text:
    Henry Root v. Thomas Sinnock.

      Banks—Charter of Union Bank of Quincy—Individual Liability of Stockholders—Construction—Proviso—Constitution of 1848.

    1. Under the charter of the Union Bank of Quincy its stockholders are individually liable to the amount of their stock for all debts of the corporation.
    2. In the construction of a statute, effect will be given, if possible, to every word and sentence contained therein.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    The declaration filed in this cause contains two counts. In 'the first it is alleged in substance: That on the 26th day of March, 1869, by a certain public law of the State of Illinois, the Hnion Bank of Quincy was incorporated and from the 1st day of June, 1883, to the 15th day of May, 1884, was engaged in a general banking business at the City of Quincy; that during 'this time it had a savings department connected with it and constituting a part of its business, in which deposits of money were received from various persons; that on the 1st day of September, 1884, the bank was indebted to appellee in the sum of $7,200, for so much money deposited with it in its savings department at different times between the 1st day of June, 1883, and the 1st day of February, 1884, and in the further sum of $500 as interest on such deposits; that on the 1st day of June, 1883, and at the time of bringing suit, appellant-was the owner of 100 shares of the capital stock of said bank, of the par value of $100 per share; that on the 15th day of May, 1884, the bank closed its doors and never resumed business as a bank, but that it did, on the 16th day of September, 1884, make an assignment to John P. Mickesell for the benefit of creditors; and that by means thereof and by force of the act incorporating the bank, appellant became liable to pay appellee the sum due the latter from the bank.
    The second count avers that at the time the bank closed its doors and at the time of bringing suit appellant was the owner of 100 shares of stock, but it is in other respects similar to the first count.
    To each count of the declaration a general demurrer was filed and was overruled by the court, and, the defendant standing by his demurrer, evidence was heard by the court and judgment was rendered against appellant in the sum of $5,-910, and costs of suit. From this judgment an appeal was prayed and it is alleged that the court erred in not sustaining the demurrer to each count of the declaration and in entering final judgment in favor of appellee for $5,910.
    Messrs. Sibley & Pape and Almeron Wheat, for appellant.
    Appellee’s right to recover depends upon whether any liability for the debts of the corporation was imposed upon the stockholder, by the last proviso in Sec. 7 of the act incorporating the bank, beyond the actual payment either to the corporation or creditor, for the stock subscribed for by him, at its par value.
    A proviso must be strictly construed. Potter’s Dwarris on Statutes, pages 118 to 120; Kent’s Commentaries, Vol. 1, p. 463; Voorhees v. Bank of the U. S., 11 Pet. 471; Minis v. U. S., 15 Pet. 445; Brown v. Juliet, 1 Scam. 258.
    If the matter of the proviso be regarded as an independent provision, it would be one in derogation of the commonlaw, and must still be strictly construed. The rule is that no statute is to be construed as altering the common law, further than is expressed or its words import. Shaw v. Railroad Co., 101 U. S. 565; Carney v. Tully, 74 Ill. 375; Thompson v. Weller, 85 Ill. 197; Brom'ey v. Goodwin, 95 Ill. 118-123; Canadian Bank v. McCrea, 106 Ill. 281, 289.
    If the matter of the proviso was inserted because of any constitutional provision that would throw no light upon the question as to the extent of the liability of the stockholders. The bank not having any power to issue notes to circulate as money, Sec. 2 of Art. 10 of the Constitution of 1848, is the only constitutional provision imposing any duty on the Legislature in the matter. The People v. Loewenthal, 93 Ill. 191, 196; Gulliver v. Roelle, 100 Ill. 141, 147.
    Mr. William McFadden, for appellee.
    The language of the charter is substantially the same as is contained in the Constitution of 1848, relating to banking corporations issuing bank notes.
    It could not be contended that the words “ to the amount of their respective share or shares of stock,” in the clause of the Constitution of 1848 cited, meant that the stockholder should be liable only for the amount of stock actually subscribed and remaining unpaid by him at the time of suit brought. Properly construed, that clause in the Constitution created a double liability on the part of the stockholder. Morse on Banking, p. 493; In re Empire City Bank, 18 N. Y., 218; Matter of the Hollister Bank, 27 N. Y., 395.
    We think that People v. Loewenthal, 93 Ill. 191 , 196, recognizes the same doctrine in the distinction which the opinion draws between the 2d and 4th sections of Article 10th of Constitution of 1848.
    But irrespective of the constitutional provision aforesaid, the proper construction of the 7th section of the charter oE “ The Hnion Bank of Quincy ” makes each stockholder therein liable for the debts of said bank in an amount equal to the amount of stock held by him—in other words, said section creates a double liability. Morse on Banking, p. 493; Briggs v. Penniman, 8 Cowan, 395; In re Empire Bank, 18 N. Y. 218; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 493; In re Hollister Bank, 27 N. Y. 396; Slee v. Bloom, 19 Johns. 456; S. C., 20 Johns. 633; Bromley v. Goodwin, 95 Ill. 118; Wincock v. Turpin, 96 Ill. 135; Lane’s Appeal, 105 Pa. St. 57.
    The language of this charter is to be construed as meaning a liability on the part of the stockholder to a creditor in an amount equal to the amount of his stock. Thompson v. Meisser, 108 Ill. 359. Clauses inserted in .bank and other charters of tire kind under consideration, are inserted for the benefit of creditors, and that they give a right of action to the creditor and no one else against the stockholder. Culver v. 3d Nat. Bank, 64 Ill. 528 ; Fuller v. Ledden, 87 Ill. 310; McCarthy v. Lavasche, 89 Ill. 276; Hull v. Burtis, 90 Ill. 213; Jacobson v. Allen, 20 Blatch. 525; Norris v. Johnson, 34 Md. 485.
   Wall, J.

The question presented here is as to the individual liability of a stockholder in the Union Bank of Quincy, under a charter granted by the General Assembly. Vol. 1, P. L. 1869, 219-221.

The corporation thus created, while not possessing “banking powers” within the meaning of that term, as used in See. 4, Art. 10 of the Constitution, and as construed in The People v. Loewenthal, 93 Ill. 191, was authorized to borrow and loan money, and to buy and sell bills, notes, bonds and other securities, and to carry on a general exchange business. The capital stock was fixed at $500,000, to be divided into shares at $100 each, and authority was given to commence business as soon as $150,000 should have been subscribed and twenty per cent, paid thereon. Sec. 4 provided that the payment for stock should be made in such time and way as the directors should prescribe. Various provisions relating to the manner and conditions of subscription, etc., are found in the act, which are not important in this connection. The charter is declared to be a public act and as such to be liberally construed. Sec. 7 is as follows:

Seo. 7. “It shall be lawful for the corporation hereby created to purchase and hold such real estate, as may be convenient and useful in the transaction of its business and to take and hold any real estate in trust or otherwise as security for or in payment of loans and debts due or to become due to said corporation, to bid for and purchase real estate at any sale made by virtue of or on account of any loan or mortgage or trust made to or held by or for said corporation, or in which it is interested, and to receive and take in satisfaction of any loan or debt, any real or personal estate and to hold, use and improve, lease and convey the same: Provided, that no real estate, beyond such as may be necessary for the transaction of its business, shall be held by said corporation for a longer period than may be necessary to enable said corporation to dispose of same to advantage, and all real estate sold by said corporation under deed of trust or other conveyance, may be redeemed by the debtor, his, her or their heirs or creditors, by the payment of the full amount of debt and costs together with ten per cent, interest on same, at any time within twelve months after such sale: Provided, also, that the stockholders in this corporation shall be individually liable to the amount of their stock for all debts of the corporation and such liability shall continue for three months after the transfer of any stock on the books of the corporation.”

The language of the last proviso is the subject of the present inquiry. Appellee insists that thereby the stockholder is made liable for an amount equal to and aside from his obligation to pay for the stock by him subscribed, an additional security being thus provided for the benefit of creditors.

On the other hand, the appellant urges that no such extra liability was intended, and that when the stock had been paid for at its par value, the liability of the stockholder is exhausted, and that, as there is no averment of non-payment according to the contract of subscription, no cause of action is disclosed by the declaration and, therefore, the court erred in overruling the demurrer. The view taken by appellant makes the clause under consideration practically meaningless and superfluous. The stockholder is liable without this provision for the whole amount of stock subscribed by him. This he must pay to the corporation and whatever he may owe in this respect is assets of the corporation, and as such may be reached and participa ted in by a corporation creditor, by the appropriate means.

The Constitution of 1848, Sec. 2, Art. 10, provided that dues from such corporations should be secured by such individual liabilities of the corporators, or other means, as might be provided by law, and we have no doubt the Legislature intended, in this instance, pursuant to the plain mandate and policy of the organic law, to impose another liability to which creditors may resort without waiting for the collection ahd distribution of the corporate assets. Such provisions were not inserted without purpose, and in aid.of construction it is a rule to give some effect, if possible, to every word and sentence contained in the act.

