author: Per Curiam.

text:
    The Alton Manufacturing Company, Appellant, v. The Garrett Biblical Institute, Appellee.
    Gen. No. 14,317.
    1. Corporations-—what not within power of treasurer of religious trust. The treasurer of a corporation (a religious trust) organized by special act which creates no offices other than that of members of the board of trustees, has no general authority to borrow money and execute notes binding upon such corporation.
    2. Corporations—extent of authority of “business manager” of eleemosynary institution. To borrow money or to execute notes the authority even of a “business manager” of a eleemosynary institution must be express or absolutely indispensable to the accomplishment of the purpose of his agency.
    3. Negotiable instruments—what essential to bind religious trust. A religious trust organized by special act of the legislature having no offices other than that of members of the board of directors and having no stockholders, cannot become bound by a promissory note unless its execution is especially authorized and is a means reasonably necessary to the accomplishment of some proper corporate purpose.
    4. Estoppel—when does not operate against corporation. If a corporation has no power to make notes, it cannot estop itself by giving apparent authority when it had no power to give actual authority, nor can it ratify an act by an agent which it, as principal, had no power to perform.
    5. Estoppel—what does not establish receipt of benefit. The fact that money borrowed is deposited to the credit of a corporation in itself is not sufficient proof and by itself does not tend to. prove and would not justify a jury in finding that such corporation had received the benefit of the money so deposited.
    Brown, J., dissenting.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. E. A. Dicker, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.

      Statement by the Court. This is an appeal from the Municipal Court of the City of Chicago. The judgment appealed from is one of “nil capiat” and for costs, against the plaintiff in favor of the defendant. It was rendered on' a directed verdict for the said defendant in an action of assumpsit (of the first class) on three certain promissory notes. The plaintiff’s declaration consisted of special counts on these three notes, together with the consolidated money counts, and one on an account stated. The three notes sued on are of the following tenor:
    First Note.
    “$5,000. Chicago, III., April 19,1902.
    Four years after date we promise to pay to the order of Everett O. Fisk, Five thousand dollars at our office, Evanston, Ill. Value received with interest at 5 per cent per annum, payable semi-annually.
    Garrett Biblical Institute,
    By Robert D. Sheppard, Treasurer.
    Endorsements.
    Pd. Oct. 19, 1902, $125 Interest to date.

      i c Apr. 19,1903, 125 ti t c i t

      í i Oct. 19, 1903, 125 tt a it

      tt Apr. 19,1904, 125 it i c 11

    Oct. 19, 1904, tt 125 a i i 11

      CÍ Apr. 19,1905, 125 a a it

      t c Oct. 19, 1905, 125 a a i t

      i i Apr. 19, 1906, 125 a a it

    Pay to the order of the Alton Mfg. Co.,
    Everett O. Fisk. 99

    Second Note.
    “2,000. Evanston, III., Nov. 15,1902.
    Four years after date we promise to pay to the order Everett O. Fish two thousand dollars at our office, Evanston, Ill. Value received with interest at 5 per cent per annum, payable semi-annually.
    Garrett Biblical Institute,
    By Robert D. Sheppard, Treasurer.

      Endorsements.
    Pd. May 15, 1903, $50 Interest to date.
    Nov. 15, 1903, 50 Í i < Í 6 Í
    May 15, 1904, 50 a ( Í í i

    Nov. 15, 1904, 50 (i U U

    May 15, 1905, 50 ( 6 C Í C i

    Nov. 15, 1905, 50 ÍÍ l 6 Í c

    May 15, 1906, 50 Í l (6 C(

    Pay to the order of the Alton Mfg. Co.,
    Everett 0. Fisk.”
    Third Note.
    “$13,000. Chicago, III., Dec. 9,1903.
    Three years after date we promise to pay to the order of Everett O. Fisk, Thirteen thousand dollars at our office, Evanston, Ill. Value received with interest at 5 per cent per annum, payable semi-annually.
    Garrett Biblical Institute,
    By Bobert D. Sheppard, Treasurer.
    Endorsements.
    June 9, 1904 Interest paid to date $325
    Dec. 9, 1904 “ “ “ “ 325
    June 9, 1905 “ “ “' “ 325
    Dec. 9, 1905 “ “ “ “ 325
    June 9, 1906 “ “ “ “ 325
    Pay to the order of the Alton Mfg. Co.,
    Everett O. Fisk.”
    The defendant filed first a plea of non-assumpsit to this declaration, and, second, a plea that “it did not make, execute or deliver the supposed notes, etc.” These pleas were fortified by an affidavit of one of the Board of Trustees of the Garrett Biblical Institute, made “on information and belief” that they were “true in substance and in fact.”
    . The defendant pleaded thirdly, that each of the notes, if made at all, was made without any good or valuable consideration therefor, and that the plaintiff received the same with notice of that fact and after maturity.
    To the first two pleas the plaintiff filed a similiter, and to the third a replication, denying that the notes were made without consideration or that the plaintiff received the same with notice of that fact or after maturity and concluding to the contrary. The case came to trial before a jury, and after much other evidence had been offered on behalf of the plaintiff— which will he discussed in the following opinion—the notes sued on were offered in evidence. The counsel for defendant thereupon objected, and moved the court to exclude the said notes and to direct a verdict in favor of the defendant. The objection was sustained, the motion granted and the corresponding verdict returned, on which verdict the judgment here appealed from was rendered.
    Proper objections and exceptions were preserved to all these rulings of the court, and in this court it is in various forms assigned for error that the notes were excluded and the peremptory instruction given.
    John W. Creekmur, Bentley & Burling and Rueus Cope, for appellant.
    Tenney, Coeeeen, Harding & Sherman, and Paul Brown, for appellee; Horace Kent Tenney, of counsel.
   Per Curiam.

The court is of the opinion that the learned trial judge of the Municipal Court ruled correctly in excluding the notes sued on when they were offered in evidence. This necessarily involved, of course, the further ruling by which the jury was peremptorily instructed.

The grounds for the exclusion of the notes were that while they were ostensibly signed by the Garrett Biblical Institute, the signatures showed on their face that they were made in the name of the Garrett Biblical Institute by Robert D. Sheppard, Treasurer; that a treasurer of such a corporation as the Garrett Biblical Institute was shown by the pleadings and evidence to be, has no inherent power by virtue of his office to make notes for the corporation; and that the evidence adduced from the plaintiff’s own witnesses on examination and cross-examination, before the notes were offered, had not only failed to show any special authority given or devolved on Sheppard to make the notes in question, but had (although that was unnecessary) affirmatively shown the want of such authority. Nor had any such condition of things been shown preceding such offer as would furnish a reason for submitting to the ¡jury the question whether the corporation sued had ever ratified the giving of said notes or had become liable for their payment by receiving the benefit of the money borrowed or obtained by Sheppard on them; the evidence, if indeed it did not negative any such ratification or estoppel, presenting no support for them.

Moreover, the same evidence failed to show any apparent authority on the part of Sheppard to give the notes or to borrow the money which was their consideration, in behalf of the Garrett Biblical Institute, springing from other transactions authorized or appearances brought about by the corporation, on which the plaintiff had the right to rely or on which he did rely in taking the notes and parting with 'the money in question. There was nothing to submit to the jury, therefore, which could have justified them in finding either that Sheppard had actual authority to sign the notes and to bind the defendant corporation, or that the said defendant corporation was estopped or foreclosed from disclaiming liability on them, by reason of having received their benefit, or by reason of having so held out Sheppard, or knowingly allowed Sheppard so to hold himself out, as their authorized agent in such matters, as to induce a reliance on such appearances by the plaintiff.

This was the evident reasoning of the court below, and it is approved by this court.

No point is made on the form which the formal decision of the trial court took in disposing of the case, so far as the exclusion of the notes goes; nor could there well be. The notes offered were regarded as having been shown, before they were offered, to be the individual obligations of the man who manually signed them, and not of the defendant corporation whose name he prefixed to his own. Therefore they were irrelevant and immaterial to the issue raised between plaintiff and defendant. Had they been admitted, however, tentatively or otherwise, during the presentation of the plaintiff’s case, the same peremptory instruction for the defendant must have been the result of the holding of the court on the matters hereinbefore recited. To the discussion of the purport and legal effect of this admitted evidence, therefore, the opinion will be confined. .

The Garrett Biblical Institute is a corporation chartered by the Legislature of Illinois in a special Act approved February 15, 1855, and amended February 14,1865. It was incorporated for the purpose of maintaining “a Biblical Institute” under the patronage and exclusive control of the Methodist Episcopal Church, by which the provisions of the Act and amending Act show, was meant a theological training school for Methodist clergymen.

It was created by naming five persons, and providing that they and their successors in office, to be elected as provided in the incorporating Act, should be a body corporate under the name of Garrett Biblical Institute, with the power of holding and dealing with property and governing and managing the institution to be founded. The five persons named were to be the first “Board of Trustees” of the corporation, to be divided into two classes—one holding office four years and one two years. Their successors were to be elected by the annual official Conferences of the Methodist Episcopal Church having jurisdiction in Cook county, and the Conference was endowed with certain direct visitatorial powers with relation to the Institute. The amendment of 1865 increased the number of Trustees to six, but with the same provision concerning election.

