along Twenty-Second street, in the city of Chicago; that the appellee company was then and there possessed of certain railway tracks in and along State street, in said city of Chicago, and of certain street cars, which it was then and there operating by means of an underground cable propelled by certain steam engines by it maintained; that said appellee company was operating its said railway cars on said tracks in and along State street under and by virtue of an ordinance of the city council of the city of Chicago adopted in 1858, and extended for a further term of years (but not otherwise affected) by another ordinance of the said city adopted in 1883; that said original ordinance of 1858 provided that the cars to be operated by the appellee company upon the said tracks in and along State street should be propelled "with animal power only," and the declaration also averred that the authority of the appellee company was limited by the charter granted to it by the state, as well as by said ordinance of the city of Chicago, to the operation of cars along its railway in State street "by animal power only"; that said State street intersects said Twenty-Second street at right angles; that on said 15th day of October, 1897, said appellee company, in violation of the provisions of its charter and said ordinances of the city of Chicago, was operating on its Isaid tracks on said State street a train of three cars by means of an underground cable propelled by steam engines of great power, at a high rate of speed, to wit, 20 miles per hour; that the cars composing the said train were much larger and heavier than cars to be "operated by animal power only," and that such excess of weight was, to wit, 20 tons, and that the excess of speed was 12 miles per hour; that the momentum of a car so operated by cable power is 10 times the momentum of a car operated "by animal power only"; that said train of cable cars so without authority put in motion in said State street by the said appellee company, because of the operation thereof by cable power, and because of the excess in weight, speed, and momentum over the weight, speed, and momentum of a car operated "by animal power only," then and there ran into and struck with great force and violence an electric car which the appellant company, with all due care and diligence, and with lawful right and authority so to do, was then moving in and along said Twenty-Second street at the intersection of said Twenty-Second street and said State street, and injured and damaged said electric car, etc., and inflicted personal injuries on passengers being transported by the appellant company in such electric car, to the damage of the appellant company in the sum of $25,000.

It will be observed there is no allegation that the collision was occasioned by any act of negligence or want of care on the part of the appellee company. The position of counsel for the appellant company is that it ap

peared from the averments of the declaration that the appellee company was propelling its train of cable cars on the said public street without lawful authority so to occupy the Isaid street with cable cars, and in so doing was a trespasser and intruder upon the street, and that such unlawful occupation of the streets rendered the use of the said State street at the intersection of Twenty-Second street hazardous to the appellant company and others having lawful authority to pass along and across said intersection of said streets, and constituted a nuisance, and made the appellee company liable to respond to the appellant company for the special damages shown by the declaration to have been suffered by the appellant company; and that such liability was created by reason of the existence of said alleged nuisance, and wholly independent of the question whether the alleged collision was the result of negligence on the part of the appellee company in the matter of the management of the train. We do not assent to this as the correct legal doctrine. It was stated in each of the counts of the declaration that the appellee company held a charter from the state authorizing it to engage in the business of operating street cars; that it had been granted an ordinance by the city of Chicago authorizing it to lay its tracks and to operate a line of street cars in and along said State street, and that at the time of the alleged collision it "was operating its trains (on said State street) under and by vir tue of such ordinance of the city of Chicago." The tracks of the appellee company were rightfully in the street, and it had lawful authority and right to operate street cars on said tracks and across said intersection of State and Twenty-Second streets. Whether a proper construction of the charter of the appellee company or of the ordinance "under and by virtue" of which it was operating its trains limited it to the use of animal power, and prohibited it to use steam-driven cables as a motive power for moving the cars, or whether the adoption of that character of motive power was an abuse of its franchise under the said charter or ordinance can only be determined in a direct proceeding instituted in behalf of the city or of the public, acting through the attorney general or the state's attorney.

The declaration disclosed that the appellee company possessed the requisite corporate power and capacity to occupy the streets with its tracks, and to move street cars along such tracks. Whether, in adopting the cable system as a motive power, it had exceeded its chartered powers or its privileges as licensee of the city under the ordinance, is a question which concerns the public and the municipality. The appellee company is not answerable to the appellant company for any abuse of its corporate powers or privileges, nor would the public or the city be concluded by an adjudication of the question in an action between private parties. The abuse of its chartered powers, or of powers derived from an ordi

nance, or whether, in transacting its business that it was authorized by charter and said ordinance to transact, it had proceeded contrary to the terms or conditions of said charter or said ordinance, concerns only the public. The appellant company, in the assertion of a mere private right, cannot base right of recovery on the nonobservance of such terms and conditions, or on the denial of power in the appellee company to exercise a power or privilege which the appellee company is exercising, and is being permitted to exercise, under the authority or color of a grant of power from the state and city. As to all others than the state or the municipality, the appellee company, under the circumstances disclosed by the declaration, is to be regarded as rightfully prosecuting the business of operating a line of cable street cars on said State street, and answerable to others than the representatives of the public only for negligence in the manner or mode of transacting its business and operating its trains.

