text:
    George Schneider et al. v. Voluntine C. Turner.

      Gaming — Sec. 130, Criminal Code — Street Railway Stock — Option Con$ract — "Agree"—Consideration.
    Í • An agreement to sell a certain number of shares of the capital stock a street railway company at a stipulated price, if taken on or before a future date, is to be regarded as a contract giving an option to buy such shares of stock at a future time. It is, therefore, within the prohibition of Sec. 130 of the Criminal Code.
    2. The instrument in question, in the case presented, can not be regarded merely as a proposition which could be accepted if not withdrawn within the time limited. The word “agree” imports a consideration, and it is not competent for the plaintiffs by averment and parol evidence, to show a want of consideration.
    3. When such a contract is precisely within the letter and spirit of the statute it is void, without regard to the question of intent.
    [Opinion filed September 6, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    ' This was an action of assumpsit brought by appellants against appellee to recover damages for the non-performance by the latter of an alleged contract for the sale of certain shares of the stock of the North Chicago City Bail way Company. The declaration originally contained eight counts; but the plaintiffs having dismissed as to' all but the fifth, seventh and eighth counts, those three alone are in question. The fifth count sets out in Tubo verba, the following instrument in writing:
    Chicago, November 11, 1885.
    “In consideration of one dollar (§1.00) and other valuable considerations, receipt of which is hereby acknowledged, I hereby agree to sell to George Schneider, Walter L. Peck and Ferd. W. Peck, seventeen hundred and eighty-six (1,786) shares of the capital stock of the North Chicago City Bail way at six hundred dollars (§600) per share, if taken on or before the fifteenth day of December, 1885.
    66 Y. C. TuryerP
    Plaintiffs averred that thereafter, to wit, the 14th day of December, 1885, at, to wit, the county aforesaid, they tendered the said defendant the aggregate price of said 1,786 shares of capital stock mentioned in said writing, to wit, the sum of §1,071,600, and said plaintiffs then and there requested said defendant to sell and deliver to said plaintiffs the aforesaid shares of stock; yet the said defendant then and there refused to deliver said shares of stock to the plaintiffs and has since hitherto refused to deliver the same, whereby, etc.

      The seventh count sets out in hceo verba the same instrument, also a subsequent parol agreement between the parties made November 21, 1885, modifying said written contract as respects the time and manner of payment of the price mentioned in the writing, but in no other respect, and avers that thereafter, to wit, on the 12th day of December, 1885, at said county, the plaintiffs notified said defendant of their acceptance of the aforesaid agreement, and that afterward, to wit, on the 14th day of December, 1885, the said defendant notified the said plaintiffs that he would refuse to receive said amount of the purchase price for said shares, although plaintiffs were ready and willing to pay, etc., and thereby waived any tender, etc.
    The eighth count of said declaration was as follows:
    “And whereas also, the said defendant afterward, to wit, on the 11th day of November, 1885, at the place aforesaid, made and delivered to said plaintiffs a certain other writing, in words and figures as follows, to wit:
    “‘Chicago, Nov. 11, 1885.
    “‘In consideration of one dollar (§1.00) and other valuable considerations, receipt of which is hereby acknowledged, I hereby agree to sell to George Schneider, Walter L. Peck and Ferd. W. Peck, seventeen hundred and eighty-six (1,786) shares of the capital stock of the North Chicago City Railway, at six hundred dollars (§600) per share, if taken on or before the fifteenth day of December, 1885.
    “‘Y. C. Turnee.’”
    “ And said plaintiffs aver that said written agreement was made and signed by said defendant without any good or valuable consideration; and that said defendant did not receive, nor did said plaintiffs pay, the one dollar or the other valuable considerations mentioned in said writing; and they further aver that said plaintiffs did afterward, to wit, on the 14th day of December, 1885, tender said defendant the aggregate price aforesaid of said 1,786 shares of stock, to wit, the sum of §1,071,600, and requested said defendant to deliver them the aforesaid shares of capital stock.

      “ And they further aver that at the time of said offer on .the part of said defendant, and at the time of said tender on the part of said plaintiffs, said defendant was the owner of, or had the control of, and the right to contract for, the sale of said shares of stock.
    “Plaintiffs further aver that said offer was made by defendant because it would probably require so much time to make examination into the condition, property and franchises of the North Chicago City Railway Company, and to ascertain the value of such property; and the time for the performance of said contract and its acceptance was not so fixed for the purpose of speculating upon the rise and fall in the value of said stock, and that there was no intention on the part of said plaintiffs, and there was no agreement or understanding between plaintiffs and defendant at that time and thereafter, that said contract should be performed by the settlement or adjustment of the difference in value between the contract price and the market price, if there should be any, of such stocks at the time fixed for such acceptance and performance. Tet the said defendant then and there refused to deliver said shares of stock to the plaintiffs, and has since hitherto refused to deliver the same, whereby plaintiffs have been deprived of divers great gains and profits which would have accrued to them from the delivery of the said shares of stock.”
    The defendant demurred to each of said counts, and the demurrer was sustained to each, and, the plaintiffs electing to abide by their declaration, the court gave final judgment against them, from which they prosecute this appeal.
    Messrs. Smith & Pence, for appellants.
    A contract which does not involve in its performance the settlement thereof by an adjustment and payment of the differences between the contract price and the market value at the time of the supposed performance, is not a gambling contract peí' se, or under the statutes of this State, because it is not affected by the vice of a gaming intention. Pickering v. Cease, 79 Ill. 328; Tenney v. Foote, 4 Ill. App. 594; Same v. Same, 95 Ill. 99; Pearce v. Foote, 113 Ill. 228; Webster v. Sturgess, 7 Ill. App. 560; McCormick v. Nichols, 19 Ill. App. 334; Beveridge v. Hewitt, 8 Ill. App. 467; Coffman v. Young, 20 Ill. App. 76; Bigelow v. Benedict, 70 N. Y. 202; Mortimer v. McCallan, 6 M. & W. 58; Thacker v. Hardy, L. Q. R. (4 B. Div.) 685; Kent v. Mittenberger, 13 Mo. App. 507; Whitesides v. Hunt, 97 Ind. 191.
    The court will never construe a statute according to the letter, which is manifestly unjust in its operation, if it can be avoided.
    This contract was made in the utmost good faith between business men in a legitimate business, without any suspicion that they were engaging in a gambling transaction, or doing anything against the morals or peace of the community.
    It is clear that this court and the Supreme Court deem it necessary that such contract should of itself involve the element of gambling before the statute can be invoked; and to constitute such a gambling element an agreement or understanding must be had between the parties to the effect that stock should not be delivered, but the difference only between the contract price and the market values at times of performance should be adjusted and paid.
    The construction given by this court and the Supreme Court to Sec. 130 of the Criminal Code necessarily requires an interpretation to be given to the word “option” different somewhat from the common definition of that word. In other words, it requires an ascertainment of the meaning of that -word as used in the commercial world, on the stock exchange and board of trade.
    This statute was passed for the purpose of meeting certain evils which had grown up on the stock exchange, and especially on the board of trade in Chicago, and the language used in the statute was in conformity with its accepted meaning on the board of trade. Tenney v. Foote, 4 Ill. App. 598.
    In other words, the language of the statute contains the idea that the transaction against which it isleveled must involve the element of gambling, as generally understood. That.is, it must be a bet upon an uncertain event and not a mere sale and transfer of stock.

