source: Caselaw Access Project

author: Mr. Justice Mulicey

license: Public Domain

text:
    Nichols, Shepard & Co. v. Joseph Spremont, Jr.

      Filed at Ottawa November 17, 1884.

    1. Homestead — sale on execution — setting off the homestead. Where premises are subject to the right of homestead they can not be sold under an execution, so as to confer upon the purchaser a title which will be availing in a court of law, unless the sheriff or other officer holding the execution first sets off the homestead, as required by the statute.
    2. Sams — judgment lien thereon — rights of purchaser from householder. Judgments against a householder and head of a family residing upon premises as a homestead, to the extent of the homestead therein, are no lien, either at law or in equity; and this homestead interest will pass by the deed of the householder, properly releasing the same, unaffected by such judgments. A sale of the whole estate in the premises, on execution, after such conveyance, will pass no title, at law, to the purchaser.
    3. Purchaser — subject to incumbrance — liability to pay. A conveyance of land to a purchaser subject to certain enumerated incumbrances, imposes no obligation on him to pay, them.
    Writ of Error to the Circuit Court of Kankakee county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Thomas P. Bonfield, for the plaintiffs in error.
    Mr. Stephen B. Moore, for the defendant in error.
   Mr. Justice Mulicey

delivered the opinion of the Court:

This is a writ of error to review a judgment of the circuit court of Kankakee county, rendered in an action of ejectment wherein Nichols, Shepard & Co. were plaintiffs, and Joseph Spremont, Jr., was defendant. The defendant ivas successful in the court below, and the plaintiffs bring the case here for review7.

There is no controversy about the facts, and we perceive no difficulty in the legal questions involved. Both parties claim the land in dispute through a common source of title,— namely, Narcisse Thyfault, — against whom plaintiffs, in the month of April, 1877, recovered a judgment in the Kankakee circuit court, for the sum of $101.75, and costs. At the date of this judgment the defendant was the owner in fee of the land in controversy, and occupied the same as a homestead, the premises being of the value of about $2000. On the 24th of April, and while this judgment was in full force and effect, Thyfault, for a valuable consideration, conveyed the premises, with release of homestead, to Charles Chinquy, the landlord of the defendant. Chinquy’s deed sets forth that it is made “subject to a trust deed to Daniel Pearson, dated July 15,1877, for $2000; also, subject to five different judgments, amounting to the sum of $700.93, now bearing interest, as lien in the recorder’s office of said county and State. ” It is evident the aggregate amount of the judgments referred to in this recital was, by inadvertence, omitted, as it otherwise appears plaintiffs’ judgment was among those referred to. The premises in question were sold by the sheriff of the county under an alias execution issued on plaintiffs’ judgment, bearing date May 14, 1879, without setting off or in any manner assigning the homestead.

The rule is well settled in this State, where premises are subject to the right of homestead they can not be sold under an execution, so as to confer upon the purchaser a title which will be available in a court of law, as is the case here, unless the sheriff or other officer holding the execution first sets off the homestead, as required by the statute. Hubbell v. Canady, 58 Ill. 425.

It is supposed, however, the fact that the conveyance from Thyfault to Chinquy was made subject to plaintiffs’ judgment, would require a change of the rule in this respect. We fail to perceive the force of this suggestion. The conveyance of the premises subject to that and other incumbrances, did not impose the slightest obligation on Chinquy to pay them, or either of them. He was left entirely free to pay or not pay them, just as in his judgment his interest required. To the extent of the homestead in these premises none of these judgments were a lien, either at law or in equity, and consequently this interest, by reason of the homestead having been waived in Thyfault’s deed to Chinquy, passed to the latter unaffected by these judgments, and it ivas therefore the duty of the sheriff to have set it off to him before making the sale, and not having done so, the sheriff’s deed conferred no title which a court of law will recognize, whatever his rights may be in a court of equity.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Henry F. Eames et al. v. Isaac N. Hardin et al.

      Filed at Springfield September 27, 1884.

    1. Mortgage — of a deed absolute in form — whether a purchase and a sale, or a loan — degree of proof required. To establish a deed absolute in form a mortgage, the proof must be clear and convincing. It may be shown by verbal testimony, but it must be entirely satisfactory, if not conclusive.
    2. Certain lots of a part owner having been sold at a judicial sale more than twelve months, he employed another to obtain the certificates of purchase and acquire the title, under an agreement on his part to purchase the same at an advance of $2000 on the sum required to be paid, besides the legal rate of interest, to enable him to perform a contract of sale to another. He also conveyed other land to the purchaser as a security for his performance of the contract to re-purchase the lots. It was held, that the advances made to acquire the title to the lots were not a loan, and the title so acquired was not in the nature of a mortgage, and that there was no usury in the transaction.
    3. One person may purchase land of another under an agreement to sell it back to the latter on a stipulated price in advance of its cost, and such a purchase and re-sale will be sustained when it is made in good faith, and is not resorted to to evade the usury laws, and the transaction is not tainted with fraud. And the conveyance of other property as a security for the repurchase, at the contract price, will not render the transaction a loan and mortgage. A party purchasing property for another may take additional security to protect himself against loss.
    4. Usury — profit on purchase of land for another. Where one party in good faith purchases property for another, to be conveyed to the latter on an advance of the price it cost, there can be no question of usury, and the title so acquired can not be held as a security for a loan. The profit on the purchase in .such case is not usury. Nor will the taking of security for the performance of the contract to’ purchase, render the transaction a loan to the person agreeing to purchase.
    5. Trust — as to title to land procured at the instance of another, and for his benefit. A prior owner of lots sold at judicial sale made an agreement with A that the latter should obtain the certificates of purchase, and thus acquire the legal title. The holder of the certificates of purchase of part of the lots refused to sell them, and the former owner procured the money from B to redeem them, and confessed judgment in favor óf A, under which their redemption was made with the money so advanced by B. It was
      held, that A held the title to the latter lots as trustee, and that the former owner, at whose instance the redemption was made, could not afterward make an agreement with A pledging such lots for the payment of the taxes on the other lots, to the prejudice of B.
    Appeal from the Appellate Court for the First District; — ■ heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    This was a suit in chancery instituted by Isaac N. Hardin and others, against Henry F. Fames and Jesse Spaulding, to redeem certain premises under a transaction claimed to be a loan and mortgage.
    Messrs. McCagg- & Culveb, for the appellants:
    The contract between appellants and Hardin did not constitute a mortgage, nor was it usurious. Tyler on Usury, 92; Cram v. Hendricks, 7 Wend. 569; Rapleye v. Anderson, 4 Hill, 472; Lloyd v. Scott, 4 Pet. 205; Moore v. Howland, 4 Denio, 264; Thurston v. Cornell, 38 N. Y. 281; Smith v. Marvin, 27 id. 137; Condit v. Baldwin, 21 id. 219; Bank of the United States v. Waggener, 9 Pet. 399; Hammet v. Yea, 1 Bos. & Pul. 144; Hogg v. Ruffner, 1 Black, 115; Brooks v. Avery, 4 N. Y. 225; Jones v. Berryhill, 25 Iowa, 295; Ketcham v. Barber, 4 Hill, 224; Kitchel v. Schenck, 29 id. 515; De Forest v. Strong, 8 Conn. 513; Beckwith v. Windsor Manf. Co. 14 id. 594; Abbott on Trial Evidence, 794; Murray v. Harding, 2 W. Blacks. 859; S. C. 3 Wils. 390; Arnold v. Gifford, 62 Ill. 249.
    The sale of the seven lots to Trumbo was authorized by Hardin, and he should have been held concluded by it. His consent, once given, operated as an estoppel. Carpenter v. Falter, 4 Bradw. 45; Bigelow on Estoppel, 590, 600; Cairncross v. Lorimer, 7 Jurist, (N. S.) 149; 3 Macy, H. L. Cases, 829; Cornish v. Abington, 4 H. & N. 549; Smith v. Newton, 38 Ill. 235; Cochran v. Harrow, 22 id. 345; International

      Bank v. Bowen, 80 id. 541; Kinnear v. Mackey, 85 id. 96; Freeman v. Cooke, 12 Jurist, 777.
    There was no revocation of Hardin’s consent. Story on Bailments, sec. 208; Salte v. Field, 5 T. R. 211; Bowerbank v. Morris, Wall. 118 a; 16 Viner’s Abridg. 4, part 7.
    It was error to decree that lots JL1, 12 and 13 be conveyed to Hardin. In this respect the decree neither comported with the facts, nor did it conform to the prayer of the bill. Ward v. Enders, 29 Ill. 519; Hall v. Towne, 45 id. 493; Dodge v. Wright, 48 id. 382.
    Messrs. Dent, Black & Chatty Bros., for the appellees:
    The transaction between Hardin and appellants was in reality but a mortgage, Reigard v. McNiell, 38 Ill. 400 ; Hanford v. Blessing, 60 id. 352; Price v. Karnes, 59 id. 276; Ewart v. Walling, 42 id. 453; Wynkoop v. Cowing, 21 id. 570; Klock v. Walter, 70 id. 416 ; Strong v: Shea, 83 id. 575; Dennis v. McCagg, 32 id. 439 ; Smith v. Cremer, 71 id. 185 ; Sutphen v. Cushman, 35 id. 136; Davis v. Hopkins, 15 id. 519 ; Bartling v. Brasuhn, 102 id. 441; Russell v. Southard, 12 How. 139.
    The transaction being a loan and mortgage, was, as to the sum of $2000, usurious. Delano v. Rood, 1 Gilm. 690; Heytle v. Logan, 1 A. K. Marsh. 529; Davis v. Hopkins, 15 Ill. 519 ; Payne v. Newcomb, 100 id. 611; Tyler on Usury, 102.
    The sale of the property not under a decree or by consent, was unauthorized. Hart v. Ten Eyck, 2 Johns. Ch. 101, and cases cited.
    Upon such a wrongful and unauthorized sale, the mortgagees, acting in violation of the established duties of the trust relation in which they stand to the mortgagor, must account for the full value of the property so sold, regardless of the price obtained. Waite v. Dennison, 51 Ill. 319 ; Hill on Trustees, *522; Perry on Trusts, sec. 847, and cases cited; Freeman v. Cook, 6 Ired. Eq. 373; Ames v. Downing, 1 Bradf. Sur. 321; Dennis v. McCagg, 32 Ill. 429; Johnson v. Lewis, 2 Strob. Eq. 157; Moore v. Titman, 44 Ill. 367; Norman v. Cunningham, 5 Gratt. 64; Mansell v. Mansell, 2 P. Wins. 678.
    If the situation of the title to this property was such that appellants could dispose of it at pleasure, in disregard of their contract with Mr. Hardin, such disposition would amount to an appropriation of the property by them, which would operate in law as a satisfaction of the mortgage debt, at least to the full value of the property so taken and disposed of. Perry v. Barker, 8 Ves. 527 a; S. C. 13 id. 198; Burpee v. Parker, 24 Vt. 567; Sutphen v. Cushman, 35 Ill. 197.
   Mr. Justice Craig

