author: Mr. Justice Scholfield

text:
    Singer, Nimick & Co. v. H. W. Carpenter, Exr.

      Filed at Ottawa June 16, 1888.

    1. Partnership—priority as between individual creditors and, those of the firm. The law does not recognize the creditor of a firm as having a superior equity to that of the individual creditor for payment from the partnership assets. It recognizes, however, that the members of the partnership have a superior lien on the partnership property for the payment of the firm debts, and allows the creditors to avail themselves of this lien to the exclusion of individual creditors, when it has not been surrendered by the partners.
    2. Same—and herein, when partnership property becomes that of the individual partner. Where a partnership firm, by contract of sale, transfers all its property to another, so as to invest the purchaser with the equitable title, the interest of each of the partners is thereby terminated, and with it the right of the firm creditors to have the property, or the proceeds of the sale, applied first to the payment of their demands. The proceeds will be the individual property of the partners, and, as such, liable for their individual debts in preference to the claims of the firm creditors.
    3. The members of a partnership entered into an agreement with a corporation composed of themselves and others, to transfer the firm property to the corporation, for which shares of stock should be issued to the several partners in certain proportions. This contract was not fully consummated until after the death of one of the partners, and a debt of the firm was proved against his estate: Held,, that the stock issued to the deceased partner was not partnership property, and that the creditor of the firm was not entitled to have the proceeds of such stock applied in payment of his claim, to the exclusion of the individual creditors of the deceased partner.
    4. An insolvent partnership firm, in good faith, not knowing, at the time, of its insolvency, sold and transferred its property to a corporation, for shares of stock in the corporation, which were divided between the partners according to their respective interests. The stock of one of the partners was contracted to be sold and was in part delivered by him in his lifetime and the balance came to the hands of his executor: Held, that the stock so issued to the deceased partner, and consequently its proceeds, was not partnership assets, and, as such, liable to the payment of the partnership debts in preference to the individual debts of the deceased partner.
    5. Statute of Frauds—who may avail of it. Where the members of a partnership agreed to sell and transfer the firm property, consisting partly of real estate, to a corporation of which they were members, it was held, that the creditors of the firm could not interpose the Statute of Frauds to defeat the contract of sale, the members of the firm themselves not having chosen to interpose it.
    6. Specific performance—when enforced. The members of a manufacturing company, which was not incorporated, formed a corporation with other parties, and agreed to transfer to the corporation the partnership property, consisting in part of real estate and partly of personal property, the latter having a peculiar value by reason of its adaptation to use, in connection with the use of the realty, for manufacturing purposes: Held, that while the contract did not vest a present legal title in the corporation, it vested in it an equitable right to the specific property, which a court of equity would specifically enforce at the instance of the corporation, it not being in default.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.
    Mr. William Lathrop, for the appellant:
    In equity, partnership property is to be applied to partnership debts, to the exclusion of individual debts, in the distribution of estates of insolvent partners. Union Nat. Bank v. Bank of Commerce, 94 Ill. 271; McIntire v. Yates, 104 id. 491; Adams v. Sturges, 55 id. 472; Rainey v. Nance, 54 id. 29; Morrison v. Kurtz, 15 id. 193; 3 Kent, 65; Story’s Eq. Jur. secs. 675, 676.
    This rule seems to be universal wherever the assets of the individual partner and of the partnership are equitably administered, or administered in a court of equity. In the settlement of estates, the county court exercises an equitable jurisdiction. (Brandon v. Brown, 106 Ill. 519.) The rule is fundamental in this State.
    The right of the joint creditors to have their debts first satisfied from the joint property is universal, in all cases where there has been a dissolution, by the death or bankruptcy of one of the partners. Story on Partnership, secs. 361-363; Parsons on Partnership, *448; Wilder v. Keeler, 3 Paige Ch. 167;
      Rainey v. Nance, 54 Ill. 29; Water Power Co. v. Webster, 26 id. 233.
    Upon the dissolution of a co-partnership, it is the primary duty and right of each partner to require that the funds shall first he directly applied to the payment and discharge of the partnership debts and liabilities. (Story on Partnership, secs. 322, 326.) But it is where the co-partnership is dissolved by the death or bankruptcy of a partner, that this duty and obligation becomes absolute, and what before existed as a right in the co-partners themselves, is transferred to the joint creditors as an equity or a quasi lien upon the partnership effects, which they may enforce. Story on Partnership, secs. 360-364. And in ease of bankruptcy, see secs. 374-378.
    Mr. William Marshall, for the appellee:
    Partnership creditors have no lien upon the partnership assets, except as they come in the equities of the partners themselves; and if the partners have done anything to debar them from coming into a court of equity, the creditor comes under the same bar. Hapgood v. Cornwell, 48 Ill. 64; Ladd v. Griswold, 4 Gilm. 36; Williamson v. Adams, 16 Bradw. 564; Siegler v. Knox County Bank, 8 Ohio St. 516; Allen v. Center Valley Co. 21 Conn. 130; Schefer v. Fithian, 17 Ind. 463; Dunham v. Hanna, 18 id. 270.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The members of a firm which had for many years been engaged in the manufacture of agricultural implements, agreed with each other, and with some other parties, to form a corporation to carry on the same business. The firm owned and used in its business both real and personal property, and it was agreed by those agreeing to form the corporation, that this property should be transferred to the corporation, and that in payment for it the corporation should deliver to each partner a given amount of its shares of stock. The firm was at the time indebted, but it was not known by the partners that it was insolvent, and no fraudulent purpose is shown to have affected the agreement. The corporation was formed, and legally licensed to do business, pursuant to the agreement, but before the property of the firm was all transferred to it, one of the partners died. The transfer was completed after his death, and the stock was then issued by the company, and $17,500 of it was delivered to a party to whom the deceased partner had, in his lifetime, contracted it, and the remaining $2500 of it was delivered to his executors. A corporation which is a creditor of the firm, claims to be entitled to have its debt satisfied out of moneys in the hands of the executors of the deceased partner, which have been realized by a sale of the $2500 of stock, and of the property in payment for which the $17,500 of stock was delivered, before the individual creditors of the deceased partner can resort to that money. The lower courts each denied this claim, and, we think, properly.