      The definition of gambling as given by the Supreme Court in Merchants S. L. & T. Co. v. Goodrich, 75 Ill. 554, is the following: “A wager is a contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event.”
    The contract im question does not involve any such element. If it related to real estate, no one would pretend that it involved the idea of a bet.
    The evils sought to be remedied are the betting upon the price of commodities enumerated by an agreement to settle and adjust the difference without delivery of the commodities. When the commodity is to be delivered then it becomes a legitimate mercantile transaction.
    The intention of the legislature was to provide punishment for crime. It is not to be presumed that it had any desire to • punish innocent parties or to prohibit commercial transactions which were not per se against public policy. There were classes of commercial transactions well known in the community which were, in effect, nothing but gambling. The general assembty were legislating upon the question of gambling, and undoubtedly desired to cover by some appropriate provisions such gambling commercial transactions, and hence section 130 was passed. If that section means what counsel for appellees will contend, then the legislature did an absurd thing and passed a statute which “would lead to an absurd consequence,” which would prohibit innocent bona fide commercial transactions, and which in no wise would interfere with that class of commercial transactions which this court and the Supreme Court have held to be gambling transactions and which fall within the meaning of this statute.
    The contract of November 11, 1885, was without consideration, and, unless accepted, was a mere offer which might have been withdrawn at any time before acceptance, but when accepted on December 14, 1885, it became a binding contract, a promise for a promise, and the performance of it was fixed to be made on or before December 15, 1885.
    In the amended eighth count, it is alleged that said supposed contract was signed and accepted without any good or valuable consideration, and that plaintiff did not receive the dollar or the other valuable considerations mentioned in the instrument. The demurrer admits this. If there was no consideration, then the instrument was a mere offer not binding on the proposer until such offer was accepted, and when accepted it was a promise for a promise.
    The plaintiff made tender of the contract price within the time fixed by the offer, and defendant refused to perform. Thus the transaction, both in form and substance, was a bona fide transaction -without any element of a gambling option, or of an option such as is described in Sec. 130 of the Criminal Code.
    Though one dollar and other valuable considerations are acknowledged as having been received by Turner, yet it is clear law that a receipt can always be explained or disputed, or shown to be merely colorable. 2 Chitty on Contracts (11 Am. Ed.) 1118; Bishop on Contracts, Sec. 75; 2 Wharton on Ev. Secs. 1042, 1039, 1064, 1077, 1083; 1 Greenleaf on Ev. Sec. 305; Furbnsh v. Goodwin, 25 N. H. 425; Huebsch v. Scheel, 81 Ill. 281; Honeyman v. Jarvis, 64 Ill. 366; Bowes v. Foster, 2 Hurl. & N. 779.
    Messrs. Goudy, Geeen & Goudy, for appellee.
    It might be admitted, for the sake of argument, that the main object of the legislature was to prevent the dealing in privileges to buv or sell, which were usually settled by the payment of differences. The question before the legislature was to make a law which would effectually break up the pernicious practice. It was well known that all manner of practices and forms were resorted to in order to evade the common law rule that such contracts were void. Therefore the legislature deemed it -expedient to go to the root of the matter, and to make every contract giving the privilege to buy or sell at a future time, void. If the contract on its face came within the terms of the statute, it was bad and beyond cure; if it was valid on its face, but did not express the true contract, such real contract could be proved outside of the apparently good contract. The language is broad and free from ambiguity, thus excluding any ground for construction.
    A contract for the sale of grain or of stock, to be delivered in the future at a time to be fixed by either buyer or seller, was always valid, and was not affected by section 130; but a contract giving the privilege to make a contract for sale in the future was a different thing, and one prohibited by the statute. It is not a logical or proper conclusion to say that a contract expressly within the language of the statute is good for the want of the element which avoided such contracts. The ]>arties can not accomplish that result, neither can the legislature. The object of this statute clearly was to take away every pretext for transactions which had become a public evil.
    The court “ must seek for the intention in the words of the act itself.” The act says that all contracts whereby one person contracts to have or give to himself or another the option to sell or buy at a future time, etc., shall be void. The act is expressed in clear and precise terms. All such options are prohibited. The court is ‘‘not at liberty to suppose that the legislature intended anything different from what their language implies.” Commonwealth v. Kimball, 24 Pick. 366.
    The statute makes all pure options void, and the court can not inject into the statute a limitation not found therein. Therefore it follows that the contract sued on, which is admittedly an option contract, is void, and, being void, can not be made valid by extrinsic evidence.
    We insist that, even if the plaintiffs were at liberty to deny the consideration mentioned in the instrument, and thus change its legal import, yet they would have no cause of action. In that case, the instrument being without consideration, would be nudum factum, and unenforceable. To make a valid contract both parties must be bound. In the case supposed, Turner alone would be bound. Clearly, if there was no consideration, he was not bound when he signed the instrument. The count alleges that afterward plaintiffs tendered the price and requested a delivery of the stock, but Turner then and there refused to perform.
    This case is like the celebrated case of Cooke v. Oxley, 3 T. E. 653. The declaration alleged that the defendant proposed to the plaintiff that the former should sell and deliver to the latter 266 hogsheads of tobacco, whereupon the plaintiff desired the defendant to give him (plaintiff) time to agree to or dissent from the proposal until the hour of four of the afternoon of that day, to which the defendant agreed; and thereupon the defendant proposed to the plaintiff to sell and deliver the same to the plaintiff upon the terms aforesaid, if the plaintiff would agree to purchase them upon the terms aforesaid, and would give notice thereof to the defendant before the hour of four of the afternoon of that day. The plaintiff averred that he had agreed to purchase the same upon the terms aforesaid, and did give notice thereof to the defendant before the hour of four in the afternoon of that day. He also averred that he requested defendant to deliver to him the said hogsheads, and offered to pay to the defendant the price for the same, yet the defendant refused.
    A motion in arrest of judgment was sustained on the ground that there was no consideration for the defendant’s promise.
    In Routledge v. Grant, 4 Bing. 651, the same doctrine is laid down on the authority of Cooke v. Oxley. The case of Adams v. Lindsell, 1 B. & A. 681, which is sometimes said to break in upon the authority of Cooke v. Oxley, is referred to, and the distinction pointed out that in that case the contract was made by post.
    In Faulkner v. Hebard, 26 Vt. 452, it was held that a contract for the sale of property, which is merely what is termed a refusal of the property by one of the parties, leaving it optional with the other party whether he will take the property •within a certain time or not, unless upon some other consideration or under seal, would not be valid in law for want of a consideration, Eedfield, Oh. J., delivering the opinion of the court. See, also, Eskridge v. Glover, 5 Stew. & Porter, 264; Stitt v. Huidekoper, 17 Wall. 384; Johnson v. Filkington, 39 Wis. 62; Smith v. Weaver, 90 Ill. 392.
    Where an instrument recites a consideration it can not be shown by extrinsic evidence that there was, in fact, no consideration, for the purpose of annulling the instrument or changing its legal import. Stackpole v. Arnold, 11 Mass. 27; Miller v. Edgerton, 15 Pac. Rep. 894; Goodspeed v. Fuller, 46 Me. 141; Grout v. Townsend, 2 Den. 336; Belden v. Seymour, 8 Conn. 304; Jones v. Buffum, 50 Ill. 277; Arthur v. Arthur, 28 N. Y. 24; Stackpole v. Robbins, 47 Barb. 212.
   McAllister, J.

The ground upon which the insufficiency of the declaration was predicated was, that the instrument set out in the respective counts thereof, was an agreement, a contract, and that it was, upon its face, a contract to give the plaintiffs the option to buy, at a future time, the shares of stock therein mentioned; and that therefore it came directly within the prohibition of Sec. 130 of the Criminal Code, which reads as follows: “Whoever contracts to have or give to himself or another the option to sell or buy at a future time any grain or other commodity, stock of any railroad or other company, or gold, or forestalls the market by spreading false rumors to influence the price of commodities therein, or comers the market, or attempts to do so, in relation to any of such commodities, shall be fined not less than §10, nor more than §1,00(1, or confined in the county jail not exceeding one year, or both; and all contracts made in violation of this section, shall.be considered gambling contracts and shall be void”

The counsel for appellants earnestly insist that the eighth count of plaintiffs’ declaration is good notwithstanding said statute; because, they say, in view of the averments in that ■count, which are to be taken as admitted by the demurrer, there was no contract, for the want of a consideration; and hence the instrument set out is to be regarded asa mere proposition, which would not be within the statute, and not having been withdrawn, would, if accepted within the time specified, become a contract from the time of acceptance and be valid. They further claim that, at all events, the averments to the effect that there was no intention to settle upon differences, saved the transaction from the denunciation of the statute.

A demurrer admits only such facts as are well pleaded. Whether those matters were well pleaded, and whether the case falls within said section of the Criminal Code, must, as it seems to us, depend upon the decision of the question whether the instrument set out is to be regarded as an agreement, a contract, or a mere proposition for a sale. If it did not amount to a contract, but was a mere proposition for one, then it was clearly not within said statute; for, to be within it, there must have been a contract to give to the defendant or to the plaintiffs the option to sell or buy at a future time the shares of stock mentioned. The question is not entirely free from difficulty, but we are inclined to the opinion that such instrument is to be regarded and taken as a contract giving to the plaintiffs the option to buy the shares of stock in question at a future time. It says: “In consideration of one dollar and other valuable considerations, receipt of which is hereby acknowledged, I hereby agree to sell to George Schneider, etc., seventeen hundred and eiglity-six shares of, etc., at $600 per share, if taken on or before the fifteenth day of December, 1885and duly signed by the defendant.

In each count it was alleged that this instrument was made by the defendant and delivered to the plaintiffs, and we are unable to perceive that, as regards that instrument, anything is wanting to constitute an agreement, a contract. It expressly recites a consideration. It does not expressly appear that such consideration moved from the plaintiffs; but it will be understood and is implied in this, as in other cases, that it moved from the parties to whom the promise was made, as in the case of the promise itself. And there the rule is, that if a party to a contract promised payment, without saying to whom, it shall be understood that he promised payment to him from whom the consideration moved. Morris v. Litchfield, 14 Ill. App. 83.

In Andrews v. Pontue, 24 Wend. 289, the court said: “The contract will then be, £I do hereby agree and bind myself to pay to Samuel Andrews the sum of one hundred dollars, whenever, and as «soon as Sheriff street shall be opened.’ Words like these standing alone, were, in Easter term, 1839, held by the Queen’s Bench, in England, to import a consideration, and were received as sufficient to sustain an action upon an account stated. Davies v. Wilkinson, 1 Jurist, Am. Ed. by Halst. & Voorh. 372. The words were, ‘I agree to pay 0. 1). 695 pounds/ (mentioning time and place for all except ninety-five pounds,) and adding, ‘the remaining ninety-five pounds to go as a set-off, etc., on a certain debt.’ The court pronounced this to be an agreement, not a promissory note; and held that the word agree, of itself imported a consideration. Lord Den-man, Oh. J., said: 1I think the promise in this ease conveyed by the words, ‘‘I agree to pay/’ imports a consideration, without doing any violence to the language.5 And the three other learned judges, Littledale, Patterson and Coleridge, expressly concurred in the remark.” In Ives v. Hazard, 4 R. I. 27, the court says: “The counsel for the respondent contend that the words of the memorandum import an offer to sell and nothing-more. We think the language imports an agreement to sell. The language is, H agree to sell / the consideration is expressed, and the time when possession is to be given is fixed by the memorandum.”

So, in the case ia band, the words import an agreement to give to the plaintiffs the choice, privilege, or option to buy in the future the shares mentioned in the memorandum, and fixes the time within which such option ^vas to be exercised. The word, ‘agree/ was,as to its legal meaning, defined in Spaulding v. Hallenbeck, 30 Barb. 299. The court said: “Agrees, eu vi termini, means that it is the agreement of both parties, both conourring on the point, whether both sign or not.” That definition is in consonance with that given in the leading case of Wain v. Walters, 5 East, 10; Barton v. McLean, 5 Hill, 256.

Regarding the instrument as a contract in writing, as we are inclined to think we should, then, by the rules of law established by the eases cited by appellee, it was not competent for plaintiffs by averment and oral proof, to alter or change the character and legal effect of that contract on the ground of want of consideration, or to transmute it into a mere -offer or proposal. And it hems, on its face, a contract precisely within the letter and spirit of the statute in question, it must suffer annihilation therefrom, without regard to the question with what intent the contract was made. It is a universal principie, that a man shall be taken to intend that which he does. Starkie on Ev., Part 4, p. 739. That was the principle which was applied in Webster v. Sturges, 7 Ill. App. 560, a ease directly in point; People v. Brooks, 1 Den. 457; Smith v. Brown, 1 Wend. 231. The rule appears to be, that in acts mala in se, the intent governs, but in"those mala prohibita, the only inquiry is, has the law been violated? Morris v. The People, 3 Den. 402, 403. In Gilbert v. Bone, 64 Ill. 524, the court said; “It is undoubtedly the general rule, that individuals charged with disobedience to penal laws can not exonerate themselves on the ground of good faith or error of judgment; and it has been held that no excuse of this.kind will avail against the peremptory words of a statute imposing a penalty. If the prohibited act has been done, the penalty must be paid. Calcraft v. Gibbs, 3 T. R. 19; Caswell v. Allen, 7 Johns. 63; Morris v. The People, 3 Den. 381, 402. It follows from the principles above announced, that the averments in the eighth count of the declaration, respecting the purpose and intention of the parties in making the contract, were immaterial, because none of the matters averred would be admissible in evidence to show that the statute had not been violated, or to relieve from the consequences of such violation. The ease is an interesting and important one. We have given it all the consideration practicable, under our circumstances, as regards the bnsi-, ness of this court. We may be radically wrong in our views, but have the consolation of knowing that our decision may be reviewed by a higher tribunal where such errors as we may have fallen, into can be corrected. The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Garnett, J.

license: Public Domain

text:
    Anna Viskocil v. Martin Doktor et al.

