decree is clearly erroneous. Appellees tendered to the South Elgin Stone Company only the sum of $241, and the court found that to be a sufficient tender, and decreed the execution of deeds to appellees upon the payment of said sum of $241. As we understand the contract and the record, the tender made and the sum required to be paid are wholly insufficient in amount. The contract gives to appellees the privilege of purchasing "so much of the north one-half (2) of block fifteen (15) * as they may desire to purchase." It also contains this further provision: "The first parties also agree to convey, by quitclaim deed with the above, the land, between blocks sixteen (16) and fifteen (15), known as 'Kane Street,' and all that land between Kane street and that part of block fifteen (15) so purchased, on the one side, and Fox river, on the other, at the same price per square rod as has been paid for the said land this day conveyed to said parties, to be paid as follows: Cash in hand when possession is taken. The said north half of said block fifteen (15), or any part thereof, as the case may be, to be conveyed by warranty deed, and the other premises by quitclaim deed." As has been hereinbefore seen, "the said land this day conveyed" is stated in the preamble of the contract to be, not only block 16, but also the land immediately north thereof, two rods wide, originally platted for a street, and the land between said block and Fox river. It is conceded that the "price per square rod" paid for the land first bought was $5; and the tender that was made by appellees to the stone company was $5 per square rod for the number of square rods contained in the north half of the north half of block 15. It is also an admitted fact that $1,200 was the price paid by appellees to Tefft for the land bought and conveyed on April 28, 1888. The plat in evidence shows that block 16 is 330 feet from east to west, by 167 feet from north to south, and that North street is 2 rods wide, and is 330 feet in length from La Fox street to the east end of block 16. We find nothing in the record to indicate the width of the land lying between said block and Fox river; but, judging from the plat, it was probably regarded as insignificant, and not taken into the account. North street contains 40 square rods of land, and that street and block 16, taken together, contain but a few feet more than 240 rods of land; and 240 square rods of land, at $5 per square rod, amounts to $1,200, the exact price that was paid for the land deeded to appellees at the time of the first purchase. As the quitclaimed land contained in North street was taken into account in computing the purchase money then paid, and as, by the executory contract, appellees were to pay for the land in which the option was given the same price per square rod as was paid for the lands then conveyed to them, it necessarily follows that the price of the square rods of land located in Kane street,

at $5 a square rod, was also to be included in the purchase money to be paid in the event appellees desired to avail of the privilege of buying contained in said contract.

It is true that $1,200 was inserted in the warranty deed for block 16 as the consideration money, and also that the nominal consideration of $1 was stated in the quitclaim deed; but the rule is that the recitals in a deed in regard to the consideration may be inquired into in any way, provided it is not sought to impair the effect of the deed as a conveyance. Insurance Co. v. Wolf, 37 Ill. 354; Morris v. Tillson, 81 Ill. 607. It is also true that one of the appellees, in his testimony, after first testifying that the consideration for the two conveyances of April 28, 1888, was $1,200, says, in answer to a question asked by his counsel: "One thousand two hundred dollars was the price of the block. Then he gives me a quitclaim deed of a piece of land on the north side of the block and on the east of it. $1,200 was the consideration for the land described." But we regard this as ambiguous and unsatisfactory, and as of little weight as against the evidence afforded by the contract itself, and the plat of the land and the deeds.

There are other questions of interest that arise upon the record, but a consideration of them is not necessary for the purposes of this appeal; and, as it appears that other persons who are not parties to this suit are interested in the subject-matter at issue and involved in said questions, we refrain from any decision upon them. For the errors indicated herein, the decree is reversed, and the cause is remanded. Reversed and remanded.

(158 Ill. 137)

CITY OF ROODHOUSE v. CHRISTIAN.1 (Supreme Court of Illinois. Oct. 14, 1895.) FORMER ADJUDICATION-MUNICIPAL CORPORATIONS

-DEFECTIVE SIDEWALKS-APPEAL.