delivered the opinion of the Court:

The decision of this ease may be turned alone on the question whether this was a purchase by appellants of the seven lots, and a sale thereof to Hardin, or was the money advanced to Hardin as a loan, and the purchase of the lots to be held by appellants as a pledge, or as security for the payment of the money.

The entire transaction has every form of a purchase and sale. These seven lots, with three others, had been sold under a decree of foreclosure of a mortgage, and the time for redemption from the sale was near expiring, when Hardin applied for the loan. Hardin says, in his .testimony, that the ten lots were sold in November, 1876, “and about fourteen months had intervened thereafter, up to the middle of January, about when I went to see Eames. ” He further says: “I had before then communicated to Eames and Spaulding the date at which the fifteen months for redemption would expire, and had taken Spaulding to see Mattox and Barnes. As to the Hyde lots the redemption expired February 22, and the other lots on the 23d, the Hyde lots being 11, 12 and 13.” He further testified: “Some days prior to the 22d or 23d of February, the time for redemption, they proposed that I should deed them the eighty acres, and give a quitclaim of the Thirty-ninth street lots, and they would enter into a written contract with me in relation to conveying the property upon the payment by me of the sum advanced.” He further testified: “I don’t know whether, at that time, the sale in bankruptcy of Warren’s title had taken place or not. If not, the title was in Warren, subject to his incumbrance to our firm. Warren had not conveyed to me, except by trust deed securing his notes to us, which were given in payment of the property, no cash having been paid by him. The title to the lots was in Warren, unless sold out in bankruptcy. ”

Thus it is seen that the title was in Warren at the time the lots were sold under the decree of foreclosure, and until the expiration of twelve months after the sale, and not in Hardin. His right to redeem these lots, under the trust deed given by Warren to Hardin, from this foreclosure sale, was cut off and foreclosed by that sale, under the decree and expiration of twelve months thereafter. Neither he nor Warren had left any interest, either in law or equity.' Hardin’s position to these lots at that time was that of a stranger, or that of a grantor who has sold and conveyed his land to another. But Hardin and Cushman at the time had an arbitration pending, for the settlement of large transactions between them, in which the former expected the arbitrators would award a large price on .these lots to be paid by Cushman, who had previously agreed to take them of Hardin. He was therefore exceedingly anxious to obtain the title, so as to turn the lots over to Cushman at the anticipated large price. He therefore applied to Eames for a loan, for the purpose of purchasing. the certificates of sale given by the master in chancery for the lots. Eames, being the president of the Commercial National Bank, laid the proposition before the directors, and they declined the loan. Thereupon Hardin saw Spaulding, when it was agreed by the three that Eames and Spaulding should furnish tide money, purchase the certificates of purchase on the ten lots, and sell them to Hardin for the cost and $3000 advance, to be paid by him in ninety days, — Hardin to pay Shepherd for examining .the title and consummating, the contract. On the effort to purchase, Shepherd was able to procure the certificate of the master to but seven of the lots, — from 4 to 10, inclusive. The holder of the master’s certificate for lots 11, 12 and 13 declined to sell. It was thereupon arranged that Eames and Spaulding should leave out the three lots and purchase the certificate for the seven, and Hardin was to pay $2000, instead of $3000, over and above what the certificates therefor should cost. This arrangement was carried out, Eames and Spaulding paying between $14,000 and $15,000 for the certificate of purchase for the seven lots, and they afterward obtained a master’s deed for them, and Hardin at the same time executed to them a quitclaim deed. A writing was entered into by the parties on the 24th day of February, 1877, binding the parties to the agreement. Eames and Spaulding agreed to convey these seven lots to Hardin on his payment of the sum of $16,923.10, with interest, within ninety days from that date. Also, an eighty-acre tract which Hardin had procured to he conveyed to Eames and Spaulding as security for the performance of his part of the contract. Time was made of the essence of the contract. Hardin gave his notes for the purchase money, payable in ninety days. When it was found that the master’s certificate for lots 11, 12 and 13 could not be purchased, Hardin confessed a judgment, procured the money, and caused a redemption to be made of the three lots, and they were purchased in Spaulding’s name, and the lots were deeded to him by the sheriff. Eames and Spaulding finding the eighty acres of land heavily incumbered, insisted that Hardin should have other real estate conveyed to them as further security for the performance by Hardin of his part of the agreement. He accordingly had a number of other lots conveyed to them for the purpose. Eames and Spaulding advanced large sums of money to relieve the eighty acres of land from incumbrance. They also received, on a judgment Hardin had recovered against Cushman, $4496.52. Hardin failed to make any other payment, and Eames and Spaulding, being desirous of obtaining their money, through Hise, a real estate broker, sold the seven lots to Trumbo for $10,500, one-half in cash, and the other half on time. Hardin filed his bill to redeem, and appellants filed a cross-bill for the sale of the securities they held on the eighty acres of land, and on the other lots. On a hearing, the Superior Court held that the transaction was .a loan, and the conveyance by the master to appellants was a mortgage to secure the loan, and that the $2000 Hardin was to pay over and above the cost of the lots was usury, and that appellants should account for the value of the lots sold to Trumbo, and referred the case to a master to state an account. The master stated the account, and .allowed Hardin $21,000 for the seven lots, and reported a balance against appellants, and the court decreed that they pay to Hardin the sum of $5889.16, with interest at the rate of six per cent from the first day of March, 1878. They appealed to the Appellate Court for the First District, where, on a hearing, the decree of the Superior Court was affirmed, and they bring the case here by appeal.

All cases hold, that to establish a deed absolute in form a mortgage, the proof must be clear and convincing. It is never done on vague and inconclusive evidence. It may be proved by verbal testimony, but it must be entirely satisfactory, if not conclusive. Does the evidence in this case clearly establish that the master’s deed to appellants was intended by the parties as a mortgage to secure a loan of money? Can it be fairly held there was a loan? If there was not, then the decree of the Superior Court is erroneous.

There is nothing in the form of the transaction to indicate that there was. a loan of any sum whatever. On the con-: trary, it appears to have been a purchase of these lots by appellants, at the urgent solicitation of Hardin, with an agreement that he would purchase them at an advanced price .from appellants. Surely no one can be found who will deny that the parties had the power to agree that appellants should purchase, and sell the property to Hardin, without the transaction becoming a loan, and a mortgage to secure the payment of the sum advanced to make the purchase. The doctrine is well settled that a party may purchase land for another, take the deed in his own name,' and bind himself to convey it to the person at whose instance it was purchased, on being paid the purchase price agreed upon between the parties. The doctrine is .well established that one person may purchase land of another, and sell it back to him on the payment of a stipulated price. Such purchases and resales are always sustained where the transaction is in good faith, and is not resorted to for the purpose of evading the usury laws, or the transaction is not tainted with fraud. This doctrine is so familiar that it requires the citation of no authority in its support. Suppose Hardin had requested appellants to purchase a number of lots from a person with whom he had no relations, or with the title to which he had never been connected, and he had agreed to purchase the lots from them, as he did in this case, would any one even suspect that it was a mere loan and security ? Surely not. And where is the difference, in principle? We are wholly'unable to perceive the shadow of difference. When appellants purchased the master’s certificates, Hardin’s relations to the property had ceased. He was then a stranger to .the title. He expected; if he could control the title, to be able in a short time to turn the lots over to Cushman at a large profit on the price he agreed to pay for them; but Cushman having become insolvent, and unable to take and pay for the lots, and they, like all other property, doubtless having appreciated largely in value, he now is endeavoring to turn the transaction into a loan and mortgage, and thus make of appellants a portion of the profits he expected to, but did not, realize from Cushman. Spaulding most emphatically denies that there was, or was intended to be, a loan and mortgage, but testifies that it was a purchase of the certificates, and a sale of the lots to Hardin. Eames is equally exjDlicit in his testimony that it was a purchase and sale, and not a loan and mortgage. They both testify that there was no agreement’ or understanding whatever that it was, or should be, a loan. But independent of their testimony, Shepherd’s is amply sufficient to establish it as a purchase and sale, and not a loan. He was the attorney who investigated the title, and under whose advice every step was taken until the agreement was executed. He had every opportunity of learning the intention of the parties, and he says it was a purchase by appellants, and a sale to Hardin; that this was the understanding of himself from communications with all the parties, and they all so understood and intended it; that there was no intimation from any one that it was intended to be a loan, and he had daily conferences in reference to the matter with Hardin. Had such been his intention he surely would, at the very least, have intimated it to Shepherd. He testifies that he understood from all parties that it was a purchase and sale, and he drew the papers and transacted all of .the business to render it such. If this evidence does not establish this transaction to be a purchase and sale, and not a loan and security, we are at a loss to understand by what possible means there can be a purchase and sale. If this is held a loan and security, we might as well announce that there can be no such thing as a purchase and sale, or re-sale. Even Hardin says: “The final arrangement between us was embodied in the written memorandum introduced in evidence, which was signed by me. I read it before it was signed, and knew what was in it, perfectly well.” If the agreement, as he says, embodied the arrangement, then how can it be a loan and security ? The agreement is plainly and simply a sale. The language can not be tortured into a loan and security. He says it expressed the agreement of the parties, and it is simply a contract to sell by appellants and to purchase by Hardin.

