author: Mr. Justice Adams

text:
    Thomas H. Wickes v. Laura U. Wickes.
    1. Decree — Subsequent Acts of the Parties, When to Be Considered in Construing. — Where a decree for alimony has been entered by consent of the parties it will be considered as a contract between such parties as well as a decree, and the action taken by the parties in connection therewith after the entry of the decree may be considered in construing it. Such a consent and the decree and the voluntary acts of the parties thereafter must all be construed together.
    Construction of a Decree Relating to Alimony. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Opinion filed November 21, 1901.
    Statement. — This is an appeal from a decree in regard to alimony of the appellee. February 19, 1895, appellee, formerly the wife of appellant, obtained a decree of divorce from him. February 25, 1895, a-decree awarding alimony to appellee was rendered by consent of the parties, which was, in substance as follows; That the defendant (appellant here) should convey to the complainant (appellee here) the premises known as 3647 Grand Boulevard, in the city of Chicago, and should pay the interest on $7,000, secured by a mortgage thereon, and the principal at maturity; also, that the defendant should execute and deliver to complainant and her three children, Mrs. Laura Annette Walker, Mrs. Florence L. Ford and Thomas Henry Wickes, Jr., deeds conveying to complainant a life estate, reserving to defendant, should he survive her, a life estate, remainder to said three children in fee, of the premises known as 3645 Grand Boulevard, in said city, etc., and should also pay the interest on the sum of $7,500, secured by mortgage on said premises, and the principal sum so secured at maturity, and all taxes and other governmental charges on said premises, during complainant’s life, and keep the said premises, 3645 Grand Boulevard, at all times, during complainant’s life, in good and ten an table condition, and insured in a sum not less than $7,500 in insurance companies of good standing, and, on payment of the taxes or insurance premiums, deliver to complainant the receipts therefor, or duplicates thereof; also that defendant should deliver to complainant two certain paid-up insurance policies, described in the decree, amounting to $11,055, and three certain certificates of insurance issued by fraternal associations, amounting in all to $7,000, and should pay, as the same should fall due, the premiums to accrue on said certificates, and deliver the receipts therefor, or duplicates thereof, to complainant, etc. The fourth clause of the decree provides as follows:
    4th. “ That in case the gross income derived by complainant from said two houses, Nos. 3645 and 3647 Grand Boulevard, shall, during the minority of said Thomas 14. Wickes, Jr., not amount to the sum of two hundred and fifty dollars ($250) per month, the defendant shall pay to the complainant the difference betwmen such gross income and $250 per month; that in case the gross income derived from said two houses (after the said Thomas H. Wickes, Jr., attains his majority) shall not amount to two hundred dollars per month, the defendant shall pay to the complainant the difference between said gross income and said two hundred dollars per month; that as often as such deficiency shall occur, the defendant shall pay on or before the 5th of the month following the month in which such deficiency occurs, the amount of such deficiency so as to make up the gross incomes above referred to; provided, however, that if complainant occupies as her residence either of said houses, the amount of said gross income hereby guaranteed shall be reduced by the sum of $150 per month if she occupies the house numbered 3647 Grand Boulevard, and by the-sum of $100 per month if she occupies said house numbered 3645 Grand Boulevard, and that the guaranty of rent above mentioned shall continue at such reduced amount as long as said complainant shall occupy such house and for thirty days after written notice of her intention to leave the same shall have been given defendant; provided, further, that if either of said houses shall be vacant for want of a suitable tenant, and shall be occupied during said vacancy by said complainant and while she is trying in a bona fide manner to rent such vacant house, the amount of the guaranteed rent shall not be reduced as aforesaid on account of such occupancy by her; and the diligence required of complainant in endeavoring to rent such house or houses shall be the placing of the same for rent in the exclusive charge of some reliable real estate and renting agent, satisfactory to the defendant, with full authority to such agent to rent the same to the best ad\rantage, and to deliver immediate possession thereof when rented; of said two hundred and fifty dollars, fifty dollars is for the support and maintenance of said Thomas H. Wickes, Jr. and said complainant shall furnish him a suitable home therefor during his minority,” etc.
    The5th clause is as follows:
    5th. “ That said defendant do also, within ten days from this date, pay to complainant’s solicitor seven hundred and fifty dollars ($750) as solicitor’s fees and disbursements in this case, and the further sum not to exceed one hundred dollars ($100) to be expended in repairs upon said premises numbered 3647 Grand Boulevard, written bills for such repairs to be furnished defendant.”
    The foregoing is all of the decree which we deem it necessary to be stated. ' It is not claimed that appellant has not substantially complied with the decree, except as contended in the present case.
    December 10,1900, appellee filed her petition in 'the cause, in which, after referring to the alimony decree of February 25, 1.895, it is averred that in May, 1895, she placed the houses in the hands pf Chandler & Co., as agents; that Thomas H. Wickes, Jr., attained his majority in 1897; that, after the appointment of said agents they stated there Avas difficulty in procuring a tenant for the premises, number 3647 Grand Boulevard,'unless certain repairs were made, to the making of which she objected, and that appellant authorized the making of such repairs atan expense amounting on January 3, 1900, tov$752, and that, in April, 1900, said agents, acting under appellant’s instructions, "made other repairs, to the amount of $173.25, which were grossly excessive in amount, and unnecessary; that said agents have at the request of appellant, withheld from the income aforesaid provided to be paid by said decree, $75 per month for five months and $65 per month for six months, on account of said repairs; and have also, at the instance of appellant, charged appellee commissions for the collection of rentals, and $56.10 for renting Ho. 3645 Grand Boulevard. The petition charges that “ the said extensive and unnecessary and unusual repairs, as aforesaid, made at the instance and direction of said defendant, are chargeable to him under said decree, and under the facts of the case,” etc. The defendant answered the petition at great length, denying, among other things, that he directed what repairs should be made on Ho. 3647, and averring that he left the matter of repairs to the discretion of the agents selected by appellee, and denying his liability. The court, January 2, 1901, decreed for the appellee, finding that $869.05 had been deducted from rentals, and ordering that appellant, on or before January 5,1901, should pay that amount to appellee, and that thereafter, all rents accruing from the premises numbers 3645 and 3647, except usual commissions of the agents, should be paid to appellee till such time as the sum of gross rentals should equal $200 per month, and that appellant pay to complainant $225, as and for the fee of her solicitor.
    The decree of February 25, 1895, provided for the payment of the fee of appellee’s solicitor in case she had to apply to the court by reason of appellant’s default.
    Bunnells & Burry, attorneys for appellant.
    John O. Black, attorney for appellee; W. P. Black, of counsel.
   Mr. Justice Adams

delivered the opinion of the court.

The question presented by the record is, who is liable for the repairs of the premises number 3647 Grand Boulevard, appellant or appellee ? If appellant is liable, then it must be on one of two grounds: either that he is liable by the terms of the decree of February 19, 1895, or by reason of his acts in relation to the premises.

The decree in respect to the premises 3647, provides for the conveyance thereof to appellee by a good and sufficient deed, and the discharge by appellant of an incumbrance 'thereon, amounting to $7,000 and interest. The conveyanee directed is in fee simple. The only provision in regard to repairs of number 3647 is contained in the 5th clause of the decree, which is that the defendant (appellant) shall pay to complainant’s solicitor $750 as solicitor’s fees, etc., and the further sum, not. to exceed one hundred dollars, to be expended on repairs upon said premises, numbered 3647 Grand Boulevard.”

The second clause of the decree provides, in respect to the premises 3645 Grand Boulevard, “ that defendant also pay all taxes and other governmental charges levied or to be levied upon said premises, Ho. 3645 Grand Boulevard, during the life of complainant; that defendant also keep said premises, at all times, in good and tenantable condition, and insured in a sum of not less than seventy-five hundred dollars.”

Clause 4th of the decree provides that in case the gross income derived from said two houses, after the said Thomas H. Wickes, Jr., attains his majority, shall not amount to two hundred dollars per month, the defendant shall pay to the complainant the difference between said gross income and said two hundred dollars per month.”

