268 F. 237 | 7th Cir. | 1920
Obermayer Company, an Ohio corporation, sued Chicago for causing a diminution in value of its factory site and buildings on Eighteenth street by closing that street to vehicle traffic. Trial by jury; verdict and judgment for Obermayer Company.
Chicago in 1907 passed a track-elevation ordinance. At that time 16 double-track railways crossed Eighteenth street at grade. Elevation of tracks at the place in question, wholly upon the railway companies' rights of way, was done in June, 1910. A subway for pedestrians was
“Private property shall not be taken or damaged without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury, as shall be prescribed by law.”
By their verdict the jurors said that Obermayer Company’s property had been damaged to the extent of $5,000. They arrived at this amount by ascertaining the difference between the value of the property immediately before and the value immediately after the improvement was made. In entering judgment on this verdict, the court, on Obermayer Company’s motion and over Chicago’s objection, added interest for nine years at 5 per cent., $2,250.
In Illinois the statute (Rev. Stat. Ill. c. 74, § 2) allows interest on — • “all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or_advanced for the use of another ; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.”
In Chicago v. Allcock, 86 Ill. 384, decided in 1877, the, Supreme Court of Illinois held in effect that the state Constitution left the Eeg-islature free to provide for interest, or not, as it saw fit; that the statute allowed no interest-on unliquidated damages; that in such cases interest began first to run from the date of the verdict and upon the amount thereof. In that suit Chicago had built a water tunnel under Allcock’s property without his consent, the settling of the surface of his land seriously damaged his buildings, and the action was to recover the damages so sustained.
As the Illinois Constitution was adopted in 1870, and the Allcock decision respecting the interest statute was rendered in 1877, Ober-mayer Company, coming over from Ohio and buying this Illinois realty in 1888, is not in a very good position to ask us, even if we had the right, to listen to the' contention that “substantial justice” requires the overturning of the Illinois law as interpreted by the Illinois Supreme Court. When asked to change its stand, the Illinois Supreme Court,
“Money withheld by vexatious delay” cannot apply to Chicago’s conduct in aiding the jury to ascertain the unliquidated damages; but, if it could, the delay is chargeoble to Obermayer Company. No declaration was filed till April, 1912. Then it was not till June, 1914, that Obermayer Company had on file a nondemurrable declaration. Not till December, 1918, did Obermayer Company move to have the cause put on the trial calendar. Trial was reached in April, 1919. No part of the nine years, for which interest was added, is chargeable to Chicago. Allowance of interest in such circumstances would be awarding Obermayer Company a premium on its own delays.
If this interest question were the only error assigned, the mandate would be to vacate the judgment and enter a new one for the amount of the verdict, with interest from its date. But Chicago has presented an assignment that attacks the verdict itself.
Chicago is entitled to a new trial; but we do not feel sure that the attack upon the verdict'was not included merely as a makeweight in obtaining a reversal of the judgment. Chicago is directed to file with the clerk within 10 days its election to take a mandate for a new trial or for a corrected judgment upon the verdict.
The judgment is reversed.