text:
    William H. Warder v. Paul Cornell et al.

      Filed at Ottawa November 20, 1882.

      1. Specific performance—refused after great delay and default, unexplained. A court of equity will not enforce the specific performance of a contract which has become stale, or where the complainant himself is in, default, when no sufficient excuse appears for the delay or for the default.
    2. " Same—estoppel by party’s acquiescence in claims of others. Where a purchaser of land thirty years before filing his bill for a specific performance, not having made any payments for the same, stands by and sees others who have bought and paid' for the land make valuable and costly improvements thereon, and allows others to purchase, making no objections, and interposing no claim to the property, during all which time he pays no taxes or assessments on the same, and takes no legal steps to assert his supposed rights, and does not call on those occupying the same and assert his ownership, or call for an account of the rents and profits, and in his bill gives no excuse for his delay and conduct, he will not be entitled to equitable relief, and his bill will be properly dismissed.
    3. Notice—what is given by the records. Subsequent purchasers of land, in the absence of express notice of latent equities in another than their grantors, can only be affected by such legal consequences as may be fairly drawn from the record itself; and when such records show that the claim of a prior purchaser has been cut off and defeated by a sale or foreclosure, or by a forfeiture of his contract, or of the contract of his vendor, such subsequent purchasers will have the right to rely on what is thus disclosed.
    4. Purchaser—rights of, defeated, by sale under foreclosure against his vendor, not revived by his vendor’s subsequent purchase. A and B, being the owners of land, contracted to sell the same to C, who afterwards contracted to sell the undivided three-eighths of the same to D. A and B gave deeds of trust on the same land to E, to secure a debt due to a bank, subject to their contract with 0. The bank foreclosed these deeds of trust, making A and B, and C and D, and others, parties, in which bills were sought a decree for the balance of the purchase money due under the contract of sale from A and B to C, and to foreclose and bar all claims of the defendants to the land under such contract, and a decree was entered accordingly, under which the lands were sold, and from which sale no redemption was had. Long after the redemption had expired, 0, by consecutive purchases, acquired reconveyances for a considerable portion of the land sold: Held, that by the foreclosure sale the rights of 0, under his contract of purchase from A and B, were cut off and barred, which also defeated D’s claim, and that the subsequent repurchase of some of these lands by 0 did not revive D’s rights in the property which had been thus cut off.
    5. Contract of sale—what is a declaration of forfeiture. Where a contract for the sale of land provides that if the purchaser fails to perform any of his covenants the vendor or his assigns shall have the right to declare the contract null and void, a sale by such vendor or his grantee, for a valuable consideration, to another party, is in effect a declaration of forfeiture of the purchaser’s contract.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Ttjley, Judge, presiding.

      Mr. John V. Le Moyne, and Mr. William Burry, for the appellant:
    To make a decree of strict foreclosure binding, it is necessary that some confirmatory order be entered after the expiration of the period limited for redemption, declaring the title vested in the proper persons. 2 Daniell’s Ch. Prac. *996; Mulvey v. Gibbons, 87 Ill. 381.
    As to what laches will defeat equitable relief, and what state of facts will excuse, counsel cited Hamilton v. Rook, 62 Ill. 139; Cox v. Montgomery, 43 id. 110; Hallesy v. Jackson, 66 id. 139; Michaud v. Girod, 4 How. 561; Boom v. Chiles, 10 Pet. 177; Johnson v. Diversey, 82 Ill. 446; Harper v. Ely, 56 id. 179.
    Such a contract as this, it being a joint speculation in land, part of tfie partners furnishing all the cash payments and another his services, etc., the profits of the adventure, after paying the purchase money, to be divided between the different partners, is a valid act, and may be enforced. Morrill v. Colehour, 82 Ill. 618; Marshall v. Perry, 90 id. 289; Marshall v. Peck, 91 id. 187; Honore v. Hutchins, 8 Bush, 689.
    No man can declare a forfeiture on a contract unless he is then in a position, and ready and willing, to carry out the contract on his part. Peck v. Brighton Co. 69 Ill. 200; Bishop v. Newton, 20 id. 178; Brown v. Cannon, 5 Gilm. 174; Baker v. Bishop Hill Colony, 45 id. 270; Mix v. Beach, 46 id. 311; Iglehart v. Gibson, 56 id. 88.
    The decree of foreclosure was set aside by the acts of the parties. At different times parcels of this land were purchased at the terms fixed by the decree of foreclosure. 2 Jones on Mortgages, secs. 1265, 1569; Smalley v. Hickok, 12 Ver. 163.
    Mr. E. S. Williams, for the appellees Farwell and others:
    The decrees of strict foreclosure, in the absence of any redemption, were sufficient to cut off the rights of appellant, even without any confirmatory decree. Mulvey v. Gibbons, 87 Ill. 367.
    The sale of the land by Cornell after default in payment, was a clear and unequivocal declaration of his prior contract of sale. Warren v. Richmond, 53 Ill. 54; Bostwick et al. v. Hess et al. 80 id. 145.
    The appellant’s rights were cut off under the foreclosure decrees of 1861. He was a party defendant to that suit, and served with process, but made no defence and paid no attention to the matter. Those decrees were, as to him, conclusive. Thomson v. Morris, 57 Ill. 334; Feaster v. Fleming, 56 id. 457; Osgood v. Blackman, 59 id. 265; Mulford v. Stalzenback, 46 id. 304; Stempel v. Thomas, 89 id. 146; Chicago, Alton and St. Louis R. R. Co. v. Holbrook, 92 id. 297.

      Laches for twenty-four years, unexplained, will, bar this action. Hough v. Coughlin et al. 41 Ill. 130; Walker v. Carrington et al. 74 id. 472; Munn et al. v. Burges, 70 id. 618; Williams v. Rhodes et al. 81 id. 588; Sloan v. Graham, 85 id. 30; Hamilton v. Lubukee, 51 id. 415; Kellogg v. Wilson, 89 id. 357; Dempster et al. v. West, 69 id. 614; McHaney v. Schenck, 88 id. 258; Rose v. Swann, 56 id. 40; Cox v. Montgomery, 36 id. 396; Brink v. Steadman, 70 id. 241; Thompson v. Brunn, 46 id. 125; McLaurie v. Barnes, 72 id. 77.
    Messrs. Hutchinson & Luff, for the appellee Samuel D. Ward:
    The interest of appellant in the land in question was absolutely divested by the decrees of strict foreclosure in favor of the Western Bank of Scotland. , He was a party to the suits, and regularly served with process. Chestnut v. Marsh, 12 Ill. 173; Buckmaster v. Rider, id. 207; Wimberly v. Hurst, 33 id. 166; Feaster v. Fleming, 56 id. 457; Hobson v. Ewan, 62 id. 146; Mulvey v. Gibbons, 87 id. 381; Stempel v. Thomas, 89 id. 146.

      Appellant’s claim is stale, and barred by laches. Hough T. Coughian, 41 Ill. 130; Gibson v. Rees, 50 id. 383; Walsh v. Brennan, 52 id. 193; Fitch v. Boyd, 55 id. 307; Rose v. Swann, 56 id. 37; Phelps v. Illinois Central R. R. Co. 63 id. 468; Hallesy v. Jackson, 66 id. 139; Carpenter v. Carpenter, 70 id. 457; Brink v. Steadman, id. 241; Williams v. Rhodes, 81 id. 571; O’Neal v. Boone, 82 id. 589; Castner v. Walrod, 83 id. 171; Sloan v. Graham, 85 id. 26; Kellogg v. Wilson, 89 id. 357; Marshall v. Perry, 90 id. 289; Lequatte v. Drury, 101 id. 77.
    Messrs. Leaming & Thompson, for a part of the appellees:
    The unexplained laches in this case is a bar to the relief sought. Taylor v. Merrill, 55 Ill. 54; Kimball v. Parke, 70 id. 553; Marshall v. Perry, 90 id. 289.
    The other points and authorities appear substantially in the preceding briefs.
   Mr. Justice Mulkey

delivered the opinion of the Court:

In October, 1874, Paul Cornell and the Cornell Watch Company filed in the circuit court of Cook county their petition, under what is known as the “Burnt Records act,” to establish title to certain valuable lands lying in the suburbs of Chicago, namely, the west half and the south-east quarter •of section 26, and the south-west quarter of section 23, town 38 north, range 14 east of the third principal meridian, being the same lands now in controversy. William H. Warder and others were made defendants to the petition. No process was ever issued or other steps taken in the cause till in October, 1880, when Warder appeared and filed an answer to the petition, and also a cross-bill, by which other persons were made parties to the controversy. The original petition having finally been dismissed for want of prosecution, the cause was submitted and heard upon the cross-bill alone, resulting in a decree dismissing the same for want of equity, and Warder, the appellant, brings the case here for review. By the present bill, which is in-the nature of a.bill for a specific performance, the appellant claims to be the equitable owner of an undivided three-eighths of the land in controversy, and seeks to have the title thereto established and declared to be in himself, and also to compel an accounting for the rents and profits, etc.

The evidence in the case is unusually voluminous, and, much of it, of a very unsatisfactory character. Upon certain important questions the testimony of the two principal' witnesses, Warder and Cornell, is in direct, hopeless conflict. Nevertheless, out of this great mass of evidence there appear certain undisputed facts, of so material and conclusive a character as to relieve the case of many difficulties it would otherwise present.

