author: Mr. Justice Scholeield

text:
    Henry D. Dement et al. v. Henry W. Rokker et al.

      Filed at Springfield November 14, 1888.

    1. Stjpbeme Coukt—its jurisdiction—wnder existing legislation—the Appellate Court act, and the Practice act. The act of June 6, 1887, entitled “An act to amend section 8 of an act entitled ‘An act to establish Appellate Courts,’ approved June 2,1877,” does not affect the jurisdiction of the Supreme Court, and if it had attempted to do so, it would, in that respect, have been void, since its title relates only to the Appellate Courts.
    2. The jurisdiction of the Supreme Court is defined by sections 88, 89 and 90 of the “Act to amend an act entitled ‘An act in regard to practice in courts of record,’ ” which took effect July 1,1877, and subsequent acts amendatory thereof; and the act of June 6,1887, does not profess to repeal any portion of that act,.or any act amendatory thereof, and it does not, in terms, refer to it, nor does it assume to revise it, or to reenact any pre-existing law covering the same subject matter.
    3. Appeal—in mandamus. The Supreme Court has jurisdiction, by appeal or writ of error directly from or to the trial court, to review the judgment of the latter court in a proceeding by mandamus.

    4. Mandamus—plaintiff must.show a clear right. To entitle a party tp the writ of mandamus, he must show a clear right to the relief sought. If the right be doubtful, the writ will not be awarded.
    5. Pleading—in mandamus—as at law. Under our statute, a mandamus proceeding is an action at law, and it is therefore governed by the same rules of pleading that are applicable to other actions at law.
    6. Same,—allegation as to preventing competition at a public letting of contract. To a petition for a mamdamus against State officers composing the commissioners of contracts, and others, to compel the payment of money claimed to be due under a printing contract with the State, the defendants answered, alleging th“at the petitioners and others formed a combination, in the form of a partnership, for the purpose of preventing their competing with each other in bidding for the printing; that the bids were made, and the contract was thereafter entered into, pursuant to that purpose; that the petitioners and one D. paid to several others $1000 as the consideration for their entering into the combination and refraining from competing at the bidding: Held, on general demurrer, that the answer, while Jacking in precision of statement, was substantially good.

      7. Demurrer—admits allegations well pleaded,. A demurrer to an answer to a petition for a mandamus admits the facts stated in the answer; and when the answer shows the non-joinder of necessary parties plaintiff, a general demurrer thereto will be an admission of that fact.
    8. Parties—pan-ties plaintiff—to enforce an obligation to several. All persons who are partners in a firm at the time a contract is made, must, unless there be a legal excuse for not joining them, be joined in an action to enforce its payment. If a partner be dead, etc., the plaintiff suing must allege it as an excuse for not joining him.
    9. In a proceeding by mandamus to compel certain State officers to settle and pay money on a contract with the petitioners, it is necessary to make all the persons originally interested in the contract as partners, parties to the suit. A portion of the partners can not maintain the suit in the firm name, nor can they maintain the proceeding omitting one of the partners, by alleging that he has sold his interest in the contract to another one of the firm.
    10. So a writ of mandamus will not be awarded to enforce a private right, where parties are shown to have a legal interest in the right or contract sought to be enforced, who are not before the court, and whose rights would be collaterally determined by the judgment prayed for.
    11. Same—non-joinder of necessary parties—liow availed of. In all cases of actions upon contracts, if it appear upon the face of the pleadings that there are other obligees, covenantees or parties to the contract, who ought to be, but are not, joined as plaintiffs in the action, the omission is fatal on demurrer, or on motion in arrest of judgment, or on error; and if the ground of objection does not appear on the face of the pleadings, the defendant may avail of it, either by plea in abatement or as a ground of non-suit on the trial,—as, a variance upon non est factum, if the action be upon a specialty, or if it be upon any other contract, upon the plea of the general issue.
    12. State contracts—presumption as to legality—distinction in that regard between contracts for the public, and those which are private. There is a distinction between contracts where the parties have an inherent right to contract, and contracts where there is no inherent power to contract, but the contract is purely by virtue of a special statutory authority. In the former, the contract is presumed to be lawful, and it devolves upon those who deny its validity to show that it is unlawful; while in the latter instance the reverse is true. The burden rests on those seeking to enforce it, to show that the contract is within the statutory authority.
    13. Same—State printing contracts—powers of the board—competition must not be obstructed. Where certain State officers are by statute constituted a special board to enter into contracts for printing for the State, with the lowest responsible bidders, upon a proper letting, such officers will have no power to act except in the manner provided for by the law, and all persons dealing with such board will be charged with notice of the extent and limitations upon their powers. The law requires that every prerequisite to the exercise of the power shall precede such exercise, in the order and manner directed.
    14. It is a condition precedent to the power of the State Board of Contracts to contract so as to bind the State, that there shall be a public letting of the work, in which there is entire freedom of competition, and that the person with whom they contract is the lowest responsible bidder. The board may, however, reject the lowest bid when the bidder is not responsible.
    15. The law authorized certain State officers to let contracts for certain work to be done for the State, to the lowest responsible bidder. If, under such law, a contract is let to parties in violation of its provisions, the contract will be void, and no recovery can be had under it. So if the successful bidder has secured a contract by means of an unlawful conspiracy to prevent competition in bidding, the contract will be void. Ho one can derive any rights under a contract procured by the preventing, on his part, of competition in bidding,—and this applies with like force to public as well as private contracts.
    16. Letting by contract to the lowest responsible bidder, implies equal opportunity and freedom in all whose inclination or interests may incite them to bid; and no one can claim to be the lowest bidder when others are kept from bidding by an arbitrary arrangement to prevent competition.
    17. Same—of the statute relating to the letting of State contracts— construction—prohibitory of preventing competition. The statute providing for the lotting of State contracts to the lowest responsible bidder, and the section thereof denouncing a punishment on those preventing public competition, and the section of the Oriminal Oode on the same subject, are to be construed as in pari materia, as they relate to the same subject.
    18. A statute imposing imprisonment in the penitentiary upon any one who shall do an act to prevent freedom of competition at the bidding for State contracts, is equivalent to a direct prohibition of the denounced acts, and if the guilty party has the contract awarded to him it will be void.
    19. Statute—when mandatory. "When the provision of a statute is the essence of the thing required to be done, and by which jurisdiction to do it is obtained, it will be held to be mandatory, and not merely directory.
    20. Estoppel—never applied to the State. The State is never estopped, as an individual or private corporation may be, on the ground that its . agent is acting under an apparent authority which is not real, the conclusive presumption that his powers are known, rendering such a consequence impossible.

      Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    This was a proceeding in mandamus, in the circuit court of Sangamon county, upon the petition of Henry W. Rokker, Thomas Rees and Charles T. Strattan, partners, under the firm name of H. W. Rokker & Co., against Henry D. Dement, 'Charles P. Swigert, John R. Tanner and George Hunt, Commissioners of State Contracts, and also Charles P. Swigert as Auditor of Public Accounts.
    It is, in substance, alleged in the petition, that on the 13th day of September, 1886, the firm of H. W. Rokker & Co., then composed of the petitioners and one Clarence H. Davenport, ■entered into contract with the People of the State of Rlinois, by the Commissioners of State Contracts, under and by virtue of the laws of the State of Rlinois, to-wit, “An act to revise the law in relation to State contracts, ” approved March 31, 1874, in force July 1, 1874, and the several acts amendatory thereof, for the public printing of the State of Rlinois for the two years from October 1, 1886, to September 30, 1888, designated by the laws of Rlinois as printing of the first, second, third; fourth, fifth and sixth classes, but which said contracts were by said Commissioners of State Contracts required to be dated as of the 7th day of September, 1886. They further show, that after the execution and filing of said contracts, to-wit, on September 23, 1886, one of said partners, to-wit, Clarence H. Davenport, sold and assigned aU his interest in each of said contracts to his co-partner, Henry W. Rokker, of which sale and assignment said Commissioners of State Contracts then and there had notice; that upon the said execution of said contracts for said six classes of printing, said firm of H. W. Rokker & Co. executed and filed with the Secretary of State of Illinois, as required by law, their obligations, with sufficient surety, approved by the Governor, for the faithful performance of all said contracts, the amount of said bonds aggregating $27,000. They further show, that the petitioners entered upon the execution and performance of said printing contracts, to-wit, on October 1,1886, and from thence hitherto, and until the filing of this petition, have fully and faithfully executed and performed, all and singular, the agreements and undertakings on their part undertaken and agreed in said printing contracts, and in accordance with the laws of the State of Illinois in relation thereto; that between the 12th day of January, 1887, and the 21st day of April, 1887, there were delivered to petitioners, through the Secretary of State, as required by law, 1194 several orders for public printing of the first class, in and by which said orders petitioners were required, under the law and their said contract for said first class, of printing, to execute and iDerform, aggregating in amount, according to the conditions of the said contract, the sum of $6916.20; that petitioners did execute and perform the Work specified in said several orders, according to law and their said contract, and the work so executed at the several dates thereof was by petitioners delivered to the Secretary of State, at the State capítol, and accepted by him, and the same was appropriated, used and consumed by the various State departments- and agencies; that between the 14th day of October, 1886, and April 22,1887, there were delivered to petitioners, through the Secretary of State, as required by law, 675 several orders for public printing of the sixth class, in and by which said orders petitioners were required, under the law and their said contract for said sixth class of printing, to execute and perform, aggregating in amount, according to the conditions of said contract, the sum of $8443.35; that petitioners did execute and perform the work specified in said several orders according to law and their said contract, and the work so executed at the several dates thereof was by petitioners delivered to the Secretary of State, at the State capítol, and the same was accepted by him, arid appropriated, used and consumed by the various State departments and agencies; that between December 20, 1886, and April 14, 1887, there were, by the Secretary of State, as required by law, delivered to petitioners 46 several orders for public printing of the second class, in and by which said orders petitioners were required, under the law and their said contract for the second class of . printing, to execute and perform, aggregating in amount, according to the conditions of said contract, the sum of $17,362.56; that petitioners did execute and perform the work specified in the said several orders, according to law and their said contract, and the work so executed at the several dates thereof was by petitioners delivered to the Secretary of State, at the State capítol, and the same was accepted by him, and appropriated, used and consumed by £he various State departments and agencies. They further show that said several amounts for the work executed and performed, and accepted, under said contracts for public printing of the First class amounted to......$6,916.20 Second class amounted to..... 17,362.56 Sixth class amounted to...... 8,443.35
    Aggregating the sum of.....$32,722.11
    But that prior to May 1, 1887, said Commissioners of State Contracts had caused to be certified to the Auditor, and so paid on account thereof, the sum of......... 24,000.00
    Leaving unpaid the sum of $8,722.11
    They further show, that on May 7, 1887, the petitioners presented the detailed, itemized statement and accounts of the orders for public printing, and by petitioners executed and performed, heretofore herein referred to, to the Secretary of State, who then required the printer expert of the State of Illinois to examine and compare the same with petitioners’ said contracts, and the vouchers and orders relating thereto, as required by law; that said statements and accounts were then received by said printer expert, and the same were by him examined and compared, as required by law, and the same being found correct, were by said printer expert so certified to said Commissioners of State Contracts,—and which original certificate is here exhibited, viz:

    “The foregoing aggregate charges in classes 1, 2 and 6 agree with my books, and are correct, to the best of my knowledge and belief.
    Jno. C. Hughes, Printer Expert.”

