Volume 137 — Illinois Reports

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.</p> <p>On January 6, 1885, the Illinois Central Bailroad Company commenced, in the Superior Court of Cook county, this action of forcible entry and detainer against the Baltimore and Ohio and Chicago Bailroad Company, to recover possession of certain freight station grounds described in the complaint then filed. Such proceedings were had in the suit as that, upon a trial, judgment was rendered therein for the defendant, and that judgment was afterwards reversed (Illinois Central Railroad Co. v. Baltimore and Ohio and Chicago Railroad Co. 23 Ill. App. 531,) and the cause remanded. Upon a second trial the result was otherwise, the court finding the issues for the plaintiff, and that the plaintiff was entitled to the possession of the premises in controversy, and rendering a judgment in favor of plaintiff for possession, and for.costs! This was followed by a judgment of affirmance in the Appellate Court, and a further appeal brought the record here.</p> <p>On July 27, 1874-, the appellee corporation, as lessor, and the appellant corporation, (by its then corporate name of “The Baltimore, Pittsburg and Chicago Bail way Company, Illinois Division,”) as lessee, joined in the execution of a lease of the premises in question, which are situated in the city of Chicago, north of Bandolph street produced, and a short distance east of the Illinois Central passenger station, at the foot' of Lake street, with a strip of ground 12 feet in width, extending 600 feet southerly, as an outlet. The lease was signed by the respective presidents of said corporations, and attested by their secretaries, the corporate seals of the respective corporations being thereto affixed. Said lease was in substance as follows:</p> <p>“Lease made this 27th day of July, 1874, between the Illinois Central Bailroad Company, of the one part, and the Baltimore, Pittsburg and Chicago Bailway Company, (Illinois Division,) of the second part.</p> <p>“The party of the first part lease to the second party, from •this date to the first day of November, 1879, the following •ground in the city of Chicago, Illinois, viz.[Here follows a particular description of the lands in controversy.] “In consideration of said leased ground, the second party is to pay the first party, within fifteen days from the expiration of each month during this lease, and any extension thereof, the sum <of $1820, possession of said ground to be delivered to the party of the second part about the first of September next. Upon such possession being given, rent is to commence. It is agreed that at the expiration of this lease the first party will lake the said freight house then upon said ground, at its then -value, to be ascertained by appraisal. And the first party may, at its option, have the tracks and other improvements upon the grounds at the expiration of said lease, at an appraisal of their then value, said appraisal to be made by arbitrators, each party selecting one, and if they disagree they are to select an umpire. If the first party does not elect to take said improvements other than the freight house, the second party may remove the same before the expiration of this lease. It is further expressly agreed between the parties hereto, that if ihe second party elects to lease freight station grounds in perpetuity of the first party, as specified in certain articles of agreement between said parties, bearing date the 27th day of July, 1874, and shall give notice to the first party as therein provided, then the first party agrees to extend this lease for a-further term, on the same conditions, or furnish the second party a lease of other as suitable ground for its freight business, upon terms to be agreed upon, until the first party delivers to the second party the possession of the ground so leased in perpetuity, or is prevented from so doing as specified in said articles of agreement. The second party is to pay all taxes-legally'assessed on the property hereby leased,- and is to use the property in conformity with the ordinances of the city of Chicago.”</p> <p>The parties, on the same 27th day of July, 1874, also entered into a certain other contract, which was duly executed ■by them, and attested by their respective corporate seals, and. •wherein appellee was named as party of the first part and ap~ ■pellant as party of the second part: Portions of said contract 'material in this controversy were as follows:</p> <p>“Witnesseth, That said party of the first part, for and in consideration of the covenants and agreements hereinafter expressed, has let and leased, and does hereby let and lease, unto the said party of the second part, the right to run its cars, engines and trains, for the transaction of the business of the-said party of the second part, over that portion of the Illinois Central railroad extending from the junction of the two roads at or near Hyde Park to the north line of Eandolph street extended, in Chicago, for the passenger trains, and for freight trains, from said junction to the south line of the freight depot grounds this day leased by the said party of the first, part to-the said party of the second part. And -the said party of the second part is to have the use of such tracks upon that part of the railroad of said party of the first part as may be agreed upon, for running over its road the trains, ears and engines-of said party of the second part, under the rules and regula- ' tions of said party of the first part, for and during the term •of five years, from the first day of November, 1874. -And the. :'said party of the second part shall have the above.mentioned. right to run its cars, engines and trains, under the obligations herein expressed, in perpetuity, if within said term of five years it shall so elect, and shall also elect to lease the freight station grounds hereinafter named of the first party, in perpetuity, and shall notify said party of the first part of such election in writing,—it being understood by the parties hereto that said freight cars shall be run, after the expiration of said, term of five years, over the track of the Illinois Central railroad, only as far north as the south line of the ground herein-' after to be leased to said party of the second part. And the said party of the second part hereby covenants to and with the said party of the first part, to pay monthly, for and dur- _ ing the term of five years above mentioned, and for and during the extended term, (if such election shall be made as above provided,) for the right and use above mentioned, upon all its traffic to and from Chicago, as follows, to-wit</p> <p>Here followed a scale of charges to be paid by the second party to the first party upon passengers, freight, etc., and' various other clauses which are here immaterial. The concluding agreements of the contract read thus:</p> <p>“Should the second party elect to lease permanent freight grounds upon the Lake Front, the first party agrees to enclose and fill the same ready for occupancy to an extent and in a manner to be agreed upon between the parties. • If the first party shall be prevented by legal proceedings from enclosing and filling said grounds before November 1, 1879, then the arrangement herein between the parties hereto shall be continued for another term of five years, or for such portion thereof as may be necessary to enable the party of the first part to obtain legal title to and to enclose and fill the ground aforesaid. Should the party of the first part be unable to secure legal title before the expiration of three years from November 1, 1879, or should the second party be unable to obtain convenient and proper access to said permanent freight grounds, then, in either case, the party of the second part shall have the right to select other freight grounds not owned or claimed by the Illinois Central Bailroad Company. The second party agrees not to attempt to acquire from any other source than by contract with the Illinois Central Bailroad Company any title or right of possession in the submerged or other lands that may be claimed by the first party, between Hyde Park Junction and Bandolph street extended, and any such attempt shall work a forfeiture of all rights under this contract,</p> <p>“This agreement shall estop the second party from acquiring or setting up any claim to said lands adverse to the claim or title of the first party, and from acquiring any claim, title or possession in said lands under the law, by condemnation or otherwise, except by, through and with the consent of the first party. And the said party of the second part agrees to pay therefor seven per bent interest upon $1.50 per superficial foot for lease in perpetuity, with the right to pay the gross sum in full, at the option of said party of the second part.