We have, then, a decree expressly limiting appellant’s liability for repairs of the premises, number 3647, to the sum of $100, which sum he has paid, and no provision requiring him to pay the taxes levied or to be levied on said premises; requiring him to pay taxes levied and to be levied on the premises number 3645, during appellee’s life, and to keep said premises, during her life, in good and tenantable condition, to do which involves the making necessary repairs, and, lastly, that if the gross income from the two houses shall be less than $200 per month, requiring appellant to pay the difference between such gross income: and $200 per month. The fact that the decree'contains no provision for the payment by appellant for repairs of number 3647 in excess of the sum of $100, and limits his liability to that amount, while requiring pa^yment by appellant for such repairs as will be necessary to keep number 3645 in good and tenantable condition, is wholly inconsistent with the view that appellant is, by the decree, liable for repairs of the premises number 3647. The subject of repairs of both the houses was, as is manifest by the decree, in the minds of the parties who consented to it, and the decree was doubtless carefully scrutinized by their solicitors, respectively, and had it been intended that appellant should pay for the necessary repairs of the premises, number 3647, it is to be presumed that the decree would have contained a provision to that effect, as it does in regard to the premises number 3645. The reason for the distinction made by the decree between the two houses, in the matter of repairs, is obvious. The premises number 3647 were to be conveyed to appellee in fee. Therefore she could alienáte them, if she so desired, in which case the appellant should not be required to keep them in repair; but the decree as to the premises 3645 is that they shall be conveyed to appellee for her life, remainder to the children, and that the deed conveying them shall contain a provision that, in the event of the death of all the children without issue, the defendant surviving them, the premises shall revert to him. The provision in the decree that if the gross income from the two houses shall npt amount to §200 per month the appellant shall pay to appellee the difference between said gross income and $200 per month, also indicates clearly, as we think, that appellee was to receive only the gross income, subject to appellant’s liability to keep number 3645 in good and tenantable condition during appellee’s life. The manifest object of the provision is to secure for appellee a gross income from the two houses of $200 per month. If the houses rent for less than that sum, appellant is required to pay the difference between the sum they rent for and $200 per month. The decree, presumably drafted by appellee’s counsel, refers to the provision as “ the guarantee of the gross rentals of said premises, in the said original decree mentioned, by the said defendant, at the sum of two hundred dollars per month.” The decree-evidently contemplates a renting of the houses, and the-gross income from leased premises is the amount of rent reserved by the lease and paid by the tenant. Appellant’s counsel contend that there is a distinction in meaning between the phrases, “ gross income ” and “ gross rentals.” There is no such distinction in the phrases as applied to the facts of the case, as they, themselves, have illustrated by using, as above shown, the phrase “ gross rentals ” as identical in meaning with “gross income.” In Webster’s dictionary the word “ gross ” is defined : “Whole; entire; total; without deduction; as, the gross sum, or gross amount; gross weight, opposed to net.” So that it is not the net rent or income of the premises 3647 which appellee is, by the decree, to receive, but the gross rent, without deduction for repairs, or other expenses.

We think it clear that, by the terms of the decree, if appellant kept number 3645 in good and tenantable condition, and the gross rental of both places equaled $200 per month, he would owe appellee nothing, even though she had expended money for repairs of number 3647. It appears from a letter of appellee, of date October 18, 1895, to Rhodes Bros. & Co., who were then her agents, that it was her understanding that appellant was not required, by the decree, to keep in repair the premises 3647. In that letter she writes:

“ While the property remains in your hands, as agents, you may have any usual and necessary repairs made to the house Ro. 3647, without, however, waiving any of the covenants of the lease. By this Í mean, that you may make such repairs as are usually made bv the landlord in the ordinary course of renting houses. The matter of all ordinary and current repairs is left to your discretion, with the understanding, of course, that I desire the repair account of this house to be kept as low as possible, consistent with its proper renting. * * * Mr. T. H. Wickes is required to' pay the repairs to Ro. 3645, and you will look to him for all directions concerning repairs made on that house. ”

By this letter appellee authorized repairs on Ro. 3647, and expressed a desire that the account for the same should be kept as low as possible, which was to her interest if she was liable for the repairs, but which did not concern her if appellant was liable for them; and as to the repairs of the premises 3645, she referred the agents to appellant. In another letter from appellee to the same agents, of date August 24, 1897, she impliedly admits that repairs of the premises Ho. 3647 were to be made at her expense. The next question to be considered is, whether appellant, by his acts, or otherwise, has made himself exclusively liable for the cost of the repairs of the premises number 3647. Subsequently to the writing of the letters last mentioned, it would seem that a dispute arose between the parties as to who should pay for the repairs of Ho. 3647, and the following letter, signed by the attorneys, respectively, for the parties, was sent to the agents:

“ Chicago, September 28, 1897.
Messrs. Ehodes Bros. & Co., City.
Gentlemen : We understand that you, have a tenant for Ho. 3647 Grand Boulevard. It is desirable that this property should be rented. We also understand that in your opinion considerable repairs must be put upon the house before the prospective tenant or any other good tenant will take it, and that the repairs are such as are usually put upon houses when about to be rented in Chicago. Some dispute has arisen between Mr. T. H. Wickes and Mrs. Laura U. Wickes as to which of them should bear the cost of repairs to this house, and that dispute will have to be settled in court. Meantime, in order not to lose the tenant, we authorize you to proceed at once to make such repairs upon the house as in your opinion are necessary and usual on renting such houses, asking you, however, to be economical in the matter and keep the repair account as low as possible under the circumstances. Then when the court decides which of the parties is to pay the cost of the repairs, the matter will be disposed of. You have advised us that the repairs will cost upward of $350. If possible, we would like you to reduce this amount, but if you do not find it possible to do so, you may make the repairs you now have in mind in making that estimate.”

In the year 1899 the following stipulation was made between the parties, and in the years 1899 and 1900, the following correspondence occurred:

