author: Mr. Chief Justice Scott

text:
    Vermont Street M. E. Church of Quincy v. John G. Brose.

      Filed at Springfield September 28, 1882.

    1. Building- contract—construed—as to which party is to furnish material. The first part of an agreement for the building and completion of a church edifice, provided that the contractor was to complete the same by a day named, “weather permitting, and stone for front and footing being furnished.” This clause standing alone, it was considered, would obligate the other party to furnish the stone for the front and footing, and when, following this, the church authorities covenanted to pay the contractor a certain sum of money in consideration that he would “furnish” all materials, and fully and faithfully execute the work, etc., this was held to bind the contractor to furnish “all the materials” necessary to complete the work which the other party had not previously contracted to furnish, namely, the “stone for front and footing. ”
    2. Same—who shall determine as to the quality of the work. Where a building contract provides that the work shall be done in a skillful and workmanlike manner, to the “full and complete satisfaction of A, architect, (who drew the plans and specifications,) or his assistant superintendent, B,” if the work is done to the satisfaction of either party named it would seem to be in compliance with the contract. Such a clause does not require the work to be done to the satisfaction of both. If either approves the work, it will be sufficient.
    3. So, where, in such a case, the architect did not superintend the work as it progressed, but both by the terms of the contract and the appointment of the principal architect the assistant or local ■ superintendent had the supervision of the work as it progressed, without objection of either party, the architect can not, after the work has been done, be permitted to say it was not done to his satisfaction, and reject all that had been done in the erection of the building, and which had been approved by the local superintendent, and thus defeat a recovery of the price agreed to be paid.
    4. Same—delay in work caused from owner not furnishing materials. Where the delay of a contractor in completing the work on a building is attributable to the neglect of the owner of the same to furnish stone, as was his duty under the contract, and the time for such completion had been extended by mutual agreement, the owner will have no just cause of complaint on that score.
    5. Same—defect in work occasioned by the owner—contractor not answerable. Where a party having a building erected for him, under the contract, furnishes the contractor face stone to be used, which is of such character as to render it impracticable to lay the same in its “natural bed,” and the superintendent for that reason directs the same to be laid otherwise, with the approbation of the owner, which is so done, and by so doing the best wall is made that could be made with such material, the contractor will not be at fault, and if any defects exist in the wall on account of the manner in which the stone is laid, it must be attributed to the fault of the owner in neglecting to furnish suitable stone for that purpose.
    6. Same—waiver of condition requiring estimates and certificates of work before payment. Where a building contract requires the architect or superintendent, as a condition precedent to any payments, to make estimates of the work done, materials, etc., as the work progresses, and give certificates on the same, reserving ten per cent until the whole shall be completed and accepted, when the whole shall be paid, and no such estimates are ever made or certificates given, and installments of the contract price are paid as the work proceéds, without any certificates, this will amount to a waiver of such condition precedent to the payments.
    7. Same—when workman may recover without certificate required. Where work is done and materials furnished in the erection of a building under the supervision of a superintendent, who is to be satisfied with the same, and give certificates to the contractor on which to receive his installments of the contract price, which he fails to do, and extra work is done under his direction, and payments are made from time to time on the work until it is completed and possession taken, and such superintendent, when called on for his certificate, neither gives nor refuses to give it, but tells the contractor to wait until the building, which is a church, is dedicated, when he shall be paid, it will be presumed that the work has been done to his satisfaction, and a recovery of the balance due may be had, including the percentage kept back, and the extra work, as well as for the balance due him on the contract. >
    8. Same—as to duty of contractor to rebuild a portion of the building after completion. Where, after the completion of a church building to the satisfaction of the superintendent appointed to supervise and direct the work, the architect examined the same, and condemned the stone work, and required a large portion of the front wall to be taken down and rebuilt “with good, large stones, none less than twelve inches in the wall, ” and the congregation had taken possession of the building, it was held, not to be the duty of the contractor to comply with this requirement, even if the architect had a right to pass upon the work, until the church authorities should offer to surrender possession of the building and furnish suitable stone with which the work could be done, the contract requiring the stone to be furnished by them.
    9. Contract—construed with reference to construction of parties. It is allowable always to look to the interpretation the contracting parties place on their agreement, either contemporaneously or in its performance, for aid in ascertaining its meaning. No extrinsic evidence can be more valuable.
    10. Evidence—comparative weight in a given case. On an issue whether the stone in a church edifice had been set far enough in the wall to give it sufficient strength, the testimony of witnesses who did the work, having a better opportunity of knowing how far the stone extended into the wall, is more valuable, and entitled to more weight, than that of witnesses condemning .the stone work, who obtained the information upon which to base their judgment from outside measurements, made after the wall had been completed.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding. ,

      Mr. J, F. Carrott, for the appellant:
    By the contract the certificate in writing of the architect or superintendent is a condition precedent to the right of the petitioner to recover, and there is no proof that it was ever had. McAuley v. Carter et al. 22 Ill. 53; Packard et al. v. Van Schoick, 58 id. 79; Clark et al. v. Pope et al. 70 id. 128 ; Coey v. Lehman et al. 79 id. 173; Downey v. O’Donnell et al. 92 id. 559.
    The decision of the architect is binding in this case, except for fraud shown. Parties to a written agreement are bound by its terms, unless fraud is shown. McAvoy v. Long et al. 13 Ill. 147; Railroad Co. v. Spurck et al. 24 id. 587; Wallace et al. v. Curtis, 36 id. 156; Snell et al. v. Brown et al. 71 id. 134; Stadhard v. Lee, 113 Eng. C. L. 364.
    Before payment could be demanded all of the work was to be fully and faithfully performed, to the satisfaction of the architect, and accepted by him. Smith v. Briggs, 3 Denio, 73; Smith v. Brady, 17 N. Y. 173; Glacius et al. v. Black, 50 id. 145; McCarren v. McNulty et al. 7 Gray, 139; Zaliski v. Clark, 44 Conn. 218; Goodrich v. Van Norwich, 43 Ill. 545; Clarke v. Watson, 114 Eng. C. L. 278; Scott v. Corp. of Liverpool, 60 id. 334.
    Taking possession of the building is not a waiver of the plain requirements of the contract. Smith v. Brady, 17 N. Y. 173; Coey v. Lehman et al. 79 Ill. 173; Munro v. Butt, 92 Eng. C. L. 739; Merford v. Martin, 6 T. B. Mon. 609.
    Appellee did not build and complete the church in “a careful, skillful and workmanlike manner, ” and therefore he can not recover any compensation for his work, labor and materials. Ellis v. Hamlen, 3 Taunt. 52; Moneypenny v. Hartland, 2 C. & P. 378; Farnsworth v. Garrard, 1 Camp. 38; Denew v. Daverell, 3 id. 453; Barten v. Butler, 7 East, 479; Hamer v. Cornelius, 5 Com. B. (N. S.) 236 ; Martin v. Houck, 39 Mich. 431.

      The contract was entire, notwithstanding payments were to be- made in installments as the work progressed, and the entire performance of the work to the full satisfaction of the architect was a condition precedent to the payment of the price, and courts can not absolve men from their legal engagements. School Trustees v. Bennett, 3 Dutch. 513; Grossman v. Brown, 32 N. J. Eq. 43; Jennings v. Camp, 13 Johns. 94.
    Where a party engages, unconditionally, by express contract, to do an act, performance is not excused by inevitable accident or other unforeseen contingency not within his control. Adams v. Nichols; 19 Pick. 275; Schwartz v. Saunders, 46 Ill. 21; Chitty on Contracts, 568.
    Mr. William W. Berry, for 'the appellee:
    Where there are two clauses in a contract so totally repugnant to each other that they can not stand together, the former shall be received and the latter rejected. Shepard’s Touchstone, 88; Chitty on Contracts, (9th Am. ed.) 94.
    A sweeping clause, followed by a specific enumeration in a written contract, will be controlled by the latter, where there is manifest conflict or repugnancy between the two. Bishop on Contracts, sec. 595; Pollock on Contracts, 409; Rooke v. Kensington, 3 Kay & J. 753; Bulkley v. Wilford, 8 D. & R. 542.
    In a doubtful case, the interpretation which the parties themselves have, by their conduct, practically given their contract, will prevail. Bishop on Contracts, sec. 598; Chicago v. Sheldon, 9 Wall. 50; Garrison v. Nute, 87 Ill. 215.
    Where, by the terms of a contract, an architect’s certificate of fulfillment is a condition precedent to payment, and the architect unreasonably and in bad faith refuses the certificate, the builder may recover under other proof of performance. Thomas v. Flewry, 26 N. Y. 26.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The petition in this case was brought by John G. Brose, against the Trustees of the Vermont Street M. E. Church, to establish a mechanic’s lien on the property belonging to the defendant corporation. Under a written contract between the parties, petitioner undertook to erect for defendants a church edifice, according to plans and specifications referred to and made a part of the contract. That part of the work which petitioner was to do was not completed by the time mentioned in the contract. It is alleged it was on account of the fault of defendants the delay occurred. The case is not defended on the ground the work was not finished within the time limited by the contract. It is sufficiently shown, both by the averments of the petition and the evidence, the time for doing the work was extended by mutual agreement.

