« AnteriorContinuar »
tion the plaintiff's business began to be interfered with by these agents and secret service men; that contractors and owners who were purchasing and using plaintiff's brick were compelled to cease using them; tbat large orders and sales were canceled; that one owner was compelled to pay a fine to the Masons' & Builders' Association before being permitted to complete with plaintiff's brick a building which was under way; that workmen were directed not to lay plaintiff's brick because he was not in the combination; and there is evidence of particular cases in which such interference occurred. In one case where, as the evidence tends to show, money had to be paid to the Masons' & Builders' Association for the privilege of using plaintiff's brick to complete a job then under way, in order to get the work completed, the association afterward returned the money when threatened with legal procedure. The plaintiff testifies that the result of the combination and consequent interference with his business was that his brick became 'absolutely worthless. There wasn't hardly a man in Chicago that would handle them. The workmen all belonged to the union, practically, and the hod carriers would not handle them, or the brick. layers wouldn't lay them.' He testifies that he was called on by the secretary of the Masons' & Builders' Association, who told plaintiff 'that the joint committee of the master masons and the brick manufacturers' crowd had just had a joint session in the next room' adjoining my office and bad directed him to inform me that they requested me to sell no more brick in the city of Chicago or Evanston. I told him they must be wrong—that it was equivalent to asking me to quit business. He said: “There is no mistake on my part. The committee have just adjourned, and the members are still in the next room.' I said, 'Go back and tell them they are a bigger lot of fools than I thought they were,' and I made a similar request of them.” .
We think the foregoing finding as to the facts is sustained by the proofs. The question of unlawful conspiracy to injure the business of another, and the necessary elements to constitute it, has been before this court on other occasions. Our Reports contain many well considered cases on the subject. No person or combination of persons can legally, by direct or indirect means, obstruct or interfere with another in the conduct of his lawful business, and any loss willfully caused by such interference will give the party injured a right of action for all damages sustained. All parties to a conspiracy to ruin the business of another because of his refusal to do some act against his will or judgment are liable for all overt acts illegally done pursuant to such conspiracy and for the subsequent loss, whether they were active participants or not. Doremus v. Hennessy. 176 Ill. 608, 52 N. E. 924, 54 N. E. 524, 43
L. R. A. 797, 802, 68 Am. St. Rep. 203 ; O'Brien v. People ex rel., 216 Ill. 354, 75 N. E. 108. To the same effect, see Smith v. People, 25 Ill. 9, 76 Am. Dec. 780; Craft v. McConoughy, 79 III. 346, 22 Am. Rep. 171; More v. Bennett, 140 Ill. 69, 29 N. E. 888, 15 L. R. A. 361, 33 Am. St. Rep. 216; Foss v. Cummings, 149 Ill. 353, 36 N. E. 553; American Live Stock Commission Co. v. Live Stock Exchange, 143 Ill. 210, 32 N. E. 274, 18 L. R. A, 190, 36 Am. St. Rep. 385; Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577, 64 L. R. A. 738, 74 Am. St. Rep. 189; Lasher v. Littell, 202 Ill. 551, 67 N. E. 372; Chicago, Wilmington & Vermilion Coal Co. v. People, 214 Ill. 421, 73 N. E. 770. To the same effect are the decisions of the court in other jurisdictions. See cases cited in Doremus V. Hennessy, on page 616 of 176 Ill., page 926 of 52 N. E. (43 L. R. A. 797, 802, 68 Am. St. Rep. 203). Under the authorities above cited and in view of the evidence as it appears in the record, there is evidence fairly tending to show that appellants were guilty of an unlawful combination and conspiracy to maliciously injure the appellee's business. The court committed no reversible error in refusing to instruct the jury to find for the defendants.
Complaint is also made of the rulings of the court in the admission and exclusion of evidence and in giving and refusing instructions. All of these alleged errors are based upon the theory that the appellants were not guilty of an unlawful combination and conspiracy. In each instance the evidence admitted tended to prove the allegations of the declaration, and was therefore competent. The instructions given announced the law of conspiracy as held in the foregoing decisions, and those refused laid down a contrary rule.
