author: Mr. Justice Bristow

text:
    Levi A. Huffman, Appellant, v. William E. Gould, Appellee.
    Gen. No. 10,049.

      Heard in this court at the October term, 1945.
    Opinion filed December 13, 1945.
    Opinion modified and rehearing denied February 6, 1946.
    Released for publication February 6, 1946.
    F. B. Brian and Harry C. Heyl, both of Peoria, and J. E. Richards, of Toulon, for appellant.
    Andrews & Andrews and Young & Young, all of Kewanee, and Joseph L. Shaw, of Geneseo, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

The appellant, Levi A. Huffman, filed his complaint July 20, 1939, consisting of two counts, against appellee, William E. Gould, for damages. Motions for directed verdict at the close of plaintiff’s evidence and at the close of all the evidence in the trial below, were denied. The jury returned a verdict in the sum of $14,700, and returned two special findings of malice. Motion by defendant for a new trial was denied, and a motion for judgment notwithstanding the verdict was allowed and judgment was rendered in favor of the defendant appellee and against the plaintiff appellant in bar of action and for costs. From this judgment, plaintiff has appealed to this court.

The first count of the amended third complaint charged wrongful release of a trust deed by appellee as successor in trust. It recited that a trust deed to a certain 54 acres of farm land was executed by one Joseph Leistner to secure payment of five certain notes, each in the amount of $500, and that the land was sold and conveyed to plaintiff. It recited that at the time of the purchase, plaintiff was required to make payment of the balance of the purchase price amounting to $3,750 to the bank of which appellee was an officer, because the bank was the owner of the notes. This count recited the duty of the trustee not to release the trust deed without payment or cancellation of the notes, and averred that the trustee wrongfully and fraudulently released the trust deed without paying the money received by him to the then holders of the notes and without having same cancelled. It recited that Bichard Naseef was then the holder and owner of the notes, and that after the same became due he foreclosed the trust deed and then acquired title to and obtained possession of said lands. The count further recited that after the foreclosure suit had been instituted that the defendant verbally assured plaintiff that the notes had been paid; that it was a misunderstanding between the trustee and Naseef which the trustee would straighten out; that the foreclosure suit would be dismissed; that plaintiff would not be injured; that he should spend no further money for attorney fees and that he should not bother further about the foreclosure suit. It alleged that plaintiff believed that the release was valid and relied upon said statements, assurances and promises of the defendant; that the release was fraudulent and void; and that as the result of the wrongful acts of the defendant in releasing the trust deed, the plaintiff lost the farm, all improvements he had placed upon same and $3,750 he had paid defendant on the purchase price, and also two houses and lots which he had deeded to Leistner as part of the original purchase price.

The second count realleged most of the foregoing allegations, and further charged that defendant did maliciously, fraudulently, unlawfully and wrongfully release the trust deed for his own use and benefit; that' he maliciously, fraudulently, unlawfully and wrongfully appropriated said payments of- money without the knowledge of plaintiff or Naseef; and that as the proximate result of the wrongful acts of defendant, plaintiff suffered the loss aforesaid.

The answer admitted a few of' the allegations, averred the lack of knowledge of some, and denied others. It set up the five year statute of limitations as a defense, and alleged that defendant had become a bankrupt and was discharged of liability by bankruptcy. Plaintiff replied that the statute of limitations was not a defense, nor was bankruptcy.

The record discloses the following set of facts which in the main are undisputed. William E. Gould, Samuel D. Burge and John Fischer, the original trustee, were partners engaged in trafficking in money and each were officers of their bank, the Savings Bank of Kewanee which expired on September 16, 1927.

In the spring of 1926, plaintiff was grading on the public highway -that passed in front of a 54 acre tract of land owned by Joseph Leistner. Hé learned that this land was for sale and inquired of Leistner the price he was asking. He was told by Leistner that he would have to see William E. Gould to whom he had relinquished all rights in the land. Soon thereafter Gould called upon the plaintiff at his home and after a course of bargaining, plaintiff purchased the little farm. He agreed to pay $3,750, his two houses, and shop, all of which had a trading value of $6,000. On May 19, 1926, plaintiff received a deed from Leistner, which deed was acknowledged by Samuel Burge, a notary public. Plaintiff made a down payment of $600 by indorsing over to Gould a certificate of deposit in that sum. Gould agreed to furnish plaintiff an abstract showing merchantable title. An abstract was prepared which the abstractor certified was to the bank.

Prior to the above negotiations between the parties to this litigation, to-wit: July 6, 1925, Joseph Leistner and Carrie Leistner, his wife, executed a deed of trust to the farm in question to John Fischer, trustee, to secure the payment of seven promissory notes in the sum of $500 each, all payable at the Savings Bank of Kewanee. This instrument which was notarized by Samuel Burgé, provided for the appointment of William E. Gould as successor to Fischer in the event of disqualification or death. Fischer afterward died on August 11, 1926. This trust deed was released by Gould on April 4, 1927 in which the acknowledgment by defendant as successor in trust was taken by Samuel Burge.

Gould delivered the abstract to Huffman who showed it to several laymen who told him it showed merchantable title. Gould was then given plaintiff’s check for $3,150 which he cashed. Plaintiff also offered to prove that Leistner had deeded to Gould the $6,000 worth of real estate that had been conveyed to Leistner by plaintiff as part of the purchase price for the farm. We think the court erred in refusing to admit the proffered proof. Vigus v. O’Bannon, 118 Ill. 334, 347.

It transpired that Bichard Naseef became the owner of five of the notes secured by the trust deed, he having paid the hank $2,500 for the same. It also appears that Gould or the bank paid Naseef some interest on these notes up to the time the bank closed. It further appears that Gould released the trust deed of record without the knowledge or authority of Naseef and without paying him anything on the principal. Consequently, Naseef on January 28, 1928 filed suit in the circuit court of- Henry county seeking to set aside the release of the trust deed and to foreclose the same. In this suit a decree was not entered until December 18, 1937 or nine years and eleven months after it was entered. Gould and Huffman were both made parties defendant to the proceeding.

On December 29,1930, a decree pro confesso was entered against Gould and the cause was referred to the master in chancery. After several hearings a decree was entered granting Naseef all relief sought in his complaint. The master’s deed to him was dated June 17,1938. Through a writ of assistance, Huffman was dispossessed of his farm on September 18,1938.

Paragraph 7 of the decree entered in this proceeding recited, “The court further finds that after the closing of. said Savings Bank of Kewanee and in the fall of the year of 1927, when the complainant herein applied to the defendant William E. Gould to know why he had released the trust deed before the complainant’s notes had been paid, that the said Gould thereupon tendered to complainant for security for said notes, five other notes signed by one George B. Cristie, but complainant finding that they are worthless offers to return them to Gould.”

Evidence was taken before the master in chancery on December 8, 1931, January 8 and 18, 1932. These hearings revealed to the plaintiff for the first time that Naseef was the owner of the notes and that they had not been paid. Plaintiff with his son Carl Levi Huffman then went to see Gould to ascertain what was wrong, and Gould said in effect — Never mind, my friend. There is some misunderstanding here. It will all be straightened out. You have nothing to worry about. Don’t bother about hiring a lawyer. Save your money. Go home and forget about it. — Gould told plaintiff in the same conversation that he had a great many financial losses and several lawsuits on his hands, and he had just completely overlooked this little item. After receiving these assurances, plaintiff went back to his farm and made substantial improvements on it. He built a cow barn, 40 by 20, installed a furnace and toilet in the home, and built a machine shed, 24 by 36.

Gould did not testify, in fact, he did not even appear at the trial. He relied then and here principally upon the defense that Huffman knew all the facts giving rise to his supposed cause of action in 1931, and not having instituted suit within five years, it is barred by the statute of limitations. It is argued in effect by Gould that the plaintiff, a confiding old man, should not have been so careless, gullible and trusting; that he should have known better than to continue reposing confidence in him.

To persuade a jury to swallow this defense was indeed a robust undertaking. The record clearly indicates that Gould was guilty of every charge made against him. That he was a cheat, a rascal, and a base scoundrel bent upon defrauding the unsuspecting, there is no dispute.

On behalf of appellee, there were two witnesses, the master in chancery and his reporter at the foreclosure proceeding’s. Their testimony concerned only the impeachment of plaintiff concerning a part of his testimony given at the foreclosure suit. Their testimony was that the plaintiff there stated that he had taken the money and left it at the bank for Leistner until the title was furnished. On cross-examination, the master admitted that appellant had also there stated that he had paid the balance of the money to Gould the next spring, ahead of time, that he had put it up in Mr. Gould’s bank to stay there until they gave him a good title. On rebuttal, appellant testified that if he ever had said that he put $3,750 in the Savings Bank, he had made a mistake; that he had put the money in the First National Bank, and had given a check for it to Gould, and that Gould had cashed the check.

The position of a trustee in a deed of trust, is one demanding honesty and fairness and competency. For such qualifications, he is selected by the parties. He is agreed upon as trustee by both debtor and creditor and becomes equally trustee for both. Such trustee is appointed by the debtor, derives all of his powers from him and he is trustee for the debtor. The relation imposes the duty of acting fairly, honestly and for the best interest of all parties. He must act with the utmost good faith with all parties having an interest in the property or fund and he must use all reasonable efforts to protect their interest. The foregoing rules were announced by the Supreme Court in the case of Ventres v. Cobb, 105 Ill. 33, 38, 39. The same principles were expressed in Wright v. Chandler, 180 Ill. App. 476, 478, 479. The trustee in a trust deed. is agent of both parties, and if he is guilty of a breach of trust he is responsible to the party injured, and he is not justified in releasing any security unless it be to the advantage of cestui que trust, and in so doing, the injured party may proceed against him in a court of law. Wertheimer v. Glanz, 277 Ill. App. 389, 392; Central Trust Co. of Illinois v. Owsley, 188 Ill. App. 505, 522.

