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to the plaintiff if the question of credibility had been fairly submitted to them. We cannot say that they would not have done so, and as the defendant did not have a fair trial the judgment must be reversed.
The judgment is reversed and the cause is remanded.
THE AMERICAN TRUST AND SAVINGS BANK, Defendant in Error, vs. THE LANTRY CONTRACTING COMPANY, Plaintiff in Error.
Opinion filed February 20, 1913.
1. APPEALS AND ERRORS-what findings by Appellate Court are conclusions of law. Findings by the Appellate Court, in its judgment reversing a judgment for the defendant in a suit on a bill of exchange, that the defendant was indebted to the plaintiff in a certain sum for principal and interest on the bill of exchange, and that the compromise agreement under which the bill of exchange was drawn constituted a good and sufficient consideration for the bill, are conclusions of law.
2. SAME when Appellate Court must remand upon reversal. Where an action to recover on a bill of exchange is defended upon the ground of fraud and a judgment is rendered in favor of the defendant, the Appellate Court, upon finding as a fact that there was no fraud, may reverse the judgment and remand the cause, but it should not enter final judgment for the plaintiff, as such course deprives the defendant of its right to a jury trial on the question of fraud.
WRIT OF ERROR to the Branch "C" Appellate Court for the First District;-heard in that court on writ of error to the Municipal Court of Chicago; the Hon. CHARLES N. GOODNOW, Judge, presiding.
HELMER, MOULTON, WHITMAN & WHITMAN, for plaintiff in error.
FRANK T. MURRAY, and BITHER, GOFF & FRANCIS, (WILLIAM A. BITHER, of counsel,) for defendant in error.
Mr. CHIEF JUSTICE DUNN delivered the opinion of the
By a writ of certiorari there has been brought up for review the record of the Appellate Court for the First District, which court reversed a judgment of the municipal court of Chicago in favor of the defendant, the Lantry Contracting Company, and rendered judgment for plaintiff, the American Trust and Savings Bank, trustee in bankruptcy of the Contractors' Supply and Equipment Company, for $4517.53 and costs.
The suit was an attachment brought by plaintiff against defendant as drawer of a bill of exchange for $3817.69, and was defended on the ground that the debt evidenced by the bill had been paid before the bill was drawn and that the payee fraudulently concealed such payment and failed to disclose it to the drawer. There was also a plea of setoff. The Appellate Court in its judgment recited a special finding of facts, as follows: "We find as ultimate facts that appellee is indebted to appellant in the sum of $4517.53 for principal and interest upon the bill of exchange sued on; that the Atchison, Topeka and Santa Fe Railway Company, as garnishee herein, is indebted to appellee in the sum of $6000; that appellant was not guilty of any fraud whereby appellee was induced to enter into the compromise agreement wherein the bill of exchange sued on was given by appellee, and that said compromise agreement constitutes a good and sufficient consideration for said bill of exchange." The first finding and the last are conclusions of law and the finding in regard to the garnishee is immaterial to the merits.
The question whether the defendant in error was guilty of any fraud whereby the plaintiff in error was induced to enter into the compromise agreement wherein the bill of exchange sued on was given by the plaintiff in error was one of fact, on which the parties were entitled to a trial by jury. The plaintiff in error had a right to contest before
a jury its liability on the bill of exchange on the ground that it was fraudulently procured. By the judgment of the Appellate Court the plaintiff in error was deprived of this right. The recital of facts justified the reversal of the judgment but not the final determination of the issues and the entry of judgment against the plaintiff in error. City of Spring Valley v. Spring Valley Coal Co. 173 Ill. 497.
The judgment of the Appellate Court for $4517.53 and costs is reversed and the cause is remanded to that court, with directions to remand it to the municipal court for another trial.
Reversed and remanded, with directions.
THE CITY OF GENESEO, Appellee, vs. JULIUS SCHULTZ et al. Appellants.
Opinion filed February 20, 1913.
