for our decision, it is inferentially insisted that the evidence fails to show that appellant acted or failed to act willfully, and that the plaintiff was dependent upon decedent for her support. From an examination of the record, it cannot be said there is no evidence whatever supporting these contentions, but, on the other hand, we find evidence tending to show a contrary state of facts, and hence the trial and appellate courts have found adversely to appellant upon all such questions of fact.

The judgment of the circuit court will be affirmed. Judgment affirmed.

1. The strip of land which a city sought to condemn in extending a street crossed a railroad right of way on which were situated five tracks, two platforms, and a portion of a small board building. There was evidence that the building could be moved to another location with little inconvenience, that the platforms could be so changed as to give the same amount of space, and that the extension of the street would not decrease the business of the company and no additional men would be required to transact the business. General City and Village Incorporation Act, art. 5, § 1, cl. 89 (Starr & C. Ann. St. p. 710), provides that the city council shall have power by condemnation to extend any street across any railroad track or right of way. Held, that the fact that the land was already appropriated to a public use did not preclude its condemnation for another public use, unless so inconsistent with the first that both could not coexist, and the question of such inconsistency, under the circumstances, was one of fact.

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2. Where a city council have decided to extend a street across a railroad, the court cannot interfere, on the ground that there is no necessity for such extension, unless an treme case of oppression or outrage is shown. 3. In granting the petition of a city for the condemnation of land for a street extension across a railroad, the court may require the railroad company to maintain a crossing and keep gates or flagmen thereat.

4. Where, on the condemnation of land for the extension of a street across a railroad, damages are awarded in excess of the cost of the changes which the company would be required to make, and the testimony as to damage from inconvenience and difficulty in handling trains and doing business is conflicting, the award should not be disturbed.

5. Where land for extension of a street across a railroad is condemned, the railroad company is not entitled to damages on account of being compelled to render obedience to police regulations to secure the common welfare.

Appeal from Whiteside county court; H. C. Moore, Judge.

Application by the city of Morrison against the Chicago & Northwestern Railway Company for the condemnation of a street across the railroad. From a judgment granting the condemnation, the railway company appeals. Affirmed.

Barge & Barge (A. W. Pulver, of counsel), for appellant. P. M. Ludens, City Atty. (L. T. Stocking, of counsel), for appellee.

CARTER, J. This was a condemnation proceeding begun in the county court of Whiteside county by the appellee, the city of Morrison, to ascertain the just compensation to be made for the property taken and damaged by the laying out and opening of Cherry street, of the width of 66 feet, across the railroad tracks, right of way, and lands of the appellant, the Chicago & Northwestern Railway Company. The appellant filed its cross petition for damages to property not taken. The cause was heard before the court without a jury, and judgment was given for appellee, and allowing appellant compensatory damages in the sum of $238, from which judgment the railroad company has appealed to this court. After the appeal was taken the appellee deposited the amount of the judgment and costs with the clerk of the court, and filed its bond, as required by the order of the court, for the payment of any future compensation which may be awarded, and prayed an order for immediate possession, which was granted. From this order appellant prayed an appeal, which was not allowed; but it was ordered that said last order be incorporated in the bill of exceptions. The record shows that the appellant made a motion to dismiss the petition on the ground that appellee had no power under the law to condemn the property of appellant for the use of a public street, for the reason that such property was already appropriated to another and different public use inconsistent with the public use of the same as a street. Evidence was introduced in support of the motion; but the motion was overruled by the court, and the defendant excepted. The same question was raised by propositions which appellant requested the court to hold as law in the decision of the case, and which the court refused.

It is contended by appellant that the property sought to be condemned and used for a public street is already devoted by the railroad company to another public use, and that such use cannot coexist with the use as a public street, and that therefore the appellee has no right to condemn the appellant's property for such use; and cases are cited from various other jurisdictions in support of this contention. The mere fact that the use by the public of the land or right of way of a railroad company as a public street crossing would be inconsistent with the particular use to which the company had put it-as, for example, the storing of cars-is not a sufficient reason for denying the right of condemnation to the public for its use as a street crossing. It has been repeatedly held by this court that clause 89 of section 1 of article 5 of the general city and village incorporation act (Starr & C. Ann. St. p. 710) is express authority for the extension of streets, by con