    They further show, that on said day, to-wit, May 7,-1887, and after said accounts of petitioners had been so certified to be correct by said printer expert, said Commissioners of State Contracts examined said accounts, and compared them with petitioners’ said contracts for first, second and sixth classes, and with the vouchers and orders relating thereto, and then and there found said accounts to be correct; that on the same day, to-wit, May 7, 1887, the unexpended balance of the appropriation for printing then being in the treasury of the State of Illinois, was $9172.05, and which unexpended balance of said appropriation- was then, and is now, available, under the law, for the payment of the orders for public printing so made and delivered as aforesaid, and so executed and performed by petitioners as aforesaid, and so represented and shown by petitioners’ said accounts so certified by said printer expert, and so found .by said Commissioners of State Contracts to be correct, as aforesaid; that on the same day, to-wit, May 7,1887,. petitioners demanded of said Commissioners of State Contracts that they certify petitioners’ said accounts to the Auditor of Public Accounts of the State of Illinois, as said Commissioners of State Contracts were then and there, under the law and practice in such case, bound and required to do, that thereupon the said Auditor might draw his warrant for the said S8Y22.il, unpaid balance of said accounts, and in favor of petitioners, as said Auditor, on such certificate, was then and there ready and willing to do, yet said Commissioners of State Contracts then wrongfully and unlawfully refused, and still do refuse, to so certify said accounts to said Auditor, as by law it was and is their duty to do, by means whereof the petitioners are prevented from receiving payment, out of the moneys appropriated, and then and now lying and being in the State treasury, for public printing, of the unpaid balance of $8Y22.11 due the petitioners on their said correct accounts, and to which they are justly and lawfully entitled; wherefore petitioners pray a writ of mandamus, directed to Henry D. Dement, Secretary of State; George Hunt, Attorney General; Charles P. Swigert, Auditor of Public Accounts; and John R. Tanner, State Treasurer, Commissioners of State Contracts of the State of Illinois, commanding them, as Commissioners of State Contracts, to forthwith certify petitioners’ said accounts to the Auditor of Public Accounts of the State of Illinois, as corrected, and payable from the appropriation for public printing, and commanding said Charles P. Swigert, Auditor, etc., to then forthwith draw his warranj, in petitioners’ favor, upon said John R. Tanner, Treasurer, etc., for said $8Y22.11, payable out of said appropriation, and commanding said Treasurer to then pay the same to petitioners, etc.
    The defendants answered, that they, by virtue of their respective offices, constitute the Commissioners of State Contracts of the State of Illinois; that on or about the 5th day of July, 1886, the Commissioners of State Contracts caused advertisements to be published, as required by law, asking for bids for doing the several classes of printing required to he done for the State of Illinois for the term of two years, beginning the 1st day of October, 1886,—all said bids to be filed with the Secretary of State on or before the 6th day oí September, 1886, and to be opened and the contracts awarded to the lowest and best bidder having complied with the law, on the 7th day of September, 1886. Defendants admit that bids were filed by H. W. Bokker & Co. for doing the several classes of printing for the State for the two years beginning October 1, 1886, which bids for doing the first, second and sixth classes of printing were the lowest and best bids received in compliance with the law, and said bids were accepted, and the contracts for' doing the said first, second and sixth classes of printing were awarded to said H. W. Bokker & Co., and in pursuance thereof, on the 13th day of September, 1886, contracts were signed by the Commissioners of State Contracts, and petitioners, with one Clarence H. Davenport, under the name of H. W. Bokker & Co., for doing said first, second and sixth classes of printing for the term of two years, beginning October 1, 1886. Defendants admit that bonds were executed, as required by law, to the amount of $27,000, conditioned for the faithful performance of the said contracts by said H. W. Bokker & Co. Defendants neither admit nor deny that Clarence H. Davenport sold his interest to Henry W. Bokker, or that he at any time owned one-fourth interest in the contract, but require strict proof. Defendants admit that H. W. Bokker & Co. entered upon the performance pf the contracts, and did work thereunder to the amount of $32,722.11, at the rates specified in the contracts; that the sum of $24,000 has been allowed and paid thereon; also, that there is in the State treasury an unexpended balance of $9172.05, appropriated b.y the General Assembly for the payment of printing done within two years, ending June 30, 1887; that petitioners have presented" their account, and demanded that the defendants, as Commissioners of State Contracts, certify the same to the State Auditor of Public Accounts for payment, and that defendants have refused to so certify the same. Defendants, further answering, say, that on or about the 6th day of September, 1886, Henry W. Bokker, Fred G-ehring, Phillips Bros., (including D. L. and J. L. Phillips,) Frank Hudson, Jr., Thomas S. Pinckard, Thomas W. S. Kidd, Charles Edwards, Clarence H. Davenport, Thomas Bees and Charles T. Strattan, formed a combination for the purpose of making bids for the several classes of printing to be done for the State of Illinois for the two years beginning October 1,1886, in accordance with the terms of the advertisement hereinbefore referred to, which said combination was formed in the form of a partnership, and for the purpose of obtaining the contracts for said printing at a high rate, and at higher rates than could otherwise be obtained, and for the further purpose of preventing the several members of said ■combination from competing with each other for the contracts for doing the said printing; and it was then agreed by the members of said combination, that bids on behalf of said persons so combining should be made and filed in the office of the Secretary of State, under the name or title of “H. W. Bokker & Co.,” for the several classes of printing,—all which matters and things were then, and until after the letting of the contracts referred to, and until after performance of the work for which payment is asked in this proceeding, unknown to the Commissioners of State Contracts, these defendants. Bids were filed in accordance with said agreement, in the name of H. W. Bokker & Co., then constituted as last aforesaid, for ■doing the several classes of printing for the two years beginning October 1, 1886, and the contracts for doing the first, second and sixth classes of printing were awarded to the said H. W. Bokker & Co., upon said bids; and as a part of and in pursuance of the agreement under and by which said combination or partnership was formed, and before the execution ■of the contract, set forth in the petition in this case, the petitioners herein, and said C. H. Davenport, paid to each of the other members of said combination, namely, Fred Gehring, Frank Hudson, Jr., Phillips Bros., T. W. S. Kidd, Charles Edwards and Thomas S. Pinckard, a large sum of money, to-wit, $1000, in consideration of their becoming members of said combination or partnership, and refraining from competing fox* the said several classes of printing, and in aiding the petitioners herein, and the said C. H. Davenport, to obtain such contract, and for no other consideration. Defendants aver that the said persons named above as constituting the firm of H. W. Rokker & Co., as last aforesaid, represented and included substantially all persons and firms or organizations in the city of Springfield who were engaged in the business of job printing, or who had facilities for doing the said several classes of printing, and included all persons in or out of the city of Springfield known to these petitioners to be likely to make bids for doing the several classes of printing. These defendants then had no knowledge as to who constituted the firm of H. W. Rokker & Co., and various members of the said firm or combination, namely, Fred Gehring, Charles Edwards, (using the name of the Shober & Carqueville Lithographing Co.,) Frank Hudson, Jr., and Phillips Bros., (composed of D. L. and J. L. Phillips,) separately filed bids for the same classes of printing included in the bids of H. W. Rokker & Co., all of which bids were at higher rates than the bids of H. WRokker & Co., except the bid of Fred Gehring, which was-irregular in form, and not in compliance with law, so that the same could not be accepted, and were made and filed fox-the purpose of deceiving and misleading the Commissioners of State Contracts. By the filing of separate bids, as aforesaid, the commissioners were deceived, and wrongfully led to believe' that the said several bidders -wei-e in competition with each other and with H. W. Rokker & Co., while, in fact, all were' interested in and parties to the bids of H. W. Rokker & Co., and thereby the Commissioners of State Contracts, these defendants, were misled, and unlawfully induced to award the-contracts for doing the first, second and sixth classes of printing to H. W. Rokker & Co., and subsequently to make and execute contracts for the same with these petitioners and said Clarence H. Davenport,—these defendants then understanding and being led to believe by these petitioners and the persons so combining with them, as aforesaid, that the petitioners and C. H. Davenport were the same persons represented and included under the style and title of H. W. Rokker & Co., in the bids filed for the several classes of printing, as aforesaid, which are the same contracts referred to and relied on in the petition for the writ of mandamus filed therein. Defendants aver that the said combination was formed in violation of the laws of the State of Illinois, and the contracts relied upon by the petitioners were procured by unlawful means, and by fraud upon the part of these petitioners, and through violation of law; and defendants further aver, that the said alleged contracts are null and void, and the same are of no binding force or effect upon the People of the State of Rlinois or these Commissioners of State Contracts, and no further payment ought to be made to these petitioners, or any other persons, by reason or on account thereof; wherefore the defendants pray judgment of the court here, whether the petitioners ought to have a writ of mandamus in this behalf, and that they, the defendants, be hence dismissed, with their costs, etc.
    The petitioners demurred to the answer, and the court sustained the demurrer, and thereupon, gave judgment that the writ of .mandamus issue as prayed. This writ of error is to bring in review that judgment, and the errors assigned bring before the court the questions discussed in the opinion.
    Mr. George Hunt, Attorney General, for the plaintiffs in error:
    The Commissioners of State Contracts have no inherent power to make contracts, or to bind the State, except by making such contracts as authorized by the statute, and in the manner prescribed. The constitution (see. 25, art. 4,) says, that all State printing shall he let to the lowest responsible bidder. The law passed to carry this provision into effect was designed to permit and encourage competition in bidding. If a person obtains a contract by preventing competition, he does not obtain it in accordance with the terms of the statute, and he can not enforce it. Paw v. Trustees, 72 N. Y. 463.
    When a contract is made for doing a thing prohibited by law, the courts will not aid in its enforcement. Pope v. Linn, 50 Maine, 84; Nolton v. Congress Co. 14 Blatchf. 364; Spring Valley v. Nolton, 103 U. S. 49.
    And this is so, though there are no prohibitory words in the statute. “ The Pioneer,” Deady, 72; Dillon v. Allen, 46 Iowa, 299 ; Penn v. Bornman, 102 Ill. 523 ; Assurance Co. v. Rosenthal, 55 id. 85; Village of Dwight v. Palmer, 74 id. 295; Law v. People, 87 id. 385; Fridley v. Bowen, id. 151; Fuller v. Chicago, 89 id. 282; Smith v. Beam, 15 N. H. 577; Wheeler v. Russell, 17 Mass. 258.
    No right of action arises in a transaction prohibited by law. McQuade v. Rosecrans, 36 Ohio St. 442; Musser’s Exr. v. Chase, 29 id. 577.
    That a contract made in violation of a statutory prohibition is void, is not controverted, and that the infliction of a penalty for the commission of an act is equivalent to an express prohibition of such act, seems to be settled by a great weight of authority. Bloom v. Richards, 2 Ohio St. 387; Solomon v. Dreschler, 4 Minn. 278.
    Whatever is done in fraud of a law is done in violation of it. “ The William King, ” 2 Wheat. 148; Lee v. Lee, 8 id. 44.
    The courts, from public considerations, refuse their aid to enforce obligations which contravene the laws or policy of the State. Canal Co. v. Vallette, 21 How. 414.
    If the unlawful character of the combination by the bidders permeated the contracts made in pursuance thereof, so as to taint them with fraud, and render them illegal, then no recovery for any work done thereunder can be had, either based upon a quantum, meruit or the contract price. Birkett v. Chatterton, 13 R. I. 299.
    It is idle to say that the -State is morally or equitably bound to pay for the work done, for the petitioners were the first to violate good morals and equity, and thereby to destroy all moral or equitable obligation on the part of the State. Neither a moral nor equitable obligation creates a legal obligation. Neither is it material to inquire whether the public are in fact injured. Mills v. Mills, 40 N. Y. 545; Atcheson v. Mallon, 43 id. 147; Gibbs v. Smith, 115 Mass. 592.
    The action being at law, can only be maintained by all the parties to it. The contract made by ten persons (the bidders) can not be enforced by only three of them.
    That the combination to prevent competition in bidding will defeat the action, see Howell v. Mills, 53 N. Y. 322; Hawley v. Cramer, 4 Cow. 717; Brackett v. Wyman, 48 N. Y. 667; Sharp v. Wright, 35 Barb. 236; Mullaly v. Mayer, 3 Hun, 661; 62 N. Y. 621; Railroad Co. v. Mathers, 104 Ill. 259.
    Messrs. Gboss & Bboadwell, for the defendants in error:
    The printing contracts were not void, but only voidable, at the most. 2 Parsons on Contracts, *746; Bishop on Contracts, sec. 470; Addison on Contracts, p. 381, see. 251; Pollock on Contracts, 7; Gould v. Steinburg, 84 Ill. 170; Bartlett v. Blaine, 83 id. 25.
    If the contracts were obtained by a combination in violation of the law, the offending parties were bound by them until rescinded by the other party. 2 Parsons on Contracts, *781, 782; Bishop on Contracts, sec. 489; Kerr on Frauds, 48; Peck v. Brewer, 48 Ill. 55.
    The most that can be said of the printing contracts is, that they were voidable at the election of the State. Until such election, they were binding on Rokker & Co. The State could not insist on performance, and then refuse to pay for the service. 2 Parsons on Contracts, *770, 776; Hewitt v. Clark, 91 Ill. 605.
    The fact that section 46 of the Criminal Code, and section 9 of the State Contract act, in denouncing the penalties for their violation, fail to declare the contracts void, indicates a clear intention to leave contract1 rights unaffected. Dowell v. Applegate, 7 Fed. Rep. 881; Bowen v. Byrne, 55 Ill. 467; Faikney v. Raynous, 1 Burr. 2070; Petrie v. Hannay, 3 T. R. 418; Farmer v. Russell, 1 Bos. & Pull. 296; Niemayer v. Wright, 75 Va. 239; Thalen v. Clark, 19 Conn. 421; Johnson v. Hudson, 11 East, 180; Tenant v. Elliott, 1 Bos. & Pull. 3; Pratt v. Short, 79 N. Y. 437; Johnson v. Bland, 2 Burr. 1077; Strong v. Farling, 9 Ohio, 201; Bemis v. Becker, 1 Kan. 226; Armstrong v. Toler, 11 Wheat. 258.
    The fact that one member of a union or company makes a fair bid in his.own name, or in a common name, for the benefit of all the members, the remaining members abstaining from bidding, is not, in law, a preventing of competition, and no such contract can be avoided as fraudulent, in the absence of averment and proof of injury and damage to the person complaining. Phipper v. Stickey, 3 Metc. 384; Small v. Jones, 1 W. & S. 128; Good v. Hawkins, 2 Dev. Eq. 393; Smith v. Greenlee, 2 Dev. Law, 126; Hamilton v. Hamilton, 2 Rich. Eq. 379; Piatt v. Oliver, 1 McLean, 295; Brisben v. Brown, 24 Ohio St. 565; James v. Fulcrod, 5 Texas, 512; McMinn v. Phipps, 3 Sneed, 194; Jenkins v. Frink, 30 Cal. 586; Smith v. Ullman, 58 Md. 183; Nat. Bank v. Sprague, 20 N. J. Eq. 159; Kearney v. Taylor, 15 How. 494; Marsh v. Russell, 66 N. Y. 288; Garrett v. Moss, 20 Ill. 549; Wicker v. Hoppock, 6 Wall. 94; Marie v. Garrison, 83 N. Y. 14; Carew’s Estate, 26 Beav. 187; People v. Stephens, 71 N. Y. 527.
    The averments of the answer do not bring the case within the statute. Fraud being a conclusion of law, it is incumbent on one who wishes to set it up by way of defense, to state the facts relied on as constituting the fraud. Roth v. Roth, 104 Ill. 35; Railway Co. v. People, 119 id. 182.
    Damage must he shown to have resulted from the fraud, to affect the contract. 1 Benjamin on Sales, 555; Bartlett v. Blaine, 83 Ill. 25 ; Bell v. Johnson, Ill id. 374; Bigelow on Fraud, 500; Bishop on Contracts, sec. 653; 2 Parsons on ■Contracts, *770; Dick v. Cooper, 24 Pa. St. 217.
    Before a party can rescind a contract for fraud, he must put the other party in statute quo. Bigelow on Fraud, 408-412; 2 Parsons on Contracts, *781, 782; Elder v. Sabin, 66 Ill. 126; Harzfeld v. Converse, 105 id. 534; Insurance Co. v. Botto, 47 id. 516; Underwood v. West, 52 id. 397; Harding v. Parshall, 56 id. 219; Dowden v. Wilson, 108 id. 257; Smith v. Brittenham, 98 id. 188; Kelsey v. Snyder, 118 id. 544; Phillips v. South Park Comrs. 119 id. 626; Doane v. Lockwood, 115 id. ■490; Smith v. Brittenham, 109 id. 540.
    The rule as laid down in the books is, that any party is entitled to the benefit of the writ of mandamus, who, by proper pleadings, makes it appear that the defendant refuses to perform a duty in the performance of which the petitioner is interested, and by the non-performance of which he would he injured. 4 Wait’s Actions and Defences, p. 360; County of Pike v. State, 11 Ill. 202; City of Ottawa v. People, 48 id. 233.
   Mr. Justice Scholeield

