Munson v. Osborn
| Decision Date | 31 March 1882 |
| Citation | 10 Bradw. 508,10 Ill.App. 508 |
| Parties | CHARLES MUNSONv.CHARLES W. OSBORN ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed March 7, 1882.
This was an action of trespass brought by Charles W. Osborn, Edward Smackels and Oscar C. Squyers, for the use of Edward Smackels, against Charles Munson, charging him with wrongfully breaking and entering certain premises of the plaintiff. The declaration alleges, in substance, that on the 10th day of December, 1880, the plaintiffs owned the lease of an engine room situate in a certain building in the city of Chicago, and the steam-engine and boiler therein, with the appurtenances, by means of which engine and boiler and certain belts and pulleys thereto attached, they had for a long space of time prior thereto, run the machinery of a certain brush factory belonging to the plaintiffs situate near said building, and also heated said factory, and that the plaintiffs were under contract to the firm of Meyer Brothers & Co., who were engaged in the manufacture of curtains and cornices, to furnish by means of said engine and boiler, for the space of two years, steam and steampower to run the machinery of said Meyer Brothers & Co. in their said business, and to heat the building in which they carried it on; and that the plaintiffs were also under contract to furnish to the defendant, for the space of two years thereafter, by means of said engine and boiler, steam and steampower to heat certain portions of the building in which said engine room was situated, and to run certain machinery in certain other portions of said building; all of which was known to the defendant; yet the defendant, on said 10th day of December, 1880, broke and entered said engine room, and ejected and expelled the plaintiffs from the possession, occupation and enjoyment thereof, and from that time hitherto had continued to keep them so ejected and expelled, and also seized and took possession of said engine and boiler with the appurtenances, and divers goods and chattels of great value, and hindered and prevented the plaintiffs from using and operating said engine and boiler; and afterward, on the 16th day of December, 1880, the defendant threw off the belts from the pulleys which connected said engine and boiler with the machinery of the plaintiffs, and of said Meyer Brothers & Co., and thereby disconnected the steam and steam-power of said engine and boiler from the respective manufactories of the plaintiffs and of Meyer Brothers & Co., whereby the plaintiffs were deprived of the use of said engine room and brush factory, and of furnishing and supplying said Meyer Brothers & Co. with steam and steam-power, as under their contract they were bound to do, and were greatly injured in their credit and circumstances, and obliged to pay out, to wit, $5,000, in obtaining steam and steam-power to run said brush factory and the factory of Meyer Brothers & Co., and other wrongs to the plaintiffs then and there did, etc.
It appeared in evidence that on the 9th day of August, 1879, Edward Smackels, one of the plaintiffs, and the defendant, entered into a contract under their respective hands and seals, said contract being executed in duplicate, the instrument delivered by said Smackels to the defendant being as follows:
“Memorandum of an agreement made and entered into this 9th day of August, A. D. 1879, by and between Charles Munson, of Chicago, Ills., party of the first part, and Edward Smackels, of the same place, party of the second part, witnesseth: that for and in consideration of one dollar in hand paid, the receipt whereof is hereby acknowledged, the said Smackels hereby agrees that he will, within thirty days, erect, in such parts as may be designated by the owner, in the brick building known and designated as numbers 10, 12, 14 and 16 West Randolph street, in said Chicago, a steam-engine and a boiler of sufficient capacity to furnish steam-power as may be required by said Munson, as follows, to wit: Steam for power to run the machinery, including the elevator, now in said building, owned and operated by said Munson, and also to drive an additional stretching machine and glue pot, and such other and further steam as may be needed in the loft over the sales-room of said Munson, and also the steam for heating such parts of said building as may be used by said Munson when required.
Said Smackels shall furnish all the necessary connections between the steam-pipes and power of said Munson, as now constructed, and the new engine and boiler of said Smackels, and keep the steam-pipes in running order, ordinary wear and tear excepted.