Defendant, as such trustee, owed the duty of acting fairly to Joseph Leistner, the debtor, and the same, duty to Levi A. Huffman, appellant, who had derived title from Joseph Leistner. White v. Macqueen, 360 Ill. 236, 247, 248. The conduct of the trustee must be absolutely impartial between the parties he represents. Williamson v. Stone, 128 Ill. 129, 132; Gray v. Robertson, 174 Ill. 242, 250.

Appellant had the right to rely upon the implications of the actions of appellee that the release of the trust deed insured merchantable title in the lands; upon the truth of the statements that the Naseef notes had actually been paid; and upon the assurance that plaintiff would not be injured by the foreclosure proceeding and that he might safely go home and forget it. A relation of trust and confidence existed between appellant and appellee, and appellee was bound to pay over to Naseef the money received and mere concealment of such fact of collection as being for Naseef and not for the bank, could by a jury be found to amount to concealment. Vigus v. O’Bannon, 118 Ill. 334, 343-345. When one occupies such a position as appellee in this case, concealment weighs heavily against laches and estoppel. Pure Oil Co. v. Byrnes, 388 Ill. 26, 41.

If a cause of action was fraudulently concealed, the time of the running of the statute of limitations is tolled by section 23 of the statute of limitations. Before this statute was enacted it was held that a plaintiff in a suit at law might reply fraudulent concealment to a plea of statute of limitations. Beatty v. Nickerson, 73 Ill. 605; Campbell v. Vining, 23 Ill. 473.

In this case the original basis of the action was fraud. The jury found malice by its answer to the two special interrogatories, namely, as to whether Gould was actuated by malice in executing the release of the deed, and as to delivery of the abstract showing release of the trust deed. In such case of fraud, affirmative acts or representations designed to prevent, and which do prevent discovery of the cause of action, is answer to the statute of limitations. Fortune v. English, 226 Ill. 262, 267.

We are constrained to believe from the evidence, that appellee Gould was guilty of intentional and deliberate fraud when he wrongfully released the trust deed and when he deceived appellee by delivering to him an abstract showing the 54 acres to be free and clear of any encumbrance, and when he persuaded appellant to abandon his defense in the foreclosure proceeding.

The actions of appellant in placing valuable improvements upon his farm; in refraining from employing attorneys; in leaving the handling of the foreclosure suit to the defendant, all pursuant to Gould’s .false assurances, certainly shows confidence in and reliance upon the statements of appellee as "being true. The consequences of concealment cannot be escaped by the contention such as appellee makes in this case, that appellant could have discovered the fraud of concealment had he exercised reasonable diligence. Kehl v. Abram, 210 Ill. 218, 224; Linington v. Strong, 107 Ill. 295. "Whether appellant acted as an ordinary man was required to act, or whether he was negligent to the extent that he is barred from claiming fraudulent concealment of the cause of action, was a matter peculiarly for the jury to determine.

The act of defendant purporting to give a release that constituted a merchantable title was an affirmative act. The statements that the notes had been paid and that there was a mistake, were likewise affirmative statements and representations of fact. The statements that the foreclosure suit would be cared for and no injury would accrue to appellant were fraudulent representations. The existence of a fiduciary relation between appellant and appellee under this trust deed based on the series of occurrences and circumstances in this case made it the duty of appellee to advise appellant that the notes were owned by another; that they were not paid and that the lien was not extinguished by the release. Keithley v. Mutual Life Ins. Co., 271 Ill. 584, 594, 595.

Appellee, in support of his contention that appellant was negligent in not discovering the true facts, cites cases of negligence in personal injury cases, and cases in regard to failure to examine records and discover that representations made were false. When one has been guilty of material fraud by which, to his knowledge, the other is misled and influenced in his actions, the guilty party cannot cry negligence as against his own deliberate fraud. Linington v. Strong, 107 Ill. 295, 302; Kehl v. Abram, supra. It is a question for the jury whether one has exercised due care or not; whether he should have examined records under the circumstances in a given case where an innocent third party’s rights are not involved; and whether he should seek further information to unearth the fraud of another.

It is contended that when the released deed was delivered the duties of appellee ended. We cannot accede to that claim. A trust may be disavowed and then reacknowledged. Horne v. Ingraham, 125 Ill. 198, 222, 223. Such a trustee has a duty not only to release a trust deed upon payment, but also to pay the money over to the owner of the notes secured thereby, and to see that the notes are cancelled in order to make his purported release a genuine release of the lien. Such a duty is owning to the debtor. Therefore, when a release is given only part of a trustee’s duties is performed. The other duties mentioned were just as essential. We do not think the delivery of a release terminated the trust obligation to plaintiff. It is a general rule that in case of a direct trust, however created, no lapse of time is a bar until its determination or until it is openly disavowed by the trustee who insists .upon an adverse right or interest. The Chicago & E. I. R. Co. v. Hay, 119 Ill. 493, 502; Maher v. Aldrich, 205 Ill. 242, 255. The same rule applies to a resulting trust. Finn v. Wetmore, 212 Ill. App. 550, 554. Exercising power over the property is an acceptance of the trust. 26 Ruling Case Law, Trusts, section 28. In the instant case there has been no disavowal of the trust. The actions, averments, statements and assurances above mentioned were a continued recognition by the appellee of his duties to appellant as trustee.

When there are any facts or circumstances in evidence on the question of a new promise or whether there was a fraudulent concealment of the cause of action taking a case out of the statute of limitations, the determination of that matter is a question for the jury to pass upon. Albretch v. Wolf, 58 Ill. 186,191; Miller v. Cinnamon, 168 Ill. 447, 478; O’Hara v. Murphy, 196 Ill. 599, 602.

The defendant Gould tendered his twenty second instruction, which the court gave to the jury. This instruction recited that such knowledge learned from Naseef in 1932, outlawed the present action unless the jury should find that “the defendant Gould made some false statement or representation to cause the plaintiff Huffman to delay his action.” Under the record in this case it could hardly be denied that the representations to appellant above mentioned made after the hearings had been had in the foreclosure suit were false, and that these representations, promises, and assurances did “cause the plaintiff Huffman to delay his action.”

A motion for judgment non obstante veredicto involves a question whether there is evidence, which, considered with all reasonable intendments supports, or tends to support the verdict. The facts must not only be not in dispute; but it must appear that all reasonable men would draw the same inference from undisputed facts, otherwise, the judgment should not be entered. Berg v. New York Cent. R. Co., 391 Ill. 52, 58, 64. We are of the opinion that the evidence and law sustains the jury’s verdict, and that judgment should have been entered thereon. Having considered all the assignments of error, we are of the opinion that appellee is not entitled to a new trial.

The order of the circuit court denying the motion for a new trial by defendant is affirmed. The judgment of the circuit court is hereby reversed, and this cause is remanded to the circuit court with directions to vacate and set aside the judgment notwithstanding the verdict of the jury, to deny motion of defendant for judgment notwithstanding the verdict, and to enter judgment upon the verdict of the jury for the amount thereof and costs against the defendant and in favor of the plaintiff, and with proper recitation and finding that malice was the gist of the action.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Dove,

license: Public Domain

text:
    G. H. Leffers, Appellee, v. W. D. Hayes, Appellant.
    Gen. No. 10,040.

      Heard in this court at the October term, 1945.
    Opinion filed December 13, 1945.
    Rehearing denied February 6, 1946.
    Released for publication February 6, 1946.

      Edward F. Riely, of Minonk, for appellant.
    Fort & Fort, of Minonk, for appellee.
   Mr. Justice Dove,

delivered the opinion of the court.

G-. H. Letters, a building contractor, brought suit in ,the circuit court of Woodford county against W. D. Hayes, to establish and foreclose a mechanic’s lien on premises owned by the defendant. The complaint was based on a written contract between the parties, dated September 22, 1934, for the construction of a dwelling house in the City of Minonk at the price of $5,902.34, plus extras, and alleged completion of the contract on October 29, 1935, and a balance of $1,481.52 to be due and unpaid, including extras furnished.

The defendant answered, admitting the written contract, denying completion, setting up numerous alleged failures and breaches by the plaintiff, disputing some of the charges for extras, setting up a final certificate "of the architect under the contract in favor of the plaintiff for $353, alleging the value of the extras furnished as not in excess of $328.07, and tendering into court the sum of $682.40, together with the accrued costs. The answer further alleged that the suit could not be maintained because the final certificate of the architect ■was not disputed within 10 days, and thereby became final and binding under the provisions of article 12 of the contract, and alleged thát the defendant and his wife were entitled to an estate of homestead in the premises. He also filed a counterclaim for $373.99, including an item of $29.99 for merchandise sold to the plaintiff, and other items on account of alleged breaches of the contract by the plaintiff. Issues were joined, and thereafter the plaintiff filed an amended complaint consisting of two counts, the first of which seeks foreclosure of a mechanic’s lien. Paragraph 5 alleges that on or about October 3,1934, articles 2 to 12, inclusive, of the written contract, (except article 9), were mutually set aside and vacated by the parties, and that all of article 9 except the contract price of $5,902.34, subject to additions and deductions, was also mutually set aside and vacated; that the defendant directed the plaintiff to proceed Avith the construction of a dwelling house according to plans and specifications furnished by the defendant to the plaintiff, as' modified from time to time; that performance of the latter contract was completed on October 29,1935; and that $1,475.52 was due and unpaid thereunder. The second count, is at law for damages on account of alleged breaches of the contract by the defendant and alleged failures to comply therewith, asking damages of $412.20. An order was entered extending the defendant’s answer to the amended complaint, and the cause was referred to the master.

