a guard at the lagoon, for the purpose of apprising people of the danger. To this declaration a demurrer was filed and sustained, and, the plaintiff electing to stand by his declaration, judgment was entered against the plaintiff for costs, to the entry of which judgment plaintiff duly excepted and prayed an appeal to this court.

The act incorporating the West Chicago Park Commissioners, approved February 27, 1869, provides that “seven persons, resident freeholders and qualified voters of said town (of West Chicago), who shall be designated by the Governor of the State of Illinois, together with their successors, shall be and they are hereby constituted a board of public park commissioners for the town of West Chicago, to be known under the name of the West Chicago Park Commissioners.” Under this act the board is made a body politic and corporate, and among the powers given it are, to govern, manage and direct all parks authorized by the act; to lay out, regulate and improve the same; to pass ordinances for the government of the same; to levy assessments on all property deemed by them'to be benefited; to appoint a police force, etc., and generally, in regard to the parks, to possess necessary requisite powers for the purpose of managing said parks;-to acquire by condemnation, or-otherwise, the title in trust, etc., as public pleasure grounds, the land required, the total cost of the parks to be assessed on the property benefited; to forbid any horse racing, gambling or obnoxious amusements within. 400 feet of the park; and to borrow money and pledge the credit of the town of West Chicago for the repayment of same. All vacancies occurring in the board were to be filled by appointment of the governor. The Supreme Court in the case of Wilcox v. People ex rel. Lipe, 90 Ill. 186, in its opinion at page 192, says :

“The members of the Board of West Chicago Park Commissioners are agents, by whom, in part, the people of the State carry on the government. Their functions are essentially political, and concern the State at large, although they are to be discharged within the town of West Chicago. By the decisions of this court, this board of park commissioners 'is held to be á quasi municipal corporation, a ‘corporate authority’ in whom it was competent for the legislature to vest the power to assess and collect taxes within the park district created. And whether tested by the decision in the Bunn case, or by the constitutional definition, we cannot doubt that these park commissioners come fully within the term ‘officers.’ ”

The Supreme Court of this State, later in the case of West Chicago Park Com’rs v. City of Chicago, 152 Ill. 392, holds that the West Chicago Park Commissioners hold their office and exist as a municipal corporation, and that the parks and boulevards constructed by the park board are for the public generally as well as for the public in that immediate vicinity, and also that it is a municipal corporation and not a quasi-municipal corporation, as announced in the case of Wilcox v. People ex rel. Lipe, supra, and that in the management and control of the park property, the jurisdiction of the park board is exclusive.

It is a well-recognized principle that municipal corporations have a dual character, the one public and the other private, and exercise correspondingly twofold functions and duties. On the one hand, its powers are of a public and general character, to be exercised by virtue of certain attributes of sovereignty delegated to it for the welfare and protection of its inhabitants or the general public. On the other hand, its duties relate to those of special or private corporate purposes, for the accomplishment of which it acts through its proper officers or agents. In the first classification, its functions are political and governmental and no liability attaches to it under the common law, nor is it liable for the nonuser or misuser of its power. When acting in its private capacity, however, it may incur liability by reason of its negligence or failure to perform its duties in a proper and careful manner. 43 C. J. 921; Bedtke v. City of Chicago, 240 Ill. App. 493. The act creating the West Chicago Park Commissioners, a municipal corporation, while it provided for the right to raise revenue for the purpose of maintaining and operating the park system under its control, did not make any provision for the raising of revenue for the purpose of paying judgments against it by reason of its acts of omission or commission, resulting in injury to individuals upon its property. There is a line' of decisions, of which several have been cited by counsel in their briefs, to the effect that a city maintaining a public playground or park is liable for the acts of its officers or agents in the course of their employment. There is another line of decisions holding to the contrary. The well-defined distinction between cases of this character necessarily resolves itself into the, question of whether or not, in the management and operation of a public park, a municipal corporation is acting in a private or governmental capacity. Under the powers granted to the West Chicago Park Commissioners, they have no functions or duties other than those expressly provided for by the act, and those duties pertain only to the running and management of its park system. It is a municipality carved out of the city of Chicago, and created by the legislature for a definite and specific purpose, not only for those living within the West Park district but for the public generally, and its duties involved the question of providing outdoor spaces for the inhabitants of the city and State, for the benefit of the general public, and for its health, comfort and enjoyment, and in this regard we believe that its duties bring it well within the definition of a municipal corporation acting for the benefit of the public generally. Its officers are appointed by the governor and not elected by the people in the district in which it lies, and it is therefore under the control of the State and not of the inhabitants of its district.

This court had occasion to pass upon the question of the liability of this particular municipality in an action where an employee of the municipality had been injured, and it was charged in the declaration in that case that his injury was due to the negligence of the West Chicago Park Commissioners. The case referred to was Backer v. West Chicago Park Com’rs, 66 Ill. App. 507. The court in its opinion at page 515 says:

“In the case of the West Park Commissioners, as in the case of the Drainage Commissioners, considered in 135 Ill., no funds or means are furnished the West Park Commissioners "with which to pay damages occasioned to individuals by the negligent acts of such commissioners, and there is no express statutory requirement that the municipality shall be liable for such torts. True, the commissioners have authority to raise certain sums of money by taxation, but such money is a trust fund required to be expended in the government, maintenance and improvement of the parks, boulevards and pleasurewavs, which parks, etc., exist, not for the benefit of the inhabitants of the municipality alone, but for the recreation, health and benefit of the public, and are ‘free to all persons forever. ’
“The doctrine of respondeat superior is founded upon the maxim qui facit per alium, facit per se.
“In the present case it is the State, which, through commissioners appointed by the governor, responsible to and removable by him and no one else, is doing the work of creating and maintaining parks, boulevards and pleasure grounds. The municipality pays the expense of the work thus done, but it has no directive voice, either as to what shall be done or who shall be employed to do it. However inattentive or remiss the commissioners may be, however negligent, so that damage or injury from their acts results to individuals, the municipality is without remedy; it can only appeal to the sovereign power by whom the commissioners are appointed, and such sovereign will do as to it seems best.
“For this and other reasons, we do not think this action can be maintained against the West Chicago Park Commissioners, sued as the Board of West Park Commissioners. ’ ’

