text:
    Asahel Gage v. Board of Directors of the Chicago Theological Seminary.

      Filed at Ottawa May 10, 1883.

      Practice—action of the trial court in case a judgment of reversal of the Appellate Court is reversed in the Supreme Court. A decree of the circuit court giving equitable relief against several, was reversed by the Appellate Court, and the cause remanded, with directions to dismiss the bill as to one of the original defendants, which was accordingly done; but after this, on writ of error from this court, the judgment of the Appellate Court was reversed for want of jurisdiction, and that court directed to dismiss the writ of error issued therefrom, which it did. The circuit court then, on motion, vacated its order of dismissal, leaving the original decree stand as when first entered: Held, no error, and that on the reversal of the order of the Appellate Court it was as if it had never been made, and that complainant was entitled to be restored to his rights under the original decree.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant.
    Mr. David Fades, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court :

On March 7, 1876, the board of directors of the Chicago Theological Seminary obtained a decree in the circuit court of Cook county, against Asahel Gage and others. In October. 1880, Gage obtained a writ of error from the Appellate Court for the First District, and on March 9, 1881, the Appellate Court reversed the decree of the circuit court, and directed the circuit court to dismiss the bill of complaint of the board of directors as to Gage. On September 29, 1881, the cause was re-docketed in the circuit court, and the bill was dismissed as to Gage. November 14, 1881, the board of directors obtained a writ of error from this court to the judgment of the Appellate Court, and on May 12, 1882, this court reversed the judgment of the Appellate Court, entered March 29, 1881, remanded the cause to the Appellate Court, and directed that court to dismiss the writ from the Appellate Court to the circuit court, for want of jurisdiction. The cause was thereupon re-docketed in the Appellate Court, and that writ of error was dismissed by the Appellate Court, July 25, 1882. A copy of the order of dismissal was filed in the circuit court, the cause re-docketed in that court, and, on October 19, 1882, the circuit court, on motion, entered an order vacating its order of September 29, 1881, under which the bill was dismissed as to Gage, in obedience to the mandate from the Appellate Court upon its order entered March 29, 1881. Gage appeals from this last order of vacation of the circuit court of October 19, 1882, only, and brings to this court the record of the cause only so far as said order is involved.

The position taken by appellant, Gage, is, that the decree of the circuit court of September 29, 1881, dismissing the bill as to him, was a final decree; that the circuit court had no power, at a subsequent term, to vacate that decree, on motion; that the only mode of annulling it was by a review of the decree in an appellate tribunal, or by a bill of review ;„ that the writ of error from the Appellate Court was not to that decree, but to the decree of March 7, 1876, giving relief to Gage; and that, besides, the Appellate Court, on July 2i>, 1882, made a mere order of dismissal of that writ of error, without any directions to the circuit court.

Our statute is as follows: “When an appeal or writ of error shall be prosecuted from a judgment, order or decree to the Supreme Court or Appellate Court, and such appeal or writ of error is dismissed, or the judgment, order or decree is affirmed, upon a copy of the order of the Supreme Court or Appellate Court, as the case may be, being filed in the office of the clerk of the court from which the case was originally removed, execution may issue, and other proceedings may be had thereon, in all respects as if no appeal or writ of error had been prosecuted.” (Rev. Stat. 1874, p. 797.) Without looking further, we think that, under this statute, there may be found sufficient warrant for the action of the circuit court in vacating, on October 19,1882, its former order of September 29, 1881, dismissing Gage from the case. That order of September 29 was entered in obedience to the mandate of the Appellate Court upon its judgment of reversal of the original decree of the circuit court, upon a writ of error to that decree. But that judgment of the Appellate Court was reversed by this court, and, in obedience to direction of this court, the Appellate Court dismissed the writ of error to the circuit court, for want of jurisdiction. We do not see but that this makes a case under the statute; that the writ of error being dismissed, the case should stand in all respects as if no writ of error had been prosecuted,—that is, that the board of directors of the Chicago Theological Seminary should have their original decree against Gage as it was first rendered by the circuit court. The order of the circuit court of September 29, 1881, dismissing the bill as to Gage, was made under the mandate of the Appellate Court, which it could but obey; and when the order of the Appellate Court was reversed, as being erroneous, and it was directed to dismiss the writ of error to the circuit court, it was as if the order had never been made. It fell, and all that had been done in obedience to it, and the board of directors were entitled to be put back in the same position as if the writ of error from the Appellate Court had not been sued out, and as if the erroneous order of the Appellate Court had not been entered, and by vacating the order of September 29, 1881, the original decree of March 7, 1876, was left in full force. As to right of restoration to what has been lost under a judgment which is reversed, see McJilton v. Love, 13 Ill. 494; United States Bank v. Bank of Washington, 6 Pet. 8; Freeman on Judgments, sec. 481.

The judgment of the circuit court will, be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Chicago and Western Indiana Railroad Company v. Enos Ayres.

      Filed at Ottawa May 10, 1883.

    1. Eminent domain—damages to property not taken—of the right in respect thereto. The right to recover damages for injury to private property occasioned by the taking of other property for public use, if not conferred, is secured by section 13, article 2, of the constitution. Property taken for a railroad, or damaged by the construction and operation of a railroad, is taken or damaged for a public use, the public having an interest in railway corporations.
    2. Same—construction of railway tracks on a public highway—right of adjacent owners to recover damages occasioned, thereby—and of the elements of damage. Where railway tracks are constructed in a public highway on ground thrown up considerably above the common level, under proper license, in front of a person’s tract of land, whereby he is cut off from access to and egress from the same, it was held, in an action by the owner against the railway company to recover damages, that he could not recover for any injury or damage he thereby sustained in common with the public generally, but might recover for any damages he may have sustained individually in respect to his private property, separate and distinct from the disturbance of the public easement.
    3. Under section 13, article 2, of the constitution, a recovery may be had in all cases where private property has sustained a substantial damage by the making and using of an improvement that is public in its character, as, a railway, and it is not required that the damage shall be caused by trespass, or an actual physical invasion of the owner’s real estate; but if the construction and operation of a railroad or other public improvement is the cause of the damage, though merely consequential, the party damaged may recover. Depreciation in the value of land fronting on a highway, caused by obstructing access to it, is a proper element of damages.
    Appeal from the Appellate Court for the First District;— heard in that' court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Charles M. Osborn, for the appellant:
    There are many injurious consequences of the construction of a railroad on a public street that result to adjoining property, for which the owner of the property is not entitled to recover. Stone v. Fairbury, Pontiac and Northwestern R. R. Co. 68 Ill. 394; City of Shawneetown v. Mason, 82 id. 387; Rigney v. City of Chicago, 102 id. 64.
    In an action brought to recover for the consequential damages to adjoining property from the construction and operation of a railroad in a public street, the general depreciation in the value of the property caused thereby is not the proper measure of damages, but the measure of damages should be limited to those injurious effects of the construction of the railroad which are specifically set forth in the declaration, and to such of those as are actionable. Chicago, Burlington and Quincy R. R. Co. v. McGinnis, 79 Ill. 272; Chicago, Milwaukee and St. Paul R. R. Co. v. Hall, 90 id. 42; Chicago and Eastern Illinois R. R. Co. v. Hall, 8 Bradw. 624; Chicago and Western Indiana R. R. Co. v. Berg, 10 id. 624.

      When the property which is alleged to have been damaged by the construction of the railroad is a vacant, unimproved and unoccupied piece of land, the plaintiff, as in all other cases, must prove that real, actual injury has been done to it, as charged in the declaration, and the measure of damages must be the actual depreciation in the value of the property, caused- by those real, actual injuries alone which the evidence offered shows it has suffered from the actionable causes stated in the declaration; and the general dejneciation in its value from all causes, whether actionable or not, is an improper measure of damages.
    Mr. H. O. McDaid, for the appellee:
    The construction and operation of appellant’s railroad caused physical damages to appellee’s property, for which he was entitled to recover a just compensation, under our present constitution. Story v. New York Elevated R. R. Co. 3 Abbott’s N. C. 478.
    An action lies for flooding lands, (Nevins v. Peoria, 41 Ill. 511, Toledo, Wabash and Western Ry. Co. v. Morrison, 71 id. 616,) or casting smoke, ashes and cinders thereon. (Rigney v. Chicago, 102 Illl. 64.) Also, for constructing a railway upon a street where, as in this case, the abutting proprietor owned the street, subject to the public easement. Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 439.
    As to the meaning of “physical damages, ” and “direct physical damages, ” see Stone v. Fairbury, Pontiac and Northwestern R. R. Co. 68 Ill. 394; Chicago, Milwaukee and St. Paul R. R. Co. v. Hall, 90 id. 41; Cleveland v. Citizens' Gas Light Co. 20 N. J. Eq. 205; Wahle v. Beinback, 76 Ill. 326.
    The plaintiff, by his action, in effect consents that the burden may be imposed on his land forever. J. M. & I. R. R. Co. v. Esterle, 13 Bush, 638; Central Branch Union Pacific R. R. Co. v. Andrews, 26 Kan. 711; Decatur Gas Co. v. Howell, 92 Ill. 19.