      Trust Deeds — Agency—Payment to Broker — Bill to Have Trust Deed and Notes Canceled — C%istom.

      Upon a bill filed to have a trust deed and the notes secured thereby delivered up to be canceled, it is held: That the broker from whom the defendant purchased the notes in question, was not her agent to receive payment, such notes not having been left with him; and that she is not bound by his fraudulent representations not made in her presence.
    [Opinion filed September 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamiesoh, Judge, presiding.
    Bill in equity filed by appellees against appellant and Josef Matousek, praying that a deed of trust which was executed by complainants to Matousek, conveying to him a certain lot in Chicago, to secure a loan of §500, may be declared a cloud on complainants’ title to said lot; that the trust deed and the notes secured thereby may he delivered up to be canceled. The facts are that Charles Drabek in November, 1883, was a loan agent in Chicago, and as such agent on November 2, 1SS3, loaned to appellees §500, which was the money of Jan and Katerina Wacha. The principal and interest notes were made payable to them, and the trust deed to secure the notes ran to Matousek as trustee. The notes were left in the hands of Brabek until the appellant purchased them, at which time she¡ or her brother for her, took possession of them, and whenever interestJbeeame due she received it from Brabek, as the notes were payable at his office, and left with him the matured interest note. In November, 1885, the principal note became due and was extended for two years, new interest notes being executed, Brabek attending to the transaction, the appellant, Yiskocil, and appellees not meeting or knowing each other at the time. Before the two years extension terminated appellees paid the entire amount of the principal and interest to Brabek, although he did not have possession of the principal or last two interest notes. In April, 1887, appellees discovered that appellant held the three notes last mentioned and filed this hill for relief as stated.
    On final hearing the court entered a decree as prayed for in the bill, from which appellant prayed an appeal.

      Messrs. GoLDzrEB & Eodgkebs, for appellant.
    Appellees could not have been forced to make payment to any one unless he had these notes, even if they were due, and if they voluntarily made it, they did so at their own peril.
    Where payment is due on a written instrument it is the duty of the. debtor to call for its production. Dunlap’s Paley on Agency, p. 274; Wheeler v. Guild, 20 Pick. 545.
    And a payment made before maturity is made at the peril of party paying. Story on Bills and Notes, p. 214.
    And even where an agent has authority to collect on negotiate instruments this does not imply an authority to collect before due. Story on Agency, Secs. 98 and 104; Austin v. Thorp, 30 Ia. 376.
    Messrs. Jokes & Lusk, for appellees.
    We maintain that the testimony of the appellant taken alone is sufficient to show that Drabek was her. general financial agent; that she did all her financial business through him; that she had loaned money through him and to him, and that she had deposited money with him, even to her last cent; that she was satisfied when he told her that “ she should be satisfied; that everything is in good order.”
    We respectfully refer to the case of Hurd v. Marple, 10 Ill. App. 421, in which the court say: “By placing the money in his hands to loan without any restrictions or limitations upon his authority made known to third persons, appellee constituted him her general agent in that behalf.”
    If, therefore, Drabek was appellant’s general agent in this case, he had full power to collect, extend time, collect before due, or, in short, do anything the appellant could have done.
    Drabek certainly had the right to collect the notes. Her ratification of his acts in collecting the coupons would invest him with full power to collect the principal note; and we have shown, in addition, that such is the universal custom among agents of that kind, when a note is specifically made payable at the agent’s office. When such a custom exists the presumption is that both parties are acquainted with it. U. S. Life Ins. Co. v. Advance Co., 80 Ill. 549; Thompson v. Elliott, 73 Ill. 221.
   Garnett, J.

When appellant purchased the notes in question she took them from Drabek and kept them. At the maturity of an interest note she presented it for payment, in a business-like manner, at his office, where it was payable, and received her money.

He was not her agent, at any time, in respect to the making or collection of the principal or interest on this loan. Any payment made to him after she took possession of the notes was made at the peril of the parties paying. That she had other transactions with Drabek and had money deposited with him is not of the slightest importance. His fraudulent representations to appellees, not made in the presence of appellant, can not, by any known rule of law, operate to her disadvantage.

If Drabek had made the original loan for appellant, and as her agent, still he would have had no right to receive principal or interest, except where a note was left with him so as to give him apparent authority. Cooley v. Willard et al., 34 Ill. 68; Stiger v. Bent, 111 Ill. 328; Thompson et al. v. Elliott, 73 Ill. 221.

The evidence introduced by appellees to prove a custom authorizing Drabek to collect the notes has no bearing on this case. The proof had no tendency to prove such a custom as would avail the appellees on the undisputed facts shown in this record.

The decree of the Superior Court is reversed and the cause is remanded.

Reversed, and remanded.


author: McAllister, J.

text:
    George B. Foster et al. v. Frank P. Epps.
    „ Appeal Bonds — Strict Construction as against Sureties.

    1. The liability of a surety on an appeal bond will not be extended by-implication or construction beyond the precise terms of his undertaking.

      2. In the case presented, the Appellate Court having affirmed the judgment but eliminated from the record a finding that the amount due the plaintiff was for wages as a laborer and servant, this court holds, in an action on the appeal bond, that the judgment was affirmed within the precise terms of the condition of the bond.
    [Opinion filed September 18, 1888.]
    Inerrob to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    This was a suit by Frank P. Epps as the obligee upon a bond made June 23, 1885, by Charles L. Epps and Joseph F. Greer as principals, with George B. Foster and William Bohanor as sureties in the penal sum of $500, conditions as follows:
    “ The condition of the above obligation is such that whereas the said Frank P. Epps, did, on the 6tli day of June, A. D. 1885, in the Superior Court of Cook County, in the State of Illinois aforesaid, and of the June term thereof, A; D. 1885, recover a judgment against the above bounden Charles L. Epps and Joseph F. Greer for the sum of two hundred and ninety-six dollars and forty-nine cents, besides costs of suit, and whereas said court found that the demand therein sued for was wages due said Frank P. Epps as a laborer or servant, which finding was expressed in the record thereof, from which said judgment and finding of the said Superior Court of Cook County the said Charles L. Epps and Joseph F. Greer have prayed for and obtained an appeal to the Appellate Court in and for the First District of said State, upon giving bond properly conditioned in the sum of five hundred dollars. How, therefore, if the said Charles L. Epps and Joseph F. Greer shall duly prosecute their appeal with effect, and moreover,pay the amount of the judgment, costs, interest and damages rendered and to be rendered against them, in case judgment shall be affirmed, the above obligation to be void, otherwise to remain in full force and virtue.”
    The case was submitted to the court for decision without a jury, upon an agreed statement of facts, from which it appeared that the judgment of the Appellate Court on said appeal was as follows:

      66 Charles L. Epps et al. vs. Frank P. Epps.

      ) > )

      Nov. 25, 1885. Appeal. Cook Superior.
    “ On this day came again the said parties, and the court having diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being sufficiently advised of and concerning the premises, are of the opinion that in the record and proceedings aforesaid, and in the rendition of the judgment aforesaid, there is manifest error so far as related to the words ''laborer or servant,s as used in the statute in relation to exemptions. Therefore, it is considered by the court that, for that error in the record and the proceedings aforesaid, the judgment to that extent is erroneous. It will, accordingly, be modified by striking out the words: ‘And the court finds that the said damages are due the plaintiff for wages as laborer or servant. And it further appearing to the court now here that neither in the records and proceedings aforesaid, nor in the rendition of the judgment, is there anything erroneous, vicious or defective, except as above stated, and that in that record is no error except as heretofore stated.
    “Therefore it is considered by the court that the judgment aforesaid in all other findings and provisions thereof be affirmed and stand in full force and effect, notwithstanding the said matters and things therein assigned for error;. and it is further considered by the court that the said Frank P. Epps, appellee, pay the costs of this appeal in this behalf expended to be taxed, and that the said appellants have execution therefor.”
    The 'trial court found the issues for the plaintiff; that his debt was §500, and damages the sum §317.48, for which judgment in proper form was given, and the sureties appealed to this court.
    Messrs. McMurdy & Job, for plaintiffs in error.
    Messrs. Moses & FTewman, for defendants in error.
   McAllister, J.

We have duly considered this case, and fail to find that in the judgment rendered the court extended the liability of the surety beyond the precise terms of the condition of the bond by implication or construction. For it is undoubtedly the law that in such a case as this the liability of the surety will not be extended by implication or construction beyond the precise terms of his undertaking, which is to be strictly construed. Abrahams v. Jones, 20 Ill. App. 86, and authorities there cited.

The Appellate Court affirmed the judgment, but eliminated from the record a finding to the effect that the damages were due the plaintiff for the wages as “ laborer and servant.” The condition was, “Now, therefore, if the said Charles L. Epps and Joseph F. Greer shall duly prosecute their appeal with effect, and moreover pay the amounts of the judgment, costs, interest and damages rendered and to be rendered against them, in case judgment shall he affirmed, the above obligation to be void, otherwise to remain in full force and virtue.”

We think the judgment was affirmed within the precise terms of the cohdition as above stated, and that the judgment below was not erroneous and should bo affirmed.

Jxidgment affirmed.


author: Gabnett, J.

text:
    Ralph Plumb v. Abner Taylor et al.