The corporation therefore has no members having any personal interest in its assets or liabilities. The members of it are simply Trustees elected by the Rock River Conference of the Methodist Episcopal Church. It is provided by the Act and Amendment that four of them shall constitute a quorum for doing business. No office in the corporation except that of member of the Board of Trustees, which is the same as a member of the corporation, is created by the Acts, although it is provided that the professors and teachers in the school to be established shall constitute a board of instruction and may, “with the Trustees”, elect a president “thereof.”

As these Acts were public acts, all persons dealing with the Institute must be held to have known that the Garrett Biblical Institute was a charitable religious trust, with no treasurer created by law, and therefore no other treasurer than one who might be appointed with specified powers by the Board of Trustees.

Under these circumstances, no general authority in the treasurer, simply as treasurer, can be held to exist, which could warrant the plaintiff’s contention that his borrowing money and signing notes in the name of the corporation made the acts those of the corporation, for which it must respond. As the designated treasurer simply, he was the mere custodian of the funds that might come to the corporation. Even the Trustees of the corporation could not, on account of its nature, have specially authorized such a transaction by its treasurer, so as to render it binding, except it did so as a means reasonably necessary to accomplish a proper corporate purpose. People’s Bank v. St. Anthony’s Roman Catholic Church, 109 N. Y. 512; Jewett v. West Somerville Co-operative Bank, 173 Mass. 54.

This last principle is akin to that which prevents a charitable institution being liable in tort for the negligent acts of its agents in carrying out its purposes. Parks v. Northwestern University, 218 Ill. 381 (385). It forbids the diversion of the funds of a charitable institution to pay for the wrongful acts of its officials, which would necessarily discourage contributions to such charities.

If the corporation had no general power to borrow money and make notes, its treasurer, as its treasurer, certainly had no such power which could bind it. Even in a purely commercial corporation the treasurer, as such, has no authority to borrow money and make notes for it. Craft v. South Boston R. R. Co., 150 Mass. 207; Millward v. Cliff Cracker Co.’s Estate, 161 Pa. St. 157.

The “business agent” or “business manager” of a commercial corporation might, however, by virtue of his office and duties, he held under proper circumstances to have such power; although how very carefully, in such cases, a claim of implied or general power in this regard would be scrutinized is sufficiently shown by the opinion of the Supreme Court in Merchants’ National Bank v. Nichols, 223 Ill. 41.

The treasurer of the Garrett Biblical Institute was denominated in the records of the Board of Trustees “business agent” at least thrice, and it appears that he did transact much necessary business for the Institute, which will be more specifically alluded to hereafter.

Assuming, however, that this alone, in the case of a commercial corporation, would have vested him with implied general power to borrow money and make notes in its name, it could have no such effect on his authority as the officer and agent of the defendant. For authority is never implied in an agent of a corporation or of any other principal to do that which that principal is, to the legal knowledge of the world, without the power to do. As we have pointed out, in a charitable religious corporation, such as the defendant is, no such general power exists to borrow money and make notes.

Nor, if the giving of the notes in the name of the Garrett Biblical Institute by Bobert D. Sheppard was an authorized act, not binding the corporation to the payee of the note because of that want of power, has the endorsee for value any greater rights from them against the corporation than has the payee. They are foreign to the corporation and immaterial and irrelevant as against it. Pearce v. Madison, etc., Ry. Co., 21 Howard 441; Floyd Acceptances, 7 Wallace 666.

To make notes thus signed “by Robert D. Sheppard, Treasurer,” valid and material against the corporation, these factors must be present in the situation:

First. They must be notes that the corporation itself had power to make.

Second. One of the following alternatives must appear:

A. Robert D. Sheppard (his position as treasurer by itself giving him no such power) must have been specially authorized by the corporation, through its governing body, to execute them in its name; or

B. He must have been generally so authorized in virtue of his employment or appointment as “business agent” or “business manager.” That is, in Ms duties and position as business agent or business manager, the power to give these notes must have been implied; or

C. By its actions and their result in investing Dr. Sheppard with apparent if not real authority to make such a negotiation as the one involved, the Garrett Biblical Institute must have estopped itself to deny that authority against the plaintiff Fisk; or

D. If done without prior authority, real or apparent, bestowed on Sheppard, the signing and delivery of the notes must have been ratified by the corporation after it was done.

We will briefly discuss these several conditions:

If the corporation itself had not the power to make these notes, there is an end of the case, for it could not estop itself by giving apparent authority when it had no power to give actual authority, nor ratify an action by an agent which it had no power as principal to perforin. Wood v. Mystic Circle, 212 Ill. 532, 537; National Home Building Association v. Home Savings Bank, 181 Ill. 35; Davis v. Old Colony R. R. Co., 131 Mass. 258; Durkee v. People, 155 Ill. 354.

It is earnestly contended by the appellee that the corporation did not have the power in question, and its arguments to this effect are at least entitled to grave consideration.

The Garrett Biblical Institute, although not given the power expressly by its charter, undoubtedly had the power to borrow money for the purpose of carrying on the work it was organized to do, and, incidental thereto, the power to borrow money for the purpose of improving and making profitably income producing its property. It is claimed by plaintiff that it was for this latter purpose that the money obtained, on the notes in suit was borrowed. But apart from the question raised by the appellee, whether the power to borrow money for specific purposes necessarily involved the power to issue negotiable notes for that money, the assignment of which notes might cut off defenses (a question which we do not think needs answer from us in this discussion), and assuming that the power to borrow money and the power to issue negotiable paper, were connected and correlative in this case, the further question at once arises,—Upon whom does the burden of proof lie, to make the notes valid, of showing that the money was borrowed for those purposes for which alone the corporation had the right to borrow it?

The appellee insists that it lies on the plaintiff, and for this proposition cites as authority: People’s Bank v. St. Anthony’s Roman Catholic Church, supra; Bank v. Gospel Tabernacle Church, 127 New York 361; and Palmer v. Wardens and Vestrymen of St. Stephen’s Church, 16 Fed. Rep. 742.

If this be the true rule, the plaintiff has manifestly failed to make out its case, for the circumstances of the loan which it proved were only these: In the Winter of 1901-2, Everett 0. Fisk, who resided in Boston, visited his brother, H. F. Fisk (a member of the faculty of the Northwestern University) at Evanston. He “walked” and “talked” with Dr. Sheppard while there. He knew that Dr. Sheppard was treasurer of both the Garrett Biblical Institute and the Northwestern University, and talked with him incidentally about both institutions and the buildings they were to put up, “but did not discuss the matter as he did not think it concerned him” or “had any bearing on his affairs”. He knew that his sister had made loans of money purporting to be to the Garrett Biblical Institute. “He had not the slightest thought in his mind of any need of any interest or any inquiries into the operation and management of the Garrett Biblical Institute, excepting the information he had from his brother”. “He was a member of the Methodist Episcopal Church and was proud of the doings of the Garrett Biblical Institute and of the Northwestern University”. “He brought five thousand dollars to Dr. Sheppard at the University office, stating that he understood that they were building and could use some funds”; that he had some money and “would be glad to have the Garrett Biblical Institute use it, if they cared to do so.” Beceiving from Dr. Sheppard encouragement in this suggestion, on his return to Boston Fisk mailed to Dr. Sheppard, on April 17, 1902, two checks, one for $2,600 and one for $2,400, for which the first of the notes sued on was sent to Fisk by Sheppard. On November 13, 1902— on what further communication, if any, does not appear — another check for $2,000 was sent to Dr. Sheppard by Fisk, and the second note sued on was returned. On December 7, 1903 (the record again being entirely silent as to any other preceding communication between the parties), Fisk forwarded to Sheppard $13,000, and received in return from him the third note sued on.

This is practically all that the record as it stands shows concerning the circumstances under which Fisk parted with his money; although in the excluded parts of the testimony of Fisk (the exclusion of which plaintiff complains of as error) he says that he took up the matter of loaning money to the Institute at the suggestion of his brother, who was not connected with the Institute, and that in these conversations his brother spoke of the loans which had been made to the Institute by his sister and by a Mrs. Coan; that his brother “constantly referred to Dr. Sheppard as the trusted financial manager of the Institute, trusted and approved by all the authorities—not that he had any special reference to this loan.” And that he, Fisk, also talked with other persons about Sheppard. “The whole air,” he says, “was so chock full of Sheppard, I confess that none of these conversations made any impression as having any significance. I would as soon have thought of the Northwestern University going up as Dr. Sheppard.”

It seems clear to us that the plaintiff did not sustain the burden, if it lay on it, of proving that the specific acts of borrowing and giving notes, involved in this suit, were for any purpose for which the corporation itself, even by its governing body, would have had the right to make the same transactions.

But the appellant contends that the fact that the defendant corporation had the power to issue some notes—that is, notes for some particular purposes—at the least, shifted the burden of proof and made it incumbent on the defendant, if it would have the notes in question held invalid, to show affirmatively that they were not issued within its power and for a proper corporate purpose or intent. Even if this be so, we are of the opinion that the evidence of the witnesses for the plaintiff on examination and cross-examination establishes this.

The statement of the appellee in its argument, however, that “it is not claimed, and certainly the evidence does not even suggest, that in fact the corporation either needed this money for any cofporate purpose, or that it was borrowed with that end in view,” is not quite accurate. The plaintiff repudiates the concession and does claim that a fair question for the jury was whether this money that was obtained from Fisk by Sheppard was not borrowed for the building operations with which the Garrett Biblical Institute was improving its' land holdings and did not actually go into them.