      In eases of this character it is not competent to compel proceedings under the Eminent Domain act. Stetson v. Chicago and Eastern Illinois R. R. Co. 75 Ill. 75.
    There being no remedy under the statute of eminent domain, the person whose property is injured is compelled to bring a common law action. Cooley’s Const. Lim. 543; Eaton v. Boston Ry. Co. 51 N. H. 404; City of Elgin v. Eaton, 83 Ill. 536; Grand Rapids and Indiana R. R. Co. v. Heisel, 47 Mich. 393.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellant obtained permission from the authorities of the town of Lake for the purpose of constructing its railroad in a public road or street of the town, which was sixty-six feet in width. It was designated as Wallace street. Appellee owned a tract of ground, originally ten acres, but by sales reduced in quantity to about seven and one-half acres. It fronted upon, and was bounded by, Forty-ninth street on the north, and Wallace street on the east, and the road ran in front of this property for a distance of three hundred and forty-two feet, and then deflected on other lands. Wallace street, prior to this time, was traveled and used as a common country road, for general travel. In 1879 appellant constructed a single track along this road in the front of this property, and in 1880 the company put in another track by the side of the other, and raised the road about a foot and a half, and the edge of the track in front of appellee’s land was about five feet west of the center of the street, thus leaving about twenty-eight feet between the railroad track and the front of appellee’s land, and the track was about two and one-half feet above the common level. The land of appellee had been fenced, hut the fences had gone to decay, and it was practically vacant. There was, however, a person who had built a cattle pen on it, and used the same for confining his cattle, and he pastured them on the land, and appellee requested that person to hold the possession for him. In August, 1881, appellee sold from the north end of his ten-acre tract a strip one hundred and twenty-four feet in width, for right of way, to the Chicago and Grand Trunk railway, and prior to the commencement of this suit that company had laid a track, and was operating it, on this strip, thus cutting off appellee’s access to Forty-ninth street. Thus he was left with about seven and one-half acres at the time he brought this suit, in September, 1881. The action was case, and he averred in his declaration that he owned in fee; that appellant “wrongfully, injuriously and unjustly entered upon Wallace street, directly in front of plaintiff’s property, and constructed railway tracks directly in front of plaintiff’s property, and has operated the same with engines, cars, etc., and caused ashes, dust, smoke, cinders, fire, sparks, and other noxious and unhealthy substances, to be thrown on the land, etc., and that by means of the construction and maintenance of the railroad tracks and obstructions on the street, access to and from appellee’s property is cut off, and the use of the street is destroyed as a public highway, and appellee is denied the use thereof, and prevented the ordinary use thereof in front of his property. ” A trial was had by the court without a jury, by consent. After hearing the evidence, the court found for the plaintiff, assessed his damages at $3000, and after overruling a motion for a new trial, rendered a judgment in his favor for that sum. The case was removed to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, and the case is brought to this court by appeal.

The right to recover damages for the injury to private property, occasioned by the taking of other property for public use, if not conferred, is secured by the 13th section of article 2 of our constitution. It provides that “private property shall not be taken or damaged for public use without just compensation. ” It then follows, that if this property was damaged for public use, the constitution secures and requires compensation for the damages sustained. Whatever may have been formerly held, railroads, although constructed, owned and operated by private capital, talent and enterprise, are chartered for public, and not alone for private, use. Corporations are never created, for private purposes alone, but to promote the public welfare. Whilst advancing the public good, they are expected to promote the private interests of the persons owning and operating them. But the primary purpose is to advance the public interest. If it was not for this public character of these railway corporations, there would not be the shadow of a pretense that the legislature could confer upon such organizations the power to exercise one of the very .highest attributes of sovereignty,—the power of eminent domain, to condemn property, and take from and deprive the owner of its use. It would be monstrous and unheard of to hold the legislature has the despotic power to condemn one man’s private property, simply to give it to another for his private use. No person acquainted with and attached to our form of government will ever contend for so monstrous a doctrine.

It then follows, that railways are constructed for public use, and the General Assembly being charged with the passage of all laws for the common welfare, must, unless prohibited by the organic law, determine' what measures are for the general welfare and public use. Had not this principle been invoked, no railroad ever built in this State could ever have condemned a foot of land for right of way, depot grounds, or other purposes, or condemned material for their construction; and if the principle did not exist, no condemnation could be made in the future by these or other corporate bodies. This railway having been constructed, it must be presumed that it was under a sufficient charter, and if so, we must conclude it was for the promotion of the public interest, and to subserve public demands. It then follows, that if appellee’s land was damaged by the construction of this road it was damaged for public use, and if so, he is entitled to recover just compensation commensurate with the extent of the damages he has sustained. Nothing short of full compensation would be just, and the constitution imperatively demands that just compensation shall be made to the injured party. What elements of the injury shall be adopted as the foundation of the damages has been the source of some perplexity and doubt, and has led to some confusion in the reported cases. Nor has this court been free from these vexations and uncertainties. Like the introduction of new rules changing and governing the rights of property into the fundamental law or a statute, their scope and ultimate operation on the rights conferred or limited are not always apparent when first presented for determination.

It is urged that it is not all damages that are sustained by reason of the construction of a railway that can be recovered by a person claiming to be injured,—that such damages as are shared by the public generally are of that character. This is, no doubt, true, in a limited sense, and is illustrated by the facts in this ease. The public is always injured by the appropriation or the crossing of a highway by a railway, but no one person can recover for this general public inconvenience or damage, because that was a damage to a right held by the public in common, and no one individual can recover for injury or inconvenience to the general public. In such a ease an individual, to recover, must show that he has sustained an injury, and been damaged specially and individually, in -a manner not common to the public, or by the injury to the right or easement enjoyed by the public on being deprived of or incommoded in its use and enjoyment as a public right or easement. Here it would seem that the general public, if not deprived of they are greatly injured in the use of the road as a public highway by the construction and "operation of this railroad in the public highway, and for that public damage or inconvenience appellee had no right to recover, nor do we find any claim on his part to so recover, nor was there. any evidence introduced from or under which such damages could have been allowed. We must, therefore, consider the case freed from such an element of damages, as it is not in the case. But the doctrine is well recognized in this court, that' if, in the erection of such structures, an individual has sustained damages therefrom individually, separate and distinct from the disturbance of the public easement,—an injury to his private property amounting to a substantial damage,—he may recover compensation for the damages thus sustained. It therefore follows, that as appellee has sustained this injury he rightfully recovered.

Numerous cases have been referred to on each side to sustain their several positions. It is needless to say our decisions have not been harmonious on this question, but in the case of Rigney v. City of Chicago, 102 Ill. 64, there was a full review of the decisions of our courts, as well as the courts .of Great Britain, under a statute containing a provision similar to the provision in our constitution. The conclusion there reached was, that under this constitutional provision a recovery may be had in all cases where private property has sustained a substantial damage by the making and using an improvement that is public in its character,—that it does not require that the damage shall be caused by a trespass, or an actual physical invasion of the owner’s real estate, but if the construction and operation of the railroad or other improvement is the cause of the damage, though consequential, the party damaged may recover. We regard that case as conclusive of this question. The case of Pittsburgh and Fort Wayne R. R. Co. v. Reich, 101 Ill. 157, is in point on this question of damages, and the case of City of Chicago v. Union Building Association, 102 Ill. 379, also reviews the authorities, and approves the doctrine of Rigney v. Chicago, supra. These eases, therefore, overrule the doctrines of the earlier cases.

From what has been said it will be seen that the declaration contained an averment that warranted the evidence on this question, and the finding of damages under the averment. The allegata and probata agree, and the law warranted both. There was, therefore, no error in the admission of evidence to show that the building and operation of the road, and the obstruction of the access to the property, depreciated its value, and the owner had thus sustained damage by the structure; and in this view of the case there was no error in the court modifying the ruling on the question of law it was requested to make.

Perceiving no error in the record, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Charles W. Brandon et al. v. Josiah M. Brown, Exr.

      Filed at Ottawa May 10, 1883.

    1. Administration—executor not liable to account to legatees for proceeds of sale of land, where they avoid the sale. An executor, under decree of the county court, sold real estate of his testator, giving a deed warranting the regularity and validity of the proceedings to sell, and received the purchase money, with which he charged himself in his reports. Before the distribution of the money the legatees, repudiating the sale, brought ejectment, and recovered the land for want of jurisdiction in the county court to make the decree of sale, whereupon the executor refunded the price of the land to the purchaser, and refused to charge himself further with the same in his reports, and the legatees sought to charge him with this money, claiming he was estopped to deny it belonged to the estate by his former reports: Held,, the court properly refused to make him account for the money, and that there was no estoppel in the case.