      Sales — Dependent Agreements — Tender of Performance — Failure to Malee — Delivery to Trustee — Action to Recover Price — Renunciation— Effect of — Receiver—Assignment.
    1. Where the agreements between contracting parties are mutual and dependent, neither party without a tender of performance can demand performance of the other. To maintain an action for the recovery of the pur. chase price of an article agreed to be sold by such a contract, it is necess&zy to aver and prove performance or tender of performance by the plaintiff. Mere readiness to perform is insufficient to support the action. '•
    2. In the case presented, it is held,: That the delivery of the railroad stock in question to a trustee in escrow, was not a tender to the defendant» nor a full performance on the part of the plaintiffs; that, upon the expiration of the trust, the defendant was under no obligation to take the necessary steps to procure possession from the trustee; that there was no such renunciation on the part of the defendant as to render a tender unnecessary, and that it does not appear that there was an assignment from the receiver of the firm of which certain of the plaintiff's were members.
    3. Where there is a renunciation of a contract by one of the parties before the time for performance, the contract will remain in existence for the benefit, and at the risk of both parties, unless the other party accepts the renunciation and treats the contract as broken as soon as it is announced.
    [Opinion filed September 18, 1888.]
    In error to the Circuit Court of Cook County s the Hon. Richard S. Tuthill, Judge, presiding.
    Suit in assumpsit by defendants in error against plaintiff in error. The declaration consists of two special counts, and the common counts for goods sold, money lent, etc. The special counts allege that by the terms of a contract dated October 10, 1878, it was agreed, among other things, that plaintiffs, Abner Taylor, Thomas Snell, James T. Snell and James Aiken, partners under the firm name of Snell, Taylor & Co., and Henry H. Porter, should assign to Plumb 8700,000 in- shares of stock of tli£ Decatur & State Line Railway Company, and in consideration thereof, and of the work done and the money advanced by the plaintiffs in the construction of the road of said railway, so far as then constructed, the,,defendant promised the plaintiffs to pay them 812,600 on or before July 1,1879, with interest after May 1,1879, at seven per cent, per annum, in such manner and on such terms as thereafter might be agreed upon, and also that plaintiffs were to receive of townships along the line of road ten per cent, of certain bonds then expected by said parties to be issued in aid of the construction of said road; that plaintiffs should procure from the receiver of the firm of Snell, Taylor & Co., in pursuance of such order of court as might be necessary, all such assignments, transfers and confirmations as might he necessary to effectuate the performance of said contract, and that they should cause to he delivered to defendant all the records, writings, books, maps and profiles, in any way pertaining to the description of said road. The special counts then allege that plaintiffs did then and there assign to defendant- said $700,000 of stock; that at the time of making said contract, with the consent of defendant, plaintiffs transferred to Solon Humphreys the certificates of stock of said railway company, amounting to $700,000, who was to hold them as security for payment by defendant to plaintiffs of said sum of $42,600, and upon such payment to deliver said certificates to defendant; that plaintiffs did procure from the receiver of said partnership of Snell, Taylor & Co., all such assignments, transfers and confirmations as were necessary to fully effectuate the performance of said contract on their part; and that plaintiffs caused to be delivered to defendant all records, memoranda, writings, books, maps and profiles, in any way pertaining to the description of road, and immediately delivered said road to defendant; and that defendant has wholly failed to pay plaintiffs the said $42,600 or any part thereof. The defendant filed a verified plea of the general issue. The cause was tried by the court without a jury. Issue found for plaintiffs, damages assessed at $87,-938.83, to which defendant excepted. Motion for a new trial by defendant overruled and exception by defendant. Judgment for plaintiffs for $88,040.73, being amount of the finding and $101.90 for interest on the finding from date thereof to time judgment was entered. Defendant sued out this writ of error to rcversorsaid judgment.
    ' Messrs. Jno. JST. Jewett and Jewett Bbothebs, for plaintiffs in error.
    Messrs. B. C. Cook and Chas. H. Lawbence, for defendant in error.
   Gabnett, J.

The agreement by appellees to assign the $700,000 of stock, and that by appellant to pay therefor $42,600, were mutual and dependent, and neither party, without a tender of performance, could demand performance of the other. There is nothing in the contract to indicate that either party understood it otherwise'. The courts are disposed] to favor that construction of contracts of this description! which makes the agreements dependent, and they are so con-J sidered, unless the contrary clearly appears. Bank of Columbia v. Hagner, 1 Pet. 465.

To main1 ain an action for the recovery of the purchase price of the article agreed to be sold by a contract "of that kind, it is necessary to aver and prove performance or tender of performance by the plaintiff. Mere readiness to perforin is not sufficient to support an action on the agreement. Bishop on Contracts, See. 1433; Lester v. Jewett, 11 N. Y. 453.

Counsel for appellees do not dispute the necessity of performance or tender of performance on the part of appellees, but they strive to meet this difficulty by two distinct answers. They first set up a contract made October 17, 1878, between the Wabash Railway Company, The Decatur & State Line Railway Company, Snell, Taylor & Co., Ralph Plumb and Solon Humphreys, trustee, in which it was agreed that certain contracts (not including that sued on in this case), and the certificate for said §700,000 of stock should be placed in the hands of Humphreys, to be hold by him in trust until Plumb had, by sale of §1,080,000 bonds of the Decatur & State Line Railway Company or otherwise, paid to the trustee for Snell, Taylor & Co. the $42,600 mentioned in the contract sued on, or secured such payment to Thomas Snell, Abner Taylor and H. H. Porter for Snell, Taylor & Co., in such manner as they should, over their signature, indicate to the trustee, provided such payment be made or secured on or before May 1, 1879; that if such payment was so made or secured, said contracts to remain in full force, one copy of each to be delivered to each party executing the same, and the certificates of stock to be delivered by the trustee according to contract; but if this payment was not made or secured on or before May 1, 1879, the contracts deposited should be void, the trustee to cancel them and return to each party one of each, with his certificate of cancellation, and the certificates of stock to the order of Snell, Taylor & Co., and the trust to expire.

That contract was carried out to the extent of delivering to Humphreys the documents and certificates of stock specified, but Plumb failed to make any payment on or before May 1, 1879, and, in fact, has never paid any part of the $42,600 to Humphreys or to appellees. The certificates of stock remained in the hands of Humphreys until after May 1, 1879, but were never tendered to Plumb until this case was actually on trial, when they were produced and offered to him in open court. The appellees contend that the delivery to Humphreys was a full compliance with the contract on which this action is founded, because they thereby relinquished control of the stock, placing it in the power of Plumb to take it at any time on payment of the money, and that the tender ” (we surmise this to mean the placing of the certificates in Humphreys’ possession,) was kept good by bringing the certificates into court and offering them to the defendant. But appellees did not, by putting the stock in escrow, lose anything more than the physical possession of the certificates. It was still in the possession of their trustee, and was of no more benefit to Plumb than it would have been in possession of Snell, Taylor & Co. He could then have taken it at any time on payment of the money, although no contract had ever been made with Humphreys. Then the argument is too swift in reaching the point where the tender is kept good, before any tender is made. The delivery to Humphreys was no tender to Plumb, and the record is barren of evidence of any other. The agreement of October 17th expired by its own terms May,' 1, 1879. Appellees then had two months left in which to procure the certificates and offer them to appellant. The trustee could not, after that date, accept the $42,600 and deliver the stock to him. Any payment made by Plumb to Humphreys after that date would have been made at his peril. He was not obliged to apply to appellees for an order on Humphreys, while Humphreys could not deliver it without an order. The trust having expired and the stock remaining in the trustee’s possession, there is no principle of law which imposed upon the purchaser the additional burden that would have been necessary to secure possession from Humphreys.

The second answer of defendants in error is that Plumb, in April or May, 1879, renounced the contract, and therefore they were not bound to make a tender. There was evidence to prove that Plumb did tell Taylor that he could not carry out the contract. Treating this statement as a renunciation, we have this simple change wrought in the relation of the parties, viz.: the defendants in error might have accepted it as a breach of the contract by Plumb, and brought suit for damages at once. Plumb’s statement did not amount to a discharge of the contract, except at the election of the" defendants in error. He could not elect for them, and thus confine their remedy to an action for damages for the breach. They might still insist on performance of the contract, and on tendering performance of their part, sue for the whole purchase money. In Anson on Contracts, pp. 271, 272, the author says: “Itis now settled that a renunciation of a contract by one of the parties before the time for performance has come discharges the other if lie so chooses, and entitles him at once to sue for a breach. * * The promisee may therefore treat the contract as broken as soon as the promisor has announced his intention to break it; but if he will not accept the renunciation, but continues to insist upon the performance of the promise, the contract remains in existence for the benefit and at the risk of both parties.”

No evidence was introduced tending to prove that defendants in error elected to treat the contract as broken by Plumb. They waited until after the time for performance elapsed, then brought this action for the purchase price, and the amount of the recovery was §12,600 and interest. The failure to make a tender of the certificates of stock is a fatal objection to the judgment.

In addition to what has been said, it may be added that no effort was made to prove any assignment, transfer or confirmation by the receiver of Snell, Taylor & Co. The agreement sued on admitted that there was then a receiver for that firm, and it must be presumed that no valid transfer could be made of any firm assets without action by the receiver and the court appointing him. This goes to the root of the title to such interest in the stock as Snell, Taylor & Co. had, and no court can hold a purchaser liable for the price while that infirmity remains.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Orson P. Kellogg v. James H. Keeler.

      Agency — Authority to Sell for Stipulated Price — Sale for Larger Sum —Evidence.

    Authority to an agent to sell at a stipulated figure does not amount to a contract to give him all he receives above that sum. It is still his duty to obtain the highest price for which the property will sell and account to his principal for the proceeds.
    [Opinion filed September 18, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Bichabd W. Clifford, Judge, presiding.
    Messrs. Steen & Errant, for appellant.
    Mr. John C. Soovel, for appellee.
   Garnett, J.

This was an action of assumpsit by appellee against appellant, judgment being given for $750 against appellant, from which he appeals. In the summer of 1886 Keeler sold to Kellogg four lots in Chicago for $6,400. The transaction was not closed by deed until late in October of that year. ' Before the delivery of the deed to Kellogg the lots were again sold by Keeler to one Hill for $7,550. The latter sale was made, as Keeler now claims, by authority of Kellogg-In his evidence Keeler says, when he agreed to let Kellogg have the property for §6,400, he told him he would let him have it if he would allow him (Keeler) to re-sell it for him; that Kellogg said if he made §100 a lot profit he would be satisfied; that he (Keeler) told him he thought he could sell it for that before he got the deed, as property was advancing. That authority given to sell the lots for §6,800 is, to some extent, corroborated by the evidence of Hoffman, a witness for appellee. But there is no evidence in the record tending to support appellee’s claim that he is entitled to the difference between §6,800 and §7,550. To maintain that proposition he testified to a conversation with appellant some months after he was given authority to sell, when he put certain questions to appellant for the pxxrpose of securing an admission that he was to have all he sold the lots for above §6,800. But Kellogg made no such admission, nor does any witness testify that such was the contract. There is, in fact, nothing in the record that wax-rants appellee’s contention. Authority to an agent to sell at a stipulated figure does not amount to a contract to give him all he sells for above that sum. Kerfoot v. Hyman, 52 Ill. 512. It is still the dxxty of the agent to make the property bring the highest price that can be obtained, and aecoxxnt to his principal for the whole sxxtn less his i*easonable compensation.

