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(161 N.E.)

advisory board. That pursuant to the duties of appellee in carrying out said contract at the special instance and request of appellant, all of which was provided for by the appropriation of the advisory board, appellee paid out for and on behalf of said township, dur. ing the years 1921, 1922, and 1923, for incidental expenses, a total of $177.70. That appellant paid appellee on said contract $1,250, the last payment of which was made on September 25, 1922. That there is a balance due him of $577.70, which has been due from Sep tember 1922, and that there has been an unreasonable delay in the payment of the said balance due appellee, and he asks for interest thereon.

[1, 2] The Advisory Board Act, being section 12062 et seq., Burns' 1926, is a remedial statute, and it is a matter of common knowledge that its enactment was for the purpose of correcting certain abuses which were prevalent at and before the time of its passage in the expenditure of public funds by township trustees, and in order that such abuses might be corrected, and because of the remedial character of the act the courts have always insisted upon a strict enforcement of its provisions. In Ohio Farmers' Ins. Co. v. Vogel, 166 Ind. 239, 76 N. E. 977, 3 L. R. A. (N. S.) 966, 117 Am. St. Rep. 382, 9 Ann. Cas. 91, it was held that the court erred in overruling the demurrer to the complaint because it did not allege therein that there were funds available to build a schoolhouse, the court saying that unless there were such funds the advisory board could not make an appropri

ation thereof. In State ex rel. v. John, 170 Ind. 233, 84 N. E. 1, it was held that

"When the alleged duty is in reference to the appropriation or payment of money by a public officer or body, facts must be averred showing that there is money which could be legally appropriated for that purpose."

Other authorities to the same effect are: State ex rel. v. Etcheson, 178 Ind. 592, 597, 99 N. E. 996; State ex rel. v. Parish, 180 Ind. 63, 70, 99 N. E. 977; Mitcheltree School Tp. v. Baker, 53 Ind. App. 472, 475, 101 N. E. 1037; Railroad School Tp. v. First State Bank, 73 Ind. App. 358, 365, 126 N. E. 342. Section 11 of the act, being section 12075, Burns' 1926, provides that all contracts made in violation of the act shall be null and void. [3, 4] In the light of these authorities, let us examine the complaint, that we may determine as to whether it is good as against appellant's demurrer. It is averred therein that on March 5, and March 12, and June 4, 1921, the advisory board at a special session declared an emergency and made an appropriation for the payment of appellee and others. It is to be observed that there is no averment in the complaint that there were funds available out of which appropriations could be paid. On the contrary, it is averred that thereafter the advisory board authorized

an issue of bonds in the sum of $55,000 for the building of the schoolhouse, attorney's fees, and other incidental expenses. It is apparent from this averment that at the time of the appropriation for the payment of attorney's fees to appellee, there were no funds available with which to pay such fees and no provision made therefor. True, it is averred in the complaint that the employment of appellee was to be provided for in a contract to be thereafter entered into in writing, after the advisory board had made provision for funds with which to pay appellee. But it is a well-established rule that where there is a discrepancy between the averments of the pleading and with the exhibit upon which it is based, the exhibit must control. In this case, the contract that is the basis of appellant's action is an exhibit to the complaint and made a part of it. It is dated March 5, 1921, and, in the absence of any averment that it was executed at a later date, the date of its execution as appears in the contract must prevail. If, as a fact, it was executed

at some later date and after there were funds available for payment, but was dated March 5, 1921, for the purpose of covering services theretofore performed, there could be no recovery for such previous services, the amount of which we are wholly unable to determine from the averments of the complaint. If it may be said that it is not essential to the validity of an appropriation that funds to

meet the same were at the time in the treasury, but that the law could be satisfied if

provisions were made therefor, still in this case the appropriation could not be valid, for at the time that the advisory board attempted to make the same as averred, there was not even a provision made to take care of it. If no valid appropriation was made on March 5, 1921, when the contract, as appears by the complaint, was made, it is clear that it could not be made afterward. State ex rel. v. Parish, 180 Ind. 63, 99 N. E. 977. We are constrained to hold that the court erred in overruling appellant's demurrer to the complaint.