It is not in this connection important, as counsel for appellant seems to think, whether the technical legal title passed from the deceased partner to the corporation in his lifetime. The law does not recognize the creditor of a firm as having a superior equity to that of the individual creditor for payment from the partnership assets. It recognizes, however,.that the members of the partnership have a superior lien on the partnership property for the payment of the firm debts, and allows the creditors to avail themselves of this lien to the exclusion of individual creditors, where it has not been surrendered by the partners. Hapgood v. Cornwell, 48 Ill. 64. See, also, Allen v. Center Valley Co. 21 Conn. 130; Sigler v. Knox County Bank, 8 Ohio St. 516.

The other partners, here, having joined with the deceased partner in the contract, are, of course, concluded by it if he was. While that contract did not vest a present title, it vested a right in the corporation to have it performed; and by reason of the peculiar property to be transferred,—partly real and partly personal,—and the personal having its peculiar value by reason of its adaptation to use in connection with the use of that realty, an equity vested in the corporation to have that particular property, and a court of chancery would therefore have specifically decreed a performance of the contract at the instance of the corporation, it not being in default. Marsh v. Milligan, 3 Jur. (N. S.) 979.

The creditors of the firm can not interpose the Statute of Frauds, the members of the firm themselves not having chosen to interpose it. Kelly v. Kendall et al. 118 Ill. 650.

It would, moreover, seem that the admission here made' by the appellant, that the money it is claiming to appropriate is money derived from subsequent sales of the stock of the corporation, is, of itself, sufficient to deny its right. The stock was not partnership property, and it is therefore impossible that its proceeds can be.

