text:
    Frederick H. Winston et al. v. The Dorsett Pipe and Paving Company.

      Corporations — Stock Liability as betu-eei Stockholders — Jgreement— Validity of Subscription “ in Trust.”

      1. An agreement operating between the stockholders of a corporation only, for an apportionment of their several stock Liabilities, is neither contrary to law nor public policy.
    2. Upon a bill filed by a stockholder to wind up a corporation, and to have an assessment made upon the unpaid stock for the payment of debts, it is held: That, as between the stockholders, the estate of one of the subscribers to the capital stock of the corporation is not liable on certain shares subscribed for “ in trust," and that the court properly reserved the right to make further assessments if necessary.
    [Opinion filed December 18, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    This is a bill in equity filed by Frederick H. Winston, under Sec. 25, Chap. 32, E. S., to wind up the Dorsett Pipe and Paving Company, a corporation for pecuniary profit, organized in 1881, in pursuance of said chapter 32. The bill alleges that the capital stock was $125,000, and the original subscriptions were as follows:
    D. H. Dorsett, 250 shares, $25,000
    J. S. Waterman, 100 £c 10,000
    Joseph Stockton, 100 “ 10,000
    M. S. Chase, 100 « 10,000
    J. P. Ellaeott, 10 tE 1,000
    E. S. Winston, Jr., 3 “ 300
    J. S. Waterman, trustee, 637 tc 63,700
    F. H. Winston, 50 <c 5,000
    1,250 $125,000
    That the company became hopelessly insolvent in August, 1882, and so remains; that it is indebted in about the sum of $10,000 to various parties; that judgments have been entered against it, and executions issued thereon, demand made upon the proper officers of the company for payment thereof, payment refused and said executions returned unpaid; that there is money enough due o-n the stock subscriptions to pay the debts; that the affairs of the company have been mismanaged by its officers, directors and agents; that Waterman is dead, and Alden and Robinson are his executors and are made defendants; prays for a receiver, and that upon the exhaustion of the assets of the company an assessment may be made upon the unpaid stock for the payment of whatever debts remain against the company.
    The answer of the executors of Waterman sets up as a defense that the alleged subscription by said Waterman of 637 shares was made by him as trustee for the corporation and the other subscribers to the capital stock, and at the request of all the other stockholders, including said complainant, under an agreement and understanding with them that he should not be liable upon said stock, and that his subscription therefor, as trustee, was only formal, to enable the corporation to organize, and that said stock was to be subscribed for and issued to other parties, and that subsequently over 400 shares of the stock set down to said Waterman as trustee was issued as original stock by said company to other parties, without the intervention, control or action of said Waterman; that it never was at any time claimed by any of the stockholders of said company, while said company was solvent, that said Waterman was liable upon said subscription of 637 shares of stock, or that he had any interest therein or control over the same; that he had never paid any assessments upon said stock, but the assessments upon the same, in so far as they were paid, were paid by other parties to whom the stock was issued by said company, without any transfer or assignment by said Waterman, either individually or as trustee; that said Waterman in his lifetime advanced and paid large sums of money to said company; denies that Waterman is liable to the creditors or stockholders of said company in any sum or amount whatever.
    On the hearing, the Circuit Court decreed (among other things) that the estate of Waterman was not, so far as the other stockholders are concerned, liable on the subscription of said Waterman, as trustee for the six hundred and thirty-seven shares, but directed an assessment of $.3943 on each dollar of stock of the other one hundred.shares held by Waterman’s estate, the seventv shares held by Stockton, fifty held by Winston and one hundred by Chase, and by the decree the court reserved the right to make a further order for an assessment or assessments, if the same shall be needed, to pay in full the debts and liabilities thereinbefore allowed, together with the costs of the proceeding and receiver’s charge to be thereafter allowed; and the court also reserved the right to inquire into and further adjust the equities of the stockholders among themselves, if need be, and to make such other and further orders and decree as shall be equitable and proper for the final disposition of the suit. From that decree Winston, Stockton and Chase appeal.
    Messrs. G. W. & J. T. Kketzingek, for Frederick H. Winston, appellant, and Messrs. Page & Booth, for Joseph Stockton and Marvin S. Chase, appellant.
    The trust sought to be established by the defendant executors is an express trust. The terms and conditions of such trust rest wholly in parol. The evidence is too uncertain and indefinite to enable a court in chancery to find the subject of the trust, or the interest of the cestui que trust without which no trust can be found or enforced.
    Mo declaration of trust was ever made by Waterman. Mo cestui que trust was ever named. Clark v. Quackenboss, 27 Ill. 260; Langtry v. Langtry, 51 Ill. 458; Wheeler v. Smith, 9 How. 79; Story’s Eq. Jur., Sec. 979a.
    A stockholder can not sustain the relation of trustee to the company, either as the subscriber (as found in the decree) or purchaser of its stock. In a legal sense the corporation and the stockholders are identical; the former is the legal aggregation of the latter. A corporation can not thus deal in its own stock, and any attempt so to do is wholly void in law and equity. Verplanck v. Mercantile Ins. Co., 37 Cal. 30; Green’s Brice’s Ultra Vires, 98; Mechanics Bank v. N. & N. H. R. R. Co., 13 N. Y. 627.
    “Conditional subscriptions are not contemplated; they would be a fraud upon the commonwealth.” P. & S. R. R. Co. v. Biggar, 34 Pa. St. 457; Bavington v. P. & S. R. R. Co., 34 Pa. St. 358; Baile v. C. C. Educational Society, 47 Ind. 117.

      By this subscription "Waterman created a liability against himself and in favor of the corporation and all parties in interest which could not be enforced in law or in equity by the corporation or creditors against his unknown cestuis que trust. All calls and assessments upon this subscription must have been made against Waterman personally, the legal title being in him. Crease v. Babcock, 10 Metc. 545; Hale v. Walker, 31 Iowa, 352; Fisher v. Seligman, 75 Mo. 9; Muir v. Glasgow Bank, L. R. 4, H. L. 358.
    The liability to pay calls attaches to the holder of the legal title only. Henkle v. Salem M. Co., 39 Ohio St. 552.
    Any agreement between Waterman and any or all of his co-subscribers to the effect that his subscription for the $63,700 as trustee, should be only “ formal,” would be in violation of the charter and provisions of law under which the franchise to. be a corporation was granted by the State, and therefore wholly void. Baile v. C. C. Educational Society, 47 Md. 117; Corwith v. Culver, 69 Ill. 502; G. & S. R. R. Co. v. Enner, 116 Ill. 55; Melvin v. Lamar Insurance Co., 80 Ill. 446; P. & S. R. R. Co. v. Biggar, 34 Pa. St. 454; Bavington v. P. & S. R. R. Co., 34 Pa. St. 358.
    If the subscription of J. S. Waterman, as trustee, for $63,700 “ was only formal to enable tli'e company to organize,” as averred in the answer, and was not real, and no liability thereon attached as against Waterman, then and in that case that amount of stock was not subscribed within the meaning of the general incorporation law as construed by the Supreme Court in the above case, and, therefore, no liability attached to the other subscribers. S. & B. R. R. Co. v. Gould, 2 Gray, 278; Atlantic Cotton Mills v. Abbott, 9 Cush. 424; R. M. D. & S. Steamboat Co. v. Sewall, Adm’r, 78 Me. 168; Temple v. Lemon, 112 Ill. 55.
    Messrs. Wilson & Moons, for the executors of J. S-Waterman, appellees.
   Garnett, P. J.

The decree in this case seems to be satisfactory to the creditors of the Dorsett Pipe and Paving Company; no creditor is complaining thereof; but the appealing co-stockholders of Waterman deny the propriety of exempting his estate from $>ro rata assessment on his subscription as trustee for 637 shares of stock. The practical effect of the decree is to compel the other stockholders to assume the liability of Waterman’s estate on the 637 shares. The ruling of the Circuit Court does not transgress the rule of public policy which prohibits arrangements between stockholders by which some or all of them may evade responsibility to the creditors of the corporation. There is no rule of law or public policy which hinders any agreement, operative between the stockholders only, for an apportionment of their several stock liabilities. The interests of the creditors are not in any way affected by such agreements, nor is the corporation itself thereby barred of recovering from each subscriber the full face of the stock for which he agreed to pay. This is simply and solely a question between stockholders. At the hearing of the ease in the court below, evidence was given tending to show that when all the shares but 637 had been taken and the names of the subscribers written on the subscription list opposite the several amounts thus taken, a question arose as to the remaining 637 shares. There being no person who wanted those shares, a suggestion was made that Waterman should subscribe therefor as trustee for the other stockholders; he inquired about the. liability, was answered that so far as the stockholders were concerned, there would be no liability on his part, and thereupon he wrote his name as it appears in the subscription list, with the word trustee ” following and the figures 637 opposite. All this happened when the appellants and all other stockholders were present, and we do not perceive why that agreement of the stockholders should not now be enforced. Counsel for appellants has vigorously combated certain of the facts stated above, but making all due allowance for the admissible evidence given for appellants, we find therein nothing inconsistent with the foregoing statement. Should there be a failure to collect on the stock, other than the 637 shares, sufficient money to pay the debts and costs, we must ¡presume that proper measures would be adopted by the court to provide for the same by assessment on those shares. Ho> fault can he found with the order of the court reserving the right to make further assessments and new adjustments between the several stockholders. Whether any stockholder has or has not enough property to satisfy his portion of the debts and liabilities, has not been demonstrated. The ordinary method of testing that question is by the issue of execution and placing the same in the hands of the sheriff for collection. Why the court should not adopt the ordinary means for settling this question, is not apparent. We think the reservation fully authorized by Sec. 25, Chap. 32, R. S. The decree is affirmed.

jDecree affirmed.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    Alice E. Bates, impleaded, etc. v. James H. Sandy et al.

