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clared void, as Culver's was; could he now come into court and say that it is valid and res judicata as against a new assessment? We think not. All proceedings in the county court were void, because based upon a void provision of the ordinance. In fact, the judgment against the objectors was that the assessment should be divided and pay. able by installments, and that feature was distinctly held to be illegal in the Culver case. In Freeport Street Railuay Co. v. City of Freeport, supra, it was claimed that the city was estopped by its former judgment. The court said: "The answer is, that judgment was vacated and set aside, else this proceeding would have been unnecessary.
The judgment of the county court dismissing the petition of appellants is reversed, and the cause remanded for further proceedings in conformity herewith.
Reversed and remanded.
Opinion filed December 22, 1897—Rchearing denied February 15, 1898.
1. ELECTION-general application of the rule that election once made is irrevocable. The rule that the right of election once exercised is irrevocable, applies to those cases where to permit the party to revoke his election would prejudice the rights of the opposite party.
2. SAME-party electing to declare a forfeiture may waive his election. A mortgagee who has elected to declare due the principal sum secured, for default in prompt payment of interest, may, upon payment of interest or for other reason satisfactory to himself, waive his election and permit the contract of indebtedness to continue under its original terms.
3. WAIVER-mere acceptance of amount due is not a waiver of notice of forfeiture. The mere acceptance, after default, of the amount of interest due is not in itself a waiver of a prior notice of election to declare the principal due; but where such interest is accepted as the entire amount then due, it becomes a question of fact whether its acceptance was intended as a waiver of the notice of election.
4. EVIDENCE—what not admissible to show that acceptance of interest was not a waiver of notice of election. An endorsement, by the holder of a note, upon an interest coupon paid after due and after his notice of election to declare the principal due, that it was paid “upon the understanding that the principal remains past due as per notice," is not admissible to show that the acceptance was not a waiver, where the endorsement was written after the money had been paid and accepted. (CARTER and CARTWRIGHT, JJ., dissenting.)
WRIT OF ERROR to the Superior Court of Cook county; the Hon. WILLIAM G. EWING, Judge, presiding.
WILLIAM W. CASE, for plaintiff in error:
An election once determined is irrevocable. Platt v. Insurance Co. 153 Ill. 113; Scarf v. Jardine, L. R. 7 App. 315; Joller v. Tuska, 87 N. Y. 166.
After election the credit could be revived only by a new contract. Wheeler & Wilson Manf. Co. y. Howard, 28 Fed. Rep. 741; Noell v. Gaines, 68 Mo. 619; Chambers v. Marks, 93 Ala. 412.
The performance of a legal duty is no consideration for such contract. Waters v. Simpson, 2 Gilm. 570; Woolford v. Dow, 34 Ill. 424; Glickauf v. Hirschhorn, 73 id. 574; Crossman y. Wohlleben, 90 id. 537; Stuber v. Schack, 83 id. 191; Dennis v. Piper, 21 Ill. App. 169; Kerns v. Ryan, 26 id. 177; Insurance Co. v. Rink, 110 Ill. 538; Ilayes v. Insurance Co. 125 id. 626; Trenor v. LeCount, 81 Hun, 426.
After an election has been determined there is nothing to waive. Platt v. Insurance Co. 153 Ill. 113; Croft v. Lumley, 6 H. L. 672; Morecroft v. Meux, 1 C. & P. 316; Jones v. Carter, 15 M. & W. 718; Grimwood v. Moss, L. R. 7 C. P. 360; Clough v. Railroad Co. L. R. 7 Exch. 26.
Accepting performance of part of an obligation is no evidence of a waiver of the rest and no basis for an estoppel. Platt v. Insurance Co. 153 Ill. 113; Terry v. Munger, 121 N. Y. 161; Price v. Worwood, 4 H. & N. 512; Jackson v. Allen, 3 Cow. 220; Bleecker v. Smith, 13 Wend. 531; Green's case, Cro. Eliz. 3; Ward v. Day, 4 B. & S. 337; Doore v. Sargent, 112 Ind. 184; Organ v. Stewart, 60 N. Y. 413; Rubens v. Prindle, 44 Barb. 336; Sloat v. Bean, 47 Iowa, 60; Rouse v. Wheel Works, 66 Ill. App. 617; Bonafous v. Rybot, 3 Burr. 1370; Keene v. Biscoe, L. R. 8 Ch. Div. 201.
Waiver is a question of intention. Croft v. Lumley, 6 H. L. 672; Gassett v. Anderson, 21 Vt. 312; Insurance Co. v. Amerman, 119.Ill. 329; Schimp v. Insurance Co. 124 id. 354; Cheny v. Batten, 1 Cowp. 243.