If the partnership property did not vest in the corporation pursuant to the contract, it is just as it was before the attempted transfer, and the firm creditors may resort to it; and if the corporation issued stock to the individual, for which it had not been paid, and to which the individual was not entitled, the loss is manifestly upon the corporation, and not upon the creditors of the firm of which the individual was a member. But if the partnership property did vest in the corporation, the interest of the partners in it was thereby terminated, and with their interest terminated that of the firm creditors. In equity it was a conversion of partnership into individual property, as of the date of the contract. In our opinion, in no view was the,stock firm property, and as it was so are its proceeds.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Timothy Grady v. The People of the State of Illinois.

      Filed at Ottawa May 9, 1888.

    1. Criminal law—right of discharge for want of prosecution. A person was committed upon a criminal charge, by the coroner’s jury, on April 6, 1887, and was indicted April 27, 1887, and was arraigned on May 2, 1887, when he pleaded not guilty. He was confined in jail from the time of his commitment until his trial and conviction, on July 18, 1887. The terms of the court began on the first Monday of each month. At the July term he entered his motion for a discharge, which was overruled. The record failed to show a continuance from the June term to the July term: Held, that the proper construction of the statute is to exclude the April term, and that the July term was the third term, within the meaning of the statute, and that in the absence of any showing in the record to the contrary, it would be presumed that the cause was continued in the manner allowed by the statute, and for the reasons therein named, and that there was no error in refusing the discharge.
    2. New trial—newly discovered evidence. It is no error to refuse a new trial when testimony alleged to be newly discovered is merely in the nature of impeaching evidence.
    Writ of Error to the Criminal Court of Cook county; the Hon. J. P. Altgeld, Judge, presiding.
    Mr. Daniel Donahoe, and Mr. Joseph B. David, for the plaintiff in error.
    Mr. Joel M. Longenecker, State’s Attorney, for the People.
   Mr. Justice Magruder

delivered the opinion of the Court:

At the April Term, 1887, of the Criminal Court of Cook County, the plaintiff in error, Timothy Grady, was indicted for the murder on April 3, 1887, of Michael O’Brien, a police officer of the city of Chicago. At the July Term, 1887, of that Court he was tried and convicted of manslaughter, the jury fixing his punishment at seventeen years’ imprisonment in the penitentiary. Judgment has been rendered and sentence pronounced in accordance with the verdict.

Plaintiff in error urges three reasons for the reversal of the judgment: first, because he was not set at liberty under section 18 of Division 13 of the Criminal Code, (Hurd’s Rev. Stat. chap. 38, sec. 438): second, because a new trial was not granted for the alleged insufficiency of the evidence to support the verdict; third, because a new trial was not granted on the ground of newly discovered evidence.

The section referred to is as follows: “Any person committed for a criminal or supposed criminal matter, and not admitted to bail and not tried at or before the second term of the court having jurisdiction of the offense, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court, at the second term, shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the People, and that there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such ease till the third term. If any such prisoner shall have been admitted to bail for a crime other than a capital offense, the court may continue the trial of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the People of the State are absent, such witnesses being mentioned by name, and the court shown wherein their testimony is material.”

On July 12, 1887, being one of the days of the July Term, 1887, of said Court, the defendant made a motion to be discharged on the grounds, that he was committed by the Coroner’s jury on April 6, 1887, (which was one of the days of the April Term) on a charge of the murder of O’Brien, and had been continuously confined in jail ever since; that three terms of Court had been held since such commitment; that he was indicted on April 27, 1887, and was arraigned and pleaded not guilty on May 2, 1887, and had always since then been ready for trial, and had at no time, either by himself or counsel, applied for a delay or continuance. The grounds as thus stated were set forth in an affidavit presented in support of the motion. The motion was overruled, exception was taken and the case was set for trial on July 18, 1887.