[5] But if the complaint had been' sufficient to withstand appellant's demurrer, still, under the undisputed evidence in this case, appellee cannot recover. It was not sufficient that the advisory board merely authorized the trustee to employ appellee as an attorney. Under section 12068, Burns' 1926, it is provided that the debt be created by the advisory board, and, while we are not ready to say that this means that the contract itself must be signed by each member of the board, the contract, for the amount specified therein, must have been approved by the advisory board and made a part of its record. But it appears by the undisputed evidence that the contract was never presented to the board, that its members had no knowledge of its terms, that it was contrary to what the advisory board had authorized, and that it was

never made a part of the record of the proceedings of the advisory board. Section 12062, supra, provides that the secretary of the advisory board shall record the proceedings thereof at any meeting, in full, and that such minutes shall be signed before the board adjourns.

The only allegation in the complaint with reference to the record of the contract and the proceedings authorizing it is that "the township trustee, having full authority so to do by order of the advisory board of record, entered into a written contract." While this averment of the complaint may have been sufficient, as to the record of the contract, to make it good as against the demurrer, it clearly appears by the evidence that the contract was not made a part of the record. As we understand, the purpose of the Legislature in making the requirement that the proceedings of the board, in full, be kept in a record provided for that purpose, was to enable any one to ascertain what obligations had been incurred by the township, and whether they were so incurred as provided by law.

It is hardly necessary for us to say that, because of the failure to comply with the provisions of the statute as above pointed out, the contract is null and void under the mandate of section 12075, supra.

It appears by the undisputed evidence that during all of the time that the schoolhouse was being constructed, this record of the advisory board was not in the custody of the chairman of the board, but that it was in the custody of appellee, and that it so remained with him until September, 1923, when it was delivered to Mr. Goheen, who had become the trustee of appellant township as the successor to Mr. Barkley since the early part of the year 1923. Had the law with reference to the custody of this record been observed, in all probability there would have been no controversy as to whether appellee had changed the minutes of the board with reference to the employment of an attorney, by interlineations and additions thereto.

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2. Intoxicating liquors 248-Allegation of purchase of liquor in search warrant affidavit held to warrant allegation in complaint of reasonable grounds to believe liquor was possessed and sold two days after making of affidavit.

Allegation of affidavit for search warrant that affiant purchased intoxicating liquor at described premises on certain date held sufficient basis for allegation in complaint, that he had just and reasonable grounds to believe that such liquor "is now unlawfully possessed and sold" at such premises, though date of sale was two days prior to making of affidavit. 3. Intoxicating liquors 248-Affidavit for warrant to search building occupied as garage and "blind pig" held to authorize search of dwelling room therein; "blind tiger."

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Affidavit for warrant to search "a certain one-story, frame garage building cupied as a garage and blind pig" held to authorize search of smaller room, partitioned off from rest and used as defendant's dwelling place or home, as well as part of premises used as garage; "blind pig" being synonymous with "blind tiger," which means "a place where intoxicants are sold on the sly."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Blind Tiger.]

Error to Circuit Court, Rock Island County; Charles J. Searle, Judge.

Edward Simmons was convicted of illegally possessing intoxicating liquor, and he brings error. Affirmed.

Wm. B. Schroder, of Rock Island, and Earl L. Scott, of Erie, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Benjamin S. Bell, State's Atty., of Rock Island, and Merrill F. Wehmhoff, of Springfield (Dan H. McNeal, of Rock Island, of counsel), for the People.

HEARD, C. J. Plaintiff in error, Edward Simmons, was convicted in the circuit court of Rock Island county, under the Prohibition Act (27 USCA), for illegally possessing intoxicating liquor, and he was sentenced to confinement in the county jail of that county for a term of six months. The record is now be fore this court for review upon writ of error. Plaintiff in error in his brief states:

"There are involved in this case but two questions: The one as to the sufficiency of the complaint for search warrant, under the law and Constitution, to authorize the issuance of a search warrant. The other as to the right of the officers executing the particular warrant to search not only that part of the building occupied for garage purposes, but also that part occupied and used by the defendant as a dwelling or place of residence."

We have so frequently stated the requisites of a valid complaint for a search warrant that no good purpose would be served by reiterating them here.

(161 N.E.)

[1, 2] In this case affiant, in the affidavit for the search warrant, stated:

"He was at and within the above-described premises on the 19th day of September, A. D. 1927, and there purchased one pint of intoxicating liquor commonly called 'hootch,' or 'homemade whisky,' for beverage purposes, and paid for the same the price of $1."