On the 10th of November, 1855, or thereabouts, Paul Cornell, by means of three separate written contracts, became the purchaser of the lands now in controversy. Two of these contracts were between Cornell and William B. Ogden, and the remaining one between Edwin H. Sheldon and William B. Ogden, as executors, and William B. Ogden in his own right, and the said Paul Cornell. These contracts all bear date November 10, 1855, and leaving out of view the diversity with respect to the considerations, descriptions of the land, and the names of the parties, they are precisely alike. By their terms one-fourth of the consideration was to be paid in cash, and the residue in three equal installments, on the first days of November, 1856, 1857 and 1858, respectively, with interest from date, at the rate of six per cent per annum, to be paid annually on the first day of November of each year. The purchaser also covenanted and agreed to pay all taxes and assessments on the premises subsequent to 1855, and in the event the seller was compelled to pay any such taxes or assessments, the amount so paid was to be regarded and treated as so much additional purchase money due from the purchaser to the seller. Upon the performance of these conditions the vendor was to make and deliver to the purchaser or his assigns a good and sufficient deed to the premises, with full covenants of warranty; and it was expressly provided that if Cornell, or his legal representatives or assigns, should fail to perform any or either of the covenants and undertakings on his part, the vendor, or his legal representatives, should have the right to declare the contract of sale null and void, and reclaim possession of the premises. The following payments are indorsed on said contracts, namely: On the first, $1139.50, November, 1855; • $395, November, 1856; $587.08, November, 1858. On the second, $2000, November, 1855; $350, November, 1856; $541, November, 1858. On the third, $1146, November, 1855; $200.66, October, 1856; $297, November, 1858,—making, in the aggregate, $6679.65. These payments were made partly in cash and partly in negotiable paper.

On the same day the above contracts were executed, as claimed by appellant, but some considerable time afterwards, as contended by Cornell, the latter sold to appellant an undivided three-eighths of the lands purchased by him, as above stated, and at the time delivered to him a memorandum of the terms of the sale, bearing the same date of his own purchases, namely, November 10, 1855, of which the following is a copy, except that it does not contain a description of the lands as the original did, namely:

“Chicago, November 10, 1855.

“I have this day sold to William H. Warder, of the city of Chicago, an equal undivided three-eighths interest in the land purchased this day of W. B. Ogden and others, said lands being described as follows, * * * at the same price and upon the same terms upon which I purchased of W. B. Ogden and others, reference for the price and terms of which is hereby had to the contract between said Ogden and myself. The first payment, being one-eighth down, has not yet been paid by Mr. Warder, and is still due, to be paid on call.

[Signed.]

Paul Coenell.”

By a similar contract, bearing the same date, Cornell sold, at the same rates and on like terms, two undivided eighths of the said lands to Marcus A. Farwell. All of the above contracts were duly recorded about the time of their execution, except the one from Cornell to Warder, which was not filed for record until the 27th of April, 1857.

Shortly after these sales to Cornell, to-wit, on the 28th of November, 1855, Ogden executed, subject .to said contracts, a deed of trust to Hasbrook Davis and J. P. Girard Foster, for the use of J. G. Bancroft Davis and James Thompson, as assignees of the Western Bank of Scotland, on the said west half of said section 26, and upon all their rights and interests under the said contracts. On the 16th of December, 1860, Ogden and Sheldon, as executors, and Ogden in his own right, executed to the same parties and for the same purposes a like deed of trust on the south-east quarter of said section 26. The first of these trust deeds was recorded on the 18th of March, 1858, and the second on the 28th of December, 1860.

Default having been made in the payment of the purchase money under the Cornell contracts, except as heretofore stated, the Western Bank of Scotland, and others^ on the 28th of December, 1860, filed in the Superior Court of Cook county two several bills against Cornell, Farwell, Warder, and others, by one of which they sought to obtain a decree for the balance of the purchase money due under the contract of sale from Ogden to Cornell, of the said west half of section 26, and to foreclose and forever bar all claims of the defendants to the same under said contract. By the other of said bills they sought a like decree with like effects as to the south-east quarter of said section 26, under the contract of Ogden and Sheldon, as executors, with Cornell. On the 7th of October, 1861, decrees were obtained in both these cases, in pursuance of the prayers of the bills respectively, under which all-the lands in controversy lying in section 26 were sold, from which sale it is conceded no redemption was ever made until the time for redemption had expired. Previous to this, to wit, in September, 1858, Ogden conveyed, subject to his contract with Cornell, the southwest quarter of section 23 to Philo Doolittle, who, by warranty deed of the date of January 21, 1861, conveyed the same to Farwell, Cornell having previously, on the 6th of September, 1859, also conveyed the undivided three-fourths of the same land to' Farwell, which deeds were all duly recorded, thus giving to the latter a perfect title of record to the said south-west quarter of section 23. The conveyance last referred to was in pursuance of an agreement between Cornell and Farwell, to the effect that the latter was to abandon all interest in and to the lands in section 26, and assume the payment of the balance due under the original contract between Ogden and Cornell on the land in section 23, which was something more than he would have been bound to pay under the original arrangement for his fourth interest in all the lands. In pursuance of this agreement Farwell fully paid the balance due on the land in section 23, which amounted to some $6000.

A few days before the execution of the conveyance just mentioned, to-wit, on the 3d of August, 1859, Cornell, for the consideration as expressed in the deed, conveyed to Charles H. Atkins the said west half of section 26, and on the 3d of September, 1861, for the consideration of $3500, as expressed in the deed, he also conveyed to Erastus S. Williams the south-east quarter of section 26, being the. residue of whatever interest he may at that time have had in the lands originally purchased by him of Ogden and Sheldon, as executors, or of Ogden in his own right. Long after the time for redemption under the foreclosure proceedings, as heretofore stated, had expired, and before 1870, Cornell from time to time, as he was able to do so, purchased and obtained reconveyances, in small parcels, for a considerable portion of the land originally purchased by him in section 26, which, after holding for some years, he sold and reconveyed to other parties, when he finally became a bankrupt, and received his discharge as such on the 3'lst.of August, 1878. Sometime during the year 1864, Farwell sold and conveyed the southwest quarter of section 23 to the cemetery company for $16,000, which was not fully paid for till 1869.

It is not pretended that appellant ever paid or offered to pay anything whatever on the interest in the land purchased by him from Cornell. It is claimed, however, that the proceeds of the sale of the south-west quarter of section 23 to the cemetery company were used by Cornell and Farwell in redeeming the lands in section 26 from the sale under the foreclosure proceedings, as heretofore stated, and that the money thus obtained and used was a common fund belonging to appellant, Cornell and Farwell, in proportion to their respective interests in the land in controversy. But this is distinctly denied by Cornell and Farwell both, and we feel constrained to accept their version of the matter upon this question, as the claim of appellant is unsustained except by his own evidence.

It appears further, that as early as in 1868 those having interests in these lands commenced making valuable improvements upon them, and that this continued up to the time of filing the cross-bill in this ease, without appellant’s making an objection or interposing any claim to the property, so that at that time the improvements amounted to over a half million of dollars. Moreover, during all the period intervening between his purchase from Cornell and the filing of his cross-bill,—being a period of over twenty-five years,—he never paid, as we have just seen, a cent on his purchase, nor did lie, during all that period, pay, or offer to pay, any assessments or taxes whatever on the property, nor did he take any legal steps to enforce any supposable rights he had in the property, or call on those occupying it and claiming it as ' owners to account to him for the rents and profits, or otherwise assert any acts of ownership over it, and he does not even assign the slightest reason which the law recognizes for not doing, so. And yet, in the face of all these uncontroverted facts, he now asks that the contract made by him with Cornell over thirty years ago be specifically performed, as against persons who have in good faith bought the property, and spent hundreds of thousands of dollars in improving it, while he stood by looking on in silence, without objecting or interposing the slightest claim to the same! To allow the relief sought, under these circumstances, would be to "wholly disregard all the well recognized principles relating to the law of specific performance. Nothing is better settled than that courts of equity will not enforce the specific performance of a contract which has become stale, or where the complainant himself is in default, where no sufficient excuse appears for the delay or for the default of the complainant, as is manifestly the case here.

But the bill is sought to be maintained upon the theory that the original transaction between Cornell," Warder and Farwell constitutes an express trust, against which the Statute of Limitations does not run, and that the various contracts and conveyances relating to these lands being of record, are constructive notice of such trust. But the fatal and conclusive objection to this theory is, that these contracts and conveyances which appear of record, so far from showing any trust or even community of interest between these parties, show the contrary. Subsequent purchasers, therefore, claiming through Cornell or his vendors, in the absence of express notice of latent equities, can only be affected by such legal consequences as may be fairly drawn from the record itself.

The question then recurs, what were the rights of Warder under the original contracts, and of which subsequent purchasers were bound to take notice? It is clear his rights were entirely subordinate to Cornell’s, under the Ogden and Ogden and Sheldon contracts. Whatever, therefore, would cut off the rights of Cornell under these contracts, would also, of necessity, defeat Warder’s claims to the land, whether he had performed his contract with Cornell or not. Now, it is clear, as we have already seen, that as to the land in section 26 Cornell never did pay for it, but, on the contrary, it was sold under the foreclosure proceedings to pay the purchase money, from which there was never any redemption; and by virtue of those proceedings the rights of Cornell and all other persons, including appellant, claiming -under those contracts, were forever cut off and barred, and the fact that Cornell, years afterwards, repurchased with his own means some of these lands,, could not and did not revive in appellant fights to the property which had been thus cut off. The record of these contracts further disclosed that Cornell, in his contract with Warder, expressly reserved the right to declare a forfeiture of it, and resume possession of the land, upon Warder’s failure to make prompt payment of the purchase money, as therein provided, and that long after the purchase money was due and payable, according to the terms of the contract, Cornell, as heretofore shown, sold and conveyed, for a valuable consideration, the lands in controversy to other parties, which was in legal effect a declstfration of forfeiture of Warder’s contract with him, as he, by the express terms of that contract, had a clear right to do. It will be thus seen that the record not only negatives the idea of a trust, but shows upon its face, to all persons dealing with the property, that Cornell expressly reserved the right, in his contract with Warder, to declare a forfeiture of the same in default of payment, and that this right was fully exercised by him in making the sale and conveyance of the property as just stated. And it also further appears, from the record, that a similar right was reserved to Ogden and his assigns in his contract with Cornell for the sale of the south-west quarter of section 23, and that,such right was subsequently exercised o by Philo Doolittle, the assignee of Ogden, by. his absolute conveyance of the land to Farwell on January 21, 1861, as heretofore stated.