It being enjoined by the Constitution, that corporate dues should be secured in some such way, and the language used being wholly unnecessary and superfluous, if not so designed, the very natural inference would be that such was the object. Provisions like this have been made the basis of recovery in numerous cases which are familiar, and some of which are cited in the briefs. Among others may be noticed Arenz v. Weir, 89 Ill. 25, where the provision was, “Ho stockholder of the corporation hereby created shall be liable in his individual capacity for any debt or liability of said company beyond the amount of stock held by him.”

In reply to the criticism of counsel the court said the meaning was plain that every stockholder should be liable to the extent of the stock held by him for any debt or liability of the company, and that the Legislature was but carrying into effect the constitutional requirement above referred to.

Counsel contends the language here relied on is not susceptible of the construction put upon it and to give it such import there must be added the words “ equal to ” or some others indicating specially a liability aside from that for the payment of stock to the company. Such a position is' narrow and untenable. The expression in Arenz v. Weir, supra, was held sufficient and that ease is very much in point here. Similar language has been so held in other cases though it may be the precise expression has not been found elsewhere. It should be construed in the light of the object the Legislature had in view under the Constitution, and we have no difficulty in adopting the construction already stated. Morse on Banking, p. 493; Briggs v. Penniman, 8 Cow. 395; Lane’s Appeal, 105 Pa. St. 57; Bromley v. Goodwin, 95 Ill. 118; Wincock v. Turpin, 96 Ill. 135; Meisser v. Thompson, 9 Ill. App. 368; Thompson v. Meisser, 108 Ill. 359.

It is urged by counsel that the expression here relied on is but a proviso, and that no case can be found where such liability has been predicated upon a mere proviso. We have quoted the section entire, so that all its provisions may be seen together, and when so read it would appear that this clause is not so much in the nature of a proviso, a qualification or modification of what precedes, as an independent provision which might well have constituted a separate section, but which, for convenience or some cause not important, was incorporated as it is in Sec. 7. We see no reason why we should nullify and disregard the language because of its position in the section.

The second count differs from the first in the material respect that it is not averred the stock was held by the defendant when the default occurred. The provision fixes “liability for all debts of the corporation,” and declares that “such liability shall continue for three months after the transfer of stock on the boobs of the corporation.” Under this it would not be necessary for one about to seek relief to ascertain who held stock when the money was deposited, but be might sue those who held stock and had not transferred it within three months of the time when default occurred.

When the money was deposited the inchoate liability would attach to the then stockholders, and to them for three months after transfer, and as the stock might be transferred the liability would be transferred also. -Upon the point here •involved, see generally, Thompson on Stockholders, Secs. 90, 94, 95, 210, 215, 217; McLaren v. Franciscus, 43 Mo. 452; Middleton v. Magill, 5 Conn. 28; In re Empire Bank, 18 N. Y. 223 ; Curtis v. Harbour, 12 Mich. 3.

We are of opinion the court properly overruled the demurrer to the declaration.

There is nothing perceived in the record to show the basis upon which the damages were assessed, and it must be presumed there was sufficient evidence to justify the assessment. The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Decatur Gaslight and Coke Company v. The City of Decatur.

      Municipal Corporations—Contract with Gas Company—Construction of —Exclusive Privileges.

    1. Under an ordinance providing that a gas company shall furnish the city with gas “ of a quality at least equal to and at rates as favorable as that furnished” by a gas company in a neighboring city, the rates charged can not at any time exceed those then charged by the latter company.
    2. In an action by a gas company to recover the contract price of gas furnished to a municipal corporation, the question whether the plaintiff is entitled to exclusive privileges, under an ordinance purporting to grant such privileges, does not arise.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Crea & Ewing, for appellant.
    Mr. I. R. Mills, City Attorney, for appellee.
   Wall, J.

This suit was brought by appellant to recover the value of gas furnished to the appellee.

The case was submitted to the court without a jury upon an agreed state of facts from which it appeared that the appellee, a corporation created by a special act of the Legislature in 1865 with perpetual existence, was, by an ordinance of the City of Decatur, passed in March, 1867, authorized to use the streets, alleys and other public grounds of the city for the purpose of laying down and maintaining therein pipes for the use of the city and inhabitants thereof. Section 3 of the ordinance is as follows:

That, in consideration of the privilege herein granted, the sa,id Decatur Gaslight and Coke Company, their assignee or assignees, shall furnish gas of a quality at least equal to, and at rates as favorable as that furnished by the Springfield Gaslight Company, in the City of Springfield, Illinois, and they are to have the exclusive right to lay down and maintain their own gas pipes in said streets, lanes, alleys or other public grounds from the taking effect of this ordinance, during and until the expiration, of the charter of said company, as now established.”

The price charged by the Springfield company for gas when this ordinance was adopted, was §3.25 per one thousand cubic feet.

The City of Decatur has been a consumer of gas furnished by the appellant company since the opening of the works in the year 1868. The rate first charged by the company and paid by the city was §3.60 per thousand and was reduced at various times, the last reduction being to §2, at which rate the city paid from November 1, 1883, to May 1, 1885. The controversy now before the court relates to the gas furnished from May 1, 1885, to September 1, 1885, for which the company charged §2 per thousand, amounting to §1,569.60.

The city tendered §3,127.20, being at the rate of §1.50 per thousand and the costs accrued, which tender, though refused by the company, was kept good.

During the period within which the gas in question was used by the City of Decatur, the price charged by the Springfield Gaslight Company was §1.50 per thousand. It was contended by the City Council of Decatur, that the Decatur company, by the third section of the ordinance heretofore set out, was limited in its charges to §1.50 per thousand, the price charged by the Springfield company. Hence the refusal to pay the §2 per thousand. In the stipulation of facts is the following provision: •

“It is agreed that in case the court shall find that the plaintiff is limited in its charges for gas to the price charged by the Springfield Gas’Light Company since February, 1881, viz., §1.50 per thousand cubic feet, then the judgment shall be for the plaintiff for the sum of §3,127.20 and §1.15 of the costs of suit; and that judgment shall be entered against the plaintiff for the balance of the costs of suit.”

“If the court shall find that the. plaintiff is not limited to the charges for gas made by the Springfield Gas Company since February, 1884, viz., $1.50 per thousand, then the judgment shall be for the sum of $4,569.60, and all costs of suit, in favor of the plaintiff and against the defendant.’3.

The court fonnd the company was limited in its charges to the price charged by the Springfield company, $1.50, and judgment was entered accordingly. The appellant company brings the record here, and by its assignment of errors questions the propriety of this finding and judgment.

Counsel for appellant insist that one of two constructions should be placed upon said See. Ek 1st. It imposed upon the appellant company a maximum price only, viz., the price charged by the Springfield company when the ordinance was passed, $8.25; or, 2nd. The expression “at rates as favorable as that furnished by the Springfield company33 does not mean that the same price should be charged by the appellant company as by the Springfield company but that the gas should be furnished by appellant at rates as favorable as gas should be furnished by the Springfield company under like circumstances and conditions. The language involved is- mot difficult or obscure and when it is considered, in the light of the then situation of the parties, we think its meaning reasonably clear. The object was to provide for the quality and price of gas during the whole period contemplated by the ordinance.

Had it been designed to permanently adopt the then quality and price prevailing at Springfield it would have been quite easy to say so in plain terms. Such was not the object. It was known that the price at which gas could be furnished would depend greatly upon the number of consumers, and this would depend mainly upon the growth of the city. The quality would, to some extent, affect the amount consumed, and the company would find it necessary to maintain as good a quality as that begun with and reasonably fitfor use. It was, of course, assumed that the population would increase and therefore the natural and reasonable expectation would be that the price in Springfield would reduce, from time to time, the quality being maintained, if not improved. This was a practical and business-like view and was fair to all concerned.

The city could afford to take the risk of paying higher rates where it was scarcely doubtful that they would be lower, as certainly would be the case, if the prosperity and growth of Springfield were assured. The term “rates as favorable,” can have but one meaning, that is, that no more should be charged in Decatur than in Springfield, with a possibility of even a lower rate, if justified by an increase of business and other circumstances not unlikely to occur.

The suggestion that the comparison of rates was to depend on the comparative volume of business and net profits in the two cities, is not tenable. This involves the adding of words not found in the section, and it involves the consideration of various circumstances which would be sure to cause doubt and controversy.

Careful and prudent men would not be disposed to put themselves in such a position, nor would they be apt to do so.

It is suggested that the ordinance was void because it gave the appellant company a perpetual and exclusive right to furnish gas and that the Council which passed the ordinance had no power in that way to bind its successors.

It is not necessary to determine whether the ordinance is invalid for this reason or not. The contract thereby created is valid so far as it has been executed—so far as it is executory it may, perhaps, not be enforceable. For the gas which the city has consumed it is bound to pay according to the contract, and the company is bound to accept payment according to the contract.

