not be obeyed, where it is conceded on the trial that it is not a proper case for specific performance, and the bill, while showing a breach of the contract, does not clearly show that the complainant has suffered damage, there was no error in the court's refusal, after reforming the lease, to retain the case for the assessment of damages.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 412-419.] 2. COSTS-REFORMATION OF LEASE-DEMAND.

In a suit to reform a lease and for other relief, where the bill did not allege that any request was made that the lease be corrected, and the other relief was denied, complainants were properly required to pay the costs, though the court reformed the lease.

Appeal from Appellate Court, First District.

Action by William P. Henneberry against Charles W. Braithwaite and others. From a judgment of the Appellate Court affirming, except as to costs, the decree of the superior court, complainant appeals. Affirmed.

James J. Barbour and Furber & Wakelee, for appellant. Sears, Meagher & Whitney (James F. Meagher and Jesse J. Ricks, of counsel), for appellees.

CARTWRIGHT, J. The superior court of Cook county overruled the demurrer of appellee to the amended bill of appellants asking the court to correct a mistake in matter of description in a lease, which included a contract, executed by said parties, and to enforce specific performance of the contract as reformed; and, in the event that appellee should refuse to obey the order of the court for the performance of the contract, appellants should be awarded compensation for their outlays and such damages as they had suffered and would thereafter suffer, and that a mortgage given to secure the performance of the lease on their part should be canceled. Appellee elected to stand by his de murrer, and then in open court released the mortgage, whereupon the court reformed the lease and awarded costs to appellants, but refused any further relief. Appellants obtained the relief they asked for so far as the reformation of the lease was concerned, and appellee released the mortgage, but appellants excepted to the refusal of the court to grant further relief and appealed to the Appellate Court for the First District. Errors and cross-errors were assigned and the Appellate Court affirmed the decree except as to costs, but required appellants to pay the costs in the superior court as well as the Appellate Court. From the judgment of the Appellate Court appellants have brought the case by a further appeal to this court.

The facts stated in the amended bill and admitted by the demurrer are substantially as follows: The defendant, being the owner of two lots in Chicago, leased them on July 28. 1903. to complainants for 20 years, from November 1, 1903 to November 1, 1923. The property leased was in range 14, but by mis

take was described as being in range 13. The defendant was to remove the old structure on the property and to erect thereon a modern sprinkled mill building covering the entire land, six stories and a basement in height, to cost not exceeding $60,000 and to fulfill certain requirements. The plans and specifications were to be submitted to the complainants and changed or altered as they might require, provided the cost of the building and equipment should not exceed $60,000. The rent was to be $608.34 per month, and if the building was not completed until after November 1, 1903, the rent was to be rebated until it should be completed. The defendant agreed to proceed promptly to erect the building and to complete it on or about December 15, 1903, provided there was no interference or delay on account of strikes or the act of God. Five hundred dollars was to be paid, and was paid, at the execution of the lease, and the complainant Charles W. Braithwaite and his wife executed a mortgage to secure a performance of the covenants of the lease for the first seven years of the term. The de fendant had plans drawn for the building, which were approved by the complainants, but the defendant represented that the build. ing would cost more than $60,000. Complainants consulted another architect, who agreed to furnish plans and specifications and superintend the erection of the building at a cost not to exceed $60,000. Bids were obtained and opened on or about November 11, 1903, offering to construct the building for $54,666. Defendant made no move toward entering into a contract for the building, but did not reject the bids and requested the architect to hold them open until he was ready to proceed. Complainants frequently demanded that defendant proceed, but upon one pretext or another he postponed or delayed action. December 15, 1903, passed and no move was made toward the construction of the building, and the delay was not caused by strikes or the act of God. The bill was filed December 24, 1903, and alleged that one of the complainants desired to use a part of the building, and its then existing lease expired May 1, 1904; that the defendant knew that it was the purpose of the complainants to lease a large portion of the premises; that the rent season in Chicago begins on May 1st, and unless the building should be completed prior to May 1, 1904, the complainants would be greatly damaged and inconvenienced; that the performance of the covenants and agreements of defendant would result in great gains and profits to the complainants, which, according to the rental value, would amount for the period of twenty years to $100,000, and that the failure to erect the building was wholly due to neglect, delay and inaction of the defendant. Complainants paid $500 when the lease was executed. Braithwaite executed the mortgage, and complainants obtained a guaranty policy on the mortgaged

premises and paid therefor $150. The defendant never delivered possession of the premises to complainants.

