ferred to in the cases mentioned. Cases from other States, but fewer in number, have been decided by courts of last resort requiring the notice to state more definitely the exact place of the injury. The notice in the case before us is far from being a model, but considering all that is stated in it, it would seem to have apprised the officers of defendant of sufficient facts so there could have been no difficulty in ascertaining or locating the place of the injury. The notice informed the officers of defendant that plaintiff was taken charge of by the police of the city and driven in a patrol wagon to the Cook County Hospital, where he occupied ward 9. The proof showed plaintiff was taken by the police in a patrol wagon from the place where he was injured, at the south-east corner of Campbell avenue and Thirty-ninth street. One of the policemen who accompanied him in the patrol wagon, and another witness who discovered plaintiff immediately after the injury and stayed with him until the patrol 'wagon came and took him away, testified he was picked up at the south-east corner of Campbell avenue and Thirty-ninth street. We do not mean to be understood that the proof can be made to supply defects in the notice, but we have referred to the proof merely to illustrate that the defendant was informed of facts in connection with the statement of the place of the injury, of a character which unmistakably enabled its officers to find the exact place where the injury was received. We think the case comes within the rule announced in Carr v. Ashland, 62 N. H. 665. In that case the court said: "If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can by the exercise of reasonable diligence, and without other information from the plaintiff, find the exact place where it is claimed the damage was received, it is in this respect sufficient, because it fully answers the purpose of the statute." The judgment of the Appellate Court is affirmed. Judgment affirmed.

THE AMERICAN RADIATOR COMPANY et al. Defendants in Error, vs. JACOB L. KESNER, Plaintiff in Error.

Opinion filed April 23, 1914—Rehearing denied June 4, 1914.

MECHANICS' LIENS-when failure of a sub-contractor to give notice of claim is not prejudicial to the owner. Failure of a subcontractor to give notice to the owner before payments were made by the owner to the original contractor upon statements in which the name of such sub-contractor did not appear is not prejudicial to the owner, where there is enough due on the contract to satisfy the sub-contractor's claim and where the only defense made by the owner is a claim for damages against the original contractor for delay in completing the contract, which defense must be regarded as waived by the acts of the owner.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. RICHARD S. TUTHILL, Judge, presiding.

THOMAS W. REILLY, (AARON HEIMS, of counsel,) for plaintiff in error.

GEORGE H. SIMPSON, for defendant in error the American Radiator Company.

J. S. DUDLEY, for defendant in error the KelloggMackay-Cameron Company.

Mr. JUSTICE CARTER delivered the opinion of the court: The American Radiator Company filed a bill to enforce a mechanic's lien, in the circuit court of Cook county, on May 19, 1908, against the premises of plaintiff in error for material furnished for the construction of a building under a contract made between plaintiff in error and the John A. Wickum Company for the heating plant of said building. The Kellogg-Mackay-Cameron Company filed an intervening petition, its claim, also under the contract with the John A. Wickum Company, being for supplies and material

for said heating plant. An answer was filed by plaintiff in error and the cause was referred to a master in chancery to take testimony, who reported in favor of allowing the claims of both defendants in error. The chancellor entered a decree in accordance with the master's report. On appeal taken to the Appellate Court that decree was affirmed. The case has been brought to this court on petition for certiorari. Plaintiff in error entered into a contract with the John A. Wickum Company to install a heating plant in a building to be erected on Fifth avenue, in Chicago. It is admitted by plaintiff in error that the amount of said contract, with extras furnished thereunder, was $7457.80, of which $3500 has been paid, leaving a balance unpaid of $3957.80. Defendants in error, as sub-contractors, had furnished material to be used in the building of plaintiff in error, for which there was due $1754.75 to the American Radiator Company and $1800 to the Kellogg-Mackay-Cameron Company. It is conceded by plaintiff in error that the material was furnished and used and that the amounts claimed to be unpaid thereon are correct. Plaintiff in error, however, insisted on the trial below that under his contract with the Wickum Company said work should have been completed on or before November 10, 1907, but that it was not completed until about March 1, 1908; that by reason of said delay he was compelled to expend certain sums in re-setting a pump and motor and putting in salamanders to dry the plastering, and was also forced to make certain concessions to tenants. The original contract with the Wickum Company provided that except for certain delays in the completion of the work the responsibility of which would not be upon the contractor, "the damages arising from the nonfulfillment of this contract shall be $50 per day," etc.