Thus, while the precise date of completion of the buildings erected by the Institute does not appear, it does appear that the G-arrett building was practically completed about three years before the first of the notes in suit was given, and that the contracts for the other two were let almost a year before it was given.

The resolution which was adopted May 27, 1903, by the trustees, authorizing the “proper officers of the Board , of Trustees of the G-arrett Biblical Institute to arrange for funding of so much of the floating indebtedness of the Institute as it may deem to be expedient”, can hardly, by any stretch of construction, be said to present any evidence for the jury that the money in question here might have been borrowed for the “funding” of smaller floating building indebtedness, previously incurred, for, in the first place, it was adopted long after the first two notes were made, and, secondly, it gave no authority to the treasurer, but authorized action only by more than one officer. In addition to this evidence, throwing light on the question whether the money could have been borrowed for building purposes or other purposes authorized by the charter, but giving no indication that the answer should be in the affirmative, we have in the record evidence which shows that when Dr. Sheppard resigned in 1906, after his nine years treasurership, there was a shortage in his accounts if the money received on these notes was reckoned among his receipts for the Institute, of at least $11,000 more than their amount. Thus it appears that at all events this amount, the receipt of which seems never to have been even reported to the trustees, was not used for the benefit of the Garrett Biblical Institute, even if ostensibly borrowed for it.

We think, therefore, that even if it be assumed that the burden was on the defendant to show that the notes were not given in pursuance of the proper purposes of the Institute, it is at the very least, extremely doubtful whether there was anything whatever to go to the jury,-—any matter in dispute, that is, which was left by the evidence open to differing opinions by reasonable men. It would appear rather- that the case made by the plaintiff itself showed that the corporation itself could not, at the times that the notes were dated, have legally borrowed the money from Fisk.

But if we concede that this question is not without difficulty and that if the trustees of the corporation had, without defining any purpose therein, specifically authorized Sheppard to borrow this money and give these notes, they would have been valid, notwithstanding the fact of the ultimate shortage in his accounts of more than their amount, still there is a great gap to be filled before the liability of the defendant in this suit can be established. As a matter of fact Sheppard was not specially authorized in any form to borrow this money. Nor was there any sufficient evidence to go to the jury tending to prove that he was. The appellant indeed claims that the resolution of May 26, 1898, authorizing the treasurer “to arrange for a building loan for the purpose of constructing” the Garrett Building, “the amount not to exceed $300,000”; and that “pending negotiations for such a loan he be authorized to make temporary loans as the necessity of progress, of the work may demand”, should have gone to the jury as tending to show specific authority to borrow this money from Fisk, four years and more thereafter; but this is on its face an unsound proposition. It also claims that the resolution of May 27, 1903, hereinbefore referred to, authorizing “the proper officers of the Board of Trustees of the Gfarrett Biblical Institute to arrange for funding of so much of the floating indebtedness of the Institute as it may deem expedient”, should have gone to the jury as tending to prove special authority to the treasurer to borrow the money and issue the notes in question. Why this resolution could have no such effect, we have already pointed out.

It thus appears that on the assumption even that the evidence shows that power in the Institute existed to incur this indebtedness, the first (A) of the alternative additional conditions necessary to make these obligations, executed by the treasurer, valid, is non-existent.

We do not think that there was any evidence sufficient to go to the jury to sustain either of the other alternatives suggested. The second (B) is that Sheppard was generally authorized to make these notes in virtue of his employment or appointment by the Board of Trustees as “business agent” or “business manager”. There is no record or direct evidence of any such appointment or employment, but the minutes of the trustees’ meetings do, in one place; speak of Sheppard as business agent (May 26, 1898, when as “business agent” he is said to have presented a form of lease with Beid, Murdoch & Co.), and in two other places as business manager. (May 29, 1901, when he is stated, in connection with the proposed building of the Manufacturer’s building, to have presented to the board a report of his acts and doings as business manager, and February 21, 1906, when the president, announcing Sheppard’s resignation as treasurer, stated that the treasurer’s duties had hitherto included the work of “business manager.”)

But even if this be considered proof that Sheppard was the authorized “business manager” of the eleemosynary institution, this would not give him general implied authority to do business of the kind and in the manner here involved. To borrow money or to execute notes, the authority even of a “business agent” must be express or absolutely indispensable to the accomplishment of the purpose of his agency. Jackson Paper Company v. Commercial National Bank, 199 Ill. 151; Merchants National Bank v. Nichols, 223 Ill. 41; Paige v. Stone, 10 Metcalf 160; Washington Gas Light Co. v. Lansden, 172 U. S. 534.

In and by itself the duty of attending to the “business” of a theological school certainly does not include the borrowing of money or the making of notes.

But it is said that the “business” of this particular theological school did include, as an indispensable factor, the borrowing of money, because the Institute was engaged, through a series of years, in building operations dependent on borrowed money, and that Sheppard was the chosen agent to carry them on. But this contention is not sustained by what the evidence shows. Sheppard signed certain building contracts which might well fall within his duties as “business agent”, without his being required by that to procure the funds to pay for the buildings. The very fact that special authority was thought necessary to empower bim to make the $300,000 building loan for the Garrett building and the temporary loans while the work was progressing, and special authority also was granted even to the “proper officers of the Board of Trustees to arrange for funding the floating indebtedness of the Institute”, would the rather seem to indicate clearly the belief and intention of the trustees that there should be no such implied authority exercised or relied on. And it is again to be noted that the dates of these notes were at times long after the building operations and two of them long before the refunding resolution. Nor does the fact that other notes were given by Sheppard in the name of the Institute, and that these notes had been repaid by him and were turned over to his successor in office cancelled, furnish evidence tending to show that this general implied authority existed in him.

Eight of the eighteen such notes produced in evidence were given to the Illinois Trust & Savings Bank within six months of the passage of the resolution of May 27, 1898, especially authorizing the treasurer to make temporary loans as necessity in building the Garrett building demanded. They were all but one paid together on December 1, 1898, and it may well be that they were all given for such authorized temporary loans and taken up with the proceeds of the after negotiated building loan. However that may be, if these and the other notes given and paid by Sheppard were any of them not strictly authorized, the fact that they were given by Sheppard and then paid either by Sheppard or the Institute, would imply no acknowledgment that the action of Sheppard in giving these notes in suit was under a general or implied authority. Those paid before Sheppard resigned were paid by Sheppard, and there is no evidence that the Institute knew anything about them until after they were paid, and even those paid afterward, the Institute may have known nothing about until the end of Dr. Sheppard’s treasurership. Manifestly the payment after that of some of the notes did not admit that they and all others given by Sheppard in the name of the Institute were given under an implied authority.

It is a significant fact that as to the notes in suit, it appears in evidence that Sheppard did not report them to the trustees, and that even in the report or account which, in compliance with the request of Dr. Sheppard, Mr. Crandon was directed to make and did make to the trustees, the receipt of this money was not shown, and that its inclusion would have increased the shortage of $11,024.18 to over $31,000.

The next alternative (0) is that by its actions and their result in investing Dr. Sheppard with apparent if not real authority to make such negotiations as those involved in this suit, the Institute has estopped itself to deny that authority against the plaintiff.

"What we have already said concerning the actions of the trustees as ratification or acknowledgment of transactions of Sheppard, applies to some degree to this hypothesis also.

It is, however, an argument pressed with much insis-. tence by the plaintiff, that the trustees must have known of the manner in which Sheppard was transacting the .business of the Institute, that by their acquiescence and non-intervention, they gave the world to understand that he had authority, and that if he did not, their negligence and sloth should be practically penalized by compelling them to indemnify one who has parted with his money, relying on such apparent authority.

But if the reliance is on the defendant’s negligence to prove liability, the reason of the rule, which prevents. the mulcting of a charitable institution in an action on tort for negligence, applies with equal force to this suit in assumpsit. The law will not allow the funds of the founders to be dissipated in judgments because of the negligence of the administrators. Parks v. Northwestern University (supra).

In addition to this, it is the established rule of law in Ulinois, that apparent authority, as distinguished from real authority, can only be invoked to establish liability in favor of one who knew of and relied on the actions of the agent to be referred to the supposed authorization, and the action or non-action of the principal which gave the authorization an apparent existence. Jackson Paper Manufacturing Company v. Commercial National Bank, 199 Ill. 151; Merchants National Bank v. Nichols, 223 Ill. 41.

Counsel for appellee contend that the appellant, the Alton Manufacturing Co., cannot even avail itself of the rights which Everett 0. Fisk may have had in the notes, because of his reliance on previous transactions of Sheppard, inasmuch as it did not receive “the limited information which he had received.” Without going so far as this, or holding that the appellant had any less rights in this suit than Everett 0. Fisk would have had, had he been plaintiff, we are still of the opinion that there was no evidence to go to the jury tending to establish the defendant’s liability on this theory of “apparent authority”.

The giving of the other notes and the payments on them, Fisk knew only as the acts of Sheppard; he did not know of any authorization of them or ratification of them by the Institute.

The notes which were paid to Fisk himself were paid, as we read the record, by Sheppard from personal funds, not from those of the Institute, which he does not mention in this connection. The statement of the appellee is warranted—that “it is uncontroverted that the Institute never knew of the giving of those notes or of the fact that Sheppard had paid them, until after the notes in suit were several years old, and after they had been transferred by Everett 0. Fisk to appellant”.