      Statute of Frauds — Consideration—Promise not to Attach — Agency— Admissions of Agent — Practice—Appeal from Justice — Non-joinder of cs Defendant — ■Instructions—Decisions of Supreme Court.
    1. A promise not to attach the property of a third person, where no ground of attachment exists, is not a consideration for a promise to pay an indebtedness of such third person.
    2. The principal is not bound by the statements of an agent, unless they constitute part of the business in question.
    3. Where the decisions of the Supreme Court are conflicting, this court is bound by the latest of them.
    4. The non-joinder of one of the defendants in the Circuit Court, on appeal from a justice, can not be assigned for error after a trial on the merits without objection to such non-joinder.
    [Opinion filed December 18, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Biohakd S. Tdthill, Judge, presiding.
    Hr. Thomas Dent, for appellant.

      Messrs. Jones & Lusk, for appellees.
   Gary, J.

This was an appeal from the judgment of a justice of the peace. Before the justice the suit was against Ernest Biall, Alice E. Bates and George 0. Bates. It was dismissed there as to George C. Bates and judgment rendered against the other two.

There is some doubt whether the justice had jurisdiction of Biall, either by service of process or personal appearance. Appellant alone appeared in the Circuit Court and made no objection in the progress of the case there, that Biall was not brought in, hut tried the case upon its merits. His non-joinder can not now he assigned as error. Whatever irregularity occurred in that regard, she waived.

One of the grounds on which the appellees based their right-to recover in the Circuit Court was that, as they alleged, the firm of Biall & Bates, composed of Ernest Biall and George 0. Bates, was indebted to appellees; that appellees were about to commence a suit by attachment against the firm; that she had advanced money to the firm, or to her husband, George C., which had gone into the firm; that she had a mortgage upon a half interest in the firm, and was endeavoring to sell that half interest to reimburse herself; that she promised them that if they would not attach, she would pay them; that, relying upon her promise, they did not attach and shortly thereafter she did. To this ground of recovery, besides denying it to be true in fact, she opposed the statute of frauds.

For the appellees the court instructed the jury:

“ Although you may believe from the evidence that the said defendant, Alice E. Bates, was not a partner in the firm of Biall & Bates as claimed by the plaintiffs, but that she was a mere creditor of said firm as claimed by her, yet, if you further believe from the evidence that the plaintiffs had a good and valid claim against said firm, and were about to attach the goods and chattels of said firm and so informed the defendant Alice E. Bates, and if you further believe from the evidence that said Alice E. Bates thereupon, and by reason thereof, promised and agreed unconditionally with the plaintiffs that she would pay the plaintiffs the amount of their claim or secure it, if they, the plaintiffs, would not attach said goods, and if you further believe from the evidence that such promise, if made, was for the purpose of securing and promoting her own personal advantage and protecting her interest in said goods by preventing the levy of said attachment, or was to secure some other substantial and material advantage or benefit to her, the said Alice E. Bates, and if yon,further believe from the evidence that the plaintiffs, in consideration of such promises, if such a promise was made, did not commence said attachment suit, but refrained from doing so by reason of said promise (if you believe such promise was made), then the court instructs yon that such promise, if made, was upon a valid consideration, and the law would not require such a promise (if made) to be in writing.”

And refused, when asked by appellant, this:

“If the jury find from the evidence that Mrs. Alice E. Bates did ask the plaintiffs not to attach the property of JEtiall & Bates, and did promise that she would pay their claim against Riall & Bates if they would not attach, still, if they do not believe from the evidence that the plaintiff had legal grounds for such attachment, then the jury should find for the defendants.”

The case in this State coming nearest to the support of appellees’ position upon these instructions, is Borchsenius v. Canutson, 100 Ill. 82. There Borchsenius held, as security for money, a policy on the life of one Irgens (since dead) on which he had paid premiums. The widow agreed with him, that if he would surrender the policy, she would pay, and the policy being surrenderd, she received the money as her widow’s award. The cases of Eddy v. Roberts, 17 Ill. 505; Wilson v. Bevans, 58 Ill. 232, and Meyer v. Hartman, 72 Ill. 442, are upon promises upon sufficient consideration between the original debtor and the defendant, by which the defendant undertook to pay debts of the promisee, and such promises are in those cases, held to be not within the statute of frauds, and being for his benefit, may be sued upon by the creditor who was to be paid.

In Clifford v. Luhring, 69 Ill. 401, the original contractor having failed to perform, and the sub-contractor refusing to go on, the promise by the owner to the sub-contractor was to pay for work thereafter done. Hite v. Wells, 17 Ill. 88, seems difficult to distinguish from the case first cited, but it is the duty of this court to conform to the latest decision of the Supreme Court, if they are conflicting.

But in the case in 100 111., and in Curtis v. Brown, 5 Cush. 491, there cited, an element existed and was relied upon as a ground of decision that does not appear in this case. The promisee had something of value to surrender. Here, for all that appears, appellees had no ground for an attachment, and. so, by their promise not to attach, did not forego any privilege or abandon any right. The instruction is not based upon the hypothesis that the appellees even believed that they had any ground for an attachment, if that would have brought them within the rule in Daffin v. Roberts, 9 Ill. App. 103; McKinley v. Watkins, 13 Ill. 140; and Miller v. Hawker, 66 Ill. 185.

A promise not to abuse the process of the court (Bracewell v. Williams, 11 L. R. C. B. 198) or to forbear suit upon an unfounded claim (Knotts v. Preble, 50 Ill. 226; Mulholland v. Bartlett, 74 Ill. 58), is no consideration for a promise to pay.

■ The principle of the instruction asked for by the appellant was therefore right, at least to the extent that the appellees should have had an honest belief that they had a right to attach, but in leaving to the jury whether they had “legal grounds, was wrong. The law is not to be left to the jury.

The conversation with Hall, testified to by A. C. Sandy, was not evidence against the appellant. If he was an agent, his statements, not part of any business he was doing for his principal, were not evidence. Bensley v. ■ Brockway, ante, p. 410. This evidence might, perhaps, not have been dee ned so material as to require a reversal of the judgment, if there were no other error.

Whether, if there had been such circumstances as gave appellees the right to attach, forbearance would be such a new and sufficient consideration for a promise, as to take the case out of the statute, is a debatable question. “Extreme cases make bad law,” but no case cited, is quite so extreme a's to sustain that proposition. For the error in giving the instruction on behalf of appellees, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Moran, J.

text:
    The New York and Chicago Grain and Stock Exchange v. H. B. Mellen.

      Gaming — Action to Recover Money Lost — Sees. 130 and 132, Criminal Code — Chance.
    1. The loser of money lost in such gaming as is prohibited by Sec. 130, Criminal Code, may maintain an action for its recovery.
    2. Traffic in differences which are determined by chance is gaming within the meaning of Sec. 130, Criminal Code.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. ¡Richard S. Tuthill, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for appellant.
    Mr. ¡Nathaniel C. Sears, for appellee.
   Moran, J.

Appellee brought his action in the court below to recover money paid by him to appellant on certain dealings in grain or stocks. The alleged “ dealings ” were carried on by the aid of a device which the witnesses call a clock. This clock is a piece of machinery that works automatically. The quotations are printed on . cards ranging from one-eighth to one-lialf cent, there being an equal number of each. Fifteen hundred and sixty of these quotations are placed in the machine after having been first thrown together and mixed up on a table. At half past nine o’clock in the morning the machine begins to "give the market. The quotations appear one above the other, the upper showing the rise and the lower the decline of the market, the upper being called first and the lower one next.

As soon as called, the quotations are placed on a blackboard. On some of the cards are printed as well as the fractions above stated, the word “ wheat,” on others the name of some stock. The regular market price of each commodity supposed to be dealt in is placed on the blackboard every morning, and the cards having the name of the particular article would, as they came from the upper or lower aperture of the clock, show the advance or the depreciation of the commodity.

The clock gave quotations every half minute, and those who dealt, bought or sold at the price which, for the time being, was shown on the blackboard, and the usual practice was to close out the deal on the next quotation that changed the price, by the payment of differences.

That this kind of dealing was gaming, within the prohibition of our statute, can scarcely be doubted. The quotations on the blackboard were determined by the chance operation of the clock instead of any actual sales of the particular article in the market, and each deal was in essence and effect a bet as to what the next card that issued from the clock bearing the name of the article dealt in, would show.

It is suggested that determining by chance at what price an article shalVbe bought or sold does not render the transaction gaming. This may be true if there is an actual bona fide intent on the one part to deliver, and on the other to receive and pay for, the article at the price fixed; but where the transaction shows an intent merely to traffic in differences which are determined by chance, it is gaming, by whatever method the price may be fixed. It is not very seriously contended by counsel for appellant that the dealing described was not gaming, but it is argued that, if it was, the money lost can not 1 e recovered by plaintiff, for the reason that he, as well as the defendant, were both engaged in the criminal act, and the law will not aid a plaintiff to recover money paid by him in pursuance of such criminal act. If there were no change made in the common law by our statute, counsel’s position would be sustained; for, at the common law, if the parties were in pari delicto, the law would leave them as it found them, giving aid to neither. But Sec. 132 of our Criminal Code has changed the law in this regard, and gives to the loser in gaming the right to recover from the winner the money or other valuable thing which he shall have so lost and paid or delivered to the winner. That the provisions of Sec. 132 authorize the recovery of money lost in the kind of gaming prohibited by Sec. 130 of the Criminal Code is expressly decided in Pearce v. Foote, 113 Ill. 228.

| The finding of the court as to the amount for which the judgment was rendered is clearly supported by the evidence, and the judgment being warranted in point of law, the same will be affirmed.

