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Stern, No. 943 N. Eighth St., Philadelphia, Pa.-Dear Sir: We herewith hand you first mortgage of F. D. and C. D. Hess, dated November 28, 1892, for the amount of $6,500.00, which, with accrued interest to date, amounts to $6,588.69, for which we received check from Mr. G. D. Glaser, of this city, on your account. We hereby guaranty that the trust deed securing the payment of principal and interest notes, which we hand you herewith, is a first lien upon the property covered in said deed, and that the title to said property is good in said F. D. and C. D. Hess, and agree to protect you from any loss which might arise from any defect in said title. We also guaranty you the completion, free from all mechanics' liens, of the four-story stone-front store and flat building which is now in process of completion upon said premises, and which is known as No. 6504 State street. We will also see to it that the taxes are paid on said property during the term of loan, and that the building will remain insured for an amount of no less than $6,500.00 during said time, which insurance policies we will hold as collateral security of the loan for your benefit. We also hold abstract of title, and agree, furthermore, to take this mortgage back at par and accrued interest, less one per cent. commission, provided you give us thirty days' notice to such effect, in writing. Very respectfully yours, Loeb & Gatzert." More than three years later, on August 10, 1896, a default then existing in the payment of the interest which fell due on May 28, 1896, Marcus Stern caused to be served upon appellants the following notice, to wit: "Atlantic City, N. J., 8/7/96. Mess. Loeb & Gatzert, Chicago, Ill.-Gentlemen: In accordance with the provision in that respect contained in your writing of February 20, 1893, wherein you agree to take back the note of $6,500.00, and trust deed of Frederick D. and Caroline D. Hess, at par and accrued interest, less one per cent. commission, I do hereby give notice that I desire to avail myself of the benefits of said provision, and do hereby notify you to take back said note and trust deed in accordance with the terms of said provision, thirty days after receipt of this notice by you; and I hereby authorize G. D. Glaser to receive the amount of said note and interest, less commission, for me. Truly yours, Marcus Stern." Appellant Gatzert testified that the following conversation took place at the time of the service of said notice by Glaser: "I told him that we would not buy it back, because at the time he bought this mortgage I told him I would make this agreement simply because his father-in-law was coming to the World's Fair in 1893, and he wanted to look at the property then, and if it didn't suit him I would then take the mortgage back,-we would take the mortgage back. For that reason there was an understanding in the nature of our agreement, and I told him we were not compelled to take back that mortgage. Mr. Glaser said: 'Well, I simply serve you with this

notice.' That is all he said. He said: 'I have nothing to say. I serve you with this notice."" Appellant Loeb testified as follows: "I remember the conversation with Glaser which Mr. Gatzert had that time. He came in and presented that letter from Mr. Stern, and said that he wanted his money. I was present, and we were very much surprised to see him come in, after owning the mortgage for three years. We told him that that wasn't the intent of that letter; that he told us at the time he bought the mortgage that he would not ask it of us, but that he was buying it for his father-in-law [Stern]; that his father-in-law would be here during the World's Fair, and he would take him out and show him the property; and we agreed to take it back if his father-in-law did not like it at the time. Instead of that, he keeps the mortgage for three years. We told him that we would not buy it back. He said that he would see about it, and went out of the office. He wanted his money. That is all he said." After the service of this notice, and the conversations above detailed, Glaser took the notes and trust deed to Mr. Strauss, an attorney, with instructions to proceed to foreclose it.