The appellant points to the building contracts which the president and secretary of the Institute were authorized to sign, but which it appears from the evidence that Sheppard did sign, and to the other contracts which Sheppard signed in the absence of any direct authorization of anybody by the trustees, as proof of the apparent authority to borrow money and execute notes; but they furnish no proof of such authority nor evidence to go to the jury of such authority.

For the two matters are entirely distinct and separate. Conceded powers much greater than those to sign building contracts have been held by our Supreme Court to carry with them no real or apparent authority to borrow money or sign notes. Merchants National Bank v. Nichols (supra); Jackson Paper Co. v. Commercial National Bank (supra).

The final contention which we must discuss is (D) that the signing and delivery of the notes in suit was ratified by the Institute after its accomplishment.

This, it is claimed, was at least a question for the jury, because of evidence tending to show such ratification.

First, it is said that by ordering an audit and receiving a report from the auditor of notes many times in amount those in suit, signed “Garrett Biblical Institute by Bobert D. Sheppard, Treasurer”, and making, for several months thereafter and until Dr. Sheppard resigned of his own volition, no change in the management, the trustees ratified the notes which he gave and which are in suit.

But it is not claimed that the notes in suit were reported, nor that the Institute knew of them between November 7, 1905, and February 21, 1906, and the ratification of those that were reported would not furn-r.ish any evidence of the ratification of those that were not. Woods v. Francklyn, 19 N. Y. Supp. 377; Temple v. Pomroy, 4 Gray 128.

It is argued, however, that there was evidence of ratification in another and very effective way, by receiving, retaining and using the money which Fisk gave Sheppard.

This contention is based on the evidence which shows that the checks were made payable to the order of the Garrett Biblical Institute, that Sheppard endorsed them with its name and deposited them in the bank account in its name.

The defendant claims, in a contention that we are not disposed to allow, that there is no competent evidence that the checks were deposited to the credit of the Institute.

We think there was competent evidence quite sufficient to justify a jury in finding that the checks received from Fisk were deposited as they were received by Sheppard in the State Bank of Chicago to the credit of an account kept in that Bank by Sheppard in the name of “The Garrett Biblical Institute”.

But this in itself is not sufficient to prove, and by itself does not tend to prove, and would not justify a jury in finding, that the Institute received the benefit of the money so deposited. First National Bank v. Oberne, 121 Ill. 25; Fay v. Slaughter & Co., 194 Ill. 157.

That the Institute in fact did not receive that benefit is shown by the fact, before noted, that at the close of Sheppard’s term of office the defalcation or shortage in the treasurer’s funds was greater than the amount of these notes, and that they had never been even reported to the trustees. The bank account had been drawn out as well as deposited by Sheppard, and the fact, therefore, that this money passed through it and, in one instance, made up an overdraft, is of no importance. No evidence, as appellee points out, was offered to show what the money represented by this overdraft was used for—whether for the use of the Institute or whether it represented defalcations. Merchants National Bank v. Nichols (supra); Crafts v. South Boston R. R. Co. (supra).

Thus on no one of the alternative conditions necessary to supplement the power of the Institute itself to make these notes, in order to render them valid when made by Sheppard, was there sufficient evidence to go to the jury.

It is therefore our conclusion that the learned trial judge was right in his exclusion of the notes and in the peremptory instruction.

Subsidiary rulings on evidence are questioned by the appellant, who says that on account of them it was not allowed “to present the strongest case it could”. But we do not deem it necessary to discuss them, for the rejected evidence, had it been admitted, would not have changed the situation as viewed by us.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.

Mr. Justice Bbowk dissenting: I differ from the majority of the court in this case. I shall very briefly state my reasons therefor.

The opinion of the court rests primarily on the distinetion which courts have made between the liability of commercial corporations and charitable organizations. But I think that there is no difference between the liability of a charitable religious corporation and of any other kind of a corporation, when the charitable religious corporation is dealing with contractual business obligations, especially, perhaps, if the said cor-, poration is a teaching institution" like a college, rather than a purely eleemosynary charity.

The corporation defendant in this case was conducting, for a considerable time, building operations on a large scale in the business portion of Chicago. It appears that in seven years its receipts had been $1,786,315.22, and its disbursements nearly that amount. From the report of the auditor, Mr. Gran-don, in November, 1905, it appears that since 1898 the Institute had built three business buildings—one at a cost of over four hundred thousand dollars, another at the cost of over three hundred and fifty thousand dollars, and a third at a cost which does not appear. I think that in anything connected with such business the Garrett Biblical Institute is to be treated like any ordinary business corporation. The cases cited by the ap-' pellee and by the opinion of the court to establish a contrary doctrine are cases of torts to the objects of the charity, and depend on another principle.

But the court holds that even if the Institute had power to make valid notes, there was no evidence to go to the jury of authority to Sheppard to make these notes sued on. I disagree with the" court in this. There was, in my opinion, first evidence, tending to show special authority, which should have gone to the jury. The jury should at least* have been allowed to say whether the resolution of May 27, 1898, ■ expressly giving authority to the treasurer to make temporary loans during the building of the Garrett building had any connection with these notes in question, and whether the circumstances did not show a tacit continuance of the power while the Manufacturer’s building and the Factory building were going up; and also whether the resolution of May 27, 1903, in relation to funding the floating indebtedness of the Institute, in view of all the circumstances and of the course of business thitherto, was not intended to give special authority to Sheppard. It is to be noted that the rule as to peremptory instructions is even more strict than the appellant claims. It is not a question whether a verdict based on all the evidence must be set aside, but whether there is any evidence legally tending to prove the fact affirmed on the part of the plaintiff, all countervailing evidence being ignored. Woodman v. Ill. Trust & Savings Bank, 211 Ill. 578.

But however this may be, I have no doubt that there was evidence proper to go to the jury tending to show that there was actual general authority vested in Sheppard by the-trustees, enabling him to bind the Institute by these notes. Evidence of general authority, given antecedently to a particular act, may be circumstantial as well as direct. Acquiescence through years in the general management of a business by an agent, is evidence not only of ratification, but also evidence tending to prove that authority originally was given to him to do it.

It is not necessary for me to point out the evidence, of which the record is full, showing how completely the trustees turned over the business of the Institute to Dr. Sheppard.

But even if there were no sufficient evidence to go to the jury .on the question of actual authority—which I by no means believe-—there was a great deal, as it seems to me, which the jury should have been allowed to consider, tending to show such apparent authority as would bind the Institute on the theory of estoppel.

Once eliminate the hypothesis that because of the nature of the corporation there could be against it no recovery, even on contracts, because of any negligence of the trustees, and on this matter of their vesting Sheppard with apparent authority, to the injury of an innocent third person, I can conceive of few stronger cases than this is for the plaintiff on this ground alone. Not only, in my opinion, should the evidence on this theory have been allowed to go to the jury, but its preponderant weight seems to me to be against the defendant.

Moreover, there was evidence which should, in my opinion, have gone to the jury, tending to show that the corporation got the benefit of the money. All that tended to prove that the money went into the bank account of the Garrett Biblical Institute was competent and material for the purpose of showing that the Institute got the benefit of it. I think that after that was proven, in connection "with the rest of the course of business shown, the burden lay with the defendant to prove that it did not receive the benefit of it, and that this burden was far from carried by proving a shortage in Dr. Sheppard’s accounts from two to four years thereafter, at the end of his nine years’ treasurership. Much less was such evidence of a shortage sufficient to warrant taking the question concerning the corporation’s receiving the benefit of the money from the jury, and thus, in effect, charging up to the plaintiff, solely, a shortage inextricably connected with an infinity of complex transactions extending over years.

I think the judgment should be reversed and the cause remanded to the Municipal Court for a new trial.


source: Caselaw Access Project

author: Mr. Presiding Justice Adams

license: Public Domain

text:
    William R. T. Ewen, Jr., Appellee, v. Walter B. Templeton, Appellant.
    Gen. No. 14,386.
    1. Negotiable instruments—who may sue upon. An endorsee vested with the legal title hut without pecuniary interest in a promissory note may maintain an action at law to recover thereon.
    2. Negotiable instruments—burden to establish plea of want

