text:
    Lydia Herring, Administratrix of the Estate of Harold S. Herring, Deceased v. The State of Illinois.

      Opinion filed January 21, 1902.

    1. Proximate Cause—not sufficient to show one of two conjectures more probable than the other. In attempting to prove a defect to be the proximate cause of an accident it is not sufficient to show that it is more probable that the injury was caused by the defect than otherwise.
    2. Master and Servant—what necessary in order to hold master liable for defect. A servant, in order to recover for an injury, for defects in the appliances in his business, is required to establish three propositions. 1st: That the appliances were defective. 2d: That the master had notice thereof, or knowledge, or ought to have had, and 3d: That the servant did not know of the defect, and had not equal means of knowing with the master.
    3. Same—servant must report defect at once. It is the duty of a servant to report a defect at once to his superiors, and if he fails to do so it is negligence on his part that will bar recovery.
   The record in this case shows that claimant’s intestate, Harold Herring, was a trumpeter in company “C,” 5th Regiment, Illinois National Guards. The company was called out for duty in November, 1898, to suppress rioting at Pana, during the miners’ strike. Herring was on duty with his company from the date of its call until the date of his death, December 29, 1898. As a trumpeter he was not required to carry a gun, but on the night of his death serious trouble was expected, and every member of the company was on duty, and Herring volunteered to go on patrol duty with a gun, instead of guarding the barracks. His services were accepted and he was detailed for duty with a squad of eight men to guard incoming trains, and stationed with another soldier, Robert Steele, at a point near the tracks of the Big Four railroad, with instructions to watch all incoming trains, and report the arrival of any large body of men, and to protect themselves, if necessary. They were assigned to this position for duty about eleven o’clock at night, and instructed to stay close to the railroad tracks, but the distance they should go from the" track was not designated. The night was cold and disagreeable, having rained and sleeted, and the two boys took shelter in a coal shed near by on a private lot bordering on the right of way of the railroad. The shed was about nine feet long and six feet wide, with a low roof, and with a door on the east side and a small window on the north side with a pile of coal sloping down from the window sill. In a short time a coal train passed, and Steele testified he stepped out of the shed followed by Herring, to watch the train, and after they got outside he heard the click of a gun, and supposed that Herring had cocked his gun. It seems the train did not stop, and they returned to the shed. Soon after this, as Steele was standing in the door and Herring was kneeling on the coal pile looking out of the window of the shed, leaning on his gun, Herring called to Steele to come to the window and look at a strange light that had attracted his attention, but before he could step to the window there was a report of a gun, and being blinded by the flash, supposed someone had shot from the outside. Steele backed out of the door of the shed and took a position so as to be prepared to defend himself, but not hearing any further noise inside of the shed, or outside, ran about two blocks east to where the Sergeant in command of the squad was stationed, and reported that Herring had either shot himself or had been killed. The Sergeant assembled a squad and went to the shed, and found the dead body of Herring lying with his head and shoulders out of the door, with his gun, which had recently been discharged, by his side. The bullet had entered his right side, taking a slanting course upward, and gone out of the left shoulder blade.

It is contended by counsel for claimant that the gun furnished Herring was defective, in that it would go off with a slight jar at the half-cock, safety or full-cock, and by reason of such defect the gun was accidentally discharged, causing his death while in the line of his duty, and that the State should pay damages to his administratrix.

The claim is resisted by the Attorney General on the grounds:

First: Because the doctrine of respondent superior does not apply to the State.
Second: That even if the State could be held liable for the misfeasance of its officers or agents, no recovery ■could be had under the evidence in the case at bar.

We have reached a conclusion and decided the case under the second ground of defense, and it will not be necessary, therefore, to consider the first.

Applying to this case the same rules of law that would be applicable if the case were one between individuals brought by an employe against an employer, it would be necessary to show, of course, that the defect complained of was the proximate cause of the death of the deceased. There is no doubt the gun of the deceased was defective; that it would go off either at safety, half or full-cock with a slight jar, but the evidence fails to show that the defect caused the discharge of the gun which resulted in the death of the deceased. Steele, the companion of the deceased, testified that when they went out of the shed he heard the click of a gun, and it would -seem from his testimony that Herring returned to the shed with his gun cocked, and was kneeling on the coal pile leaning over the muzzle of the gun, when the accident occurred. Of course the accident would be more likely to occur with a gun which would not stand cocked, but he had placed himself in a position where the accident would be liable to occur if the gun had not been ■defective, and it is not enough to show that one conjecture is more probable than another.

Bailey’s Personal Injuries, Yol. I, pp. 563-564. Accidents of this kind are of frequent occurrence with guns without defects, and this evidence shows that the deceased was not in the exercise of due care and caution for his own safety, regardless of the condition of the gun.

But if it be conceded that the accident would not have -occurred but for the defect of the gun, then the case should be decided by the rules laid down by our Supreme Court to justify a recovery by an employe or subordinate against his employer for an injury received by reason of defective implements or tools alleged to constitute the wrongful act or neglect of the principal.

In Goldie v. Werner, 151 Ill., 551, our Supreme Court say:

“A servant, in order to recover for an injury for defects in the appliances in the business, is required to establish three propositions:
First: That the appliances were defective;
Second: That the master had notice thereof, or knowledge, or ought to have had; and,
Third: That the servant did not know of the defect, and had not equal means of knowing with the master.”

See also,

Howe v. Medaris, 183 Ill., 288;

L. E. & W. R. R. Co. v. Wilson, 189 Ill., 89.

Applying these rules to this case we think the evidence in the record clearly shows the first proposition—that the gun was defective. There is no evidence in the record, however, to show under the second proposition that the superior officers of the deceased had knowledge of the defect, but even if it is assumed that they ought to have had, under the circumstances shown in the evidence, yet claimant has wholly failed to establish the third proposition in order to maintain a recovery, to-wit: that the deceased did not know of the defect of the gun.

The record shows by the witness, Bogardus, called by claimant, who is an expert marksman, and familiar w'ith guns, and a member of Co. “C,” that at the request of the deceased he examined the gun either the night of the accident, or within a day or two prior thereto, and that he informed the deceased of the condition of the gun, and told him to go to the Sergeant and get another gun, or refuse to go out. This clearly shows that the deceased did know of the defect of the gun. The record does not, however, disclose whether the deceased ever informed any of his superior officers of the condition of the gun. It was the duty of the deceased to report this defect at once to his superior officers, and if he failed to do so it would be negligence on his part that would bar recovery.

T. W. & W. R. R. Co. v. Eddy, 72 Ill., 138;

Howe v. Medaris, 183 Ill., 288;

Bailey’s Personal Injuries, Vol. I, Secs. 830 and 837.

He may, of course, have reported the defect in the gun to some one of his superior officers, although the record is silent on that point, but whether he did or not, under the rules laid down in the cases we have cited, he assumed the hazard in the use of the defective gun after he had learned of its defect, and voluntarily continued using it.

When we apply the established rules of our Supreme Court to the evidence in this record we feel constrained to hold that no award can be made, and the claim is therefore rejected, but it is directed that the parties hereto shall not be concluded by this opinion in case the claim is presented to the Legislature.


source: Caselaw Access Project

license: Public Domain

text:
    Edward Gleason and Edward D. Gleason, doing business as Gleason & Son. v. The State of Illinois.

      Opinion filed August 28, 1902.

    Building Contracts—when architect’s certificate is final. Contractors under a building contract which makes the architect the judge of whether any work or material is an extra, and of the amount which should be added or deducted from the contract for such change or addition, who have a right to appeal to arbitration if they think they are not fairly treated, and fail to do so, can neither claim that certain work should have been considered an extra which the architect did not so consider, nor that a larger sum should be allowed than was allowed by the architect. When parties to a building contract agree upon an arbitrator to settle disputes, and when the contract provides that no money is payable thereon except upon the certificate of the architect, the decision of the arbitrator is final in the absence of fraud or mistake.
   On the 5th day of March, A. D. 1901, Edward Gleason and Edward D. Gleason, doing business under the firm name of Gleason & Son, filed in the Auditor’s office the claim in this case, against the State of Illinois for the sum of $96,859.26.

The claim is in the nature of an action of assumpsit, growing out of a contract made by the said Edward Gleason & Son, on June 7, A. D. 1898, with the Commissioners of the Asylum for the Incurable Insane, at Bartonville, Illinois, to construct five buildings, namely Employes’ Quarters, Domestic Building, Supply Department, Power House and Shops and Boiler House.

The contract was in writing and the right was reserved to the Commissioners to omit certain portions of the work called for by the contract and to make certain changes therein enumerated.

The Commissioners elected to omit the power house and shops and to make the changes enumerated in the addenda.

The contract price after allowing for the omissions and changes aforesaid, was one hundred fifty-four thous- and six hundred seventy-eight dollars and fifty cents, ($154,678.50.)

The contract required the execution of bond for the faithful performance thereof by the said Gleason & Son, before the same should become operative and effective. The bond was executed and approved on the 15th day of June, A. D. 1898.

The plans and specifications upon which the contract was let, and which were referred to in the contract, were prepared by Messrs. Beeves & Baillie, architects, of Peoria, Illinois. And the work was to be done, and materials to be furnished by the said Gleason & Son, under the direction and to the satisfaction of the said Beeves & Baillie, who by the said contract were made the superintendents of the construction of the said building.