delivered the opinion of the Court:

When this case was first considered by us, we entertained some doubts whether we were not denied jurisdiction to fender judgment in it, by the provisions of an act approved June 6, 1887, entitled “An act to amend section 8 of an act entitled ‘An act to establish Appellate Courts,’ approved June 2,1877,” (Laws of 1887, p. 156,) and we therefore invited discussion, in writing, by the counsel upon the respective sides, upon that -question. In response to that invitation, the question was thoroughly discussed, in writing, by the respective counsel; and, aided by that discussion, we have now carefully considered the question; and, having done so, we have come to the conclusion that our former doubts were not well founded, and that our jurisdiction is unaffected by the act of the 6th of June, 1887. That act is limited, both by its title and by its subject matter, to Appellate Courts. While it is true that the name of this court occurs in the body of the act, it does so incidentally, only, and in an explanatory sense, and not as having its jurisdiction thereby contracted. But if the body of the act assumed to affect the jurisdiction of this court, it is clear that so much of it would be unconstitutional and void, since the title of the act only relates to Appellate Courts, and section 13, of article 4, of the constitution, provides, that “if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void * * * as to so much thereof as shall not be so expressed.” The. jurisdiction of this court is defined by the 88th, 89th and 90th sections of the “Act to amend an act entitled ‘An act in regard to practice in courts of record,” ’ etc., which took effect July 1, 1877, and subsequent statutes amendatory thereof. And the act of June 6,1887, not only does not profess to repeal any portion of that act, or of any act amendatory thereof, but it does not, in terms, refer to it; nor does it assume to revise it, or to re-enact law covering the same subject matter.