No demand was made upon Loeb & Gatzert on or after the expiration of the 30 days provided in the above notice. Subsequently, on September 23, 1896, Marcus Stern died, and appellee was appointed administratrix with the will annexed of his estate. On or about January 22, 1897, appellee, as such administratrix, filed a bill to foreclose the trust deed in question; the makers thereof being in default in the payment of interest. No notice was given to appellants of the filing of this bill; but appellant Gatzert, who was the trustee in the trust deed, was made a party defendant to the foreclosure proceeding. Appellant Loeb, of the firm of Loeb & Gatzert, was not made a party defendant. Appellant Gatzert appeared and filed his answer in the foreclosure suit on March 9, 1897, and afterwards a decree of sale was entered. The property was bid in on behalf of appellee, and on June 30, 1897, a deficiency decree was entered against the mortgagors and in favor of appellee for $1,089.67. Execution was duly issued on July 13, 1897, and was given to the sheriff to execute on the same day. On October 11, 1897, the sheriff returned the writ, "No property found;" having made demand upon both execution debtors, left with them a copy of the writ, and notified them to file a schedule. The sheriff returned, "No schedule filed." No part of the deficiency decree has been collected, Appellee commenced the present suit against the appellants, upon the contract already set out, to recover the amount of the deficiency decree, less 1 per cent. of the amount of the notes aforesaid. Appellants defended upon the following grounds: (1) That no time being mentioned in the original agreement wherein the security might be returned, such security.should have been return

ed within a reasonable time, and that three years after the making of the contract was not a reasonable time; (2) that no demand upon the appellants, or tender of the securities, was ever made on or after the expiration of the 30 days provided in the letter of August 7, 1896; (3) that the appellee waived her demand against the appellants, and elected to retain the securities and foreclose same in the ordinary way; (4) that if the appellee sought to hold the appellants to the terms of the letter of February 20, 1893, and demand and tender were properly made, yet the appellee pursued no remedy known to the law, as against said appellants, in her subsequent dealings with the securities; (5) that the letter of February 20, 1893, constituted a contract contrary to the provisions of the anti-option statute, and was therefore void. Upon the trial the court refused to permit the appellants' witnesses to testify as to the conversations had at the time of the writing of the letter dated February 20, 1893, between Mr. Gatzert and Mr. Glaser, which testimony was offered for the purpose of showing what the parties at the time considered a reasonable time within which to exercise the option given to Marcus Stern in which to return the securities.

Loeb & Adler, for appellants. Pence & Carpenter, for appellee.

PER CURIAM. In deciding this case, the appellate court delivered the following opinion:

"It is contended by the learned counsel for appellants that the agreement by which appellants undertook to buy back the mortgage notes in question at the election of Marcus Stern is an option contract, within the prohibition of section 130 of the Criminal Code. This contention cannot, we think, be sustained. The contract to buy back was contemporaneous with the purchase by Stern, and part of the same transaction. The decision of the supreme court in Wolf v. Bank, 178 Ill. 85, 52 N. E. 896, is in point and controlling. See, also, Ubben v. Binnian, 182 Ill. 508, 55 N. E. 552.

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"It is contended that, because no demand was made upon appellants to carry out the terms of the contract to repurchase after the expiration of the thirty days named in the nctes, therefore no recovery could be had. We regard this contention as untenable. on receiving the notice of Stern's election to have appellants perform their undertaking to repurchase, appellants expressly notified Stern's agent that they would not perform. This dispensed with need of any further demand. The law does not require the needless formality of demand in such case, it being apparent from the declaration of the parties that a demand would be unavailing. Wight v. Gardner, 66 Ill. 94; Lyman v. Gedney, 114 Ill. 388, 29 N. E. 282, 55 Am. Rep. 871; Gorham v. Farson, 119 Ill. 425, 10 N. E. 1.

"It is also contended that the rights of Stern under the contract were waived when his representative proceeded to a foreclosure of the trust deed by which the notes in question were secured.