It thus clearly appears, from the record of these transactions, that whatever rights Warder may have had under his contract with Cornell, they have long since been forfeited, unless, perhaps, he was prepared to show the right of forfeiture, under the circumstances, was improperly exercised, and also a legal. excuse .for the extraordinary delay in bringing suit, which has clearly not been done, and, indeed, could not be done under the pleadings, as now framed.

But waiving all these matters, and assuming the pleadings were properly framed for such purpose, and coming right down to the extraneous proofs relied on to show an express trust, we think it manifest they are wholly insufficient for such purpose. The only evidence which we regard as tending to establish this theory of the case, is the testimony of the appellant himself, and upon all material points relating to this question he is flatly contradicted by Cornell, and his own conduct, for a period of more than twenty years, is, when tested by ordinary business experience and prudence, wholly inconsistent with the claim .he now interposes. . Besides this, the testimony of Farwell and others clearly shows that his theory is not sustained by the facts upon one of the most important points in it. In attempting to excuse himself for a total failure to pay any part of the purchase money, he claims the lands in section 26, which were sold under the foreclosure proceedings, were redeemed with the proceeds of the sale of the lands in section 23 by Farwell to the cemetery company, and that his share of such proceeds was more than sufficient to pay his ratable proportion of the purchase money of all the lands in controversy. Mow, the weight of evidence clearly shows, as we have already seen, there is not a word of truth in this hypothesis; and conceding the appellant to he in error about this, as he manifestly is, it is too clear to admit of serious discussion there can be no recovery in this case, and it is therefore useless to consider other questions discussed by counsel in their briefs.

The assumption that Warder, Cornell and Far well were partners with respect to these lands, is not at all sustained by the evidence in this record, and the conduct of all the parties conclusively shows that no such relation existed between them, and that they never so understood it. The weight of evidence perhaps shows that Warder helped negotiate the original purchase of these lands, but he never contributed anything towards paying for them; and this is all the connection he ever had with the transaction, outside of his purchase from Cornell, which for more than twenty years, so far as any inference can be drawn from his conduct, he wholly abandoned. But suppose the transactions between these parties did constitute them partners originally, can it seriously be contended that after the lapse of twenty-five years or more a bill in equity will lie at the suit of a partner who has never contributed a single cent, either in money or labor, to such partnership, for the purpose of winding up the concern ? We think not.

The judgment will be affirmed.

Judgment' affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    North Chicago City Railway Company v. Town of Lake View.

      Filed at Springfield Sept. 28, 1882

      Rehearing denied January Term, 1883.

    Municipal corporation-—power to pass ordinance protecting use of its streets. . An incorporated town, by its charter clothed with a general police power over its streets, and also with a like general power over the subject of nuisances, has the right and authority to pass an ordinance requiring a city railway company to make its railway track, located in and along any of its streets, conform to the requirements thereof, so as to enable wagons, carnages and other vehicles to pass over its track without inconvenience or danger, and to punish for a failure to do so.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Criminal Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. W. C. Goudy, for the appellant:
    The railroad specified in the notice of the supervisor is not a horse railroad, and' it does not come within the provisions of the ordinance. Penal statutes and ordinances are to be strictly construed. Waddle v. Duncan, 63 Ill. 223; Chicago and Alton R. R. Co. v. Howard, 38 id. 414; Chicago v. Rumpff, 45 id. 90; Bullock v. Geomble, id. 218; Chicago and Northwestern R. R. Co. v. Stanbro, 87 id. 195; Lair v. Killmer, 1 Dutch. 525.
    The ordinance under which the conviction was had was invalid, for the want "of authority in the board of trustees to pass it. A municipal corporation can only exercise such powers as may be expressly conferred upon it by the legislature, or such as are necessary to carry out the powers expressly granted. Chicago v. Rumpff, 45 Ill. 90; Dillon on Municipal Corp. secs. 89, 141; Schott v. People, 89 Ill. 195; Champaign v. Harmon, 98 id. 491; Sherlock v. Winnetka, 68 id. 530; Miller v. Goodwin, 70 id. 663; People v. Village of

      Crotty, 93 id. 180; Cook County v. McCrea, id. 236; Allen v. Insurance Co. 72 id. 329.
    If it should be claimed that this ordinance can be sustained under a general police power, the answer is, first, that no general police power is conferred upon this board of trustees; and second, that local improvements can not be compelled under a general police power, as expressly decided in Gridley v. Bloomington, 88 Ill. 557, and Ottawa v. Spencer, 40 id. 211. See, also, Cooley on Taxation, 106.
    Mr. M. W. Robinson, for the appellee:
    So much of the ordinance as is in question in this case is a valid and reasonable exercise of the police power of the town over the streets. Kettering v. Jacksonville, 50 Ill. 39; Fash v. Third Avenue Ry. Co. 1 Daly, 150; Regina v. Train, 2 B. & S. 640.
    The things complained of are in violation .of appellant’s charter, and of the conditions under which its tracks were allowed to be laid.
    That the supervisor’s notice was sufficient, see Town of Lewiston v. Proctor, 27 Ill. 419.
   Per Curiam:

This is an appeal by the North Chicago City Bailway Company from a judgment of the Appellate Court for the First District, affirming a conviction of the company in the Criminal Court of Cook county, under a town ordinance of;the town of Lake View, for a failure on the part of the company to make its railway track, located in and along one of the streets of the town, conform to the requirements of the town ordinance, so as to enable wagons, carriages and other vehicles to pass over its tracks without inconvenience or danger.

It was held in another case between the same parties, decided at the present term of this court, (post, p. 207,) that the municipal authorities of the town of Lake View are, by virtue of the provisions contained in its charter, clothed with a general police power over the streets of the town, and also with a like general power, over the subject of nuisances, and that by virtue of these powers they had the right and authority to declare the running and operating its cars on a street railway by means of a dummy engine propelled by steam, in the absence of a legislative grant for that purpose, a nuisance; and if we are correct in the conclusion reached in that ease, it must be conceded the town authorities had ample authority to adopt the ordinance under which this prosecution was instituted, and of this we have no doubt. So far as the facts are concerned which were necessary to be shown in order to bring the case within the .provisions of the ordinance, we have nothing to do with them. They are conclusively settled by the judgment of the Appellate Court.

Conceding, then, as we must, the town authorities had the right to pass the ordinance, and that appellant is conclusively shown to have committed a breach of it, it follows the conviction was proper, and that the judgment of the Appellate Court should therefore be affirmed, which is accordingly done.

Judgment affirmed.

Mr. Chief Justice Scott dissenting.


author: Mr. Chief Justice Scott

text:
    C. M. Capen et al. v. The De Steiger Glass Company.

      Filed at Springfield Sept. 28, 1882

      Rehearing denied January Term, 1883.

    1. Appeal—as to the amount involved. Where the plaintiff in an action of assumpsit claimed $864 as the contract price on fifty-four gross of fruit jars, part of a lot of five hundred gross sold, two hundred and ninety-nine gross of which were not delivered, and the defendant, by pleas of set-off, claimed damages exceeding $1000 for breach of the contract of sale, and the plaintiff recovered judgment for §450, which was affirmed in the Appellate Court, it was held, that an appeal would lie to this court from the Appellate Court, as more than the sum of $1000 was involved. . ■
    2. Same—reviewing controverted facts. In assumpsit to recover the price of goods sold and delivered, where’ the defendant sets up a special contract for the sale and delivery of a much larger quantity, and a breach thereof, and the evidence is conflicting, the.finding óf the facts by the Appellate Court the same as by the jury and trial court, is conclusive upon this court, and by the Practice act no assignment of error can be allowed to call in question such finding.
    3. Evidence—questioning evidence called out on cross-examination. Counsel will not be allowed to cross-examine a witness, and if the testimony elicited is not satisfactory, have it excluded. A party will not be allowed to experiment with a witness in this way.
    4. Same—letters from strangers to suit not admissible. A postal card and a letter received by a party to a suit from a third person in reply to letters by such party in-relation to the matters in litigation, are not admissible as evidence for such party. The testimony of the persons writing such letters should be taken in the usual way, so that they might be subject to cross-examination.
    5. Measure of damages—/or neglect to supply articles sold and agreed to be delivered. The true measure of damages for a breach of a contract to sell and deliver five hundred gross of fruit jars, a part of which only were delivered, is the difference between the contract price and the market value of such articles at the time and place fixed by the contract for delivery. If such articles can not be had in the market where by the contract they were to have been delivered, they may be bought in the nearest market, and the additional cost of getting them there will be the cost in the market where they were to be delivered.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Oweñ T. Beeves, Judge, presiding.
    This was an action of assumpsit, brought by the De Steiger Glass Company, against C. M. & J. S. Capen, to recover the price of fifty-four gross of Mason’s patent fruit jars, sold and delivered. The contract price was $16 per gross. The defence was that the plaintiff, had. sold and agreed to deliver to the defendants five hundred gross. There was a contract between the parties for eight ear loads, or five hundred gross, of the fruit jars, for the price above stated. Of these, one hundred and forty-seven gross were delivered and paid for, and fifty-four gross were delivered and not paid for, leaving a deficiency of two hundred and ninety-nine gross not delivered. The price of the fifty-four gross was $864.
    Under the defendants’ pleas of set-off, proof was introduced, and not disputed, that they were entitled to a credit of $50 for defective goods, and $110.50 for shortage of covers, and for expenses of a trip to La Salle of $4. The sole controversy was over the other items, arising from the failure to deliver the two hundred and ninety-nine gross. The defendants claimed, both in their pleadings and testimony, that they were only able to purchase two hundred and thirteen and one-half gross at any price, anywhere, and that these were bought at Pittsburg, and cost them $5 a gross more than the contract price with the plaintiff, and that they paid for freight on same, $104.78, leaving eighty-five and a half gross that the defendants were unable to obtain anywhere. Under their fourth plea they set up that their loss upon these eighty-five and a half gross was $8 per gross.
    The account contended for by defendants was as follows :
    For defective goods, -......$50.00
    “ shortage of covers, ------- 110.50

      “ trip to La Salle, ------- 4.00
    “ jars bought at Pittsburg, $5 additional price - 1047.50
    “ additional freight on them,.....104.78
    “ the 85J gross (at least)...... 427.50
    Total,.........$1764.28
    Contra, - -- -- -- -- 864.00
    $900.28
    Instead of this amount in favor of the defendants, the judgment against them was for $450. From this judgment the defendants appealed to the Appellate Court for the Third District, where the judgment was affirmed, and that court granted an appeal to this court.'

