BAKER, J. This was mandamus, brought by appellees, the commissioners of high-sioners of highways of the town of Win

contract: 'It being necessary to construct a new bridge across the Du Page: river in said town at Gary's Mills, so

cially at a meeting of the board, and to supplement the record of such order and direction with evidence that justified the

called, immediately, and a delay in so making of the same. It follows that apdoing being detrimental to the public in-pellant can take nothing by the assignterest, and the cost of such new bridge be-ment of error under consideration, and for ing more than twenty cents on the one the reason thatit has no sufficient basis hundred dollars on the latest assessment | in the facts of the trial as disclosed by the ofsaid town, and the levy of the road and

bridge tax for this year being for the full

record.

It is claimed to be error that the appelamount of sixty cents on each $100.00 al- | late court did not reverse the finding and

judgment of the circuit court on the ground that they were contrary to the law and the evidence in the case. It sufficiently disposes of this claim to say that, under the statute, the judgment of the appellate and circuit courts conclusively settles all questions of fact in favor of appellees, and that no questions of law were preserved at the trial by the submission of propositions in writing, to be held or refused by. the court. Bridge Co. v. Commissioners of Highways, 101_III. 518; Fitch v. John

lowed by law for the commissioners to raise, and the major part of which is need ed for the ordinary repair of roads and bridges, unanimously voted that such bridge be immediately built, as provided by law, and that aid be asked of the county board, as provided by statute.'" And the other of said records was as follows: "At a meeting of the commissioners of highways held on the 1st day of March, A. D. 1887, at Gary's Mills bridge site, for the purpose of letting the contract of

building a high-truss iron bridge over the | son, 104 Ill. 111; Edgerton v. Weaver, 105

Da Page river, there were present H. H. Martin, R. S. Chandler, and F. J. Hageman. It being necessary to construct a new bridge across the Du Page river, in said town, at Gary's Mills, so called, immediately, and a delay in so doing being detrimental to the public interest, and the cost of such new bridge being more than twenty cents on the one hundred dollars on the latest assessment of said town, and the levy of the road and bridge tax for this year being for the full amount of sixty cents on each $100.00 allowed by law for the commissioners to raise, and the major part of which is needed for the ordinary repairs of roads and bridges, unan

III. 43; American Exch. Nat. Bank v. Chicago Nat. Bank, 131 111. 547, 22 N. E. Rep. 487, and authorities there cited.

It is urged that it was error to award, upon the record as it stands, a peremptory writ of mandamus against the county. On July 11, 1887, the board of supervisors refused to grant the aid that was asked in the first petition of the highway commissioners; and on September 13th of that year, a supplemental petition having been presented, they again refused to aid in the construction of the bridge. As we have already seen, it was conceded by appellees in open court that the amendment of the record of the proceedings of the

imously voted that such bridge be imme-meeting of March 1, 1887, was not made

diately built as provided by law, and that aid be asked of the county board, as provided by statute." The record does not show that any objection, either general

until on orafter September16,1889. Andso it necessarily follows that at the time of the filing of each of the petitions for aid, and at both of the times that the board

or specifie, was made in the trial court to i of supervisors refused to grant aid, there

the introduction in evidence of these records, or either of them. If there was any valid objection to their admission, it must be considered that it was waived by appellant. We have so often held, in actions and proceedings at law, that, where no objection to the admission of testimony is made in the court below, an ob- . termination by the commissioners of high

I

was on the records of the proceedings of the highway commissioners no record whatever of any action taken by the highway commissioners in conformity with the requirements of the statute granting aid. In People v. Madison Co., 125 111. 334, 17 N. E. Rep. 802, it was held that the de

jection to it cannot be urged for the first

ways that a necessity exists for the con

time on appeal or error, that a citation of

struction or repair of a bridge, which will

authority to that effect is deemed wholly – serve as the basis of an application to the

unnecessary. We cannot assume that, if objection had been made, appellees would have been unable to satisfactorily show