      of consideration. The burden is upon the defendant to establish his plea of want of consideration.
    Assumpsit. Appeal' from the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.
    Statement by the Court. Appellee was plaintiff and appellant defendant in the trial court. The pleadings are a declaration containing only the common counts and a plea of the general issue and a special plea, in which it is averred, “that the notes, copies of which are filed with the plaintiff’s said declaration, and referred to in his affidavit of claim, were made and delivered by the defendant without any good or valuable consideration therefor, and solely as an accommodation to the said E. H. .Bingham, payee therein, and that the said notes and each of them were transferred by the said E. H. Bingham to the said plaintiff after the maturity thereof, and without any good or valuable consideration being paid or given therefor by the said plaintiff, the said plaintiff then and there having notice that the said notes and each of them were made and delivered by the said defendant without any good and valuable consideration therefor”.
    The cause was tried by the court, without a jury, and the court found the issues for the plaintiff, overruled motions by the defendants for a new trial and in arrest of judgment and rendered judgment on the finding.
    The suit is on two promissory notes, each dated October 26, 1905, each for the sum of $1,500, payable to the order of E. H. Bingham, with interest at the rate of five per cent, per annum, one of them being payable on or before one year after date, and the other being payable on or before two years after date. Each note contains a statement by the maker, that he has deposited with E. H. Bingham, as collateral security for the two notes, a certificate of stock number 10 of Templeton, Kenly & Co. Limited, for twenty-eight shares, in the name of Edward H. Bingham, and authorizing said Bingham, his agent or assignee, to sell said shares, or any part thereof, on the maturity of the note, or before, in the event of the security depreciating in value, at public or private sale, without advertisement, demand of payment or notice, etc. The one year note is endorsed as follows:
    “For value received I hereby transfer all my right, title and interest in the within note to F. W. Rockwell or order, and guarantee the payment of same.
    E. H. Bingham.
    April 12/06.
    For value received I hereby transfer all my right, title and interest in the within note to E. H. Bingham.
    F. W. Rockwell.
    Oct. 26/06 Interest $75.00 Paid to date.
    Dec. 12/06 Paid on Account ($500.00) Five Hundred Dollars.
    E. H. Bingham”.
    The two year note is endorsed as follows:
    “Oct. 26/06 $75.00 interest to date paid.
    For value received I hereby transfer all my right, title and interest in the within note to F. W. Rockwell or order and guarantee the payment of same.
    E. H. Bingham.
    April 12, ’06.
    For value received I hereby transfer all my right, title and interest in the within note to E. H. Bingham.
    F. W. Rockwell.”
    “E. H. Bingham”.
    The plaintiff put the notes, with their endorsements, in evidence. Wm. T. R. Ewen, Jr., plaintiff, cross-examined by defendant’s attorney, testified that he acquired title to the notes about November 5, 1907; that .it might have been a day or two between that; that they were turned over to him by Mr. Brown, and that the last endorsement, “E. H. Bingham”, was on them when he received them; also that he paid no money or other consideration for the notes. On redirect, he testified that he was an assistant of Mr. Brown, the plaintiff’s attorney, in his office, and brought suit in his, plaintiff’s, name, by Mr. Brown’s request, and, on recross, he'testified that he had no pecuniary interest in the notes.
    Frederick A. Brown, plaintiff’s attorney, examined by defendant’s attorney, testified that he claimed an interest in the notes, and acquired his interest a day or two before suit brought, and after the maturity of the notes, and that he claimed no rights other than the original payee of the notes had; that he got the notes from E. H. Bingham, paid nothing for them, and was prosecuting the suit for the benefit of Bingham and himself.
    Edward H. Bingham was examined by the defendant’s attorney as if under cross-examination, and testified, in substance, as follows: F. W. Rockwell is his father-in-law, and the endorsements to him were made about the dates of the notes, and the notes were delivered to him, and Rockwell’s endorsements dated April 12, 1906, were made about that date, and the notes were then delivered to him, Bingham, and since April 12, 1906, they were in his possession until they went, about October 1, 1907, to the Union Trust Co. for collection, where they were till about the end of October, when they were returned to witness. The endorsements of payments on the one year note were made by witness. The defendant gave witness a check for $150 about October 26, 1906, and about December 12, 1906, he received from defendant a check for $500. The twenty-eight shares of stock of Templeton, Kenly & Co. Limited, and about $300 which Mr. Templeton owed witness, were the consideration for the notes. The shares are of the par value of $50 each. The certificate is dated November 6, 1901. Witness had owned the stock since that time. He was a director of the company, and thinks, but is not positive, that he was secretary of the company when the notes were executed; that he has held different offices, at different times, in the company. Witness then goes on to say that several times he offered to sell the stock to the defendant, without success, but, finally, October 26, 1905, defendant purchased it. On re-direct, he says he does not own the stock, but holds it merely as collateral security.
    Walter B. Templeton, defendant, called as a witness for himself, testified, in substance, as follows: Bingham explained to witness that he wanted to raise money for his father-in-law, and asked witness to buy the stock, which he refused, and he said if witness would give him notes for it, he could negotiate with his father-in-law, and I agreed to give him two notes aggregating $3,000 for the purpose of accommodation. “The notes were drawn for the purpose appearing on the face of them, only with the exception that, as far as I was concerned, the proceeds of them were for the purpose of liquidating some of his indebtedness, and, if necessary, he would take them up from time to time”. Witness never agreed to buy from Bingham twenty-eight shares of stock, and the certificate was never delivered to witness. Witness told Bingham that, if he held the stock, he thought it would be worth $3,000; but did not agree to pay him that for it. On cross-examination, witness admits paying Bingham money since the execution of the notes, and that he paid him $500, by check. Asked why he paid the $500 if he did not owe the notes, he says that morally he owed them, because he had signed them; hut that the notes were given for the purpose of extending credits to Bingham, so that he might be able to raise some money, and that the notes were purely on an accommodation basis. The following letter was shown to the witness, and he testified that he never saw the original of the letter:
    “October. 26, 1905.
    Walter B. Templeton,
    Chicago, Bis.
    Dear Sir:—Referring to my conversation today, I hereby confirm the agreement that the notes amounting to $3000, given to me today, are in full payment of all the money and interest due me from you previous to this date, as well as for all my stock of Temple-ton, Kenly Company, Limited.
    Tours truly,
    E. H. Bingham”.
    E. H. Bingham, called by plaintiff, testified, in substance, as follows: The copy of letter just read is in' witness’ handwriting, and witness sent the original to defendant about the date of the copy. Witness received a telephone statement that defendant had received the letter. The letter was sent because defendant had stated that he wished to have it clearly stated in writing that the notes included not only the stock, but the money which he owed witness. The defendant put in evidence minutes of meetings of the stockholders of Templeton, Kenly & Co., Limited, held, respectively, August 19,1904, and February 16, 1907, showing that E. H. Bingham represented twenty-eight shares of stock at said meetings. At the meeting held February 16th, E. H. Bingham was unanimously elected a director.
    Edward H. Bingham, recalled, testified: On or about that time, Mr. Templeton requested me to keep the stock in my own name, that I might act as a director and officer, which was the reason of my so keeping it. He also testified that the following letter is in defendant’s handwriting, and that he, witness, received it November 11, 1907:
    “E. H. Bingham,
    Dear Sir:—Don’t you think your action regarding notes has been, to say the least, unworthy of you, particularly when you consider that I agreed to take your stock in order to help you out, there being no other reason for so doing? Tour present attitude will not benefit you at all, and I think in your talking over the situation here some understanding and arrangement can be made.
    Tours truly,
    Walter B. Templeton”.
    Witness answered defendant’s letter by letter of date November 11, 1907, in evidence, stating, in substance, that he never considered the purchase of the stock by the defendant as a favor, and understood the defendant as saying, the -summer before, that he could sell the stock for more than he paid for it, etc., and stating that the notes were no longer in his hands, and he did not know what was being done to collect them. November 11, 1907, was six days after suit was commenced.
    November 16, 1907, defendant answered the last letter, insisting that he executed the notes for Bingham’s accommodation.
    Newman, Northrup, Levinson & Becker, for appellant.
    Frederick A. Brown, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Counsel for appellant, defendant below, rely on three contentions: First, that the finding of the court is against the weight of the evidence; second, that the plaintiff had not title to maintain his suit; and third, that the court erred in refusing to hold certain propositions as law, submitted by counsel for defendant.

We do not deem it necessary to comment on the contention that the finding is against the weight of the evidence, as we think the evidence itself, which is substantially set forth in the preceding statement, a sufficient answer to it. We think the finding supported by the greater weight of the evidence.

In support of contention two counsel cite and rely on Porter v. Cushman, 19 Ill. 572, and Moore v. Maple, 25 ib. 341. The former case is thus stated by the court: “This was an action brought by Maria Cushman against the appellants, upon a promissory note made by them and payable to the order of De Puy,. and by him specially indorsed to James Strain, and no indorsement by Strain, either to plaintiff or in blank”. On the trial, the court permitted Cushman, the plaintiff, to strike ont the name of Strain and insert her own, as endorsee, and this was held reversible error. In the present case the notes came to the plaintiff’s hands, endorsed in blank by E. H. Bingham, the last endorser. In Moore v. Maple, the court, following Porter v. Cushman, held that while a party who is the equitable owner of commercial paper may, on the trial, be permitted to invest himself with title, by erasing endorsements or filling up blanks in endorsements, one who is not shown, by the evidence, to be the equitable owner of the paper cannot be permitted so to do. Very clearly, the cases cited have no application to the facts of this case. The notes being endorsed in blank by the last endorser, plaintiff, into whose hands the note came, had legal title to maintain the suit. McHenry v. Ridgely, 2 Scam. 309; Burnap v. Cook, 32 Ill. 168; Palmer v. Nassau Bank, 78 ib. 380; Morris v. Preston, 93 ib. 215; Central School Supply House v. Donovan, 70 Ill. App. 209.

In Morris v. Preston, the court say: “All know that bank bills, treasury warrants, notes payable to bearer, and bills and notes endorsed in blank, pass by mere delivery”. While the plaintiff might have written under Bingham’s signature an order to pay to-himself, this was not at all necessary. It was the delivery to him, with the endorsement in blank, which carried the legal title and right to sue.

The third contention is that the court erred in refusing to hold as law defendant’s propositions fourth, fifth and sixth. The theory of these propositions is, that it was incumbent on the plaintiff to prove, by a preponderance of the evidence, that the notes in suit were not accommodation notes, but were given for a valuable consideration, in other words, to prove that the defendant’s special plea was untrue. This might be very convenient for the defendant, but it is not the law. The law is otherwise. Chicago T. & S. Bank v. Landfield, 73 Ill. App. 173, 178, and cases cited.