McDANNOLD & PHELPS, and SEYMOUR STEDMAN, for defendants in error:
Where parties stipulate for the payment of a sum certain on default of performance of an agreement, such a stipulation will be treated as a penalty and also as a forfeiture. Tiernan v. Hinman, 16 Ill. 400; Bryton v. Marston, 33 Ill. App. 211; Plank Road Co. v. Murray, 15 Ill. 337.
The law does not favor forfeitures, but refuses to enforce them whenever wrong or injustice will result therefrom; and before a forfeiture will be enforced a clear case appealing to the principles of justice must be established. Voris v. Renshaw, 19 Ill. 425; Board of Education v. Trustees, 63 id. 204.
Any act done by a landlord, knowing of a cause of forfeiture by his tenant, as confirming the existence of the lease and recognizing the lessee as his tenant, is a waiver of such forfeiture. Webster' v. Nichols, 104 Ill. 160; 1 Williams' Saund. 287; 2 Platt on Leases, 471; 1 Washburn on Real Prop. 454.
Receipt of rents subsequently accruing from a tenant by the landlord is such an act, and forfeiture is thereby waived. Bleecker v. Smith, 13 Wend. 530; Jackson v. Allen, 3 Cow. 220; Ireland v. Nichols, 46 N. Y. 410; Fisher v. Deering, 60 Ill. 114; Shattuck v. Lovejoy, 8 Gray, 204.
The principal of a special agent is only bound by the acts of such special agent which are strictly within his authority, and a third party is bound, at his peril, to ascertain the limit of the authority. 1 Am. & Eng. Ency. of Law, 351, and citations.
Mr. CHIEF JUSTICE PHILLIPS delivered the opinion of the court:
This was an action in ejectment, brought in the Superior Court of Cook county by Peter Van Vlissingen to recover certain property in the city of Chicago. The title of the plaintiff was alleged to be derived through and by virtue of a trust deed in the nature of a mortgage, executed by Christina Lenz and Joseph Lenz, her husband, on the 10th day of July, 1895, to secure a note for $3600, payable five years after date, with interest at six per cent per annum, evidenced by interest notes attached to the principal note. The principal note contained a clause whereby it was provided that if default be made in any one of the installments of interest, the principal sum, together with acèrued interest, should, at the option of the legal holder of said note, become at once due and payable. The same clause, in substance, appeared in the interest notes and in the trust deed. The interest coupon due July 1, 1896, was not paid, and on July 15 the plaintiff, who was the legal owner and holder of the note, prepared a notice, which on the next day was served upon the defendants, notifying them that under the terms and conditions of the note and mortgage he had elected to declare the entire sum, principal and interest, due. The defendant Christina Lenz denies the service of this notice upon her, but it is immaterial whether or not such service was had, as the note provides for forfeiture without notice. She says that on the 15th day of July, and prior to the service of notice of election, she went personally to the office of the plaintiff with $108, being the amount of interest due, and intended to pay the interest to the plaintiff, who said he would not talk to her but wanted to talk to her husband, as she did not speak English. She did not show him the money, but says she told him she was going to pay the interest. These facts were denied by the plaintiff, and this became a question of fact which was presented to the trial court for determination. On the 20th day of July Joseph Lenz went to the office of the plaintiff and paid him the coupon interest note, but VanVlissingen, after payment but before delivering this interest note to Joseph Lenz, wrote thereon in red ink as follows:
"Paid July 20, 1896, upon the understanding that principal remains past due, as per notice. PETER VANVLISSINGEN."
Lenz testified he did not look at this indorsement until he had left the office, but supposed the note was simply marked paid. This indorsement was excluded by the court and not permitted to go to the jury, the plaintiff himself having testified that he did not make it until after he had received the money and the note was paid. On the 11th of August following, this action in ejectment was brought, to which the defendants pleaded the general issue.
Upon the trial an affidavit was filed showing that the plaintiff claimed title through a common source with the defendants. "The defense relied upon was, that acceptance of payment of the interest note on the 20th of July, before any suit had been brought, was a waiver of notice.
The case was tried before a jury, who returned a verdict in favor of the defendants. A motion for a new trial was overruled and judgment rendered upon the verdict, whereupon this writ of error was sued out.
The principal question for the consideration of this court upon this record is, whether the legal holder or owner of a note and trust deed which contains a provision permitting him to declare the entire sum due upon default in the payment of interest, having elected so to do, can afterwards waive such election and permit the note and trust deed to continue in force. The trial court instructed the jury upon the theory that even though plaintiff had once elected to declare the entire sum due,