Farson v. Fogg

• Court: Illinois Supreme Court
• Writing for the Court: MAGRUDER
• Citation: Farson v. Fogg , 205 Ill. 326, 68 N.E. 755 (Ill. 1903)
• Decision Date: 26 October 1903
• Parties: FARSON et al. v. FOGG et al.

205 Ill. 326

68 N.E. 755

FARSON et al.

v.FOGG et al. ^*

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Bill by Simon F. Fogg and others against John Farson and others. From a judgment of the Appellate Court (105 Ill. App. 572) affirming a decree for complainants, defendants appeal. Reversed.Judson F. Going (Daniel V. Gallery, of counsel), for appellants.

Alexander S. Bradley, for appellees.

This is a bill, filed in the circuit court of Cook county on July 21, 1897, against the Calumet Electric Street Railway Company, John Farson, Arthur B. Leach, Levi H. Fuller, John C. McKeon, and Idea L. Hammond, administratrix of William A. Hammond, deceased, for the purpose of enforcing the specific performance of the following agreement, to wit:

‘This memorandum of agreement, made and entered into by the undersigned this 17th day of September, A. D. 1895, witnesseth:

‘That whereas, the Calumet Electric Street Railway, a corporation, has made application for a franchise or a license to build a one or two-track electric railway on Cheltenham Place from the easterly line of Bond avenue to a point four hundred and eighty feet easterly therefrom, in Chicago, Illinois; and whereas, the said corporation has agreed with the undersigned, Simon F. Fogg and William C. Kinney, who are the owners of lots 172, 173, 174 and 175 in Westfall's subdivision, etc., * * * and the eighty feet in width east of and adjoining said lots 172 and 174, to cut, grade, curb, macadam and build the cross-walks in said Cheltenham Place from curb to curb from said Bond avenue to said point, the work to be of uniform width throughout, according to the specificationshereto attached and hereby made a part hereof, in consideration for, and in full payment of, the damages which said Fogg and Kinney will incur in connection with, and by reason of, the construction of said railway on said Cheltenham Place, if the said corporation shall secure said ordinance; and whereas, the undersigned, Farson, Leach & Co., being interested in said corporation and in the securing of said franchise and the construction of said road, to secure the faithful performance of said agreement by said corporation on or before September 1, 1896, if it shall secure said franchise in the meantime, have placed their certified check of $1,000.00, drawn upon the National Bank of Illinois, and made payable to William A. Hammond, vice-president, as trustee, to secure the faithful performance of said agreement;

‘Now therefore, in consideration of the premises, it is mutually agreed between the undersigned that, if said corporation shall complete said cutting, grading, curbing, macadamizing and cross-walks according to the specifications hereto attached as aforesaid, on or before September 1, 1896, the said William A. Hammond shall, when said work is fully completed according to said specifications, return said check to said Farson, Leach & Co. If said corporation shall not secure the said franchise or license and shall have withdrawn its application therefor, and returned to said Fogg and Kinney their petition to the city council to grant said franchise or license to said corporation, then said check shall be returned to said Farson, Leach & Co. If said corporation has acquired on or before September 1, 1896, said franchise or license, and neither it, not the said Farson, Leach & Co. has completed said work according to said specifications, said check shall thereupon be endorsed by said Hammond, or his successor as vice-president of said bank, and delivered to said Fogg and Kinney by said Hammond or his successor, and said bank shall pay the same to said Fogg and Kinney upon said endorsement when made by said Hammond or his said successor, and said Fogg and Kinney shall have and hold said sum of $1,000.00 as and for liquidated damages for the failure of said corporation or said Farson, Leach & Co. to do said work. The said work shall be done in accordance with said specifications to the satisfaction of said Fogg and Kinney. In case said company be restrained by any court from proceeding as above specified, then the time to complete said work shall be correspondingly extended, but not in all longer than ninety days from September 1, 1896.

‘This agreement shall be binding upon the heirs, representatives and assigns of the undersigned.

‘In witness whereof, the undersigned have hereunto set their hands and seals the day and year first above written.

‘Simon F. Fogg, [Seal.]

‘William C. Kinney, [Seal.]

‘Per Simon F. Fogg. [Seal.]

‘The Calumet Electric Street Railway Company for value received hereby acknowledge that it has agreed to do said work according to said specifications, as in the foregoing memorandum is stated, and upon the conditions therein recited.