“In the Circuit Court of Cook County.
Laura U. Wickes, Thomas F Wickes.
Gen_ No> 135^ Chancery.
Stipulation entered this 26th day of April, A. D. 1899, by and between Laura IT. Wickes, by John C. Black, her solicitor, and Thomas H. Wickes, by Bunnells & Burry, his solicitors.
Whereas, S. K. Martin, Jr., a prospective tenant, has made an offer of $1,000 rent for the house known as Mo. 3647 Grand Boulevard, Chicago, Illinois, and it is desirable that such tenant be secured, and said S. II. Martin has demanded that certain repairs should be made on said house before he will consummate a lease, and
Whereas, a disagreement has arisen between Laura IT. Wickes and Thomas H. Wickes as to who should bear the expense of such repairs under the decree of alimony entered in the above entitled cause on February 19, Í895, it is hereby agreed by and between the parties héreto and their respective solicitors, that for the purpose of securing said proposed tenant, Chandler & Co., the renting agents for said house, be authorized to make the necessary repairs, but that this authorization shall not be taken as a construction of clause 4 of the decree of alimony heretofore entered in the above entitled cause on February 19, 1895, and is without prejudice to any order of the court as to who should pay therefor.
Lahra IT. Wickes,
By John C. Black, Sol. & Attv.
Thomas H. Wickes, By Bunnells & Burry, his solicitors.”
“ July 20, 1899.
Messrs. Chandler & Co., 84 Washington St., Chicago:
Gentlemen: We have your favor of the 6th instant about 3645 Grand Boulevard, together with account for $5.48, for which we herewith enclose Mr. Wickes’ check. If any part of this statement is properly chargeable against 3647, please charge it so on your accounts in order that when rent from that property begins to come in the proper deduction for expenses may be made.
We understand you saw Mr. Walden of Mr. Wickes’ office yesterday, and that'you said you thought certain repairs ought to be made upon these two houses in order to put them in proper shape to show prospective tenants. We now authorize you, on behalf of- Mr. Wickes, to make such repairs upon Mo. 3645, asking you to use proper economy in so doing.
Bepairs on Mo. 3647 are to be borne by Mrs. Wickes or to be paid out of the rental coming from that property. The ruling of the court is that all proper and usual repairs should be made upon that property, and such repairs charged to the income thereof. We, however, request you now to make such repairs as you think should be at present made, in the usual course of caring for property, and to rent it. While these repairs must be paid from the rental of the property, yet, of course, it is not desired that you should expend your own money on this, and we will repay you at once any moneys you may so expend, and look to the income of the property for reimbursement. In making repairs on Ho. 3647, we again ask you to use proper economy and simply make such repairs as are usually made under like circumstances.
In this connection we refer to your letter to us of May 9th as indicating the repairs which should be made, and take it that the letter indicates the repairs which should be made in a proper and conservative management of the property. If we are correct in this, we think the repairs should be made, and we will acknowledge that letter in this, leaving it to you to say when they should be made.
We write this letter in view of what you said to Mr. Walden yesterday, that you thought certain repairs ought to be made by the latter part of August, and that you thought such repairs should be made before showing the house to prospective tenants in order to' make it more attractive. We also understand from Mr. Walden that if this arrangement is made you will continue the agency of the property.
Very truly yours,
War. Burry.”
“August 1, 1899.
Messrs. Chandler & Co., 84 Washington street, City.
Gentlemen: We are in receipt of your favor of July 31, enclosing estimate of $77.45 repairs to be put upon 3645 Grand Boulevard, and $43.61 to be put upon 3647 Grand Boulevard. On behalf of Mr. Wickes we have to say that these repairs seem reasonable, and we are in accord with your suggestions to make them, and the time in which they should be made, and they may be, made under the assurances of our former letter to you on this subject. We return the estimates to you herewith.
Very respectfully,
Enc. , Wm. Burry.”
“ October 10, 1899..
C CANDLER & Co.
Gentlemen: I understand the repairs indicated on attached memorandum as needed by 3647 Grand Boulevard are necessary in order to secure a tenant, and are such as should be made in the usual course of handling property. If that is the case, and you can secure Mr. Cooke as a tenant on a three-year lease, the repairs should be made as per authority contained in Mr. Burry’s letter to you dated July 30th, 1899. Yours truly,
T. IL Wiokes.”
“Chicago, Oct. 24th, 1899. Wm. Buret, Esq., c. o. Bunnells & Burry, Chicago.
Dear Sir: Concerning the lease of No. 3647 Grand Boulevard, I have your favor of yesterday. I have advised Mrs. Wickes to execute the lease prepared by Chandler & Co. for the same. I am advised that the total amount of ‘ repairs’ necessary to be made to procure the execution of this proposed lease to Mr. Cook will be between $600 and $700. Of this sum nearly $300 is for betterments, viz.: certain hardwood floors and decorating. I understand Mr. Wickes has ordered the betterments made, and under no circumstances do I think that Mrs. Wickes should be called upon to pay for them.
The question of the repairs is one which we have heretofore agreed to submit to the court, and that matter will come up later.
Yours very respectfully,
John C. Black,
Attorney for Mrs. Wickes.”
“ Chicago, Nov. 7, 1899.
Hon. John C. Black, 423 Monadnock Block, City.
Dear Sir: Your letter of October 24 concerning No. 3647 Grand Boulevard was received, and an answer at the time was overlooked. Mr. Wickes has not ordered anything, either of repairs or betterment, done to the house, but has left it to the real estate agent to determine upon the proper management of the property. I suppose the question of who shall ultimately pay the bills may be brought before the court, but I understand that the court passed upon the matter the last time we were before the court on the same subject.
Very truly yours,
Wm. Burry.”
“Chicago, January 3, 1900.
Mrs. L. H. Wiokes, New York City.
Dear Madam: In order to make the house 3647 Grand Boulevard, fit and acceptable for occupancy, it has been necessary to expend the sum of $752.72 for repairs, as per enclosed receipted bills. This sum has been advanced by Mr. Wickes to the agents in charge of the property. Only such repairs have been made as were considered necessary by the agents to secure a tenant, and such as were deemed needful in the ordinary course of caring for and renting similar property. These repairs, of course, are properly chargeable to you as owner of the property, and in order to render the payment for the same as little burdensome as possible, I am directed to deduct $75 per month from the usual remittance of $200 until the amount advanced by Mr. Wickes is paid. I therefore enclose check for $125 herewith, together with the usual receipts for insurance premiums.
Tours respectfully,
EL P. Walden.”
“ Chicago, Friday, 4-13-00.
Mr. Francis Walker, care of Chandler & Co.,
110 Dearborn St., Chicago.
Dear Sir : Referring to the matter of repairs to plumbing at 3647 Grand Boulevard, inasmuch as it is absolutely necessary to have this work done at once in order to put the plumbing in sanitary condition, I will advance you the money to do the work, the same as I did in the matter of repairs a short time ago. I ha,d E. Moston, a plumber at 123 Monroe street, make a bid on the job, and his figure was *$165; I would therefore thank you to let him do the work.
Tours truly,
T. H. Wickes.”
“ Chandler & Co.
Chicago, April 14, 1900.
Mr. Thomas Wickes, Pullman Bldg., City.
Dear Sir: We are in receipt of your favor of the 13th inst., and as instructed, have let the plumbing work for 3647 Grand Boulevard to E. Moston, as per his estimates to you for $165.
Tours truly,
Chandler & Co.”
Chandler & Co.
Chicago, June 4, 1900.
Mr. Robt. P. Walker, care Chandler & Co., Chicago.
Dear Sir : As agents having charge of the renting of the house, 3645 Grand Boulevard, which is owned by me, but in which property Mrs. L. IT. Wickes has a life interest, your firm is authorized to lease the property to the best advantage; ■ and as an opportunity now offers to lease the house for a term of five years, I think it advisable that you do so. The rental each month should be remitted to Mrs. Wickes, less your usual commission for collecting same. As owner of the house, all repairs are chargeable to me, and you are hereby authorized to have made, at as low cost as possible, the repairs, including hardwood floors, necessary to make the place acceptable to the tenant, as per your conversation with Mr. Walden.
The adjoining house, ISTo. 3647, as you probably know, is Mrs. Wickes’ sole property, and she is responsible for repairs to same. I may add by way of further explanation, that the rentals of both houses apply toward a stipulated amount, payable each month by me to Mrs. Wickes; hence it is to mv advantage that they be rented and be producing the best income obtainable.
Yours truly,
T. H. Wickes.”

The letter of September 28,1897, signed by the attorneys for appellant and appellee, respectively, and the stipulation of April 26, 1899, signed by the parties by their attorneys, are conclusive as to two things, namely, that the appellee agreed that Chandler & Co. 'should make such repairs of the premises number 3647 as were necessary in order to secure a tenant, and that there was a dispute between them as to who should pay for the repairs. The negotiation with Martin, mentioned asa prospective tenant in the stipulation of April 26, .1899, fell through, and he was not secured as a tenant, but that circumstance does not affect the agreement of the parties that Chandler & Co. should have necessary repairs made for the purpose óf securing a tenant. The substance of the matter is, that, for the purpose of securing a tenant, it was necessary that repairs should be made, and appellee, by the letter and stipulation referred to, authorized her agents to make them, leaving it to her agents to determine what repairs were necessary.

The letter of July 20, 1899, from appellant’s attorneys, in which they say, referring to a ruling hereinafter mentioned — “Repairs on No. 3647 are to be borne by Mrs. Wickes, or to be paid out of the rental coming from that property, and such repairs charged to the income thereof. We, however, request you now to make such repairs as you think should be at present made, in the usual course of caring for property, and to rent it,” — was strictly in accordance with what had been agreed between the parties by the stipulation of September 26, 1899. October 24, 1899, three months after the last mentioned letter -was written,' appellee’s attorney wrote to appellant’s attorney a letter in which he says:

The question of the repairs is one which we have heretofore agreed to submit to the court, and that matter will come up later.”

Mrs. Wickes testified in her own behalf, that she did not authorize the repairs in question, and did not consider them necessary; but, by the stipulation of September 26th, she authorized Chandler & Co., her agents, to make necessary repairs, leaving it to them to decide what repairs were necessary, and Mr. Robert P. Walker, of the firm of Chandler & Co., who was the agent on whom appellee especially relied, as is shown by the record, made an affidavit in which he states that he inspected the premises, No. 3647, which were vacant, and found them very’- much in need of repairs; that the negotiations to rent the premises to Martin fell through, and, subsequently, they had negotiations with Charles Cook about renting the premises to him. and that, in order to rent to him, it was necessary to make repairs amounting to $752.72; also, that Cook only agreed to rent the house on the promise of the agents to make the plumbing good if it proved defective; that they rented the house to Cook, and, in pursuance of their agreement, subsequently made repairs of the plumbing at a cost of $165, being in all $917.70 for repairs, and that all repairs made were necessary.

In 1897 appellee applied to the court, Judge Dunne presiding, for relief against an alleged default of appellant under the decree of February 25,1895, on which application an order was made, which appellant’s counsel contend is binding on appellee as an adjudication of the question of liability for repairs under the decree. We do hot deem it necessary to pass on that contention. The decree will be reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Samuel K. Gregg v. The People, etc.
    1. Indictment — Form of, Under Statutes. — Every indictment of the grand jury is to be deemed sufficiently technical and correct, which states the offense in the language of the statute creating it, or so plainly that its nature may be easily understood by the jury.
    2. Same — Niceties in Pleading, When to he Discountenanced. — Great niceties and strictness in pleading are to be countenanced and supported only when it is apparent that the defendant may be surprised on the trial and unable to meet the charge, or to make preparation for his defense for want of greater certainty or particularity in the charge.
    3. Evidence — Admissibility of Copies of Reports of Commercial Agencies. — A copy of the report of a commercial agency is admissible on the part of the defendant on trial for obtaining a signature by means of false pretenses where such party does not have the original report in his possession.
    4. Appellate Court Practice — Objections to Evidence Can Not be Made in the Appellate Court for the First Time. — Where no objection is made to the introduction of evidence in the trial court they can not be heard in the Appellate Court for the first time.
    5. Instructions- — Omitting Elements Necessary to a Conviction. — An instruction in a criminal prosecution which purports to state hypothetically the facts, which, if believed by the jury from the evidence, will warrant a conviction, but which omits an element necessary to such conviction, is erroneous, and is not cured by other instructions in the case.
    Indictment for obtaining a signature by false pretenses. Error to the Criminal Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the October term, 1900.
    Reversed and remanded.
    Opinion filed October 24, 1901.
    Rehearing denied November 21, 1901.
    David J. Thompson and Benjamin C. Baohraoh, attorneys for plaintiff in error.
    Charles S. Deneen, State’s Attorney, Frank Crows' and Frank Blair, Assistant State’s Attorneys, for defendants in error.
   Mr. Justice Adams

delivered the opinion of the court.