1. Where a person injured by being burned by an electric wire, against which he stumbles on account of a defect in the sidewalk, sues the city therefor, without alleging any joint negligence of the city and the electric company owning the wire, the fact that he has obtained judgment against said company for the same injury presents no defense to the action. 55 Ill. App. 107, affirmed.

2. Instructions which lead the jury to understand that a city is absolutely bound to maintain its sidewalks in a safe condition do not constitute reversible error, where other instructions announce the correct rule, that the city is only bound to exercise reasonable care in maintaining its sidewalks.

3. It is the duty of an appellant, who assigns as error the giving of certain instructions, to set forth in his abstract all the instructions given.

Appeal from appellate court, Third district. Action on the case by George W. Christian against the city of Roodhouse. Plain

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

tiff obtained judgment, which was affirmed by the appellate court. 55 Ill. App. 107. Defendant appeals. Affirmed.

Mark Meyerstein and J. M. Riggs, for appellant. D. J. Sullivan and D. F. King, for appellee.

WILKIN, C. J. Appellee brought this action to recover damages for a personal injury alleged to have been sustained through the negligence of the defendant. He recovered a judgment in the circuit court of Greene county for $2,500, and that judgment has been affirmed by the appellate court. The declaration is of five counts. In the first, fourth, and fifth the negligent act charged against the defendant is permitting a telephone wire, charged with electricity, to be and remain across and near one of its sidewalks, whereby the plaintiff was injured by falling against the same and being burned. In the second and third counts it is charged with negligently suffering a sidewalk to be and remain out of repair and in an unsafe condition, whereby the plaintiff was thrown against a telephone wire charged with electricity, and burned, etc. The defendant filed four pleas, the first being the general issue, and the second setting up that plaintiff had theretofore recovered a judgment for $1,250 against the Roodhouse Electric & Power Company for the same injuries and damages, which had never been reversed or annulled, pleading the same in bar to this action. The third and fourth pleas are substantially like the second. To these three special pleas a demurrer was sustained by the circuit court, and proper exceptions taken. The only errors of law assigned upon the record are-First, sustaining the demurrer to the special pleas; and, second, in giving instructions on behalf of the plaintiff.

If

In support of the first of these assignments of error, counsel contend that the evidence wholly fails to prove that the injury to the plaintiff was caused by the joint negligence of appellant and the electric and power company, and therefore, the plaintiff having sued the latter and recovered a judgment against it for the same injuries here complained of, that action is a bar to this. the premise of this proposition is admitted, the conclusion does not, in our opinion, follow. But the several counts in this declaration clearly charge that the injury was the result of the individual negligence of the city, and the evidence clearly tends to prove the truth of the charge. The appellate court having affirmed the judgment of the circuit court, the fact of negligence is conclusively settled against appellant. Counsel admit that the appellate court has found that there was a defect in the sidewalk at the point in question, and that thereby appellee was caused to trip and fall; but they say the fall was not the real cause of the

injury. "He did not thereby receive any fracture, sprain, bruise, or similar injury. The whole injury was caused by electric burning." But, if the defect had not been in the sidewalk, as charged in the second and third counts, thereby causing the plaintiff to trip and fall against the wire, he would not have been burned; and so the negligence of the city, under these counts, in permitting its sidewalk to be and remain in an unsafe condition, was the primary cause of the injury. These pleas do not aver satisfaction of the judgment obtained against the electric and power company, and under this declaration we are unable to see wherein the doctrine of the liability of joint tort feasors has any application whatever. This declaration does not charge that plaintiff was injured through the joint negligence of the defendant and the electric and power company, nor do the pleas so aver, and hence his recovery in this case in no way depends upon the liability of the latter company. The pleas presented no defense to this action.