      2. Covnty court—has equitable jurisdiction. The county court to the extent it has jurisdiction (and this extends to the settlement of estates of deceased persons) exercises equitable jurisdiction.
    3. Mistake—maybe corrected in equity. In equity, if a person by accident.or mistake, in making up his accounts with another, has charged himself with too much or too little, the real facts will govern, and the mistake will be corrected as the facts warrant, and he will be charged only with what he justly owes. And this rule obtains in the accounts of administrators, executors and guardians made to the county court, and their reports will not be held conclusive on them.
    4. Same—former decision. In the matter of Steele, Guardian, 65 Ill. 326, the guardian was held, upon the facts in that case, not to be concluded by his report as to moneys with which he was therein charged,—but the court added: “If a report was fair upon the face, without any apparent mistake, we do not wish to be understood as holding that parol evidence would then be admitted to contradict or explain it. ” It was considered this limitation was well enough on the facts before the court, but it is not to be taken as an implication that the court would, had the facts called for a decision, have decided that parol evidence was not admissible to show error, by reason of accident or mistake, in a report fair on its face. Directly the reverse is the law.
    5. Judicial sales—doctrine of caveat emptor is applied to protect those malting sales. The doctrine of caveat emptor-is applied to judicial sales for the protection of those conducting them, and not for the benefit of heirs and legatees repudiating them.
    6. Same—minor repudiating, required to refund what he has received from the sale. This court has repeatedly decided that when a minor dis-affirms a. judicial sale by bill in equity, he must return, or offer to return, what he has received, if it be in his power. Repudiating by action of ejectment is in effect the same as by bill in equity, and no court exercising equitable powers will allow a party to do this and also receive the proceeds of such sale not yet paid over to him.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.
    Messrs. Hill & Dibell, for the appellants :
    The rule of caveat emptor applies to executors’ and administrators’ sales of real estate to pay debts, and in case the sale is void, the purchaser, except in eases of fraud or warranty, is absolutely without remedy, in law or equity, to recover the purchase money paid. Owings v. Thompson, 3 Scam. 509; Bingham v. Maxcy, 15 Ill. 295; McManus v. Keith, 49 id. 389; Bassett v. Lockard, 60 id. 164; Bishop v. O’Connor, 69 id. 431; Holmes v. Shaver, 78 id. 578; Bond v. Ramsey, 89 id. 29.
    But if the heirs or devisees of the land sold resort to a court of equity for relief against the purchaser at such void sale, relief will be given only upon condition of refunding the purchase money and taxes, and this upon the principle that he who seeks equity must do equity. Chambers v. Jones, 72 Ill. 273; Kinney v. Knoebel, 51 id. 112; Reynolds v. McCurry, 100 id. 356.
    Covenants of warranty of title, or against his own acts or omissions, in executor’s or administrator’s deeds, do not bind the estate, but do bind the executor or administrator personally. Sumner v. Williams, 8 Mass. 162; Mitchell v. Haven, 4 Conn. 295; Belden v. Seymour, 8 id. 24; Mason v. Ham, 36 Me. 573; Vincent v. Morrison, Breese, 227; Mason v. Caldwell, 5 Gilm. 195; Bishop v. O’Connor, 69 Ill. 434; Young v. Loram, 11 id. 641.
    Minors and married women are not estopped by receipt of the purchase money from afterward recovering the real estate for which the money was paid. Nothing short of actual fraud will so estop them. Bigelow on Estoppel, 443-447; Davidson v. Young, 38 Ill. 147; Schnell v. City of Chicago, id. 384; Rogers v. Higgins, 48 id. 217; Dorlarque v. Cress, 71 id. 381; Oglesby v. Coal Co. 79 id. 164.
    An executor or administrator of property, into possession of which he has been let tinder the will or letters of administration, is, like a tenant, estopped from denying that it is the property of the estate. Bigelow on Estoppel, (2d ed.) 389; Willenborg v. Murphy, 36 Ill. 344; Phillips v. Rogers, 12 Metc. 405.
    The reports of guardians, supervisors, treasurers, and others acting in a like fiduciary capacity, are binding and conclusive, not only upon them, but also upon their sureties, even in cases where the money was not in fact received as stated in the report. Fogarty v. Ream, 100 Ill. 375; City of Chicago v. Gage, 95 id. 629; Roper v. Sangamon Lodge, 91 id. 518.
    Money or property received by the executor in his capacity as executor will be treated and distributed as assets of the estate, although such money or property did not belong to the testator, and never was in his possession or control. 3 Williams on Executors, (Perkins,) 1755; Loring v. Cunningham, 9 Cush. 87; Goltra v. People, 53 Ill. 224; People v. Phelps, 78 id. 148 ; Willenborg v. Murphy, 36 id. 344.
    Mr. G. D. A. Parks, for the appellee:
    The probate court possesses original, plenary, and, except in certain cases, exclusive jurisdiction in the settlement of the accounts of executors and administrators. Const. art. 6, sec. 18; Propst v. Meadows, 13 Ill. 169; Freeland, Exr. v. Dazey et al. 25 id. 296; Heward v. Slagle, 52 id. 340; Heustis v. Johnson, 84 id. 61; Moline Water Power Co. v. Webster, 26 id. 239; Hales et al. v. Holland, 92 id. 498; Tryon v. Farnsworth, 30 Wis. 581; In re Steele et al. 65 Ill. 324; Wilson v. Kirby, 88 id. 573; Upton v. Badeau, 3 Bradf. 13; Poole v. Munday, 103 Mass. 174; Pitkin v. Pitkin, 7 Conn. 315.
    Because the judgment of the probate court, in such a case, is not a general judgment quod recuperet, is no reason for saying it is not a “judicial determination” fixing the general liability of the executor to the estate. Wells v. Hogan, Breese, 338; Hough v. People, 66 Ill. 178; Ralston v. Wood, 15 id. 169; Mitchell v. Mayo, 16 id. 84; Fogarty v. Ream, 100 id. 374.
    He who seeks equity must do equity. Under this rule no vendor of real estate by a void or voidable sale, whether executed by himself in person or through the agency of a trustee or other representative, can disaffirm the sale, and afterwards have the aid of a court to recover also the purchase money of the same land. Penn v. Heisey, 19 Ill. 298; Chambers v. Jones, 72 id. 275; Paddleford v. Pierce, 72 id. 500; Walker v. Mulvean, 76 id. 18; Wickiser v. Cook, 85 id. 68; Reynolds v. McCurry, 100 id. 361; Blodgett v. Hitt, 29 Wis. 190; Mohr v. Tulip, 44 id. 280; Findley v. Richardson, 46 Iowa, 103; Dowell v. Good, 25 Ohio St. 390; Dedford v. Mercer, 20 Iowa, 124; State v. Stanley, 14 Ind. 409; Rorer on Judicial Sales, see. 460; Bigelow on Estoppel, 578; 2 Smith’s Leading Cases, 736, 742; 2 Story’s Eq. Jur. secs. 1262, 1263; Smith v. Warden, 7 Harris, (Pa.) 430.
    It is but begging the question to affirm that the purchase money, on being received by the executor, became, ipso facto, assets of the estate. That depended upon the future action of appellants in affirming or disaffirming the sale. Johnson v. Corbett, 11 Paige, 265; King v. Whitton, 15 Wis. 658; In re Steele, 65 Ill. 227.
    An estoppel in pais can only be set up as a means to prevent injustice,—not as a reward. Thomas v. Bowman, 29 Ill. 429.
    Upon the general subject of how far the doctrine of caveat emptor is qualified by equitable rules, even as between the heirs and the purchasers in void judicial sales, I refer to Worthington v. McRoberts, 9 Ala. 297; Mitchell v. McMullen, 59 Mo. 252; Connor v. Eddy, 25 id. 75; Campbell v. Brown, 6 How. (Miss.) 230; Langham v. Thompson, 6 S. & M. 259; Shields v. Allen, 77 N. C. 375; Claiborne v. Yeoman, 15 Texas, 44; Burdett v. Silsbee, id. 604; Longworth v. Wolfington, 6 Ohio, 9; Sharkey v. Bankston, 30 La. Ann. 891.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Sale of certain real estate was attempted to be made by an executor for the purpose of paying debts of the testator, pursuant to a decree of a county court. The executor made a deed to the party purchasing, and therein covenanted as to the regularity, etc., of his own acts. The purchase money was all paid to the executor, and for several terms, in his report to the county court, he charged himself with the amount. Subsequently, and before he had paid the money to the devisees,—it not having been used for the payment of debts,—the legatees brought ejectment for the real estate so sold, and recovered it from the purchaser, on the ground that the county court rendering the decree did not have jurisdiction over their persons. After this recovery the executor refunded the amount of the purchase money to the purchaser of the real estate, and refused farther to charge himself therewith in his reports to the county court. The question now to be determined is, simply, whether these devisees, having repudiated the sale by their action of ejectment, are, nevertheless, entitled to hold the executor responsible for the amount thereof.

It is plain there is no justice in such a claim, for the devisees have already got all that ever belonged to them, and nothing, therefore, but an arbitrary and inflexible rule of law could ever be appealed to for its sanction. Counsel for appellants insist there is here such a rule—that the executor is estopped, by his reports admitting the amount in his hands, to show that it was improperly there. There is clearly no estoppel to be invoked. Nothing is shown to have been done by the devisees, on the faith of those reports, which would not otherwise have been done, and the position of no one has been changed or affected thereby. The cases cited by counsel, where parties have been held bound by reports made by them as admissions of fact, are not at all analogous. The .county court, to the extent it has jurisdiction, (and this unquestionably extends to the settlement of estates of deceased persons,) exercises equitable as well as legal powers. (Dixon v. Buell, 21 Ill. 203.) And in equity, if a party, by accident or mistake, has charged himself with too much or too little, the real facts will govern, the mistake will be corrected as the facts warrant, and he will be charged only with what he justly owes.

In In re William Steele, Guardian, 65 Ill. 326, the guardian, in his report, had charged himself with too much. It was said: “In the allowance of claims against estates the county court has equitable jurisdiction, and may adopt the forms of proceedings in equity. (Dixon v. Buell, 21 Ill. 203.) It may, likewise, possess a similar jurisdiction, and adopt the same mode of procedure in the adjustment of the accounts of guardians. ” And, after some discussion of the facts, it was added: “As there is a probable, if not an evident, mistake in the report, it should not be held conclusive upon the guardian. Upon the principles of equity, they should have been permitted to correct it by satisfactory proof. ” It is true the court, in subsequent language, limit the decision of the facts before it, saying: “If a report was fair upon the face, without any apparent mistake, we do not wish to be understood as holding that parol evidence would then be admitted to contradict or explain it. ” This limitation was well enough, inasmuch as it was not required that the court should go beyond the facts actually before it, but it is not to be taken as an implication that the court would, had the facts called for a decision, have decided that parol evidence was not admissible to show error, by reason of accident or mistake, in a report fair upon its face. Directly the reverse is the law.