      Messrs. Williams, Burr & Capen, for the appellants:
    On motion to dismiss, we say this court has decided that what is actually in controversy under pleas of set-off should be taken,into consideration. Moshier v. Shew, 100 Ill. 469; Baber v. Pittsburg, Cin. and St. Louis R. R. Co. 93 id. 342.
    In ease of breach of contract, the injured party, after using reasonable exertions to make his loss as small as possible, is entitled to all the damages naturally arising therefrom, and which was within the contemplation of the parties to the contract. White v. Miller, 78 N. Y. 393; Mihills Manf. Co. v. Day, 50 Iowa, 250.
    While the usual basis for damages is the market price of the article at the time and place, of delivery, .still,. where there is no market value at that place at that time, 'the evidence at other markets is admissible. There is no fixed rule upon the subject. The only question is, under all the circumstances, what is just compensation for the loss sustained. Thorne v. McVeagh, 75 Ill. 81; Dana v. Fiedler, 12 N. Y. 40; Coweta Falls Manf. Co. v. Rogers, 19 Ga. 416.
    Hearsay is never admissible where better testimony can be adduced. To admit it, is error. 1 Phillips on Evidence, 169; Mima Queen v. Hepburn, 7 Cr. 290; Everingham v. Mesroon, 2 Brev. 461; Page v. Parker, 40 N. H. 47; Corey v. McDaniel, 42 Ill. 512; Bishop v. Georgeson, 60 id. 484.
    And this rule applies as strongly to market values as to evidence of anything else. Heath V. West, 26 N. H. 191; Kost v. Bender, 25 Mich. 515; Powell v. Governor, 9 Ala. (N. S.) 36; Green v. Caulk, 16 Md. 556.
    Messrs. Stevenson & Ewing, for the appellee:
    Unless the amount involved was $1000, exclusive of costs, this- court has no jurisdiction. This can not be shown by the pleadings, and it must appear from the finding of the lower court. Lewis v. Shear, 93 Ill. 121; Piper v. Jackson, 98 id. 389.

      This court can not look into the evidence, but must take the facts to be as found by the Appellate Court. The case depends entirely upon questions of fact, which this court is precluded from considering.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This action was brought by the De Steiger Glass Company, against C. M.-& J. S. Capen, to recover for fifty-four gross of the Mason patent fruit jars, at the rate of $16 per gross, which plaintiff had sold and delivered to defendants. There is no controversy as to the number of jars plaintiff had delivered to defendants, nor as to the number not paid for, or as to the price. ' The defence insisted upon is, that plaintiff had contracted to -sell- and deliver to defendants five hundred gross of such jars, at prices agreed upon, but had failed to deliver two hundred and ninety-nine gross, and by reason of such failure defendants had sustained damages in excess of any sum due plaintiff, which they, by their pleas, offered to set off against the claim of plaintiff, and asked for a judgment over for- any sum that might appear to be due to them. The cause was submitted to a jury in the circuit court, who returned a verdict for plaintiff, and assessed its damages at $500. A motion for a new trial was entered. Plaintiff thereupon entered a remittitur of $50, and the court overruled the motion for a new trial and rendered judgment on the verdict for $450 in favor of plaintiff. That judgment was affirmed in the Appellate Court, and defendants bring the case to this court on appeal.

A motion has been made to dismiss this appeal because the sum of $1000, exclusive of costs, is not involved. That motion Was reserved to the final hearing, that it might be more fully considered ■ than it could be on a mere motion. The question as to the jurisdiction of this court to hear the appeal has been fully and carefully considered, and a majority of the court are of opinion the case falls within the rule declared, in Moshier v. Shear, 100 Ill. 469, and that on the authority of that decision the motion to dismiss the appeal should be overruled. On this point in the ease the writer of this opinion does not agree with the majority of the court.

Of the set-off pleaded, defendants, by the judgment of the trial court, were allowed |414, which was deducted from the amount of plaintiff’s claim. The amount of damages sustained by defendants on account of the alleged breach of their contract with plaintiff could only be ascertained from the evidence, which was quite conflicting. It'was the province of the jury to weigh the evidence and determine the facts. That was done, and since the Appellate Court, by the affirmance of the judgment, found the facts the same way, the finding of the latter court is conclusive upon this court, and by the Practice act no assignment of error shall be allowed which shall call in question the determination of the inferior or Appellate Court upon controverted questions of fact, in cases like the one being considered. It only remains, therefore, to consider such questions of law as arise upon the record.

Two objections are. insisted upon as being fatal to the present judgment: First, that the court- admitted improper evidence for plaintiff, and refused proper evidence tendered by defendants; and second, that the court erred in giving and refusing instructions. Most complaint is made as to • the testimony of the witness De Steiger. It will be seen on examination that the testimony of that witness, as given on his direct examination, is unexceptionable. That part of his evidence to which objection is taken, was brought out on cross-examination of the witness by counsel now insisting it is improper. Of that there can be no just ground for complaint. Counsel will not be allowed to cross-examine a witness, and if the testimony elicited is not satisfactory, have it excluded. That "would enable a party to experiment with a witness, which is not allowable. The same may be said as to the testimony of other witnesses to 'which exceptions were taken. In the action of the court in refusing to exclude testimony called out by defendants on cross-examination, there was no error hurtful to defendants. Nor was there any error in the ruling of the court in excluding testimony tendered by defendants. A postal card and a letter received by mail from manufacturers or dealers in the class of goods in controversy, in answer to letters addressed to them, were offered by defendants, as evidence, but the court refused to allow them to be read to the jury. It is not perceived on what principle these letters could be admitted as legitimate evidence. If it were desirable to prove the facts to which the letters refer, the depositions of the parties should have been taken in the usual mode, or the witnesses produced in open court, that they might be subjected to cross-examination.

As respects the measure of damages for the alleged breach of the contract pleaded, the law is, defendants would be entitled to recover the difference between the contract price and the market value of such articles at the time and place fixed by the contract for delivery. If the articles could not then be had in the market where, by the contract, they were to be delivered, the rule is they may be bought in the nearest market, and the additional cost of getting the goods there would be the cost in the market where they were to be delivered. It will be seen the instructions given conform with sufficient accuracy to this view of the law, and there was no error that could affect injuriously the defence made in the rulings of the court in giving and refusing instructions. Indeed, the instructions, considering them altogether, state the law as favorably for defendants as they had any right to ask to have it given to the jury.

No error appearing in the record that can be reviewed in •this court, the judgment of the Appellate Court must be affirmed, which is done.

Judgment affirmed.


text:
    Abial B. Sawyer et al. v. Solomon Moyer et al.

      Filed at Springfield Sept. 28, 1882

      Rehearing denied January Term, 1883.

      Appeal—creditor’s MU involves no freehold, so as to give appeal directly to this court. A creditor’s bill to set aside fraudulent conveyances of a debtor, and subject the lands conveyed to sale for the payment of the creditor’s judgment, does not involve any freehold, and therefore no appeal lies directly from a decree of the trial court dismissing such bill, to this court.
    Appeal from the Circuit Court of Tazewell county; the Hon. Ninian M. Laws, ' Judge, presiding.
    Mr. A. B. Sawyer, Messrs. Cohrs & Rider, and Mr. Wm. Don Maus, for the appellants.
    Messrs. Prettyman & Dougherty, for the appellees.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This was a creditor’s bill, and was brought by Abial B. Sawyer, and other -judgment creditors of Solomon Moyer, against Solomon Moyer, Henry Moyer, Sarah Ann Moyer, and Mary Moyer, in the circuit court of Tazewell county. The recovery of judgments at law in favor of complainants against Solomon Moyer is set forth in the bill, and then it is alleged, that at the time, and after the indebtedness to complainants was contracted, Solomon Moyer was the owner of valuable real estate in Tazewell and McLean counties, and that after-wards,—but before complainants recovered their judgments at law against him,—Solomon Moyer conveyed a part of his :real estate to Henry Moyer,-and another part to Sarah Ann Moyer; that subsequently, Henry Moyer and Sarah Ann Moyer conveyed such real estate to Mary Moyer, and that such conveyances were all colorable, and made without any valuable consideration, with a view to hinder and delay the creditors of Solomon Moyer in the collection of their judgments against him. It is further alleged that Solomon Moyer has now no other property, real or personal, subject to levy and sale on execution. Answering, defendants admitted the recovery of the. several judgments mentioned, by complainants, against Solomon Moyer, and also the several conveyances as alleged in the bill, but assert the good faith of the transactions, and the conveyances were all bona fide sales, for a full and valuable consideration, and with no view to hinder and delay the creditors of Solomon Moyer in the collection of their just claims against him. Replications were filed to the answers of defendants, and the cause was submitted upon the issue made by the pleadings and the proofs taken. The court found for defendants, and dismissed the bill, and complainants bring the case directly to. this court on appeal.