The facts in this Case are as strong as in Magnusson v. Johnson, 73 Ill. 156, Hanford v. Blessing, 80 id. 188, and Caprez v. Trover, 96 id. 456, in all of which the transactions were held to be sales and re-purchases. This case falls clearly within the principles announced in those cases, and should be governed by them.

But it is said, if it was a sale why did appellants require the eighty acres to be conveyed to them, and embraced in the agreement to convey to Hardin ? Appellants did not purchase the property to hold, but they purchased it for Hardin. They, as a matter of prudence, desired to provide against any contingency of being required to hold the property. They, of course, wished to be secure against having to hold the lots, and run the risk of never being able to obtain their money from their sale; hence, as they were purchasing for Hardin, they desired to be fully assured that he would pay for and receive the title to the lots. It was to compel Hardin to perform his agreement, or on a default on his part to have abundant means out of which to realize the money they advanced to procure and protect the title. Surely it could not be expected that a prudent business man would advance large sums of money to purchase unproductive land not in demand in the market, to its full value, or more, and rely on it alone to be reimbursed for his outlays. Had appellants relied alone on these seven lots to obtain the money they had paid to procure and protect the title, they would have almost surely lost money; hence they, as all prudent business men would have done, determined to be fully secured against Hardin’s breach of contract. This was legal, and did not render them liable to forfeiture or loss upon their advances. There was therefore no usury, and there was no forfeiture of interest on the money they paid for the title, and' to remove incumbrances from the property conveyed to them to secure them against a breach of contract by Hardin. Had Hardin paid any considerable part of the purchase money down, then perhaps no necessity would have existed for taking a lien on other property to secure the performance of the contract; but such was not the case. Hardin paid nothing down. Suppose Hardin had proposed to give appellants $16,000 if they would procure title and convey these seven lots to him, would any person suppose that would be a loan or security ? And if ón such an offer they had purchased the lots for $14,000, would any one contend the $2000 advance, or profit, was usury ? We apprehend not. Such a transaction would be upheld by all legitimate rules of business. We suppose that such a transaction has never been condemned in morals or law; and when we look to substance, where, in principle, can we distinguish that from this case ? No distinction can be taken in reason or justice. A person owning and selling property may undeniably take security for the payment of the purchase money without converting the transaction into a loan. And for the same reason, where one person purchases land for another, on an agreement that the person for whom the purchase is made will pay a specified price, and secure the payment by pledge of other land, there is not a single ingredient of a loan.

From what has been said it follows that Eames and Spaulding have a right to recover the balance due them after deducting the amount received from Trumbo, and on the judgment against Cushman. Hardin is still indebted to them for that balance. He induced them to advance their money to purchase the land for him, and they have a right to recover it with interest, and also the $2000 he agreed to advance on the price they paid for the lots, — in other words, to receive the amount Hardin agreed to pay them, less the amount they received from Trumbo and on the Cushman judgment. This is fair and just, and Hardin must be held to its payment. Had it been a loan, there would have been usury, and a forfeiture of all interest on the amount advanced; but being a purchase by appellants, and a sale to Hardin, there can be no forfeiture of any kind, or for any amount. Hardin having failed to perform his part of the agreement, they have a right to be reimbursed by receiving at least the contract price.

As to lots 11 to 13, inclusive, the decree of the court requiring Spaulding to convey them to Hardin in trust for Winslow we think was correct. Winslow furnished the money to make the redemption, under which the title was obtained, and Spaulding held the title merely as a trustee.

It is claimed, however, by appellants, that after Spaulding had obtained the title to these three lots, an agreement was made with Hardin that Spaulding should hold the lots as security for payment of certain taxes on lots 4 to 10, inclusive, and the eighty acres deeded to Eames and Spaulding, and also as security for the release of certain judgments which appeared to be liens against the eighty acres. It will not be necessary to determine whether Hardin could, without the consent of Winslow, make a binding contract with Spaulding, who knew the rights of Winslow in the property, as it appears from the evidence that the taxes in question had been paid before the filing of the bill, and also evidence furnished of the satisfaction of the judgments. If, therefore, the agreement alleged to have been made was obligatory, which we are inclined to think was not, it has been substantially performed, and Spaulding has no right to hold the title to the three lots.

. As to the eighty-acre tract and the six lots in Johnson’s subdivision described in the bill, they are still held by Eames and Spaulding as security for the payment of the balance due them from Hardin, and we are satisfied that a decree should have been rendered, under the cross-bill, for a sale of the eighty acres and the six lots. The eighty acres should first be sold, and if it fails to bring enough to satisfy the amount due, then the six lots should be sold, or so many as may be necessary to satisfy the amount due.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.


author:
Mr. Justice Sheldon
      Mr. Justice Walker :

text:
    The North Chicago Rolling Mill Company v. Mary Morrissey.

      Filed at Ottawa November 17, 1884.

    1. Negligence — contributory negligence — as an element to be considered. In an action by an administratrix to recover damages for negligence causing her husband’s death, where the question of contributory negligence on the part of the deceased is fairly raised, it is error in the court to ignore entirely that question in instructing the jury.
    2. In such a case, the court instructed the jury that if they believed, from the evidence, that plaintiff was administratrix of the estate of deceased, and that he left him surviving a widow and next of kin who had suffered pecuniary loss by his death, and that, under the instructions and evidence, the defendant is guilty as charged in the declaration, they should find for the plaintiff, etc.: Held, erroneous, in ignoring the question of contributory negligence, and omitting the requirement of any care or caution on the part of the deceased.
    3. Measure oe damages. — how to be determined. In the same case, the court instructed the jury on what grounds they might find for the plaintiff, and if they did so find, that then they might give such damages as they should deem a fair and just compensation for the pecuniary loss resulting from such death to the widow and next of kin, not exceeding $5000: Held, that the instruction was erroneous, in not requiring the jury to find the damages from the evidence.
    Appeal from the Appellate Court for the First District; — ■ heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.

      Messrs. Willard & Driggs, for the appellant:
    The degree of care to be observed by a servant should be in proportion to the hazards of the service. Railroad Co. v. Donohue, 75 Ill. 108; Richardson v. Cooper, 88 id. 273.
    If the deceased knew, or by the use of reasonable care might have known, of the existence of this coal bin in time to have avoided the injury, the appellee can not recover. Railroad Co. v. Britz, 72 Ill. 256; Railroad Co. v. Munroe, 85 id. 25; Pennsylvania Co. v. Lynch, 90 id. 333; Pennsylvania Co. v. Hankey, 93 id. 580; Railroad Co. v. Patterson, 69 id. 650; Railroad Co. v. Asbury, 84 id. 429; Railroad Co. v. Black, 88 id. 112.
    Bisk of injury from the ordinary perils of the service are assumed by the employe, especially when the danger is not hidden. Railroad Co. v. Cox, 21 Ill. 20; Gartland v. Railroad Co. 67 id. 498; Railroad Co. v. Durkin, 76 id. 395; Railroad Co. v. Donohue, 75 id. 106; Railroad Co. v. Flanigan, 77 id. 365; Clark v. Railroad Co. 92 id. 43; Railroad Co. v. Ward, 61 id. 130; Camp Point Manf. Co. v. Ballou, 71 id. 417; Railroad Co. v. Eddy, 72 id. 138; Railroad Co. v. Munroe, 85 id. 25.
    The third of plaintiff's instructions ignores the question of negligence or care on the part of deceased, and directs a recovery upon an incomplete hypothecation of questions of fact. Railway Co. v. Dimick, 96 Ill. 42; Railroad Co. v. Shacklet, 105 id. 364.
    The instruction as to the measure of damages is erroneous, in that it allows the jury to give such damages as they should ‘deem a fair and just compensation, regardless of the proof. Railroad Co. v. Sykes, 96 Ill. 162.
    Messrs. Hynes, English & Dunne, for the appellee:
    There is a legal implication that an employer will adopt suitable instruments and means with which to carry on his business. Snow v. Railroad Co. 8 Allen, 446.

