author: Mr. Justice Sheldon Mr. Justice Dickey :

text:
    William H. Hoyt et al. v. Pawtucket Institution for Savings et al.

      Filed at Ottawa June 13, 1884.

    1. Usury—interest in advance. The taking of the legal rate of interest in advance is not regarded as usurious.
    2. Same—of commissions to loan agents. Brokers negotiating loans of other people’s money may charge the borrower commissions, without thereby making a loan at the full rate of legal interest usurious, where there is no arrangement with the lender that commissions shall be charged by the agent.
    3. Sale under trust deed—notice thereof—sufficiency, as showing amoumt dme. A notice of sale under a deed of trust contained this clause: “Default has been made in the payment of part of the interest note due November 22, 1876, and the whole of the interest note due May 22, 1877; and whereas, the legal holder of said note and unpaid interest coupons (the Pawtucket Institution for Savings) has thereupon exercised its option of declaring the whole principal sum, and the interest thereon, due and payable; and whereas, default has been made in the payment of the principal and interest so become due and payable, ” etc.: Held, that the notice showed, with reasonable certainty, that the amount claimed to be due was the principal sum, the interest note due May 22, 1877, and part of the interest note due November 22, 1876, and stated substantially the amount due. As to the part due on the latter note the notice was indefinite, but, considering the amounts involved, (the principal being $5000, and the interest notes $250,) and the smallness of the sum due on such interest note, the notice was held substantially good.
    4. Same—inadequacy of price—whether so regarded. In August, 1877, real estate was sold under a deed of trust for $5250, which the witnesses placed in value at $15,000 at that time, which it appeared was much more than the property could then have been sold for, there being no market for' the property at the latter price, and no demand for such property; and it appeared that in August, 1881, when the prices had advanced, it was sold for only $12,000, and that at the time of the sale there was some $2000 of unpaid taxes against the land: Held, that there was no such gross inadequacy of price as should lend much additional strength to any alleged irregularity in the sale.
    5. Laches—as a bar to bill to set aside a sale under a trust deed. A delay of four years in filing a bill by the former owner to set aside a sale of his real estate under a deed of trust, on the ground of alleged irregularities and inadequacy of price, when he knew of such sale shortly after it was made, and neglected to redeem the property by paying the sum due from him, such privilege having been offered him by the purchaser, and he allowed the taxes to accumulate against the property to a large amount, was held such laches as to bar the relief sought. A party, to avoid a sale of his land for mere irregularities, must act with promptness, and not wait to speculate upon the chances of a rise in the value of the property.
    Writ of Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Messrs. J. I. & F. I. Bennett, and Mr. R. H. Patton, for the plaintiffs in error:
    If Taylor was the agent of the bank in making the loan,— and that he was seems clear,—then the payment of $250 to him above the legal rate of interest constitutes usury. Payne v. Newcomb, 100 Ill. 611; Rogers v. Buckingham, 33 Conn. 81; Condit v. Baldwin, 21 N. Y. 219; Bell v. Day, 32 id. 165; Tyler on Usury, 156; Manning v. Young, 28 N. J. 568; Gray v. Van Blarcum, 29 id. 454.
    The cases of Ballinger v. Bourland, 87 Ill. 513; Phillips v. Roberts, 90 id. 492, and Boylston v. Bain, id. 283, cited, would be in point if the institution had no knowledge of Taylor’s taking a bonus. The taking of usury under a mistaken notion that one has a right to take it, will make it none the less usurious. Marine Bank v. Butts, 9 Mass. 49; Bank of Salina v. Alvord, 31 N. Y. 473; Childers v. Deane, 4 Rand. 406.

      Laches, in order to be imputed to a litigant, must have two elements concurring: First, the party invoking it should be injured; and second, the party against whom it is invoked should be in default or in the wrong as against the party invoking it. Mills v. Lockwood, 42 Ill. 118; Wilson v. Byers, 77 id. 84; Harper et al. v. Ely et al. 56 id. 196; Tilton v. Stein, 87 id. 122; Gibbons et al. v. Hoag, 95 id. 69; Musham v. Musham, 87 id. 80; Ryder et al. v. Emrich et al. 104 id. 470; Thompson v. Scott, 1 Bradw. 641; Yeaton v. Yeaton, 4 id. 579; Beveridge v. Hewitt, 8 id. 467; Castner v. Walrod,
      83 Ill. 171; Kellogg v. Wilson, 89 id. 357; Maher v. Farwell, 97 id. 56; Oakley v. Hurlbut, 100 id. 204.
    The undisturbed possession of Hoyt in the property is a sufficient excuse for his not instituting proceedings to avoid the sale sooner; and the same may be said in respect to the negotiations for an arrangement of the matter in difference.
    Mr. Holdridge O. Collins, for the defendants in error:
    Interest paid in advance is not usurious. McGill v. Ware, 4 Scam. 21; Goodrich v. Reynolds, 31 Ill. 490.
    The $250 commissions was received by Taylor as a broker, and not as the agent of the institution for savings. Brokers negotiating loans of other people’s money have a right to charge commissions. Phillips v. Roberts, 90 Ill. 492; Boylston v. Bain, id. 283; Ballinger v. Bourland, 87 id. 513.
    A statutory requirement that the notice shall state the amount claimed to be due at the time of the first publication, is sufficiently met by a statement of the amount claimed to be due at a certain prior date, etc. Jones on Mortgages, sec. 1855; Judd v. O’Brien, 21 N. Y. 186.
    Not void by naming a larger amount than due or can be due. Murray v. Sanborn, 62 Barb. 223.
    The amount due must be stated with substantial accuracy. Perry on Trusts, sec. 602 s.
    Four years’ delay has been frequently held by this court to bar the right of redemption. Hamilton v. Lubukee, 51 Ill. 415; Bush v. Sherman, 80 id. 160; McHany v. Schenk, 88 id. 357.
    Five and six years’ delay while valuable real estate is advancing in value, is laches. Cunningham v. Fithian, 2 Gilm. 650; Walsh v. Brennan, 52 Ill. 123.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, filed in the Superior Court of Cook county on September 5,1881, to set aside a sale of real property, made August 16, 1877, under a trust deed given by William M. Hoyt and wife to the Pawtucket Institution for Savings, on May 22, 1876. On May 22, 1871, Hoyt borrowed from the Savings Institution $5000, for five years, agreeing to pay ten per cent interest per annum, payable semi-annually, in advance. On May 26, 1876, Hoyt obtained a renewal of the loan, at nine per cent interest, payable semiannually, in advance. By the terms of the trust deed any default in the payment of interest or taxes made the principal sum at once due and payable, at the option of the holder of the note therefor. On August 16, 1877, the trustee in the trust deed made sale of the premises to Charles Moies, president of the Pawtucket Institution for Savings, for $5250, and executed to him a deed therefor. The trustee’s deed, as also the notice of sale, recites default in the payment of part of the interest note due on the 22d day of November, 1876, and the whole of .the interest note due on the 22d day of May, 1877, as the ground for the sale under the trust deed, the notice stating that the holder of the unpaid notes had exercised its option and declared the whole principal sum due and payable. On June 21, 1881, the Pawtucket Institution for Savings made a contract with A. T. Ewing for a sale to him of the property, and executed to him a warranty deed therefor, dated August 4,1881, for $12,000. Laches was set up in the answer of the Pawtucket Institution for Savings. On final hearing, upon proofs taken, the court below dismissed the bill. The complainant brings this writ of error.

The bill alleged the following grounds for setting aside the sale: First, that the notes and trust deed were executed for $5000, but that Hoyt received only $4500,—that $250 was kept out for interest in advance, and $250 was retained as commissions by Taylor, the agent of the Pawtucket Institution for Savings, wherein it is claimed there was usury ; second, that the interest notes due May 22 and November 22, 1876, were paid, and that the Institution for Savings then agreed to accept interest thereafter not in advance, and therefore no interest was due until November 22, 1877; third, that the notice of sale did not contain the amount due; and fourth, that $5250 bid at the sale was an inadequate price.

By the terms of the notes and trust deeds the interest was payable in advance. Interest paid in advance is not usurious. McGill v. Ware, 4 Scam. 21; Goodrich v. Reynolds, 31 Ill. 490.

The Pawtucket Institution for Savings was an institution in the State of Rhode Island. Taylor was a loan broker in Chicago. Taylor sent on from Chicago to the Institution for Savings the application for the loan, which the institution accepted, and paid the money by a draft for $4750, payable to the order of Hoyt, retaining from the $5000 (the amount loaned) $250, a half year’s interest, in advance. Taylor charged Hoyt $250 commissions for securing the loan, so that the net sum which Hoyt got was but $4500. This commission received by Taylor was not from any arrangement with the Institution for Savings, or with its knowledge. It got no part of the commission, and received no more than ten per cent interest on the money loaned. Brokers negotiating loans of other people’s money may charge the borrower commissions, without thereby making a loan at the full rate of legal interest usurious. Ballinger v. Bourland, 87 Ill. 513; Phillips v. Roberts, 90 id. 492; Boylston v. Bain, id. 283.