Plaintiff in error was convicted in the Criminal Court of Cook County of obtaining, by false pretenses, the signature of 0. M. Barnes and C. M. Barnes & Co., a corporation, to a promissory note for the sum of $500, and was sentenced to confinement in the county jail for thirty days, and to pay a fine of $1,000 and costs. To reverse this sentence or judgment this writ of error was sued out. The grounds for reversal relied on by counsel, in their argument, are that the indictment is fatally defective; that incompetent evidence was admitted;- that the only evidence of the falsity of the representations charged in the indictment is evidence of certain admissions of plaintiff in error, and that an instruction given at the request of the people is erroneous.

The indictment is quite lengthy, and to avoid unnecessary prolixity we adopt the following statement of its contents contained in the argument of counsel for plaintiff in error:

“At the November term, A. D. 1899, of the Criminal Court of Cook County, an indictment was returned against the plaintiff in error, containing one count, which charged substantially that plaintiff in error, on the seventh day of June, A. D. 1898, in the County of Cook, etc., maliciously, knowingly, etc., did falsely pretend to Charles M. Barnes, as president of C. M. Barnes Company, a corporation, etc., that the Standard Boiler Co., a corporation, was then and there solvent; that said Standard Boiler Company was then and there doing a flourishing business; that said Standard Boiler Company then and there had a large amount of accounts and valuable contracts; that said Standard Boiler Company then and there was worth over the sum of sixty thousand dollars, and was not indebted to exceed twelve thousand dollars; which false pretenses and false tokens, the same being false pretenses and false tokens, were made by said Gregg upon said Barnes as president, etc., with the design and for the purpose to induce said Barnes, as president, etc., to then and there place, attach and affix the signature of said Barnes, as president etc., and the signature of said C. M. Barnes Company, by said C. M. Barnes, its president, to a certain written instrument, to wit, a certain written note in words and figures following :
‘ $500.00. . Chicago, June 7, 1898.
‘ September 11th after date wre promise to pay to the order of The Standard Boiler Co. five hundred and 00-100 dollars, at our office, 106 Wabash avenue, value received, with interest at 6 per cent per annum.
ISTo. 15521. Due-.
C. M. Barnes Co.
By C. M. Barnes, Pres.’
Said Barnes being president, etc., relying on said false pretenses and false tokens, believing them to be true, and being deceived thereby, was induced by reason thereof, after the making of said false pretenses and false tokens, to place, attach and affix his, said Barnes’, signature, as president, etc., and the signature of said Barnes Company, by him, Barnes, as president, by which said false pretenses and false tokens the said Gregg did then and there knowingly, etc., obtain the signature of said Barnes as president, etc., and signature of said Barnes Company, by said Barnes, to said written instrument, which said signature so obtained as aforesaid is in the words following, to-wit: C. M. Barnes Co., by C. M. Barnes, Pres.; and that after the obtaining of said signature of said C. M. Barnes, by Barnes, etc., president, etc., said Gregg did obtain from said Barnes said written instrument, and said Barnes did then and there deliver said instrument, to wit, said note, to said Gregg, with signature of said Barnes, etc., and signature of said Barnes Company, attached, etc., thereto as aforesaid; that said false pretenses and tokens were made by said Gregg to Barnes as president, etc., with design and purpose of cheating and defrauding him, said Barnes, as president, etc., and said Barnes Company, and that said Gregg did then and there obtain signature of said Barnes as president, etc., and signature of said Barnes Company, and did then and there obtain said instrument, to wit, note, with the design and for the purpose of then and there cheating and defrauding him, said Barnes and said Barnes Company, whereas, in truth and in fact, as said Gregg well knew, said Standard Boiler Company was not then and there solvent and was not doing a flourishing business, but was wholly insolvent and not doing any business whatsoever, and did not have a large amount of accounts and valuable contracts, which were then and there the assets of said Standard Boiler Company, and said Standard Boiler Company was not then worth over the sum of sixty thousand dollars, but was not then- worth any sum of money whatever; that said Standard Boiler Company, as said Gregg then and there well knew, was indebted in divers amounts of money exceeding the sum of twelve thousand dollars, and that he, said Gregg, at the time he so falsely 'pretended as aforesaid, well knew the same to be false, contrary to the statute, etc.”

The objection of counsel to the indictment is that it contains “ no allegations of any relationship existing between Samuel K. -Gregg and the Standard Boiler Company,” and discloses no reason why Barnes, representing the C. M. Barnes Co., should give to Gregg a note payable to the Standard Boiler Co. The statute under which the indictment was framed, provides as follows :

“ Whoever, with intent to cheat or defraud another, designedly, by color of any false token or writing, or by any false pretense obtains the signature of any person to any written instrument, or obtains from any person any money, personal property, or other valuable thing, shall be lined in any sum not exceeding $2,000, and imprisoned not exceeding one year, and shall be sentenced to restore the property so fraudulently obtained, if it can be restored,” etc. 1 S. & C. Stat. 1896, p. 1279.

It is alleged in the indictment, in substance, that plaintiff in error knowingly, etc., with the design and for the purpose of defrauding and cheating C. M. Barnes, as president of the C. M. Barnes Co., and the said companjr, and with the design and for the purpose of inducing said Barnes to attach his signature, and the signature of the said company, to the promissory note set out in the indictment, pretended to said Barnes that the Standard Boiler Company was solvent, was doing a flourishing business, had a large amount of valuable contracts, and was worth over $60,000; that these pretenses or representations were each and all false, and that Barnes, relying on said false pretenses and believing them to be true, attached his and the C. M. Barnes Company’s signatures to the note.

It will be observed that the indictment describes the offense charged substantially in the language of the statute. It states the making of the pretenses, averring what they were, and alleging their falsity; the intent and the object of the pretenses, and the achievement of that object, viz., the obtaining the signature to the note.

It is provided in the criminal code:

“ Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” 1 S. & C. S. 1896, p. 1389.

It has been frequently held that if an indictment is framed in accordance with this provision, it is sufficient. Miller v. The People, 2 Scam. 233; Quigley v. The People, lb. 301; Conolly v. The People, 3 Scam. 474; Chambers v. The People, 4 Scam. 351; Eells v. The People, lb. 498; Mohler v. The People, 24 Ill. 26; Morton v. The People, 47 lb. 468; Loehr v. The People, 132 lb. 504; West v. The People, 137 lb. 189.

In Cannady v. The People, 17 Ill. 158, the court say :

“ These great niceties and strictness in pleading should only be countenanced and supported when it is apparent the defendant may be surprised on the trial, or unable to meet the charge, or make preparation for his defense, for want of greater certainty or particularity in the charge.”

In Skiff v. The People, 2 Parker’s Crim. Cases, 139, it was objected to the indictment, among other things, that it did not allege any sale by Hale to Skiff of the property, or that Hale parted with his property in consequence of the representations, or at all. The court say :

“ As to the indictment: It alleges that the defendant, with the intent to cheat and defraud one Samuel Hale, made certain false pretenses, which pretenses are set forth with particularity in the pleading; that Hale, believing such false pretenses and representations, was induced by reason of them to deliver, and did then and there deliver to the defendant thirty-nine head of cattle of the value of $600, of the property of Hale; and the defendant did designedly receive and obtain the cattle, by means of the false pretenses, and with intent to cheat and defraud Hale. The pleading charges, in the language of the statute, that the defendant, with intent, etc., did obtain from Hale certain personal property, etc.; that Hale was induced by the false pretenses to deliver, and did deliver to the defendant, and that the defendant did receive and obtain, certain cattle. It does not, in terms, allege a sale of the cattle from Hale to Skiff, or any other bargain, by which the property was transferred from the one to the other; and accordingly when the public prosecutor proposed to show a bargain and sale of the cattle, by which they were transferred, the defendant objected, on the ground that no bargain and sale were alleged in the indictment. We are of opinion that the indictment is not defective in this respect. It sufficiently alleges the facts constituting the crime. The offense consists in obtaining the property, whether this be through a sale or bailment, or in any other way. The fact is specifically alleged that the cattle were delivered to and obtained by the defendant by means of false pretenses, that is, that they were transferred to him, and, under this allegation, evidence of the manner of the transfer was admissible.”

In the same case the court say :

“ The case does not show that Hale did not use ordinary prudence and diligence in inquiring into the truth of the pretenses. He inquired of Tabor, the landlord and neighbor of the defendant. But the degree of prudence, and the sufficiency of the pretenses to deceive, were questions of fact for the jury, and they have found against the defendant.”

The false pretenses in the case were that Skiff owned certain real and personal property, and that his business of buying and selling cattle was profitable, and he was making money out of it: We are of opinion that the indictment substantially conforms to the statutory provision above quoted, and is sufficient.