While the precise question has, so far as we are advised, not been adjudicated by this court, the principle involved is clearly recognized in Rice v. Railroad Co., 21 Ill. 93; Attorney General v. Chicago & E. R. Co., 112 Ill. 520; Barnes v. Suddard, 117 Ill. 237, 7 N. E. 477; Cook Co. v. Great Western R. Co., 119 Ill. 218, 10 N. E. 564; and Railroad Co. v. Wright, 153 Ill. 307, 38 N. E. 1062. The point arose for determination in Hine v. Railway Co. (Mich.) 73 N. W. 116. The action was to recover for injuries inflicted upon a child by a car operated by the railway company in a street. The car was moved by electricity, and the lack of authority to use such motive power was asserted and liability predicated on such alleged want of power. It was there said: "We do not think this question can be raised in this proceeding. The fact was made to appear that the company did operate its cars by electricity, and for the purpose of this case the trial must proceed as though it had the right to do so. If the street-railway company is operating its road contrary to the terms of its franchise, the question could undoubtedly be raised by the city in a proper proceeding; but we do not think the question is involved in this issue." The circuit court correctly ruled that the declaration did not present a cause of action. The judgment of the appellate court is affirmed. Judgment affirmed.

(186 111. 54)

MEAD et al. v. CITY OF CHICAGO. (Supreme Court of Illinois. June 21, 1900.) MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS ASSESSMENTS - ORDINANCE - ESTIMATE VARIANCE - CERTAINTY - OBJECTIONS.

1. Where an ordinance provided for the construction of a curb and gutter between specified termini, except intersecting streets and alleys, - and the estimate of the cost stated the number of lineal feet of the curb and gutter, without mentioning the intersections, there was no such variance between the ordinance and the esti

mate as would invalidate an assessment for the improvement.

2. General objections in the court belew to an assessment of benefits for a street improvement, to the effect that the ordinance authorizing it does not specify the nature, character, locality, and description of the proposed improvement, are suflicient on appeal, where the case was tried thereon, though the objectors could have been required to make their objections more specific.

3. An ordinance authorizing a street improvement is sufficiently certain and definite, as to the height of the curb to be constructed, when the description fixes the height of the curb. both at the back and from the inside of the gutter at certain points, and provides for a uniform slope between such points.

4. An objection that the city was not assessed for a street improvement cannot be reviewed on appeal or writ of error, since Local Improvement Act, § 47, makes the determination of the county court conclusive.

5. The grade of a street is sufficiently established by a street improvement ordinance where the grade is definitely fixed thereby at certain heights above low-water mark, described so that it can be identified.

Appeal from Cook county court; O. H. Lovett, Judge.

Petition by the city of Chicago against Aaron B. Mead and others to confirm an assessment for street improvements. From a judgment confirming the assessment, defendants appeal. Affirmed.

Mason & Noyes (F. S. Lenert, of counsel), for appellants. Charles M. Walker, Corp. Counsel, Armand F. Teefy, and Wm. M. Pindell, for appellee.

CARTWRIGHT, J. Appellants appeared in the county court of Cook county, and filed objections to the special assessment levied upon their property to pay for improving West Monroe street, in the city of Chicago, by grading and curbing the same, and paving the roadway with asphalt, from the east line of the street-railway right of way on South Paulina street to the east curb line of South Central avenue. Their objections were overruled, and the question of benefits was then submitted to the court for trial. On that question, also, the court found for the petitioner, and confirmed the assessment. The appellants ask relief from the judgment.

It is first urged that the assessment is invalid because of a variance between the estimated cost and the ordinance, both as to the combined curb and gutter and the pavement proper. Although the objections filed were very numerous, none of them raised this question in any way. The hearing was had upon the objections so filed, and it appears from the bill of exceptions that on such hearing the pe titioner offered in evidence, with the other proceedings, the estimate of the engineer, and a certified copy of the ordinance. The abstract shows no objection to either, but the appellants afterwards objected to the prima facie evidence introduced by the petitioner, for two additional reasons, one of which was a variance between the estimate and the ordinance as to curbing and filling. This ob jection, as finally male, did not raise any

