text:
    John Whitsitt v. Trustees of Preëmption Presbyterian Church.

      Filed at Ottawa May 19, 1884.

    l. Consideration—for agreement to convey a lot for church purposes. A promise or agreeme3it by the owner of land that if a building shoffid be erected thereon for religious worship, he would, as soon as a legal organization of the church could be effected, convey such church and the lot of land on which it was built, and the church is so erected with moneys raised on subscriptions and donations, and a religious body organized and incorporated, is not a mere naked promise, but is supported by a sufficient consideration.
    2. Statute of Frauds—parol agreement to convey a lot for church purposes—what will talce the case out of the statute. In pursuance of a verbal agreement of the owner of a lot of ground, to convey the same when a building should be erected thereon, and dedicated to religious worship, and the society incorporated, a subscription was raised, and the money so procured was expended in the erection of the building. It was held, that such expenditure was tantamount to the payment of the consideration, which, in connection with the taking of possession and making improvements, took the case out of the Statute of Frauds.
    3. Possession—of acts indicating m whom is the possession of property used for church purposes. A church building was erected upon a lot of ground on the verbal promise of the owner of the lot to convey the same to the church authorities on a certain condition. A religious society was formed, who used the premises for religious services, and for Sunday schools. The keys of the church were retained by the person so holding the legal title, and his son, the former making repairs on the building at his own expense, fencing off the church lot from his own ground at his own expense, and paying the taxes on the church lot, which was taxed to him with the other land he owned adjoining. It appeared that the owner, during all this time, was a ruling elder in the church, and his son was janitor: Held, that the retaining of the keys might be referred to the official capacity of the owner of the lot and his son, and that these facts were not sufficient to show possession in him, and that such acts were not inconsistent with the full possession and enjoyment of the use, by the society, of the church building.
    4. Subscriptions—when binding. Mutual subscriptions for a common object, where money has been expended in the accomplishment of that object, are binding, and such a subscription is a valid contract.
    5. Same—made in anticipation of an incorporation. Where subscriptions have been made in anticipation of the formation of a corporation, and the corporation is afterward formed, payment of such subscriptions is enforceable in the name of the corporate body.
    6. Same—payment in addition to amount subscribed—treated as a further subscription. A person, for the purpose of aiding in the erection of a building for religious worship, and to form a church society at a certain place, prepared a subscription paper for the purpose of obtaining the necessary moneys, payable to himself, in which he subscribed $1000. He collected the subscriptions, and built the church mainly from such subscriptions, he putting in additional means of his own to complete the same and for repairs afterward. He stated afterward, to the church officials, the cost of the church, and that it was all paid for. It was held, that what he expended in building and repairing the church, in addition to his formal subscription, should be regarded as a gratuity, as much as the $1000 which he had subscribed.
    7. Bebigious society—parties—to enforce contracts. The trustees of an incorporated church, as the representatives of all the members of a church, may, in the corporate name, enforce agreements made for the use and benefit of the society before its legal organization. On a bill to specifically enforce such an agreement, it is immaterial with whom the agreement was made, and in that regard the fact need not be proved as alleged; and it is not necessary to state the names of such persons, as the agreement is enforceable in the corporate name.
    8. Laches—as a bar to equitable relief. Laches is not available as a defence to a bill for the specific performance'of an agreement to convey land, where the complainant has been in the continued possession of the premises.

      Appeal from the Circuit Court of Mercer county; the Hon. Geo. W. Pleasants, Judge, presiding.
    Mr. John C. Pepper, for the appellant;
    A verbal promise to make a gift is utterly void. To this rule there are no exceptions. Pope v. Dodson, 58 Ill. 360.
    So long as such promise is unfulfilled there is a locus penitentia, and the promised donee has no right of action. Hoig et al. v. Adrian College et al. 83 Ill. 267.
    The alleged promise stands upon the same footing as a verbal sale of lands, and is within the Statute of Frauds. To enforce it the complainants must disclose facts taking the case Out of the statute. Walton v. Walton, 70 Ill. 142; Wadhams v. Gay, 73 id. 415; Cronk et al. v. Trumble, 66 id. 428; Taylor v. Staples, 6 Am. Rep. 556; Fry on Specific Per. 64; Browne on the Statute of Frauds, par. 472-476; McClellan v. Kellogg, 17 Ill. 498.
    In order to take a parol gift or parol sale of lands out of the Statute of Frauds, the person seeking its enforcement must perform all his part of the contract. Something must be done by the donee. Browne on Statute of Frauds, sec. 497.
    The act or acts of performance must be done by the complainant. Ibid. sec. 453.
    The donee in possession must have made some sacrifices. Ibid. 488, 490.
    The acts of performance must have been done in pursuance of the promise, contract or gift, and in execution and performance thereof. Ibid. 454, 457; Fry on Specific Per. 384; Cronk et al. v. Trumble, 66 Ill. 428.
    Messrs. Bassett & Wharton, for the appellees:
    Whitsitt, by taking a subscription to himself to build a church, and collecting the same, took upon himself a written trust, by the subscription paper, to use the funds for the common benefit of the subscribers. Cross v. Pinckneyville

      Mill Co. 17 Ill. 54; T. and P. R. R. Co. v. McNeely, 21 id. 71; Snell v. Trustees M. E. Church, 58 id. 290; Willard v. Trustees M. E. Church, 66 id. 55; Johnston v. Ewing University, 35 id. 518.
    In 1874 trustees were elected, and the present trustees were elected in June, 1880. They represent the interests of all the church members as to church property, and succeed to all the rights of the former members of the church. Ferraria v. Vasconcellos, 31 Ill. 54; Griswold v. Trustees, 26 id. 41; Fry on Specific Per. sec. 141.
    While the law requires that a contract must be clearly proved to take a case out of the Statute of Frauds, still, an implied contract may be sufficient. Fry on Specific Per. secs. 223-228; Addison on Contracts, secs. 30, 1399, 1401; Chambers v. Rowe, 36 Ill. 171; Downing v. Wright, 51 id. 363; Schwarz v. Schwarz, 26 id. 81.
    A contract need only be substantially proved as alleged. Ramsey v. Liston, 25 Ill. 114.
    The consideration was sufficient. Kurtz v. Hibner, 55 id. 514; Stone v. Great Western Oil Co. 41 id. 86; Warren v. Warren, 105 id. 568; Price v. School Directors, 58 id. 452.
    Under the relations of John Whitsitt in the church, the society, church or organization had all the possession that was necessary and consistent with the circumstances. Warren v. Warren, 105 Ill. 568; Brooks v. Bruyn, 24 id. 372; Hubbard v. Kiddo, 87 id. 578.

      Laches is set up in the answer, but it is not available in such a case as this, where the complainants were in possession. Mills v. Lockwood, 42 Ill. 118; Wilson v. Byers, 77 id. 76.
   Mr. Chief Justice Sheldon

delivered the opinion of. the Court:

The hill in this case, for a specific performance, sets out, substantially, that William Hammond and four other named persons are “trustees of the Preemption Presbyterian Church; ” that on or about June 2, 1866, William Hammond and others, being desirous of erecting a Presbyterian church building and organizing a Presbyterian church or society, entered into a-verbal agreement with John Whitsitt to erect a church building in the town of Preemption, in Mercer county, for such purpose, selecting as a site certain described land owned by Whitsitt, by which agreement Whitsitt promised to convey the lot of land to any ecclesiastical or corporate body of Presbyterians, for a place of public worship, so soon as they should be able to organize such society or corporation, provided they should erect a suitable house of public worship on the lot of ground; that Hammond and his associates proceeded to erect a building for public worship on the land; that the church building was dedicated in May, 1868, and that at the dedication Whitsitt repeated his promise to Hammond and the congregation or society, and the elders and deacons thereof, to convey the lot on which the building was erected, to the church or society, as soon as there was a church organization and any proper body to whom to convey, if the church should be dedicated as a Presbyterian church; that in November, 1868, there was effected an organization or worshiping congregation of the Presbyterian church at Preemption, which has ever since continued; that from the time of its dedication the church was occupied by the society as a house of public worship, until March 1, 1881; that on the 2d day of June, 1880, the society effected a legal organization, and the persons above named were elected trustees; that on March 1, 1881, Whitsitt closed the doors of the church, and refused to let the society use the same as a place of public worship. The bill prays for a conveyance of the lot of ground upon which the church stands. The answer sets up that the church building was built by Whitsitt himself, and almost exclusively with his own money; that he purposed and intended, if the people in that neighborhood formed and organized a church, and subscribed funds enough, with the amount of funds he was willing to subscribe in the first instance, to erect a church building; that he would deed the land to the church, when legally organized as a corporate body; that he suffered meetings to be held in the building, but has kept the possession of it himself, and owns it; that he never promised to any person or body that he would give and deed the church and land, and that if he did so, it was a naked promise, without binding force. And the answer sets up the' Statute of Frauds, and that the claim is stale, and barred by the Statute of Limitations. The court decreed -the relief prayed, and the defendant appealed.