We find no reversible error, and the judgment of the Appellate Court will be affirmed.
(219 Ill. 12) MUNGER et al. v. CROWE et al. (Supreme Court of Illinois. Dec. 20, 1905.) VENUE – INJUNCTIVE ACTION AFFECTING REALTY.
A proceeding to enjoin the removal of a wing of a courthouse to another part of the courthouse grounds must be brought in the county where the courthouse is located, under Chancery Act (Hurd's Rev. St. 1903, c. 22) 8 3; it being a suit which "may affect real estate."
Appeal from Appellate Court, First District.
Bill by Frank M. Munger and M. J. Henaughan against John V. Crowe and Al. bert J. Crowe. A decree dismissing the bill was affirmed by the Appellate Court (115 Ill. App. 189), and complainants appeal. Affirmed.
On July 25, 1903, Frank M. Munger and M. J. Henaughan, the appellants, who are residents and taxpayers of De Kalb county,
filed a bill in the superior court of Cook properly commcaced in the latter county. county for an injunction to restrain John They also urge that the contract under which V. Crowe and Albert J. Crowe, who are appellees were working is void, and that residents of Cook county, from removing appellees had no authority to proceed under the west wing of the courthouse at Syca that contract. more, in De Kalb county, from its present
Lloyd C. Whitman and Harry W. McEwen site to another part of the courthouse
(Kern & Brown, of counsel), for appellants. grounds. A temporary injunction issued in
Hopkins, Dolph, Peffers & Hopkins, for apaccordance with the prayer of the bill. The
pellees. defendants filed a sworn answer and a motion to dissolve the temporary injunction
SCOTT, J. (after stating the facts). The and to dismiss the bill for want of equity,
first question presented is, did the superior and presented affidavits in support of said
court of Cook county have jurisdiction of motion. The court, upon considering the
this suit? This must be determined by secpleadings and affidavits, entered a decree
tion 3 of chapter 22 of Hurd's Revised Statdissolving the injunction. Complainants
utes of 1903, which reads as follows: "Suits prayed an appeal from that decree, and the
in chancery shall be commenced in the court thereupon dismissed the bill for want
county where the defendants, or some one of equity. Complainants appealed from the
or more of them resides; or if the defenddecree dissolving the injunction and dis
ants are all nonresidents, then in any counmissing the bill to the Appellate Court for
ty; or if the suit may affect real estate, the First District. That court affirmed the
in the county where the same or some part decree of the superior court on the ground thereof is situated. Bills for injunctions to that a decree in conformity with the prayer
stay proceedings at law shall be brought in of the bill would affect real estate wholly
the county in which the proceedings at law in De Kalb county, and that the courts of
are had.” It is contended by appellees that Cook county, therefore, had no jurisdiction the superior court of Cook county did not of the cause. Complainants in the bill prose have jurisdiction of the suit, because it was cute a further appeal to this court.
