fact furnished within the year, it was not necessary, in order to obtain a lien, that the contract should have provided that payment was to be made within that time. The statute requires the contract to fix the time of payment before a lien can attach, and this is so whether such lien is claimed under a written or verbal contract. See, also, M. Pugh Co. v. Wallace (Ill.) 64 N. E. 1005." It is not disputed in the case at bar that the contract under consideration is an express, as distinguished from an implied, contract. In view of what is said, it will be seen that the contract between De Witt C. Butts and M. J. Roughan, through whom appellant claims, was not one which, in the first instance, would support a claim for mechanic's lien under the statute.

The further points made by appellant have to do with the invalidity of certain waivers of its supposed lien, and require no discussion here. It follows that the decree of the circuit court and the judgment of the appellate court affirming it must be reversed in so far as they sustain a mechanic's lien in favor of the appellant, but in all other respects they are affirmed.

Partly affirmed, and partly reversed.

(200 I11. 93)

SEEDERS et al. v. SHAW. (Supreme Court of Illinois. Dec. 16, 1902.) DEEDS CONFLICTING DESCRIPTIONS-METES AND BOUNDS-QUANTITY.

1. Where a deed contained two distinct descriptions of land, each of which is complete,-(1) "thirty-six acres off the north end of lot No. 2"; (2) "being 181⁄2 chains width across the north end of said lot No. 2,"-and the descriptions conflicted, that by metes and bounds controlled the one by quantity.

Error to circuit court, Crawford county; Enoch E. Newlin, Judge.

Bill for partition by James B. Seeders against Martha J. Shaw. Decree dismissing the bill, and Cammie Seeders and others, as heirs of James B. Seeders, bring error. Affirmed.

Callahan, Jones & Lowe, for plaintiffs in error. Bradbury & McNutt, Maxwell & Jones, and James A. Pritchard, for defendant in error.

HAND, J. This is a bill in chancery filed by James B. Seeders against the defendant in error, in the circuit court of Crawford county, for the partition of 36 acres of land situated in that county, and described as follows, to wit: Commencing at a point on the half-section line 37 rods south of the northwest corner of lot 2, in the E. 1⁄2 of fractional section; 13, in township 7 N., range 11 W.; thence east to the Wabash river; thence down the meanderings of said river to a point 73 rods due south of the north line of said lot 2; thence west to the west side of said lot; and thence north to the place of beginning. The defendant in error

filed a cross-bill, and upon a hearing a decree was entered dismissing the original and cross bills for want of equity, and, the complainant in the original bill having died intestate subsequent to the entry of the decree, the plaintiffs in error, as heirs at law of said James B. Seeders, deceased, have sued out this writ of error, and have assigned as error the action of the court in dismissing said original bill.

The defendant in error claimed to be the owner of the premises sought to be partitioned, in fee simple. The court found from the pleadings and proofs that one Wickliff Kitchell, on the 23d day of April, 1849, conveyed to William Delapp 181⁄2 chains in width off the north end of said lot 2, and that the same had been conveyed, by regular chain of title, to the defendant in error; that she is the owner of the north 73 rods of said lot 2, which includes the premises described in the original bill, and that the complainant in the original bill had no interest therein. It was admitted upon the trial that Wickliff Kitchell was originally the owner of all of said lot 2, and the evidence showed that the defendant in error had been in possession of the north 73 rods of said lot 2 for many years. The controlling question in the case is, did the title. to the south 36 rods of the north 73 rods of said lot 2 pass from Kitchell to Delapp, and from Delapp, by a continuous chain of title, to the defendant in error, under the following description contained in the deeds found in the chain of title from Kitchell to the defendant in error, viz.: "Thirty-six acres off the north end of lot No. 2 of section No. 13, in township No. 7, north, of range No. 11, west, being of eighteen chains and one-half width across the north end of said lot No. 2, by line running west from the Wabash river, situated at and in the county of Crawford and state of Illinois,"-it being the contention of plaintiffs in error that said description does not cover the south 36 rods of the north 73 rods of said lot 2, and that of defendant in error that it does.