      The servant does not assume the risk of danger arising from the condition of the road, or structures near it. Railroad Co. v. Welch, 52 Ill. 186.
    Appellant had no right to locate the coal bin or fence so near the track as to occasion unnecessary and unusual danger to its employes, without expressly warning them of such danger. Railroad Co. v. Welch, 52 Ill. 183; Railroad Co. v. Gregory, 53 id. 272; Railroad Co. v. Fredericks, 71 id. 294.
    That the structure in question was built dangerously near the track, and that defendant was guilty of gross negligence therein, see Railroad Co. v. Russell, 91 Ill. 298; Railroad Co. v. Pondrom, 51 id. 333; Railroad Co. v. Welch, 52 id. 183; Railroad Co. v. Gregory, 58 id. 272; Railroad Co. v. Oram, 49 Texas, 341; Dorsey v. Phillips Cons. Co. 42 Wis. 583.
    The third of appellee’s instructions is not open to the ■objection made by counsel, and was properly given. The instruction limits the amount of the recovery to a fair and just compensation for pecuniary loss resulting from such death to the widow and next of kin, and the jury were in no way misled by it,
   Mr. Justice Sheldon

delivered the opinion of the Court :

The appellee brought this action to the June term, 1881, of the Superior Court of Cook county, to recover damages consequent upon the death of her husband through alleged negligence on the part of the appellant. The charge in the declaration is, substantially, that the defendant improperly, unskillfullv and negligently constructed a certain wooden wall, in dangerous and close proximity to a certain railroad track, and that the deceased, whilst in the employ of the defendant as a switchman, riding with due care upon a certain locomotive, was struck by said wall, and thereby thrown to the ground, and killed. The plaintiff recovered a verdict and judgment for $4000. The judgment was affirmed by the Appellate Court for the First District, and the defendant took the present appeal to this court.

It appears ■ from the evidence that the wall in question formed one side of a coal bin, which was designedly constructed by the defendant in near proximity to a certain railroad coal track on its premises, for the purpose of enabling coal to be shoveled by hand directly into the bin from cars standing on the track. The coal bin extended along the track about three ear lengths, beyond and adjoining which was a coke shed or bin, which extended along the same track about six ear lengths, to the end of the track. The cars were handled by means of steam locomotive engines, of which the defendant had two or more working day and night. Cars were thus placed upon and taken off this coal track three or four times per day. The process of shoveling from the cars into the bin caused quantities of the coal to fall between the two, and the defendant always had a man employed, who, standing between the cars and the bin, shoveled up the scattering coal and threw it into the bin. Such had been the use of the track and bin since 1863, during which time no accident or injury had occurred in consequence. At the time of the accident, the switchmen, of whom deceased was one, were placing upon this coal track, in the usual manner, a train of five or six cars to be unloaded, the engine running about three miles per hour.

Among the errors assigned is the giving of the following instruction for the plaintiff:

“The jury are instructed that the plaintiff can not recover unless she has proved that she is the administratrix of the estate of the deceased, Michael Morrissey, and that he, the deceased, left him surviving a widow and next of kin who have suffered pecuniary loss by his death; yet if they believe, from the evidence in this case, that the plaintiff is the duly appointed administratrix of the estate of deceased, and that he, the deceased, left him surviving a widow and next of kin who have suffered pecuniary loss by his death, and that under the instructions and evidence the defendant is guilty as charged in the declaration, they should find for the plaintiff, and may give such damages as they shall deem a fair and just compensation for the pecuniary loss resulting from such death to the widow and next of kin of deceased, not exceeding $5000.”

The question of contributory negligence was raised, and was a very important one in the case. This instruction entirely ignores the question of contributory negligence. It purports to be complete in its statement of what will authorize a recovery, and omits the requirement of any care or caution on the part of the deceased. In this respect the instruction is erroneous, as we have heretofore repeatedly held. Chicago Burlington and Quincy Railroad Co. v. Harwood, 80 Ill. 88; Chicago and Northwestern Railway Co. v. Dimick, 96 id. 42; Wabash, St. Louis and Pacific Railway Co. v. Shacklet, 105 id. 364; City of Peoria v. Simpson, 110 id. 294.

The instruction is objectionable in another respect, under the decision in Chicago, Burlington and Quincy Railroad Co. v. Sykes, 96 Ill. 162, in that it allowed the jury to give such damages as they should deem a fair and just compensation, regardless of the proof. Such a clause in an instruction in that case was condemned, and it was said of it: “This part of the instruction leaves the jury at liberty to find any amount not exceeding the amount claimed, without the slightest reference to any proof of the amount of damages sustained.” Where thé verdict of the jury is not more satisfactory upon the evidence than it is in the present case, this court has always insisted upon the importance of accuracy in the instructions to the jury.

For error in the giving of the above instruction, the judgment will be reversed and the cause remanded.

Judgment reversed.

Mr. Justice Walker :

I dissent from this opinion.

Mr. Justice Dickey : I do not think this instruction is objectionable. It does not purport to give all the facts necessary to warrant a verdict of guilty. Its purpose was to show that certain proofs as to plaintiff being administratrix, and as to there being next of kin who suffered pecuniary loss, were necessary to a recovery at all, and to give the measure of damages in case plaintiff otherwise made out the case alleged in the declaration, which included the exclusion of contributory negligence. I incline to think the judgment ought to be reversed upon other grounds, which I have not time to specify at present; and as a majority sustain this opinion, it may not be important that I should do so.


author: Mr. Chief Justice Schoheteld

text:
    The Culbertson & Blair Packing and Provision Company v. City of Chicago et al.

      Filed at Ottawa November 17, 1884.

    . 1. Evidence — proof as to value of lot of ground — of the mode — in suit to recover for damage to the lot. In a suit to recover damages claimed to have resulted to a city lot from the erection of a viaduct in a street adjacent thereto, on the question of the value of the lot, it having no market value, the price at which similar property had been sold shortly before, in the same vicinity, may be shown by witnesses.
    2. Same — proof of value of lot by inspection of the jury. In assessing the damages a lot is claimed to have sustained in consequence of the constraction of a viaduct in a street adjacent thereto, where the jury, by consent of parties, view the premises themselves, they may act upon the knowledge thus acquired by inspection.
    3. Actions — damage to adjacent property owners from public improvement in a street — liability therefor, upon whom it rests. The mere contributing of material aid by a private individual to a city, to enable the latter to execute a public work not unlawful in itself, is not necessarily attended with liability on the part of him who extends such aid, for injury that may thereby result to private rights.
    4. So where a railway company entered into a contract with a city, by which the former agreed to pay a given sum on the cost of a viaduct proposed to be constructed in a street, there being no illegal motive in tendering such aid to the city, it was held, that the railway company could not be held jointly liable with the city in tort for a private injury to adjoining property caused by the viaduct. _
    5. A city, alone, has authority to construct a viaduct in a street, and when one is so constructed by the city, even when done under the joint superintendence of a public official of the city and a chief engineer of a railroad company, and the company paid a part of the price of the improvement, it was held, that the viaduct was still public property, belonging to the city alone. The aid furnished by the railway, in such case may be treated as a mere private donation.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Monroe & Tewkesbury, for the appellant:
    The ordinance of the common council, set out in the opinion, does not bind the city to save the defendant railroad company from all damages that might result to the property of the plaintiff in consequence of the erection of the viaduct, and the court below erred in instructing the jury that it did. The instruction of the court as to this ordinance, if correct, was calculated to mislead the jury, and did, in fact, mislead them, and should not have been given. Webber v. Brown, 38 Ill. 87; Reader v. Purdy, 41 id. 279; Nichols v. Mercer, 44 id. 250; Ten Eyck v. Harris, 47 id. 268.
    If an instruction is objectionable, and the natural effect would be to mislead the jury, when the facts are controverted, the verdict should be set aside. Adams v. Smith, 58 Ill. 417; Carter v. Carter, 62 id. 439; Herrick v. Gary, 65 id. 101; Frantz v. Rose, 89 id. 590.

      Mr. F. S. Winston, and Mr. B. J. Habkness, for the appellees:
    The entire effect of a structure, — not a portion, — should he considered, beneficial as well as injurious. Page v. Railway Co. 70 Ill. 324; Shawneetown v. Mason, 82 id. 337; City of Elgin v. Eaton, 83 id. 585; Railroad Co. v. Hall, 90 id. 42.
    By consent of parties the jury went upon the premises and acted from their own observation. This action practically made their verdict an award.
    The view of the premises is not the only competent evidence, but is sufficient to sustain the verdict even were no other evidence produced. Railroad Co. v. Sawyer, 71 Ill. 361; Railroad Co. v. Barnum, 107 id. 160; Green v. Chicago, 97 id. 370.
    That evidence of actual sales of property in the locality, or similarly situated or of similar character, constitutes the very best evidence in cases of this character upon the question of value and of damage, has been repeatedly held by the courts. Railroad Co. v. Haller, 82 Ill. 208; White v. Hermann, 51 id. 243; Railway Co. v. Maroney, 95 id. 179; Shattuck v. Railroad Co. 6 Allen, 115; Edmunds v. Boston, 108 Mass. 535; Railway Co. v. Railway Co. 3 Allen, 142.
    As is said by the court in Railroad Co. v. Haller, supra, the Pennsylvania company did not, by paying $14,000 towards the erection of this viaduct, thereby render itself liable for the consequential damages resulting therefrom. Nevins v. City of Peoria, 41 Ill. 502; City of Quincy v. Jones, 76 id. 231; Murphy v. Chicago, 29 id. 280; City of Chicago v. Rumsey, 87 id. 350.
    The rule is well stated by Cooley, in his work on Torts, on page 140.
   Mr. Chief Justice Schoheteld

delivered the opinion of the Court:

This was an action on the case, by .appellant, against appellees, for damages sustained to property in consequence of the construction of a viaduct, in Eighteenth street, over the tracks of the Pittsburgh, Fort Wayne and Chicago Railway Company. Judgment was rendered in the trial court, in favor of appellant, against the city of Chicago alone, for $5000, and that judgment, having been affirmed on appeal to the Appellate Court for the First District, is brought before us, by the present appeal, for review.

