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10:30, all members being present, and after giving all parties present an opportunity to be heard, and after all had been heard, the resolution was adopted adhering to the proposed scheme for the improvement as originally provided by the resolution of said board. It is contended by appellants that this resolution should have been passed without any recess or adjournment.
Where the law requires public records of proceedings to be kept, as it requires in this case the records of the board of local improvements to be kept, such records can not be contradicted, added to nor supplemented by parol evidence. (People v. Madison County, 125 Ill. 334; Dunn v. Youmans, 224 id. 34.) Even if this testimony as to the recess or adjournment were held admissible, such recess or adjournment, after the consideration of the objections of the property owners and before the resolution is passed, would not defeat the ordinance. The object of the public hearing is to give every property owner who desires, a reasonable opportunity of discussing the essential features of the improvement and making objections or suggestions with reference thereto, so that the board of local improvements may have the fullest opportunity of explaining the character of the improvement, and deciding from all that is heard whether it should be carried forward as proposed by the original resolution. Substantial compliance with the statute in this regard is all that is required. (McChesney v. City of Chicago, 201 Ill. 344.) The argument that the board of local improvements must pass the resolution the moment it has ceased consideration of any improvement at the public hearing is without merit.
Appellants earnestly insist that the ordinance was unnecessary, unreasonable and oppressive, because the street in question already had a fairly good pavement. Several of the objectors testified that the street at certain points. was in such condition that vehicles with any sort of load could use the center of the roadway without difficulty. We
think, however, the evidence tends strongly to show that a large portion of the street was not in a good condition for travel; that the street, for the entire length of the improvement, had never been improved with reference to any system nor curbing put in with any fixed grade; that some parts had been constructed with macadam, which was now worn out; that an attempt had been made years before to improve other parts by slag obtained from a nail mill; that the eastern part of the improvement was good for traffic only in dry seasons; that parts of it in wet seasons were so muddy as to be impassable and unfit for any traffic. Courts cannot interfere with the action of a city council and declare an ordinance for local improvement void, as unreasonable, unless the evidence clearly shows that the ordinance is arbitrary, unjust and oppressive. (City of Belleville v. Pfingsten, 225 Ill. 293, and cases cited.) Such is not the case here.
Appellants further contend that the public benefits assessed were out of proportion with the assessment levied against private property. That question is not subject to review here on appeal or writ of error. City of Peoria v. Smith, 232 Ill. 561, and cases cited.
Appellants further contend that the assessment of benefits was made on a front-foot basis and not according to benefits. We think the record does not sustain this objection. While a special assessment made on a frontage basis, merely, without regard to benefits, would be invalid, the law does not preclude the commissioner taking into consideration foot-frontage of the various lots as an element in fixing the amount of the assessment. City of Nokomis v. Zepp, 246 Ill. 159, and cases cited.
Appellants further contend that the proof in the record shows that certain property was assessed more than it was benefited. The test in all special assessment proceedings is that the assessment should not exceed the special benefit to the property. (City of Nokomis v. Zepp, supra.)
After a review of the evidence we are disposed to hold that none of the property was assessed by the judgment more than it was benefited.
We find no reversible error in the record. The judgment of the circuit court will therefore be affirmed.
C. E. FREET, Appellant, vs. THE AMERICAN ELECTRICAL
Opinion filed February 20, 1913.
I. CONTRACTS—when question whether agent was authorized to make contracts is one of fact. Where the defense to a suit for goods delivered under a contract is that the contract was violated by the vendor in allowing his representative, after appointing the vendee State agent for the goods, to make contracts in certain large cities of the State appointing other dealers agents for their locality, the question whether such representative made the contracts with the knowledge and authority of the vendor is one of fact for the jury, if there is any evidence tending to show such knowledge and authority.
2. SAME what tends to show that contracts by special representative were authorized. The fact that a person acting as agent for a manufacturer was sent to Illinois with blank contracts for appointing agents and that a contract upon one of such blanks appointing a corporation State agent was admittedly authorized, tends to show that other contracts made by him upon such blanks with different dealers throughout the State were also authorized, where it is shown that the manufacturer knew that he was making such contracts.