</p> <p>“The said party of the first part agrees to give to the said party of the second part a site for an engine-house of ten stalls, at a fair ground rent, for a term of five years. The said party of the first part agrees to take the engine-house at the end of the term, at a valuation that may be agreed upon. If the second party elects to lease the above named freight grounds on the Lake Front in perpetuity, then the first party will furnish it a site for an engine-house of ten stalls for the same "time, upon equitable terms.</p> <p>“The said party of the first part hereby gives its consent that said party of the second part shall be allowed an interest in the proposed new passenger station, if said party of the .second part so desires, either as joint owner or upon a fair rental, as may be agreed upon between the parties in interest. And the said party of the first part hereby agrees to give said •party of the second part the right to use its undivided interest in the Chicago passenger station, and the stations between -Chicago and the junction at Hyde Park, for a reasonable compensation. And the said party of the second part shall have its business transacted over the St. Charles Air Line railroad, at the minimum rental charged any party not an owner.</p> <p>“In case of any disagreement as to the valuation, rentals, ground rents, extensions of shore line, or filling in, or other things that are to be agreed upon by the parties, or in case of any disagreement as to the terms of the contract or the several things that are to be done by the parties hereto, the matters in difference are to be referred to arbitrators, one to be chosen by each company, and upon their failing to agree, they to appoint an umpire.”</p> <p>The appellant took possession of the premises under the lease and contract, constructed a freight house thereon, and operated its freight and passenger business, paying to appellee rent in accordance with the terms of the lease, for the freight station grounds, and in accordance with the contract for the right to run its cars, etc., and continued so to pay until November 1, 1884.</p> <p>At the time the lease and contract were made, in 1874, the right of way and track system of the Illinois Central Bailroad Company extended north from south of Twelfth street to the north line of Bandolph street, a width of 200 feet, the west line of such right of way being 400 feet east of the west line of Michigan avenue, and protected on the east from Lake Michigan by a breakwater. The railroad company claimed the right to fill out into the lake an additional strip 100 feet in width, by virtue of an ordinance of the city passed June 14, 1852, purporting to give it a right of way 300 feet wide, of which but 200 feet had theretofore been appropriated; and also claimed, by virtue of the so-called “Lake Front bill,” passed by the legislature on April 16, 1869, the fee to the submerged lands of the lake for the distance of one mile east of its tracks and breakwater, and the right to fill up the lake bed to that distance. North of Bandolph street and to the mouth of the Chicago river the company claimed as riparian owner, and it had filled a large area of territory east of its main tracks, and depots, elevators and yard tracks were placed thereon.</p> <p>In 1871 an information had been filed-in the Circuit Court of the United States for the Northern District of Illinois, on 'behalf of the United States, and against the railroad company, ■and the latter restrained from continuing its works in the waters of the lake or in any way encroaching - upon the outer ■harbor of Chicago. In 1872 a stipulation had been made in ‘the ease, by which the company was permitted to proceed with :the construction of wharves and docks within that portion of the outer harbor lying between the south pier, at the mouth of the Chicago river, and the north line of Bandolph street extended eastwardly, the company agreeing to conform to the harbor lines which had been established by the United States engineer officers in charge of the harbor, and with the directions they might give in reference to the prosecution of the work. By orders of the War Department, made in 1871 and reiterated in 1882, the filling up of any part of the basin or harbor south of the prolongation of the north line of Bandolph ’ street and outside of the present line of piling made to protect ¡the track of the Illinois Central Bailroad Company, was pro■■hibited until the title to such submerged lands should be judicially settled, and the plans for wharves and docks thereon approved, by the Secretary of War.</p> <p>■ Early in the fall of 1879, before the expiration of the first term of five years provided in the lease, Keyser, general manager of appellant, went to Chicago for the purpose of looking into the subject of permanent freight depot grounds, and after examining the situation from maps, and familiarizing himself with the location, went, in company with the president and general superintendent of the Illinois Central company, upon certain grounds situate north of Bandolph street extended, and east of the freight station then occupied by appellant under ^the lease, which grounds the appellee corporation offered to appellant for a permanent freight station. In the negotiations between the representatives of the two companies as to permanent freight grounds, it was stated that appellee could not furnish ground south of Bandolph street, owing to legal difficulties and complications. About two-thirds of the whole area of the proffered freight station grounds lie north of the north line of Bandolph street, and about one-third south of that line. The length, from north to south, of the portion north of the line is about 720 feet, and its width at the north end is 187^-feet, and at the south end 165 feet. The portion south of the line extends in a southerly direction a distance of 1440 feet, and its width at said north line of Bandolph street is about 165 feet, and it diminishes in width as it extends south, and at its lower extremity it is 12J feet wide. These proposed new freight grounds were measured, a tracing or outline furnished to Keyser, the shape of the grounds discussed, and a rental of $24,000 a year agreed upon, the basis of such rental being seven per cent interest on a valuation of two dollars per foot. Afterwards, Keyser, general manager of the appellant company, addressed the following letter to the president of the appellee company:</p> <p>“Wheeling, W. Va., Oct. 28, 1879.</p> <p>41W. K. Ackerman, Pres. Illinois Central R. R. Co., Chicago, III.