The terms of the Criminal Court of Cook County begin on the first Monday of each month. Therefore, between the April Term, when plaintiff in error was committed and indicted, and the July Term, when he was tried, two terms intervened to-wit: the May Term and the June. Term. Of these, the June Term is “the second term” as intended by the statute. In determining what is “the second term,” the term, at which the commitment is made, which, in this case, is the April Term, must be excluded. It follows that the July Term was the “third term” within the meaning of the statute. There is nothing, which militates against this construction in Brooks v. The People 88 Ill. 327.

In the latter ease, the commitment was made and the indictment was returned at the March Term, 1877, of the Criminal Court of Cook County, but the indictment was disposed of by a noil. pros, as to one count and by quashing the other counts. A new indictment was found at the April Term, 1877, and the motion for discharge was made and overruled and the trial was had at the July Term 1877. The April Term was there held to be the first term, and, consequently, the July term was regarded as the fourth term, because the March Term was the term at which the prisoners were committed. The reason given for the ruling in that case was, that the prisoners had been held continuously in custody from March 14 of the March Term, and that their rights were to be considered “as if there had been no dismissal of the first indictment, or as if the present indictment (that found at the April Term) had been found at the March term.”

Under the construction, which excludes from the count the term at which the commitment is made, the court below, in the case at bar, could have continued the cause from the June term, 1887, to the July term, 1887, upon the application of the defendant, or upon the motion of the People, the latter proving such grounds for postponement as are required by the statute. It is admitted, however, that the record does not show a continuance from the June term to the July term. In the absence of such showing, the presumption is that the cause was continued in the manner allowed by the statute and for the reasons therein specified.

If it were allowable to consider the affidavit of the plaintiff in error, whose contents have been hereinbefore stated, for the purpose of proving that which the record itself is silent about, then it would be proper also to take into consideration the affidavits upon this subject of the State’s Attorney and his assistant. The latter affidavits tend to show, that the cause was continued from the June term to the July term upon the application of the plaintiff in error.

We are of the opinion, that there was no error in overruling the motion for discharge made on July 12, 1887.

The evidence is abundantly sufficient to sustain the verdict. Officer Dillon swears, with positiveness and distinctness, that he was with O’Brien at the corner of Quinn Street and the alley crossing it to the southward of Archer Avenue, between the hours of eleven and twelve o’clock on the night of April 3, 1887, which was a bright moonlight night, and then and there, aided by the light of a street lamp, as well as by the natural clearness of the night, saw the plaintiff in error shoot O’Brien, and saw O’Brien fall, and helped him to the corner of Archer Avenue and Quinn Street, and there saw him again fall from the effects of the wound. Dillon knew the plaintiff in error and earlier on the same evening had tried to arrest him for shooting at O’Brien.

On the morning of April 4th plaintiff in error was arrested when coming out of or from behind a barn in the alley, where he had concealed himself, and was taken into the presence of O’Brien a short time before the latter died. O’Brien identified and pointed to Grady as the man who had killed him. O’Brien’s dying declaration, that plaintiff in error had fired the fatal shot, was made in the presence of Lawler and Fitzgerald, who both testified to it. Lawler was the notary, who had been sent for to write down the dying declaration.

The story, told by two of the companions of plaintiff in error, who were with him on the night of April 3d and went with him into the barn, that, shortly after hearing the firing of shots, they saw a man with a skull cap and light pants running through the alley, is very improbable. At any rate it was a matter for the jury to decide, and we are not of the opinion that their verdict is contrary to the weight of the evidence.

The newly discovered evidence consists of statements made in the affidavit of one' Anderson, presented on the motion for a new trial. Anderson says, that he went to the corner of Quinn Street and Archer Avenue, while Dillon and O’Brien were there on the night of the shooting, and saw O’Brien lying on the sidewalk, where he had fallen after being shot; that he heard O’Brien say: “I don’t know who shot me; Dillon, for God’s sake send for a priest;” that he also at the same time heard Dillon say that he did not know who fired the shot.