"We are of opinion that the action of appellee in foreclosing the trust deed did not operate to estop her from claiming damages for breach of the contract to repurchase the notes. Assuming that contract to have been a valid and enforceable contract, and that appellants, upon their refusal to perform, became liable to appellee for breach of it, how was appellee to establish her measure of damages? If, upon the refusal of appellants to repurchase, she had at once brought suit for breach of the contract, her claim to any substantial damages would doubtless have been met by the answer of appellants that until she had enforced payment of the notes, or disposed of them by sale, it could not be known that she was damnified in any substantial manner, and hence that she could recover nominal damages only. It was the duty of appellee to take such action as might be reasonably calculated to reduce the damages resulting from appellants' breach of the contract. Appellants refused to take back the notes. If they were to be enforced at all by foreclosure of the trust deed, it was for appellee to take this means of realizing upon them. In so doing she was presumably getting all out of the notes which could be realized by subjecting the land security to their payment, and to that extent she was, by prompt action, presumably decreasing the damages for which appellants were liable. We are unable to perceive any substantial difference between such action and the ordinary sale upon the market of goods which a contracting party should, but will not, receive in compliance with his contract to buy. In either case it is simply the effort of the party damaged by breach of the contract to make the damages as slight as possible.

"We think that there is no merit in the contention of counsel that appellee should have sold the notes upon the market, in order to establish the measure of her damages. The ground upon which a vendor is required to sell upon the market the goods which the vendee refuses to receive in conformity with his contract, before seeking substantial damages from such vendee for breach of the contract to buy, is the duty of the vendor to realize all that he reasonably can upon the goods, and thus lessen, in so far as he reasonably can, the damages resulting from the breach of the contract. This duty would be as well met by the reasonable efforts of appellee to realize all that she could upon the notes by foreclosure, as by sale of the notes, unless it appeared that by the latter method a greater reduction of the damages could be accomplished. The underlying reason and purpose of the rule is the reduction of the loss. In Sutherland on Damages (page 155), the author says: 'Where damages can thus

be saved by timely preventive measures taken by the injured party, it is his duty to exert himself for that purpose; but he has a correlative right, in similar cases, to employ other means to attain the object of the contract broken, which was within the contemplation of the parties at the time of contracting, or to extricate himself from any predicament in which the wrong complained of may have placed him.' It does not appear from the evidence that at the time of the breach of the contract the notes could have been sold upon the market, or that by sale of them, or in any other manner, appellee could have further reduced the damages caused by the breach of appellants' contract. At the time of the appellants' refusal to repurchase, one of the interest notes was overdue and unpaid. It would seem very doubtful if such paper could have been sold upon the market, except at a sacrifice, and that it could have been sold at all is problematical. There is no evidence to warrant a conclusion that it could.

"Counsel also contend that parol evidence should have been admitted to show that the time within which the election of appellee to resell the notes to appellants should be exercised was limited, and that the right had expired by such limitation before appellee sought to enforce it. In this behalf it was sought to show that by oral agreement the time was in effect limited to the time of a proposed visit of Marcus Stern to the city of Chicago, he being a nonresident of that city. The written contract contains no limitation of time within which the option was to be acted upon. It is also urged that the time for the exercise of the option would be, in the absence of express provision in the written agreement, a reasonable time, and that, to establish what was a reasonable time, it was competent to show what the parties themselves regarded as a reasonable time by showing their conversations in relation thereto at the time of the making of the written agreement. It is enough to say of these contentions that, if it was proper to allow any showing in this behalf to be made, yet no competent evidence was presented by appellants by which any such facts could be established. The mere statements by appellants to Glaser as to what they told Glaser at the time of the service of the notice upon appellants, being after the written agreement was made, could not establish these facts. Nor were appellants competent witnesses by whom to prove what was said by them and by Glaser at the time of the making of the original contract in writing. This suit was brought by appellee as administratrix with the will annexed of Marcus Stern, now deceased. Therefore appellants were not competent to testify to the transactions accompanying the contract made in Stern's lifetime. The fact that Glaser testified at the trial did not make appellants competent witnesses, except as to matters concerning which Glaser testified in behalf of appellee. Glaser,