In Stacker v. Hewitt, 1 Scam. 207, the suit was debt on a sealed note, and it was pleaded that the note was given without any consideration. The court, after referring to the statute relative to promissory notes, bonds, etc., say: ‘ ‘ This act of itself, then, would make any instrument, coming within the description named, prima facie evidence, although it did not express on its face to have been - given for value received, and render the proof by the plaintiff of a consideration unnecessary. But it is considered well settled, and a principle admitting of no doubt, that the defendant by his plea was bound to sustain by proof the existence of the fact averred in his plea, and- upon which the plaintiffs had taken issue”.

In Benson v. Morgan, 26 Ill. App. 22, the defendant pleaded that the consideration of the note sued on was illegal, in respect to which the court (ib. 25) held that the burden was on the defendant to prove his plea by a preponderance of the evidence, citing Pixley v. Boynton, 79 Ill. 351. The court properly refused to hold the propositions, and each of them, as law.

The judgment will be affirmed.

Affirmed.


text:
    Val Blatz Brewing Company, Appellant, v. Tom Young, Appellee.
    Gen. No. 14,401.

      Practice—when theory of recovery cannot he changed. If a plaintiff has specially pleaded in the trial court and has relied upon an express promise as the basis of recovery, it is too late for him to change his theory of recovery in the Appellate Court to a claim predicated upon another and different implied promise provable under the common counts.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. William H. McSurelv, Judge, presiding.
    Heard in this court 'at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.

      Statement by the Court. This is an appeal from a judgment in a suit in assumpsit by appellant against appellee. The declaration consists of a special count and the common counts. In the special count it is averred, in substance, that the plaintiff is a Wisconsin corporation, engaged in the manufacture and sale, at wholesale, of beer and other malt liquors, and the defendant kept a saloon or dram-shop at 317 Illinois street, in the city of Chicago, in Cook county, and was engaged in selling beer at retail, and, November 15, 1905, in consideration that plaintiff would make, or cause to be made, certain alterations or improvements, to wit, building an addition ten by eighteen feet, straightening up building, repairing and removing studding, sheathing and siding on the side of the building, putting in water closet and sheathing entire inside of building, putting on new threshold, chair-rail and wainscotting, and repairing lock, flooring water closet, putting in urinal and sink, all said improvements .to be made on the aforesaid premises, defendant promised plaintiff that he, defendant, would purchase from plaintiff at plaintiff’s market price, all beer that he, defendant, might use, sell, or give away, on said premises, for one year from the day and year aforesaid, and further promised that, if any time during said year he, defendant, should not purchase from plaintiff all the beer which defendant should use, sell or give away on said premises, then defendant would reimburse plaintiff for its expenses in making said alterations. Defendant made said alterations or improvements, and incurred and paid for the same, to wit, $500, and defendant used the same, but, to wit, March 4, 1906, ceased and refused to purchase from plaintiff all beer that he used, sold, or gave away on said premises, although plaintiff was, at all times, ready to furnish the same, and defendant continued to use, sell and give away other beer on said premises, and, although often requested, has continually refused to pay for said alterations, to plaintiff’s damage, etc.

      The defendant pleaded the general issue and a special plea, averring, in substance, that each and every one of the promises in the declaration mentioned, was an agreement not to be performed within one year from the time of the making thereof, to wit, November 15, 1905, and that there was no memorandum or note thereof in writing signed by defendant, or by any person thereunto lawfully authorized, in accordance with the statute, etc. The jury found the issues for the defendant. The plaintiff moved for judgment on the special findings of the jury, for a new trial and in arrest of judgment, which motions the court overruled and rendered judgment on the verdict.
    Winston, Payne, Steawn & Shaw, for appellant.
    Henry M. Seligman, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Plaintiff’s counsel contend that the verdict is against the preponderance of the evidence.

It appears from a lease put in evidence by the plaintiff that June 1, 1905, plaintiff leased to defendant, from said date till January 31, 1906, the store and basement of a two-story frame building known as 317 Illinois street, to be occupied as a saloon, and for no other purpose whatever. The rental reserved is $90, payable in advance, on the first day of each month of the term, with a rebate of $45 for each month subsequent to June, 1905, provided the lessee shall purchase from the lessor, all beer sold on the premises, for cash on delivery, at the market-price per barrel, the lessor being willing to sell the same. The lease contains a covenant that the lessee shall keep the premises in good repair, and in a clean and healthy condition. It also contains the following: “It is further agreed between both parties hereto, that the Val Blatz Brewing Co. may, at any time, cancel and terminate this lease, by giving said 2nd party a thirty day notice, in writing, of the intention to cancel and terminate this lease”.

No other lease was pnt in evidence, although there is evidence tending to prove that defendant remained in possession of the demised premises after the expiration of the term created by the lease of June 1, 1905, and under another lease.

Henry Mayer, plaintiff’s manager, testified that defendant requested to have the improvements in question made, and witness had a contract drawn up, which, if defendant had signed it, would have bound him to take plaintiff’s beer for three years, but defendant refused to sign it, and said he had always done business with plaintiff, and would continue to do so, if the beer would prove satisfactory, and that he, defendant, supposed they would have no trouble about it, and witness said he would go on with the improvements, but defendant was to handle plaintiff’s beer for at least a year, and witness said to the bookkeeper, “If Mr. Young agreed to handle our beer for a year, go ahead, and he, the bookkeeper, said Mr.. Young was satisfied, and gave him an order for the work.” On cross-examination, witness testified that, after March 15, 1906, he could sell no beer to defendant; that defendant said the license was going to be higher May 1st, and he had to have cheaper beer, and witness says he may have recommended him to the Bartholomae & Roesing Brewery, but does not know for sure.

Louis W. Torpe, plaintiff’s bookkeeper, testified that he was present at a conversation in November, 1905, when Mr. Mayer said to defendant, “If you don’t want to sign this agreement, you will have to agree to purchase the beer for at least one year”, and defendant said, “Why, I will take it for a year or more; I have no grievance against the company, and I am willing to continue your beer as before”. Witness was then questioned and answered as follows:

“Q. Did Mr. Young, himself, mention anything; did he say that he would take it for a year ?
A. No, Mr. "Mayer mentioned that he would take it for a year”.

On cross-examination, witness testified that defendant said he would not sign anything; also that there was nothing said as to when the year was to commence; that his, witness’, mind was pretty clear on that. "Witness, on re-direct, testified that Young said he would pay hack the amount expended, if he didn’t handle plaintiff’s beer for a year.

Thomas Young, defendant, testified, in substance, that he refused to sign any paper agreeing to take plaintiff’s beer; that he got a new lease; that he asked to have the improvements made, and Mayer told Torpe to have it done; that he did not tell Mayer, or any one, that he would take plaintiff’s beer for a year, and that he never promised to pay for the improvements in case he should not take plaintiff’s beer for a year; that all he said was that he was satisfied with the beer. He further testified that he quit taking plaintiff’s beer March 15, 1906, because he had to have cheaper beer, as the license was raised from $500 to $1,000 per year, to take effect May 1st.

The following, among other interrogatories, was submitted to the jury and answered as follows:

“Q. Do you find that defendant entered into an agreement with plaintiff to take plaintiff’s beer for any period of time?
A. No.”

Although there is evidence tending to prove that the defendant remained in the premises after the expiration of the lease of June 1, 1905, and had a second lease, there is no evidence as to when the second lease was executed, or what its contents were, and it is, to say the least, highly improbable that the defendant agreed, in November, 1905, to take plaintiff’s beer for a year, when the lease which he had ran no longer than January 31, 1906, and the plaintiff had power, by the express terms of the lease, to cancel it on a month’s notice. Another circumstance corroborative of defendant’s evidence is Ms positive refusal to sign an agreement to take plaintiff’s beer for any period of time. We are of opinion that the jury were fully warranted by the evidence in finding that the defendant did not agree as plaintiff claims he did, and do not think the finding manifestly against the preponderance of the evidence.

The evidence is that plaintiff made the alterations and improvements mentioned in the special count of the declaration, at an expense of $442.92, and that defendant did not pay for them, and plaintiff’s counsel claim that the improvements having been made at defendant’s request, the law implies a promise to pay for them, and there may be a recovery under the common counts. The theory on which the cause was tried, and o,n which it was submitted to the jury, was that there was an agreement between plaintiff and defendant as averred in the special count. This is illustrated by the evidence produced by the plaintiff, and by its instructions given and refused. Not one of these instructions is framed on any other theory than that the defendant contracted as averred in the special count, and failed to perform his part of the contract. It is too late to recede from that theory on this appeal.

In Wetmore v. McDougall, 32 Mich. 276, the plaintiff declared specially and also on the common counts. The court, in its opinion, says: “During the entire trial of the cause, the plaintiff’s counsel proceeded upon the theory of recovering upon the special count. And it was not until after the evidence was all in that he abandoned this view, and sought to recover upon the common counts. The jury found in favor of the plaintiff, for the full amount paid by him, with interest thereon. The court charged the jury that the plaintiff could not recover upon the special count, but under the charge permitted him to recover upon the common counts. We think the plaintiff was not entitled to abandon the special, and seek to recover upon the common counts. The two positions were inconsistent”.

The present case is stronger for the defendant than was the case cited for the defendant in that case, because in the present case, it was not sought on the trial to recede from the theory that recovery was sought solely on the special count.