</p> <p>“Dear Sir—Under the contract dated July 27, 1874, between the Baltimore, Pittsburg and Chicago Bailway Company, Illinois Division, (whose corporate name now is the Baltimore and Ohio and Chicago Bailroad Company,) and the Illinois Central Bailroad Company, the former company has elected to run its cars, engines and trains in perpetuity, under the obligations expressed in said contract. It has also elected to lease the freight station grounds in perpetuity, and gives this notice accordingly. I have had our counsel draft the form of lease or contract between the two companies, in which the description of the freight grounds is left blank, awaiting the report of your engineer. I enclose this form for your exam-. ination. Please let me know whether any amendments or modifications are needed in it. I believe it embodies the suggestions made by both of us when I last saw you in Chicago.</p> <p>“Tours, respectfully,</p> <p>William Keyseb,</p> <p>Gen. Manager Baltimore and Ohio and Chicago it. it. Co.”</p> <p>“P. S. Since writing this I have been advised that the description is ready, and I have therefore requested our counsel to embody it in the lease before presenting same to you.”</p> <p>The above letter was accompanied by a draft of a lease, which contained a description of the land shown by the officers of the Illinois Central Bailroad Company to Keyser. The letter, together with the draft, was delivered on October 29, 1879, to the solicitor and to the general superintendent of the Illinois Central Bailroad Company, the president, Ackerman, being away. On October 31, 1879, the superintendent of the appellant company called upon Ackerman, and asked him if he had received the letter of Keyser, and he said he had—that it was a notice of the election of the Baltimore and Ohio and Chicago Bailroad Company to run its trains and occupy the freight grounds in perpetuity, and that it was all right.</p> <p>The draft of lease submitted by the Baltimore company was not satisfactory to the Illinois Central company, and a counter-draft was prepared by the solicitor of the last named company, which was submitted to appellant. The terms and provisions of the draft and counter-draft were essentially different, and there was no agreement reached between the companies on the points of difference. Several letters, having reference to the completion of the contract or lease for the proposed freight station grounds, passed between the officers of the respective companies at intervals, from the fall of 1879 until some time in the spring of 1883, and several interviews were had during said period between representatives of the companies, in which the subject of the pending lease or contract, and the obstacles in the way of closing it up, were to some extent discussed, but no definite understanding was ever reached. On March 12, 1883, the president of the Illinois Central Railroad Company addressed the following letter to John W. Garrett, president of the Baltimore and Ohio Railroad Company:</p> <p>“My Dear Sir—When last I had the pleasure of meeting you in Baltimore I called your attention to the desirability of securing for your Co. a piece of land in the city of Chicago, for freight purposes, lying east of your present freight house, the understanding being that we were to purchase your present building at an appraised valuation. The Michigan Central R. R. Co. are vqry anxious to secure additional facilities here, and would, I think, be glad to take the piece of ground which we had rather reserved for your Co. If you do not desire to lease it, however, will you please advise me definitely, so that I can treat with the other Co. If I do not hear from you by the first of April, I will assume that you do not care to take the grounds offered.</p> <p>“Yours, very truly, w_ K. Ackerman, Pres’t.”</p> <p>And on March 26,1883, said president of the Central company addressed the following letter to the president of the appellant company:</p> <p>“Chicago, 26 March, 1888.</p> <p>“B. Dunham, Pres’t B. & 0., Chicago R. R. Co., Newark, 0.</p> <p>“Dear Sir—As the contract under which the Baltimore & Ohio R. R. Co. uses our tracks for an entrance into Chicago was formally made with the B. & 0. and Chicago R. R. Co., of which you are president, I think it well to send you enclosed a copy of a letter I have addressed to Mr. J. W. Garrett, Pres’t of the former Co., and to which I beg to request your earnest attention.</p> <p>“Yours, very truly,</p> <p>w_ K. Ackerman, Pres’t.”</p> <p>The reply to these letters, dated March 29, 1883, and addressed to Ackerman, was as follows:</p> <p>“Dear Sir—I have received from President Garrett, of the B. & O. B. B. Co., your letter of the 12th inst., addressed to him, concerning the permanent freight grounds for the B. & 0. & C. B. B. Co., at the city of Chicago. This company will accept as permanent freight grounds those referred to in that letter upon the terms of the contract of July 27, 1874.</p> <p>“Tours, very respectfully,</p> <p>B. Dunham,</p> <p>President B. & O. & O. R. R. Go."</p> <p>The answer, under date of April 2, 1883, to the last mentioned letter, was as follows:</p> <p>“Dear Sir—Tour favor of the 29th inst. was duly received. I supposed it was well understood that if your company desires to lease the ground referred to in my letter to Mr. Garrett of the 12th of March last, it must be made the subject of an independent agreement. Terms were nearly concluded with Mr. Keyser three or four years ago, and, if agreeable to your company, we should be willing to resume the negotiations where he left them, but, for the reason stated in my letter to Mr. Garrett, immediate action is desirable.</p> <p>Tours, truly,</p> <p>W. K. Ackerman, Pres’t.”</p> <p>There was no reply to the above letter from Ackerman, and no further negotiations between the parties on the subject.</p> <p>Notice to quit was, on May 16,1884, served on the secretary, and on May 17,1884, served on the president of the appellant corporation. Said notice to quit was as follows:</p> <p>“To the Baltimore and Ohio and Chicago Railroad Company :</p> <p>“Please take notice that you are hereby required to quit and deliver up possession of the premises which you now hold of the Illinois Central Bailroad Company, situate in the city of Chicago, on the first day of November next, unless the current year of your tenancy shall expire before that day, in which case you are hereby required to quit and deliver up possession of the said premises at the end of the current year’s tenancy, the Illinois Central Railroad Company having elected to terminate your tenancy at that time. The premises above referred to are the same which were leased to the Baltimore, Pittsburg and Chicago Railway Company, (Illinois Division,) by the Illinois Central Railroad Company, by lease dated 27th of July, A. D. 1874, and are described as follows: ” [Here follows the description.]</p> <p>“You are further notified that the Illinois Central Railroad Company will take the freight house upon said ground at the expiration of said tenancy, at its value, to be ascertained by appraisal, as provided in the lease .hereinbefore referred to, and that said Illinois Central Railroad Company has selected Leverett H. Clarke, chief engineer of the Lake Shore and Michigan Southern railroad, as one of the arbitrators to make such appraisal. By the terms of said lease, another arbitrator is to be selected by you, and you are requested to make such selection, and notify the Illinois Central Railroad Company thereof,' as soon as conveniently may be. The tracks and other improvements upon the said premises, which the Illinois Central Railroad Company has, by the terms of the aforesaid lease, the option to take or not, at an appraisal of their value, will not be required by said company, and may therefore be removed by you, as provided in said lease.</p> <p>The Illinois Centbal Railboad Company,</p> <p>By James G. Clabk, Pres’t.</p> <p>“Dated May lé, A. D. 1884.”