as a witness on behalf of appellee, did not testify at all to any of the transactions which occurred when the contract was made. Appellants could not, by questioning Glaser upon cross-examination as to such transactions, thus make themselves competent as witnesses to the transactions, for he was, in thus testifying upon his cross-examination, not a witness on 'behalf' of appellee. Upon his direct examination as a witness on behalf of appellee, he did not testify at all as to such matters. The statute which makes parties in interest as litigants competent to testify, removing the disability imposed by the common law, makes certain exceptions. The statute is in part as follows: Section 2 of chapter 51 of the Revised Statutes provides, in general, that no party to a civil suit shall be allowed to testify on his own behalf when any adverse party sues or defends as administrator, etc. Under this provision, several exceptions are specified. By paragraph 2 it is in effect provided that when in such action, etc., any agent of any deceased person shall, in behalf of any person suing or being sued as administrator, etc., testify to any conversation or transaction between such agent and the opposite party, etc., then such opposite party may testify concerning the same conversation or transaction. This latter provision is an exception to section 2 of the act, section 2 is an exception to the operation of section 1 of the act, and section 1 is a modification of the common law rule as to disability of parties in interest. The question now presented is as to whether the testimony of appellants proffered as to conversations with Glaser, agent of Marcus Stern, had when the written contract was made, falls within the last exception noted, and is therefore competent. We think that it does not, and that it was properly excluded by the learned trial court. When Glaser testified on behalf of appellee to transactions with appellants, it became competent for appellants to testify in relation to the same, but this did not open the door for testimony of appellants regarding other matters not testified to by Glaser. Nor did the questioning of Glaser upon cross-examination as to such other transactions, not touched upon in his testimony upon direct examination, make the testimony of appellants competent as to the same. For to that extent he was not a witness 'in behalf' of the appellee, within the provision of the statute. Donlevy v. Montgomery, 66 Ill. 227. The facts being established without any conflict, it was for the court to determine whether the right of Stern was exercised within a reasonable time. Railroad Co. v. Boyce, 73 Ill. 510, 24 Am. Rep. 268. We are of the opinion that the court did not err in holding that in this case Stern had the right to en. force the contract when he gave the notice of August 10, 1896.

"Evidence was proffered, and excluded by the court, as to the value of the mortgaged

premises which were sold upon foreclosure of the mortgage lien in question. We are of opinion that in this there was no error. In the absence of any fraud or irregularity in the foreclosure proceeding, the price at which the property was sold is the conclusive measure of its value as a security of the notes in question, and for the purposes of this suit. Franklin v. Greene, 2 Allen, 519.

"It can hardly be maintained that appellants had no notice of the foreclosure proceeding, for one of them was a party to the suit, and appellants were copartners.

"The question of appellants' rights under the deficiency decree in the event of payment by them of this judgment is not, upon this record, a matter for consideration. To say that they would be equitably entitled to the rights of appellee under the deficiency decree, would be no answer to appellee's claim to this judgment.

"We are of the opinion that a clear right to the recovery was established, that no valid defense was shown, that substantial justice has been done, and that there is no reversible error in the proceedings of the trial court. Therefore the judgment is affirmed."

We concur in the views expressed in the foregoing opinion, and in the conclusion there announced. Accordingly the judgment of the appellate court is affirmed. Judgment affirmed.

(199 Ill. 63)

SANITARY DIST. OF CHICAGO v. RAY. (Supreme Court of Illinois. Oct. 25, 1902.) STATUTES-SPECIAL LEGISLATION - - LEGISLATIVE DISCRETION -WATER COURSES - ALTERATION-DAMAGES TO CROPS-SANITARY DISTRICT CONDEMNATION PROCEEDINGS PRIOR RECOVERY - EXCESSIVE DAMAGES POSSIBLE INFERENCE FROM EVIDENCE-EFFECT.

1. The provision of Const. art. 4, § 22, that "in all other cases," besides those enumerated, "where a general law can be made applicable no special law can be enacted." is addressed to the legislative branch of the government alone; and the court cannot review the question whether Act May 29, 1889 (Hurd's Rev. St. 1899, p. 327) § 19, allowing the recovery of attorney's fees against sanitary districts in connection with judgment for injuries from overflows, etc., is void, as violating this provision.

