Kramer v. Northern Hotel Co.

Mr. Justice Freeman,

after making the above statement, delivered the opinion of the court.

This was an action of assumpsit. The jury returned a verdict in favor of appellee. The suit is brought upon a contract in writing, and it is clear that appellant’s right to recover is dependent upon proof sustaining the allegations of breach of contract.

It is insisted by counsel for the appellee that the evidence is irreconcilably conflicting, and in this we are compelled to agree. Unless some error of law has been committed we should not be justified upon this record in disturbing the finding of the jury, upon the questions of fact. Goodman v. Boyd, 44 Ill. App. 249, and cases there cited.

It is insisted, however, that the court erred in giving certain instructions. By the terms of the contract appellee agreed to pay to appellant any damage for which it would have been liable without the contract, except for use of the basement, and all damages caused by negligence of itself and servants. It was agreed that appellee should make, or cause to be made, all proper connections between the sewer, water and gas pipes, so that appellant should not “ be disturbed in his use of the sewers, water and gas in said building.” It was a question of fact for the jury whether appellee has complied with these and other provisions of the contract, and whether appellant had suffered any damage for which appellee was liable because of negligence or otherwise.

The instructions are quite lengthjq and it is not necessary to quote them in full. In substance, the second instruction told the jury that if one in possession of premises permits a stranger to enter to do certain work, the stranger is legally justified in going on the premises for that purpose; that such permission can be withdrawn, and that if so withdrawn, the stranger, if he remains or goes upon the premises thereafter, is a trespasser, and liable as such; that if the jury believed from the evidence that the defendant had received permission from the plaintiff to do certain work, including the removal of the downspout, and the substitution of another one to carry off the water, and was making every effort to complete said work, and would have done so, had it not been ordered away before the work was completed, and if the plaintiff did so order it away, then the defendant should be found not guilty for any damages caused by failure to complete said work, under such circumstances.

We find no fault with this instruction under th'e evidence. By the written contract the appellee was allowed the use of the appellant’s basement for a certain specified time while putting in the foundation. It was not under the contract allowed access to appellant’s roof. There was evidence tending to show that appellant consented that a pipe should be put in connecting the roof of appellant’s building .with the sewer or with another downspout, and that appellant revoked the license before that work was completed; and that he refused permission to go on with it, unless he should be paid a further sum of money. He had already received $1,800 in accordance with the written contract for the use of his basement while" the new foundation was being laid. He is not entitled to recover damages, if any were suffered, because of his own interference with the work to which he had consented, and the continuance of which he prevented.

It is urged by appellant’s counsel that appellee would have been liable to pay damages caused by the settling of the foundation wall if the written contract had not existed, and that instructions to the contrary were erroneous.

The instructions told the jury in substance that no duty rested upon appellee to support appellant’s west wall in order to prevent it from sinking along with its own building; that appellee was required to support appellant’s west wall only while the foundation was being put in, provided the support of the wall was left in as good condition as before it entered.

The written contract provided that the appellee should “ at its own expense support and sustain the west wall of said building during the excavating and putting in of said foundation.” It did not require appellee to support the wall so as to prevent its settling thereafter with the foundation upon which it stood. It was not liable, then, under its contract, for damage occasioned by failure to support the wall pending settlement.

Hor would it have been liable for a settlement of appellant’s wall caused by the pressure of the new building upon a foundation built with reasonable skill and care upon its own adjacent land. City of Quincy v. Jones, 76 Ill. 231, and cases theré cited. In that case it is said : “ If injury is sustained to a building in consequence of the withdrawal of the lateral support of the neighboring soil when it has been withdrawn with reasonable skill and care to avoid unnecessary injury, there can be no recovery; but if injury is done the building by the careless and negligent manner in which the soil is withdrawn, the owner is entitled to recover to the extent of the injury thus occasioned.”

It was not a party wall which appellee erected. It was upon its own land, except that the foundation was, by written permission of appellant, extended under the latter’s wall for a specified consideration, which was paid. We are of opinion that the case was fairly submitted to the jury, and the judgment of the Circuit Court must be affirmed.