It is contended that there was here, at the most, but a verbal promise to make a gift, which was without consideration, and is void. The testimony of Whitsitt himself is, that the Preemption Presbyterian church was commenced to be erected in 1867; that he circulated a subscription paper for the purpose of getting funds to build it; that he subscribed $1000; that there was $800 or $900 subscribed by others; that some of the subscribers paid, and some did not pay; that he obtained all the subscriptions; that they were payable to himself; that he undertook to build, and did build, the church, himself; that no person hut himself took any part in getting subscriptions or making contracts for the building; that the church cost about $2600; that he always claimed the property, but said he would deed it wdien there were proper trustees to whom to deed it. Under these circumstances, there was more involved in the case than a mere naked promise on the part of the defendant. It is idle to speak of these subscriptions of others, though payable to defendant, as having been obtained and made for the purpose of building a private church for the defendant, on his land. They were obtained for the purpose named in the subscription paper,—of building a Presbyterian church in Preemption, and manifestly for the benefit of the Presbyterian society at that place; and from the very fact of procuring the subscriptions and expending them in the erection of the church building, the law would raise an implied promise on defendant’s part to make a conveyance to the society of the ground upon which the church was erected. Such conveyance would be essential to the full enjoyment and control of the building by the society, and not to imply the promise to make it would be to admit the purpose of the perpetration of a gross fraud,—a supposition not to be entertained. It has often been held, in the case of mutual subscriptions for a common object, and there has been expenditure of money in the accomplishment of the object, that a subscription is binding as a valid contract, expenditures having been made on account thereof. (Robertson v. March, 3 Scam. 198; Pryor v. Cain, 25 Ill. 292; Baptist Education Society v. Carter, 72 id. 247; McClure v. Wilson, 43 id. 356; Pratt v. Trustees, 93 id. 475.) The church, here, was built mainly from subscriptions. Defendant put in some money additional to what was subscribed, but all on his part, we think, is to be regarded as subscription,—not only the $1000 which he did actually subscribe, but the additional money he contributed, and the church site. We thus hold the promise in this case to be more than a mere naked one to make a gift, and to be a promise which has the support of a sufficient consideration.

With respect to the defence under the Statute of Frauds, because of the promise not being in writing, we think there is sufficient here in the way of part performance in payment of purchase price, taking possession and making improvements, to take a case of a verbal agreement to convey land out of the operation of the statute. The expenditure of the subscriptions which were made, in the erecting of the building, may be regarded to be what is tantamount to the payment of the consideration. Even after the dedication of the building as a house of public worship, in May, 1868, until in March, 1881, when the defendant turned the key upon the door of the house, there was, we consider, all the possession by the society of the church which is ordinarily had by any religious society of the church building which it owns. Immediately after the dedication a Presbyterian church was organized at the place, defendant being a member, and being elected one of the ruling elders, and the congregation then commenced its public worship in the building, and continued the same therein up to the date last named whilst they had a minister, which appears to have been about half the time. The meetings of the church were held in the building, and Sabbath schools; the church used the building as their own, claimed to own it, and had their church property in it. It is true defendant testifies' the church did not at any time occupy the building without his consent; but we understand this to mean no more than his implied consent, arising from his suffering the occupancy of the building without objection. There is no evidence of any express consent ever having been asked or given. Defendant says that he became dissatisfied with the pastor in 1881; that the Presbytery refused to dissolve the pastoral relation, and he locked the church up, and refused to let them occupy it any longer. Here is the admission of a prior occupancy by the spciety.

Certain acts of defendant are pointed to as indicative that .possession was all the while in him, as, retention of the keys of the church by himself and son; making repairs of the church at his own expense; his fencing off the church lot from the rest of his land, and putting a hedge around it at his own expense, and the church lot having always been taxed to defendant with his farm, and the taxes paid by him. He was a ruling elder of the church, and his son was janitor down to 1880. The retaining of the keys might be referred •to the official capacity of defendant and his son, and the expenditures with respect to the property do not necessarily denote it to be his private property, or that it was held by ■ him in his own possession. They might very well have been his free gifts for the benefit of the religious body there worshiping, as were his other contributions additional to his subscription which -he made toward the erection of the church. The acts named are by no means inconsistent with the full possession and enjoyment of the use, by the society, of the church building. Improvements were made in the putting up of a bell, which was done through another subscription, and there was some furnishing done by the society.

The point is much pressed that the proof does not support the allegations of the bill; that the bill alleges the agreement was made with William Hammond and others, and that there should be strict proof of an agreement made with William Hammond and others, in which there is not only entire failure, but that the name of Hammond does not appear at all in any of the affairs in question until his election as one of the trustees, on June 2, 1880, at the legal organization of the religious society. The particular named person with whom the agreement was made was not material, but the puatter of substance was, whether there was such an agreement made for the benefit of this religious body; if so, then, with whomever made, on the effecting of a legal organization, and there being a corporate body capable of suing for the society, there might be enforcement in the name of the corporation of the contract made for the use and benefit of the society, no matter with whom made. We conceive it would be enough for the relief asked here if there had been but general declarations that defendant would make the conveyance, and the church had been built, in whole or in part, from subscriptions made on the faith of such declarations, or if there had been but the implied promise to convey which we find as arising from the circumstances, and that there would be no necessity of alleging or proving a promise to any person or persons in particular, and that any such averment is surplusage, and need not be proved. Any agreement which was made here was made for the use and benefit of this Pres-" byterian church, and these trustees who bring this suit represent the interests of all the church members as to church property, and may enforce agreements made for the use and benefit of the society before its legal organization.

It is very well settled that where subscriptions have been made in anticipation of the formation of a corporation, and the corporation is afterward formed, payment of such subscriptions is enforceable in the name of the corporate body. (Cross v. Pinckneyville Mill Co. 17 Ill. 54; Johnston v. Ewing Female University, 35 id. 518.) Besides, it is not the sole allegation of the bill, as to the making of the agreement, that it was made with Hammond and others, but the bill alleges further, that at the dedication of the church defendant repeated his promise to Hammond and the congregation or society, and elders thereof, to convey to the trustees of the society or church, as soon as organized as a church or ecclesiastical body, if the church should be then dedicated as a Presbyterian church. And the proof is, that on that occasion, at the close of the sermon, and before .the dedication service, the defendant arose and made a statement of the cost of the church, and that it was all paid for; that there being no church organization, there was no one to deed it to, but that he would deed it as soon as there was a church organization, and anybody.to deed to. The acts of dedication and organization of the church may be regarded as additional considerations for the promise.

It is objected that there should be no decree for a conveyance except upon the terms of refunding to defendant the amount he expended to build the church, over and above the subscriptions he obtained, and the expenses of the repairs and improvements he has made. It does not appear that any claim before was ever made for any of these expenses, and in view of defendant’s statement at the dedication that the church was all paid for, we think what he expended in building the church, additional to his formal subscription, should be looked upon as a gratuity, as much so as the $1000 which he subscribed, and his other expenditures, too, we think, must be regarded in the same light.

Laches, which is set up in the answer, is not available in such a case as this, where the complainants were in possession, as we find they were here. Mills v. Lockwood, 42 Ill. 112; Wilson v. Byers, 77 id. 76.

The decree will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    John Clifford v. William H. Drake.

      Filed at Ottawa May 19, 1884.

    1. Biiili of exceptions—what it should contain. Where an article claimed to be libelous, offered in evidence and excluded by the court, is not set out in the bill of exceptions, this court can not say that it was proper evidence in the case, and its pertinency not appearing, this court can not hold it was error not to allow a witness to refresh his memory by examining such article.
    2. Evidence—refreshing memory of witness. Where an original manuscript article published in a newspaper is shown to be lost, the reporter, who wrote the same from a verbal interview with one who is sued for uttering alleged libelous matter in the same, may be shown such published article to refresh his memory as to what the defendant told him, if the article is libelous and set out in the declaration, and it is error to refuse to allow the witness to read the same for that purpose.
    3. Consent—waiver of error. Where counsel for both parties consent for the court to instruct the jury to find for the defendant, neither party can assign the ruling for error.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Simon P. Douthart, for the appellant.
   Mr. Justice Walker

delivered'the opinion of the Court:

This was an action on the case, for a libel, brought by John Clifford in the Superior Court of Cook county, against William H. Drake, in which special damages were claimed. The case was tried in the Superior Court, and resulted in a verdict and judgment in favor of defendant. Plaintiff then appealed to the Appellate Court for the First District, where the judgment of the Superior Court was affirmed, and the case comes to this court on appeal.

The declaration contains two counts. It is averred that appellant had obtained the position of architect for the building of a new city hall in the city of San Francisco, in the State of California; that the building was estimated to cost $5,000,000, and appellant was to receive five per cent on the expenditures; that a reporter of the “Chicago Times” saw appellee, for the purpose of learning as to the qualifications and character of appellant; that appellee knew that such information as he should impart would be published in the “Times;” that the reporter prepared an article embodying the information communicated by appellee, which was published in the Sunday “Times,” by reason of which publication appellant .lost his place as architect and superintendent of the building, which resulted in great loss and damages to appellant; that in response to inquiries by the reporter, ap- - pellee spoke false and defamatory language as to appellant’s capability and reliability as an architect. The article published in the “Times” was copied in a San Francisco paper, which caused him to lose his place of architect.