Article III of the contract provided that “No alterations should be made in the work shown or described by the drawings and specifications, except upon a written order of the architect and Commissioners and when so made, the value of the work added or omitted shall be computed by the architects, and the amount so ascertained shall be added to or deducted from the contract price. In case of dissent from such award by either party thereto, the valuation of the work added or omitted shall be referred to three disinterested arbitrators, who shall be each practical mechanics and builders, one to be appointed by each of the parties to this contract, and the third by the two thus chosen; the decision of any two of whom shall be final and binding, and each of the parties hereto shall pay one-half of the expense of such reference.

Article IV provided that “The contractors should within twenty-four hours after receiving written notice from the architects to that effect, proceed to remove from the grounds and buildings all material condemned by them, whether worked or unworked, and to take down all portions of the work which the architect shall by like written notice condemn as unsound or improper, or as in any way failing to conform to the drawings and specifications.”

Article V of the contract provided, “Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of a proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performnace of any of the argreements herein contained, such refusel, neglect or failure being certified by the architect, the Commissioners shall be at liberty, after three days written notice to the .contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect or failure is sufficient grounds for such action, the Commissioners shall also be at liberty to terminate the employment of the contractor for the said work and to enter upon the said premises and take possession, for the purpose of completing the work comprehended under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work and to provide the materials therefor, and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expenses incurred by the Commissioners, in finishing the work, such excess shall be paid by the Commissioners to the contractor; but if such expenses shall exceed such unpaid balance, the contractor shall pay the difference to the Commissioners. The expenses incurred by the Commissioners as herein provided, either for furnishing materials or finishing the work, and any damage incurred through such default, shall be audited and certified by the architects whose certificates thereof shall be conclusive upon the parties.”

Article VI provided that the work should be all completed by the first day of April, A. D. 1899, and time was made of the essence of the contract.

Article VII provided that, “Should the contractor be obstructed or delayed in the prosecution or completion of his work by the act, neglect, delay or default of the Commissioners, or the Architects, or of any other contractor employed by the Commissioners upon the work, or by any damage which may happen by fire, lightning, earthquake or cyclone, or by the abandonment of the work by the employes, through no default of the contractor, then the time herein for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all of the causes aforesaid; but no such allowance shall be made unless a claim therefor shall be presented in writing to the architect within twenty-four hours of the occurrence of such delay. The duration of such extension shall be certified by the architects, but appeal from their decision may be made to arbitration, as provided in Article III of this contract.”

Article VIII provided that the Commissioners should provide all labor and materials not included in this contract in such a manner as not to delay the material progress of the work, and in event of failure so to do, thereby causing loss to the contractor, agree that they will reimburse the contractor for such loss; and the contractor agrees that if he shall delay the material progress of the work so as to cause any damage for which the Commissioners shall become liable (as above stated) that he shall make good to the Commissioners any such damage. The amount of such loss or damage to either party shall, in every case, be fixed and determined by the architect ■or by arbitration as provided in Article III of this contract.

It was provided in Article IX that payments should be made by the Commissioners, to the contractors^ in installments, as follows: Ninety per cent of all materials and labor that has been used in the construction of the buildings, as per estimates of the architects issued the first of each month. Final payment to be made within thirty days after the contract is fulfilled and accepted by the architect and Commissioners.

And if at any time there shall be evidence of any lien, or claim, for which, if established, the Commissioners or the said premises might become liable, and which is chargeable to the contractor, the Commissioners shall have the right to retain out of any payment then due, or thereafter to become due, an amount sufficient to completely indemnify them against such lien or claim.

Work was commenced on the buildings provided for in the said contract about the first of August, 1898, but was not completed by the first of April, 1899. Commissioners did not seek to terminate the employment by reason of the lapse of time given for the completion of the contract, but permitted the contractors to do work after that time.

On the 12th day of May, 1899, the architects delivered to the Commissioners a notice as required by said contract, reciting that the contractors had neglected and are now neglecting to supply a sufficiency of properly skilled workmen and material for the prosecution of the work upon the buildings under said contract. That the workmen have refused to proceed with any work, and that there are no materials with which said workmen can be employed, and that said contractors have violated said agreement in such failure, and have also violated the agreement in failing to complete the buildings within the time specified in said contract, etc.

On the same day, (the 12th of May) the Commissioners, in compliance with the terms of the contract, caused a notice to be served upon the contractor as follows:

“Peoria, May 12,1899.
To Edward Gleason & Son, Contractors:
You are hereby notified that the architects for the undersigned in the construction of the buildings for the Asylum for the Incurable Insane at Bartonville, in accordance with the contract between you and the undersigned, have certified to us that you have failed and neglected, and now fail and neglect to supply a sufficiency of properly skilled workmen or materials of the proper quality with which to prosecute the work of said asylum buildings at Bartonville, Illinois, according to your contract with the undersigned, and we now hereby notify you further, that unless you do within three days of the service of this notice, supply a sufficiency of properly skilled workmen and materials of the proper quality, we shall terminate your contract as contractors for said work, and enter upon and take possession of said premises, and shall take possession of all materials, tools and appliances thereon, and shall complete said work and shall charge the expense thereof to you. You are further notified that you have violated the contract in failing to complete the buildings within the time specified in said contract, and for these defaults we have elected to declare your contract forfeited, and we shall retain any and all sums that may be due you, for the purpose of paying your sub-contractors.”
(Signed by the Commissioners.)

The evidence shows that at the expiration of the three days, that Mr. Edward Gleason, Sr., appeared before the Commissioners at their meeting and applied for three days’ extension of the time in which to demonstrate his ability to proceed with the contract, and it further appears that the extension was granted.

On the 19th of May, at the expiration of this extension, the Commissioners caused the second notice to be served upon the said Gleason & Son, reciting that, “having recently served notice of forfeiture of your contract, and having verbally given you three days ending May 19th, to enable you to ascertain whether you could go on and complete your contract, we now find that you have not a sufficient number of skilled workmen, or a sufficient amount of materials to push the work under your contract, and it being apparent that you are not able to complete the same, we are compelled to adhere to our notice of forfeiture, and shall take possession and complete the work as in your contract with the undersigned provided. We waive no rights under our previous notice, simply giving you an opportunity to demonstrate your ability to proceed and we are now satisfied that you are wholly unable to do so.”

The evidence shows that Mr. Reeves served this notice by reading it to Mr. Edward Gleason, at the works, and also delivering him a copy, and that Mr. Gleason surrendered possession without objection or protest, and left the grounds, and never at any time afterwards, offered to do any work upon the buildings, or made any request to be permitted to complete the buildings under his contract.

The Commissioners thereupon took charge of the buildings, materials, tools and appliances upon the grounds.

They also notified the bondsmen of Gleason & Son, and offered to permit them to complete the contract. Their representative came down to look over the situation, but did not indicate any desire or intention to accept the offer and left without making any reply to the proposition.

The Commissioners then made arrangements with the sub-contractors of Gleason & Son, to complete their "contracts, and employed a foreman, and other workmen, and procured material and proceeded with the work of completion of the said buildings under the provisions of Article V of the contract.

The Commissioners had paid to Gleason & Son, on the contract, the sum of $91,943.64 at the time they suspended work in May, leaving still due them upon the completion of the contract, the sum of $62,734.85. The Commissioners proceeded with the work until this amount was expended, and then they had to suspend work until after the meeting of the legislature when another appropriation was procured to complete the work. And the evidence shows that they had expended the sum of $56,869.29 more in completing the buildings on December 2,1899, than remained due the Gleasons, for the entire completion of the work when they suspended work on the 19th of May, 1899.

Claimants now contend that the Commissioners unlawfully took charge of said buildings, and illegally terminated the employment of the claimants* as such contractors. That such unlawful action on the part of the Commissioners amounts to a rescission of the contract on the part of the Commissioners, and that claimants have the election of bringing suit on the contract, or may ignore the contract entirely, and bring suit on a quantum meruit for the value of the work done on the contract, less payments made on same, and for the value of all work done and materials furnished, on extra work, less payments made on same, (ignoring the allowances which have been made to them for said extra work by the architects.) Also for the materials, tools and appliances taken charge of by the State.

Claimants file a bill of particulars in which they set up the following demands for work, damages, materials, tools, etc:

Value of work done up to May 19,1899 .....$124,824.19
To revising and designing and making new iron plans............................ 1,300.00
To extra work done on four buildings up to
May 19, 1899 ......................... 19,518.85
To 52 tons of extra iron................. 4,160:00
To the overcharge of old material......... 1,149.12
To misappropriation of $1,009.87 for moneys withheld from Gleasons to pay alleged
Bushnell brick claim.................. 1,009.87
To water plant (appropriated by State) ... 3,050.00
To increased cost of doing work in winter months ......... 18,207.00
Contractor’s plant (appropriated by State) 11,423.00
Material on ground...................... 7,162.00
$191,804.03
By cash, contract and extras
By cash, old material.................... 94,944.77
Balance .............................. $96,859.26

Claimants on the trial of the case elect to rely upon a quantum meruit and treat the contract as rescinded by the Commissioners.