1

county board for county aid under the statute, is the exercise of a corporate power vested in the commissioners, which can

the amendment was made by or under the ; only be exercised at a meeting of such

direction of the same town clerk who was in office when the meeting of March 1, 1887, was held, and whose duty it was to make a full and correct record of all the proceedings of said meeting, and made while he was still in office as such clerk, and therefore under the sanction of his onth of office, and perhaps even made from written memoranda or minutes made and kept by him; or, in the event such clerk was prevented by death or other necessity from perfecting the record, unable to show such amendment was made by order and direction of the same highway commissioners by whom the proceedings had at the first meeting were transacted, acting offi

commissioners, and can only be shown by the record of their proceedings required by the law to be made and kept. The question there at issue was whether or not parol evidence is admissible for the purpose of showing the official action of the highway commissioners in the premises, and it was held it was not. In discussing that question the court said: “Before the county board could be legally moved in the matter, or any legal duty be cast upon them, the commissioners must have determined that such necessity existed, and have preserved the evidence of that fact in their record. In the proceeding, then, before the circuit court, the corporation, the

commissioners of highways, could only | for road and bridge purposes in the town

"

was less than 60 cents on the $100; and
that the major part of the 60 cents was
not needed for ordinary repairs of roads
and bridge. The reasons stated upon the
record for denying the supplemental peti-
tion for aid were that no emergency exist-
ed justifying the construction of the
bridge before applying to the county
board for aid; that the contract price and
amount expended for the bridge were
more than was necessary for the purpose;
and that the major part of the tax levies
was not needed for ordinary repairs of
roads and bridges. No claim was made
by the board of supervisors either that
the highway commissioners had not offi-
cially ascertained and determined the nec-
essary statutory facts, or that their acts
and determinations in that behalf had not
been entered upon the record of their pro-
ceedings. The case at bar is materially
different from People v. Madison Co., su-
pra. Here the commissioners did in due
time officially and as a board ascertain
and determine the statutory facts essen-
tial to a right to call on the county for aid,
and proved the same by introducing in ev-

speak by their record, unaided by parol
testimony. In the proceeding at bar the
commissioners spoke in the circuit court
only by their record, but by that record
as amended. By the language above
quoted from the opinion in the Madison
County Case, it was not intended to inti-
mate that upon the trial of the issues
there joined, which are substantially like
those here joined, an amended record of
the proceedings of a board of highway
commissioners would not be competent
evidence. Where the official action which
is the subject of a proposed amendment
has in fact been had, but by reason of
some accident or oversight, or for some
other cause, has been omitted by the clerk
from the record of the proceedings of the
board, both reason and the authorities
show that it is competent to amend the
record to correspond with the fact, and
that, when such amendment is made, the
record, as amended, unless impeached, is
conclusive. Welles v. Battelle, 11 Mass.
476; Hartwell v. Littleton, 13 Pick. 229;
Boston Turnpike Co. v. Town of Pomfret,
20 Conn. 595; Hutchinson v. Pratt, 11 Vt.
402; Mott v. Reynolds, 27 Vt. 206; Cham-idence the record of their proceedings in

berlain v. Dover, 13 Me. 466.

In the case at bar, it is conclusively shown by the amended record that, prior to the presentation of either of the petitions for county aid, the highway commissioners had officially determined that it was necessary to construct a new bridge immediately, and that a delay in so doing would bedetrimental to the public interest; that the cost of such new bridge would be more than 20 cents on the $100 on the latest assessment of the town; that the levy of the road and bridge tax for the year was for the full amount of 60 cents on each $100 allowed by law for the commissioners to raise, and that the major part of this was needed for the ordinary repairs of roads and bridges; and thatsaid commissioners had unanimously voted that such bridge should be immediately built as provided by law, and that aid should be asked of the county board as provided by statute. But it appears from the record in this cause that said official determinations, acts, and proceedings of the highway commissioners had not, at the time when the applicationsfor aid were made and refused, been entered upon the record of the proceedings of said commissioners. It is manifest from the record in this cause, taken as a whole, that the highway commissioners have a meritorious case, and that it is just and right that the county should pay one half the cost of the bridge and its approaches. Does the delay in recording the determinations, acts, and proceedings in question preclude appellees from having a peremptory writ of mandamus awarded to them in this suit? In our opinion, it should be held that it does not. In denying the first petition for aid the county board stated upon their records the grounds for such denial. The reasons given for refusing assistance were that the reasonable cost of the bridge would not exceed 20 cents on the $100 of the last year's valuation; that the levy