The court gave to the jury, at defendant’s request, this instruction:

“The court instructs the jury that if they believe, from the evidence, that the agreement in question was not to be performed within the space of one year from the time of the making thereof, and that- the same was not and is not in writing, and that there was not and is not any memorandum or note thereof, in writing signed by the defendant, or by any other person by him lawfully authorized to sign the ■ same in his behalf, then the plaintiff cannot recover”.

There is a basis for this instruction in the evidence, and the contrary is not contended; but plaintiff’s counsel object that it does not appear from the evidence what agreement is referred to by the instruction, that it may refer to the plaintiff’s agreement to make repairs, or to defendant’s agreement to purchase plaintiff’s beer for one year. Only one agreement is averred in the declaration or attempted to be proved by plaintiff, and we do not think the jury could have been misled by the instruction.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    John E. Groves, Plaintiff in Error, v. W. W. Kimball Co., Defendant in Error.
    Gen. No. 14,392.

      Equity—when without jurisdiction. A bill in equity does not confer jurisdiction which sets up a contest open to the public made in connection with an advertising scheme and the award made pursuant thereto and which seeks to set aside such award upon grounds of fraud, accident and mistake and prays a mere money judgment—the remedy is at law.
    Bill in equity. Error to the Circuit Court of Cook county; the Hon. Charles M. Walkeb, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.
    Statement toy the Court. This is a writ of error sued out to review an order of the Circuit Court, sustaining a general demurrer to “an amended bill of complaint as amended”, brought by the plaintiff in error against the defendant corporation, and dismissing the bill for want of equity. The assignments of error merely raise the question of the sufficiency of the “amended bill as amended” to state a cause of action in equity.
    The bill was thrice amended and thrice demurred to generally. Each of the demurrers was sustained. After the first two, the complainant took leave to amend, but after the third, he elected to stand by his “amended bill as amended”.
    The bill will therefore be stated as finally amended. Its allegations are substantially these:
    The defendant corporation about August 1, 1905, caused to be published in certain Chicago daily papers “a contract of agreement to the world”, a copy of which is annexed to the bill as Exhibit A. This exhibit is an advertisement headed “$20,000 Grand Prize Distribution”. It is stated therein that $20,000 is to be distributed in prizes to those who send the largest lists of correct words made from letters used in spelling the two words, “Kimball Pianos”; $700 in a Kimba.11 Grand Piano as first prize to the person making the largest list of words; $500 in a Kimball Upright Piano as a second prize; $250 in a Kimball Piano Player as third prize; and for further prizes credit bills to be applied on the purchase of Kimball Co. products in varying amounts, until $20,000 has been distributed. Various conditions are annexed to the offer in the advertisement—these among them:
    “Only such words are to be used as are found in Webster’s International Dictionary. No proper names, foreign words, names of persons, towns or places are to be nsed. Do not use a letter more times than it appears in the two words Kimball Pianos”.
    The complainant being in doubt whether certain correct English words (which are inflected forms of other words, but which cannot be found in Webster’s International Dictionary) would be allowed under the conditions of said published agreement, called in person at the office of the defendant, W. W. Kimball Co., about August 1, 1905, and asked to see the manager of said word contest in reference thereto, and was conducted by one of the employes of the company to one Miss Heegan, who had personal charge of said word contest. In reply to his inquiries Miss Heegan informed the complainant that any proper inflection of any English word, not otherwise excluded, would be permissible under the published conditions of Exhibit A.
    The complainant, after said interview with Miss Heegan, accepted the terms and conditions of “said contract of agreement so explained and agreed to”, and “entered into the faithful performance of said contract on his part to be performed”.
    On August 31, 1905, before five o’clock p. m., the complainant delivered to the said defendant a list eon-' taining 1,259 words, or thereabouts, which said list was accepted and filed by said W. W. Kimball Co., ‘‘ the complainant having then and there performed all the terms and conditions of said contract on his part to.be performed”.
    The names of the winners of the prizes offered in said contract of agreement were to be determined by three prominent judges, whom the W. W. Kimball Co. were to appoint, and “some time after August 31, 1905, E. G. Cooley, S. W. Fallows and W. P. Nixon were appointed to determine the parties entitled to the prizes”.
    On September 15, 1905, the said W. W. Kimball Co. caused to be published in the Chicago papers what purported to be the award of said judges, which is annexed to the bill as “Exhibit B”.
    Exhibit B is an advertisement signed by W. W. Kimball Co., which, among other things, says:
    “A special force of experts was engaged for two weeks in canvassing the returns. The judges now render their decision as follows:
    In the Kimball Prize Word Contest we find the following named persons entitled to the three principal awards for having correctly furnished the largest lists of words made from letters used in spelling the two words, ‘Kimball Pianos’:
    First Prize, $700 Kimball Grand Piano to Mr. Fred Osmy, 1380 Wilton Ave.
    Second Prize, $500 Kimball Upright Piano to Louise Hopkins, 1006-55th Place.
    Third Prize, $250 Kimball Piano Player to Mr. John E. Groves, 1482 Polk St.
    We find furthermore that all the awards as made by W. W. Kimball Co. are entirely correct according to the terms and conditions of the Word Contest offer.
    Signed
    Samuel Fallows (Rector St. Paul’s Church),
    E. G. Cooley, (Superintendent of City Public Schools),
    William Penn Nixon, (Collector of The Port).”
    John E. Groves, mentioned in said Exhibit B as the winner of the third prize, is the complainant. Believing that said award was fairly, justly and equitably made, in compliance with the printed terms and conditions of said contract as set forth in Exhibit A, the complainant accepted said third prize and receipted for the same on October 1, 1905.
    On January 1, 1906, the complainant was permitted to compare his list of words with that of winner of first prize under alleged award, and discovered that said award was not made according to the terms and conditions of Exhibit A.

      The defendant did not have the judges determine who was entitled to the award as set forth in said Exhibit A, but “fraudulently and deceitfully and secretly”, without the knowledge of the complainant, proceeded itself, by its servants and employes, to determine to whom it should make the award, contrary to and notwithstanding its public advertisement, Exhibit A, that said award would be made by said judges. The said servants of the defendant who determined said award were not educated, competent, skilled and learned sufficient to enable them to properly and justly determine who wa's entitled to first prize.
    The process of determining the prize winners was begun by the said W. W. Kimball Co. long before the said judges were appointed, and entirely independently of said judges.
    Before Exhibit A was published, W. W. Kimball Co., by its employes, had prepared a “key” list of words to be used in marking lists of contestants, with which the judges had nothing to do, and the contents of which were entirely unknown to said judges. Every contestant’s list, including the complainant’s, was marked according to said “key”. Said “key” did not contain all the correct English words possible under the conditions set forth in Exhibit A “and explained and described to your orator by Miss Heegan, agent of the aforementioned defendant Company.” It contained words which are incorrect, according to Exhibit A, as explained and described. Said employes of the defendant omitted to count correct English words in the complainant’s list, gave credit to the person awarded first prize for words incorrectly spelled and also for words forbidden by Exhibit A, so explained and described, and gave said person credit for words for which the complainant received no credit, although the complainant’s list contained the same words. The aforementioned judges concurred in all these errors and mistakes, by reason whereof the complainant was deprived of the first prize and received third prize instead. The aforesaid method of determining the winners of said prizes simply amounted to a guess at what said “key” list contained, and was not a reward for skill and diligence in ascertaining all the correct words possible. After the names of the alleged prize winners had been so determined by the employes of W. W. Kimball Go., the said W. W. Kimball Co. prepared a draft of the award as set forth in Exhibit B, and sent the same by Miss Heegan to said Fallows, Cooley and Nixon, who “signed the said draft without any examination, investigation or consultation on said list of words, for the purpose of informing themselves whether the alleged award about to be signed by them was correct, true or just, according to the conditions of the contest.” No one of the judges examined the submitted lists, and Nixon did not even see them.
    The award of the said judges is erroneous and void, because it was not concurrent and made in the presence of each other, but was signed separately at different times and places; that the complainant expected, and had a right to expect, that his said list of words, “by the express condition of said Exhibit A, would receive the joint consideration, wisdom and examination of the three aforesaid judges sitting and acting together”, and that on that expectation he entered into the contest. The alleged award “was in reality not the award of the judges, but of W. W. Kimball Co., for which the pretended award in Exhibit B was a mere sham and subterfuge”. ■
    The aforesaid award “should be set aside for the fraud or gross errors and palpable mistakes of the employes of W. W. Kimball Co., which fraud or errors and mistakes were acquiesced in and adopted by said judges”. In the list of words submitted by the complainant there were at least 755 correct English words, while the list of the alleged winner of the first prize contained only 570 correct English words.

      The complainant at all times since the discovery of his rights has been willing and ready to deliver back to the defendant a piano player of the kind and value awarded to him upon the presentation to him by the defendant of a piano of the kind and value of the first prize, and has so notified the defendant.
    Complainant has no adequate relief except in a court of equity.
    The prayer of the bill is that the W. W. Kimball Go. shall be required to answer these allegations; that a decree be entered against the W. W. Kimball Co. in favor of the complainant for $450, to be satisfied by the said defendant company delivering to the complainant a piano of the regular cash value of four hundred and fifty dollars, and in case of the failure or refusal of said defendant so to do, that an execution may issue against the aforesaid company for the aforesaid amount, and that the complainant may have such-other relief as the nature of the case may require, etc.
    D. E. McCracken and J. H. Pebkinson, for plaintiff in error.
    Alden, Latham & Young, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The demurrer to the bill, a full statement of which is prefixed hereto, was manifestly properly sustained. Nothing we can say can make clearer than the words of the bill themselves do, the fact that it states no case for the interference of a court of equity.