a suit which may affect real estate in De The facts material to a decision of the
Kalb county. Appellants insist this suit questions here presented are as follows: | would not affect real estate, and that the At an adjourned regular meeting of the | injunction operates upon the individuals board of supervisors of De Kalb county, | only. held on June 11, 1903, a special building The courthouse of De Kalb county was committee was appointed pursuant to a a part of the realty on which it was located. resolution of the board. On the following | Removing it, or a part of it. from it caday a resolution was adopted by the board tion, necessarily affects the real estate on accepting and adopting plans and specifica- which it is located and of which it is a part. tions prepared by H, T. Hazelton, an archi. Restraining the removal of a building by tect, for the erection of a courthouse for one having or claiming the right to remove De Kalb county, said plans to be subject it, from one part of certain real estate to to changes and approval of said special another part thereof, has a physical and building committee, and Hazelton was die material effect on the real estate. "The rected to provide the balance of the spec meaning of the word "affect,' as used in the ifications and details necessary to furnish statute, is to act upon, which, indeed, is and complete the courthouse, and file a its ordinary signification." Enos v. Hunter, copy thereof with the county clerk by June 9 Ill. 211. If the court, to grant the relief 26, 1903. By the resolution the special sought, must deal directly with the real building committee was authorized and di- | estate itself, then the suit is one "which rected to take steps to remove the west may affect real estate." Johnson V. Gibwing of the present courthouse, and vaults | son, 116 Ill. 294, 6 N. E. 205; Hayes v. therein, to some convenient place on the O'Brien, 149 1II. 403, 37 N. E. 73, 23 L. R. courthouse grounds, for use during the con A. 555; Craft v. Indiana, Decatur & Western struction of the new courthouse. On June Railway Co., 166 Ill. 580, 46 N. E. 1132. 26, 1903, the special building committee ac The effect of this suit, if an injunction cepted the bid of $1,600 made by the appel should be awarded, would primarily be lees for the removal of the west wing and upon the persons enjoined; but its pracvaults, and on July 1, 1903, entered into tical and ultimate effect would be upon a contract with appellees based upon such the real estate. If the injunction did not bid. Appellees entered upon the perform have that effect, it would be useless. While ance of the contract, but were restrained it would restrain the persons from acting, from completing it by the temporary in- , it is clear that the resultant effect on the junction herein. Appellants contend that a property was the end sought. If the object decree in accordance with the prayer of of the suit were to compel the removal of the bill would not affect real estate in De a building from the real estate, it would Kalb county, and that, as the defendants scarcely be contended that real estate would were residents of Cook county, the suit was not be affected thereby; and it seems equal
ly clear that, where an injunction is sought. "Frink delivered the order to appellee, and to prevent the removal or physical dis. appellee presented it to appellant, who, on turbance of a part of the real estate, the behalf of Miller Bros., gave appellee the check suit is one which "may affect real estate." of Miller Bros. for $400 thereon and promised By such an injunction the court would, so orally to pay the balance of the order in a few far as matter of substance is concerned, weeks, retaining the order in his possession. deal directly with the real estate itself. Miller Bros., defendants, pleaded the general
As we are of the opinion that the superi issue, and subsequently, by leave of court, or court was without jurisdiction, for the filed two additional pleas of the statute of reason that the suit could under the statute frauds, averring that the promises mentioned be properly brought only in De Kalb coun in the declaration were special promises to ty, it is unnecessary to consider the other answer for the debt of Frink, and that no propositions which have been urged upon memorandum or note thereof in writing, our attention. The decree will be affirmed. signed by the defendants, or either of them, Decree affirmed.
was made. To these pleas the court sus.
tained a demurrer. On the trial the defend(219 Ill. 79.)
ants, at the close of plaintiff's case, moved to CHICAGO HEIGHTS LUMBER CO. 9. strike out the plaintiff's evidence, on the MILLER.
ground that the contract came within the (Supreme Court of Illinois. Dec. 20, 1905.) statute of frauds. This motion was denied. FRAUDS, STATUTE OF-PROMISE TO PAY DEBT A motion to instruct the jury to find for the OF ANOTHER.
defendants was also denied. Thereupon de The verbal acceptance of a written request
fendants called David Miller to the stand and of another to pay his debt, where the person accepting it is not indebted to such other and
offered to prove by him that Frink bad conbas no funds of such other in his hands, and a tracted to erect a building for appellant and payment of part of the amount by check and bad defaulted in the performance of his conan agreement to pay the balance, is within the
tract, but the evidence was rejected for want statute of frauds, as a verbal promise to pay the debt of another, though the written order
of proper pleas. At the close of the evidence is retained by the promisor.
the defendants requested the court to give a Appeal from Appellate Court, First Dis number of instructions, to the effect that, untrict.
less it appeared from the evidence that at the Action by the Chicago Heights Lumber time of the alleged acceptance of the order Company against David Miller and Isadore
the defendants had in their hands a fund be Miller. Judgment for plaintiff against David
longing to the drawer, out of which to pay the Miller was reversed by the Appellate Court
order, the plaintiff could not recover. The (117 Ill. App. 468), and the Chicago Heights
court refused to give any of these instrucLumber Company appeals. Affirmed.