The indictment charges that Barnes made the signatures to the note by reason of the false pretenses, and that plaintiff in error obtained the signatures by means of the false pretenses, and it is not necessary for the indictment to state the object of Barnes in attaching the signatures, or to aver facts from which it can be inferred that an ordinarily prudent or cautious man would have been deceived by the false pretensés. It is sufficient if the object of Barnes in affixing the signatures, and that he was not guilty of negligence in the premises, appear from the evidence. It is for the jury to decide from the evidence, as was said by the court in the Parker case, supra, in respect to Hale, whether Barnes exercised ordinary prudence. The prosecution offered in evidence a copy of a report made by plaintiff in error, who was the president and treasurer of the Standard Boiler Company, to Dun’s Commercial Agency, which is as follows :

“ Our last inventory, under date of February 11th, is as follows:
Authorized capital......... • $100,000.00
Subscribed capital.......... 65,000.00
ASSETS.
Cash......................$ 1,800.00
Bills receivable............ 3,000.00
Book accounts............. 20,000.00
Merchandise, finished and unfinished ................. 12,000.00
Raw material.............. 12,000.00
Machinery and fixtures...... 12,000.00
Real estate................ 6,000.00
$66,800.00
LIABILITIES.
Bills payable..............$ 8,000.00
Accounts payable...:...... 4,000.00
Officers, S. K. Gregg, John H. Gregg, Sec’y.”

This evidence Was objected to, on the ground that the original was the best evidence, and also because the copy was obtained from Dun’s agency, and not from plaintiff in error. It appears from the evidence of Barnes that he, about June 5 or 6, 1898, went to the office of Samuel K. Gregg, by the request of a broker, who introduced him to Gregg, whom he never before had met; that Gregg proposed an exchange of notes -between the Standard Boiler Co. and the C. M. Barnes Co., and said that such exchange only required mutual confidence; that the Standard Boiler Co. needed money during the summer months, on account of long contracts, etc.; that he, Barnes, asked Gregg for a financial report or statement of his financial condition, when Gregg handed to him, Barnes, a statement which represented that the Standard Boiler Company had assets beyond its indebtedness of about $58,000, the exact amount witness did not remember, and that Gregg said the condition shown by the statement was the then condition of the company; that witness called his, Gregg’s, attention to the fact that his signature was not attached to the report, when Gregg signed it; that witness handed the statement back to Gregg and had never since seen it; that the same day he went to Dun’s commercial agency and got a copy of the report, and that it was exactly the same as the statement shown to him by Gregg, and which he had handed back to Gregg, with the exception of some remarks of the agency, which are omitted . from the statement quoted supra. On the trial, the attorney for plaintiff in error was called on to produce the original, and his answer was, “ We haven’t got it.” The copy was properly admitted in evidence. Counsel for plaintiff in error object that “ various mortgages and deeds given by the Standard Boiler Co. of Indiana, and records of the Indiana courts of actions at law and in chancery, in which the Standard Boiler Co. of Indiana was involved, were introduced and admitted in evidence over the objection of the defendant, for the purpose of showing that the Standard Boiler Co. of Indiana was insolvent during the latter part of June, 1898.” The Standard Boiíer Co. of Indiana was incorporated June 20,1898, and it appears from the evidence that the assets and liabilities of the Standard Boiler Co. of Illinois were transferred to the Indiana company. Jessie B. Gregg, sister-in-law of Samuel K. Gregg, testified that the Indiana corporation had only what the Illinois corporation formerly had; that it assumed all the debts of the Illinois. corporation; also, that the Indiana company did not buy anything of anybody, or borrow any money of anybody; that she, the witness, was secretary and treasurer of it. I-t also appears from the evidence that the Indiana corporation was formed at the suggestion of plaintiff in error; that it was a dummy corporation, and that the object of its formation was to delay the creditors of the Illinois company. A chattel mortgage of date June 22, 1898, from the Standard Boiler Co. of Indiana to Elmer E. Mumraert and Frances E. Baker, conveying all machinery, manufactured articles, office furniture and fixtures, and all other personal property situated and adjoining the plant of the company at Goshen, Indiana, also all commercial paper held by the City national Bank of Goshen, Indiana, and a certain described contract, to secure an indebtedness of the mortgagor to said mortgagees of $1,117.83, evidenced by two promissory notes, was put in evidence. ISTo objection was made to the introduction in evidence of the mortgage, and objection can not be heard here for the first time. But even though objection had been made, we think the evidence should have been admitted, as being competent and relevant. Mrs. Gregg’s testimony shows that a note of the Illinois corporation fell due and that that corporation could not meet it, and that the holders of the note went to Goshen, Indiana, and threatened to close up the affairs of the Indiana corporation unless payment were made, and that the mortgagees advanced the money to pay the note, in consideration of which the mortgage was executed. It also appears from the evidence that Mr. Baker, one of the mortgagees, was president of the bank at Goshen, Indiana, and that the mortgage was made at the suggestion and by the procurement of plaintiff in error. The Indiana corporation was merely the creature and part of the Illinois corporation; it was practically the Illinois corporation.

In respect to the objection as to the records of the Indiana court, the bill of exceptions does not furnish sufficient data to enable us to pass intelligently on the question of their admissibility. What purports to be a transcript of an order appointing a receiver in the suit of “ Elmer E. Mummert et al. v. Standard Boiler Co. et al.,” appears in the bill of exceptions. The summons and the answer of the defendants appear to have been contained in the order, but instead of their appearing in the transcript in their proper places, we find the words here insert,” and neither summons nor answer is inserted, nor does the bill appear in the bill of exceptions.

The full title of the suit not appearing in the record, nor in the summons, bill or answer, we are unable to determine who were parties to the suit, in addition' to Mummert and the Standard Boiler Co. For aught that appears from the transcript before us, the suit may have been against the Standard Boiler Co. of Illinois, and plaintiff in error may been a party defendant. In this state of the record we can not intelligently pass on the competency of the order appointing a receiver. We can not sustain the objection that the sole proof of the falsity of the pretenses charged in the indictment was evidence of admissions of plaintiff in error.

The evidence, other than that as to admissions of plaintiff in error, shows that the Illinois corporation was unable to pay its debts; that the Indiana corporation, which was its creature and tool, and which nominally assumed its debts, was threatened with a winding up of its affairs, unless the indebtedness of the Illinois corporation should be paid, and that the Indiana corporation, at the suggestion and by the procurement of plaintiff in error, the president of the Illinois corporation, executed a chattel mortgage to secure the indebtedness of the Illinois corporation. The court gave to the jury, at the request of the prosecution, the following instruction:

“ The court instructs ’the jury, that if you find from the evidence, beyond a reasonable doubt, the defendant, Samuel K. Gregg, on the sixth day of June, 1898, did feloniously, knowingly, designedly represent to one Charles II. Barnes, president of the corporation known as the C. U. Barnes Company, that a certain corporation known as the Standard Boiler Company was a' solvent corporation and was worth over and above all liabilities the sum of $50,000, and that the pretenses and representations aforesaid were false and fraudulent and known to be so by the said Gregg, and that the said Charles M. Barnes then and there acting on behalf of. the said C. M. Barnes Comparn^ did rely upon and believe the representations aforesaid, if any, to be true, and was decided thereby, and was induced by reason thereof to execute and deliver for said O. M. Barnes Company to the Standard Boiler Company the promissory note of the " said 0. M. Barnes Company set out in the indictment herein, then you should find the defendant, Samuel K. Gregg, guilty.”

The instruction purports to state hypothetically the facts, which, if believed by the jury from the evidence, would warrant a conviction; but omits an essential element, namely, the intent to cheat and defraud. The language of the statute is: “Whoever, with intent to cheat or defraud another, designedly, by any false token,” etc.; and the indictment expressly charges that plaintiff in error intended, by the false pretenses alleged, to cheat and defraud Barnes and the Barnes Company. It is evident that the jury, disregarding all other instructions, might have based their verdict on the instruction above quoted, in which case they would not necessarily have found guilty intent.

A hypothetical instruction, purporting to state facts on which a verdict for the plaintiff may be based, but omitting an essential element, is erroneous even in a civil action, and is incurable by other instructions. St. L. & S. E. Ry. Co. v. Britz, 12 Ill. 256.

The learned counsel for the People make no answer to the objection to the instruction. On account of the error in giving the instruction quoted sujpra, the judgment will be reversed and the cause remanded.


author: Mr. Presiding Justice Windes

text:
    John Anisfield Co. v. Edward B. Grossman & Co. et al.
    1. Equity — Application of the Maxim that He Who Seeks Equity Must Come with Clean Hands. — The maxim that he who seeks equity must come with clean, hands, only applies to the particular transaction under consideration by the court. The wrong must have been done to the defendant himself and must have been in regard to the matter in litigation.
    2. Municipal Cobpobations — Capacity in Which They Hold the Streets and Sidewalks. — A municipal corporation holds and controls its streets and sidewalks in trust for the general public, without the power of converting or appropriating them to private use, and where an ordinance by its terms proposes to impair the public right and use of a part of a street or sidewalk for the sole purpose of enabling a private person or corporation to occupy a part of the street or sidewalk by a permanent structure appurtenant to his or its building abutting upon such street or sidewalk, such ordinance is void.
    3. Same — Rights of the Occupants of Buildings Abutting upon Streets. — The occupants of a building abutting upon the sidewalk of a street in the city of Chicago are entitled to have the light and air pass unobstructed across the open space between the surface of the sidewalk and the sky, notwithstanding the passage by the city of an ordinance authorizing a private company to construct and maintain a bay window in connection with its building, extending along the front, and in width a distance of eighteen inches over the sidewalk adjoining such building.
    Bill for an Injunction. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 21, 1901.
    A. J. Pelaum, attorney for appellant.
    Felsenthal & Foreman, attorneys for appellees.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

Appellees, some of whom are owners and others lessees of certain premises on the west side of State street near Monroe street, Chicago, known as numbers 172 and 178 State street, the latter being improved by a five-story stone and brick building and the former by a building which has a basement and upper stories, though the kind of structure is not shown. JSTo. 178 is used by tenants of certain of the appellees, who are in the millinery business, and FTo. 172 is occupied by the appellee Grossman & Company, a corporation, engaged in the business of selling cloaks, suits, wraps and kindred articles of merchandise.