The bill of exceptions shows that when the reporter was on the witness stand, appellant proposed that the witness should look at the article in the “Times,” for the purpose of refreshing his recollection, to which appellee objected, and the objection was sustained by the court. It also appears that the notes of the conversation made by the reporter, and the article he prepared, were destroyed, and upon that evidence appellant offered to read the article from the paper in which it was published, the paper having been identified, but on objection the proposed evidence was rejected by the court. Afterward the court directed and instructed the jury to find a verdict for the defendant. The article complained of as being false and libelous, offered in evidence, is not in the bill of exceptions. We are therefore unable to see that it was proper evidence in the case. If it was in nowise pertinent to the issue, it did not matter whether the witness was prevented from examining it to refresh his recollection. If the article was libelous, and the same set out in the declaration, then there was error in not permitting the witness to read the article to refresh his memory, for the purpose of identifying it. But for aught we can see the article may have had no relevancy to the case. If pertinent, it was the best evidence attainable, as the original notes and article in manuscript had been destroyed. As the article is not incorporated in the bill of exceptions, we can not know its contents, and therefore can not say the court below erred in refusing to permit appellant to offer the paper in evidence. Until error is shown, we must, as a matter of law, presume that the court decided correctly.

As to instructing the jury to find for defendant, counsel for both parties consented that the court might so instruct. This being true, neither party can now object. That ruling can not, therefore, be assigned for error.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Mary New v. Jesse E. Oldfield.

      Filed at Ottawa May 19, 1884.

      1. Fbattotjlent conveyance— debtor conveying property to Ms creditor—of conveyances by the debtor to his wife. A debtor, though largely indebted, may sell and convey property to a creditor, and if the transaction is made in good faith, and is honest and fair, it may be upheld. But the law does not allow a debtor in failing circumstances, either directly or indirectly, to transfer his property to his wife, and thus place it beyond the reach of his creditors.
    2. A wife may purchase property with her own means, and hold the same in her own name, and such property will not be liable to be taken for the husband’s debts; but she can not buy and hold property, as against his creditors, with means belonging to her husband; and earnings by the husband from a business, though carried on in the wife’s name, when she had no money of her own invested in it, can not be regarded as her own.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. H. H. Anderson, for the appellant:
    In Driggs v. Russell, 3 B. R. 161, Mrs. Russell, a married woman, carried on, managed and controlled an iron foundry, and other business interests, in her own name, with funds loaned her by friends, to whom she gave her own notes, with whom she advised as with her husband as to proposed investments. The husband, who was insolvent, was hired by the wife, and received a monthly compensation. It was held that the property used in the business, and that purchased by her and standing in her name, was her individual property, and not liable to be taken to satisfy the claims of her husband’s creditors.
    Under the married woman’s acts of New York, (substantially as ours of 1869,) it has been held that neither the fact that a wife employs her husband, nor the fact that the labor and skill of the husband contribute to the success of the business, will make the business or its profits the property of the husband. Vorhees v. Bonestead, 7 Blatchf. 500; Gage v. Dauchy, 34 N. Y. 293; Beechley v. Wells, 33 id. 518; Knapp v. Smith, 27 id. 277; Bongard v. Core, 82 Ill. 21; Dean v. Bailey, 50 id. 481; Primmer v. Claybaugh, 78 id. 96.
    Messrs. Gary, Cody & Gary, for the appellee:
    A conveyance of property, under the circumstances of this case, is fraudulent as to creditors, and upon proper proceedings will be subjected to the payment of their claims. Jaffers v. Aneals, 91 Ill. 487; Emerson v. Bemis et ux. 69 id. 537; Phelps v. Curtis, 80 id. 109; Bennett v. Stout, 98 id. 47; Fleming v. Hiob, 3 Bradw. 390; Power v. Alston, 93 Ill. 587; Jones v. King, 86 id. 225; Guffin v. First National Bank, 74 id. 259.
    The law allows no man. beyond the specific exemptions of the statute, by any form of contract or mode of disposing of property, whatever it may be, to secure the use of his property to himself, to the exclusion of his creditors. Annis v. Bonar, 86 Ill. 130.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a creditor’s bill, brought by Jesse E. Oldfield, in the Superior Court of Cook county, against Mary New, Michael New and Nicholas New, to subject a certain lot to the payment of a judgment which Oldfield obtained against Nicholas New, in June, 1881, upon an indebtedness contracted while Nicholas New was the owner of the property. Upon the hearing in the Superior Court, a decree was rendered in favor of the complainant in the bill, which was affirmed in the Appellate Court.

There is no substantial controversy between the parties in reference to the facts established by the evidence, and the only question presented for our decision is, whether the testimony submitted on the hearing was sufficient to authorize the decree rendered by the Superior Court.

On the 12th day of November, 1874, Nicholas New, being in failing circumstances, conveyed to his brother, Michael New, the property in controversy, described as lot 3, block 1, in Singer & Talcott’s addition to Lemont, in Cook county, for an expressed consideration in the deed of $3200,.—Mary New, the wife of the grantor, joining in the conveyance. The property at the time was occupied by the grantor as a homestead. The consideration for this deed, as shown by the evidence of Nicholas New, was a debt due his brother of $2200, and a note of $1000 given by the grantee, payable at a future day. After this 'pretended purchase Michael New went into the possession of the property, and kept a boarding house and saloon for .about two years, when he moved away and rented the property to Mary New, who, with her husband, carried on the same business until August 19, 1879, when Michael New reconveyed the property to Mary New, for an expressed consideration of $3000. Five hundred dollars was paid down. The one thousand dollar note which Michael had executed when he purchased the property, was returned to him, and Mary .New gave her notes for $1500, due in one, two and three years, secured by mortgage on the premises.

A debtor, although at the time he may be largely indebted, may sell and convey property to a creditor, and if the transaction is made in good faith, and is honest and fair, it may be upheld and sustained. A wife may purchase, with her own means, property, and hold the same in her own name, and such property will not be liable to be taken and sold in payment of debts contracted and owing by the husband. But the question presented by this record is, whether the pretended sale from Nicholas New to his brother, Michael, and from Michael to the wife of Nicholas, will fall within the rule indicated; or. were these transfers a mere shift or device to cover up the property, and hold it under cover for the benefit of the original owner, Nicholas New. The fact that Nicholas New conveyed to his brother, Michael, and that Michael conveyed back to the wife of the grantor, is of itself a suspicious circumstance, and the account Mary New gives of the transaction is not calculated to inspire confidence in the honesty of the trade. She testified: “We bought the house and lot from Michael. We lost everything. We owed Michael so much, and he took possession, and we got out. We got it back again. We gave him $500 cash, and we owe him $1500 yet, and we gave him back his note for $1000, which he had given us when we sold the property to him. ” From this account of the transaction it does not appear that she bought the property with her own means, obtained from a source other than her husband, but, on the other hand, $1000 which was paid was a promissory note which had been given to Nicholas by Michael, when the latter pretended to buy the property. There is no pretense that this note belonged to Mary New, and as to the $500 paid in cash, it was earned by Nicholas from the business carried on in the property. It is true the business was conducted in the name of the wife, but, so far as appears, she had no money of her own invested in it, and the earnings could not be regarded as belonging to her. Under such circumstances we perceive no ground upon which the transfer of the property to Mary New can be sustained. The law does not allow a debtor in failing circumstances, either directly or indirectly, to transfer his property to his wife, and thus place it beyond the reach of his creditors ; but on the other hand, when it is apparent, as it is in this case, that the debtor retains the real ownership of the property, it is the province of a court of equity to subject the property to the payment of the debtor’s debts.

We think the decree of the Superior Court is fully sustained by the evidence, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed..


author: Mr. Chief Justice Sheldon

text:
    Eliza R. Smith v. Samuel H. Yocum.

      Filed at Ottawa May 19, 1884.

    Specific performance—Statute of Frauds—verbal agreement by a father with his son as to a tract of land—part performance. Where a father made a verbal agreement with his son, that if the latter would remain in this State and go upon and live on an eighty-acre tract of land of the former, and improve it, it should be the son’s after the father’s death, the son to pay a certain share of the crops during his father’s life, which contract was fully performed by the son, it was held, that the acts of part performance were sufficient to take the case out of the Statute of Frauds, and that a specific performance after the" father's death was properly decreed, as against the other heir.
    Appeal from the Circuit Court of La Salle county; the Hon. Josiah McRoberts, Judge, presiding.
    On the 25th day of May, 1882, Samuel H. Yocum filed his hill in chancery in this case, alleging, in substance, that in the spring of 1875 complainant resided in Grand Eidge, in the county of LaSalle, in this State, and was then intending to remove with his family to the State of Missouri or Kansas; that John Yocum, father of complainant, knowing of such intention, and being then the owner in fee of the south-west quarter of section 22, town 32, range 3, east of the third principal meridian, in LaSalle county, and being also the owner in fee of the south half of the north-west quarter of section 15, town 32, range 3, east, in said county, and not wishing his son to move west, as intended, agreed with him that if complainant would move on said eighty-acre tract of land, and occupy and farm the same, and render to John Yocum, yearly, one-half of the grain raised thereon, so long as he (John Yocum) might live, and would improve the premises in such manner as to complainant might seem best, and would let a certain cattle transaction between them go into the land,—being a claim of complainant against John Yocum for about $700, growing out of dealings in cattle between them,—that he (John Yocum) would pay all taxes on the eighty-acre tract so long as he lived, and that upon his death said eighty-acre tract should be the absolute property of complainant. The bill further alleged that complainant, in pursuance of and in reliance upon the agreement, moved with his family on the land, farmed and improved it, and gave his father one-half the grain raised thereon, down to the time of his death, (March 19, 1882,) with the exception of one year, (1877,) when he lived with his father, at the latter’s request. The other surviving child was made defendant, and the prayer of the bill was for a conveyance. The answer put in issue the making of the alleged agreement, and the performance thereof, and set up the Statute of Frauds. Upon hearing, on proofs taken, the circuit court decreed in accordance with the prayer of the bill, and the defendant appealed.
    Messrs. Leland & Gilbert, and Messrs. Duncan & O’Conner, for the appellant:
    In a case of this character the proofs must be clear and satisfactory. Story’s Eq. Jur. sec. 764.
    To take a case" out" of the" Statute of Frauds, on the ground of part performance, it is indispensable that the acts done should be referable exclusively to the contract. Story’s Eq. Jur. secs. 764—767; Wallace v. Rappleye, 103 Ill. 231.
    Possession under a father, or other near relative who stands in loco parentis, is insufficient to take a contract out of the statute, although attended by the making of valuable improvements, because the relationship between the parties tends to rebut the presumption which would have arisen had the parties been- strangers. 1 Lead. Cases in Equity, 1051, and cases there cited; Hand v. Goodrich, 33 N. H. 32.

