Sternberg v. WAKONDA DRAINAGE AND LEVEE DIST.

• Citation: 33 F.2d 451
• Decision Date: 18 July 1929
• Docket Number: No. 4147.,4147.
• Parties: STERNBERG v. WAKONDA DRAINAGE AND LEVEE DIST. IN FULTON COUNTY, ILLINOIS, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

33 F.2d 451 (1929)

STERNBERG v. WAKONDA DRAINAGE AND LEVEE DIST. IN FULTON COUNTY, ILLINOIS, et al.

No. 4147.

Circuit Court of Appeals, Seventh Circuit.

June 3, 1929.

Rehearing Denied July 18, 1929.

S. M. Wallace, of St. Louis, Mo. (Miller, Elliott & Westervelt, of Peoria, Ill., of counsel), for appellant.

Glenn Ratcliff, of Lewistown, Ill., and C. W. Heyl, of Peoria, Ill., for appellees.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

On motion, this case was dismissed as to the drainage district, and demurrers to the declaration by the other defendants were sustained.

The substance of the declaration is that, after the drainage district let a contract to do the work of the district to defendant, the Edward Gillen Dock, Dredge & Construction Company, called Gillen, appellant made with Gillen a subcontract, under which appellant was to furnish all of the necessary machinery and appliances and was to begin work May 1, 1923; that defendants Whitnah, Betts, and one Routson (deceased, and whose executors are sued) were, and the two former are now, the commissioners of the drainage district; that the commissioners repeatedly urged appellant to prepare for and begin the work that they represented was ready to be performed; that appellant, at large expense, promptly made the necessary preparations and informed the commissioners of his readiness to begin the work, but that they prevented him from doing so; that the commissioners failed and neglected to obtain permits to do the work, as the law required them to do, from the United States and the state of Illinois; that appellant remained unadvised and ignorant of that neglect and assumed, and was caused to believe and be assured, that nothing prevented performance of the work; that in a proceeding under the laws of Illinois, to which appellant was a party, it was adjudged that the contract with Gillen was void, and that, as to the drainage district, with whom appellant had no contract, his contract was also void; that neither contract created any indebtedness. Duck Island Club v. Gillen Co., 330 Ill. 121, 161 N. E. 300. It is then alleged that the commissioners wrongfully failed and neglected to advise appellant of their failure to secure the permits, as it was their duty so to do; that appellant did not know of such failure. The damages claimed are the costs of a dredge, constructed to do the work under the contract, the maintenance thereof, the reasonable rental therefor, and the profit appellant alleges he would have made under the contract.

The drainage district was a municipal corporation for a limited purpose. People v. Spring Lake Drainage Dist., 253 Ill. 479, 494, 97 N. E. 1042. We are of opinion that section 79, c. 32, 2 Callaghan's Ill. Stats. Ann. p. 1951, which...