The gas was furnished and received under the contract, and to that extent both parties are bound by the contract. E. St. Louis v. E. St. L. G. & C. Co., 98 Ill. 415.

We are of opinion the judgment of the Circuit Court is based upon a proper view of the rights of the parties and it will be affirmed.

Judgment affirmed.


author: Conger, J.

text:
    Daniel H. Caswell v. Anna M. Caswell.

      Fraudulent Divorce—Bill of Review—Laches—Delay of Fourteen Tears —Sec..19, Chap. 22, R. S.—Domicile of Wife—Removal of Causes—Additional Abstract—Costs.

    1. Where the proof of fraud is clear and cogent, and convincing reasons are given for the delay, mere lapse of time does not bar a bill of review to impeach a former decree for fraud.
    2. A decree may be attacked for fraud in its procurement after the three years, limited in Sec. 19, Chap. 22, R. S., and after the five years allowed for suing out a writ of error, if sufficient reasons are given for the delay.
    3. A decree of divorce procured through fraud, by one who has since remarried and has had children by such subsequent marriage, may be set aside upon a bill of review filed after a delay of fourteen years, if clear and convincing reasons appear for the delay.
    4. A bill of review filed in the Circuit Court to annul a former decree, granting a divorce by that court for fraud, is not removable to the Circuit Court of the United States, although the defendant resides in another State.
    5. Where it is necessary for the appellee to file an additional abstract' in this court and the decree is affirmed, the costs thereof will be taxed against the appellant.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Piatt County; the Hon. C. B. Smith, Judge, presiding.
    Mr. Charles W. Thomas, for appellant.
    The defendant’s plea, setting up Sec. 19, Chap. 22, R. S., as a bar to this suit, should have been sustained. Lawrence v. Lawrence, 73 Ill. 577; Lyon v. Robbins, 46 Ill. 276; Southern Bank v. Humphreys, 47 Ill. 227.
    When the General Assembly has undertaken to prescribe a method of obtaining jurisdiction of the persons of non-residents, and has done so, and at the same time has provided the remedy which may be resorted to by any person thus brought into the local jurisdiction and conceiving himself to be wronged by the action of the conrt, it has enacted a complete code upon the subject, and the remedy given is the only remedy for the wrong which may be done under the provisions to which it is coupled. The statutory remedy supplanted all others. As no wrong was possible without the statute, the remedy given by the same statute is necessarily exclusive. So it has become a legal maxim that where a new right is given and a specific remedy for its violation provided by statute, the statutory remedy must be pursued. Ward v. Severance, 7 Cal. 126; Roberts v. Landecker, 9 Cal. 262; Fuller v. Edings, 11 Rich. (S. C.) 239; Butler v. State, 6 Ind. 165; Victory v. Fitzpatrick, 8 Ind. 281; McCormack v, T. H. R. R. Co., 9 Ind. 283; Cole v. Muscatine, 14 Iowa, 296; Hazen v. Essex Co., 12 Cush. 475; Camden v. Allen, 26 N. J. L. 398; Brown v. White Deer, 27 Pa. St., 109; Babb v. Mackey, 10 Wis. 371.
    Mr. Charles Hughes, for appellee.
    A decree of divorce obtained by fraud is void, has no binding effect and may be impeached and set aside, even though a subsequent marriage by one of the parties may have been consummated, and children born by such marriage. Adams v. Adams, 51 N. H. 388; Edson v. Edson, 108 Mass. 590; Comstock v. Adams, 23 Kans. 513; Graves v. Graves, 36 Iowa, 310; Rush v. Rush, 46 Iowa, 648; State v. Whitcomb, 52 Iowa, 85; Borden v. Fitch, 15 Johns. 12; True v. True, 6 Minn. 458; Crouch v. Crouch, 30 Wis. 667; Johnson v. Coleman, 23 Wis. 452; Jackson v. Jackson, 1 Johns. 424; Lawrence v. Lawrence, 73 Ill. 577.
    Lapse of time is no bar to bringing suit to impeach a decree, including divorce decrees, obtained by fraud, when cause is shown for delay, and that the party seeking to impeach such decree is not guilty of laches; but the proof must be clear that the party is entitled to the relief prayed for. Adams v. Adams, 51 N. H. 388; Johnson v. Coleman, 23 Wis. 452; Sloan v. Sloan, 102 Ill. 581; Oakley v. Hurlbut, 100 Ill. 204; Lequatte v. Drury, 101 Ill. 77; Furlong v. Riley, 103 Ill. 628; Warden v. Cornell, 105 Ill. 169,178; Collier v. Beers, 106 Ill. 150; Cleaver v. Green, 107 Ill. 67; Boyden v. Reed, 55 Ill. 458; Castner v. Walrod, 83 Ill. 171.
    The Statutes of Limitation will not begin to run until the discovery of the fraud complained of, especially where the adverse party conceals the fraud. McIntosh v. Saunders, 68 Ill. 128; Inter. Bank v. Jenkins, 104 Ill. 143, 155; Henry Co. v. Drainage Co., 52 Ill. 299; Wear v. Skinner, 46 Md. 257; R. R. Co. v. Mayo, 67 Me. 470.
   Conger, J.

This is a bill in the nature of a bill of review brought by appellee in the Piatt Circuit Court, December 22, 1883, to impeach and annul a decree of divorce obtained by appellant in said court at its September term, 1869, on the ground of fraud.

Appellant and ^appellee were married at Montevideo, Uruguay, August 15, 1862, where they continued to reside until 1863, when they removed to California, and remained there until April 10, 1865, at which date Caswell sent his wife to her father’s, home in Brooklyn, Hew York. Upon the same day he mailed a letter to her father, James M. Willis, which says, among other things:

“My wife and boy left me to-day for Hew York in pretty good health. I could not leave to go with them although should liked to have gone. The doctor says a sea voyage will do her good and she must have exercise when she reaches Hew York and not take much medicine as she has taken too much already. I can not write to explain many things to you now which I will when 1 see you, although I know that you have lived with her longer than I have, but I think I understand her ease pretty well. I shall be very lonesome now for a while. Good-bye. From your son,

“D. H. Caswell.”

Appellant continued to correspond with his wife and in the summer of 1866 visited her in Brooklyn and during the fall following they both removed to Cairo, Blinois, where they lived together until March, 1867, when appellant again sent his wife to her father’s home in Brooklyn, continuing a correspond ence with her and occasionally sending her money, until he again visited her in Brooklyn in October, 1867, their daughter Catharine having been born some weeks before on September 29, 1867. After remaining with his wife until November 14, 1867, appellant left Brooklyn with the avowed intention of returning to Illinois to work at his trade of millwright, which he did, andón the 17th of the same month writes to her from Decatur, Illinois, that he had arrived in safety, etc., and expresses a hope that the baby and herself are well, etc. From this date until ^November 15, 1868, he continues to correspond with her, writing to her about once a week such letters as would ordinarily pass between husband and wife, informing her as to his business prospects, where he had worked, inquiring as to the health of herself and child, acknowledging receipt of letters from her and occasionally sending her money.

On the 15th of November, 1868, appellant writes to his wife from Decatur telling her he is going.to work the next morning in a mill near Taylorville and instructs her to write him there, sends her §o and says he will send her more when he gets through with the job, and as soon as he knows what he will do, or where he shall go, he will let her know,, etc., and concluded: “I hope this will find you and baby well, as it leaves me at present, * * * so good bye—with a kiss for baby, from your husband,

“D. H. Caswell.”

Fifteen days thereafter, on the 1st day of December, 1868, appellant .filed in the" Piatt Circuit Court a bill for divorce against appellee; charging that on December 10, 1865, his-wife without cause deserted him and had for more that two-years past persisted in such desertion.

Having thus set in motion the legal machinery which lie-hoped would sever the marital relation existing between himself and appellee, appellant six days thereafter—to prevent his victim from being uneasy or suspicious at the long silence that was to follow, wrote her the following letter:

Taylokville, Dec. 6, 1868.

11 Dear Wife: I will try and write you to-day, as I have found out what I think that I shall do this winter, and where I shall go, as I told you in my last, that I was waiting to see some men that I expected here and they have come and I have made arrangements with them to go to Mexico. They are going to build a mill there and as I talk Spanish and can do the work on the mill and understand quartz mills too, as it is to be a quartz mill, they offer me §150 per month and board, so I think that the best thing I can do is to go. Mo doubt but that you will think it is a good ways off, but what is the difference whether I am here or there, if I can do better there than here. I think it is the best thing to go, for a man can not do anything without money, that you know as well as I do, and if I live, I think I shall do well there with the wages and I can save something to come home with in the spring. We shall start in the morning at six o’clock. There is five of us, the two men that I am going with and two others besides myself, and the men’s names that I go with is Williamsons, and we shall go from here across the country into Texas and from there to Mexico with teams, and we expect that it will take us six weeks or two months to get there this time of the year, and if I have a chance to write on the way I will do so and if I have not, you will have to wait till I get there.