Certain of the plaintiff’s exceptions to the master’s report were sustained, others of his exceptions, and all of the exceptions of the defendants, were overruled, and the court entered a decree finding that the parties, by their respective acts and actions, and their respective lack of acts and actions, vacated and set aside articles 3 and 12, and a portion of article 8, of the written contract, and that the remainder of such written contract is still in force and effect. The decree dismissed the second count of the amended complaint, disallowed certain charges for extras and certain credits claimed by the defendant, allowed the $29.99 item-of the counterclaim, and decreed a lien on the premises-in favor of the plaintiff for $866.15, ordering a sale iff case of default in payment.

The decree further found that the defendant entered, into possession and occupation of the residence on July 27, 1935, and that the residence was completed on October 29,1935; that the wife of the defendant had knowledge of the improvement being made, and gave no written notice of any objection or that she intended: to save any dower right; that she was not a necessary party on the question of homestead, for the reason that the defendant was the only party who could claim an estate of homestead in the premises, and that her objection that she was joined too late was sustained; and that the architect perpetrated a gross mistake in placing in his final certificate credits to the amount of $252 to the defendant. The cause is here on an appeal by the defendant and a cross-appeal by the plaintiff. For convenience they will be hereinafter referred to as appellant and appellee, respectively.

First as to the motions made in this court. Appellant’s motion to amend the abstract by inserting therein the date of filing his notice of appeal, corresponding with the date shown in the record, is allowed. (Francke v. Eadie, 373 Ill. 500.)

A motion by appellee for leave to amend the amended complaint, appellant’s motion to strike that motion, and another motion by appellee to strike appellant’s reply brief, were taken with the case.

Appellee’s motion for leave to amend the amended complaint proposes to strike therefrom paragraph 5 of count 1, above mentioned, and to substitute therefor allegations conforming to the findings in the decree as to the portions of the written contract held to have been set aside and vacated by the parties, and that all the remainder of the written contract is still in full force and effect; also to strike paragraph 8 of count 1; alleging that upon the setting aside of the written contract ; the defendant became liable to pay the plaintiff the reasonable value of the materials furnished and services rendered; and by inserting an.additional paragraph, alleging in effect that the architect had no authority to insert the items of credit to the defendant mentioned in his final certificate, and committed fraud in so doing. The ground of the motion is that such amendments will make the complaint conform to the proofs.

While all the testimony in the case does not appear in the record, the portions included sufficiently show that the decree is correct as to the portions of the written contract which were set aside and vacated by the parties, and that the remainder of the written contract is still in full force and effect, and the holding is not in' any way challenged or complained of by appellant.

There is a general rule of law, invoked by appellant, that a party cannot make one case by his pleading, and another and different case by his proofs. (Randolph v. Onstott, 58 Ill. 52, 53; Dorn v. Geuder, 171 Ill. 362, 369.) It is also a familiar rule that before a party is entitled to a decree his allegations and proofs must agree, otherwise his complaint must be dismissed, if no amendment is made, (Field v. Field, 319 Ill. 268, 270); and that a party cannot try a case on one theory in the trial court and on another theory ima court of review. (Chicago Title & Trust Co. v. De-Lasaux, 336 Ill. 522, 529; Roof v. Rule, 348 Ill. 370, 375.) The last mentioned doctrine is applied when no amendment is made in the reviewing court.

While the amended complaint alleged an oral contract, and the trial court found that the work was performed under the written contract, (each with the exceptions therein mentioned), it is manifest that the cause of action asserted in the amended complaint grew out of the same transaction set up in the original complaint. That is, — the construction of a dwelling house for the price of $5,902.34, subject to additions and deductions. If the decree in this case be reversed on the ground that the proofs do not correspond with the allegations of the amended complaint, appellee, on reman dm en t, could amend his amended complaint in this particular, under the provisions of section 46 of the Civil Practice Act, (Ill. Rev. Stat. 1945, ch. 110, par. 170 [Jones Ill. Stats. Ann. 104.046]). (Douglas Lumber Co. v. Chicago Home for Incurables, 380 Ill. 87, 98; Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 229.) And, upon his so doing, the decree would again be subject to review on the same other questions presented on this appeal. Section 92 of the same Act, (par. 216 [104.092]), providing in sub-par. (a) that a reviewing court may, in its discretion, exercise all or any of the powers of amendment of the trial court, was obviously designed to do away with such circuitous and cumbersome practice. Appellant’s answer sufficiently covers the proposed amendment, and he cannot be harmed by its being allowed in this particular in this court. His motion to strike appellee’s motion for leave to amend is denied. The amendment, in so far as it conforms to the findings in the decree as to the portions of the written contract which were set aside and vacated by the parties and that the remainder of the written contract is still in full force and effect, is allowed, and is considered as filed. Our conclusions in this respect make it unnecessary to further discuss appellant’s contentions that the court erred in finding that the plaintiff was entitled to a mechanic’s lien upon grounds other than as alleged in the amended complaint.

As to that portion of the amendment relating to the architect, no facts tending to show any fraud on his part áre alleged, and the most that can be said of the allegations is that they allege a want of authority on his part to place the credits in his final certificate, which question is cognizable under the issues, without any additional allegation. That part of the motion to amend, relating to the architect, is denied.

Appellee’s motion to strike appellant’s reply brief claims that it is not shown to have been filed within the provisions of rule 3 of this court, and that appellant has not complied with the rules of court for the preparation of briefs and abstracts, but he does not point out or suggest any provision of any rule that was not complied with. The remainder of his motion is largely an argument as to the weight to which the reply brief is entitled, a matter not cognizable under a motion to strike. The motion to strike the reply brief is denied.

The plaintiff’s statement of account attached to the amended complaint claims $850.33 for extras, including $400 for alleged delays caused by the defendant, which, with the contract price of $5,902.34, made a total charge of $6,752.67, with credits of $5,000 paid, and $277.15 for omissions and changes, leaving an alleged balance of $1,475.52 as due and unpaid.

The amount of the decree was arrived at by allowing $392.45 of the claimed extras, crediting the defendant with $5,000 paid, $277.15 allowed credits in the plaintiff’s statement, $101 for other deductions, and allowing the $29.99 item for merchandise under the counterclaim. Other items of extras claimed by the plaintiff amounting to $58.38, and other credits claimed by the defendant under the architect’s final certificate, to the amount of $252, were expressly disallowed, and the amount of the decree eliminates the $400 charge of the plaintiff for alleged delays caused by the defendant. The architect’s final certificate mentioned in the answer as being for $353 in favor of the plaintiff, was in fact for $345.39 net, in his favor, on his statement of $698.39, after deductions of $353 in favor of the defendant, of which deductions the court allowed $101 and disallowed $252 as above mentioned. The effect of the court’s action was to increase the amount due •under the final certificate from $345.39 to $597.39. The items in the architect’s final certificate disallowed by thé court are: (1) a credit of $150, of which $100 was based on an alleged unwarranted delay of four months in completing the contract, at $25 per month, and the other $50 was for extra services of the architect during that period; (2) 2 tons of coal, $9; (3) front walk repairs, $42; (4) rough plaster, $50; and (5) moving stove, $1; totalling $252.

Article 3 of the written contract provides that no alterations shall he made in the work, except upon written order of the architect, the amount to be paid by the owner or allowed by the contractor, and for arbitration of any dispute as to such amount, as provided in article 12. That portion of article 8 found by the court to be still in force provides that the owner shall provide all labor and materials not included in the contract, and in case of delay in so doing so as to cause loss to the contractor or if the contractor delays the work so as to cause loss to the owner, the party at fault shall reimburse the other party. That portion of article 8 found by the court to have been set aside and vacated provides for arbitration of any dispute as to the amount due thereunder, as provided by article 12. The pertinent portion of article 9 provides for interim payments by the owner to the contractor, and final payment within 30 days after completion of the work, to be made only on certificates of the architect, and that all payments shall be due when certificates are issued. Article 10 provides that no certificate given or payment made under the contract, except the final certificate or final payment, shall be conclusive evidence of the performance of the contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials. Article 12 provides for arbitration of all disputes where written dissent from the decision of the arbitrator on matters of payment, allowance, or loss, under articles 3 or 8, are filed with him within 10 days after the announcement of his decision.

As to, the question of whether the defendant’s wife was a necessary party, section 11 of the Mechanics’ Lien Act, (Ill. Rev. Stat. 1945, ch. 82, par. 11 [Jones Ill. Stats. Ann. 74.11]), provides: “The plaintiff or petitioner shall make all parties interested, of whose interest he is notified or has knowledge, parties defendant .... Parties in interest, within the meaning of this act, shall include ... all persons who may have any legal or equitable claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions thereof, or who are interested in the subject matter of the suit.” The statute contemplates but one suit, and that all persons who are known to have any interest, either legal or equitable, in the land, shall be joined as parties. (Granquist v. Western Tube Co., 240 Ill. 132, 138.) In Kimball v. Cook, 1 Gilm. 423, cited with approval in the Qranquist case, it was held that under this statute, requiring “all parties in interest” to be made parties to the petition, all persons whose interest, either legal or equitable, direct or remote, may by any possibility be affected by the proceeding were necessary parties, as much as in any chancery suit whatever. See also Williams v. Chapman, 17 Ill. 423. In Weston v. Weston, 46 Wis. 130, it was held that the wife of the defendant was a necessary party to a proceeding to foreclose a mechanic’s lien. In Thompson on Homestead, sec. 695, it is said: ‘ Since, then, the wife has, in nearly all States, a substantive interest or estate in the homestead, of which she cannot be deprived by the sole act or default of her husband, it follows that to any proceeding directly affecting such right, she is a necessary party, in order to save the rights of the complainant or her own.”