</p> <p>Upon the second trial of this cause in the Superior Court, which was before the court without a jury, twelve written propositions of law were submitted to the court by the plaintiff, appellee here, and the court held each and all of said propositions to be law applicable in the decision of the case, and to the rulings of the court in so holding the defendant below duly excepted. Said twelve propositions of law were as follows:"</p> <p>“1. It being conceded that the defendant entered into possession of the premises described in the complaint as the tenant of the plaintiff under the lease of July 27, 1874, and that the term of years limited by the lease expired on the first day of November, 1879, and that the defendant continued to occupy the premises since the expiration of that term, with the consent of the plaintiff, until the 17th day of May, 1884, when a notice in writing was given by the plaintiff to the defendant to terminate the tenancy on or by the first day of November, 1884, and that the defendant continued in the occupation of the premises, without the consent of the plaintiff, until the commencement of this suit, the plaintiff is entitled to the possession of the premises and to recover in this suit, unless the defendant elected to lease freight station grounds, in perpetuity of the plaintiff, as specified in the agreement of July 27, 1874, and gave notice to the plaintiff as therein provided.</p> <p>“2. The lease and agreement of July 27, 1874, did not give the right to the defendant to elect to lease any land of the plaintiff, wherever situated, for freight station grounds, in perpetuity, but the election was confined to the land specified in the articles of agreement;</p> <p>“3. If it appears, from the evidence in this case, that the term ‘Lake Front,’ used in the articles of agreement of July 27, 1874, had acquired at that time in Chicago, by popular usage, a known local meaning, signifying that portion of the lake shore extending from 'Randolph street to Park Row, and the submerged lands immediately adjacent to that part of the lake shore; and if it further appears, from the evidence, that the parties to the said articles of agreement were aware of that local meaning, and understood the term ‘Lake Front,’ as used in said articles of agreement, in that sense, then the meaning to be put upon the contract is that which .is the plain, clear and obvious meaning of the words used, giving to the term ‘Lake Front’ the particular local sense so acquired.</p> <p>“4. The land specified in the articles of agreement for permanent freight grounds was situated upon the ‘Lake Front,’ by which phrase must be understood, in the light of the evidence, that portion of the shore of the lake, or the submerged land in front of it, lying south of Bandolph street and between it and Park Bow. It was also land which required to be enclosed and filled to make it ready for occupancy, and it appears from the agreement that doubts existed whether the plaintiff might not be prevented, by legal proceedings, from enclosing and filling the same before November 1, 1879. It ■ further appears from the agreement that the plaintiff’s title to this land was not considered secure, and that the plaintiff might not be able to secure the legal title and to enclose and ■ fill the ground before the first of November, 1879.</p> <p>“ 5. The freight station grounds which the defendant elected to lease in perpetuity are described in the draft lease accompanying the notice given by Keyser, the general manager of the Baltimore and Ohio and Chicago Bailroad Company, dated the 23d of October, 1879. The land described in that lease was not a part of the ground specified in the articles of agreement, and was therefore not ground which the defendant could ■elect to take by virtue of the original contract.</p> <p>“6. The evidence does not show that any valid completed agreement was made between the parties to make and accept a lease of the grounds specified in Keyser’s notice, and even if such agreement had been in fact made, that would not, of itself, entitle the defendant to an extension of the original lease. The obligation of the plaintiff to extend the term of the original lease was dependent on the performance by the lessee of a condition precedent, viz., that before the term expired it should elect to lease freight station grounds in perpetuity of the plaintiff, as specified in the articles of agreement, and give notice to the plaintiff as therein provided. An agreement to lease grounds different from those thus specified would not be a performance of that condition, and therefore such an agreement would not carry with it to the lessee the legal right to demand an extension of the original term, unless it was accompanied by a further agreement to that effect, or by a stipulation modifying the condition of the original lease.</p> <p>“7. The lease and articles of agreement of July 27, 1874, were sealed instruments, and, under the common law rule established in this State, the terms of a sealed instrument can not be enlarged or varied by a subsequent parol agreement.</p> <p>“8. In this ease there is no evidence of any collateral agreement under seal to modify the terms of the original lease, nolis there any proof of a new agreement to extend the term of the original lease sufficient to answer the requirements of the Statute of Frauds. ' To be effective, a contract to extend the term of a lease for a longer period than one year must be in writing.</p> <p>“9. Evidence has been introduced by the defendant for the purpose of showing that an agreement was made between the plaintiff and the defendant for a lease of the ground referred. to in Keyser’s notice of the 23d of October, 1879, but it does, not appear that any contract was ever actually concluded. One indispensable requisite to a valid contract was wanting,— the reciprocal and definite assent of both parties to the same set of terms. It would, moreover, be necessary to the validity of such an agreement, that the ‘contract, or some memorandum or note thereof, should be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing by such party.’ There is no evidence in this case tending to show that any such contract or memorandum or note in writing was ever signed by ■ either party, or by any person thereunto authorized by either party.</p> <p>“10. The plaintiff is not estopped on equitable grounds, or by matter in pais, from insisting upon the fact that the premises referred to in Keyser’s notice of the 23d of October, 1879, were not the premises which the defendant had the right to-elect to lease in perpetuity under the provisions of the lease and articles of agreement of July 27, 1874. It is the rule of law established in this State that estoppels in pais affecting permanent interests in land can be enforced only in a court of equity.</p> <p>“11. If the parties attempted to select other ground than that contemplated by the agreement of July 27,1874, for permanent freight station grounds, and the defendant gave notice of its election to take such new ground in perpetuity, and the. parties failed to complete the lease and agreement, this fact', can in no way affect the right of the plaintiff to recover in this action. „</p> <p>“12. The only freight grounds which the defendant could legally elect to take under the terms of the lease of 1874 were grounds upon the Lake Front, then submerged with water, and to be in the future by the plaintiff enclosed and filled and made ready for occupancy, and no substitution or attempted substitution of other land than as above described is legally valid unless such substitution is in writing, signed-by the parties, or is actually executed by the execution, delivery and acceptance of a lease between the parties, embracing the description of such substituted lands.”</p> <p>The defendant below (appellant here) submitted to the court thirty written propositions to be held as law in the decision of the case. Of these, the court held eight to be the law, modified ten, and then held them, as so modified, to be law applicable to the case, and refused to hold twelve to be the law. To the decisions and action of the court in thus refusing and modifying the propositions offered by it, and holding the propositions as modified, appellant duly excepted.</p>