The superior court overruled the demurrer to the amended bill and reformed the lease by correcting the error as to the range, and it is now conceded that the contract was not of such a nature that the court could grant the prayer for specific performance of it, but it is contended that the court erred in not retaining the cause for the assessment of damages to the complainants. The complaint as to the Appellate Court is that upon the affirmance of the decree the court required the complainants to pay the costs in the superior court.

It is the rule that when a court of equity acquires jurisdiction over a cause requiring any equitable relief, the court may retain the cause for all purposes, and establish legal rights and provide legal remedies which would otherwise be beyond the scope of its authority. In such a case the court will not ordinarily limit itself to the execution of partial justice and turn the parties over to a court of law, but will go on and dispose of all the matter at issue so as to do adequate and complete justice between all the parties. Whether the court will so proceed to a final determination of legal rights is a matter for the exercise of sound discertion, which is subject to review, and which will ordinarily be exercised by retaining the cause and granting any necessary legal remedies. In this case we think the superior court did not err in refusing to retain the cause for the assessment of damages, because of the nature of the bill and the want of necessary averments upon which to base such action. The prayer of the bill was that the court should enforce the specific performance of the contract as reformed, and the only prayer for damages was that if the defendant should decline or refuse to obey the order of the court, the complainants might be awarded compensation and damages and have the mortgage released, and have a lien on the premises for their outlays and damages. The bill was drawn upon the theory that the contract was still in force, and it prayed for a specific performance of the contract. It alleged that the defendant had not complied with complainants' request to proceed, but had on one pretext or another postponed action; that the failure to erect the building was wholly due to such neglect and inaction, and that the defendant had requested the architect to hold the bids open until he should be ready to proceed with the erection of the building. It was not alleged that the defendant had rescinded the contract or abandoned it or refused to perform it, and the complainants did not ask the court for a rescission and an award of damages, but asked for specific performance. There is no averment under which damages could be recovered for a breach of the entire contract, unless there should be a refusal to comply

with the decree for specific performance. There was a general prayer for relief, and if a bill contains averments of specific facts which authorize the granting of certain relief it may be granted under a general prayer. In this case the building was to have been completed by December 15, 1903, and the bill was filed nine days afterward. It alleged that the rent was to be rebated until the completion of the building; that the rent season commenced on May 1st; that if the building should not be erected by May 1, 1904, complainants would be greatly damaged; that the lease of one of the complainants expired at that time, and that said complainant desired to remove to new quarters on that date. The only covenant that had been broken was the covenant to complete the building by December 15, 1903, and the most that the court could have done would have been to have allowed damages for the breach of that covenant if any had been averred. It would have been just as consistent with the averments of the bill to say that complainants suffered no damage as to say that they suffered any. There was no averment that defendant ever refused to erect the building, but counsel say that when he released the mortgage in open court that act showed that he did not intend to perform the contract and authorized the court to assess damages. We can only regard that act as showing a willingness of the defendant to release the mortgage or that he did not care to retain it, and we do not see how the act could affect or change the issues. We do not see upon what theory the court could have assessed damages so as to do adequate and complete justice between the parties, and think the court did right in refusing to retain the cause for that purpose and leaving the parties to their legal remedies.

Appellee has assigned a cross-error that the superior court erred in overruling his demurrer and reforming the lease. The bill contained no averment that the defendant, who was competent to correct the mistake, had been requested or had an opportunity to do so, and no excuse was offered for the failure to make such request. The bill alleged that the mistake was mutual and the parties were ignorant of it, and it is insisted that in a case where no equitable relief is demanded except the correction of a mistake, there must first be a demand and refusal to correct it, or the bill must show facts from which it appears that a demand would be useless or impossible. Counsel, however, say that they do not want the cross-error passed upon unless we should hold that the case was one where the court ought to have assessed damages. As we have decided that the court did not err in that particular we do not consider or decide the question raised by the cross-error. As to the costs, we are of the opinion that regardless of the question whether one party to a mutual mistake may, upon discovering it, resort to a court of equity and subject the other party to the ex

pense and inconvenience of a suit without advising him of the mistake or giving him an opportunity to correct it, the Appellate Court did not err in requiring complainants to pay all the costs. So far as appears, the bill was filed without any necessity against a party to a mutual mistake who may have been entirely willing to correct it.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

(222 111. 56)

CASE v. CITY OF SULLIVAN et al. (Supreme Court of Illinois. June 14, 1906.) 1. MANDAMUS-SHOWING NECESSARY TO OBTAIN WRIT.

