Farrell v. City of Chicago

• Decision Date: 25 October 1902
• Citation: 198 Ill. 558,65 N.E. 103
• Parties: FARRELL v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

198 Ill. 558

65 N.E. 103

FARRELL

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, First district.

Action by Anna Farrell against the city of Chicago, as administrator of Patrick Farrell, deceased. From a judgment of the appellate court (100 Ill. App. 204) reversing a judgment of the superior court in favor of plaintiff, plaintiff appeals. Affirmed.

Chester Firebaugh and James J. Kelly, for appellant.

Charles M. Walker, Corp. Counsel, and Roswell B. Mason, Asst. Corp. Counsel, for appellee.

CARTER, J.

The appellate court, for errors of law, reversed, without remanding, a judgment for $8,657.11, rendered by the circuit court of Cook county against the appellee in an action of assumpsit brought against it by the appellant. The suit was to recover the balance unpaid on a voucher issued by the city on November 12, 1894, to the plaintiff's intestate, Patrick Farrell, under a contract in a special assessment proceeding for paving West Madison street. The voucher was originally for $11,807.11, but it had been credited with payments from special assessments collected by the city, leaving only a balance unpaid of $8,657.11. It appears that judgment of confirmation was refused by the county court as to $7,413.18 of the total of $38,481.85 specially assessed on property alleged to be benefited. Of the total cost of the improvement, $2,616.43 was assessed against the city, which is payable out of its revenues derived from general taxation. No supplemental or additional assessment was ever made by the city, and the evidence fails to show that the plaintiff or Patrick Farrell ever requested the city council to make such new assessment, though demands for payment and for a confession of judgment for the amount were frequently made before this suit was brought. Farrell's contract with the city provided that ‘no act of the city done or suffered to be done shall be construed as a collection of any special assessment, or part thereof, until the money due thereon shall be actually paid into the city treasury; that said sums of money due the contractor shall be payable out of the proceeds of the special assessment levied, and out of the proceeds of any special assessment which shall hereafter be levied, for said improvement, and also from the general fund of said city as assessed or to be assessed against said city as its relative equitable proportion of the estimated costs of said improvement, the proportion to be paid by said city of the amounts assessed or to be assessed against said city being the proportion which the whole amount assessed or to be assessed bears or shall bear to the actual cost of said improvement; the said party of the first part agreeing to make no claim against said city in any event, except from collection of the special assessment made or to be made for the improvement, and to take all risk of the invalidity of any such special assessments; said party of the second part not to be liable, in any event, by reason of the invalidity of such assessment, or the proceedings therein, or for failure to collect the same; said estimates (all moneys due contractor) will accordingly be paid fully only when the assessment or assessments levied and to be levied for said improvement shall be wholly collected, so that the aggregate of all payments to be made on all vouchers and estimates on account of said improvement issued prior to full collection of the assessment, together with amount of said assessment to be rebated to property owners, shall not exceed the full amount of cash collections in the treasury of said city to the credit of said special assessment fund.’ And the question presented for decision is whether the city of Chicago is liable in this action for the balance due on said voucher or warrant, or for work, labor, and materials done and furnished in said improvement which it has accepted, and had the use and benefit of for seven or eight years. The trial court instructed the jury to find for the plaintiff, and refused an instruction to find for defendant.

We are of the opinion that the judgment of the appellate court in reversing the judgment and not remanding the cause was correct. The promise was to pay only out of the assessments made or to be made for the the improvement, and Farrell...