Stephani v. the Catholic Bishop of Chicago.

• Citation: 2 Bradw. 249,2 Ill.App. 249
• Parties: JOHN STEPHANI ET AL.v.THE CATHOLIC BISHOP OF CHICAGO.
• Decision Date: 31 October 1878
• Court: United States Appellate Court of Illinois

2 Ill.App. 249

2 Bradw. 249

JOHN STEPHANI ET AL.

v.THE CATHOLIC BISHOP OF CHICAGO.

Appellate Court of Illinois, First District.

October Term, 1878.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Cook county; the Hon. W. K. MCALLISTER, Judge, presiding.

Mr. A. W. GREEN, for plaintiffs in error; upon the rule of construction of contracts, cited Chitty on Contracts, 104; French v. Brewer, 3 Wall. Jr. 346; Hawes v. Smith, 12 Me. 429; 2 Kent's Com. 557; Potter v. O. & L. Mut. Ins. Co. 5 Hill, 147; Wells v. Carpenter, 65 Ill. 447; Story on Contracts, § 805; Reynolds v. Hall, 1 Scam. 35; Jesson v. Wright, 2 Bligh, 1; Winter v. Perrott, 6 M. & G. 357; Ellmaker v. Ellmaker, 4 Watts, 89; Canal Trustees v. City of Chicago, 12 Ill. 403.

Where only one meaning can be attached to the terms used in a contract, that meaning must be enforced, and extrinsic evidence is not admissible to vary its terms; but where the words are ambiguous, parol evidence may be admitted to show the sense in which the parties used them: Stoops v. Smith, 100 Mass. 63; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326; Peisch v. Dixon, 1 Mason, 9; Doyle v. Teas, 4 Scam. 202; Goldshede v. Swan, 1 Exch. 154; Colburn v. Dawson, 70 E. C. L. 760.

The acts of the parties may be resorted to as a means of interpretation: St. L. Gas Light Co. v. City of St. Louis, 46 Mo. 121; Knight v. N. E. Worsted Co. 2 Cush. 271; Reading v. Gray, 37 N. Y. 78; Cavazos v. Trevino, 6 Wall. 773; Farrar v. Rowley, 2 La. An. 475; Citizens F. Ins. Co. v. Doll, 35 Md. 89; Chicago v. Sheldon, 9 Wall. 50; Chapman v. Bluck, 33 E. C. L. 662; Parmalee v. Hambleton, 24 Ill. 605; Leavers v. Cleary, 75 Ill. 349; W. U. R. R. Co. v. Smith, 75 Ill. 496.

Where a word used in a contract is susceptible of two meanings, statements of the parties during the negotiation are admissible to ascertain in what sense the parties themselves used them: Hart v. Hamnett, 18 Vt. 127; Barnett v. Allen, 10 Ohio, 426; Cole v. Wendell, 8 Johns. 116; Gray v. Harper, 1 Story, 574; Sargent v. Adams, 3 Gray, 72; Stoops v. Smith, 100 Mass. 66; Birch v. DePeyster, 4 Camp. 385; Mumford v. Getling, 97 E. C. L. 303; Webster v. Enfield, 5 Gilm. 298; Barrett v Stow, 15 Ill. 423.

Evidence of the sense in which the words are generally used by persons in the same business, is admissible for the same purpose: The Schooner Reeside, 2 Sumn. 567; Cohtan v. Retberg, 3 Esp. 121.

Generally, as to the meaning and use of the words assessment and taxes: Constitution 1848, Art. IX; Rev. Law 1845, Scates' Comp. 987, 1006; Private Laws 1851, 132; Private Laws 1857, 892; Hill v. Figley, 23 Ill. 418; City of Peoria v. Kidder, 26 Ill. 352; Hines v. City of Leavenworth, 3 Kan. 186.

Mr. T. A. MORAN, for defendant in error; that the construction of the contract is not open to evidence, cited 2 Parsons on Contracts, 551.

That the word assessment is used in the sense of tax, and so understood: Scates' Comp. 1080; Rev. Stat. 1874, 899; Hill v. Figley, 23 Ill. 418; State of Illinois v. Ill. Cent. R. R. Co. 27 Ill. 64; Burrill's Law Dic. Title ““Assessment;” Webster's Dic; Mayor of Baltimore v. Greenmount Cemetery, 7 Md. 517; People v. Brooklyn, 4 Const. 429; Rev. Stat. 1874, Chap. 113, § 11; Curtis v. Pierce, 115 Mass. 187; Simonds v. Turner, 120 Mass. 328.

The words of a covenant must be taken most strongly against the covenantor: 2 Parsons on Contracts, 508; 1 Chitty on Contracts, 136; Beckwith v. Howard, 6 R. I. 1; Biddle v. Van Deventer, 26 Mo. 503; Browning v. Wright, 2 Bos. &. Pul. 22; Massie v. Belford, 68 Ill. 290; Walker v. Kimball, 22 Ill. 537; McCarty v. Howell, 24 Ill. 341.