Before a party will be coerced by a writ of mandamus to perform an act, it must clearly appear from the petition that it is his legal duty to perform such act.

HAND, J. This was a petition filed in the circuit court of Moultrie county by the appellant to coerce the city of Sullivan, its mayor and city clerk, to issue to him improvement bonds under the local improvement act of 1897, for the sum of $36,343.77, in payment of the contract price for improving a portion of Harrison and other streets in said city by curbing and paving the same, which improvement was put in by the appellant in the year 1904 under a contract with the board of local improvements of said city, made in the month of October of that year by virtue of an odrinance of said city bearing date July 18, 1904. The appellees demurred to the petition upon the ground that the assessment for said improvement was divided into installments, and the petition failed to show a finding of the court in which said assessment had been confirmed, that said improvement as completed conforms substan

2. MUNICIPAL CORPORATIONS · LOCAL IMPROVEMENTS-ISSUANCE OF BONDS-APPROVAL OF IMPROVEMENT BY COURT.

Local Improvement Act, § 83 (Hurd's Rev. St. 1903, c. 24), authorizes the board of local improvements to determine whether an improvement has been constructed substantially in accordance with the ordinance, and provides that if the board decides that it has, and accepts the improvement, such acceptance is conclusive in the proceeding to make the assessment, etc. Section 84, as amended in 1903 (Hurd's Rev. St. 1903, c. 24), requires boards of local improvement after the completion and acceptance of any work to file a certificate in the court where the assessment was confirmed, stating whether the improvement conformed substantially to the requirements of the original ordinance and to make an application to the court to determine whether or not the facts stated in the certificate are true, whereupon it becomes the duty of the court to give notice of a time and place for hearing upon the application; and, in case it finds that the improvement was constructed in substantial accordance with the ordinance, to approve the acceptance by the board, or, in case it finds otherwise, to procure the completion of the improvement in substantial accordance with the ordinance. Held, that a city has no right to issue improvement bonds in payment for a local improvement until the board of local improvements has filed the certificate provided for by the statute and the court has entered an order that the improvement conforms in substance to the improvement ordi

Where a case comes to the Supreme Court by appeal from the Appellate Court which has no power to consider constitutional questions, the right to raise a constitutional question is waived.

Appeal from Appellate Court, Third District.

Petition by Maurice E. Case against the city of Sullivan and others. From a judgment of the Appellate Court affirming a judgment for defendants, plaintiff appeals. Affirmed.

Jack, Irwin, Jack & Danforth, for appellant. John E. Jennings and F. M. Harbough, for appellees.

ordinance providing for the construction of the improvement, as required by section 84 of the local improvement act, as amended May 14, 1903 (Hurd's Rev. St. 1903, c. 24). The court sustained the demurrer, and, the appellant having elected to stand by his petition, dismissed the petition and rendered judgment against the appellant for costs, which judgment, upon appeal, was affirmed by the Appellate Court for the Third District, and a further appeal has been prosecuted to this court.

The petition averred that the improvement had been completed in accordance with the terms of the improvement ordinance and to the satisfaction of the board of local improvements of said city, and that the improvement had been accepted by said board of local improvements. This brought the construction and acceptance of the improvement within the terms of section 83 of the local improvement act of 1897. It, however, failed to show that a certificate had been filed by the board of local improvements in the court in which the assessment had been confirmed, within 30 days after the final completion and acceptance of the work, or at any other time, stating said improvement, as completed, conformed substantially to the requirements of the original ordinance for the construction of the improvement, and applying to the court to consider and determine the truth of the facts stated in said certificate, or that there had been a hearing upon said certificate or a finding by said court that the facts stated in said certificate were true and that said improvement had been completed in substantial conformity to the requirements of the original ordinance. In other words, the petition failed to show that the requirements of section 84 of the local improvement act, as amended in 1903, had been complied with at the time the petition for mandamus was filed.