demnation or otherwise, by the city authorities over and across the tracks, rights of way, and lands of railroad companies. Illinois Cent. R. Co. v. City of Chicago, 138 Ill. 453, 28 N. E. 740; Chicago & N. W. Ry. Co. v. Same, 140 Ill. 309, 29 N. E. 1109; Illinois Cent. R. Co. v. Same, 141 Ill. 586, 30 N. E. 1044, 17 L. R. A. 530; Chicago & N. W. Ry. Co. v. Same, 151 Ill. 348, 37 N. E. 842. The public and the railroad company would have the right to use the crossing jointly. In the last-named case it was shown that the streets sought to be opened would cross a railroad yard occupied by many railroad tracks, used for storing cars; but the court said that "they were each 'railroad tracks,' and it cannot be important to what particular use the railroad tracks may be devoted." It was held that the deprivation of such use for storing cars was an element in the estimation of damages, but not a reason for denying the right of condemnation, although the continued use of the land for such purpose would necessarily be inconsistent with its use by the public as a public crossing, and the two uses could not coexist. Chicago & A. R. Co. v. City of Pontiac, 169 Ill. 155, 48 N. E. 485.

In the present case the railroad lands taken by the city for street purposes are crossed by five railroad tracks. There are two platforms extending across the proposed street, -one on the north side of the tracks, about 8 feet wide, made partly of concrete and partly of plank, and one on the south side, of varying width, constructed of brick and plank,-and both used for the accommodation of passengers in connection with the passenger house, which is south of the tracks and west of the Cherry street extension. There also extends into this street about 5 feet of a cheap building, 10 by 18 feet and 8 feet high, made of boards and cleated up, with no interior finish, known as an "oil house," and used for the storage of lamps, oil, etc. The testimony of appellant's witnesses showed that this oil house could be located at another place with but little inconvenience to the company and that its removal would not be a serious matter; that the platforms would have to be enlarged on the east end to give about the same platform space as there is at present; that the extension of Cherry street would not decrease the business of the company; and that it could do the same amount of business, both freight and traffic, without the employment of more men. In Illinois Cent. R. Co. v. Town of Normal, 175 Ill. 562, 51 N. E. 781, the proposed street across the railroad company's right of way cut in two a car house or outhouse, and necessitated the removal of a section house that stood in the street sought to be opened; and it was there contended that the property had already been appropriated to a public use, and was exempt from condemnation, but the contention was not sustained. It is a question of fact 63 N.E.-7

whether the laying out and opening of a public street across the tracks and grounds of a railroad company would so materially interfere with the proper and necessary use of the same by the company as to be inconsistent with it, so that both uses could not coexist. Winona & St. P. Ry. Co. v. City of Watertown, 4 S. D. 323, 56 N. W. 1077. As has been shown above by the evidence, the railroad company would be put to some inconvenience by the opening of Cherry street across its tracks, and would have to rebuild part of its platforms and remove its oil house, but would suffer no diminution in its business, nor would any additional force of men be necessary. For such damages a money compensation could be awarded. We do not find any other inconvenience arising to the appellant, beyond that necessarily attendant upon the opening of a street across its railroad tracks. The rulings of the court below on the motion to dismiss and the propositions of law were correct.

It is further contended that there is no evidence showing any necessity for the extension of this street. In Chicago & N. W. Ry. Co. v. Town of Cicero, 154 Ill. 656, 39 N. E. 574, we said (page 658, 154 Ill., and page 575, 39 N. E.): "The location of new streets or the extension of old streets is a matter committed by the legislature of the state to the local authorities of the town. It could only be an extreme case of oppression or outrage that would justify interference by the court." And in Chicago & A. R. Co. v. City of Pontiac, supra, we said (page 164, 169 Ill., page 487, 48 N. E.): "Unless there has been an abuse of power on the part of the city council in passing an ordinance for local improvements, the courts are powerless to interfere." No abuse or oppression has been shown in this case.

It is next contended that the court erred in refusing to hold as law appellant's propositions that appellee could not compel it to build, construct, or maintain a crossing over its tracks, or keep gates or flagmen at said crossing, and that it had a right to compensation for doing these things. This same contention was raised by the appellant in Chicago & N. W. Ry. Co. v. City of Chicago, 140 III. 309, 29 N. E. 1109, and after full consideration of the authorities it was not sustained. See, also, Lake Shore & M. S. Ry. Co. v. City of Chicago, 148 Ill. 509, 37 N. E. 88; Chicago, B. & Q. R. Co. v. Same, 149 Ill. 457, 37 N. E. 78; Chicago & A. R. Co. v. City of Pontiac, supra.