Numerous instructions were given at the instance of either party. Of the 24 given on behalf of the plaintiff, the 1st, 3d, 8th, 12th, 16th, 17th, 18th, and 20th are criticised. Notwithstanding the fact that appellant has failed to present in its abstract either of the instructions given at its request, we have examined the series given on behalf of the plaintiff; and while some of those objected to, if they stood alone, might contain reversible error, we are clearly of the opinion that, considered together, in view of the evidence in this case, they could not have misled the jury to the prejudice of the defendant. In determining whether or not an instruction is erroneous, it must be considered in connection with all the other instructions given in the case. And even though one or more instructions in a series may be erroneous, still, unless it can be seen that some injury thereby resulted to the party complaining, the error will be treated as a harmless one. It is therefore manifest that a case can only be properly considered, where the ruling of the trial court in giving instructions is assigned for error, when all the instructions given are presented by the abstract. All the instructions asked upon the trial should be set forth in the abstract. Parties have no right to set forth a single instruction, or the instructions given on one side of the case, and object to the same, leaving the court to go to the record for the purpose of determining whether others supply omissions or cure defects complained of. To illustrate, complaint is made, of the several instructions given in this case at the request of the plaintiff, that their language is calculated to lead the jury to understand that the defendant was absolutely bound to keep and maintain its sidewalk in a safe condition, whereas the law only required it to exercise reasonable care in the discharge

of that duty. Some of them are justly subI ject to that criticism, but many of those to which no objection whatever is urged lay down the correct rule with so much precision and directness that it is readily seen that no intelligent jury could have been misled by the objectionable ones.

After a careful consideration of the questions raised upon this record, we are satisfied that the appellate court decided properly in affirming the judgment of the circuit court, and its judgment will be affirmed. Judgment affirmed.

1. In an action to recover for work done under a building contract, where there has been only a substantial, and not a full, performance of the contract, the contractor can only recover the difference between the contract price and the reasonable cost of completing the building according to the contract.

2. Where the jury are correctly instructed, for the defendant, that the cost of completing the building should be deducted from the contract price, in an action to recover it, and the amount of the verdict is less than the contract price with interest, it sufficiently appears that instructions given for the plaintiff allowing a recovery of the full contract price did not mislead the jury.

Appeal from appellate court, First district. Assumpsit by Hiero B. Herr and others against James H. Keeler. Plaintiffs obtained judgment, which was affirmed by the appellate court. 54 Ill. App. 468. Defendant appeals. Affirmed.

Flower, Smith & Musgrave, for appellant. Gregory, Booth & Harlan, for appellees.

WILKIN, C. J. Appellees sued appellant to recover a balance which they claimed he owed them for constructing a certain dock. The declaration is in assumpsit, setting up a contract between the parties whereby plaintiff agreed to build 1,650 feet of dock on the Calumet river for defendant, according to plans and specifications named in the contract; the defendant to pay them therefor $7.25 per lineal foot,-$2,500 to be paid when 500 feet of the work was complete, $3,000 on the completion of 1,500 feet, and the balance when the whole was finished. Performance of the contract on the part of plaintiffs, and a refusal by the defendant to pay, were properly averred. Issue being joined on pleas of nonassumpsit and nonperformance of the contract, a trial by jury resulted in a verdict and judgment for the plaintiffs for $10,835.20. On defendant's appeal, the appellate court affirmed that judgment, And he now brings the record to this court.

There was no controversy between the par

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

2 Rehearing denied October 15, 1895.

tles on the trial, except as to whether the dock had been constructed in conformity with the contract. Plaintiffs offered evidence to the effect that they completed the work, according to the agreement, on the 21st of November, 1890, and that there was then due them, in payment for the same, a balance of $9,962.50, the sum of $2,000 having been paid during the progress of the work. The amount claimed to be due was denied by the defendant on the sole ground that the material used and manner of constructing the dock did not conform to the terms of the contract..