The only object of Anderson’s evidence would be to impeach Dillon and O’Brien. It is not error to refuse a new trial where the testimony, alleged to be newly discovered, is merely in the nature of impeaching evidence. (Knickerbocker Ins. Co. v. Gould 80 Ill. 388).

The judgment of the Criminal Court of Cook County is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    The Chicago, Burlington and Quincy Railroad Company v. Noah C. Perkins, Admr.

      Filed at Ottawa May 9, 1888.

    1. Change of venue—prejudice of the presiding judge. An application was made for a change of venue, on the ground of prejudice of the presiding judge against the applicant. The petition showed that one of the other judges in the circuit had been of counsel for the other party, but showed no objection to the third judge of the circuit, who was then present in the county, holding a branch court: Held, no error to refuse the application, as the cause might have been tried by such other judge against whom no objection was made.
    2. Juror—competency—as having formed an opinion, or not. On the trial of an action brought by the administrator of a deceased person against a railway company, for causing the death of the intestate, a juror was called, who stated that he had heard of the accident at the time the intestate was killed, and had heard people talk about the matter, but that he had no opinion in the case from what he had read, or otherwise: Held, no error to overrule a challenge to the juror for cause.
    3. In the same case a juror called was examined and accepted by the defendant. The plaintiff challenged him for cause. In reply to a question by the court, the juror stated that he had an opinion in regard to which one of the parties ought to recover in the case: Held, that under this statement the juror was not impartial, and was subject to challenge for cause by either party.
    4. Negligence—flagman at railroad crossings—duty not limited by statute. On the trial of an action against a railway company to recover for an injury at a street crossing, the court allowed the plaintiff to prove the fact that the company had no flagman stationed at such crossing, without any proof that the city authorities had ever notified the company that a flagman was necessary: Held, there was no error in the admission of the evidence.
    5. It is the duty of a railway company, in the running of its trains, to use ordinary care and prudence to guard against injury to the persons or property of those who may be traveling upon the public highways and have occasion to cross its tracks, whether the specific duty be prescribed by the statute or not. The fact that the statute may provide one precaution, will not relieve the company from adopting such others as public safety and common prudence may dictate.

      6. Practice—improper remarks of counsel to jury. In the statement or argument of a case to the jury, counsel should be confined to the facts of the case; yet it is impossible to lay down any general rule as to what shall or shall not be said. Much latitude is always allowed in the argument of a cause to the jury.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of La Salle county; the Hon. Dorrance Dibell, Judge, presiding.
    Mr. Samuel Richolson, and Mr. O. F. Price, for the appellant.
    Messrs. Duncan, O’Connor & Gilbert, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This cause was before us at a former term, and the judgment was reversed and the cause remanded, for the reason that an erroneous instruction had been given for the plaintiff. (Chicago, Burlington and Quincy Railroad Co. v. Dougherty, 110 Ill. 523.) After the remanding order had been filed, at the January term, 1885, of the circuit court of LaSalle county, and on the 16th day of January, the defendant filed a petition for a change of venue. The ground relied upon in the petition for a change of venue was, that George W. Stipp, one of the judges of said court, was prejudiced against the defendant, and Charles Blanchard, another of said judges, had been counsel for the plaintiff, in regard to the matters in controversy. The court overruled the petition for a change of venue, on the ground that another circuit judge of the circuit, Josiah McBoberts, was then holding a branch court in La Salle county, and as he was not alleged in the petition to be prejudiced against defendant, it could have a fair trial before him, which obviated the necessity of sending the cause to another county. No trial was had at this term of court, but at a subsequent term, on February 21, 1887, a trial of the cause was had before Judge Dibell, who had succeeded Judge McRoberts, and the jury returned a verdict in favor of the plaintiff, upon which the court entered judgment.