tions, and instructed the jury to return a
verdict for the plaintiff for $308.13. After In this cause the Appellate Court for the First District reversed the judgment of the
overruling a motion for a new trial and a
motion in arrest of judgment the court encircuit court of Cook county, which was
tered judgment on the verdict. Errors are against Miller, without remanding the cause,
assigned upon the ruling on the demurrer to on the ground that neither the declaration nor
appellant's additional pleas, receiving and ex. the evidence shows a cause of action against
cluding evidence, and the giving and refusing the defendant. Miller appealed, and the fol
of instructions." lowing accurate statement of the facts in the
The Appellate Court incorporated in its 'rase was made by the Appellate Court:
Judgment the following finding of facts: “This is an appeal from a judgment of the
"The court finds that the acceptance sued on circult court of Cook county in favor of ap
in this case was an oral acceptance of an Bellee (Chicago Heights Lumber Company)
order, and that there was no fund in the and against appellant (David Miller) im
hands of appellant, the acceptor, out of which pleaded with Isadore Miller. The declaration
to pay the order." The Chicago Heights avers, and the proof shows, that on August
Lumber Company obtained a certificate of 10, 1901, William Frink drew an order on
importance from the Appellate Court, and Miller Bros. for $682.81 in favor of appellee, in terms as follows:
brings the record to this court by appeal. “ 'Chicago Heights, III., August 10, 1901.
Rosenthal, Kurz & Hirschl, for appellant. "Mr. Wm. Frink Miller Job.
William H. Johnson and Robert W. Millar, “ 'In Account with Chicago Heights Lumber for appellee.
Company, (Incorporated), Dealer in Lumber, Lath, Shingles, Lime, etc., Corner Sixteenth Street and East End Avenue.
SCOTT, J. (after stating the facts). 'Miller August 10. To mdse................$711 47
Bros. held no fund belonging to Frink and Less material returned.... 28 66
were not indebted to him. If Frink, under
$682 81 these circumstances, had orally requested w "Chicago Heights, Ill., August 10, 1901. Miller Bros. to pay his debt to Chicago " 'Miller Bros. : Please pay to the order of Chicago Heights Lamber Co. six hundred eighty.
Heights Lumber Company, and Miller Bros. two 81/100 dollars.
bad verbally promised the company to do 40, " 'Yours truly, Wm. Frink. | the promise would have been within the stat. ute of frauds. Does the fact that Frink's re- , ment thereon, a teacher's certificate can only quest to Miller Bros. to pay bis debt be renewed by the indorsement of the county
superintendent, and the issuance of a new certifwas in writing and that the written request
icate cannot be regarded as a renewal. was left with appellee when he paid a part of the debt and verbally agreed to pay
Appeal from Appellate Court, Third Disthe remainder make a material difference?
trict. We think not. In either event Miller Bros.
Mandamus proceedings by Henry Anderson could recover from Frink any amount paid in
against Charles Van Dorn, as superintendent
of schools of Sangamon county. From a pursuance of his request. The only difference is that in one instance the evidence of
judgment of the Appellate Court (117 Ill. Frink's request lies in parol, while in the
App. 618), affirming a judgment awarding other it is in writing. In either case the
| the writ, defendant appeals. Affirmed. promise to pay Frink's debt is verbal, and the This is a petition, filed by the appellee statute of frauds presents a complete defense. in the circuit court of Sangamon county, The only case to which our attention has been against the appellant, as superintendent of called, where, upon the oral acceptance of schools of said Sangamon county, praying such an order, the writing itself was left with for a writ of mandamus, commanding apthe acceptor, is that of Louisville, etc., Rail. pellant to change the date of a teacher's way Co. v. Caldwell, 98 Ind. 245. The views certificate issued by appellant to appellee, so there expressed by the court of last resort of that said certificate should show upon its face the state of Indiana are consonant with the the true date of its issuance. After a demurrer conclusion reached above.