The case of Holt v. City of Moline, 196 Ill. App. 235, was a case somewhat similar in principle and yet different, in that the defendant was the City of .Moline, which was in control and management of its own park system. A declaration was filed charging the system with negligence, in the maintenance and operation of its parks, by reason of which Holt, the plaintiff, was injured. It must be remembered that in this case the park was created and maintained by the city, and in that regard differed from the case at bar, because in the case at bar the park district was created and maintained under and by virtue of the State legislature. The court, in the Holt case, refused to extend the responsibility of the city beyond its liability for the care and maintenance of the roads and highways within the parks, and in its opinion, at page 237, says:

“We are of the opinion that a city is not required by law to keep every part of a public park safe for public travel. Certain parts of a public park should be kept in a safe condition for public travel, but there often are in such a park, ponds, lakes, knolls, ravines and forests not intended and not understood by the public to be intended for public travel; and machinery and appliances with which a park is kept in order may very reasonably be stored in some part thereof. It is not sufficient for a declaration to aver that a particular duty rested upon a defendant, but it must state the facts from which the law will raise that duty. ’ ’

The Supreme Court of Michigan in the case of Heino v. City of Grand Rapids, 202 Mich. 363, after denying plaintiff a right to recover for personal injury, in its opinion, at page 376, says:

“It is said imputed negligence is a matter of public policy, subject to legislative regulation and ‘it is for the legislature to determine how far, if at all, a body whose negligence, if it is so-called, is imputed, and in no sense actual, shall be made subject to suit for the misconduct of its employees.’ O’Leary v. Board of Fire and Water Com’rs, supra. No right of action conferred by statute is applicable here. The constitutionally .authorized function this municipality was exercising was without private gain to the corporation or to individuals, for purposes essentially public and of a beneficial character in furtherance of the common welfare in harmony with the general policy of the State and was in its nature a governmental activity, whether it be put upon the ground of health, education, charity, social betterment by furnishing the people at largg free advantages for wholesome recreation and entertainment, or all of them.”

We believe the rule announced in the foregoing decision to be sound, and particularly sound in the case at bar, because of what we have said of the creation of this municipal district for the sole purpose of its use by the general public, as a park system, and with no other functions or powers than those given it by the act of its creation by the State legislature. To the same effect is Caughlan v. City of Omaha, 103 Neb. 726.

It is argued at some length in the brief by counsel for the plaintiff that this lagoon or pond in question was a public nuisance, but with this we cannot agree. Ponds and lagoons in parks have become too well recognized as means of decoration and recreation to be considered as public nuisances. The declaration contains no averment that the father and mother were without fault in permitting a minor child to be in the park and upon the grounds in question, and there is some question whether this should not have been negatived in order to permit a recovery on their behalf. But in the view- we take of this- case, this decision is based upon the broader ground that the West Chicago Park Commissioners, a municipal corporation, created as it is by the State legislature, as a separate entity, and considering the purpose for which it was organized, namely, for the health, welfare and enjoyment of the general public, is not liable on the ground of respondeat superior for the negligence of its servants and agents.

For the reasons announced in this opinion, the judgment of the superior court is affirmed.

Judgment affirmed.

Holdom, J.,

concurs.

Mr. Presiding Justice Taylor specially concurring: I concur, but not on the ground that such a_ municipal corporation is not in any way liable for negligence. Bedtke v. City of Chicago, 240 Ill. App. 493. This court said in that case:

“In our judgment, bearing in mind that the present ill-defined doctrine seems to have arisen from a misconception of early law, the ordinary principles of the law pertaining to torts ought to apply to a municipal corporation; in other words, such a corporation, like any other principal, should be liable for the torts of its agents, and the distinction between governmental and ministerial functions, used in determining the liability of a municipal corporation for negligence in affirmative conduct, should be abandoned. 24 Yale Law journal 229; 4 Dillon, Mun. Corp. p. 3002.” We quoted therein with approval the following language: “In the undertaking of an affirmative course of conduct it is immaterial that the duty being performed is a public one from which the municipality derives no profit. Liability should be based upon the exaction of the law that everyone, in the performance of an affirmative course of conduct, must at his peril measure up to a standard of due care.”

There being no difference, in my judgment, between one municipal corporation and another, as regards lia^ bility in tort, whether the corporation runs a park system, a sanitary district, or a city, in the instant case I concur in the majority opinion solely on the ground that the declaration failed to allege sufficient facts to make out a cause of action in tort.


author: Mr. Justice Wilson

text:
    The People of the State of Illinois ex rel. J. Kentner Elliott, Appellee, v. Logan D. Wallace et al., Appellants.
    Gen. No. 32,195.
    1. Mandamus — to compel jury commissioners to place exempt person on jury list. Mandamus will not lie to compel the jury commissioners of Cook county to place on the jury list one who has the right to claim exemption from jury service, since the petitioner has not a clear right to the relief and it is not obligatory upon the commissioners to place him on the list, in view' of Cahill’s St. ch. 78, If 2.
    2. Constitutional law — constitutional rights not determined when constitutional question not involved. A court is not called upon to pass upon the question of whether or not the constitutional rights of a petitioner have been invaded by statutes where there is no constitutional question involved in the case.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Worth E. Caylor, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Reversed and remanded with directions.
    Opinion filed February 9, 1928.
    Alfred S. Austrian and David F. Rosenthal, for appellants.
    J. Kentner Elliott, pro se.

   Mr. Justice Wilson

delivered the opinion of the court.