Payne v. Newcomb, 100 Ill. 611, was not intended to decide anything to the contrary, as seems to be supposed by counsel for plaintiffs in error. In the latter case there was an express understanding between Stevens, the lender, and Newcomb, his agent, that Newcomb should get his commissions from the borrower. The court there says, in its opinion: “In effect the transaction is the same as had the loan been made at fifteen per cent, and ten had been paid to Stevens and five to Newcomb. This was the result which, by the parties, was intended before the inception of the transaction. It was in pursuance of an arrangement of the lender and his agent. ” There is nothing of that kind appearing in the present case. It is the case of a person at a distance receiving, through a broker residing here, an application for a loan at the full legal rate of interest, and accepting the application and sending on the money to be loaned as applied for, nothing whatever being said upon the subject of commissions. It was not, it is true, a solitary instance. Taylor was in the business of receiving, here, applications for loans, and sending them on to persons living abroad, for acceptance or rejection, and when applications were accepted he charged the applicants, here, commissions, but without any understanding with the lenders, and in the course of such business he forwarded, among others, to this Institution for Savings, a large number of applications for loans besides the one in this case, many of which were accepted and others rejected. The Institution for Savings has never received, or agreed to receive, more than the legal rate of interest upon this loan, and whatever in addition thereto Hoyt has paid to Taylor has been in compensation for the. services of the latter in procuring the loan for Hoyt, which was something entirely between themselves, independent of the Institution for Savings, with which the latter had no connection. We fail to discover anything of usury in the transaction.

The interest, by the terms of the notes, was payable semiannually, in advance. The proof fails to establish the allegation of the bill that after the payment of the interest note due November 22, 1876, the Institution for Savings agreed with Hoyt that it would accept interest during the remainder of the time semi-annually not in advance. It is this alleged agreement, and the claimed over-payment for usurious interest in commissions on the loan in 1871, that the bill relies upon as showing there was no semi-annual interest payment due on May 22, 1877,—that it had either been extended by said alleged agreement to November 22, 1877, or had been paid by such over-payment of usurious interest, as claimed. We find failure in either of these respects to show that the interest note payable May 22, 1877, was not due at the time the sale was made. Nor does the proof show that the whole of the interest note due November 22, 1876, was paid, as the bill alleges. We think the fair showing by the proof is, that on the day of the publication of notice of the sale, all of the May 22, 1877, coupon was due, and that a small balance remained unpaid on that of November 22, 1876.

As to the point that the notice of sale did not contain the amount due, the statement in that respect in the notice is, that “default has been made in the payment of part of the interest note due November 22, 1876, and the whole of the interest note due May 22, 1877; and whereas, the legal holder of said note and unpaid interest coupons (the Pawtucket Institution for Savings) has thereupon exercised its option of declaring the whole principal sum, and the interest thereon, due and payable; and whereas, default has been made in the payment of the principal and interest so become due and payable,” etc. We think it appears from the notice, with reasonable certainty, that the amount claimed to be due is the principal sum, the interest note due May 22, 1877, and part of the interest note due November 22, 1876. There is an indefiniteness in the latter respect in stating as to what part of the interest note due November 22, 1876, there has been default of payment. But considering the amounts involved,—the smallness of the interest note compared with the principal sum,—we think the notice in this respect may be said to state substantially the amount due. The amount of the debt must be stated with substantial accuracy. Perry on Trusts, sec. 602 s.

We see no such grossness of inadequacy in price as should lend much additional strength to any alleged irregularity in the sale. What proof there is in the record upon the subject would place the valuation of the property at the time it was sold, at about $15,000. But we are satisfied from the evidence that was much more than the property could have been sold for at that time. The witnesses say the real estate market was “flat” at that time; that there was no market for the property at that price at the time; that this property was not marketable; that there was no demand for such property. In August, 1881, when there had been great appreciation in prices over those in 1877, the property sold for but $12,000. And at the time of the sale, too, under the trust deed, there were some $2000 unpaid taxes against the land. The nonpayment of taxes was not assigned in the notice of sale as a ground therefor, yet it seems to have been a reason for making the sale.

But were the alleged irregularities in the sale established by proof, we are of opinion that the laches which appears in this case is too great to entitle the complainant to maintain this bill. The sale took place August 16, 1877. Hoyt knew that the papers had been placed in the hands of attorneys for foreclosure. On June 23, 1877, he paid to such attorneys $102 on account of interest. Publication of notice of sale was made on June 23. Admittedly, as early as October or November, 1877, Hoyt knew that the sale had been made, yet he does not file his bill until September 5, 1881. The excuse made for this delay, is, that Hoyt had, since the sale, been in the possession of the premises, and he delayed as he did, in filing his bill, because he hoped the Pawtucket Institution for Savings would have accepted the amount justly due it, with interest, and set aside the sale, and that said institution had, from time to time, held out inducements to him, and led him to believe they would accept the amount of said indebtedness. All that the proof shows in thist regard is, that on November 3, 1879, Hoyt wrote and sent to the Institution for Savings a letter, saying that he would like to make some arrangement whereby he could again obtain perfect title to the property, the letter complaining of the action of the attorneys in foreclosing without notice to him, stating there was no interest due af the time under an express understanding with them, and that when the last interest payment was made it was agreed that instead of paying interest in advance he might pay at the expiration of six months, and saying if it could be arranged amicably he would like to hear from them in the matter. The following letter was sent in reply:

“Pawtucket, R. I., November 6, 1879.
“W. H. Hoyt :
“Dear Sir—Yours of the 3d inst. at hand. We will write to our agent, Mr. Hurlbut, in regard to the subject matter of your letter. You call on him. We are willing and ready to dispose of our estates in Chicago if our claims are paid. We are also willing to retain on mortgage a fair proportion of the purchase money.
“Very respectfully,
Thomas Moies, Treasurer.

Upon the receipt of that letter, Hoyt, on November 10, 1879, had a conversation with Hurlbut, wherein Hurlbut told him that the Pawtucket institution would accept the money that the property had cost it, as it did not want it. Hurlbut states .that was the substance of the conversation, and was the fact,—that no offers were made of payment of money. The above is all that the proof shows as having in any way taken place between Hoyt and the Pawtucket institution, between the time of the sale (August 16, 1876,) and the filing of the bill,—September 5, 1881. Although Hoyt states there were other communications between them upon the subject, this is denied by the Pawtucket institution and by Hurlbut. The Pawtucket institution was left to pay the taxes on the property, and paid upwards of $3000 of taxes subsequent to the sale. A fair opportunity was offered to Hoyt to come in and redeem by paying what the property had sold for, or even a part of it, and securing the remainder by mortgage on the same premises. But he did not avail himself of the offer. His conduct would indicate that he did not regard it for his interest to redeem in the then condition of real estate values, but when, from the lapse of time, the appreciation of prices made it a desirable object to do so, he then moved, to have the sale set aside. In the case of such avoidable sales there should not be^afforded the opportunity of speculation on chances. It is not permissible for a party to lie by and await events, and have the power, at any time in the future, to let the sale stand, or avoid it, according as it may be found then for his interest to do. There should be promptitude of action within a reasonable time. (Hamilton v. Lubukee, 51 Ill. 415; Bush v. Sherman, 80 id. 160; McHany v. Schenk, 88 id. 357.) In Bush v. Sherman,—a case of such a sale of property in Chicago,—a delay of more than four years in filing a bill was held too late, although the mortgagor was, a large portion of the time, in the rebel lines when there was no intercourse between the two sections of the Union.

The proof shows no sufficient excuse for the delay in the present case, and we regard it as too great.

The decree dismissing the bill will be affirmed.

Decree affirmed.

Scott, Ch. J., and Walker, J.: We are unable to concur in the doctrine and conclusion announced by this opinion.

Mr. Justice Scholfield : My first impression of this case was in favor of reversing the decree below. On further investigation I am satisfied to affirm the decree on the last ground expressed in the opinion,—laches in filing the bill. In no view was the sale absolutely void. The most favorable view, under the facts, to plaintiff in error, is, he might elect to avoid it within a reasonable time. That reasonable time, in my opinion, is to be measured by the peculiar circumstances then existing. He ought not to be allowed delay to speculate upon the probabilities of the future market, and redeem, or not, as might seem to him most profitable. Nor ought he to be allowed thereby to add burdens upon the bank in the shape of additional unpaid taxes and assessments.

Mr. Justice Dickey :

I concur in the views of Mr. Justice SCHOLFIELD.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    William Harmon v. The City of Chicago.

      Filed at Ottawa June 13, 1884.

    1. Ordinance—without a penalty—effect upon prosecution under another ordinance for the same offence. A section of a city ordinance which declares certain acts within the city to be a public nuisance, but provides no penalty for an infraction of its provisions, is no evidence in a prosecution for the same acts made punishable by another section or ordinance complete in itself.
    2. Same—and ordinance to suppress a nuisance, and providing a penalty—validity. An ordinance of the city of Chicago that “the owner or owners of any boat or locomotive engine, and the person or persons employed, as engineer or otherwise, in the working of the engine or engines in said boat, or in operating such locomotive, and the proprietor, lessee and occupant of any building, who shall permit or allow dense smoke to issue or be emitted from the smoke-stack of any such boat or locomotive, or the chimney of any building, within the corporate limits, shall be deemed and held guilty of creating a nuisance, and shall, for every such offence, be fined in a sum not less than five nor more than fifty dollars:” Held, to be valid and enforcible.
    3. Nuisance.—smolte in a city—whether a nuisance—and whether a nuisance must be so declared. If the effect of dense smoke emitted from a smoke-stack or chimney is detrimental to certain classes of property and business within the limits of a city, and is a personal annoyance to the public at large within the city, it is a public nuisance, whether so declared by ordinance or not. Unless such in fact, the act of so declaring it will not make it a public nuisance.