The defense claim that the work was done under contract, and that the contract is still in full force and effect; that the Commissioners acted under the provisions of Article V of said contract, and in compliance with the provisions thereof, in taking charge of said buildings and completing the same; that claimants had been allowed by the architect, and paid the sum of $7,815.19 for extras, and not having made any objection or asked for arbitration as required by the contract, they cannot claim anything further for extras. That the Commissioners have paid the sum of $57,000 more for expenses of completing the building than was due the said Gleason & Son, under their contract, and therefore no 'award can be allowed to them by this Commission.

Claimants insist that the action of the Commissioners in taking charge of the buildings, and completing them, were illegal and amounted to a rescission of said contract :

First: For the reason that they were not in default under their contract as certified by the architect.
Second: There was not a proper certificate of the architect to authorize the Commissioners to take charge of said buildings and proceed to complete them under the provisions of Article V of the contract.

Under Article V, the Commissioners were clearly authorized to take possession of the buildings and complete them upon certain conditions if the contractors were not proceeding with the work properly, or if they were not providing a sufficiency of properly skilled, workmen and materials, and the architect was of the opinion that such facts were sufficient to warrant the Commissioners in doing so.

This is clearly the intention of the parties to the contract. And when the architect made his certificate to the Commissioners, it is also clear that he understood that he was making a certificate which the contract required of him, in order to justify the Commissioners to take charge of the buildings and complete them. It is also clear that each of the parties to the contract so understood it. No objection was made to the form of the notice, or claim by claimant, or his attorney, who was. present at the meeting, that the notice was not sufficient to warrant a termination of the employment of the said Gleason & Son, as such contractors. Neither were the facts contained in the certificate of the architect disputed or in any manner contradicted. The facts surrounding the transaction, and the conduct of the parties proved in evidence tend to* show that the truth of the facts therein contained were impliedly admitted, and that Mr. Gleason, at the meeting of the Commissioners, and in the presence of his attorney, Mr. Foster, verbally applied for an extension of time for three days, in which to* demonstrate his ability to proceed with his contract. This is not only shown by the record of the Commissioners, but sworn to by two witnesses, and not denied by any one except Mr. Gleason, and he admits being at the meeting, and that the extension was granted to him, as claimed,, and that he acquiesced in the same, and does not claim to have made any refutation of the charges against him.

And when the second notice of the Commissioners, terminating the contract, was read to Mr. Gleason by Mr. Beeves, on the 19th, he still malíes no denial of the facts' recited, neither asserts his ability to proceed nor objects to the form of the notice, or to the certificate of the architect, but voluntarily, and without a single protest, surrenders possession, under the contract, and walks out and never goes back to do any further work on the build-, ings or offers to do so.

While there is a conflict in the evidence, after a careful consideration of all the evidence, the conduct of the-parties, as shown by the evidence, also the fact that the-liens filed by the sub-contractors and material men. amounted to more than the estimate allowed to the contractors upon this last occasion, we are of the opinion that the certificate of the architect was true, and that the-facts warranted the Commissioners in taking charge of" the buildings and completing them as provided in the-contract. And when the claimants voluntarily turned over the buildings to the Commissioners without protest or objection, and permitted them to- complete them without any intimation that the facts recited by the-architect were not true, or that the certificate of the architect or the notice were not sufficient to warrant them in taking possession, they impliedly admit such facts and. should be estopped from denying either of them after the Commissioners have taken charge and finished the buildings.

From the books of the Commissioners and other evidence it is shown that the State has spent about $57,000 in excess of the Gleason contract in finishing these buildings. Claimants insists that it was not necessary to have expended so much in order to finish them, and seek to show by estimates that it could have been done for less.

But taking the most favorable showing which is consistent with evidence, we cannot see how the claimants could have been benefited by being permitted to complete the contract, so far as receiving any additional amount of money is concerned. It is conceded that there had been paid to Gleason & Son on the original contract .................................. $91,943.64

There was due the sub-contractors of Gleason 57,594.48'

Amount shown to be due material men of

Gleason, May 19 ...................... 4,244.44-.

Take the estimate of Mr. Mace, a witness for the claimants, and exclude all items which would fall under the contract of either the sub-contractors, and he shows it would require to complete the building the sum of 20,717.40

Making a total of...................$174,559.96

This would make the buildings cost the State something like $20,000.00 more than the original Gleason contract This is all from the showing of the evidence of the claimant except the $4,244.44 which was claimed to be paid to material men of Gleason & Son, which was due them when they quit the works on May the 19th, 1899.

Claimants demand $19,518.85 for extra work done on the four buildings. The evidence shows that the architect allowed the sum of $7,815.19 to the contractors for extra work, which was paid to them. And Mr. Wilson, Mr. Reed and Mr. Reeves all testify that while the claimants made several complaints about the estimates of the architects on the original contract being too small, they made no complaint whatever about any of the extra work, except the smoke stack.

Under Article III of the contract, claimants, if not satisfied with the value of the work fixed by the architect, should have caused the same to be arbitrated, and having failed to do so, are presumed to have been satisfied and are bound by the allowance of the architect. Payments were made upon all of these extras, upon the certificate of the architects. The contract making him the judge of whether any. work or material was an extra, and of the amount which should be added or deducted from the contract for such change or addition, the claimants are bound by his certificate. They had the right to appeal to arbitration if they thought they were not fairly treated. And having failed to do so, they can neither claim that certain work should have been considered an extra which the architect did not so consider, nor that a larger sum should be allowed than was allowed by the architect.

In the case of Gilmore v. Courtney, 158 Ill., 432, the court uses the following language:

“Where parties to a building contract agree upon an arbitrator to settle disputes, and where the contract provides that no money is payable thereon except upon the certificate of the architect, the decision of the arbitrator is final, in the absence of fraud or mistake. In Snell v. Brown, 71 Ill., 133, this court laid down the rule as to what is sufficient fraud to reject an architect’s decision under such a contract. It was there held that where a person voluntarily enters into an agreement that a third person shall estimate work done and pass upon its quality, with power to reject and condemn all material, which in his opinion does not conform to the contract, he cannot avoid or disregard it, except for fraud clearly proved.”

The court further says in the case of Snell v. Brown, 71 Ill., on page 143:

“It is true his conduct may be impeached and his estimates set aside for fraud; but fraud cannot, as is assumed in this instruction for appellees, be presumed merely because his estimates for work done pursuant to the terms of the contract are less than the measurements actually done. Even if he by mistake in judgment, err in condemning or rejecting work, it would be no ground to impeach his estimate.”

It was also held that it is not sufficient merely to show that work was rejected or condemned which in the opinion of others should not have been condemned. This may indeed be proved as a circumstance tending in some degree to establish fraud, but it is not conclusive. The evidence must show that the engineer knowingly and wilfully desregarded his duty and rejected or condemned work, which he knew or at least should have known fully conformed in all respects to the terms of the contract.

We do not find from the evidence in this case that the architect Reeves acted fraudulently, and even if there had been no appeal permitted from Ms decision, Ms rulings would govern. But in this case claimants were not •compelled to rely upon the decision of the architect; under the provisions of the contract if not satisfied, they .had the right to appeal to three disinterested arbitrators. And having failed to do so, they can not now be -heard to question the rulings of the architect.

We do not think there is anything in claimants’ demand for $1,300 for revising and designing iron plans. From the evidence of Vanderkloot, the secretary and 'treasurer of the South Halsted Street Iron Works, it appears that the plans in question were prepared by the engineer of said Iron Company, and that no charge was made for same against Gleason & Son.

Neither do we think their claim of $4,160.00 for extra iron should be allowed. It does not appear from the evidence that the iron furnished by the South Halsted Street Iron Works was in fact heavier than the iron •called for by the original plans which the Iron Company submitted to the architects, and was rejected by them for the reason that it was too light. And when the plans were approved by the architects, with an increased weight over that first submitted to them the Iron Company required Gleason & Son to pay them an additional sum of $1,100 which Mr. Vanderkloot testified was for this increased weight, and not for designing iron plans.

It does not appear, however, that this was an increased weight over the original plans; and the plan upon which the first bid of $25,000 was made was never approved by the architects, but on the contrary when first shown to them was rejected, and it was changed and made to comply with the demands of the architect. No claim or pretense was made that it was an increase over the original contract and specifications, or that the contractor was entitled to an additional allowance for this increase. In fact the change which was made in the iron plans was made at the solicitation of the Gleasons and no extra allowance was allowed by the architect for an increase, or even asked for by the claimants, so far as the evidence shows.

The architect now claims, and it is also sworn to by another witness, that the iron substituted for that called for in the original plans and specifications, was in fact much lighter, and that the State is entitled to a deduction from the contract price.

It is, however, clear to the Commission that neither party to the contract, at the time, expected that any allowance should be made, either in favor of the claimant, or a deduction made in favor of the State; otherwise there would have been a computation and allowance asked for from the architect and if either party was not satisfied with his award, they would have appealed to arbitration, as provided in Article III of the contract. No claim seems to have been made for any of these amounts until long after the Gleasons had suspended work on the building.