Under our statute, a mandamus proceeding is an action at law, and it is- therefore governed by the same rules of pleading that are applicable to other actions at law. (Bev. Stat. 1874, chap. 87, sec. 1,—2 Starr & Curtis, 1584; People v. Glann, 70 Ill. 232.) Hence, when the petition is to enforce a private right, the petitioner must be the party in interest. (Pike County v. State, 11 Ill. 202.) Necessarily, therefore, the writ will not be granted when parties are shown to have a legal interest in the contract sought to be enforced who are not before the court, and whose rights will be collaterally determined by the judgment, if rendered as prayed. People ex rel. v. Forquer, Breese, 104.

All persons who are partners in a firm at the time when a contract is made, must, unless there be a legal excuse for not joining them, be joined in an action to enforce its payment. 1 Chitty’s Pl. 12, *13; 2 Wheaton’s Selwyn’s Nisi Prius, 866, 867; Dicey on Parties, (Truman’s notes,) 172, *151. If there be a legal excuse for not joining a partner, as, if he be dead, etc., the plaintiff must allege it. 1 Chitty’s Pl. 14, *15; notes to Cabell v. Vaughan, 1 Saunders, (Williams’ notes,) 291 f. And Chitty says, (1 Pleading, 13, *14,): “In all cases of contracts, if it appear upon the face of the pleadings that there are other obligees, covenantees or parties to the contract, who ought to be, but are not, joined as plaintiffs in the action, it is fatal on demurrer, or on motion in arrest of judgment, or on error; and though the objection may not appear on the face of the ' pleadings, the defendant may avail himself of it, either by plea in abatement or as a ground of non-suit, on the trial,—as, a variance upon non est factum, if the action be upon a specialty, or if it be upon any other contract, upon the plea of the general issue.” See, also, authorities cited supra, and Armine v. Spencer, 4 Wend. 406; 16 Johns. 34.

The rule is familiar, that to entitle a party to the writ of mandamus, he must show a clear right to the relief sought. If the right be doubtful, the writ will not be awarded. People ex rel. v. Trustees of Schools, 86 Ill. 613; Brokaw v. Commissioners, 118 id. 239; Board of Supervisors v. People, id. 459.

This petition is filed by Henry W. Rokker, Thomas Rees and Charles T. Strattan, partners, under the firm name of H. W. Rokker & Co. It alleges, among other things, that “on the 13th of September, 1886, the firm of H. W. Rokker & Co., then composed of the petitioners and one Clarence H. Davenport, entered into a contract with the People of the State of Illinois, etc.; * * * that after the execution and filing of said contract, to-wit, on September 23, 1886, one of said partners, to-wit, Clarence H. Davenport, sold and assigned all his interest in each of said contracts to Henry W. Rokker, of which sale and assignment said Commissioners of State Contracts then and there had notice.” The answer admits that the contracts were made by the Commissioners of State Contracts with the petitioners and Clarence H. Davenport, under the name of H. W. Bokker & Co. There is no opportunity allowed Clarence H. Davenport to say whether the allegation that he sold and assigned his interest in the contracts to Henry W. Bokker, is true, and therefore, if, to-day, Bokker, Bees and Strattan may have a judgment that the money due on these alleged contracts be paid to them, why may Davenport, to-morrow, not have a judgment that precisely the same money be paid to him ? A majority of partners have no more right to appropriate a partnership name to their use than a single partner has the right to appropriate it to his use; and so it would be just as lawful for Clarence H. Davenport to file a petition to enforce these contracts in his name, alleging that Bokker, Bees and Strattan had sold and assigned their interests to him, as it is for these petitioners to proceed as they do. The State has no interest in the subsequent contract between the partners, and it can not be involved in any controversies that may arise thereupon between them. Its contracts, if with anybody, were with all the partners, and the question of its liability must be adjudicated with all, and it is therefore not bound to answer a part, only.

It is also further, in substance, alleged, in the answer, that on or about the 6th day of September, 1886, Henry W. Bokker, Fred Gehring,- Phillips Bros., (including D. L. and J. L. Phillips,) Frank Hudson, Jr., Thomas S. Pinckard, Thomas W. S. Kidd, Charles Edwards, Clarence H. Davenport, Thomas Bees, and Charles T. Strattan, formed a combination, in the form of a partnership, under the firm name of H. W. Bokker & Co., and that the contracts here sought to be enforced, were, in fact, made by all these persons, under the firm name of H. W. Bokker & Co. These allegations are involved with other allegations charging conspiracy, etc., but they are distinct, and their truth is admitted by the demurrer. What has been said with respect to the omission of Davenport as a party, applies with equal force to the omission of these additional partners. If a part of the members of a firm may allege a contract like those here involved, with themselves alone, omitting the names of the other members of the firm, who were, in fact, also parties to it, and have it enforced for their benefit, it must be obvious that the omitted members of the firm may do precisely the same thing,—and so, to protect the State against a double liability in such cases, it is indispensable, when it is made to appear that those seeking to enforce the contract are only a part of the firm with whom it is made, that relief be denied.

It follows, that, in our opinion, the court below erred in overruling • the demurrer. Inasmuch, however, as the errors indicated may be obviated by amendments to the pleadings, we deem it advisable to go further, and give our opinion upon other questions that have been discussed in the arguments before us, and which will necessarily arise again upon a trial of the case.

The contracts sought to be enforced assume to be executed, on behalf of the State, by the Secretary of State, Auditor of Public Accounts, Treasurer and Attorney General. These offices are created by the constitution, but that instrument confers no" power upon the incumbents to act as a .corporate or quasi corporate body, nor to bind the State by their contracts, as such; and from the nature of the duties devolved upon them separately, it is obvious that the incumbents have no inherent power to act in that respect. The- power, then, claimed by the petitioners to have been exercised by these officers must be a naked power, uncoupled with any .interest, and purely statutory. The rule is, those dealing with persons exercising a special statutory power are charged with knowledge of the statute, and they are bound to know, at their peril, the extent of the power conferred. Parr v. Village of Greenbush, 72 N. Y. 463; Bishop on Contracts, (enlarged edition,) sec. 992.

The law requires that every prerequisite to the exercise of such- a power, as stated in the statute, must actually precede its exercise. (Williams v. Peyton’s Lessee, 4 Wheat. 79.) And on these principles it has been held, that where the charter or incorporating act requires officers of the city to award contracts to the lowest bidder, a contract made in violation of its requirement is illegal, and in an action brought on such contract, for the work, the city may plead its illegality in defense. Dillon on Mun. Corp. (1st ed.) 388, and cases cited in note 1, and Parr v. Village of Greenbush, supra. And it is manifest, from the language employed, that it is intended by our constitution that this rule shall be rigidly applied to contracts assuming to bind the State, for it provides, (sec. 19, art. 4,) that “the General Assembly shall- never * * * authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void.”

We must, then, inquire, were these alleged agreements or contracts made ‘’with express authority of law ?” And it has just been shown, that in order that this shall be answered in the affirmative, it must appear that each substantial thing required by the law to be done in the making of such agreements or contracts, was done in the manner and order therein required.

It is provided by section 25, of article 4, of the constitution, that “the General Assembly shall provide, by law, that the printing, binding * * * the laws and journals, and all other printing ordered by the General Assembly, shall be let by contract, to the- lowest responsible bidder; but the General Assembly shall fix a maxipaum price. * * * But all such contracts shall be approved by the Governor, and if he disapproves the same, there shall be a re-letting of the contract, in such manner as shall be prescribed by law.” The General Assembly, for the purpose of executing this section, enacted a statute, which was approved on the 31st of March, 1874, and which took effect on the 1st day of July of that year. (Rev. Stat. 1874, p. 993.) The first section declares “that the Attorney General, Secretary of State, the State Treasurer, and the Auditor of Public Accounts, shall be [ex officio) Commissioners of State Contracts, ” and further directs the manner and time of their organization as a board, and the manner of calling meetings, etc. The second section reads thus: “The furnishing of all fuel, stationery and printing paper for the use of the State, and the copying, printing, binding and distributing the laws and journals, reports, and all other printing and distributing ordered by the General Assembly, shall be let by contract, to the lowest responsible bidder, in the manner hereinafter provided.” Section 3 directs the way in which advertising for bids shall be made. The fourth section directs how bids shall be made. The fifth section directs that the contract shall be awarded to the lowest bidder, but gives the commissioners power to reject bids, and provides that no contract shall be made without the Written approval of the Governor. The ninth section provides that “any person who shall offer or pay to any person any money or other valuable thing, to induce such person to not bid for a State contract, or as a recompense to him for not having bid for such contract, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment in the penitentiary not longer than three years. Any person who shall accept any money or other valuable thing for not bidding for a State contract, or who shall withhold a bid in consideration of a promise of the payment of money or other valuable thing, shall be guilty of a misdemeanor, and on conviction thereof shall be imprisoned in the penitentiary not longer than three years.” The sixteenth section fixes maximum rates, and declares that they are the highest prices which shall be paid for printing, under the act. The twenty-first section provides for the appointing of a printer expert, and defines his duties in aid of the commissioners, etc. The other sections are not thought to have any pertinency to the questions now before us.

“Letting by contract, to the lowest responsible bidder,” necessarily implies equal opportunity to and freedom in all whose interests or inclinations might thus impel them to compete at the bidding. No one may be compelled to bid at such a letting, but there must be entire fairness and freedom in competition > and no one can, within the meaning of the provisions of the constitution and statute quoted, claim to be the lowest bidder, where others, who otherwise would have bid, are, by an arbitrary arrangement to prevent competition, kept from bidding. The manifest purpose in requiring the contract to be let to “the lowest responsible bidder,” is to protect the State against imposition and extortion; but if contractors may combine and prevent competition by violence, or by buying off competitors, the State will have no protection, and the requirement will be valueless,—a mere dead letter.

