30!
FEDERAL. REl'OR'J'ER;voL ,BS.
menthe: takes eiecul;ionacpordirigly. ., And further , the supreme court Of Kansas :hail decided tHat ajudgment· creditor may at any titHe make
his judgment the basis of 0. new 'action against the debtor, and· obtain another judgment thereon. Bt,rilesv, Simpson, 9 Kan. 659; Humrner Y. Lamphear, 32 Kan.439, 4 'Pac.' Rep. 865. It will be seen that the Code and the ;practice under it makes it still more difficult for this court to determine whether :the. Lyon county court exceeded its jurisdiction.At most, it seems to me to be a question of practice and not power. I find no positive law or statute limiting or defining the jurisdiction of the court insuch.·cases, and,as all presumptions are in favor of the court having jurisdiction of the and the parties, this court can find nC) justification for declaring the judgment in question a nullity. The demurrer to defendants' answers must be overruled.
CrrYOF' CHICAGO t1. MESSLER
etal.
(Oircuit (Jottrt, 1r.
'March 25, 1889.)
t.· ElRN1llNT t;:SAME;
PENDENTE L I T E . ' f who takes a lell,sependlng proceedings forth!! condemnation of thl!j p.relLises. has DO claim for damages .agalnst the bc>dy maintaining the pro.,
, But his interest is terminated by the proc!!edings,and he is eI1titledto its , value qut of the, damages awarded tc> the lessor·
,
,.'
' ..,. '. . by the city of Ohicagofor the condemnation of property William Jenkinson petitions for payment, qf );lis damages. :"John W. Green, for the City· .W. II,.; qU'f/<ninghq:rf/:,. forJ enkinson. ,Jtuld, Rit{:hie&F;sher, for Bond. : "
..\tLaw.:;
J.'In the, city fiJed s petition to condemn 33 feet/of land onthj:lea'lt sidtl of Stewatt avenue, from Twenty-Third street to,EgaJlt avei:lUe,for tbepurpose ofwideningSteW8.t't .ayenue. Henry R.. Bond,s citizenrof the state of Connecticut, as:owner of lots I' and 8 in United States .Bank addition to ,Chicago,causel1"theaase, so far as itre. lated J.o these lands, to be removed ' to this court,for hearing. On the 18th,day ofFebruary Jast a jury was waived,Rnd.thecause tried bytne OOllrt l ! nnd thevahle.ofthe pQrtionof the lots in! question owned by Mr.: Bond soughtto'be takeninthis proceeding $22,500, sjudgl. ment<reQderedaccardhlgiy, .and the mOlley, paid:dpto: court,wher.e it·now is." entered, one ,WilHamJenkinson has appeared pled hi& petition: in the case, stating that on ;toe '23dofMarch, ,'.BLODGETT,
CITY' OF CHICAGO ''II. 'MESSt.Ek.
1888 j which' was subsequent to the' of by · the city,: said :aond l as the oWner of theloul in queation,leasedtopetitioner the building situate' on ·the south-east . comer' of Twerity-'Si:x:.th street and Stewart avenue, beinga portion of the ,land·inCluded ill the said JUdgment, with the boiler'S, engines, ahd .machinery situate in said building, for a rental of $2,000 per annum for the term of three years; that he has used the said demised premises for a planing-mill, and sash and blind factory; that he will be subjected to great damage by reason of the breaking up of his business; and prays that he may be paid his said damages out of the money in court. " In behalf of the city it is contended that no change in the value or eondition of the property siilCe the filing of the petition to condemn can affect the rights of the city, as the value of the property at the time of tll comm,encernent of the 'proceedings to condemn is the measure of the eity!sliability. v. Dunlevy, 91 Ill. 49; Schreiber v.,RailToad Q).,H5 TIl. 340,3 N·.E. Rep. 427. While on the part of Bond. , it is insisted thllt this petitioner took pendente lit,i:. and was liable to have his leasehold. interest terminated by the judgment of , condemnation, .whenever the case should be bi."ought to hearing, and 'that lie, therefore has :0,<;> (pla:illl for damages either against the City Mr. -Bond, thelessor. I think it must be coneededthatthistenant, having ;'eilteredpen;dente lite; carinot any claim. the · dty,and there can be no dQubt that by these pro(;eedings estate is .terminated; and. as I said:, the contention on the part· 'Of Mr. is tliepetitioner has noclaimbyvi,rtueof this " :ordheJuud in that by this thepwner of the fee, has carved out of his fee-simple estate this estate· for 'three exten.t of this'este.te for robe paJd,oqt thIS fund. I cannot seeany,qlffer. ence between; thecasei made by this petition andwhat·would· have resulted if