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10/28/1929MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF DES PLAINES, HELD IN THE COUNCIL CHAMBERS, ON THE 28th DAY OF OCTOBER, A. D. 1929, AT THE HOUR OF 9:00 O'CLOCK P. M. Pursuant to the following notice the City Council met in Special Session on the above date. October 22nd, 1929. Alderman J. B. Collet, 434 Alles Avenue, Des Plaines, Illinois. Dear Sir: - At the request of the Mayor and Alderman Heesch, Chairman of the r'inance Committee, a special meeting will be called Monday evening, October 28th, 1929 for the purpose of considering a settlement with w. L. Thorne. This meeting will be held in the Council Chambers at the hour of 9:00 O'clock P. M. Very truly yours, Fayette O. Merrill City Clerk. Mayor Hammerl called the meeting to order with Aldermen Collet, Ahbe, Heesch, binder, Schlagel, bnabb, and Enzenbacher answering to roll call. Aldermen Suster and Lacey being absent. Mayor Hammerl explained the purpose of this special meeting and requested the City Clerk to read the following. REPORT OF THE FINANCE COMMITTEE OF THE CITY OF DES PLAINES TO THE CITY COUNCIL OF THE CITY OF DES PLAINES. IN RE: W. L. Thorne vs. The City of Des Plaines. Your Committee respectfully reports that it has carefully considered the claims of W. L. Thorne against the Gity of Des Plaines and of Des Plaines against W. L. Thorne. It appears that the litigation between W. L. Thorne and the City of Des Plaices consisted of three. lawsui ts: 1. Suit by W. L. Thorne against the Gity of Des Plaines for damages for breach of contract; 2. Suit by the City of Des Plaines against W. L. Thorne for breach of contract; 3. Suit of W. L. Thorne against the City of Des Plaines for damages due to the wrongful con- version of a well drilling machine belonging to W. L. Thorne. The first of these cases was tried in the Cir- cuit Court of Cook County, and judgment was entered for W. L. Thorne for the sum of *10,814.50, on the Ilth day of June, 1927; that the said judgment was affirmed by the Appellate Court and Supreme Court of this State. This suit involved the question of whether or not the contract between the City of Des Plaines and W. L. Thorne was breached by Thorne and is the same question which is involved in the suit filed by the City of Des Plaines against W. L. Thorne for breach of contract. The Court and jury having found against the City of Des Plaines in the first case, the second case is automatically decided by judgment entered in the first case. The litigation in these two cases grew out of a contract for the digging of a well which the City contended was not being performed by Mr. Thorne. However, the contract was so indefinite as to terms that the Court held that there was no requirements on 141r. Thorne to comply with the conditions which the City insisted should be complied with. This leaves a judgment standing against the City of Des Plaines in the sum of 410,814.50, together with interest and costs amounting to the sum of 411356.40. The last case between W. L. Thorne and the City of Des Plaines which is now pending in the Circuit Court of Cook County is a suit brought by V. L. Thorne for damages for the conversion of the well drilling machine. This well drilling machine was taken by the City of Des Plaines from Ur. Thorne on the 29th day of January, 1923 and was held continuously by the Uity of Des Plaines until the 21st day of Jay 1924. It appears that kr. Thorne has ample evidence that during all of this time, he continuously made demands on the City of Des Plaines for the return of the said well drilling machine, and that he will be able to show that the City of Des Plaines held the machine against his will, having taken possession of the machine by use of the police force. The theory upon which the City took possession of the machine was that the City had a right to do sa under its contract. From an examination of the contract, it appears that while it is customary for contracts for well drilling to have a condition authorizing the City to take over all machinery to complete the well in case ,of a breach of contract, there was no such provision in the contract between W. L. Thorne and the City of Des Plaines. The contract between W. L. Thorne and the City of Des Plaines in no event gave the City of Des Plaines the right to take the well drilling equipment.. In addition to this fact, the Court has held that the contract with W. L. Thorne had not been breached by Mr. Thorne and there was therefore no justification under the holding of the Court for the taking of the well drilling machinery. 25 Mr. Thorne contends he is entitled to receive for the loss of the use of the machinery during the said period, the sum of 417,568.00 and also the sum of $489.90 for work done on the old well, making a total claim of 418, 057.90, or a total gross claim which W. L. Thorne has against the City of Des Plaines of $30,228.80. Your Committee has investigated the basis of the claim and the value of this equipment and find that while the contention of Mx. Thorne is arbitrary and excessive, the per diem cost on rental value of the well drilling machine is very expensive and that in the event the City of Des Plaines proceeded to trial in its lawsuit, the City of Des Plaines would be confronted with the situation of admitting that it was not justified in taking possession of the machinery and could only hope to reduce the amount of the verdict for damages. Even though the City of Des Plaines was successful in a large degree, Mr. Thorne would probably receive a substantial verdict. After weeks of consultation with Mr. Thorne, he has agreed to accept from the City of Des Plaines the total sum of $19,000.00 plus the pump installed by Lane & Bowler in well 'east of the .yes Plaines River, and pipe now in the well near Ashland Avenue and has agreed that a judgment should be entered in the case now pending in the Circuit Court for a sufficient sum so that the total moneys due at this date, including interest, will equal the sum of $19,000.00, providing a bill of sale is given to him immediately, of the pipe now in the ground in the well and also for the pumps installed. Your Committee respectfully recommends that this proposition of Mx. Thorne be accepted and that the Attorney for the City of Des Plaines be authorized to consent to a judgment in the case now pending in the Circuit Court, for the sum of $6,829.10, and that the L��ayor and City Clerk be instructed and authorized to execute bill of sale to W. L. Thorne Company for the pipe now in the said well, together with the pump installed at the said well. Respectfully submitted, Henry Heesch Edd R. Schlagel Lee B. Knabb Alderman Kinder moved that the report of the Finance Committee con- cerning the litigation of V. L. Thorne be accepted and approved. Alderman Enzenbacher seconded this motion and the roll was called with the following results: Ayes, Aldermen Collet, Ahbe, Heesch, Kinder, Schlagel, Knabb and Enzenbacher. None voting Nay, the Mayor declared the motion carried and the report accepted. The following Ordinance was presented for first reading. AN ORDINANCE CONCERNING THE LITIGATION OF W. L. THORNE same was laid over for second reading. There being no further business to be considered on motion duly made, seconded and carried same adjourned. City Clerk.