No error is assigned upon the admission or exclusion of testimony. A reversal is urged upon no other ground than that the jury was erroneously instructed, at the instance of the plaintiffs, to the prejudice of the defendant. These instructions, in effect, directed the jury that if the evidence showed that the plaintiffs constructed the dock "in substantial conformity to their contract," then they were entitled to recover the contract price, leaving it to determine whether there had been such a substantial performance. We think they are erroneous, both because they allow plaintiffs to recover the full contract price upon proof of a "substantial performance" of their contract, and because they submit to the jury the question of performance without any construction of the contract by the court. Taylor v. Beck, 13 Ill. 376; Estep v. Fenton, 66 Ill. 467.

That some of those instructions are justly subject to the last of these objections is not denied by counsel for appellees, but it is insisted that defendant's instructions are subject to the same objection, and that he cannot therefore take advantage of the error; citing Steel Co. v. Martin, 115 Ill. 358, 3 N. E. 456; Packet Co. v. Binninger, 70 Ill. 571. There is force in this position, but we think the judgment of the circuit court should be affirmed on the more substantial and meritorious ground that it clearly appears that the error complained of worked no injury to appellant. All the instructions given on behalf of the plaintiffs went upon the theory that they were entitled to recover the entire contract price. Those given for the defendant, except the fourth, are to the effect that they could only so recover upon proof that they had fully performed the contract. But the defendant's fourth instruction is in the following language: "The jury are instructed that, under the written contract in evidence, the defendant was entitled to have erected such a dock as was called for by the terms of the contract, and even though the jury may believe that there has been a substantial performance of the terms of the contract by the plaintiffs, yet, nevertheless, if the jury believe that the terms have not been fully complied with, the jury should allow to the defendant such sum or sums as from the evidence they may believe are reasonable and proper to enable the defendant to complete the dock in the manner stipulated for in the contract." This instruction correctly states the law applicable to the facts of the case, and we

think it clearly appears that the jury followed it in making the verdict. In contracts like the one in suit, sometimes called "building contracts," a literal compliance with the specifications is not necessary to a recovery by the contractor. A substantial performance, in good faith, is sufficient. As was said in Sinclair v. Tallmadge, 35 Barb. 602: "If there has been no willful departure from the terms of the contract or omission in essential points, and the laborer has honestly and faithfully performed the contract in all its material and substantial particulars, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent, or unimportant omissions or defects. The law imposes no such liability, and enforces no such penalty." Glacius v. Black, 50 N. Y. 145, is to the same effect, and in Crouch v. Gutmann, 134 N. Y. 45, 31 N. E. 271, it is said: "Then slight defects, caused by inadvertence or unintentional omissions, are not necessarily in the way of recovery of the contract price, less the amount, by way of damages, requisite to indemnify the owner for the expense of conforming the work to that for which he contracted." See, also, Linch v. Elevator Co., 80 Tex. 23, 15 S. W. 208; Flaherty v. Miner, 123 N. Y. 382, 25 N. E. 418; Gallagher v. Sharpless, 134 Pa. St. 134, 19 Atl. 491; Moore v. Carter, 146 Pa. St. 492, 23 Atl. 243; Leeds v. Little, 42 Minn. 414, 44 N. W. 309; Aetna Iron & Steel Works v. Kossuth Co., 79 Iowa, 40, 44 N. W. 215.

But counsel for appellant insist that the jury did not obey that instruction, but followed those given on behalf of plaintiffs. As above stated, plaintiffs claimed there was due them, on the completion of the work, November 21, 1890, $9,962.50, and it is not denied by defendant that, if the work and material had been as good as contracted for, they would, by the terms of the agreement, have been entitled to recover that amount as of that date. By the statute in force when the contract was entered into, and when payment should have been made, they were entitled to interest on the amount due at the rate of 6 per cent. per annum to the date of the recovery, and they made that claim on the trial. Herr testified: "The balance due, including interest at 6 per cent., was $11,504.76." It was admitted defendant was entitled to a credit of $150 for posts not put in, by agreement of parties; so that the actual amount claimed by plaintiffs at the trial was $11,354.76. The verdict ($10,835.20) was therefore $519.56 less than the amount which plaintiff's insisted was due them, and this difference can, in our view of the evidence, be accounted for only upon the theory that the jury allowed interest on the claim of plaintiffs, and allowed the defendant damages for defective material and construction. It is true the jury were not specifically instructed on the subject of interest, but that the third given at the request of plaintiffs, to the effect that, if they had substantially performed the contract on their part, they were entitled to recover the contract price, less a reasonable