The People of the State of Illinois ex rel. J. Kentner Elliott filed its petition for mandamus, alleging that J. Kentner Elliott was a citizen of the United States and the State of Illinois; and that for more than four years last past he had been an elector and legal voter of the city of Chicago, Cook county, Illinois; that the last government census shows that Cook county has more than 250,000' inhabitants; that by reason thereof said county comes within the meaning of- an act entitled, “An Act to authorize judges of courts of record to appoint jury commissioners and prescribing their powers and duties,” approved June 15, 1887, in force and effect July 1, 1887, as amended by an act approved June 9, 1897, and in force July 1, 1897, Cahill’s St. ch. 78, ¶ 26 et seq.; that by reason of said enactment, Cook county is authorized to have three jury commissioners ; and that the said Logan D. Wallace, Joseph H. Barnett and Bernard J. Mullaney were, at the time of the filing of the petition, the duly appointed and legally qualified jury commissioners in and for Cook county; that it is the duty of the said jury commissioners to prepare a list for jury service every four years, which shall be made up of electors between the ages of 21 and 65 years, possessing the necessary legal qualifications for jury duty; that the said respondents did, in the year 1924, prepare a list purporting to contain the names of such electors; that in said year the petitioner was an elector and possessed the necessary qualifications; and that on the 19th day of March, A. D.. 1926, he demanded of said jury commissioners that his name be placed on the jury list; that at the time he was a practicing attorney of the State of Illinois, but was not ineligible by reason thereof; and that he was not disqualified to act as a juror, but that the fact of his being a practicing attorney entitled him to exercise a personal privilege of exemption from service; that he is now, and was at that time, ready and willing to serve; that said jury commissioners arbitrarily and unlawfully deprived the petitioner, and persons in a similar classification to that of the petitioner, from serving, in that they refused to place his name and the names of those similarly situated, on the jury list, and, therefore, deprived the petitioner of the possibility of performing a public duty as a citizen of the State of Illinois.

The petition prays for a writ of mandamus directed to respondents commanding them to place his name upon the aforesaid jury list.

A demurrer was filed to this petition by the respondents and after a hearing upon said demurrer it was overruled. Respondents elected to stand by their demurrer and judgment accordingly was entered, directing that a writ of mandamus issue in accordance with the prayer of the petition. From this order respondents prayed an appeal to this court, and it is upon this record that the cause now comes before us for consideration.

Chapter 78 of Cahill’s Illinois Revised Statutes, 1927, entitled “Jurors” and being “An Act concerning jurors, and to repeal certain Acts therein named,” provides in section 1:

“That the county board of each county shall, at or before the time of its meeting, in September, in each year, or at any time thereafter, when necessary for the purposes of this Act, make a list of a sufficient number, not less than one-tenth of the legal voters of each town or precinct in the county, giving the place of residence of each name on the list, to be known as a jury list.”

Section 2 of the same act provides:

“Jurors in all counties in Illinois must have the legal qualifications herein prescribed, and shall be chosen a proportionate number from the residents of each town, or precinct, and such persons only as are:
“First. Inhabitants of the town, or precinct, not exempt from serving on juries.
“Second. Of the age of twenty-one (21) years, or upwards, and under sixty-five (65) years old.
í í In the possession of their natural faculties, and not infirm or decrepit.
“Fourth. Free from all legal exceptions, of fair character, of approved integrity, of sound judgment, well informed, and who understand the English language.”

Section 4 of said act provides:

“Exemptions — The following persons shall be exempt from serving as jurors, to-wit: The Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction, Attorney General, members of the General Assembly during their term of office, all judges of courts, all clerks of courts, sheriffs, coroners, postmasters, mail carriers, practicing attorneys, all officers of the United States, officiating ministers of the Gospel, school teachers during the term of school, practicing physicians, registered and assistant pharmacists, constant ferrymen, mayors of cities, policemen, active members of the fire department, embalmers, undertakers and funeral directors actively engaged in their business, and all persons actively employed upon the editorial or mechanical staffs and departments of any newspaper of general circulation printed and published in this State, all legally qualified veterinarians actively engaged in the practice of their profession: Provided, that every fireman who shall have faithfully and actively served as such in any volunteer fire department in any city of this State, for the term of seven years, may thereafter be exempt from serving on juries in all courts. ’ ’

The Act of 1887 relating to the selection of jurors in counties of over 250,000- inhabitants, as amended by the Act of June 9, 1897, provided for a jury commission and the manner of its selection; and provided that the jury list might be revised and amended annually in the discretion of the commissioners. In other words, the preparation of the jury list in counties' of the classification provided for in said enactment was placed in the hands of the jury commissioners instead of reposing in the county board, as provided in the original act concerning jurors; but in all respects their duties are practically the same as those of county commissioners, as provided for in the statutes. for counties of less than that number of inhabitants. Section 2, of chapter 78, expressly provides that the list shall be made up of jurors having the legal qualifications therein prescribed and “not exempt from serving-on juries” and that they shall he free from all legal exceptions. It will he seen from a reading of the act that it is not required that the commissioners shall place all names on the jury list, hut that said list shall include such names as are free from all legal exceptions and not exempt from serving on juries. Our Supreme Court in passing on this question in the case of People v. Boston, 309 Ill. 77, in its opinion at page 83, says:

“It is expected that the board of supervisors' will exercise judgment in the selection of the persons to he placed upon the jury list, and that it will select only adult persons under sixty-five years of age not exempt from serving on juries, and who understand the English language and are free from all legal exceptions, in possession of their natural faculties, of fair character, of approved integrity, of sound judgment, and well informed.”

Our Supreme Court again had occasion to pass on this question in the case of People v. Walsh, 322 Ill. 195. This question appears to have arisen.in that case on a motion to quash an indictment based solely on the ground that the grand jury had not been selected according to the statute. It was charged that the jury commissioners had been selecting the names from the city directory and from questionnaires; and that in the selection of the names it was customary to exclude the names of policemen, firemen, lawyers and doctors; and that all occupations not exempt from jury service, as provided by statute, were selected from the directory of the city, and from the poll books of the towns in Cook county outside of Chicago. The court in its opinion at page 200 says:

“We think that the jury commissioners made a reasonable and substantial compliance in selecting the jurors or persons qualified to serve as jurors in Cook county and making a list thereof. It is probably very true that there were quite a number of names that were competent to serve as jurors that were not placed on the list, but it is clearly apparent that it would have been a matter of impossibility to have literally complied with the provisions of the statute in making such a list. This court may take judicial knowledge that there are over three millions of people in the county of Cook. The evidence in the record shows that there are more than 550,000 registered male voters in Chicago; and, as we understand the record, the city directory aforesaid contains more than 100,000 more names of male persons between the ages of twenty-one and sixty years than there are registered male voters, and it is a fact that many of these persons are continually passing the age of sixty years and many others are dying and changing their residence and otherwise becoming ineligible for jury service, while others still are reaching the years of twenty-one and thus becoming eligible for jury service. We do not think it was the intent of the legislature to require the jury commissioners to accomplish an impossibility,— the obtaining of an absolutely complete list of all the male persons in Cook county that were eligible to jury duty. ’ ’