In two particulars there is some ambiguity in the contract,—first, who was to furnish the “stone for the front and the footing;” and second, to whose “full and complete satisfaction” was the work to be “finished and completed;” but it is thought it readily admits of a construction consistent with the acts of the parties. By ascertaining the meaning of the contract in these respects the case will be relieved of much difficulty. Considering the questions in the order stated, it will be seen that in one part of the contract it is provided the work shall be completed by. a day fixed, “weather permitting, and stone for front and footing being furnished. ” Standing alone, this clause would be readily understood to obligate defendants to furnish “stone for front and footing,” because petitioner was not. bound to finish the work unless the wreather would permit, and the “stone for front and footing” was furnished. The difficulty arises out of a clause in the covenanting part of the contract on the part of the defendants, wherein they agree to pay petitioner a certain sum of money in consideration he will furnish “all materials, and fully and faithfully execute the work to the full and complete satisfaction of the architect, ” and at the time mentioned. Following, as this does, the former provision cited, it may well be understood to bind petitioner only to furnish “all the materials” necessary to complete the work which defendants had not previously contracted to furnish. It will be seen the subsequent conduct of the parties renders this construction of the contract reasonably certain. It is allowable always to look to the interpretation the contracting parties place on their agreement, either contemporaneously or in its performance, for assistance in ascertaining its true meaning. No extrinsic aid can be more valuable. In their original answer defendants admitted the allegation of the petition they were to furnish the “stone for front and footing, ” but in their answer to an amended petition that admission was withdrawn. Without attaching much importance. to what the answers contained, as neither of them was under oath, it is of much more importance to ascertain what the parties did in the performance of the contract. In that respect their acts are the result of their understanding of their agreement, and afford valuable® aid in ascertaining its meaning. Looking at what was done, it is seen defendants from first to last, while the work wras in progress, recognized their obligation to furnish “stone for front and footing,” and did in fact furnish that which was used in the building. Both parties so understood the agreement, in this respect, while it was being performed, and their conduct is consistent with a reasonable construction of the contract.

As respects the second inquiry, it is provided the work is to be done by petitioner in a skillful and workmanlike manner, to the “full and complete satisfaction of Geo. H. Bdbroke, architect, or his assistant superintendent, John Crockett. ” Under this clause of the agreement, if the work was done to the satisfaction of either party named it would seem it would be in conformity with the contract. It is not agreed that both of them shall be satisfied with the work. Should either of them approve the work it would be sufficient. It is true, in a subsequent clause of the agreement it is said the work shall be done to the “full and complete satisfaction of Geo. H. Edbroke, architect. ” Here again the conduct of the parties renders valuable aid in ascertaining the true construction of the agreement in this respect. It is evident it was not intended that Edbroke, who drew the plans and specifications, was to have the immediate and personal superintendence óf the work. He says himself he did not see the work from the time of its commencement till he was called to inspect it in February, 1877, and that John Crockett was appointed by him local superintendent. What he did in this respect conforms to a true understanding of the contract. The work was to be done under the supervision of Crockett, and if satisfactory to him, that would be a compliance with the contract. Both by the terms of the agreement and the appointment of the principal architect, the local superintendent had the supervision' of the work as it was being done, and it would be most unreasonable if, after the work had been done under the immediate direction of the local superintendent, that Edbroke should be permitted afterwards to say it was not done to his “satisfaction,” and reject all that petitioner had done in the erection of the building. This would be most unreasonable, as well as unjust, and esj>ecially so when Edbroke had not seen the work as it progressed, and had absented himself, and left it all to the supervision of Crockett, the local superintendent. Such a result could not have been in the contemplation of the parties, nor will the contract bear any such construction.

Having ascertained the meaning of the contract, so far as relates to the principal matters in contention, but few words of illustration will be necessary to dispose of the objections taken to the decree of the circuit court. As has been seen, the time for completing the work was extended by mutual agreement, and there is no just ground for complaint on • that score. The delay, arose principally out of the neglect of defendants to furnish stone, as was their duty under the contract. But the most serious complaint is made as to the manner in which the stone was laid on the Eighth street front of the building. Two objections are insisted upon: First, the stone are not set far enough in the wall to give it sufficient strength; and, second, they are set on edge, when skillful workmanship would require they should be laid as in their “natural bed.” As respects the point made the face stone is not laid far enough in the wall to give it the requisite strength to'support the superstructure that was proposed to be erected thereon, it may be said the evidence is conflicting. On this question a good deal of testimony was taken. That given by petitioner, and witnesses introduced on his behalf, seems entitled to most weight. All the witnesses skilled in that kind of labor say it is quite difficult, if not impracticable, to ascertain how far face stone extends into the wall, after it is finished, without tearing it down. Very unsatisfactory are all outside measurements. Witnesses that did the work, of course had the best opportunity to know how far the stone extended into the wall, and relying on the testimony given by that class of witnesses, as the court was warranted in doing, its conclusion was justified the work was reasonably well done in that regard. Most of the witnesses that condemn the stone work because not of sufficient thickness, obtained their information upon which they base their judgments upon outside measurements, made after‘the wall had been completed; and certainly their evidence is not as reliable as the testimony of persons who saw the work as it was being done.

Concerning the manner in which the face stone were laid, it sufficiently appears they were laid on their edge, under the direction of Crockett, the local superintendent, with the express consent of the building committee of the church, of which the superintendent was himself a member. This point in the case is established by a very clear preponderance of the evidence. Petitioner states most positively he was directed, both by the. committee and the superintendent on the ground directing the work, to lay the stone as he did, and no one denies what he says on that subject. This fact in the case may, therefore, be taken as having been proved past all doubt. It is no doubt true it would have made a better wall had the stone been laid as in their “natural bed, ” but that, the testimony shows, was impracticable, and it was for that reason the local superintendent directed they should be laid otherwise. The stone for this front was furnished by defendants, and they were told it could not be laid as in its “natural bed, ” and thereupon the superintendent, with the approbation of the committee, directed the stone should be laid on its edge, as was done. There is testimony that seems entitled to the utmost confidence, that the best wall it was practicable to make, using the stone furnished by defendants, was, in fact, made. If, then, any defect exists in the wall on account of the manner in which the stone were laid, it is not attributable to petitioner, but to defendants themselves, in neglecting to furnish suitable stone for that purpose.

Passing to the consideration of another branch of the case, it may be conceded the building contract made either the architect’s or the assistant superintendent’s certificate a condition precedent to the payment of any installment petitioner was to receive for the work done by him. Under the contract it was the duty of the architect to make estimates of the work done, and material used and inwrought in the building, and give certificates on such estimates, reserving a certain per cent until the whole work should be finished and accepted by the architéct, when the whole consideration should be paid, provided “said superintendent” should certify, in writing, petitioner was entitled to it. This part of the contract was waived by the parties, and installments of the contract price were paid to petitioner as the work progressed, without any certificate from the architect or local superintendent, or without any objection on the part of any one as to the character of the work done or being done. It is only as to the balance remaining unpaid after the work was finished that it is now insisted it is a condition precedent to its payment that petitioner should have the architect’s certificate. But who is to make the final certificate upon which petitioner shall be entitled to the balance due him on the work? By the contract it is the “said superintendent.” Who is the superintendent ? No one is mentioned in the contract by that description except Crockett. He is designated as “local superintendent” and as “assistant superintendent,” while Edbroke is always spoken of as “architect.” It will be observed that when petitioner reported to Crockett the work was finished, and asked for a certificate, he was told to wait until the building should be dedicated, and he would be paid the balance of the contract price, and for extra work performed at the request of defendants. He never refused to give a certificate, but simply omitted to do it, as had been done when former payments were made. There was no suggestion he should first obtain the certificate of the architect.