Judgment affirmed.


text:
    Winona Paper Company v. W. O. Taylor Company.

      Assignment — Belay in Presenting Claim — Excuse—Order—Appeal— Bill of Exceptions.

    This court affirms an order of the County Court allowing a claim against an insolvent estate, what purports to be a bill of exceptions being substantially defective.
    [Opinion filed December 18, 1888.]
    Appeal from the County Court of Cook County; the Hon. ■Biohabd Pbendebgast, Judge, presiding.
    Messrs. Floweb, Bemy & Holstein and Haeeison Mcrsgbave, for appellant.
    Messrs. Moses & Uewman, for appellees.
   Gary, J.

It is an agreeable reflection in affirming the judgment in this case upon a technicality, that no injustice is done, and that the Merchants National Bank of Chicago, who are the parties beneficially interested in sustaining the action of the County Court, are in competition with the other creditors of -the appellees, upon the same footing as to equities.

The appellees made a voluntary assignment of their effects for the benefit of their creditors, and the estate Avas being administered in the County Court, under Chap. 72, B. S. 1872. The bank presented a claim Avhich Avas opposed by other creditors, upon the ground that it Avas not presented in time. The court held the excuse for delay sufficient and alloAved the claim, the justice of Avhich is not questioned. Whether the County Court did right or Avrong in excusing the delay, is a question this court is not called upon to decide, as no exception was taken in the County Court -by the appellants. What purports to be a bill of exceptions has a formal commencement, “ That on the hearing of the petition of the bank,” etc., and recites the testimony of a witness, the protest of the attorneys of the bank against any bill of exceptions being signed, and then folloAvs: “As the above matters do not appear on record this bill of exceptions is tendered, and it is prayed that the same may be signed,” etc. Who tenders, and avIio prays? There is no statement that the testimony recited was the Avhole evidence, or that anybody objected, much less excepted, to anything the court did.

The judgment is affirmed.

Judgment affirmed'.


text:
    City of Chicago v. John W. Enright et al.

      Licenses — Spirituous Liquors — Action by Municipal Corporation — Remedies — Statutory Limitations — Practice.

      1. Where one engaged in the sale of spirituous liquors fails to take out the required license, he does not become indebted to the city for the amount of the license fee.
    2. The limitation provided in T 875, Criminal Code, applies only to criminal prosecutions by indictment or otherwise. It has no application to a proceeding to collect a penalty.
    8. Where a penalty is imposed without direction as to the mode of procedure for its recovery, an action of debt is a proper remedy.
    4. An action of debt for a penalty for the violation of a municipal ordinance is purely a civil action, and may be brought within two years after the right accrues.
    5. In such an action, although the record contains an agreed statement of facts, this court is without jurisdiction to fix the amount of the judgment.
    [Opinion filed December 18, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tdxey, Judge, presiding.
    Appellant brought its action in the Circuit Court against appellee and filed its declaration as follows, viz.:
    “ First Count — And the said plaintiff, by H. Washburn, its attorney, comes and complains of John W. Enright and Edward F. Kelly, defendants, in its action of debt.
    “For that whereas the plaintiff is a municipal corporation of tlie State of Illinois, organized under an act entitled ‘ An act to provide for the incorporation of cities and villages,’ approved April 10, 1872.
    “That the city council of the city of Chicago did on tlie 1st day of July, 1885, pass a certain ordinance in words and figures as follows, viz.:
    Be it ordained by the city council of the city of Chicago:
    “ ‘-Section 1. Ho person, firm or corporation shall sell or offer for sale any spirituous or vinous liquors in quantities of one gallon or more at a time, within the city of Chicago without first having obtained a license therefor from tlie city of Chicago, under a penalty of not less than fifty and not more than two hundred dollars for each offense. But no distiller who has taken out a license as such and who sells only distilled spirits of his own production at the place of manufacture shall be required to pay the license herein prescribed on account of such sales.
    “ ‘ Sec. 2. All such licenses shall be issued in accordance with the general ordinances of the city concerning licenses, and for every such license there will be charged at the rate of two hundred and fifty dollars per annum.’
    “Which said ordinance was approved by the mayor of said city of Chicago, and was in full force and effect on the 1st day of July A. D. 1885.
    “ That said defendants are co-partners, doing business as Enright & Kelly, and are now and have been ever since Jnly 1, 1885, engaged in business within said city of Chicago, selling and offering for sale spirituous and vinous liquors in quantities of one gallon or more at a time without having or having had any license therefor from said city of Chicago.
    “ By reason whereof, and by force of the ordinance aforesaid, there became due and is still owing to said plaintiff by said defendants, the sum of four hundred and forty-seven and ninety-one one-hundredths dollars ($447.91), being the amount of the license fees from July 1, 1885, to May 1,1887.
    “Yet the said defendants, though often requested, did not and have not paid the plaintiff the said sum of money aforesaid, or any part thereof, but refuse so to do, to the damage of the plaintiff in the sum of one thousand dollars, wherefore it brings its suit, etc.
    “ And for that whereas the defendants have been since July 1, 1885, and up to April 30, 1886, selling and offering for sale within said city of Chicago spirituous and vinous liquors in quantities of one gallon or more at a time, without having had any license therefor from said city of Chicago, in violation of the said ordinance entitled, ‘An act concerning the licensing of wholesale liquor dealers,’ which said ordinance is set out in the first count of this declaration, whereby by force of said ordinance, an action has accrued to the plaintiff to demand of the said defendants the sum of two hundred dollars as a penalty for such unlawful sales and offers to sell by the said defendants.
    “Yet the defendants, though requested, have not paid to the plaintiff the last mentioned sum of money, or any part thereof, but refuse so to do, to the further damage of the plaintiff of one thousand dollars, and therefore it brings its suit,” etc.
    Appellee appeared and filed a demurrer to the first count in the declaration, and a plea of the statute of limitations of one year and six months to the second count. To this piea appellant demurred, and the matter was heard upon the said appellee’s demurrer to the first count, and on appellant’s demurrer to said plea, and appellee’s demurrer was sustained and appellant’s demurrer was overruled, and there was judgment for appellee.
    It was stipulated between the parties that the following ordinance was passed by the city council July 1, 1885, and was in force since its passage and at the time of the trial:
    “Section 1. ISTo person, firm or corporation shall sell or offer for sale, any spirituous or vinous liquors in quantities of one gallon or more at a time within the city of Chicago, without first having obtained a license therefor from the city of Chicago, under a penalty of not less than fifty nor more than two hundred dollars for each offense.
    “ But no distiller who has taken out a license as such, and who sells only distilled spirits of his own production at the place of manufacture, shall be required to pay the license herein prescribed, on the account of such sales.
    “Seo. 2. All such licenses shall be issued in accordance with the general ordinances of the city concerning licenses, and for every such .license there shall be charged at the rate of two hundred and fifty dollars per annum.”
    That the general ordinances referred to in the above ordi'nances are as follows:
    “ 1565. All- licenses shall be granted by the mayor from time to time, to such persons as he may deem proper residents of the city of Chicago.
    “1566. Each and every license authorized and required by this ordinance and granted by the mayor, shall be issued by the city clerk, on notice to him from the city collector that the license fee or tax has been paid and not otherwise.

      “ 1567. All licenses shall be subject to the ordinances and regulations which may be in force at the time of issuing thereof, or which may subsequently be made by the city council, and if any person so licensed shall violate any of the provisions thereof, he shall be liable to be proceeded against for any fine or penalty imposed thereby, and his license may be revoked in the discretion of the mayor.
    “1568. No license granted under this ordinance shall be assignable or transferable without permission of the mayor, nor shall any such license authorize any person to do business or act under it but the person named therein, except as is in this ordinance otherwise provided.
    “1569. No license shall be granted for a longer period than one year, and every license except saloon licenses shall expire on the last day of April next following. Every license shall be signed by the mayor and countersigned by the clerk under the corporate seal.
    “ 1570. In all cases where it is not otherwise expressly provided, the mayor shall have power to hear and grant application for licenses upon the terms specified by this ordinance, and all licenses shall be issued to such person or persons as shall comply in all respects with the provisions of this ordinance, and as the mayor in his discretion shall deem suitable and proper persons to be licensed.
    “1571. The city collector shall receipt for all moneys for any licenses that may be granted under the authority of said city upon any account whatever; his receipt shall be a dis. charge to the person to whom given, to the extent and purport thereof, but no person shall be deemed to be licensed in any ca¡e until the issuing of the license in due form as herein required.
    “1572. Whenever it shall appear from the license register kept by the clerk or the books of the collector, that any person holding any license or permit of any kind or privilege granted by the city, has failed to pay the amount due thereon, or other kind of penalty, license, fine, debt, or liability whatever, the clerk or collector, as the case may be, shall report the fact to the mayor, whose duty it shall be promptly to revoke said license, permit or privileges.