It is further contended that the damages allowed were inadequate. By the testimony of appellant's own witnesses it was shown that the cost of extending the platforms, removing the oil house, and moving a frog which would have to be moved, would not exceed $215. The court awarded $238 damages. The evidence as to the damages sustained by the company by reason of the inconvenience and increased difficulty of hand

ling its trains and business on account of the opening of the street was conflicting. No more men would be required, and its business would suffer no loss. No damages could be allowed appellant on account of being compelled to render obedience to police regulations to secure the common welfare. See cases above cited. The court, sitting as a jury, heard the evidence, saw the witnesses, and weighed their conflicting statements, and the amount allowed is not palpably against the weight of the evidence. No error appearing, the judgment must be affirmed.

In an action against a street railway company for personal injuries, an improper modification of a requested instruction that, while the jury were the judges of the credibility of witnesses, they could not disregard the evidence of an unimpeached witness simply because he was an employé of defendant, but they must determine the credibility of such employé by the same tests applicable to other witnesses, by adding, "in the employ of an individual litigant," was not misleading, when the court gave a correct instruction for determining the credibility of witnesses, by stating that the jury, from the testimony in the case, were to decide the weight to be given to each witness.

Appeal from appellate court, First district. Action by Josie M. Rollins against the Cicero & Proviso Street Railway Company. From a judgment for plaintiff, affirmed by the appellate court (95 Ill. App. 497), defendant appeals. Affirmed.

John A. Rose and Louis Boisot (W. W. Gurley, of counsel), for appellant. William R. Payne and Ora E. Chapin, for appellee.

WILKIN, C. J. This is an appeal from a judgment of affirmance in the appellate court in favor of appellee against appellant. The action was for a personal injury, tried in the circuit court of Cook county, in which plaintiff recovered a judgment for $2,000. A sufficient statement of facts appears in the opinion of the appellate court (95 Ill. App. 497), and need not be repeated here.

On the trial of the case the defendant introduced certain of its employés as witnesses, and asked the court to instruct the jury as follows: "The court instructs the jury that, while they are the judges of the credibility of the witnesses, they have no right to disregard the testimony of an unimpeached witness sworn on behalf of the defendant simply because such witness was or is an employé of the defendant, but it is the duty of the jury to receive the testimony of such witness in the light of all the evidence, the same as they would receive the testimony

of any other witness, and to determine the credibility of such employé by the same principles and tests by which they would determine the credibility of any other witness." The court modified it by adding the words, "in the employ of an individual litigant." This modification is the only error of law complained of in this court. The objection to the modification is that it, in effect, destroyed the force of the rule announced in the instruction, that the employés of the defendant were not to be discredited because they were employés, but their testimony was entitled to be treated the same as that of any other witness or witnesses testifying in the case,-in other words, that the modification still left the jury to classify witnesses into two classes: First, those who were employés (either of a corporation or in the employ of an individual litigant); and, second, all others. The modification was uncalled for, and, in view of the facts, should not have been made. No employé of an individual litigant testified in the case, and it was improper for the court to put those of the defendant on the same footing with that class of employés. The ninth instruction given on behalf of the defendant gave, in general terms, the correct rule by which the credibility of witnesses should be determined, and concluded: "And from the testimony in the case you are to decide how much weight you will give to the testimony of each witness who has testified in the case." In view of this instruction, together with the modified instruction considered as a whole, in the light of the evidence, the jury could not have discredited the defendant's employé witnesses simply because they were employés of the defendant company, and we cannot conceive that the modification so far misled the jury as to call for a reversal of the judgment below. It will accordingly be affirmed. Judgment affirmed.

(195 Ill. 222) DOMESTIC BLDG. ASS'N et al. v. GUAD ΙΑΝΟ.

MANZO v. SAME.

(Supreme Court of Illinois. Feb. 21, 1902.) VENDOR AND PURCHASER CONTRACT OF SALE-CONDITION-WAIVER - BUILDING AND LOAN ASSOCIATION - AUTHORITY OF OFFICERS-CORPORATIONS-NOTICE.

1. A contract by the president and secretary of a building association for the sale of its real property to a person not having knowledge of any limitation of their authority is binding on the association, as the act is within the apparent scope of the officers' authority.

2. Notice by the association to its agent who negotiates the sale that the president and secretary are only acting as a committee, and not in their official capacity, is not sufficient to charge the purchaser with notice that the president and secretary have no right to execute a contract of sale unless such information is communicated to the purchaser.

