City of Chicago v. Roth.

not, by reference to the deed, appear to be the land conveyed. If this mortgage was placed in the hands of a practical surveyor, and he required to locate this tract of land, it is perfectly apparent that it could not be done.

Whenever an attempt is made to convey lands and the description employed is such that it appears from itself that the premises cannot be found and identified, or if the description calls for a subject matter having no existence, or impossible to be found, it must be regarded as void. And courts cannot permit extraneous evidence to explain the intention of the parties. The contract as executed, must explain itself. A contract cannot rest partly in writing and partly in parol. It is true that if the draftsman in preparing the deed, made a mistake and omitted some portion of the contract of the parties, or if by mistake he inserted into it some matter which was not a part of the agreement as made by the parties, and rendered the agreement variant from the contract they designed, and supposed they had executed, then a court of equity, on a proper case, has the power to reform and then enforce the contract as it was designed to have been executed. In this case, however, the bill was not prepared with that view, and the court could not, on this bill have given such relief. The land described in the mortgage being impossible of location, a foreclosure would have availed the complainant nothing, and having failed to show by his bill that he was entitled to relief, the court below decided correctly in sustaining the demurrer and dismissing the bill. The decree is therefore affirmed.

Decree affirmed.

26 456 77a 294

26 456 179 169

THE CITY OF CHICAGO, Appellant, v. CHRISTIAN ROTH,

Appellee.

APPEAL FROM THE SUPERIOR COURT OF CHICAGO.

A laborer employed by the city can recover his wages, although the officer, whose appropriate business it was to direct the labor, disobeyed his superiors by not suspending work.

THIS was an action of assumpsit. The count was for work and labor. Plea, general issue.

Case submitted to court for trial without a jury. The parties filed an agreed state of facts substantially as follows:

The appellee is a carpenter, and worked on street crossings and streets in the West Division of the city, in October and

City of Chicago v. Roth.

November, 1859, twenty-three and a half days, at one dollar' and a quarter per day, being $29.37. He was employed for such labor by Peter Beygeh, street commissioner of West Division, and it was done under his direction, and was necessary work.

Appellee labored on streets and crossings on West Division after the 25th November, 1859, forty-seven and one-quarter days, at the wages aforesaid, making a sum of fifty-nine dollars, six cents. This labor was done from time to time, during the time aforesaid, as called for by street commissioner, and under his direction. One-half day's work of above time was in putting up proper protections for the polling place at the March election, 1860.

Appellee has requested and demanded payment frequently of the mayor, comptroller and Common Council, of each of above amounts, which have been refused, and the whole remains unpaid.

The appropriation by the Common Council for the fiscal year, April 1st, 1859, to April 1st, 1860, to West Division, for labor on streets and crossings, including street taxes worked, was twelve thousand dollars, and Peter Beygeh, street commissiouer, had notice of the amount appropriated, and was frequently reminded of it during summer of 1859.

On the 29th June, 1859, the following notice of that date, was served on said Beygeh:

"I hereby notify you that there are no means at my disposal to pay for labor or anything else, and I see no probability that there will be until the taxes are raised next winter. So if you employ any men (a single one,) it will be at your own risk for pay, as I can agree to pay nothing before January next, as the Superior Court has enjoined us from borrowing any money. SAMUEL D. WARD, City Comptroller."

"Yours,

And afterwards, on the 23rd November, 1859, a notice of that date was also served on said street commissioner, Beygeh, as follows:

"The amount appropriated by the Common Council to be expended by you, was twelve thousand dollars in street labor. That amount is now very nearly expended, and will be certainly by the street tax to be worked out, so that there will not be another dollar to be expended in money. You will please govern yourself accordingly, as a single person employed by you, will be on your own personal responsibility, as I cannot pay one dollar beyond the appropriation, the law giving me no authority.

"Yours respectfully,

SAMUEL D. WARD,
City Comptroller.

Deal et al. v. Dodge et al.

The foregoing, except the ordinances of the city referring to or bearing upon the issue in the case, was all the evidence given in the case. It is stipulated that all provisions of the charter and ordinances of the city bearing on the issue, are to be read by the parties from the printed and published copies of the same, and considered as incorporated in the record.

The court found for the plaintiff, and assessed the damages at $87.77.

Defendant moved for new trial, because finding was contrary to law, contrary to evidence, and ought to have been for defendant. Motion overruled, and defendant excepted.

The appellant assigns as error, the finding of the court on said issue for plaintiff below, the refusal of the court to set aside such finding and grant a new trial, and the rendering judgment on such finding for the plaintiff below.

J. LYLE KING, for Appellant.

GARRISON & ANDERSON, for Appellee.