      A court will enforce a contract within the statute only when there have been such acts of performance by the party asking the relief, that he would suffer an injury amounting to a fraud by a refusal to execute the agreement. Wallace v. Rappleye, 103 Ill. 231.
    Messrs. Mayo & Widmer, for the appellee:
    Specific performance of a parol contract will be enforced, notwithstanding the Statute of Frauds, when the consideration has been paid and possession taken by the purchaser. Ramsey et al. v. Liston, 25 Ill. 114.
    So, too, a promise or agreement, made by a father to a child, to convey a tract of land if the child will take possession and improve the same, when followed by possession, and the expenditure of labor and money in making lasting and valuable improvements, may be regarded as resting upon a valuable consideration, and will be upheld in a court of equity. Langston v. Bates et al. 84 Ill. 524; Bright et al. v. Bright, 41 id. 97; Kurtz et al. v. Hibner et al. 55 id. 514; McDowell v. Lucas et al. 97 id. 489; Bohanan et al. v. Bohanan, 96 id. 591.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

■ It is insisted the proofs do not sustain the allegations of the bill. There is direct evidence of the agreement, as alleged in the bill, in the testimony of the witness Gordon that he was present and heard the making of the agreement between the parties. There is the corroborative testimony of as many as six other witnesses, of declarations made by John Yocum, very strongly confirmatory of the existence of a contract that complainant was to have the land. These statements were all made to the different witnesses on different occasions, and in some cases they were repeated to the witnesses at several different times, and many of them were made under circumstances entitling them to more weight than should attach to ordinary loose declarations.

There is some impeachment of the witness Gordon, and there are some circumstances attending his testimony which are urged as affecting its credibility, and it is insisted the witness is not worthy of belief, and there are circumstances in the ease which are commented upon as adverse to the idea that there was the agreement alleged. Without going more into particulars, we will say that after a careful consideration of all that is urged in depreciation of the testimony on the part of the complainant, and giving it due weight, the conviction remains upon our minds, from the evidence, that there existed, here, an agreement between the father and son, that if the latter would stay here, and go upon and live on this place, and improve it, it should be his after his father’s death. The proof shows that in the same spring, after the making of the contract, complainant moved on the land, and ever since, until his father’s death, did occupy, cultivate and make improvements upon it, with the exception of one year, when he lived with his father, at the latter’s request. We think the agreement has been established here with the clearness and satisfaction which is required in the case of a parol contract respecting land, and that the acts of part performance shown are sufficient to take the case out of the operation of the Statute of Frauds, under former decisions of this court. Ramsey v. Liston, 25 Ill. 114; Bright v. Bright, 41 id. 97; Kurtz v. Hibner, 55 id. 514; Langston v. Bates, 84 id. 524; Bohanan v. Bohanan, 96 id. 591; McDowell v. Lucas, 97 id. 489.

The decree must be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    John H. Weaver v. Wilhelmina Fisher.

      Filed at Ottawa May 19, 1884.

      1. Jurisdiction in chancery—in matters of trust. In the case of a trust, as, between a principal and agent, it is well settled that a court of equity has jurisdiction to enforce an accounting and a surrender of the trust property, the time when the trustee should do so having arrived, and he having refused.
    2. Trust—when it arises—as between principal and agent. Where a person is employed as an agent in the conduct of the financial part of the business of his principal, the relation is a fiduciary one in its character; and if the agent appropriates the property of his principal to his own use, or makes any profit to himself by virtue of his position, he must account therefor as for a trust.
    3. Upon bill in chancery by a principal against his agent, to compel an accounting by the latter in respect of the business of his employment, and a surrender of property in his hands, it appeared there was an agreement whereby the defendant was to act as manager of the office part of the complainant’s business (milling), except the running of the mill; to purchase grain, ship the product, make sale' thereof, and do the banking and financial business,—all in defendant’s name, but in fact taking no interest therein; to account therefor to the complainant, and upon a discontinuance of the employment to turn over and surrender to the principal all the money and other property, of every kind and nature, in his possession or under his control, belonging to the principal. It was held, this arrangement created a trust in the money and property of the principal or employer, of which the defendant became possessed under and by virtue of his employment.
    4. Resulting trust—when it arises. Where a person occupying a fiduciary relation purchases property with the trust funds, and takes title in his own name, a trust in the property will result to the cestui que trust, and this whether the property right is absolute, or only qualified and contingent.
    5. Board oe trade—certificate of membership—how far to be considered as property, so that a court of equity will interpose to protect the owner in its enjoyment—and generally, as to property rights not subject to judicial sale. A person engaged in the milling business in Chicago employed an agent to manage the financial part thereof, and furnished him with a certificate of membership in the board of trade of that city, to enable him to conduct that part of the business advantageously, and such agent, on leaving his employment, refused to transfer such certificate and surrender the same to his employer: Held, that a court of equity would compel Mm to assign the same in blank, and deliver the same to his employer.
    6. There is a large class of legal rights in which there is a property interest, which, by reason of the personal and peculiar character of such rights, can not be made the subject of transfer by judicial sale, such as, an interest in real estate conditioned to become void on alienation or transfer to another; contracts for personal services requiring the individual care and skill of the one party in and about some matter affecting the person or personal tastes of the other party. But still, a court of equity will interpose to prevent a deprivation of their enjoyment.
    7. Same—former decision—as to property in certificate of membership in board of trade. It is a misapprehension to suppose that this court held in Barclay v. Smith, 107 Ill. 349, that there are no property rights of any kind in a certificate of membership in the board of trade of the city of Chicago. It was simply held in that case that such a certificate is not property which is liable to be subjected to the payment of the debts of the holder by legal proceedings, under the law as it now exists.
    8. Pasties—in chancery—to compel surrender by an agent of a certificate of membership in board of trade. On bill by a principal against a former agent to compel him to account for moneys and property coming to his hands, and to compel him to surrender to the principal a certificate of membership in the Chicago board of trade, taken by the principal in the agent’s name, the board of trade is not a necessary party, there being no relief sought against it.
    Writ op Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding
    Wilhelmina Fisher exhibited her bill in chancery in the Superior Court of Cook county, .against John H. Weaver, wherein, among other things, she alleged that on the 1st of September, 1880, she and said Weaver entered into an agreement, whereby she hired him to assist her in conducting the milling business, in which she was then engaged, as clerk and manager of the office part, but not in running the mill, for one year, for a named salary. He was to conduct the banking and financial part of the business in his own name, but was to have no interest therein. He was also to keep proper books of account, and each month exhibit a true account of the business, showing profit or loss. He further agreed to loan her $1000, and take her note, secured by chattel mortgage therefor, and that when his employment ceased he would turn over to her all of her money and property, of every kind. She alleged, also, that both parties began the performance of the contract on the day it was entered into; that about said date she bought a certificate of membership in the Chicago board of trade, numbered 2861, for $475, which she had transferred to him, but was paid for with her money, and still belonged to her; that on the 15th of November, 1881, defendant, who had up to that time continued in the employ of complainant, terminated his engagement; that on August 20, 1881, defendant drew one year’s interest on $1000, and $500 of the principal, for himself, and he could have paid himself the rest had he chosen to do so, but he preferred to hold the note and mortgage; that when defendant left the employ of complainant he had in his possession, belonging to her, $1000 in money, several shipments of milling products, and said certificate of membership in the board of trade; that she requested him to turn over to her said money, merchandise and board of trade certificate, after paying himself what was due on said loan, but he refused to do so, and then for the first time claimed to own said board of trade certificate, and stated that he should hold the money and merchandise till she consented to his ownership, which she refused to do; that on the 13th of December, 1881, defendant paid over the amount of the shipments to the complainant, but retained $1159.16 in his hands, which belonged to her, and refused to pay himself out of it, and to turn over the board of trade certificate, which he still retained; that complainant tendered defendant the amount due on the note and mortgage, and demanded the same, and the board of trade certificate, but he refused to give it up. She further alleged that the hoard of trade certificate, since its purchase, had risen in price from $475 to $4000, on November 15,1881, which price it still bore; that she wished to use said certificate in her milling business, so as to enable an agent in her employ to buy grain for her mill, on the board of trade; that the defendant was not responsible financially. The bill prays for a final decree compelling defendant to pay to complainant what he owes her, after satisfying said note and mortgage, and to transfer and deliver said certificate to such person as she should select, and for general relief, etc.
    Weaver answered, admitting the contract set out in the bill, and that the business was conducted in his name. He denies that the board of trade certificate was bought by or belonged to complainant, that he ever admitted it did, and that he had ever refused to turn over to complainant money or property belonging to her. He says he made personal application for membership to the board of trade, and was accepted and admitted as a member, and paid his assessments out of his personal means. He admits that his debt was paid to him in full about September 1, 1881, and says the reason the note and mortgage were not surrendered was because he was not asked for them, and that when they were demanded of him he gave them up. He alleges that he has turned over all money, etc., belonging to complainant, and that he did not do so when first requested because he was personally liable on outstanding debts, etc. He claims that membership in the board of trade is a personal privilege, and not a property right of which a court of equity has jurisdiction, and that he is the sole owner of the personal privilege conferred by certificate.
    The cause was heard on bill, answer and proofs. The decree finds that the court has jurisdiction of the parties and subject matter; that the material allegations in the bill are true; that defendant, at the time the bill was filed, and at the time the decree was entered, was in possession of a certificate of membership in the Board of Trade of Chicago, (No. 2861,) and standing in his name, but that said certificate then belonged to complainant; that defendant had $79.68 due to complainant, and decreed that defendant be enjoined from disposing of said certificate except as in said decree provided; that he forthwith execute an assignment in blank of said certificate, and deliver the certificate, so signed, together with the ticket of admission to the board of trade, to the complainant, and that he pay $79.66 to complainant, with her costs, and that she have execution therefor. From this decree the defendant appealed to the Appellate Court for the First District, and that court affirmed the decree of the Superior Court. This writ of error is sued out to bring in review that judgment of affirmance.
    Messrs. Hutchinson & Partridge, for the plaintiff in error:
    The whole case rests upon the hypothesis that the certificate of membership in the board of trade was a chattel, and salable in the market. If a chattel, full compensation for the breach of contract could be had in an action at law for damages. This is always a complete answer to a bill for specific performance. Pierce v. Plumb, 74 Ill. 326; Ross v. Buchanan, 13 id. 55; Marble Co. Ripley, 10 Wall. 339; Gud v. Rutter, 1 P. Wms. 570; Adderly v. Dixon, 1 Sim. & Stu. 607; Nutbrown v. Thornton, 10 Ves. Jr. 160; Mason v. Armitage, 13 id. 25; Waterman on Specific Per. secs. 9, 16, 17, 19 ; Fry on Specific Per. secs. 11, 12; Harnett v. Yielding, 2 Sch. & Lef. 549; Story’s Eq. Jur. secs. 716, 717, 717a.
    The bill should have been dismissed for want of proper parties. The board of trade was a necessary party to the suit, in order to do complete justice between the parties. Story’s Eq. Pleading, sec. 72; Daniell’s Chancery Practice, 181.
    This objection was available upon the hearing, (Story’s Eq. Pleading, see. 75,) and although the objection was not made by either party. Daniell’s Chancery Practice, 285, note 2.