We have examined cases cited by counsel for relator and find that they do not conflict with the rule in this State. There would be no legal objection to a person, entitled to exemption, serving on a jury providing he had the other necessary legal qualifications; but it is' evident from long practice that the jury commissioners of Cook county have found that the summoning of persons entitled to exemption from jury service has resulted in a waste of time and money, because they have found that almost without exception these exemptions are claimed; and as a practical proposition it is useless to include the names of such on the jury list, when it is apparent that the exemption will be exercised by such persons, almost without exception. Moreover, by following the express prohibitions of the statute, they are not required to nor should they summon persons who are exempt from jury service. The first prohibition of section 2 of chapter 78 provides that they shall summon only such persons as are inhabitants of the town or precinct, not exempt from serving on juries. The selection and preparation of jury lists, in a county of the size of Cook, is a difficult and arduous task. The legislature has seen fit to provide for the procuring of such lists by the appointment of a commission, and has reposed in it the power of selection. Courts should not substitute their judgment in such matters, unless the petitioner shows a clear right to the relief, and the obligation on the part of such a body as the commissioners must be obligatory. In the case at bar, we do not believe that the petitioner shows such a clear right, nor do we believe that the duty is obligatory upon the commissioners to comply with such a request as that claimed in the petition.

Our Supreme Court in the case of People v. Cook County Com’rs, 176 Ill. 576, in its opinion at page 580, says:

“It is well settled that to entitle the petitioner to the writ of mandamus the petitioner must show not only a clear right to the acts sought to be enforced, but the defendants must have the right by law to do such acts, and if the action required is judicial and discretionary in its nature the court will only compel them to act, but never compel them to decide in a particular manner. In Board of Dental Examiners v. People ex rel. 123 Ill. 227, this court said (p. 241): ‘If a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise. They will interfere where it is clearly shown that the discretion is abused. ’ ’ ’

There is no constitutional question involved in this case and we are not called upon to pass upon the question of whether or not the constitutional rights of the petitioner have been invaded by the acts in question. In this opinion it is the purpose of this court to follow only the construction of the statute as it is before us, and under the construction of this particular enactment, as we see it, the board of jury commissioners was acting in a legal and lawful manner and in compliance with the statute, in preparing the jury lists in and for Cook county, without placing thereon the name of the petitioner.

For the reasons announced in this opinion, the judgment of the superior court is reversed and the cause remanded with directions to sustain the demurrer and dismiss the petition.

Reversed cmd remanded with directions.

Taylob, P. J., and Holdom, J., concur.'


author: Mr. Justice Boggs

text:
    Lake Villa Co-Operative Association, Appellant, v. Western Dairy Company, Appellee.
    Gen. No. 7,837.
    1. Corporations — party who asserted contract was ultra vires as estopped to claim contract is valid. The occupant of a. building under a contract to pay nominal rent and to purchase the building at the end of the term who avers, in its answer to a bill by the corporate owner for specific performance of the contract to purchase, that the contract was ultra vires, cannot insist, in action by the owner for use and occupation, that the owner was authorized to execute the contract.
    2. Landlord and tenant — rent for premises occupied under ultra vires contract. The occupant of a building under a contract to pay nominal rent and to purchase the building at the end of the term who, on a bill by the corporate owner for specific performance of the contract to purchase, repudiates the contract as ultra vires, cannot claim in an action by the owner for use and occupancy that the contract is in force to the extent of fixing the amount of the rent as the nominal sum, and is liable on the basis of quantum meruit.

    3. Landlord and tenant — liability for use and occupation under breached contract. One who occupies a building under a contract giving it the right to terminate the possession if a railroad company refuses to furnish cars, but who retains possession after a refusal of cars cannot refuse to pay for the use and occupancy because the ears were not furnished, although that fact may be considered in determining the rental value during the period cars were not furnished.
    4. Limitations of actions — new cause of action after commencement. A declaration for the use and occupancy of a building, which is filed upon the transfer to the common-law docket of a bill for the specific performance of a contract to purchase the building, states a different cause of action, and there can be no recovery back of five years prior to the filing of the declaration.
    Appeal by plaintiff from the Circuit Court of Lake county; the Hon. Arthur E. Fisher, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded.
    Opinion filed February 2, 1928.
    Hall & Hulse and Sidney H. Block, for appellant; Albert L. Hall and Sidney H. Block, of counsel.
    Barr, Barr & Corcoran and Follett & Follett, for appellee; Alfred E. Barr, Roy E. Barr and Egbert E. Corcoran, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellant, an Illinois corporation, organized for the buying, selling and handling of milk, butter, cream, etc., on May 23, 1911, entered into a contract with appellee to erect, adjacent to the Soo Line railroad a building to be used and occupied by appellee as a milk depot and for the manufacture of by-products of milk, the cost thereof to be borne by appellant. Appellant was also to procure a lease at a nominal rental on the ground to be occupied by said building, for a term of not less than 30 years; the contract also provided that appellee should pay appellant an annual rental of $1 per year, “with the further consideration that the said second party (appellee) shall use and occupy said building for dairy and milk shipping business and the manufacture of by-products of milk, for the term of five years”; that at the end of five years appellee was to purchase said building, etc., for the actual cost of construction including the cost of drainage and sewer facilities, etc., the amount of which cost would be submitted to appellee by a sworn statement at the time of the completion and delivery of said building; that appellee was to furnish said building with the necessary equipment for the business to be conducted by it.

It was further provided that “if the sewerage and drainage facilities and connections shall be cut off and interfered with in any way, then and in that event second party (appellee) shall be under no further obligation to continue its occupation of the said building for any purpose whatever, and said lease shall at once be concluded and ended and second party may remove all its equipment from the building.” It was further provided that in such event appellee should be under no obligation to purchase.

