delivered the opinion of the court.
Patrick Farrell did the work to the entire satisfaction of the city, and the pavement laid by him has been in use for over seven years. '
November 12, 1894, the city gave him a voucher for $11,807.11, upon which payments have been made of $3,150, leaving an unpaid balance, December 20, 1895, of $8,657.11.
The city levied an assessment upon private property of $38,481.85, $2,616.43 being assessed against the city for public benefits. Objections by various property owners were' sustained so that the city collected only $31,000.67, a deficiency of $7,413.18. The city expended for costs $3,040.38.
*206The voucher above mentioned contained on the face thereof the following: “ Special Assessment Warrant Ho. 17,994.” '* * * “ Payable only from the proceeds of the above designated warrant when collected.”
From the judgment “ refused,” of $7,413.18 under the assessment proceedings, the city prayed, but did not perfect, an appeal. The city council did, May 14, 1894, stay for a short time the collection of the assessment, but as all of the assessment for which there was judgment has been collected and paid to the contractor, Farrell, this stay is now immaterial.
The city has not levied another assessment or taken any steps toward collecting the deficiency of $7,413.18.
Patrick Farrell many times demanded from the city payment of the balance unpaid for the work done by him under his contract. At times various city officials assured him that a new assessment would be made; he appealed to the mayor, the city council, its finance committee, the corporation counsel and the superintendent of special assessments; there was much talk by all of these, but no action that was productive of payment: Finally, Patrick. died, and his widow is endeavoring to obtain that for which he vainly strove.
It does not appear that the city at any time refused to make an additional assessment; it simply failed to do so. So far as it appears, it probably could have been compelled by mandamus to have made a supplemental assessment, but no attempt to compel it to do so was instituted. Hor did Farrell or any one tender to the city indemnity against the costs of a new proceeding. The costs iof the assessment had, were more than $3,000; what those of a supplemental proceeding would be was uncertain; while that anything could be realized therefrom was a matter of doubt.
This action is predicated upon the negligencé of the city as to a subsequent assessment. While, as we have said, so far as appears, it is probable the city could.have been compelled to make another assessment, it does not appear that Farrell, the contractor, would ■ have profited thereby; that is, there is neither allegation nor proof that anything would *207have been realized therefrom. Theoretically, at least, so far as the letter and spirit of the law is concerned, special assessments are levied upon private property for, and not to exceed, the amount of private benefit derived by such property from the proposed improvement. That under a new assessment the court would render judgment against private property, this court can not assume. Doubtless it is the case that ofttimes the city is able, with its great power and machinery, to, in special assessment cases, obtain judgments, on account of supposed benefits, against property which in reality is not benefited at all, and in some instances is actually damaged, by the proposed improvement. It might, perhaps, have done so by a subsequent assessment for the benefit of Mr. Farrell, but we can not assume that it could; nor that it would have been able to find property actually benefited. Such subsequent assessment, when taken, into court, would have had to be supported by evidence; what that would have been we know not, nor can we tell what view court or jury would have taken of it. The contract entered into by the contractor, Farrell, and the city, is such that it is evident that no business man would have, thereunder, undertaken the work for as low a price as if he had the absolute promise of the city to pay him in cash.
It in effect compelled the assessed property owners who did pay, to pay a larger sum than they would if the contract were one calling for entire payment in money from the city at a definite period, or so soon as the work was done. ¡Nor does the record show that the property against which the'court refused judgment, and as to which the city, it is urged, should have procured another assessment, was on the street upon which the pavement was laid. As to property outside of such street, whether it is or will be benefited by the proposed improvement is a matter of pure speculation; while concerning property abutting upon the improvement the amount of benefit is a thing about which the opinions of men and witnesses often differ largely, the same is true as to the benefit to the public, which the city Should pay.
*208In the most unmistakable manner Mr. Farrell agreed to look only to the collections made upon the special assessments, when they should “ be actually paid into the city treasury;” these he has had. From the city, at the bringing of this suit, these moneys were all he was entitled to. The court should have instructed the jury to find for the defendant.
The judgment of the Circuit Court is reversed, only for errors of law, without remandment. Eeversed.