      “ 1573. Any person or persons to whom any license may have been issued under any ordinance of the city council, may, with the permission of the mayor, assign and transfer the same to any person or persons, and the person or persons to whom such license is assigned, or the assignee or assignees of such license, may,'with the permission of the mayor, surrender such license and have a new license issued for the unexpired term of the old license, authorizing the person or persons so surrendering such license to carry on the same business or occupation at such place as may be named in such new license; provided, that in all cases the party applying for such new license shall give a bond with sureties which shall conform as near as may be to the bond to which such surrendered license was issued.
    “1574. When any saloon license is issued after the first day of July, or other license is issued after the first day of May in any year, the same shall be issued to the person applying therefor upon his paying therefor the number of twelfth parts of the sum fixed for a yearly license equal to the number of months which will elapse between the date of the application for the license and the day when, under this article, said license is made to expire; provided, however, that in determining the price to be paid, the month in which the application is made shall be counted and included in the number of months to elapse, and provided further, that no person shall be entitled to the benefit of this section who shall be engaged in the business for which he applies for a license, at the time of his application.”
    It was also agreed by said parties, that said John W. En-right and Edward E. Kelley were doing business under the firm name of Enright & Kelley on the first day of July, 1885, as wholesale liquor dealers, within the said city of Chicago, and have continued as such up to the present time, and that, on said July 1, 1885, and ever since said time, said En-right and Kelley have sold, within the city of Chicago aforesaid, spirituous and vinous liquors in quantities of one gallon or more at a time without any license so to do from the city of Chicago, and that said Enright and Kelley have úever applied for, nor have asked of the city of Chicago any license for said period from July 1, 1885, to May 1, 1887, under the provisions of this ordinance, but on the contrary have refused so to do, notwithstanding that the city collector has made frequent and repeated demands upon them for said license fees for each of said years.
    Messrs. Hempstead Washburne, Clarence A. Knight and John W. Green, for appellant.
    The Supreme Court, in Dennehy v. City, 120 Ill. 627, settled the question as to the validity of the ordinance in question. Now, by this ordinance, a duty was imposed upon defendants to pay the amount of license fee fixed by this ordinance, The city has the undoubted right to prohibit altogether, or to classify liquor dealers as decided by the court in the Dennehy case. The power given the city is, “To license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquors, the license not to extend beyond the municipal year in which it shall be granted, and to determine the amount to be paid for such license.” The city having the right to prohibit or grant licenses, determines that it will grant, and in so doing determines the amount to be paid for such license. In this case it has said that the amount to be paid by every person sell-ling as a wholesale dealer shall be $250 per annum. When it so determined, it fixed the amount which every person engaging in that business should be liable to pay for that privilege or right.
    In the case of East St. Louis v. Trustees of Schools, 102 111. 491, the court say: “Where a municipal corporation has power to prohibit the doing of a thing, and also the power to license the same thing to be done, the license fee demanded by ordinance for the doing of such thing is not a tax, but is a price paid for the privilege of doing such thing; and so it was held in People v. Thurber, 13 Ill. 554; Ins. Co. v. Peoria, 29 Ill. 180; East St. Louis v. Wehrung, 46 Ill. 392; Ducat v Chicago, 48 Ill. 172; Walker v. Springfield, 94 Ill. 372. In People v. Thurber it is said of a like exaction, this is not a tax * * * but is a burden * * * for the right of exercising-a * * * privilege which the legislature would have the right to withhold or inhibit altogether.”
    So the city in this case fixed the price to be paid for the privilege of doing business as a wholesale dealer. The amount of license fee required in this case is from the persons and not from the property.
    It would seem from the cases cited that the ordinance in question imposes on appellees a duty to pay the amount of the license fee fixed, and having created the duty to pay under the law, then necessarily a right of action accrued to the city, and the law implies a promise to pay on the part of appellees.
    In County Comm’rs v. Duchett, 20 Md. 468, the court say: “ When a duty is imposed by law and no remedy prescribed, a right of action accrues as at common law, otherwise there would be a right without a remedy.”
    In Fuller v. Curtis, 2 Black, 461, the court say: “Where the case shows that it is the duty of the defendant ro pay, the law implies to him a promise to fulfill that obligation.”
    In Earle v. Coburn, 130 Mass. 596, it is said: ‘.‘There may be cases where the law will imply a promise to pay by a party who protests he will not pay, but those are cases in which the law creates a duty to perform that for which it implies a promise to pay, notwithstanding the party owing the duty absolutely refuses to enter into an obligation to perform it. The law promises in his stead and in his behalf.”
    In San Louis v. Hendricks, 71 Cal. 242, suit was to recover - §150, the amount of a license for selling liquors, and for damages and costs of suit; the court says: “The license tax sought. to be recovered in this action is not a penalty, but in the nature of a debt due from the defendant to the county, or, what is the same thing for present purposes, a duty devolved upon the defendant personally, which can be enforced precisely as though he had contracted with the county to pay such sum of money. People v. Seymour, 16 Cal. 332; Perry v. Washburn, 20 Cal. 351; Guy v. Washburn, 23 Cal. 116; City of Oakland v. Whipple, 39 Cal. 115.”
    The theory of all cases that may be found denying the right to bring an action for the recovery of the license fee is that when a penalty is fixed for the non-payment of the tax or license that penalty must be pursued. But our Supreme Court have long since denied this doctrine, and say that in case of a tax that it may be sued for in an action of debt, and the remedy by distress is merely cumulative. Ryan v. Gallatin County, 14 Ill. 78; Dunlap v. Gallatin County, 15 Ill. 7; People v. Stahl, 101 Ill. 346; Geneva v. Cole, 61 Ill. 397; Binkert v. Wabash Ry. Co., 98 Ill. 214.
    Bo counsel appeared for the appellees.
   Moran, J.

The first count of the declaration proceeds upon the assumption that appellees, having sold spirituous liquors in quantities of one gallon or more without having obtained the license required by the ordinance, became indebted to the city for the amount of the license fee. The consideration for a license is sought to be recovered while it appears from the allegations of said count that no license had in fact been taken out.

The count was clearly bad, and the demurrer to it was properly sustained.

“A person carrying on a business for which a license is required, can not be compelled to take out a license. If he neglect or refuse to do so, he may be subject to a criminal prosecution, or he may be held to have agreed to pay a specific penalty instead of the amount of the license tax; but he certainly owes nothing for a license until he has taken out a license.” Santa Cruz v. Santa Cruz R. R. Co., 56 Cal. 143.

The action of the court in overruling the demurrer to appellees’ plea presents a different question. The second count is for a penalty for violating the ordinance in the manner stated in the count. The plea is of the statute of limitations found in the Criminal Code, Sec. 375, which is as follows:

“All prosecutions, by indictment or otherwise, for misdemeanors or for any fine or forfeiture under a penal statute, shall be commenced within one year and six months from the time of committing the offense or incurring the fine or forfeiture, except as otherwise provided by law.”

The proceeding set out in said second count is not a prosecution by indictment or otherwise. The well understood legal signification of the word prosecution is a criminal proceeding, and as such it must in this State be in the name of the people. The limitation in the section above quoted applies to such criminal prosecutions by indictment or otherwise (as by information, when authorized) for any fine or forfeiture under a penal statute. It can have no application to a proceeding to collect a penalty which is not in any sense a criminal prosecution. The ordinance does not inflict a fine for its violation, but in terms imposes a penalty. Where penalties are imposed and no direction is given as to the mode of procedure for their recovery, an action of debt is a proper remedy. Webster v. The People, 14 Ill. 365; Vaughn v. Thompson, 15 Ill. 39; Town of Jacksonville v. Block, 36 Ill. 507.

An action of debt for a penalty for the violation of a municipal ordinance is purely a civil action. Town of Lewiston v. Proctor, 27 Ill. 414; Town of Havana v. Biggs, 58 Ill. 483; Webster v. The People, supra; Town of Partridge v. Snyder, 78 Ill. 519.

The second count is, then, an action of debt for a statutory penalty, and not a prosecution for a fine or forfeiture under a penal statute. It is, therefore, not governed by the limitation of eighteen months, fixed by Sec. 375 of the Criminal Code, but by See. 14 of the general statute of limitations, which allows two years after the right accrues within which to bring the action.

It follows that the court erred in overruling the demurrer to appellees’ plea to the second count of the declaration. All the questions of law in this record arise on the pleadings.

There is in the record an agreed statement of facts, upon which appellant is entitled to a judgment against appellees, but the amount of such judgment this court has no jurisdiction to fix on this record. That question must be left to the determination of the trial court.

The judgment is reversed and the case remanded to the Circuit Court.

Reversed and remanded.


author: Per Curiam.

text:
    Joseph Davis et al. v. Chicago Dock Company.

      Jurisdiction — Appeal—Freehold.
    This court dismisses, for want of jurisdiction, an appeal from an order of the County Court directing an assignee to execute and deliver-a quit claim deed of certain real property.
    [Opinion filed December 18, 1888.]
    Appeal from the County Court of Cook County; the Hon. Eiohabd Prerdeegast, Judge, presiding.
    Messrs. Holzheimer, Eliel & Kosenthal, for appellants.
    Mr. M. W. Fullee, for appellee.
   Per Curiam.

This is an appeal from an order of the County Court of Cook County, on petition of appellee, directing the assignee of Sherman & Marsh, insolvent debtors, to execute and deliver to appellee a quit claim deed for block 74 in the School Section Addition to Chicago.

On September 21, 1881, a judgment by default was entered in the Circuit Court of Cook County for one cent and costs in favor of Sherman & Marsh and against appellee. Execution was issued on said judgment September 22, 1881, and returned December 22, 1881, no part satisfied. An alias execution issued January 27, 1882, upon which no demand was made, but levy thereunder was made on said block 74.

The property was advertised and sold by the sheriff to the attorney of Sherman & Marsh, on February 27, 1882, for 817.25, that being the whole amount of the execution and costs. The certificate of sale was assigned by the purchaser to one of the plaintiffs, a sheriff’s deed was issued to such assignee, and whatever title (if any) passed tó him- was vested in him when the assignment for benefit of their creditors was made by Sherman & Marsh.

We have no doubt whatever that the order appealed from involves a freehold, and therefore this court has no jurisdiction of the appeal.