question of variance between the estimate and the ordinance, as to the roadway, which was not presented to the trial court at any time or in any manner. If appellants can present the question of variance here, it can only be as to the curbing and filling. The ordinance provides for a concrete combined curb and gutter, back-filled with earth, and the supposed variance consists in the fact that the estimate of cost is for a certain number of lineal feet of such combined curb and gutter at 60 cents per foot, while the ordinance only provides for curbing the street along the adjoining lots and blocks, and not across the roadway of intersecting streets or across alleys. The ordinance provides for the curb and gutter between the specified termini, except the intersections of Ogden avenue, Ashland boulevard, and the roadways of all other streets crossing West Monroe street and the alleys. It is insisted that the estimate includes the building of the combined curb and gutter, with the back-filling, across these intersecting streets and alleys, because it does not state that they are excepted. The estimate must be read in the light of common knowledge and experience, and we see nothing in it which indicates that the engineer included in the estimate any such impossible and unlawful construction as the running of the curb and gutter across the intersecting streets and alleys. No rational engineer would include in his estimate the building of an obstruction across Ogden avenue, Ashland boulevard, or other intersecting streets or across alleys, and the mere fact that he only states the number of lineal feet of the combined curb and gutter does not tend to establish the claim that he did make such an estimate. The estimate is wholly different from the one in the case of Chicago Terminal Transfer R. Co. v. City of Chicago, 184 Ill. 154, 56 N. E. 410 where in some places the east half of the roadway, and in others the west half, and in some places the entire roadway, were excepted from the improvement, and appeared to be included in the estimate.

The next objection argued is that the ordinance is uncertain and indefinite as to the height of the curb. Counsel for appellee contend that we should not consider the general objection under which this question is sought to be raised, because it does not specify in what particular the ordinance is claimed to be insufficient or defective. The objection is the customary one that the ordinance does not specify the nature, character, locality, and description of the proposed improvement. Doubtless, if petitioner had moved the county court to do so, that court would have required the objectors to make their objections specific, and point out in what respect the ordinance was lacking; but petitioner saw fit to try the case upon the general objection, and, having done so, cannot now complain. With respect to the height of the curb, the ordinance provides that the upper surface of the finished roadway and the top edge of the curb shall

coincide with the established grade of the street; that the height of the curb at the back shall vary from 17 inches at the catchbasin inlets to 9 inches at the summits; that the surface of the finished roadway at the summits in the gutters midway between catch-basins shall be 4 inches below said established grade of the street, and the surface at the catch-basin inlets in the gutters shall be 12 inches below said grade; and that the slope of the gutters adjoining the roadway face of the curb shall be uniform from the summits to the catch-basins. slope of the gutter flags is particularly provided for, and it is ordained that a transverse section of the finished roadway and gutter flags shall be a true arc of a circle passing through the grade of the gutter and the center of the finished roadway. We do not find any uncertainty in this description which fixes the height of the curb both at the back and from the inside of the gutter at certain points, and provides for a uniform slope between such points.

The

One of the objections filed is that the city of Chicago was not assessed its proportion of the assessment, although it would be greatly benefited by the improvement; and one of the objections made after the evidence was in was that Jefferson Park was assessed in the name of the West Chicago park commissioners and the assessment should have been against the city for a public benefit. Of course, appellants cannot object for the park commissioners, and they do not claim the right to do so, but contend that the city of Chicago will be benefited, and should pay a part of the cost of the improvement. John A. May, who was appointed to spread the assessment, reported that the property assessed would be benefited the whole estimated cost of the improvement, and that the city would not be benefited. The objectors had a right to submit this question to the county court, which might change or modify the distribution of the total cost between the public and the property benefited so as to secure a just and equitable distribution of such cost; but section 47 of the act concerning local improvements, governing this proceeding, in force July 1, 1897, makes the determination of the county court conclusive, and not subject to review on appeal or writ of error. We cannot consider the claim that the city should have been assessed part of the cost.

The remaining objection presented here is that the ordinance is insufficient in fixing the grade of the street. The grade is definitely fixed at certain heights above a lowwater mark. The heights are to be "measured from the plane of low water in Lake Michigan of A. D. 1847, as established by the trustees of the Illinois and Michigan Canal, and adopted by the late board of drainage commissioners and by the late board of public works of the city of Chicago as the basis or datum for city levels." The specification is merely descriptive of the

TICHENOR v. NEWMAN. (Supreme Court of Illinois. June 21, 1900.) PARTNERSHIP-CONTRACTS BETWEEN PARTNERS ACTION AT LAW-GUARANTY OF INCOME-PERFORMANCE BY PLAINTIFF-DECLARATION-TRIAL-QUESTION FOR JURY- UNPAID PURCHASE MONEY - DEDUCTION FROM VERDICT - PREJUDICIAL INSTRUCTION WRITTEN CONTRACT PRIOR REPRESENTATIONS-GOOD WILL-RIGHT OF ACTION-PHYSICIAN-LICENSE TO PRACTICE PRIMA FACIE AUTHORITY DUTIES OF PARTNERS-OUTSIDE BUSINESS-EVIDENCECITY DIRECTORY.