that behalf. In the Madison County Case,
on the contrary, no record evidence was
produced to show that the three com-
missioners had ever taken official action,
such as the statute required, and it was
sought to show such action by oral testi-
mony. The first sentence of the language
quoted above from the opinion in that
case is to be read in connection with the
next succeeding sentence, and is to be con-
sidered in the light of the question then
under examination, the necessity of offi-
cial action on the part of the commission-
ers, and of record evidence of such action.
Here, we see no good reason why the
amended record, should not be held to
speak as of the day when the proceedings
which it records were in fact had. And,
as appellant, in refusing the aid that was
asked for, did not base its refusal on the
ground that there had been no such pro-
ceedings, or on the ground that they had
not been entered upon the records of the
commissioners, we are unable to see that
allowing the amended record so to speak
works any injustice or hardship to appel-
lant. We think that there was no error
in awarding a peremptory mandamus.
The judgment of the appellate court is
affirmed.

(143 111. 358)

CITY OF CHICAGO v. BABCOCK.
(Supreme Court of Illinois. Oct. 31, 1892.)
DEFECTIVE STREETS-NEGLIGENCE-PLEADING AND
EVIDENCE ACCORD AND SATISFACTION - RE-
LEASE-REVIEW ON APPEAL.

1. The mere fact that the plaintiff, walking
along the sidewalk in the daytime, stepped into
an open area way, and was injured, does not
justify a direction to the jury, in an action for
the injury, to find for the defendant on account
of the plaintiff's contributory negligence.

2. In an action on the case, matters occurring after issue joined on the plea of the

Reported by Louis Boisot, Jr., Esq., of the
Chicago bar.

1

general issue may be shown in evidence as constituting a release, without a plea puis darrein continuance. Mount v. Scholer, 11 N. E. Rep. 401, 120 I. 394, distinguished. 41 Ill. App. 238, reversed.

3. The dismissal of an action against one of two joint tort feasors, together with the execution, for a valuable consideration, of an agreement not to sue him, does not operate as a release of the other tort feasor.

4. Whether money paid by one of two joint tort feasors in consideration of an agreement not to sue him constitutes an accord and satisfaction of the injury, or only part payment of the damages, is a question of fact, on which the decision of the Illinois appellate court is final.

Appeal from appellate court, first dis

trict.

Action on the case by Emma Babcock against the city of Chicago. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

Jacob J. Kern and E. S. Bottum, for appellant. Walker & Lowden, for appellee.

BAKER, J. In this action on the case to recover damages for personal injuries, the appellee, Emma Babcock, recovered judgment in the circuit court of Cook county for $1,500, and the judgment was affirmed in the appellate court. 41 Ill. App. 238. In September, 1887, there was a restaurant at No. 33 West Adams street, in the city of Chicago, and several steps led from the restaurant down to the sidewalk and street, and to the left of the steps, as one came out from the restaurant, was an opening leading into the basement, and extending out into the sidewalk and street a distance of three feet to a point beyond the lowest of these steps. The only protection from this opening was a trapdoor fastened upou hinges, and the opening and trapdoor had been there for some three years prior to the accident. An ordinance of the city provides that entrances to areas and basements shall not extend into the sidewalk more than two feet next to the building. The trapdoor in question was left open a considerable portion of the time, and was open at the time of the accident. On the morning of the 6th day of said month of September, appellee, who had never been at said restaurant before that time, went there for the purpose of getting her breakfast. In coming out, with a large bundle on her left arm, she walked down the steps, and, in turning east to go to the place where she was employed as a cloak finisher, stepped with her left foot into the opening, and fell into the basement below, and received the injuries for which the suit was brought.