It is said in 1 Story’s Equity Jurisprudence, (sec. 91,) in specifying cases wherein executors and administrators are entitled to relief in equity: “Thus, if he, ” (i. e,, the executor or administrator,) “should receive money supposed to be due from a debtor to the estate, and it should turn out that the debt had been previously paid, and before the discovery he had paid away the money to creditors of the estate, in such a case the supposed debtor may recover back the money, in equity, from the executor, and the latter may, in the same manner, recover it back from the creditors to whom he paid it. In like manner, if an executor should recover a judgment, and receive the amount, and apply it in discharge of debts, and then the judgment should be reversed, he is compellable to refund the money, and may recover it back from the creditors. ” See, also, Bispliam’s Principles of Equity, p. 189, sec. 183.

In Sellew’s Appeal, 36 Conn. 186, it was held, where a mistake has' been made in the settlement of the account, and property with which the executor is charged proves, in fact, to have been lost or destroyed when supposed to have been in existence, or is subsequently taken from the executor by a paramount title when it was supposed to belong to the estate, the equity power of the court of probate is sufficient for the correction of the mistake.

But counsel again insist the executor properly charged himself with this amount,—that the doctrine of caveat emptor applied to the sale, and that therefore the purchase money became and remained a permanent part of the funds of the estate. The doctrine of caveat emptor is applied to judicial sales for the protection of those conducting them, and not for the benefit of heirs and legatees repudiating them. Had the money here been paid to the legatees, and they, while yet minors, wasted and squandered it, they could not have been compelled to return it in order to set aside the sale. But here the money has never been paid out by the executor. The devisee has repudiated and disaffirmed the sale, and been placed in the possession of his property, and is asking that the executor also pay to him what the purchaser paid on the sale. As to this money he assumes the affirmative, and must, therefore, make out a case legally and equitably entitling him to have it. Suppose these devisees had filed their bill in equity, asking both that the sale be set aside and that they be paid what the purchaser had paid on the sale. Of course no one would pretend they could recover. We have repeatedly decided that when a minor disaffirms a judicial sale by bill in equity, he must return, or offer to return, what he has received, if it be in his power. Where he has, during minority, wasted or squandered it, this is not required, but if the money is where it can be controlled by the court, it can not be retained by the party repudiating and disaffirming the sale. Penn v. Heisey, 19 Ill. 298; Chambers et al. v. Jones, 72 id. 275; Padfield v. Pierce, id. 500; Walker v. Mulvean, 76 id. 18; Wickiser v. Cook, 85 id. 68; Reynolds v. McCurry, 100 id. 361; Kinney v. Knœbel, 51 id. 126; Smith v. Knœbel, 82 id. 404. The only difference between the supposed case and that before us is, there the party seeks, by bill in equity, to set aside the sale, while here he has, by ejectment, repudiated, and had the sale set aside, in effect, and is seeking, also, to have the purchase money paid him through the aid of a court exercising, as to the particular question, equitable powers. The want of equity is just as obvious here as in the supposed case.

In England v. Clark, 4 Scam. 486, assumpsit was brought by the purchaser of a horse at a constable’s sale, to recover of the plaintiff in execution the price he had paid, the horse having been subsequently recovered from him by a stranger, and it ivas held that the doctrine of caveat emptor applied, and that the action would not lie. It is, however, intimated in the prevailing opinion, notwithstanding the doctrine of caveat emptor, that the purchaser might be entitled to relief, either by bill in equity or by action of assumpsit against the constable or the defendant in execution; and Wilson, Ch. J., in a.separate opinion, says: “If the mistake as to the ownership of the horse had been discovered before the officer had paid over the money, it appears to be well settled that upon an application to the court it could arrest the money in his hands for the benefit of the purchaser, and permit the officer to amend his return upon the execution so as to renew the levy upon the property of the debtor. ” And the same doctrine is declared to be applicable to a case in some respects like the present, in Mockbee v. Gardner, 2 Harr. & Gill, 176, although the point was not necessary to be decided there. Archer, J., in that case, after alluding to the doctrine of caveat emptor, as applicable to executors and administrators, adds : “But while this exception from the general principle exists in their favor, we by no means intend to assert that they would not be answerable, in case of a failure of title, while the purchase money for the property sold remained in their hands, undistributed and unadministered. In such a case there would exist no well founded reason why they should not refund to a purchaser. Such a modified liability would subject them to no danger of pecuniary loss, and as long as the fund remained in their hands they might well be considered as liable, with other vendors, to the general doctrine of implied warranty of title.”

Undoubtedly the executor here was under no obligation to make a covenant, and be bound thereby himself, alone, and in no case would a court of equity permit a burden in this way to be fastened upon an estate. But it is not unreasonable to assume that the covenant influenced, to some extent, the purchase. It was made for the benefit of the estate, and it is broken in consequence of the act of these devisees in disaffirming the sale. They lose nothing by his taking the money and discharging his covenant, especially as this, as we have seen, under all the circumstances, is but the just and equitable disposition of that money. As matter of natural right, the purchaser, having lost the land, should have back his money, there being no intervening conflicting rights. It certainly makes it no worse that in paying it back the executor discharges-a covenant he unnecessarily made in the deed which has been disaffirmed.

We do not see any objection to the ruling below, and the judgment must therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Chauncey Kilmer v. The People ex rel. William T. Johnson.

      Filed at Ottawa May 10, 1883.

    1. Judgment—confirmation of assessment, whether final or-not. The confirmation of a special assessment, for some purposes is a final judgment, as an appeal or writ of error lies to review it; but upon application for judgment against the land upon which the assessment has been made, the previous judgment of confirmation must be regarded as but a part of one and the same proceeding, and the court never loses jurisdiction until the proceeding is for some cause discontinued, or culminates in a judgment against the land.
    2. Amendment—after the term, without notice. Where the affidavit of the commissioners making a special assessment showing a compliance with the law, required to be filed before judgment of confirmation, showing notice to the owners of property assessed, failed to show the term of court at which the assessment roll would be returned for confirmation, and the assessment was confirmed without discovery of the inadvertent omission to fill the blank as to the term, it was held, that the court, on application for judgment against the land at a succeeding term, might allow the affidavit to be amended without notice to the parties interested.
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. E. J. Whitehead, for the appellant.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This appeal is brought to reverse a judgment of the county court of Cook county against certain real estate in the village of Hyde Park, belonging to the appellant, upon a special assessment made by the municipal authorities of said village, under the provisions of article 9, chapter 24, of the Revised Statutes.

• Counsel for appellant, in his printed brief, urges but a single objection to the validity of the proceedings culminating in the judgment complained of, and to that alone we will direct our attention.

By section 27 of the article above mentioned, the commissioners, upon the completion of the assessment roll, are required, among other things, to “send by mail to such owner of premises assessed, whose name and place of residence are known to them, a notice, ” properly addressed to such owner, setting forth a short description of the premises; o the fact of their assessment for public improvement; the amount of the assessment; the name and term of the court to which the assessment roll will be returned for confirmation, and the date of such notice. By the 28th section one or more of the commissioners, on or before the. final hearing of the assessment, are required to file in the court an affidavit showing a compliance with this provision of the act, which affidavit is declared to be prima facie evidence of such notice. • It appears that the affidavit relied on to show such notice in the present case,, by inadvertence failed to show the term of the court to which the assessment roll would be returned for confirmation,—the .notice in every other respect being formal and sufficient. This fact being developed on the hearing of the present application, appellee entered a motion for leave to amend the affidavit by inserting the proper term of the court, so as to make it conform to the facts, and in support of such motion introduced as a witness Daniel H. Hoone, who testified that he was one of the commissioners who made the assessment in question; that he posted and mailed the notices of the confirmation of the assessment roll, and that he was the same person who made the affidavit showing the mailing of the notices; that the leaving of the term of the court blank in the affidavit was a clerical error, and the term should be inserted in the affidavit;' that he remembered the December term was inserted in the notice of mailing, in this case,, etc. The court, thereupon, against the objections of appellant, allowed the affidavit to be amended so as to conform to the facts, and the ruling of the court in this respect is the only ground urged for a reversal.

The principal objection to the ruling of the court in the respect stated is, that there was no notice of the application to amend the affidavit, and Pitkin v. Yaw, 13 Ill. 252, and Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 id. 616, are cited and relied on as showing that notice in such ease is indispensable. The general doctrine recognized by these eases, that the record of a cause once finally disposed of can not, after the expiration of the term of the court at which such disposition is made, be altered or amended except upon special notice of the application to all parties who will be affected by such alteration or amendment, is not questioned. The only question then is, does the present case come within the principle ? It must be conceded that for some purposes the confirmation of a special assessment is a final judgment. An appeal or writ of error lies to review such a judgment, as in other 'cases. Nevertheless, upon an application for judgment against the land upon which such an assessment has been made, we are of opinion the previous judgment confirming the assessment should be regarded as but a part of one and the same proceeding, and that the court never loses jurisdiction of the cause until the proceeding, for some cause or other, fails or is discontinued, or until it culminates in a judgment against the land. This being so, it follows the court had the right to allow the amendment in question, notwithstanding the judgment of confirmation. The amendment was clearly in furtherance of justice. It simply made the affidavit speak the facts as they occurred, and as was intended by the party making it.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Henry Potwin v. William T. Johnson, Collector.

      Filed at Ottawa May 10, 1883.

    1. Appeal—revenue—judgment on special assessment. No appeal lies to an Appellate Court from a judgment of the county court against lots for a special assessment against the same by a city, for improving a street, but such appeal lies directly to this court.
    2. Section 88 of the Practice act, as amended in 1879, provides that in all cases relating to the revenue, etc., appeals shall be taken directly to the Supreme Court. The word “revenue” in that clause is held to embrace all taxes and assessments imposed by any public authority, and includes special assessments made by a city for any public improvement.
    Appeal' from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. Edward Roby, for the appellant.
    Mr. Francis Adams, and Mr. F. S. Winston, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an application hy the county collector of Cook county, at the July term of the county court, 1882, for judgment against certain lands for a special assessment which had been levied by the city of Chicago for improving West Monroe street. The application for judgment was made on the 10th day of July,—the first day of the July term of court. The court found that due notice, as required by law, had been given of the application for judgment, and made an order that parties desiring to object file their objections by July 12. On July 19, no objections having been filed, judgment was rendered against the lands. On July 26 the appellant appeared in court, and entered a motion to set aside the judgment. This motion was heard, and, on the 2d day of August, overruled. The appellant appealed to the Appellate Court, where the judgment of the county court was affirmed. To reverse this last judgment the appellant has appealed to this court.