It is not perceived on what ground this court has jurisdiction to hear this appeal. Certainly no freehold is involved. The prayer of the bill is, that the several conveyances made by Solomon Moyer to his co-defendants be declared fraudulent as to complainants, and the lands subjected to the payment of their respective judgments, in like manner as if the title to the property still remained in the judgment debtor. It would ■ seem that in such a case the title to the property is no more involved than in a proceeding to foreclose a mortgage and subject the lands to the payment of the mortgage indebtedness. As between the defendants, a court of equity would not interfere to set aside any of the conveyances, but would, for- all purposes, treat them as valid, no matter with what view they had been executed. The utmost that could be done, in any event, would be to subject the lands in the present holders to the payment of complainants’ judgments, and that might, or might not, involve the title to the lands. Should defendants pay off the judgments, or redeem the lands in case of a sale, that would relieve the land of all burdens, and leave the title perfect in the judgment debtor’s grantees, in like manner as the payment of the mortgage indebtedness would relieve the land of all burdens, and leave the title perfect in the grantee of the mortgagor.

The appeal will be dismissed.

Appeal dismissed.


author: Mr. Justice Sheldon

text:
    Dugald A. McMillan v. Ebenezer James et al.

      Filed at Ottawa November 20, 1882

    1. Arbitration and award—certainty in the award. The matters involved in a suit in chancery instituted for the dissolution of a partnership existing between the parties, for an accounting, and for the appointment of a receiver, etc., were referred to arbitrators. The business of the firm was the manufacture and sale of lumber. One clause of the award provided “that the two-thirds interest in the land occupied by E. 3. (one of .the partners,) for his saw-mill, be charged to him at $10 per acre,—descriptions and acres being as follows:” giving a description of the land, the number of acres, and. the amount as being $307.33. On objection that it was uncertain from the award whether the partner E. 3. was to have title to the land described in this clause at the sum of $307.33, or whether that sum was to be charged to him for the use of the land, it was considered, reading that clause by itself would raise a doubt in that respect. But subsequent clauses in the award found that the partnership did not own any of the improvements on the land so described, and directed that the partners convey all the partnership lands, including the tract occupied by the mill, to the receiver, to be sold for partnership purposes. This cleared up the uncertainty complained of, and showed that the partner E. 3. was not to have title to the land so occupied by him, but was to be charged $307.33 for its use and occupation.
    2. Same—award to be liberally construed. An award being the judgment of a tribunal of the parties’ own choosing, should be liberally construed to sustain it.
    3. Same—what is embraced in the submission—as to the scope of a bill in chancery—allowance of interest on money advanced by a partner. A bill in chancery for the dissolution of a partnership, the appointment of a receiver, and the settlement of the partnership accounts, in a statement of the condition of the firm as to solvency, under the head of its indebtedness, gave the following: “For capital invested therein by complainants jointly, $33,416.57, ” and “for capital invested therein by James alone, $20,295.70;” but it appeared therein that this -last item was paid by James to save the partnership property, in which he was interested, from sale under mortgage for a debt owing by the firm, and which he was not required to pay alone by any partnership arrangement: Held, that the mention in the bill of this sum as capital invested by James, should not be taken as meaning anything more than that it was money advanced by him for the use of the partnership, and that such characterization would not preclude him from the right to interest on the sum so paid by him. So, on a submission to arbitration of the matters involved in the bill, the question of the allowance of such interest was proper to be considered by the arbitrators.
    4. Same—award not defeated by a conditional sale by one of the parties. Where an award is made, under a submission of a bill in chancery for the settlement of partnership matters to. arbitration, that two of the partners holding partnership lands in trust for the firm shall convey the same to a receiver appointed by the court, to be sold for the benefit of the firm, the fact that one of the partners so holding the title in trust has made a conditional sale of the same, to be binding if he shall within two years acquire the title, will afford no ground for refusing judgment on the award and for setting it aside. Such an arrangement would not embarrass the title, or interfere with the ability of the partners holding the title to convey it to the receiver, or affect the sale of the lands to be made by him.
    5. Subbogation—to mortgage lien a joint owner is compelled to pay to protect his own interest. Where two partners purchase lands in trust for the firm, giving a mortgage back to secure the purchase money, which the whole firm is to pay, but neglects to do, and one of the partners is compelled to pay the debt to protect his own interest and save the property from sale under a power in the mortgage, he will have a clear right to be subrogated to the lien of the mortgagee.
    6. Pbactice—time to malee objection. An objection to the entry of judgment upon an award made under a submission by order of the court, which might be obviated by further evidence in the court below, comes too late when made in this court for the first time. To be availed of it should be made in the court below, so as to give an opportunity to meet and remove the ground of objection.
    7. Ohanceby—complainant not limited to the particular relief prayed for. A. complainant in a bill with a prayer for general relief, may have such relief as the facts stated in the bill, and proven, entitle him to, without his having in the bill claimed or averred title to that particular relief.
    8. Same—complainant not bound by incorrect conclusion from facts. A complainant in a bill should not be concluded by a statement therein, when it is manifest that it is an incorrect conclusion from the actual facts stated.

      Writ of Error to the Appellate Court for the Second District ;—heard in that- court on appeal from the Circuit Court of Stephenson county; the Hon., William Brown, Judge, presiding.
    Mr. J. A. Crain, for the plaintiff in error:
    The award is void for uncertainty, and because it can not be known thereby whether James is to have the land mentioned in the 17th clause or not. Ingram v. Wetmore, 75 Ill. 31; McDonnell v. Bacon, 3 Scam. 428; Tucker v. Page, 69 Ill. 179; Alfred v. Kankakee R. R. Co. 92 id. 609.
    The bill fixes the character of the money on which interest was allowed, as capital invested, upon which, per se, interest is not allowable. Moss v. McCall, 75 Ill. 190; Tutt v. Lund, 50 Ga. 339; Beachams v. Eckford, 2 Sandf. Ch. 127; 2 Lindley on Partnership, 786.
    It was improper to allow interest in the award as to matters in which none was claimed in bill which was referred. Merritt v. Thompson, 27 N. Y. 229; Chase v. Strain, 15 N. H. 538; In re Williams, 4 Denio, 199; Race v. Sullivan, 1 Bradw. 98; Mills v. Hany, 35 Ill. 174; Udall v. Steamship “Ohio,” 17 How. 18; Chester v. Lewis, 29 Ill. 503; Prescott v. Maxwell, 48 id. 83; Herman v. Shrader, 74 id. 160.
    As to the effect of the sale by James after the award but before decree, see Eastman v. Armstrong, 26 Ill. 218; Burnsides v. Potts, 23 id. 415; Adams v. Bradley, 12 Mich. 349.
    Mr. Henry C. Hyde, for the defendants in error:
    Arbitrators being a tribunal of the parties’own selection, every presumption will be indulged to sustain their award. Hadaway v. Kelly, 78 Ill. 286; Burrows v. Guthrie, 61 id. 70; Darst v. Collier, 86 id. 96; Henrickson v. Reinback, 33 id. 299; McDonald v. Arnout, 14 id. 58.
    The award finding these lands partnership property, and partnership liabilities, exceeding $60,000, properly directed a conveyance and sale of them to pay debts of the firm. A court of equity' would have done the same thing. Collyer on Partnership, (6th ed.) sec. 383; 3 Kent’s Commentaries, sec. 64; Bopp v. Fox et al. 63 Ill. 540; Ruffner v. McConnel, 17 id. 212; Gudgell v. Pettigrew, 26 id. 305.
    Certainty to a common intent is all that is required under the rule that an award must be certain. Tucker v. Page, 69 Ill. 179; Burrows v. Guthrie, 61 id. 70.
    The clause charging James a certain sum for the premises occupied by him for a saw-mill, is explained by a subsequent direction requiring him to convey the same to the receiver, to be sold with the other partnership property. This shows the charge was for the ,prior use of the property only.
    The complainant is not concluded by stating, as a legal conclusion, that certain payments for the firm were capital invested. His rights will depend upon the actual facts stated. Allen et al. v. Woodruff et al. 96 Ill. 10.
    It is objected that no interest could be allowed because not specifically prayed for in the bill. Under the general prayer it could be allowed if justified by the facts stated in the bill. Hopkins et al. v. Snedaker, 71 Ill. 449; Stanley v. Valentine, 79 id. 544.
    As to James’ right to subrogation, see Jacques et al. v. Fackney et al. 64 Ill. 87; City National Bank of Ottawa v. Dudgeon, 65 id. 11; Billings v. Sprague, 49 id. 509; Phones v. Barber, 49 id. 379; Kirkpatrick v. Howk, 80 id. 122; Simpson v. Gardner, 97 id. 237.
    The right of a trustee in equity to be reimbursed, principal and interest, for money voluntarily paid in discharging an incumbrance on trust property, is well settled. Hill on Trustees, (3d Am. ed.) 572; Murray v. De Rottenham, 6 Johns. Ch. 52; King v. Cushman, 41 Ill. 31; Quackenbush v. Leonard, 9 Paige, 334; Draper v. Gordon, 4 Sandf. Ch. 210; McClanahan v. Henderson, 2 A. K. Marsh. 388.