Appeal dismissed.


text:
    The Hamburgher Company v. Leopold Levy.

      Action to Recover for Services — Evidence—Contracts—Misnomer—Conflict of Evidence — Question for Jury.

    1. This court sustains the action of the court below in admitting in evidence certain contracts, it being plain from the entire record that they were with the defendant corporation, although they describe it by a different name than that by which it is sued.
    2. That the evidence is not only contradictory but unsatisfactory, this court being unable certainly to discover the process by which the jury reached their conclusion, does not justify an interference with the verdict.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the lion. Kibk Hawes, Judge, presiding.
    Mr. John M. Gabtside, for appellant.
    Ho counsel appeared for appellee.
   Per Curiam.

This was a suit by appellee to recover of appellant compensation for services rendered, the result being a verdict and judgment for appellee for $600. The appellee was employed as salesman by appellant in January, 1885, and remained in its service until April, 1886.

Tlie evidence shows that a written contract was made between the parties dated January 20, 1SS5, for the ensuing year, and on Januaiy 20, 1886, another written contract was made for the next year. The first contract was signed by the Hamburglier Bros. Co., and the second was signed by Levy only, but described appellant as Ilamburgher & Garrity Company. In both it was agreed that appellee should receive ten pier cent, on all his sales up to §10,000 in amount, and five per cent, on all sales over that amount. Although the written contract described appiellant by a name different from that by which it is sued, it is plain from the entire record that the contracts wrere with appiellant, that the services contracted for were rendered to it, and there being no issue as to misnomer, the point raised by appellant that the court admitted the instruments in evidence over its objection can not be considered.

It may be frankly admitted, not only that the evidence is contradictory, but that it is unsatisfactory, and that we can not certainly discover the pirocess by which the jury reached the conclusion that appellant was indebted to appellee in the sum of §600, but that does not bring the case within any rule which justifies interference with the verdict. The same criticism may be justly made in scores of cases which are brought to the attention of this court. The answer is that the composition of juries peculiarly fits them to unravel just such difficulties, and their findings in such cases are permitted to stand unless error has intervened.

The contract may have required Levy to continue to serve appellant until January 20, 1887, as a condition of his receiving any commission, but Levy testified that appellant consented to the severing of their relations, and by their verdict the jury have found that to be true.

Finding no error of law in the record, the judgment will have to be affirmed.

Judgment affirmed.


author: Gaby, J.

text:
    John J. Curran et al. v. Pullman Palace Car Company.

      Agency — Evidence—Declarations of Agent.

    The declarations o£ an agent are incompetent to charge his principal.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. E. Hanecy, for appellants.
    Mr. William Bubby, for appellee.
   Gaby, J.

The appellees sued the appellants for the wages of men, and the value of material furnished, as the appellees alleged, to the appellants, in making some changes in lumber dryers, erected upon the premises of appellees some years before, in which patent devices of appellants were used.

Whether the appellants were to pay appellees the wages of the men and the value of the material, was in controversy, and which is in the right of that question is left untouched here. But if the right is with the appellees, there is not a syllable of competent evidence in the case as to what, either of labor or material, was furnished, or of any values.

The only evidence relating to those matters is the testimony of Daniel Martin, who was superintendent of the carpenter department of the appellees, that he directed men and material to be furnished to the foreman of the appellants, and approved the bills made out in his department, charging the appellants; of the truth of which bills he had not at.the time of testifying, and never had any personal knowledge. The declarations of appellants’ foreman charging them with liability are not evidence. Bensley v. Brockway, ante, p. 410.

Without reference to many other matters assigned for error, which are not likely to happen again, the judgment must be reversed for the error of not granting a new trial.

Reversed and remanded.


author: Moban, J.

text:
    Hannah Horner et al. v Noel B. Boyden, for use, etc.

      Replevin — Sales—Fraud—Belt on Bond — Change of Action to Assumpsit — Effect of — Practice—Evidence.
    1. Where, in an action of debt on a replevin bond, the bond is stated in legal effect in the declaration, it is unnecessary to prove its execution, unless it has been denied by plea verified by affidavit.
    2. The change by the plaintiff of an action of replevin, brought to recover goods alleged to have been obtained by fraud, to an action of assumpsit, operates to affirm the sale as to all the goods in question, and the plaintiff cannot thereafter defend an action on the replevin bond on the ground of fraud in the purchase of the goods.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph Gary, Judge, presiding.
    Mr. Allan C. Story, for appellants.
    In this case no copy of the bond was filed with the declaration, and the statute has, therefore, no application, but the common law rule prevails, that upon a plea of nonest factum the plaintiff is put upon proof of the execution of the instrument sued on. 1 Chitty, 483; Gardner v. Gardner, 10 Johns, 47; Seymour v. Harvey, 8 Conn. 63; People v. Rowland, 5 Barb. 449; Kane v. Sanger, 14 Johns, 89; 2 Greenlf. on Ev., Sec. 279; Longley v. Norvall, 1 Scam. 389; Smentek v. Cornhauser, 17 Ill. App. 266.

      The court below erroneously received evidence, and allowed $50 as damages for attorney’s fees for appearing and dismissing replevin suit for want of narr. This evidence was also especially objected to, and exception preserved. TTo such damages are recoverable in this class of cases, although attorney’s fees may be recovered in this State on injunction and attachment bonds, the conditions of which, however, are different from the bond in suit. Park v. McDaniels, 37 Vt. 594; Earl v. Topper, 45 Vt. 287; Pacific Ins. Co. v. Conard, 1 Baldwin, 138.
    Messrs. Kbaus, Maybe & Stein, for appellee.
   Moban, J.

This is an action in debt on a replevin bond given to appellee as coroner in a suit brought by ajipellants against Hanchett, sheriff, and one Langbien, in which suit there was taken on the replevin writ from said sheriff, and delivered to appellants, certain goods and merchandise. The bond sued on was set forth in its legal effect in both counts of the declaration, but no copy of the bond was attached thereto.

The pleas were non esi faot'iim, property in appellants* and that the merits of the replevin action were never tried. There was a trial by the court without a jury and a judgment was rendered against appellant for $474. On this appeal it is urged that the court erred in allowing the bond sued on to go in evidence without proof of its execution.

The action was brought on the bond and the declaration stated said bond in legal effect and it was therefore unnecessary to prove its execution, that not having been denied by a plea verified by affidavit. ' Sec. 33, Practice Act; Reed v. Phillips, 4 Scam. 39; Delahay v. Clement, 2 Scam. 575; Gaddy v. McCleave, 59 Ill. 182.

It is further urged that the evidence does not support the findings of the court and it is contended that the evidence clearly shows that Langbien obtained the goods from appellants on credit, intending not to pay for them. We are inclined to believe that if the case was to turn on that point, we should find difficulty in concluding that the finding was so far without support as to authorize us to reverse the judgment, but in the view we take of this case, it is unnecessary for us to decide that question.

It appears from the record that after the dismissal of the replevin suit as to Ilanchett, and ,the awarding of a return as to him, the appellants took leave to change the form of the action as to Langbien, from replevin to assumpsit, and Langbien pleaded to the amended declaration, and by agreement the cause was submitted to the court for trial, and a judgment rendered against Langbien for the whole amount due from Langbien to appellants, including the bill for the goods alleged to have been fraudulently purchased. A few days afterward appellants amended the judgment so entered against Langbien by remitting therefrom the value of the goods which had been taken on the replevin writ. That is to say, appellants brought replevin for a certain lot of goods which they alleged had been obtained from them by fraud; they obtained on the writ a portion of the goods described; they then, without trying the replevin suit, changed the form of action and took judgment in assumpsit for such of the goods as they failed to retake by the replevin, and then, in an action on the replevin bond, they seek to justify for faking the goods by setting up that they were obtained by fraud. By changing the replevin action to assumpsit they elected to affirm the sale and not to rescind it. They could not affirm the sale as to a part of the goods, and rescind it as to another part, and when they affirmed it as to Langbien, they necessarily affirmed it as to all persons who claimed under him as creditors or purchasers. Benj. on Sales, Secs. 433, 442; Conihan v. Thompson, 111 Mass. 270; Hanchett v. Riverdale Dis. Co., 15 Ill. App. 57; Barhydt v. Clark, 12 Ill. App. 647, and cases there cited.

The affirmance of the contract of sale left appellants entirely without any defense to the replevin bond based on fraud in the purchase of the goods.

The evidence supports the finding as to the amount of damages assessed and, there being no error in the record, the judgment must be affirmed.

Judgment affirmed,

Gaby, L, took no part in the decision of this case.


author: Gabnett, P. J.

text:
    Felix Johannes v. Elizabeth Kielgast.

      Landlord and Tenant — Termination of Lease by Notice — Forcible Detainer — Action for Bent.