“ They say it is a wild country that we shall go through, and if so, I don’t expect that I shall have any chance to send any letters back. We have teams enough, so I shall take all my things, tools along, as well.

“Mow, you will not go to feeling bad about mv going, for.I have considered it all over many times before I made up my mind to go; so, as we leave early in the morning, you need not write till you hear from me again, for I have forgotten the name of the place where we are going to, so I can not tell it to you now, although it is a Spanish name. I will send you §5 by this, for it is all I can spare now, for I have not got much and Walter Lovejoy owes me §20, and I will write to him and tell him to send it to you; so if you want it before you get any more from me, send to him for it and tell him that,I wrote to you to do so, and if he can not send it all at once, he can send you §5 at a time till he pays you what he owes me ; for he has not paid me anything, nor sent me any money either; so I think that you can get along with the §5 I send you and the 820 he owes me till you hear from me again, although you need not feel bad if you do not hear from me till I get there, for if it is as they say, I don’t suppose I shall have any chance to. send any letters back. So take good care of the baby and don’t spoil her, and when I get back I shall want to see a fine child of her.

“ So remember me to all, and I hope this will find you all well, as it leaves me. So good-bye. From, your husband,

“D. H. Caswell.

£‘P. S.—Write to Jane and Walt, and I think they will send you that money when you want it. I will tell them to do so..

“ Dar.”

Appellant, however, instead of going to Mexico, in January following, before any decree had been rendered upon his bill for divorce or any evidence had been taken thereon, went to Dayton, Ohio, and there married. His own explanation of this proceeding is as follows. I was married to my present wife in January, 1869. It happened in this way: I was called away from here, on business, to Cincinnati. I had no intention of marrying when I left. I told Bixby I was going away, and would, perhaps, be gone some little time, and I supposed that this decree would be granted, as I understood from McWilliams, and to see him and get the papers. I got a letter from Bixby, saying he had seen the lawyer and got the papers all right, to hurry back, or something like that. I went from Cincinnati to Dayton, and met the lady I married, and we talked the matter over and concluded to get married to save a little expense. I had no money to waste. We got married and came to Illinois, and found the divorce had not been granted. I was misled by Bixby’s statement. He told me afterward he referred to some patent papers. I said nothing to anybody until the divorce was secured, and then we went to Indiana, at Fort Wayne, and were re-married by a Justice of the Peace.”

On the 18th of February, 1869, appellant and his friend Bixby appeared before the master in chancery of Piatt County, and gave their testimony to be used in the divorce suit of appellant, as follows, as shown by the master’s report:

“The testimony of Daniel H. Caswell, who swears that he was married to Anna M. Caswell, at Montevideo, on the 15tli day of August, 1862, and that they lived together as man and wife until December 10, 1865, when she left him without any cause or provocation, and has continued to remain away) separate and apart from him ever since. She left him against his will. He lived in Piatt County when the bill was tiled, and had been a resident of Illinois between three and four years prior to the filing of the same. Always provided his wife with such comforts as he was able to provide, it was about two years since he had heard from her, and he did not then know where she was.

“Also the testimony of Bixby, who swears that he was present at the marriage. That the parties lived together until December, 1865. Caswell was a good husband. Always understood that his wife deserted him. She has lived separate and apart from him since she left him, December, 1865.”

To show that this man Bixby was a willing and guilty party in this infamous fraud, it is only necessary to refer to the part he took afterward in misleading and deceiving appellee.

Hearing nothing further from her husband, appellee on March 30, 1869, wrote to Bixby, who was, as she supposed, a friend, having acted as groomsman at her wedding, as follows: “ Mr. Bixby, Sir:—Will you be so kind to let me know when you heard from my husband, D. H. Caswell, and send me his address and oblige his wife and child, also his mother;” to which letter Bixby replied as follows:

“ Decatub, April 11, 1869.
“Mbs. Caswell:

“Tour note of inquiry of 31st March is received. In reply I can only say that some four or five mouths since Dan left this place as he said to go to Mexico, to what part he did not know, but would write me as soon as he found a permanent stopping place, but as yet have heard nothing from him. I expect to hear from him as soon as he is located.

“ Will let you know as soon as I hear from him, or I presume he will write you when he knows where he will locate.

“ Tours very truly,
“A. F. Bixby.”

And again, on August 5th, in answer to a further inquiry from appellee, he writes the following answer:

“Decatub, August 5, 1869.
“Mes. Caswell:

“Tour note of inquiry of the first instance is received. As to Mr. Caswell’s whereabouts I am unable to give you the least information. The last I saw of him was in Decatur, and he then informed me that he was going to Mexico. Did not say whether alone or with others, promising to write me when pe m nently located. I asked him when he thought of returning and he said never. I says, you are joking. Mo, he says, I am not. Taylorville is about forty miles from Decatur. I may go down there some time, and if so, I will see what I can learn and let you know the result of my investigation. I have already written to friend Brown what I know in answer to a letter from him. My respects to all.

“Tours truly,
“A. F. Bixby.”

Upon the testimony of appellant and Bixby alone,'a decree of divorce was rendered at the September term, 1869, of the Piatt Circuit Court.

Appellant having now accomplished his purpose of procuring a divorce from appellee, desiring that she should know the fact, but be kept in ignorance of the charge upon which it had been procured, the means used or the place where it had been granted, proceeded to Evansville, Indiana, and there writes to appellee the following letter:

Evansville, Indiana, October 27, 1869.

“Mary:—I am now prepared to let you know the reason of my long silence is absence from the country, and I also have to inform you that by the laws of this State, I have procured a divorce from you, on the ground of incompatibility of temper and disposition, and hereafter I hold myself free from you forever. Before this reaches you I shall be on my way back to Mexico; so you need not expect to see or hear from me again. “Tours,

“D. H. Caswell.”

Upon receipt of this letter appellee caused search to be made in Indiana, and became satisfied that no decree had been granted by the courts of that State. It appears from the evidence that from this date up to 1881 appellee never again heard, from, or of her husband. She stales that she was in poor health and without property or means of support for-herself and her daughter Catharine, except her daily labor.; that she fully believed appellant had gone to Mexico; and that she was constantly during those, years using every effort within her power to get some trace of him. In August, 1881, appellee, in looking over a directory of Nashville, Tennessee, discovered appellant’s name and address, and at once wrote to him, and received an answer dated September, 1881, saying that he was surprised that she should address him as her husband, for, he says: “You well know that some twelve years ago I procured a divorce by law, and legally as the law directs, so you have no claim on me whatever.”

Hoping to be able to go to Nashville, to see her husband, upon such means as she might save out of her earnings, she waited until the spring of 1883, when, finding it impossible to obtain the necessary funds in this way, she borrowed money and went to Nashville, saw her husband, and for the first time satisfied herself that there had been a decree of divorce pronounced against her, and the place where it occurred.

She swears that she saw at that time a copy of the decree as rendered by the Piatt Circuit Court in 1869, and that up to that time she had no knowledge outside of her husband’s letters, supra, of the fact that a divorce had been granted, and no information, or even suspicion, of the court rendering it.

Beturning to New York, as soon as she could obtain the necessary means to do so, she came to Illinois, and filed the bill in this case in the Piait Circuit Court on the 22d day of December, 1883, giving a history of the divorce proceedings, including bill, evidence and decree, and alleging that such decree was obtained by fraud, and praying that the same might be canceled and annulled.

Appellant appeared, answered the bill, and.was examined as a witness in his own behalf. Upon a final hearing the court below found the facts charged in appellee’s bill to be true, and\ decreed that the said decree of divorce obtained in 1869 by-said appellant in the said court should be and was thereby declared to be annulled, set aside, and to stand impeached and forever void. A bare reading of the foregoing facts is enough, we think, to satisfy any candid mind that the divorce proceedings, from first to last, were conceived in sin, and brought forth in iniquity. That it was not only a fraud practiced upon appellee, but upon the court, which was made use of to accomplish the wicked designs of appellant.

It may well be questioned whether, in the divorce proceed, ings, the court ever obtained jurisdiction of the person of appellee. She was 1 not a non-resident at that time, for her husband had his residence in Illinois, and she was only absent temporarily, with his consent, and in such cases her residence or domicile would be the same as his. This we take it, is the uniform rule where husband and wife are living in harmony w'ith their marital duties, though they may be residing temporarily in different jurisdictions.

But without expressly deciding this question, we have no doubt that the false affidavit, bill and evidence, together with the purpose, deliberately formed, and fully and successfully consummated by fraud and deceit, to prevent appellee from having any knowledge of the suit, and to impose upon the court, was such a fraud as to render the decree of divorce absolutely null and void, when attacked directly by bill, as in this case. Adams v. Adams, 51 N. H. 388; Edson v. Edson, 108 Mass. 590; Sloan v. Sloan, 102 Ill. 581.

The great lapsé of .time since the rendition of the decree of divorce, and the hardship of declaring it void upon the wife and children of the second marriage, have been urged upon us with great ability, as a reason- why the original decree should not he disturbed.