It is not claimed that there is constitutional or' statutory authority, other than that quoted, whereby power is vested in the Attorney General, Secretary of State, the State Treasurer, and the Auditor of Public Accounts, to make contracts binding the State. It would, therefore, seem clear, that, under the authorities previously referred to, an indispensable condition precedent to their power to contract is, that there shall be a public letting in which there is entire freedom of competition, and that the person with whom they contract was at that letting the lowest' responsible bidder. A lower bid might, undoubtedly, be rejected by the commissioners for the reason that the bidder is not responsible, for in this respect they have to exercise an independent judgment; • but in respect to the letting they can only do what the statute says. They can no more contract with one who is not the lowest responsible bidder, than they can contract without advertising for bids.

That the letting must be one at which there shall be entire freedom in competition, is placed beyond doubt by the provisions of the ninth section of the act ut supra, by which, we have seen, it is made a misdemeanor, punishable by confinement in the penitentiary, for any person to pay, or offer to pay, money or other valuable thing to another to induce him not to bid for a State contract, or as a recompense to him for not having bid for such contract, or for any person to accept money or other valuable thing for not bidding for a State contract; and by the 46th section of the Criminal Code, (Rev. Stat. 1874, p. 358,) whereby it is among other things enacted, that “if any two or more persons conspire and agree together * * * to prevent competition in the letting of any contract by the State, * * * or to induce any person not to enter into such competition, * * * they shall be deemed guilty of conspiracy, and every such offender * * * shall be imprisoned in the penitentiary,” etc.

Counsel for defendants in error, however, contend, that inasmuch as these sections do not expressly declare that contracts made in violation of their provisions shall be void, and as the penalties which they declare are not on the making of such contracts, but on the persons doing the things prohibited, they can not be resorted to for the purpose of establishing the invalidity of these contracts. It is, in considering this contention, pertinent to keep in mind the distinction between contracts where the contracting parties have an inherent power "to contract, and contracts where, as here, there is no inherent power to contract, but the contract is purely by virtue .of a special statutory authority. In the former instance, the contract is presumed to be lawful, and it devolves upon those who claim its invalidity to show that it is unlawful.' But in the latter instance, as we have heretofore shown, precisely the reverse is held. The burden there is upon those seeking to enforce the contract to show that it is within the statutory authority. It is, therefore, not upon these plaintiffs in error, in the first instance, to establish the invalidity of these contracts, but upon defendants in error to establish their validity,—in doing which, as we have seen, an indispensable step is, that they were the lowest responsible bidders. These sections, under a familiar rule of construction, must be construed as in pari materia with the other sections of the statute referred to supra. They impose severe and degrading penalties upon those who do the designated acts to prevent freedom of competition at the bidding. The imposing of such penalties is now construed as equivalent to a prohibition of the denounced acts, although it may have been formerly held otherwise. Metcalf on Contracts, p. 258; Pollock’s Principles of Contracts, (Wald’s ed.) p. 261; Wharton on Contracts, sec. 365. And so we must read the language requiring that the letting shall be to the lowest responsible bidder, as followed and explained by the language of these sections, as prohibiting, at the bidding, the things for the doing of which the penalties are imposed, and hence, if that which is thus prohibited was done, the letting was necessarily void. (See authorities supra.) A party can not be entitled to enforce an agreement which he induced the adverse party to enter into, only by doing that which subjected him to punishment by confinement in the penitentiary. No case decided in recent times goes to that extent. Greenhood on Public .Policy, rule 471, p. 546.

We entirely concur with counsel for defendants in error, that the mere formation of partnerships for the purpose of obtaining contracts under this statute, is not necessarily prohibited ; but such partnerships must be formed in good faith, for the more convenient and successful doing of the- particular work or carrying on of the particular business to which they are de-„ voted, and not for the purpose of preventing competition in bidding. All of the authorities are in substantial accord that no one can derive rights under a contract made for the purpose of preventing competition in bidding. Hamilton v. Hamilton, 2 Rich. Eq. 355; James v. Fulcrod, 5 Texas, 512; Dudley v. Little, 2 Ohio, 504; Jones v. Caswell, 3 Johns. Gas. 29; Thomson v. Daviess, 13 id. 112 ; Gibbs v. Smith, 115 Mass. 592; 1 Story’s Eq. Jur. sec. 293. And this applies with like force to public as to private contracts. (Weld v. Lancaster, 56 Me. 453; Swan v. Chorpenning, 20 Cal. 182; Greenhood on Public Policy, rule 175, p. 183.) It may sometimes be difficult to ascertain the motives controlling in the formation of the partnership; but this affects only the question of fact in the particular case.

An argument is sought to be drawn against the necessity of a strict observance of the requirement that the contract shall be let to the lowest responsible bidder, from the facts that the statute also requires that no contract shall be made without the written approval of the Governor; that maximum rates are fixed in the statute, and that the?bidding is to be supervised by an expert printer, etc.; and that, from the nature of the case, if the bidding was supervised by the expert, the amount bid was less than the maximum rate, and the contracts were approved by the Governor, the State should be concluded. But the statute merely directs these as successive steps in the execution of the contracts, and makes no provision that either or all shall be conclusive. Plainly, they are intended as distinct and successive safeguards to protect the State against imposition and extortion. Where the provision of the statute is the essence of the thing required to be done, and by which jurisdiction to do it is obtained, it is held to be mandatory. Rex v. Locksdale, 1 Burr. 447; Marshall v. Langworthy, 6 Hill, 646; Stuker v. Kelly, 7 id. 9; People v. Schemerhorn, 19 Barb. 558.

Although the commissioners may have assumed the contracts to be valid, since they were made, and done acts upon the faith of that assumption prejudicial to these defendants in error, if their legality be now denied, the question of the validity of the contracts is still open. “The State is never estopped, as an individual or private corporation may be, on the ground that the agent is acting under an apparent authority which is not real,—the conclusive presumption that his. powers are known rendering such a consequence impossible.” Bishop on Contracts, (enlarged ed.) sec. 993, and authorities there cited.

It is insisted that' the answer is defective in not specifically charging the doing of acts prohibited, which render the contracts void. There is more of generality of statement, and less of precision of specific violation of law, than we could desire ; still, on a'general demurrer, we are not prepared to hold that the answer should have been held insufficient on this ground. These facts are distinctly alleged, namely: First, that the persons named formed a combination, in the form of a partnership, under the firm name of H.- W. Bokker & Co., for the purpose of preventing their competing with each other in bidding for this printing; that the bids were made, and that the contracts were thereafter entered into, pursuant to that purpose; second, that the petitioners and Davenport paid to Grehring, Hudson, Phillips Bros., Kidd, Edwards and Pinckard, $1000, as the consideration of their entering into the combination and refraining from competing at the bidding. The entering into an agreement or contract to not compete in bidding, implies that the-parties would have competed but for that agreement or contract. It would clearly be sufficient, under the sections of the statute quoted, to prove, under the one section, the payment of money or other valuable thing to induce a person "not to bid; and under the other, to prove that two or more persons agreed with each other that they would not compete at the bidding. The criminal intent would be inferred from the act proved, and the burden would then be upon the party charged to introduce evidence to remove that presumption. So, here, in our opinion, if the facts alleged, as above stated, were proved, the presumption would arise that the parties would otherwise have competed at the'bidding, and that they were by those facts prevented from doing so. And we do not perceive why, on a general demurrer, it is indispensable that the allegations in an answer of this kind shall be more specific "than the proofs required.

The judgment is reversed, and the cause remanded. Each party will have leave to amend pleadings to correspond with the views herein expressed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Nelson Perin v. Augustus A. Parker.

      Filed at Ottawa November 15, 1888.

    1. Board or trade—sale of grain for future delivery—rights as between broker and pHncipal concerning margins. A party acquainted with the custom and usage of the Chicago Board of Trade, employed a broker to sell for him a large lot of corn on such board, for future delivery, which sale'was made without any margins being demanded by the broker, but nothing was said or done showing a waiver of the right of the latter to demand the same, when deemed expedient, to protect himself. On an advance in the price of the grain before the time for delivery, the seller having no com on hand to be delivered, the broker demanded of his principal a margin of $3500 to make him safe. The latter refused to advance the same, saying he would pay losses when the differences should be determined, and not before. The price still advancing, the broker made two other demands for still higher margins, which being refused, he purchased the corn necessary to fill his contracts of sale, and sued his principal for his services, and for money paid to his use in purchasing the grain. It was held, that the subsequent demands for margins, even if unreasonable, were not necessarily, or ns a matter of law, a waiver of the first demand, so as to preclude a right of recovery.
    2. In such case, even if the several notices of deman els by the broker were not sufficiently definite, and some of them for too large a sum, the principal, by deciding he would furnish no margins until differences were settled, and so notifying the broker, was precluded from taking advantage of such objections on the trial.
    3. If the notice of the principal had been absolute and unconditional that he would not pay anything for losses, it would have been the duty of the agent or broker to use due diligence in purchasing the com to meet his contract, and thus prevent increase of loss to himself and principal; but notice that the latter would not pay losses until the differences were adjusted, is not to be regarded as an absolute refusal, and the broker might properly buy the corn necessary to fill his contract at any time before he was bound to deliver, and hold his principal liable for the loss.
    4. Where a person has paid money under an indemnity from another person, it is, in general, equivalent to a payment made at his request, the indemnity operating as a request. So the employment of a broker to buy and sell shares or grain, operates as a request to make all payments required by the rules of the stock exchange, or other share market, in the course of the execution of the employment, with a promise of repayment.
    5. Where a broker is employed by his principal to make sales of grain for future delivery, and makes contracts of sale in his own name, as contemplated, if he carries the contracts until their maturity, so that he is obliged to deliver the grain, and he purchases the grain to enable him to perform his contracts, the law will imply a promise by the principal to pay him any loss he may sustain on the contracts made by his direction.
    6. Where a broker sells grain for his principal, to be delivered at a future day in a market, the custom and rules of which require the seller to advance ten per cent margins on the price, and further security from time to time, to the extent of any advance in the market valué above the contract price, and there is an advance in the value, and the principal, upon proper demand, refuses, unconditionally, to advance the margins, which his broker is liable to be called upon to pay, the latter will not be bound to carry the risk until the maturity of the contract, but may at once go into the market and purchase grain with which to discharge his contracts of sale, and the principal will be liable to him for the difference between 'the cost of such grain and the contract price, with interest, as for money paid to his use upon his implied request.
    7. Where the rules and customs of a particular market authorize the purchaser of grain, to be delivered at a future day, to demand ten per cent margins of the seller,-and other margins upon an advance in the market value of the grain before the time of delivery, and the broker of a party sells grain for him for future delivery, and on a rise of the market value demands the advance of margins to make himself safe, which the principal refuses to pay, and the broker buys grain with which to perform his contract, and sues for his commissions and the loss he sustains, an instruction for the defendant, which by necessary implication excludes from the consideration of the jury, in considering the reasonableness of the demand of margins, the right of the plaintiff to demand ten per cent margins on the contract price, and limits his right to margins based upon the differences between the contract price and the market price, is erroneous, and properly refused.
    8. Same—reasonableness of demand for margins—as a question of fact. In an action by a broker against his principal, to recover for moneys advanced by the former to complete his contract of sales made for the latter, the question whether the demand of the broker for margins is a reasonable one, is a question of fact for the jury to determine, from the statements in the written demand, and their context, and from a consideration of all the surrounding circumstances, and not one of law, for the court.