Claimants’ demand of $18,207.00 for increased cost of doing the work in the winter months is not sustained by the evidence. We do not find from the evidence that claimants have clearly shown that the delay in commencing the work was the fault of the Commissioners, or of any person employed by them. But if delay had been caused by default of the Commissioners or of any person employed by the Commissioners to make the necessary excavations, as contended, claimants should have proceeded under the provisions of Article VI, to have had their time extended, and under the provisions of Article VIII to have the architect estimate the loss or damage which they had sustained by reason of such failure of parties to make the excavations in proper time. And if not satisfied with the allowance of the architect, they should have appealed to arbitration as provided in Article III. Not having made any such demands at the time, the inference is that claimants did not then think they were entitled to any such claim.

While it does not appear from the evidence that the claimants have ever sought to regain their working plant, still if the State has appropriated same, they would be entitled to an allowance for what it was reasonably worth. Also they would be entitled to a reasonable allowance for the parts of the water plant which the State has appropriated. This from the evidence would be a small sum.

But from the view which the Commission takes of the case, it is unnecessary to pass upon the question as to what would be a proper allowance for the claimant for these items. Neither is it necessary to determine the exact amount which the Commissioners have paid in completing the buildings in excess of the amount which is due the claimants on the original contract and all special claims which they are entitled to in this case for the reason that this Commission has no jurisdiction to make an award in favor of the State against the claimants for any amount which the Commission might determine is due the State from the claimants.

The Commissioners are of the opinion that the amount which the Commissioners paid for completing the buildings is much more than all sums due the claimants on the original contract, for special work, or for any of the other demands, which the claimants have filed in this case.

We therefore find that claimants are not entitled to any award in this case against the State of Illinois, for any sum whatever, and the claim is therefore rejected.


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    Harry R. Witte v. The State of Illinois.

      Opinion filed September 19, 1902.

      Militia—State liable for death of member hilled while at target practice under orders. State is liable for death of an officer of the National Guard killed at target practice while performing his duties as such officer, in pursuance of lawful orders from the Commander in Chief.
   The petition in this case was originally filed by Harry E. Witte, administrator of the estate of Edward E. Witte, deceased.

The record shows that the said Edward E. Witte, deceased, was, on the 4th day of October, 1901, the second lieutenant of Company C, 3d Eeg. Inf., Illinois National Guard, which company was located at Ottawa, and commanded by Captain Sidney E. Blanchard. The claim arises out of the accidental shooting on said date, of the said Edward E. Witte, at the rifle range of said Company, just east of the city limits of the city of Ottawa, from the effects of which shooting he died on the 7th day of October, 1901, and is brought under Section 4 of Article 9, of Chap. 129, Eevised Statutes of Illinois, entitled, “State Militia,” or “Military and Naval Code of the State of Illinois,” which section was added as an amendment to said article by act approved May 11,1901, and in force July 1, 1901.

The section is as follows: “In every case where an officer, soldier or seaman of the Illinois National Guard or the Naval Militia of Illinois shall be killed or wounded while performing his duties as officer, soldier or seaman in pursuance of lawful orders from the Commander in Chief, said officer, soldier or seaman, or his legal heirs shall have a claim against the State for financial help or assistance, and the State Board of Claims shall act on and adjust the same as the merits of each case demand.”

This section of the statute has never been construed by this Commission, and in the oral argument of the case, the point was raised whether the proceeding should have been commenced in the name of the administrator of the said Edward R Witte, deceased, or his legal heirs, and claimants’ attorneys asked leave to amend their petition by adding “Alice Witte, widow, and Nelson Witte, only son, by Alice Witte, his next friend, sole heirs of Edward E. Witte, deceased,” as claimants. No objection was made to the amendment and it was allowed, leaving the question to this Commission to determine to whom an award should be made if at all.

The claim is resisted, however, by the Attorney General, on the ground that no award can be made in this case to any one, under the evidence in the record and a proper construction of the law.

We will first pass on the evidence and then on the question to whom the award should be made, if at all.

The record shows that the range in question was originally constructed with private funds of the company, sometime in 1900, pursuant to orders and directions emanating from the general inspector of rifle practice of the State of Illinois, no funds being available from the State in that year for rifle ranges, except for Springfield and Ft. Logan; that in 1901 there was allowed from the State appropriations, upon the recommendation of the general inspector of rifle practice, to further equip this range, the sum of $125.00; that on May 28, 1901, a general order No. 10, was issued by order of the Commander in Chief and published and distributed for the information and guidance of the officers and enlisted men of the Illinois National Guard, approving the rules and regulations for the government of target practice, during the season of 1901, submitted by the general inspector of rifle practice. Sec. I of Art. 5 of the Military and Naval Code, provides that the general inspector of rifle practice shall have charge of the rifle practice throughout the State and shall superintend the manner in which the same shall be conducted, under the orders of the Commander in Chief. These rules provide that each company shall have certain terms of yearly service or practice with the rifle upon the range and that the rifle season will open June 1st and close October 31st, 1901.

Captain Blanchard testified that his company was composed principally of business men and it was impracticable for any large number of the men to get away to the rifle range at any one time; that on October 4, 1901, most of the men had completed their firing for the year and their scores had been handed in and filed; that very few of the men qualified to shoot from the 800 and 1.000 yards ranges; that those who had qualified to shoot at 800 and 1,000 yards had nearly all completed their firing at these ranges and were through for the year; that among the men who were qualified to pass to the higher ranges, but who had not as yet completed their firing for the year were Captain Blanchard himself, and Robert Strohmeyer, a corporal in said company; that Edward R. Witte, deceased, had already •qualified as a sharpshooter and had completed his firing for the year and made his score at 800 and 1.000 yards ranges; that on said date, Lieutenant Witte telephoned him that he would be at liberty from his business that afternoon to do the marking, if any of those who had qualified could get away; that he replied that he could go and that as Strohmeyer had also qualified that he had better go also.

He further testified that he then ordered and directed Witte to go to the range that afternoon and told him to order Strohmeyer to go also if he could leave his work, and that afterwards, he, himself, gave orders to Strohmeyer to go; that he, Lieutenant Witte and Corporal Strohmeyer repaired to the range that afternoon, arriving there about one thirty o’clock, pursuant to orders, as aforesaid; that he assumed charge of the range and Witte and Strohmeyer were from first to last, under his immediate supervision and directions; that Lieutenant Witte was stationed by him at the target house to do the marking and did no firing himself upon that day; that the range had been equipped with a telephone, one instrument being in the target house and another that could be attached and detached at will, from the connections at each station from 300 yards back to and including 1,000 yards range; that it was not necessary to use the telephone up to the 600 yards range, but that beyond the 600 yards range, after a shot was fired, the marker at the target house would step out in front of the target, get the value of the shot, step back into the house and telephone it to the scorer at the other end of the line, and then step back and paste up the hole in the target, and then return to the target house and telephone the scorer that all was ready for the next shot, and not until this was done, and until the scorer received this second message and communicated it to the man on the firing stand, did the marksman have any right to fire another shot.

The whole construction of the range and the position of the targets are explained by the Captain in his testimony, but suffice it to' say that all that is necessary to be repeated in this opinion is what we have already stated and that Captain Blanchard had finished firing at 1,000 yards and Strohmeyer had taken position for firing at that range. At that range, the marksman lies down on the firing platform on his back with his feet crossed at the ankles, pointing toward the target and the barrel of his rifle resting in the crotch formed by the crossed ankles and feet. This method of firing is called the “Texas G-rip.” Strohmeyer had fired five shots from this range while in that position, completing one score. Captain Blanchard stood with his back to Strohmeyer about two feet away doing the scoring. At the conclusion of the score, Lieutenant Witte telephoned from the target house the value of the last shot. Captain Blanchard had just stated to Strohmeyer that he had made fourteen on that score, that he ought to do better on the next. At that insant, Strohmeyer became confused and fired the first shot on the next score, without waiting to be notified by the Captain that the marker had telephoned that all was clear for the next shot, or that he should fire. On that afternoon, Lieutenant Witte was dressed in straw colored trousers and a light undershirt. The evidence shows that the 1,000 yards target was 12 feet wide and 6 feet high, made of heavy buff paper, supported by cloth stretched over a wooden frame. The bull’s eye in the center of the target was black and about four feet high and 18 to 22 inches wide.

Captain Blanchard and Corporal Strohmeyer both testify that it was impossible to see Witte, while standing against the buff back ground of the target, with the naked eye. Failing to get any answer from the target house after the last shot, Strohmeyer ran to the place and there found Witte lying in the trench, mortally wounded from the effects of his last shot.

It appears from the. evidence of the location of the wound, and the mark made by the bullet on the target, that Witte had just completed pasting over the last shot hole and had turned partly around to go back to shelter. He was at once conveyed to the hospital in the city of Ottawa and died from the effects of the shot on the 7th of October following.

It appears from the evidence that neither of the three men were intoxicated; that Strohmeyer and Witte were good friends, and that they had excellent habits, and we are satisfied that the shooting of Witte by Strohmeyer was purely accidental.

The record also shows by the evidence of the attending physicians of Witte, that his death was caused from the shot received while on the range. The evidence of Captain Blanchard and Corporal Strohmeyer, the only persons present, are practically the same in regard to the circumstances connected with the accident.