In case of damage to the steam-pipes resulting from the negligence of said Smackels or his employes, he shall immediately repair the same at his expense. In case of any disagreement as to negligence, the question shall be decided by a steam-fitter mutually chosen. If, in extreme cold weather, said Smackels shall notify Munson of danger from frost, and Munson shall fail to authorize the keeping up steam at the joint proportional expense of said Smackels and said Munson, to prevent freezing, and any damage results to the pipes of said Munson, it shall be at his expense.
And the said Munson for his part agrees to pay to said Smackels for the above mentioned power and service, the sum of eleven hundred dollars per annum, payable in equal monthly installments, and will furnish, at his own expense, all necessary belting for running the machinery herein mentioned. It is further specially agreed, that if said Munson shall desire to run additional machinery, or at hours between 6 o'clock P. M. and 7 o'clock A. M., then said Smackels shall furnish steam for power at the proportional rate as for the service heretofore agreed upon, together with the expense of the engineer for such extra service.
It is further agreed the engineer of said Smackels shall, when steam is being used by said Munson, have access to the pipes of said Munson.
This contract to remain in force and effect until January 1st, 1883, and in case Smackels shall fail to keep and perform his part of the contract, then said Munson is fully authorized to take possession and control of said engine and boiler, and the part of the building where it is situated, and perform the service herein required free from molestation or control of said Smackels. And if said Munson shall fail or refuse to pay for such service ten days after the same shall be due and payable, then the said Smackels shall be entitled to shut off the supply of steam from said Munson. This contract to extend to and be binding on the heirs, executors, administrators and assigns of the respective parties hereto.
In testimony whereof, the parties hereto have set their hands and seals, the day and year above written.
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¦CHARLES MUNSON, ¦[SEAL.] ¦
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¦E. SMACKELS. ¦[SEAL.]”¦
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The duplicate of said contract delivered by the defendant to said Smackels was identical with the foregoing, except that the last clause of the first paragraph read as follows: “And also the steam for heating such parts of said building as are used by said Munson when required.”
The building in said contract mentioned was a three-story and basement building, and at the time the contract was made, and for some years prior thereto, the defendant occupied the second and third stories for a belt factory, and said Smackels at the same time occupied a portion of the first story for the manufacture of brushes, they supplying themselves with steam and steam-power from two separate engines and boilers, the defendant's engine and boiler being located in his workshop in the second story. Said second story was divided by a partition into two parts, the west part being used by the defendant as a workshop, and the east part for a sales-room and offices. The third story was also partitioned off in a similar manner, the west part being used at the time the contract was made for stretching and drying the leather used in the manufacture of belting, and the east part for cutting leather and for a storeroom.
In pursuance of the contract, Smackels put an engine and boiler into the basement of the building, and connected the same with the defendant's steam pipes and machinery, and proceeded to operate said engine and boiler, and to supply to the defendant therefrom, steam and steam-power as required by the contract. The defendant, on removing the engine and boiler which he had previously used, put into the room where the same had stood, some additional pipes, to make up for the loss of heat which had been supplied by radiation from the boiler. He also put steam-pipes into the east part of the third story, and converted that into a drying-room.
Smackels, shortly after making said contract, formed a copartnership with Charles W. Osborn in his entire business, including the engine and boiler, and the supplying of steam and steam-power therefrom to the defendant, and the business of said firm was carried on in the basement and first story of said building until some time in August, 1880, at which time Oscar C. Squyers was also taken in as partner. During this time the steam and steam-power required in their business of manufacturing brushes was derived from said engine and boiler. About the time Squyers became a partner, the firm moved their brush factory into a building on Canal street, about one hundred and twenty-five feet distant, and afterwards supplied themselves with steam for heating, and steam-power for running their machinery, by putting in connecting steam-pipes, and running a cable suspended in the air between the two buildings. They also, at the same time, entered into a further contract with Meyer Brothers & Co., a firm then engaged in the manufacture of curtains and cornices, and who occupied a...
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