‘Calumet Electric Street Railway Co.

‘John Farson, Gen. Manager.’

The specifications, attached to the contract, provide that, whenever cutting occurs, the earth must be excavated to such depth as the engineer may direct, and the surface graded to stakes to be given by him; that, before paving, the street should be graded to conform to stakes or profiles to be given by the engineer in charge, and thoroughly flooded, rammed, and rolled, to give it a solid bed; that on the roadbed thus formed and completed will be spread a layer of clean, broken stone entirely free from dust and dirt, not less than _____ in depth in the center, and not less than _____ at the sides after being thoroughly rolled; that the stones shall be practically uniform in quality, etc.; that on the above layer shall be spread limestone screenings or bank gravel, as designated by the commissioner of public works, in sufficient quantities to fill up all interstices, and then flooded and rolled, etc.; that the above to be covered with medium limestone, etc.; the interstices to be filled with limestone screenings, or bank gravel, and flooded; that this layer shall not be less than _____ in depth at the sides and not less than _____ at the center, after being thoroughly rolled; that the cubes shall be of best quality of oak plank, 3 inches in thickness by 14 inches in width, etc.; that there shall be four cross-walks at each street intersection, three at each half intersection, and one at each and every alley, to be constructed of Ottawa or Grape Creek paving brick, or brick of equal quality and shape; that the brick shall be equal in quality to standard samples in the office of the commissioner of public works, the cross-walks to be formed under the direction of the engineer in charge of the street, and to be six feet in width; that the brick must be laid in uniform courses, etc.; that when laid the pavement shall immediately be covered with clean, dry, sharp sand in proper quantities, and swept until all joints become filled therewith, etc.; that no broken or cracked brick will be allowed to remain in cross-walks; that all cross-walks and their appurtenances shall be constructed by the contractor without any extra charge for the same over and above the price bid per lineal foot for macadam.

A joint and several answer was filed to the bill by the Calumet Electric Street Railway Company, John Farson, A. B. Leach, Levi H. Fuller, and John C. McKeon. The answer sets up that the National Bank of Illinois was in the hands of a receiver, and that John McNulta was such receiver. Accordingly, on May 7, 1898, the appellees, complainants below, filed a supplemental bill making John McNulta, receiver of the National Bank of Illinois, a party defendant. John McNulta, receiver of the National Bank of Illinois, filed an answer.

It also appeared from the answers that the Calumet Electric Street Railway Company was in the hands of a receiver, but such receiver was not made a party to either the original or supplemental bill.

The cause, after being at issue, was referred to a master in chancery, who made findings substantially in accordance with the prayer of the bill. The master's report, after objections and exceptions thereto, was confirmed by the court, and the final decree entered on March 22, 1901. An appeal was taken from this decree to the Appellate Court, and the decree of the circuit court was affirmed. The present appeal is prosecuted from such judgment of affirmance.

The material facts, as gathered from the pleadings and proofs, and from the master's report, and the decree of the court, are substantially as follows: The premises in question were owned by appellees, Fogg and Kinney, but the legal title was in Fogg, Kinney owning the equitable title to an undivided hale of the premises. The premises owned by appellees were on the south side of Cheltenham Place, and fronted toward the north thereon 480 feet. That is to say, the whole frontage of the block on the south side of Cheltenham Place between Bond avenue and Lake avenue was the property of appellees. The Calumet Electric Street Railway Company (hereafter called the Calumet) had applied to the common council of the city of Chicago for a license or ordinance to lay tracks on Cheltenham Place in front of the property of appellees. The evidence tends to show that the South Chicago City Railway Company (hereafter called the South Chicago) was also seeking a right of way on Cheltenham Place between Bond and Lake avenues, which was one block. No franchise could be obtained from the city to construct and operate a railway on said street without the consent of the appellees. Farson and Leach were copartners under the name of Farson, Leach & Co., and interested in the Calumet. About September 18, 1895, Fogg, representing the appellees, and Leach, representing the corporation, and Farson, Leach & Co., placed a duplicate of said agreement and a check or order for $1,000 in the hands of said Hammond in said National Bank in trust, and told Hammond that the check was delivered to him in trust for the carrying out of the said agreement between the parties, and Hammond received the...