But Edbroke did examine the work after petitioner alleges he had finished it, and condemned much of the stone work, and some other work, as not conforming to the plans and specifications, and that, it is insisted, is fatal to any recovery. Neither defendants nor petitioner paid any attention to the suggestions of the architect as to the changes that should be made in the work to make it conform to the plans and specifications. The congregation, represented by defendants, had then taken possession of the building, and were using it for church purposes. It is evident they did not expect petitioner to comply with the suggestions of the architect. It will be seen the architect' required a large portion of the front wall on Eighth street to be taken down by petitioner, and rebuilt by him, “with good, large stones, none less than twelve inches in the wall. ” Of course it was impracticable to tear down and rebuild'the walls while defendants retained possession, and it was certainly not his duty to do it until defendants should furnish suitable stone “for front and footings.” They never offered to surrender .the possession of the building, or furnish suitable stone with which the work could be done, and it is, therefore, plain, defendants did not expect or desire petitioner to conrply with the suggestions in that regard made by the architect.

But aside from this view, the architect’s certificate was not indispensable to a recovery. As has been seen, if the work was done to the satisfaction of either the architect or the assistant superintendent, it was a compliance with the contract. The architect did not see the work from'the time it was commenced until it was finished. He absented himself, and committed the supervision of the work exclusively to the “local superintendent. ” It was done under his immediate supervision, and as he made no objection to the work as it progressed, nor to it after it was finished so far as it could be, it will be presumed it was done to his “full and complete satisfaction. ” That was all petitioner was obligated to do. His contract did not require him to do the work to the satisfaction of both the architect and the local superintendent. Having committed the work to the supervision of the local superintendent named by himself, with'the consent of defendants, and since it was done according to his direction, it would be most unreasonable to hold that because it was not done to the satisfaction of the architect, petitioner could recover nothing for the expenditure of labor and materials. The contract only obligated petitioner to do the work to the satisfaction of either the architect or his assistant superintendent, and since the architect committed the exclusive supervision of the-work to the local superintendent, and the Work was done under his direction, it does not lie in the mouth of the architect to say the work was not satisfactory to him. That would be unjust, as well as most unreason-able. It would not be in accordance with the obvious meaning of the contract, and defendants may not make the action of the architect a pretense for withholding from petitioner the value of his labor, under the contract. As before remarked, Crockett, under whose direction the work was done, never refused to give the requisite certificate, but simply neglected to do it, as he had omitted to make estimates as the work progressed upon which payments should be made. When asked to make the certificate, he told petitioner to wait until the church should be dedicated, and he should be paid. It was the duty of the local superintendent to give or refuse the certificate. He did neither. But if he had refused, it would have been unreasonable, under the facts of the case, and petitioner would not have been prejudiced by such refusal. Deviations from the plans, and specifications, made part of the contract, were authorized by mutual understanding, and the proof is entirely satisfactory the work was done as well as it could be, using the stone furnished by defendants, under the directions of the local superintendent. Most fault, as has been seen, was found with the manner of laying the face stone, and the evidence is abundant the stone furnished by defendants could not well be laid otherwise. Whatever fault, therefore, there was in that regard, is attributable to defendants, and to no unskillful work on the part of petitioner. A case having many features in common with the one being considered; is Thomas v. Fleury, 26 N. Y. 26, and the reasoning of the opinion supports the view here taken.

As has been seen, the contract provided the superintendent should make estimates of the work done and materials used and inwrought in the building, and give certificates .on such estimates, reserving ten per cent from the amount of each until the work should be finished and accepted by the architect, when the whole contract price should be paid. No estimates were ever made as the work progressed, and there could be and was nothing reserved, as the contract provides. The circuit court, however, decided petitioner was not, in this or in any other proceeding to establish a mechanic’s lien, entitled to demand the ten per cent reserved by the terms of the contract, nor for extra labor and materials. The cross-error by petitioner that calls in question the correctness of that decision, is well assigned, and should have prevailed in the Appellate Court. There having been no estimates- made during the performance of the contract upon which any per cent could be reserved, the whole consideration became payable on the substantial performance of the contract, less the sum of $100 for work that could not then be done on account of the default of defendants. Nor is any reason perceived why petitioner should not be allowed for extra labor and materials. The, account was presented to the local superintendent, who ordered the same, was approved by him, and payment promised. It was a matter about which the architect knew nothing, and hence could make no truthful certificate concerning the same, and it would have been useless to present the account to him. The extra labor and' materials were furnished by petitioner at the request of defendants, and there is no reason why he should not be paid for the same.

The judgment of the Appellate Court will be reversed, and the cause remanded to that court, with directions to reverse the decree of the circuit court, and remand the cause for further proceedings not inconsistent with this opinion. All costs will be. taxed to appellants.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    The Board of Education v. James Bolton.

      Filed at Ottawa September 27, 1882.

    1. Appeal—reviewing the facts. In an ordinary action of debt upon municipal bonds, a finding of the trial court of the facts necessary to the validity of such bonds, when affirmed by the Appellate Court, is binding on this court, and can not be reviewed by it.
    2. Municipal indebtedness—constitutional limitation. The constitutional provision prohibiting municipalities from incurring any debt without first making provision for its payment, does not apply to a case where the authority to create the indebtedness was legally conferred by a proper vote before the adoption of the present constitution.. Such provision does not affect or impair a prior authority given when there was no prohibition.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    This is an action of debt, by James Bolton, against the Board of Education of District No. 3, town 37, range 11, in Cook county, upon four bonds, executed by the directors of said district, for $500 each, and payable to A. H. Andrews & Co., by. whom they were indorsed to the plaintiff. Each of said bonds contained the following recital: “For money
    borrowed for the purpose of building a school house, according to the instructions of the voters of said district expressed by a vote, as prescribed by an act of the legislature of the State of Illinois, approved February 16, 1865, by virtue of which act this bond is issued. ”
    The constitution of 1870, art. 9, sec. 12, prohibits the incurring of any debt by a municipality without first making provision for payment of the same by the levy of an annual tax; but the vote was had before the adoption of this constitutional provision, although the bonds were issued after its adoption.

      A trial was had, resulting in a judgment for the plaintiff for the amount due upon the bonds, and this judgment was affirmed by the Appellate Court.
    Mr. H. C. Irish, for the appellant:
    The power to borrow money or issue bonds is' not one of the general powers possessed by a school district. This power can only be exercised by virtue of a vote of the electors of the district, expressed in a manner provided by the statute. Rev. Stat. 1874, 962, sec. 47; Gross’ Stat. 697, sec. 47; School Directors v. Miller, 54 Ill. 338; School Directors v. Taylor, 54 id. 289; School Directors v. Sippy, 54 id. 287; School Directors v. Fogleman, 76 id. 189;. People v. Thatcher, 93 id. 240; Hewitt v. Board of Education, 94 id. 528.
    The statute granting this power must receive a strict construction. 1 Dillon on Municipal Corp. 175; Minturn v. Larne, 23 How. 435; School Directors v. Taylor, 54 Ill. 289; School Directors v. Parks, 85 id. 338.
    The directors must be authorized by a vote taken at a meeting duly called and held according to law. Gross’ Stat. 697, sec. 47.
    Again, the constitution prohibited the incurring of any such debt without first making provision for payment of the same by the levy of an annual tax. Art. 9, sec. 12; Law v. People, 87 Ill. 385.
    Whoever deals in municipal bonds is chargeable with knowledge whether the precedent conditions to the existence of the power, of making the subscriptions and issuing the bonds have been complied with. Williams v. Town of Roberts, 88 Ill. 11; Hewitt v. Board of Education, 94 id. 528; People v. Town of Laenna, 92 id. 24; Bissell v. Kankakee, 64 id. 248; Marshall County v. Cook, 38 id. 48; People v. Supervisors of Logan County, 63 id. 384; Harding v. Rockford, Rock Island and St. Louis R. R. Co. 65 id. 90; Floyd's Acceptances, 7 Wall. 666; 1 Dillon on Municipal Corp. 513.