      If there was anything in the objection that James had put it out of his power to perform the award, by a sale of the property, it should have been raised in the court below to the rendition of judgment on the award, and comes now .too late. Duncan v. Fletcher, Breese, 252; Gudgell v. Pettigrew, 26 Ill. 305; Burrows v. Guthrie, 61 id. 70.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Ebenezer James and Augustus T. Stelle filed their bill of complaint in the Stephenson county circuit court, against Dugald McMillan, May 22, 1878, praying for a dissolution of the partnership between the parties, an accounting, the appointment of a receiver, and for relief generally. The' bill alleged a verbal co-partnership was formed in 1871, between the complainants, who were residents of Wisconsin, where they had been engaged in manufacturing lumber, and the defendant, who ivas carrying on a lumber yard at Free-port,* Illinois, the partnership being formed to do a lumber business at Freeport, and all that was agreed to-being, that complainants should each share one-fourth, and defendant' one-half, the profits and losses, and defendant to devote his entire time and attention to the business. A receiver of the firm assets was appointed, the defendant filed his answer to the bill, and at the March term, 1880, of the circuit court, the parties agreed to submit the cause to arbitration, and in accordance with their written -stipulation the-court made an order of reference and submission of the “cause and the • matters involved in said suit, the same being for a full and final settlement of the partnership, ” to the arbitration of three persons chosen by the parties. The arbitrators made their award on the 4th day of September, 1880, and the complainants filed a copy of the award in the circuit court, at its September term, 1880, and at the December term, 1880, moved for judgment on the award, and the defendant filed objections. The motion was heard at the -March term, 1881, and the defendant’s objections .were overruled, and a decree rendered -upon the award. Defendant brought this writ of error to reverse the decree.

The question' which is presented is upon the sufficiency of the objections to the entry of judgment on the award. There is no pretense of any fraud or misconduct whatever in respect of the making of the award.

There were several specific objections to the award filed in the court below, one of which was, that the 17th clause of the award is indefinite and uncertain. That clause is as follows:

“17. That the two-thirds (§) interest in the land occupied by Ebenezer James for his saw-mill, be charged to him at $10 per acre,—descriptions and acres being as follows: The undivided two-thirds (§) of lot two (2), section six (6), town forty-one (41) north, range 15 west, containing forty-six (46) and acres, according to government survey, and amounting to $307.33.”

It is said to be uncertain whether James is to have title to the land described in this clause at $307.33, or whether that sum is to be charged to James for the use of the land. Reading the clause by itself does raise a doubt in this respect. This two-thirds interest was the interest of the partnership in the land, the title standing in the names of James and McMillan, one-third in each, in trust for the partnership, the other one-third being owned by one McArthur. The next following clause in the award finds that the partnership do not own any of the improvements on the land mentioned in clause 17. By the 19th and 20th clauses of the award both the defendant and'James are ordered to convey all partnership lands, including said lot 2, to the receiver, and he is ordered to sell the same for partnership purposes. This seems to clear up the uncertainty there is in clause 17,— whether James is to have the title to the 46-J^ acres described therein.

Taking th'e whole award together, then, it would seem to show that this tract was not to be conveyed to James, and he have title to it, but that it was to be conveyed by James and McMillan to the receiver, to be sold by him for partnership uses, and that the construction should be that this charge of $307.33 against James was for the use and occupation of the land. An award being the judgment of a tribunal of the parties’ own choosing, should be liberally construed to sustain it. Henrickson v. Reinbeck, 33 Ill. 302.

The affairs of this partnership were very extended and complicated. The award must have been the result of a long and laborious investigation. Counsel say several weeks were spent in hearing evidence. This 46 acres of land was but one tract of a quantity of some 14,000 acres of pine lands in which the partnership had a two-thirds interest, and it would be a matter of regret if the whole award should have to be set aside for the uncertainty which appears in this comparatively insignificant portion of it. We can not think that the legal rule as to the certainty of awards requires that this award should be set aside upon the ground of this objection, and we hold it insufficient.

The 5th and 6th clauses of the award are:

“5. That Ebenezer James, individually, has paid on lands belonging to the firm the sum of $20,301.60, being the lands described in the bill.

“6. That Ebenezer James paid the above mentioned amount to protect partnership property, and is entitled to interest thereon from the time of making said payments, at the rate of seven per cent per annum, which, up to the date of this finding, amounts to $8044.”

Another of the objections is to this allowance of interest. It is claimed that this interest was not involved in the suit, and so was not a subject of the submission which was made to the arbitrators. The bill sets out that the landed property which is found by the 5th and 6th clauses of the award to belong to the firm, was purchased by and for the firm in 1872, of the vendors, Dean and Decker, for $41,315; that the lands were pine lands, situate in the State of Michigan ; that the legal title thereto was taken in the names of James and defendant, McMillan, as tenants in common, but that they held the same as trustees of the firm; that to secure part of the purchase money therefor, McMillan and James gave their joint notes to Dean for $16,087, and to Decker for $21,226, and secured the payment of the notes by their joint mortgages on the lands to Dean and Decker; that some of the notes drew interest at ten per cent, and the remainder at eight per cent, per annum, and that the notes and mortgages were given pursuant to an agreement between the firm and James that the same should be paid, as they fell due, by the partnership; and that when the notes to Decker fell due, the firm made default in payment, and James was forced to pay the same himself, out of his individual funds, and did so pay $19,196.06. This sum, together with two other sums, of $375 and $724.64, which James paid individually on the lands, amounting to $20,295.70, constitute the amount which is mentioned in the 5th clause of the award as paid on the lands by James,—there appearing the slight discrepancy of $5.90 in the two amounts.

The first ground upon which it is contended this interest was not involved in the suit, and so not within the submission, is, that “the bill fixes the character of the money on which interest is allowed, as capital invested, upon which, perse, interest is not allowed.” The bill treating this money so advanced as capital invested, and interest not being allowable by law upon capital, it is claimed there could be no recovery of interest under the allegations of the bill,—that they would preclude any such recovery, and therefore this interest was not involved in the suit, and not a matter submitted to the arbitrators. We think that -this objection ascribes too much consequence to the allegations of the bill in the regard named. All of allegation in this respect which we discover in the bill is, that in a statement of the condition of the firm as to solvency, under the head of its indebtness, there appears as follows: “For capital invested therein by complainants jointly, $33,416.57; for capital invested therein by James alone, $20,295.70,”—and in another place, in an enumeration of the items of the firm’s indebtedness, there is a repetition of the same.

The bill states particularly all the facts in regard to the payment of the money as herein above set forth, in connection with which there is no characterization of the money paid as capital invested, but a simple statement of the facts, which shows a case of the right of subrogation in respect to the mortgage paid by James, and we do not think that upon the whole showing of the bill this right of subrogation should be held as debarred, and any claim of interest precluded, on account of the incidental designation of the money, as above stated, as capital invested. The money was compulsorily paid by James to save partnership property in which he was interested. It.was not within any partnership arrangement that he should pay it, but the contrary, that the firm should pay it; and the mention of it in the bill, among the partnership liabilities, as capital invested in the partnership by James, should not, we think, be taken as meaning any more than that it was money advanced by James for the use. of the partnership. See Allen v. Woodruff, 96 Ill. 18, that a complainant in a bill should not be concluded by such a statement, where it is an incorrect conclusion from the actual facts stated.

Another ground upon which it is urged that this interest was not involved in the suit and not a matter submitted, is, that there is no claim in the bill of a right of subrogation, or of interest. There is no express claim in the bill to either, hut facts are stated which show the right thereto, and that, we think, was enough,—that the complainant in a bill, with a prayer for general relief, may have such relief as the facts stated in the bill, and proven, entitle him to, without having in the bill claimed, or averred title to, that,particular relief. No question is made, as there could not be successfully, of the right of subrogation here. It was a plain ease of such right. This court has so applied that doctrine in the ease of a co-tenant paying off a purchase money mortgage, given by himself and his co-tenant, on land owned by them as tenants in common, as to allow on the payment the same rate of interest, of ten per cent, as the original debt called for. (Simpson v. Gardiner, 97 Ill. 237.) The mortgage notes paid in the present case were bearing, some ten, and the rest eight, per cent interest. The award allows James seven per cent interest on his payment. We regard this allowance of interest as no more than was just and equitable,—that it was involved in the suit and within the submission, the allegations of the bill not precluding, but warranting, its recovery.

A further objection now made is, “that James having, after the award but before decree, sold the' title to the interest standing in his name in the firm lands lying in Michigan, to ‘Hewitt and Smith,’ mortgagees then in possession, without knowledge on their part that he held that title in trust for the firm, and without knowledge of the pendency of this suit, James thereby so changed the condition of the subject matter of the award that the decree passed upon the award can not be executed without prejudice to said firm lands, and said decree should he reversed and said award set aside.” We think it must be held a sufficient answer to this objection that it is made for the first time in this court. Nine specific objections in writing against the entering of judgment on the award were filed in the court below, but in no one of them is there any intimation made that James had sold the title to the interest in the lands standing in his name to Hewitt and Smith, nor does it in any way appear that there was any objection made in that court for such reason. It is replied that this matter of objection was embraced in the fifth objection filed, which stated that James had sold to Hewitt and Smith the timber growing on 6000 acres of these partnership lands, and that the latter, in pursuance of the sale, were cutting and carrying away the timber. That relates, as we understand, to another and distinct subject.

It appears that at the request of defendant, Hewitt and Smith had purchased the Dean mortgage, above spoken of, which had been given on the lands purchased by defendant and James at the time of their purchase of them for part of the purchase money, and that in September, 1879, there was an arrangement entered into that Hewitt and Smith should go on and cut pine logs and timber on the mortgaged lands, and account therefor at the rate of one dollar per thousand feet, by applying the. same on -the mortgage debt. This,- as we take it, is the transaction which is aimed at by said fifth objection, which is another than that of the sale by James of the title to the interest in the lands standing in his name. The affidavits on the hearing of the objection showed very clearly that the aforesaid arrangement for cutting the timber and applying the proceeds on the mortgage, was made by Hewitt and Smith with the defendant himself, and afterwards assented to by James. It came out in such affidavits, in showing what and all the contract James had made in regard to the lands, that he had entered into a certain contract with Hewitt and Smith in respect to conveying .to them the title, and it is said this was sufficient that such fact appeared before the court. But still it does not appear that that fact of the sale of the title was made any point of objection to judgment on the award.