1. A physician sold real estate and the good will of his practice to another physician, and formed a temporary partnership with him to best transfer the practice and good will. The vendor agreed to inform his patrons of such partnership and introduce the purchaser to them as a worthy and reliable physician, and guarantying that vendee's yearly income would exceed a certain sum. Held, that the rule that one partner cannot sue another at law except for a balance struck did not apply, and that such purchaser could sue the vendor at law for failure of vendor to transfer such practice and good will, and for a deficiency in such income, as an investigation of the partnership accounts was not necessary to the determination of the breach for failure to transfer the medical practice, and proof could be received of the earnings of the firm to determine the deficiency without an investigation of the relative rights of the partners.

2. Where a purchaser of real estate and the good will of a medical practice failed to allege in his declaration for a breach of the contract that he had given a note, which, by the terms of the contract, he was required to give for the balance of the purchase price, and failed to set up any excuse for not doing so, the declaration did not show performance on the part of plaintiff, and it was not error to exclude testimony offered by him to show that defendant had excused the giving thereof.

3. Where a purchaser failed to allege in his declaration for breach of a contract of sale that he had given a note and security for $2,000 as the balance due on the purchase price, or to set up excuse for not doing so, it was error. after excluding testimony offered by plaintiff to show that defendant excused the giving thereof, to accept a statement and admission of plaintiff's counsel that the note had not been given, and to instruct the jury that they should deduct $2,000 from their assessment of plaintiff's damages, as the question whether or not plaintiff was ready and able to give the note and security was an issuable fact to be determined by the jury.

4. Where plaintiff had failed to allege in a declaration for breach of a contract of sale that he had given a note and security for $2,000 as the balance due on the purchase price, or to set up excuse for not doing so, and the court had excluded testimony offered by plaintiff to show that the defendant had excused the giving thereof, an instruction that the jury should deduct such $2,000 from their assess

ment damages was prejudicial, as the jury might regard such instruction as an assumption by the court that plaintiff should recover more than $2,000.

5. Representations by a vendor as to the value of a medical practice, made before the execution of a written contract of sale, were merged in the contract, and evidence of such representations was not admissible in vendee's action for breach of the contract.

6. A vendee of the good will of a medical practice was not required to show that he held a license to practice from the state board of health, in order to recover for breach of the contract of sale, as the relation of physician and patient did not exist between the vendor and the vendee, and the action was not for the recovery of fees or charges of a physician. 7. On an issue as to whether plaintiff was a physician, as bearing on his right to maintain an action for breach of a contract of sale of a medical practice, his uncontroverted testimony that he was a graduate of the St. Louis Medical College, and had been engaged in the prac tice of medicine and surgery for about 16 years, was prima facie sufficient.

8. Where defendant guarantied that plaintiff's yearly income from a medical partnership between them would not be less than a certain amount, it was incumbent on plaintiff, in order to recover for a deficiency in such income, to show that he used his best efforts to promote the interests of the firm, and it was error to exclude testimony tending to show that plaintiff was engaged in the transaction of other business during such partnership.

9. Where defendant guarantied that plaintiff's yearly income from a medical partnership between them would not be less than a certain amount, it was not error to exclude a city directory, offered by defendant, showing that plaintiff was secretary and treasurer of a corporation, as tending to prove that he did not devote his time to the interests of the firm, since plaintiff was not bound by the statements of such directory.

Appeal from appellate court, First district.

Action by William A. Tichenor against Henry P. Newman for breach of a contract for the sale of a medical practice. From

a judgment of the appellate court refusing to remand the case after reversing a judgment of the circuit court in favor of plaintiff, he appeals. Judgment of reversal affirmed. Order refusing to remand reversed.