These considerations are entitled to great weight, and it would afford us great satisfaction to protect all the innocent sufferers of this fraud, from the sad consequences that must inevitably fall upon some of them. But that is impossible. If appellee is refused relief, herself and child are cruelly wronged without fault, and without a hearing. While on the other hand, if this decree is sustained, the innocent children of appellant must suffer for his wrong.

While these consequences are ample reasons for the most careful deliberation, they are none why the law applicable to the case when determined from the best light attainable, should not be announced and enforced.

The law is, as we understand, that mere lapse of time is no bar to bringing a bill of review to impeach a former decree for fraud, when the proof of fraud is clear, and there are cogent and convincing reasons given for the delay. Adams v. Adams, 51 N. H. 388; Sloan v. Sloan, 102 Ill. 581; Edson v. Edson, 108 Mass. 590.

We think appellee has given the most cogent and convincing reasons for the delay on her part. By the Evansville letter of October 22, 1869, she was led to believe a divorce had been obtained, if at all, in Indiana. She at once caused such search to be made as satisfied her that this statement was untrue. Then for nearly twelve years ■ she believed her husband had deserted her and gone to Mexico, and during this time she seems to have availed herself of every resource at her command to find him. When, in 1881, she discovered him at Nashville, and wrote to him, he, in his answer, studiously avoids all reference-to the place where the decree was obtained, and she remained in ignorance of it until she procured a copy of the decree at Nashville, in 1883.

The delay from 1881 to 1883 in going to Nashville to see appellant, is fully excused by her illness, and want of means. And it can not be said that the delay of some seven or eight months in filing this bill, after discovering that a decree of divorce had, in fact, been obtained, and the place of its rendition was unreasonable, when the distance she resided from Illinois, and that her only means were to be obtained by her own labor, are considered.

“No laches can arise from delay in taking steps to undo a fraud, until after knowledge of the fraud has been acquired.” Jones v. Lloyd, 117 Ill. 597.

Appellant insists that Sec. 19, Chap. 22, R, S., controls this case, and that in all cases where there is no personal service, three years after the decree is rendered is the limit within which it can be attacked, even for fraud in its procurement; and cites Lawrence v. Lawrence, 73 Ill. 577, as sustaining this view.

We do not understand such to be the doctrine announced in that case. Ho question of fraud was made in the case, but the question was, did section 19 of the Chancery Practice Act, apply to decrees of divorce so as to make a decree, obtained upon constructive notice, binding and conclusive upon a defendant not personally served, after three years, unless application was made within such time to open it up for a new hearing, and the court held that it did. Such would be the rule when the proceedings were strictly regular, fair and truthful, even in such cases a complainant would, by the rule announced by the foregoing case, be required to wait three years before the decree would become confirmed and final against the defendant.

But that a decree may be attacked for fraud in its procurement, even after the five years allowed for suing out a writ of error, when cogent and convincing reasons are shown for the delay, is held in Sloan v. Sloan, supra.

We think the section referred to, has no application when a decree is sought to be impeached for fraud.

The Circuit Court committed no error in refusing to entertain the petition to transfer this cause to the Federal Court, as it was not, in our judgment, such a cause as could be removed.

The additional abstract filed by appellee was necessary, and the costs thereof should be taxed against appellant.

A majority of the court believing the decree entered by the Circuit Court to be right, and sustained by the proofs, it will be affirmed.

Decree affirmed.


author: Per Curiam.

text:
    Board of Supervisors v. The Towns of Condit and Newcomb.

      Bridges—County Aid—Mandamus—Scope of Inquiry—Joint Petition by Two Towns—Sec. 19, Chap. 121, 5. S.—“Labor System.”
    1. Upon a petition for mandamus to require the Board of Supervisors to appropriate half the cost of a bridge, the inquiry is not confined to the case made before the Board.
    2. Two towns may jointly petition for county aid under Sec. 19, Chap. 121, R. S.
    3. Towns which have adopted the “ labor system,” as to road taxes, may claim county aid under the statute, the levy contemplated by section 19 not being confined to a money levy.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Champaign County; the Hon. C. B. Smith, Judge, presiding. •
    Messrs. Francis M. Wright and J. W. Sim, for appellant.
    Messrs. J. L. Ray and J. B. Mann, for appellees.
   Per Curiam.

This was a proceeding by mandamus, to compel the appellant to appropriate, from the county treasury, one-half the cost of a bridge constructed by the appellees, the towns of Condit and Newcomb, across the Sangamon Biver. There was an answer to the petition and the case was tried by the court, and issues found for the appellees, and judgment awarding a peremptory writ of mandamus as prayed, with costs. The record is brought here by appeal, and error assigned upon the various rulings of the court.

It will not be necessary to refer in detail to all the points as they are made in the argument.

The proceeding is by virtue of Sec. 19, Ch. 121, R. S., and the first position taken by the appellants is as to the true construction of tlie phrase, “ if the foregoing facts shall appear.” etc. It is contended that the inquiry in the present case must be confined to the case as made before the Board of Supervisors ; that the duty of the Board was to investigate and determine whether the facts, as stated, did “ appear,” and if not so appearing, in the judgment of the Board, then it might lawfully refuse the relief.

It would follow that, conceding this position to be well taken, damages would not lie. We had occasion to consider this point in the case of The People, etc., ex rel., etc., v. The Board of Supervisors of Macon County, 19 Ill. App. 264, and we there arrived at a conclusion adverse to the view suggested by counsel in the present ease. The reasons for that conclusion were stated quite fully, and it is unnecessary to do more than refer to the opinion filed in that case.

It is urged that two towns can not jointly petition for county aid under Sec. 19. We held otherwise in Board, etc., v. The People, etc., 17 Ill. App. 49, and the ruling was affirmed by tlie Supreme Court.

The next proposition which we will notice is that, as the town of Newcomb had adopted the “labor system” as to road taxes, and had not made a levy of 60 cents on the $100, it was not in a position to avail itself of Sec. 19, which makes it one of the conditions of granting county aid that “ the levy of the road and bridge tax for that year in said town was for the full amount of 60 cents on the $100, allowed by law for the commissioners to raise.” This town had, pursuant to Sec. 80, adopted the “ labor system ” as to road taxes, and had made a levy of 25 cents on the $100 for road purposes, to be paid in labor. It had also made a levy of 40 cents on the $100 for bridge purposes, payable in money, so that there was a total levy of 65 cents on the $100 for road and bridge purposes, though it was not all payable in money.

If the argument of appellant is well founded the result is that Sec. 19 is not operative as to those towns which have adopted the labor system as to ward taxes. It does not appear from the reading of that section that it was disagreed to be limited to a particular class of towns, and the argument rests upon the assumption that the only levy here contemplated is a money levy. This does not necessarily appear from the language used and we would not be justified in so construing it when the effect would be to deprive many and possibly the majority of towns, of the benefit of the section.

The spirit and intent of the act would lead to the opposite construction. We are disposed to agree with the Circuit Court upon this point and hold that the Town of ¡Newcomb was, on the facts stated, within the purview of the law, in this respect.

As to the various questions of fact discussed in the argument, we are of opinion there was enough evidence to support the finding of the court. If the questions of law were properly solved the conclusion reached was correct. We find no error in the record and the judgment will be affirmed.

Judgment affirmed,.


text:
    The Chicago & Eastern Illinois Railroad Company v. The People of the State of Illinois.

      Railroads—Rate of Speed—City Ordinance—Sec. 87, Chap. 114, R. S.— Action for Penalty—Right to Recover—Practice.

    In an action against a railroad company to recover the statutory penalty for running a train through a city faster than prescribed by the city ordinance, it is held: That it is immaterial whether a signal was given as the train approached a certain crossing; that one who can show that his injury is the proximate result of the unlawful rate of speed, whether he came in contact with the train or not, is a “ person aggrieved ” within the meaning of Sec. 87, Chap. 114, R. S.; that he may recover the penalty regardless of his right to maintain an action for damages; and that an objection to the ordinance should have been specifically stated when it was offered in evidence.
    [Opinion filed November 20, 1886.]

      Appeal from the Circuit Court of Vermillion County; the Hon. J. F. Hughes, Judge, presiding.
    Mr. William Armstrong, for appellant.
    Messrs. H. M. Steely and F. Bookwalter, for appellees.
   Per Curiam.