We believe from the evidence of the witnesses contained in the record, taken in connection with general order No. 10, issued by order of the Commander in Chief, in 1901, and Section I, Article 5 of the Military and Naval Code, giving the general inspector of rifle practice charge of the rifle practice throughout the State, under the orders of the Commander in Chief, that Lieutenant Witte was an officer of the Illinois National Guard and that he was mortally wounded on the 4th day of October,, 1901, from the effects of which wound he died on the 7th day of October, 1901, while performing his duties as such officer, in pursuance of lawful orders from the Commander in Chief, and that, under the section under which this claim arises, an award should be made to some one.

The Commission is of the opinion that an award should be made in favor of the legal heirs of Edward E. Witte, deceased. The evidence does not, however, disclose the names of the legal heirs and as no good purpose would be subserved.by continuing this case for the additional proof, we therefore make an award in favor of Harry E. Witte, administrator of the estate of Edward E. Witte, deceased, for the sum of three thousand dollars ($3,000), for the exclusive use and benefit of the legal heirs of Edward E. Witte, deceased, to be distributed by said administrator under the order and direction of the Probate Court of La Salle county, Illinois.


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    Patrick H. O’Donnell, Administrator of the Estate of George C. Stow, Deceased v. The State of Illinois.

      Opinion filed October 1, 1902.

    1. Respondeat Superior—doctrine does not apply against State. The doctrine of respondeat superior does not apply as against the State; the State is not liable for the acts of its agents.
    2. Commission oe Claims—can allow claims only where legislature has created liability on part of State. The Commission of Claims can allow claims against the State only in cases where by express statutory provision the Legislature has created a liability on the part of the State for the acts of its agents, or, rather, waived the exemption of the State from such liability.
    3. Militia—in what cases there is a liability for injury to member of. In order to sustain a recovery for injury to a member of the National Guard or Naval Militia it must come within the provisions of Sec. 4, of Art. 9, of the Military Code, which provides that “In every case when an officer, soldier or seaman of the Illinois National Guard or the Naval Militia of Illinois, shall be killed or wounded while performing his duties as officer, soldier or seaman, in pursuance of orders from the Commander in Chief, said officer, soldier or seaman, or his legal heirs, shall have a claim against the State for financial help or assistance, and the State Board of Claims shall act on and adjust the same as the merits of each case may demand.”
   From the record in this case it appears that Geo. C. Stow, deceased, was at the time of his death, a member of the Illinois National Guard, and that in pursuance of orders of the Commander in Chief, he was encamped with his company at Camp Lincoln, near Springfield, on the 6th day of July, 1901, and on that day was drowned, in the swimming pool at said camp. Testimony was introduced tending to show that the pool was not constructed with due regard to safety, and that it “was furnished by the State for the enlisted men to bathe in.” Whether or not either or both these contentions are true we do not regard as material in determining this case. It has been held repeatedly by the Supreme Court, and that ruling followed by this Commission, that the doctrine of respondeat superior doés not apply as against the State; that the State is not liable for the acts of its agents.

In the case of Ross v. The State, decided by this Commission in 1898, it was said: “that the State cannot be held liable for the acts of its officers, however, negligent, is a rule too well established to admit of controversy”—citing, among other authorities, Schmidt v. The State—Commission of Claims, 1890; State Bank of Chicago, Admr. v. The State—Commission of Claims; 1898; Hedges v. County of Madison, I Gilm., 567; Town of Waltham v. Kemper, 55 Ill., 346; Elmore v. Drainage Com., 135 Ill., 269.

This Commission can, therefore, allow claims against the State only in cases where by express statutory provision the Legislature has created a liability on the part of the State for the acts of its agents; or rather, waived the exemption of the State from such liability; and to sustain, a recovery in this case, it must come within the provisions of Sec. 4, of Art. 9, of the Military Code, which section reads as follows:

“In every case when an officer, soldier or seaman of the Illinois National Guard or the Naval Militia of Illinois shall be killed or wounded while performing his duties as officer, soldier or seaman, in pursuance of orders from the Commander in Chief, said officer, soldier or seaman, or his legal heirs, shall have a claim against the State for financial help or assistance, and the State Board of Claims shall act on and adjust the same as the merits of each case may demand.”

We interpret this language to mean that to create the basis for a claim under the provisions of this act the following facts must appear: That the National Guardsman or Naval Militiaman for whom relief may be sought was “killed or wounded;” and that he received his injury “while performing his duties as officer, soldier, or seaman;” and “in pursuance of lawful orders.”

Whether or not drowning comes within the terms “killed or wounded,”—a question raised on the part of the State—we are not called upon to decide in this case, for we do not feel that the evidence would justify us in finding that George C. Stow was drowned “while performing his duties,” * * * “in pursuance of lawful orders.”

To sustain the theory that he was drowned while so engaged it has been contended by claimant’s attorneys in their oral and printed arguments that “enlisted men are expected to keep their bodies clean as well as their uniforms and guns,” and that “the only place for them to bathe was the swimming pool.” We do not feel that the testimony brings the claim within the intent and meaning of the section on which claimant must rely; there is no evidence to show that the deceased, when drowned, was engaged in the performance of a duty in pursuance of orders. On the contrary it would seem from the evidence that swimming was permitted as a privilege rather than ordered or expected as a duty.

To sustain this claim it would be necessary to construe the section quoted as intending to give a basis of claim against the State for every injury occurring at any time, from any cause, during the time of service, without reference to whether the claimant was killed or wounded in the performance of duty, in the execution of lawful orders or whether the injury was due to accident or carelessness on the part of the person injured and while engaged in his own pursuits.

Had it been the intention of the Legislature, in drawing the provisions of the section, to give relief for any injury received during the term of service, they certainly would not have used the words that explicitly and clearly make it a condition of recovery that the claimant must have received his injury while performing his duties and in pursuance of lawful orders. Under the statute, as worded, and under the only construction of its wording that seems possible, we are obliged to reject this claim, without prejudice, however, to other relief, and it is expressly ordered that the claimant is not concluded hereby.


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    John H. Tedens and Andrew C. Dystrup, Copartners, doing bussiness as Tedens & Dystrup v. The State of Illinois.

      Opinion filed October 2, 1902.

    1. Landlord and Tenant—tenant cannot dispute title of landlord. And if the real owner is threatened with suit from one who has no title whatever, and he should recognize the title of the adverse claimant, and enter into a lease, and accept possession under same and pay rent under said lease, he could not afterwards dispute the title of the other party and recover the rent paid.
    2. Same—cannot set up better title in himself or third person. A tenant cannot set up a better title in himself or in a third person.
   The claim in this case was filed with the Auditor of Public Accounts on the 6th day of March, A. D. 1902, to the August term of the Commission, A. D. 1902, by John H. Tedens and Andrew Dystrup, partners doing business under the firm name of Tedens & Dystrup, against the State of Illinois, for the recovery of $600 rent claimed to have been unlawfully collected by the Canal Commissioners of the' State of Illinois.

The claim grows out of a certain lease executed by the Canal Commissioners to John H. Tedens, (who is the father of John H. Tedens, claimant), and John Thormahlen late partners who did business under the firm name of J. H. Tedens & Co.

Said lease was for the following lands to-wit: All the right the State of Illinois possesses to that portion of the reserved ninety feet strip lying on the berm or south side of the Canal in Section twenty (20) in township No. thirty-seven (37), range eleven (11), East, described as follows: Commencing at the West side of xthat is known as Stevens street in the village of Lemont, Cook county, Illinois, and extending in a southwesterly direction down the canal for a distance of 280 feet, constituting a frontage of ninety feet on said Stevens street and a depth 280 feet along said canal.

The annual rent agreed, upon was $150, payable in advance. It was provided in said lease that upon default in payment of the said rent, the parties of the second part, John H. Tedens & Co., should surrender said premises to the board of Canal Commissioners.

Said lease also provided that the said land was to be used for mercantile and dwelling house purposes. The lease also contained a stipulation that the lessees would not re-let said tract of land or any part thereof without the consent in writing of the said party of the first part, the Canal Commissioners.

Said lease contained the further agreement, that if at any time within five years from date thereof, it should be determined by the courts of last resort that the ninety feet strip therein described is not under the control of the Board of Canal Commissioners of the State of Illinois then and in that event the rents that may have been paid by the said J. H. Tedens & Co., should be refunded to them or to their successors or assigns by the State of Illinois through its Board of Canal Commissioners.

Said lease under seal, signed by the Board of Canal Commissioners, by its president and secretary and by John H. Tedens and John Thormahlen.

It appears from the evidence that John H. Tedens & Co. were in possession of said premises and that they paid rents thereon, under said lease for two years.

It further appears that John H. Tedens & Co. made a voluntary assignment to Frank Welch as assignee, for the benefit of their creditors, on the 10th day of November, A. D. 1898, thereby conveying to said assignees, all of their property, real, personal and mixed. And on or about the 20th of December, 1898, John H. Tedens Sr., died.

The said John H. Tedens & Co. were engaged in the general mercantile business and their store was located on the premises joining the leased premises, and they erected a warehouse on the premises leased from the Canal Commissioners.

On January the 23d, 1899, Frank Welch as assignee, sold the stock of goods to John H. Tedens, jr., and Andrew 0. Dystrup, partners, etc., and leased them the premises occupied by the storehouse and also the leased premises.

On February 2, 1899, a petition was filed in bankruptcy, by the creditors of the said J. H. Tedens & Co., in the United States District Court for the Northern District of Illinois, against John Thormahlen, surviving partner of John H. Tedens & Co., and he was adjudged a bankrupt, and at the first meeting of creditors the said Frank W. Welch was selected and appointed trustee of said estate.