      Mr. B. D. Magruder, for the appellee:
    The election was properly proved by oral testimony. Maxey v. Williamson County, 72 Ill. 207.
    The recitals in the bonds are prima facie evidence of the holding of the election, and other facts therein appearing. Board of Education v. Taft, 7 Bradw. 571.
    The vote for the issue of the bonds having been taken before the adoption of the present constitution, they were properly admissible in evidence without proof of the vote authorizing it. Board of Education v. Taft, 7 Bradw. 571.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an action by appellee, against appellant, brought upon four bonds, dated November 2, 1870, executed by the directors of school district No. 3, in township 37, range 11, in Cook county, each for $500, payable November 2, 1874, with interest at the rate of ten per cent per annum from date. Each of the bonds purports to be issued “for money borrowed for the purpose of building a school house, according to the instructions of the voters of said district expressed by a vote, as prescribed by an act * * * entitled ‘An act to amend the school law,’ approved February 16, 1865, ” and each bond purports to be issued by virtue of that act. These bonds were payable to A. H. Andrews & Co., or order, 'and assigned by the payees to the plaintiff.

On the trial proof was given tending to show that an election was held about the year 1867, at which the majority of the voters voted authority to build a school house, and to borrow money for that purpose: The record of the proceeding is. lost. The testimony as to the real extent of the authority voted is not in harmony. The trial court found that the proceedings required by law were shown by the proofs. This finding was affirmed by the Appellate Court. This finding, under the law, we can not review.

The statute authorized the borrowing, for that purpose, .upon the vote mentioned therein. The section 12, article 9, of the constitution, did not impair the authority given. Whether the bonds were valid or not, depended upon questions of fact. The facts found in this case show the bonds to be valid. It is insisted these bonds were given for furniture, and not for money to build a school house. That was a question of fact. The findings of the Appellate Court are against appellant on that question, as well as on the question of the election. These findings are conclusive.

No ground being shown for the reversal of the judgment of the Appellate Court on any question which we are at liberty to consider, the judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Chicago and Alton Railroad Company v. Edward Bonifield.

      Filed at Springfield-September 28,1882.

    1. Appeal—reviewing questions of fact—as to comparative negligence. In an action by an administrator to recover damages of a railroad company for negligence, causing the death of the intestate, the question of negligence, and its comparison as between the deceased and the defendant, is one of fact, and whether it is found correctly can only be inquired into by the Appellate Court.
    2. So, where a jury has found, from the evidence, that the act of a passenger in alighting.from a train, at the time and under the circumstances appearing, was slight negligence, and the negligence of the servants of the railroad company in starting its train, when compared with that of the passenger, was gross, and such finding is sustained by the Appellate Court, it is conclusive on this court, and can not be reexamined.
    3. Negligence—as to what constitutes negligence. The value of a certain fact in evidence depends largely on the attendant circumstances. Hence what acts are negligent, depends upon other facts and circumstances. It may be true that alighting from a train of cars while in motion is negligence, when the railroad company is not in fault, and the team has considerable speed, but it is not necessarily true when it is a question of comparative negligence.
    4. Same—as a question of fact. It is the settled doctrine of this court, that what is or is not negligence in a particular case is a question of fact to be found by the jury, and it is equally well settled that a question of comparative negligence is one for the jury.
    5. Practice—instructing jury as to right of recovery. If a plaintiff by the evidence establishes a liability on the part of the defendant to him, he will have a right to a recovery, and it is not error to so instruct the jury, leaving them to find the amount of the damages from the evidence.
    6. New trial—excessive damages. Fourteen hundred dollars damages in an action by an administrator against a railroad company, to recover for gross negligence, causing the death of the plaintiff’s intestate, even if this court may review the case as to damages, is not so large as to require a reversal.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Williams, Burr & Capen, for the appellant.
    Messrs. Stevenson & Ewing, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears, and it is not disputed, that on the 28th day of October, 1880, Peter Ely, deceased, having attended a political mass meeting at Bloomington, at about half-past ten o’clock at night took the ears at that place for the town of McLean, where he resided. On the arrival of the train at that place, in alighting from the train he was thrown by the motion of the cars, or fell on the platform, receiving injuries from which he died some three months afterwards. He brought suit in his lifetime to' recover damages from the company for the injury, but having died before a trial, the suit was revived in the name of his administrator, to recover for his widow and next of kin. On a trial the jury found a verdict in favor of plaintiff for $1400, and after overruling a motion for a new trial the. court rendered a judgment on the verdict. Defendant appealed to the Appellate Court, and on a trial therein the judgment was affirmed, and the case is brought to this court by appeal.

Bach side contends that the other was guilty of negligence, and the evidence tends to prove that both were. But appellee claims that even if this be true, the negligence of deceased was slight, and that of the company was gross. It is contended for the company, that the negligence of the deceased was not slight in comparison with that of the employés of the company, and that if guilty of negligence, it was not gross in comparison with that of deceased. The question of negligence and its comparison is one of fact, and its determination is for the jury, and the question of whether the jury have found correctly can only be reviewed by the Appellate Court.

It is claimed that alighting from a train in motion is such negligence as to preclude all recovery, whatever the circumstances. This may be true, and np doubt is, where the company is not in fault, and the train has considerable speed; but it is not necessarily Janie where it is a question of comparative negligence. A train 'might be barely in motion,— moving so slowly as to be scarcely perceptible on close inspection,—when to get off would be attended with no danger whatever. To hold such an act, under such circumstances, gross negligence per se, would find no sanction in reason or justice. It would violate the experience of all persons, and be contrary to the reason of all men. But to leave a train when running at a high rate of speed, as was done in some of the cases to which reference is made in argument, is, and must be, gross negligence. And it may be perilous to get off in the dark when running at a rate of speed that would be safe in the light of day. The value of a certain fact in evidence depends largely on the attendant, circumstances. • An act which is gross negligence in one.case is not in another, owing to modifying circumstances. Then, what acts are negligent must depend upon other acts in each case, and what is said in a case of negligence is with reference to that case. But few acts can be said to be negligent per se, hence stern and unbending rules as to the weight of particular acts as evidence can not be announced for all cases and under all circumstances. Such rules must necessarily be more or less flexible, or be under many cases confined to the cause being tried. All persons in the profession know that a small circumstance in evidence frequently rightfully changes the result of a trial and recovery.

It is the long settled doctrine of this, court that negligence is a fact the finding of which is clearly within the province of a jury; and it is equally as well settled that a question of comparative negligence is as clearly within its province. The legislature has deprived this court of the power of reviewing controverteá facts passed upon by a jury. That power has been conferred upon the Appellate Courts, and we have been deprived of its exercise. We are compelled to take them as found by those tribunals, and have no discretion in the matter. In this case it was a controverted fact whether the act of deceased in passing from the train at the time was slight negligence, and the negligence of the company in starting its train as it did, when compared with that of deceased, was : gross. These facts have been found by the jury and the Appellate Court, and we have no right to disregard their finding.

In view of what we have here said, there was no error in giving and refusing instructions of the court on the trial below. If a plaintiff establishes a liability on the part of a defendant, he has a right to recover, and it is not error to so instruct the jury, leaving them, if they so find the liability, to find in his favor, and the right to fix the amount of damages, from the evidence. Appellee’s instructions so inform the jury, and are not erroneous. There was no error in modifying appellant’s instructions’ that were given, as they conformed to the law when modified. Those refused were erroneous, and were properly rejected. They were not in conformity with the settled law of this court, and the error ■is obvious.

It is urged that the damages are excessive. If the amount of damages in a recovery is not a fact to be found by a jury, but is a question of law that may be reviewed by this court, the amount found in this case, if we may review them, is not so large as to require a reversal. That the rule for the measure of damages is a question of law, there can be no question, but .whether .-the amount found is a quéstion of law, we decline to determine until a case is presented that demands its decision.

The judgment of the Appellate Court is right, and must be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Deborah Henderson v. William Blackburn.

      Filed at Springfield September 28,1882.