      We understand that it is the settled law of this State that such a membership is not such a property right as it was competent for the court to transfer by its decree, as was sought to be done in this case. Rice v. Board of Trade, 80 Ill. 134; Barclay v. Smith, 107 id. 349; In re Sutherland, 6 Biss. 526; Thompson v. Adams, 93 Pa. St. 55; Pancoast v. Gowen, id. 66.
    Mr. Rufus King, for the defendant in error:
    This is not a suit simply to enforce the specific performance of a contract, but to compel the plaintiff in error to make his account of his principal’s money received by him in a fiduciary capacity, the amount resting in his knowledge only, and enforce a trust. The enforcement of trusts is an original ground of equity jurisdiction. Harris v. Douglas, 64 Ill. 469; Hopkins v. Granger, 52 id. 510; Attorney General v. Illinois Agricultural College, 85 id. 520.
    Although a court of law may also have jurisdiction, this does not oust a court of equity, where the object is to enforce a trust. Coates v. Woodworth, 13 Ill. 654; Marlow v. Marlow, 77 id. 634.
    The objection that there is a want of proper parties, is also without foundation. Story’s Eq. Pleading, 72.
    A certificate of membership in the board of trade is property. Hyde v. Wood, 4 Otto, 523; In re Ketchum, 1 Fed. Rep. 840; Gallagher v. Lane, 19 N. B. 224; Retterbond v. Baggott, 4 Abbott’s N. C. 67; Grocers’ Bank v. Murphy, 60 How. Pr. 426.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Three grounds are urged for reversing the decree of the Appellate Court: First, if the subject matter of litigation is such that any relief should be granted, the remedy is at law, and not in equity; second, but the subject matter of litigation is not such as the court can act upon to grant any relief; and third, in any view, the hoard of trade is an indispensable party. These will be briefly considered, in the order stated.

First—The agreement set out in the bill, admitted in the answer, and read in evidence on the hearing, whereby the defendant agreed to act as clerk of the complainant and manager of the office part of her business, (except the running of the mill,) to purchase grain, ship the ground product, make sale thereof, and do the banking and financial business, all in his own name, (but in fact all ownership therein being in the complainant, and he having no interest therein,) account therefor to the complainant at the intervals provided in said contract, and, upon a discontinuance of the employment, to turn over and surrender to the complainant all the money and property, of every kind and nature, in his possession or under his control, belonging to the complainant, creates a trust in the money and property of the complainant of which the defendant became thus possessed. As to the duties imposed upon the defendant by the contract, it seems to be conceded the relation of principal and agent is created. But this is a fiduciary relation, and if the agent appropriate the property of his principal to his own use, or make any profit to himself by virtue of his position, he must account therefor as for a trust. (Perry on Trusts, (2d ed.) sec. 206; Smith v. Wright et al. 49 Ill. 403; Clapp, Admr. v. Emery, 98 id. 523; Davis v. Hamlin, 108 id. 39.) There being a trust, nothing is better settled than that a court of equity has jurisdiction to enforce an account and surrender of the trust property, the time when the trustee should do so having arrived, and he having refused.

Second—It is a misapprehension to suppose, as counsel for plaintiff in error seem to, that we held in Barclay v. Smith, 107 Ill. 349, that there are no property rights of any kind in a certificate of membership in the board of trade of the city of Chicago. We simply there held' that such a certificate is not property which is liable to be subjected to the payment of the debts of the holder by legal proceedings. We did not intimate that from the nature of a certificate of membership in the board of trade, it could not, by statute, be subjected to the payment of debts, but only that, under the law as it now is, it can not be. Whether property shall be liable to be subjected to the payment of debts by legal proceedings, and if so, in what manner, is purely a matter of statutory regulation. At common law, shares in stocks were held not to be chattels. (Angell & Ames on Corporations, (5th ed.) sec. 560; Hermann on Executions, sec. 362.) And, also, to be of such an intangible nature that there could be no change of possession, and therefore that they could not be sold on execution. (Angell & Ames on Corporations, (5th ed.) sec. 560.) And it is held the interest of the inventor in a patented invention, and of the author in the copyright of a book, can not be sold on execution. (Freeman on Executions, sec. 110.) And itfis said the weight of authority is in support of the view that equity has no power, in ordinary cases, to compel the appropriation of choses in action to the payment of their owner’s debts. (Freeman on Executions, sec. 425.) By statute, shares in stocks may be now sold on execution, and, doubtless, the inventor’s interest in his patent, and the author’s interest in his copyright, might, by statute, be made subject to sale on execution. There is, however, a large class of legal rights in which there is a property interest, that, by reason of their personal and peculiar character, manifestly could not be made the subject of transfer by judicial sale,— such, for instance, as an interest in real estate conditioned to become void on alienation or transfer to another; contracts for personal services requiring the individual care and skill of the one party in and about some matter affecting the person or personal tastes of the other party. But in'all these cases it is too obvious to require the citation of authorities, a court of equity would interfere to protect against deprivation of enjoyment; and it is impossible to conceive any reason why a court of equity will not, upon like principle, interfere here to protect the complainant’s interest in this certificate of membership in the board of trade.

This defendant has not a shadow of authority for retaining this certificate. It was bought with the money of the complainant, and placed in his name solely for the purpose of enabling him to conduct that part of her business which he had undertaken to conduct for her. If he be allowed to retain it, since it has a market value of $3400 to $4000, he can realize upon it to that amount, and she will be driven to the payment of that amount to obtain another certificate, in order that her business may be conveniently carried on, and to place her in the condition in which she now is if, she only be allowed to retain her own. In Davis v. Hamlin, supra, at page 49, we quoted from the American notes to Keech v. Sanford, 1 Leading Cases in Equity, 53, the rule applicable here, as follows : “Wherever one person is placed in such relation to another, by the act and consent of that other, or the act of a third person or of the law, that he becomes interested for him, or interested with .him, in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated.” The rule is general, and of familiar application in this court, that where a person occupying a fiduciary relation purchases, property with the trust funds, and takes title in his own name, a trust in the property will result to the cestui que trust,—and this, on principle, must be true whether the property right is absolute or only qualified and contingent. The right, whether large or small, is entitled to protection, if its deprivation may affect adversely the cestui que trust. It can not be said, here, that we must, from the nature of this corporation, hold there can be no pecuniary value in a certificate of membership, because the proof shows the contrary with absolute certainty. It has a regular pecuniary market value, notwithstanding the conditions to which the transfer of its title is subject. .

