City of Chicago v. Harrilcock.

• Citation: 1877 WL 9738,86 Ill. 384
• Parties: CITY OF CHICAGOv.HARRIET ALLCOCK.
• Decision Date: 30 September 1877
• Court: Supreme Court of Illinois

86 Ill. 384

1877 WL 9738 (Ill.)

CITY OF CHICAGO

v.HARRIET ALLCOCK.

Supreme Court of Illinois.

September Term, 1877.

WRIT OF ERROR to the Superior Court of Cook County; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. RICHARD S. TUTHILL, for the plaintiff in error.

Mr. A. B. JENKS and Mr. A. S. TRUDE, for the defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

In 1873 the city of Chicago constructed a tunnel from Lake Michigan to near the corner of Twenty-second street and Ashland avenue, a distance of about six miles. The tunnel ran under and through the property of the plaintiff, and was, as appears from the evidence, nine feet high, nine feet wide, and below the surface of the ground about sixty feet. The construction of the tunnel caused a depression on the surface of the plaintiff's lots of from four to five feet, at its center, extending in every direction thirty or forty feet. The fences and buildings on the property, in consequence of the sinking of the earth, were seriously damaged, and this action was brought to recover the damages sustained. On a trial of the cause before a jury the plaintiff recovered a verdict and judgment for $2,170; to reverse which the city of Chicago has prosecuted this writ of error.

Two grounds are relied upon to reverse the judgment:

1. The damages are excessive.

2. The court erred in instructing the jury that they should allow interest on the amount of damages awarded, to be computed from the time the damages were sustained.

We do not deem it necessary to consider the question raised in regard to the amount of damages, as the judgment will have to be reversed in consequence of the error in the instruction in regard to interest. Interest can not be recovered in this State, in any case, except where the statute authorizes it. At common law it could be recovered in no case except where there was an express agreement to pay. Interest may, then, be regarded as depending upon, and as the creature of, the statute. Madison County v. Bartlett, 1 Scam. 67; City of Pekin v. Reynolds, 31 Id. 529; Illinois Central R. R. Co. v. Cobb, Blaisdell & Co. 72 Id. 148.

Section 2 of chapter 74 of Revised Laws of 1874, page 614, which is the statute in this State that provides for interest, declares: “Creditors shall be allowed to receive at the rate of six per cent per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account, from the day of liquidating accounts between the parties and ascertaining the balance; on...