From an examination of said deeds it will be seen that each contains two clear, distinct, and unambiguous descriptions of the premises sought to be conveyed, the one by quantity,-"thirty-six acres off the north end of lot No. 2,"-and the other by metes and bounds,-"eighteen chains and one-half width across the north end of said lot No. 2,"-the first of which excludes, and the second of which includes, the premises sought to be partitioned. If the first description controls, then the defendant in error is not the owner of the premises sought to be partitioned, and the decree should be reversed, while, if the second controls, she is the owner, and the decree should be affirmed. The law is well settled that where a deed contains two descriptions, each of which is in itself complete, one describing the land conveyed by quantity and the other by metes and bounds,

in case of conflict the description by metes and bounds will control, and that by quantity will be rejected. Mr. Martindale, in his work on Conveyancing (2d Ed., p. 98), says: "The quantity of land mentioned in a deed as being the number of acres conveyed must yield to the boundaries contained in the description, and, if inconsistent with the actual area of the premises as thus ascertained, it will be rejected." In Cottingham v. Parr, 93 Ill. 233, on page 236 the court say: "It is also a rule that where land is described in a deed by monuments and quantity, and upon a survey they are not harmonious, the quantity must yield to the monuments. In fact, of all the indicia by which the boundaries of land are to be ascertained, that of quantity is held perhaps the least reliable. Quantity yields to course and distance, course and distance to monuments." In Henderson v. Hatterman, 146 Ill. 555, 34 N. E. 1041, on page 566, 146 Ill., and on page 1044, 34 N. E., it is said: "It is well settled that monuments control courses and distances, and the courses and distances control the quantity of land." It seems clear, therefore, that the last description contained in the deeds must control, the effect of which is to hold that the defendant in error is the owner of the premises sought to be partitioned. We think the circuit court ruled correctly. Its decree will therefore be affirmed. Decree affirmed.

(200 111. 166)

CONVERSE et al. v. BROWN. (Supreme Court of Illinois. Dec. 16, 1902.) EQUITY-REDEMPTION FROM TAX SALE-EVIDENCE-SUFFICIENCY-LACHES.

1. In a suit to redeem from a tax sale under an alleged agreement between the owner and defendant, evidence held insufficient to show the agreement.

2. In a suit to redeem from a tax sale pursuant to an alleged agreement between the owner and defendant, it appeared that the alleged agreement was made 11 years prior to the filing of the bill, there was no claim that complainant had ever attempted to redeem from the sale, the lots had increased in value $170 each, and the rights of third parties had intervened. Heit, that complainant was barred by laches.

Appeal from circuit court, Cook county; Chas. H. Donnelly, Judge.

Suit by John B. Brown against James W. Converse and others. From a decree for complainant, defendants appeal. Reversed. H. S. Mecartney, for appellants. Remy & Mann, for appellee.

HAND, J. This is a bill in chancery filed by the appellee in the circuit court of Cook county against the appellants on September 9, 1897, to redeem 87 lots in Allen's and Frisbie's subdivisions in section 18, township 37, range 15, Cook county, Ill., from a tax sale which took place on September 25, 1884, and which ripened into a deed on August 24, 1887, by virtue of a parol agreement alleged

to have been made on September 25, 1886, between appellee and appellant Reed. The court entered a decree permitting the appellee to redeem, to reverse which decree an appeal has been perfected to this court.

It is averred, in substance, in the amended bill that the appellee was the owner of the lots in question; that they had been sold to appellant Reed for taxes; that the period of redemption expired on September 25, 1886; that some time prior to that date there had been negotiations between the appellee and Reed for the purchase of appellee's interest therein by Reed; that, the sale of such interest not having been consummated, appellee, for the purpose of redeeming from the said tax sale, deposited a certified check for $1,000 with the county clerk of Cook county in time to effect the redemption thereof; that Reed thereupon requested appellee to withdraw said redemption money and permit a tax deed to issue upon said sale, and, in consideration thereof, agreed that he would pay to appellee the price appellee had paid for said lots, and that, in case he did not purchase the interest of appellee therein, appellee should have the right to redeem from the said tax sale; that thereupon the certified check was withdrawn, and a tax deed was subsequently made of said lots to appellant Converse, who had notice of appellee's rights; that, had it not been for the representations of Reed, the appellee would have redeemed from said tax sale; that he was ready to convey to appellants or their grantees his interest in said lots upon payment to him of the amount agreed to be paid him for his interest therein, and, in default of such payment, prayed that he be permitted to redeem from said tax sale.

It is first said that the agreement sought to be specifically enforced is vague and uncertain, and not sufficiently established by proof, and that a court of equity should not decree its specific performance. The only proof of the agreement was the testimony of appellee, and his evidence was flatly contradicted by Reed, who denied that he ever met appellee in person or that he made the agreement set out in the bill, and testified to by appellee; and a number of letters offered in evidence, written by Andrew Crawford, who represented the appellee, with reference to the re demption of said lots from said tax sale, indicate that the agreement between appellee and Reed with regard to a redemption from said tax sale was not the agreement testified to by appellee, but was to the effect that appellee was to have until December 1, 1886, in which to effect a redemption from said tax sale. Mr. Crawford wrote Reed on November 27, 1886, that "the 60ds., I find, has about run out"; and on August 4, 1887, 20 days prior to the time when the tax deed was made, Reed wrote to Crawford: "My agreement to let the 1884 sale stand in statu quo till December 1, 1886, ran out last December, and I cannot continue to hold them at re