      4. Conflict of laws—smoke from tug-boats in Chicago river—prohibition by a city ordinance—whether a regulation of commerce. An ordinance of the city of Chicago, making the owners, etc., of tug-boats, engines, etc., liable for allowing the emission of dense smoke from their smoke-stacks, is not in violation of section 8, article 1, of the Federal constitution, which declares that “ Congress shall have power to regulate commerce, ” etc. Such a regulation by the city does not impose any restraint on the use of such vessels, although engaged in general commerce, other than is consistent with law. Controlling the use of tug-boats in towing in and out vessels from the harbor, is in no sense in conflict with the power existing in Congress to regulate commerce with foreign nations and among the several States.
    5. Same—as to State and, Federal jurisdiction. Where a conflict may arise between a State and the general government as to legislation committed to Congress, Federal authority must always prevail, for the reason that legislation in pursuance of the Constitution of the United States is the supreme law of the land. In some instances the State and general government may exercise concurrent jurisdiction in certain matters, and until the general government sees proper to act, State legislation is warranted, and the power of the State over such subjects is plenary.
    6. The existence of a power in Congress to control harbors, and the towing in and out merchant vessels engaged in commerce with foreign nations and with the several States, does not of itself prevent local legislation for the security of property, and the health, comfort and convenience of the people in a municipality. It is only repugnant and interfering State legislation that must give way to the paramount laws of Congress constitutionally enacted.
    7. Police poweb of the State—to what it extends—and to whom it may be delegated. A State has all power necessary for the protection of the property, health and comfort of the public, and it may delegate this power to local municipalities in such measure as may be deemed desirable for the best interests of the public; and the State may resume it again when deemed, expedient.
    8. Judicial notice—as to organization of city of Chicago—location of Chicago river—and denseness of population. This court will take judicial notice of the fact that the city of Chicago is organized under the general “Act to provide for the incorporation of cities and villages,” in force July 1, 1882; and also that the Chicago river is situated in the midst of the city, where a dense population exists, and near which much of the business of the city is transacted.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.

      This suit was originally commenced by the city of Chicago, against William Harmon, in the police court of the city for the first district, for creating a nuisance, by permitting or allowing a “dense smoke” to issue from the smoke-stack of the steam tug-boat “Tom Brown,” owned by defendant, and which, at the time, he was operating in and about the Chicago river, within the corporate limits of the city, in violation of sections 1650 and 1651 of an ordinance entitled “An ordinance for revising and consolidating the general ordinances of the city of Chicago,” passed April, 1881. On the trial in the police court, defendant was found guilty, and fined in the sum of fifty dollars. A trial de novo was had in the Criminal Court, on the appeal of the defendant, where the case was submitted on an agreed statement of facts, and where the defendant was again found guilty, and a fine in the same amount imposed. That judgment was affirmed in the Appellate Court for the First District, and a majority of the judges of that court having certified the case, in their opinion, involves questions of law of such importance, on account of principal and collateral interests, as that it should be passed upon by the Supreme Court, defendant brings the case to this court on his further appeal.
    Mr. William Armstrong, for the appellant:
    What powers included in the police power: 4 Blackstone’s Com. 162; Cooley’s Const. Lim. 572, 573, 576; Thorp v. Rutland and Burlington R. R. Co. 27 Vt. 149; Railroad Co. v. Husen, 5 Otto, 470.
    The ordinance is in excess of the police powers vested in the State, and an interference with inter-State commerce as well as commerce with foreign nations. Railroad Co. v. Husen, 5 Otto, 465; Salzenstein et al. v. Marvin, 91 Ill. 391; Yeazel v. Alexander, 58 id. 254.
    That the Chicago river is a navigable stream, and hence a public highway, is clear. Cooley’s Const. Lim. 589.

      As to what are nuisances, and their kinds, counsel cited and commented upon 3 Blackstone’s Com. 215; 1 Hawkins’ Pleas of the Crown, 362; Commonwealth v. Howe, 13 Gray, 26; Commonwealth v. Hart, 10 id. 465; Commonwealth v. Davis, 11 id. 48; Commonwealth v. Floyd, id. 52; Wood on Nuisances, secs. 24, 47, 80, 477, 607; Ely v. Supervisors, 36 N. Y. 297; The State v. Hand, 7 Iowa, 411; Commonwealth v. Van Lichts, Bright, (Pa.) 69; Attorney General v. Stewart, 20 N. J. Ch. 417; Aldrich v. Howard, 7 R. I. 87; 8 id. 246; Burdet v. Swenson, 17 Texas, 487; Kirkman v. Handy, 11 Humph. 406; Coker v. Birge, 10 Ga. 336; Dunmuil v. Dupont, 18 B. Mon. 800.
    As to the power of cities and towns to declare certain things nuisances: Winford v. The People, 14 Mich. 41; Austin v. Murray, 16 Pick. 125; Goddard v. Jacksonville, 15 Ill. 588; Roberts v. Ogle, 30 id. 459; Town of Lake View v. Litz, 44 id. 81; Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 id. 25; North Chicago City Ry. Co. v. Lake View, 105 id. 207; The State v. Jersey City, 5 Dutch. 171.
    Mr. F. S. Winston, Corporation Counsel, for the appellee:
    The court will take judicial notice of the fact that the city of Chicago is organized under the general Incorporation act. Potwin v. Johnson, 106 Ill. 452.
    Assuming the tug of appellant to be engaged in “commerce between the States, ” yet the ordinance in question is a local police regulation, which the State of Illinois, and the city by authority of the State, have full power to make; and the exercise of such power is not in conflict with section 8, article 1, of the Federal constitution. Gibbons v. Ogden, 9 Wheat. 1; Conway v. Taylor, 1 Blackf. 603; License cases, 5 How. 504; Gilman v. Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 id. 35; Railroad Co. v. Fuller, 17 id. 560; Osborne v. Mobile, 16 id. 479; Transportation Co. v. Chicago, 9 Otto, 643; Foster v. Port of New Orleans, 94 U. S. 248; Packet Co. v. Board

      of Trustees, 105 id. 559; Escanaba Transportation Co. v. Chicago, 107 id. 185; Chicago v. McGinn, 51 Ill. 266; Wiggins Ferry Co. v. East St. Louis, 102 id. 560.
    The power to declare what is a nuisance, and to abate the same, is a valid power. Goddard v. Jacksonville, 15 Ill. 588; Prest et al. v. Holland, 19 id. 271; Block v. Jacksonville, 36 id. 301; Roberts v. Ogle, 30 id. 459; King v. Davenport, 98 id. 305; North Chicago City Ry. Co. v. Lake View, 105 id. 207.
    Dense smoke is a nuisance per se. Wahle v. Reinbach, 76 Ill. 322; Cooper v. Randall, 53 id. 54; Cleveland v. Citizens' Gas Light Co. 20 N. J. Eq. 205; Ross v. Butler, 19 id. 294; Rhodes v. Dunbar, 58 Pa. St. 275; Galbraith v. Oliver, 3 Pitts. 79; Catlin v. Valentine, 9 Paige, 675; Wood on Nuisances, chap. 13.
    The discretionary power given to the council to declare what shall constitute a nuisance, will not be judicially interfered with unless its exercise be manifestly unreasonable and oppressive. Dillon on Mun. Corp. (3d ed.) sec. 379; North Chicago City Ry. Co. v. Lake View, 105 Ill. 207.
    The ordinance in question is a valid exercise of the police power of the city. Ohio and Mississippi R. R. Co. v. McClelland, 25 Ill. 140; Galena R. R. Co. v. Appleby, 28 id. 283; Dingman v. The People, 51 id. 278; Northwestern Fertilizing Co. v. Hyde Park, 70 id. 634, affirmed in 98 U. S. 659; Dillon on Mun. Corp. (3d ed.) sec. 141, et seq.; Cooley’s Const. Lim. sec. 572, et seq.

    As to the exception in section 1650 of the ordinance, appellee contends that that does not apply to the smoke-stack of any boat or locomotive; and even were the exception illegal, yet the balance of the section would be valid. Cooley’s Const. Lim. sec. 178; Knox County v. Davis, 63 Ill. 405.
    But it makes no difference whether that section was valid or not, for the reason that it prescribed no fine, and was simply a definition; and besides, the following section, 1651, was complete in itself, and under that alone was the fine imposed.

      Mr. Geo. Mills Rogers, also, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

Only two sections of the ordinance which it is alleged was violated were introduced in evidence. So far as anything appears in the record, they seem to have no necessary connection with each other. Section 1650 declares: “The emission of dense smoke from the smoke-stack of any boat or locomotive, or from any chimney, anywhere within the city, shall be deemed and is hereby declared to be a public nuisance: Provided, that the chimneys of buildings used exclusively for private residences shall not be deemed within the provision of this ordinance. ” It will be perceived this section provides no penalty for any infraction of its provisions. At most it would seem to be a definition of what the common council regarded as a “public nuisance, ”—nothing more. The case will be considered as though this section of the ordinance had not been introduced in evidence.