    1. Where a lease has been terminated by notice and an action of forcible detainer successfully prosecuted, the landlord can not maintain an action for installments of rent which would have become due had the lease continued in force.
    2. In the case presented, the covenant to pay rent did not continue in force after the lease was terminated by notice and pending the action of forcible detainer.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Martin C. Neuberger, for appellant.
    The judgment for possession establishes conclusively the termination of the lease and tenancy, and that during the time appellant occupied the premises after the expiration of the notice he was a trespasser and tort feasor. Appellee could only recover damages for the wrongful detention of the premises by appellant for that period in an action of tort, or one prescribed by statute, but not in an action founded solely upon the lease. Hinsdale v. White, 6 Hill, 507; Featherstonhaugh v. Bradshaw, 1 Wend. 134; Taylor’s Landlord and Tenant, 5th Ed., § 617.
    The rent that accrued prior to the termination of the lease, namely, the rent for the month of August, 1878, could only be recovered in this action; but no rent for the subsequent months. Hinsdale v. White, 6 Hill, 507.
    Messrs. Sidney C. Eastman and Geo. E. Swartz, for appellee.
    The notice did not per se terminate the lease. National Oilj Refining Co. v. Bush, 88 Pa. St. 341; Grove v. Barclay, 106 Pa. St. 164.
    The suit for possession must be regarded as terminating the tenancy, and we think the judgment for possession the decisive act which annulled the lease. The lease provides that in ease of default in any of its covenants and agreements, “ it shall and may be lawful for the said party of the first part, her heirs, executors, administrators, agent, attorney or assigns, at her election, to declare said term ended, and into the said premises, or any part thereof, either with or without process of law, to re-enter.”
    Mow, what is the just and proper interpretation of this covenant? The election is given, not only to declare the term ended, but to enter into possession of the premises as well. In determining the election of the landlord, and its effect, is it not highly proper to look at the whole covenant, and, if possible, give effect to all parts of it? Is the appellee to lose her rights and be deprived of her property because she chose rather to re-enter into the possession of the same by due process of law, than to commie a breach of the peace, and enter by force and arms? On the other hand, had not the appellant, the lessee, an undeniable right, a right as old as the common law, to insist upon a trial and ask that the proper tribunal •determine whether there be a default, and if a default exist, whether it be of such a character as to allow the lessor to exercise her election under the lease, terminate the tenancy and enter into possession of the property? Hartshorne v. Watson, 4 Bing. (N. C.) 178.
    Whether the lease was terminated, either upon the expiration of the notice, as by appellant alleged, or at some time subsequent to the expiration of the said notice, and prior to the judgment for possession, the appellant has expressly and in terms bound himself to be subject to all the conditions and provisions of the lease, in the event of the very things occurring, which have occurred, and which he now resists. In the next to the last paragraph of the lease commencing, “ It is expressly understood and agreed,” this appellant binds himself that “ if at any time said term shall be ended at such election of said party of the first part, her heirs, executors, administrators or assigns, as aforesaid, or in any other way, the said party of the second part, his executors, administrators and assigns do hereby covenant and agree to surrender and deliver up the said above described premises and property peaceably to said party of the first part, her heirs, executors, administrators and assigns, immediately upon the determination of the said term as aforesaid, and if he shall remain in possession of the same after such default, or after the termination of this lease in any of the ways above named, he shall be deemed guilty of a forcible detainer of said premises under the statute, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of Jaw, as above stated.” The lessee having thus bound himself that in such an emergency he would be subject to all the provisions of the lease, is now estopped from denying his liability. Pickett v. Bartlett, 3 N. Y. (L. Ed.) 405; 9 Cent. Rep. 831.
    The Supreme Court of this State in Clapp v. Noble, 84 Ill. 66, say: “ Although,, technically, the notice to quit may be regarded as terminating a tenancy, the fact still exists that the lessee remains in the occupancy, and does not choose to sever the relation. It is just and proper, then, that he should be held amenable to all the presumptions that can be raised in-such a case.”
   Gabnett, P. J.

This is an action of covenant brought by appellee against appellant, to recover certain installments of rent alleged to be due on a lease of premises known as No. 59 Archer Avenue, Chicago, for a term beginning November 1, 1877, and ending' November 1, 1882. The rent which appellant covenanted to pay, was $35 per month, and he did pay the same to the month of August, 1878. Having made default in payment of the rent for that month, appellee, about the 15th of September-, 1878, served upon him a written notice of termination of the lease in five days, if the rent was not paid within that time.

The rent remaining unpaid, the appellee, at the end of the five days, commenced suit in forcible detainer against appellant, which resulted in a judgment for possession in favor of appellee in February, 1879, the appellant having occupied until that date. This action of covenant was commenced March 5,1886, and judgment was rendered by the court below for the rent for the months of August, September, October, November and December, 1878, and January, 1879, which appellant now seeks to reverse, on the ground that an action on his covenant can not be maintained for any rent accruing after the termination of the lease. The right of enjoyment is the correlative of the duty to pay rent.

"Whenever the right of enjoyment is lawfully terminated, so that it can not he restored except by mutual consent, the covenant as to payment, ceases to be an obligation as to any installment, which, by the terms of the lease, would thereafter have become due. Authority in point is not wanting.

In Jones v. Carter, 15 M. & W. 718, the lessee’s covenant was for the payment of rent on the 25th of March and the 29tli of September of each year of the term. The installment due March 25, 1845, was paid, but on May 19, 1845, the lessor commenced ejectment against the lessee, for breach of covenant, there being a proviso in the lease that for any breach of covenant if should determine and be utterly void) and the lessor at liberty to re-enter. The action for rent was commenced in January, 1846, before the termination of the action of ejectment. The court, Parker, B., said: “Without inquiring whether an ejectment be a real action, the bringing of such would, accoi'ding to the authority of Lord Coke, be a determination of an election between two remedies. It seems to us that so distinct and unequivocal an act, must, independently of any technical reason, be a final determination of the landlord’s option; for, after such an act, by whicii the lessor treats the lessee as a trespasser, the lessee would know that he was no longer to consider himself as holding the lease, and bound to perform the covenants contained in it; and it would be- unjust to permit the landlord again to change his mind, and hold the tenant responsible for the breach of duty after that time. We are all, therefore, of opinion, that the lease was determined in May, 18-15, and consequently the defendant was not liable to pay the subsequent rent, or damages for any breach of covenant.”

In Oldershaw v. Holt, 12 Adol. & E. 590, where a like question was raised, the court held: “The re-entry must be considered as taking effect from the time of the demise relied on in the ejectment. From that period the defendant, while holding the premises, was a wrong-doer, and liable for mesne profits. The action should have been brought for those and not for rent.”

t The same rule is held in Stuyvesant v. Davis, 9 Paige Ch. 428. So, in the case at bar, the action should have been for mesne profits or for use and occupation. Hartshorne v. Watson, 4 Bing. (N. C.) 178, relied on by appellee, is not in con-fl-ict with the foregoing cases.

In the lease sued on there was a separate group of provisions to the effect that if any of the rent should be in arrears, or there should be any default in any of the covenants on the part of the lessee, it should be lawful for the lessor to declare the term ended and make entry with or without process of law and expel the lessee, using such force as might be necessary, and to distrain for any rent that might be due upon any property of the lessee, whether .exempt from execution and distress by law or not, the lessee agreeing to waive his right to exemption; that it was the intention thereby to give the lessor a valid and first lien on all of the lessee’s property, as security for the rent; and that in case of the ending of said term by election of the lessor, or otherwise, the lessee agreed to surrender the premises to the lessor peaceably, immediately upon such termination, and that if he should remain in possession of the same after such default, or after such teimination of the lease, he should be deemed guilty of a foi-cible detainer and should “be subject to all the conditions and provisions above named.”

For appellee it is contended that the clause making appellant subject to all the conditions and provisions above named, keeps the covenants in the lease alive, so that the lessee, although deprived of his estate, is still liable upon covenants of the lease for any breach thereof happening after the termination of the lease by the landlord’s election.

If that is the true interpretation, the lessee would be liable for the rent of the entire term, even if the lessor should have ended it in the second month for failure to pay the first month’s rent, and that would be the case, if the lessee had only held possession one day after the termination of his estate. By insertion in the lease of words which the parties themselves did not see fit to use, we can make the instrument say that the lessee shall be liable on his covenants for all rents that may accrue while he shall so unlawfully occupy. But confining our attention to the words actually used by the parties, we must say that with reference to liability on the covenant for rent, they mean (1) that the tenant, in case he wrongfully holds over after the term is ended by election of the landlord, no matter when the election is made or for how short a time the holding over continues, shall be liable to his covenants for all the rent to the end of the term specified in the lease, or (2), that he is not liable on his covenants for any rent that accrues after the landlord’s election.

We think this clause in the lease, upon which appellee relies, has no reference whatever to the payment of rent or the observance of the lessee’s covenants after the termination of the lease, but merely to the condition of things presented to the minds of the parties by the separate group of provisions above set forth, to wit, the liability of the tenant to expulsion, forcible or otherwise, and to distress upon his property, his waiver of the right of exemption, etc.

The judgment of the court below is reversed and the cause remanded.

Reversed and remanded»

Gaby, J., took no part in the decision of this case.


author: Gary, 0.

text:
    John J. Curran, impl’d, etc., v. Bradner, Smith & Company et al.

      Corporations — Liability of Stockholders — Practice—Sec. 25, Act of1872-

    1. Creditors of corporations organized under or subject to the provisions of the act of 1872, pursuing their remedies against the holders of the stock wholly or partially unpaid, can do so, except so far as Sec. 8 applies, only in the manner provided in Sec. 25 of that act.
    2 To enforce such liability the bill must be by or on behalf of all the creditors against all the stockholders.
    3. This court reverses a decree which charges a single stockholder and makes no finding as to whether the assets of the corporation were exhausted.
    [Opinion filed December 18, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Oliver. H. Horton, Judge, presiding.
    Mr. Elbridge Haneoy, for appellant.
    Mr. John S. Stevens, for Bradner, Smith & Co., appellee.
    Messrs. McClellan & Cummins, for Parsons & Hicks, appellees.
   Gary, 0.

