Sections 60 and 61 of the Drainage act provide for a re-assessment where an assessment is invalid as to one or more tracts of land and where defects or omissions may be cured. They point out the method to be pursued in this case after the district shall have acquired any right of way not released by Hawley and had the compensation and the damages, if any, for such lands determined in favor of those who owned the land at the time they were taken by the district. It was authorized to take private property for public use for its ditches, and as the improvement was permanent, the right to compensation and damages accrued to the owners at the time the ditches were dug. It does not appear from the record when the conveyances were made by Hawley with reference to the time when the land was actually taken and the ditches dug, but so far as the right of way was released by him no compensation could be allowed to any of the plaintiffs in error. The judgment is reversed and the cause remanded. Reversed and remanded. GEORGE H. SCHNEIDER, Trustee, Appellee, vs. Louis A. MCDONALD et al.-(JACOB GLOS et al. Appellants.) Opinion filed June 21, 1912. FREEHOLD when a freehold is not involved on appeal from a partition decree. A freehold is not involved, on appeal from a partition decree, where the only question raised is whether the complainant is entitled to a lien upon the interest of the defendants for certain taxes paid by him. APPEAL from the Superior Court of Cook county; the Hon. RICHARD E. BURKE, Judge, presiding. JOHN R. O'CONNOR, for appellants. A. W. MARTIN, and EDWARD H. S. MARTIN, for appellee. Per CURIAM: This was a bill in chancery filed by the appellee against Louis A. McDonald and others, in the superior court of Cook county, for the partition of lots 18, 19, 20 and 21 of Bennett's subdivision of lot 7, in block 5, in Washington Heights, a subdivision of section 18, township 37, north, range 14, east of the third principal meridian, Cook county, Illinois, and for other relief. An answer and replication were filed, and a decree was entered finding the complainant was the owner of the undivided. one-half of said premises; that Jacob Glos was the owner of the undivided one-third and Emma J. Glos was the owner of the undivided one-sixth of said premises; that the complainant had paid taxes upon the undivided interests of Jacob Glos and Emma J. Glos in said premises to the amount of $359.99, and that he was entitled to a lien on the undivided one-third of said premises owned by Jacob Glos and on the undivided one-sixth of said premises. owned by Emma J. Glos for said amount, with interest thereon at five per cent per annum from July 26, 1911, to reimburse him for the amount so paid out for taxes upon the undivided one-half of said premises, and that he was entitled to a decree of partition. Jacob Glos and Emma J. Glos have prosecuted an appeal to this court, and have assigned as error the action of the trial court in establishing a lien upon their interest in said real estate in favor of the complainant for the amount of taxes so found to have been paid by him upon said premises. The question whether the complainant was entitled to a lien upon the undivided one-half of said premises owned by Jacob and Emma J. Glos for the amount of taxes so paid out by him and to be reimbursed therefor by Jacob and Emma J. Glos is the only question discussed in the briefs filed in this court. The partition suit involved a freehold, but the question whether the complainant was entitled to be reimbursed for taxes paid out by him upon the property partitioned, as against the interests of Jacob and Emma J. Glos, and to have the amount so paid out by him established as a lien upon the interests of Jacob and Emma J. Glos in said premises, does not involve a freehold. No freehold being involved in this appeal the same should have been prosecuted to the Appellate Court. The clerk of this court will transmit to the clerk of the Appellate Court for the First District all the files in this case, together with the order transferring the cause. Cause transferred. ROSWELL W. WELD, Defendant in Error, vs. THE FIRST NATIONAL BANK OF ENGLEWOOD, Plaintiff in Error. Opinion filed June 21, 1912. 1. BUILDING CONTRACTS-when architect's certificate is a condition precedent to right to demand payment. Where a building contract provides that the final certificate of the architect is to be conclusive evidence of the performance of the contract, such certificate, showing the amount due, is a condition precedent to the right to demand payment and can only be attacked for fraud or mistake. 2. SAME-construction of a written contract and of architect's certificate is for the court. Where a contractor, in a suit for the balance due under a building contract, offers in evidence the written contract and the final certificate of the architect, the construction of such contract and certificate is a question for the court. 3. SAME when architect has authority to decide question of deduction for delay in work. Where a building contract provides that the contractor shall pay a certain sum per day as liquidated damages in case he fails to complete the work on time, but that delay caused by specified conditions shall be added to the time specified for completing the work and that' the architect shall determine how much extension the contractor is entitled to, the architect has authority to determine what deduction is chargeable to the contractor for delay. 4. SAME when architect's certificate must be considered as a whole. Where a building contract leaves to the decision of the architect the questions of the amount due and the amount to be deducted for the contractor's delay in completing the work the architect's final certificate must be considered as a whole, and it is error to consider only the statement of the amount due and ignore the statement that the contractor was a certain number of days behind time in completing the work, for which the contract provided a specified penalty per day. 5. PRACTICE when propositions of law are unnecessary. In a trial by the court without a jury, where the only questions are questions of law arising on the construction of written instruments, the court's decision of those questions appears from its findings in the record and is subject to review by an appellate tribunal though the defeated party presented no propositions of law setting forth. the construction of the instruments according to his theory. WRIT OF ERROR to the Branch "B" Appellate Court for the First District;-heard in that court on appeal from the Municipal Court of Chicago; the Hon. HOSEA W. Wells, Judge, presiding. WILLIAM A. DOYLE, (JOSEPH J. THOMPSON, of counsel,) for plaintiff in error. MCEWEN, WEISSENBACH, SHRIMSKI & MELOAN, (ISRAEL SHRIMSKI, of counsel,) for defendant in error. Mr. JUSTICE CARTWRIGHT delivered the opinion of the court: A branch of the Appellate Court for the First District affirmed a judgment recovered by defendant in error on a trial by the court without a jury in the municipal court of Chicago against plaintiff in error for $1322.52, the balance claimed under a contract by which the defendant in error was to furnish the material and perform the granite work for a bank building for plaintiff in error. A petition for a writ of certiorari was presented to us and granted, and the record is in this court for review. The plaintiff offered in evidence the written contract upon which the suit was brought, which provided that the work should be done for a total contract price of $5500, under the direction of the architect, upon whose certificates payments were to be made, and the final certificate of the architect was to be conclusive evidence of the performance of the contract. The work was to be wholly finished by December 1, 1906, and if not completed by that time the plaintiff was to pay to the defendant $25 per day for each. and every day thereafter that the work remained unfinished, as and for liquidated damages. Following the agreement for damages for delay was this provision: "Art. VII. Should the contractor be delayed in the prosecution or completion of the work by the act, neglect or default of the owner, of the architect, or of any other contractor employed by the owner upon the work, or by any damage caused by fire or other casualty for which the contractor is not responsible, or by general strikes or lockouts caused by acts of employees, then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all the causes aforesaid, which extended period shall be determined and fixed by the architect; but no such allowance shall be made unless a claim there for is presented, in writing, to the architect within forty-eight hours of the occurrence of such delay.” The plaintiff then offered in evidence the following certificate of the architect: "Bldg. No. 176. Certificate No. 65. Contract price, - $5500.00 Former cer Present cer $5500.00 To First Nat. Bank of Englewood: Remarks: This contractor was forty- tificate, Total, Balance, |