Section 1651 seems to be complete in itself, and it was under its provisions a fine was imposed on defendant. It is the only section of the ordinance in evidence that imposes any penalty for a violation of its provisions. It is as follows :

“The owner or owners of any boat or locomotive engine, and the person or persons employed, as engineer or otherwise, in the working of the engine or engines in said boat, or in operating such locomotive, and the proprietor, lessee and occupant of any building, who shall permit or allow dense smoke to issue or be emitted from the smoke-stack of any such boat or locomotive, or the chimney of any building, within the corporate limits, shall be deemed and held guilty of creating a nuisance, and shall, for every such offence, be fined in a sum not less than five dollars nor more than fifty dollars.”

Considering these sections of the ordinance as distinct and independent provisions, having no necessary connection with each other, the criticism made upon section 1650, that it excepts certain persons and property from its operation, and therefore conflicts with that provision of the constitution of the State which declares the General Assembly shall not pass any local or special laws in certain enumerated cases, among which is, “granting to any corporation, association or individual any special or exclusive privilege or immunity or franchise whatever,” and is for that reason void, can have no application to section 1651, just quoted. It is general in its provisions, and embraces all persons and property within the limits of the corporation, and imposes the same penalty upon all persons guilty of “creating a nuisance,” as therein specified.

' It is said section 1651 is leveled against a private nuisance, and can not therefore be the subject of a public prosecution on behalf of the municipality, as a public nuisance might be. Conceding, as is done by the admission in the record, the effect of “dense smoke” emitted from a smoke-stack or chimney “is detrimental to certain classes of property and business within the limits of the city of Chicago, and is a personal annoyance to the public at large within the city, ” it is a public nuisance, in the midst of a large and densely populated city, whether it is so declared by ordinance or not. Unless it was so in fact, the act of declaring it to be a public nuisance would not make it so. Omitting so to declare, it is none the less a public nuisance. Certainly anything that is detrimental to certain classes of property and business in a populous city, and is a personal annoyance to the public at large within the city, needs not to be defined by ordinance or by lexicographers to be known to the common mind as a public nuisance. It is so per se. The nuisance the party is forbidden by this section of the ordinance to create within the limits of the city, will be treated, in the further consideration of the case, as a public nuisance, and as much subject to legislative control, as if it had been defined by ordinance to be a public nuisance. Nor will any subtle distinctions be indulged as to what is meant by “dense smoke,” as those terms are used in the ordinance. The terms used will be understood as commonly employed, and this court will understand by “dense smoke,” precisely what everybody else does that has ever seen a volume of dark, dense smoke as it comes from the smoke-stack or chimney where common soft or bituminous coal is used for fuel in any considerable quantities.

‘ Passing now to consider what more nearly affects the merits of the case, it is insisted section 1651 of the ordinance conflicts with section 8, article 1, of the constitution of the United States, which declares: “Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes,”—at least so far as it applies to tug-boats plying in the Chicago river, which is a navigable stream, under the laws of the United States. This objection implies a misconception of the scope and purpose of the ordinance. Undoubtedly these tug-boats are, in a limited sense, engaged in commerce among the States, and perhaps with foreign nations. They run out of the river and harbor at the port of Chicago, and tow in large vessels freighted with the products of other States and of foreign nations. Without their use it would be difficult, and perhaps impracticable, for these great vessels with their cargoes to get into or out of port. Although limited to the port of Chicago, the services of these tug-boats are very valuable in moving the goods and products of the States and foreign nations seeking a market at Chicago and elsewhere in the west. But does this ordinance impose any restraint on the use of such vessels, although engaged in general commerce, other than is consistent with law? It is thought it does not. At most it purports only to regulate their use in such mañuelas may not produce effects detrimental to property and business, nor become a personal annoyance to the public at large within the city,—and that is allowable to be done. Two sources of power for regulating the use of steam tug-boats in the harbor and river are discoverable: First, the city, by direct grant of power from the State, has the right to make regulations in regard to the use of harbors, towing of vessels, opening and passing of bridges; and second, the police power inherent in the State,—that power under which everything necessary to the protection of the property of the citizen, and the health and comfort of the public, may be done.

Controlling the use of tug-boats in towing in and out vessels to and from the harbor, is in no sense, in conflict with the power existing in Congress to regulate commerce with foreign nations and among the several States. That is very far from an attempt to regulate commerce. It is but stating what is a matter of common observation, that “dense smoke” is caused by the kind of fuel used in furnaces and fire-boxes. One kind may produce smoke of such density as to be hurtful to the public comfort in populous cities or villages, and another kind may produce no such effect. Eegulating the use of fuel, or, what is the same thing, requiring owners or managers of tug-boats to so use their vessels as not to create a dense smoke, which it is conceded ■would be an annoyance to the public at large, is in no sense imposing any restraints upon commerce, nor does it in any manner conflict with the power of Congress under what is called the “commerce clause” of the constitution of the United States. The delegated power in the city is broad enough to warrant the passage of the ordinance, but back of that is the question, what may the State rightfully do in such matters ? It will he conceded the municipality can do nothing the State can not authorize it to do, and that all power a municipal corporation created by special or general laws may exercise emanates from the State creating it. What powers, then, reside in the State ? It has all power necessary for the protection of the property, health and comfort of the public, and that power has been so frequently defined by this court it is not necessary to restate it. Its power, in this respect, the State may delegate to local municipalities, and in such measure as may be deemed desirable for the best interests of the public, and the State may resume it again when deemed expedient. It is a familiar principle the State has power to make all needful regulations to secure and promote the peace, health, comfort and convenience of the people. It often happens, in legislating upon subjects in relation to the peace, health. or convenience of the people at large, State legislation approaches near to powers committed to the general government, and especially in matters relating to the construction of roads, canals and bridges, and other kindred affairs. It seems to be conceded, by a uniform line of decisions, that legislation in respect to matters affecting only certain localities, and not affecting the whole people of a country in any considerable degree, will be committed to local municipal government. Being more immediately interested, such local governments occupy a position to enable them to adopt measures wisely adapted to the end to be secured. In some instances the State and general governments may exercise concurrent jurisdiction in certain matters, and until the general- government sees proper to act, it is understood State legislation is warranted,—otherwise matters pertaining to local police regulations might be wholly neglected, to the great injury of the public. Frequent examples of the concurrent powers of the State and general governments are noticeable in the construction of bridges on post roads and over navigable streams. It is thought such structures can be best regulated, especially in large cities, by the State, or by local municipal authorities upon whom the duty may be devolved. In such matters, until Congress assumes to act, the power of the State over such subjects is understood to be plenary. Where a conflict might arise between the State and the general government in regard to such subjeets, Federal authority must always prevail, for the reason legislation in pursuance of the constitution of the United States is the supreme law of the land.

It is not claimed that Congress has assumed, under the power it is conceded to have to regulate commerce with foreign nations and among the several States, to enact a'ny laws relating to towing in and out vessels engaged in commerce to and from the port of Chicago, and concerning the matters embraced in this ordinance. Such matters pertain to local government, with which it is hardly probable Congress will ever assume to interfere. The law on this subject is well expressed by Mr. Justice Field, in Escanaba Co. v. Chicago, 107 U. S. 678, where it is said the general doctrine now firmly established is, “the commercial power of Congress is exclusive of State authority only where the subjects upon which it is exercised are national in their character, and admit and require uniformity of regulation affecting alike all the States. ” The regulations concerning local ports, notwithstanding a general control over them for all commercial purposes is conceded to be in Congress, is wisely left with the State authorities within the limits of which such ports are situated. The non-action of Congress in such matters may be regarded as a declaration the States or the municipal authorities on which the duty may be devolved may be left free to make all needful regulations in respect to wharf-boats, tug-boats and other boats used within the harbors within their respective jurisdiction, and also regulations in respect to the use of such harbors in towing of vessels and the opening and passing of bridges; and with the exercise of such powers by the local municipal authorities Congress has not interfered when such regulations were thought to be necessary to the protection of property or the comfort and convenience of the people. It does not affect the validity of this ordinance that it might be repugnant to the existence of a power in Congress to regulate commerce with foreign nations and among the several States. Were it repugnant to any act of Congress on the same subject, an objection for that reason might possibly have to be sustained, for, as just stated, all legislation in pursuance of the constitution of the United States is the supreme law of the land. But Congress has passed no such law, and it will be time enough to consider that question when it arises. It is not true that all powers granted to Congress are exclusive unless where concurrent authority is reserved to the States; nor is it correct, in every instance, to say, “that within the scope Congress may legislate, the States may not legislate. ” Such is not the law. (Dunne v. The People, 94 Ill. 120.) The existence of a power in Congress to control the harbor, and the towing in and out of merchant vessels engaged in commerce with foreign nations and with the several States, does not, of itself, prevent local legislation for the security of property, and the health, comfort and convenience of the people in a municipality. It is only repugnant and interfering State legislation that must give way to the paramount laws of Congress constitutionally enacted.