    1. WmL—devise -with power of disposition—extent of the power, and whether properly exercised. The doctrine seems to be quite well settled that where a power of disposal accompanies a bequest or devise of a life estate, the power of disposal is only eoéxtensive with the estate which the devisee takes under the will, and means such disposal .as a tenant for life could make, unless there are other words clearly indicating that a larger power was intended.
    2. Where a devise is made of all the testator’s real and personal estate, after the payment of his debts and funeral expenses, to his wife, “to have and to hold, or to dispose of so much of the same as she may need or wish to use during her lifetime,” and the will then providing, “and after her death, if there is anything left,” what is left shall be divided equally, etc., the ’ widow’s power of disposal will hot be limited to her life estate. In such case, if she needs all the property for her support during her life, she may dispose of the whole of it for such purpose, or she may sell absolutely, and dispose of so much thereof as is needed for her support.
    3. The words in a will, “if there is anything left,” and providing to whom the same shall go, following a devise of an estate in all the testator’s estate, real and personal, “to have and to hold, or dispose of so much of the same as she (the devisee) may need or wish to use during her lifetime,” imply a power of disposition of the whole property devised, and those words, and the words following thereafter, “whatever there may be left,” are not to be limited to the personal estate. Such power of disposition of the fee, however, is not an absolute one, but is limited to the need and personal use of the devisee. The power can not be exercised for any other purpose.
    4. Under a power given to a devisee of a life estate “to dispose of so much of the same as” the devisee “may need or wish to use during her lifetime,” she made a conveyance of the property, reserving therein the right, title and possession during her life, with the use and profits thereof, and at her death to take effect and be in force, the grantee to attend to the property and keep it in repair, and attend to the instructions of the grantor in making such repairs, and to attend to her wants generally: Held, that the conveyance was in the nature of a testamentary devise, which she was not authorized to make, and passed no title to the grantee.
    5. "Where a widow, to whom was devised a life estate in land, with a power to dispose of so much thereof in fee as she might need or wish to use during her life, conveys the same to another, evidence that at the time the devise was made the devisee was about eighty-five or ninety years old, and the testator resided on a farm of two hundred acres, about half of which was in cultivation, worth an annual rental of at least three dollars per acre, and owned personal property, also given her, of the value of $4000 or $5000, mostly in interest-bearing notes, all of which he owned at his death, and that the widow continued to reside on the homestead until her death, and that there was paid to her, on settlement of the estate, nearly $2000 in money, is properly admissible as bearing upon the question whether the disposition of the land was needed for the support of the widow, or was in truth made for her own personal use.
    Appeal from the Circuit Court of Clark county; the Hon. C. B. Smith, Judge, presiding.
    This was an action of ejectment, brought by Deborah Henderson, against William Blackburn, for two certain tracts of land, situated in Clark county. There was a judgment for the" defendant, and the plaintiff appealed.

      Both' parties claim title from a common source,—the will of Julius H. Blackburn, deceased, who died testate January 12, 1869. The will, among others, contains the two following clauses :
    “Second—After the payment of said funeral expenses and debts, I give, devise and bequeath unto my beloved wife, Polly Blackburn, all of my estate, both real and personal, to have and to hold, or to dispose of so much of the same as she may need, or wish to use, during her lifetime.
    “ Third—And after her death, if there is anything left, it is my will that whatever there may be left shall be divided equally between William Blackburn, my son, and my daughter, Deborah Hogue, wife of William Hogue. ”
    The Deborah Hogue mentioned in the will, is now Deborah Henderson, the plaintiff in the suit, and the William Blackburn named, is the defendant.
    On the trial, to shoyr title on. her part, the plaintiff introduced in evidence said will, and the record of two judgments in the Clark circuit court against William Blackburn, the defendant,—one obtained at the April term, 1869, and the other at the November term, 1873,—together with regular sheriff’s deeds, of the dates, respectively, of June 17, 1871, and January 11, 1876, under sheriff’s sales, on executions issued upon the judgments, to one Lindsey, conveying to him all the interest of the defendant in the lands of which Julius H. Blackburn died seized, and a deed from Lindsey quitclaiming to the plaintiff all Lindsey’s interest in the lands in controversy in this suit, being part of the lands conveyed to him by such sheriff’s deeds. The sheriff’s sales were made in 1874. Polly Blackburn, wife of Julius H. Blackburn, died September 26, 1878.
    The defendant introduced in evidence a deed from Polly Blackburn to himself, dated December 3, 1875, purporting to convey to him the premises in controversy, being lands of which Julius H. Blackburn died seized, the deed containing the following: “Now, the condition of this indenture is this: That Polly Blackburn shall still retain the right, title and possession of the above described property so long as she lives, and nothing • herein shall be construed so as to deprive her of all the rights, title and profits of the within named premises while she lives, but after her death the property, as described in this deed, shall belong to William H. Blackburn and his heirs, as described in this indenture, and this deed will have full force and effect; and William H. Blackburn also agrees to attend to the above described property, and keep it in repair, and attend to the instructions of Polly Blackburn in making such repairs as she thinks needful, and attend to her wants generally, so long as she lives, and at her death this deed shall be in force.”
    Messrs. Golden & Wilkin, for the appellant:
    Under the will the widow took an estate for life, with remainder to the parties to this suit, and the power of disposal conferred on her was only coextensive with the estate she took under the- will,—that is to say, power was granted her to dispose of her life estate,—and consequently her deed to appellee, if it ever took effect, ceased to represent any estate after her death. The phrase, “if there is anything left, it is my will that whatever may be left, ” should be limited to the personal property only. Boyd v. Strahan, 36 Ill. 355; Bradley v. Westcott, 13 Ves. 445; Smith v. Bell, 6 Pet. 68; Siegwald v. Siegwald, 37 Ill. 430; Mulberry v. Mulberry, 50 id. 67; Burnett v. Lester, 53 id. 325; Green v. Hewitt, 97 id. 113; Brant v. Virginia, 93 U. S. 326.
    The court erred in excluding the evidence offered to show the circumstances under which the will was made, the state of the testator’s property, etc. Giles v. Little, 104 U. S. 291; Brownfield v. Wilson, 78 Ill. 472; 1 Redfield on Wills, 425, note 6, rule 10.

      The appellee’s interest was a vested remainder in the lands of which his father died seized, which was sold by the sheriff. Green v. Hewitt, 97 Ill. 117.
    Mr. S. S. Whitehead, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The controversy in this case is upon the construction of the second and third clauses of the will .of Julius H. Blackburn—what, thereunder, was the power of disposition of the real estate devised, which was, given to the widow, Polly Blackburn.

It appears to be the quite well settled doctrine that where a power of disposal accompanies a bequest or devise of a life estate, the power of disposal is only coextensive with the estate which the devisee takes under the will, and means such disposal as a tenant for life could make, unless there are other words clearly indicating that a larger power was intended. Bradley v. Westcott, 13 Ves. 445 ; Smith v. Bell, 6 Pet. 68; Boyd v. Strahan, 36 Ill. 355; Siegwald v. Siegwald, 37 id. 430; Mulberry v. Mulberry, 50 id. 67; Brant v. Virginia Coal and Iron Co. 93 U. S. 326; Giles v. Little, 104 U. S. 291. This doctrine is relied upon in favor of the appellant, it being insisted that it was a life estate which was here devised to the widow, and that the power of disposal which was given to her was such disposal only as a tenant for life could make. There was not here a devise of an estate for life in express terms, but the devise was,‘“to .have and to hold, or to dispose of so much of the same as she may need or wish to use during her lifetime. ” The power being given to dispose of so much of the property as she might need or wish to use during her lifetime, we can not doubt that had the widow needed all this property for her support during her lifetime, she might have disposed of the whole of it for such purpose, the power to do so being given in express terms. The form of the power of disposal given in this case being “of so much of the property as the widow might need or wish to use during her lifetime, ” excludes the idea that it was only a life interest which she might dispose of, and plainly intends the" power of disposition of the whole interest in .the property for the purpose named.

The words in the third clause of the will, “and after her death, if there is anything left, ” imply a power of disposition by the widow of the whole property devised. There are eases which hold where, by will, there is given a life estate in real and personal property, and there is a devise over in somewhat similar phrase as the above, as in Siegwald v. Siegiuald, “what may be left, ” in Green v. Hewitt, 97 Ill. 113, and Giles v. Little, above, “or whatever remains, ” that those words are to be limited to the personal estate, and do not apply to the real estate; or, as in Blanchard v. Blanchard, 1 Allen, 223, that the words meant the property left after the life estate had terminated. But the words here used, “if there is anything left, ” do not admit of such construction. These words imply that there might not be anything whatever left of either realtor personal property, they expressing a doubt whether there would be anything .left after the death of the widow, showing that it was then in the contemplation of the testator that the widow might dispose of the entire interest in the real property, leaving nothing, and thus that he intended she should have such power of disposition.

In the recent case of Clark et al. v. Middlesworth, (Sup. Ct. Ind.) it was held, where the language of a devise was, “all my property, real and personal, to my wife, Mary A. Clark, during her life, and at her death, should anything remain, the same to be divided among my heirs at law, ” that this was a devise of' a life estate, coupled with a power of alienation; that such power was given the widow by the clearest implication, by the words, “and at her death, should anything remain. ” And see Paine v. Barnes, 100 Mass. 470.