Railway Supply Company, a corporation at Detroit, Mich., was engaged in the manufacture of railroad supplies; one of its products being what is known as the "central steel brake beam." On that date it sold all its patents pertaining to this brake beam to the Chicago corporation. On November 25, 1895, the Michigan Railway Supply Company, still owning the special machinery used for the manufacture of the brake beams, by written contract sold said machinery to the appellee; the contract stipulating that the machinery would remain in the building and plant of the Michigan Railway Supply Company until January 1, 1897, and that the latter company should furnish to the appellee all necessary power to run the same, together with all necessary storage room, switching facilities, etc., to enable it to successfully manufacture said brake beams; appellee to pay rent for such privileges at the rate of $150 per month; the material for the manufacture of the brake beams to be furnished by appellee. On the same date, November 25, 1895, appellee made a contract with appellant, William A. Pungs, employing him until January 1, 1897, to superintend the manufacture of the brake beams, at a salary amounting to $11,411.08 for the whole of said term. The contract of employment also contained a stipulation that the waste material from the manufacture of the brake beams should be utilized by the Michigan Railway Supply Company, of which Pungs was treasurer, general manager, and one of the stockholders. This contract contained the further provision that Pungs should maintain the present high standard of workmanship, and render assistance to appellee in providing the necessary material for the manufacture of brake beams "on the best terms possible for the brake beam company." On January 1, 1897, the time mentioned in the two foregoing contracts having expired, appellant and appellee entered into another contract of employment for one year on substantially the same terms, except that his compensation was to be $5,000 per annum. On the same day the supply company entered into a new contract with appellee to furnish the power and rent to it such of its plants, switch tracks, etc., as would be needed in conducting its business another year; the contract being substantially like the former one, and at the same rental per month,-$150. The waste material was to be turned over to the supply company, whose duty it was at the end of the year to account for onehalf of its value. During the time covered by the foregoing contracts of employment, Pungs superintended the manufacture of the brake beams, purchasing appellee's supplies used in manufacturing said product, etc., and, as is contended by appellee, fraudulently overcharged it for certain supplies, retaining the difference between the actual cost to him and the invoice price at which it was charged to the appellee company, and that he negligently permitted a large portion of the

product to be imperfectly manufactured, etc. To recover the loss sustained by such alleged misconduct, appellee brought this suit. The declaration, as amended, consists of 15 counts, which, in substance, charge that the appellant, at different periods covered by the foregoing contracts, was the agent, manager, and superintendent for plaintiff in its business of manufacturing, and seeks to recover from defendant, under the first, second, and fifteenth counts (the latter also being termed an "additional count"), for overcharges on certain sheets of rolled steel purchased by appellant of the Michigan Railway Supply Company; under the third and fourth counts, certain profits or commissions alleged to have been received by the defendant,-particularly on the purchase of 500 tons of steel from the Wheeling Steel & Iron Company; under the fifth and sixth counts, for loss occasioned to appellee on account of the defective manufacture of 3,740 brake beams made under appellant's superintendence; under the sev enth count, the sum of $325 paid by appellee on account of 1,300 Christie special heads for use on the brake beams defectively manufactured; and under the twelfth count, for $46 in money claimed to have been used by appellant for his own private purposes. The eighth, ninth, tenth, eleventh, thirteenth, and fourteenth counts need not be noticed, as the recovery under the first four was remitted by the plaintiff, and the court instructed the jury there could be no recovery under either the thirteenth or fourteenth count. Upon the plea of general issue, and trial before a jury, a verdict was returned for the plaintiff for $10,292.32, from which, pending a motion for a new trial, the plaintiff remitted the sum of $4,142.69, which was the amount recovered under the eighth, ninth, tenth, and eleventh counts of the declaration, with interest thereon. Judgment was entered on the remainder of the verdict, viz., $6,149.63, from which an appeal was taken to the appellate court for the First district, where the judgment below was affirmed. Pungs brings the cause to this court upon further appeal.

Charles R. Whitman and Dwight C. Rexford, for appellant. Shope, Mathis, Zane & Weber and Francis A. Riddle, for appellee.