The contest in the Appellate Court, whether the judgment is sustained by the evidence, having been determined against appellant, it, of course, remains only for us to inquire whether there is such error in the rulings occurring during the trial, in regard to the law, as will authorize a judgment of reversal.

It is contended the Superior Court erroneously allowed the witness Pierce to testify as to the price for which a certain lot or piece of property was sold, without testifying as to the value of that lot or of that here affected; and the witness Crawford to testify as to amounts paid by the Western Indiana Railroad Company for lots lying east of the Chicago river. It does not appear that this property had a regular market value, like a commercial article, and mere opinions of its value are shown, by the evidence preserved, to be as variant as the different tastes and fancies of the witnesses. From the very necessities of the case, actual sales of property in the vicinity, and near the time, are competent evidence, as far as they go. On cross-examination, all circumstances can be drawn out, showing that the given sale fails, and how much, of being a fair criterion of value. We think there was no error in the admission of this evidence. (St. Louis, Vandalia and Terre Haute Railroad Co. v. Haller, 82 Ill. 208; White v. Hermann, 51 id. 243; Chicago and Western Indiana Railroad Co. v. Maroney, 95 id. 179.) It is much less likely that such evidence can have produced harm in cases like the present, where, as was here done, the jurors themselves visit the property and form their opinions.

Appellant asked, and the court gave, this instruction, corroborative of that view:

“The court instructs the jury, that as the parties to this action, by mutual consent, allowed the jury to view the premises in question, and the viaduct, they have the right, in finding their verdict, to take into account such facts as they learned by viewing the property, as to whether the construction of the viaduct permanently depreciated or increased the market value of the property in question.

—And the language is sanctioned by Mitchell v. Illinois and St. Louis Railroad and Coal Co. 85 Ill. 566; Green v. Chicago, 97 id. 370; Peoria, Atlanta and Decatur Railroad Co. v. Sawyer, 71 id. 361; Peoria and Farmington Railway Co. v. Barnum, 107 id. 160.

Objection is also urged that the Superior Court erred in refusing to allow appellant to prove the size and width of property best adapted to warehouse and transportation purposes. We do not think any serious harm to appellant could have resulted from this ruling. The nature and character of the property, and its adaptation, had been previously sufficiently proved.

The most important question' presented by the record is, whether the court erred in its instructions with regard to the connection of the Pennsylvania company with the case, and as to the liability of that company. On the trial, evidence was given of an ordinance of the city of Chicago, as follows:

“ Whereas, on the 22d day of March, A. D. 1876, the city council of the city of Chicago did make an appropriation towards the erection of a viaduct over the tracks of the Pittsburgh, Fort Wayne and Chicago Eailway Company at Eighteenth street, in the said city of Chicago; and whereas, the Pennsylvania company, (lessee of the Pittsburgh, Fort Wayne and Chicago railway,) through its general manager, has agreed, in writing, to pay, on account of said improvement, an aggregate sum of fourteen thousand ($14,000) dollars : Therefore, be it ordained by the city council of the city of Chicago:—
“Section 1. That the department of public works is hereby directed to proceed to erect and complete; within one year from the passage of this ordinance, a good and sufficient viaduct, with stone abutments and iron frame-work, over the tracks of the Pittsburgh, Port Wayne and Chicago Eailway Company at Eighteenth street, in said city: Provided, the said railway company shall agree, by consenting to this ordinance through its authorized officer, to pay in monthly installments, upon the estimates of said department of public works and of the chief engineer of - said railway company, to be issued as the work progresses, an aggregate sum of fourteen thousand ($14,000) dollars.
“See. 2. That said viaduct shall be built under the joint superintendence of said department of public works and chief engineer of said railway company, in accordance with the plans and specifications now on file in the office of said department of public works.
“See. 3. All expenses, of every nature' and kind, in excess •of said fourteen thousand ($14,000) dollars shall be borne by the said city of Chicago. Said city shall maintain the approaches to and floor of said viaduct at its own expense, and also do all ordinary repairs. The said city of Chicago shall save the said railway company harmless for any claim for damages by any person injured through the erection of said viaduct, and from all expenses connected with the erection of the same exceeding said sum of fourteen thousand ($14,000) dollars: Provided] however, the said chief engineer’s services shall be rendered at the expense of said railroad company.
“Sec. 4. This ordinance shall be in force from and after the acceptance of the provisions hereof by said railway company, by its authorized officer or officers.”

And also of a letter, in the words following:

“Sir — On condition that .the city of Chicago will, by ordinance, (copy of which is hereto attached,) provide for the erection of a viaduct over the tracks of the Pittsburgh, Fort Wayne and Chicago Railway Company, at Eighteenth street, according to plans and specifications now on file in the office of the department of public works in said city, this corporation will contribute, and obligate itself to pay, the sum of $14,000 towards the expense of the construction of said work, to be proportionately expended as the work progresses, on the estimates of the department of public works and of the chief engineer of this company.
“Respectfully,
J. D. Layng, Gen. Manager.”

Proof was also made that the Pennsylvania company paid to the city $14,000 on account of the construction of the viaduct, and that the plans for its construction were submitted to the engineer of the Pennsylvania company, and were satisfactory to him.

Appellant thereupon asked the court to instruct the jury as follows:

“The court instructs the jury, as a matter of law, that the ordinance offered in evidence contains no contract embracing the suit brought by the plaintiff, and the jury will disregard any contract claimed by the counsel for the city, that it alone is liable for the damages in this case to the plaintiff. ”

But the court refused to give the instruction, and, to the contrary, gave the following, at the instance of the city:

“The jury are instructed that they should not permit the fact that the Pennsylvania company is a co-defendant with the city in this case, in any way to prejudice their minds as against the city; and the jury are further instructed, that by the ordinance of April 15, 1878, introduced in evidence by the plaintiff, if it appears by the evidence that the railway company assented thereto, the city would be bound to save the railway company harmless against any damages which may be recovered by reason of the erection of the viaduct. ”

We do not conceive that it was a material inquiry whether the city was bound to save the railway company harmless against damages to be sustained in consequence of the construction of the viaduct. That could only be material in a suit brought by the raihvay company against the city for indemnity. It can hardly be necessary, and yet can do no harm, to call attention to the fact that the liability of the defendants, here, rests upon tort, and not upon contract. If both have been guilty of a tort, to the injury of the plaintiff, both are liable, no matter what contracts there may be between them as to indemnity.

We come, then, to the inquiry, does the fact that the Pennsylvania company pays $14,000 towards the expenses of constructing this viaduct, and stipulates that it shall be done under the joint superintendence of the department of public works and the chief engineer of the company, make the company liable for damages sustained by adjacent property holders.

The city alone has authority to construct a viaduct in the street, and -we will not presume, in the absence of proof, that authority has • been attempted to be surrendered to others. There is no such proof here. The evident purpose of requiring the work to be done under the joint superintendence of the department of public works and the chief engineer of the company, is, that the work may be done to the satisfaction of the company as well as of the city, — in short, to avoid prejudicing, unnecessarily, the rights and interests of the company. But the improvement is still the improvement of the city, the property is its property, and the supervision is confided solely to it. It is undoubtedly true that a contract between a city and another party, to induce the city to exercise its public powers for the benefit of a private party, is contrary to public policy, and would not be enforced; but there are many cases where the public necessity for the making of a given improvement is beyond question, — where the power to make it exists, and the duty to make it is clear, beyond doubt, if, only, there be the financial ability. In such cases, if private parties voluntarily contribute to lighten the public burthen, it can not be said the character of the work has, in any degree, been changed. All there is accomplished by the private donation is, financial ability is given where before it was wanting. Nor can the fact that private parties are benefited by the improvements, be of material significance. It rarely happens in cases of public improvements that private parties are not benefited, — it is only important that the improvement is not in the interest of private parties instead of the public. Thus the court said in Townsend v. Hoyt, 20 Conn. 1: “We must not be considered as assenting to the proposition that a promise by individuals to pay a part of the expense of public improvements ordered by public authority, is, of course, illegal and void. We think the amount of a public burthen, or the cost of a public improvement, may properly enough enter into the question of expediency or necessity. A canal, a railroad, a bridge, a new street, a public square, or a sewer, is called for. If made in one way, or in one place, it will be much better for the public, though more expensive; but individuals especially benefited stand ready, by giving their land, their money or their labor, to meet the extra expense. Will these promises be void, as being without consideration or against public policy? We think not. ”

There being, then, nothing in the contract itself necessarily illegal, and there being no evidence aliunde the evidence of the contract to show an illegal motive or purpose in either of the parties, how can the company be held liable as a tort feasor for merely contributing material aid to the execution of a work not unlawful in itself, and not necessarily attended with injury to private rights? The city might lawfully construct the viaduct, and although it should damage private property, it could not be enjoined from its construction, but the party injured would have his remedy in an action at law, after the completion of the work. (Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 74.) Surely, it could not reasonably be intended because A agreed to give B $100 to aid him in prosecuting a work that he might lawfully prosecute, that he intended he should prosecute the work unlawfully. The city, here, might have adjusted the plaintiff’s damages by a proceeding under the Eminent Domain act, before proceeding with the work, or it might respond in damages after the work was completed; but in either event it was responsible, and the work was lawful. Could it be pretended that every individual along the street who should contribute to this work is liable in tort for all the evil consequences flowing from the work, would it not follow, if the money were raised by special assessment a like liability would exist ? If the mere contribution of material aid fixes responsibility, what principle excludes the one and includes the other ?

