Standard Oil Co. v. Estate of Holmes

Mr. Justice Adams delivered the opinion of the court. The validity of the special assessment levied against the premises conveyed by Charlotte E. Holmes and her husband to Alfred D. Eddy, and by Eddy to the appellant, is not questioned. Counsel for appellee objects that appellant is a foreign corporation, and can not maintain the suit until it has complied with the provisions of an act approved May 26, 1897, in relation to foreign corporations doing business in this State, citing section three of the act. Brad-well’s Laws of Ill., 1897, p. 133. It does not appear from the record that this objection was made in the trial court, and can not be made here for .the first time. The same counsel objects that it does not appear from the agreed statement of facts, that the streets ordered opened by the ordinance of July 14, 1893, is the same street ordered open by the ordinance of June 5, 1891, and referred to in the conditions of the bond. This objection was made by counsel for appellee in the trial court, but no ruling on the objection was made by the court. The objection can not be sustained. It is recited in the conditional part of the bond that “ The city of Chicago has commenced condemnation proceedings for the opening of a street through said lot seven (7) in School Trustees’ subdivision of section number sixteen (16) aforesaid.-” It is recited in the agreed statement of facts, “ That on June .5,1891, a condemnation proceeding was commenced in the Circuit Court of Cook County, Illinois (being Docket Ho. 92,008), pursuant -toan ordinance theretofore enacted by the city council of Chicago, for the purpose of opening Armour avenue from Fifty-eighth street to Fifty-ninth street in said city, the same being the condemnation proceedings mentioned in the said bond executed by said Charlotte E. Holmes and John Holmes, on the. said 31st day of July, 1891, as having been then commenced.” * * * “ That afterward, to wit, on the 14th day of July, 1893, another ordinance was passed by the said council of the city of Chicago, ordering said Armour avenue to be opened from Fifty-eighth street to Fifty-ninth street in front of said real estate, and on October 11, 1893, a petition for the ascertainment of the cost of opening said Armour avenue from Fifty-eighth to Fifty-ninth streets was filed in the Circuit Court of Cook County, Illinois (being docket Ho. 121,760), pursuant to said ordinance.” A plat attached to the stipulation of facts, referred to in the stipulation and made a part of it, shows that Armour avenue, as ordered opened by the ordinance of July 14, 1893, is opened or extended through lot seven, and it appears from the stipulation of facts that the sum of $1,060 was awarded to appellant in the condemnation proceeding instituted in pursuance of the ordinance of July 14, 1892, as compensation for the opening of Armour avenue. Counsel for appellee, in his argument, substantially admits that this compensation was for part of appellant’s premises taken for the street, saying : “ This is an attempt to make this estate pay the claimant for its own property taken for a street.” If part of appellant’s property in lot seven was so taken, then the street was opened through lot seven. There is absolutely nothing in the objection. But appellee’s counsel contend that the liability of the obligors in the bond to pay an assessment for the opening of the street, is limited by the conditions of the bond to an assessment made in the condemnation proceeding referred to in the conditions, and pending at the time of the execution of the bond, and that those proceedings having been dismissed, by reason of the repeal of the ordinance authorizing them, there is no liability. In support of this contention counsel cite: In re Estate of Charlotte E. Holmes, 79 Ill. App. 59, affirmed 179 Ill. 275. In that case the condition of the bond was essentially different from the condition of the bond in the present case. Consequently the decision in that case is inapplicable to the present case. The condition of the bond in question is to pay “ all the assessments, liens, judgments and demands of every kind and nature that may, at any time, be levied or come against said premises so as aforesaid purchased by said Alfred D. Eddy, by reason of the opening of said proposed street,” etc. Language more appropriate to include any and all assessments for the opening of the proposed street, whether pending at the date of the execution of the bond or thereafter to be levied, can not easily be conceived. The language is so plain that no room is left for construction. In the agreed statement of facts it is admitted that Charlotte E. Holmes and her husband had notice of the assessment and failed to pay it, and that appellant “ was compelled to pay and did pay the said special' assessment.” It is further admitted that in the proceedings in which the assessment was levied, the court had jurisdiction of the person of Charlotte E. Holmes and of all owners of the premises in question, so that Charlotte E. Holmes and her •husband were bound to know when the assessment was payable. That it was payable before November 22, 1895, when appellant paid it, is evidenced by the fact, admitted by the stipulation, that appellant made payment to the county collector, which could only be after the premises had been returned to him as delinquent by the city collector. 