As respects such alleged sale of title by James, it appeared that Hewitt and Smith caused the lands embraced in the mortgage held by them (the Dean mortgage) to be advertised for sale, November 1, 1880, under a power of sale in the mortgage; that the award was not made in time to be filed in the court below before its September term, 1880, and so no action on the award could have been taken by the court at that term, unless by consent; that the receiver, as James had been informed, was ready to advance the money to pay off the mortgage and stop the sale, if the lands were conveyed to him as by the award directed; that James applied to defendant for his consent to the court’s action upon the award at the September term, or to join James in conveying the lands to the receiver, but that defendant refused to do either; that James then applied to Hewitt and Smith to postpone the sale; that they refused, but (in the words of Hewitt and Smith themselves, in their joint affidavit,) “offered to protect said James against loss by said sale, upon condition that if said- James should, within two years thereafter, obtain the legal title to the undivided two-thirds of said mortgaged lands, and have the legal right to sell and convey the same, then he should sell and convey a certain portion of said lands to these affiants for the consideration specified in ‘Exhibit A,’ hereinafter attached to this affidavit, which offer, being the only one affiants were willing to make, the said James then accepted, and agreements in writing were thereupon executed by and between these affiants and said James, embodying the terms of said arrangement, of which agreements exact copies are hereto attached, marked respectively ‘Exhibit A’ and ‘Exhibit B,’ and made a part of this affidavit ; ” and they say these exhibits show all the purchase, or agreement for the purchase, of the lands they ever made with James. Now, if the contract was no more than is indicated by such affidavit, then it was but a conditional contract to sell and convey, in case James should, within two years, obtain the legal title to the undivided two-thirds. This would not embarrass the title, or interfere with the ability to convey it to the receiver, or affect the sale of it to be made by him. It would only be through the receiver’s sale that the title could be perfected in James, and he have it to convey. It is true that the last clause in “Exhibit B,” “if said James fails to make the title to said lands, said Smith and Hewitt agree to take such part of the same as said James can make title to, or such undivided share as he can perfect title to, at the rate of seven dollars per acre, ” raises a doubt whether there was not something more than the conditional contract above named,—whether the contract did not operate upon the title to the one-third interest which then stood in the name of James. ■ Still, Hewitt and Smith say the arrangement made was the conditional contract which they state, and that “Exhibits A” and “B” embody the terms of the arrangement. From all the circumstances, there, is reason to suspect that such conditional contract was all the contract the parties intended to and in truth did make; that Hewitt and Smith had full notice of the situation of the partnership interest in the lands, and that the way in which it was contemplated by them James should obtain the title to the lands was through the receiver’s sale, and all which might have been shown, and this ground of objection satisfactorily removed, if the objection had been made in the court below. This shows reason for requiring that the objection should have been taken below in order to be availed of here, as it would have given opportunity to have met and removed the ground of objection, which is not afforded when the objection is made here for the first time.

The other objections made to the award do not seem to be seriously insisted upon, and they are so obviously insufficient as not to call for discussion.

The decree must be affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    North Chicago City Railway Company v. Town of Lake View.

      Filed at Springfield Sept. 28, 1882

      Rehearing denied January Term, 1883.

    1. Municipal corporation—power to declare use of steam to propel cars in streets a nuisance. Under provisions in a town charter giving the board of trustees the control and supervision of the highways, streets, alleys, public grounds and parks within its limits, and power “to define and declare what shall be deemed nuisances, and to prevent and abate the same, and provide for the punishment of offenders against any order or ordinance passed concerning the same, by fine or imprisonment, or both,” the town authorities will be warranted in passing an ordinance declaring the use of steam as a motive power to propel any street car or other vehicle upon or along any street railway or horse railroad, located or running upon or along any street, etc., in the town, to be a nuisance, and prohibit, under penalties for the violation of such an ordinance, in the absence of any legislative grant authorizing it, the use of steam as a motive power in propelling street cars.
    2. Same—extent of power to declare a nuisance. Under a general grant of power to declare what shall be a nuisance, town authorities will have no right to pass an ordinance declaring a thing a nuisance which is clearly not such, such as the trade and calling of a physician, druggist, and the like. In all such cases as these, courts, acting upon their own experience and knowledge of human affairs, would say, as matter of law, the exercise of these trades or callings, or things of like character, are not nuisances, and that any attempt to so declare them would be an unwarranted abuse of the power.
    3. In doubtful cases, however, when 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 to declare and define what shall be nuisances, their action, under such circumstances, would be conclusive of the question.
    4. On the other hand, there are many things which courts, without proof, will, on the same principle, declare nuisances, as, for instance, the digging of a pit, or erection of a house, or other obstruction, in a public highway, and an ordinance declaring such things a nuisance would be valid on its face, and a conviction might be had under it without any extrinsic proof to show the act complained of was in fact a nuisance. In all such cases it is sufficient to show the existence of the fact constituting the nuisance.

      5. Of this character is the use of steam for the purpose of propelling street cars along a public street in a thickly populated town, in the absence of any legislative grant. authorizing it to be done. Such a use of steam is, per se, a nuisance.
    6. Street railway—charter construed-as .to motive power, to he used. A charter authorizing a company thereby incorporated to maintain and operate a street railway along and over a public street in an incorporated town, which is silent as to the character of the motive power'to be used for propelling the company’s cars, will be intended as giving the right to use that kind of motive power which would be most conducive to the best interests and safety of the public having occasion to use the street as a common highway, and which was, at the time of passing the charter, in ordinary use.
    7. Statute—use of title in construction. As the constitution of 1848 required the subject of all private or local laws to be expressed in their titles, the title of such an act. may be looked to in the construction of the law in connection with the words and .provisions in the .law itself.
    8. Error—when not material or fatal. The refusal of a trial court, in trying a case without a jury, to pass upon written propositions of law submitted by a party, if an error, is not such a one as to be ground for the reversal of a judgment clearly proper. Error will not always reverse.
    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.
    Mr. W. C. Goudy, for the appellant:
    The declaration by the board of trustees that the use of steam, etc., is' a nuisance, is not sufficient evidence that it is a nuisance, and did not relieve the prosecution from proving that fact. Dillon on Municipal Corporations, (3d ed.) sec. 374; Yates v. Milwaukee, 10 Wall. 504; Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 44; State v. Jersey City, 5 Dutch. 170; Town of Lake View v. Letz, 44 Ill. 82; Lake View v. Rosehill Cemetery Co. 70 id. 195.
    A general power to define and declare nuisances, will not enable them to declare that a nuisance which was not a .nuisance by the general law. Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 23; Everett v. Council Bluffs, 46 Iowa, 66; Pye v. Peterson, 45 Texas, 312; Darst v. People, 51 Ill. 256; Eubanks v. Ashley, 36 id. 177.

      The corporate authorities had no power to pass the ordinance unless the prohibited act amounted to a nuisance. Dillon on Municipal Corporations, secs. 141, 89; Cook County v. McCrea, 93 Ill. 236; Sherlock v. Winnetka, 68 id. 530; Culver v. Hatch, 18 Ohio, 523; Martel v. East St. Louis, 94 Ill. 67; People v. Village of Crotty, 93 id. 180; Schott v. People, 89 id. 195; Mix v. Ross, 57 id. 121; Ex parte Burnett, 30 Ala. 461; Craig v. Burnett, 32 id. 728; Hill v. Decatur, 22 Ga. 203.
    The defendant was authorized to construct a railway in the public highways of Lake View, and operate it by steam. See charter, secs. 2, 5, 6, 10.
    A railroad company is not a nuisance. Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 41; State v. Jersey City, 5 Dutch. 175; Randle v. Railroad Co. 65 Mo. 325; Hentz v. Railroad Co. 13 Barb. 656; Drake v. Hudson R. R. Co. 7 id. 508; Hamilton v. Railroad Co. 9 Paige, 117; Railroad Co. v. Applegate, 8 Dana, 289; Chapman v. Railroad Co. 10 id. 360; A. and P. R. R. Co. v. St. Louis, 66 Mo. 228; McComber v. Nichols, 34 Mich. 212; Kellinger v. Railroad Co. 50 N. Y. 206; Danville R. R. Co. v. Commonwealth, 73 Pa. St. 38; Struthers v. Railroad Co. 87 id. 282; Fawn v. Railroad Co. 114 Mass. 350.
    Acquiescence in the use of steam for over sixteen years will prevent the board of trustees from declaring such use to be a nuisance. Railroad Co. v. Patterson, 24 N. J. Eq. 158; Rossire v. Boston, 4 Allen, 57; Easton v. Railroad Co. 24 N. J. Eq. 49.
    Mr. M. W. Robinson, for the appellee:
    The town had express power to define and declare what should be nuisances, and many ordinances declaring similar things nuisances have been sustained. Roberts v. Ogle, 30 Ill. 459; Van Warner v. Albany, 15 Wend. 263; Goddard v. Jacksonville, 15 Ill. 588.

      Every unreasonable use of a public highway, by which others are hindered or annoyed in a like reasonable use of it, or in the • rights incident thereto, is a public nuisance, and may be restrained as such. Wood on Nuisances, secs. 250, 290, 301, 740; 2 Dillon on Municipal Corporations, secs. 520, 538, 565; 2 Redfield on Railways, 578; Angell on Highways, secs. 223, 225; Hurd’s Stat. 1881, ch. 38, sec. 221; Weick v. Lander, 75 Ill. 93; Davis v. Mayor, 14 N. Y. 524; Pierce on Railroads, 243, note 7.
    In the following cases ordinances regulating the speed of locomotives and trains in incorporated cities and towns have been sustained: Whitson v. City of Franklin, 34 Ind. 392; 5 Hill, 209; Vearie v. Mayo, 45 Maine, 560; State v. Tupper, Dudley, (S. C.) 135; Branson v. Philadelphia, 47 Pa. St. 329; Philadelphia v. Lombard, 3 Grant’s Cases, 403; Donnaher v. State, 8 Sm. & M. 649; Railroad Co. v. Richmond, 96 U. S. 521; Commonwealth v. Worcester, 3 Pick. 473; New York and Harlem R. R. Co. v. Mayor, etc. 1 Hilton, 562.
    That which would be a nuisance, if done under authority of law is justifiable. 2 Redfield on Railways, 408; Wood on Nuisances, sec. 746; Pierce on Railroads, 243, 244.
    Without the sanction of legislative authority, the use of steam motive power in a street is necessarily subject to municipal control. Davis v. Mayor, 4 Kern. 524; Toledo, Wabash and Western Ry. Co. v. Jacksonville, 67 Ill. 37; Northwestern Fertilizing Co. v. Hyde Park, 70 id. 644; Ohio and Mississippi R. R. Co. v. McClelland, 25 id. 140; Galena and Chicago Union R. R. Co. v. Appleby, 28 id. 283; Dingman v. People, 51 id. 278.
    No authority to use steam power is given by the company’s charter, expressly or by implication.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a conviction in the Criminal Court of Cook county of the North Chicago Railway Company, for using steam as a motive power in operating its railway along and over one of the public streets of the town of Lake View, in Cook county, contrary to the provisions of an ordinance of that town.