2. Plaintiff sued a sanitary district for damages to his crops from an overflow caused by the negligent construction of a channel diverting a river. When land for the channel was condemned, plaintiff had joined with other joint owners of a tract intersected by the channel, and which included the portion afterwards sowed by him, in a cross-petition alleging that the tract constituted an entire dairy farm, for injury to which and for loss of shipping facilities damages were asked, but it did not appear to have been recovered. It did not appear but that, had the channel been constructed in accordance with specifications then exhibited, no overflow would have resulted; nor did it appear whether it was so built. Held, that the judgment in the condemnation proceedings was not a bar to plaintiff's recov

cry.

3. A tenant is not barred from recovering 13. See Judgment, vol. 30, Cent. Dig. § 1120.

damages to his crops from an overflow, caused by the alteration of a river channel, by a recovery against the same defendant for damages to the crops of a preceding year, resulting from the same cause.

4. A possible inference from the evidence that defendant has been held liable for damages for overflow in excess of those attributable to its act in altering an existing river channel will not warrant a reversal of the judgment rendered.

Appeal from circuit court, Will county; John Small, Judge.

Action by James Ray against the Sanitary District of Chicago. From a judgment for plaintiff, defendant appeals. Affirmed.

James Todd, P. C. Haley, and W. A. Bowles, for appellant. Reynolds & Purkhiser, for appellee.

CARTER, J. The appellee obtained a judg. ment in the circuit court of Will county against the appellant for loss and injury to his crops on 40 acres of land which he possessed as tenant for the years 1897, 1898, and 1899. The action and recovery were based on the alleged negligence of appellant in constructing what is caled the "river diversion" in connection with its drainage canal, whereby the waters of the Des Plaines river were diverted from their original channel, and caused to flow through a new channel of insufficient depth and width to carry off such waters, so that plaintiff's adjoining lands overflowed, and his crops were damaged. The pleas were "not guilty," "freehold in the defendant," and "former recovery." After the verdict of the jury, which assessed plaintiff's damages at $180, the court heard evidence as to the amount of attorney fees that should be allowed to the plaintiff and taxed as costs in the case, and allowed and taxed as such costs $200. Defendant took its appeal to this court on the ground, as it alleges, that the statute purporting to authorize the allowance of such attorney fees is unconstitutional.

The provision is found in section 19 of the "act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois rivers," approved May 29, 1889 (Hurd's Rev. St. 1899, p. 327). The statute provides that such districts shall be liable for all damages to real estate which shall be overflowed or otherwise damaged by the construction, enlargement, or use of any channel, etc., under the provisions of the act; and that, in case judgment is rendered against the district for damages, the plaintiff shall also recover his reasonable attorney's fees, to be taxed as costs of suit, provided the 60-days notice in writing prescribed by the statute is given before suit is brought. The proper notice was given, but counsel say that the statute is special legislation, and is in conflict with that clause of section 22 of article 4 of the constitution, which, after inhibiting special legislation in certain enumerated cases, provides that "in all other cases where a general law

can be made applicable no special law can be enacted." Counsel do not claim that any other constitutional provision is violated, but simply say that it is clear that a general law as to attorney fees might have been passed. Counsel overlooked the fact that this court had already decided that this clause of the constitution is addressed to the general assembly alone, and that "when that body has concluded a special law is necessary, except in the cases expressly prohibited, its conclusion is not the subject of judicial review." Landowners v. People, 113 Ill. 296; People v. Thompson, 155 Ill. 451, 40 N. E. 307. In Sanitary Dist. v. Bernstein, 175 Ill. 215, 51 N. E. 720, we held that the eminent domain act of 1897, allowing attorney fees to the defendant as costs upon the dismissal of the petition by the petitioner, is not unconstitutional, as being special legislation, and that trial by jury was not required to ascertain the amount to be taxed as costs. See, aiso, Vogel v. Pekoc, 157 Ill. 339, 42 N. E. 386, 30 L. R. A. 491, and Shade Co. v. Veight, 161 III. 337, 43 N. E. 1075.