State street at this point is a very busy street and during business hours is continually thronged and greatly congested with foot passengers and vehicles of all kinds in both the roadways and sidewalks. The sidewalk in front of the premisos owned and occupied by appellees as well as appellant is twenty feet in width, and the street, including the sidewalks from Madison street, which is one block north from Monroe street, extending south for many miles, is of a uniform width of 100 feet.

ISTos. 174 and 176 State street, being the premises between said ISTos. 172 and 178, have a frontage on State street of forty feet, are improved by a five-story stone and brick building, are owned by one Ayer and leased to certain persons who, in turn, lease to the appellant company, which occupies the first and ground floor of said building, the lease terminating on April 30, 1907.

The above described premises, including other property along the west side of State street and south of Monroe street, were included in a plat known as the school section addition to Chicago, made by the trustees of schools as owners, which was recorded August 4, 1846. This plat shows Monroe street to be sixty-six feet in width and State street one hundred feet in width, and the titles to the premises owned and occupied by appellees and appellant have passed by a series of mesne conveyances from the trustees of schools as a common source, to the present owners and occupants, the west line of State street having all that time remained unchanged of record.

By common consent of all the owners and tenants of the buildings now standing upon all the above mentioned premises, the front or show windows thereof have been constructed so as to extend eighteen inches beyond the east line of the lots as originally laid out and shown upon said plat, to the height of the first story of said buildings, and so that said front or show windows encroach upon the sidewalk space in State street in front of said premises eighteen inches. The front or face of all said buildings above the height of the first story is now and always has been along the east line of the lots as originally laid out by the school trustees;

On or about the first day of July, 1901, the city council of Chicago passed an ordinance which by its terms gave permission to the appellant company to construct and maintain, a bay-window in connection with the building at said numbers 174 and 176 State street, which should extend along the entire front of said building, except the space left open for an entrance, and “ in width a distance of eighteen inches over the sidewalk adjoining said building,” and providing for a payment of $55 annually to the city of Chicago for said privilege, and that the same should cease absolutely at the expiration of ten years from the date of the ordinance, and at any time upon the order of the mayor of said city.

Pursuant to this ordinance and a permit granted by the city of Chicago, the appellant company proceeded to construct the bay-window therein provided for, for its sole private benefit, and thereupon appellees filed their bill against appellant, alleging, among other things, the matters hereinabove set out; also that said premises have become of exceeding great value, and that their rental value depends to a very large extent upon the amount of room afforded for display or show of merchandise; that “every inch of space upon said street where said premises are located is of great value, and that everything which tends to deprive the tenants or occupants conducting business in said premises of the opportunity for the display of their merchandise, and everything which tends to shut out the view of the front of said premises and to interfere, to any extent, with the sunshine, light, air and warmth which said premises have hitherto enjoyed -by reason of the width of said street, and by reason of the fact that no projection of any kind was extended, or does extend, beyond the front of said premises, will cause serious and continuing damages and injury to your orators and their said property, and that such damages will amount to many thousands of dollars and will be beyond legal remedy or relief if not prevented by this court;” also that any encroachment whatever upon the sidewalk space in front of appellee’s premises is a “serious menace to all of the people, and a special cause of damage and injury to owners, occupants and tenants of premises immediately contiguous to such encroachment;” also “that the maintenance of the unobstructed view and the right to the unobstructed access of light, warmth and sunshine to all of the front of said premises is of special pecuniary value, and that any obstruction which tends to diminish the sunshine, warmth and light of said premises by the defendants, as hereinafter mentioned, would be of great and irreparable damage to your orators’ property;” that the said structure proposed to be erected by appellant company will “obstruct the free access of light, ventilation, sunshine and warmth, and display of merchandise, to which your orators, all of the complainants herein, and their tenants, are entitled, and will greatly interfere with and obstruct the view of the premises of your orators from pedestrians and others who might become customers of your orators’ tenants, and of your orator, Edward B. Grossman & Co., and will cause pecuniary loss and damage to your orators, and specially tend to depreciate the value of your orators’ premises, and will, moreover, tend still further to obstruct and impede ail persons who may be passing along said State street, and tend greatly to increase the crowding of such persons, whereby the public will suffer great annoyance, inconvenience and danger.”

The bill prays for an injunction to prevent the erection of the proposed structure and from creating any obstruction upon the sidewalk to the east of the present line of the front of the said buildings, and from in anywise molesting or impairing the rights, privileges and easements of appellees, and of the public at large, to light, air and free access with reference to appellee’s premises. An application for an injunction was made to the chancellor, on notice to appellant upon the bill, which wras sworn to. and a hearing was had upon the bill and certain affidavits filed by appellant in opposition to the motion.

The affidavits show, in substance, that the bay-window proposed to be erected by the appellant company would be entirely ol' transparent plate glass, riveted together by screws and without any perpendicular iron or steel support for the same, and that part of it which would project eighteen inches from appellant’s building would be two feet and six inches from the north line of the building and ten feet and six inches north of the premises, No. 178 State street; also that the appellee, Grossman & Co., has erected and displays a show case four feet in length and two feet in depth on the sidewalk in front of its premises, which extends over the sidewalk a distance of three feet; that there is erected and maintained in front of the premises No. 178 State street, a large hanging electrical sign, made of wood and metal, which is not transparent, and is used for advertising purposes, extending over the sidewalk a distance of twelve feet; that the usage and custom for many years among merchants occupying premises on State street lias been to erect and maintain bay-window fronts, storm-door fronts, overhead and hanging signs, projecting over the sidewalk different distances, viz., six inches, eighteen inches,"three feet, and even six feet. The affidavits set out numerous instances of such obstructions upon and over the sidewalks by different persons not parties to the bill, along State street within one, two and three blocks of the premises in question. Two of the affiants also express the opinion that the proposed structure will not interfere with or prevent the appellees from the enjoyment of their premises; will not shut out the view in front of the same, will not interfere with the sunshine, light and air which appellee’s premises have hitherto enjoyed, and will not be a substantial or material obstruction to the street, and will not cause any damage to appellees or their premises. It appears from the affidavit of an employe of the city clerk’s office of the city of Chicago, that he has examined the laws and ordinances passed by the city, and that at no time has permission, consent or authority been granted by the city of Chicago for the maintenance of store fronts on the premises, Nos. 172 to 178 State street, both numbers inclusive, extending eighteen inches over the sidewalk, except the ordinance of July 1, 1901, herein above mentioned.

The chancellor, after the hearing aforesaid, granted an injunction until the further order of the court, in substance as prayed by the bill, to reverse which this appeal is taken.

First, it is claimed that appellees are debarred from any relief because they have not come into equity with clean hands. We think the contention is untenable under the facts of this case.

The maxim of equity that he who seeks equity must come with clean hands, only applies to the particular transaction under consideration by the court. ■

“ The wrong must have been done to the defendant himself and must have been in regard to the matter in litigation.” 1 Pomeroy’s Eq. Juris., Secs. 387, 399; Bispham’s Eq., 61, 62; Kadish v. Garden City L. Assn., 151 Ill. 531; City of Chicago v. Stk. Yds. Co., 164 Ill. 224-238, and cases cited.

It appears, in substance, from the facts above stated, that by common consent of the owners and tenants of property along the west side of State street, near and including the premises of appellant and appellees, the store fronts, as to the first story of the buildings, were so constructed as to extend over the lot line and on to the sidewalk eighteen inches. Whatever wrong there is in this regard, appellant and appellees are equally in the wrong, but no question arises in this case on that point. That appellees have caused obstructions on and over the sidewalk, the one by a showcase projecting five feet, and the other by an electrical sign projecting over the sidewalk twelve feet, may also be wrong, but these matters are not in litigation in this case, are wholly disconnected with the matter here in question, and are, moreover, temporary in their nature. We think, under the authorities cited, the eqúitable maxim here invoked by the appellant has no application. The cases cited and relied upon by appellant in this connection are, we think, clearly distinguishable from the case at bar. We deem it unnecessary to refer to them in detail.

