delivered the opinion of the Court:
The only points made on this record are, as to the admission of evidence on behalf of appellees, showing the amount of damages collected on the warrant in the hands of the collector prior to his application for and the rendition of the judgment, and the instruction of the court in relation thereto.
These points must be decided in favor of appellees. There is no pretense in law, justice or honesty favorable to the position appellant has assumed. It was specially agreed by the city, when the contract was made with appellees, that they should have not only a specified sum of money for the paving, grading and curbing complete, to be paid out of the special assessment levied for such purpose, and to which appellees exclusively looked for their pay, but that they should have such additional sums of money as the city might collect as damages on the assessment levied.
The city actually collected of the property owners, whose property had been assessed for this improvement, through voluntary payments made by them before any judgment was applied for against them as delinquents, a sum exceeding three thousand dollars, and a further sum as damages, making, in the total, six thousand six hundred and fifty-eight dollars and ninety-eight cents, and thus the whole assessment for the improvement was collected by the city.
Appellant contends, inasmuch as this court decided, in Scammon v. The City of Chicago, 44 Ill. 269, that the city collector had no power to enforce the collection of the damages, as provided in section 11 of the charter, before judgment, and on a mere warrant, the city may be liable in an action to restore these moneys so paid.
We see no such peril attending this matter, and it might be a question, if it did, could not the city, under their contract, having collected the damages, whether legally or illegally, be compelled to pay them over to these contractors, as they agreed to do. But however that may be, more than three thousand dollars of this amount was paid over by the property owners voluntarily. This being so, no action could be maintained by them to recover it back, and as to the balance, we understand they were allowed, when application was made to the court for judgment, and as a penalty for delay in payment.
The parties assessed have not complained, and do not complain of the collection of these damages hy the city. The city has them in its treasury, and, by the contract, they belong to the appellees. It is their money, fairly earned. The city can not profit by its own wrong.
We see nothing in this case to justify the city authorities in withholding this money from the appellees.
The instruction of the court upon this point was proper, and the judgment must be affirmed.
Judgment affirmed.