As the decision of this question fixes our jurisdiction on this appeal, other questions pressed more earnestly remain for decision. One is that plaintiff was barred by a former adjudication. In proceedings begun by the sanitary district to condemn a strip of land on which to construct the channel through the tract of which the 40 acres in question then formed a part, appellee, his mother, and others, who then owned the entire tract, filed a cross-petition claiming damages to lands not taken, including said 40 acres, on the ground, as stated in the cross-petition, that the entire tract, consisting of 250 acres, was occupied and used as one farm, and was valuable as a stock and dairy farm, and for other farming purposes, and that 30 acres of said farm was underlaid with limestone of great value, and which could be quarried at small expense, but by the excavation of the proposed channel or waterway all shipping facilities by railroad or canal would be cut off, and consequently the land not taken would be greatly damaged, etc. The judgment does not show that any damages were allowed for land not taken, and it does not appear from anything in the record that any damages were claimed for any supposed injury to the land in question by subjecting it to overflow. It may be, so far as the record shows, that, had the work been done as proposed in the condemnation proceedings, no damages by overflow would have resulted. Whether it was done in accordance with any plans and specifications exhibited does not appear; therefore it cannot be said that the question of such damages was, or ought to have been, litigated in that proceeding. This action was based on negligence in construction and maintenance, whereby the land was caused to overfiow,-a cause of action which the landowner could not anticipate, and could not recover for in the condemnation proceedings.

It arose subsequently to the condemnation. We are unable to agree with appellant that appellee is barred by the judgment in the condemnation suit. Railway Co. v. Wachter, 123 Ill. 440, 15 N. E. 279, 5 Am. St. Rep. 532.

It is insisted next that the plaintiff is barred by a former recovery in a suit for damages to his crops prior to the year 1897. The judgment in that case was affirmed by the appellate court for the Second district in Sanitary Dist. v. Ray, 85 Ill. App. 115. The same contention appears to have been made in that case as in this,-that the judgment in the condemnation suit was a bar to any subsequent recovery,-but it was not allowed to prevail. The plaintiff was only a tenant, and did not sue for any permanent injury to the land, but only for the loss of his crops, as such losses occurred by reason of the alleged wrongful obstruction to the waters of the river in times of freshets. He could not have recovered for any permanent injury to the land. We see no reason why he could not sue for and recover for each loss as it occurred through appellant's negligence or wrongful act. The case is unlike Railroad Co. v. Loeb, 118 Ill. 203, 8 N. E. 460, 59 Am. Rep. 341, cited by appellant, where it was held that for a permanent injury to property because of the construction of a railroad in close proximity to it the right to recover all damages, past, present, and future, is vested in the person who at the time owns the property, and that a subsequent purchaser cannot recover; but it falls within that class of cases where successive recoveries may be had for successive injuries caused by negligence, as in Railway Co. v. Wachter, 123 Ill. 440, 15 N. E. 279, 5 Am. St. Rep. 532; Railroad Co. v. Schaffer, 124 Ill. 112, 16 N. E. 239; Brewing Co. v. Compton, 142 Ill. 511, 32 N. E. 693, 18 L. R. A. 390, 34 Am. St. Rep. 92; and Railway Co. v. Thillman, 143 III. 127, 32 N. E. 529, 36 Am. St. Rep. 359.

The instructions were in accordance with the views we have expressed, and we find no fault with them.

The evidence tended to prove that the defendant excavated the new channel to a greater depth than the old, and threw up embankments on the sides of the channel, but did not make the new channel of sufficient capacity to carry off the water of the river in time of freshets, and by the diversion of such waters caused the land in question to overflow. The land was bottom land, near the river, and was subject to overflow before the channel was changed; but there was evidence tending to prove that such overflow, and consequent injury to crops, etc., were increased by the alleged negligent construction of the new channel; and while it seems, from the record, that it would not be a wholly unjustifiable inference to draw that the defendant has been charged with losses which would have occurred had the channel remained as it was in a state of nature, still

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