But there is another ground on which this ordinance may be maintained in its application to “dense smoke” emitted from the smoke-stack of any boat or locomotive, or from the chimney of any building, within the corporate limits of the city. This court will take judicial notice of the fact the city of Chicago is organized under the general “Act to provide for the incorporating of cities and villages, ” in force July 1, 1872, and by law the city council may, among its other legislative powers, have authority “to declare what shall be a nuisance, and to abate the same, and to impose fines upon parties who may create, continue, or suffer nuisances to exist. ” Under the power granted by the State the city council has provided, by ordinance, “that any one who shall permit or allow dense smoke to issue or be emitted from the smoke-stack of any * *; * boat or locomotive, or the chimney of any building, within the corporate limits, shall be deemed guilty of creating a nuisance, and shall for every such offence be fined in a sum not less than five nor more than fifty dollars.” It will be observed the power conferred on municipal corporations is not to declare what may be a “public nuisance, ” or a “nuisance per se, ” but it is to declare what shall be a “nuisance, ” and to abate the samé. Whether it would be sufficient to warrant a conviction to simply prove the fact “dense smoke” issued from the smoke-stack of a boat or locomotive, or a chimney of a building, within the corporate limits, without proof that it was in fact a nuisance, need not now be considered. Taking judicial notice, as must be done, the Chicago river is situated in the midst of the city where a dense population exists, and near which much of the business of the city is transacted, it might be held “dense smoke, ” such as comes constantly from smoke-stacks of boats plying the waters of that river that use the common soft or bituminous coal for fuel, is a public nuisance per se. But it is unnecessary to pass on that question now. It is admitted, by stipulation of record, “the effect of the emission of dense smoke is detrimental to certain classes of property and business within the limits of the city, * * * and is a personal annoyance to the public at large within the city, ” and that brings the “nuisance” against which the ordinance is leveled precisely within the definition of a public nuisance that may be abated by public prosecution. Declaring or omitting to declare it a “public” nuisance does not change the fact. That which is the cause of offence would be held to be a public or a private nuisance, as the fact is. Some things, without proof, will be declared to be public nuisances per se, and others will be so declared because the proof shows they are in fact public nuisances. It makes no difference how it is made to appear, so it does appear the thing sought to be abated by a public prosecution is a public nuisance.

The case being considered has many features in common with North Chicago Railway Co. v. Lake View, 105 Ill. 207. In that case it was clearly conceded that under a general grant of power over nuisances like the one in question, the town or municipal authorities have no power to pass an ordinance declaring a thing a nuisance which, in fact, is clearly not one. “But,” it was said, “in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question.” Accordingly it was held the use of steam by the North Chicago Bailway Company as motive power in operating its railway along and over one of the public streets in the town of Lake View, contrary to the provisions of the ordinance of the town, was per se a nuisance. In the case being considered, the effect of what defendant did in running his steam tug-boat on the river, within the corporate limits of the city, is admitted, and what was done did create a “nuisance,” in the language of the ordinance. At common law a nuisance was anything that worked hurt, or inconvenience, or damage. A public or common nuisance was that which affected the public, or was an annoyance to the king’s subjects at large. Precisely that is the character of the “dense smoke” emitted from defendant’s steam tug-boat. Its effect was detrimental to some classes of property and business within the city, and was a personal annoyance to the public at large. Defendant was therefore properly held to have been guilty of creating a “nuisance, ” and was subject to the penalty or fine imposed by the ordinance.

It is stipulated this court may take notice of the size and commercial importance of the city of Chicago, and the court may, of its own motion, take judicial notice of what is generally known,—that is, that the city of Chicago is situate near the great bituminous coal fields of the State, and that much of the fuel used by the multitude of manufactories in the city which produces the “dense smoke” of which complaint is made, is the common soft coal. In view of the magnitude of the interests involved, it is suggested it will not do to allow the common council to place an embargo on all the interests that have to use this coal. It may be that some, and perhaps a very great, inconvenience would be experienced by a rigid enforcement of the provisions of this ordinance. How that may be this court can not know. . What powers the city council may exercise under the general law or under its police powers, is a question of law to be determined by the courts; but when the city council will exercise the powers with which it is clothed, rests in its legislative discretion, and the consequences -that may flow from the enforcement of ordinances enacted within powers conferred, rest alone upon the body enacting them, and with which the courts can have no concern.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Chicago and Evanston Railroad Company v. John Jacobs.

      Filed at Ottawa May 19, 1884.

    1. Eminent domain—measure of damages—as to the use of land sought to he condemned—market value. The true test as to damages to be paid for land taken for a public use, is its market value for any purpose to which it is adapted or may be applied. If lots sought to be condemned are in use for market gardening puiposes, and are more valuable for that purpose than for any other, the owner will have the right to show that fact; and hence there is no error in admitting proof in such case of the value of the manure or compost on the land, per load.
    2. Same—former decision. The case of Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21, as to fixing the damages for lots condemned for a right of way, on a different basis than their market value, is to be applied only to property which in its use or condition has no market value.
    3. New trial—excessive damages—in proceeding under Eminent Domain act. Where the evidence is conflicting as to the value of property sought to be condemned for railroad purposes, and the jury have examined the premises in person, this court will not reverse on the ground alone that the damages assessed may be considered high, unless the damages are clearly excessive.
    4. Instbuction—misleading, as not directing inquiry to matters in issue. On the assessment of damages for lots sought to be condemned, there being no pretense that they had no market value, the court instructed the jury, that if they found, from the evidence, that there was no market value for such property in such condition, they should determine the actual value of the property from the evidence in the case: Held, that the instruction was calculated to mislead, and was erroneous. The jury should have been so instructed as to direct them inquiry as to the market value of the property.
    5. Same-—when good as to one defendant and vicious as to another. On the assessment of damages for lots sought to be condemned for right of way, an instruction given for A, one of the defendants, which is erroneous as to petitioner, is not relieved of its error because it may be proper as to other land owners, when it appears on its face the same was given on behalf of A.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Mr. E. Walker, and Mr. F. J. Loesch, for the appellant.
    Messrs. Rubens, McGaffey & Ames, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a proceeding to condemn certain lots in the city of Chicago, for railroad purposes. Appellee, John Jacobs, was the owner of lots 39 to 45, inclusive, in sub-block 3, in the subdivision of block 12, in Sheffield’s addition to Chicago. These lots are each twenty-four feet front, and one hundred and twenty-four feet deep. Jacobs resided on lot 45, in a frame cottage. Upon the rear of the lot were a barn, shed and out-houses. The lots were used by Jacobs for market gardening. In the county court, where a trial was had, the jury awarded Jacobs $8900 as compensation for his property, and judgment was rendered on the verdict.

It is contended by appellant that the damages are excessive, that the court erred in the admission of evidence, and in modifying and giving instructions.

As to the damages allowed by the jury,, the evidence in regard to the value of the property taken was conflicting. Where such is the case, and the jury have in person examined the property, we do not regard it our duty to reverse on the ground, alone, that the damages might be considered high, unless the damages are clearly excessive; and in this case we would not be inclined to reverse had the law involved in the ease been properly given to the jury.

It appeared from the testimony that the lots had been well manured for market gardening, and one witness was called to testify to the value of the compost on the land, per load. The admission of this testimony, it is contended, is erroneous. We perceive no valid objection to the evidence. If the soil had been so enriched that it could be sold for manure, and was valuable for that purpose, such testimony was competent for the consideration of the jury in determining the market value of the property. The owner of the lots could not be confined to their value for building purposes alone. If the lots had a market value for any purpose, he had the right to establish that fact and prove such value. If the lots were more valuable for market gardening than for any other purpose, the owner had the right to establish that fact. The real issue was the market value of the property for any purpose for which it was adapted or might be used. The proper rule on this subject is declared in Haslam v. Galena and Southern Wisconsin R. R. Co. 64 Ill. 353, where it was held: “The true test as to damages to be paid for land taken, is its market value; but in estimating the damages, reference may be had not merely to the uses to which the land is actually applied, but its capabilities, so far as they add to its market value, may also be taken into consideration. If the land has a mine under its surface, that fact may be considered if the mine adds to the market value of the land, even though such mine has never been used. So of a water power, even though it has never been utilized.”

The following instruction was given for the defendant:

“The court instructs the jury that the owner of the property to be condemned is entitled to its actual value for its highest or best use to which the property, in the condition it was at the filing of the petition, could be put; and in ease the jury find, from the evidence, that any real estate to be condemned has an actual value for a specified use, and that such property is devoted and adapted to such use, then the owner is entitled to such value. Such value is to be found at its market value, if there be a market value of such property in such condition; but if you find, from the evidence, that there is no market value for such property in such condition, then you are to determine the actual value of the property from the evidence in the case. ”

In Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21, it was held, where land has no market value, from the fact of its being used as a right of way for a railroad, estimates of its value, with reference to such use, should be received on the question of compensation to be paid, in a proceeding to condemn. The correctness of the rule of law as declared in the case cited, in a proper case, is neither questioned nor denied. But it is apparent that the rule there declared has no application whatever to a case of this character. There is no pretense, here, but the lots have a market value, and the only question of dispute in the county court was what that value was. There was no difficulty whatever in arriving at the market value of the lots. Under such circumstances the instruction was calculated to mislead the jury. The jury should have been instructed in such a way that they would look to the market value of the property. But the instruction opens up a wider field of investigation. It was a fair invitation to the jury to enter into another field of inquiry as to the value of the lots,—to ignore the market value and determine the actual value for a specified use.

It has been suggested that other cases, involving the claims of other parties for damages, were on trial with Jacobs, and the instruction may be proper as to such cases. The answer to this is, the instruction, as appears on its face, was given by the court “in behalf of Jacobs.”

Under the evidence before the jury we think the instruction was erroneous, and calculated to enhance the compensation to a greater amount than should be allowed.

The judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Dickey

text:
    La Fayette Bolden et al. v. James D. Sherman.

      Filed at Ottawa March 26, 1884.