It was further agreed that appellee should pay “Borden prices” for the milk purchased at its plant; that appellant should build or cause to be built “in a proper and suitable location by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, without cost or charge to the Western Dairy'Company, a switch track connecting the main line of said railway company, suitable and of sufficient size and length to accommodate not less than three freight cars at one time, on which switch track said railway company will set for said Western Dairy Company, without charge, such freight cars for milk hauling or coal hauling, and said Western Dairy Company may unload such freight car or coal car at its convenience,” etc.; “that should said switch track not be built or should said railroad refuse or neglect to furnish and haul such cars for and furnish such privileges to the Western Dairy Company, that then this contract, at the option of the Western Dairy Company, shall at once become terminated.”

Said building was constructed and appellee took possession of the same on October 1, 1911, and remained in possession thereof up to November 26, 1916. The switch track was constructed, but some time during the year 1913, the railroad company refused to furnish car service for the alleged reason that the business did not warrant it. On October 17, 1916, appellee Avrote to the secretary of appellant the folloAving letter: “Inasmuch as we have been denied SAvitching privileges, we desire to notify you that we hereby terminate our contract with the association for the purchase of such property, according to its terms.”

On November 23, 1916, appellant filed a bill against appellee in the circuit court of Lake county, alleging, among other things, the execution of said contract, the construction of said building, the taking possession and occupation thereof by appellee, and that the cost of said construction, sewer facilities, etc., Avas $5,371.40; that said 5-year term expired October 1, 1916, and that appellee had failed to purchase said premises according to the provisions of said contract, praying a decree for specific performance.

An answer was filed to said bill as amended and the cause was referred to a special master to take and report the evidence, together with his conclusions of Irav and fact.

On February 1, 1919, by leave of court, appellee amended its answer as follows:

“This defendant states that on February 28, 1911, complainant was duly organized and incorporated under and by virtue of the laws of the State of Illinois; that the sole and only object for which complainant was incorporated was the buying, selling and hauling of milk, butter, cream "and by-products; * * * that the complainant had no power or authority to undertake, make, execute or enter into the alleged contract which the complainant herein is seeking the aid of this court to enforce, and that the making and executing of said alleged contract was ultra vires and beyond the corporate powers and authority of the complainant, and that the complainant at the time of the certain transaction with this defendant acted beyond the scope of its corporate powers and authority.”

On March 17, 1920, after a considerable amount of testimony had been taken and after said cause had been argued before the master, but before any report had been made, on the motion of appellant, the court transferred said cause to the common-law docket, stating in its order that “it finds the complainant has misconceived its remedy, and should be permitted to have said cause transferred from the chancery side to the law side of the court in accordance with section 40 of chapter 110 of the Eevised Statutes.”

Appellant thereupon filed its declaration consisting of three counts, the first and- second counts being indebitatus counts for use and occupancy of said premises, the third count being the consolidated common counts.

To said declaration appellee filed three pleas. The first plea sets forth the contract entered into between appellee and appellant, denies that the premises in question were held without a contract with reference to the rent to be paid therefor, and avers that appellee was to pay appellant as rental for said premises $1 per year. The second plea avers that appellant had, prior thereto, filed a bill on the chancery side of the court, praying specific performance of the contract in question. The third plea was a plea of the statute of limitations.

To the first plea appellant replied, among other things, “that the agreement set forth in said first plea of defendant, which alleged agreement is dated May 23,. 1911, was ultra vires and void. ’ ’ By leave of court, a second replication was filed to said first plea, that ‘ ‘ on the 1st day of February, 1919, the defendant Western Dairy Company, a corporation, in said proceeding, filed an amendment to said answer heretofore filed in said cause, in and by which answer it-contended that the agreement now set forth in defendant’s first plea herein was ultra vires and void,” praying judgment “if the said defendant ought to be admitted or received, against the said record, to plead that the said writing obligatory is valid and subsisting. ’ ’ Appellant filed a demurrer to the second plea and replied to the third plea, that the matters sued for accrued within five years next after the commencement of said suit.

Thereafter, by leave of court, appellee filed a plea of nul tiel corporation, and rejoinders to the replications to the first and second pleas of defendant, and a similiter to the replication to the third plea.

A jury was waived and a trial was had resulting in a finding and judgment in favor of appellant for the sum of $2. To reverse said judgment, this appeal is prosecuted.

Eight propositions of law were submitted by appellant, all of which were refused. Four propositions were submitted by appellee, all of which were held by the court. It will not be necessary for us to discuss the rulings of the court on said propositions, as what we have to say with reference to the rights of the parties herein will sufficiently dispose of the same.

It is contended on the part of counsel for appellant that appellee, having failed to carry out the provisions of said contract and having averred that appellant, under its articles of incorporation, was not authorized to enter into the contract in question and that the same was ultra vires; that appellant, having accepted appellee’s position in reference to the validity of said contract and abandoned its bill for specific performance, now has the right to maintain its suit for use and occupancy under Cahill’s St. ch. 80, If 1, for the reasonable and customary rental value of said premises, for the period from October 1, 1911, to October 1, 1916, and that appellee is now estopped to claim said contract to be valid and binding.

. As against this proposition, appellee insists that it occupied said premises under the above-mentioned contract, in and by which it was to pay $1 per year as rental for five years, and that it is not estopped, by its unsworn answer, from claiming said contract to be valid.

Appellee having averred in its answer that the contract in question was ultra vires appellant corporation, it is not now in a position to insist that appellant was authorized to execute said contract. 10 R. C. L. pp. 699-700-701; Schuyler County v. Missouri Bridge & Iron Co., 256 Ill. 348-352; Gibson v. Brown, 214 Ill 330-341; Jackson v. Browning, King & Co., 202 Ill. App. 197-198; Mahle v. Mahle, 211 Ill. App. 622-623.

Counsel for appellee also insists that, even though said contract be held to be ultra vires, appellant having constructed said building under the same and appellee having taken possession of and occupied said premises under said contract, it would still be in force to the extent of fixing the amount of rent to be paid therefor.

