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yet if, at the time he accepted the amount of interest due on the coupon note, he waived any forfeiture of the note and mortgage, he could not recover. It is contended by plaintiff in error that such instructions were erroneous, for the reason that the plaintiff having once determined to elect, and having elected, it was irrevocable on his part, and that after such election the note and mortgage could only be revived by a new contract, and that it was not possible, as a matter of law, for plaintiff to waive his election. Such is not the law, and the instructions given by the trial court, to the effect that if the jury believed, from the evidence, that at the time the plaintiff accepted the amount due on the coupon note he waived any forfeiture of the mortgage, then the jury should find the defendants not guilty, (and other instructions in substance the same,) were proper instructions.

It is true that under some circumstances the law will not permit a party having once elected, to change such election, but will hold it irrevocable. This rule is generally applicable in cases where the opposite party would be in some way prejudiced by permitting him who has the right to elect, to revoke such election. An insurance company which has the right, under its policy of insurance, to elect within a time specified whether it will rebuild the premises destroyed or pay its policy in cash, having made its election thereunder will not be permitted to revoke it and adopt the other method. (Platt v. Ætna Ins. Co. 153 Ill. 113.) The reason of this rule is apparent; the other party in interest, the moment the election is made, has the right to act thereon and to consider that such election will be adhered to, and his rights might in many instances be unduly prejudiced by permitting a revocation of such election. A vendor who discovers fraud perpetrated upon him by the purchase of personal property has, on the discovery of the fraud, an election of remedies: either to disaffirm the sale and recover the property, or to sue for the price; but having once manifested his election he cannot thereafter revoke it and maintain the other remedy. Moller v. Tuska, 87 N. Y. 166.

There are other instances in the law where a party who has the right of election, and has once elected, will not be permitted to revoke it. In a case, however, where a mortgagee or trustee, for his own exclusive benefit and convenience, has taken a contract which assures to him the right, upon failure to make payment of interest, to pay taxes, to keep up insurance or to perform other conditions and covenants in a mortgage or trust deed, to declare a forfeiture of such conditions and hold the entire sum to be due and payable, there are none of these conditions which he has not a perfect right to waive; nor can it be said that having elected to declare the entire sum due and payable on account of any default, he may not, upon such default having been removed, or for any other reason satisfactory to himself, waive his election and permit the contract of indebtedness to continue under its original terms. Such being the law, therefore, it became in this case solely a question of fact for the jury as to whether or not plaintiff in error, upon the acceptance by him of the interest due, waived his notice of election and permitted the indebtedness to continue in force under its original terms. The evidence as to what occurred at the time of the payment of this interest to the plaintiff in error is contradictory. A jury has passed upon this question of fact and found adversely to plaintiff in error, and we cannot say they were mistaken. The mere acceptance of interest after the notice of forfeiture would not, of itself, revive the contract, as one may accept payment of part of his indebtedness without thereby waiving his right to receive the balance; but where one accepts the entire amount as due according to the contract, it becomes a question of fact whether it was intended to waive such forfeiture.

It is urged the trial court erred in excluding from the jury the indorsement made in red ink on the interest cou

pon note.

It was admitted by plaintiff in error himself that the memorandum was not made until after he had received payment of this interest. There were also disputed questions of fact as to what was said by and between the parties immediately at the time the payment was made. This memorandum so endorsed was excluded by the trial court upon the apparent theory that anything done by plaintiff in error after payment could not have the effect to prejudice the rights of defendants in error, and also upon the further theory that Christina Lenz was the actual owner of the premises in question, and that Joseph Lenz, her husband, who made the payment of interest, was acting as her agent only for that purpose and had no authority to make or enter into a new contract. The latter is not material, the jury having found, as a question of fact, that immediately at the time the pay. ment of interest was made plaintiff in error accepted and waived his notice of forfeiture, and he could not a few moments afterwards declare another forfeiture, for the reason there was no additional default under the mortgage and trust deed which gave him such right. There was no error in the trial court excluding the memorandum in question.