The only evidence as to what was a reasonable compensation on such a sale tended to prove that the highest reasonable charge would be a much less sxxm than §750.

There being no evidence to support a verdict for §750, the judgment is reversed and remanded.

Reversed and remanded.


author: Moran, P. J.

text:
    Henry Sweet v. Louis Merki.

      Appeal and Error — Final Judgment.

    A final judgment is one that puts an end to the action so that nothing remains to be done except to execute the judgment.

      [Opinion filed September 18, 1888.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, J udge, presiding.
    Messrs. Moses & Newman, for plaintiff in error.
    Mr. Arnold Tripp, for defendant in error.
   Moran, P. J.

This writ of error was brought to review the action of the court in entering a judgment by confession.

From a supplemental record which has been filed, it appears that, on motion of plaintiff in error, the court has granted him leave -to plead, the judgment entered to stand as security till the merits are tried. It thus appears that material issues in the case stand open for adjustment in a future trial, and that the controversy between the parties is not finally determined. A final judgment is one that puts an end to the action so that nothing remains to be done but to execute the judgment.

The record discloses that no final judgment had been entered in this case. There is no jurisdiction, therefore, in this court to review the record at this stage in the case, and the writ of error must be dismissed.

Writ of error dismissed.


author: Per Curiam.

text:
    Eliza W. Osborne et al. v. Orlando F. Gibbs et al.

      Insolvency — Authority of County Court to Authorize Sales — Adverse Claims — Option to Purchase Real Estate — Assignment of.

    1. The County Court can not be required to try and determine intricate and conflicting claims to property before authorizing the assignee of an insolvent to sell whatever interest the 'estate possesses therein.
    2. What to order the assignee to dispose of is within the discretion of the County Court. In the case presented this discretion has not been abused, the orders in question being for the sale of an option to purchase certain real estate.

      [Opinion filed September 18, 1888.]
    Lnt ebbob to the County Court of Cook County ; the Hon. Bichaed Pbehdebgast, Judge, presiding.
    Messrs. J. L. High and J. W. Smith, for plaintiffs in error.
    A voluntary assignment for the benefit of creditors is not a judicial sale or judicial transfer of property, but is purely the voluntary act of the debtor. The assignee is not a purchaser for value but a mere volunteer. The assignment conveys no other or larger interest than that of the assignor, and the property conveyed is subject to all limitations and restrictions existing against the assignor. Taylor, the assignee, could, therefore, acquire no interest in the leasehold, or in the option to purchase contained in the lease, without the written consent of the lessor. Burrill on Assignments, Secs. 2, 14; Ludingiom’s Petition, 5 Abbott’s N. C. 312; Manny v. Logan, 27 Mo. 528; Perry Insurance Company v. Foster, 58 Ala. 521; In re Fulton’s Estate, 51 Pa. St. 211; Drain v. Mickel, 8 Iowa, 438; O’Hara v. Jones, 46 Ill. 288; Beck v. Parker, 65 Pa. St. 262; Dehner v. Helmbacher Forge and Rolling Mills, 7 Ill. App. 47.
    The statute regulating assignments for the benefit of creditors does not affect the power of the debtor to assign, nor does it enlarge the estate or property interests conveyed to the assignee. The statute is merely declaratory of the common law, and provides a forum for administering the assets, and regulates the procedure. The assignee has no other or greater power of alienation than the debtor, and can sell no interest in either realty or personalty which the debtor himself could mot have sold. Bishop on Insolvent Debtors, See. 130, and cases cited; Act Concerning Voluntary Assignments, R. S., Chap. 10a, Sec. 11; Eames v. Mayo, 6 Ill. App. 334; Thrasher v. Bentley, 1 Abbott’s N. C. 39.
    The option to purchase the premises in controversy contained in the lease is a right personal to the lessees, and does not extend to their assignees or representatives. It is purely a personal option or privilege conferred upon the lessees, which can not be enlarged or alienated without the written consent of the lessor.
    Mr. James S. Mubbay, for defendant in error.
    The option to purchase the premises was not controlled or limited by the provision requiring the assent of the lessor to the assignment of the lease, but passed to Taylor by virtue of the statute. Gorham v. Farson, 119 Ill. 427; Hunter v. Silvers, 15 Ill. 175; Perkins v. Hadsell, 50 Ill. 216; Stewart v. Metcalf, 68 Ill. 113; Green v. Low, 22 Beav. 625; Lord v. Stephens, 2 Y. & C. Ex. 222.
    It was a proper exercise of the discretion of the court to refuse to allow the' plaintiffs in error to intervene in the assignment proceeding. Thielman v. Burg, 73 Ill. 293; Boyle v. Levi, 73 Ill. 175; Jack v. Weiennitt, 115 Ill. 105.
   Per Curiam.

By this writ of error it is sought to reverse certain orders of the County Court of Cook County, authorizing the sale to Charles Dickinson, one of the defendants in error, of an option to purchase certain real estate in the city of Chicago. The' option was given to Orlando F. and Oscar L. Gibbs, in a lease to them by David M. Osborne, dated May 30,1884. The lessor died July 5, 1886, leaving the plaintiffs in error, his devisees, owners of the property, subject to the lease. About December 7, 1887, the lessees became insolvent, and executed an assignment for the benefit of their creditors to Joel V. Taylor, assignee, and at the -time of the orders in question the estate was in process of settlement in the County Court.

The plaintiffs in error "are not creditors of the insolvents nor have they any concern in the administration of the insolvent estate. They appeared in the County Court for no other purpose than to oppose the action of that court in its efforts to convert into money that which is, in good faitlp represented to belong to the estate.

The reason assigned for the opposition is that the option was personal to the lessees, not susceptible of transfer, and therefore a sale by the assignee will create a cloud on the title of the owners of the property. Without expressing any opinion on the assignability of the option, we see no reason to interfere with the action of the County Court. It is not a court of equity jurisdiction, where application may be made to remove clouds already created, much less those merely anticipated.

It can not be required to try and determine various and intricate conflicting claims to property, before authorizing the assignee to sell whatever interest the estate possesses. The adverse claimants are in no wise injured by such proceedings, as they have access to the appropriate tribunal for redress. Sec. 11 of Chap. 100 of the Revised Statutes can not be considered in the light of a prohibition which prevents a sale by the assignee of whatever interest the estate has, where such interest is uncertain, or may be, at the end of a tedious litigation, declared to have no foundation.

This would be entirely inconsistent with the spirit of the act which encourages quick settlement and distribution among the creditors. What the court will order the assignee to dispose of is within its discretion, which we think has not been abused in this case.

The orders of the County Court are affirmed.

Orders affirmed.


text:
    Andrew Pederson v. George T. Cline.

      Forcible Entry and Detainer — Title.
    In an action of forcible entry and detainer inquiry can not be made into the title of the premises in question. Hence it is no defense that the defendant entered without any actual force or breach of the peace under claim of an adverse title.
    [Opinion filed September 18, 1888.]

      Appeal from the Circuit Court of Cook County; the lion. Richard S. Tuthill, Judge, presiding.
    Mr. H. S. Mecartney, for appellant.
    Messrs. Morton, Bdeley & Howell, for appellee.
    Possession of premises by such visible tokens as fencing or building is sufficient to maintain the action of forcible entry. Brooks v. Bruyn, 18 Ill. 539; Spurck v. Forsyth, 40 Ill. 438; Pearson v. Herr, 53 Ill. 144; Allen v. Tobias et al., 77 Ill. 169; Knight v. Knight, 3 Ill. App. 206.
    Actual occupancy at the time of the entry by another is not necessary. Pearson v. Herr, 53 Ill. 144; Knight v. Knight, 3 Ill. App. 206; Doty v. Burdick, 83 Ill. 473.
    The possession of keys to premises obtained from a tenant, without his landlord’s consent, gives no right of possession. Doty v. Burdick, 83 Ill. 473.
    Actual violence is not necessary to constitute a forcible entry. Croff v. Ballinger, 18 Ill. 200; Smith v. Hoag, 45 Ill. 250; Doty v. Burdick, 83 Ill. 473.
    Deeds can not be introduced to show title or right of possession in an action of forcible entry and detainer. Brooks v. Bruyn, 18 Ill. 539; Smith v. Hoag, 45 Ill. 250; Pearson v. Herr, 53 Ill. 144; State v. Eisenmeyer, 94 Ill. 96.
   McAllister, J.

This was an action for forcible detainer of Certain premises described in the complaint, brought by appellee against appellant in justice’s court. On appeal to the Circuit Court the case was tried by the court without a jury. On the trial the evidence on behalf of the plaintiff tended to show that the premises situated in the village of Winnetka consisted of five acres of ground with a house thereon ; that the plaintiff had been in possession of the premises for the period of nearly ten years next before the entry into the same made by the defendant, and that such entry was forcible; that it was effected by breaking into the house through one of its windows while such house was temporarily vacant, but securely locked up and fastened; and the evidence tended to show a proper demand made upon defendant for the possession before bringing the suit.

The court admitted, subject to objection by plaintiff, evidence on behalf of defendant tending to prove a tax title in one Stanley to the premises, and that defendant was put in possession by Stanley’s lessee.

The defendant’s counsel asked the court to hold as law the following proposition: “ If the proof shows that Stanley claimed title to the premises in question by or under an adverse source to that of plaintiff’s claim to the same, and that he, Stanley, under said claim of title made a lease of the premises to Richardson, who, under the lease, put Pederson in possession, and the entry was accomplished without any actual force or breach of the peace, then plaintiff can not recover in this proceeding.” The court refused to so hold.

We are of opinion that the uncontradictory testimony in the case tended to make out a case within the statute concerning forcible entry and detainer, as it has been construed in numerous cases by our -Supreme Court.

The proposition of law above stated, could not be held as law and applied, unless it was competent for the court to inquire into the title to the land in question. That it was not competent is well settled. Kessly v. Luke, 106 Ill. 395, and cases there cited. We perceive nothing in the questions decided in the case of Fort Dearborn Lodge v. Klein, 115 Ill. 177, or in the reasoning found in the very learned and discriminating opinion of Chief Justice Mulkey, in that case, which can raise the slightest doubt as to the propriety of the judgment in this case. The judgment will be affirmed.

Judgment affirmed.


text:
    Frank Marquis v. City of Chicago.

      Penal Statutes — Construction—Ordinance.