    1. Color of title—defined. Color of title is that which in appearance is a title, but in reality is not. It must be so far prima facie good in appearance as to be consistent with the idea of good faith. It must purport to transfer, and apparently transfer, the title to the holder.
    2. Same—extent, as to boundaries. A deed purporting to convey two lots of land in a subdivision, by their numbers, where the plat and stakes showed the precise location of the lots sold, was held color of title to the entire lots as shown by the plat and stakes, notwithstanding one of the lots, as shown by other testimony, extended six feet over and upon an adjoining tract, and the description in the deed showing distances did include the six feet on the adjoining land. The monuments always prevail over distances.

      3. . Limitation—act of 1839 — as to the payment of taxes—proof in respect thereto. "Where a party having color of title shows the payment of all taxes on the premises for seven successive years, by the production of his tax receipts, showing the date of each payment and the amount thereof, this makes out a prima facie defence under the Limitation law of 1839, which must prevail unless the plaintiff shows that the taxes for some one of the seven years were paid, before the defendant made his payment. The testimony of the plaintiff, that he, by himself or agent, paid the taxes upon the same land for each of the same years, but not giving the amount or date of any of his payments, will not rebut the defendant’s prima facie case, and defeat the operation of the statute.
    4. In an action of ejectment for a strip of land, the defence being the payment of taxes for seven years under color of title, the defendant admitted that the plaintiff had paid the taxes for the same seven years, and undertook to overcome the force and effect of the admission by proving that he had also paid taxes for the same years, but failed to show whose payments for the several years were first made: Held, that the evidence was not sufficient to overcome the admission. Such admission was held to impliedly concede that the plaintiff’s payments were first made, otherwise there could be no taxes for him to pay.
    5. Bound Abies—monuments, as prevailing over distances—meaning of descriptive words, how ascertained. Monuments showing the boundaries of a lot conveyed, must prevail over the distances given in the description. The surroundings under which the language of a deed is used may be considered, to give a proper construction to the words, and that part of a description which the parties must be supposed most fully to understand, will govern. And where a lot is sold as platted, the fences and surveyor’s marks upon the ground, as, stakes, are facts indicating its boundaries, and will prevail over an attempt to- describe the lot by distances.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This is an action of ejectment, brought by Sherman, appellee, against Bolden and Stevens, appellants, to recover a strip of land six feet wide in its front on State street, and running eastward 144 feet to an alley, the north line of said strip being 927 feet south of the north line of fractional quarter-section 22,—otherwise described as six feet in width, from front to rear, of the north side of lot 8, in block 10, in assessor’s division of the north-west fractional quarter of section 22, etc., and also as being the north six feet in width, along the north side of lot 1, in Gurley’s subdivision of said lot 8, and part of lot 7,—the property being in possession of Bolden, as tenant of Stevens, who claims as owner.
    Plaintiff proved title in himself to this strip, acquired by him by conveyance from Augustus Garrett, to him, by deed dated August 14, 1847, and recorded November 2, 1847, conveying a tract 110 feet wide, of which this strip was part, and on the north line. But plaintiff never was in the actual possession of this strip of six feet. Defendant proved that Augustus Garrett, at the time of this conveyance to Sherman, was the owner in fee of the land next adjoining the land conveyed to Sherman on the north, for a width of 267 feet, fronting that distance on State street, and extending east to Wabash avenue. The land next north of this he had conveyed to Mrs. Seaman, at an earlier day. Augustus Garrett died about February, 1849, but before his death, inclosed his land with a fence. But the fence on the south side, instead of being placed on the true line between the land of Sherman and that of Garrett, was placed six feet south of that line, and upon the land of Sherman, so as to include this strip within his inclosure. Whether the north line of this inclosure was more than 267 feet north of the fence on the south, does not appear. After the death of Augustus Garrett, the title to this 267 feet of land on State street, next north of Sherman’s land, passed, by a decree of court, to his widow, Eliza Garrett. Eliza Garrett died in 1855, or early in 1856, and by her will her executors were clothed with power to sell and convey real estate of the testatrix.
    In March, 1856, the executors of Eliza Garrett, for the purposes of sale, made a plat, intended to cover this Garrett tract of 267 feet lying next north of Sherman’s land. By that time many parts of the fence of the inclosure made by Augustus Garrett were broken down and gone, but the fence on the south side, though considerably dilapidated, was still there, and the land from this fence to the north was embraced in the plat, and divided into eleven lots, fronting on' State street, each extending east to an alley. Lots 1 to 10, inclusive, numbering south from the north of the plat, were laid off 24 feet wide, and lot 11, the most southerly lot, was laid off 27 feet wide, its south line being the fence spoken off There were no monuments marked upon the plat by which the exact location of the ground, as to its north and south lines, could be ascertained; but witnesses who attended the sale say the marks of' the surveyor were still there, and the ground was platted as far* south as the fence, the fence being on the south line.
    The lots were sold in March, 1856, at a public sale, and Charles Ferren bought lots 10 and 11, at $5100, and received a contract from the executors, by which they contracted to sell the same to him. The description in the contract was: “Commencing at a point on State street 216 feet south of the north-west corner of the land belonging to the estate of said Eliza Garrett, deceased,—which adjoins the land formerly belonging to Mrs. Ann Seaman, of New York,—running south 51 feet, thence east 170 feet, thence north 51 feet, thence west 170 feet to the place of beginning, known in a certain plat or subdivision of said property, now in possession of said parties of the first part, as lots 10 and 11, in block 1.” This plat or subdivision was recorded November 14, 1856. This contract was, on November 27, 1856, assigned by Ferren to Stevens, one of appellants, and was filed for record November 28, 1856, and on May 2, 1859, Stevens paid in full the purchase money. Stevens, in 1859, sold to Kate Howard lot 10, and one foot off the north side of lot 11, and she, in 1859, built a brick house upon the property, 25 feet front, on State street. This left 26 feet between the south line of her house and the line of the fence on the south line of the six feet in controversy. On April 5, 1860, the executors who had made this sale, executed a deed to Stevens, by which they conveyed, or professed to convey, the same property to him, and by the very same description used in the contract of Ferren. In October, 1861, Stevens took possession of the 26 feet next south of the Howard property, and built a house upon it, and by himself and his tenants has been in the actual possession of the same ever since. This action was brought October 26, 1880.
    On the trial, defendants proved, by the production of tax receipts, the payment of taxes on the south 26 feet of lot 11, Garrett’s subdivision, etc., for the year 1861, on May 5, 1862; for the year 1862, on. May 7, 1863; for the year 1863, on May 19, 1864; for the year 1864, on December 14, 1864; for the year 1865, on May 1, 1866; for the year 1866, on May 6, 1867; for the year 1867, on June 4, 1868; for the year 1868, on June 12, 1869; and also tax receipts from 1868 to 1879, except for the years 1869 and 1870.
    On the trial, plaintiff, Sherman, testified as follows:
    Q. “Have you paid the taxes on these premises that were conveyed to you by Mr. Garrett?
    A. “Yes, sir. I paid them generally by my agent. Jonas M. Small paid the taxes for me for the last eighteen or twenty years. He is dead. I have not possession of all the tax receipts. During the years between 1858 up to 1868,1 sometimes paid the taxes, and sometimes Mr. Small paid them. My property was never sold for taxes upon my description, which was a part of the Gurley subdivision. ”
    Plaintiff produced tax receipts showing payment of the taxes for 1872, paid April 1, 1873; taxes for 1875, paid September 28, 1876; taxes for 1876, paid September 5, 1877.
    This is the substance of all the evidence bearing upon the questions discussed in the opinion, save what is therein stated.
    Mr. Chas. H. Wood, for the appellants:
    Under the facts in this case, defendant Stevens purchased by the plat, and the south line of the plat of Garrett’s subdivision was the south line of his land. McCormick v. Huse,
      78 Ill. 363; Everett v. Boardman, 58 id. 429; Ambrose v. Raley, id. 506; Canal Trustees v. Havens, 11 id. 554.
    A constructive adverse possession will extend over the whole of the tract included in the color of title, though part be occupied. Hinchman v. Whetstone, 25 Ill. 185; Jackson v. Camp, 1 Cow. 605; Munro v. Merchant, 28 N. Y. 9; Turney v. Chamberlain, 15 Ill. 271.
    This case is analogous to, and should be governed by, the following eases: Hubbard v. Stearns, 86 Ill. 35; Bauer v. Gottmanhausen, 65 id. 499; Weber v. Anderson, 73 id. 439; Schneider v. Botsch, 90 id. 577.
    Where owners of adjoining lands build a fence between them upon the assumed boundary line, and each holds and occupies up to it, on his own side, claiming it as the true line, their possession is adverse, and will ripen into a valid title. Burrell v. Burrell, 11 Mass. 297; Stuyvesant v. Tompkins, 9 Johns. 62; Jones v. Smith, 64 N. Y. 180.
    The only exclusive effect of what is called “color of title, ” in connection with adverse possession, is to define the extent of the possession claimed. Sedgwick & Waite on Trial of Title to Land, sec. 761.
    Color of title is defined to be that which in appearance is title, but which in reality is no title. Wright v. Matteson, 18 How. 56; and see, generally, what is color of title,—Baker v. Swan, 32 Md. 355; Coleman v. Billings, 89 Ill. 190; Kruse v. Wilson, 79 id. 240; Woodward v. Blanchard, 16 id. 430; Chandler v. Spear, 22 Vt. 405; Gittens v. Lowry, 15 Ga. 338; Sedgwick & Waite on Trial of Title to Land, sec. 762.
    The contract and deed to Stevens both refer, on their face, to the plat of the Garrett subdivision.
    Where a plat .or map is referred to in a deed, it becomes, for the purpose of identifying the land, as much a part of the deed itself as if incorporated into it. Seaward v. Nalotte, 15 Cal. 306; Vance v. Fore, 24 id. 436; Davis v. Rainsford, 17 Mass. 207; Lincoln v. Wilder, 29 Maine, 179.

