The party-wall contract provided that hydraulic mortar should be used in the construction of the party walls, while the contract for their erection specified lime mortar, instead of hydraulic cement mortar. Inasmuch as appellants examined the specifications and prepared and submitted a bid before the contract was let, it is to be presumed that they knew that this mistake was made. Although presumed to know it, they never at any time made any complaint or objection while the construction of the walls was going on. The architect, however, testifies that, when his attention was called to this mistake in the specifications, hydraulic cement with a little lime was in fact used. There was other testimony, tending to show that the walls were laid with cement mortar; and so it was a question of fact for the jury whether the walls in question were laid in accordance with the terms of the contract sued on, or whether any deviation from those terms was waived by the appellants.

The facts of this case, as thus detailed, bring it within the rule announced by this court in Huck v. Flentye, 80 Ill. 258, where it was said: "It appears from the evidence that appellant and appellee were equally ready and anxious to re-build. The wall was as much a necessity for appellee as it was for appellant. It was built at the same time appellee's building was, and appellee has had the same benefit of it that appellant has had. That appellee was ignorant of its being built is not pretended. The same architect made the plans for both buildings. Appellee was often present as the work progressed, and, at his request, work on the wall was delayed, to give him time to put in his joists. Appellee says, that he never agreed to build any part of the wall or pay for its being built, and much stress is laid on this. Suppose that he did not. Appellant never agreed to build his part for him, and release him from liability. He knew the wall had to be built to enable him to complete his building, and that it had to be paid for. He did not forbid its

construction or give notice that he would not be liable, and he had agreed that they would build together. The wall was expressly built for the use of both buildings, and, as we understand the cases cited by appellant's counsel, herein it differs from those. Appellant did not here first erect his building, constructing one-half of this wall on appellee's property without any agreement in regard thereto, and appellee afterwards erected his building, but both buildings were erected, substantially, at the same time." And in the Huck case it was said by the court, quoting from Greenleaf on Evidence, that "it is not necessary to the plaintiff to prove an express assent of the defendant, in order to enable the jury to find a previous request; they may infer it from his knowledge of the plaintiff's act, and his silent acquiescence."

We concur in the following views expressed by the Appellate Court in their opinion: "While the party-wall contract provided that hydraulic mortar should be used in the construction of the party walls, and the contract for their erection specified lime mortar, this fact must have been known to J. W. Evans when he prepared and submitted the bid of appellants' corporation. Inasmuch as he made no objection at the time, we think that appellants are estopped from doing so after having had actual notice through J. W. Evans of the fact, and permitting the lime mortar to be used. If he had, when the specifications were published, or at any time before the erection of the walls was begun, called the attention of appellee to the fact that the specifications were not in accordance with the party-wall agreement, appellee might readily have caused the error to be rectified, and he should, we think, have been afforded an opportunity to do so. The law imposes upon a party subjected to injury from a breach of contract, the active duty of making reasonable exertions to render the injury as light as possible. If the injured party through negligence or

1

willfulness allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him.' (Hartford Deposit Co. v. Calkins, 186 Ill. 104). To hold that appellants may evade payment of their proportion of the cost of the party walls solely because of an apparently inadvertent deviation from the contract, of which they, through their representative, were made aware in ample time to remedy the same, would be, in our opinion, contrary to the law and abhorrent to reason and justice."

Under the terms of the party-wall agreement, it was evidently the intention of the parties that the one, first ready to proceed with the erection of his building, should at the same time erect the party walls, and, when they were erected, the other party should pay his ratable proportion of the expense, as specified in the contract, on demand. It is not stated that such proportion should be paid to the contractor, and, therefore, the contention of the appellants that, if they were bound to pay, they were only obliged to pay to the contractor, and not to appellee, is without force. No contract relation existed between appellants and the contractor, Snyder. They were not indebted to Snyder in any manner; nor can it be said that, by paying Snyder for the construction of the walls, appellee voluntarily made, or attempted to make, himself the creditor of appellants without their consent. Even if the contract contains no promise by appellants to pay appellee any portion of the cost of the construction, it may be said that it contains no promise that either party should pay the contractor. The fact, that the wall was built by appellee under the contract in pursuance of the desire of appellants to have it built, and of their willingness to pay a certain proportion of the cost, together with the fact that appellants and appellee erected their buildings at the same time, and appellants accepted and used the walls from day to day as the work progressed, raises an implied promise on the 'part of appellants to pay their proportion of the cost.

The rulings of the court below, and the action of the court in giving, refusing and modifying instructions, were all in accordance with the views herein expressed. We are, therefore, of opinion that no error was committed, which would justify us in reversing the judgment. The judgment of the Appellate Court is affirmed. Judgment affirmed.

THE CHICAGO TITLE And Trust COMPANY

บ.

RICHARD YATES, Governor, et al.

Opinion filed June 23, 1904-Rehearing denied October 11, 1904.

1. RECEIVERS-receiver is not entitled to retain interest on bonds. Interest collected by a receiver corporation upon bonds while the same were in its possession cannot be retained for the benefit of creditors after a decree ordering the surrender of the bonds to the proper owners, where the original possession of the bonds by the receiver was without right and as an intermeddler.

2. PLEADING when refusal to permit filing of supplemental answer is proper. Refusal to permit a supplemental or additional answer to be filed after the conclusion of the court upon the exceptions to the original answer are announced is proper, where the supplemental answer alleges no matter not stated in the original answer which could prevail as a defense to the bill.

3. RES JUDICATA—when question of interest is not res judicata. Failure of a decree directing a receiver to turn over possession of certain bonds to the proper owners to mention interest on the bonds is not an adjudication that the receiver is entitled to retain the interest collected on the bonds while in its possession, where its possession of the bonds was unlawful and the collection of interest was voluntary and incident to the possession.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding.

HENRY W. MAGEE, and MAX PAM, for plaintiff in

error.

H. J. HAMLIN, Attorney General, (GEORGE B. GILLESPIE, of counsel,) for defendants in error.

Mr. CHIEF JUSTICE RICKS delivered the opinion of the court:

This writ of error is sued out to the circuit court of Cook county to review an order of that court directing the payment by plaintiff in error of $6608.28, alleged interest collected by plaintiff in error on bonds in its custody as receiver, belonging to the State of Illinois.

The Globe Savings Bank of Chicago was organized under the banking laws of the State of Illinois and conducted a general banking business and also had a safety deposit department. Charles W. Spaulding was president of the bank and also treasurer of the University of Illinois. Through speculations and peculations of said Spaulding said bank became insolvent and said Spaulding became a defaulter as treasurer of said university. On April 5, 1897, Charles E. Churchill filed a bill in said circuit court in which it was alleged that said bank was insolvent and praying for the appointment of a receiver and to dissolve said bank. Plaintiff in error was appointed receiver of the bank. After its appointment it was made to appear that Charles W. Spaulding had in the safety deposit department of the said bank private boxes to which he alone had access and in which it was believed were securities and assets belonging to the bank, and on the 10th of April, 1897, the court directed that the receiver open these boxes, and among them was box 556, which was opened and found to contain sixteen bonds, of $500 each, of the town of Buckley; seventeen bonds, of $1000 each, of the Marshalltown Light, Power and Railway Company; thirty-nine bonds, of $1000 each, of the Pocatello Power and Irrigation Company, together with a large amount of other securities. A list of the contents of this box was made and presented to the court, and the University of Illinois intervened and by its petition claimed that the above bonds, specifically mentioned, were assigned to it by Charles W. Spaulding