In speaking of unintended wrrongs, Cooley, in his work on Torts, on page 140, says: “Passing now to the class of unintended wrongs, we find them to consist most commonly in the neglect to perform some duty which the party has assumed by contract, or which the law has imposed because of official position or of some special relation. In such cases several persons may be found blamable, but it does not follow that all can be held liable to the party wronged. The rule is general in such cases that the legal wrong is chargeable only to the party who, by his contract, assumed the duty, or upon whom the law imposed it, — in other words, as the breach of duty constitutes the wrong, the person who, in legal contemplation, is a wrongdoer, is the person who was burdened with the duty, and who has failed in its performance. ” The city, in the present case, is the party burdened with the duty, and who has failed in its performance. It, alone, could go upon the street and erect the viaduct. It, alone, could take and damage and condemn property for that purpose, or lawfully proceed with the work without being subject to injunction, being liable for the payment of all damages upon its completion. The position contended for by appellant would make every donor to the capital of a railroad company liable jointly with the company, or severally, every time the company should take or damage property in the construction of its road without having first obtained the right to do so by proceedings under the Eminent Domain act. That such a consequence is not to be regarded as the proximate consequence of the act, is, we think, too clear to admit of discussion.

The instruction given at the instance of appellees correctly says that the jury should not permit the fact that the Pennsylvania company- is a co-defendant with the city in the ease, to prejudice their minds against the city. The balance of the instruction should, in our opinion, have been refused as irrelevant, but it is impossible that giving it can have prejudiced appellant, because there is no other hypothesis, sustained by evidence, upon which the Pennsylvania company can be held liable, — and so, in effect, the court ruled in giving appellees’ instruction.

• We see no cause to disturb the judgment below, and it will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Walker Per Curiam :

text:
    J. R. Askew v. J. T. Springer.

      Filed at Springfield Sept. 27, 1884
    Rehearing denied January Term, 1885.

    1. Partnership — duties and compensation of partners. On the formation of a partnership, all the members of the firm are required to devote their time, skill and efforts to the accomplishment of the objects for which it is formed, unless there be an agreement to the contrary; and in the absence of any agreement, neither partner has the legal right to charge the firm or other partners for services rendered in carrying on its affairs.
    2. Same — right of one partner to rescind contract. If partners, in the buying of land, and its sale in lots, agree among themselves that the partner making the sales shall receive a certain commission or per cent upon all such sales, neither one will afterward have the right to rescind such agreement without the assent of all. One of two partners can not terminate such a contract by notice to the other. The fact that no claim is made for such per cent during the continuance of the firm, will not preclude him from receiving the same on a settlement of the partnership account.
    3. Same — compensation of active partner not lost by a failure to make claim on settlement. Where it is agreed that a partner making sales of partnership lots shall receive a commission of five per cent on the amount of all sales he makes, the fact that he makes no claim for such commissions during the continuance of the firm, and a settlement is made of all other prior transactions, without including his claim for compensation, will not preclude the partner entitled to compensation under the contract, on a final settlement, from claiming it.
    4. Limitation — when the statute begins to run as between partners. The Statute of Limitations does not begin to run as to matters of account between partners, until after the partnership has ceased to exist. The Statute of Limitations does not begin to run until a right of action has accrued.
    5. Same — former decision. The case of Quayle v. Guild, 91 Ill. 378, is not to be understood as holding a different rule. There, one of the partners had died, and the partnership was thereby dissolved, and it was held the statute began to run from that time.
    6. Costs — in chancery — discretion. The matter of costs in a chancery suit, except on dismissal of the bill, is discretionary with the trial court, and will not be reviewed by this court.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. W. P. Gallon, for the appellant:
    There is no presumption in favor of a decree, as in case of a judgment at law. Danforth v. McIntyre, 11 Bradw. 417.
    The entire claim for commissions is barred by the Statute of Limitations, the defence being fully set up by the answer. 1 Wait’s Actions and Defences, 153.
    When the demand is of a legal nature, and might be cognizable at law, it is governed by the same limitations as are prescribed by the statute in regard to actions in courts of common law. Bruen v. Hone, 2 Barb. 586.
    In many, and perhaps most, cases, courts of equity act upon the analogy of the limitations at' law, while in others they act not so much in analogy as in obedience to the statute. Wright v. Leclaire, 4 Iowa, 420.
    In cases of concurrent jurisdiction, such as matters of account, etc., where the parties may proceed either at law or in equity, the Statute of Limitations applies with equal force in both courts. (7 Wait’s Actions and Defences, 229, 230.) In this case appellee had his remedy against appellant by action of account. (Rev. Stat. 1874, chap. 2, par. 2.) Indeed, some courts have gone further. In Leslie v. Rosson, 39 Miss. 368, the court say: “A court of equity will not entertain a bill for an account, even between partners, when the items, both of credit and debit, arise from a special contract, and are few, and are for fixed and definite sums, and easily ascertained by the verdict of a jury.” But as conclusive upon this question I cite Quayle v. Guild, 91 Ill. 378, -where the precise question under discussion is squarely presented, and as squarely decided. Also, Hancock v. Harper, 86 Ill. 445; Collyer on Partnership, sec. 374; Daniell’s Ch. Prac. (Perkins’ ed.) 664, 665.

      Messrs. Springer & Dummer, for the appellee:
    Where a fact is stated in a bill and admitted in the answer, the admission is conclusive, and can not be contradicted by evidence. Weider v. Clark, 27 Ill. 251; Knowles v. Knowles, 86 id. 1.
    When a proposition is made and assented to, the law will raise the inference that both parties understood it alike; and if such is not the fact, the burden of showing a misunderstanding is upon him who asserts it. Brant v. Gallup, 5 Bradw. 262.
    The contract for commissions could not be rescinded by only one of the parties.
    The Statute of Limitations has no application to this case.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill in chancery, filed by Springer, against Askew, for the dissolution of a partnership, a settlement of partnership accounts, and for a partition of lands belonging to the firm.

In 1866 the parties purchased forty-four acres of land adjoining the city of Jacksonville, for which they paid $13,375. They surveyed and platted the land into city lots, for sale. In this they formed a partnership, and it was agreed that they should share both in the profits and losses in the sale of the lots, and that the partner making sales should receive five per cent commissions. Complainant claims that the partner making such sale should receive such commissions out of the other partner’s share, on the division of the proceeds of the sale; but defendant claims the agreement was to take the per cent from the gross proceeds of the sale. Defendant made no sales, but all sales of the property, but one, were made by complainant. Soon after the first sale was made by complainant, the parties met to divide the proceeds, and each contended for his version of the contract as to the commissions. Defendant protested vigorously against complainant’s claim, but finally yielded, but claims that he notified eomjilainant the agreement should then end. It also appears the sales amounted to about $23,000, and it is not claimed that complainant has received more than $150 commissions. In 1878 the parties came to a settlement of all partnership matters except commissions, which were not taken into account or even mentioned. The parties also agreed on a partition of the unsold partnership property, but some difficulty occurred in reference to the deeds, and it fell through. On a hearing, the circuit court decreed a partition, which was made, and to which no exceptions are urged. The case was referred to a master, to state an account, who reported as due to complainant, from defendant, the sum of $304.37. Both parties filed exceptions to the report, and on hearing further evidence, in open court, the exceptions were overruled, and the court decreed that defendant pay complainant $245.37, and decreed that the partnership be dissolved, and that defendant pay two-thirds of the costs. Defendant appealed to the Appellate Court for the Third District, where the decree was affirmed, and he appeals to this court.

The only question contested in this court is the correctness of the statement of the account and the decree for the costs. The doctrine has been repeatedly announced by this court that on the formation of a partnership all the members of the firm are required to devote their time, skill and efforts to the accomplishment of the objects for which it is formed, unless there be an agreement to the contrary. It is also well settled in this court that in the absence of all agreement to the contrary, neither partner has the legal right to charge the firm or the other partners for services rendered in carrying on its affairs. We must therefore look to the agreement of the partners in this case for authority to charge commissions. or a percentage on sales made by appellee.

The evidence most satisfactorily establishes an agreement that the partner selling the firm property should be entitled to a commission, but the partners differ as to its rate, and their evidence on the question is irreconcilably contradictory. When they came tó divide the proceeds of the first sale, appellee contended the agreement was that he should have ten per cent of the proceeds, — or, what is the same thing, that appellant should pay him five per cent of his half. Appellant claimed that it was to be only five per cent of the proceeds, or two and one-half per cent on his half; and he claims that he then notified appellee that the agreement was at an end. If there was an agreement as either party understood it, then neither had the power to rescind it without the assent of the other. This proposition is axiomatic. The notice, therefore, did .not terminate the agreement. The dispute was whether the commissions should be at the one rate or the other. Appellant does not claim that he refused to pay any commissions in the future, but he was protesting that he would not pay five per cent of his share; but had he refused to pay any commissions, that would not have abrogated the agreement that commissions should be charged. Had appellee understood that the agreement to pay commissions was at an end, it is not probable that he would have devoted his time, skill and energy in making sales, when appellant contributed nothing in the way of attention to the property, or' made any effort for its sale. It was equitable and just that such or some other agreement should have been made to compensate appellee for his time and effort in making sale of the property, when appellant was doing nothing. Appellant had contributed no more means for the purchase of the land than had appellee; nor has he shown any reason why it would be fair, equitable or just that appellee should perform all the labor and contribute all the effort and skill in selling the property, and divide the profits equally with him. This being true, we will not infer, on slight evidence, that appellee had agreed to abandon the agreement that he was to sell with commissions, or that appellant understood he was to have no compensation for his attention to'the property, or for its sale. Nor will the fact that appellee made no claim for commissions daring the continuance of the partnership, preclude him from claiming them under the agreement. Nor does the fact that a settlement was made of all other prior transactions without including this claim for commissions, preclude appellee from asserting his claim, inasmuch as other lands remained to be sold, and the affairs of the firm were not closed. Nor does the plea of the Statute of Limitations apply because the charges were, some of them, made fifteen or sixteen years since. The partnership was still in existence, and its affairs were not closed. Until that has ceased to exist the statute does not begin to run. If it were otherwise, no account could be taken of long partnerships back of the period of the bar of the statute. Until a dissolution or an accounting by the partners neither has the right to sue for an accounting or for a balance, and the statute never begins to run until an action accrues. The evidence warrants the decree.