The appellant, Tichenor, brought assumpsit against the appellee, Newman, in the circuit court of Cook county, and recovered a judgment in the sum of $4,000, which judgment was reversed by the appellate court for the First district on appeal. The appellate court did not incorporate in its judgment a finding of facts, and did not remand the cause. The declaration was as follows:

"For that whereas, heretofore, to wit, on the 15th day of October, A. D. 1894, the said plaintiff and said defendant made and entered into with each other a certain agreement in writing, bearing date the day and year last aforesaid, in the words and figures following, to wit:

"An agreement made on the 15th day of October, A. D. 1894, by and between Dr. Henry Parker Newman and Dr. William A. Tichenor, both of the city of Chicago, wit

nesseth: Whereas, Dr. Newman is an established physician and surgeon at No. 492 West Adams street, in said city, and as such is doing a lucrative practice; and whereas, said Tichenor has recently moved to and located in said city to engage in the practice of medicine; and whereas, said Newman desires to retire from the general practice of medicine, and to confine his practice to that of a specialist, and desires also to sell said premises No. 492 West Adams street, together with the good will of his general practice in so far as it can be sold or transferred, his practice, and the good will thereof, as a specialist in gynecology and abdominal surgery being expressly excepted and reserved by him from the operation of this contract: Now, therefore, in consideration of the premises and of the mutual promises of the parties each to the other, as hereinafter expressed, they have agreed, and do hereby agree, to and with each other, as follows: First. Said Newman sells and will deliver possession of, and said Tichenor buys, said premises No. 492 West Adams street, in the city of Chicago, having a front on the south line of said street of twenty-six feet and a depth of one hundred and eighty-seven (187) feet, more or less, to an alley, together with the buildings and improvements thereon, and (subject to the limited interest as partner by him reserved therein) the medical practice and business heretofore and now being conducted by said Newman at said No. 492 West Adams street, and the family practice connected therewith, all for the price and sum of twelve thousand dollars ($12,000),—ten thousand dollars ($10,000) of which are to be paid on delivery of deed in cash, and the balance of two thousand dollars ($2,000) shall be paid in a note of said Tichenor, guarantied by Henry D. Laughlin, payable one year after its date, which date shall be the date on which the transaction is consummated. Title to said premises to be good or no sale, to be free and clear of liens or incumbrance, and to be so conveyed by said Newman. Conveyance to be by deed of general warranty, seller to furnish merchantable abstract of title, to the premises, brought down to date, and to do so within thirty days of date of this contract. Tichenor pays down five hundred dollars ($500) on account of said cash payment, and will pay the other nine thousand and five hundred dollars ($9,500) within twenty days of the date on which such abstract is delivered to him, if the title is good, and is free and clear of all liens and incumbrances: provided no difficulty producing delay is encountered by him in securing a loan on the property amounting to six thousand dollars ($6,000) at a rate of interest not in excess of six per cent. per annum, it being understood between the parties that so much of the twelve thousand dollars ($12,000) is to be raised in this way and paid over to said Newman on account of the purchase. Fail

.

ing or refusing to consummate his purchase within the time herein fixed, without fault on the part of said Newman or other legal excuse, said Tichenor shall forfeit to said Newman said five hundred dollars ($500) this day paid as liquidated damages; otherwise, the money to be returned to him by said Newman: provided, however, in the event of the said Tichenor failing to complete the purchase of said premises as herein agreed and submitting to the forfeiture herein provided, then and in such case this contract shall cease to be of any further force and effect, and such forfeiture shall be a rescission of the partnership agreement herein provided for, and said Tichenor shall have no further rights in the business of said Newman, and shall forfeit to said Newman all the moneys he may have received from said practice under this contract. Second. For the purpose of establishing the said Tichenor in said practice and in order to effectually transfer to him the good will of the business, the parties hereby form a co-partnership in the practice of medicine and surgery, to continue from this date until December 31, 1895, when said Newman is to withdraw unless the copartnership is by mutual consent longer continued. But it is distinctly understood that said Newman reserves all the fees derived from his services as a specialist in gynecology and abdominal surgery during said term, and in these fees said Tichenor is to have no interest. All other fees and earnings of the parties in said business earned during said term shall be divided between them, share and share alike. Said Newman will designate one certain hour in the day as his office hour at said premises No. 492 West Adams street, and will attend for business there at that hour as faithfully as possible, and, unless otherwise agreed by the parties hereto, on all days except Sundays: provided, if said Newman carries out his present intentions, and establishes a private hospital or medical retreat so near said premises as to make it practicable for him to substitute that place for said premises for such office work, he shall have the right to make the substitution. He will, during said term, make known to his patrons the fact of the partnership; will, to the best of his ability, introduce said Tichenor to them and unto their families as a physician, and a man worthy of their confidence, and will, so far as lies in his power, establish him in said practice. He will send him, wherever not objected to by the patient, to answer calls for him, and will personally attend such cases as he may be personally insisted on, and will in good faith further do whatever he can reasonably and properly to install or establish said Tichenor as his

successor in said practice. Both parties agree to use their best efforts to promote the interests of the co-partnership, subject to the right hereinbefore reserved to Dr. Newman to continue the practice of his spe