This suit was brought to recover the statutory penalty, under Sec. 87, Ch. 114, R. S., which reads as follows: “ Whenever any corporation shall, by itself or agents, run any train, locomotive, engine or car, at a greater rate of speed in or through the incorporated limits, of any city, town or village than is permitted by any ordinance of such city, town or village, such corporation shall be liable to the person aggrieved for all damages done the person or property by suoh train, locomotive, engine or car, and the same shall be presumed to have been done by the negligence of said corporation or their agents', and in addition to such penalties as may be provided by such city, town or village, the person aggrieved by the violation of any of the provisions of this section, shall have an action against such corporation so violating any of the provisions, to recover a penalty of not less than one hundred (§100) dollars nor more than two hundred (§200) dollars, to be recovered in any court of competent jurisdiction; said action to be an action of debt in the name of the people of the State of Illinois, for the use of the person aggrieved, but the court or jury trying the case may reduce said penalty to any sum, not less, however, than fifty (§50) dollars, where the offense committed by such violation may appear not to be malicious or wilful. Provided, that no such ordinance shall limit the rate of speed, in case of passenger trains, to less than ten miles per hour, nor, in any other case, to less than six miles per hour.”

There was evidence tending to show that the appellant’s train passed over the road through the city of Hoopston at a greater rate of speed than allowed by the city ordinances; that Fred. Tilton, for whose use the suit was brought, was in his carriage intending to drive across the railroad when some person warned him of the approaching train, and turning from the road he barely avoided collision, but the horses being frightened ran away, overturning the carriage and seriously injuring the occupants. There was no contact with the train. There was a hedge on the side of the road from which Tilton approached so that he could not see the train until he got on the right of way, past the hedge.

There was some evidence tending to show that he heard the engine bell as he started from the point where his team had been standing twenty or thirty rods from the crossing ; and there was evidence tending to show, on the one side, that no signal was given as the train passed the crossing, and on the other, that the proper signal was given. It is not important how this was. The action is not for damages resulting from a failure to ring a bell or sound a whistle at the crossing, but to recover a statutory penalty for running faster than prescribed by the city ordinance. The statute provides that the person aggrieved may recover for all damages done to the person or property by such train, locomotive engine or car, and in addition to such penalty as may be provided by the city, the person aggrieved by the violation of the statute, may recover a penalty of, etc., etc.

The question is, what is meant by the term “the person aggrieved.” as used in the latter clause. It is contended on go the one hand that it refers to one who is so aggrieved that he may recover damages for the injury sustained, and if he can not so recover he is not a “person aggrieved” in the sense here intended. That in analogy to the construction placed upon Sec. 62, in Schertz v. I, B. & W. R’y, 107 Ill., 577, there could be no recovery for damages in this case, because there was no contact with the train, and, therefore, the person for whose use the suit was brought in this ease can not maintain the action.

On the other hand it is contended, that “the person aggrieved ” is the person who has sustained an injury clearly traceable and attributable to the violation of the law, by running faster than permitted by the ordinance, and that it is not material whether he could maintain an action for damages under the first clause of the section or not.

It is argued that one who can show that his injury is-the proximate result of the unlawful rate of speed, whether he came in contact with the train or not, is -l aggrieved ” in the sense that term here signifies; that the term is not thereby given one meaning in one clause and a different meaning in the other, and that the person aggrieved may recover the penalty, regardless of his right to recover damages. A majority of the court hold the latter view, which was adopted by the trial court and upon which the plaintiff recovered.

The objection now urged to the ordinance, if a valid one, should have been specifically stated when the ordinance was offered in evidence. The objection was general. Had there been any specific objection it should have been pointed out at the time so that, if possible, it might have been obviated. Doyle v. Village of Bradford, 90 Ill. 416.

The judgment is affirmed.

=Judgment affirmed.


author: Pleasants, P. J.

text:
    The Burlington Insurance Company v. S. M. & W. F. Johnston et al.

      Agency—Bond to Secure Insurance Company—Advances not within.

    1. A bond given to an insurance company by an agent to secure the faithful performance of his duties, including an account of all sums of money, goods, notes, valuables and other property coming into his hands, does not cover advances made to him by the company.
    2. In the case presented, it is held: That the bond in question had exclusive reference to the conduct of certain appointees as special agents; and that the sureties are not bound for individual and personal indebtedness of the agents to the company on account of transactions outside of the contract.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding. '

      Messrs. Kerrick, Lucas & Spencer, for appellant.
   Pleasants, P. J.

The Johnstons, being appointed special agents of the insurance company for the State of Illinois, excepting Cook County, gave a bond for the faithful performance of their duties, which the other appellees executed as sureties. This action was brought upon it to recover a balance claimed to be due for advances on account of expenses, and judgment was rendered for the defendants on demurrer to the declaration, which consisted of a single count.

It set out in hceo verba the contract of agency, which was dated November 14, 1883, to be in force from January 1 to December 31, 1884, and showed that the Johnstons were to devote their time and labor to the interests of the company, to be governed by its printed rules and other written or printed instructions of its secretary, to do all such work as is usually required of special agents of insurance companies, to organize the business in Illinois, appoint agents therein, canvass with them and canvass themselves when not otherwise engaged in the interest of said company. For the faithful performance of these duties the company agreed to pay them as follows, to wit: “The actual expenses of each while traveling in the interests of said company: Provided, however, that the only items of expense be railroad fare, hotel bills, livery hire and bus fare, and no other items of expense shall be claimed or allowed; and provided further, that in no case shall the expense bill of either S. M. or W. F. Johnston exceed the sum of $100 in any month during the term of this contract, and an itemized bill of expenses must be made by each.and delivered tó said company at the end of each month;” and in addition twenty-five per cent, of the net premiums obtained by their personal work, and five per cent, of the net premiums taken from the entire State of Illinois, but in no event were the commissions paid to agents—their own expenses and the five per cent, mentioned—taken together, to exceed thirty-eight per cent, of the entire net premium receipts from Illinois, and if they should, the Johnstons were not to claim or be paid any portion of said five per cent, in excess of said thirty-eight per cent. It further provided that “ payments of the above amounts shall be made by the company to S. M. and W. F. Johnston monthly, in cash, at Burlington, Iowa,” and that said appointees should give a bond as therein prescribed.

This contract was extended to the next year with no other change than that the commissions to agents, their own expenses and the five per cent, mentioned should not together exceed forty per cent, of the net premium receipts from Illinois.

In compliance with the contract in that behalf, the bond in suit was executed, which is also set out at large in the declaration, and by which the obligors promise and agree that said appointees shall “faithfully fulfill the terms of said contract and of all modifications and extensions of the same in writing,” and “ faithfully discharge all duties devolving upon them as special agents, and shall on demand deliver unto said Burlington Insurance Company, or their attorney, a correct account of all sums of money, goods, notes, valuables and other property, as such may come into their hands as special agents of said company, and shall pay and deliver unto said company, or any person authorized by said company to receive the same, all balances, sums of money, goods, valuables and other property which shall be due by them to said Burlington Insurance Company, and shall justly, faithfully and honestly serve said company as special agents during their continuance in such capacity.”

It then avers that said appointees entered upon the performance of said contract, and at different times requested the plaintiff to advance money to them, as such agents, to pay commissions, expenses, etc., to enable them to carry on the said business of the plaintiff, and with the understanding and agreement that they, on demand, would pay and return to the plaintiff all money so received by and due from them; that plaintiff at divers times, at such request, did advance to them for that purpose large sums of money, and that in addition to the sums so advanced, they received, collected and retained other moneys from the patrons of the plaintiff to a large amount; that the moneys so advanced to and received and collected by them prior to January 1, 1885, did exceed thirty-eight per cent, of the entire net premium receipts from Illinois, and that twenty-live per cent, of the net premiums on all ’work done personally by them, and their actual expenses— provided for and limited as before stated—prior to said date did not exceed said thirty-eight per cent., with like averments as to the time subsequent to January 1, 1885, only substituting “forty” for “thirty-eight” per cent.; that said excess of the amount so advanced, received and collected by them over such thirty-eight and forty per cent, in said periods respectively amounted in each period to a large sum, to wit, $3,000, whereby they became liable and promised to pay the same to plaintiff, but have neglected and refused to do so on demand, by reason whereof, and by the means aforesaid, the defendants herein became indebted and in consideration thereof promised the plaintiff to pay, etc.; but though often requested, have neglected and refused, and still neglect and refuse so to do.

It thus appears that the money sued for is not alleged to include any that was collected or received by these appointees from the patrons of plaintiff. The allegation is that the money so collected and received, together with those advanced by plaintiff, exceeded the limit of thirty-eight and forty per cent, respectively, of the net premium receipts from Illinois in the periods mentioned.

' As against the pleader the intendment will be that exclusive of the sums so advanced this limit would not have been exceeded; in other words, that the balance here sued for, is solely on account of advances made by plaintiff at their request for the purpose of paying commissions to sub-agents and other expenses and to enable them to carry on the business of their agency. It is not even averred that these expenses were such as they were authorized by the contract to incur. But whatever may have been their character, the advances were made by the plaintiff voluntarily, upon request of the appointees, and with the agreement that they were to be returned or repaid on demand.