WILKIN, J. (after stating the facts). Appellee, having employed appellant to superintend the manufacture of its product, purchase supplies, etc., and having paid him a salary therefor, insists in this action that he should pay it whatever loss or damage it has sustained by reason of his wrongful or negligent acts in violation of his contract of employment. In other words, the theory of the action is that it was the defendant's duty, under his agree ment, to purchase supplies at the "best possible terms" for plaintiff, and having purchased them at one price, and sold them to it at a higher price, retaining the difference, he committed a breach of his contract, to the dam

age of appellee; also, having by the terms of his contract agreed to maintain the "present high standard of workmanship," and, contrary to those terms, having defectively manufactured a large number of brake beams, he was bound, in law, to repay the plaintiff any loss it thereby sustained. Whether the appellant wrongfully overcharged appellee, and negligently performed his duty, are questions of fact, which have been settled by the appellate court. But it was contended below, and is again urged here, that, even if the facts are as charged, the contracts of employment are illegal and void, and therefore there can be no recovery under the first, second, and fifteenth counts, based upon such contracts. The ground upon which the contracts are said to be illegal is that they tend to induce Pungs to act contrary to his duties as an officer of the Michigan Railway Supply Company. The rule is invoked that contracts with officers of corporations which tend to induce them to disregard their duties are illegal and void. Whether that rule could be invoked by the defendant in this action need not be decided, for the reason that the contracts, properly construed, do not in any sense tend to induce the defendant to disregard his duties to the Michigan corporation. As before stated, Pungs was the treasurer and general manager of the latter company, but its business was manufacturing and dealing in nuts, washers, and other similar railway supplies. The business of appellee was confined to manufacturing brake beams only. Therefore the business of the two corporations was distinct, and in no way conflicted. Appellee's product was manufactured in the building and plant of the Michigan Railway Supply Company, and Pungs could superintend the business of both corporations without conflict in the performance of his duties. To do his whole duty to appellee under his contract of employment in no sense required him to neglect his duty to the other corporation. As shown by the foregoing statement, the contracts were not entered into without the knowledge of the supply company, nor has it at any time complained of them; but, on the other hand, though contended to the contrary, we think it sufficiently appears that both corporations, by their boards of directors, approved the contracts. Since the Michigan Railway Supply Company does not complain, appellant should not be allowed to question the validity of his own contract, fairly entered into, on the theory that he might have been acting contrary to the interests of that company. Numerous decisions are cited by counsel in support of the contention that the contract of employment was illegal and void, but none of them are applicable to the facts in this case.

One of the grounds of attacking the first contract of employment is the fact that by its recitals it was not to become operative unless the other contract, satisfactory to appellee, was entered into for the sale by the supply company to appellee of its brake beam

machinery, and because the large salary which appellant was to have was an inducement to him to use his influence as a director of the supply company to bring about the sale. These facts might become important to the supply company if it was seeking to avoid the sale of its machinery, and, under the authorities cited and relied upon by appellant, his undertaking to act as superintendent for appellee might have been illegal, as against that company, had it been concealed from it; but from the facts as to the making of these contracts being open and known to the two corporations, they having ratified them, and the further fact that the relations be tween them were close and friendly, both operating in one plant, we think it cannot be said that the contracts of employment had a tendency to induce the appellant to act contrary to his duties as an officer of the supply company.

Nor can appellant be heard to insist, as is attempted, that the contracts of leasing, etc., between the two corporations, are void, because in unlawful restraint of trade. As before stated, they manufactured entirely different articles. There is in these contracts no element of a combination or confederation to restrain competition. But even if such were found in them, the contracts contain independent covenants, aside from those objected to, which are clearly enforceable. Upon no substantial legal ground can appellant be heard to complain of the validity of his agreements, to excuse his wrongful acts.

As to the alleged overcharges on certain sheets of rolled steel, mentioned in counts 1, 2, and 15, and the loss sustained by appellee by reason of the defective manufacture of brake beams, the contention involves disputed questions of fact, which have been settled adversely to the appellant by the appellate court, and over which we have no jurisdiction.

It is also contended that the court erred in giving the fourth and fifth instructions on behalf of appellee. The fourth, in effect, told the jury that there might be a recovery on account of the alleged defective brake beams, because they were not manufactured to the satisfaction of the plaintiff. Under the same instruction the jury were required to findFirst, that the contract of employment was executed by the parties, and approved by the board of directors of the plaintiff company; and, second, that it became and was the defendant's duty and obligation to superintend the manufacture and shipment of such brake beams as were manufactured by or for the plaintiff, and to cause the work to be done efficiently, promptly, and to the satisfaction of the plaintiff, and if he failed to do so, and if the jury, from the evidence, found that by such failure any brake beams were not manufactured to the satisfaction of the plaintiff, or were defectively manufactured, and rendered unfit for brake beams, and the plaintiff suffered loss or damage thereby, then