It is contended by plaintiff in error that this allegation was not a sufficient basis for the allegation in the complaint "that he had just and reasonable grounds to believe that intoxicating liquor, as defined in the Illinois Prohibition Act, is now unlawfully possessed and sold at and within the following described premises," as the date of the sale was two days prior to the making of the affidavit for the search warrant, and as it did not state the name of the person making such sale. It was not necessary for the affidavit to state the name of the person making the sale. In People v. Holton, 326 Ill. 481, 158 N. E. 134, it is said:

"The search warrant, it is asserted, was void because the complaint failed to show probable cause for its issuance, since it stated that Miller bought liquor from plaintiff in error on December 14, 1925, and the complaint was not verified until ten days later. No hard and fast rule concerning the time within which the complaint should be made can be established except that it should not be too remote. People v. Mushlock, 226 Mich. 600 [198 N. W. 203]; People v. Chippewa Circuit Judge, 226 [Mich.] 326 [197 N. W. 539]. It was unnecessary to state in the complaint the date on which the liquor was bought. People v. Shields, 309 Ill. 142 [140 N. E. 850]. The fact that plaintiff in error had sold intoxicating liquor to the affiant constituted just and reasonable ground to believe that he would continue to do so for a short period thereafter, and the affiant was not required to go to the home of plaintiff in error repeatedly to ascertain whether he had ceased to make such sales. The Constitution guarantees against unreasonable searches and seizures, but it does not require the making of a complaint for a search warrant immediately following a purchase of liquor at a place proposed to be searched. The lapse of time between the sale to the affiant and the issuance of the search warrant was not so long or unreasonable as to render the proceeding void."

[3] It is contended by plaintiff in error that in the affidavit the premises to be searched were particularly described as a garage, and that in the execution of the warrant the officers searched not only that part of the premises within the general description that was used as a garage, but also a smaller room in the building which was partitioned off from the rest and which was used not as a garage but as the dwelling place or home of plaintiff in error, and that it was from this latter room that all of the evidence introduced against plaintiff in error was obtained. The description of the premises contained in the search warrant is as follows:

"At and within the following described premises: A certain one-story, frame garage building located on the west side of Eleventh street between Fourth and Fifth avenues, the number of said building being 412 Eleventh street, in the city of Rock Island, in the county and state aforesaid, and which said premises are occupied as a garage and blind pig by one Edward Simmons."

The evidence shows, without substantial dispute, that the building at 412 Eleventh street was an old frame building that had in the past been used as a livery barn, a wagon shop, a blacksmith's shop, and more recently as a garage; that there was a ground floor and a loft above; that the ground floor space consisted of a large room, which at the time in question was used for the storage of automobiles and for some repair work thereon, and a small room about ten feet square in the northeast corner of the building. The ground floor originally consisted of but one room, but about fifteen years after its construction the small room had been partitioned from the rest of the barn by means of plaster board, which formed the south and west walls of the room. The only entrance to this room was through the larger room, there being no door leading to the street. There were no rugs or carpet on the floor, and the furniture consisted of a cot, a box or safe, a desk containing the cash drawer, a few chairs, a telephone, and a radio. It is referred to both by witnesses for the people and plaintiff in error as "the office." While in People v. Castree, 311 Ill. 392, 143 N. E. 112, 32 A. L. R. 357, it was held that where a defendant conducts a small store in one room of his dwelling house, a search warrant describing the premises as a storeroom, only, will not authorize search of the whole building where the defendant uses a part of the premises exclusively as a dwelling, as under the Constitution the warrant must particularly describe the place to be searched, that holding is not applicable here, as the premises here in question were described not simply as a garage, as contended by plaintiff in error, but were designated as a one-story, frame garage building, No. 412 Eleventh street, and it is stated that the premises are occupied "as a garage and blind pig." The term "blind pig" is used in common parlance for, and is synonymous with, "blind tiger" (8 Corpus Juris, 1123; Standard Dict.; State v. Tabler, 34 Ind. App. 393, 72 N. E. 1039, 107 Am. St. Rep. 256), which term has been defined as meaning "a place where intoxicants are sold on the sly" (City of Shreveport v. Maroun, 134 La. 490, 64 So. 388; Legg v. Anderson, 116 Ga. 401, 42 S. E. 720; Cannon v. Merry, 116 Ga. 291, 42 S. E. 274; Town of Ruston v. Fountain, 118 La. 53, 42 So. 644). The evidence showed that the language used in the affidavit on which the search war rant was based aptly described the premises searched.