As to the question of costs, we again, as. we have many times before, commencing many years since, only refer to the lStli section of the Cost-act. .It provides that on the dismissal of the bill the defendant shall recover costs, but in all other cases in chancery not otherwise directed by law, it shall be in the discretion of the court to award costs, or not. This, as we have many times said, is purely in the discretion of the court, over which we have no control.

The decree of the Appellate Court is affirmed.

Decree affirmed.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Per Curiam :

We have considered the petition for a rehearing with all the care the time at our disposal will permit, and have reconsidered "all the questions involved, and have reached the same conclusion heretofore announced.

It is urged that the case of Quayle v. Guild, 91 Ill. 378, is conclusive of this case, — that it holds that a bill for an account is barred in the usual period, notwithstanding the partnership has not terminated. This is a misconception of the doctrine of that case. There, one of the partners had died, which, under all the authorities, terminated the partnership, and it was held that the statute began to run from that time. That case is in harmony with what is said in the opinion heretofore filed herein.

It is urged that the court erred in allowing appellee commissions on the sale of a portion of the lots by Wilson, and appellee has thereby received $37.50 too much. To this it is sufficient to say, that the court, on a hearing on the master’s report, reduced it from $304.37, to the sum of $245.37. Thus the sum returned by the master was reduced $59, and as nothing appears to the contrary, we must presume the reduction embraced this item. It was more than large enough to cover this error, and unless it appeared the reduction was made for some other reason, we must presume the error was thus corrected.

The rehearing must be denied.

jRehearing denied.


author: Mr. Justice Sheldon

text:
    The Board of Education of Galesburg et al. v. Seymour Arnold.

      Filed at Ottawa November 17, 1884.

    1. Board of education of Galesburg—power to employ teacher not having certificate of qualification—who may determine qualifications of teachers. The provisions of sections 50 and 52 of the School law, which require every teacher in any of the common schools, at the time of his employment, to have a certificate of qualification to teach, and forbids his being paid anything out of the school fund or other public fund unless he has first obtained such certificate, applies to the board of education of the Galesburg school district, and teachers employed to teach in such district.
    2. There is nothing in the special act of February 19, 1859, establishing a system of graded schools in the city of Galesburg, which gives the board of education power to examine and determine the qualifications of teachers. This power is not given by implication from the power of exclusive management and control, and the power to appoint teachers. The power to employ teachers is to be limited to qualified teachers.
    3. Section 80 of the general School law, which provides that in all school districts having a population of not less than two thousand the board of education may examine and employ teachers,.has no application to a school district created by a special act of the legislature.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Willoughby & Dougherty, for the appellants.
    Mr. F. S. Murphy, for the appellee.
    Messrs. McKenzie & Calkins, pro bono publico.

   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit in chancery, heard on demurrer to a bill filed by Seymour Arnold, a tax-payer and resident, against the board of education of Galesburg school district, and the treasurer of the city of Galesburg, to enjoin the board from ordering the payment to George H. Bridge, a teacher in the public schools of said district, of any money for services rendered by Bridge, as such teacher, since the 1st of September, 1883, and the treasurer from paying Bridge out of any funds belonging to the district, for such service. A temporary injunction having been issued on the filing of the bill, on final hearing the injunction was made perpetual. The defendants took this appeal.

The single ground on which this relief was sought in the bill, is, that although Bridge was regularly employed as a teacher in the public schools of Galesburg school district, he had obtained no certificate of qualification from the county superintendent of schools, and that therefore the board of education had no right to employ him as such teacher.

Section 50 of the School law (Rev. Stat. 1874, page 963,) provides that “no teacher shall be authorized to teach a common school, under the provisions of this act, who is not of good moral character, and who does not possess a certificate as required by this section. It shall be the duty of the county superintendent to grant certificates to such persons as may, upon due examination, be found qualified, ”—and prescribes the form of the certificate. Section 52 provides that “no teacher shall be entitled to any portion of the common school or township fund, or other public fund, or be employed to teach any school under the control of any board of directors of any school district in this State, who shall not, at the time of his employment, have a certificate of qualification, obtained under the provisions of this act. ”

It is urged that this general School law has no application to the Galesburg school district, as it exists under a special act. The act entitled “An act for the establishment of a system of graded schools in the city of Galesburg, ” approved February 18, 1859, by its first section enacts that all the territory within the limits of the city of Galesburg “is hereby erected into a common school district, to be known as ‘Gales-burg School District.’ ” Section 4 provides that “the public schools of said district shall be under the exclusive management and control of a board of education, to consist of the mayor of said city, (who shall be the president of the board,) and one director from each ward of the city, to be known as ‘the Board of Education of Galesburg School District.’ ” The fifth section, among other powers, gives the board power “to establish, conduct and maintain a system of public graded schools, to be kept in one or more buildings in said district, * * * to determine the number, make the appointment, and fix the amount of compensation of teachers within said district, and of all other agents and servants.” There is certainly throughout this special statute no power directly given to examine or determine the qualifications of teachers. It is claimed to be given by implication, from the power of exclusive management and control, and the power to appoint teachers. This court, in Speight v. The People, 87 Ill. 601, in passing upon the import of the word “management, ” used in the constitution in the expression, “management of common schools, ” held “that it relates to the conduct of the school in imparting instruction. ” The power to employ teachers may have sufficient scope for its exercise when limited to qualified teachers,—such as are teachers under the law. We do not think the power of exclusive management and control, nor that of appointing teachers, necessarily gives the right to examine and pass upon- the qualifications of teachers, and that they may well consist with the power being in the county superintendent,e alone, to examine teachers, and certify as to their qualifications.

Stress is laid upon the particular words, “under the provisions of this act,” used in the language of section 50, that “no teacher shall be authorized to teach a common school, under the provisions of this act, * * * who does not possess a certificate as required by this section, ” as showing that it is only to common schools established under that general law, to which the requirement applies, and that it does not apply to common schools existing under a special law. But this section is to be construed in connection with section 52, which is general and unlimited, that “no teacher shall be entitled to any portion of the common school or township fund, or other public fund, or be employed to teach any school under the control of any board of directors of any school district in this State, ” who shall not, at the time of his employment, have a certificate of qualification. The teacher in the Galesburg school district is paid, at least in part, from the common school fund. He must then, in .order to be so paid, or from other public fund, be subject to an examination by the' county superintendent, and to the provision, in this respect, of the general School law. But here, again, there is reliance upon particular words, in the further provision in this last section, “or be employed to teach any school under the control of any board of directors of any school district in this State. ” It is said “board of directors” means only school directors under the general law, and can not be made to apply to. this board of education under this special act. Under the general law, school directors are nowhere termed a board of directors, but their corporate name is by the act made to be “School directors of district No.” etc. This board of education the act makes to consist of the mayor and one director from each ward, to be known as the “Board of Education of Galesburg School District. ” All the persons composing the board, except .the mayor,' are called by the act “directors; ” and we think the designation, “any board of directors” of any school district, may well be held to include this board of education of Galesburg school district, even if it does not apply to it with as much appropriateness as to “School directors of district No.” etc.

We do not find, then, as insisted by appellants’ counsel, that this requirement of the qualification of teachers is, by the terms of the general School law, confined to the schools existing under that law. Section 80 of the general law provides, in all school districts having a population of not less than two thousand, for the election of a board of education, and to such board, among other powers, is given the power “to examine and employ teachers. ” But in this special act we are considering, there is no such power to examine teachers, given to the board. The special act makes the Galesburg school district which it erects, a common school district. The public schools taught in it are common schools, and we perceive no reason why the general law of the State for the securing of competent teachers for the common schools, and providing for the examination of such teachers, and their being found qualified by the county superintendent of schools, should not apply to the common schools of Galesburg as well as to the other common schools of the State. We find nothing in the special act to interfere therewith.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    The Chicago, Burlington and Quincy Railroad Company v. Francis M. Martin.

      Filed at Ottawa November 17, 1884.

    1. Evidence—in suit for personal injury—to show the plaintiff suffered pain from the injury. On the trial in an action for a personal injury, the plaintiff called his attending physician, who testified that he had examined the plaintiff, who stated the symptoms, and that he had suffered pain. The witness was then asked whether the plaintiff was feigning or “making believe,” to which he answered, “No, sir; I know he did not, from examination and tests:” Held, that, with the explanation as to his means of knowledge, there was no error in the admission of the evidence. The answer could only be understood as a deduction or conclusion from the examination and tests made.
    2. In such a case, the attending physician, having every means of observing the symptoms, may be asked if the patient suffered pain, and his answer in the affirmative can be considered only as an opinion based upon actual facts and tests. It does not even require an expert to know the existence of pain from the nature of the injury and the patient’s outward manifestations.
    Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.
    Mr. H. Bigelow, for the appellant.
    Mr. Charles Dunham, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee commenced an action against appellant to recover for an injury sustained, as he claims, by reason of the negligence of appellant’s servants. It is claimed that in repairing the platform of appellant’s depot, its servants left it in a dangerous condition, and appellee, in passing over it, fell, and was seriously injured. On a trial the jury found a verdict for plaintiff for $3560. A motion for a new trial was overruled, and judgment rendered on the verdict. Defendant appealed to the Appellate Court for the Second District, where the judgment was affirmed, and the ease is brought to this court, and a reversal is asked.