It is first claimed that the court erred in denying a change of venue. It appears from the bill of exceptions, that the application was predicated on the fact that one of the circuit judges was'prejudiced against the defendant, and another of the judges of the circuit had been counsel for the plaintiff; but the bill of exceptions also shows that the third judge of the circuit was, at the time of the application, present in the county, holding court, and no complaint is made that he was prejudiced, or in any manner incapacitated from trying the cause. It is quite apparent that the object of the statute allowing a change of venue on account of the prejudice of the judge, was to secure a trial before a judge who was unprejudiced. If the object intended can be obtained as well by not sending the cause to another county as by doing so, the useless expense of the transfer ought to be avoided. Under our present statute, three judges are elected in each circuit. If one is prejudiced, and if another has been counsel in the cause, if the third judge is unprejudiced, and present holding court when the application is made, no reason occurs to us why the cause should, under such circumstances, be sent to another county. The statute must receive a reasonable construction; one that will promote the ends of justice; one which will carry out the end intended,—that is, a party should not be compelled to submit to a trial before a prejudiced tribunal. We think the decision of the circuit court, on the motion to change the venue of the cause, was right, and in harmony with the ruling of this court as held in the following cases, where a similar question was involved: Curran v. Beach, 20 Ill. 259; Myers v. Walker, 31 id. 353.

In the selection of the jury, the defendant challenged, for cause, the juror Fry; but the court overruled the challenge, and the defendant excused him peremptorily. The ruling is relied upon as error. The juror had heard of the accident at the time deceased was killed, and had heard people talk about the matter, but he stated that he had no opinion in the case from what he had read, or otherwise. From this statement we perceive no error in the ruling of the court.

The defendant accepted the juror Pool, and plaintiff challenged him for cause, and the court sustained the challenge. The juror, in reply to a question asked by the court, said he had an opinion in regard to which one of the parties ought to succeed in the case. Under this statement he was not an impartial juror, and either party might, if they saw proper, challenge him for cause.

Objection is made to remarks of counsel for plaintiff, in opening the case, to the jury, that an appeal was made to the prejudices of the jury. In the statement or argument of a case to a jury, counsel should be confined to the facts in the case; but, at the same time, it is impossible to lay down any general rule as to what shall or shall not be said. Much latitude is always allowed in the. argument of a cause before a jury, and so far as appears, nothing was said here which can be regarded as error.

Section 99, of chapter 114, Starr & Curtis’ edition of the statutes of Illinois, provides: “In all cases where the public authorities having charge of any street over which there shall be a railroad crossing, shall notify any agent of the eorpora'tion owning, using or operating such railroad, that a flagman is necessary at such crossing, it shall be the duty of such railroad company, within sixty days thereafter, to place and retain a flagman at such crossing, who shall perform the duties usually required of a flagman,” etc. It does not appear that the railroad company was ever notified that a flagman was necessary at the crossing where the accident occurred, and it is claimed that the court erred in allowing the plaintiff to prove that no flagman had been stationed at the crossing. If a railroad company, in the running of its trains, had no duty to perform except what the legislature might prescribe, the position of counsel might he well taken; but such is not the case. A" railroad company, in the running of its trains, is required to use ordinary care and prudence to guard against injury to the person or property of those who may be traveling upon the public highways and are required to cross its tracks, whether required by the statute or not. The fact that the statute may provide one precaution, does not relieve the company from adopting such others as public safety and common prudence may dictate. Shober v. St. Paul, Minneapolis and Minnesota Railway Co. 28 Minn. 107.

Other rulings of the court in regard to the admission and exclusion of evidence have been criticized, but we perceive no substantial error in this regard.

It is also insisted that the court erred in its rulings on the instructions. No instructions were asked or given in behalf of the plaintiff. The defendant requested the court to give twenty-four instructions. Nineteen were given; some of them were, however, modified. Whether all the modifications were entirely accurate or not, it will not be necessary to inquire, as it is apparent that all the law involved in the case, so far as the rights of the defendant were to be affected, was fully given to the jury by the instructions.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    The American Fire Insurance Company v. The Brighton Cotton Manufacturing Company.