We find in the will under consideration, the words which we have adverted to clearly indicating that a larger power of disposal was intended to be given by the will than that of a life estate, a power of disposal of the fee, and hence that the case does not come within the doctrine relied upon limiting the right of disposition to the life estate, where there is a power of disposal accompanying a devise of a life estate.

But although we find that by this will there was given to the widow the power of disposition in fee of the real estate devised, yet it was not an absolute power of disposal which was given,—it was a power only “to dispose óf so much of the same as she may need or wish to use during her lifetime. ” The power of disposition was limited to the need and personal use of the widow. For such purpose she might dispose of the property, but not for any other purpose. Does the deed in question, of the widow to William Blackburn, come within the limit of the power as a disposition of the property for the widow’s own need and personal use, or for another and different purpose, and so not authorized by the power given by the will P We are inclined to view this deed in the latter light. By the deed itself, instead of disposing of the property to meet any need or personal use of the widow herself, the property is expressly retained for her use and enjoymetit so long as she lives, and it is not until her death that the deed is to take effect. The purport of the instrument is to dispose of the use and enjoyment of the property after her death—to be ip. reality for the benefit of the grantee, rather than to meet the requirement of any need or use of the grantor. Upon its "face the deed appears to us to be in substantial effect in the nature of a testamentary disposition in favor of William Blackburn, the grantee. Clearly, the widow was not authorized by the will to make a devise of the land.

The minor requirements which the deed contains looking .to the-interest of the grantor, as, that the grantee shall attend to the- property, keep it in repair, and attend to the wants generally of the grantor, we do not regard as sufficient to stamp the object of the deed as for the need and personal use of the grantor. It still appears to us to bear the character of a conveyance made in the interest and for the benefit of William H. Blackburn, rather than a disposition of the property, as contemplated by the will, for the need and personal use of the widow, and not to be a fair execution of the power which was conferred by the will. It follows that the instructions of the court below to the jury, that the will vested Mrs. Blackburn with full ownership of the land devised, and that her deed to William Blackburn conveyed to him the perfect title of the land, were erroneous.

The court excluded proof which was offered on the trial that' at the time the testator made his will his wife was about eighty-five or ninety years old; that he owned and resided on a farm of two hundred acres of land, over one hundred acres in cultivation, worth an annual rental of at least three dollars per acre; that he owned personal property of the value of $4000 or $5000, mostly interest-bearing notes; that he owned and possessed all said property at his death, in January, 1869; that his widow continued to reside on the homestead until her death, and that there was paid to her in June, 1871, on a final settlement of her husband’s estate, nearly $2000 in money. We think this testimony might properly have been received as bearing upon the question whether the disposition of the land was needed for the support of the widow, or was, in truth, made for her personal use.

The judgment will be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Scholeield took no part.


author: Mr. Justice Scholpield

text:
    Jane Winslow v. Nancy Cooper.

      Filed at Springfield September 28, 1882.

    1. Limitations—act of 1839—what is color of title. A quitclaim deed for a parcel of ground which includes a strip claimed adversely by another party, is color of title to such strip, under the seven years Limitation law, and possession and payment of taxes thereon, under such claim and color of title, for seven successive years, will be a bar to a recovery in ejectment under such adverse claim or title.
    2. Same—possession not lost by use in others subordinate to the party claiming. The use of a strip of land adjoining a party’s lot, by the claimant’s permission, in connection with other property adjoining it, as a common driveway by others, and also by himself, does not impair such claimant’s possession under the Limitation law. In such case the use of the strip is not adverse, but strictly in subordination to his right of possession.
    3. Evidence—on question of possession under claim and color of title. The signing and acknowledging of a plat of certain grounds, for the purpose of describing the land of the signer, and that adjacent thereto, by numbers, for conveyance and taxation, in which a strip of land was marked as belonging to another, and the declaration of such signer that his land only came to a certain fence, which would not include such strip, is competent evidence against such party on the question of possession under claim and color of title.
    4. Same—admissions—declarations—of their weight as evidence. In order to make an admission or declaration of a party of any value as evidence, it ought to appear that it was made by the party with a full knowledge of his rights, and deliberately. If made in ignorance of his rights, it amounts to nothing. The jury, in weighing such evidence, should consider all the circumstances throwing light on the admission.
    5. Same—declaration of former owner of land, as affecting title. On the trial of an action of ejectment, the plaintiff, who claimed title under one H., proposed to prove by a witness that once, while he and H. were looking at the land in dispute, the witness proposed to buy it of H., but H. declined to sell it, for the reason that he wanted it for a driveway, which the court refused to allow: Held, that this evidence was not admissible on the ground that it was a part of the res gestee, nor on the ground that it was a declaration against interest.
    6. Same—declaration as to disputed boundary. Nor is such evidence admissible on the ground it was a declaration as to the boundary line between H. and the defendant, it not being shown that H. was in possession of the land, and that there was any dispute then,- in regard to the boundary line, between H. and the .defendant, especially 'when the effect of such evidence was not to settle a boundary line, but to show title in H.
    7. Estoppel in pais—not available in an action of ejectment. Estoppels in pais affecting permanent interests in land, can only be made available in a court of equity. They can not be used in the.trial of an action of ejectment.
    8. Same—declarations must have been acted on. The declarations of a party not made with a knowledge of the facts, or with the intention they should be acted on, or which, in fact, have not been acted upon, will not constitute an estoppel in pais.

    9. Description—sufficiency as to certainty. A description of land, in a tax receipt or deed, as, the “North side S. "W. \ of block 2,” etc., is not void for indefiniteness and uncertainty. Those words mean the north half of the south-west quarter of the lot. Mathematical accuracy is not indispensable, and descriptions are not to be rejected because they are awkwardly and inaptly expressed. If, taking the language in the connection in which it is used, the meaning is reasonably clear to the ordinary apprehension, it is sufficient.
    Appeal from the Circuit Court of McLean county; the Hon, Franklin Blades, Judge, presiding.
    Mr.-Wm. E. Hughes, and Mr. B. D. Lucas, for the appellant :
    The admissions and declarations as to the boundaries of land, made by a former owner, are proper evidence. Jackson v. McCall, 10 Johns. 377; Doggett v. Shaw, 5 Metc. 223; Van Deusen v. Turner, 12 Pick. 522; Orr v. Hadley, 36 N. H. 575; Ware v. Brookhouse, 7 Gray, 454; Wood v. Foster, 8 Allen, 24; Sullivan County v. Gordon, 57 Me. 522; Woody. Willard, 37 Vt. 377; Smith v. Powers, 15 N. H. 546.
    Appellee is estopped from asserting title to the strip of land, by her agreement or plat under seal. There is no pretense made that at the time Mrs. Cooper executed this certificate in Mr. Ela’s office, she imposed any conditions as to its delivery. Not having done so, the certificate, deed, sealed agreement, indenture,—call it what you will,—took effect then and there.

      Where a party executes a deed which is left with an agent, or in the hands of a third jiarty, this will amount to a delivery. Henrichsen v. Hodgen, 67 Ill. 179; Rawson v. Fox, 65 id. 200. And the subsequent assent of the grantee to receive it, renders it operative. Kingsbury v. Burnside, 58 Ill. 310; Dale v. Lincoln, 62 id. 22.
    The plat is. good inter partes, without being acknowledged and recorded. Semple v. Miller, 2 Scam. 315; Bowman v. Wettig, 39 Ill. 416.
    When lines are laid down on a map or plan, and are referred to in a deed, the courses, distances, and other particulars appearing on such plan are to be as much regarded as the true description of the land conveyed as they would be if expressly recited in the deed. Davis v. Ramsford, 17 Mass. 207; Magoun v. Lapham, 21 Pick. (Mass.) 135; Blaney v. Rice, 20 id. 62.
    If parties to a deed bound the land conveyed upon a street, they are, in an action concerning the boundary of the land, estopped to deny the existence of the street. Parker v. Smith, 17 Mass. 413.
    So, too, where the land is bounded on a private way not defined in the deed, but shown on a plan referred to therein. Fox v. Union Sugar Refinery, 100 Mass. 292; Morgan v. Moore, 3 Gray, 319; Lunt v. Holland, 14 Mass. 149; Davis v. Ramsford, 17 id. 207; Parker v. Bennett, 11 Allen, 388; Murdock v. Chapman, 9 Gray, 156.
    ■ Appellee is estopped from asserting title to the land by matters in pais. The rule is well settled that an estoppel in pais can be shown in ejectment suits in this State. Noble v. Chrisman, 88 Ill. 186.
    • Mr. C. Bayburn, and Mr. Ira J. Bloomfield, for the appellee :
    Appellee had seven consecutive years’ possession under color of title, and paid all taxes assessed during that time.