All controverted facts in the case, including that of the amount of damages, have been found by the jury, and the statute has placed them beyond consideration by us. The facts, then, being conclusively found, we shall only consider the legal questions raised on the record.

It is first urged that the court erred in permitting a question to be asked, and answered by Dr. Tait, a witness called by appellee. He had testified that he had examined appellee, who stated his symptoms, and that he had suffered pain, when witness was asked by appellee’s counsel: “Well, was he feigning them, or making believe?” The answer was: “No, sir; I know he did not, from examination and tests.” Appellant claims this was error,—that he might be asked for his opinion, but not to state positively what he nor any one else could certainly know; that one person can not know whether another suffers pain; that he may have an opinion, but can not have knowledge on such questions. This may be abstractly true, but there are laws of nature uniform in their action. Experience teaches that fire applied to any portion of the human, and, in fact, to the animal, organization, will produce pain. This effect is so nearly uniform that it may be regarded universal. There are but few exceptions, and they depend upon nervous derangement amounting virtually to the destruction of the sense of feeling. All persons would unhesitatingly say that they know the application of a high degree of heat to the animal system will produce pain. We know that it does on ourselves, and when applied to others we observe the same manifestations as produced on ourselves,— hence we may say we know it produces pain on others; yet we have not, nor can we, feel their pain, nor can we measure its intensity, but we may say, from the cause and manifestations, that we know another suffers pain. When a person is suffering great pain, there are manifestations that it does not

require an expert,—if there can be one in such cases,—to determine that pain exists. Had the answer, “no, ” remained unexplained, it may be there would have been error; but the witness explained that he knew by examination, and tests he had used. What could the jury have concluded but his answer was a deduction from the examination and tests he employed, and from the manifestations of pain he observed ? The jury, from this qualification, could not have supposed his answer implied absolute knowledge, but that his answer was based on, and was the result of, the examination and tests referred to in the qualification to his answer. We are of opinion that this evidence could not have misled the jury. It requires no great degree of intelligence to correctly conclude that his answer, thus limited, was but a deduction from the examination and tests he had employed.

It is also urged that it was error to permit this witness to testify that appellee suffered pain,—that, at the most, the witness could but give his opinion. A physician, or a nurse attending a patient, can, from all the circumstances surrounding the case, determine with almost precision whether the patient suffers pain. They can determine with almost absolute certainty. We are not, therefore, prepared to hold that the attending physician, having every means of observing all the symptoms, may not be asked whether the patient did not suffer pain. We have held that the physician may testify to what the patient said in reference to. suffering pain. Such . evidence is more liable to be feigned than the physician’s or nurse’s observation. Whilst this evidence, like the other, should have been confined to the opinion of the witness, the jury must have consideredjt as being but opinion, although more positive in form. All would have so understood the answer. We are of opinion that if it was error, it was such as could not, nor did it, prejudice appellant.

Finding no error in the record, the judgment of the Appellate Court is affirmed. _

T , x _ 7 Judgment affirmed.


author: Mr. Justice Scott

text:
    The United States Distilling Company v. City of Chicago.

      Filed at Ottawa November 17, 1884.

    1. License fee, as distinguished from a tax. A license fee imposed by a city or village in pursuance of article 5, chapter 24, section 1, subdivision 91, of the Revised Statutes of 1874, upon certain avocations, trades, business or occupations carried on within the corporate limits of such city or village, is not a tax, within the constitutional sense of that term, and is not repugnant to section 1, article 9, of the constitution.
    2. Same—as to brewers and distillers. An ordinance of a city incorporated under the general Incorporation act, which provides that no person, firm or corporation shall carry on or conduct the business of brewer or distiller within the limits of the city without first paying a license therefor in the sum of $500 per annum, under a penalty of not less than $100 nor more than $200 for each and every offence, (meaning that each brewery and each distillery shall pay a license fee of $500, respectively,) is valid and binding.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Edsall & Edsall, and Messrs. Quigg & Tuthill, for the appellant:
    It is held in this State that a distinction exists between a license fee and a tax. People v. Thurber, 13 Ill. 554; Walker v. City of Springfield, 94 id. 364; Wiggins Ferry Co. v. City of East St. Louis, 102 id.560.
    As to the distinction or difference between collecting a tax and a license fee, see Cooley’s Const. Lim. 201; Mayor v. Railroad Co. 32 N. Y. 261; Mays v. City of Cincinnati, 1 Ohio St. 268; Ash v. People, 11 Mich. 347; Ducat v. City of Chicago, 48 Ill. 172; City of East St. Louis v. Trustees of Schools, 102 id. 491.
    Police regulations must have reference to the comfort, safety or welfare of society; and what are the subjects of its exercise is clearly a judicial question. Town of Lake View v. Rose Hill Cemetery Co. 70 Ill. 192; Dunne v. People, 94 id. 122.
    A distiller is not a liquor dealer, within the meaning of those terms as used in the constitution. Overall v. Bezeau, 37 Mich. 207; Morris v. Commonwealth, 27 Pa. St. 495.
    License fees imposed in the exercise of the police power must be reasonable in amount. 1 Dillon on Mun. Corp. (2d ed.) sec. 291; Ash v. People, 11 Mich. 347; Mays v. City of Cincinnati, 1 Ohio St. 268; State v. Hoboken, 33 N. J. L. 280; Cooley’s Const. Lim. 201.
    Mr. F. S. Winston, for the appellee:
    This case involves the constitutionality of that part of the general act relating to cities, and which authorizes them to tax, license and regulate distillers, etc. Rev. Stat. chap. 24, art. 5, sub. 91.
    That a license is not a tax, in the sense in which that term is used in the constitution and statutes, has been distinctly held in the following cases: People v. Thurber, 13 Ill. 554; Firemen’s Association v. Lounsbury, 21 id. 511; Insurance Co. v. City of Peoria, 29 id. 180; City of East St. Louis v. Wehrung, 46 id. 392; Ducat v. City of Chicago, 48 id. 172; Chicago Packing Co. v. City of Chicago, 88 id. 221; Walker v. City of Springfield, 94 id. 364; Lovingston v. Trustees, 99 id. 564; City of East St. Louis v. Trustees of Schools, 102 id. 489; Wiggins Ferry Co. v. City of East St. Louis, id. 560; Cole v. Hall, 103 id. 30; Howland v. City of Chicago, 108 id. 496; Timm v. Harrison, 109 id. 593; Braun v. City of Chicago, 110 id. 186.
    The ordinance is valid under the power to tax distillers. City of East St. Louis v. Wehrung, 46 Ill. 392; Wiggins v. City of Chicago, 68 id. 372; Huck v. Railroad Co. 86 id. 352.
   Mr. Justice Scott

delivered the opinion of the Court:

This prosecution was commenced by the city of Chicago, against the United States Distilling Company, before a justice of the peace, to recover a penalty imposed by that section of the ordinance of March 5, 1883, entitled “Brewers and Distillers, ” which provides that no person, firm or corporation shall carry on or conduct the business of brewer or distiller within the limits of the city of Chicago, without first paying a license therefor in the sum of $500 per annum, under a penalty of not less than $100 nor more than $200 for each and every offence,—meaning thereby, that each brewery and each distillery shall pay a license fee of $500, respectively. On the trial in the Criminal Court, to which the cause was taken on the appeal of defendant, it was admitted defendant was a corporation, and is engaged in running a distillery within the city of Chicago, and was so engaged, without a license, prior to the commencement of this suit; and the court before whom the cause was tried, found defendant guilty, and rendered judgment against it in the sum of $100. That judgment was affirmed in the Appellate Court for the First District, and a majority of the judges of that court having made the necessary certificate, under the statute, defendant brings the case to this court on its further appeal.

Article 5, chapter 24, subdivision 91 of section 1, of the Revised Statutes of 1874, provides that city councils, and the president and board of trustees in villages organized under the general law, may have power “to tax, license and regulate auctioneers, distillers, brewers, lumber yards, livery stables, public scales, moneychangers and brokers.” This clause of the statute has been the subject of frequent construction in this court, so that most questions raised and discussed on the present record have been settled by previous decisions. It will not be necessary to enter anew upon the discussion. All that is necessary to be done, is to refer to some of the most recent cases: Howland v. Chicago, 108 Ill. 496; Wiggins Ferry Co. v. East St. Louis, 102 id. 560; Braun v. Chicago, 110 id. 186. In Braun v. Chicago, it was distinctly held a license fee imposed by a city or village in pursuance of the section of the statute cited, upon certain avocations, trades, business or occupations carried on within the corporate limits of such city or village, is not a tax, in the constitutional sense of that term, and is not repugnant to section 1, article 9, of the constitution. It has been so repeatedly and uniformly held that a license fee such as is imposed by the ordinance in this ease, is not a tax in the constitutional sense, it ought now to be regarded as settled law. The case at bar comes precisely within the doctrine of the previous decisions on this subject, and the court has no desire or inclination to reconsider the same.

A point made on the argument is, if the penalty imposed by the ordinance is to be held valid because the sum exacted is a license fee, then it is said it must be tested by principles which govern the exercise of the police power, and under that power only a reasonable fee for the license, or the labor of issuing it, can be charged. This view of the law can not be adopted. Under the comprehensive grant of power from the legislature, the city council has authority to require parties exercising certain avocations and callings, to pay a license fee for the privilege, and on observing constitutional restrictions, the amount would seem to be within the discretion of the body imposing it. Even the imposition of license fees for substantial municipal revenue has been sustained by this court in a number of cases, as in Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.