In Bailey v. Hamilton, 337 Ill. 617, 622, the court said in the opinion: “It is true that where the parties are living together the husband is ordinarily the proper person to assert the right of homestead. Under those circumstances the homestead cannot be set off to the wife alone. (Hagerty v. Hagerty, 149 Ill. 655.) But it does not follow from this that she does not have an individual interest in the homestead, for she does have a continuous right of occupancy, which is real and substantial. In Dinquel v. Dacco, 273 Ill. 117, it is said that a homestead is an estate in land vested in the householder. And this is true. It is also more than that. It is an estate which gives to the spouse of the householder a right to present enjoyment of it even against the wishes of such householder. It cannot be conveyed without her signature, and if the husband abandons her and her family, it continues in her.

While, during the life of the householder, the estate of homestead in the spouse is not a freehold so as to give the Supreme Court jurisdiction of a direct appeal on the question of the rights of the spouse in a suit between them, and is not unlike an inchoate right of dower, as held in Bennett v. Bennett, 318 Ill. 193, 196; Taylor v. Taylor, 223 Ill. 423; and while separate homestead estates cannot co-extensively exist in the same premises at the same time, (Johnson v. Muntz, 364 Ill. 482), where the owner was paid $500 as his interest in the homestead upon a sale under execution, and it was held that his wife could not recover the other $500, none of those cases, relied upon by appellee, have any application here.

The provisions of section 1 of the Mechanics’ Lien Act [Ill. Rev. Stat. 1945, ch. 82, par. 1,- Jones Ill. Stats. Ann. 74.01] that the lien “shall, be superior to any right of dower of husband or wife in said premises: Provided, the owner of such interest had knowledge of such improvement and did not give written notice of his or her objection to such improvement before the making thereof,” invoked by appellee, cannot be held to mean that it obviates the necessity of the spouse having his day in court as a party to any proceeding that might deprive him or her of such dower right. Due process of law forbids any such interpretation of the statute.

Under the record before us, our conclusion is that the wife of the defendant was a necessary party, and it was error to proceed without her. (Hauser v. Power, 351 Ill. 36, 39.) We cannot consider appellee’s suggestion, outside the record, that she entered her limited appearance and was dismissed on her own motion, nor appellant’s suggestion, also outside the record, that her objection to being made a party was sustained because it alleged that the attempt to make her a party was made more than two years after the completion of the contract. If either of the parties desired to raise these contentions, it was necessary to incorporate the facts in the record. Moreover, as the defendant’s wife was a necessary party, the proper procedure was not to dismiss her, even on her own objection or motion, but to find and adjudicate her rights in the decree. Appellee’s claim here that she was not a necessary party is inconsistent with his position taken in the trial court by making her a party, and his further contention that appellant cannot represent her on that question in this court, and that she alone could do so, has no bearing on the issue. The court will upon its own motion take notice of the omission and require the omitted necessary party to be made a party to the suit. (Gaumer v. Snedeker, 330 Ill. 511, 515; Hauser v. Power, 351 Ill. 36.)

The only issue raised by the pleadings as to the architect’s final certificate is whether it is final and binding under the provisions of articles 9 and 10 of the written contract. No issue of mistake by the architect was involved. The provisions of article 10"- that no certificate given or payment made, “except the final certificate or final payment, shall be conclusive evidence of the performance of this contract,” imports finality to the final certificate on the question of performance.

Article 5 of the written contract, providing that the owner, in case of the contractor’s default in promptness and diligence, may, upon the default being certified by the architect, and three days written notice to the contractor, furnish labor or material and deduct the expense from any money due or to become due to the contractor, and that upon certification by the architect that such default is sufficient ground for such action, the owner may terminate the employment and complete the work at the contractor’s expense, invoked by appellee as justifying the court in disallowing the items of credit to the defendant in the architect’s final certificate and in finding that the architect, perpetrated a gross mistake, relates only to where the owner may take over the work on account of the contractor’s default, which was not done, and has no bearing on allowable credits under those provisions of article 8 which the court found to be still in force. Without entering into a detailed discussion of the items disallowed by the court, it is enough to say that the evidence in the record as presented, sufficiently shows that they were within the purview of the written contract, and were proper credits to the defendant on account of defaults by the contractor, and should have been allowed by the trial court, even regardless of the provisions of paragraph 10 of the written contract.

We have carefully examined the testimony and the argument of counsel as to several other items of credit allowed to appellant, and items for extras disallowed to appellee, by the decree, and find no error therein. It would serve no good purpose to prolong this opinion by detailing them.

We do not find any error in the court’s failure to find that the defendant’s son testified falsely that he told the plasterer that he had done a bum job, and that the plasterer admitted it was a poor job but was the best he could do under the existing temperature. While the plasterer denied the statements, that does not necessarily mean that the defendant’s son testified falsely.

Appellee devotes considerable space in his brief to the argument that the defendant testified falsely about keeping an account,on a calendar of the hours spent by the contractor’s employees in ditching, but the figures on the calendar of the number of hours total the same as the charge of the contractor in his statement of account, and we observe no reason for discrediting the defendant.

The decree is reversed and the cause is remanded with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.


author: Mr. Justice Dove

text:
    DeLeuw, Cather & Co., Appellant, v. City of Joliet, Appellee.
    Gen. No. 10,058.

      Heard in this court at the October term, 1945.
    Opinion filed December 13, 1945.
    Rehearing denied February 6, 1946.
    Released for publication February 6, 1946.
    Donovan, Bray & Gray, of Joliet, and Lee A, Freeman, of Chicago, for appellant.
    Edward R. Nadelhoffer, Corporation Counsel for Joliet, for appellee.

       See Callaghan's Illinois Digest, same topic and section number.

   Mr. Justice Dove

delivered the opinion of the court.

Appellant sued appellee in the circuit court of Will county, to recover on a quantum meruit for engineering services rendered in connection with a proposed new municipal waterworks system, to be financed by a Federal P. W. A. loan and grant of $1,790,000 alleging the value of the services rendered to be $46,350. The city did not accept the allotment and abandoned the project. The trial was by a jury, and at the close of all the evidence the court reserved its ruling on the city’s motion for a directed verdict, and the case went to the jury, which returned a verdict in favor of the plaintiff for $27,440. Thereafter, the court granted the city’s motion for a directed verdict, also its motion for judgment notwithstanding the verdict, and entered judgment for the defendant notwithstanding the verdict, and the cause is here on an appeal from that judgment.

The record discloses that in 1933 and for some years previous, the city was obtaining its water supply from deep wells, approximately 1600 to 1800 feet deep. There were also some driven wells with shallow water supply, connected with the system. The city maintained nine pumping stations 24 hours a day with three shifts of 27 men. The cost of pumping water in 1933 was $46,138.66, and in 1934, $49,137.70. Six of the stations were equipped with air lift pumps, and the other three with deep well turbines. Owing to a drop in the level of the water table, the supply was constantly shrinking in volume, and cost of pumping was correspondingly increased. One well drilled in 1936 showed a drop of 95 feet in the water table in 6 years. There were frequent and repeated communications to the city officers from the State Department of Health calling attention to pollution and contamination.

Because of these conditions, a motion was made and carried at a meeting of the city council on April 3, 1933, instructing the city attorney to apply to the Federal B. F. C. for a loan for the purpose of constructing a trunk line sewer on the west side of the city, a new water supply and system, and sewage treatment. The city attorney had conferences with engineering firms pertaining to the work that might be necessary to accomplish the purpose of the motion and at his or the mayor’s invitation, Charles DeLeuw, president of the plaintiff corporation, met the city attorney and the mayor, W. A. Hennessy, in the latter’s office at Joliet. The conference related to the preparation of an application for a new surface supply water system, the engineering features of it, and how the plaintiff would he compensated for his work. A verbal agreement was made that the plaintiff was to do the preliminary engineering work, make a survey of various possible sources of supply, and was to be paid if the city received an allocation from the government to defray the expenses, but was not to be paid in case the city did not receive an allocation. On April 10, 1933, the plaintiff wrote the mayor, confirming the conversation as to engineering services. “In view of the probability of the passage of Federal legislation which will provide an advantageous means of financing municipal public works and also in view of the present financial situation of your city, we will undertake the necessary preliminary engineering examinations and reports upon your order with the understanding that our fees are to be subject to the successful financing of the work and to the approval of either the R. F. C., the Federal Administrator, or other agencies to be created by the Government.”