      9. Common counts—recovery therewnder. In case a broker, employed to make sale of grain for future delivery, advances money to buy the grain to fill the contract, such advance will be regarded as money advanced upon the implied request of the principal, and therefore may be recovered under the common counts.
    10. Interest—oro money paid to use of another, or for him. "Where ■a person pays out money in execution of a contract he has made in behalf of another, under an implied promise of repayment by the latter, so that it is recoverable under the common counts as money advanced by the former to the use of the latter at his request, the former (the party so paying) is entitled to interest on the. same, under section 2 of the statute relating to interest.
    11. Instructions—repeating. There is no error in refusing an instruction, the grounds or principles of which are substantially embraced in others which are given.
    12. So on the question of the waiver of a demand for margins, by a broker, of his principal, it was objected that an instruction for the plaintiff contained no qualification on that question. The question, however, was fully covered by other instructions, and the jury, in answer to a special question put to them, found there was no .waiver of the demand: Held, that from the special finding it was evident the jury were not misled by the omission in the instruction complained of.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. E. W. Clifford, Judge, presiding.
    This is a writ of error to the Appellate Court for the First District. The facts of the case are sufficiently stated in the opinion which was filed in that court, delivered by McAllister, J., and which is as follows:
    “This was an action upon the common counts in assumpsit, brought by Parker, a commission merchant of Chicago, doing business on the Board of Trade, against Perm, a resident of Cincinnati, Ohio, to recover for-money advanced by the former for the latter, and commission earned, in the course of the execution by Parker of the employment of him as such merchant by Perm, December 30,1882, to sell for the latter, upon the Chicago Board of Trade, 50,000 bushels of corn, of which 25,000 bushels were to be delivered in January, and the same quantity in May then next. Upon trial by jury, the plaintiff below had a verdict and' judgment for $6114.28, and the defendant brings error to this court, assigning various errors, under which the most vital questions arise upon the points made by counsel for plaintiff in error: First, that as respects the alleged advances of money, the plaintiff below failed to make out a cause of action by his evidence; second, that what plaintiff below claimed as advances of money for the defendant at his implied request, were not such in legal contemplation, and if any recovery could be had for what plaintiff below was compelled to pay out in taking care of the said contracts of sale for defendant, such recovery could only be upon a special, and not ujion the common counts; third, that interest on the money so paid was not allowable. Other points for reversal were made, which will be noticed as we proceed.
    “The first question, then, is as to whether the plaintiff below, established, by his evidence, a cause of action as respects the money so expended. It clearly appears, from the evidence, that at the time Perin employed Parker to sell for him, on the Chicago Board of Trade, the corn in question, the former was well acquainted with the usages, customs and methods of doing business on that board; that no margins were asked for by Parker, or furnished by Perin; and it is not pretended that anything was said or done which could be construed into a waiver of Parker’s right to have Perin furnish margins, if the exigencies of the business made it expedient to do so. It appears that Parker made sale of the corn, for future delivery, immediately upon receiving the order of Perin, and in strict compliance therewith, and informed the latter that he had done so; that Parker did not have any of the corn at the time, and that from the usages of the business, with which Perin was familiar, it was to be presumed to have been within the contemplation of the parties that. Parker should go upon the board of trade, and buy, on Perin’s account, the corn requisite to a delivery when the contracts of sale were closed up. It appears, that from the time such sales were made the price of corn continually advanced in the market, so that by J anuary 13,1883, the deal was against Perin in the sum of $3000 and upwards. Parker then demanded of Perin that he supply margin in the sum of $3500. The latter refused, saying that he would pay losses when differences were settled or determined, and not' before. He put such refusal solely upon the ground that Parker had been ordered, January 4,1883, to buy in the corn for January delivery, and had violated his duty in that respect. That claim was shown to have been entirely without foundation. January 15, Parker made another demand on Perin for $4000 margins, by draft, which the latter refused to accept. Then Parker went to Cincinnati, and, J anuary 16, had two personal interviews with him, and there asked him again for margins, and Perin peremptorily refused, assigning for a reason the said baseless claim that Parker had violated his duty in failing to buy in the corn for J anuary delivery. Then, January 18, Parker, by telegram from Chicago, demanded $6000, to be sent by telegram by 12:30 o’clock of that day, and gave him notice that if this demand was not complied with, he should buy in the corn for Perm’s account. That telegram was not received by Perin until 12:15, and then it was impracticable for him to comply. He did not, and he does not, pretend that he would if it had been received in time. On the contrary, the evidence tends to show that he at no time afterward intended to retract the notice Tie gave Parker January 13, that he should pay no losses until differences were settled or determined.
    “When this case was before us upon a former writ of error, (Perin v. Parker, 17 Bradw. 169,) we held, that upon the undisputed facts, the notice and demand of January 18 were not reasonable; that such being the case, it should have been submitted to a jury to determine whether or not Parker, by his acts and words, had waived his rights upon his previous demands for margins, and whether or not Perin had, before said last demand, retracted his notice to Parker that he would not supply any. The judgment in Parker’s favor was reversed, and the cause went back for a second trial. Upon this last trial those questions were specifically submitted to the jury,— as to the waiver, by requests to find specially; as to the retraction, by instruction asked on behalf of defendant. The jury found, by their special verdict, that there was no waiver, and by their general verdict, that there was no retraction of said notice of refusal to put up margins.. It is contended by counsel for Perin, that the special finding of the jury, that there was no waiver by Parker of any of the demands for margins made by him prior to that of January 18, is unsupported by the evidence,—that they were respectively insufficient, if not waived.
    “A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it. (Hoxie v. Insurance Go. 32 Conn. 40; Lewis v. Insurance Go. 44 id. 72; West v. Platt, 127 Mass. 372.) A subsequent demand is not necessarily a waiver of a prior one. (Hull v. Hobart, 16 Me. 164.) The fact that each successive demand made by Parker was for an amount larger than that of the next preceding one, can not be considered as of controlling effect, because such increase of amount was properly due to the fact that the market price of corn was advancing from day to day. In view of that circumstance, the successive demands were not so inconsistent as to require the jury to find, or this court to adjudge, that the last was a waiver of all the previous demands.
    “But counsel for Perin now insist that the several notices or demands were not sufficiently definite, and that some of them were for a larger amount than he was entitled to ask for. Even if that were so, having decided that he would furnish no margins until differences were settled or determined, and so notified Parker, he was precluded from taking advantage of such objections at the trial.

      “It is also urged by counsel, that it was the .duty of Barker to have bought in the corn within a reasonable time after receiving the notice of refusal by Perm, January 13, and thus prevented the subsequent increase of loss. We are inclined to the opinion, that if the notice had been absolute and unconditional, it would, upon settled principles of the law of principal and agent, have been the duty of Parker to use due diligence to prevent such increase of loss to himself and his principal. But the notice, as given, can not be so regarded.
    “The next question is, whether the money paid by Parker in buying in the corn in question can be regarded as money advanced upon the implied request of Perm, and so become a debt recoverable under the common money counts. The rule applicable to such a case as this, is the rule which pervades the whole law of principal and agent, viz., that the principal is bound to indemnify the agent against the consequences of all acts done by him in pursuance of the authority conferred upon him. Taylor v. Stray, 2 C. B. (N. S.) 195; Leake on Contracts, 55. It is said by that excellent author, on the same page: ‘Where a person has paid money under an indemnity from another person, it is, in general, equivalent to a payment made at his request, the indemnity operating as a request.’ (Brittain v. Lloyd, 14 M. & W. 762; Lewis v-. Campbell, 8 C. B. 541; Monle v. Garrett, L. B. 5 Ex. 132; 7 id. 101; 39 L. Q. Ex. 69.) Leake (p. 56,) further says: ‘The employment of a broker to buy and sell shares operates as a request to make all payments required by the rules of the Stock Exchange, or other share market, in the course of the execution of the employment, with a promise of repayment.’ In that statement the author is supported by the following cases: Bayley v. Wilkins, 7 C. B. 886; Westropp v. Solomon, 8 id. 345; Taylor v. Stray, supra; Smith v. Lindo, 5 C. B. (1ST. S.) 587.
    “It surely needs ño argument to prove that the same rules above adverted to are applicable to a case where a person employs a commission merchant to deal for him, either in buying or selling grain or other products, upon the Chicago Board of Trade. The case shows that the plaintiff below acted, in buying in the corn, under the circumstances shown, entirely in conformity with the rules and usages of said board of trade, with which the defendant was familiar when he employed him. What the plaintiff was compelled to pay out in doing so, was, therefore, in consequence of the employment, in contemplation of the parties, and must be considered as in pursuance of the authority conferred by such employment, for which payment the defendant had impliedly promised to indemnify the plaintiff. The sums so paid out by the plaintiff, therefore, became a debt, recoverable against the defendant, upon the common money counts, as money advanced by the plaintiff to the use of the defendant, at his request; and that being so, the plaintiff was entitled to interest upon it, under section 2 of the statute concerning interest.
    “Counsel for defendant below complain of error in the instructions to the jury. We do not deem it our duty to enter upon a discussion of the points specified by counsel, for in this case the plaintiff clearly established his' right to recover the full amount which he did recover, hot only by competent evidence, but evidence which was wholly uncontradicted. The defendant made no pretense of any defense but that of standing upon the general issue, and requiring the plaintiff to prove his case; That was done by undisputed testimony, showing a right of recovery under settled rules of law. In such a case we think error in the instructions becomes entirely immaterial.
    “We have considered the exception taken to the action of the court in sending the jury back to supplement what, they had omitted in the verdict as first returned. Under the circumstances, as shown by the bill of exceptions, we think there was no error in such action of the court.
    “The judgment should be affirmed.”