      Filed at Ottawa June 16, 1888.

    1, Insurance—condition that premises shall not “become vacant and unoccupied”—construed. A policy of insurance upon a cotton-factory contained a condition that if the assured “shall allow the building herein covered to become vacant and unoccupied, the policy shall become null and void.” In a suit to recover for a loss by fire, it appeared that work in the factory, in many of the departments, was in temporary suspension for purposes relating to supplies, etc. Most of the hands were discharged until work should be resumed, which was expected to be in a short time. But a number of employes were retained, and were engaged in and about their usual work in the factory, up to and on the day of the fire. All the plant and much valuable material, and some manufactured goods, were in the building. One of the proprietors was either in or at the building when the fire was discovered, and came there with money to pay persons engaged as laborers about the mill. A night and day watchman were retained, and performed their usual duties. It was held, the property was at no time before the fire “vacant and unoccupied,” within the meaning of the policy.
    2. Same—condition that manufacturing establishment shall not cease to be operated—construed. A policy of insurance of a manufacturing establishment contained a condition that if the establishment should cease to be operated without special agreement indorsed thereon, the insurance should cease. There was indorsed on the policy when it was delivered, “other insurance permitted without notice, and permission granted to set up and operate machinery, and to make such repairs and alterations as may be necessary to keep the premises in good order during the time of this policy, without prejudice thereto:” Held, that the condition and this permission were to be construed together, as constituting the contract of the parties, and when so construed it showed an understanding that there might be a temporary suspension in the operation of the mill, for the purpose of making repairs: Held, also, that a temporary suspension of some parts of the business, others being carried on, or a temporary suspension of all work for want of a supply of materials, was not a breach of the condition.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. R. S. Williamson, Judge, presiding.
    Mr. Frederic Ullman, and Mr. Elbert H. Gary, for the appellant:
    The same rule of construction is applied to policies of insurance as to other contracts, the words to be taken in their usual sense. Robertson v. French, 4 East, 135; Insurance Co. v. Foster, 92 Ill. 336; Sawyer v. Insurance Co. 37 Wis. 518; Potter v. Insurance Co. 5 Hill, 147; Padfield v. Insurance Co. 78 Ill. 167; Herman v. Insurance Co. 85 N. Y. 171.