3. SAME when a provision for buying goods is not severable from provision appointing vendee State agent. Where the principal object of a contract is to appoint a corporation State agent for a manufacturer of fire extinguishers, a provision by which the corporation agrees to take and pay for a certain number of the extinguishers is not such a severable provision as binds the corporation to pay for the extinguishers notwithstanding there was a breach of the provisions concerning its appointment as State agent.
4. SAME-what constitutes a breach of State agency contract. Where a contract appoints a corporation State agent for a manu
facturer of fire extinguishers, subsequent contracts, made with the knowledge of the manufacturer, with dealers in certain large cities of the State appointing them as agents in their respective localities, and requiring them, after their first order, to buy from the manufacturer and deal with him directly, constitute a breach of the State agency contract.
5. SAME when there is an implied agreement that the orders turned in shall be bona fide sales. Where a manufacturer agrees, in his contract appointing a corporation his State agent, to canvass the State three times a year and turn in all orders to the corporation, to be filled from its stock, there is an implied agreement that the orders turned in shall be based upon bona fide sales, and there is a breach of such agreement where the manufacturer, with knowledge that the orders turned in by his representative were fraudulent, seeks to hold the corporation liable therefor.
6. EVIDENCE-when admission by party to third person is admissible. It is proper to prove a voluntary admission by a party to a suit against his interest, even though made to a person who is not a party to the suit.
7. PRACTICE-Appellate Court's construction of contract is not binding upon the Supreme Court. The question whether the construction given a written contract upon the first appeal to the Appellate Court is binding upon that court upon a second appeal need not be considered by the Supreme Court when reviewing the judgment upon the second appeal, as such construction is not, in any view, binding upon the Supreme Court.
APPEAL from the Branch "B" Appellate Court for the First District;-heard in that court on appeal from the Municipal Court of Chicago; the Hon. MCKENZIE Cleland, Judge, presiding.
HOYNE, O'CONNOR & IRWIN, (CARL J. APPELL, of counsel,) for appellant.
HARRY P. SIMONTON, for appellee.
Mr. JUSTICE COOKE delivered the opinion of the court: Appellant, C. E. Freet, brought suit in the municipal court of Chicago against appellee, the American Electrical Supply Company, to recover the contract price of fire extinguishers alleged to have been sold and delivered by ap
pellant to appellee. A trial before a jury resulted in a verdict in favor of defendant, upon which the court rendered judgment against the plaintiff for costs. The plaintiff prosecuted an appeal to the Appellate Court for the First District. The cause was assigned to Branch “B” of that court and the judgment was there affirmed. A certificate of importance having been granted, appellant has prosecuted a further appeal to this court.
Appellant is, and was on March 19, 1907, engaged in the business of manufacturing fire extinguishers in New York City. He conducted this business under the trade name of the Fyricide Manufacturing Company. Appellee is, and was on said date, engaged in business in the city of Chicago. On said 19th day of March one George E. Weiler, who was in appellant's employ, called upon appellee at its place of business in Chicago and negotiated and concluded a contract between appellant and appellee, the material provisions of which are as follows: (1) Appellant engages appellee as general sales agent for the Fyricide extinguisher in the city and vicinity of Chicago and the entire State of Illinois for a period of twelve months, and agrees to pay appellee a salary of $125 per month, dating from payment by it for first shipment of extinguishers; (2) appellant agrees to canvass, at his expense, the territory aforesaid three times a year, and to turn over to appellee all orders on hand at the time of signing the contract and all orders received during the term of the contract within the territory above named, said orders to be filled from appellee's stock; (3) appellant agrees to sell and deliver $1000 worth of fire extinguishers, f. o. b. destination, terms net cash on delivery, and to furnish such additional stock of extinguishers as appellee's trade may require from time to time, without further expense to appellee; (4) at the expiration of the time and upon the fulfillment of the contract by appellee, appellant agrees to re-purchase from appellee all extinguishers which it has on