We are of the opinion that neither of the points urged by plaintiff in error for reversal is well taken, and the judgment of the circuit court of Rock Island county is therefore affirmed.

Judgment affirmed.

(330 I11. 280)

GRANT v. SPRINGER.

MERCER v. BANK OF AMERICA.

(No. 17560.)

Supreme Court of Illinois. April 21, 1928.

Rehearing Denied June 7, 1928.

1. Specific performance 121 (4)—Evidence held to support decree for specific perform ance of land contract between complainant and partnership composed of all defendants.

In suit for specific performance of contract for sale of real estate, evidence held sufficient to support decree for complainant, as against contention that complainant's contract was not made with partnership including all defend

ants.

2. Estoppel 68(3)—In suit for specific performance of land contract, defendant held estopped to deny land was owned by partnership of which he was member by declarations In other suits.

In suit for specific performance of contract for sale of real estate, defendant held estopped to deny land was owned by partnership of which he was member by his declarations of record in different suits to which he was party, when it was convenient, if not to his interest, to speak truth, in which he admitted such ownership.

3. Specific performance 19-Only firm owning property can be compelled to perform sale contract.

Only firm owning property involved can be compelled to perform contract with respect to its sale.

4. Specific performance 1-Equity decrees specific performance only when it is inequitable to permit contracts to remain unexecuted.

Equity decrees specific performance of contract only when it is inequitable and unjust to permit them to remain unexecuted.

5. Specific performance 121(3)-Evidence held to authorize specific performance of land contract as against contention that it was' equitable to leave contract unexecuted.

In suit for specific performance of land contract, specific performance held not denied on ground that it was equitable to permit contract to remain unexecuted, in view of evidence as to dealings between parties showing defendant obstructed complainant in her attempt to gain possession of property after executing

contract.

6. Specific performance 12-Purchaser held not denied specific performance of land contract because she entered indemnifying contract to protect her from loss due to litigation between defendants.

Prospective purchaser having executed contract to purchase real estate held not denied specific performance because she entered indemnifying contract to assure her of protection of her rights in possession of property, pending litigation between defendants for partition and after its termination, and protecting her against loss whatever might be result of such litigation.

99-Purchaser's

7. Specific performance failure to pay $100 installment on land sold for $16,000 held not to preclude specific performance under facts of case.

Purchaser's failure to pay $100 installment on property sold for $16,000 held not to affect right to specific performance, in view of facts of case, since court of equity does not concern itself with trifles.

8. Specific performance 61-Specific performance held not denied for complainant's abandonment of contract, where order of dismissal for want of prosecution of suit for specific performance was vacated.

Purchaser held not denied specific performance on ground that she had abandoned contract, where suit for specific performance was dismissed for want of prosecution for her failure to file amended bill within time allowed after demurrer was sustained to first bill, but on her application order of dismissal was vacated and she was permitted to file instanter amended and supplemental bill. 9. Specific performance

105 (3)—Laches may not be successfully invoked against suit for specific performance of land contract unless delay makes it inequitable to permit complainant to assert rights (Statute of Limitations).

Laches may not be successfully invoked against suit for specific performance of land contract, where delay is for period shorter than Statute of Limitations (Smith-Hurd Rev. St. 1927, c. 83), unless delay alleged to constitute it is so great under circumstances, and relations of defendant to rights are such, that it would be inequitable to permit complainant to assert them..

Commissioners' Opinion.

Appeal from Circuit Court, Cook County; Francis S. Wilson, Judge.

Suit by Grayce L. Grant against Searle S. Barnett and others. Decree for complainant, and defendant Isador Springer appealed. After the appeal was perfected, the Bank of America, as executor of the will of Isador Springer, deceased, was substituted as appellant, and Augustus Mercer, as transferee of complainant's title and interest in property, was substituted as appellee. Affirmed.

William T. Pridmore, of Chicago, for ap pellant.

Perley H. Bishop, of Chicago, for appellee.

(161 N.E.)