The work for which recovery is sought was then begun by the plaintiff, including examination of the distribution system, investigation and surveys of surrounding territory for a prospective reservoir site, and numerous conferences were had with and reports made to the city attorney and other city officers. The city attorney made a written report to the city council at its regular meeting on July 17, 1933, advising them of the percentage of the cost available from the government as a grant, anj that the portion of the cost to be paid by the city could be obtained as a loan secured by water revenue bonds, payable solely out of revenues of the waterworks, and which would not be a general obligation of the city. The report recommended that the city proceed at once with the necessary steps to place the waterworks project before the Federal District Administrator of Public Works. At that meeting the city attorney’s report was adopted and a motion was made and carried to retain the plaintiff as the engineers for the necessary engineering work to be done in regard to the preparation and carrying on of the building of a new surface water supply system for the city; and the city attorney was instructed to prepare an ordinance for a new water supply system, and to make application to the government under the National Industrial Recovery Act for a loan to carry out and complete the same.

Thereafter, on August 28, 1933, a written contract between the city and the plaintiff was executed by the proper officer of the plaintiff, and by the mayor, and attested by the city clerk, on behalf of the city. The contract provided for two different types of work, (1) the preliminary work necessary to petitioning for and obtaining Federal financial aid; and (2) supervision of construction after such aid was procured. The plaintiff was to be paid 3 per cent of the cost of the project, including land acquired, upon completion of the financing of the project and the letting of the contract, and during construction, 2 per cent of the amounts paid to the contractor, with a provision that in the event that Federal aid was denied, the plaintiff would make no charge for services performed. The contract also provided that the city was to co-operate with the engineers in the prosecution of the contract and further the contract by every possible means.

The plaintiff then prepared a detailed report covering the prospective growth and future water needs of the city; data pertaining to eight possible sources of supply, with the relative advantages and costs of each; recommended the DuPage river project, with its proposed reservoir, purification plant, distribution system and its estimated costs and revenues. Five copies of this report were delivered to the city early in September 1933.

Under date of September 25, 1933, the engineer of the State water survey division sent the mayor a communication dealing with the recession of the water, drought, expensiveness of well supply operation, benefits from surface supply with reference to purity and softness, and the advisability of taking advantage of Federal assistance in securing a new supply.

Frequent conferences were had by the plaintiff with the State and Federal representatives of the Federal administrator and with officials of the Illinois department of public health, and the division of waterways of the department of public works and buildings. The application for the loan, and detailed plans and specifications were drafted, submitted and modified to meet the suggestions of the various departments, and the application was executed by the mayor and the city attorney, and it, with four copies of the blue prints, plans and specifications, together with consents of the two State departments mentioned, and copies of the resolution authorizing the city attorney to make the application were filed with the P. W. A. in November 1933.

The application for the loan and grant was approved and an allotment not to exceed $1,790,000 was made by the Federal emergency administration of public works on June 20, 1934 which was given presidential approval on June 27, and the mayor was notified thereof by letter on June 29, 1934. Thereafter, the government officials, on five different occasions, up to November 25,1934, wrote the mayor, W. A. Hennessy, asking advice as to what had been done about accepting the loan. Each of the communications indicates that no reply was had to previous communications. On November 27, the Federal administrator, Harold L. Ickes, wired the mayor by day letter that having received no reply to his letter of November 10 and no advice with respect to the contract for the loan, he would present a resolution at the next meeting of the board of public works to rescind the loan. On December 19, 1934 the mayor was notified that the loan had been rescinded. On the face of the Ickes day letter of November 27, 1934, appears the following penciled notation: “We wrote Ramsey 10/23 giving facts of delay due to political factions. ’ ’ It appears that the ordinance for a new water supply, which the city attorney was directed to prepare, accompanied the form of contracts concerning the loan, sent by the P. W. A. to the city, neither of which was acted upon by the city council.

The recovery sought under the amended complaint is on a quantum meruit for the services rendered. Appellant urges that under the proceedings of the city council above mentioned, and the acts of the mayor and the city attorney, plaintiff was legally employed to perform the services rendered- and is entitled to recover the reasonable value thereof. Among the contentions of appellee are the claim that the proceedings of the city council are void because of a lack of showing that the “resolutions” introduced in evidence by appellant were put on file for public inspection for one week prior to their passage, as required by section 19-52 of the Cities and Villages Act, (Ill. Rev. Stat. 1943, ch. 24, par. 19-52 [Jones Ill. Stats. Ann. 21.1494]), applicable to municipalities operating under the Commission Form of Municipal Government Act, adopted by the City of Joliet. The city also claims that neitherffhe city attorney nor the mayor had any authority to employ plaintiff for the city at the conference held in the mayor’s office; that the written contract of August 28, 1933, was void because the mayor and city clerk had not been authorized by the city council to execute the same on the part of the city; and that appellant cannot recover because no appropriation was made for the expense prior to the employment or the rendering of the services and because the city was already indebted beyond the constitutional and statutory limitations. Other defenses challenging the necessity of such an expensive project, its efficiency, and alleging fraud on the part of appellant, are urged by appellee.

A motion for a directed verdict, or for judgment notwithstanding the verdict, presents only a question of law as to whether, when all of the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove any necessary element of the plaintiff’s case. If there is any evidence tending to sustain every element of the plaintiff’s case necessary to be proved to sustain the cause of action, it is immaterial upon which side the evidence is introduced. No contradictory evidence or other evidence of any kind or character will, in such case, justify a directed verdict or a judgment notwithstanding the verdict, except uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing afirmatively a complete defense. If there is in the record evidence which, standing alone, tends to prove the material allegations of the complaint, a motion for a directed verdict, or for judgment notwithstanding the verdict, should be denied, even though upon the entire record the evidence preponderates against the party in opposition to the motion, so that a verdict in his favor could not stand when tested by a motion for a new trial. (Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300-311.)

As to the claim that the “resolutions” of the city council introduced in evidence by appellant were void under section 19-52 of the Cities and Villages Act, it will be noted that that section pertains only to ordinances and resolutions. No ordinance or resolution of the city council was introduced in evidence by appellant, and the only proceedings of the city council introduced in evidence by him were motions, seconded and carried. The fact that both parties designate such motions as resolutions in their pleadings and in their briefs, does not make them so. There is a difference between a motion and a resolution. A motion is a proposal or suggestion looking to action in a deliberative assembly, while a resolution is a statement or verdict, especially a formal expression of the opinion or will of a public assembly, adopted by a vote. (Webster’s Unabridged Dictionary.) The section invoked by appellee does not purport to apply to motions. Furthermore, even if resolutions and motions were synonymous, it is well established that where a municipality has power to perform an act in question, a failure to take a requisite step is a matter of affirmative defense, which must be made by allegation and proof. (City of Chicago v. English, 180 Ill. 476; City of Chicago v. Peck, 196 Ill. 260, 263.) There is no allegation or proof in the record either that the motions were or were not so on file and the contention of appellee is untenable.

If, as contended by appellee, the direction of the city council to the city attorney, on April 3, 1933, to apply for a Federal loan, did not authorize either the city attorney or the mayor to employ appellant at the subsequent conference in the mayor’s office, and if the mayor and the city clerk were never authorized by the city council to execute on behalf of the city the written contract of August 28,1933, with appellant, the fact remains that appellant was retained by the city to do the engineering work at the regular meeting of the city council on July 17, 1933. No price for the services was mentioned in the motion, and, if appellant is entitled to recover, it must be on a quantum meruit, which the parties agree is the basis claimed. Appellee’s contention that appellant seeks to recover on an implied contract has no foundation.

Appellant takes the position that it was not to be paid from the general revenue of the city, but only out of the special fund to be derived from the Federal loan and grant, and that therefore no prior appropriation was necessary. Paragraph 3 of the amended complaint alleges that the parties intended the project to be constructed under the Act of April 22, 1897, as amended on July 2, 1931 (Ill. Rev. Stat. 1933, ch. 24, pars. 440-446), authorizing municipalities of less than 500,000 population, to build a waterworks system or water supply system, or to improve or extend such a system and to pay the cost thereof by the issue of revenue bonds payable solely from revenue derived from the operation thereof. The answer does not deny this allegation, and it therefore stands as admitted to be true. Section 3 of the Act mentioned provides that such revenue bonds shall not in any event constitute an indebtedness of the city within the meaning of constitutional provisions or limitations, and that each bond shall state on its face that it does not constitute an indebtedness of the municipality within any constitutional or statutory limitation. Section 7 provides that ‘ ‘ This shall be deemed and construed to confer powers in addition to but not limiting those now existing.” The adoption by the city council of the city attorney’s report above mentioned, also supports appellant’s claim that the cost of the improvement was to be paid from the Federal loan and grant and not from the general funds of the city, and appellant’s letter to the mayor indicates that the engineering fees were to be paid from that fund. The application for the Federal loan also shows (in the details of the proposed uses of the money) an item of $95,000 for engineering charges. In Gray v. City of Joliet, 287 Ill. 280-284, it is held that the adoption of one mode of payment for a local improvement excludes the idea of payment by the other. That doctrine is applicable here. The record thus shows that appellant’s compensation for engineering services was to be paid out of the Federal loan and grant and not from the general corporate funds of the city, and there is no testimony to the contrary.