According to the theory which it repeatedly states of the “offer to the whole world” and “the acceptance by the complainant” and the “contract” thus made, it sets forth, in the most favorable view that can be taken of it, a breach of a simple contract. The contract is not of the kind where a specific performance is a remedy given by the law. If there be a broken contract shown in the facts alleged, and the allegations can he proven, it is one in which the damages are capable of computation in money directly and simply.

Indeed, the prayer of the bill is in essence nothing more than a prayer for a money judgment of $450, for a breach of contract. There is but one defendant, and all the allegations tend only to the charge that that defendant made a contract with the plaintiff and broke it. To set this up and then further to say that the defendant broke the contract “fraudulently” or by “gross error” or “palpable mistake”, does not bring the case within the equitable jurisdiction arising from “fraud or mistake”. The complainant argues the matter as though it involved the setting aside of an award, or of an arbitration. There is no “award” or “arbitration”, in the legal sense, in this case.

The cases cited are therefore not in point. The complainant and defendant in this case had agreed on no “arbitrators” of differences that might arise. The defendant had merely said, as a part of its alleged “contract”, that the people whom it should “appoint” to decide for it, the proper distribution of its property, would be “prominent”. The distinction is plain between “engineer’s estimates”, made in a railroad construction contract, “final and conclusive” on amounts due,the contractors (as in Wood v. C., S. Fe etc. R. R. Co., 39 Fed. Rep. 52, cited by plaintiff in error) and such a “decision”.

There are other objections to the bill pointed out by the defendant in error, which we think are well taken, but it is not necessary to discuss them. The bill is plainly without equity, for the reason that it comes under no proper head of equity jurisdiction. If there be any grievance or cause of action shown in it, it is one in which the remedy at law is complete.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Catherine DeVoney, Defendant in Error, v. Modern Woodmen of America, Plaintiff in Error.
    Gen. No. 14,404.
    1. Fraternal benefit societies—when recovery upon certificate cannot he had. If a contract of insurance excludes liability if a member “die by his own hand”, no recovery can be had where the death of the member so results.
    2. Fraternal benefit societies—what not waiver of condition of certificate. In this case the certificate sued upon contained a provision excluding liability in the -event of the member’s death “by his own hand”; held, that the action of a clerk of the society, after the self-inflicted injury but before death, in suggesting the payment of delinquent dues and in receiving such payment, did not operate to waive such condition or to estop the society from availing of such provision by way of defense, such condition being a vital and fundamental part of the contract.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Jijdson F. Going, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed April 12, 1909.
    Tbuman Plantz and A. W. Fulton, for plaintiff in error.
    Bichabd I. Gavin, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

Toney Guy DeYoney on April 15, 1907, was a member of Camp 11482 of Modern Woodmen of America. He became such member on January 31, 1907. He held a benefit certificate of that date, which provided that on his death while a beneficial member of the society in good standing, his wife, Catherine De-Yoney, should be entitled to a thousand dollars, provided the conditions of the certificate and by-laws of the society were complied with.

This benefit certificate, however, declared itself to be issued and accepted only upon certain express warranties, conditions and agreements. One of these, found among the provisions of the fifth paragraph of the schedule, was this:

“If the member holding this certificate * * * shall within three years after becoming a Beneficial member of this society, die by his own hand, whether sane or insane, or if his death shall occur in consequence * * * of any violation or attempted violation of the laws of any State or territory or of the United States, * * * then this certificate shall be null and void and of no effect, and all moneys which have been paid and all rights and benefits which may have accrued on account of this certificate, shall be absolutely forfeited and this certificate become null and void”/

On April 15, 1907, three months and eight days after he became a member of the order, Toney Gr. De-Voney shot himself with intent to take his own life. He was taken to the hospital and died on May 8,1907, from the effects of the self-inflicted wound.

On May 2, 1907, seventeen days after the shooting and six days before the death, Mrs. DeVoney, the beneficiary under the certificate, with a brother of Mr. DeVoney, called on E. L. Ashcraft, the clerk of Camp No. 11482, and the following conversation and action occurred:

Mrs. DeVoney told Mr. Ashcraft of the shooting. Mr. Ashcraft said it was really too bad that DeVoney should have done such a thing. John B. DeVoney asked how his brother’s account stood on the books. Ashcraft looked and replied, “I think he is two months in arrears. I think you had better pay both of them and in case anything happens to your brother, you will be on the safe side of the policy”. John B. DeVoney then paid the two months’ assessments, each for sixty cents, one which had become due April 10, 1907, and one for the current month of May, 1907. He took the two receipts, one dated April 10th and one dated May 2nd, .each signed by E. L. Ash-craft, Clerk of Camp No. 11482, and handed them to his sister-in-law.

After the death of Toney DeVoney sufficient proofs of death were made, and the amount of the certificate demanded. Payment, however, was refused. The assessments paid on DeVoney’s account after the shooting and before his death were tendered back to John B. DeVoney by the defendant before the present suit was brought. This suit was begun in the Municipal Court of Chicago November 11, 1907, and judgment for the plaintiff in the sum of one thousand dollars was rendered by that court sitting without a jury, on January 24, 1908. To reverse this judgment a writ of error was sued out of this court February 24, 1908.

The plaintiff (defendant in error) admits that because of the clause of the certificate above quoted, she would have been unentitled to recover on said certificate except for the payments of the assessments on May 2, 1907. She contends that the consent to, and invitation of, these payments on the part of the clerk of the Camp, and their acceptance by the defendant order, with full knowledge of the previous shooting and the suicidal intent of it, constituted “a waiver of the act of the deceased which produced the death” and.“estopped the defendant from setting up the act of shooting as a matter of defense”.

On this issue alone she concedes her case rests.

We cannot agree with her contention or with the decision of the court below.

The difference is a fundamental one. The plaintiff claims that because we speak of suicide as having' been committed when the conscious affirmative act was executed with suicidal intent, and not when the death of the suicide occurred, we must say that the condition or situation which avoided the policy or certificate came into existence on April 15th and was waived by a payment and reinstatement of the insured on May 2nd. But the conclusion is a non-sequitur.

The provision of the certificate does not even use the term “suicide”. The words are “if he die by Ms own hand * * * this certificate shall be null and void and of no effect”. If it would not be accurate to say that the deceased “committed suicide” on May 8, 1907, it certainly would not be more accurate to say that he “died by Ms own hand” on April 15, 1907. The fact is that he died on May 8, 1907, and that as he died “by his own hand”, although he inflicted the wound-on Mmself some weeks before, the certificate did not cover the death. It is not a question of forfeiture or reinstatement; it is a question of what the contract includes. It does not include a death self-inflicted, and therefore the plaintiff cannot recover.

Despite the criticism of plaintiff, we tMnk the defendant is right in saying that the question really is— Did the payment of the assessments on May 2, 1907, change the contract?

But in whatever form the issue is stated, it will remain in essence the same, namely—Did the language and act of the clerk of the camp on May 2, 1907, give to the plaintiff a right to recover wMch she otherwise would not have had? We do not tMnk they did. In the first place, we do not think that any such waiver or estoppel could be made by the clerk. Of course acts and language of this sort might, by the subsequent action or non-action of the order itself, through its authorized representative governing body, or otherwise, be ratified, and become effective, but there was no such action here, nor time for such action; and the question suggested is simply whether the clerk of the camp could, by suggesting the payment and receiving it, waive for the order a condition, or estop the order from making a defense on a matter wMch was a vital and fundamental part of the contract, and tMs in the face of a by-law agreed to by the member, that

“No officer of tMs Society, except as provided in Section 107 hereof, nor any local Camp officer, is authorized or permitted to waive any of the provisions of the By-laws of tMs Society which relate to the contract between the member and the Society, whether the same be now in force, or hereafter enacted”.

Bnt our view of this matter, although sufficient to dispose of the case, is not necessary to its decision, for we entertain no doubt that that decision should be the same, even though the act and language of the clerk should be held in the fullest sense the act and language of the order.

On May 2, 1907, DeVoney had not “died by his own hand”. Nor could it be certainly foretold that he would. He was a member of the order. He was subject to its assessments. If he died from some other intervening or subsequent cause, and not from the effects of the gunshot wound he had inflicted on himself and for which he was under treatment, his beneficiary, in case all assessments were paid, would be entitled, under his certificate, to a thousand dollars.

Irrespective of his authority or want of it, what advice would have been more judicious and honest for the clerk to give than to pay the arrears of $1.20 and “be on the safe side”? Or what course wiser than the one that the beneficiary and her brother-in-law took in paying it? Unfortunately for her, the wounded man did not recover from the wound, nor die from another cause, and consequently his certificate was of no value as a life insurance after his death on May 8th.

But unfortunate as it is, so far as she is concerned, we cannot strain the law in her favor nor take from the other members of the. Society a fund which they did not contract to pay.

There is no dispute here as to the facts. It is our duty to give the judgment which the court below should have given. The judgment of the Municipal Court of Chicago is accordingly reversed and judgment of “nil capiat” entered here for the defendant and for its costs in the court below and in this court.

Reversed and judgment here.