CROW, C. A decree for specific perform- plainant paid the further sum of $950; that ance of a contract for the sale of real estate was rendered upon an amended and supplemental bill by the circuit court of Cook county in favor of Grayce L. Grant and against Searle S. Barnett, Paul P. Barnett, and Isador Springer. Springer alone appealed to this court. After the appeal was perfected his death was suggested, and the Bank of America, as executor of his will, was substituted as appellant. Grayce L. Grant had transferred her title and interest in the property to Augustus Mercer. That fact having been suggested upon the record in this court, he was substituted as appellee.

The Barnetts were copartners in the real estate business in Chicago. They and Isador Springer were also copartners in the real estate business. The latter relation is designated in the record as a "special copartnership." The Barnetts answered the original bill, admitting that Grayce L. Grant was entitled to specific performance of her contract to purchase the property described in the bill. Springer demurred to it, and the demurrer was sustained. After some delay she filed an amended and supplemental bill. The cause was heard on reference to the master upon that bill, answers, replications, and evidence, oral and documentary. A decree for specific performance was rendered as prayed, to reverse which this appeal is prosecuted.

The amended and supplemental bill averred that the three defendants, as copartners, were owners of the real estate in question, and that the partnership on March 25, 1920 (the date of the contract of purchase), was known as Barnett Bros.; that the title to the premises was then in Isador Springer for the benefit of the partnership, consisting of Springer and the Barnetts; that on February 26, 1920, the partnership, through Springer, sold to complainant the property for the sum of $16,000; that J. L. Clay, a real estate broker, acted as agent of the partnership and of complainant in the sale; that complainant paid

to Clay, as agent of the partnership, on said date $50 as earnest money on the contract sued upon; and that Springer, for the part

nership, accepted the money and gave to complainant a memorandum of the sale of the property as follows:

"Feb. 25, 1920.

"Received from J. L. Clay fifty dollars as deposit on premises 3716 & 18 Prairie Ave. to be sold for $16,000 bal. of $950 first payment to be made on or before March 6, 1920, or forfeit deposit of fifty dollars. I. Springer."

That complainant went to the office of Springer on February 26, 1920, to pay the balance of $950 and to obtain the contract mentioned in the receipt; that Springer told complainant he was holding the property in question for the partnership of Barnett Bros., consisting of himself and the Barnetts; that he would make out the contract when com

Searle S. Barnett was then present in Springer's office and said he would make out the contract; that on March 27, 1920, Searle S. Barnett, for the partnership, delivered to complainant the contract for the property. It occupies six pages of the abstract. Such parts of it as are deemed material will be noticed hereafter. Complainant further averred that all of the six flats in the premises had been rented and occupied by tenants since she purchased the property, and that Springer received therefrom as rent from March 27, 1920, to February 20, 1923, the sum of $13,650; that the total amount charged against the premises, including 34 installments of $100 each required by the contract, amounted to $9,095.24; that the total balance of the principal required to obtain a deed under the contract was $3,600; that the total rents received, plus $1,000 paid by complainant, as recited in the contract, amounted to $14,650; that the total amount necessary to obtain a warranty deed from defendants was $12,695.24, leaving a balance due from Springer to complainant of $1,954.96. Complainant further averred that she had many times demanded a deed to the premises by virtue of the contract, and that all of the defendants have failed and refused to deliver such deed; that she has always been, and still is, ready, able, and willing to pay to defendants the money due upon her contract to obtain the deed, and that defendants have refused, and still refuse, to comply with the agreement on their part and deliver to complainant a warranty deed according to the terms of her contract; that Springer had received rent of $65 per month from each of six flats in the premises and that she had been informed that he had received the sum of $70 per month for each of the flats; that she had many times demanded of every member of the partnership possession of the premises, but that possession had been wrongfully withheld from her by Springer; that Springer had always admitted that the property was the property of the partnership. The prayer for relief was that defendants be required to specifically perform the contract and convey to her the premises and for an injunction restraining Springer from collecting rents from the tenants in possession and from withholding possession of the premises from her. She offered to specifically perform the agreement on her part and asked for an accounting of the rents received by him. She attached to her bill as an exhibit the agreement to convey to her the property in question.

Springer's amended answer to the amended and supplemental bill of complaint admitted that he and the Barnetts were copartners in a special partnership and as such copartners they were owners of the real estate in question. The answer averred that some parties came to know of the special partnership as Barnett Bros.; that Searle S. and Paul P.

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