to the petition was filed and overruled, apIf the written request of Frink be regarded pellant pleaded to the same, and upon the as a bill of exchange, the result would not be hearing the trial court found the issues for different, as the verbal acceptance by the appellee, the petitioner, and ordered that drawee of a bill of exchange, who holds no the writ issue forthwith, commanding appelfunds of the drawer is no more than a parol / lant that he correct the certificate, which promise to answer for the debt of another. bore date on July 1, 1901, so that it would Browne on Frauds, 174; 2 Rob. Pr. 152; Quin show upon its face the true date of its isv. Hanford, 1 Hill (N. Y.) 84; Pike v. Irwin, 1 suance by appellant to appellee, to wit, the Sandf. 14; Manley v. Greagan, 105 Mass. 445; 1st day of September, 1902. An appeal was Plummer v. Lyman, 49 Me. 229; Wakefield v. taken from the judgment ordering the issuGreenhood, 29 Cal. 600; Walton v. Mandeville, ance of the writ to the Appellate Court, 56 Iowa, 597, 9 N. W. 913, 41 Am. Rep. 123. which has affirmed said judgment. The pres
The judgment of the Appellate Court will ent appeal is prosecuted from such judgment be affirmed.
of affirmance. Judgment affirmed.
The petition averred that appellee, of Sangamon county, had for many years prior
to July 2, 1902, taught in the common schools (219 III. 32)
of said county, under several first-grade cerVAN DORN, County Superintendent, V.
tificates issued to him by the superintendent ANDERSON.
of schools of that county upon due examina(Supreme Court of Illinois. Dec. 20, 1905.)
tion; that the last of said first-grade certifi
cates expired on July 2, 1902, and that after1. MANDAMUS - GROUNDS — PERFORMANCE OF OFFICIAL ACTS.
wards, on September 1, 1902, appellee apThe performance of an official act, which
plied to appellant, as such superintendent, in its nature is ministerial rather than judicial, to grant to him a first-grade certificate, may be coerced by mandamus. [Ed. Note.--For cases in point, see vol. 33,
and was there and then ready and willing Cent. Dig. Mandamus, § 133.]
to submit himself to an examination by ap2. SAME-SCHOOLS - TEACHERS' CERTIFICATES
pellant, as such superintendent, touching his -DATE.
qualifications; that thereupon the appellant A county superintendent of schools has no on, to wit, September 1, 1902, issued and depower to antedate a teacher's certificate, and livered to appellee a certificate in the words may be compelled by mandamus to date it correctly.
and figures following, to wit: “Sangamon (Ed. Note.-For cases in point, see vol. 33,
County, Illinois, July 20, 1901. The underCent. Dig. Mandamus, § 174.]
signed, having examined Henry Anderson in 3. ESTOPPEL-OFFICIAL CERTIFICATE.
[certain studies, naming them] and being A county superintendent is precluded on satisfied that he is of good moral character, the ground of estoppel from collaterally at hereby certifies that his qualitications in all tacking a teacher's certificate issued by him,
the above branches are such as to entitle by showing that it was issued without due examination.
him to this certificate, being of the first grade, (Ed. Note. For cases in point, see vol. 19,
valid in said county for two years from the Cent. Dig. Estoppel, $ 214.)
date hereof, and renewable at the option 4. SCHOOLS AND SCHOOL DISTRICTS-RENEW. of the county superintendent by his indorseAL CERTIFICATES.
ment thereon. Given under my hand and Under School Law (Hurd's Rev. St. 1899. c. 122) art. 7, § 3, providing that the county
seal at the date aforesaid. Charles Van superintendent may at his option renew teach
Dorn, County Superintendent of Schools. ers' certificates at their expiration by indorse- 1 (Seal.]” The petition then avers that when
the certificate was delivered to him he did , qualified. Said certificates shall be of two not observe that it did not bear the true date grades; those of the first grade shall be valid of its issuance (being dated July 2, 1901, in: | in the county for two years, and shall certify stead of July 2, 1902), but that, when ap that the person, to whom such certificate pellee did observe that date written in said | is given, is of good moral character, and certificate, he afterwards, to wit, on August is qualified to teach (certain studies, naming 24, 1903, applied to appellant as such super them). * * * Certificates of the second intendent, at his office in Springfield, in said grade shall be valid for one year, and shall county, to correct the date of the certificate, certify that the person, to whom such cerso that the same would show the true date tificate is given, is of good moral character, of its issuance, but that appellant refused and is qualified to teach (mentioning certain to make such correction, by means whereof studies). * * The county superintend. appellee was prevented from teaching in said ent may in his option renew said certificounty from September 1, 1903, until Septem cates at their expiration by his indorsement ber 1, 1904, as he had a just and lawful right thereon,” etc. Hurd's Rev. St. 1899, p. 1552. to do.