This was a bill in chancery filed by Bradner, Smith & Co., a corporation, against the Mail Publishing Company, also alleged to be a corporation, and appellant. Originally there was another defendant, not a stockholder, but as nothing in the case is affected by that circumstance, it is enough to say that as to that defendant, the bill was voluntarily dismissed. The appellant answered the bill. Afterward the appellees, Parsons and Hicks, partners as W. H. Parsons & Co., in a petition entitled in the suit then pending, prayed that they might be made parties complainant to the bill. The bill alleged the recovery of judgment by Bradner» Smith & Co., against the Mail Publishing Company, an execution thereon returned unsatisfied, and that appellant was a stockholder, and his shares not paid for. The petition alleged the recovery of judgment by Parsons and Hicks, an execution, returned unsatisfied, and adopted the allegations of the bill. Ho rule to answer, nor any answer in fact, to the petition, was made upon, or by anybody. The Mail Publishing Company never answered anything, nor was anything, bill or petition, taken as confessed against them. There is no finding whether they were solvent or insolvent, or had any assets.

The record shows that the statutory proceedings for organizing the company were taken in February and March, 1884, resulting in the subscription for the whole capital stock of §30,000, in shares of §100 each.

The subscribers were E. E. Dillingham, Jr., 25 shares; E. C. Stevens, 50 shares; appellant, 75 shares, and E. E. McEea 150 shares. And on the 24th day of March, 1884, the subscribers for the shares met and elected a board of five directors. On the 29 th of the same month the proper record in the office of the recorder was made. So far as the record shows, this was the last formal corporate act. Ho certificates of shares were issued, no executive officers elected, no by-laws adopted, no stock or other corporation books opened or procured.

Appellants, Dillingham and Stevens, with machinery furnished by appellant, and some money by the others, seem to have published a newspaper for a while, when appellant sold out to the other two for §5,500 cash. The parties themselves seem to have forgotten or disregarded the steps they had taken to form a corporation, and treated the machinery of the appellant as the subject of the sale. Thereafter appellant gave no further attention to the business.

It is the doctrine of this court, and, as it is understood here, the doctrine of the Supreme Court, that creditors of corporations organized under, or subject to the provisions of the act of 1872, pursuing their remedy against the holders of stock wholly or partially unpaid, can do so (except so far as Sec. 8 applies, which has no reference to the mode of proceeding adopted in this case), only in the manner provided in Sec. 25 of that act. Robertson v. Noeninger, 20 Ill. App. 227; Richardson v. Akin, 87 Ill. 138; Low v. Buchanan, 94 Ill. 76; Harper v. Union Mfg. Co., 100 Ill. 225; Patterson v. Lynde, 112 Ill. 196. See also, Buchanan v. Bartow Iron Co., 3 Ill. App. 191.

Under that section “a stockholder may be required to pay his pro rata share” of the debts of the corporation “to the extent of the unpaid portion of his stock, after exhausting the assets of such corporation.”

Sec. 8 declares the liability of the stockholder “shall be for the debts of the corporation to the extent of the amount that may be unpaid upon the stock held by him, to be collected in the manner herein provided.” The word “herein” refers to the whole chapter, and not merely to that section.

It is true that none of the cases cited support in express terms the whole proposition, that to enforce the liability of the stockholders (except under the provisions of Sec. 8 by garnishment), a bill must be by, or on behalf of, all the creditors and against all the stockholders, but that proposition is a necessary result from them. The case in the 87th holds (overlooking the remedy by garnishment), the “remedy is limited to courts of equity.” That in the 94th, that the liability to the creditors under Sec. 16, is “a trust fund to be collected and divided pro rata among all the creditors.” In the' 100th the bill to enforce the liability of stockholders under Sec. 9 of the act of 1857 “to the creditors” was dismissed partly because it was “brought but by one creditor, and in his own behalf alone,” while the relief “could only be had upon a bill brought by, or at least in behalf of all the creditors of the corporation ;” and in the 112th, in discussing the liability of a stockholder in an Oregon corporation, under the words, “shall be liable for the indebtedness of the corporation.” it'is said, “a decree that one stockholder should pay, or that one creditor should be paid, must be partial and incomplete, and might be grossly inequitable and unjust.” The phrases “for the debts” (Sec 8), “to the creditors,” (eases in 94th and 100th), and “for the indebtedness” (the Oregon case, 112-tli), express the same idea, and impose the same burden.

The bill in this case was in behalf of all creditors, but against a single stockholder.

Sec. 49 of the Chancery Act, has no application to cases of this character. If it had (a notion that seems to have occurred to nobody), the case in the 100th should have been decided the other way, for the only objections there were that the complainant did not file his bill on behalf of all the creditors, and make the assignee of the corporation a defendant. In enforcing the liability of stockholders, the rule that “equality is equity,” both as to creditors and stockholders, however illusory it may prove in practice, is firmly established by authority.

As the decree in this case makes no finding as to whether the assets of the corporation were exhausted, and charges the appellant alone, not bringing in the other stockholders, it is directly contrary to the decision of this court in 20 111. App. 227, and must be reversed.

There are very serious questions relating to the organization of the corporation — whether the parties printing the paper were doing so as the agents of a corporate body, or were liable to the world as partners; if the latter, who were liable — that are left untouched, and as to which no inference is to be drawn from this opinion.

Reversed and remanded.


text:
    John Wetenkamp et al. v. William Billigh et al.

      Mechanic's Lien — Notice—Signature—Joint Contract — Parol Evidence.

    1. The notice required by Sec. 30, Chap. 82, R. S„ should be dated and signed by the person claiming a mechanic's lien. Without signature the notice is fatally defective.

      2. In the case presented, it is held: That the contract for thé erection of the building constituted the mason and carpenter joint contractors; that parol evidence is inadmissible to show a different intention; and that a paper subsequently signed by the owner only, can not be regarded as a contract.
    [Opinion filed December 18, 1888.]
    Appeal from tlie Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. Harry Rubens and Robins S. Mott, for appellants.
    Messrs. Meyer & Collman, for appellee.
   Gary, J.

About the 1st of Hovember, 1885, the appellants, intending to build, received from Billigh this proposition:

“W. Billigh, 3006 Emerald Avenue, Mason, Builder and Contractor, of Chicago, Ill.
“I propose to furnish the building according to plans and specifications for the sum of seventy-four hundred and fifty dollars (§7,450).
“W. Billigh.”

On the 4th of the same month this contract was made:

“ This agreement made this fourth day of Movember A. D. 1885, by and between William Billigh and Henry Beck, parties of the first part, and Billigh & Beck, party of the second part, witnessetli, Wetenkamp Bros.
“That the parties of the first part, said William Billigh and H. Beck will build a house for the party of the second part --- for the sum of §7,450 (seven thousand four hundred and fifty dollars) according to the plan and specifications, the payments to be made in the following manner:
“ First payment to take place when the basement is put up in the sum of one thousand dollars ($1,000).
“ Second payment when the first story is up, in the sum of one thousand dollars ($1,000).
“And the balance, eleven hundred dollars ($1,100), when the mason work is all finished.
“ Carpenter’s first payment in the sum of $400 (four him dred dollars) has to be made when second joist is up, the second payment in the sum of one thousand dollars ($1,000) as soon as the roof is on, and the third payment in the sum of one thousand dollars ($1,000) when the first coat of plaster is on and all the grading done.
“ All the balance of the contract money has to be paid when the house is all completed and the keys turned over to the party of the second part.
“ Chicago, November 4, 1885.
“ 300 $ tree bundert dollars has to be paid after tirty days after the building is furnicht on cairpender work.
“ J. Wm. Wetenkamp Bkos.
“ W. Billig,
“H. Beck,
Contractors.”

Billigh was the mason and Beck the carpenter, and divided the work between themselves at the prices stated in the contract. Some three or four weeks afterward, the work, both mason and carpenter, having been begun, Beck brought to appellants, and they signed, this paper;

“ This Agreement made this 4th day of November, 1858» by and between Henry Beck, party of the first part, and Wetenkamp Bro., party of the second part, Witnesseth: That the parties of the first part, said Henry Beck, will do the carpenter work and all other work to furnish the house and turn the key to the owner for the sum of fourty tree hundred and fifty dollars 4350$ according to the plans and spesifications first payment to be made when second joist is up 400.00$, secont paimend is the sum of 1000.00$ as soon the roof is on and the third paimand in sum of 1000.00$ when the first coat of paster and all the glasing is done. All the balance of the contract money has to be paid when the house is all completed and the keys turned over to the party of the second part.
Three hundret dollars has to be paid 30 days after the building is furniched on carpenter work.
“William Wetenkamp, Joh. Wetenkamp.”

The ’58 in the date is a Teutonic transposition of ’S5. The mason work was done, but the carpenter not, and it cost the appellants more than the original contract price to finish the building.

Welin, a sub-contractor under Beck, filed a petition for a mechanic’s lien on the building. The South Halsted Street Iron Works, as sub-contractors, also, under Beck, intervened and claimed a lien. Hlinka, as sub-contractor under Billigh, did the same.

Billigh and Beck answered, and claimed that although they were originally joint contractors for the whole building, subsequently the matter was changed to a separate contract by Billigh for thé mason work, and by Beck for the carpenter work. No further statement of the pleadings is necessary to a decision of the case.

There was a decree in favor of Billigh, of Hlinka, and of the Iron Works, but all other claims for liens were dismissed. Whether the first two shall be reversed depends upon whether Billigh is to be treated as a contractor with Beck for the whole building, in which case the building, not having been completed by the contractors, and having cost the owners more than the contract price to finish, neither the original contractors or sub-contractors under either of them are entitled to any lien, except under special circumstances as to sub-contractors? that do not exist as to Hlinka, and which will be discussed in considering the claim of the Iron Works.