Next, and finally, it is claimed that the proposed bay-window will not be a substantial obstruction to the sidewalk, and therefore not a nuisance; that equity will not interfere by injunction with the construction of a nuisance, unless a strong case of imperative necessity is shown, and the nuisance must be in derogation of rights long previously enjoyed.

The facts hereinabove set out show that the proposed structure will be a substantial obstruction to the sidewalk, and for the sole private benefit of appellant. It is unnecessary here to repeat them. A mere statement of the undisputed fact, viz., that during business hours the sidewalk in front of these premises is constantly thronged by great numbers of people, and that for a distance of about twenty-eight feet in length by eighteen inches in width, this structure is to be used by appellant, and prevents any use of that part of the sidewalk by the public, demonstrates that it is a substantial and material obstruction thereon, for the sole use of appellant. In order to justify the relief sought in this case, we think it is not necessary, to use the language of appellant’s counsel, that “a strong case of imperative necessity ” should be shown, but only that the complainants be shown to have a special interest in the matter, and will suffer a special injury, different from that sustained by the public, if the injunction is not issued. High on Inj., Sec. 816; Elliott on Roads and Streets, 497; Cihak’ v. Klekr, 117 Ill. 643-53; Smith v. McDowell, 148 Ill. 51-64; Canal Co. v. Garrity, 115 Ill. 155-67; Pa. Co. v. City, 181 Ill. 289-96; Field v. Barling, 149 Ill. 565; Dill v. Board of E., 10 L. R. A, 281.

In the Garrity case, supra, which was a bill to enjoin the laying of railway tracks in a public street in Chicago, the court said that it was unquestionable law that the use of the streets “must be for the public, and that no corporation or individual can acquire an exclusive right to their use or the use of any part of them for private purposes,” and held that the permission to lay the railway tracks there in question could be allowed in the public streets because of the public benefit — not in the interest of private persons.

In the Smith case, supra, in which it was attempted by ordinance to vacate a strip in a street of the village of Chats-worth, five feet wide and eighty-five feet long, it was held that a municipal corporation held and controlled its streets in trust for the use of the general public, without the power of converting or appropriating them to a private use; and that where an ordinance by its terms proposed to “ destroy the public right and use of a part of the street for the sole purpose of enabling a private person to occupy a portion of that street by a permanent structure appurtenant to his building, abutting upon the street,” it was void. The court also held that because the structure in that case was permanent in its nature, it was a purpresture and per se a public nuisance which the village authorities had no power to . license or maintain, and that the matter of inconvenience to the public, or that sufficient of the street remained unobstructed to still accommodate the public travel, did not change its character from that of a public nuisance, and could not be considered.

In the Cihak case, supra, where the question wa;s as to the protection of the owner in his right to an easement in an alley, the court held that it was not necessary, for it to be shown more than that such, easement was highly convenient and beneficial ” to him in the use of his property.

In the Field case, supra, 'where a property owner on Holden Place, a narrow street in Chicago, sought to enjoin the construction of an overhead bridge or passage-way connecting two buildings on opposite sides of the street, the doctrine of both the Smith .and Garrity cases, supra, is Reaffirmed, and the court held, among other things, that the abutting lot owner had the right .to have the light and air pass unobstructed across the open space between the surface of the street and the sky, notwithstanding the city of Chicago had passed an ordinance authorizing the construction of the bridge or passageway sought to be enjoined.

In the Pennsylvania case, supra, the court say :

“ The city has no power or authority to grant the exclusive use of its streets to any private person or for any private purposes, but must hold and control the possession exclusively for public use, for purposes of travel and the like.”

This structure proposed to be erected by appellant, being substantial and permanent in its nature, the city being without power or authority to permit it, it being clearly an obstruction to the public travel, as well as an obstruction to appellees’ light and to the prospect to and from their property, and the allegations of fact in the bill being sufficient to show that appellees’ easement of light and prospect would not only be convenient and beneficial to their prop-, ertv, but that the deprivation thereof and the obstruction of the sidewalk by reason of the construction of appellant’s proposed bay-window would cause them material and irreparable damage, we are of opinion that the injunction was properly issued, and the order, therefore, is affirmed.


author: Mr. Justice Sears

text:
    Chicago Exchange Building Co. v. Nels Nelson.
    1. Passenger Elevators — Negligence of Persons upon, a Question of Fact. — That a person upon a passenger elevator did not request the conductor to stop for him, where .he attempted to alight, is not controlling. It is a matter of no consequence whether or not the elevator was stopped at his request, where the act of stopping was productive of no injury. The elevator being stopped at a place where passengers were in the habit of alighting, such person had the right to alight without making any request or obtaining any permission in that regard, and if the servants in charge of the elevator knew, or by the exercise of due care would have known, that such person was intending to alight, it was negligence on their part to start the elevator before he had a reasonable time in which to do so.
    2. Same— What Acts Do Not Constitute Contributory Negligence.— The fact that a person upon a passenger elevator fails to look particularly to see if the conductor is about to close the door, which he has opened for the purpose of admitting passengers, does not necessarily constitute contributory negligence upon his part.
    3. Same — What is Not Contributory Negligence as a Matter of Laiv. — It is not, as a matter of law, contributory negligence, in a person upon a passenger elevator, without stopping 'to look and listen, to attempt to pass through a door opened by the conductor.
    4. Same— What Persons upon Passenger Elevators May Assume.— An elevator for the carriage of persons is not like a railroad crossing at a public highway, supposed to be a place of danger, to be approached

      with caution, but on the contrary it may be assumed that, when the door of the elevator is thrown open by the servant in'Charge, it is a place which may be safely entered without stopping to look, listen or make a special examination.
    5. Same — Degree of Care and Diligence Required. — The law imposes upon the proprietors of,passenger elevators the exercise of the highest degree of care and diligence for the safety of passengers which is practically consistent with the efficient use and operation of such modes of transportation.
    6. Special Interrogatories— Ocdling for Answers as to the Ultimate Fact of Negligence. — A special interrogatory, as follows, “Was the defendant guilty of negligence causing the injury in this case, and if so, in what did such negligence consist?” is properly refused, as it not only calls for an answer as to the ultimate fact of negligence of the defendant, but also calls upon the jury to formulate a statement of the evidentiary facts establishing such negligence.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 21, 1901.
    Statement. — This suit is brought by appellee to recover for personal injuries sustained, as is claimed, through the negligence of appellant.
    Appellee had occasion to visit, upon business, the office building owned and managed by appellant. In leaving the eighth floor of the building, where his business had taken him, appellee took the passenger elevator, operated by appellant for the accommodation of its tenants and the public. He intended to descend to the ground floor. The evidence presented at the trial tended to show that when the elevator reached the second floor the conductor threw open the door of the elevator shaft upon that floor and appellee, supposing that he had reached the ground floor, undertook to pass from the elevator to the hall-way, which was upon the level of the elevator as it stopped; that while appellee was in the act of passing from the elevator the conductor started the elevator toward the ground floor; that the motion of the elevator caused appellee to fall backward, partly within the elevator, but with his foot and part of his leg Avithout. In descending, the top of the doorway of the elevator came down upon appellee’s leg and broke it. Appellee was a witness in his own behalf and described the occurrence as follows :
    “ I was alone with the man that run the elevator, and after I boarded the elevator he went down with a fast speed, passing floor after floor, and finally he stopped at a floor and threw the door wide open, and one man comes and walks in, and as he walks in I walked out, so that the man walked in, walked in between me and the elevator man; and just when I was in the middle of the door so that my foot was on the ledge, partly on the elevator, down he goes without trying to close the door, any warning at all, and I got caught between the top part of the elevator and floor, in such way that my foot stood on the ledge of the floor like this (indicating), and the elevator came right down here, and it was inside, the top part of the elevator, and struck me about three inches inside of the knee-cap. * * * I didn’t know at the time on what floor of tiie building it was I was hurt, but I know now; it should have been the second floor, but I thought it was the lower floor, as I saw the elevator slack up and people getting out; and I saw two men at least, in uniform caps, and I thought it was the lower floor so I had to get out. I can’t say that I know how many elevators there are in that building, but I have seen that the elevator I was in was ¡No. 9; there can not be less then ten. These elevators are situated, one row on each side of the hall; that makes two rows, right opposite each other. As the door was opened, I looked out; I saw people in the hall between the two elevators on the floor, coming out of the elevator that had stopped right opposite on the other side. It was only the caps of the men in uniform that I paid any attention to. Before he stopped, the elevator man did not say anjdhing. He did not call the floor. * * * Before I started I did not look to see whether the door was closing or not. I didn’t pay any attention. I thought it was the lower floor and that he was going up again, so that I didn’t think of any such thing at all; didn’t think of any danger. I didn’t look to see whether the door was closing before 1 stepped out.”
    Monroe, a witness called by the appellant, testified that he got upon the elevator at the third floor; that there was no other person upon the elevator except appellee and witness and the conductor; that the conductor stopped at the second floor in response to two men upon the hallway of that floor who had called out “ down; ” that as the conductor stopped he called out “ down ” and opened the door; that the two men in the hallway took another car; that “ just as the other elevator picked up these men, Mr. Eelson started to go out of the elevator; the elevator door started to close, he made a start to?go out, and he was caught by the door.”
    The conductor of the elevator testified:
    “At the time I stopped at the second floor Mr. Eelson was standing right near the doorway, within a half foot of the entrance to the door. I simply put my head out of the door and looked and stepped • back. When I started the car down, after stopping at the second floor, I was between one and two feet from Mr. Eelson. I simply said ‘ Down,’ ‘ Going down,’ to see if there was any one there; that is all. I called out'into the hall, ‘ Going down.’ Mr. Eelson first attempted to leave the car when it "was in motion, about two feet or more below the floor going down. Prior to the time that I started the car downward I had no intimation from Mr. Eelson that he wished to leave the car at that floor, or that he was intending to do so. There was nothing in his action or movements that indicated any intention on his part to attempt to leave the car at the floor. I did not "do or say anything to indicate, or from which Mr. Eelson could infer, that the car had reached the lower floor of the building. I made an effort to prevent Mr. Eel-son from being injured when I discovered that he had attempted to leave the car. I tried to throw my hand in front of him, but it was too late, and I grabbed him by the tail of the clothes, begot up there so quickly; I stopped the car immediately, that is, as quick as I could. * * * I started to close the door before starting downward from the second floor. The door had not been wholly closed at the time when he started to leave the car. * * * I stated in my direct examination that the car was about four feet below the level of the door when Mr. Eelson attempted to alight. The door was between ten and fourteen inches open at the time. The door was not actually closed at the time I succeeded in stopping the car. At the time I succeeded in stopping the car the door was about eight inches open.”
    There was no other witness except these three who testified as to the occurrence.