      Where general words in a penal statute follow an enumeration of particular eases, such words are held to apply only to cases of the same kind as those expressly mentioned.
    [Opinion filed September 18, 1888.]
    Appeal from the Criminal Court of Cook County; the Hon. Abba H. Waterman, Judge, presiding.
    Messrs. Condee & Rose, for appellant.
    Penal statutes must be construed strictly. People v. Peacock, 98 Ill. 172.
    In construing statutes, particularly those requiring a strict construction, it is a universal rule that general words following a specified enumeration of objects or things, will be held to include only such things or objects as are of the same kind as those specifically enumerated. Potter’s Dwarris, 247, 248; In re Swigert, 119 Ill. 89 ; Shirk v. People, 121 Ill. 61; City of St. Louis v. Laughlin, 49 Mo. 559; King v. The Inhabitants of Whitnash, 7 Barn. & C. 596; Sandiman v. Breach, 14 Eng. Com. Law, 52.
    Mr. Benj. L. Rioholson, for appellee.
    In modern times, and especially in later years, the strong tendency of all our courts has been to hold that strict construction of penal statutes means that the statute shall not be extended beyond the letter to cases within the “equity of the act.” The rule in this country is that courts will not extend such statutes so as to include the “ equity,” or spirit of the act, but they will not be swift to find reasons for not enforcing the manifest intention of the legislature. And it is the business of our courts to ascertain what the intention of the legislature was, and where the intention is manifest, they will enforce that intention without reference to what they think the policy of the law should be; and particularly so in this State, where the government is divided into the legislative, executive and judicial departments, and each of these departments is, by the constitution, prohibited from exercising the function of any other department. Hence, the primary rule, in che construction of ail statutes, is to find what was the intention of the legislature, or as in this case, the city council. Penal stat" utes will not be extended beyond the plain letter of the law, but if the law is plain it will follow it, whatever the consequences, and words should not be imported into a statute to extend or restrict its scope beyond the plain intent, but are to be so construed as fairly to suppress the mischief and advance the remedy. Sedgwick on Construction of Statutes and Constitution, p. 280, note, and 281; Conkling v. Ridgely & Co., 112 Ill. 36.
   Garnett, J.

This is an appeal from a fine of $100, imposed by the Criminal Court of Cook County, on the appellant, for alleged violation of Sec. 1307 of the Eevised Ordinances of the City of Chicago.

The ordinance is: “Eo person or persons shall set up, keep or maintain, or permit to be set up, kept, or maintained, in any house or place within the corporate limits occupied or controlled by him or them, any E. O., A. B. C., rooley pooley, keno or faro table, faro bank, roulette, or other instrument, device or thing for the purpose of gaming, or with which money, liquor, or any thing of value shall in any manner be played for, under the penalty of not less than one hundred dollars for each and every offense.”

There was no evidence tending to prove the appellant guilty of keeping or maintaining any of the instruments or de vices specifically named in the section, but the proof showed he kept what might be called a lottery or policy shop, and it is so designated by one of the witnesses. For appellee, it is contended that the general words in the ordinance “ or other instrument, device or thing for the purpose of gaming,” covers the act charged against appellant. That is opposed to the well established rule for the construction of penal statutes, which the Supreme Court of this State has announced in Shirk v. The People, 121 Ill. 61. In that case the indictment was founded on Sec. 107 of the Criminal Code, prescribing a punishment jn the penitentiary for making, passing, uttering or publishing, with an intention to defraud any other person, any fictitious bill, note or check, or other instrument of writing for the payment of money or property.

The instrument which Shirk was charged with feloniously uttering, publishing and passing was not a bill, note or check, or of the same class as bills, notes a.nd checks, although it contained, among other things, a written contract to pay money. But the court held the indictment could not be sustained, ad. hering to the rule that if general words in a penal statute follow an enumeration of particular cases, such general words are held to apply only to cases of the same kind as those which are expressly mentioned.

To the same effect, see City of St. Louis v. Laughlin, 49 Mo. 559; Sandiman v. Breach, 14 E. C. L. 52; Regina v. Reed, 28 E. L. & E. 133.

The punishment under Sec. 1307 of the ordinance being erroneous, the judgment of the Criminal Court is reversed.

Judgment reversed.


text:
    Fred. Myeks v. The Union National Bank.

      1Banks — Checks—Acceptance—Telegram—Appropriation by Bank of a Deposit to Pay Indebtedness to Itself — Notice.
    1. A bank is not bound to accept by telegram the checks or drafts of its depositors, although in possession of funds. Its duty is to pay or accept only upon presentation.
    2. A telegram by a bank to the holder of checks of a depositor stating that “Drafts named are good now,” is not an acceptance.
    3. A bank may appropriate the funds of a depositor to pay an indebtedness to itself, after receiving notice by telegram that the holder of checks of such depositor has sent a messenger to present them.
    [Opinion filed September 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

      Assumpsit by appellant against appellee on three checks drawn in September, 1883, by J. B. Snyder, then a banker at Chenoa, Illinois. They were as follows: September 10, 1883, §1,000; September 17, 1883, §1,200; and September 17? 1883, §1,600.
    The three checks were exactly alike, except as to dates and amounts. The first was as follows:
    “ §1,000.
    “ Bank of Chenoa, | (Duplicate unpaid.) J. B. Snyder, Banker, j

      “ Chenoa, III., Sep. 10, 1883.
    “Pay to the order of Fred Myers, Esq., one thousand and no 100ths dollars.
    To Union National Bank, Chicago, Ill.

      “ J. B. Snyder, per Lester.”
    On September 28, 1883, the three checks were placed by appellant in the hands of his agents, Haynes, Gordon & Co., for collection. On the morning of the 29th of September, 1883, they telegraphed appellee as follows:
    “ 9 a. m., Chenoa, III., 9-29, 1883.
    “ To Union National Bank, Chicago.
    “ Will drafts for thirty-eight hundred dollars, made by J. B. Snyder on you, be paid if presented Monday ?
    “ Haynes, Gordon & Co.”
    To which on the same day appellee replied:
    “ 10:50 a. m., 9-29, 1883, Chicago, 29.
    “ To Haynes, Gordon & Co., Chenoa, Ill.
    “ Drafts named are good now.
    “ J. P. Odell, Cashier.”
    To which appellant replied:
    “ 11:29 a. m., Chenoa, Sept. 29, 1883.

      “ To J. P. Odell, Cash. Union National Bank, Chicago.
    “We have sent a man with drafts. Will be there before, three o’clock.
    “ Haynes, Gordon & Co.”
    In the meantime, i. e., between the second and third dispatches, appellee had telegranhed to Snyder inquiring if he was in trouble, and he had replied that he was in trouble.
    September 22, 1883, John E. Snyder gave his note to appellee for §5,000, payable on demand at its bank. The note was given for money then loaned by appellee to John E-Snyder. The money so loaned was placed by appellee to the credit of John E. Snyder on its books.
    On the opening of appellee’s bank on the morning of the 29th of September, 1883, there was to John E. Snyder’s credit in appellee’s bank §5,935.17. During the day other drafts, to the amount of $952.63, drawn by John E. Snyder, were paid by appellee. After the receipt of the last above telegram from appellant, appellee made demand for the payment of its $5,000 note at its office (Snyder was not present); and it not being paid, charged it up to Snyder, which, with the $952.68, exceeded Snyder’s balance $23.29.
    September 29, 1883, Haynes, Gordon & Co. sent one E. J. Davis to Chicago with the checks to collect them. He arrived at appellee’s bank somewhere between two and three o’clock, and made demand for the payment of the checks, which was refused by appellee. This demand was after appellee had charged up the $5,000 note to Snyder’s account.
    Trial by the court without a jury. Finding and judgment for the defendant. Exception and appeal by plaintiff. .
    Messrs. Kerrick, Lucas & Spencer, for appellant.
    “It is the settled law, and has been twice decided by this court, that a parol promise to accept an existing bill is valid.” Nelson v. First Nat. Bank, 48 Ill. 40; Sturges v. First Nat. Bank, 75 Ill. 595; Mason v. Dousay, 35 Ill. 424; Edwards on Notes and Bills (3d) Sec. 567; Daniel on Neg. Inst. (3d) Sec. 496.
    “According to the law merchant, an acceptance may be, (1) expressed in words; (2) implied from the conduct of the drawer; (3) it may be verbal or written; (4) it may be in writing on the bill itself or on a separate paper. ” Daniel’s Neg. Inst. (3d) Sec. 496.
    Acceptance by telegraph is sufficient. Central Savings Bank v. Richards, 109 Mass. 414; Coffman v. Campbell, 87 Ill. 98; Whilden v. Merchants, etc., 64 Ala. 1.