Third—It is sufficient to say as to the last point, no relief is sought against the board of trade. The contest is purely between plaintiff in error and defendant in error, and in nowise concerns the board of trade. It will be time enough to make it a party when a decree is sought against it. Whether the party to whom the defendant in error desires the certificate assigned will be acceptable to and received by the board, can not, in any possible way, concern plaintiff in error.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    The Livingston County Agricultural Society et al. v. James A. Hunter et al.

      Filed at Ottawa May 19, 1884.

    1. Agricultural society—reorganization—upon the joint stock plan —effect upon property rights, and the rights of creditors. The constitution of an agricultural society declared that the object of the society should be “to improve the condition of agriculture, horticulture, and the mechanic and household arts," and provided for holding annual fairs. On a reorganization as a joint stock company, the new constitution then adopted declared the object of the society should be “to improve the condition of agriculture, horticulture, floriculture, mechanic and household arts,” and also provided for holding annual fairs and exhibitions. The name was changed by substituting the word “board" in place of the word “society." The board, as reorganized, took possession of all the property of the old society: Held, that there was no essential change in the object of the society resulting from its reorganization, and that the new board was not a separate and independent society from the old one, but the same, under a slight change in name.
    2. Upon the reorganization of a county fair society, under section 9, chapter 5, of the Revised Statutes of 1874, the corporation, as reorganized, will succeed to all the rights and liabilities of the society as they existed at the time of the change, and the old creditors of the same will have the same right to sue the company under its new name and organization that they had to sue the company as originally organized.
    3. Creditors of an agricultural society, whether their claims accrued before or after the reorganization of the institution, stand upon the same footing, and the only way by which- one may gain an advantage over another is by the exercise of superior diligence in prosecuting his claim to judgment, and thereby obtaining a judgment or execution lien upon the company’s property.
    4. The reorganization of an agricultural society under the statute mentioned, on the stock plan, does not render the corporation one for private gain or profit, or change the public character of the institution. Its property still can only be applied to the payment of its debts, and to the promotion of the general objects of the association, as expressed in its constitution.
    Appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Mr. C. C. Strawn, for the appellants:
    The old society, to all intents and purposes, was a public corporation, while the new one is purely private in its objects, having the pecuniary profit of its stockholders only in view.
    It is well settled law that the title to the property of a corporation having stockholders, is held in trust by the corporation for the use of the stockholders, and upon dissolution of the corporation the title to the property vests in the stockholders, in equity. Stevens v. Rutland R. R. Co. 29 Vt. 549; Taylor v. Chichester Ry. Co. L. R. 2 Exch. 378; Bacon v. Robertson, 18 How. 480; Lum v. Robertson, 6 Wall. 277; Frothingham v. Barney, 13 N. Y. 366; Matter of Woven Tape Skirt Co. 15 id. 508; Krebs v. Carlisle Bank, 3 Wall. 33.
    Changes may be made in the organic structure of a corporation, and the power of management of the company either enlarged or diminished, so long as the equitable lien of creditors upon the corporate funds is not impaired, and no material change is made in the nature of the security. Morawetz on Corporations, secs. 562-565, and eases there cited. Bruffett v. Great Western R. R. Co. 25 Ill. 553; Manchester and London Life Ass. Co. L. R. 9 Eq. 648.

      It is also held that any change in the nature, objects and purposes of a corporation, that affects or impairs the security afforded creditors through the property and effects of such corporation, entitles such creditors to interfere by way of their equitable lien. 35 N. J. L. 324; Wood v. Dummer, 3 Mason, 305; Bellows v. Hollowell and Augusta Bank, 2 id. 31; Wyman v. Hollowell and Augusta Bank, 14 Mass. 58; Bank of Port Gibson v. Moore, 13 S. & M. 157; Commercial Bank v. Lockwood, 2 Harr. 17; Curran v. State, 15 How. 312; Barings v. Dabney, 19 Wall. 1.
    It is further held, in our own State, that the capital stock of a corporation is a trust fund for creditors. Union Ins. Co. v. Frear Stone Manf. Co. 97 Ill. 537.
    Mr. E. F. Bull, and Mr. S. S. Lawrence, for the appellees :
    The mere change of names does not and can not change things or their properties. In the change of name and organization of a corporation, the liabilities and rights of property of the corporation in its old form accompany the corporation in its reorganization, and the old corporation is continued in existence as the same corporation, although different powers are possessed under the new charter. Town of Beading v. Wedder, 66 111. 83; Boss v. C., B. and Q. B. B. Co. 77 id. 134; City of Olney v. Harvey, 50 id. 455; President, etc. v. Kleinschnitz, 28 id. 134; Bailroad Co. v. Moffit, 75 id. 528; 4 Withrow’s Corporation Cases, 186, 501.
    All business relating to the legitimate objects of a corporation, by its charter, may be transacted by the directors, without the sanction of the members or stockholders. Wood v. Whelen, 93 111. 165.
    The law does not favor secret liens. The law favors the diligent. He who is first in time is first in right. Smith v. Lind, 29 Ill. 20; Lyon v. Robbins, 46 id. 279; Freeman on Judgments, sec. 395.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The present appeal brings before us for review a decree of the Livingston county circuit court, rendered at its January term, 1884, dismissing a bill filed.in the name of the Livingston County Agricultural Society and certain of its creditors, against James A. Hunter and others, whereby it is sought to enjoin the collection of a judgment in said Livingston circuit court in favor of Pierce & Newcomb, and against the Livingston County Agricultural Board, for $711.50, and costs of suit.

The material facts in the case, as shown by the proofs and pleadings, are, in substance, these: The “Livingston County Agricultural Society” was organized as a corporation at Pontiac, Livingston county, on the 18th day of April, 1857, under an act of the legislature then in force, with the usual powers, rights and privileges of corporations of that character. It continued to keep up its organization, and hold annual fairs, until and including the year 1877. In November of that year the company, under the provisions of section 9, chapter 5, of the Bevised Statutes of 1874, changed its name to that of “Livingston County Agricultural Board, ” and reorganized as a joint stock company, but without any material change as to the purposes or objects of the organization. Before and at the time of the reorganization the company was the owner of what is now known as the “old fair grounds,” with the improvements thereon, and was indebted to a number of persons, amounting, in the aggregate, to about $1000, for which the company’s notes were then outstanding. After the reorganization the company purchased and improved new fair grounds, on which the annual fairs were thereafter held. In improving the new grounds the company became indebted to Pierce & Newcomb in the sum of $711.50, for which amount they recovered a judgment against the company, as already stated, and were proceeding to obtain satisfaction of the judgment out of the old fair grounds, which had been stripped of all improvements, but still belonged to the company, when the present bill was filed to enjoin its collection.

The exact ground upon which appellants rely for maintaining the bill in this case is not very apparent. Indeed, a careful examination of the original and amended bills, and the argument in the case, show that even counsel has had difficulty in settling upon any satisfactory theory with respect to it. As corroborative of this statement, we give the position of counsel in his own language. He says: “Appellants make two points on this record: First, by the organization of the new board the constitution of the old society was essentially changed in its objects and purposes, or such new board was in fact separate and independent of the old society, and in either case the new board in no way succeeded to or took the property, effects or rights of the old society; and second, in any event, whether the new board was separate ‘ and independent of the old society, or succeeded to and took the property, rights and effects of the old society, the creditors of the old society had a lien, in equity, upon the assets of the old society, real and personal, for the payment of their claims; and the title to such assets passed to the new board, if at all, encumbered with such lien, and subject to the payment of the debts of the old society. ”

As already stated, we do not think there was any essential change in the objects or purposes of the corporation upon its reorganization, as is supposed by counsel. By the first section of the original constitution of the society it is declared: “The object of the society shall be to improve the condition of agriculture, horticulture, the mechanic and household arts, ” and the tenth section provides for holding annual fairs. By the first section of the new constitution, which was adopted at the time of the reorganization, it is declared: “This society shall be called the ‘Livingston County Agricultural Board.’ Its objects shall be to improve the condition of agriculture, horticulture, floriculture, mechanic and household arts, ” and then provides for holding annual fairs and exhibitions. It is thus apparent .there is no foundation for the claim there has been an essential change in the objects of the society, resulting from its reorganization. And in our judgment, the alternative proposition or claim, that the new board is a separate and independent society from the old one, is as foundationless as the other. In the view we take of it, the present society or organization is practically the same as the former. The Livingston County Agricultural Board is but the reorganized Livingston County Agricultural Society, under a slight change of name. Upon such reorganization the former succeeded to all the rights and liabilities of the latter, and the old creditors of the concern," including the appellants, have the same right to sue the company under its new name and organization that they had before. Their remedies, at least in theory, are not at all affected by the change. So far as this record shows, they have a complete remedy at law, and we perceive no ground for resorting to a court of equity.