Appellee’s contention that nevertheless, a prior appropriation is a prerequisite to a valid contract of employment, even though the compensation was payable only from such special fund and not from the general corporate funds, is answered adversely to its contention in the recent case of Simpson v. City of Highwood, 372 Ill. 212, citing former decisions of the court, and distinguishing others, of which latter class some are relied upon by appellee. The Simpson case was decided after the 1930 amendment to section 4 of article 7 of the Cities and Villages Act, (Ill. Rev. Stat. 1933, ch. 24, par. 104) also relied upon by appellee, providing: “Any contract made, or any expense otherwise incurred, in violation of the provisions of this section (prohibiting the making of any contract or the incurring of any expense without a previous appropriation) shall be null and void as to said corporation and no moneys belonging thereto shall be paid" on account thereof”; and it is significant that, the court in that case quoted the provision of the preceding par. 103 that “No expenditure for an improvement to be paid for out of the general fund of the corporation shall exceed in any one year the amount provided for such improvement in the annual appropriation bill.” It is obvious that the court applied the fundamental rule of statutory, construction, that all the provisions of the statute must be construed together. It is also held in Gray v. City of Joliet, supra, and Markman v. Calumet City, 297 Ill. App. 531-541, that no appropriation is necessary when payment under a contract is to be made from a special assessment. In our opinion, such cases are analogous to the situation in this case, and the holdings are applicable here. Cases cited by appellee where the obligation was to be discharged by payment from the general corporate fund, have no application here.

So, too, appellee’s claim that the employment of appellant was void because the city was already indebted beyond its constitutional and statutory limitation, falls by the same token. (Ward v. City of Chicago, 342 Ill. 167; Hairgrove v. City of Jacksonville, 366 Ill. 163; Simpson v. City of Highwood, supra.)

Appellee’s attempt to distinguish cases in which the special fund had been set up by an ordinance, on the ground that in this case no ordinance was passed, and therefore no special fund was set up or provided for, is without merit. The application for the Federal loan and grant, expressly providing for the payment of the cost of the improvement, specifically including the engineering charges, from the special fund applied for, and the Federal grant made pursuant thereto, was manifestly a setting up of the special fund. Appellee’s claim that the action of the government was only an offer, is untenable. The offer was made by the city, and the government accepted the offer, and allocated the fund, which was a setting apart of it, and the rescinding of the grant was by the fault of the city alone. The further insinuation that the government rescinded the grant while the city council was considering the matter, is not borne out by the record, which shows that the grant, the' proposed contract with the government, and the proposed ordinance, submitted by the government, were never presented to the city council. The claim that the city did not abandon the project is refuted by the answer to the amended, complaint, which specifically alleges that the city did repudiate the alleged contracts with the plaintiff and abandoned the entire project.

It is the general rule that where one party abandons an express contract, or makes it impossible for the other party to further perform, such other party may treat the contract as rescinded and sue on a quantum meruit. (Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, 90; Banik v. Bishop-Stoddard Cafeteria Co., Inc., 288 Ill. App. 174, 179.) This doctrine was applied in Gray v. City of Joliet, supra, in a special assessment proceeding where expenses were incurred in preparing an assessment roll, and the project was afterward abandoned by the city. It was held in that case that even though the statute provided that expenses connected with a local improvement shall be payable only out of the special assessment fund, the provision does not apply where the city abandons the proceeding without levying ari assessment, and the city could not relieve itself from liability to pay reasonable expenses incurred in preparation for the assessment where it abandoned the proceeding before confirmation. To the same effect are Bunge v. Downers Grove Sanitary Dist., .356 Ill. 531, 537; Mann v. Downers Grove Sanitary Dist., 281 Ill. App. 412; Deleuw & Co. v. City of Charleston, 298 Ill. App. 403, 411, and Murrie v. Harper, 249 Ill. App. 586, which hold that in such case, the municipality is liable out of the general fund.

In Hancock v. Village of Hazel Crest, 318 Ill. App. 170, relied upon by appellant, a proposed sewer system project, (where the plaintiff in that case furnished engineering services) was initiated under a statute providing for payment of the cost by revenue bonds payable only out of revenues from the improvement, and for a referendum. The vote at the election was against making the improvement, and the village abandoned it. In a suit by the engineer to recover upon quantum meruit for his services, his claim that because the defendant abandoned the project, payments which were to be contingent upon realization of the funds, became payable by operation of law out of the general fund independent of the agreement of the parties, and because thereof, was not a voluntary assumption of liability and was therefore not subject to constitutional limitation, was denied, upon the ground that the parties knew and had in mind the statutory contingency under the referendum, and that the village board could not bind the voters, who were not a party to the contract. A salient difference between that case and the case at bar is that section 3 of the Act under which the waterworks project was initiated by the City of Joliet, as amended on May 10, 1934, (Ill. Rev. Stat. 1935, ch. 24, par. 1089) provided that when the ordinance authorizing the issue of revenue bonds declared that such extensions and improvements were to be paid for, either wholly or in part, by a loan or grant from the Federal emergency administration of public works or other Federal agency, then the ordinance authorizing the issuance of any such revenue bonds should be in full force and effect immediately upon its passage, approval and publication, anything in that Act or any other law to the contrary notwithstanding. This dispensed with any referendum in such case, while in the Easel Crest case the statute under which the sewer project was initiated. (Ill. Rev. Stat. 1943, ch. 24, pars. 62-1 to 62-12 [Jones Ill. Stats. Ann. 21.2029 et seg.]), contained no such provision, but the project was subject to a referendum. By the date of the Federal grant in the case at bar and the date on which the mayor was notified thereof, it is obvious that the provision mentioned would have been applicable to any such ordinance passed by the city council. The holding in the Easel Crest case is not applicable here, and the decisions of the Supreme Court in Ward v. City of Chicago, supra; Hairgrove v. City of Jacksonville, supra; and Simpson v. City of Highwood, supra, are controlling.

Briefly summarized, the facts show that appellant was employed by the city council on July 17, 1933, to do the engineering services; that it performed the preliminary services; that it was to be paid from the proceeds of the Federal loan and grant, and not from the general corporate fund; and that the employment was never rescinded. Under the law no prior appropriation was necessary, and neither the project nor the employment of the engineer created any debt of the city beyond any constitutional or statutory limitation. The employment was therefore legal, and the amount of his compensation not having been set when he was employed, he is entitled to recover the reasonable value of such services.

Appellee’s contention that appellant takes the position that 'the city was legally bound to pass the ordinance and execute the loan and grant agreement, no matter what conditions were attached, is without any foundation. Appellant makes no such contention, and appellee’s argument, with citations of authority, that ’a city cannot delegate its discretionary powers, or barter them away by contract is beside the mark, and has no bearing on any issue in the case.

As to the necessity of such an expensive project, the record shows that the employment of appellant was for services on a new surface water supply system, the estimated cost of which was included in detail in the application made by the city for the Federal loan and grant, and it does not appear in the record that any objection to the cost was ever made by the city until this suit was instituted. The testimony as to whether the proposed reservoir would leak or furnish a.sufficient amount of water for the needs of the city is in conflict, and there is no testimony in the record that tends to show that appellant acted fraudulently in planning an expensive improvement in order to secure a large engineering fee, or otherwise. Appellee’s claim that the press and public opinion were against the project and that this also made the city pause, is without any foundation in the record. On the contrary, the application for the loan and grant, filed by the city, shows that the project had the indorsement of at least six civic and other associations, and their letters of indorsement accompanied the application.

Under the rule in the Merlo case, supra, the trial court could not, on the motion for a directed verdict, or a motion for judgment notwithstanding the verdict, consider, any conflicting testimony, or any testimony except in its light most favorable to appellant. When considered in that aspect, it is clear that appellant was entitled, under the settled law, to a judgment on a quantum meruit. The testimony as to the reasonable value of the services performed is in conflict, but the verdict is within the range of the testimony, and judgment should have been entered on the verdict.

The return of the verdict, the motion for judgment notwithstanding the verdict, and the judgment notwithstanding the verdict were all in the year 1945. The record shows that the defendant did not make a motion for a new trial. Under Supreme Court Rule 22, in effect November 25, 1941, the failure to do so is a waiver of the right to apply for a new trial, and there is therefore no necessity to remand the cause. The judgment for the defendant notwithstanding the verdict is reversed, and judgment on the verdict in favor of the plaintiff against the defendant for $27,440, is entered in this court. (Todd v. S. S. Kresge Co., 384 Ill. 524, 529; Schwickrath v. Lowden, 317 Ill. App. 431, 436.)

Judgment for defendant reversed and judgment for plaintiff entered in this court upon the verdict.


author: Mr. Presiding Justice Matchett

text:
    Stella A. Kopta, Appellant, v. Greer Shop Training, Inc., et al., Appellees.
    Gen. Nos. 43,463, 43,476.
    Heard in the first division of this court for the first district at the October term, 1945.
    Opinion filed January 7, 1946.
    Released for publication January 21, 1946.
    Finn & Fitzpatrick, of Chicago, for appellant.
    Burt A. Crowe, of Chicago, for certain appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Mrs. Kopta, plaintiff, filed an action at law against three corporations, to recover damages for their alleged negligence, by which she was injured June 2, 1943, when a passenger on an elevator in the building at 2024 Wabash avenue in the City of Chicago. At the close of the evidence each defendant moved for an instructed verdict in its favor. The motion of the owner, South Wabash Building Corporation, was allowed and judgment on the verdict entered in its favor. The motions of Greer Shop Training, Inc. and Continental Products, Inc. were denied. The cause was submitted to the jury and a verdict for plaintiff with damages assessed at $4,500 was returned.

There were motions by Greer Shop Training, Inc. and Continental Products, Inc. for a new trial and for judgment notwithstanding the verdict. The motion of Greer Shop Training, Inc. for a new trial was allowed, and the motion of Continental Products, Inc. for judgment notwithstanding the verdict was granted and final judgment in its favor against plaintiff entered. Mrs. Kopta petitioned the court for leave to appeal from the order granting a new trial. It was allowed. She also appeals from the judgment entered against her notwithstanding the verdict. The appeals have been consolidated.

