50 Ill. App. 290 | Ill. App. Ct. | 1893
Lead Opinion
Opinion of the Court,
Both parties to this appeal are in the business of painting all kinds of signs on all kinds of spaces, etc.
One Carl Schilling had a building, the west wall of which had on it a “ space.” He signed this paper;
“ The It. J. Gunning Company, }
Advertising Sign Contractors, j Wall Contract.
Chicago, Aug. 30, 1890.
In consideration of fifteen dollars, I hereby give to the R. J. Gunning Company, the exclusive right to the west wall of building located So. East corner Franklin and Washington (upper panel), for advertising purposes, for a period of three years.
Gael Schilling.
Accepted. The R. J. Gunning Co.,
Per A. J. Seabbook.”
May 1, 1892, Schilling signed another paper as follows: “ In consideration of fifty dollars ($50.00), in advance, I agree to allow Thomas Cusack & Co. the right to use the west wall space, located at 206 E. Washington street, for advertising purposes, for a period of one year, with privilege of renewing at same terms.
Gael Schilling.
W. H. Klingman, Solicitor.”
Under the license contained in the first paper, the appellant painted its sign on the wall in the summer of 1890. Soon after May 1, 1892, the appellee painted over it with his own. They painted each other out four times apiece, and then the appellee filed this bill, on which the Circuit Court enjoined the appellant from interfering with the appellee in the use of the wall.
The brief of the appellant says, “ the great question in this case is whether or not Carl Schilling freely and knowingly signed ” the paper first herein copied.
The case was referred to a master to take proofs, and it was stipulated, relative to the testimony of every witness before the master, that objections might be raised on, the trial as if made when each question was put to the witness.
The wife of Schilling was a witness for the appellee and testified without objection, and it is now urged that she was incompetent.
, If the decree in this case could in any way affect the interest of Schilling, she would be incompetent. Craig v. Miller, 133 Ill. 300. But he is not a party; if the appellant sues him, and he defends upon the ground on which this decree has gone, he will have to make out that defense without any aid from this decree. 2 Black on Judgments, 567 et seq„
Whatever may be the bias or feeling of Schilling, he has no legal interest in this suit, and his wife is not incompetent because of his or her bias. That goes to credit.
Anri if the decree were the other way, it would not be evidence against Schilling, if he were sued by the appellee. Ibid. And the fact that the consideration paid by the latter was larger than that paid by appellant, would not affect the amount of the damages in a suit by either party. Cilley v. Hawkins, 48 Ill. 308.
So that as the decree either way would not be evidence for or against Schilling, and would not affect the measure of his liability, if he should he liable, he had no legal interes i in the result, and she was a competent witness.
We might well have disposed of the question of her competency on the ground that it was never raised by any objection before the master and exception before the court. Pardridge v. Ryan, 35 Ill. App. 230.
Carl Schilling could not read English; whether the paper first herein copied was truly read to him, or represented to be only for a period of one year, was the subject of much conflicting testimony, to review which would occupy much space, and of which we r content ourselves with saying that the finding below is noL jo manifestly wrong that we may set it aside.
The appellant moved for a rehearing upon newly discovered testimony, but it ivas merely cumulative, and there was not such diligence in discovering it before trial as is required. Crozier v. Cooper, 14 Ill. 139, has never been departed from in this State.
Both parties have argued this case upon the theory that the papers signed by Schilling were leases, and that the use of the wall under them was possession. That is a mistake. The right to use the wall “ was a burden or servitude in the nature of an easement,” carrying with it the right to such access as might be necessary to make the burden of value. Willoughby v. Lawrence, 116 Ill. 11.
If the paper under which the appellant claimed, was misread to Schilling, and he was deceived into signing for a period of three years, when told that it was for only one, the paper was void; Auten v. Gruner, 90 Ill. 300; and Schilling had the right to disregard it, certainly at the end of one year, and grant the right to use the wall tq the appellee, who would be entitled to the aid of the law to protect him in that use. Whitney v. Roberts, 22 Ill. 381.
An injunction is the only means of protecting him against repeated invasions of his right; actions at law would give him indemnity for the past, but no security for the future. To prevent a multiplicity of actions an injunction was proper. Owens v. Crossett, 105 Ill. 354. And see W. U. Tel. Co. v. P. & A. Tel. Co., 49 Ill. 90, where the Supreme Court protected a similar right by injunction. The facts of the case are not reported, but as the appeal was from me, I know that it was a quarrel between two telegraph companies as to the right to string wires upon the poles of a railway, under conflicting grants by the railway.
We have confined ourselves to such points as are argued in the appellant’s brief. Wabash, etc., Ry. v. McDougal, 113 Ill. 603; and finding no such error as is complained of, the decree is affirmed.
Dissenting Opinion
Dissenting.
I can not assent to the affirmance of this decree adjudging a written contract made by one of the parties to this litigation and one Schilling, who is not a party to this cause, null and void, and ordering that it be surrendered up and canceled. Eeither of the parties to such contract, nor any person claiming rights thereunder, has applied to have it adjudged void, or that it be surrendered and canceled.
ISTor can I assent to awarding complainant damages for alleged trespasses committed prior to the filing of the bill. As to these there was a plain and adequate remedy at law.