On September 5,1899, the Canal Commissioners made demand on the trustee for payment of $300 being two years rent then in arrears under said lease.

The trustee refused payment, as he claimed, on the ground that the matter was then in controversy in the suit of Werling v. Ingersoll, then pending in the Supreme Court.of the State of Illinois.

The Canal Commissioners filed an intervening petition in the bankruptcy proceeding in the United States Court, and procured an order on the 6th day of September, 1899, that said trustee pay to the Canal Commissioners the said sum of $300, it being also agreed by the Canal Commissioners that if the said trustee paid to them the said sum of $300 rent then due, and paid the subsequent amounts as they fell due while said lease was in his hands, that they would agree that the said trustee should assign the said lease to any one to whom he should sell the same. And on the same day said trustee in compliance with said order paid to the said Canal Commissioners, the said sum of three hundred dollars the rent then due.

On the 12th of December, 1899, an order was entered authorizing the trustee to offer for sale the store premises of Tedens & Co.

And on the 22d day of December, the said trustee was ordered by the said U. S. District Court to convey said store premises to the said Tedens & Dystrup. And on the 16th day of January, 1900, the said Frank W. Welch as such trustee conveyed the said store premises to the said Tedens & Dystrup.

And on November the 26th, 1900, the said trustee assigned and delivered to the said Tedens & Dystrup the lease above described, executed by the said Canal Commissioners to the said J. H. Tedens & Co., being the same parties to whom said trustee had sold the store premises.

On the following day, the 27th of November, A. D. 1900, the said trustee procured an order authorizing him to sell at public sale all the desperate notes, accounts and judgments of said estate of J. H. Tedens & Col, and on the 14th of December, 1900, pursuant to said order the trustee sold all of the desperate assets, among which is claimed a $450 conditional claim against the Canal Commissioners, was sold, to one Archibald D. Brown, and on the same day the said Frank W. Welch as such trustee by his deed of assignment assigned and delivered all of the said desperate accounts of the estate of the said J. H. Tedens & Co., amounting to the sum of $55,600.53 to the said Archibald D. Brown, for the sum of $250.00.

On the 21st day of January, A. D. 1901, the said Archibald D. Brown sold and assigned the entire list of desperate assets, which he had purchased to the said Tedens & Dystrup for the sum of $275.

Claimants now insist that it has been decided by the courts of last resort that the State of Illinois had no right to the control of the said leased premises, and that as they have purchased the said conditional demand against said Canal Commissioners that they are entitled to recover the amount of money which has been paid as rent for the said leased property, both by the said J. H. Tedens & Co., and by the said Frank W. Welch as trustee.

It is insisted by claimant that they are entitled to recover upon two grounds. First, under the provisions of the contract, providing that the Canal Commissioners would refund all moneys paid as rent if it should be decided by the courts of last resort, within five years from the execution of said contract that the said Canal Commissioners had no right to the control of the said premises, mentioned in said lease. Second, that the claimants are entitled to recover upon the ground that the State of Illinois, through its Canal Commissioners have collected money, which it was not lawfully entitled' to, and that therefore, the State should refund it to the claimants as the assignees of said claim.

It is claimed by the defense that the said J. H. Tedens & Co., having accepted a lease of the said premises and made themselves the tenants of the State, are estopped from denying the title of the State, their landlord. And the evidence showing that the claimants in this case, have accepted an assignment of the said lease from the said Frank W. Welch, as trustee in bankruptcy, of the said estate of J. H. Tedens & Co., they are also estopped from questioning the title of- the State, which is also their landlord, by reason of their having accepted an assignment of the said lease and going into the possession of the said property under the trustee of said estate of J. H. Tedens & Co. The defense also contend that the courts of last resort have not decided that the State of Illinois is not entitled to the possession of the said property, within the provisions of the said contract.

No principle of law is better settled, than that the tenant can not dispute the title of his landlord and if the real owner is threatened with suit from one who has no title whatever, and he should recognize the title of the adverse claimant, and enter into a lease, and accept possession under same and pay rent under said lease, he could not afterwards dispute the title of the other party and recover the rent paid.

Heisen v. Heisen, 145 Ill., 658.

It has been decided by our Supreme Court, that the tenant can not set up a better title in himself or in a third person.

Sexton v. Corley, 147 Ill., 269.

The said John. H. Tedens and John Thormahlen having recognized the right of the State, by accepting a lease from them and holding possession under the same and paying rent to the Canal Commissioners, were clearly estopped from questioning the title of the State, or seeking to have the rent paid by them refunded, unless they can do so under the provisions of said lease.

Have the claimants made out a case under the contract conditions of the lease? Two things must be proved by the claimants to make out a case: First: They must

prove that it has been decided by the courts of last resort that the State of Illinois has no title to or right to the control of the premises mentioned in the lease. Second, This decision of the courts of last resort, deciding that the State has no right-to the control of the said premises, must be rendered by such court of last resort within five years from the execution of the contract.

It is not contended by the claimants that there has been any decision of any court with reference to the title to the land in question, but it is claimed that the case of Werling v. Ingersoll although brought to test the title to land in a different county from the land in question, was in fact decisive of the title to the land mentioned in the case at bar.

While we are of the opinion that the claimants might prove that the courts of last resort had held that the State of Illinois had no right to the control of the land in question by a decision of said court, in a case other than in a case between the said John H. Tedens & Co. and the Canal Commissioners, brought for the purpose of testing the title to the said premises, yet if they rely upon a decision in another case, they must prove that the facts and conditions of each case are substantially the same, that the State claims title from the same source that was claimed in the case of Werling v. Ingersoll, and that the State has no other title.

While it may he true that the State claims title under the Statute of 1822, the same as in the case of Werling v. Ingersoll, 182 Ill., 25 and 181 U. S. 131, still claimants have not proven this fact, and the Commission are not permitted to presume any part of their case. In the case of Werling v. Ingersol, the court in the opinion says, that it is proven that the land in question is not in a section taken by the State under the Statute of 1827. Also in the case of the City of Chicago v. McGraw, 75 Ill., 566, it was also stated that it was proven on the trial that the premises in question were in a section reserved to the United States. Claimants have not proved that the premises in question are not in a section belonging to the State of Illinois under the act of 1827. In fact no evidence was offered upon this question, but it was insisted upon the argument that the mere fact that the government had sold a portion of the land in section twenty, township thirty-seven north range eleven east, that this fact proved that this was not one of the sections granted to the State of Illinois. But the fact that the government frequently has sold from the same tract twice, and it has been decided by the courts that where this happens, that the first grant controls and takes title, would indicate that this fact would not be sufficient proof of the fact that this was not one of the sections belonging to the State.

In fact claimants have not shown that the title claimed by the State may not be other and different from the act of 1822, or the act of 1827.

The Commission are also of the opinion that the claimants have failed to prove the second proposition, that the title was decided against the State by the courts of last resort within five years from the time of the execution of the lease in question.

The lease was executed on the 15th day of April, A. D. 1895, and the suit was decided in the Supreme Court of the United States on the fifteenth day of April, A. D. 1901, just six years after the execution of the lease. If the decision of the United States Court was intended by the “Courts of last resort,” then claimants could not recover under their contract or lease for the reason that the time had expired in which they were permitted to recover under the provisions of the lease.

It is claimed that the case of Werling v. Ingersol, 182 111., 25, decided the question in this case and that it was decided on the 19th of October, A. D. 1899, which was less than five years from the time of the execution of the lease in question.

The Commission are of the opinion that the opinion of the United States Court, was the court of last resort within the meaning of the lease. It can not be claimed that the case of Werling v. Ingersol, 182 Ill., 25, was the decision referred to by the lease, for the reason, that the same questions which were decided by it had long before been decided by the same court in the case of the City of Chicago v. McGraw, 75 Ill., 566. This case was decided in 1874, which was several years before the execution of the lease in question so it could clearly not have been the decision intended by the lease. In the case of Werling v. Ingersol, 182 Ill., 25, the court does not discuss the reasons for the holding but simply says, “We refer to that case (meaning City of Chicago v. McGraw, 75 Ill., 566), for the reasons given in support of this conclusion so reached. It is unnecessary to repeat those reasons here.”

If the State had no other title to the premises in the lease to J. H. Tedens & Co. than the rights given under the Statute of 1822, then clearly they intended some other decision than by the Supreme Court of the State of Illinois, for the Supreme Court of the State of Illinois had held long before the execution of the lease to Tedens & Co. that the State of Illinois acquired no title to the ninety feet strip along the Canal under said statute. So if it should be admitted that the State had no other title than under this Statute of 1822, it must clearly follow, that the parties at the time of making the lease, and referring to a decision of the question by the courts of last resort, within five years from the execution of the lease, intended to mean the decision of the United States Court.

The Commission is of the opinion that claimants have failed to make out a case, and the claim is rejected.


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    Frank G. Belt v. The State of Illinois.

      Opinion filed November 25, 1902.

