60 Ill. App. 595 | Ill. App. Ct. | 1895
delivered the opinion oe the Court.
Startling as is the informality attending the conduct of this cause, we are of the opinion that there is no law compelling parties to prepare and file pleadings if they are content to have their case presented and heard without written statements.
The case is therefore to be treated as a bill in chancery, a suit in assumpsit, or an action of case, as the merits may require.
By the terms of the contract the money earned by appellant did not become due to him until the assessment levied by the city had been collected.
When this was collected he was paid; it therefore is clear that although the city wrongfully delayed for one year the collection of the .assessment, interest, as such, is not recoverable upon the sum he should in good faith have been paid twelve months before he was.
Considering the suit as an action upon the case, brought to recover the damage sustained by plaintiff by reason of the tortious conduct of the city in willfully delaying for one year the collection of this assessment, the question presented is, can he not recover such damage, the measure thereof being lawful interest upon the sum whose payment to him was in flagrant bad faith delayed ?
That it was the duty of the city to proceed with reasonable diligence to collect this assessment, is conceded; that its deliberate refusal so to do was an act of bad faith, is manifest. City of Chicago v. The People ex rel., 48 Ill. 416-418.
In such case the “injured party has an election as to whether he will sue in assumpsit or case.” Clayburgh v. City of Chicago, 25 Ill. 535.
By the terms of the agreement between appellant and the city, nothing was due him until the assessment had been collected; there was therefore no delay in paying the sum due. Interest upon a sum due can not here be recovered. The delay was in wrongfully staying for one year the collection of the assessment, and it is upon such wrongful action that appellant’s action is based.
Appellant, a year after he should have been paid, received, ,so far as appears, without protest, the sum for which he did the work.
A majority of the court are of the opinion that such reception by him precludes his recovery of anything more.
The case of Page, Bacon & Co. v. Elias Warner, 4 Cal. 395, is thought to be analogous in this respect to the one under consideration.
The city was charged with the duty, not only of collecting this assessment and paying the same to appellant, but with proceeding to collect with reasonable diligence; it has discharged a portion of its obligation; another part it wrongfully refused to carry out; because of such refusal appellant sustained damage for which he brought this suit.
It appears to a minority of the court that the reception by appellant, without protest, of what the city received and held in trust for him, ivas not a waiver of his claim for damage by reason of appellee’s flagrant breach of duty.
In Chicago v. The People, 56 Ill. 327, a proceeding by way of mandamus, it was held that the mere inability of the city to collect an assessment, did not entitle the party for whose benefit it was made to recover interest from the city, although under the peculiar circumstances under which the agreement there under consideration was entered into, the city was held liable for the amount of such assessment. That case is materially variant from the present, in that the court there held that the allegations of negligence being specifically denied by the return, the relators were precluded from basing any ground of relief or recovery upon the alleged negligence.
It is urged that the city is not liable for a violation or neglect of duty by its officers.
The duty was that of the city, which, like other corporations, acts only through agents; in the present case the stay, the wrongful act, was by order of the common council.
A majority of the court being of the opinion that appellant is not entitled to recover, the judgment of the Superior Court is affirmed.