<p>Appeal from the County Court of Edgar county; the Hon. Andrew J. Hunter, Judge, presiding.</p>

<p>Writ of Bebob to the Appellate Court for the First Dis"trict;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. B. W. Clifford, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p> <p>On the 15th of November, 1886, the board of trustees of the town of Lake View passed an ordinance extending Lake View avenue, in said town, of the width of fifty feet, from the south line of St. James Place to Fullerton avenue, the east line of said avenue to be the east line of the south-west quarter of section 28, township 40, north, range 14, east of the third principal meridian.</p> <p>On November 22, 1886, a petition of the town of Lake View was filed in the Superior Court of Cook county, setting forth the ordinance, and praying that just compensation be awarded to the owner or owners of property to be taken or damaged by reason of the contemplated opening of said avenue, to be ascertained by a jury, and that said petition was filed under and in accordance with article 9 of the City and Village act of 1872, which, it was alleged, had been adopted by the town of Lake View, as provided for in section 84 of said act. • The petition set forth a description of the land to be taken or damaged, and the nam’es of the owners, so far as known. There was the usual prayer for process, and that compensation be ascertained.</p> <p>The ordinance attached to the petition, and introduced in evidence, after ordaining that said avenue be opened, as before mentioned, and directing the filing of the petition for the ascertainment of damages, provides in section 3 : “That said improvements shall be made, and the cost thereof be paid for, by special assessment levied upon the property benefited thereby, to the amount the same may be legally assessed therefor, and the remainder of said cost to be paid for by general taxation, in accordance with article 9 of an act of the General Assembly of the State of Illinois, entitled ‘An act to provide for the incorporation of cities and villages,’ approved April 10, A. D. 1872.”</p> <p>The appellants, Goodwillie and Goudy, were severally, with others alleged to be owners of certain other lands taken or damaged and particularly described, made defendants and served with process. A separate trial was ordered as to appellant Goudy, and a jury impaneled to fix the compensation for the land taken and damaged, owned by him, as before mentioned. A verdict was returned, awarding the sum of $5000 for land taken. A motion for a new trial by Goudy was overruled, and on January 7,1888, judgment was entered. On the 3d of January, 1888, a jury was impaneled to fix the compensation, etc., in respect of the remainder of the property taken or damaged. The order recites the appearance of all the lot owners, either by attorney or in person. The jury returned a verdict, finding the compensation to be paid to the owner of one lot $3500, to the owner of another lot $5691, and to others, owners of various tracts, various sums, aggregating, with the amounts allowed to Goodwillie and Goudy, $29,391, and the proper judgment of confirmation was entered. It seems Goudy prayed an appeal from the judgment affecting him, which was allowed, but it was abandoned as a cause of objection in the subsequent proceedings.</p> <p>On January 14, 1888,—the town of Lake View having in' the interim been incorporated as a city,—the city of Lake View filed a supplemental petition, in which the filing of the original petition on the 22d of November, 1887, and the subsequent proceedings, in which judgments to the aggregate amount of $29,391 had been rendered, were set forth, and praying for an assessment to be made upon adjoining and contiguous tracts of land upon said avenue, in accordance with the statutes in such case made and provided, to'raise the amount necessary to pay the compensation and damages awarded; that the court ascertain, as nearly as may be, the costs already incurred in said proceeding, and to be incurred, at the time of the appointment of commissioners, and including therein the probable further costs, and also the estimated costs, of making and collecting said assessment, and for the appointment of commissioners by the court to make such assessment in accordance with the statute, and for other relief.</p> <p>On the 14th of January, 1888, an order, was entered, upon the prayer of the petitioner, that the supplemental petition be granted, and it is recited therein that it appeared to the court that the aggregate amount of the compensation theretofore awarded for property taken or damaged for the improvement (describing it) was $29,391, and that the costs of the proceeding to that time were $400, and the probable further costs to be incurred, including therein the estimated costs of making and collecting the assessment, was $800, and finding the total amount of compensation and costs to be $30,591. It was further ordered, that three commissioners (naming them) be appointed to make special assessment of benefits to raise the said sum, and they were directed to apportion the same as provided by law. Goudy, one of the owners, objected to the decision and order of the court, and excepted thereto.</p> <p>The commissioners reported their action, together with a special assessment roll, with the oath required by law, which was filed January 21, 1888. On behalf of the owners, Goudy and Goodwillie, numerous objections were filed, among which were:</p> <p>“5. There is no such basis as required by law to determine the cost of the improvement.</p> <p>“6. No estimate has been made of the amount of money necessary to pay the damages for opening said street and for making said improvements.</p> <p>“7. The property proposed to be taken for the opening of said street has not been lawfully condemned, or the right to use the same acquired in any other way.</p> <p>“8. The part of lot 2, and north seventy-three feet of lot 3, and lot 5, in said subdivision, proposed to be taken and used for the opening of said street, has not been acquired by the town or city in any way whatever, and the judgments of condemnation rendered are therefore void.”</p> <p>The ninth is to the effect that the amount necessary to pay for damages has not been ascertained by condemnation or purchase, and the. amounts of said special assessments are uncertain, indefinite and excessive.</p> <p>To sustain these objections, objectors offered to show that said lot 3, etc., was the property of Cecilia Goodwillie, who was not a party to the proceedings, and offered evidence tending to show title in her from the government, and also evidence tending to show that lot 5 in said subdivision, which had been condemned as the property of Victor Lawson, was the property of Victor Lawson, Carrie Lawson and Norman Iver Lawson. This evidence was first offered to the court after the jury was sworn, but before any evidence was offered to them, but the court refused to receive the evidence at that time, but held that it might be introduced in support of the objections when the petitioner had concluded its case, and this was done.</p> <p>On the 3d day of December, 1888, a jury was impaneled and the objections heard, and a verdict returned, as follows: “We, the jury, find the premises of the objectors is not assessed more than it will be benefited, nor more than its proportionate share of the cost of said improvement.” Motions for new trial were entered by the objectors, and denied, and also motions in arrest of judgment, which were likewise denied and exceptions duly taken. The court thereupon rendered judgment confirming the assessment against the lots and parcels of land assessed and described in the assessment roll, and the clerk was ordered to certify the assessment roll, with the judgment, to the collector of the city of Lake View. The case is brought to this court by the several appeals of the objectors, Goodwillie and Goudy.</p>