3. The by-laws of a building association, limiting the authority of its president and sec

retary, are not notice to a person contracting with the president and secretary for the purchase of its real estate that the officers have no power t bind the association by such contract.

4. Where the officers of a building association deny the right of its president and secretary to execute a contract for the sale of its real estate, it is the duty of such officers, on learning of the execution of such a contract, to immediately notify the purchaser of the repudiation of the sale, and to return any deposit made by him.

5. Where a contract for the sale of real estate requires the purchaser to notify the vendor in writing of the approval of the abstract furnished by the latter, but an officer of the vendor accepts the abstract from the purchaser's attorney, who states it is sufficient, and the repudiation of the contract by the vendor is based on other grounds, the vendor waives the provision requiring written notice that the title is satisfactory.

Appeals from superior court, Cook county; Philip Stein, Judge.

Suit by Pasquale Guadiano against the Domestic Building Association and others to compel a specific performance of a contract for the sale of real estate. From a decree in favor of the plaintiff, the defendants appeal. Affirmed.

Edward T. Noonan, for appellant Domestic Bldg. Ass'n. Percival Steele, for appellant Sophia Manzo. E. Ferrio and Walrath & Woolfolk, for appellee.

HAND, J. This is a bill in equity filed in the superior court of Cook county by the appellee against the appellant the Domestic Building Association to enforce the specific performance of a contract in writing bearing date April 17, 1900, for the sale by said appellant to appellee of lots 3 and 4 in the subdivision of lots 2 to 11, inclusive, and 15, 16, and 18 to 21 inclusive, in block 11, in School Section addition to Chicago, situated in the W. 2 of the S. W. 4 of section 16, township 39 N., range 14 E. of the third P. M., Cook county, Ill., for the consideration of $5,500, of which $3,000 was to be paid in cash, and $2,500 on time, the deferred payment to be secured by mortgage upon the real estate; also to cancel and remove as a cloud upon appellee's title to the premises a warranty deed executed and delivered by the appellant the Domestic Building Association to the appellant Sophia Manzo, bearing date May 21, 1900, and purporting to convey to Sophia Manzo the premises, and which deed was on said day recorded in the recorder's office of Cook county. After the bill had been amended the appellants filed separate answers thereto; and the appellee, replications. The case was referred to one of the masters in chancery of the court to take the evidence and report his conclusions as to the law and the facts, and the master having filed a report, and objections and exceptions having been filed thereto, the court entered a decree granting the relief prayed; and the appellants have prosecuted several appeals to this court, which have been con

sidered together, and are disposed of by this opinion.

It appears from the pleadings, proofs, master's report, and decree that the appellant the Domestic Building Association, being the owner of the premises, some time prior to January 1, 1900, placed the same in the hands of one W. J. Murphy, a real estate agent in the city of Chicago, for sale; that in the spring of 1900 Murphy procured an offer of $5,500 from the appellee for the premises, which offer he submitted to the appellant the Domestic Building Association; that on April 12, 1900, E. T. Noonan, secretary of the association, directed Murphy to get the purchaser under contract; that on April 17, 1900, a written agreement was entered into between the appellee and the association for the sale of the premises to the appellee for the consideration of $5,500. The agreement was executed by the appellee and the Domestic Building Association, by W. S. Lerow and E. T. Noonan, its president and secretary, and provided that the sale should be consummated on May 10, 1900, and, together with a deposit of $400 made by the appellee, was placed in escrow with the Title Guarantee & Trust Company. The abstract of title to the premises was brought down by the association and delivered to the attorney of appellee, who, after having examined the same, returned it to the assistant secretary of the association with the statement that the title was satisfactory. The assistant secretary accepted the abstract without objection, and at that time, and subsequently thereto, when the appellee's attorney called upon her with the view to make an appointment for the purpose of closing the sale, informed him that Mr. Noonan, the secretary of the company, was out of the city, and that the sale could not be closed until his return, which would not be until about the middle of May; that after the return of Mr. Noonan, and on May 15th, the appellee, in company with his attorney and Murphy, called upon Noonan with the funds necessary to complete the cash payment, and desired to close the sale and secure a deed to the premises. At that time Noonan stated to appellee that he had just returned to the city, and that his work was behind, and asked that the matter be delayed a day or two to accommodate him, but did not intimate to the appellee that there was any question but that the sale would be consummated by the association. Appellee went away, and on the 21st day of May was notified by the secreta. ry of the association, through his attorney, that the board of directors of the association would not approve the sale, and that it could not be consummated. During the time intervening between the execution of the agree. ment and the refusal of the association to consummate the sale, the appellee had caused the abstract of title to the premises furnished him by the association to be examined by his attorney, at an expense of $25, and had