Mr. Bond, after the filing of this petition, had conveyed the en· tire estate to a third person. In that event there would be no doubt but what the grantee of the fee would be entitled to the compen'satiorifinally awarded for the taking of the property. So, ,here, Mr. Bond has conveyed, not the entire fee, but an estate for the term of three years, and cso far' ne h1tS, divested himself of the right to compensation, and the ,:<Jompensationwhich would have gone to him fol' the whole fee mlistoe ,'divided between the reversion, whic::h remains inhim, and the term for yearawhich he has created, The petitioner daimslarge damages for the loss of his. business; and -the expense of moving to some other place in which to establish or carry on his business. I am n,ot prepared to say at present whether this; claim , is well.founded or not. My present impression is that, inasmuch as the , petitioner would have been compelled to move at the lease, hold e'Btabi, atidas 1lhe termination of the leasehold estate is not the act of · the lessor,. that no damages can be claimed against the from · 'tludund in c.otrrl, for iDjaryto the businesso'epetitioner>on the:premdses,! ortheeipenses, of moving toanothersitej still I dOJ,uotdeem'it
ot
804
FEDERAL REPORTER,
vol. 38.
necessary to definitely dispose ofthat question in regard to the measure of damages at this time. It is enough, therefore, to say that I consider the petition suffioient to entitle the petitioner to some compensation out . of the fund in court, and shall therefore overrule the objections made to it in behalf of Mr. Bond, and leave all further questions until the hearing.
PRICE
et al. "'.
CmCAGO,
S. F. &
C.
Ry. Co.
(Oircuit Oourt, N. D.lllinoiR. March 20, 1889.)
. I.
CONTRACTS-ENGINEER'S ESTIMATES-ESTOPPEL.
Plaintiffs contracted to do certain construction work for defendant, "under the direction and supervision of the chief engineer . * * * and his assistants, by whose measurements and calculations the. quantities and amounts of the several kinds of work * * * shall be determined, and whose determination shall'be conclusive upon the parties. * * * The 'said chief engineer 8ha1l decide every question * * * relative to the execution thereof. and his decision shall be binding. and final." The work was done under the.supervision of an assistllnt engineer. who each month forwarded his estimates to the chief engineer, who paid plaintiffs monthly on the basis of such estimates, 'and they paid their subcontractors monthly on the same basis. After the completion of the work the chief. engineer made a remeasurement thereof, when it was discovered that the assistant engineer'li estimates, without the fault of plaintiffs or their SUbcontractors, were largely in excess as to quanti· ties, the result being that the subcontractors had been greatly overpaid.. Held, that defendant, and not plaintiffs, must bear the loss; that, notwithstanding the terms of the contract, defendant was estopped to deny the correctness of the estimates of the assistant engineer whom It had placed in charge of the ··work. The clause of the' contract making the chief engineer the final umpire in all differences between the parties under the contract relates only to the execution of the work, and. has no llpplication to such a question as this.
.
B.
SA¥E-DECISIOl'l OF ENGINEER.
At Law.
Aotion on contract.
Swett & Gr088CUp, for plaintiffs. Williams & Thompson, for defendant. BLODGETT, J. This suit is brought to recover a balance claimed to .be due plaintiffs,on a contract in writing made on the 21st day of March. 1887 I between plaintiffs, constituting the firm of Price, McGavock & Co., party of the first part, and the Chicago, Santa Fe & California RailwayCompanYi Of the second part, by which plaintiffs agreed to do all the grading, clearing, guubbing, and masonry necessary to complete the roadbad of thel'ailroad of the party of the second partfrorn the east bank of ,fhe Mississippi river eastward for a distance of 50 miles, which, in fact · . 'included that portion of defendant's line of railway between the sippi river and Galesburg in the state of Illinois. It is admitwd that the plaintiff soon after .the making of this contract sublet the same to the firm of'Jones, Forrest & Bodkin, who did the work called for by the contract, and this suit is prosecuted in the name of the plaintiffs for the use of