It is apparent, from an examination of the statute, that the Appellate Court had no jurisdiction of the cause, and the' appeal ought to have been dismissed by that court. The 8th section of the Practice act, as amended by the act of 1879,' (Laws of 1879,' page 222,) among other things provides, “that all cases relating to the revenue; or in which the State is interested, as a party or otherwise, shall be taken directly to the Supreme Court.” Here the application for judgment was for a special assessment levied by the city of Chicago, . but the money to be raised was revenue, and the fact that the money was to be collected by special assessment did not change its character, or affect it in the least. The act is not confined to State taxes or public revenue, but embraces all revenue, whether it may be State, county or city taxes.

The construction of this statute came before the court in Webster v. The People, 98 Ill. 343, and in speaking in regard to the term “revenue,” it is there said: “The term was not used in its most extended meaning, but to embrace public revenue, whether State or municipal,—to embrace all taxes and assessments imposed by public authority. ” Here the assessment was a municipal tax, levied for a special purpose by public authority, and clearly falls within the term “revenue.” If we are correct in this view, it follows that the statute did not authorize the appeal to be taken to the Appellate Court, and that court had no jurisdiction of the cause. If the Appellate Court had no jurisdiction, an appeal from that court to this could not confer jurisdiction here to dispose of the case on its merits.

The only proper order that can, therefore, be made in the case is, to reverse the judgment of the Appellate Court, and remand the cause, with directions to that court to dismiss the appeal, which is done.

Judgment reversed.


text:
    The Wabash, St. Louis and Pacific Railway Company v. Annie M. Peyton.

      Filed at Ottawa May 10, 1883.

    1. Appeal—reviewing facts. The assessment of damages in an action on the case, for a personal injury, is a question of fact, depending on the evidence, and hence this court is prohibited from inquiring whether the damages assessed in such a case are excessive.
    2. Railway company—can not exonerate itself from its duty by contract. A railway company, by accepting and acting under its charter, becomes a carrier of persons and property, and the law imposes all the duties and liabilities of a common carrier on it, and such company can not exonerate itself from such duty and responsibility by contract with others, nor in anywise escape or free itself from liability, unless released by the General Assembly.
    • 3. Same—when liable for negligent acts of servant of another road. Where one railway company acquires the right to run its trains over a portion of the road of another company by a contract, in which it is agreed its trains, while on such leased road, shall be under the control and direction of the yard-master or other servant of the lessor company, the yard-master of the latter road, at such place and for the time being, will be the servant of the lessee company, and it will become liable for an injury caused to another from the negligent acts of such yard-master, the same as if he was its own employé on its own road.
    4. Same—held to same care on leased road as on its own. A railroad company is held to the exercise of due care for the safety of all persons while exercising its franchises, whether on its own road or on that of another company. This duty was imposed by law when it received its franchises, which holds good at all times and in all places, and if the company operates its trains over the road of another by contract or lease, it must see and know that the track is in a good and safe condition, not only for the safety of its passengers, but also for the safety of persons rightfully near to the track and liable to injury by its being used when in an unsafe condition.
    5. Where a railroad company procures, by contract with another such company, the right of running its trains into and out of a depot over the track of the latter, it thereby makes that portion of the track so used its own, in so far that it will be responsible for all injuries resulting from negligence in keeping or permitting it to be in an unsafe condition.
    6. In this case the defendant railway company, under an agreement with another company, had the privilege of entering and departing from the depot at a station over the track of the latter, by yielding to the latter the control of its passenger trains over that portion of the track. Under this contract the switch engine of the lessor made up the defendant’s trains, and generally drew them out, but when the defendant performed that service it was under the direction of the lessor’s yard-master. On the day of the accident defendant’s engine backed in and was attached to the baggage car, and while detained to receive baggage some one threw a lot of loose boards oh the track, between the baggage car and the coaches. After receiving the baggage the engine backed and was attached to the passenger ears, and the train moved out. In removing the boards the yard-master and his assistants left one board projecting so near the rail of the track on the left side of the engine, that it was struck by the end of the bar of the pilot, and being held down by the other boards lying on it, this board was forced around against a high board fence and driven through it,, when it struck the plaintiff, who was near the fence and not seen by the engineer, and she was injured by the dislocation of her ankle, and the breaking of her leg above the ankle: Held, that the defendant was liable for the injury thus caused.
    7. In such case the court declined to say whether the lessor company was also liable, but held that if it was, the plaintiff had the option to sue either company alone, and perhaps both, as tort feasors, but that she was not required by any rule to sue either one instead of the other, or to sue both jointly.
    Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Messrs. Sleeper & Whiton, for the appellant:
    Negligence is not actionable unless it is the proximate cause of the injury complained of. The law can not undertake to trace back the chain of causes indefinitely. No one is guilty of culpable negligence by reason of failing to take precautions which no other man would likely take under the circumstances. (Shearman and Redfield on Negligence, secs. 6, 9, 10.) And whether a given state of facts constitutes negligence, is a question of law, though whether a particular act of negligence contributed to the injury is a question of fact. Ibid. see. 11; Railroad Co. v. Armstrong, 52 Pa. St. 282; Tarwater v. Railroad Co. 42 Mo. 193; Gee v. Railroad

      Co. L. R. 8 Q. B. 161; Beisiegle v. Railroad Co. 40 N. Y. 9; Glassey v. Railroad Co. 57 Pa. St. 172.
    For analogous cases where the damages have been held too remote to justify a recovery for acts of negligence: Sharp v. Powell, L. R. 7 C. P. 253; Morrison v. Davis, 20 Pa. St. 171; Railroad Co. v. Cole, 41 Ind. 331; Phillips v. Dickerson, 85 Ill. 11; Fent v. Toledo, Peoria and Warsaw R. R. Co. 59 id. 349; Toledo, Wabash and Western R. R. Co. v. Muthersbaugh, 71 id. 572; Illinois Central R. R. Co. v. Phillips, 55 id. 194; Brown v. Kendall, 6 Cush. 292; Mott v. Railroad Co. 1 Rob. 585; Hoag v. Railroad Co. 85 Pa. St. 293; Hartfield v. Roper, 21 Wend. 615 ; Bizzle v. Booker, 16 Ark. 308; Cornman v. Railroad Co. 4 Hurl. & N. 781.
    But if there was actionable negligence it was that of Bid-dell, the depot-master of the Western Indiana company, alone, for which he and his superior are liable. It is true Shadel was on our engine when the injury happened, but, pro hac vice, whose servant was he ? The rule of respondeat superior does not apply if the alleged employer has no right to control the acts of his alleged servant. Laugher v. Pointer, 5 B. & C. 550; Blake v. Ferris, 5 N. Y. 48; Stevens v. Armstrong, 6 id. 435; Buffalo v. Holloway, 7 id. 493; McCafferty v. Railroad Co. 61 id. 178; Murphy v. Caroli, 3 Hurl. & Colt. 462; Fletcher v. Railroad Co. 1 Allen, 9; Speed v. A. and P. R. R. Co. 71 Mo. 303; Railroad Co. v. Carroll, 6 Heisk. 347; Pfau v. Williamson, 63 Ill. 16; Gray v. The “John Frazer,” 21 How. 193; Ohio and Mississippi R. R. Co. v. Davis, 23 Ind. 553; Felt v. Dean, 22 Vt. 170; Ladd v. Chotard, 1 Ala. 366.
    Mr. Frank Baker, for the appellee:
    This is not the case of an injury resulting from the negligence of an independent contractor in some casual act, but a case of failure to perform a duty imposed by law, whether operating on its own or another’s road. Where the thing the contractor does is one which it is the duty of the employé to do, either personally or through an agent, the employé is liable for the contractor’s negligence. Wharton on Negligence, sec. 185.
    One bound to perform a duty can not relieve himself from liability for its non-performance by a contract he may make for its performance by another. Shearman and Bedfield on Negligence, sec. 15; Story on Agency, sec. 453; Webb v. P. and K. R. R. Co. 57 Maine, 128.
    For failure to fence, both lessor and lessee companies are liable. East St. Louis R. R. Co. v. Gerber, 82 Ill. 632.
    Riddell, the yard-master of the Western Indiana company, was pro hac vice, as to the public, the servant of appellant; and appellant is liable for his negligence. Shearman and Redfield on Negligence, sec. 73; Oil City R. R. Co. v. Kleighorn, 74 Pa. St. 316; Vary v. B. C. R. and M. R. R. Co. 42 Iowa, 246; Laugher v. Pointer, 5 B. & C. 559.
    If this were not so, still the defendant is liable for any negligence of its servants contributing to the injury. Pierce on Railroads, 282; Webster v. H. R. R. Co. 38 N. Y. 260.
    The damages in this ease are not excessive, or such as to warrant a reversal, within the following cases: West Division R. R. Co. v. Hughes, 69 Ill. 178; Northern Line Packet Co. v. Bininger, 70 id. 572; Chicago v. Elzeman, 71 id. 132; Illinois Central R. R. Co. v. Ebert, 74 id. 399; Pennsylvania Co. v. Rudel, 100 id. 603.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears that appellant’s cars, by a lease or an agreement with the Chicago and Western Indiana Bailroad Company, were permitted to run over a portion of the road of the Chicago and Western Indiana Bailroad Company, at a station to which several railroad companies ran, and from which their trains departed. By this agreement the Chicago and Western Indiana Bailroad Company retained the control of appellant’s passenger trains over that portion of its track; By it the servants of the lessor directed and controlled appellant’s servants and trains in coming in and going from the depot. The switch engine of the lessor, under the control of its employés, made up appellant’s trains, and its engines drew them out. When appellant was permitted to perform that service it was under the direction of lessor’s yard-master,—this being the legal relation of the two companies by the terms of the lease or agreement entered into by them. A train of appellant, on the 10th day of September, 1881, left the depot, when the injury was received by appellee. The train which produced the injury, was, by direction of the yard-master, placed in position for its departure, appellant’s engine backed in and was attached to the baggage car, and whilst detained to receive the baggage some one threw some loose boards on the track, between the baggage car and the coaches. After receiving the baggage the engine backed, and was attached to the passenger cars, and the train moved out. In removing the boards, the yardmaster and those assisting him left one board projecting so near the rail of the track on the left hand side of the engine, that it was struck by the end of the bar of the pilot, and being held down by the boards lying upon it, this board was forced around against a high board fence, and was driven through the fence, and it struck appellee, who was near the fence, and not seen by the engineer, and she was injured by the board striking her and dislocating her ankle, and her leg was broken just above the ankle. She brought suit in the circuit court of Cook county, and recovered a judgment against the company for $2500. The company appealed to the Appellate Court for the First District, where the judgment was affirmed, and the case is brought to this court.