      The description in the tax receipts, in connection with the other evidence, is not void for uncertainty. Blakely v. Bestor, 13 Ill. 708; Enslow v. Kennicott, 46 id. 187; Chiniquy v. People, 78 id. 578.
    The receipts, with the other evidence, are sufficient to satisfy the mind of any reasonable man on what land the taxes were paid, and that is all the law requires. 80 Ill. 268; 93 id. 116; 101 id. 349.
    The declarations of a deceased owner as to landmarks or boundaries, if disinterested, are admissible even in favor of those claiming under him; but as to title, refusal to sell, or the intended use of the property, they are inadmissible.
    An estoppel in pais that will transfer title to real estate can not be enforced in a court of law, and there is no estoppel by deed in this case. Mills v. Graves, 38 Ill. 456; Blake v. Fash, 44 id. 302; Livingston v. Hayes, 34 Mich. 384; 102 Ill. 514.
    Making and recording a plat will serve to dedicate streets and alleys to the public. The Statute of Frauds does not apply to such a conveyance of land, and a dedication may be made by parol, but not transfers between private individuals. Crowell v. Maughs, 2 Gilm. 422.
   Mr. Justice Scholpield

delivered the opinion of the Court:

This was ejectment by appellant, against appellee, for a certain strip of ground, some four and a half feet in width and sixty feet in depth, in the city of Bloomington. The proof shows that on the 23d of September, 1864, Gridley and wife conveyed, by quitclaim deed, to appellee, a parcel of ground, which includes the strip in controversy. This constituted color of title, and the principal questions discussed in argument relate to the'sufficiency of the evidence to show possession and payment of taxes by appellee, under this color of title, for seven successive years.

There is a sharp controversy in the testimony of different witnesses with regard to the question of possession, but we are unable to say the court below clearly erred in finding the preponderance to be with appellee. A number of witnesses testify that a fence was built, as early as 1840, on the south line, substantially, of the strip in controversy, and that appellee was in possession, under her deed, of the ground north of that fence, so as to include the strip in controversy, from the date of her deed until the commencement of the suit, continuously. The number of those who thus support appellee’s claim of possession is greater than that of those who controvert it, and from what is before us it is impossible for us to say that the latter show any marked superiority, in respect of fairness or intelligence, over the former.

Appellant’s counsel, however, contend that appellee is equitably estopped to claim the strip in controversy, for two reasons: First, on the 28th of July, 1880, she, jointly with other adjacent property holders, signed and acknowledged a plat, made for the purpose, of more definitely describing her property, and that adjacent thereto, by numbers, for conveyance and taxation, and in that plat the strip in -controversy was marked as belonging to appellant; second, just before James P. Hodge sold to appellant, himself and two brothers went through the alley which includes the strip in controversy, and when in front of appellee’s they asked appellee how far down south her land went, to which she replied that it went down to the picket fence on Madison street,—and this, it is understood, does not include the strip in controversy. It would seem a sufficient answer to this, that estoppels in pais affecting permanent interests in land can only be made available in a court of equity. St. Louis Stock Yards v. Wiggins Ferry Co. 102 Ill. 514; Wales v. Bogue, 31 id. 464; Mills v. Graves, 38 id. 466; Blake v. Fash, 44 id. 302. But indispensable elements of an estoppel in pais are wanting. It is not shown the declarations were made with knowledge of the facts, or with the intention they would be acted upon, or that they were in fact acted upon, (Mayer v. Erhardt, 88 Ill. 452, People v. Brown, 67 id. 435, Flower v. Elwood, 66 id. 438, Knoebel v. Kircher, 33 id. 308, and Ball v. Hooten, 85 id. 159,) and so it is equally insufficient to arrest the running of the Statute of Limitations, as contended by counsel, as to pass a legal title. This "is undoubtedly competent evidence on the fact of possession under color and claim of title, but nothing more. If appellee admitted that her property did not include the strip in controversy, it was the strongest of evidence that she was not in possession of it under color and claim of title. But in order that such.evidence shall be of any value, it ought to appear that it was made with full knowledge of her rights, and deliberately. If hastily made, and in ignorance of her rights, it amounts to nothing, and in all such cases, in weighing the evidence the jury should take all the circumstances throwing light on the admission into consideration.

■ The plat here was made by Ela, the county surveyor, at the instance of parties other than appellee. Her attention had not been directed to the subject until she was requested to sign it, and when she did sign it she says her attention was directed to other matters, and Ela did not call her attention to the particular effect of it. Whether in this latter statement she is entirely accurate, the circumstances were certainly not favorable to mature reflection, especially for an ignorant and uneducated person, as she was. She shows,— and in this is uncontradicted,—that a large political meeting was being held. She was engaged in preparing a dinner for a number of those in attendance, and was also interesting herself in raising money for her church. In the discharge of these two-fold duties it became necessary to pass Ela’s door, and when about to do so she stepped into his room to ask him to make a subscription in aid of her. church, when he presented the plat for her signature, and she signed it. On subsequent reflection she became dissatisfied with having signed the plat, and next morning requested Ela t,o take her name from it. He proceeded no further with the plat, and there is no pretense that appellant, or any one else, has ever been led to act in a way they would not otherwise have acted, upon the faith of appellee’s signature. To take this party’s -property away, or to close her mouth as to the truth in regard to the title, because of such an act, would bring the law into just and great reproach. What the truth was in regard to this line, and whether appellee knowingly and deliberately signed this plat, were proper questions for the jury, and upon which they have passed after hearing all the evidence that could be adduced on either side, and no artificial rule of law compelled them to believe in regard to it contrary to their senses.

The conversation with the Hodges is not recollected by appellee as it is by them. She says she was talking about the line back of her lot and east of hér house, and not about the line south of her lot. The conversation, at best, appears to have been but casual. ' Appellee was not doing, nor required to do, any act in regard to her property, and it does not. appear that she was apprized that any importance would attach to her answers. All the circumstances considered, it is quite probable the parties misúnderstood each other, and we think the jury might well have so concluded. The declaration testified to by appellant is denied by appellee. We need but repeat, the effect of all the evidence upon the question of possession was for the jury, and we do not feel warranted in saying they palpably erred in that regard.

If, as appellee testifies, this strip was by her permission used, .in connection with other property adjoining it on the south, as a common driveway, by others and also by herself, her possession was not thereby impaired. Under such circumstances their use of the strip is not adverse to, but strictly in subordination to, her right of possession.

Appellant proposed to prove by a witness that once, while he. and one Hodge were looking at the .property in dispute, witness proposed to buy it of Hodge, but Hodge declined to sell it, for the reason that he wanted it for a driveway; but the court, on objection of appellee, refused to admit the evidence, and this ruling is now urged as error. It is patent that this evidence was not admissible on the ground that it was a part of the res gestee, nor on the ground that it was a declaration against interest; and the only other ground of which we are aware upon which it might be plausibly claimed that it was admissible, is, that it was the declaration of a party in possession as to the boundary line between himself and another. (See Noble v. Chrisman, 88 Ill. 186.) But it was not shown there was any dispute, then, in regard to tha boundary line between Hodge and-appellee, nor is it entirely clear that Hodge was then in possession, as owner, of any ground lying on that side of appellee’s property. But be that as it may, the effect of the proposed evidence is not to settle a boundary line, but to give title,—not to prove where the boundary line between Hodge and appellee was, but that Hodge owned the property in controversy.

The first payment for taxes made by appellee under her deed, was February 13, 1865. She then paid the taxes for 1864, which were not due until after she received her deed. On January 14, 1866, she paid the taxes for 1865, and on February 11, 1867, she paid the taxes for 1866. In each of the receipts for these payments the property is described as “North side, S. W. \ of block 2, Miller, Foster and others’ addition to Bloomington.” On March 10, 1868, she paid the taxes for 1867; March 30, 1869, she paid the taxes for 1868; January 31, 1870, she paid the taxes for 1869; February 21, 1871, she paid the taxes for 1870; and March 27, 1872, she paid the taxes for 1871. In each of these receipts the property is described as lot 4, block 2, Miller, Foster and others’ addition to Bloomington. Appellee testifies that during these years, and for subsequent years, she paid all the taxes assessed on the ground she claims and then occupied.