      Each of the following has been held to constitute an express acceptance. “ Accepted, ” “ seen, ” “ honored, ” “ presented, ” “I will ¡jay the bill,” or writing the day and month when presented. Phillip v. Frost, 19 Me. 77; Dufour v. Oxenden, 1 Moody and R. 90; Leslie v. Hastings, 1 Moody and M. 119; Barnett v. Smith, 10 Foster, 256; Spear v. Pratt, 2 Hill, 582; Anonymous, Comb. 401; Story on Bills, Sec. 243; 1 Par. N. and B. 282; Ward v. Allen, 2 Mtc. 53; Leach v. Buchanan, 4 Esq. 226; 1 Par. N. and B. 243; Cunningham on Bills, 26.
    In the following cases “good” has been held to constitute a certification. Barnett v. Smith, 10 Foster, 262; Wellett v. Phenix Bank, 2 Duer, 121; Guard Bank v. Bank of Penn., 39 Pa. St. 92; Farmers and Mechanics Bank v. Butchers and Drovers Bank, 4 Duer, 219; Merchants Bank v. State Bank, 10 Wall. 605; Bickford v. First Nat. Bank, 42 Ill. 240; Espey v. Bank of Cincinnati, 18 Wall. 617; Meads v. Merchants Bank, 25 N. Y. 146; Robson v. Bennett, 2 Taunton, 322.
    Therefore, assuming that when the cashier of a bank pronounces it “good” it is a certification, 'xvhat is the effect of sncli certification? By the certification of checks “the bank "becomes the principal debtor. When the holder presents the c-.lieck to the bank, the latter can only respond to the demand for payment by making payment.” Daniel on Hog. Inst. Sec. 1603; Edwards on Bills and Hotes, Secs. 565 and 566.
    “ Any language, whether verbal or written, employed by an officer of a banking institution, whose duty it is to know the financial standing and credit of its customers, representing that a check drawn upon it is good, and will be paid, estops the bank from thereafter denying it.” Pope v. Bank of Albion, 59 Barb. 237.
    See also, Barnett v. Smith, 10 Foster, 260; Farmers and Mechanics Bank v. Butchers and Drovers Bank, 4 Duer, 219; Morse on Banks and B. (2d Ed.), 103; Daniel on Neg. Inst. (3d Ed.), Secs. 1601, 1602 and 1603; Bickford v. First Nat. Bank, 42 Ill. 244.
    It seems to us, therefore, that for the cashier of a bank to pronounce a check drawn on the bank as “good,” is for the bank to enter into an unconditional engagement to ¡Jay the check, or at least, if the drawer, at the time, has sufficient funds in the bank to pay such check, to hold such funds for the purpose of paying the check, when payment may be demanded. Did adding “now” to the statement that the checks were “good” have the effect to limit or change the acceptance? If the checks were “good now,” when and by whose act did they cease to be “good?” If at all, evidently only by the act of appellee, when it charged up to Snyder the amount of his demand note. May a bank, after it has knowledge of outstanding checks drawn on it, against funds of the drawer, in its hands, and which it has previously declared “good now, ” use the funds in its hands that made the check “ good now” for the purpose of paying a subsequently maturing debt of the drawer, in its hands? It would seem to us that it could not do so.
    If a check is, by the bank on which it is drawn, made “good now,” it will continue “good” until some act of the holder— as receiving payment, or permitting the statutes of limitation to run — renders it not good.
    The language “ good now ” is the language of appellee, and of course is to be most strongly construed against it.
    If a party designs to make his acceptance conditional, it is his duty “to express clearly the condition of his acceptance, if he designs to make it conditional, and the burden is upon him to show it and not upon the holder of the bill. ” Chitty on Bills, 303.
    Mr. Melville W. Fullee, for appellee.
    The mere drawing of the checks in question did not operate as an appropriation of that amount of money at the date of the checks and prior to their presentation, as between Myers and the Union National Bank or any other check-holder whose checks were presented before these checks were.
    Bank checks are not bills of exchange, although they have many of the properties of such commercial paper; and many of the rules of the law merchant are alike applicable to both. Some points of difference are that a check is drawn on a bank or banker. No days of grace are allowed. The drawer is not discharged by the laches of the holder in presentment for payment unless lie can showdhat he has sustained some injury by the default. It is not necessary that the drawer of a bill should have funds in the hands of the drawee, while a check in such case would be a fraud.
    In Merchants Nat. Bk. v. Bitzinger, 118 Ill. 484, the essential characteristic of a check is held to be that it shall be instantly payable on demand.
    And a check “is not due until payment is demanded, and the statute of limitations runs only from that time.” Merch. Bank v. State Bank, 10 Wall. 647.
    It is indisputable that a check is never presentable for acceptance, but only for payment; that is, the holder has no right to demand anything save a cash payment; he has no claim upon the bank to accept. Morse v. Mass. Nat. Bank, 1 Holmes, C. C. 209; 2 Dan. Neg. Inst. (3d Ed.), Sec. 1601; Morse on Banks (2d Ed.), 259.
    “ If the bank has funds to pay the check, or all cheeks presented, it must pay them, although the bank or its paying officer may know that other checks have been drawn which, when presented, will go beyond the funds.” 2 Parsons on Notes and Bills, p. 78.
    “ The rights of the holder of the check and the bank will be fixed from the time the check is presented for payment.” Fourth N. Bk. v. City N. Bk., 68 Ill. 399.
    “The rights of the parties became fixed upon presentation.” Munn v. Burch, 25 Ill. 35.
    “The mere priority in the drawing of a check upon a bank is not sufficient to give to the holder of such check a legal right to preference in payment out of the funds of the drawer over the holders of checks subsequently drawn. And where different checks are presented to the bank at the same time for sums which, in the aggregate, exceed the amount of the funds of the drawer, the officers of the bank are not bound to settle the conflicting claims of the holders of the different checks to priority of payment.” Dykes v. Leather Man. Bank, 11 Paige, 612.
    The inquiry here is, after all, not as to what would be, in the abstract, a sufficient demand to hold an indorser, but whether this bank, holding Snyder’s note, payable to itself on demand at his office, had the right to demand and pay itself without first hunting up Snyder and requesting him, personally, to pay, he having telegraphed that he would have to close.
    In Home National Bank v. Newton, 8 Ill. App. 563, a very well considered case, this court held it to be “a settled principle that where a depositor in a bank is indebted to the bank by bill, note, or other independent indebtedness, the bank has the right to apply so much of the funds of the depositor as may be necessary to satisfy the bank,” and that “the same rule obtains where a depositor makes his paper to third persons, payable at the bank. As it is the duty of the bank to pay its customers’ checks, when in funds, so at least it has authority, if it is not under actual obligation to pay his notes and acceptances made payable at the bank. It is a presumption of law that if a customer does so make payable or negotiable at a bank, any of his paper, it is his intent to have the same discharged from his deposit.” This latter application of the rule, when confined to the rugular customers of the bank, is sustained by the text books and the weight of authority. 1 Daniel’s Neg. Inst. (3d Ed.), Secs. 326a and 326b, and cases cited in notes. Morse on Banking (2d Ed.), p. 37.
    But whether a bank at which paper is payable may apply the maker’s funds (he being a regular customer) to pay it or must do so, need not to be discussed, as it is well settled that when a bank is itself the holder of a bill or note there payable, it may apply to the funds of the principal payor to pay it. 1 Danl. Neg. Inst. (3d Ed.), Sec. 326b; Dawson v. Real Est. Bank, 5 Pike, 284; McDowell v. Bank of Wilmington, 1 Harr. 369. Where the bill or note is made payable at a particular bank,and the bank itself is the holder, all the demand that is necessary is for the bank to examine the account of the maker, and if he has any balance, “the bank would have a right to apply it to the payment of the note.” Bank v. Smith, 11 Wheaton, 171, on p. 178; 6 Curtis’ Dec. 550; Lord v. Thornton, 3 Leigh, 695; State B. v. Armstrong, 3 Dev. 519; Ætna N. B. v. Fourth N. B., 46 N. Y. 88; Kymer v. Laurie, 18 L. J. Q. B. 218.

      And undoubtedly where the bank loans money to its depositor upon his note, payable to the hank on demand at the banking office, such demand note so payable is equivalent to a check, except that the maker is not discharged for failure to present. Indig v. Nat. City Bk., 80 N. Y. 106; Ætna N. B. v. Fourth N. B., 46 N. Y. 88; Thatcher v. Bank, 5 Sand. 130.
    By usage, and independently of usage, a bank can debit its customer in account with the amount of his overdue note which it has discounted. This must result from the relation of debtor and creditor. Bk. v. Hughes, 17 Wendell, 94; Marsh v. Bank, 34 Barb. 298; Ex parte Howard Nat. Bk., 2 Lowell, 487.
   Garnett, J.

The first telegram from Haynes, Gordon & Co. to appellee was either a mere application for information or a request for acceptance. If the former, appellee is not estopped to deny its liability, because the reply stated the truth and appellant was not injured thereby; neither did lie purchase the drafts (or checks) on the faith of such reply. Treating the telegram, however, as a request to accept payable on the following Monday, the reply of the bank can not be regarded as a compliance with the request. There is a distinct implication in the words “ Drafts named are good now,” that the bank would not undertake to answer for the state of Snyder’s account beyond the moment when its telegram was sent. Myers did not regard it as an acceptance payab’e Monday, else he would not have demanded payment the Saturday previous. But his counsel argues that the reply of the bank was equivalent to writing “good” or “accepted” on the face of the paper. If so, the bank at once became the principal debtor, and was hound to pay whenever the paper was presented. Appellant did not consider that he had secured any such undertaking from appellee, but regarded it purely as a race of diligence. An acceptance is a contract, and does not differ from other contracts in the essential requirement of a meeting of minds. A hank is not bound to accept by telegram the checks or drafts of its depositors, although in possession of funds to pay. Its duty in such cases is to accept a draft, or pay a chock, only on presentment. One relying on a, telegram as an acceptance, should see to it that the language used will, at least, fairly bear the meaning. Rees et al. v. Warwick, 3 Eng. C. L. 467.

The ease at bar is easily distinguishable from Coffman v. Campbell, 87 Ill. 98. There the defendants plainly said they would pay the draft, but added a phrase which did not explain itself. Having promised to pay in positive terms, the court held that if they desired to add a condition it should have fully expressed it. But here the intention to accept is not expressed; on the contrary, as we have shown, appellee’s telegram plainly implied that it would not agree to hold Snyder’s balance for any time to meet the paper held by Myers.

Appellant contends that the making and delivery of the checks operated as a transfer to him of so much of Snyder’s deposit as was required to pay them, and that after receipt of the telegrams the bank could not pay to itself a debt due from Snyder, and thereby exhaust the fund which had been appropriated to the payment of the checks. For that doctrine reliance is placed on several cases decided by the Supreme Court of this State, but the only one which appears to have serious importance is Bank of America v. Indiana Banking Co., 114 Ill. 483. That was a contest between a check-holder and an attachment creditor. A garnishee summons was served on the bank after the check was delivered, and before the bank had notice of the check. After service of the garnishee process the bank paid the check, and the court held the payment rightful. But it is well settled that an assignment of a chose in action protects the assignee against subsequent garnishment of the debtor by the creditor of the assignor, if the defense is properly presented. Brake on Attachment, Sec. 527.

In the case at bar the dispute is between two creditors, one of whom is a check-holder and the other the holder of a note payable at the same bank; it is equivalent to a contest between two check-holders. The sound doctrine in such cases is set forth in Morse on Banks and Banking, p. 266, as follows:

“The rule with checks is, ‘first come first served.5 If payment is demanded at noon upon a check which the depositor’s unincumbered balance at that hour is sufficient to pay in full, the obligation of the bank to pay it in full is at once mature and perfect. It is no matter how many checks may be presented at later hours, or how much the sum of all the checks presented in the course of the day may exceed the amount of the customer’s balance. This is no concern of the bank, not even if it has been informed that such checks have been drawn and will be presented for payment. Its perfectly simple duty is to pay in full each check presented, at the time of presentment, so long as the unincumbered credit of the depositor suffices to enable it to make such payments in full.” This rule meets our approval. Any other must lead to endless confusion.