Certain authorities tend to support appellee’s theory, with reference to the amount of.rent to be paid under a voidable contract. Those cases would not apply here, as the rental specified in said agreement was merely nominal. The provision to pay said nominal rental is to be construed along with the contract of appellee to purchase said, premises. If appellee saw fit to occupy said premises up to the time it was to purchase the same without doing so, and takes the position that the contract is ultra vires and unenforceable, it is not in a position to insist.that it could only be required to pay said nominal rental. In that event ■appellant:would be allowed to recover for the use and occupancy of. said-premises on the basis • of quantum meruit. Warner v. Hale, 65 Ill. 395; Marr v. Ray, 151 Ill. 340; Matousek v. Quirici, 195 Ill. App. 391.

“It is well settled that where one party repudiates the contract and refuses longer to he bound by it, the injured party * * * may treat the contract as rescinded, and recover upon quantum meruit.” Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59-80.

Appellee further insists that said provision for the payment of rent was a “technical consideration only; the actual consideration from appellee was that it should equip, use and occupy the premises as a milk shipping plant, and buy milk offered it.”

It is true that, as a part of the consideration for said contract, appellee was to conduct the milk business provided for in said contract. It was also to purchase said premises. Appellee had the right under its contract, for the reasons specified therein, to terminate the same and to remove the fixtures installed by it. Appellant is entitled to recover for the use and occupation of said building, not taking into account the fixtures furnished and installed by appellee.

Appellee gave notice that it was terminating the contract and was electing not to purchase the premises, for the reason that the railroad company had refused to furnish cars, etc. The railroad ceased furnishing the cars in 1913, while appellee retained possession of said property and conducted its business therein up until November 26,1916. Appellee is therefore not in a position to refuse to pay for the use and occupancy of said premises on the ground that the railroad company had refused to furnish said cars. That fact might be taken into consideration in determining the rental value of said premises during the period said cars were not furnished.

It is next contended by counsel for appellee that in any event appellant cannot recover for more than five years preceding the date of the filing of appellant’s declaration. On the other hand, counsel for appellant insist that the bill for specific performance having been filed within five years from the accrual of the rent for the full term, the transferring of said cause to the common-law side of the docket would not bar a recovery of any of the rent in question.

There would be no right of recovery back of five years prior to the filing of said declaration. Said declaration stated a different cause of action from that set forth in the bill for specific performance. The bill for specific performance purported to be based on a valid contract, whereas the suit for use and occupancy is not on a contract, but is based on the statute, section one of chapter 80, Cahill’s Statutes. The evidence to support this declaration would be entirely different from evidence necessary to support the bill for specific performance. It was therefore a new cause of action. Cahill’s St. ch. 83, ¶ 16; Haldeman v. Schuh, 109 Ill. App. 259; Lakin v. South Side El. R. Co., 178 Ill. App. 176; Eylenfeldt v. Illinois Steel Co., 165 Ill. 185; Doyle v. City of Sycamore, 193 Ill. 501; South Chicago City R. Co. v: Kinnare, 216 Ill. 451, aff’g 117 Ill. App. 1; Maegerlein v. City of Chicago, 237 Ill. 159, aff’g 141 Ill. App. 414; Carlin v. City of Chicago, 262 Ill. 564; Milauskis v. Terminal R. Ass’n of St. Louis, 286 Ill. 547, aff’g 211 Ill. App. 120.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Beversed and remanded.


author: Mr. Presiding Justice Jett

text:
    Ethel Chester, Administratrix of the Estate of Alvin Burchard Chester, Deceased, Appellant, v. Chicago, Burlington & Quincy Railroad Company, Appellee.
    Gen. No. 7,780.
    1. Pleading — exclusion of count not supported by evidence. It is proper to exclude from the jury at the end of the evidence a count which is not supported by any evidence.
    2. Harmless and prejudicial errors — questioning witness whether he was receiving pay. Refusal to permit a witness to answer a question whether he was receiving pay was not reversible error.
    3. Examination of witnesses — improper test of recollection and accuracy of witness. The recollection of a witness and the accuracy of. his statements are improperly tested on cross-examination by a question as to whether or not his recollection was as clear upon one subject as it was upon another.
    4. Motor vehicles — instruction in collision case based on invalid ordinance limiting speed of railroad trains. In an action for damages resulting from the collision of an automobile with a railroad engine at a village crossing, an instruction for plaintiff based upon an ordinance limiting the speed of trains is properly refused, since such regulatory power is now exclusively vested in the commerce commission.
    5. Negligence — instruction defining contributory negligence as used in instructions when no instruction uses that term. An instruction correctly defining the term contributory negligence “as used in these instructions” is not objectionable, although said term is nowhere found in any of the instructions granted, where contributory negligence is an issue in the case.
    6. Motor vehicles — liability of railroad company from mere fact engine strikes automobile. The mere fact that a railroad engine struck the automobile which the deceased was driving at a village crossing does not render the railway company liable to respond in damages.
    7. Negligence — burden of proof. The burden is upon the plaintiff to prove by the greater weight of the evidence every fact necessary to establish a liability on the part of the defendant before there can be a recovery, and the burden is not upon the defendant to prove that he is not liable.
    8. Motor vehicles — objection to instruction as singling out facts. In an action for damages resulting from an automobile colliding with a railroad engine at a village crossing, an instruction that the mere fact that defendant’s ears struck the automobile does not render the company liable, and also stating the rule of the burden of proof, is not objectionable as singling out a particular fact or facts.
    9. Statutes — statute giving cities right to regulate speed of carriers as not repealing by implication statute giving exclusive right to commerce commission. Cahill’s St. eh. 24, 1f 65, subd. 21, giving municipalities the power to regulate the speed of common carriers within their limits, does not repeal by implication Cahill’s St. eh. 111a, If 76, under which the commerce commission has exclusive power in. such matters.
    Appeal by plaintiff from the Circuit Court of Du Page county; the Hon. William J. Fulton, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed February 6, 1928.
    Vail, Roe & Plamondon, for appellant.
    Alschuler, Putnam, Flannigen & Johnson, for appellee; J. C. James, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This suit was instituted by Ethel Chester, administratrix of the estate of Alvin Burchard Chester, deceased, appellant, against the Chicago, Burlington and Quincy Bailroad Company, appellee, to recover damages alleged to have been sustained by the next of kin of the said Alvin Burchard Chester, deceased, on account of his death by the negligence of appellee company at a railroad crossing.