avoid danger, but what is such ordinary and reasonable care depends upon the circumstances of each particular case, and is a question of fact for the jury. A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person is absolutely bound to keep his or her eyes constantly fixed on the sidewalk, in a search for possible holes or other defects, would be to establish a manifestly unreasonable and wholly impracticable rule. We deem it unnecessary to state the evidence in detail, but we may say that we have examined it all, and that the testimony of appellee herself and that of John H. Murray and Richard T. Cody tend strongly to prove that appellee at the time that she met with her misfortune was in the exercise of due and ordinary care. In at least three of the instructions that were given by the court the jury were pointedly told that they should find the defendant not guilty if they believed from the evidence that the plaintiff failed to exercise ordinary care and caution, and the verdict indicates that in their opinion there was no want of the required degree of care and caution on her part. There was clearly no error in refusing to direct the jury to find for appellant.

It appears from the evidence that appellee brought two suits to recover damages for the injuries that she had received,one the suit at bar against the appellant city, and the other a suit against Guiseppe Le Cardi, owner of the building and premises connected with which were the opening and trapdoor above mentioned, and Ellen Gaynor, tenant of the entire building; that afterwards Le Cardi paid to the attorneys of appellee the sum of $150, and that the larger portion of this was applied by said attorneys in paying the or-costs of the last-mentioned suit, and other expenses and charges, and some $30 or $40 handed to and received by appellee; that at the time of the payment of the $150 a writing was executed and delivered to the agent of Le Cardi, which read as follows: "State of Illinois, county Cook. It is hereby agreed that no action shall be begun against Joseph Le Cardi by reason of any matters existing at this date, by the undersigned. Given for good consideration. EMMA BABCOCK. By PEASE & WILLIAMS, Attorneys for Plaintiff. Chicago, March 11, 1889;" and that afterwards an order was entered in the suit of Babcock v. Le Cardi and Gaynor, showing that, on motion of the plaintiff, by her attorney, the suit was dismissed out of court at the cost of the plaintiff.

No claim is made that it was not negligence on the part of the city to permit the opening in the sidewalk and to permit the trapdoor to be left open, but it is urged that there was no right of recov. ery, because appellee was not exercising ordinary care, and that it was therefore error for the trial court to refuse to instruct the jury to find the defendant not guilty. A person passing along a sidewalk in a city is required to use ordinary and reasonable care and diligence to

of

It is urged by appellant that the dealings of appellee and her attorneys with Le Cardi, one of the joint tort feasors, amounted to an accord and satisfaction, and were not only a bar to an action against Le Cardi, but also, by operation of law, worked a release of the city from all liability. It appears from the evidence that the transactions with Le Cardi and the payment of the $150 were after this suit was brought and after plea and issue joined thereon, and a claim is therefore made by appellee that, since appellant did

was fairly left to the jury to determine, as a question of fact, whether or not the money received by appellee was received by her in satisfaction of the injuries that she had sustained. Where there are a number of tort feasors, the party injured may, at his election, sue one, or several or all; and where the suit is against one or some of the wrongdoers, but not against all, the person or persons sued have no right to complain. And so, also, where there is suit against several tort feasors, the dismissal of the suit against one does not bar the action against the others. Knapp v. Roche, 94 N. Y. 329; Sloan v. Herrick. 49 Vt. 327; Bloss v. Ply. male, 3 W. Va. 393. A release to one of several joint tort feasors is a release to all, and an accord and satisfaction with one of them is a bar to an action against the other. Here there is no claim of a technical release under seal. The pending suit against Le Cardi was dismissed, and a written agreement was signed that no action should be begun against Le Cardi by appellee. This, on its face, was simply an agreement or covenant not to sue. The legal effect of such a covenant is not the same as that of a release. A covenant not to sue a sole tort feasoris, to avoid circuity of action, considered in law a discharge, and a bar to an action against such tort feasor. But the rule is otherwise where there are two or more tort feasors, and the covenant is with one of them not to sue him. In such case the covenant does not operate as a release of either the covenantee or the other tort feasors, but the former must resort to his suit for breach of the covenant, and the latter cannot invoke the covenant as a bar to the action against them.