Thus it is averred that these were transactions between the parties who were respectively principal and agent by which the latter became bound to the former directly and not by reason of their having bound it to third parties. They were therefore not transactions by the latter as agents of the former, but in their individual capacity, and by which they became simply and directly debtors to the plaintiff. ' ' „

Such were not provided for nor contemplated by the contract of appointment. There is no provision in it for the establishment of such a relation. Their indebtedness to the plaintiff was to arise only indirectly out of transactions by which they should bind it to third parties. Their expenses were to be incurred for the plaintiff, reported in itemized form at the end of each month and paid, not advanced, by the plaintiff monthly. Thus the only indebtedness between these parties for expenses, as contemplated by the contract, was to be an indebtedness from the plaintiff to the appointees, and not from the latter to it. Those for which these advances were obtained were incurred by them primarily for themselves, although the company might also indirectly be benefited by them.

The bond of defendants had reference exclusively to the conduct of these appointees as special agents under the contract. It did not bind the sureties for their individual and personal indebtedness to the company on account of transactions outside of the contract.

We think the demurrer was properly sustained and the judgment will be .affirmed. Judgment affirmed.


text:
    Albigence H. Brown and Charles F. Emery v. Sylvanus Shurtleff.

      Trust Deed—Partition—Sale of Portion of Premises—Bill for Contribution.

    Upon a bill filed by the owner of a portion of a tract of land subject to a trust deed, securing a note, a balance on which he had been required to nay, against the owners of other portions for contribution, it is held: That the iien of the trust deed was not affected by certain partition proceedings, wherein a certain part of the premises was set apart on account of the debt secured by the trust deed; that the acceptance by the holder of the note of the proceeds of the part so set apart did not extinguish the trust deed; that the sale by the trustee of the complainant’s portion of the premises was legal; and that he thereby became entitled to contribution from certain of the defendants.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of ¡De Witt County; the Hon. George W. Herdhan, Judge, presiding.
    Messrs. Otten & Vail, for appellants.
    Messrs. Moore & Warner, for appellee.
   Pleasants, P. J.

Appellee filed the original bill herein as purchaser of a portion of a tract of land subject to incumbrance, which he paid, against the owners of other portions, for contribution. The following is an outline of the case made by it.

In March, 1871, John Adkisson died intestate, seized of 234 acres of land in DeWitt County, and leaving a widow, Gorilla, and three sons, Thomas B., Horace and Frank, his only heirs, of whom the last named was a minor.

In 1874, to avoid a forced sale of land to pay debts of the estate, the widow and adult sons borrowed of appellant Brown, through Emery, $2,000, for which they gave their note at five years, with interest at ten per cent, per annum, payable semiannually, and to secure it executed a deed to Emery, as trustee, of their interest in 139 acres described, including the home farm.

To the August term, 1875, of the Circuit Court they filed a petition for dower and partition, suggesting that ten acres of the tract described in the trust deed, if sold in lots to suit purchasers, would probably bring enough to pay off that debt, and asking that such amount be so sold for that purpose, and the residue of all partitioned, or that all be partitioned and the incumbrance apportioned among the co-tenants. The minor son and Emery, the trustee, were made defendants, but the latter did not appear, and Brown was not a party named» A decree was made according to the prayer of the petition. The land embraced in the trust deed was divided into five parcels, of which lot one, of ten acres, was ordered to be sold to pay the Brown debt; lot two was set off to Horace; lot three to Frank; lot four to the widow, as part of her dower, and lot five to Thomas B. The part not covered by the trust deed was also partitioned to the satisfaction of the parties.

Horace paid one-third of the debt and had his lot released. The master, some years afterward, sold lot one, and paid over the proceeds, amounting to $1,076.40 after deducting the costs and expenses, to the trustee. Ho further payment being made, the trustee, by direction of Brown, who still held the nbte, advertised the premises, excepting said lots one and two, to be sold on January 20, 1882.

Meanwhile, in January, 1876, Thomas had conveyed his lot five to Andrew Hutchin, whose deed recited the liability of the land so conveyed for any balance of the mortgage debt that might remain after the application of the proceeds of lot one, but expressly limited the grantor’s personal liability to the grantee on that account to $200. On February 26, 1876, Hutchin conveyed twenty-one acres of said lot five to appellee, and another portion to P. H. Mills, and on the 6tli of March following, the residue to Jacob Vogle, who, on March 21, 1878, conveyed to George W. Ely, and he, on the same day, to Samuel Dunmire.

On the day advertised for the trustee’s sale, as above mentioned, the widow paid him $450, which was understood to be or to make up her full share of the debt, and the trustee sold the portion of lot five which had been conveyed to appellee for the balance, $685.66. It was bid off by John Warner, for the benefit of appellee,jwho reimbursed him the amount so paid. The bill made defendants, the widow and sons, and Hutchin, Mills, Vogel, Ely, Dunmire and Warner, and prayed that the owners of lot three and the other portions of lot five (conveyed by Hutchins to Mills and Vogle) contribute and pay to complainant their due proportions of the amount he had so paid, and for general relief; and after demurrer theret.o sustained, an amendment was filed to the December term, 1882, making Brown and Emery defendants also, and praying that Emery be required to answer as to payments, fees and expenses made on said loan, and if he or Brown, or both, had received any money thereon to which they were not entitled, they be decreed to .pay it back to the proper parties; that the deed from the trustee to Warner be set aside, and for general relief.

All the defendants answered, some severally and others jointly and severally, and by cross-bill of Vogle, Hills and Dnnmire, two grantees of the remainder in fee of a portion set off to the widow for her dower, Avere brought in and answered it. [Replications were filed and proofs taken. It is unnecessary, however, to notice these further pleadings or the proofs, since they present nothing that modifies the bearing of the facts set forth in the bill, Avhich are clearly established and present all the equities in the case.

On final hearing the court found that Emery, being a party to 'the partition proceedings, was bound by the decree therein; that Brown also, by accepting the proceeds of the master’s sale of lot one under it, ratified and was bound by it; that said sale and payment over of the proceeds to the trustee released ■or extinguished the trust deed; that complainant was not entitled to contribution from anybody because his land was not subject, at the time it was sold, to the lien of the trust deed; that the sale of it by the trustee was unauthorized and illegal and the payment by Warner to him, for the benefit of complainant, of the $685.66, was compulsory, and therefore ordered that the trustee, within sixty days, repay it with interest to date of decree, making $850.96 and interest thereon from that date, until paid, and that his deed to W arner be set aside. The bill was dismissed as to all defendants except appellants, and the costs were adjudged against Emery.

We must think these findings and orders were all wrong. As we understand it, the partition decree did not purport, nor does it otherwise appear that it was intended to affect any right of BroAvn as then existing under the trust deed.

Kotliing of the kind was asked of the court. The petition was to set apart a small portion of what was embraced in the deed, not in absolute substitution for the whole as security to the creditor, but as a means of raising, if it would raise, enough to release the residue. Whether it would or not Avas then uncertain. The arrangement was proposed as in the interest of the debtors and of no concern to the creditor, and the order simply authorized the experiment.

But if it had been asked, and right in itself, the court was without poAver to do it. In the deed, Avhich was on record, BroAvn Avas named as having all the beneficial interest, and Emery only the naked legal title, as such was the fact; yet BroAvn was not made a party to the proceeding, nor represented therein by Emery, who was. Therefore the decree could not, of its OAvn force, bind him. McGraw v. Bayard, 96 Ill. 146 ; Land Co. v. Peck, 112 Ill. 408, 435.

And if the court had possessed the power, it would have been error so to use it. The debt Avas just and the security freely given. There was no pretense that anything had since occurred to change the equities of the parties further than it had paid the debt. Upon what notion of law or right, then, could the court modify the contract or make a new one, or release any part of the security? The parties most interested did not so understand it, as is shown by the original bill, by the deed to Hutchin and by the widow’s payment.

Then, since the decree itself did not contemplate the extinguishment of the trust deed until the debt should be fully paid, Brown’s acceptance of the proceeds of the master’s sale in pursuance of that decree could have no such effect. His note was then due. The money so received paid it in part. It was raised by sale of part of his security, and it was immaterial to him whether such sale was made by his debtors or by the master or by the trustee. •

It follows that the sale by the trustee of appellee’s parcel to make the balance remaining due Avas not illegal. It was provided in the trust deed that in default of payment he might at once proceed to sell the property thereby conveyed, entire, without subdivision, or in parcels and subdivisions,” in his discretion, and the fact that this parcel was sold rather than some others, by an understanding with their owners and in fear of an injunction, if lie attempted to sell them, would furnish to appellee no ground of complaint or relief as against the trustee or Brown. St. Joseph Mfg. Co. v. Daggett, 84 Ill. 556, 559.

But the sale of his land did entitle him to contribution from others in libe case, as to liability for the debt. It had been contracted for the common and equal benefit of those who inherited in common the land pledged for its payment. From the record, as it stands, it appears that Frank is chargeable with one-third. Pitsworth v. Stout, 49 Ill. 78; Freeman on Co-Ten. & Parc., Sec. 512. For the same reason Thomas B. was chargeable for the same proportion, bnt he has discharged it upon Hutch in, except as to $200. This sum he should pay, and the residue of his original third be charged to Hutcliin, if he is solvent, and if. not, to his grantees, in the inverse order of alienation from him.