Appellant insists that the injury was the result of accident, and not of negligence. The jury, and the Appellate Court, have found against this position. Whether it was caused by accident or negligence was a controverted fact, which we [have been positively prohibited by statute from reviewing in this court in this class of cases. This has been so often repeated that it would seem to be an act of supererogation to repeat it here.

It is next insisted that the action, if any can be maintained, is against the Chicago and Western Indiana Bailroad Company, and not against appellant. We shall consider this point with the fourth of appellant’s points.

It is likewise insisted that the damages are excessive. Appellant refers to no text-book or reported case which holds that the assessment of damages is a question of law. On the other hand, by every rule of law it must be considered a question of fact. It is averred as a fact in the declaration. It is traversed as a fact, and never questioned by demurrer. On the trial damages are proved by evidence, and they are found by the jury, and not by the court. The proposition seems so obvious that it should not require the decision of a court to establish the proposition. Before the statute of our legislature conferred the power on this court to review the facts in cases brought here for decision, the courts, neither in England nor this country, ever exercised the jurisdiction to examine and assess the damages, or to balance the evidence, to ascertain whether they were correctly assessed. In this class of cases, where the action sounds in damages, the courts rarely ever interfered with their assessment. That is within the province of. the jury. It was in cases only where it was manifest the jury had acted under the influence of passion, prejudice, or some other improper motive, that the court would interfere to disturb the finding of damages. The rules by which damages, in many cases, shall be measured, are questions of law, and in such cases' the court, when asked, is bound to instruct the jury as to the rule for their measurement, but it is the province of the jury to apply the rule and fix the amount. If the trial court were, in such cases, to instruct the jury as to the sum they should find as damages, it is not believed that any one in the profession-could be found to contend that the instruction was correct; and by what statute or rule of practice can we examine the evidence and determine whether the damages are' excessive ? That power was taken from this court when we were deprived of the power to consider controverted facts.

We now come to the consideration of the important and controlling question of the case, and that is, whether appellant is freed from liability by placing, by the lease or agreement, its employés and trains, at the place where the injury occurred, under the control of the road-master of the' other road. Appellant did so as a matter of interest or choice, and not from overpowering necessity. When- the charter was granted the corporation became a carrier of persons and property, and the law imposed the duty of common carrier, with all the liabilities incident to the occupation, and the responsibility was assumed by the corporation, and imposed on it by the law. Nor can the corporation exonorate itself from the duty and responsibility by contract with others, nor in anywise escape or free itself from the liability, unless released by the General Assembly. Appellant voluntarily placed its engine and cars, at that place, under the control and direction of the employés of the other road, and for the time being, and for that purpose, the road-master of the other road became the servant of appellant. The engine and train belonged to appellant; the engine-driver, the fireman, the conductor and brakeman on board of the train were its servants, under its control, and the yard-master, under the agreement, pro hac vice, for the time and place, was its servant. Had the agreement not been made he would not have controlled the starting of the train. Appellant, by the agreement, authorized him to act as its yard-master, and to act for it at that time and place, and it must be held responsible for his acts. The company can not escape by saying he was employed and controlled by the other road. He was, as we have seen, the servant of appellant, to the full extent he acted, in this ease.

Again, this company was'held to care for the safety of all persons whilst exercising its franchises, whether on its road or the road of another. This was the duty imposed by law when it received its franchises, and the duty inheres whenever and wherever the company exercises them. This is a duty that attaches at all times, and at all places where the company operates its road. It was, then, the duty of appellant, by its servants, to see and know that the track was in a good and safe condition,—not only to the passengers, but to those rightfully near to and liable to be injured by its being operated when in an unsafe condition. . By slight attention this danger could have been seen and avoided. Appellant, by the contract, for the purpose of running into and out of the depot, made this portion of the 'track its own, and must be responsible for all injuries resulting from negligence in keeping or permitting it to be in an unsafe condition. Had this part of the road being used by appellant in fact belonged to it, and been operated by its servants, no one, we apprehend, would claim appellant would not be liable. Then, when it .acquired the right to so use the road, and its use to be controlled by the road-master, and obstructed by him, or those under him, appellant must be equally liable. By the contract appellant yielded, instead of retaining, the necessary control to secure the safety of other persons. Moreover, the servants of appellant in charge of the engine were not prohibited from seeing and removing the obstruction, and it was their duty'to have seen and removed it.

The law thus rendering appellant liable, it becomes a fruitless question, in this case, to inquire whether the Chicago and Western Indiana Railroad Company was liable. If it was, then appellee had her option to sue either alone, and, it may be, both, as tort feasors. But she was not required, by any rule of which we are aware, to sue either one instead of the other, or to sue both jointly. The court below instructed in accordance with the views we have expressed, and refused to instruct in accordance with the views contended for by counsel for appellant, and the giving and refusing of the instructions was not erroneous.

On the entire record we perceive no error, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The People ex rel. William T. Johnson v. George A. Springer.

      Filed at Ottawa May 10, 1883.

    1. Appeal—“revenue”—special assessments. By amended section 88 of the Practice act, appeals from the trial courts are required to be taken directly to this court “in all cases relating to revenue, ” etc. The word “revenue” in ^at section is held to embrace all taxes and assessments imposed by public authority. All public park assessments are included in the term, and hence no appeal lies from the order of the county court refusing judgment on such assessments to the Appellate Court.
    2. Practice—power to vacate judgment after term, expires. Under section 40 of the Practice act, a court may, during the term, set aside any judgment upon good and sufficient cause shown by affidavit, and when a motion is made to vacate a judgment at the same term, the court is authorized to continue such motion and grant the same at the next term. And the fact that a precept may have been issued upon a judgment of the county court against lots for unpaid assessments, and one of the lots sold, will not preclude the exercise of this power.
    3. Special assessments—within what time to be returned for judgment. Under section 279 of the Revenue act, special assessments not returned to the county collector on or before the first day of March next after they are due, may be so returned on or before the first day of March in the succeeding year, and if not returned on or before that day they are barred, and no judgment can be obtained for the sale of the property assessed. Sections 153 and 154 of the act relating to cities and villages have no application, exceptas to special assessments levied by a city, village or town under that act. Section 279 not conflicting with any part of the Park act, must be held to include all public park assessments.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Mason B. Looms, Judge, presiding; and also writ of error to such County Court in same matter.
    Mr. M. W. Fuller, and Mr. Jesse B. Barton, for the appellant.
    Mr. J. W. Waughop, for the appellee and defendant in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Application was made July 10, 1882, by the county treasurer and ex officio collector of Cook county, to the county court of that county, for judgment for delinquent taxes and assessments, including the unpaid installments of the South Park assessments. The court entered an order that all objections to the rendition of judgment on lands and lots delinquent for such taxes and assessments be filed, in writing, on or before the coming in of the court on the 12th day of July, 1882. No objections having been filed as to the lands and lots described in this record, in accordance with said order, default was entered, and July 19, 1882, a judgment was rendered against these lands and lots, and a precept directed to the collector to sell the same to recover the taxes and assessments so found due and unpaid. August 2, 1882, the appellee filed his written motion to vacate said judgment, supported by his affidavit, which motion the court set for hearing at the August term, and which was, on September 9, taken up and the judgment vacated, and a further order entered refusing judgment as to said lots and lands for the delinquent installments of the South Park assessments. An appeal was prayed and granted to the Appellate Court for the First District from such judgment of refusal, where, upon motion of the appellee, the appeal was dismissed for want of jurisdiction, and the case is brought here on appeal from the order of dismissal.

Amended section 88 of the Practice act provides,- among other things, that appeals shall be taken from the trial court directly to this court, “in all cases relating to revenue, or in which the State is interested, as a party or otherwise. ” (Laws 1879, p. 222.) In Webster v. The People, 98 Ill. 343, we held that the term “revenue, ” as in that section used, embraced all taxes and assessments imposed by public authority. We are of opinion that these South Park assessments should be held as embraced within that term, revenue, and that the Appellate Court properly dismissed the appeal for want of jurisdiction.

A writ of error has also been sued out from this court to the same judgment of the county court, which requires us to consider the propriety of that judgment.