      Messrs. Rosenthal & Pence, for the appellee:
    Neither the twenty years’ Statute of Limitations, nor the statute of 1835 or 1839, has been pleaded, hence no defence can be made under those statutes. Borders v. Murphy, 78 Ill. 81.
    The nature of that adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it, or by one against whom the adverse occupant brings ejectment, must be actual, visible, notorious, distinct and hostile possession. Tyler on Ejectment, 900; 2 Smith’s Leading Cases, *561, 566; Calhoun v. Cook, 9 Pa. 226; Turney v. Chamberlain, 15 Ill. 271.
    In this case when here before, (101 Ill. 487,) this court said: “Adverse possession sufficient to defeat the legal title must be hostile in its character, and continue uninterruptedly for twenty years. (Turney v. Chamberlain, 15 Ill. 271; Ambrose v. Raley, 58 id. 506.) It is not claimed for defendants that either of them was in possession of this six feet for more than nineteen years.”
   Mr. Justice Dickey

delivered the opinion of the Court:

The deed from the executors of the estate of Eliza Garrett, to Stevens, we think was color of title. Monuments always prevail over distances. This deed purported to convey to Stevens lots 10 and 11, in the Garrett subdivision. These lots, by the plat and stakes, covered the 51 feet next north of this fence, and embraced the land in controversy. It is true the deed says the north-west corner is 216 feet south of the north-west corner of the Garrett tract, when the northwest corner of this 51 feet was, in fact, 222 feet south of the Garrett tract, by the description in the deeds to the property lying next north, but whether more than 216 feet south of the inclosure, does not appear. It is not a question of accuracy of measurement. The question is, what land did this deed purport or profess to convey.

Color of title is said to be that which in appearance is a title, but which in reality is not. (Wright v. Matteson, 18 How. 56.) It must apparently transfer title to the holder,— must profess to convey a title. (Coleman v. Billings, 89 Ill. 183.) It must apparently convey title. (79 Ill. 241.) The intent of the parties as to boundaries, as gathered from the language employed, will be effectual, (Tyler on Boundaries, 132,) and the surroundings under which the language was used may be considered to give construction to the words. That part of a description which the parties must be supposed most fully to understand, will triumph. (Lincoln v. Wilder, 29 Maine, 169.) The fence, and surveyor’s marks upon the ground, were, in themselves, facts. The statement of distance from the north-west corner of the Garrett tract was an attempt to describe a fact. 11 Ill. 554.

This case was before this court at a former term. (101 Ill. 483.) In passing upon the evidence given at a former trial, this deed was there treated as color of title, although it was held not to be color of title of record, because the stakes and the fence did not appear of record. Stevens, then, entered under color of title, and paid all taxes upon this land for seven consecutive years, the last payment being made June 12, 1869, as is shown by the tax receipts, fixing the date of the payment for each year. There can be no doubt as to his good faith, for no claim was made by Sherman to land north of the line of the old fence, until after 1869. This makes a prima facie case for the appellants. To rebut this, Sherman testifies, generally, and in answer to a leading question, that he, by himself or his agent, paid the taxes upon this same land for each of those years. He fails to show either the amount or the date of any of these payments. He produces no receipts for the taxes of those years, and no adequate reason for their non-production. He swears he has not all of his tax receipts in his possession, and that the agent who paid part of the taxes is dead. He does not show these tax receipts are lost or destroyed. The prima facie case of appellants must stand, unless appellee shows that the taxes on this land, for some one of these years, were paid before appellants made such payments.

It is insisted that this court, in its opinion in this case when it was' here before, held otherwise. At the first trial, counsel for appellants admitted, for the purposes of that trial, that appellee had paid all taxes for these years, and undertook to overcome that admission by proving that appellants had also paid taxes for the same years, but failed to show which payments for the same year were made first. We said, this admission must defeat appellants, in this regard, unless it was shown that appellants paid, each and every year, before the payment made by appellee. The defendants having admitted, on that trial, that plaintiff had paid the taxes for certain given years, may well be taken to be an admission that no one had paid the taxes before such payment by plaintiff, for if the same taxes had been paid already by another there would be no taxes to pay, and hence the admission itself, in the terms in that record, repelled the idea of a former payment by defendants. The case before us now contains no such admission. On the contrary, on this trial the appellants made a prima facie defence, by proving payment of taxes, and the date of each payment. To overcome this ease so made, the burden was cast upon appellee to prove payment of taxes for the same years, before the payment by appellants. Testimony that he had paid taxes for the same years does not affect the appellants, unless it be shown the taxes for some one of these years were paid by appellee before the date of appellants’ payment for the same year.

We think the defence was well sustained on the second trial. The judgment is therefore reversed, and the cause remanded.

Judgment reversed.


text:
    National Furnace Company v. Keystone Manufacturing Company.

      Filed at Ottawa May 19, 1884.

    1. Agency—general agent—what constitutes. A general agent is one authorized to transact all the business of his principal, or all his business of some particular kind.
    2. Same—proof of usage, in ascertaining the powers of an agent. In the ease of a general agent the law permits usage to enter into and enlarge the liability of the principal,, in respect to contracts made by the agent; and it has been held that the usages of a particular trade or business are admissible for the purpose of interpreting the powers given to an agent or factor.
    3. Same—extent of the powers of an agent in the particular case. A corporation engaged in the manufacture of pig iron, adopted, through its directory, a resolution, as follows: “¡Resolved, that A B, of Chicago, be and is hereby appointed and employed by this company as its sole agent for the consignment and sale of its entire product, he to receive a commission, ” etc. This agent assumed to authorize another to make contracts in respect to the subject matter of the agency, and the latter did contract, on behalf of the corporation, with another manufacturing company, to supply the latter with all the pig iron they should need, use or consume in their business during the then ensuing season of such business. It was shown to have been the custom in Chicago for iron brokers to employ salesmen to make contracts with manufacturers of like kind for the year’s supply of iron, to be delivered as ordered. On the question as to the authority of the agent, it was held, that under the resolution appointing him, in connection with the usage of trade in Chicago among this class of dealers, he had authority, as the general agent of his principal, to contract, through the instrumentality employed, for the sale of iron thereafter to be produced, and to be delivered in the future as ordered. His authority was not limited merely to the sale of the iron when it was ready for the market.
    4. And aside from any usage or custom among dealers, the resolution of appointment itself was broad enough in its terms to constitute the person appointed the general agent of the principal, in respect to the business to which it related, and authorized him to contract for the future delivery of iron, as was done.
    5. Contract—mutuality. A contract between a manufacturer of pig iron and another who is engaged in a business requiring the use of that article, that the former will supply to the latter, and that the latter will purchase from him, all the pig iron which he should need, use or consume in his business during the then ensuing season of such business,'—fixing the limit of time,—such amount supposed by the parties about a certain named quantity, is not wanting in the element of mutuality. The buyer is as much bound to procure from the seller all the pig iron he should need in his business during the stipulated time, as the seller is to furnish it.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Frederic Ullmann, for the appellant:
    _ As to the want of mutuality in the contract in this case: Bailey v. Austrian, 19 Minn. 535; 1 Parsons on Contracts, 449; Chicago and Great Eastern Ry. Co. v. Dane, 43 N. Y. 240; Houston and Texas Central Ry. Co. v. Mitchell, 38 Texas, 94; Burton v. Railroad Co. 9 Ex. 507; Great Northern R. R. Co. v. Witham, L. R. 9 C. P. 16; 1 Wharton on Contracts, sec. 14; Thayer v. Burkland, 99 Mass. 508.
    Messrs. Manahan & Ward, and Mr. C. H. Roberts, for the appellee:
    The distinction between a general and special agent is clearly defined by law. In the case of a special agent the scope of his authority is measured by the express directions he has received. In the case of general agents the law permits usage to enter in and enlarge' the liability of the principal. 1 Parsons on Contracts, 40, and cases cited.
    A special agent can not bind outside of his authority. Thornton v. Boyden, 31 Ill. 200.
    A general agent, within the scope of his authority, may exceed printed instructions. Home Life Ins. Co. v. Pierce, 75 Ill. 246; United States Life Ins. Co. v. Advance Co. 80 id. 549; Noble v. Nugent et al. 89 id. 522; Harris v. Simmerman, 81 id. 413.
    A general agent is one authorized to transact all of his principal’s business, or all of his business of some partieular kind, or at some particular place. 1 Parsons on Contracts, 40.
    A general agent may deal in accordance with the usage of trade. 4 Bradw. 63; Lyon v. Blair, 83 Ill. 33; United States Ins. Co. v. Advance Co. 80 id. 549; Bailey v. Bensley, 87 id. 556.
    The usages of a particular trade or business are properly admitted for the purpose of interpreting the powers given to an agent or factor. Phillips v. Moir, 69 Ill. 155; Lanssatt v. Lippincott, 6 S. & R. 386, quoting Lord Mansfield, in Wright v. Campbell, 4 Burr. 2046.
    An insurance agent can employ a clerk, and authorize him to contract for risks, etc., and the act of the clerk is the act of the agent, and binds the company. Bodine v. Ex. Ins. Co. 51 N. Y. 117; Savelin v. Green, 40 Wis. 431.
    An agent may appoint a sub-agent, where such is the usage of trade. He may sell in his own name. Strong v. Stewart, 9 Heisk. 148.
    Where custom of business authorizes such substitution: Wharton on Agents, sec. 29; Story on Agency, sec. 14; Eldridge v. Holway, 18 Ill. 447; Buckland v. Conway, 16 Mass. 396.
    There was mutuality in the contract. Smith v. Morse, 20 La. Ann. 220; Boutwell v. Keefe, 32 Barb. 434; Mahon v. Daly, 70 Ill. 653; Este v. Furlong, 59 id. 299.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by the Keystone Manufacturing Company, a corporation located at Sterling, Illinois, against the National Furnace Company, a corporation engaged in manufacturing pig iron at Depere, Wisconsin, to recover damages for the breach of a contract, under which it is claimed defendant sold plaintiff all of a certain quality of pig iron, known as “Lake Superior charcoal iron, ” which plaintiff should need, use or consume in its business during the then ensuing season of such business, to-wit, from the . 9th day of July, 1879, until July 1, 1880, such amount supposed by said parties to be about seven hundred tons.