For the purposes of this opinion the appellant will be called plaintiff and the appellee, defendant.

The amended declaration upon which the case was tried consists of 13 counts and negligence is charged on the part of the defendant company in the operation of its train which, struck the car in which the decedent was riding; the failure to comply with the statutory requirements in the ringing of a bell or the sounding of a whistle; in failing to have a gateman on duty to lower the gates at the crossing; in that its watchman on duty failed to warn decedent of the approaching train; in failing to have its watchman at the center of the intersection before the arrival of the train; in operating its train in excess of the 20-mile speed ordinance of the village of Downer’s Grove; in failing to comply with the village ordinance in relation to the operation of its gates; in failing to show a conspicuous light on the engine hauling the train; wanton and wilful negligence in operating its train at a high and unlawful rate of speed and wanton and wilful negligence in failing to warn decedent of the approaching train; and wanton and wilful negligence in failing to operate its train carefully and warn decedent of the approach of the train.

To the declaration the defendant pleaded the general issue. A trial was had and the jury returned a verdict for the defendant and this appeal followed.

The record discloses that the deceased was of the age of 17 years; that on the morning of December 27, 1925, around the hour of 5:30 o’clock he went to the place of business of his employer for whom he was working in the delivering of papers; he had his breakfast and went to a garage to get the car he used in his work; the garage was on the corner of Warren avenue and Main street in the village of Downer’s Grove, a village of some eight thousand population. The main street of said village crosses the tracks of the defendant at right angles. The decedent took the car out of the garage at about the hour of six o’clock. Shortly thereafter he drove the car down the main street in said village. He approached the crossing from the north. As the decedent attempted to cross the tracks of the defendant company the car which he was driving was struck by a train of the defendant and he lost his life.

It is the contention of the plaintiff that the verdict of the jury is against the weight of the evidence; that the court erred in overruling objections of the plaintiff to certain testimony offered by the defendant; that the court erred in refusing certain instructions requested by appellant relating to the wanton counts of the declaration and the effect of the speed ordinances of the village, and in giving certain instructions for the defendant; and in dismissing certain counts from the ' declaration.

On the trial of the cause the appellant introduced evidence tending to prove that the engine which struck the automobile in which the decedent was riding was running at the rate of 45 miles per hour; that the accident happened at about six-twenty in the morning at just about daylight; that there were gates at the. crossing and that these gates were up; that the automobile which the decedent xvas driving was coming from the north and that there were three main line tracks which passed over the highway at the crossing; that the train xvas running on the middle track, approaching from the xvest; that there xvas a flagman on the crossing; that the xvhistle on the locomotive xvas blown as it approached the crossing, txvo long and two short blasts; that the xvatchman or flagman was running east toward the center of the street with a stop sign in his hand, holding it up as a sign and shouting to the driver of the approaching automobile, and that at the time the decedent xvas some 30 feet north of and approaching the xvatchman on the crossing there xvas a clear viexv from the west so that one looking could see an approaching train for a distance of about one-fourth mile; that the light from the approaching train xxdiich struck decedent lit up the crossing some time before the train approached it.

On the part of the defendant evidence xvas introduced tending to prove that from a point 40 feet north of the middle track one on the crossing could see about a mile to the west, and that from a point 50 feet north of the middle track one on the crossing could see an approaching train for a distance of three-fourths of a mile; that from a point 60 feet north of the middle track looking toward the west there is nothing to obstruct the view; that the bell on the engine was ringing and the whistle blowing; that there was an electric headlight on the engine which was burning, and that the light was bright enough to enable an engineer to see an object about the size of a man 1,500 feet ahead of the engine; that there was a crossing flagman on the crossing; that he saw deceased coming while he was some distance north of the crossing before he turned into Main street, the street which crosses the railroad; that he had a stop sign in his hand, held it up, shook it and hollered to the driver of the automobile to stop but that the driver kept on coming; that the driver did not slacken his speed, but just before reaching the track on which the engine was coming turned toward the east; that when he first waved the stop sign at decedent he was approximately a distance of 90 feet from him; that he had a whistle which he used to warn people passing over the crossing and that he blew the whistle to warn deceased before displaying the stop sign.

We have examined the record to ascertain the facts of this unfortunate incident and after having done so we are not prepared to say that the verdict of the jury is manifestly against the weight of the evidence.

It is argued that the court erred at the conclusion of the evidence in excluding counts 12 and 13 from the consideration of the jury. Both of said counts are wanton counts. Count 12 charges that defendant wilfully and wantonly failed to warn the deceased of the approach of the engine which struck the automobile he was driving. The record discloses that during the progress of the trial counsel for plaintiff admitted that the bell on the engine was ringing, the evidence shows that the whistle was sounded and the bell ringing on the approaching train and in view of these facts the court did not commit any error in excluding from the consideration of the jury the twelfth count of the declaration.

The record also discloses that the plaintiff voluntarily dismissed out of the case count two which charged a failure to ring a bell or sound a whistle on the approaching engine because he was of the opinion that the bell was rung. What has been said relative to count 12 applies also to count 13. Count 11 charges wilfulness and wantonness in operating the tram at a high rate of speed. Count 11 remained in the declaration when the cause was submitted to the jury.

It is earnestly insisted by the plaintiff that the court permitted the witnesses Kleinfeldt and Johnson to testify to conclusion of fact. We have examined the record in this respect and read the questions put to the witnesses and the answers made by them and we are of the opinion that there is no foundation for the contention of appellant. The ruling of the court did not constitute any reversible error.

Complaint is made of the action of the court in not permitting the witness Johnson to state whether or not he was receiving pay. We think the court should have permitted the witness to answer the question but no reversible error was committed in the refusal. The court properly sustained an objection of the defendant to the question asked of Johnson as to whether or not his recollection was as clear upon one subject as it was upon others. The rule is that counsel upon cross-examination has a right to test the recollection of a witness and the accuracy of his statements but questions of the character here presented are not calculated to answer such test.