As already observed, the. court, at the July term, 1882, entered a judgment for these installments of this special assessment, but subsequently set aside the judgment, and entered an order refusing judgment. Exception is taken to this action of the court in setting aside the former judgment and entering the order refusing judgment, as unwarranted. The motion to set aside the first judgment was made at the July term,—the same term at which the judgment vras -entered,— and for want of time to hear the motion it was laid over until the next term, and at the next term,—the August term of the court,—the court heard the motion and set aside the judgment, and entered an order refusing judgment. The motion in the case was based on an affidavit, the truth of which was confessed. Section 40 of the Practice act is: “The court may, in its discretion, before final judgment, set aside any default, and may, during the term, set aside any judgment, upon good and sufficient cause, upon affidavit, upon such terms and conditions as shall be deemed reasonable. ” (Rev. Stat. 1874, p. 780.) The authority for continuing the motion to vacate the judgment at a subsequent term, and then pass upon it, is declared in Windett v. Hamilton, 52 Ill. 180, Hibbard v. Mueller, 86 id. 256, and Hearson v. Graudine, 87 id. 116. The above show authority sufficient for the court’s action. Nor did it preclude the exercise of this power that a precept to the collector to sell had been issued upon the judgment, and that one tract had been sold by the collector before the judgment was vacated, as is shown by the record.

As respects the merits of the application, it appears that the installments of South Park special assessment for which application for judgment against lands and lots was made on July 10, 1882, were the second, third, fourth, fifth, sixth and seventh installments, all of which became due on and previous to September 1, 1878. Se.ction 178 of the Revenue law, under which law this proceeding took place, is as follows: “When any special assessment made by any city, town or village pursuant to its charter, or by any corporate authorities, commissioners or persons pursuant to law, remains unpaid, in whole or in part, return thereof shall be made to the county collector on or before the tenth day of March next after the same shall have become payable, in like forms as returns are made for delinquent land tax. ” The 279th section is as follows: “When any special assessment is not returned to the county collector on or before the first day of March next after it is due, the same may be returned on or before the first day of March in the succeeding year, and if not then returned it shall be considered barred, unless the return is prevented by an injunction or order of court; and the time such return is thus prevented shall be excluded from the computation of such time.” (Rev. Stat. 1874, pp. 887, 904.) The last one of the said installments of such special assessment became due, as we have said, September 1, 1878, and, under this law, should have been returned to the county collector by the first day of March, 1880, after which time the court is required to consider it barred. This application by the county collector not having been made until July 10, 1882, we do not see how, under the law, the county court could do otherwise than to hold the special assessment barred, and refuse judgment, as it did. Of course sections 153 and 154 of the act relating to cities, villages and towms, (Bev. Stat. 1874, p. 254,) have no application here, as they respect special assessments levied by a city, village or town under the general Incorporation act.

All the answer which is made is, that the act concerning “Parks,” (Bev. Stat. 1874, p. 733,) provides the manner in which these park assessments shall be made, and prescribes the several steps to enforce the collection of this assessment, peculiar to itself, up to and including the application for judgment, after which time the act directs the proceedings, orders and judgments of the county court shall be such, as nearly as may be, as in cases of delinquent lands whereof judgment is prayed for the non-payment of State and county taxes; that the act fixes no time in which return shall be made, and that this Park act is the law which is to govern. The constitution of 1870 (art. 9, sec. 4,) requires that the General Assembly shall provide, in all cases where it may be necessary to sell real estate for the non-payment of taxes or special assessments, that a return of such unpaid taxes or assessments shall be made to some general officer of the county having authority to receive State and county taxes, and that there shall be no sale of real estate for taxes or special assessments but by such officer, upon the order of some court of record. The Park act came in force July 1, 1871. The sections of the Bevenue law above quoted were enacted subsequently, said section 178, as amended in 1873, coming in force May 2, 1873, and section 279 July 1, 1872. Said section 178 names any special assessment made by any city, town or village, or by any corporate authorities, commissioners or persons, pursuant to law, etc. The first section of the Park act enacts, that persons who have been appointed commissioners for the purpose of establishing any public park are declared to be “corporate authorities,”'etc. Thus, these park commissioners, who make these park special assessments, seem to be expressly mentioned in this section 178 of the Revenue law, and to have been clearly in contemplation, and we can not doubt that the special assessments mentioned in these sections of the Revenue law were intended to include, and should be held to include, all public park special assessments. They do not conflict with any part of the Park act, but are in addition and beyond anything in that act, relating to the remedy general for the collection of all special assessments whatever.

The judgment of the county court in denial of the application will be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Frederick Herhold et al. v. The City of Chicago.

      Filed at Ottawa May 10, 1883.

      Appear—“revenue”—special assessments. A judgment confirming special assessments for improving a street, made by a city, relates to revenue, and consequently the Appellate Court has no jurisdiction of an appeal from such judgment. An appeal in such case lies only to this court directly.
    Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      Mr. Edward Rody, for the plaintiffs in error.
    Mr. Francis Adams, for the defendant in error.

       This case was considered in connection with several others of like character.

   Per Curiam :

A motion was entered in this case to dismiss the writ of error for want of jurisdiction. This was a proceeding to open a street, and to assess benefits on adjacent lots benefited thereby. The benefits were assessed, and an application was made for a confirmation of the assessment. A number of persons filed objections to a confirmation. A trial was had before the court and a jury, when it was found that the objectors were not assessed more than they were benefited, nor more than their proportional share of the cost of the improvements, and after overruling a motion for a new trial, the court rendered judgment confirming the assessment. An appeal was taken to the Appellate Court for the First District, where the judgment of the Superior Court was affirmed, and the case is brought to this court on error. In neither case was the judgment $1000, but the judgments were confirmations of assessments for benefits in opening a public street, which relates to revenue.

This question was before us in the case of Potwin v. Johnson, (ante, p. 532,) on facts essentially the same as the facts in this case. It was there held that the Appellate Court had no jurisdiction in such cases, and that it should have dismissed the appeal, and for that reason the judgment of the Appellate Court was reversed, with an order to dismiss the appeal. That case must control the decision of this.

The judgments of the Appellate Court must, therefore, be reversed, and the causes remanded, with directions to dismiss the appeals in these several causes.

Judgment reversed.


text:
    Dennis Meers v. William W. Stevens et al.

      Filed at Ottawa May 10, 1883.

    1. Usury-—commissions, when usurious. Where a party loans money through his son, as his agent, and the agent takes four per cent of the principal as commissions, taking a note for the entire sum, bearing ten per cent interest, payable in one year, and at the end of the year, on application for an extension of time of payment, the lender refers the debtor to the son, who extends the time one year, for $100, which is paid to him, and a second extension is made in the same way with another son, acting as the lender’s agent, it “was held, on bill to foreclose the deed of trust securing the loan, that the four per cent taken as commissions, and the several pajunents for the extensions, made the transaction usurious, and that they should be credited as payments on the note, after deducting expenses of advertising for sale under the trust deed.
    2. Pitead in g—contract to be stated according to its legal effect. The rule at law is, that the party pleading a contract is only obliged to state it according to its legal effect. If the contract is made through an authorized agent, the principal is equally a party thereto as if he had made it in person, and in pleading it is proper to charge that the principal entered into the contract.
    3. Pdeading and evidence—variance. The rule in respect to a variance between the allegations in a pleading and the proof is substantially the same both at law and in equity.

      i. -An allegation in an answer that the complainant in a bill to foreclose a mortgage made an usurious agreement at the time of the loan to deduct four per cent of the loan as commissions, and afterward extended the time of payment in consideration of payments over and above the legal rate of interest expressed in the note, is sustained by proof showing he did so through his agent transacting the business for him, and such evidence is admissible.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McRobekts, Judge, presiding.
    Messrs. Haley & O’Donnell, for the appellant.
    Messrs. Olin & Phelps, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case comes before us by appeal from a judgment of the Appellate Court for the Second District. The case was a bill to foreclose a mortgage given to secure the payment of a promissory note for .$3000, to which the defence of usury was set up in an answer. The answer claimed that fourteen per cent was exacted when the loan was effected,—four per cent under the name of commissions, which was, at the time, deducted from the principal, and the remaining ten per cent as current interest, payable at the end of the year, when the principal was due; that when the note was due at the expiration of one year, an extension of time W'as obtained for another year for the payment of $100 in excess of and in addition to the payment, then, of current interest, at the rate of ten per cent per annum, and at the end of that year another extension was obtained for a like period an.d upon the same terms,—all of which is alleged to have been usurious. The Appellate Court found that the four per cent paid when the loan was obtained, and the two payments of $100 each, in addition to current interest at ten per cent per annum then paid, for an extension of time, were usurious, and directed that they be credited, after deducting the expense of advertisement of sale under trust deed, as payments upon the note. We see no cause to disagree with this finding. The money W'as obtained upon a draft issued by Bobert Meers, son of appellant, and he also made, as appellant claims, the first contract for extension of time, and received the $100 therefor. The other contract for extension of time was effected, as appellant claims, with E. Meers, another son of appellant, and he received the $100. Appellee does not agree that these contracts for extension of time were made as claimed by appellant. He claims they were made with appellee in the first instance, but finally concluded, in the first extension, with Bobert, and in the last, with E.

The point is made that there is a material variance between the allegations in the answer, and the proofs. The rule in this respect is substantially the same at law as in equity. (2 Daniells’ Chancery Practice, (Perkins’ ed.) 857.) And the rule at law is, the party pleading a contract is only obliged to state it according to its legal effect. (1 Chitty’s Pleading, (7th Am. ed.) p. 334, *335.) And it is elementary that a contract made by an agent is, in law, the contract of the principal.