1. SPECIAL ASSESSMENTS-new assessment may be levied if the original ordinance is merely defective. If the ordinance under which a special assessment or special tax is levied is merely defective and not void a new assessment or tax may be levied to pay for the work.
2. SAME supplemental ordinance need not give as detailed a description of work as original ordinance. After the work on a local improvement has been completed a supplemental ordinance for a new assessment against certain property need not contain as detailed a description of the work as is required in the original ordinance.
3. SAME slight changes in improvement in course of construction do not defeat assessment. Departures from the ordinance in the construction of a local improvement do not defeat the assessment, where the changes are not substantial and are not shown to have made the improvement less valuable to all the property than it would have been had no changes been made.
4. SAME-what is not a valid objection to the assessment. The fact that "Missouri chat or blue-stone" was used in the top coat of a pavement instead of "Missouri limestone screenings," as specified in the ordinance, does not furnish a valid objection to the assessment, where the proof shows that the substitution made the top coat better and more durable.
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5. SAME-Supplemental assessment need not be divided into installments, as original was. It is not a valid objection to a supplemental assessment for completed work that said assessment is to be collected in one installment whereas the original assessment was divided into several installments.
6. SAME matter of qualification of witnesses upon subject of benefits is largely within discretion of court. The matter of the qualification of witnesses to testify upon the subject of benefits in a special assessment proceeding is largely within the discretion of the trial court, and it is not necessarily an abuse of such discretion to permit a bank cashier to testify, even though he has never bought or sold any property on the particular street, where he testifies that he thinks he knows the fair value of property along such street.
7. SAME what is not a proper method of proving the benefits. Where a certain piece of property has been sold between the time of the original paving assessment and the supplemental assessment for the completed work, the benefits to such piece of property can not be proved by a statement of the purchaser to seller that he did not think the improvement benefited the property more than $150.
APPEAL from the Circuit Court of Henry county; the Hon. EMERY C. GRAVES, Judge, presiding.
HARRY E. BROWN, and BARTLETT S. GRAY, for appel
HENRY WATERMAN, for appellee.
Mr. JUSTICE CARTER delivered the opinion of the court:
This is an appeal from the judgment of the circuit court of Henry county, on a change of venue from the county court, confirming, after a jury trial, a special tax, under a supplemental ordinance, on the property of appellants for paving with brick Exchange street in front of said property, in the city of Geneseo, in said county.
A judgment entered in the county court of Henry county against this property, under the original ordinance, for making this improvement was reversed in this court in City of Geneseo v. Brown, 250 Ill. 165, because the de
scription of the drains and catch-basins was so uncertain and indefinite as to render that portion of the ordinance invalid. It is most earnestly insisted that this court in that case held the ordinance void, and that therefore the supplemental assessment to pay for the work cannot be levied under the Local Improvement act. In repeated decisions this court has held that if an ordinance under which an improvement is made is not a nullity but is merely defective. or insufficient a new assessment can be levied. (City of Lincoln v. Harts, 256 Ill. 253, and cases there cited.) It is clear, not only from the wording of the opinion in the former case but from the character of the defect in that ordinance pointed out, that it was not intended to hold the original ordinance void but merely defective in its description as to that part of the work. That ordinance furnishes a proper basis for this proceeding.
It is next argued that the ordinance in this case does not sufficiently describe the improvement. Pending the appeal in the former case the city authorities chose to complete the improvement in accordance with the provisions of the Local Improvement act. The supplemental ordinance was filed in the county court after the work was completed and accepted, as provided by that act. This supplemental ordinance gave a brief history of the former proceedings, stating that the original ordinance had been held insufficient and defective and that said work had been done in good faith in compliance with the terms of said ordinance, and that a special tax should be levied against the lots and parcels of land as to which judgment of confirmation had been reversed by this court. After work has been completed by the public authorities a supplemental ordinance need not give as detailed a description of the completed improvement as is required in the original ordinance. (Markley v. City of Chicago, 190 Ill. 276.) The description of the improvement in this supplemental ordinance came within the rules laid down by this court for such proceed