The issue on plaintiff’s appeal from the order granting a new trial is whether the trial court abused its discretion. It is suggested that since on the trial the Greer Shop Training, Inc. admitted its negligence and liability, the only possible reason for which the new trial could have been granted was that the verdict for $4,500 in damages was excessive. Counsel seem to agree the trial judge gave a new trial because in his opinion the verdict was too large. The question in the trial court upon the motion for a new trial was whether $4,500 was so excessive as to indicate passion and prejudice on the part of the jury. The trial judge manifestly thought it did indicate passion and prejudice. The question on appeaj from that order is whether in so holding the trial court abused its discretion.

The evidence shows without conflict that on June 2, 1943, plaintiff, in the exercise of due care, was a passenger on the elevator in the building at 2024 Wabash avenue in the City of Chicago, and was injured through the negligence of an employee of Greer Shop Training, Inc., in control of the elevator. She was severely injured, and her actual damages in loss of wages, payment of hospital and other bills for medical services, were about $600. The Greer shop did not deny liability. Its operator of the elevator was discharged the following day. The evidence of plaintiff and of her physician, however, tended to show that she did not sustain any permanent injury, and that she has fully recovered. On this evidence, this court cannot hold that the trial court abused its discretion in awarding a new trial, and the order must be affirmed.

Appeal No. 43476 presents another and very different question. As already stated, the negligence of the operator, due care of plaintiff and liability of Greer for damages she sustained are conceded.

Plaintiff, however, contends Continental is also liable with Greer and therefore appeals from the judgment entered against her in favor of defendant Continental notwithstanding the verdict. The uncontradicted evidence shows that on the date of plaintiff’s injury Continental had nothing whatever to do with running the elevator by which she was injured. There is no claim the elevator was in disrepair when Greer took possession and charge of it under its lease. Hall, the operator of the elevator, was the servant of Greer, hired by Greer, and fired by Greer the day after the accident. It was by reason of his negligence alone plaintiff was injured. Liability of Continental, however, is argued on the theory that a landlord may not “delegate” his duty to see to it that elevators in a building owned by him and leased to tenants are run with reasonable care. Indeed, the conceded rule is that one running elevators for the transportation of passengers in a building of this kind is held to the highest degree of care consistent with the mode of transportation adopted.

The landlord owner here, South Wabash Building Corporation, was sued by plaintiff with other defendants, but at the close of the evidence the trial court directed a verdict in its favor. Judgment was entered on the verdict against plaintiff, and she has not appealed from that judgment. Plaintiff, of course, had a right to make her election.

Continental is not the owner of the building. It leased the entire building from the owner under a lease executed and delivered February 1, 1942. The property is described in the lease as: “The entire building at 2024 South Wabash Avenue, in Chicago, Illinois: To be occupied for storage and warehousing . . . and for no other purpose whatever.” Clause 3 of this lease provided:

“The Lessee shall keep and maintain in good order and repair both the inside and the outside of the building herein demised, at its own expense, and shall furnish at its own expense, all heat, water, light, and power, and shall furnish and maintain its own elevator service.”

The evidence indicates Greer was then and had been for many years in possession of the premises after-wards subleased to it by Continental.

On February 10, 1943, Continental Products, Inc. demised to Greer Shop Training, Inc.:

‘ ‘ The following portions of the building at 2024 South Wabash Avenue, in Chicago, Illinois:

“All of the basement, second, third floors; the front half of the first floor; and approximately two-thirds of the fifth floor in the front of the building

“To be occupied for a training school for mechanics.

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In addition to the fixed rental, Greer was to pay to' Continental a sum equal to a certain percentage of the gross income from the tuition of the school.

Article 3 of the lease provided:

“The Lessee shall furnish heat, water, light "and power for the entire building in which the demised premises are situated, including any portions thereof which may be occupied by others, and shall furnish elevator service during all reasonable business hours for the occupants of the entire building in which the demised premises are situated. The Lessee shall pay and discharge all electric lighting and power rates assessed or charged against the building in which the demised premises are situated for electricity and power furnished to said building during the term hereof.”

The demise did not include the sixth floor of the building, where the accident occurred, but at that time Greer was in possession of it under an oral agreement to move on 24 hours ’ notice.

There were two elevators in the building, one at the front and the other in the rear. Continental for the greater part made use of the rear elevator but also used the front elevator if necessary or convenient. As already stated, the duty of those who are obligated to furnish elevator service to tenants and others lawfully in possession of leased premises is that of common carriers generally; namely, the passengers are entitled to the highest degree of care and diligence. Hartford Deposit Co. v. Sollitt, 172 Ill. 222. Ordinarily such a carrier cannot limit this liability to a passenger except by express contract with the person carried. Plaintiff, however, further contends that “the landlord’s duty to furnish elevator service cannot be delegated.” She cites Trego v. Rubovits, 178 Ill. App. 127; B. Shoninger Co. v. Mann, 219 Ill. 242; Sciolaro v. Asch, 198 N. Y. 77, 91 N. E. 263; Cussen v. Weeks, 232 Mass. 563; Rizzi v. Ross, 117 N. J. L. 362; McKnight v. S. S. Kresge Co., 285 Pa. 489; Isham v. Broderick, 89 Minn. 397; Gobrecht v. Beckwith, 82 N. H. 420; Luckel v. Century Bldg. Co., 177 Mo. 608.

We have given careful attention to these cases. We have no doubt that the weight of authority is to the effect that the owner of a building several stories in height, with elevators serving, and rented by a landlord to numerous tenants, may not, while the landlord remains in possession of the elevators, transfer to another the responsibility of the operation of the elevators so as to release the owner from his liability for negligence to the tenants or to third parties who are lawfully within the building. This is the law in Illinois and in other States, as expressed in these cases.

In B. Shoninger Co. v. Mann, 219 Ill. 242, the opinion states:

“The law is well settled in this State that a landlord who rents different parts of a building to various tenants and retains control of the stairways, passageways, hallways or other methods of approach to the several portions of the building for the common use of the tenants, has resting upon him an implied duty to use reasonable care to keep such places in a reasonably safe condition, and that he is liable for injuries which result to persons lawfully in the building from a failure to perform such duty.”

We are not cited to any case in Illinois where a landlord has demised premises with elevators thereon, of which the tenant has taken possession, control and operation, where the landlord has been held liable for the negligence of the tenant in operating the elevators. There are cases holding the owner landlord liable on other grounds and for other reasons, such as renting the premises in a defective condition without disclosing the condition, which it was his duty to do to a prospective tenant. A case coming nearer than any other to sustaining the theory of plaintiff is Sciolaro v. Asch, 198 N. Y. 77, 91 N. E. 263. There Asch, who was defendant, owned a nine story building with lofts, which he let to various tenants. An employee of one of these, while a passenger in one of the elevators serving the building, was injured, as he alleged, through the negligence of the operator. The lease provided the tenant should have the use of the passenger and freight elevators in common with other tenants. The landlord' did not operate the elevators by employees hired by him. On the contrary he made a contract with a corporation under which it engaged to take charge of and operate the steam and electrical plant of the building, including the elevators, and for that purpose to furnish competent engineers, etc. The employee injured by the negligence of the operator sued Asch, the owner, and the operating company jointly and recovered judgment against both. On appeal it was argued that, the contract between the owner and the operating company did not relieve the owner from the duty imposed upon him by the covenant of the lease. The court said:

“It was a duty which he could not delegate to another so as to relieve himself from the consequences of its non-performance. His position was not essentially different from that of a landlord of a tenement or apartment house who reserves the control of the halls and stairways which are used in common by the several tenants. Although the landlord may employ servants to perform the duty which is inseparable from the right of control, he is legally responsible for any negligence on their part which results in injury to third persons who are free from fault and are lawfully upon the premises. There is no valid distinction between the landlord’s duty in such a case and one where elevators are substituted for stairways as means of ingress and egress to and from the various parts of a building. The element of care involved in the operaation of an elevator is not distinguishable from that which applies to stairs and halls, except in degree. . . . The care of an elevator includes the element of prudent operation, and where that is a duty assumed by a landlord it does not differ in principle from the obligation to keep halls and stairways in a reasonably safe condition.”

We «do not question the correctness of this ruling. The landlord had taken upon himself the duty of furnishing proper elevator service to the occupants of the several apartments of his building. In that situation he hired a corporation doing that kind of business to perform this service. The corporation he hired was his agent, and the agent being negligent both principal and agent were liable on familiar principles. That was not the situation in the instant case. A large number of cases are cited, but all of them are, in our opinion, "easily distinguishable, and a review of them would unduly extend this opinion.

A case closely analogous to this one is that of Sikori v. Fellowcraft Club, 189 Mich. 235, 155 N. W. 495. In that case the owner had leased the three upper floors of a building owned by him “with a first-class electric passenger elevator and a proper power freight elevator, with access to said elevators and the stairways leading to said upper three floors through the main halls in said building. . . .” The lease also provided the club should pay the expense of operating the elevators and repairing the same, the landlord and his other tenants to have the right and privilege of using the elevators. Plaintiff’s intestate, in delivering beer to the club, used one of the elevators and received injuries from which he died. The elevator was in charge of the servant of the club, and the accident resulted through his negligence. The administrator sued the club and the owner and recovered judgment in the trial court against both of them. On appeal by the owner the court reviewed B. Shoninger Co. v. Mann and Sciolaro v. Asch, stating, “A reference to these cases will show them distinguishable from the instant case,” and after pointing out the distinction, " said:

“In 9 Buling Class Law, page 1250, it is said:

“ ‘Where the owner of a building leases different floors or rooms to different tenants, but retains the control and management of an elevator in the building, he is responsible for injuries to tenants, their employees and such other persons as may lawfully use the elevator. But if the tenant has the sole control and management of an elevator in a leased building, he, not the landlord, must give warning and look out for the safety of the persons whom he invites to use the elevator.’ ”

The opinion then cites Peake v. Buell, 90 Wis. 508, 63 N. W. 1053, 48 Am. St. Rep. 946:

“The elevator was operated by the defendant’s tenants, and not by him. The defendant owed the deceased no duty in respect to the operation of the elevator. To constitute actionable negligence, the defendant must be guilty of some wrongful act or breach of positive duty to the plaintiff.”