Considering the merits of the respective claims we shall have no difficulty in holding the equity of the bank to be at least equal to that of Myers. There was no privity between them. Myers received his checks several days before Snyder made his deposit of $5,000 in the bank, hence he could not have relied on that deposit at the time he paid Snyder for the checks. In a similar case, First National Bank v. Pettit et al., 41 Ill. 492, the court said: “Wo do not see * * * upon what principle it [the bank] should be required first to pay a debt due from Allen [the depositor] to persons with whom it has had no transactions and who, if losers, are so by no fault of the bank. The debt due from Allen to it is as meritorious as that due the appellees,” the holders of the checks. The judgment is affirmed.

Judgment affirmed.


text:
    Frank C. Vierling v. Oliver H. Horton.

      Negotiable Instruments — Note—Consideration-—-Subscription to Mission Church.

      A promissory note given in payment of a subscription, or to satisfy a promise of a subscription, to the funds of a mission church, is apon a ralm able consideration. If such note is discounted and the proceeds used for the purpose for which the subscription was given, the maker can not defend on the ground of failure of consideration.
    [Opinion filed September 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kiek Hawes, Judge, presiding.
    Hr. Geoegb E, Gkant, for appellant.
    Messrs. Hqyne & Follansbee, for appellee.
   Moran, P. J.

This action was commenced by appellee against appellant to recover on a promissory note for §416, made by appellant and payable to the order of Samuel A. Kean, and which was duly assigned to appellee. The ease was submitted to the court without a jury, and the finding was against the appellant for the amount of the note and interest thereon to the date of the judgment. The defense of the appellant was that there was no consideration for the note, and that appellee held said note merely as trustee.

It appeared from the evidence that Kean w as soliciting subscriptions in behalf of what was known as the Ilalsted Street Mission, and that appellant promised to give five hundred dollars to the fund. He gave his note for that amount and afterward paid §100 in cash, and took up the first note by giving the note in suit. The money was used for current expenses of the mission; Kean discounted the note at the bank of Preston, Kean & Co., and expended the proceeds in support of the mission.

It has been repeatedly decided that where one promises a subscription for the support or erection of a church, school or other religions, educational or charitable institution, and money is advanced by another on the faith of such promise or subscription, an action may be maintained to recover the amount so promised or subscribed.

It follows that a promissory note, given as a subscription or to satisfy a promise thus made, is given on a valuable consideration, and that if the note is discounted and the proceeds used for the purpose for which the subscription is given, the maker of the note can not defend against it on the ground that no consideration moved to him for its execution. Byron v. Cain, 25 Ill. 263; McClure v. Wilson, 48 Ill. 356; Pratt, Adm’r, v. Trustees, 93 Ill. 475.

There is some conflict in the evidence on the point as to whether the promise was made, but we think the evidence clearly supports the finding of the court.

There was no error in rendering the judgment, and it must therefore be affirmed.

Judgment affirmed.


text:
    Michael Reich v. Adelaide N. Berdel et al.

      Injunctions — Dissolution—Damages—Appeal—Record.
    A judgment for damages assessed on the dissolution of an injunction, can not be supported on appeal, unless the evidence authorizing it is preserved in the record.
    [Opinion filed September 18, 1888.]
    Appeal from the Superior Court of Cook County; the lion. Egbert Jamieson, Judge, presiding.
    Messrs. Blum & Blum, for appellant.
    Mr. E. A. Sherburne, for appellees.
   Moran, P. J.

This is an appeal from a decree assessing damages on the dissolution of an injunction which had been sued out by appellant. The record shows only a suggestion of damages, and that the damages were assessed at §164.75. It does not appear that the court heard any evidence showing the nature or extent of the damages nor how they arose.

It has been repeatedly held a judgment for such damages can not be supported on appeal, unless the evidence authorizing the judgment is preserved in the record. There is noth, ing whatever to support this decree for damages, and it must therefore be reversed and the case remanded.

Reversed and remanded.


author: Garnett, J".

text:
    Mattie E. Gossett v. Union Mutual Accident Association.

      Pleading — Mutual Accident Association — Action on Certificate of Membership — Declaration—Sufficiency of — Uncertainty—Demurrer.
    1. A copy of an instrument is no part of the declaration to which it is attached.
    2. In an action on a certificate of membership in a mutual accident association, it is held: That the demurrer to the declaration, containing the common counts, was improperly sustained; that allegations in two of the special counts that the membership in the association was sufficient, to make the amount named in the certificate by the payment of two dollars each, reduced to certainty that which would have been uncertain; and that the special counts are sufficient.
    [Opinion filed September 18, 1888.]
    In error to the Circuit Court of Cook County; the Hon. Biohabd S. Tuthill, Judge, presiding.
    Mr. H. C. Irish, for plaintiff in error.
    “ The defendant voluntarily issued its policy. It received the premium, and Baily, fully, so far as appears, performed all his contract required him to do. So far as he is concerned, the contract is an executed one.” Benefit Association v. Blue, 120 Ill. 121, 128.

      Where a contract has been fully executed, and nothing remains to be done but the payment of money, which the defendant is to do, the plaintiff may recover in indebitatus assumpsit under the common counts. Lane v. Adams, 19 Ill. 167; Thomas v. Caldwell, 50 Ill. 138; Johnson v. Glover, 19 Ill. App. 584.
    The method by which defendant proposes to raise the money wherewith to pay this debt is no part of the real contract, and does not concern plaintiff, except, in a certain contingency to be shown by the defendant, her recovery may be reduced in amount.
    Ho act is required of either the insured or plaintiff in connection with the raising of the money, and they can not in any way interfere therewith. The contract is fully executed, and assumpsit will lie.
    Assumpsit upon policies of insurance (and on the assessment plan) are common in practice in this State. Pro. Life Ins. Co. v. Palmer, 81 Ill. 88; Ben. Ass’n v. Hoffman, 110 Ill. 603; Nat. Ben. Ass’n v. Jackson, 114 Ill. 533; Cov. Ass’n v. Spies, 114 Ill. 463; Ben. Ass’n v. Blue, 120 Ill. 121.
    Whether an assessment will realize the full amount named in the certificate is matter of defense. Elkhart Aid Ass’n v. Houghton, 103 Ind. 266; Excelsior Ass’n v. Riddle, 91 Ind. 84; Luders v. Hartford Ins. Co., 4 McCrary, 149; S. C., 12 Fed. Rep. 465; Burland v. N. W. Ben. Ass'n, 48 Mich. 424; Neskern v. N. W. Endow. Ass’n, 30 Minn. 406; Suppiger v. Cov., etc., Ass’n, 20 Ill. App. 597.
    Messrs. John M. Hamilton and Chas. C. Gilbert, for defendant in error.
    It is an elementary principle of law that actions in assumpsit for money can only be maintained where the amount to be received is certain, or is capable of being made certain, by the evidence. Hnder this contract it would be impossible for a court or jury to fix a definite amount in advance of an assessment without violating the terms of the contract. The amount to be paid under the terms of this certificate can not be ascertained in a suit at law, but only by a proceeding in equity to compel the levy andeollection of an assessment, and therefore an action at law can not be maintained. In every Illinois case cited by counsel for appellant either this point was not raised or the policy provided for the payment of a certain sum absolutely, although it was to be raised by assessment. But tlie precise question in this case has been several times recently decided by the Supreme Court of Iowa, and the doctrine is firmly established that a suit at law on such a contract of insurance can not be maintained. Ranisbarger v. Union Mut. Aid Ass’n, 33 N. W. Rep. 626; Bailey v. Mut. Ben. Ass’n, 27 N. W. Rep. 771; Newman, Trustee, v. Covenant Mut. Ben. Ass’n, 33 N. W. Rep. 662.
   Garnett, J".

The plaintiff in error filed her decharation in assumpsit against defendant in error, on a certificate of membership, or policy of insurance.

There were three special counts in addition to the common counts. The first special count declared upon a certificate of membership issued to Thomas F. Gossett, alleging the defendant agreed, for a valuable consideration named, to pay to plaintiff the principal sum (not to exceed $5,000), represented by the payment of $2 by each member of the defendant association, as provided in the by-laws thereof, in case of the death of said Thomas by external, violent and accidental means.

The second count is similar to the first, except that it describes the instrument sued on as a policy of insurance. The third count declares upon a policy of insurance for $5,000, which, for. aught we can see, is an ordinary accident policy. In all three of these special counts there are sufficient allegations of the death of the assured in the manner specified in the policy, proofs of death' and demand of payment; and in the first and second counts allegation is made of a membership in said association sufficient in number so that a payment by each member of two dollars would produce $5,000.

A copy of the certificate sued on was attached to the declaration. The defendants filed a general demurrer to the declaration, which was sustained by the court. Judgment was rendered for the defendant on the demurrer, and plaintiff seeks to reverse the same by this writ of error.

That the court erred in sustaining the demurrer to a declaration which included the common counts, is too plain to need argument or citation of authority. We can only account for the action of the court by supposing the counsel to have confined their argument to the special counts, as they have done in this court. In his brief, the counsel for defendant makes two erroneous assumptions. He takes it for granted that the copy of the instrument attached to the declaration is a part of the declaration. That is a mistake. See Bogardus v. Trial, 1 Scam. 63; Harlow v. Boswell, 15 Ill. 56.

Therefore the third special count is entirely sufficient on its face. The other error committed by counsel is in supposing that the certificate sued on provides that the member “ is entitled to participate in the mortuary or relief fund of the association, not to exceed the amount of §5,000, which sum, or such part thereof as may be collected for that purpose by the payment of one regulan assessment of two dollars from eah member of the association, liable at the date of the accident, shall, within sixty days after sufficient proof,” be paid to the beneficiary.

We find no such provision in any of the special counts, or in the copy of the instrument sued on. But the entire argument for the defendant is based on these two erroneous assumptions. The contract set out in the first and second counts is to pay to the plaintiff the principal sum (not exceeding $5,000) represented by the payment of §2 by each member in the association. That is certain which can be rendered certain. The extent of the defendant’s liability is measured by §2 for each member, the total not to exceed §5,000. The first and second counts alleged that the membership was sufficient to make §5,000 by a payment of §2 eacb. They thereby reduced to certainty that which would have been uncertain had no such allegation been made. Neskern v. N. W. End. & Leg. Ass’n, 30 Minn. 406; Kansas Protective Union v. Whitt, 14 Pacif. Rep. 275. The special counts are each sufficient on their face.

For the errors herein indicated the judgment of the Circuit Court is reversed and remanded.

lieversed and remanded.