It is next urged that the court erred in refusing instruction number one offered by the plaintiff. This instruction told the jury that the decedent was entitled to assume that the rate of speed of the approaching train of the defendant company did not exceed the limit of 20 miles an hour prescribed by the ordinance of the village of Downer’s Grove and to operate the automobile which he was driving on the basis of that assumption in the absence of any evidence that deceased knew that the approaching train was running at a rate of speed in excess of 20 miles an hour. This instruction is based on the ordinance of Downer’s Grove limiting the rate of speed of trains. Under the holdings of this court in Corelis v. Chicago, B. & Q. R. Co., 244 Ill. App. 47-53, and Brundege v. Chicago, B. & Q. R. Co., 245 Ill. App. 440-443, cities and villages are now without power to enforce speed ordinances. In the case of the City of Witt v. Cleveland, C., C. & St. L. Ry. Co., 324 Ill. 494, the court held that the legislature has taken from cities and villages the power to enact or enforce an ordinance regulating the speed and operation of railroad trains. Under the rule as we understand it the court committed no error in refusing plaintiff’s instruction number one.

Defused instruction number two of plaintiff, complained of, was also based on the speed ordinance of the village of Downer’s Grove. What we have said relative to refused instruction number one equally applies to refused instruction number two offered by the plaintiff.

Plaintiff insists that the court erred in giving instruction number six on the part of the defendant. It is insisted that instruction six is erroneous in that it commented upon the term “contributory negligence” as used in the instructions and said term is nowhere found in any of the instructions given. Instruction six reads:

“The court further instructs the jury that the term ‘contributory negligence’ as used in these instructions, with reference to the conduct of the deceased, means the lack of that degree of care contributing to cause the injury which persons of like age, capacity and experience might be reasonably expected to naturally or ordinarily use in the same situation and under like circumstances.
“You are further instructed that the term ‘negligence’ as used in these instructions with reference to the conduct of deceased means the failure to exercise that degree of care and caution which persons of like age, capacity and experience might reasonably be expected to naturally and ordinarily use in the same situation and under like circumstances. ’ ’

Although the term “contributory negligence” was not used in any other instruction yet under the issues in this cause the court properly instructed the jury as to the definition of the term ‘ ‘ contributory negligence. ’ ’

It is also insisted that error was committed in giving defendant’s instruction number seven. It is as follows :

‘ ‘ The court instructs the jury that the mere fact that the defendant’s cars struck the automobile, which the deceased was driving, does not render defendant liable to respond in damages.
“The burden is not upon the defendant to prove that it is not liable in this case. The burden is upon the plaintiff to prove by the greater weight of the evidence every fact necessary to establish a liability on the part of the defendant before there can be a recovery in this case.”

The objections made by the appellant to appellee’s given instruction number seven are not tenable either because it inaccurately states the substantive law or that it singles out a particular fact or facts.

It is argued by plaintiff that the speed ordinance admitted in evidence is a valid exercise of the powers of the village by virtue of the act of the legislature of June 30, 1925. Sessions Laws of 1925, page 228-229, Cahill’s St. ch. 24, ¶ 65, subd. 21. By said act cities and villages were given the following powers: “To regulate the speed of horses and other animals, vehicles, cars and locomotives within the limits of the corporation.” The Act of June 30, 1925, was passed prior to the decision in City of Witt v. Chicago, C., C. & St. L. Ry. Co., 324 Ill. 494. The opinion in this cause was filed February 16, 1927. The court construed the Public Utilities Act of June 29, 1921, and in doing so among other things said: .

“While prior to January 1, 1914, cities in this State had power to pass ordinances regulating the speed of trains while pássing through such cities, the General Assembly by the passage of ‘An act to provide for the regulation of public utilities, ’ approved June 30, 1913, in force January 1, 1914, created the Public Utilities Commission, and by ‘ an act concerning public utilities, ’ approved June 29, 1921, in force July 1, 1921, (Laws of 1921, p. 702,) created the Commerce Commission and vested it with general supervision of all public utilities, including the power, by general or special orders, rules or regulations, or otherwise, to require every public utility to maintain and operate its plant, equipment or other'property in such manner ás to promote and safeguard the health and safety of its employees, passengers, customers and the public, and to this end to require the performance of any act which the health or safety of its employees, passengers, customers or the public may demand. (Laws of 1921, sec. 57, p. 733.) By this act the General Assembly, in its discretion, withdrew from cities and villages the power theretofore exercised by them with reference to the speed and operation of railway trains and such power is now vested in the Commerce Commission, another agency of the government. Village of Atwood v. Cincinnati, Indianapolis and Western Railroad Co., 316 Ill. 425; Northern Trust Co. v. Chicago Railways Co., 318 Id. 402.”

From the language used by the court it will be observed that the power contended for by the plaintiff by virtue of the Act of June 30, 1925, was vested in the commerce commission, another agency of the State and was withdrawn from cities and villages. Moreover, we have seen that the Public Utilities Act, Cahill’s St. ch. 111a, as it now exists was approved June 29, 1921, and became effective July 1, 1921. The day after this act was approved an amendatory act to the Cities and Villages Act was approved which went into force on July 1,1921, the same date as the Public Utilities Act. One of the provisions of this amendatory act, being subdivision 21 of paragraph 65 of article 5 of the Cities and Villages Act, Cahill’s St. ch. 24, ¶ 65, subd. 21, was as follows:

“To regulate the speed of horses and other animals, vehicles, cars and locomotives within the limits of the corporation. ’ ’
This amendment to the Cities and Villages Act which went in force on July 1, 1921, is in the same language as the amendment relied upon by the plaintiff as adopted by the legislature in 1925.

The attention of the Supreme Court was called to the amendatory act adopted in 1921 when the City of Witt case was before it. We are, therefore, not prepared to say that the Act of June 30, 1925, Cahill’s St. ch. 24, ¶ 65, subd. 21, as is insisted by the plaintiff, repealed by implication section 57 of the Act of June 29, 1921, Cahill’s St. ch. 11a, ¶ 76, being the Utilities Act, in view of what was said in the City of Witt case.

We have reached the above conclusion notwithstanding the fact that the ordinance in question relied upon by the plaintiff was past and became effective in September, 1925.

We conclude that no reversible error was committed by the trial court and the judgment of the circuit court of DuPage county will be affirmed.

Judgment affirmed.