    Respondeat Superior—State not liable for negligence of its agents. The State is not liable for injuries caused by the default or neglect of its agents or employes.
   This claim was brought to recover the value of a peach orchard that was killed or injured as a result of “spraying,” done under the direction of the State Entomologist, presumably acting in pursuance of an act of the General Assembly, in force April 11, 1899, entitled, “An Act to prevent the spread in Illinois of the San Jose scale.”

We do not deem it necessary in determining liability in this case to decide whether or not the treatment of the trees by spraying, as given under the direction of the State Entomologist was a proper treatment, though we are inclined to believe it was done by the method then recognized and approved by the authorities and experts on horticulture and had been followed successfully by the State Entomologist in many other cases.

However this may be, in our view of the law applicable to the facts, claimant cannot recover. Though doubtless true, as counsel for claimant says in his written argument, that “no rule of law is better established than that the principal is liable for the acts of his agent when done in the course of business,” it is equally well recognized that this principle of liability (the doctrine of respondeat superior) is not applicable as against the State. That the State is not liable for injuries caused by the default or neglect of its agents or employes.

Such has been repeatedly the ruling of this Oommission, following the decisions of the Supreme Court in the following and other cases:

Hedges v. County of Madison, I Gilman, 567;
Town of Waltham v. Kemper, 55 Ill., 346;
Bussell, Admr. v. Toum of Steuben, 57 Ill., 35;
Hollenbeck v. Winnebago Co., 95 Ill., 148;
Elmore v. Drainage Commrs., 135 Ill., 269;
Cooney v. Hartland, 95 Ill., 516.

It is further contended by counsel for the claimant that he was not notified by the State Entomologist to treat his trees—nor did he refuse to treat his trees—and that without such refusal by the claimant the Entomologist had no right to treat the infested trees; and it is further contended that the act under which the Entomologist was presumably acting was unconstitutional—and that the Entomologist was therefore acting without authority of law.

Without passing on these contentions, the Commission suggest that if they were all true, the only effect would be that the remedy does not exist against the State— the liability, if any exists, would be on the part of the person acting under an unconstitutional act—or attempting to execute an act without following its provisions.

Under the law as we find it, following the rulings of the Supreme Court and the precedents of this Commission, the claim is rejected; without prejudice, however, to other relief, and it is expressly ordered that the claimant shall not be concluded hereby, attention however being called to the evidence presented, as to the excessive claim for damage ($3,134.00) in the statement of claim.

According to the testimony of the claimant, his orchard was set out in 1898, in peach trees costmg about twenty cents each. For his 504 peach trees killed or injured he fixes his loss at $3,134.00, an average of over $6 for each tree.

By his own testimony, the cost of cultivating the orchard for the two seasons before it was destroyed was $350; this amount is not, however, substantiated by the items of expense for cultivation as given by the claimant himself.

E. C. Green, assistant State Entomologist, shown to be an authority on this subject, says the value of the trees at the time of the spraying was not over 50 cents each, making the total value $252.00, which is doubtless a fair estimate of the loss suffered by the claimant.


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    William T. Wallace v. The State of Illinois.

      Opinion filed November 25, 1902.

    Respondeat Superior—State is not liable for the default of its agents or employes. Where State Entomologist sprays fruit trees of claimant and as result the orchard is destroyed, claimant is not entitled to award.
   In this claim recovery is sought for the value of an orchard alleged to have been destroyed as a result of “spraying” done under the authority of the State Entomologist.

The law under which the entomologist was presumably acting was enacted “to prevent the spread in Illinois of the San Jose scale.” (In force April 11, 1899.) The claimant’s attorney contends that “claimant never refused to treat the infested trees; and until such refusal by the claimant, the State Entomologist or his assistant had no right to treat the trees and spray them as was done” and that under the provisions of the law “claimant was entitled to written notice giving him a specified time to treat the trees.” And further contends that the act is unconstitutional, as authorizing the destruction of property without due process of law.

As to the first of these contentions, that the provisions of the law, as to notice, were not followed, it would seem that the formality of notice might be considered waived from the fact that claimant wrote to the State Entomologist requesting that his trees be treated—see claimant’s letter dated November 24, 1900, marked “Exhibit A.”

The law has been repeatedly announced by the Supreme Court and uniformly followed by this Commission that the State is not liable for the default or neglect of its agents or employes—that the doctrine of respondeat superior is not applicable as against the State.

Hedges v. County of Madison, 1 Gilman, 567;

Town of Waltham v. Kemper, 55 Ill., 346;

White v. County of Bond, 58 Ill., 297;

Symonds v. Clay County, 71 Ill., 355;

Hollenbeck v. Winnebago County, 95 Ill., 148;

Elmore v. Drainage Comrs., 135 Ill., 269.

Without going into the question of whether the “spraying” was properly done—though the testimony of the expert tends to show that the treatment was that recognized and followed by the authorities on this subject; without attempting to pass on the constitutionality of the law or even as to whether that would in any case be within the province of this Commission; in accordance with the above decisions, we hold that even if the provisions of the law were not followed the State is not liable for the acts of its agents in improperly carrying out the provisions of the law—nor would the State be’ liable for damage done by persons presumably acting under the law—even if it were admitted to be unconstitutional—which we are not called upon to decide, though ample authority is cited in the brief of the Attorney General to sustain the constitutionality of the law, if that were essential or material to a finding in this case We rest our decision, however, on the rule that the State cannot be held liable for the acts of its agents, even if negligence were shown—and on this ground the claim is rejected.

While the Commission, under this construction of the law feel constrained to hold that the damage to claimant’s orchard is a loss or misfortune'for which the State is not legally liable, the claim is rejected without prejudice and it is expressly ordered that the claimant shall not be concluded hereby; calling attention, however, to the evidence as to the extent of claimant’s loss. In the statement of claim, verified by affidavit, claimant fixes his loss for 1,300 trees at $6,415.00, or about $5 per tree.

In his cross examination the claimant states that his land (20 acres), with the trees, was worth $100 per acre; after the trees were destroyed that it was worth $55 per acre—a difference of $45 per acre, or $900 for the entire orchard. Mr. E. O. Green, assistant State Entomologist, who examined the orchard and discovered its infestation by the San Jose scale and directed the “spraying,” states that about one hundred of the trees were SO' badly infested as to be worthless and were cut down; that about one-half the remainder (600) were worth 75 cents each and the balance (600) about 25 cents each—making a loss of $600 according to this estimate, or $900 based on claimant’s valuation of his land. Whichever amount be correct, between these amounts ($600 and $900), it would seem, the claimant’s loss might be fairly estimated.


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    Lucius G. Fisher v. The State of Illinois.

      Opinion filed December 31, 1902.

    1. Respondeat Stiebbiob—State not bound where agents have-transcended their powers. State cannot be bound by acts or contracts of its officers or agents where such officer or agent has transcended or exceeded his lawful or legitimate powers.
    2. Ratification—of unauthorized acts by State. The State may ratify unauthorized acts of its officers or agents.
   Claimant in this case asks for an award in the sum of thirty-nine hundred eighty-nine and 98-100 dollars ($3,989.98) for rent and accrued interest thereon for rooms belonging to claimant, occupied by the State Architect as his offices, from the first day of September, A. D. 1899, to the 15th day of September, A. D. 1901. The record shows that E. Bruce Watson was appointed State Architect by Governor Tanner on July 1, 1899, under the provisions of an act creating the office, approved April 24, 1899, and in force July 1, 1899. The act under which the State Architect was appointed provided the amount of salary he should receive, and defined his duties and powers, but made no provisions for the expense of an office to be occupied by him, and conferred no authority upon the State Architect, nor any other officer of the State, to create any liability against the State for office rent, or expense of any kind.

It is a well established rule of law that the State cannot be bound by the acts or contracts of its officers or agents, where such officer or agent has transcended or exceeded his lawful and legitimate powers.

Throop on Public Officers, Sec. 551, and cases cited.

Mechem on Public Officers, Sec. 834, and cases cited;

It is also a well established rule of law that a State may ratify the unauthorized acts of its officers or agents.

Mechem on Public Officers, Sec. 535, and cases cietd;

Throop on Public Officers, Sec. 551, and cases cited.

It is contended by counsel for claimant in this case that the State has ratified the act of the State Architect in renting the offices, and that the State is therefore liable for the claim, whether the State Architect had any authority to make the contract or not.

The record shows that at or about the time the State Architect was appointed, he went to Springfield, and that he and Governor Tanner called upon the Secretary of State, and asked him, as Custodian of the State House, to furnish an office for the State Architect, who informed him that none of the rooms in the State House originally intended for offices were vacant, but that he could, however, furnish a room for Mr. Watson on the fourth floor, and that he referred the matter to the Superintendent of the Capitol Building, Capt. R. J. Beck. The Secretary of State also testified that the Governor argued that a room should be furnished for the State Architect because the office was one that should be located at the capital of the State.

Capt. R. J. Beck testified that he took Mr. Watson to room 17, on the fourth floor, which was about twenty-four feet square, with two windows, and told him that he could have that room for his office; Mr. Watson was not satisfied with the room in its then condition, and wanted it painted, dadoed and frescoed, and put in better shape. This he was willing to do, and told Mr. Watson he would do whenever he was ready and willing to occupy the room, but that Mr. Watson never returned to inquire about the room.