      Counsel for appellant presented to the court certain written interrogatories to be submitted to the jury for their special answer. One was as follows:
    “Was the defendant guilty of negligence causing the injury in this case, and if so, in what did such negligence consist 1 ”
    The court refused to submit this interrogatory to the jury.
    Among other instructions to the jury tendered by counsel for appellee and given to the jury by the court, was the following:
    (3.) “ The court instructs the jury that even if the plaintiff made a mistake and was alighting from the elevator at a floor which was not his destination, this fact will not of itself, as a matter of law, prevent his recovering in this case;. but if you believe from the evidence that under the instructions of the court the plaintiff, while attempting to alight from the elevator, was exercising ordinary care for his own safety while so doing, and if you further believe from the evidence and under the instructions of the court that the defendant was guilty of negligence as charged in the first count of the declaration, then you should find in favor of the plaintiff, if such negligence caused injury to the plaintiff as charged in that count.”
    The jury returned a verdict for the appellee and assessed his damages at $2,000.
    From a judgment thereon this appeal is prosecuted.
    Alexander Clark, attorney for appellant.
    TVT. Y. Gilbert and Pliny B. Smith, attorneys for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

The learned counsel for appellant urge that the judgment should be reversed upon the following grounds :

1st. That the court erred in refusing to instruct the jury to find the defendant not guilty.

2d. The court erred in giving the third instruction for the plaintiff; and

3d. The court erred in refusing to propound to the jurv a certain special interrogatory, as requested by the defendant.

The ground first presented raises the question as to the sufficiency of the evidence to sustain the recovery. Three witnesses only testify to the occurrence which caused the injury. One, the conductor, testified to facts which, if true, would bar a recovery, for they would clearly establish contributory negligence upon the part of appellee as a cause of the injury. On the other hand, the testimony of appellee would, if credited, establish facts which ivould sustain the recovery. If he is to be believed, the employe of appellant, intrusted with the management of one of the cars of its passenger elevator, after he had opened the door of the elevator shaft upon the second floor where the car had stopped, without waiting to see if his passenger, appellee, was about to alight, and without even wholly closing the door of the shaft, started his car downward while appellee was in the act of alighting. These facts, together with the resulting injury to appellee, would warrant the conclusion of the jury that appellant, through the conduct of its agent, was guifiy of actionable negligence.

The testimony of the third witness is not satisfactory in clearness as corroborating either of the other two. From his testimony it might be inferred that no other person entered the elevator car at the second floor; and that the car was stationary when appellee started to leave it. But it is by inference only that his testimony goes to establish either fact. He states that he got upon the car and that there was no other person on the car except witness, appellee and the conductor. Whether he meant thereby to contradict the positive statement of appellee that another person did get upon the car as he attempted to leave it, or merely to give the passengers upon the car at the third floor, where he entered it, is problematical. Mor did the conductor expressly contradict the statement of appellee in this behalf.

From the testimony of Monroe it can not be definitely determined whether appellee is truthful in stating that the car had stopped when he started to leave it, er the conductor in stating that the car was moving downward. The question of the credibility of these witnesses was a matter for the determination of the jury, and we are not prepared to hold that the conclusion reached by them is manifestly against the weight of the evidence or lacking the support of a preponderance of it.

It is contended by counsel that the evidence establishes that appellee was guilty of negligence contributing to his injury, and therefore that he can not recover. We are of opinion that this too was for the jury and not for the court to determine npon the facts presented. It can not, we think, be held that as a matter of law the appellee’s conduct, if his testimony is credited, establishes contributory negligence. The fact that he did not request the conductor to stop for him upon the second floor, is not controlling. C. W. D. Ry. v. Mills, 105 Ill. 63.

In that case the Supreme Court said in reference to the management of a street car :

“ It was of no consequence whether the car was stopped at the instance of the plaintiff or not, since the act of stopping was productive of no injury, and is in no respect complained of. It is sufficient while the car was stopped, parties were getting off, and the plaintiff, while attempting also to do so, with due care, was injured by reason of the negligent starting of the car by the defendant’s servants. Éor could it be material to determine whether plaintiff asked or obtained permission of the defendant or its servant to alight. The car being stopped, from whatever cause, at a place where passengers were in the habit of alighting, she had the undoubted right to alight without making any request • or obtaining any permission in that regard, and if the defendant’s servants knew, or by the exercise of due care would have known of it, it was negligence on their part to start the car before.she had a reasonable time in which to alight.”

Bor does the fact that appellee did not look particularly to see if the conductor was about to close the door necessarily constitute contributory negligence upon his part. Tousey v. Roberts, 114 N. Y. 312.

In that case the Hew York court said:

“The door to the car of the elevator being thrown open by a boy who had been accustomed to throw it open, it was not, as- a matter of law, contributory negligence in the plaintiff to pass through the door without stopping to look and listen. An elevator for the carriage of persons is not, like a railroad crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the contrary, it may be assumed when the door is thrown open by an attendant, to be a place which may be safely entered without stopping to look, listen or make a special examination.”

But it is urged that the fact that appellee intended to go to the ground floor and by mistake undertook to alight at the second floor, supposing it to be the ground floor, constituted negligence upon his part which was a cause of, or contributed to the injury. This contention presents the question of the correctness of the instruction complained of by counsel for appellant.

We are of opinion that the instruction was proper. The question of contributory negligence of appellee went only to his exercise of ordinary care in the manner of getting off the elevator car, irrespective of any error upon his part in failing to wait until he had reached his destination, before alighting. If a person upon a public street of a city was injured through negligence of the city in maintaining the street, it could scarcely be presented as a bar to a recovery of damages for such negligence that he was by inadvertence upon a street other than the one he had intended to travel upon. We are of opinion that the learned trial court properly instructed the jury that the question of contributory negligence in this case related to the conduct of appellee in the manner of attempting to alight from the elevator car on the second floor, irrespective of his error in mistaking that floor for his destination.

It is also contended that the evidence is insufficient to sustain the verdict because no showing is made that it is a negligent act to start an elevator car away from a floor of a building before the door is closed to prevent persons from attempting to enter or leave the car.

The declaration charges and the evidence establishes that appellant was operating this elevator car as a carrier of passengers. The law imposed upon it the exercise of the highest degree of care and diligence for the safety of its passengers which. was practically consistent with the efficient use and operation of that mode of transportation. Hartford D. Co. v. Sollitt, 172 Ill. 222; Springer v. Ford, 189 Ill. 430.

It was for the jury to determine upon the facts of this case whether such care had been exercised, and this they could do without the aid of any expert testimony as to the usual conduct of elevator conductors in the matter of closing the doors of car or elevator shaft. If the jury were warranted in finding that the manner in which this conductor operated this car was negligent, then no evidence as to customary conduct of elevator conductors in general or convenience of management could affect the conclusion.

The refusal of the court to submit to the jury the interrogatory tendered was right. It not only called for an answer as to the ultimate fact of negligence of the defendant, but it also called upon the jury to formulate a statement of the evidentiary facts establishing that negligence. It should have been limited to the first question. The court properly refused it as framed. Judy v. Sterrett, 153 Ill. 94.

Ho other complaint is made as to matters of procedure, and there is no assignment of error argued which, questions the amount of the recovery.

The judgment is affirmed.