It appears from the testimony, that A. B. Meeker & Co., of Chicago, were the sole agents of the appellant company for the consignment and sale of its entire product. This firm was composed of Meeker and Brown, who owned one-half of t'he capital stock of appellant. Smith and Hunt, the president and secretary, owned the balance of the stock. In 1879 William M. Cox was doing business in Chicago as a dealer in iron and coal, under the firm name of William M. Cox & Co. In 1878, Cherrie & Co., the firm of which Cox was then a member, had supplied appellee with the iron used that year in its business, Humphrey, who traveled for Cherrie & Co., having made the sale. In 1879 Humphrey was traveling for Cox & Co., and he made the sale of the iron in question for Cox & Co., who claimed to act by authority of A. B. Meeker & Co.

The first position of appellant is, that A. B. Meeker & Co. could not authorize Cox to bind the National Furnace Company by the contract in question, because they did not possess the power to bind the company by a contract for the future delivery of iron to be thereafter manufactured. The authority of Meeker & Co. to act for appellant will be found in a resolution adopted by appellant, as follows:

“Resolved, That A. B. Meeker & Co., of Chicago, be and are hereby appointed and employed by this company as its sole agents for the consignment and sale of its entire product, they to receive a commission, ” etc.

This resolution, it is claimed, only authorized the sale of the product of the furnace,—not to contract to sell its future product. We think this construction of the authority entirely too narrow. They were the sole agents for the sale of the entire product of the furnace. The terms of the resolution are broad enough to constitute Meeker & Co. the general agents of appellant for the sale of its entire product. A general agent is one authorized to transact all of his principal’s business, or all of his business of some particular kind. (1 Parsons on Contracts, 40.) In a note to the text it is said: “In the case of a general agent the law permits usage to enter in and enlarge the liability of the principal.” In Phillips v. Moir, 69 Ill. 156, it was held that the usages of a particular trade or business are properly admitted, for the purpose of interpreting the powers given to an agent or factor. See, also, Lyon v. Blair, 83 Ill. 33, where the same principle is announced.

It is clear, from the evidence, that it was the custom in Chicago for iron brokers to employ salesmen to travel on the road and make contracts with manufacturers, like appellee, for the year’s supply of iron, to be delivered as ordered. Indeed, appellant had furnished iron sold to others the same year this contract was made, which had been sold to be delivered in the future, according to such custom. The resolution, in connection with the usage of trade in Chicago among this cl^ss of dealers, clearly authorized Meeker & Co. to contract the product of appellant, to be delivered in the future. But, aside from the custom, we think the authority to sell broad enough to authorize sales for future delivery. Appellant had the undoubted right to contract with appellee to furnish a year’s supply of iron, to be delivered as it was needed in their business. It saw proper to delegate authority to sell, to Meeker & Co. They were made the sole agents for the sale of the entire product of the furnace, and, in our judgment, a fair and reasonable construction of the authority did not prevent Meeker & Co. from contracting the sale of the iron in advance, as was done here. The refusal of the court to give appellant’s instructions on this branch of the case, and the giving of appellee’s instructions, was therefore, in our judgment, correct.

But it is insisted, even if Meeker & Co. could authorize Cox to bind appellant by contract, there is no evidence that they ever delegated such authority to Cox. There was evidence tending to prove that Meeker & Co. authorized Cox to make the contract, and while the sufficiency of the evidence upon this point was a proper inquiry in the Appellate Court, under our practice the decision of the Appellate Court on a controverted question of fact can not be reviewed here. The same answer may properly be made to appellant’s third point.

The fourth point relied upon by appellant is: “Even if made by authority, the contract is not binding on appellant for want of mutuality. ” In the argument it is said: “Assuming that appellant had in reality authorized the making of a contract, by which it was to supply all the iron that might be needed in appellee’s business during the season of 1879, at $22.35 per ton, delivered on the cars at Sterling, it is urged that such a contract would be void for want of mutuality.” And upon this branch of the ease appellant asked the following instruction:

“If the jury believe, from the evidence, that the defendant did contract, through Cox, to sell the plaintiff all the National iron which the plaintiff might need for its season’s supply for the year or season of 1879, they are instructed that such a contract is void for want of certainty and for want of mutuality, and they will find their verdict for the defendant. ”

This the court refused, and in lieu thereof gave the following for plaintiff:

“The court instructs the jury, that if they find, from the evidence in this case, that in July or August, 1879, the defendant, by its agent or agents, made a contract with the plaintiff, by which the defendant agreed to sell and deliver to the plaintiff, on the cars, at Sterling, Illinois, sufficient Lake Superior charcoal pig iron of its own manufacture, for the then current season’s supply (ending June 30, 1880,) of the plaintiff’s business, at the price of $22.35 per ton, to be delivered on plaintiff’s orders or requisitions, from time to time, as fast as needed to keep up such supply, the plaintiff agreeing, in consideration thereof, to purchase said iron of the said defendant, and to order the same as so needed, and to pay defendant therefor, at the price aforesaid, upon the delivery of each car load at Sterling, such a contract would be valid in law, and mutually binding upon the respective parties thereto. ”

The decision of the court upon the point involved in the two instructions is the main question presented by the record.

The undertaking, here, was substantially this: Appellant agreed to deliver in car, at Sterling, Illinois, all the iron that appellee needed in its business during the then ensuing year, at $22.35 per ton. Appellee, on its part, agreed to take its year’s supply of iron of appellant, and pay for the same $22.35 per ton. We do not regard the contract void on the ground stated. It is true that appellee was only bound by the contract to accept of appellant the amount of iron it needed for use in its business; but a reasonable construction must be placed upon this part of the contract, in view of the situation of the parties. Appellee was engaged in a large manufacturing business, necessarily using a large quantity of iron in the transaction of its business. It is not to be presumed that appellee would close its business and need no iron, but, on the contrary, the reasonable presumption would be that the business would be continued, and appellee . would necessarily need the quantity of iron which it had been in the habit of using during previous years. It can not be said that appellee was not bound by the contract. It had no right to purchase iron elsewhere for use in its business. If it had done so, appellant might have maintained an action for a breach of the contract. It was bound by the contract to take of appellant, at the price named, its entire supply of iron for the year,—that is, such a quantity of. iron, in view of the situation and business of appellee, as was reasonably required and necessary in its manufacturing business. Such contracts are not unusual. A foundry may purchase its supply of coal for the season, of the coal dealer. A hotel may do the same. A city, for the use of the public schools, may engage its supply of coal for the winter, at a specified price. Such contracts are not uncommon, and we have never understood that they were void. Smith v. Morse, 20 La. Ann. 220, is a case in point. In this case Smith agreed to furnish Morse all the ice he might require for the use of his hotel for five years, at a certain price. Smith undertook to avoid the contract, on the ground that Morse was not bound, but the court held the contract valid and binding on both parties.'

Bailey v. Austrian, 19 Minn. 535, has been cited as an authority by appellant. The facts in that case are somewhat similar to the facts here, but we think there is a distinction between the cases. In the ease cited the contract provided that defendant should supply plaintiffs with what iron they should want, and the court turn the decision of the case on the construction placed upon the word want. In the opinion it is said: “Upon the foregoing state of facts the engagement of plaintiffs was to purchase all of said pig iron which they might want in their said business during the time specified, but they do not engage to want any quantity whatever. ” Here, appellee purchased all the iron it needed in its business,—its entire supply,—while in the case cited no engagement was made of what was needed, or the entire supply, but only what they might want. We think there is a clear distinction between the two cases, and the rule announced in the Minnesota case does not control here.

Under a reasonable construction of the contract appellee was bound to take of appellant all the iron needed in its business that season, and bound itself not to purchase elsewhere. Two car loads of iron were received under the contract, and orders given for the remainder of the supply. In view of all the circumstances we think the contract valid, and the construction placed upon it by the court in the instruction, correct.

The decision of the court in giving other instructions for appellee, and refusing other instructions asked by appellant, has been discussed in the argument, but we do not deem it necessary to go over all the objections in detail. After a careful examination of all the instructions, we think the law involved in the case was given to the jury, and so far as instructions are concerned, no substantial error appears in the record.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.