allowance for "snubbing posts," amounted to a disclaimer to interest on the amount due, as contended by counsel for appellant, cannot be maintained. That instruction, as well as others given at plaintiffs' request, were, as already said, intended to direct the jury to allow them the full contract price, on proof of substantial performance. If they were entitled to that price under the contract, the statute gave them the right to interest from the time the money became due by the terms of the written agreement. The third instruction in no proper sense waived that right. It seems clear that the jury did allow interest, because in no other. way, consistent with the evidence, could the amount of the verdict have been reached. This counsel for appellant concede, but they attempt to account for the reduction of plaintiffs' claim upon the supposition that but 5 per cent. interest was allowed, and that only from the commencement of the suit to the date of the verdict. The exact amount of the verdict cannot be reached even in that way, but no evidence was offered by either party upon which interest could have been so competent, neither did the law authorize it. On the whole case, we think the conclusion is irresistible that the verdict of the jury was reached by following the directions of the court as given in defendant's fourth instruction. That being so, an affirmance of the judgment below must follow, notwithstanding the errors in other instructions, because they were harmless.

We are also of the opinion that, from all the evidence in this rccord, substantial justice is done the defendant by the verdict of the jury and judgment of the circuit court, and that he could not reasonably expect a more favorable result if allowed another trial. The judgment of the appellate court will be affirmed. Affirmed.

(158 Ill. 186)

HUMPHREYS et al. v. ROTH et al.1 (Supreme Court of Illinois. Oct. 14, 1895.) APPEAL-HARMLESS ERROR.

Where a decree dismissing a bill, and granting relief on a cross bill, is appealed from only by the original complainant, who is not affected by the cross bill, the fact that the evidence does not sustain the allegations of the cross bill is not cause for reversal.

Error to circuit court, Champaign county; Francis M. Wright, Judge.

Bill by J. F. Humphreys & Co. against J. M. Roth, Ida B. Roth, J. B. Savage, and Sarah L. Savage. Defendants obtained a decree. Complainant brings error. Affirmed.

Plaintiff in error, having recovered a judgment in attachment in the county court of Champaign county, against J. M. Roth, for $160 and costs of suit, levied upon and caused to be sold 6 feet off of the east side of lot 9, and 22 feet off the west side of lot 8, block 6, in the town of Fisher, in Champaign coun