Acts of the parties are not admissible to aid the interpretation of a contract: Clifford v. Walmesley, 5 T. Rep. 261; Boynham v. Guy's Hospital, 3 Ves. 298; Moore v. Foley, 6 Ves. 238; Iggulden v. May, 9 Ves. 333; Alderman v. Neate, 4 Mees. & Wels. 704; Doe v. Powell, 8 Scott's N. R. 687; Hepburn v. Snyder et al. 3 Pa. St. 72; Fry v. Hawley, 4 Fla. 281; Bellamy v. Bellamy's Adm'r, 6 Fla. 123; United Soc. v. Eagle Bank, 7 Conn. 469; Ogden et al. v. Kirby, 79 Ill. 555; Shore v. Wilson, 5 Scott's N. R. 958.

Where the language in a contract is ambiguous, courts will endeavor to ascertain the intention of the parties, but where it is unequivocal, although the parties may have failed to express their real intentions, there is no room for construction, and the legal effect of the agreement must be enforced: Benjamin v. McConnell, 5 Gilm. 536; Smith v. Brown, 5 Gilm. 309; Crabtree v. Hagenbaugh, 25 Ill. 233; Walker et al. v. Tucker et al. 70 Ill. 527; Canterbury v. Miller, 76 Ill. 355; Corbett v. Underwood, 83 Ill. 324; Mann v. Swyser et al. 76 Ill. 365; Hypes v. Griffin, 11 Chicago Legal News, 33; Marc v. Kupfer, 34 Ill. 286; Osgood v. McConnell, 37 Ill. 75; Bissell v. Ryan, 23 Ill. 566; Packard v. Van Schoick, 58 Ill. 79.

PLEASANTS, J.

In each of two leases of several lots in the city of Chicago, bearing date respectively July 1, 1858, and January 1, 1859, between the defendant in error of the first part and the plaintiffs in error of the second part, was contained the following covenant: “And the said party of the second part, their heirs, executors, administrators, and assigns, agree further to pay (additional to the rents above specified), all water rents and all assessments whatsoever levied thereon or charged on said premises for and during the time for which the lease is granted;” and the single question presented by this record is whether the “assessments” so mentioned included State, county and city taxes for general purposes.

Whatever other meanings may be attached to the term in various connections the parties here have assumed in their agreement that at the time of the execution of these leases it was the proper designation of some or all kinds of public charges upon real estate in the city of Chicago, and employed it accordingly. The plaintiffs in error claim that it applied only to such as were imposed to meet the cost of local and compensating improvements, since more commonly known as special assessments, while the defendant in error insists that it included as well the general taxes above mentioned.

It is to be observed that in this inquiry there is nothing in the context to guide us. From the use of the term alone, as otherwise shown, or as the subject of common knowledge or of judicial notice, we are to arrive at the meaning which of its own unaided force it then conveyed.

In support of the claim for the broader signification the following are adduced as instances of such use:

Section 2 of chapter V. of the city charter of 1851 confers power to levy and collect “taxes” on real and personal estate, when required, among other purposes, “for the erection of a city hall or bridewell; Provided, the estimated cost … may be apportioned by the common council, and collected by a series of annual assessments.” Manifestly the term was not here used to signify the taxes, but the proceedings for raising them. The antecedent clause authorized the apportionment of the cost into installments, and this provided for its collection--not in such installments, for that was already implied, but “ by (means of) a series of annual” proceedings here called “assessments.” Laws of Illinois, 2d Session of '49 and '51, p. 149.

Section 6, of the same chapter, provides that, if at the close of any municipal year it shall be found that there has been expended in any division of the city, for strictly local purposes, more than its relative proportion, “it shall be the duty of the common council, the ensuing year, to increase the general taxes in such division by the amount of such excess,” and at the same time “to abate such excess from the assessment in the other divisions.” In this instance--used in the singular number--it would seem to indicate a statement or representation in some form, of the amount of the taxes in the divisions referred to. But whatever is meant, since it was something that was to be abated, or abated from, before any taxes were to be collected, it could not have been those taxes.

Section 49, of the General Revenue Act of 1845, declares that “the assessment shall be a lien on the personal property of all persons owing taxes from and after the time the assessment books are received by the collector for the State and county taxes due thereon, and no sale,” etc. Scates' Statutes, p. 1,080. A lien is a tie that binds property to a debt or claim for its satisfaction. It is always either a statute, a writ, a record, an instrument or a proceeding, and so necessarily distinct from the debt. The assessment, here declared to be a lien for the tax, for that reason cannot be the tax. It is the proceeding by which the tax is imposed; and so the Supreme Court appear to consider it, although that question was only incidentally referred to, in Hill v. Figley, 23 Ill. 420.

Section 254 of the Revenue Act of 1874 also, declares that “the taxes assessed upon personal property shall be a lien upon the personal property of the person assessed, from and after the time the tax book is received by the collector.” R. S. 1874, p. 899. This provision is substantially the same as the one last above quoted; and it is argued that the substitution in this of the word “taxes” for the word “assessment” in that, shows that they bear the same sense. But it will be noticed that it is not the “taxes” which are here declared to be a lien upon the property, but the “taxes assessed,” etc., and these are the terms substituted for “assessment.” A tax assessed is a sum found and declared to be due for a public purpose by some prescribed proceeding, and it is this proceeding which is here intended as what constitutes or creates the lien; just as when we say, somewhat loosely, that a mortgage debt or a judgment debt is a lien, we mean, and are understood to mean, that the mortgage or judgment constitutes or creates the lien for the debt. That the proceeding, and not the money...