not file a proper plea puis darrein contin- | charge Le Cardi, and not intended in any uance, it cannot avail itself of the alleged way to affect the claim of the plaintiff settlement. It is undoubtedly the gen-against the city. It is thus seen that it eral rule of the common law that a matter of defense which arises after the commencement of thesuit and before plea must be pleaded to the further maintenance of the action, and thata matter of defense which arises after suit brought, and also after plea filed, and either before replication or after issue joined, must be pleaded puis darrein continuance. Mount v. Scholes, 120 111.394,11 N. E. Rep. 401. But we understand an action on the case to be an exception to this rule. In such an action the defendant is permitted, under the general issue, to give in evidence a release, a former recovery, a satisfaction, or any other matter ex post facto which shows that the cause of action has been discharged, or that in equity and conscience the plaintiff ought not to recover. 2 Greenl. Ev. § 231. To this last stated rule, that is applicable to actions on the case, there are, it is true, some exceptions, such as the statute of limitations, justification in an action of slander by alleging the truth of the words, and the retaking on fresh pursuit of a prisoner escaped, all of which defenses must be specially pleaded; but, so far as we are advised, it has never been held in an action on the case that a defense otherwise admissible under the general issue was inadmissible in evidence for the reason it arose after suit brought, and was not specially pleaded either to the further maintenance of the action or puis darrein continuance. On the other hand, in Bird v. Randall, 3 Burrows, 1345, which was an action upon the case, the matter of defense arose after the commencement of the suit, but before it came on to be tried, and it was not pleaded; but the defense was sustained by the court of kings bench, and it was held that, as the plaintiff had already received ample satisfaction for the injury done him, he could not afterwards proceed against any other person for a further satisfaction. And Lord MANSFIELD there said: "In such an action as this is, [an action of equity, not a formed action stricti juris,] it is enough if it appears upon the evidence that the plaintiff ought not in conscience to recover."

But, even if the rule be such as we have | indicated, yet it does not affect the result | of this litigation. Not only the paper writing that was given to Le Cardi, and the order and judgment that were rendered in the action against Le Cardi and Gaynor, and proof of the other facts above stated, were admitted in evidence, but all the other testimony that was offered by either party that had any bearing upon

The only ground, then, that appellant had to stand on in respect to this branch of the case was a claim that there was an accord and satisfaction, and that the $150 was paid and received in satisfaction of the damages sustained. If, as claimed by appellee, the $150 was paid and received simply in consideration of the agreement not to sue Le Cardi, and not in satisfaction of the damages, but only in part payment of the same, then the transaction between appellee and Le Cardi did not amount to an accord and satisfaction, and was no bar to the suit against appellant. In fact it was for the interest of the latter that appellee should receive part payment of her claim from Le Cardi, and thereby reduce the amount of damages recoverable from it. The views we have expressed are sustained by the fol

the question of the nature of the transac-lowing authorities: Snow v. Chandler,

tions and arrangements between appellee and either Le Cardi or Mrs. Gaynor was submitted to the jury; and the court fully instructed the jury that if they believed from the evidence that the $150 was paid with the knowledge and consent of the plaintiff, and received in satisfaction of her claim for damages as against Le Cardi, then their verdict should be for the city, and this even though they might believe that it was only intended to dis

10 N. H. 92; Knapp r. Roche, 94 N. Y. 329; Bloss v. Plymale, 3 W. Va. 393; Sloan v. Herrick, 49 Vt. 327; Brown v. Marsh, 7 Vt. 320; Chamberlin v. Murphy, 41 Vt. 110; Ellis v. Esson, 50 Wis. 138,6 N. W. Rep. 518; Parmelee v. Lawrence, 44 III. 405.

As we have already seen, the question whether there was an accord and satisfaction, and whether the $150 was paid and received in satisfaction of damages, was submitted to the jury, to be deter

v.32N.E.no.3-18