      Messrs. Dexter, Herrick & Allen, and Mr. Horace H. Martin, for the plaintiff in error:
    Whether there is any evidence tending to show a cause of action, is a question of law. The court refused to instruct the jury to find for the defendant, and this ruling is reviewable here. Simmons v. Railroad Co. 110 Ill. 340; Frazer v. Howe, 106 id. 573; Launtz v. People, 113 id. 137; Railroad Co. v. Coble, id. 115; Railroad Co. v. Lewis, 109 id. 128; Railway Co. v. Jackson, 3 App. Cas. 193; Randall v. Railroad Co. 109 U. S. 478.
    The fourth and fifth of the plaintiff’s instructions were erroneous, and the court erred in refusing defendant’s third, sixth, eleventh, thirteenth and fourteenth instructions. Defendant’s eighth instruction was improperly given, as modified by the court.
    Under the common counts, a plaintiff can not recover damages for the breach of a contract. Brand v. Henderson, 107 Ill. 141; Cast v. Roff, 26 id. 452; Francisco v. Wright, 2 Gilm. 691; Seckel v. Scott, 66 Ill. 106; Ward v. Taylor, 56 id. 494; Burnham v. Roberts, 70 id. 19; Trustees v. Shaffer, 63 id. 243; Russell v. Gillmore, 54 id. 147; Maxwell v. Longenecker, 89 id. 102; Meyers v. Schemp, 67 id. 469; Lightfoot v. Creed, 7 Taunt. 268.
    Interest can be recovered in actions ex contractu, only where there has been an express promise to pay it, or in the eases specified in the statute. Alcohol Works v. Sheer, 104 Ill. 586 ; Sammis v. Clark, 13 id. 544; Hitt v. Allen, id. 592; Chicago v. Allcock, 86 id. 384; Railroad Co. v. Cobb, 72 id. 148; Stern v. People, 9 Bradw. 411; Pekin v. Reynolds, 31 Ill. 529; Aldrich v. Dunham, 16 id. 403.
    The statute gives interest on monej due on the settlement of accounts. There has been no settlement here. Perm has always denied his liability. It is only when parties have agreed on the balance, that interest is recoverable on a “settlement of accounts.” Alcohol Works v. Sheer, 104 Ill. 586 ; Flake v. Carson, 33 id. 518; Clement v. McConnel, 14 id. 154; Meyers v. Walker, 24 id. 137; Aldrich v. Dunham, 16 id. 403.
    Mr. H. S. Monroe, for the defendant in error:
    There was no error in the instructions given for the plaintiff below, nor in the refusal to give defendant’s as asked.
    When the verdict is clearly right it will not be disturbed for errors in the instructions. Boynton v. Holmes, 38 Ill. 59; Schwarz v. Schwarz, 26 id. 81; Beseler v. Stephani, 71 id. 400; McConnel v. Kibbe, 33 id. 177; Curtis v. Sage, 35 id. 32; Coursen v. Ely, 37 id. 338; Pahlman v. King, 49 id. 266 ; McKichan v. McBean, 45 id. 228; Hall v. Sroufe, 52 id. 421; Graves v. Shoefelt, 60 id. 462; Hewitt v. Jones, 72 id. 218; Burling v. Railroad Co. 85 id. 18.
    The objection that no recovery can be had under the common counts, comes too late. It should have been made in the trial court. Mager v. Hutchinson, 2 Gilm. 266; Stark v. Brown, 101 Ill. 395; East St. Louis v. Underwood, 105 id. 308; Montague v. Selb, 106 id. 49; Hannas v. Hannas, 110 id. 53; Pry v. Pry, 109 id. 466; Honore v. Wilshire, id. 103.
    The common counts were all that were required. 1 Chitty’s PL 295; Underhill v. Gaff, 48 Ill. 198; Fowler v. Deakman, 84 id. 130; Bank v. Hart, 55 id. 62; Bishop of Chicago v. Bauer, 62 id. 188.
    Interest may be recovered without being claimed in the declaration, if the amount claimed is large enough to include it. Heiman v. Schroeder, 74 Ill. 158; Tucker v. Page, 69 id. 183.
    Interest has been allowed on money advanced by a joint obligor, (Harvey v. Drew, 82 Ill. 606, and Simpson v. Gardiner, 97 id. 237,) and on money collected. Chapman v. Burt, 77 Ill. 337; Ketcham v. Thorp, 91 id. 611.
   Mr. Justice Baker

delivered the opinion of the Court:

We are entirely satisfied with the conclusion reached by the Appellate Court, and concur in and adopt the opinion filed in that court. In view, however, of the criticisms made upon that opinion in the additional brief and argument presented to this court, we will further- notice some of the questions of law involved in the case.

The right of Parker to recover under the common counts, for money paid and advanced, is strenuously denied. It is evident that if Parker had carried the contracts until their maturity, he would then have been obliged to deliver the corn called for by them, and that then there would have been an implied request from Perin to him to settle the deals, and an implied promise to pay him. It is claimed, however, that Parker being under no legal obligation to buy corn and perform the contracts before they matured, no request by Perin to him to pay out money can be implied in law, and consequently, there can be no implied promise by Perin to repay it, and an action for money paid will not lie.

Parker, as agent for Perin, and acting under his orders, sold the corn for Perin, and, under the rules of the board of trade and the custom of the Chicago market, he was personally bound to the purchasers on these contracts of sale. Parker and Perin were dealing with reference to such rules and such custom, with which they were both perfectly familiar. The rules of the board of trade provided, that on time contracts purchasers should have the right to require of sellers ten per cent margins, based upon the contract price of the property bought, and further security, from time to time, to the extent of any advance in the market value above said price. The price of corn had been rapidly advancing since the date of the sales. Parker either had deposited margins upon the contracts, or was liable to be called on for the ten per cent and the additional margins by the persons to whom he had sold the com. The evidence does not seem to disclose whether or not the purchasers had either received or called for margins. Even if they had not, yet there was an existing legal right in them to call on Parker for margins, and a legal liability upon the latter, within the next banking hour thereafter, to deposit the margins called for, and also, within that time, deposit with the secretary of the board, or the parties calling for such deposits, duplicate certificates of deposit, signed by the treasurer of the board or an authorized bank.

We must assume the facts to be, as found by the jury in the trial court, and by the Appellate Court, that defendant in error had made proper demands for margins, which had never been .waived, and that plaintiff in error had failed and refused to comply with these demands. After the failure of the princijial to put up margins when called for, and his absolute refusal so to do, and the return, unpaid and protested, of the draft drawn therefor, it became the duty of the commission merchant to '• use diligence in order to prevent increase of loss to himself and his principal. It is clear that the agent was not bound, himself, to bear the burden and the risk of the contracts made by the express order of his defaulting principal, through the whole of the options, without power to relieve himself from the personal liability imposed upon him by the contracts.

In view of the relation of principal and agent existing between the parties, the personal liability assumed by the agent upon the contracts made, the duty of the principal to indemnify his agent, and the rules of the board of trade, and the usage and custom of the market in which they were dealing, we must hold that when Perm ordered his agent to make the contracts, he not only impliedly agreed to furnish margins when demanded, but also impliedly agreed that if he failed and refused to put up margins when called for, then the agent should be authorized, without waiting for the maturity of the contracts, to buy corn for the purpose of filling such contracts. If there was such implied authority, then that authority, followed by the refusal of the principal to advance margins, was equivalent to a request to his agent to purchase immediately, or within a reasonable time", at the market price, the corn called for by the contracts, and necessarily implied a promise to pay the agent the difference in price between the corn sold and that purchased. This difference in price would properly be regarded as money paid by the agent for the use of the principal, and at his request.

This case is clearly distinguishable from Lightfoot v. Creed, 8 Taunt. 268. There, the parties were the vendor and vendee of stock, which was not transferred in conformity with the contract. The point ruled was, that the vendee had no implied authority from the vendor to purchase other stock to the same amount, and hold him for the difference as money paid to his use, and that the plaintiff should have declared specially on the contract. Here, the parties were principal and agent, and the dealings were with reference to the custom and usage of a particular market, and the employment and the subsequent conduct of the principal had the effect of a request to the agent to make the purchases when he did, with a promise to pay him the difference in prices. The claim here recovered by defendant in error was within the contemplation of the parties at the time of the employment to make the contracts of sale.

We have carefully examined the record in respect to the rulings of the court upon the instructions, and Will briefly state the result of such examination.

The court refused to give the third instruction asked by plaintiff in error, but the ground was substantially covered by the seventh instruction which was given.

The refusal of the court to give the sixth instruction was justified by the fact that the legal principle involved in it was given to the jury in the fourth and fifth instructions, and also by the further fact that it, by necessary implication, excluded from the consideration of the jury, in considering the reasonableness of the demands for margins made by defendant in error, Ms right to demand ten per cent margins, based upon the contract prices, and expressly limited his right to margins predicated upon the difference between contract price and market price.