1 S. & C.’s Stat., C. 24, par. 151-156. Under these circumstances appellee’s counsel claims that the special assessment which the obligors undertook to pay being largely in excess- of the penalty of the bond, appellant is entitled to judgment for the penalty, with interest thereon from November 22, 1895, the date of payment by appellant. This claim is supported by the preponderance of American authority. Lyon v. Clark, 8 N. Y. 148; Brainard v. Jones, 18 Ib. (4 Smith) 35; Robbins v. Long, 16 N. J. Eq. 59; Gloucester City v. Eschbach, 54 N. J. L. 150; Wyman v. Robinson, 73 Me. 384; Burchfield v. Haffey, 34 Kan. 42; Sedgwick on Measure of Damages, 8th Ed., Vol. 2, Secs. 678, 679; 2 Sutherland on Damages, pp. 14-15, and authorities cited p. 15, n. 1. In Lyon v. Clark, supra, the bond was to,indemnify the obligees against the payment of money, and the court say : “The apparent conflict in the cases, on the question whether a plaintiff can recover, in debt on a penal bond, a sum beyond the penalty,'grows out of confounding actions on bonds for the performance of covenants, properly so called, with actions on bonds for the recovery of money only. In the former case, the recovery is, in general if not always, limited by the penalty, and in the latter it is not,” etc. Commenting on a like bond, the court, in Brainard v. Jones, supra, say: “ The rule has often been laid down in general terms, that sureties are not liable beyond the penalty of the bond in which their obligation is contained. But on a careful examination of the reason and justice of the rule, it will be found inapplicable to a question of interest accruing after they are in default for not paying according to the condition of the bond. There is a plain distinction which has sometimes been lost sight of, and consequently some confusion and contradiction will be found in the cases on the subject. Whether a surety, at the time of his default, can be held beyond the penalty of his bond, is a question of the interpretation and effect of his contract. Whether interest can be computed after his default, when the effect will be thus to increase his liability, is a question of compensation for the breach of his contract.” The defendants in the case were sureties, the damages exceeded the penalty, and the court held the plaintiff was entitled to recover the penalty with interest thereon from the time of the breach. In Robbins v. Long, supra, which was a bill in equity, a recovery was had for the penalty of a bond, with interest. The court say: “ The American authorities very generally, if not uniformly, maintain the doctrine that at law, in an act-ion on a penal bond, interest may be recovered in the form of damages to an amount exceeding the penalty of the bond,” citing numerous cases. In Hoxsey v. Patterson, 59 Ill. 522, the penalty of the bond was $3,602.55, and the condition was for the payment of that sum to the obligees, one-third in six, and the balance in twelve months from the date of the bond. The court held that the plaintiffs were entitled to recover the penalty with interest thereon from the time of breach. The difference between that case and the present is, that in the former the condition was to pay up an ascertained amount, while in the latter it is to pay an amount to be thereafter ascertained. This difference does not, as we think, distinguish the cases in principle. Section 20 of the practice act relates only to penal bonds, conditioned for the performance of covenants, and has no application to bonds, like the one in question, conditioned for the payment of money. There is a clear distinction between the two classes of bonds. Sutherland on Damages, Yol. 2,p. 14; Sedgwick on Damages, Yol. 2, Sec. 679; Lyon v. Clark, 8. N. Y. 152. The judgment will be reversed, with directions to the Circuit Court to enter judgment in favor of appellant for the sum of $1,000, with interest thereon at the rate of five per cent per annum from November 22, 1895, till the .entry of judgment, to be paid in due course of administration as a claim in class seventh. Eeversed and remanded with directions.