Counsel, apparently in doubt as to the soundness of either of the above positions, falls back, in the event they should prove not tenable, upon the second and last point relied on, which we regard as equally unsound. The claim is, conceding the newly organized company succeeded to all the rights and assets belonging to the old company before its reorganization, the creditors of the latter have a lien or preferred claim upon the assets to which the present company thus succeeded, for the payment of their debts, which lien or preferred claim may be enforced in the manner proposed in the-present suit. As we understand it, creditors of the institution, whether their claims accrued before or after the reorganization, all stand upon precisely the same footing, and the only way for one to obtain an advantage over the others is by the exercise of superior diligence in the prosecution of

his claim to judgment, and thus secure a judgment or execution lien upon the company’s property, as was done by Pierce & Newcomb. The fatal error in appellants’ argument and theory of the case is in assuming that upon the reorganization of the company it became a corporation for private gain or profit. The stock plan upon which it is now organized does not at all change the public character of the institution. The property of the concern can only be applied to the payment of its debts and to the promotion of the general objects of the association, as expressed in its constitution, which are, as already seen, the same now as before the reorganization. The stock plan, as it is called, is but a different mode of regulating the question of membership, and determining the voice each member shall have in directing the affairs of the association. "Under the old plan, any citizen of the county could become a member for one year by paying the sum of one dollar, and by paying a larger sum he became a life member. In the reorganization a certain number of shares was fixed by the constitution, which, of course, operated as a limitation upon the number of members of the association, and by the terms of the reorganization all yearly members were continued members of the concern till the expiration of the current year, and life members were continued members, as before, on the basis of two shares of stock for each membership. It will be thus seen the change of organization was entirely equitable and just to existing members, and equally so to creditors, for, as already seen, their right to proceed against the company, and subject its property to the payment of their debts, was not at all affected by the change in the organization. In any view of the case made by appellants, we are unable to perceive any merits in it.

The decree of the circuit court must therefore be affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    John H. Brown v. Henry G. Abbott.

      Filed at Ottawa May 19, 1884.

      1. Guaranty—tender of other security—effect wpon liability of guarantor. The maker of a promissory note upon which there was a guaranty by a third person, procured another note, which he delivered to the holder of the former note, with a request that he declare his election whether he would accept the new note in satisfaction of the one upon which there was a guaranty. The holder retained the new note for several years, without, however, indicating his acceptance of it in satisfaction of the prior note. In an action upon the guaranty, subsequently brought, it was held, the facts mentioned did not operate to discharge the guarantor.
    2. Same—release of other security with guarantor’s consent. If a guarantor of a note consents to the release of a trust deed also securing such note, which is done without the knowledge of the holder of the note, the guarantor will not thereby be released from his liability. Where a party consents to the doing of an act which would not have been done but for his assent thereto, the person so assenting will not be permitted to make the doing of it a matter of personal advantage to himself.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Messrs. G. & W. Garnett, for the appellant.
    Messrs. H. S. & F. S. Osborne, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

The declaration in this case contains a special count upon the guaranty of defendant, written on the back of a note made by Kirk B. Newell to plaintiff, bearing date July 1, 1876, for the sum of- $2000, with interest at the rate of ten per cent per annum. To the declaration defendant pleaded the general issue and four special pleas, upon all of which issue was joined to the country. The cause was submitted to the court for trial, without the intervention of a jury, who found the issues for plaintiff, and assessed his damages at the amount due on the note. - A motion for a new trial, made by defendant, was overruled, and the court rendered judgment against defendant for the sum found to be due to plaintiff. That judgment was affirmed in the Appellate Court, and defendant brings the case to this court.

It appears the note in controversy was made to take the place of another note made by Newell to James L. McKeever, for a like amount with the one in suit. The note first held by plaintiff was one of three notes of the same denomination, all of which seem to have been secured by trust deed on certain lots in Chicago. After the making of the notes and trust deed Newell sold the lots to one Demond, who assumed to pay the indebtedness secured on the property. The notes embraced in the trust deed were not paid when they became due, and it was agreed Newell should give new notes, to be guaranteed by defendant, and take up the McKeever notes, that he might be able to sue Demond on his agreement to pay them. Accordingly new notes were given by Newell,— ■one made payable to plaintiff, and guaranteed by defendant, in the same amount as the McKeeyer note he had surrendered under the contract. The two other notes, made at the same time, and guaranteed by defendant, were delivered to other-parties holding two of the original notes made by Newell to McKeever. The agreement as to surrendering the McKeever notes, and the making of new notes by Newell, is in writing, and is between defendant and Newell, of the first part, and plaintiff, of the second part. It was agreed that Newell should cause a suit to be brought against Demond for a breach of his agreement to pay the McKeever note that had been held by plaintiff; that he should actively prosecute the same, and that defendant should pay the costs and attorney’s fees in the prosecution of such suit, it being the intention that defendant and Newell should be placed in the legal ownership of such note, to enable them to collect it from Demond. It was further agreed, the judgment, when obtained against Demond, and which would still be secured by the trust deed on the Chicago property, should be assigned to plaintiff, if he desired it to be done, as additional security for the note in suit. It was also agreed plaintiff was not to wait, except at his option, for the payment of the note held by him, until the McKeever note, which he had surrendered to defendant and Newell, should be collected from Demond. Afterwards a suit was commenced by Newell against Demond, on his agreement to pay Newell’s notes to McKeever, in a court of competent jurisdiction in Boston, where Demond resided. A compromise was effected with Demond, by which he agreed to give Newell three notes, each for the sum of $1000, made by one Flanders, and secured on property in Boston, on condition he (Demond) should be released from his agreement to pay the McKeever notes, and that the trust deed on the Chicago property should be released, which was done. The other parties holding two of the Newell notes guaranteed by defendant, agreed each to take one of Flanders’ notes for $1000, guaranteed by defendant, in full payment of the Newell notes for $2000 each, which were also guaranteed by defendant, and to surrender the latter notes to Newell. The single question presented by this record is, whether plaintiff received one of the Flanders notes, so guaranteed by defendant, on the same terms as did the holders of the other Newell notes. It is obvious this is purely a question of fact, the determination of which is committed by law to other tribunals, and having been determined against defendant as a question of fact in the lower courts, it can not be re-investigated in this court.

The evidence shows one of the Flanders notes for $1000, with the guaranty of defendant written upon it, was sent to plaintiff by Newell, with a request that he would declare his election whether he would accept it, as the other holders of the Newell notes had done, as full payment of the note in suit, and as it was retained by him for a number of years, it is argued, as a question of law, he is estopped now to say he did not so receive the note, and for that reason defendant is discharged from his guaranty on the note in suit. It is fatal to the position taken that the trial court must have found, as a question of fact, that plaintiff did not accept one of the Flanders notes in full payment of the note in suit. That was one of the issues made by the pleadings and the evidence, and as to which a trial was had. The fact having been found against defendant, so far as any question of law is concerned, if plaintiff wrongfully retained the Flanders note, though not accepting it in payment of the note in suit, the effect would be to subject him to an action for such damages as defendant or Newell may have suffered from his wrongful conduct, and nothing more.

It is also insisted, as a matter of law, defendant is discharged from his obligation arising out of his guaranty on the note in suit for another reason,—that is, by retaining the Flanders note sent to him, plaintiff, tacitly at least, sanctioned the settlement made with Demond, by which it was agreed the trust deed on the Chicago property was released, which defendant was entitled to have stand as indemnity against loss on his guaranty on the note in suit, unless the Flanders note was received by plaintiff as actual payment of the note in controversy. Two answers may be made to this view of the case: First, it does not appear plaintiff knew any such compromise of the suit against Demond was to be made, until he was informed it had been done; and second, as there is evidence tending to show the compromise of the suit against Demond was made with the knowledge and concurrence of defendant, it,will be understood the trial court found such was the fact. That finding was affirmed by the Appellate Court, which, of course, is conclusive, so far as this court is concerned. Conceding, then, as must be done, the compromise with Demond was made with his consent and approval, defendant can not be heard to insist it was done to his injury, and therefore he is discharged from his obliga-' tion as guarantor on the note in suit. Where a party consents to the doing of an act, and which would not have been done but for his assent thereto, the person so assenting will not be permitted to make the doing of it a matter of personal advantage.

Most questions discussed as arising on this record are questions of fact, which this court is not permitted to investigate, and as no error of law is discovered, the judgment of the Appellate Court must he affirmed.

Judgment affirmed.


text:
    The Newark Fire Insurance Company v. Thomas J. Sammons et al.

      Filed at Ottawa May 19, 1884.

    1. Evidence—on the question of the delivery of policy of insmanae and payment of premium. In a suit upon a policy of insurance against loss by fire, the insurance company attempted to prove that the policy was canceled before the loss, and that no payment had been made for the policy. The plaintiffs called as a witness one of a firm of insurance brokers, who testified that he delivered the policy to the plaintiffs, and that they paid him the premium. There was evidence tending to show that the broker firm had authority to receive the premium, from the agents of the company: 1-Ield, that proof of the delivery of the policy, and of all the facts and circumstances in connection with the payment, was proper for the jury.
    2. Same—as to want of notice of cancellation of policy of insurance. On a question of notice of the cancellation of a policy of insurance prior to a loss, the insurance company claiming notice-to have been given to the agents of the assured, there is no error in allowing the assured to prove that he had received no notice of such cancellation. In such case it is proper to show that the assured had received no such notice, as well as to prove that the agents had no notice.