The substance of the eleventh instruction submitted to the court had already been given in both the seventh and ninth instructions.

In the thirteenth instruction the court was asked to instruct the jury, as matter of law, that any statement by Parker in any letter or telegram to Perin, in evidence, that he, Parker, would draw a draft on Perin, was not a reasonable demand for margins, and was not a reasonable notice to Mm to put up margins. It was a question of fact, for the jury to determine, from such statements and their context, and from a consider-. ation of all the surrounding circumstances, whether or not the demands were reasonable. It was not error to refuse the instruction.

The fourteenth and seventeenth instructions were properly refused, and for the reason, that under the statute defendant. in error was entitled to receive interest on the moneys he had advanced for the use of plaintiff in error..

Complaint is also made of the fourth and fifth instructions for defendant in error.. It is objected, that while there was evidence of waiver sufficient to go to the jury, yet said fourth instruction, in stating the hypothetical case of the plaintiff below, contained no qualification on the subject of waiver, and thereby took the question of waiver from the jury. The jury was not only very fully instructed on this question of waiver-in numerous other instructions of the court, but they, in their. answers to the special questions submitted to them, returned into court a special finding against plaintiff in error upon this question of waiver. The fact that they made this special finding, renders it absolutely certain that they were not misled by. the omission under consideration. The other objections urged to this fourth instruction are technical, and do not require particular notice.

The fifth instruction for defendant in error, in order to have been entirely accurate, should have contained the additional words, “and if the jury further believe, from the evidence, that Parker did sell the corn;” but the plain implication from the instruction, as given, was, that the jury must believe that Parker sold the corn, and the undisputed evidence was that he did sell it. It is manifest, therefore, that the jury were not, and could not have been, misled by the instruction.

The eighth instruction for plaintiff in error was modified by the court before it was given. No complaint is made of the action of the court in refusing to give it in the form in which it was asked. Objection, however, is urged to the modification made by the court. This modification was clearly inaccurate, and was probably made through inadvertence. The inaccuracy was, however, fully obviated by the fourth, seventh and ninth instructions given for plaintiff in error,—in fact, these latter instructions rendered the modification wholly immaterial, as they excluded from .the jury any right of recovery based upon the telegram of January 18 as a reasonable demand.

Our conclusion is, that there was no manifest error in the rulings of the trial court upon the instructions, and' that the jury was very fully and fairly instructed on behalf of plaintiff in error;

In our opinion the Appellate Court properly affirmed the judgment of the circuit comí... , .

Judgment affirmed.

Mr. Justice Bailey having heard this case in the Appellate Court, took no part in this decision.

Mr. Justice Shops: I do not concur in-this opinion, or conclusion reached.- . "" - "


author: Mr. Justice Scott

text:
    The Niantic Coal and Mining Company v. Lawrence Leonard.

      Filed at Springfield June 15, 1888.

      1. Mines and miners—■liability for injury to a miner. Under the statute providing for the safety and health of persons employed in coal mines, the company will be liable for a personal injury to a person in its employ, while descending into the mine, resulting from the employment of an incompetent engineer to take charge of the engine used in lowering persons into and hoisting them out of the mine, and in improperly loading the descending car with a heavy piece of timber.
    2. Erbob wild not always reverse—improper instruction. Where the act of a coal mining company producing a personal injury, amounts to a willful violation of the law by the company, the doctrine relating to a recovery by the plaintiff for the negligence of fellow-servants will have so little application to the real issue made, that a mistake in laying down the doctrine on that subject will be an immaterial error.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macon county; the Hón. James F. Hughes, Judge, presiding.
    Messrs. Nelson & Harnsbarger, and Messrs. Graham .& Hamilton, for the appellant.
    Mr. William T. Cussins, and Messrs. McCartney & Casey, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court :

This suit was brought in the circuit court of Macon county, by Lawrence Leonard, against the Niantic Coal and Mining Company, to recover for personal injuries alleged to have been caused by the negligent conduct of defendant. On the trial '.the jury found the issues for plaintiff, and assessed his dam- ' ages under the evidence submitted. The motion for a new ■ trial was overruled, and the court entered judgment upon the verdict. That judgment was affirmed in the Appellate Court for the Third District, and defendant brings the case to this court on its further appeal.

It will be seen, most of the counts of the declaration are framed on the theory defendant neglected the duty imposed by the 7th section .of the act of the General Assembly, providing for the “health and safety” of persons employed in coal mines, upon all owners, agents or operators of any coal mine, and which makes it obligatory upon such owner, agent or operator, not to place in charge of any engine’ whereby men are lowered into or hoisted out of such mines, “any but an experienced, competent and sober person, not under the age of eighteen years;” and that it was not lawful for any person “to ride upon a loaded cage or wagon used for hoisting purposes in a shaft or slope.” By the 14th section of the same act, for any injury occasioned by the willful violation of the provisions of that act, the person so injured is given an action. The breach averred in the declaration is, defendant disregarded its duty, as declared by law, in that respect, and employed and placed in charge of the engine used in lowering and hoisting persons out of its mine, an incompetent person; and that defendant improperly loaded the cage on which plaintiff was descending into the mine, with heavy timber, to be used in and about the mine.

There is evidence,—and quite a good deal of it,—tending to show defendant employed an incompetent person to take charge of the engine used in lowering into and hoisting persons out of its mine; that defendant employed such person, and retained him in its service after his incompetency was known; and that the pit boss improperly directed a piece of timber to be placed in the cage on which plaintiff was about to descend into the mine. Conceding these were controverted questions of fact, the jury must have found them in favor of plaintiff, and the affirmance of that finding by the Appellate Court is conclusive upon this court, so that they are not now open to further consideration. Assuming' these facts to Be well found, as must be done, they fully sustain the judgment rendered in favor of plaintiff.

The questions of law made on the record are unimportant. It is said the sixth instruction given for plaintiff was erroneous, in stating to the jury the question whether plaintiff and the person in charge of the engine were fellow-servants “was a question of fact, for the jury to determine from the testimony before them.” It matters little whether the charge given was correct or not in this respect. The liability plaintiff was seeking to enforce against defendant grew out of what was alleged to be a willful violation of the act of the General Assembly providing for the “health and safety” of miners, and the doctrine of fellow-servants had so little application to the real issue made by the pleadings, it is a matter of no moment whether the doctrine on that branch of the law was correctly stated or not. It is hardly probable it could have had the slightest influence on the jury in producing a verdict, and it could do defendant no harm in any event. Nor is it perceived there is anything hurtful or erroneous in the eighth instruction for plaintiff, of which complaint is made.

Quite a number of objections were taken, at the trial, to the rulings of the court in respect to the admission and rejection of evidence. Ah these matters have been considered, and it is not thought they aré of sufficient importance to be made' the subject of any discussion.

' Perceiving no serious error in the record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed. ■


author: Mr. Justice Wilkin

text:
    George Railton v. John Lauder.

      Filed at Ottawa November 15, 1888.

    Publication on notice—in “Chicago Daily Law Bulletin.” From the evidence in this case the court holds that the “Chicago Daily Law Bulletin” is a secular newspaper of general circulation, within the meaning of the statute, (chap. 100, sec. 5,) and that notices to non-resident defendants may properly be published therein.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Mr. D. S. Gooding, for the appellant.
    Messrs. Knickerbocker & Holdom, for the appellee.
   Mr. Justice Wilkin

delivered the opinion of the Court:

Appellee having begun his suit in attachment against appellant, alleging in his affidavit that appellant was a non-resident of this State, the clerk caused to be published the required notice, in a paper called the “Chicago Daily Law Bulletin,” published in the city of Chicago. Judgment was éntered by default, and appellant subsequently moved to set it aside, on the ground that the notice was not published in “a secular newspaper of general circulation,” published in the city of Chicago or in Cook county, as required by chapter 100, section 5,' of our statute. The motion was overruled, and; on appeal, the Appellate Court for the First District affirmed the judgment of the circuit' cóurt, but gave a certificate of importance, on'which this further appeal is prosecuted.

The only question presented for our decision is, whether or not the “Chicago'Daily Law Bulletin” is a secular newspaper1 of general circulation, published in the city of Chicago.

In support of the motion to set aside the judgment in the 'circuit court, the affidavit of David S. G-ooding was filed; hut it only states that the paper attached to his affidavit, marked exhibit “A,” is one of the numbers of the issue of the paper in which the notice was published. A counter affidavit hy one of the publishers of the paper was also filed, to which were attached six copies of the same, made exhibits. This affidavit states that the “Chicago Daily Law Bulletin” is a secular newspaper published in the city of Chicago, Cook county; that it is in general circulation throughout the city and county, and the State of Illinois, among judges, lawyers, real estate dealers, brokers, merchants, and business men generally; that its circulation is confined to no particular class or calling in the community, but is in general circulation, and has been published for thirty years; that it is published and circulated every secular day in the week, and is a daily secular newspaper; that while its columns are devoted largely to legal matters and court notices, yet it contains varied advertising matters, confined to no one calling or trade, and that there is published in it also news and information of a general secular character. These two affidavits being the only proof offered hy the respective parties on the hearing below, we are left entirely to the affidavit last mentioned, and an inspection of the several copies made exhibits, for information as to the real character and circulation of the paper.

The affidavit of the publishers shows that the publication is made in the city of Chicago, arid that the paper is one of general circulation, and these facts are wholly uncontradicted. We must also accept as true his statement that it is a secular newspaper, and that there is published in it news and information of a general secular character, unless, upon an inspection of the copies filed with the affidavits, we are convinced, that such statements are false. In fact, all that is offered by appellant .in support of his motion, either by way of proof or argument, is to invite our attention.to the copies of the paper attached to the two affidavits. We are not prepared to say, from what appears in these numbers, alone, that the sworn statements of the publisher are untrue, and must therefore hold the paper in question to be a secular newspaper of general circulation, within the meaning of the statute,—see. 5, chap. 100. Kerr et al. v. Hitt, 75 Ill. 51.

It follows that the judgment of the Appellate Court should be affirmed.

Judgment affirmed.