It is conceded that the work to be performed by the Wickum Company was not completed until some time in February. Whether this delay was unavoidable or acquiesced in by plaintiff in error is disputed. The architect

for the plaintiff in error, it is true, found fault and made memoranda as to the delays of the Wickum Company, but it is also true that the contractor proceeded with the work after that time and that there were payments made to said Wickum Company after the complaints were made by the architect. The master, the chancellor and the Appellate Court all found that the Wickum Company was not responsible for the delay. The record supports this finding.

On the oral argument in this court counsel for plaintiff in error stated in open court that he agreed the American Radiator Company was entitled, on this record, to receive the amount of its claim. This being so, Kesner in effect admits he has no defense against the Wickum Company. He insists, however, that he is not liable to defendant in error the Kellogg-Mackay-Cameron Company because the name of the said last corporation was not mentioned in the statements of the contractor, the Wickum Company, submitted to plaintiff in error before the said Kellogg-MackayCameron Company gave notice of its claim. Counsel for said Kellogg Company contend that these statements or affidavits made by the Wickum Company to plaintiff in error were not in compliance with the mechanic's lien statute. Conceding, however, for the purposes of this argument, that these statements were made in conformity with the statute, plaintiff in error is in no position to urge this defense against said defendant in error. The only defense urged by plaintiff in error is his right to have a set-off against these claims because of the delay in finishing the contract within the time required therein. We have already held that this defense could not be urged against the Wickum Company. There is no defense on this record as to this question that could be urged against the Kellogg-MackayCameron Company that could not be urged against the Wickum Company. (Welch v. Sherer, 93 Ill. 64; VonPlaten v. Winterbotham, 203 id. 198; Kelly v. Johnson, 251 id. 135.) Plaintiff in error was not injured in any

way, therefore, by the failure of the Kellogg-Mackay-Cameron Company to give notice before the last payments were made by plaintiff in error to the Wickum Company on the contract here in question. Not being entitled to set off any damages against the Wickum Company, plaintiff in error cannot do so against the Kellogg-Mackay-Cameron Company, the sub-contractor.

The judgment of the Appellate Court will be affirmed.
Judgment affirmed.

NATHANIEL P. DAUGHETEE, Defendant in Error, vs. THE OHIO OIL COMPANY, Plaintiff in Error.

Opinion filed April 23, 1914–Rehearing denied June 3, 1914.

I. LEASES when lessee is required to use reasonable diligence to develop oil and gas lands. Under an oil and gas lease giving the lessee the exclusive right to explore the land during the life of the lease and if oil or gas be found in paying quantities to pay certain royalties to the lessor, there is an implied obligation on the part of the lessee to use reasonable diligence to develop the demised premises so long as the enterprise can be carried on at a profit; and it is no defense to a suit for a breach of such a covenant to say that the oil and gas are still on the premises and that they may be extracted by somebody in the future, or that the lessee was only required to use good faith in the development of such premises and that he was the sole judge of the extent to which the premises should be developed.

2. SAME when oil and gas lease conveys freehold. An oil and gas lease conveys a freehold estate where the lease provides that the lessee shall hold the premises for a certain number of years and as much longer as gas or oil shall be found in paying quantities on the demised premises.

3. SAME-when action may be maintained for breach of oil and gas lease. The lessor of oil and gas lands is not required to wait until abandonment of the premises by the lessee or the expiration of the lease before bringing his action where the lessee violates any of the express or the implied covenants of the lease, which results in damages to the lessor.

4. DAMAGES-fact that unliquidated damages cannot be exactly ascertained does not defeat action. In an action for damages re