Section 3 of article 7 above referred to pre
scribes the form of the certificate; and such Perry & Morgan, for appellant. Shutt &
form contains the words: “valid in said Graham and Hamilton & Catron, for appellee,
county for — year from the date
hereof, renewable at the option of the counMAGRUDER, J. (after stating the facts). ty superintendent by his indorsement thereThe appellant, as county superintendent of on.” Paragraph 16 of section 13 of article schools of Sangamon county, first issued 2 of said school act also provides that "it to appellee a first-grade certificate in 1899, sball be the duty of each county superintendupon a written examination as to his quali ent of schools in this state * * * to fications. When this certificate expired two grant certificates of qualification to such peryears later, to wit, on July 1, 1901, appel sons as may be qualified to receive them, lant at that time issued another first-grade as provided for in section 3 of article 7 of certificate to appellee, but dated it back to this act," etc. Hurd's Rev. St, 1899, p. 1523. July 2, 1900. The latter certificate was is Paragraph 3 of section 14 of article 2 of said sued without a further written examination, act also provides that “the said county superas appellee had taken an examination in intendent shall have power * * * to re1899, and he testifies that appellant told him new teachers' certificates at their expiration that another one was not necessary, and that by his indorsement thereon.” Id. when a teacher had passed one examination It is insisted by appellant that the per appellant would not require him to take formance of the duties imposed upon the another during his superintendency. As the county superintendent of schools by the prosecond certificate, issued on July 1, 1901, had visions of the statute above quoted is a been dated back a year to July 2, 1900, it matter of discretion and judgment with therefore expired, according to its date, on that official, and that therefore their perJuly 1, 1902. Appellee applied to appellant formance cannot be enforced by mandamus. in June, 1902, to correct the date on said Undoubtedly it is the general rule that the certificate, so that it would bear the true writ of mandamus will not lie to compel the date of its issuance, namely, July 2, 1901 ; performance of acts or duties which necesbut appellant refused to correct the date sarily call for the exercise of judgment and as requested, and thereupon appellee, on Sep. discretion on the part of the officer or body tember 1, 1902, made a written application at whose hands their performance is reto appellant as such superintendent, in the quired.' People ex rel. v. Illinois State Board usual form, for a new certificate, and left of Dental Examiners, 110 Ill. 180; Illinois one dollar to pay for the same. Thereup State Board of Dental Examiners v. People, on, without further written examination, ap 123 Ill. 227, 13 N. E. 201. But a writ of pellant issued and delivered to appellee a mandamus will issue to command the pernew first-grade certificate, but dated the formance of an official act in a proper mansame back to July 2, 1901, as will appear ner, when such act is in its nature minisfrom the certificate set forth in the state terial, and not judicial. Grabam v. People, ment preceding this opinion. When appellee 111 Ill. 253; People v. Mayor of Alton, 179 discovered, in April, 1903, that this certificate Ill. 615, 54 V. E. 421. Under the provisions had been dated back, he went to appellant , in question the county superintendent unin August of that year and asked him to doubtedly exercises a discretion, judicial in correct the date of the certificate, so that its character, when he determines that the it would bear date as of September 1, 1902, teacher applying for the certificate has the the true date of its issuance, but appellant qualifications required by the statute. A refused so to do; and thereupon the present mandamus will not issue requiring the county petition for mandamus was filed. Section 3 superintendent to give a certificate that the of article 7 of the school law, provides that applicant possesses the necessary qualifica"it shall be the duty of the county superin- tions, because such act would be an attempt tendent to grant certificates to such persons to control his judicial judgment. But, after as may, upon due examination, be found the county superintendent has decided that