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

ty, itself becoming the purchaser. It subsequently filed this bill, alleging that one J. B. Savage claimed to be the owner of said property, and that the legal title is in him, but that he is not the owner thereof, but is claiming the same for the benefit of J. M. Roth, to defeat plaintiff. The bill also alleges that Ida B. Roth, wife of J. M. Roth, claims some interest in the property. The prayer is for a decree finding the property subject to plaintiff's attachment, etc. J. B. Savage and Sarah L., his wife, and J. M. Roth and Ida B. Roth, were made defendants. They filed a joint answer, denying all fraud, and admitting that the legal title to the premises described in the bill was in J. B. Savage, but denying that J. M. Roth had any interest therein except a verbal agreement by Savage to convey the same to him upon the payment of $500. To this answer a general replication was filed, and afterwards, at the March term, 1894, Ida B. Roth filed her cross bill, alleging that she purchased said property of one A. D. Ricketts in January, 1892, and received from him a deed therefor, for which she paid the purchase price with her own separate funds; that in April, 1892, to aid her husband in the purchase of a stock of goods in Fisher, Ill., from said J. B. Savage, she conveyed the premises to Savage, but that, both the deed from Ricketts to her and from her to Savage being unrecorded, they were by agreement destroyed, and Ricketts deeded directly to Savage; that afterwards, on July 15, 1892, her husband resold the stock of goods to Savage, and that it was then agreed by Savage, herself, and J. M. Roth that said premises should be reconveyed by said Savage to her, which Savage has frequently since been requested to do, but has as often failed to convey the same back to her; that J. M. Roth paid nothing towards the purchase of the premises, and has not now and never had any interest in the same, except as her husband. Complainant in the original bill, Savage and wife, and J. M. Roth were made defendants to this cross bill, answers under oath except as to J. M. Roth being waived, and a decree prayed dismissing the original bill at the cost of the complainant therein, and ordering J. B. Savage and Sarah L. Savage to execute a good and sufficient deed of conveyance of the premises to oratrix. On the 5th of March, 1894, J. M. Roth and Ida B. Roth, having obtained leave to withdraw their former answer to the original bill, answered over, denying that J. B. Savage holds the legal title to the property described for J. M. Roth, or that the latter is the owner thereof or ever had any interest therein except as husband of Ida B. Roth, and denying all collusion and fraud on the part of J. M. Roth, and averring that the premises are the separate property of Ida B. Roth, purchased and paid for with her own individual money. On the same day, J. M. Roth filed a sworn answer to the cross bill, admitting that its allegations were true in substance and in fact. Answers by the other de

fendants being filed, the cause was heard in open court, on written exhibits and oral proof. The original bill was dismissed for want of equity, and a decree entered granting the relief prayed in the cross bill, at the cost of the complainant therein.

Fifer & Barry and J. O. Cunningham, for plaintiff in error. Thomas J. Smith, for defendants in error.

WILKIN, C. J. (after stating the facts). Complainant in the original bill alone prosecutes this writ of error. The only ground for reversal urged by it is that the decree of the circuit court is unsupported by the proofs, and the first and controlling question is, was its bill properly dismissed? If it was, even though the decree on the cross bill is erroneous, no injury results therefrom to plaintiff in error, and it cannot complain. While there is much uncertainty and indefiniteness in the testimony, it is clear that, at the time the property was purchased by plaintiff in error on its attachment, the legal title was in J. B. Savage. It is so alleged in the bill. The fact that he got that title by the destruction of an unrecorded deed from Ricketts to either J. M. or Ida B. Roth is, as between these parties, of no consequence; nor do we think it makes any difference in the decision of this case to which of the Roths the destroyed deed from Ricketts was made. It is not denied that Savage got the property in part payment for a stock of goods purchased by J. M. Roth prior to the incurring of his indebtedness to plaintiff in error. It cannot therefore be said that the conveyance to Savage was for the purpose of defrauding it; nor is that the theory of its evidence. The testimony on its behalf on the hearing was to the effect that, by the contract of resale between Savage and J. M. Roth, the latter was to have this property conveyed to him, but that he afterwards concluded with Savage to allow the title to remain in him for his (Roth's) benefit, to defraud plaintiff in error. The chancellor who heard the cause evidently found against that contention. The witnesses were before him, and we cannot say his finding is so clearly contrary to the weight of the evidence as to justify us in setting it aside. While the testimony of both Mr. and Mrs. Roth as to the repurchase of the property by the latter from Savage is inconsistent with the allegations of her cross bill and his sworn answer as to the truth of those allegations, still, unless they have knowingly and willfully sworn falsely, J. M. Roth never owned the property or paid anything for it; and as to this fact they are wholly uncontradicted by any competent proof. If, in fact, Mrs. Roth purchased and paid for it as her own separate property, plaintiff in error could not lawfully seize it for her husband's debts, even if the legal title had once been in him, unless it could show that it had been misled thereby to its injury; and, as we have seen, there is no claim, either in the al