      3. Agency—insurance agent—in whose behalf to be considered as acting. A clause in an insurance policy that if a broker obtains the policy he shall be taken as the agent of the assured in any transaction relating to the insurance, can not overcome the fact that the broker may have acted as agent of the insurance company in some matter connected with the policy,— as, delivering the same, and collecting the premium.
    4. Insurance—what is a cancellation of policy. A mere notice of an intention to cancel a policy of insurance is not a cancellation. The mere intention of an insurer to cancel such policy can have no effect upon the contract of insurance until carried into execution.
    5. Appeal—reviewing controverted questions of fact. The judgment of the Appellate Court upon all controverted questions of fact in an ordinary action, as, upon an insurance policy for a loss, is final, and not subject to review in this court.
    - Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Horton, Hoyne & Saunders, for the appellant:
    Ryan & Co. having procured the policy, by the clause therein were made the agents of the assured “in any transaction relating to the insurance, ” and notice to them was sufficient. Millville Ins. Co. v. Collerd, 9 Vroom, (38 N. J.) 486; Wood v. Fireman’s Ins. Co. 126 Mass. 319; Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 506.
    Ryan & Co. were in no sense agents of the insurance company, not having been employed by it to solicit insurance. Ben Franklin Ins. Co. v. Weary, 4 Bradw. 78; Incoming Fire Ins. Co. v. Rubin, 79 Ill. 402.
    The company was justified in regarding Ryan & Co. as clothed with full authority to act for the assured in procuring, modifying or cancelling the policy, and their acts in respect to the policy were the same as if done by the assured. Standard Oil Co. v. Triumph Ins. Co. 64 N. Y. 89. See, also, Rohrback v. Germania Ins. Co. 62 N. Y. 62; Xemas v. Wickham, 106 Eng. C. L. 390; Anderson v. Coonley, 21 Wend. 280.

      Messrs. Lyman & Jackson, for the appellees:
    No act of appellant by making any entry in its own books, or conversations of its employees among themselves in its own office, had any effect on the policy. Rockford Ins. Co. v. Nelson, 65 Ill. 423.
    A mere notice of a desire or intention to cancel a policy is not a cancellation.
    Notwithstanding the clause making Eyan & Co. agents for the assured, they, in some matters, may have been the agents of the insurer. Union Ins. Co. v. Chipp, 93 Ill. 96; Commercial Ins. Co. v. Ives, 56 id. 404.
    The policy having been delivered by Barnett & Co. to Ryan & Co. for delivery to appellees, and it having been delivered to them without notice of cancellation, there must have been a tender of the unearned premium before the policy could be canceled. Ætna Ins. Co. v. Maguire, 51 Ill. 342; Peoria Marine and Fire Ins. Co. v. Botto, 47 id. 516.
    The fact that a note is given for the premium does not absolve the insurers from refunding in money the unearned premium. Home Ins. Co. v. Curtis, 5 Ins. Jour. 120; Wood v. Fire Ins. Co. id. 120.
    The policy delivered to appellees contained a receipt for payment, and appellant can not, under the circumstances, contradict it. Grit v. National Ins. Co. 25 Barb. 189; New York Central Ins. Co. v. National Ins. Co. 20 id. 486; 3 Kent’s Com. 260; Illinois Central Ins. Co. v. Wolf, 37 Ill. 354.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action on a policy of insurance, brought by appellees, to whom the policy was issued and delivered, against the Newark Fire Insurance Company. The policy was dated December 23, 1880, and is in the usual form, and contains, among other- conditions, the following:

“1. If any broker, or other person than the assured, has procured this policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured, and not of this company, in any transaction relating to the insurance.
“2. This insurance may be terminated, at any time by request of the assured, or by the company, on giving notice to that effect. On surrender of the policy, the company shall refund any premium that may have been paid, reserving the usual short rates in the first case, and pro rata rates in the other case.”

Ryan & Co., insurance agents in Chicago, obtained the policy for appellees, and the defence interposed by the insurance company was, that the policy had been canceled prior to the loss, by virtue of a notice given Ryan & Co. A trial of the cause in the Superior Court resulted in a verdict and judgment in favor of appellees for the amount of the loss. On appeal to the Appellate Court the judgment was affirmed.

It is not claimed that appellees were ever notified that the insurance company had elected to cancel the policy, but it is claimed that Ryan & Co. were notified by appellant that the policy was canceled, and that notice to them was notice to appellees. Whether Ryan & Co. were notified by appellant that the policy was canceled, was a question of fact for the jury, upon which the evidence was conflicting. The jury found the fact against appellant, and that finding was affirmed in the Appellate Court, and under our Practice act it is not subject to review here. It will therefore only be necessary to inquire whether the ruling of the Superior Court is correct upon the admission of evidence and the instructions to the jury.

On the trial, Kennedy, of the firm of Ryan & Co., testified that he delivered the policy to appellees, and that they paid him the premium, and the admission of this evidence is claimed to be erroneous. The appellant had attempted to prove that the policy was canceled, and that no payment had been made for the policy. What objection there could be to proof of the delivery of the policy to appellees we do not perceive, and if Ryan & Co. were authorized to receive pay for the policy for Barnett & Co., (the agents of appellant,) which the evidence'tends to show they were, all the facts and circumstances in connection with the payment were proper for the consideration of the jury.

Objection was also made to the admission of evidence that appellees had received no notice of the cancellation of the policy, but we perceive no valid objection to the admission of this evidence. Whether notice had been given appellees of the cancellation of the policy, was one of the vital questions at issue, and it was proper to show that appellees themselves had received no such notice, as well as to prove that Ryan & Co., who appellant claimed were the agents of appellees, had no notice.

The third instruction in the series given for appellees is claimed to be misleading and erroneous. It is as follows:

“The jury are also instructed, as a question of law, that it does not follow that because persons may be agents for an insurance company, they may not at the same time be brokers in the procuring insurance policies from other insurance companies; and although the jury may believe, from the evidence, that Ryan & Co. were agents for insurance companies other than the defendant, yet as to the procuring of the policy in question they may have been brokers and agents of the plaintiffs for the purpose of procuring said insurance, but as to delivering the policy and collecting the premium they may have been the agents of the defendant. ”

It is said that the clause in the policy of insurance constituted Ryan & Co. agents of appellees in all matters in relation to the insurance, which is ignored by the instruction. It is true that a clause in the policy declares that,where a broker obtains the policy, as was the case here, he shall be deemed to be the agent of the assured in any transaction relating to the insurance; but a clause of this, character can not overcome the fact that the brokers may have acted as agents of the company in some matter in connection with the policy, if such is the fact, as has been held by this court in Commercial Ins. Co. v. Ives, 56 Ill. 406, and Union Ins. Co. v. Chipp, 93 id. 100. Under these authorities the instruction was correct.

Exception was also taken to the fifth and sixth instructions given for plaintiff, but we perceive no substantial objection to them. The first one merely declares that if a policy issued December 23, 1880, insuring certain property for one year, and on January 28, 1881, the property was destroyed by fire, the jury will find for plaintiff, unless they shall find, from the evidence, the policy was canceled before the fire. It has been suggested that the jury might conclude, from the instruction, that a policy of insurance could not be canceled unless it was actually surrendered, and marked “canceled;” but no intelligent jury would be likely to arrive at such a conclusion. As to the other instruction, it only declares that a mere notice of an intention to cancel a policy of insurance, and nothing more, is not a cancellation of a policy. This could not mislead, and under the testimony before the jury it was proper. The intention of the insurer to cancel a policy could surely have no effect upon the contract of insurance until carried into execution,—and such is the doctrine of the instructions.

We have not discussed the question attempted to be raised in the argument, whether notice of cancellation given to Byan & Co. is notice to appellees, as that question, so far as the decision of this case is concerned, is not material. As disclosed by this record, the controversy before the jury was whether a notice of cancellation had been- given. That was a pure question of fact, upon which evidence was introduced by both parties, and the jury, by the verdict, found against appellant,—that no notice of cancellation had been given. That finding was affirmed in' the Appellate Court, and the judgment of that court is conclusive here, upon that branch of the ease. There is, therefore, no necessity of entering upon the discussion of the legal effect of a notice of cancellation served on the agents, because that question does not properly arise on the record. As the case stands here no notice whatever was served.

Counsel for appellant have urged, seemingly with much confidence, that a notice of cancellation was served by appellant on Eyan & Co., and that the facts upon that question are not controverted. In this they have misapprehended the real condition of the record.' There was evidence before the jury tending to prove that appellant had not notified Eyan & Co. of the cancellation of the policy,—and that testimony, :in connection with the evidence introduced by appellees, although it may have been slight, rendered the facts controverted. It may be that the evidence upon that question preponderated in favor of appellant. It may be that the verdict of the jury on that point was contrary to the weight of the. evidence, and should have been set aside by the trial court, aifd perhaps the judgment of the circuit court ought to have been reversed in the Appellate Court, on the ground that the evidence upon the question of notice preponderated in appellant’s favor; but be that as it may, under the statute the judgment of the Appellate Court upon such a question is final, and not subject to review here.

As no substantial error appears in the record, the judgment will be affirmed.

Judgment affirmed.