This record being carefully considered in the light of the questions of fact, which are determined by the verdict of the jury and the judgment of the trial court, and a consideration of the questions of law involved presenting no ground for reversal, the judgment of the Superior Court of Cook county is affirmed.

Judgment affirmed.

CARTER and CARTWRIGHT, JJ.: We think that the court erred in excluding the endorsement made at the time of the transaction when the money was paid and before the surrender of the note.



1171 1701 100a 1331


Opinion filed December 22, 1897— Rehearing denied February 15, 1898.

1. EMINENT DOMAIN-interference with perpetual easement invades a property right. A perpetual easement of travel, light and air in a private alley is a property right, which is invaded by the erection by an elevated railroad company of pillars extending into the alley the distance of one foot.

2. SAME-land lying under projecting superstructure of elevated road is aken.” Land lying underneath the projecting superstructure of an elevated railroad is "taken” to the extent of the projection.

3. DAMAGES-land taken" must be paid for without considering benefits. Where land taken for public use is of such shape and size as to have a market value such value must control the question of damages, and benefits cannot be taken into consideration.

4. SAMEthe rule forbidding consideration of benefits does not apply to land alone. The rule that the damage to land actually taken can not be reduced by considering benefits applies to property, rights in property and uses of property of which the owner will be actually deprived, or the use, benefit or enjoyment of which will be directly and physically interfered with.

5. SAME-measure of compensation for property not taken. The compensation which an owner of property adjoining an alley, in which is constructed an elevated railroad, is entitled to recover, is measured by the depreciation in value of the property caused by the construction and operation of the railroad.

6. SAME-effect of improvement must be considered in determining damage. In determining the amount of compensation to be awarded for property damaged by the construction and operation of an elevated railroad, the effect of the improvement upon the particular property in question must be considered.

7. SAME-effect of improvement must be considered as a whole. The effect of an improvement upon property not taken should be considered as a whole, and a proposition of law which selects a single element and makes the damage to the property dependent upon a deprivation of that element alone, should be refused.

8. SAME-damage to property not taken is not determined by principle of set-off. Damage to property not taken is not to be determined by any principle of set-off, but only by finding, from the evidence, whether its value is diminished by reason of the improvement.

9. APPEALS AND ERRORS-when modification of correct proposition of law is harmless error. An improper modification of a correct propo


sition of law is harmless error, where the modification amounts merely to a holding that if the proposition was understood according to its terms it was correct, but not otherwise.

10. SAME-one cannot complain of error in his own favor. One can not complain of a modification of his proposition of law where it should not have been given either with or without modification.

11. SAME-award of damages not disturbed unless clearly against the eridence. The amount of damages awarded in condemnation by the jury, or by the court where a jury is waived, will not be disturbed, on appeal, unless clearly against the weight of evidence.

CRAIG, WILKIN and CARTWRIGHT, JJ., dissenting.


APPEAL from the Circuit Court of Cook county; the Hon. FRANK BAKER, Judge, presiding.

This was a proceeding in the circuit court of Cook county, brought by the Metropolitan West Side Elevated Railroad Company, against Warren Springer, to condemn certain premises to be used in the construction and operation of its road in the city of Chicago. The defendant, Springer, filed a cross-petition to recover damages sustained to adjacent premises not taken but damaged, and on a trial before the court witliout a jury he recovered a judgment for the property taken and damaged, $61,000. To reverse this judgment the petitioner appealed.

The premises sought to be condemned are described in the petition as the north 7 feet of the north 15 feet of lots 9 and 10, in block 52, school section addition to Chicago, in Cook county, Illinois, subject to the easements conveyed to the grantee, his heirs and assigns, in a certain warranty deed from Warren Springer, as grantor, to Horace A. Hurlbut, as grantee, dated December 1, 1888, and filed for record in the recorder's office of Cook county on the 4th day of February, 1889; and the south 7 feet of the north 15 feet of said lots 9 and 10 to the extent of the easements reserved to the grantor in and by the warranty deed aforesaid.

By a cross-petition filed July 5, 1894, Springer set up his ownership in the premises north of and adjacent to

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