The decree will be reversed and the cause remanded, with directions to ascertain the amounts due by way of contribution from the other parties liable, and decree that they pay the same to complainant.

Reversed and remanded, with, directions.


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    Sandie Brown v. Bierman, Heidelburg & Company.

      Sales—Rescission—Fraud—Replevin to Reclaim Goods from Third Party—■Evidence—Depositions in other Stilts—Report to Mercantile Agency—Preconceived Intention not to Pay—Knowledge by Defendant— Father and Son.

    1. In an action of replevin to reclaim goods sold to the defendant by his son, who, it is claimed, had purchased them of the plaintiffs, “ with the preconceived intention not to pay,” and of which intention the defendant is alleged to have had knowledge, it is held: That certain-depositions, taken in cases in which the defendant was not a party, to prove fraudulent represituations by the son to third persons, were improperly admitted by the court below; that the report of the son’s financial condition, made by an agent to a mercantile agency, was also improperly admitted; that the evidence does not support the finding that the defendant, when he purchased, knew that his son purchased the goods in question with a preconceived intention not to pay for them; and that their relations as father and son and creditor and debtor, and certain other circumstances relied on, are insufficient to charge the defendant with knowledge of any fraudulent intention on the part of his son.
    2. Fraud must be established by evidence so clear and cogent that it leaves the mind well satisfied that the charge is true.
    [Opinion filed January 14, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Cbeightoe, Judge, presiding.
    Messrs. Allen, Brown & Brown, for appellant.
    We insist that the evidence could not be stronger of the good faith of appellant in the entire transaction, and that there is really nothing in the way of imputation, or even suspicion of fraud, or knowledge or notice of the same, in this entire record against him. Such being the case, the verdict of the jury, in finding for appellees, should have been set aside by the court below. C., R. I. &P. R. R. Co. v. Dingman, 1 Ill. App. 162; Dunton v. Chamberlain, 1 Ill. App. 361; Reid v. Furness, 11 Ill. App. 645; Munson v. Farwell, 16 Ill. App. 365; Catlin v. Warren, 16 Ill. App. 418; C., R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; C., C. & I. Ry. v. Troesch, 57 Ill. 155; Davenport v. Springer, 63 Ill. 276; Schwartz v. Lammers, 63 Ill. 500; Palmer v. McAloy, 58 Ill. 24; Bonnell v. Wilder, 67 Ill. 327; C., B. & Q. R. R. Co. v. Stumps, 69 Ill 409; St. P., F. & M. Ins. Co. v. Johnson, 77 Ill. 598; C. & A. R. R. Co. v. Rice, 71 Ill. 567.
    Appellant’s purchase having been made in good faith and for a valuable consideration, accompanied with possession, should have been protected. He had no participation in the fraud or misrepresentations of Charles B. Brown, even though there had been proof of such, and therefore should not have been prejudiced thereby. Brown v. Riley, 22 Ill. 45; Neece v. Haley, 23 Ill. 416; Chaffin v. Kimball, 23 Ill. 36; Moore v. Bracken, 27 Ill. 23; Kranert v. Simon, 65 Ill. 344; Gavagan v. Bryant, 83 Ill. 376; Miller v. Kirby, 74 Ill. 242; Cole v. Cosgrove, 16 Ill. App. 167.
    Messrs. Sanders & Haynes, for appellees.
    Where a purchaser from a fraudulent vendor has knowledge of such facts as would excite the suspicions of a man of ordinary prudence and capacity, and shuts his eyes and refuses to inquire, he does not purchase in good faith, and is affected with notice of fraud upon prior creditors affected by the sale. State v. Esdell, C. & J., 6 Mo. 396.
    If facts are brought to the knowledge of a party which would put him, as a man of common sagacity, upon inquiry, he is bound to inquire, and if he neglects to do so he will be chargeable with notice of what he might have learned upon examination. Bigelow on Frauds, 288; Hanchett v. Kimbark, 19 Chi. Leg. News, 61.
    Although there were no fraudulent misrepresentations or false pretenses, yet the purchase of goods on credit, by one who has formed a preconceived design not to pay for them, is such a fraud as would render the sale voidable. Rowley v. Bigelow, 12 Pick. 307; Garbutt v. Bank, 22 Wis. 384; Morrill v. Blackman, 42 Conn. 324; Andrew v. Deitrich, 14 Wend. 31.
   Pleasants, P. J.

This case, in its facts, is substantially like that of Henry W. King & Co. v. Sandie Brown, of this term. [See post, p. 579.] Appellee’s firm also sold goods to Charles R. Brown about the same time, and brought this suit against appellant to recover what remained of them after he had purchased the stock of said Charles and taken possession thereof as stated in said opinion. The result, however, was different, being in favor of the plaintiffs, and also the specific fraud relied on as the ground of their right to rescind their sale and reclaim the goods, which was that Charles purchased of them “with the preconceived intention not to pay,” and the defendant of him, with knowledge of such intention. Only two instructions, both right in the abstract, were asked on their behalf, and given: first, that if, from' the evidence, the jury believed these propositions of fact, they should find for the plaintiffs; and second, that fraud may be shown by circumstances, without direct proof. All that were asked by the defendant were also given.

There was no pretense of any fraudulent misrepresentation by Charles to plaintiffs; but to establish the different,and specific fraud charged against him they attempted to show such misrepresentations to others, and for that purpose offered depositions taken by them in suits against him to which appellant was not a party, with what purport to be copies of letters between them attached to said depositions as exhibits, which were admitted over objection.

That proof of the fraud imputed to Charles was essential to a case against this defendant is clear, and if it be admitted that this might be shown by his fraudulent misrepresentations of his financial condition to others of whom he made purchases about the same time, still the proof of such misrepresentations must be made by evidence competent as against this defendant, and since he was not a privy of Charles in respect to the property in question—his title to it not depending upon the validity of Charles’ title as against the plaintiffs—we do not understand upon what principle depositions taken in suits against Charles, to which he was not a party, of witnesses whom he had no right or opportunity to cross-examine, can be so regarded. Wharton on Ev., Sec. 177.

The report of Charles’ condition and standing made by the witness Warren to the Dun Mercantile Agency was objectionable for the same and other reasons. He said it was made from his recollection of Charles’ statements and information from others, and the parts were not distinguished as to their respective sources. He did not say he had forgotten that statement or any part of it, nor that the report was made at the time of the statement and he then knew it was correct; nor that Charles had ever seen or authorized it; and so no reason is perceived why, even as against Charles, he should not have been required to testify, like other witnesses, from present recollection of facts, refreshed, if he desired it, by reference to his report as to any other proper memorandum, without admitting the report itself as evidence. But counsel did not discuss these questions and we have not thought them of sufficient importance in this case to require a careful examination.

We reverse the judgment, because in our opinion the evidence admitted was not of a character or sufficient to support the finding that appellant knew, when he purchased, that Charles intended, when he purchased, not to pay for these goods. . The circumstances urged as justifying it, are, that they sustained the relation of father and son; that appellant loaned Charles nearly all of the capital on which he went into the business, and which all went to pay for the goods then in the store; that this fact was not made known by appellant to appellees and others-of whom Charles afterward made purchases to keep up his stock; that they had occasional interviews in which there was more or less talk about the business; that after two years and a half the indebtedness of Charles for this loan was not reduced; that appellant did not sooner take measures to collect or secure it; that just before purchasing he consulted lawyers, first in St. Louis, where he resided, and afterward at Springfield, where Charles was carrying on the business, and upon advice of the latter changed his plan of taking judgment notes to that of an outright purchase, so shortly before the bills made by Charles for fall purchases matured.

How, if it were conceded that when Charles purchased the goods in controversy he positively intended never to pay for them, which is by no means satisfactorily proved, even as against him, these circumstances would not tend to show that appellant had any.knowledge of such intention, or of any fact that should have put him upon inquiry in respect to it. At most, they are no more than grounds of suspicion that he may have known it. But fraud is not to be presumed. It must be established by proof. And, as was said in Shinn v. Shinn, 91 Ill. 477, something more than suspicions are required to establish it. The evidence must be clear- and cogent, and leave the mind well satisfied that the charge is true.” In the light of the facts clearly proved on the part of appellant, and which are stated in the opinion in • King & Co. v. Sandie Brown, above referred to, and apply as fully to the case of these appellees, even the grounds for suspicion, as to appellant, are shown to be unsubstantial. We find nothing in this record to overcome the presumption, to which he was entitled, that he was an honest man. His dealing with his son in all its course appears to us to have been natural and entirely consistent with good faith. The' verdict was so plainly against the evidence, if not wholly without any to support it, that it ought to have been set aside and a new trial granted. For the error of the court below in refusing so to do, the judgment will be reversed and the cause remanded.

Reversed cmd remanded,,