Arthur A. Smith, Judge, presiding. This is an action of ejectment, brought by James A. Smith and wife, against Henry Mace, to recover the possession of one hundred and sixty acres of land in Knox county. The cause was tried by the court without a jury, who found for the defendant.

<p>Writ op Error to the Circuit Court of Jackson county; the-Hon. Oliver A. Barker, Judge, presiding.</p>

Louis; the Hon. B. H. Caney, Judge, presiding. This case is fully stated in the following opinion of the Appellate Court, by Phillips, J.: “On December 24, 188J, appellant, as sheriff of St. Clair county, by virtue of an execution in favor of P. P. Manion, levied on certain property as the property of the Biver Bendering Company.

<p>1. • Negligence—death—proximate cause. In an action by an administrator against a city to recover damages for the death of his intestate, caused by alleged negligence on the part of the city in leaving open •an excavation in a street, into which the intestate fell, the plaintiff can not recover unless it is shown by the preponderance of the evidence that the injury received on the street was the proximate cause of the death.</p> <p>2. Appeals—reviewing the facts—and herein, what regarded as matters of fact. In an action against a city to recover damages for the death of the plaintiff’s intestate, caused, as alleged, by the negligence of tlie city in leaving a street in an unsafe and dangerous condition, whether the death was the result of disease, or injury received on the street, is a question of fact not reviewable in this court; and so are the questions whether the deceased was in the exercise of ordinary"care at the time of the injury, and whether the city had left the street in an unsafe and dangerous condition, and was therefore guilty of negligence.</p> <p>3. Practice in the Supreme (Court—abandonment of assignment of error—presumption. Where no argument is presented in support of an assignment of error, it will be presumed that such assignment has been, abandoned, and it will not be considered.</p>

T. A. Moran, Judge, presiding. This is an appeal hy Hugh A. White, the present trustee, ■and Edwin Sherman, one of the legatees, under the will of Francis C. Sherman, deceased, from the judgment of the Appellate Court affirming a decree of the circuit court of Cook ■county approving the accounts of Henry W. Leman while acting trustee of said estate. Leman acted as such trustee hy virtue of an appointment of the county court of Cook county.

<p>Appeal from the City Court of Bast St. Louis; the Hon. B. H. Canby, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Monroe county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair •county; the Hon. George W. Wall, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. James H. Cartwright, Judge, presiding.</p>

Kirk Hawes, Judge, presiding. Mr. Justice Moran delivered the opinion of the Appellate Court, as follows, affirming the judgment of the trial court: “Appellant was at work for appellees in a quarry, near to-which was a machine for crushing the stone. The crushed stone was run from the crusher through a spout into cars, and as each car was filled it was run out on the track and an empty one brought up under the spout.