made a loan of $1,000, at 7 per cent., to enable him to comply with the terms of the agreement. It subsequently developed that on the 15th day of May-the day upon which the appellee and his attorney and Murphy called at the office of the association with a view to close the sale-the board of directors of the association held a meeting, and took action refusing to consummate the sale of the premises to appellee, and accepted an offer of $6,000 therefor from Sophia Manzo, and subsequently, on the 21st day of May, executed and delivered to her a warranty deed for the premises, which she caused to be recorded on that day. The appellee and the appellant Sophia Manzo both resided in the immediate vicinity of the real estate, the dwelling house of Sophia Manzo being situated upon the lot adjoining the premises. Mrs. Manzo had for several months prior to the sale to appellee been a prospective purchaser of the premises, and, through Mr. Murphy, had submitted to the association an offer therefor of $5,200. A few days after the agreement of sale to appellee had been executed, and before the time Mrs. Manzo claims to have purchased the premises, she called upon Murphy, and stated she had heard appellee had purchased the premises, and inquired of him how much of a deposit he had made thereon. She and her son-in-law, who acted as her agent in the purchase of the premises, stated, in substance, to various persons residing in the vicinity of the property, that the appellee had purchased the property, but that she (Mrs. Manzo) did not want the light and air shut out of her house, and, by paying $500 more than appellee had agreed to pay, she had purchased the premises direct from the own

er.

From an examination of this record, we entertain no doubt that the trial court properly found that the Domestic Building Association, by its president and secretary, executed the agreement of sale sought to be enforced herein; that the appellee was ready, able, and willing to perform the agreement on his part; and that Sophia Manzo had notice that appellee had purchased the premises prior to and at the time she claims to have purchased the same; and we are strongly impressed with the view that the Domestic Building Association sought to repudiate its agreement with the appellee, and refused to consummate the sale to him of the premises, for no other reason than that it was offered $500 more for the premises by the appellant Sophia Manzo than it was to receive from appellee therefor under said agreement of sale. The powers of officers of a building and loan association are the same as those of similar officers in ordinary corporations, and the president and secretary of the Domestic Building Association had power to bind the association by the execution of the agreement of sale. The notice claimed to have been given to Murphy by the association, through some of its officers,

that its president and secretary were acting as a committee of the association, and not in their official capacity, when dealing with this property, was not binding upon appellee. Notice to Murphy was not notice to appellee, as he was not the agent of appellee, but the agent of the association, and Murphy never communicated such information to appellee. Neither were the by-laws of the association notice to the appellee of want of authority in the president and secretary to bind the association, as such by-laws contained no limitation upon their authority as president and secretary. The appellee was therefore justified in dealing with the association through its duly-elected officers, and, they having assumed to act for the association within the apparent scope of their authority, their acts were the acts of the association, and binding upon it.

The claim that the secretary stated to the appellee at the time the agreement was executed and placed in escrow that the sale would have to be approved by the board of directors before it would be binding upon the association is not borne out by the record. Three credible witnesses who were present at that time concur in testifying that no such statement was made by the secretary, and the testimony of the secretary that he made such statement is uncorroborated. If the officers and board of directors of the association did not recognize the authority of the president and secretary to bind the association by such agreement, it was their duty, if they desired to repudiate such agreement, to notify the appellee, immediately upon receiving notice of the terms thereof, that the agreement was executed by the president and secretary of the association without authority, and to repudiate the same, and to return or cause to be returned to him the cash deposit which he had made at the time of the execution of the agreement; otherwise its execution would be deemed to have been ratified.

That the appellee was willing, able, and ready to perform the agreement on his part is not denied. It is said, however, that the agreement provided that the appellee should notify the association in writing, after an examination of the abstract of title submitted to him, if the title was found to be satisfactory, and that no such written notice was given to the association. The abstract was examined by the attorney of appellee, and returned to the assistant secretary of the association with the statement that the title was satisfactory, which abstract and verbal notice were accepted and received by the assistant secretary without objection; and the association, at the time it repudiated the agreement, based its refusal to perform, not on the ground of the want of such written notice, but upon the ground that the president and secretary had no authority to make the agreement, and that the board of directors refused to approve the sale and