It is not denied that the original paper, dated November 4, 1885, notwithstanding the jumble that is made, is a joint contract by Billigh and Beck with the appellants. The court is to take it as the language, used under the circumstances by which the parties were surrounded, means. Bishop on Cont. Sec. 365, et seq.; Buckner v. Hamilton, 16 Ill. 487.

But the appellee, Billigh, insists that the parties themselves did not mean what the language they used means, and that their conversation at the time, and subsequent conduct, shows that they all regarded Billigh as the mason and Beck as the carpenter contractor, not respectively responsible each for the other’s part of the work. But the rule that written contracts are not to be varied by parol evidence, is so familiar that it would be affectation to cite authorities in its support.

The paper last set out in the opinion is signed only by the appellants. It is not, of itself, a contract. Waggeman v. Bracken, 52 Ill. 468. From the parol evidence there is some difficulty in arriving at any satisfactory conclusion as to why Beck wanted it. There were no negotiations that led to it, nor was any new paper made between Billigh and the appellants. The most plausible reason that appears for the making of it is that Beck considered himself to be a contractor only for the carpenter work, and wanted something in his own hands, the original being in the hands of Billigh. But in whatever aspect that paper is viewed, it can not be considered as substituting separate contracts for the separate parts of the work for a joint contract for the whole. Neither Billigh, as original contractor, nor Hlinlca, as sub-contractor under him, are, therefore, entitled to any relief from the appellants.

The South Halsted Street Iron Works claim that they complied with the various provisions of Chap. 82 concerning liens, and that after they served a notice the appellants paid more money to Beck than was required to pay them. The appellants deny the service of any notice.

Upon the conflicting evidence as to the service of the notice the decree would not be disturbed. The form of notice given in Sec. 30 contemplates that it shall be dated and signed by whoever is to claim the lien. The witness who testifies to the service of the notice says that lie does not think it was dated, and does not know how it was signed, as the same establishment does business both under the name of the South Halsted Street Iron Works and Yanderkloot & Son. The Iron Works professes, as the name not being the name of an individual imports (U. S. Ex. v. Bedbury, 34 Ill. 459), to be a corporation, and their answer makes an exhibit of a supposed copy (none in fact being kept) of a notice under the corporate seal, signed by the secretary. The want of a date may, perhaps, be overlooked, as rights accrue from the date of service and not from any date on the notice, but, without a signature, the owner has no notice of who claims the lien. The connection between the claimant and the lien must appear on the notice, as the owner has nothing bat the notice for his guide.

The decree in favor of Billigh, of Hlinka, and of the South Halsted Street Iron Works must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Judge Garnett, having tried this case in the Superior Court, takes no part in this decision.


author: Garnett, P. J.

text:
    The Germania Fire Insurance Company of New York v. Emil Klewer.

      Fire Insurance — Other Insurance— Vacancy — Waiver—Agency—Evidence — Instructions.
    1. Where the agent of an insurance company knew that a house was vacant when it was insured, the company can not claim a forfeiture under the clause providing that the. policy should be void in case of vacancy.
    2. An insurance policy providing against other insurance is not affected by a former policy which has become void by reason of the vacancy of the premises.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgbld, Judge, presiding.
    On August 20, 1882, appellee procured from the Agricultural Insurance Company a policy of insurance for three years, insuring him against loss or damage by fire to the extent of $500 on his frame house at Norwood Park, Illinois, and $500 on his furniture therein, such policy containing a clause prohibiting other insurance, valid or invalid. Dunlap & Swift had, prior to that time, sold the house and lot to appellee and received from him a mortgage or trust deed thereon to secure a part of the purchase money.
    On May 19, 1883, a policy for §1,000, was issued by the Hartford Fire Insurance Company to appellee, on the application of Dunlap & Swift, insuring him for three years against loss or damage by fire on the house, a clause in said policy declaring the same void in case of other insurance, or the vacancy of the house for ten days without written consent indorsed on the policy. This policy7 was delivered to Dunlap & Swift and no part of the amount named therein has ever been paid to appellee.
    The premium for the latter policy was paid to Dunlap & Swift by appellee, he, at that time, authorizing them to procure the policy on their interest, as mortgagees, in the property. He never saw the policy, nor was he informed that it covered his interest, or designated him as the insured party, until after the building was burned.
    On August 22, 1885, appellant issued its policy insuring appellee against loss or damage by fire for three years to the extent of §500 on said house and §500 on the furniture, providing therein that it should be void in case of other insurance. From August 20, 1882, until the-latter part of September, 1885, the house was occupied as a dwelling by appellee, but he vacated the same some time in the last named month, with no intent of returning, and the same remained vacant from that date until destroyed by fire. On October 16, 1885, appellee procured the cancellation of the policy dated August 22, 1885, and appellant at the same time issued to appellee another policy for §1,000 on the house alone, for a term commencing October 16, 1885, and ending August 22, 1888, providing therein that the policy should be void in case of other insurance or vacancy of the house.
    When appellant’s last policy was issued, its agent was informed by appellee that the house was vacant, but no consent was given by any of the companies by indorsement on any of the policies, to other insurance or vacancy of the! house. The premises were about wholly destroyed by fire on November 15, 1885, and this suit was brought by appellee on the policy dated October 16, 1888.
    The defense was (1) other insurance, (2) vacancy, (3) the alleged burning of the building by plaintiff.
    There was a verdict and judgment for appellee from which this appeal is taken.
    Messrs. Harry Rubens and Robins S. Mott, for appellant.
    The policy of insurance issued by the Hartford Insurance Company was invalid during the existence of the prior policy in the Agricultural Company, but the Agricultural policy remained valid. Jackson v. Mass. Mutual Fire Ins. Co., 23 Pick. 418; Clark v. New England Mutual Fire Ins. Co., 6 Cush. 342; Hardy v. Union Mutual Fire Ins. Co., 4 Allen, 217; Gale v. Belknap County Ins. Co., 41 N. H. 170; Gee v. Cheshire County Mutual Fire Ins. Co., 55 N. H. 65.
    Hpon the expiration of the period covered by the Agricultural policy, to wit, August 20, 1885, the Hartford policy attached and was valid insurance from that date. N. E. Fire & M. Ins. Co. v. Schettler, 38 Ill. 166; Obermeyer v. Globe Mut. Ins. Co., 43 Mo. 573.
    For able reviews of this question and the authorities, see Hubbard & Spencer v The Hartford F. Ins. Co., 33 Iowa, 326; Gee v. Cheshire Mut. Fire Ins. Co., 55 N. H. 65 ; Sutherland v. Old Dominion Ins., 31 Va. 176. See also, Knight v. Eureka Ins. Co., 26 Ohio St 664; Stacey v. Franklin F. Ins. Co., 2 Watts & S. 506; Philbrook v. N. E. Mut. F. Ins. Co., 37 Me. 137, Schenck v. Mercer Mut. F. Ins. Co., 4 Zabr. (N. J) 447; Rising Sun Ins. Co. v. Slaughter, 20 Ind. 520; Thomas et al. v. Builders M. F. Ins. Co., 119 Mass. 121.
    The first policy is not affected by a mere futile attempt to procure other insurance.
    It is admitted that the premises were vacant from September, 1885, until the fire in FTovember following; this increased the risk and was contrary to the terms of the policy, there being no written consent of the company thereto, and appellee can not recover. American Ins. Co. v. Padfield, 78 Ill. 167; Phoenix Ins. Co. v. Tucker, 92 Ill. 64; Agricultural Ins. Co. v. Frith, 21 Ill. App. 593; American Ins. Co. v. Foster, 92 Ill. 334.

      And even though the agent of the company knew of such vacancy at the time of the issuance of the policy, yet the policy did not attach, but if the premises had afterward become occupied it would have been in force. Ins. Co. of N. Am. v. Garland, 108 Ill. 220.
    Mr. H. W. Dikeman, for appellee.
   Garnett, P. J.

Appellant claims that the Hartford, policy was not a valid insurance until the expiration of the term of the first policy issued by the Agricultural Insurance Company, that is, on the 21st day of August, 1885, but that it became operative on the last named date, and so remained until after the issue of the policy sued on. If that be so, we are not informed how the liability of the Hartford Company was con-tinned more than ten days after the house became vacant.

Its polic)' provided that the insurance should be void if the house became vacant and so remained for ten days, and the proof is uncontradicted that the house was vacant and unoccupied for more than ten days before the policy sued on was issued.

That being the fact there was no other insurance on the premises on October 16, 1885. American Ins. Co. v. Padfield, 78 Ill. 167; .Phoenix Ins. Co. v. Tucker, 92 Ill. 64; American, Ins. Co. v. Foster, 92 Ill. 334.

The vacancy of the building, however, is no defense for appellant. When the policy sued on was issued, the house was unoccupied, and had been in that condition for several weeks. Of this appellant’s agent had full notice when the policy in question was issued. Ho objection was then made to the vacancy, nor did appellee promise to have the house occupied. The injustice of permitting appellant to now deny its liability on that ground is apparent. To deliver a policy with full knowledge of the facts upon which its validity may be disputed, and then to insist upon these facts as ground of avoidance, is to attempt a fraud. This the courts will neither aid nor presume, but prefer to find there was an intent to waive the known ground of avoidance. May on Insurance 497. A review of the evidence, for the purpose of refuting the proposition that the appellee burned the building, would not be, under existing circumstances, a suitable employment of the time of this court. It is sufficient to say that the question was fairly submitted to the jury, and we think their finding for appellee is supported by the evidence; and it meets with our approval.

There was no error in the instructions given for the plain iff, or in the modification of those requested by the defendant.

Ao wrong has been suffered by appellant, nor is there, in the record any technical departure from the approved rules. The judgment is affirmed.

Judgment affirmed.