      The words, “cease operation,” apply as well to a temporary suspension as to a permanent one. Insurance Co. v. Wetmore, 32 Ill. 245; Keith v. Insurance Co. 10 Allen, 228; Schmidt v. Insurance Co. 41 Ill. 298; La Salle v. Insurance Co. 43 N. Y. 468; Insurance Co. v. McDowell, 50 Ill. 129; Ridge v. Insurance Co. 9 Lea, 207; Worthington v. Bearce, 12 Allen, 382; May on Insurance, sec. 265; Phillips on Insurance, sec. 975.
    The books abound in cases where it has been held the length of time of the condition broken is not material, even though an intention to resume the original condition of things existed. In addition to the cases already referred to, the following cases are cited: Sleeper v. Insurance Co. 56 N. H. 401; 5 I. L. J. 538; Ashworth v. Insurance Co. 112 Mass. 422; Whitney v. Insurance Co. 9 Hun, 39; Cook v. Insurance Co. 70 Mo. 610; Wood on Insurance, (2d ed.) p. 211; Alston v. Insurance Co. 80 N. C. 326; Miller v. Insurance Co. 18 Phil. 551.
    There is no cessation of operations, within the meaning of the policy, on Sunday. The operatives begin work on Monday when they quit on Saturday. The suspension arises from the known and universal custom of resting from labor on Sunday. When the contract was made, it was with reference to this. custom. But there is a vast difference between a suspension for such a reason and “other reasons occasioned by the usual and ordinary incidents to the business.” Insurance Co. v. Foster, 92 Ill. 336; Wood v. Insurance Co. 83 N. Y. 133.
    As to what constitutes a cessation of operations, see Houghton v. Insurance Co. 8 Metc. 114.
    It has been contended, also, that the contract, as made, is to be affected by the usage of the assured, or others engaged in a similar business, to cease operations for various reasons that may have arisen. This question is, perhaps, not pertinent to the questions involved in this court, but the following cases on the subject are cited: Woolen Co. v. Insurance Co. 22 Conn. 19, and cases there cited. See, also, Insurance Co. v. O’Neile, 13 Ill. 93; Luce v. Insurance Co. 105 Mass. 302;
      Mason v. Insurance Co. Upper Canada, Q. B. 585; Ripley v. Insurance Co. 30 N. Y. 136; Duncan v. Green, 43 Iowa, 337; Partridge v. Insurance Co. 15, Wall. 133; Woolen Co. v. Proctor, 7 Cush. 417; Insurance Co. v. Harmer, 2 Ohio St. 452.
    It is claimed by appellant that the insured premises, at the time of the fire, were vacant and unoccupied, within the meaning of the condition of the policy upon that subject. Paine v. Insurance Co. 5 T. & C. 619; Keith v. Insurance Co. 10 Allen, 228; Insurance Co. v. Walsh, 54 Ill. 164; Insurance Co. v. Padfield, 78 id. 167; Ashworth v. Insurance Co. 112 Mass. 422; Reed v. Insurance Co. 90 N. Y. 382; Whitney v. Insurance Co. 9 Hun, 39; Insurance Co. v. Foster, 92 Ill. 336; Corrigan v. Insurance Co. 122 Mass. 298; Litch v. Insurance Co. 136 id. 491; Insurance Co. v. Meyer, 63 Ind. 238; Alston v. Insurance Co. 80 N. C. 326; Bennett v. Insurance Co. 51 Conn. 817; 50 id. 470; Herman v. Insurance Co. 85 N. Y. 162; Cook v. Insurance Co. 70 Mo. 610; Poor v. Insurance Co. 125 Mass. 274; Wood on Insurance, 209.
    Mr. Edward W. Russell, and Mr. D. J. Schuyler, for the appellee:
    A contract of insurance will be construed most strongly in favor of the insured. The conditions therein are construed strictly. Hollman v. Insurance Co. 32 N. Y. 405; Westfall v. Insurance Co. 2 Duer, 490; Cropper v. Insurance Co. 32 Pa. St. 351; Insurance Co. v. Verdier, 33 Mich. 138; Insurance Co.v. Robinson, 64 Ill. 268; Insurance Co. v. Scammon, 100 id. 644; Schroeder v. Insurance Co. 109 id. 157; National Bank v. Insurance Co. 95 U. S. 673.
    The mill and establishment were never vacant and unoccupied, within the meaning of the condition. Delays and interruptions in the business, involving a temporary discontinuance of the active use of the mill, will not make the mill vacant and unoccupied. Whitney v. Insurance Co. 72 N. Y. 120; Lead

      Works v. Insurance Co. 2 Fed. Rep. 479; Stephlanki v. Insurance Co. 43 Mich. 373; Dennison v. Insurance Co. 52 Iowa, 457.
    A mere temporary suspension of business, for the purpose of repairing or for want of a supply of materials, is clearly not ceasing to operate the establishment, within the meaning of the policy. Poss v. Insurance Co. 7 Lea, 704.
    When the appellant took the risk, it knew that the property was a cotton-mill; that various emergencies were likely to arise when the mill would have to be closed; that cotton might become scarce or so high in price as to call for a suspension for a while; that the machinery was liable to wear out, and require repairing; that strikes might arise, and help might become scarce, or wages exorbitantly high. Assurance Co. v. Mason, 5 Bradw. 141; Gamwell v. Insurance Co. 12 Cush. 167; Insurance Co. v. Foster, 90 Ill. 121; Insurance Co. v. Scammon, 100 id. 644; Insurance Co. v. