Gage v. Springer

• Decision Date: 23 June 1904
• Citation: 71 N.E. 860,211 Ill. 200
• Parties: GAGE v. SPRINGER et al.
• Court: Illinois Supreme Court

211 Ill. 200

71 N.E. 860

GAGE

v.SPRINGER et al. ^*

Supreme Court of Illinois.

June 23, 1904.

Appeal from Appellate Court, First District.

Action by Antoinette Gage against George W. Springer and others. From a judgment of the Appellate Court (112 Ill. App. 103) affirming a judgment for defendants, plaintiff appeals. Reversed.Gage & Deming, for appellant.

Sears, Meagher & Whitney (Nathaniel C. Sears and William M. Flook, of counsel), for appellees.

This was an action on the case, brought by appellant, Antoinette Gage against George W. Springer, Charles S. Clarke, and William McGrew, appellees, in the circuit court of Cook county. The declaration consisted of two counts, the first of which alleges that plaintiff is the owner of part of a certain lot in the village of Wilmette, in that county; that defendants Springer and Clarke are members of the board of trustees, and, together with one Walter Farady, constitute the board of local improvements of said village; that on February 20, 1900, an ordinance was passed for the improvement and macadamizing of the street on which said lot fronted; that the lots along the line of the proposed improvement, including the property of the plaintiff, were specially assessed to pay for the same, and that the assessment was, on March 16, 1900, confirmed by the county court of Cook county; that said ordinance contained specific directions for making the improvement and the quantity and quality of the materials to be used, and provided that the work should be done under the direction, inspection, and supervision of the board of local improvements. The count then alleges that McGrew was a contractor engaged in the business of building and improving roads and pavements; that on May 22, 1900, the members of the board of local improvements entered into a written agreement with him, by which he undertook and agreed to make the improvement, in conformity with the specifications and requirements of said ordinance, for the sum of $25,127.29; that he constructed a pavement which was not in accordance with the terms of the ordinance, and which was different from, inferior in quality, and cheaper in cost than, the improvement provided for by the ordinance; that Springer and Clarke, acting as and constituting a majority of the board of local improvements, and colluding and conspiring with McGrew, and contriving and unjustly intending to injure the owners of the property so specially assessed, unlawfully, wantonly, and maliciously permitted McGrew to construct said pavement in a manner different from, inferior to and cheaper in cost than the improvement provided for by the ordinance and acquiesced in and encouraged the construction thereof as the same was constructed, and afterwards wantonly, maliciously, in bad faith, and in violation of their duty to the plaintiff, accepted the different, inferior, and cheaper improvement as a compliance by McGrew with the terms of the ordinance and the provisions of the written agreement; that thereafter, on June 1, 1901, Springer and Clarke, conspiring with McGrew to injure the plaintiff and her property, wantonly, maliciously, and in bad faith caused to be issued to McGrew bonds for the payment of the contract price of the improvement largely in excess thereof, such excess amounting to $5,000. The count further alleges that the cost of the improvement, as constructed and accepted, did not exceed 30 per cent. of the assessment levied, and that the variance from and disregard of the provisions of the ordinance and contract were occasioned by a willful, wanton, and malicious disregard of such provisions, and were the result of combination and collusion among defendants for the purpose of injuring the plaintiff and others assessed for the improvement, and for the purpose of wrongfully and unlawfully increasing the profits of McGrew out of the work, to the damage and in fraud of the rights of the plaintiff; and charges that the things above set forth were well known to the defendants at the time of the making and doing thereof. The count then alleges that the plaintiff's property is worth $5,000, and that the assessment amounted to $400; that by reason of the foregoing matters the plaintiff has not received the benefit of the improvement, and that the pretended improvement, as constructed and accepted, is an injury to plaintiff and to her property, and that said property is greatly depreciated in value thereby; that she was compelled to and did lay out $200 in order to prevent the sale of her land for such assessment, and that by reason of such assessment her property is encumbered, and is subject to a lien for the amount assessed against it. Damages in the sum of $5,000 are claimed.

The second count differs from the first only in that it sets out in detail the provisions of the ordinance in respect to the manner in which the work was to be done, and the kind, quality, and quantity of the material to be used, and then sets out in detail the manner in which the work was actually done, and the kind, quality, and quantity of the materials actually used.

The defendants demurred generally to the declaration, and the demurrers were sustained. Plaintiff stood by her declaration, and judgment was entered dismissing the cause and adjudging costs against her. She appealed to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, and she now prosecutes a further appeal to this court.

The grounds insisted upon by counsel for appellees in support of the action of the circuit court in sustaining the demurrers and the action of the Appellate Court in affirming the judgment of the trial court are (1) that the plaintiff has suffered no damage different in kind from that suffered by the other members of the community; (2) that the defendants owed no special duty to the plaintiff; and (3) that Springer and Clarke were quasi judicial officers, performing judicial functions, and therefore cannot be held answerable in a suit by a private individual, even for fraudulent and malicious conduct.

SCOTT, J. (after stating the facts).

Where members of a board of local improvements and a contractor, for the purpose of profiting the contractor or injuring the owner of property specially assessed, or from other corrupt or malicious motive, enter into a conspiracy, which is carried out, whereby another and different improvement, of an inferior character from the one specified in the ordinance and contract, is substituted for the one so specified, do the conspirators become personally liable to the owner of property, which has been specially assessed to pay for the improvement, for damages sustained by him by reason of the fact that his property does not obtain the benefit from the substituted improvement that it would have obtained from the improvement for which it was specially assessed? The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the...