The sole question, therefore, presented for

decision in this case is, must the board of local improvements of a city comply with the provisions of said section 84 as amended, by filing in the court where the assessment was confirmed the certificate provided for therein to be filed, and there be a hearing upon said certificate, and the court enter an order that the improvement, as completed, conforms, in substance, to the improvement ordinance, as a condition precedent to the right of the city to issue to the contractor the improvement bonds provided to be issued in payment of a local improvement where the assessment is divided into installments, in cases where, as here, the contractor has agreed to accept said improvement bonds in payment of the work, or may such improvement bonds rightfully be issued to the contractor upon the acceptance of the work by the board of local improvements and without the filing of said certificate by said board and the entry of such order by said court?

The law is well settled that before a party will be coerced by a writ of mandamus to perform an act it must clearly appear from the petition that it is his clear legal duty to perform such act, and if a clear legal duty to perform the act sought to be coerced does not rest upon the party sought to be coerced, the court will not grant the writ. It was therefore essential the petitioner should show by his petition that it was the legal duty of the appellees to issue said improvement bonds at the time he filed his petition, and if any step or steps in the court where said assessment was confirmed was necessary to be taken as a condition precedent to the right of said appellees to issue said bonds which had not been taken at the time the petition for mandamus was filed, then the appellant was not entitled to the relief prayed for and the petition was properly dismissed.

Section 83 of the local improvement act, standing alone, undoubtedly authorizes the board of local improvements to determine whether a local improvement has been constructed substantially in accordance with the provisions of the improvement ordinance, and if such board decides it has been so constructed and accepts the improvement, such acceptance is conclusive in the proceeding to make the assessment, and in all proceedings to collect the same or the installments thereof, on all persons and property assessed therefor, and that the work has been performed substantially according to the requirements of the improvement ordinance. This section was in full force prior to the passage of the amendment of 1903 to section 84, and under the law as it then was it would have been the duty of the city, upon the acceptance of the work by the board of local improvements, to issue improvement bonds in payment thereof. By the amendment to section 84 boards of local improvements in cities are required, within 30 days after the completion and acceptance of any work, in case the assessment is divided into

installments, to file a certificate in the court where the assessment was confirmed, stating, among other things, whether the improvement, as completed, conforms substantially to the requirements of the original ordinance for the construction thereof, and to make an application to said court to consider and determine whether or not the facts stated in said certificate are true, and thereupon it becomes the duty of the court to fix a time and place for the hearing upon said application. Notice is required to be given of such hearing, objections may be filed, and the certificate of the board of local improvements is made prima facie evidence of the truth of the facts stated therein. If, on the hearing, the court finds that the improvement is constructed in substantial accordance with the ordinance, the acceptance thereof by the board of local improvements is approved. If it finds the improvement has not been constructed in substantial accordance with the ordinance, it is then made the duty of the board of local improvements to procure the completion of the improvement in substantial accordance with the improvement ordinance, and the board may from time to time file additional and supplemental applications or petitions in respect thereto, until the court shall be satisfied that the improvement is constructed in substantial accordance with the ordinance; and if, before the entry of such final order, there shall have been issued to the contractor, in the progress of the work, any improvement bonds to apply on the contract price thereof, said contractor, or the then owner or holder thereof, shall be entitled to receive in lieu thereof new bonds of equal amount, dated and issued after the entry of said order.

By the passage of this amendment we think it clear the powers conferred upon boards of local improvements by section 83, whereby such boards were given power to finally determine whether a local improvement had been constructed substantially in accordance with the improvement ordinance and to accept the improvement, and thereby bind the city and the property owner, was taken away and conferred upon the court wherein the assessment was confirmed, and that the city or property owner is not concluded upon that question by the action of the board of local improvements, and is only concluded by the action of the court where the assessment was confirmed, which action, when had in that court, becomes res judicata of the question in all subsequent proceedings to collect the assessment. People v. Cohen, 219 III. 200, 76 N. E. 388. If the action of the board of local improvements in accepting an improvement is not conclusive on the city and property owner that an improvement has been completed in substantial compliance with the terms of the improvement ordinance, but they have the right to submit that question to the court in which the assessment was confirmed, it

would seem apparent the city ought not to be required to issue improvement bonds in payment of an improvement until it had been judicially determined, in the manner pointed out in the statute, that the improvement constructed was substantially the improvement provided for in the ordinance, as otherwise the city might be required to issue improvement bonds to pay for an improvement not provided for by the improvement ordinance, and one which the court might eventually refuse to permit the board of local improvements to accept and which it would order said board of local improvements to have completed in accordance with the ordinance. We think the amendment to section 84 was passed mainly to prevent a local improvement not constructed substantially in accordance with the improvement ordinance being foisted upon property. owners by the action of the board of local improvements, and was intended to afford the property owner, as well as the city, a speedy and summary hearing on that question before the tribunal wherein the assessment was confirmed, before the property owner should be required to pay his assessment or the city to issue improvement bonds in payment thereof.