<p>Appeal from the Circuit Court of Madison county; the Hon. W. H. Snyder, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>

<p>Appeal from the County Court of Piatt county; the Hon. H. E. Huston, Judge, presiding.</p>

<p>Writ op Error to the Criminal Court of Cook county; the Hon. J. S. Grinnell, Judge, presiding.</p>

James A. Cbeighton, Judge, presiding. The original bill in this case was brought by John B. Boll against Frank P. Boll, to establish the complainant’s title to certain real estate, and to remove certain clouds from said title.

Writ of Beeoe to th'e Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. W. H. Snyder, Judge, presiding. The facts of this case, briefly stated, are as follows: Timothy Gruaz, defendant in error, obtained a judgment against the Highland Mechanical Works for $5647.10, at the March-term of the Madison county circuit court, upon which an exe- . cution was issued, and levied on certain personal property.

This suit was begun in the circuit court of LaSalle county on October 1, 1885,, against Thomas Ward. March 1, 1888, Daphne A. Ward was made a party defendant. January 13,. 1890, her death was suggested, and appellant, her administrator, made a party. At the same time the suit was dismissed by plaintiff as to Thomas Ward, and an amended declaration filed.

<p>1. Appeal—whether a franchise involved—“franchise” defined. The word “franchise,” as used in the act creating the Appellate Court, means a privilege emanating from the sovereign power of the State, owing its -existence to a grant, or prescription, which presupposes a grant, and invested in an individual or body politic,—something not belonging to the citizen of common right.</p> <p>2. Same—corporate name—as a franchise. The right to be a corporation by a particular name is a franchise; btit where this right is not ■contested, it will not authorize an appeal directly from the trial court to the Supreme Court. •</p> <p>3. Same—trade-mark—as a franchise. A-trade-mark is not a franchise or privilege emanating from the sovereign power of the State, but, on the contrary, is the name, symbol, figure, letter, form or device adopted and used by a manufacturer or merchant in order to designate the goods he makes or sells, and distinguish them from those made or sold by another.</p> <p>4. So where a bill by a foreign corporation seeks to enjoin a corporation of this State from the use of the name of the former as a trademark, no franchise will be involved, in the sense of that word as used in the statute allowing appeals to this court instead of to the Appellate Court.</p>

This is an original proceeding in this court, for mandamus. The petition is as follows: M To the Honorable the Supreme Court of the State of Illinois: “Tour petitioner, the German Insurance Company of Free-■port, a corporation existing under and by virtue of the laws •of the State of Illinois, whose principal office or place of business is at the city of Freeport, in Stephenson county, in said •State, now here respectfully shows to this court: “That on the 30th day of March,…

<p>1. Impeachment op witness—contradictory statements out of court— laying the proper foundation. The rule is inflexible that a witness cart not be impeached by proof of his having made contradictory statements. out of court, unless his attention has been directed, on his examination,. t0 those alleged contradictory statements, specifying particularly the time and place. It is not enough to ask the witness the general questions whether he has ever said so and so.</p> <p>2. In a suit against a street railway company, to recover damage» for alleged negligence in allowing a drunken driver to run a car drawn by mules, the evidence was conflicting as to whether such driver, at the time of the accident, was drunk, and he testified denying that he was intoxicated. On cross-examination he was asked if he did not,, after the first trial of the case, (there having been several trials,) at &. named place, tell D. and H., in a conversation about the accident, that he did not deny being drunk at the time of the accident, and.he, denied having said so, at that or any other place. The court allowed the plaintiff to prove, by D. and EL, that the driver, shortly before the first trial, did make such statements: Held, that the admission of such impeaching evidence was erroneous.</p> <p>3. Evidence—statements as of the res gestee. On the trial of a suit for damages against a street railway company, for alleged negligence in running a team and car over the plaintiff, a lad aged about seven years, the statements of the driver of the car just after the car was stopped, and while the plaintiff was under it, are proper to be shown in evidence, as part of the res geslce.</p>

Wbit of Ebeoe to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Christian county; the Hon. James A. Ceeighton, Judge, presiding.' On the 15th day of January, 1887, James Molohan, and Mary E. Molohan, his wife, while attempting to cross the track of the Wabash, St. Louis and Pacific Railway Company in a sleigh, at a public crossing in Christian county, were struck by a locomotive engine and tender, and killed.

<p>Appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.</p>

This was a proceeding hy mandamus, instituted in this court-The facts of the case appear in the opinion of the court. This is an original mandamus proceeding, the case being-submitted on a demurrer to the answer, which respondents-insist should be carried-back and sustained to the petition.

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a suit commenced before a justice of the peace, by Mary Flannery and Patrick Flannery against the Heims Brewing Company, to recover certain moneys claimed to be' due and owing from the defendant to the plaintiffs at the time of the commencement of the suit, upon the following instrument : “This article of agreement witnesseth, that Mary Flannery, and Patrick Flannery, her husband, have this day rented to…

<p>1. Ebbob will not always reverse—admission of evidence. On the trial of an action for a personal injury received from a fall down an elevator shaft while the door was left open and unlighted, the court allowed the plaintiff to prove that the morning after the injury a bar was placed by the defendant across the door of the elevator. There was no pretense that such a bar had been used before : Held, that if it was error to admit the evidence, it was one that did the defendant no injury, and was therefore harmless error.</p> <p>2. Practice—opening statements—not supported by evidence. In an action to recover for an injury from a fall in an elevator shaft,"plaintiff’s counsel, in his opening statement, said he expected to prove that there had been at least one death before in the elevator shaft, but the court excluded the evidence of former accidents and injuries, when offered : Held, that the remarks of plaintiff’s counsel were not such error as to call for a reversal.</p> <p>3. Same—closing argument. In the same case, plaintiff’s counsel, in his closing address to the jury, in reply to statements of defendant’s counsel as to what he might have proved if allowed by the court, said: “And I can state in the same way, that if certain questions that I asked as to previous injuries that had happened in this elevator shaft had been answered, you might have had something you could believe, at leastHeld, that such remark could not have seriously prejudiced the case, and was not reversible error.</p> <p>4. Same—improper remarks of counsel—objections—how taken. To certain remarks of plaintiff’s counsel as to what he could have proved if objections had not been sustained to his questions, the defendant’s counsel said, “I except to that statementHeld, that the latter remark meant nothing, in a legal sense, as the court had made no ruling to which an exception could apply, and if intended as an objection it was ineffectual, because not pressed upon the attention of the judge.</p>