The fact of the company’s using steam for the purpose of propelling its cars along the street in contravention of an ordinance of the town, is conceded; but the act is sought to be justified on two grounds, both of which are urged by counsel with much earnestness and apparent confidence. First, it is claimed the town had no authority to pass the ordinance declaring the use of steam for the purpose of propelling the company’s cars along the street a nuisance, as was attempted to be done. In the next place, it is contended that the act complained of is authorized by the company’s charter. We will consider these questions in the order stated.

Appellee is incorporated under the act of 1865, entitled “An act to incorporate a board of trustees for the town of Lake View, in Cook county, ” and an act amendatory thereof, passed in 1867. By the 1st section of the original act the supervisor, assessor and commissioners of highways of the town of Lake View are declared to be, ex officio, a board of trustees for the said town of Lake View, and by other provisions of the two acts are clothed with the ordinary powers usually conferred upon other municipal corporations. By the 7th section of the amendatory act of 1867 it is expressly provided “the board of trustees shall have the control and supervision of the highways, streets, alleys, public grounds and parks in said town; ” and by the 11th section it is further provided, “the board of trustees shall have power to define and declare what shall be deemed nuisances, and to prevent and abate the same, and provide for the punishment of offenders' against any order or ordinance passed concerning the same, by fine or imprisonment, or both, ” etc. These provisions, in the absence of any legislative grant authorizing the use of steam as a motive power for the purpose of propelling-street cars, we are of opinion warranted the town in passing the ordinance in question.

We do not at all question the general proposition, which has been argued with so much elaboration by appellant’s counsel, that under a general grant of power over nuisances, like the one in question, town authorities have no power to pass an ordinance declaring a thing a-nuisance which in fact is clearly not one. The adoption of such an ordinance would not be a legitimate exercise of the power granted, but on the contrary, would be an abuse of it. But 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.

As already conceded, there are many innoxious useful things which the municipal authorities of a town or city could not lawfully, under a general grant of power like the one in question', declare nuisances,—such, for instance, as the exercise of certain trades and callings, as, that of a physician, druggist, and the like. In all such cases as these, courts, acting upon their own experience and knowledge of human affairs, would say, as matter of law, the exercise of these trades or callings, or things of like character, are not nuisances, and that any attempt to so declare them by the municipal authorities would be an unwarranted abuse of their power. On' the other hand, there are many things which courts, without proof, will, on the same principle, declare nuisances. Such, for instance, would be the digging of a pit, or the erection of a house, or other obstruction, in a public highway; and an ordinance passed by a town or city having, as in the present case, a general power over the subject, declaring such obstructions nuisances, would be valid on its face, and a conviction might properly be had under it, without any extrinsic proof to show the act complained of was in fact a nuisance. In all such cases it is. sufficient to show the existence of the fact constituting the nuisance. And so we regard the use of steam, in the manner specified in the ordinance, for the purpose of propelling street cars along a public street in a thickly populated town, in the absence of any legislative grant authorizing it -to be done. Such a use of steam, under the circumstances stated, is, per se, a nuisance.

With respect to the remaining question little need be said. It is conceded the company’s charter authorizes it to maintain and operate a street railway along and over the street in question, and it is contended that, inasmuch as the charter is silent as to the character of the power to be used in propelling the company’s cars, the company has the option to use for that purpose either steam or horse power, as it may prefer. We think, in such case it would be more reasonable to hold the legislature intended the company should use that kind of motive power in- propelling its cars which would be most conducive to the best interests and safety of the public, having occasion to use the street as a common highway, and which was then in ordinary use in this State. Giving the charter this construction, horse, and not steam, power was clearly intended.

But, outside of this consideration* we think it sufficiently appears, upon the face of the act itself, that horse, and not steam, power was intended by the legislature.' The title of the company’s charter is in these words: “An act to promote the construction of horse railways in the city of Chicago. ” The constitution then in force contained this provision: “No private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title.” In conformity with this constitutional provision, the company’s charter contained but one subject,' namely, “horse railways,” and that was expressed in its title. No allusion, either in the title or body of the act, is made to steam railways, and to hold the legislature intended to include the latter as well as the former kind of railways, would be, in effect, to hold that that body intended to violate the constitutional provision just cited, and this we are not at liberty to do. We think it clear, both from the title and body of the act, that its provisions relate only to horse railways, and hence the use of steam as a propelling power could not have been intended by the legislature.

Pending the trial, and before final judgment, the court was asked by appellant’s counsel to hold certain written propositions of law, which it refused to do, and this is assigned for error. Without stopping to inquire whether the court erred in the respect stated, it is sufficient to say, that if we are right upon the questions already discussed, the judgment of the court below was clearly proper, even conceding there was error in refusing to hold said propositions as law. It is a familiar principle, error does not always vitiate. Newkirk v. Cone, 18 Ill. 449; McConnel v. Kibbe, 33 id. 175; Boynton v. Holmes, 38 id. 59; Pahlman v. King, 49 id. 266.

Our conclusion upon the questions considered renders it unnecessary to consider other questions discussed by counsel.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Chief Justice Scott dissenting.


text:
    Edward Prince v. The City of Quincy.

      Filed at Springfield January 29, 1883.

    Municipal indebtedness—constitutional limitation. A city having an indebtedness in the aggregate exceeding five per cent on the value of taxable property therein, while it so remains indebted is powerless to create any debt at all, even for its ordinary or current expenses, and no contract of any municipality so situated, for the payment of money, can be enforced.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Messrs. Marsh & McFadon, for the appellant:
    It being held that this constitutional prohibition against incurring of municipal indebtedness does not apply to torts, makes it apparent that a city may become indebted notwithstanding such provision, and that it can not be accepted in its ordinary signification, without any qualification whatever, and that some construction becomes necessary. City of Bloomington v. Perdue, 99 Ill. 329; Bartle v. Des Moines, 38 Iowa, 414.
    The term “indebtedness” in the clause of the constitution does not include or apply to contracts which relate to the ordinary current expenses of a city, for they are payable out of the current revenues, but only to such contracts as, by their own direct and immediate operation and effect, add to the permanent debt of the city. Dively v. Cedar Falls, 27 Iowa, 233; Grant v. Davenport, 36 id. 396; East St. Louis v. East St. Louis Gas Co. 98 Ill. 430.
    This clause in the constitution having been taken from the constitution of Iowa, its construction by the Iowa Supreme Court is adopted. Attorney General v. Brunst, 3 Wis. 787; People v. Coleman, 4 Cal. 50; Cooley’s Const. Lim. 52.

      An additional provision of the constitution, section 12, article 9, shows that only an indebtedness bearing interest, and capable of extinction at the end of twenty years, is intended by the term “indebtedness. ” The foregoing views in relation to that term find support in the following cases: State v. McCauley, 15 Cal. 430; Hoppikus v. State Commissioners, 16 id. 249; People v. Pacheo, 27 id. 207; Grant v. Davenport, 36 Iowa, 396.
    Messrs. Sibley, Carter & Govert, and Mr. Carl E. Epler, City Attorney, for the appellee,
    upon the principal question involved in this decision referred to their respective briefs presented in the case of Prince v. City of Quincy, ante, p. 138.
   Per Curiam:

The conclusion reached in the case of Prince v. City of Quincy, (ante, p. 138,) must govern this case. The facts in both cases are substantially the same, and are fully set forth in that case, hence there is no necessity of repeating them here. The appellant sought there, as he seeks here, to recover an alleged indebtedness from the city to himself, on a special contract running for a period of thirty years, made with him by the city council on behalf of the city, in and by which the appellant agreed to furnish the city with water during the period covered by the contract, at certain terms therein specified, and which the city agreed to take and pay for at the stipulated prices. The defence in this case, as it was in that, is, that at the time of making the contract in question the city of Quincy was, and from thence to ' the time of the commencment of the suit had been, indebted in an amount exceeding the constitutional limitation, which forbids any city or other municipality from becoming “indebted, in any manner or for any purpose', to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein. ”

To this defence, which is conceded to be true, it is replied in substance that the indebtedness sued for was incurred and made by the city authorities in providing for the ordinary or current expenses of- the city government. The conclusive rejoinder to this position is, that the city authorities, when brought within this provision of the constitution, are just as powerless to create a debt on account of ordinary or current expenses as they are on account of anything else. When once brought within the provision they have no power to create a debt at all, and this is expressly decided in the case of City of Springfield v. Edwards, 84 Ill. 626. It was there said, in discussing this very question: “And since the purpose of the debt is expressly excluded from consideration, it can make no difference whether the debt be for necessary current expenses, or for something else.” This can no longer be regarded as an open question.

Other questions have been very ably discussed by counsel, " but inasmuch as this constitutional question is conclusive of the case, it would be useless to consider them, and we therefore decline doing so.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Chief Justice Scott dissenting.