Allis-Chalmers Mfg. Co. v. City of Chicago, 13847.

• Decision Date: 21 April 1921
• Docket Number: No. 13847.,13847.
• Citation: 130 N.E. 736,297 Ill. 444
• Parties: ALLIS-CHALMERS MFG. CO. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

297 Ill. 444

130 N.E. 736

ALLIS-CHALMERS MFG. CO.

v.CITY OF CHICAGO.

No. 13847.

Supreme Court of Illinois.

April 21, 1921.

Action by the Allis-Chalmers Manufacturing Company against the City of Chicago. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Appeal from Superior Court, Cook County; Joseph B. David, judge.

Samuel A. Ettelson, Corp. Counsel, of Chicago (Henry T. Chace, Jr., and Gilbert G. Ogden, both of Chicago, of counsel), for appellant.

Drucker & Boutell and Ernest R. Reichmann, all of Chicago (William S. Corbin, of Chicago, of counsel), for appellee.

DUNN, J.

The Allis-Chalmers Manufacturing Company on October 9, 1918, began an action of assumpsit in the superior court of Cook county against the city of Chicago to recover the sum of $4,000 which it alleged it had paid to the city on December 10, 1908, under the terms of an ordinance for the vacation of a part of Fillmore street, in the city. The ordinance was set out in full in the declaration, and provided that the vacation was made upon the express condition that the Allis-Chalmers Company, a corporation, the Heywood Bros. & Wakefield Company, a corporation, and the Chicago Terminal Transfer Company or its receiver, or any one or more of said companies, should within 30 days of the passage of the ordinance pay to the city of Chicago the sum of $4,000 toward a fund for the payment and satisfaction of any and all claims for damages which might arise from the vacation of the street. The declaration alleged that the ordinance was expressly conditioned that the plaintiff pay to the city of Chicago, within 30 days of the passage of the ordinance, the sum of $4,000 toward a fund for the payment and satisfaction of any claim or claims for damages that might arise from the vacation of said street and perform other conditions, all of which conditions were complied with, and that the plaintiff paid to the city $4,000 within 30 days of the passage of the ordinance; that no damages of any kind had arisen, been claimed, or paid by the city, no judgment had been rendered against it by reason of said vacation, and no suit had been brought against it on account of any damages claimed by reason of the vacation within 5 years from the date the ordinance became a law, and by reason thereof the defendant became liable to repay to the plaintiff the sum of $4,000.

Pleas were filed, to some of which demurrers were sustained, and on December 2, 1919, an amended declaration was filed, which alleged that by the terms of section 2 of the ordinance it was expressly conditioned that the plaintiff, the Heywood Bros. & Wakefield Company, and the Chicago Terminal Transfer Company or its receiver, or any one or more of them, should pay to the city, within 30 days of the passage of the ordinance, the sum of $4,000 toward a fund for the payment and satisfaction of any claim or claims for damages that might arise from the vacation of said street, and that the plaintiff and the other corporations named, on December 10, 1908, paid to the city the sum of $4,000. The amended declaration further averred that the plaintiff is now the actual bona fide owner of all right, title, and interest of the Allis-Chalmers Company, a corporation, in the sum of $2,000 deposited by the Allis-Chalmers Company with the city of Chicago as part of the sum of $4,000, in accordance with the terms of section 2 of the ordinance, toward a fund for the payment and satisfaction of any and all claims for damages which might arise from the vacation of said street, and is the actual, bona fide owner of its right of action to recover the same, arising at the expiration of the period of 5 years from the time when the same was deposited with the city of Chicago; that said fund, sum of money, and right of action for the recovery thereof were on or about the 7th day of March, 1913, sold, transferred, set over, and assigned to the plaintiff for a good and valuable consideration paid by it, at a sale of all the assets, rights, credits, and effects and choses in action of the Allis-Chalmers Company by the receiver of said company under a decree of the District Court of the United States for the Eastern District of Wisconsin. The amended declaration contained the same allegations as the original declaration, that no damages had been claimed or any judgment recovered or suit brought on account of any damages claimed within 5 years from the date of the ordinance, whereby the defendant became liable to repay to the plaintiff the sum of $2,000, being the portion of the sum of $4,000 which was paid by the plaintiff. This amended declaration was subsequently, by leave of the court, amended on its face so that, instead of the averment that by the terms of section 2 of the ordinance it was conditioned that the plaintiff, the Heywood Bros. & Wakefield Company, and the Chicago Terminal Transfer Company or its receiver should pay the sum of $4,000 within 30 days, it alleged that it was conditioned that the Allis-Chalmers Company, the Heywood Bros. & Wakefield Company, and the Chicago Terminal Transfer Company or its receiver should make the payment, and that the Allis-Chalmers Company and the Heywood Bros. & Wakefield Company made the payment on December 10, 1908, of $4,000 to the city, of which the Allis-Chalmers Company paid $2,000.

Pleas were filed, issues were joined, and on the trial the court instructed the jury to find a verdict for the plaintiff for the sum of $2,000, and judgment was rendered for that amount against the defendant, which thereupon appealed to this court, the judge having certified that the validity of a municipal ordinance was involved, and that in his...