The Michigan court, continuing said:

“In the instant case the condition of the elevator was good at the time it was delivered by the landlord to the Fellowcraft Club. From that time the obligation to keep in repair was upon the Fellowcraft Club. The elevator was in its charge. If the deceased had any right upon the elevator it was becausé he was helping to deliver the beer to the Fellowcraft Club by means of an elevator that was in its control and operated by its employee. Under these circumstances we think it should be said as a matter of law that the Palmer Estate is not liable, and that a verdict should have been directed in its favor.”

The cases are reviewed in 38 L. R. A. 716. We cannot doubt the decision was just and is controlling here. We have already stated the facts that the elevator and other leased parts of the building had passed into the possession and control of Greer Shop Training, Inc., and that the elevator was operated by an employee hired by it before the accident, fired by it after the accident, and working under its direction and control prior to and at the time of the accident. There is not a scintilla of testimony tending to show that at the time of the accident the school was acting as the agent of Continental or had any authority so to do. At the moment plaintiff was injured she- was a patron of the defendant Greer, on property possessed by it, on an elevator which it controlled and managed by its servant, through whose negligence she was injured. This case cannot be distinguished from Sikori v. Fellowcraft Club. For these reasons we hold the trial judge rightly entered a judgment in favor of Continental notwithstanding the verdict and the judgment against plaintiff and in favor of Continental will be affirmed.

The appeal No. 43463 will be affirmed and the judgment in No. 43476 will be affirmed also.

O’Connor and Niemeyer, JJ., concur.


author: Mr. Justice Niemeyer

text:
    Alice Moran, Appellee, v. Charles Gatz, Appellant.
    Gen. No. 43,043.
    Heard in the first division of this court for the first district at the April term, 1944.
    Opinion filed January 7, 1946.
    Released for publication January 21, 1946.
    Barrett, Barrett, Costello & Barrett, of Chicago, for appellant.

      Royal W. Irwin, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment of $5,000 rendered against him in plaintiff’s action for personal injuries sustained when struck by defendant’s automobile while crossing 115th street at its intersection with Wentworth avenue in Chicago. This court (324 Ill. App. 45) reversed the judgment, holding that plaintiff was guilty of contributory negligence as a matter of law. The judgment of this court was reversed by the Supreme Court (390 Ill. 478), which held that plaintiff’s contributory negligence, if any, was a question of fact for the jury, and remanded the cause with directions to pass upon the other points raised by defendant.

The evidence in the case is stated in our former opinion. The verdict is not against the manifest weight of the evidence. The plaintiff called police officer Hansen and examined him as to physical facts at the scene of the accident, and the weather, etc.; on cross-examination the witness testified that he had talked to Moran, plaintiff’s husband, who later testified in her behalf, and that Moran told the officer that he had not seen the accident at all; on redirect examination plaintiff’s counsel, over objection of defendant, was permitted to show that the witness had talked to defendant’s counsel and a man from his office, and that in his conversation with plaintiff’s counsel the witness had not told counsel that plaintiff’s husband had stated that he had not seen the accident; on recross-examination the witness stated that he had not been asked about the alleged statement of plaintiff’s husband. The purpose of the redirect examination and the effect, if any, of the witness’ answers was to weaken or destroy the credibility of the witness, particularly as to the alleged statement of plaintiff’s husband. Having called the officer as her witness the plaintiff could not attack his credibility, even though he was later called or examined as defendant’s witness. People v. Johnson, 314 Ill. 486. The trial court erred in admitting the testimony, but in view of the character of the witness’ answers we do not consider it reversible error.

Plaintiff’s action is based primarily on sec. 74 of the Motor Vehicles Act (Ill. Rev. Stat. 1945, ch. 95½, par. 171 [Jones Ill. Stats. Ann. 85.203]), which provides that the driver of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any crosswalk at an intersection. Defendant contended that plaintiff was not in the crosswalk when struck by defendant’s car. The jury was instructed at the request of plaintiff that “. . . on the date of the accident in question there was and is in full force and effect a certain statute of the State of Illinois, in words and figures as follows: ‘Where traffic control signals are not in place or in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection.

“ ‘Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

“ ‘Notwithstanding that provision, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary. ’ ” This instruction quotes portions of secs. 74 and 75 of the Motor Vehicles Act. Defendant objects to the instruction as an abstract statement of the law, which virtually told the jury that plaintiff was entitled “to an absolute right of way, peremptorily and without regard to such exigencies of circumstances as the defendant’s distance from the plaintiff, the suddenness and unpredictability or deliberation and foreseeability by the defendant of plaintiff’s movements and other facts,” and “contained the unmistakable implication •that, the defendant being under an absolute, instead of a qualified or conditional duty to yield the right of way, his failure to do so was negligence per se.”

The general rule governing instructions in the language of the statute is stated in Deming v. City of Chicago, 321 Ill. 341, 345, as follows: “Where an instruction is given in the language of a statute which is pertinent to the issues it must be regarded as sufficient. Laying down the law in the words of the law itself ought not to be pronounced error. (Greene v. Fish Furniture Co., 272 Ill. 148; Mertens v. Southern Coal Co., 235 id. 540; Mt. Olive Coal Co. v. Rademacher, 190 id. 538.) ” However, the giving of such instructions without making them applicable to the facts before the jury has been condemned. In Mayer v. Springer, 192 Ill. 270, the court said (275): “The instruction is a purely abstract statement of law, and the giving of such instructions has not been commended, although it is not regarded as error to give one of that character if it has no tendency to mislead. It is the duty of the court to give to the jury, in its instructions, rules of law which are applicable to the evidence in the case, and to make the application so that the jury may understand, the relation of the rules to the evidence.” People v. Isbell, 363 Ill. 264, 268; Burke v. Zwick, 299 Ill. App. 558, 561; Watson v. Kammeier, 203 Ill. App. 31, 37. Where a modified construction has been placed on a statute by the courts the instruction should be framed accordingly, otherwise it is apt to mislead the jury (Waterbury v. Chicago, M. & St. P. Ry. Co., 207 Ill. App. 375, 380-381), and should not be given (Burns v. Jackson, 224 Ill. App. 519, 528-529). In Riddle v. Mansager, 254 Ill. App. 68, the giving of an instruction in the language of the statute (sec. 68 of the Motor Vehicles Act) that motor vehicles traveling on public highways shall give the right of way to vehicles approaching along intersecting highways from the right and shall have the right of way over those approaching from the left, was held to be error, the court saying (72): “The statute does not authorize such assertion of the right of way regardless of circumstances, distance, or speed. It was error to give the instruction without proper qualification. (Munns v. Chicago City Ry. Co., 235 Ill. App. 160; Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89.)” It has also been held error to instruct the jury in the language of the statute (sec. 49) as to the speed stated in the statute to be prima facie evidence of the operation of a motor vehicle at a rate of speed greater than is reasonable and proper, without qualifying the language of the statute. Barnhart v. Goin, 266 Ill. App. 591, 594; Scally v. Flannery, 292 Ill. App. 349, 353. In Moore v. Young, 317 Ill. App. 474, it was held not to be error to refuse an instruction merely quoting sec. 78 of the Motor Ve.hicles Act relating to the duty -of a person walking along and upon improved highways.

A literal construction of that portion of sec. 74 contained in the instruction before us would give plaintiff an absolute and unqualified right of way at the intersection and impose upon defendant the absolute duty of slowing down, or stopping if need be, to yield such right of way. The Supreme Court does not so construe the statute. In the instant case it says (p. 486): “Our conclusion, from the language of the act and the authorities cited, is that the right-of-way statute does not give a pedestrian, on a crosswalk, the right of way over all vehicles on the street under any and all circumstances. Each case must be considered in the light of the facts and circumstances surrounding it. The pedestrian’s right of way is not absolute because both he and the vehicle happen to be on the street at the same time.” However, in the case of Goldberg v. Capitol Freight Lines, Ltd., involving an injury to a pedestrian at a street intersection, this court (314 Ill. App. 347, 361), and the Supreme Court (382 Ill. 283, 294), held that an instruction in the language of the statute (the first paragraph of sec. 74), identical with that portion of the instruction in the present case relating to the rights of a pedestrian crossing the roadway within the crosswalk at an intersection, was not erroneous. This decision, is controlling. We therefore hold that the giving of the instruction in the instant case is not error.

The judgment is affirmed.

Affirmed.

Hatchett, P. J., concurs.

O’Connor, J., dissenting in part: I am unable to agree with that part of the opinion which approves the giving of the instruction mentioned in the opinion for the reason that I think it is inaccurate and not in accordance with the opinion of the Supreme Court when it reversed and remanded the cause to this court. Moran v. Gatz, 390 Ill. 478.