1911, p. 388.) Paragraph 1 of that section makes it the duty of the examiner to examine the underground workings of the mine within twelve hours preceding every day on which the mine is to be operated. Paragraph 4 makes it his duty "to inspect all places where men are required in the performance of their duties to pass or to work, and to observe whether there are any recent falls or dangerous roof or accumulations of gas or dangerous obstructions in rooms or roadways." Paragraph 6 makes it the duty of the examiner, "when working places are discovered in which there are recent falls or dangerous roof or dangerous obstruction, to place a conspicuous mark or sign thereat as notice to all men to keep out." The act of 1907 uses the words "or other unsafe conditions," "or any dangerous conditions," while the act of 1911 uses the term “dangerous obstruction." Dangerous conditions might exist from other causes than obstructions, but an obstruction may make a dangerous condition, and undoubtedly that is the character of obstructions meant by the language used in the act of 1911. The declaration in this case is based upon the theory that obstructions which rendered the mine dangerous were permitted in violation of the statute, and whatever might be the effect of the late act upon cases that might be imagined arising under the former statute, the act of 1911 did not take away the right of action in this case. People v. Zito, 237 Ill. 434.

We have examined the errors assigned as to the rulings of the court in the admission of testimony and in giving and refusing instructions and are satisfied that no reversible error was committed in either respect. We fully agree with the opinion of the Appellate Court in the treatment of these questions, and it would serve no useful purpose to enter upon a detailed discussion of them.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

ALLIE BENNETT, Appellant, vs. ANNA E. BURKHALTER, Appellee.

Opinion filed February 20, 1913-Rehearing denied April 2, 1913.

I. SPECIFIC PERFORMANCE-specific performance is not a matter of right. A party cannot demand specific performance of a contract as a matter of absolute right, but the exercise of such power rests in the sound discretion of the court in view of all the surrounding circumstances.

2. SAME-complainant must prove performance or a willingness to perform. Before a complainant is entitled to specific performance she must prove that the contract has been fully performed on her part or that she has always been ready and willing to perform her agreements.

3. SAME when complainant is not entitled to specific performance. Complainant in a bill to require the defendant, as assignee and grantee of complainants' former employer, to specifically perform a contract between complainant and such employer to leave his estate to her if she would become a member of and remain in his family and perform such services as were required, is not entitled to a decree where her own testimony shows that more than twenty years after she had left her employer's home, during which period she had moved away and married, she refused to return to his home unless he would allow her husband to come with her.

APPEAL from the Circuit Court of Knox county; the Hon. GEORGE W. THOMPSON, Judge, presiding.

DAN R. SHEEN, and R. D. ROBINSON, for appellant.

WILLIAMS, LAWRENCE, WELSH & GREEN, and F. O. MCFARLAND, for appellee.

Mr. JUSTICE COOKE delivered the opinion of the court:

The appellant, Allie Bennett, filed her bill in the circuit court of Knox county against Anna E. Burkhalter, appellee, the grantee and assignee of Jonathan C. Garwood, for the specific performance of a contract alleged to have been entered into between appellant and said Garwood. Upon

final hearing her bill was dismissed for want of equity, and from that decree this appeal has been perfected.

The material facts disclosed by the record are as follows: In 1864 Jonathan C. Garwood resided in the State of Michigan with his family, consisting of himself, his wife and two daughters, Mattie and Manie, aged, respectively, three and four years. These two children were congenital deaf mutes. At that time appellant, who was then Allie Shepard and was about eighteen years of age, resided near the Garwoods and was a frequent visitor in their home. The two children having become attached to her, Garwood proposed that she enter their home, become a member of their family and take charge of the children. An oral contract was entered into, whereby it was agreed that the appellant should become a member of the Garwood family, should care for the two children during their lifetime and render such other services as might be required in and about the family, including the assistance of Garwood in his business affairs, in consideration for which Garwood agreed that at his death he would leave her, by will, an equal share with his wife and children of all the property of which he might die seized, he being at that time a man of considerable wealth. The appellant entered the home of Garwood upon this condition and assumed the duties to be performed by her. In 1865 Garwood removed with his family to Galesburg, Knox county, Illinois, and appellant accompanied him as a member of his family. The daughter Mattie died when six years of age, and Garwood thereafter agreed with appellant that under the terms of their contract he would devise and bequeath his property equally to his wife, his daughter and appellant. The appellant remained in the Garwood family under this arrangement until 1879, and, so far as appears from the record, performed all the duties she had agreed to perform up until that time. During that year she left the Garwood home. The reason for her leaving and the circumstances under which she left

are in dispute here. The evidence on the part of appellant tends to prove that Garwood, being an infidel, objected to appellant attending the services of the Christian church of Galesburg, of which she was a member, and gave her the option of severing her connection with the church or leaving his home, while, on the other hand, it is contended on the part of appellee,-and the competent proof in the record slightly tends to support the contention,-that Garwood objected to the attentions being shown appellant by Rev. E. P. C. Bennett, the pastor of the Christian church and a married man. It was shown in this proceeding that at the time Rev. Bennett knew the appellant in Galesburg he was married but was posing as a single man, but there is no competent proof in the record showing the extent of Garwood's knowledge of this situation. There is considerable incompetent hearsay evidence in the record on this question, but it appears from competent evidence introduced on the part of appellant that it was known to Garwood that the relations between appellant and Rev. Bennett were different than the ordinary relations between a pastor and a member of his church. After appellant left the Garwood home Garwood secured various persons at different times to care for his daughter. The evidence shows that owing to the disposition and physical ailments of the daughter the task of caring for her was an extremely arduous and unpleasant one. In October, 1901, Garwood procured the services of appellee to take care of his daughter, Manie, and she remained there some time at a weekly wage. Thereafter Garwood entered into a contract with appellee similar to that which he had made previously with appellant, whereby appellee agreed to remain unmarried and to take care of the daughter during her lifetime. Garwood was then quite an old man and it was reasonably to be expected that the daughter would survive him. By this contract with appellee she was to receive, as a consideration for her services, the whole of Garwood's estate, real and personal, the

wife having previously died, in the year 1897. Thereafter, and during his lifetime, pursuant to his contract with her, Garwood conveyed and assigned to appellee all his real and personal property, amounting in value to something more than $125,000. Manie Garwood died on May 5, 1904, and Jonathan C. Garwood died on February 17, 1907, appellee remaining with him as a member of his family until the time of his death.

The prayer of the bill was that the appellee be required to disclose the description of all the property she received from Garwood and the consideration paid therefor; that the court ascertain the value of the property so received by appellee over and above any valuable consideration paid therefor, and that appellant be decreed, under her oral contract with Garwood, to be entitled to an undivided onethird share in the estate of which Garwood would have died seized but for the conveyance and assignments made by him to appellee.

It is urged by appellee that the decree of the court was proper upon the ground that the property of Garwood was conveyed and assigned to her for a valuable consideration, as a bona fide purchaser, without notice of any equitable claims of the appellant; but in the view we take of the case the decree should be sustained on other grounds, and it will therefore be unnecessary to consider or discuss this question.

It is a well established rule that a party cannot demand the specific performance of a contract as a matter of right, but that the exercise of this power rests in the sound discretion of the court in view of all the surrounding circumstances. Before she was entitled to this remedy appellant was required to show that she had always been ready, willing and eager to perform on her part, (Hoyt v. Tuxbury, 70 Ill. 331; Morse v. Seibold, 147 id. 318; Forthman v. Deters, 206 id. 159;) or that the contract had been fully performed, and the burden was upon her to show one or