CATON, C. J. The laborer was employed by the proper officer of the city, and under such employment did the work for the city, and if the agent of the city disobeyed the lawful orders of the city authorities to suspend the work on the streets, the officer and not the laborer is responsible for such disobedience. It would be a hard rule of law which would require the laborers on the streets of the city, when employed by the street commissioner or other proper officer of the city, to go to the mayor, or comptroller, or city clerk, and see whether the work on that street had not been, ordered to be suspended. There is not and cannot be in reason any such precautionary duty imposed on the laborer.

The judgment is affirmed.

Judgment affirmed.

HENRY J. DEAL et al., Appellants, v. WILLIS DODGE et al.,

Appellees.

APPEAL FROM MCLEAN.

Although the real consideration for promissory notes is land, and not the covenants in a deed, yet the maker, finding the land incumbered, for which he gave his notes, if he desires to avoid the payment of them, should place his vendor in his primary condition, by a reconveyance or release; for if the vendor removes the incumbrance, or perfects his title, the consideration becomes valid.

Deal et al. v. Dodge et al.

THIS was a declaration in assumpsit, containing two special counts on two promissory notes, and the common counts.

Plea of general issue, and stipulation of plaintiffs and defendants, that all matters that could be properly pleaded should be given in evidence under the general issue.

Trial by jury at the December term, 1860, and verdict for defendants. Motion for a new trial overruled, and judgment on the verdict. Appeal prayed and granted.

The facts of this case are substantially as follows:

On the 16th day of August, 1856, Iris Hobson sold to Joseph Brewer, the S. E. N. E. Sec. 31, T. 24 N., R. 1 W., and made him a deed for the same on the same day, which deed was never recorded.

On the 10th day of September, 1857, Brewer sold the same land to Dodge, one of the defendants, and received therefor the two notes sued on, Endicott signing them as security. On the second day of December, 1857, Brewer gave up his deed to Hobson, and by a mutual agreement between all the parties, Hobson made a new deed to Dodge for the land.

After Hobson had sold the land to Brewer, and while Brewer was in possession of the same under an unrecorded deed, B. S. Prettyman recovered a judgment in the McLean Circuit Court, against the said Hobson, for $104 and costs of suit. On the 21st day of March, 1857, an execution was issued on this judgment, and returned by the sheriff, levied on the land for which the notes sued on were given, and that he had sold the same on the 17th day of June, 1857, to the plaintiff in the execution. The fifteen months allowed for the redemption of this land expired on the 17th day of September, 1858.

Before the time for redemption expired, Hobson procured one Willard, who had a judgment against Hobson before a justice of the peace of McLean county, on which he could redeem this land for Hobson, by filing a transcript in the circuit clerk's office, to use the judgment for the purpose of redeeming the land. Before the expiration of the fifteen months from the date of the Prettyman sale, Willard obtained an execution, and on the same day redeemed the land from the Prettyman sale. The sheriff made to Willard a deed for the land, which deed was given in evidence by defendants. Willard made a quit-claim deed to Hodge for Hobson's benefit. Hodge made a deed to Hobson before the commencement of this suit.

HANNA & SCOTT, for Appellants.

R. E. WILLIAMS, for Appellees.

Howell v. Howell.

CATON, C. J. We fully recognize the principle, that the true consideration of the notes was the land, and not the covenants in the deed, and as the title to the land had been defeated by an incumbrance prior to the deed to the defendant, the title at the time of the maturity of the notes had failed, and so the consideration of the notes failed, if the defendant so chose to treat it, and the defendant then had the right to repudiate the contract of sale, and the notes, for the reason that the consideration of the notes had failed. But the mere declaration that he repudiated the contract was not sufficient to effectuate that purpose. He should have put the other parties in statu quo, by a reconveyance of the land, or at least a release of the covenants in the deed, so that any subsequent title acquired by the grantor in his deed, would not enure to his benefit and vest in him. He did not do this, but retained the deed and the covenants until his grantor did actually acquire a good title to the land which instantly vested in him, and that title he still holds, and so it was when the action was commenced. While he held the deed and maintained a position to receive a perfect title to the land so soon as his grantor should acquire one, the defendant could not fully and effectually repudiate the contract of purchase. The judgment is reversed, and the cause remanded.

Judgment reversed.

LEWIS W. HOWELL, Appellant, v. DANIEL HOWELL,

Appellee.

APPEAL FROM HENRY.

The correction of mistakes in awards, as in other instruments, must be referred to courts of equity.

Where a mistake sought to be corrected in an award, is matter of substance, or affects the merits of the controversy, a resort must be had to equity.

THE matters of controversy in this case are sufficiently stated in the opinion of the court.

H. W. WELLS, and C. C. BONNEY, for Appellant.

WILKINSON & PLEASANTS, for Appellee.

WALKER, J. The arbitrators to whom the parties had submitted their differences, returned their award, which was filed, and an order for its execution was made by the court below.