In Gage v. People, 219 Ill. 634, 76 N. E. 834, it was held a special assessment is not delinquent until after a certificate of the cost of the improvement has been filed in the court where the assessment was confirmed, by the board of local improvements, as required by section 84 of the local improvement act, and an application for judgment of sale made before such certificate of cost is filed cannot be maintained. In that case it was said the provision of section 84 requiring the cost of the improvement to be certified in writing to the court in which said assessment was confirmed was mandatory, and we see no reason why the holding should not be the same with reference to the provision of that section which requires the certificate to state whether or not the improvement conforms substantially to the requirements of the original ordinance, and a hearing had thereon, before the improvement bonds should be issued to pay for the improvement. We are therefore of the opinion the city was not required, at the time the petition for mandamus was filed, by reason of the failure of the board of local improvements to comply with said section 84, as amenued, to issue said bonds to the appellant.

It is urged, however, that section 84 of the local improvement act, as amended in 1903, is unconstitutional and void, and that section 83 is still in force in all its terms, and that the appellant was not bound to show in his petition a compliance with the provisions of said section 84, as amended, as a condition precedent to the legal duty of said city to issue to him said improve

ment bonds. This case comes here through the Appellate Court. The Appellate Court did not have the power to determine the question of the constitutionality of said section as amended, and by coming to this court through that court and by assigning errors in that court which it did have jurisdiction to hear and determine, the appellant waived his right to raise in this court the constitutionality of said section 84, as amended. The question of the constitutionality of said section, as amended, is not therefore here presented for decision. Indiana Millers' Mutual Fire Ins. Co. v. People, 170 Ill. 474, 49 N. E. 364; Robson v. Doyle, 191 Ill. 566, 61 N. E. 435.

Finding no reversible error in this record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

(222 Ill. 88)

DANLEY et al. v. HIBBARD. (Supreme Court of Illinois. June 14, 1906.) 1. JUDGMENT-MOTION IN ARREST-DEFECTS IN

PLEADING.

On a motion in arrest of judgment for insufficiency of a declaration, every intendment is indulged in favor of the declaration, and if it contains terms sufficiently general to comprehend any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment in the declaration is cured by the verdict. [Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 468-480.]

2. INTOXICATING LIQUORS-SALE-INJURY TO THIRD PERSON-RIGHT TO RECOVER FROM SELLER.

Hurd's Rev. St. 1899, c. 43, § 9, gives a right of action to every person injured in person, property, or means of support in consequence of intoxication, habitual or otherwise, of any person. Hurd's Rev. St. 1899, c. 107, § 1, declares that every poor person unable to earn a livelihood shall be supported by the father, grandfather, mother, grandmother, children, etc., if they, or either of them, be of sufficient ability, provided that, when any persons become paupers from intemperance, they shall not be entitled to support from any relation, except parent or child. A son who was unable to support himself because of his intoxication was supported by his mother. Held that, without regard to whether the son had an enforceable right of action against the mother for support, her obligation to support him was a legal one, and money expended for his support was not a gratuity, but a payment in discharge of her legal obligation, for which she was entitled to recover from the dramshop keeper who sold the son the liquor.

3. JUDGMENT-MOTION IN ARREST-GROUNDS. In considering a motion in arrest of judgment, the court does not look into the evidence. [Ed. Note.--For cases in point, see vol. 30, Cent. Dig. Judgment, § 495.]

4. INTOXICATING LIQUORS-SALE-INJURY TO THIRD PERSON SUPPORT OF INTOXICATED SON ABILITY TO SUPPORT.

In an action under Hurd's Rev. St. 1899, c. 43, § 9, against a dramshop keeper for damages sustained by plaintiff through being compelled to support her son, who by intoxication was rendered incapable of supporting himself, an allegation that plaintiff did furnish support