Writ of Error to the Circuit Court of Peoria county; the Hon. L. W. James, Judge, presiding. Plaintiff in error, William Crosby, was indicted in the Peoria circuit court, jointly with one Lottie White, for an assault upon Belle Bennett with intent to murder. A trial resulted in the acquittal of White and finding Crosby guilty, and, a motion for a new trial being overruled, he was sentenced, on the verdict, to confinement in the penitentiary for the term of five years.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.</p>

E. P. Vail, Judge, presiding. This was an action on the official bond of Edmiston McClellan, clerk of the circuit court of Macon'county.

<p>Appeal from the Circuit Court of Madison county; the Hon, B. B. Burroughs, Judge, presiding.</p>

Clair county; the Hon. B. B. Burroughs, Judge, presiding. This is a bill to set aside a certain deed as a cloud on the complainant’s title. The material facts, substantially as stated by counsel for appellant, are: The land in controversy consists of a tract of perhaps thirty acres, which lies between the old and the present bank of the Mississippi river. It is the extreme north-west end of surveys 174, 175, 176 and 177.

<p>Appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Ford ■county; the Hon. Alfred Sample, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. B. H. Canby, Judge, presiding.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that.court on appeal'from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. John B. Hat, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Jersey county; the Hon. George W. Hebdman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— Beard in that court on appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding. '</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.</p>

Writ of Error to the Circuit Court of Vermilion county; the Hon. Edward P. Vail, Judge, presiding. This was a bill in chancery, filed by Catherine L. Michael, James K. Michael, John B. Michael, Martha A. Mace, Mary H-. Smith- and Jane Taylor, against Andrew J. Michael and Thomas F. Michael.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

• Appeal from the Appellate Court for the Third District;—■ ¡heard in that court on writ of error to the Circuit Court of Macon county; the Hon. Edward P. Vail, Judge, presiding.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook ■county; the Hon. John C. Bagbt, Judge, presiding.</p>

Owen T. Beeves, Judge, presiding. This was an action for a penalty for violating a city ordinance. The case was commenced before a police magistrate, and on appeal from the judgment rendered by him, to the circuit court of McLean county, the following were agreed to be the facts: .

<p>'Writ of Error to the Criminal Court of Cook county; the Hon. J. S. G-rinnell, Judge, presiding.</p>

J. A. Cartwright, Judge, presiding. This is a bill by appellant, against appellees, to enjoin the removal of a bridge on an alleged highway. A temporary injunction having been issued, defendants moved to dissolve it, which motion was heard in the circuit court on the bill and affidavits in support of it, and the defendants’ sworn answer. An order was entered allowing the motion and dismissing the bill.

This is a motion made by the Attorney General in this court for leave to file an information against Charles J. Beattie for misconduct as a licensed attorney at law of this court. The material facts appear in the opinion of the court.

This was a petition filed in this court by Adam Einard, «.gainst the town of Mount Morris and the board of auditors of such town, to compel them to audit, allow and pay, or make provision for the payment of, certain bonds issued by such town to a railway company. The facts of the case are sufficiently stated in the opinion of the court.

<p>Appeal from the Circuit Court of Monroe county; the Hon. William H. Snydeb, Judge, presiding.</p>

<p>1. Mandamus—to compel the State Treasurer to pay registered county bonds—requisites of petition. An amendatory statute relating to municipal bonds issued to a railway company authorized the registration of bonds issued to the company by counties and cities, on the application of the holders of $20,000 or upward of the bonds of any county or city, in which event the act of 1865, so far as the same related to the registration, collection and payment of interest, should apply to such bonds. The act further provided, that “whenever the proper county or city authorities shall provide for the payment of principal of such bonds, the amount annually to be raised for that purpose shall be certified by the proper authorities of such county or city to the Auditor of Public Accounts, and the provisions of said act shall apply to the collection and payment of the principal of said bonds as so provided by said county or city authoritiesHeld, that to authorize the collection of the principal it was necessary that the county or city authorities should provide for the payment of the principal, and certify the amount to be raised to the Auditor, and that a petition for mandamus to require the State Treasurer to pay money collected for the county on bonds held by the relator should show a compliance with this requirement.</p> <p>2. A petition for a mandamus to compel the payment of money in the State Treasurer’s hands, belonging to a county, upon bonds of such county, which fails to show, by proper averments, that the money in his hands is money which it is his duty, under the law, to pay to the relator, is bad on demurrer.</p> <p>3. Although there may be sufficient money of a county in the hands of the State Treasurer to pay the bonds of the relator, it does not follow that it is the duty of that officer to pay out such money on such bonds. They are payable only out of moneys in his hands levied and collected for their payment pursuant to law, and this must be conclusively shown by the relator.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Iroquois county; the Hon. Alfbed Sample, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the-Hon. A. N. Waterman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

Amos Watts, Judge, presiding. This was assumpsit, in the circuit court of Madison county, by appellee, against appellant company, on a fire insurance.policy issued by a'ppellant company to appellee on her frame house.

<p>Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>