But counsel insist the payments made in 1865, 1866, and 1867, were void because of the indefinite and imperfect description of the property. We can no,t concur in this view. It is not denied that if the description had been “north half” instead of “north side, ” it would have been sufficient, and included the property in controversy. In Chiniquy v. People, 78 Ill. 570, we held that the words “east end” meant “east half, ” and there is obviously equal or greater propriety in here holding that the word “side” means “half.” The word “side” is, undoubtedly, often used to express the idea of a line, edge or surface, but it is also sometimes used to express the half or part lying on one side or the other of a central line, either actual or ipiaginary, drawn through a body, and it depends entirely upon the context whether one meaning or the other be intended. Thus, “right side of the body, ” used in contradistinction to the left side, clearly means “right half.” Thus, Webster, in his Unabridged Dictionary, gives as the fourth definition of the noun “side:,” “One-half of the body (human or otherwise) considered as opposite to the other half; especially one of the halves of the body lying on either side of the.mesial plane,—that is, of a plane passing from front to back through the spine.” It may be admitted “north side” is an awkward and inapt way of describing the “north half,” but, in cases like the present, mathematical certainty is not indispensable, and descriptions are not to be rejected merely because they are awkwardly or inaptly expressed. If, taking the language in the connection in which it is used, the meaning is reasonably clear to the ordinary apprehension, it is sufficient.

In construing this language we must commence with the idea that the intention in using it was to describe a definite and tangible part of the designated lot, for the purpose was to designate,—point out specifically,—property against which taxes could be extended, and from which they could be collected by its sale. Manifestly, a line, edge or verge conveys no idea of property, and so, it is believed, it would be generally understood they could not have been intended. To embrace property, width as well as length was indispensable; and, this being conceded, it must follow that the “north half, ” or width from the north line to the central east and west line, was intended, for there is no possible intermediate limit, and width, without tangible and definite limit, is as meaningless, in describing property, as is a single straight line. If it be. said A owns the north side of a given field, and B owns the south side of it, it is believed it will be universally understood that A and B own the whole field.’ No definite space is left to be occupied by any one else. In such case no one could doubt where is the dividing line between A and B. It can be nowhere else than an east and west line, drawn through the center of the field,- dividing it into halves. The only difference here is, while the “north side” is expressed, its opposite or counterpart, “south side,” is not expressed. If both were expressed in juxtaposition, there could be no doubt. How, then, can there be here reasonable doubt ? From that which is expressed, and as expressed, it is clear its use is in implied juxtaposition to that which is not expressed,—that is, to say “north side, ” implies a “south side, ” and, used to indicate width as well as length, the two necessarily imply an entire definite surface. We are satisfied no violence is done to the language, and that justice will best be promoted by holding that “north side,” in the connection in which the words are here used, means “north half.”

After the payment of 1867 the assessments were made, and the taxes paid,' in accordance with an assessor’s plat, to which, so far as affects the present case, we perceive no substantial objection, and so we conclude, especially when the parol evidence showing an actual payment of taxes upon the property possessed by appellee is taken into consideration, the proof of payment of taxes is sufficient.

The rulings of the court in regard to the instructions are, in some respects, not entirely free from critical objection, but we perceive no error in that regard which, after- a full and careful consideration of the entire record, ought, in our opinion, to authorize a reversal. Assuming, as has been seen, we think the evidence warrants that the proof of payment of taxes and possession is ample, the verdict below is clearly right, and under no proper instructions ought a different result to have been reached.

The judgment will be affirmed.

Judgment affirmed.


text:
    Benjamin Harrison et al. Admrs. v. Samuel W. Lindley.

      Filed at Springfield September 28,1882.

    Pleading and evidence—as to claim against an estate, alleged to arise “as per contract.” On a claim filed in the county court, against an estate of a deceased person, for work and labor done, and for boarding, care, and money expended “as per contract, ” a recovery may. be had upon an implied contract. On prooi of such services, etc., under circumstances showing they were not mere gifts, a recovery may be had without proof of a special contract for the payment.
    Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Edgar county; the Hon. C. B. Smith, Judge, presiding.
    Mr. T. J. Golden/ and Mr. E. Callahan, for the appellants:
    The claim in writing first filed was abandoned by appellee resorting to the amended claim filed September 6, 1880. They both can not stand as claims against the estate. The first rests the theory of recovery upon an implied liability, and the second upon an express contract, except as to three items. The statute provides that a “claimant shall produce his claim in writing, ” and “the ease shall be tried and determined as in other suits at law.'” Eev. Stat. chap. 3, sec. 60. The “claim in writing” takes the place of a declaration, and the allegations and proofs must correspond. Brock v. Slaten, 82 Ill. 282; Russell v. Hubbard, 59 id. 335.
    "When, the declaration is upon a special contract, the allegations and proofs must correspond. Mastin v. Toucray, 2 Scam. 216; Chicago amd Alton R. R. Co. v. Michie, 83 Ill. 427; Tracy v. Rogers, 69 id. 662; Wheeler v. Reed, 36 id. 81.
    In the. case at bar, the appellee, on the trial, not only departed from the character of his claim, in the evidence adduced, but at his instance the court followed the-departure in the instructions, which were properly excepted to.
    Mr. S. S. Whitehead, for the appellee:
    The objection to the amendment of the claim came too late in the Appellate Court, and certainly is too late in this court. Schlenker v. Riley, 3 Scam. 483; Lusk v. Cassell, 25 Ill. 209; Illinois Central R. R. Co. v. Simmons, 38 id. 242; Compton v. The People, 86 id. 176; Demesmey v. Gravelin, 56 id. 93.
    But the amended claim was properly filed, and it was discretionary with the court. Jackson v. Warren, 32 Ill. 331; State Bank v. Buckmaster, Breese, 133; Miller v. Metzger, 16 Ill. 390; Brown v. Smith, 24 id. 196.
    There is no claim by appellee of an express contract between the decedent and him for his services before his marriage, and the proof of the value of his services after the express contract was made, fully sustains the amended claim for such services in their nature and amount. There is no variance between the claim and the proof, and if there was anything lacking in the form of the complaint, it was cured by the verdict. Kelsey v. Lamb, 21 Ill. 559; Brazzle v. Usher, Breese, (Beecher’s ed.) 35; Graham v. Dixon, 3 Scam. 115 ; Burst v. Wayne, 13 Ill. 599.
    Messrs. Sellar & Dole, also for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a controversy arising out of a claim, by appellee, against the estate of Henry Harrison, who died intestate March 15, 1878. Appellants are administrators of the estate. On May 20, 1878, the claim was filed in the county court, for $14,546.44. This claim, at that time, was in the form of an itemized account for work and labor done for deceased, and for boarding, and care, and money expended. In 1880, pending the controversy, the form of the claim was changed, and the same amount was claimed to have arisen from the same source “as per contract” made with the deceased. The case was taken to the circuit court, where there were three trials, the verdict at each trial being for the claimant. Two new trials were granted by the circuit court, but that court refused to set aside the verdict at the last trial, and judgment was given for the claimant. The administrators appealed to the Appellate Court, where the judgment of the circuit court was affirmed. From the judgment of the Appellate Court the administrators appeal to this court.

To reverse the judgment, appellants insist that the court erred in charging the jury. The instructions were numerous, and several instructions asked by appellants were refused. It is not deemed necessary to discuss each instruction separately. It is insisted that under the claim, as amended, no recovery could be had unless a special contract was proven, and that it was error to charge the jury that a recovery might be had upon an implied contract. I do not think that the statute, in requiring claims against estates to be filed in writing, was intended to introduce such strictness in the trial of such claims. Mo special pleading is required in such cases. Where the claim is for services, care, goods furnished, and the like, claimed to.have been furnished under a contract, and on the trial the performance of the services, or care, or the furnishing of the goods, is proven under such circumstances as to show they were not mere gifts, it would work great injustice to say no recovery could be had save on proof of a special contract for the payment. This, it is believed, never was the rule of practice in probate courts in this State. The substance of the refused instructions, in so far as they lay down a correct rule, was given in other instructions, and no wrong was done appellants. Some of the instructions were properly refused, as simply calling the attention to particular parts of the testimony.

Upon the whole, we find no adequate ground for the reversal of the judgment of the Appellate Court. It is therefore affirmed.

Judgment affirmed.