Appellee testified that the contract was made, and the several extensions thereof were effected, substantially as set up in his answer. It is true in his cross-examination he says E. Meers told him the $100 paid him was for his fees and advertising, but he unequivocally states that he made this payment under protest, and in order to obtain an extension of time; and it is not shown to have been due for advertising, or in any other legitimate way, to E. But appellant’s evidence, though contradictory of that of appellee, distinctly shows that the loan was made and the first extension effected through contract made by appellee with Bobert Meers, as agent of appellant, and that the second extension was granted appellee by E. Meers, then acting as appellant’s agent. Whether these contracts were concluded by appellant through his properly constituted agents, as he claims, or in person, as appellant claims, the mode of pleading them is, as we conceive, precisely the same. The legal effect is, they are his contracts, and they should be so described; and when thus described, of course any proof showing him legally a party to them is admissible.

Appellant’s own evidence clearly proves that Bobert Meers was acting as his agent in this matter, and generally. In his direct examination he stated that he was introduced to appellee by a Mr. Henry, about the 2d or 3d of April, 1874-He was then asked, “Did you then have a conversation with Mr. Stevens about loaning him $3000 ?” To which he answered, “Yes; he' asked me if I had any money to loan. I told him I fetched some money with me. He said he wanted to loan $3000 for one year, and good security. I told him he should go to my son Bobert Meers, and he should transact the business with him; that he had the entire charge of my business, and that I should have ten per cent for my money.” And again he says, further along in his evidence, Bobert “had full charge of the matter, ” alluding to this loan, “up to ’76.” And as to the second extension, this question was asked him: “When Mr. Stevens applied to you, in your store on Jefferson street, in the spring of ’76, for a second extension, what did you tell him?” To which he answered: “He came into the store to me, and I told him that I and Bobert had given up those papers to my son E. Meers, and that he Should transact the business with him in the future. ”

The ease is clearly within the principle by which Payne et al. v. Newcomb et al. 100 Ill. 611, was controlled. Even disregarding the evidence of appellee that appellant himself stipulated for the payment of the fourteen per cent, and for the extra $100, in addition to current interest, for each of the two extensions, we think the whole circumstances in proof show that appellant should be held responsible for the extra per cent charged. He does not deny, in fact, that he knew such charges were made. The circumstances look very much like a family arrangement to charge usury, and cover it up under the claim of commissions. No attempt is made to explain why appellee was referred to Bobert at all. He had, no special qualifications for investigating the character and sufficiency of the security offered. It does not appear that his judgment was here specially relied upon, and appellant testifies, and in this is uncontradicted, that he paid another party for examining the abstract. Appellant was quite as accessible to appellee, and to other parties desiring to borrow money, as was Bobert, and for aught that appears in evidence quite as competent to transact business. It presents the appearance of an arrangement specially gotten up to accomplish precisely what was done.

The decree is affirmed.

Decree affirmed.


text:
    Edward P. De Wolf et al. v. Cornelius McGinnis.

      Filed at Ottawa May 10, 1883.

    1. Evidence—on question of damages for not making amd delivering machines. The lessees of a machine shop and foundry agreed with the lessor to build for him as many “purifiers” as he might order, for which they were to be allowed twenty per cent profit on the cost of building and shipping, to be deducted from the rent, monthly, and the lessor ordered twelve of them, which the lessees refused - to deliver upon disagreement as to their price. The lessor sued in assumpsit on the contract for the lease for the rent due, and for damages for injury to the property, and for a failure to deliver the twelve machines. On the trial the court allowed the plaintiff to prove that he had sold a machine to a Mr. Fry, and on the first trip had sold nineteen, etc., which was objected to, as seeking to recover for loss of profits on the sales: Held, that as damages were not claimed for profits on these sales, the evidence was proper for the purpose of showing there was a demand for the machines, and that there was a market for the goods if they could have been obtained.
    2. Contract—to deliver machines, evidence on measure of damages. Where a defendant has agreed to make certain machines for the plaintiff at twenty per cent profit on the cost of making and shipping, which he fails to do, in order for the plaintiff to establish damages for the non-delivery of the machines ordered under the contract it is incumbent on the plaintiff to prove the amount he agreed to pay for them, and also what they were worth in the market at the time they were to be delivered.
    3. Pleading over—after demurrer—waiver. Where the defendant, after his demurrer to the declaration is overruled, pleads over, he will waive his right to move in arrest of judgment for the insufficiency of the declaration.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. George Burry, for the appellants:
    Special damages resulting from the loss of sales could not he shown under the declaration. But the plaintiff was allowed to prove that he had sold a purifier to Mr. Fry, and must have one or lose the sale; that he had sold nineteen on the first trip, and on the second trip he did not try to make any sales, knowing he had not enough machines to fill the other sales. None of the names of persons to whom machines were sold are given.
    Where a plaintiff seeks to recover special damages in regard to the non-completion of contracts with third persons, their names must be given. Chifcty’s Pleading, (16th Am. ed.) 348. See, also, Trenton Ins. Co. v. Perrine, 3 Zabr. 415; Lowe v. Hanwood, Sir W. Jones, 196.
    Mere prospective profits, which might have been made, depend on too many contingencies, and are too remote to be recovered. Frazer v. Smith, 60 Ill. 147; Priestly v. Northern Indiana R. R. Co. 26 id. 208.
    The court erred in denying the motion in arrest of judgment.
    Mr. John P. Altgeld, for the appellee;
    Appellants urge that loss of profits on prospective sales could not be proven because the names of the prospective purchasers were not given in the declaration. Appellee did not prove, or offer to prove, loss, of profits on prospective sales, nor any specific sale. All he did was to show the market value.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit,' brought by Cornelius McGinnis, against Edward P. DeWolf and John L. Agnew, upon a contract, under which the plaintiff leased defendants his machine shops and foundry in Chicago, known as the “Keystone Machine Works and Foundry. ” For the first year the defendants agreed to pay as rent $2000 in work, payable monthly. The contract also provided that the defendants should build as many “purifiers ” for the plaintiff as he might order, and they were to be paid therefor twenty per cent profit on the cost of building and shipping. The contract also provided for a settlement on the first of each month, and if, at any such settlement, the work done and machinery furnished by the defendants to the plaintiff exceeded the amount of rent then due, plaintiff should pay defendants the excess in cash. The defendants had the right to terminate the lease upon giving sixty days’ notice, in writing. The contract also provided that upon the termination of the lease the defendants should surrender all the property in as good condition as when it was received, natural wear and tear and loss by fire excepted. It appears from the record that the plaintiff, on or about the 20th day of June, after the lease was executed, gave the defendants an order for twelve “purifiers. ” These machines were not ready for delivery until the last of September or the first of October, when, as plaintiff contends, they ought to have been made and ready for delivery in three weeks from the time the order was given. After the machines had been made a dispute arose as to the price, the result of which was, the machines were not delivered, and defendants terminated the lease, and plaintiff instituted this action for a breach of the contract.

In the declaration a number of breaches of the agreement are averred, but on the trial the plaintiff confined his evidence mainly to three grounds of recovery: First, for six months’ rent of the premises; second, damages for injury done to the property while in the possession of defendants; and third, damages for' the failure of the defendants to make and deliver the twelve machines according to contract. On a trial before a jury the plaintiff obtained a verdict and judgment for $1462.50, which was affirmed in the Appellate Court, and defendants appeal.

No fault has been found in the argument with the instructions of the court, but the main ground relied upon here to secure a reversal of the judgment of the Appellate Court is, that the circuit court erred in the admission of evidence; that as the declaration did not aver the names of persons to whom plaintiff had sold machines, it was error to allow plaintiff to prove that he had sold a machine to Mr. Fry,— “that on the first trip he had sold nineteen, ” etc. The position of appellant is, that the loss of profits on prospective sales could not be proven because the names of the prospective purchasers were not averred in the declaration. After a careful examination of the record we do not understand that plaintiff undertook to establish loss of profits on prospective sales, or the loss of profits on any particular sale. It is true plaintiff testified that he sold a machine to Mr. Fry, and perhaps others, but damages were not claimed on those sales. This evidence was proper for the purpose of showing that there was a demand for the machines,—that there was a market for the goods if they could have been obtained. In order to establish damages for the non-delivery of the twelve machines ordered under the contract, it was incumbent on plaintiff to prove the amount he agreed to pay for the machines, and then prove, in addition, what they were worth in the market at the time they were to be delivered. If, then, it be true that different persons were ready and desired to purchase the machines at the time they should have been 'delivered, such evidence only tended to prove there was a market, and what the machines were worth in the market. This, doubtless, was the view entertained by the circuit court, as is clearly indicated by the instructions upon this question, as follows (the court, by agreement, instructed orally) :

“Now, in relation to the rule of damages for the alleged breach of that part of the contract relating to the failure and delivery of those purifiers, the court instructs you that the rule of damages would be this: Whatever the purifiers were worth at the time they should have been delivered to McGinnis, over and above the price that he agreed to pay for their manufacture, viz: the cost price, with twenty per cent added. That is one item in relation to the claim for damages.”

Upon the theory under which the case was tried, as is apparent from the instructions of the court on the question, we perceive no substantial objection to the testimony introduced upon the question of damages.

One other question remains to be considered. The defendants entered a motion in arrest of judgment on the ground that the declaration was not sufficient in law. This motion the court denied. It will not be necessary to determine here the sufficiency of the declaration. The defendants demurred to the declaration, and the court overruled the demurrer, and the defendants pleaded. If they desired to question the sufficiency of the declaration they ought to have abided by their demurrer, as the rule is well settled that a motion in arrest is waived where a demurrer has been overruled and the defendants then plead over. Quincy Coal Co. v. Hood, 77 Ill. 68.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.