Mr. Watson testified that the room was not satisfactory, and that he so reported to Governor Tanner, and that the Governor authorized him to rent rooms, and that, acting on the authority given him by the Governor, he rented rooms 1800, 1802, 1804, 1806, 1808, 1810 and 1812 in the Fisher Building, on the corner of Dearborn and Van Buren streets, in the city of Chicago, which premises belonged to the claimant, and entered into a lease on the 10th day of July, 1899, whereby said premises were demised to the State of Illinois from the first day of August, A. D. 1899, to the 30th day of September, A. D. 1903, at a monthly rental of two hundred ninety dollars ($290.00) per month. The lease was offered in evidence and was signed “State of Illinois, by R. Bruce Watson, State Architect.”

He further testified that he afterwards ascertained that on account of the falling off of the work for the State, he could get along with less room, and entered into a new lease with claimant on the 16th day of February, A. D. 1900, leasing two of said rooms, Nos. 1800 and 1802, from the first day of March, A. D. 1900, to the 30th day of April, A. D. 1903, at a rental of one hundred dollars ($100.00) per month, and executed the second lease in the same manner he did the first, and was released from obligation of the first lease. He also testified that he occupied these two rooms from March 1, 1900, as State Architect, until September 15, 1901, at which time he surrendered them to claimant. He is corroborated in all of his testimony in regard to renting the rooms by Charles B. Osborne, who was the agent of the claimant, and who testified that the rental value as fixed in the leases was a reasonable rental value.

We do not think these facts sufficient to show a ratification by the State of the action of the State Architect in renting the rooms. The mere fact that the Governor authorized the State Architect to rent the rooms did not clothe him with legal authority necessary to bind the State. There is no more law authorizing the Governor to execute a lease of this kind than there is to authorize the State Architect, and the fact that the Governor directed the State Architect to execute the lease, if he did do so, would not in any way affect the liability of the State.

It is strenuously urged by counsel for the claimant that a substantial benefit accrued to the State of Illinois from the use of the rooms by the State Architect, and authorities are cited where it has been held under such circumstances, that a ratification by the State would be presumed.

We are unable in this case, however, to see where the State has derived any benefit by the occupancy of the rooms by the State Architect, that it would not have derived if the State Architect had performed in his own private office the duties required of him by the statute under which he was appointed. The act did not require the State Architect to maintain a public office at any place, and did not require him to give up his private business for the business of the State, and the record does not show that he did do so. The statute under which he was appointed gives him a salary of five thous- and dollars a year, and we are of the opinion that this salary, when taken in connection with the salary allowed other State officers, is amply sufficient for the State Architect to provide any additional room he may require in Chicago, to his private offices, and yet leave remaining a larger salary than is received by most of the officers of the State.

Believing, therefore, that the State Architect was not legally authorized to contract for the renting of rooms, and that the State is not bound for the payment therefor, the claim is rejected.


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    Arthur Frantzen Company v. The State of Illinois.

      Opinion filed December 31, 1902.

    1. State Architect—has no authority to create any liability against the State. The act under which the Supervising or State Architect was appointed, provided the amount of salary which he should receive, and defined his duties and powers, and made no provision for expenses of the office, and conferred no authority upon the State Architect, or any other person, to create any liability against the State for office rent, or expense of any kind.

      2. Responbeat Superior—State not bound where officers have transcended their powers. The State cannot be bound by the acts and contracts of its officers or agents, where such officer or agent has transcended, or exceeded his lawful and legitimate powers.
    3. Public Officers—person deals with officer at his peril. A person dealing with an officer must at his peril, ascertain the extent of his power.
   This is a claim for certain materials furnished, and labor performed by the claimant, a corporation duly incorporated under the laws of the State of Illinois, in equipping the offices of the Supervising Architect of the State of Illinois, or State Architect, with certain electrical appliances, consisting of an office telephone system, electric bells and push buttons, connecting the various offices with one another, and with the waiting room of said offices.

There is no dispute about the facts in the case. R. Bruce Watson was appointed Supervising Architect of the State of Illinois by Governor Tanner, July 1, 1899, under the provisions of an act creating the office, approved April 24,1899, and in force July 1, 1899.

The only evidence in the record is the testimony of the Supervising Architect, and W. B. Battenbury, president of the said claimant corporation. The Supervising Architect testified that sometime after his appointment, the Governor told him to rent space and go ahead and make necessary arrangements to get out certain work for the State; that he rented space in the Fisher Building, in the city of Chicago, and had several different offices that necessitated some annunciators, push buttons, etc., in conducting the business of the office, and that he ordered the work done by the claimant through his assistant. That the bill, as first presented, was for one hundred thirty-four and 70-100 dollars ($134.70); that representatives of claimant called several times at his office to collect the bill, but that he made objection to the amount of the bill, and refused to approve it; that the bill was afterwards rectified and cut down to one hundred four and 70-100 ($104.70), which he thought a reasonable amount, and that he approved the same, and accepted the work on behalf of the State; that he then informed the representatives of the claimant that the law creating the office of the State Architect did not make any provisions for office rent, equipment of office, and the payment for the same, but that he had been given to understand by Governor Tanner that the matter would be adjusted, and instructed to go ahead and take steps to have the necessary work done. He further testified that he took the matter up with Governor Tanner, and afterwards with the State Board of Charities, but that the State Board of Charities made no provisions or arrangements to pay the bill, and that the Governor approved their action.

W. H. Rattenbury testified that he was the president of the claimant corporation, that said service and material were furnished by claimant on the order of the Assistant of the State Architect, that the prices charged were the usual and regular prices charged for that character of work; that the amount claimed was due and unpaid. He first stated that the work was done in April or May, A. D. 1900, but corrected the statement after investigation, and stated that the work was completed in September, A. D. 1899; that the first bill rendered to the State Architect, was for the sum of one hundred thirty-four and 70-100 dollars ($134.70), but that the work was not itemized in that bill; that the bill was held by the State Architect until April or May, 1900, at which time he requested an itemized statement; that the itemized statement or second bill was for one hundred four and 70-100dollars ($104.70),and was dated in May, A. D. 1900; that he did not know positively whether the State Architect, or the State, was to pay the bill, but that he considered the order of the Architect a sufficient guaranty that the money would be paid.

The claim was filed in the office of the Auditor of Public Accounts on the 10th day of April, A. D. 1902, and is resisted by the Attorney General for the following reasons:

First: That the claim, if any ever existed, is barred by the statute of limitations.
Second: That the work was not done for, or received by the State of Illinois, and there is no liability on the part of the State for the payment of the claim.
Third: That R. Bruce Watson, who ordered the work done, had no authority to contract for the work on behalf of the State, or to bind the State for the payment therefor.

In the claim filed by the claimant corporation, and sworn to by the witness Rattenbury, it was set out that the work was done in the months of April or May, of the year 1900, but in his evidence given in the case, he stated that he desired to correct his testimony, and stated that the work was done in the month of September, 1899.

Section 4 of an act to limit the time of bringing claims against the State of Illinois, approved March 1, 1847, Hurd’s Statutes, 1901, page 418, provides that all unliquidated claims against the State shall be proved up, and filed within two years from the time such claims may have arisen.

As more than two years intervened between the time when the work was done and the material furnished, and the time when the claim was filed with the State Auditor, it is barred by the statute if unliquidated. If, however, the State Architect had the power to bind the State, the claim became liquidated when he approved the bill and accepted the work.

The only question then for determination, is—did the State Architect have the power to bind the State.

The act under which the Supervising or State Architect was appointed, provided the amount of salary which he should receive, and defined his duties and powers, and made no provision for expenses of the office, and conferred no authority upon the State Architect, or any other person, to create any liability against the State for office rent, or expense of any kind.

It is a well established rule of law that the State cannot be bound by the acts and contracts of its officers or agents, where such officer or agent has transcended or exceeded his lawful and legitimate powers.

Throop on Public Officers, Sec. 551;

Mechem on Public Officers, Sec. 834;

Tamm v. Lavalle, 92 Ill., 263.

The same authorities also hold that every person dealing with an officer must at his peril, ascertain the extent of his power.

It is argued by counsel for claimant, however, that as the work performed by claimant was done in good faith, at the request of the State official who was acting in good faith, under the direction of the Governor who had appointed him, and as there is no dispute as to the services rendered and materials furnished, nor as to their value that the claim should not be defeated on mere technicalities.

We cannot, however, disregard the established rules of law.

“The authority of the officer being a matter of public record or of public law of which every person interested is bound to take notice, there is no hardship in confining the scope of the officer’s authority within the limits of the express grant and necessary implication, and such is the well established rule. There can be no occasion or excuse in such a case for indulging in presumptions or relying upon appearances, but the authority must be traced home to its source, and must be shown actually to exist.”

Mechera on Public Officers, Sec. 830.

The mere fact that the Governor authorized the State Architect to have the work done, did not clothe him with legal authority necessary to bind the State.

In the case of Floyd Acceptances, reported in 7 Wall, page 666, Justice Miller makes use of the following language:

“We have no officers in the government, from the president down to the most subordinate agent, who does not hold office under the law with prescribed duties and limited authority.”

There is no law authorizing the Governor to direct the State Architect to have the work done, and the fact that he did so would not in any way affect the liability of the State.

The State Architect was not legally authorized to contract for the work on behalf of the State, or to bind the State for the payment therefor.

The claim is therefore rejected.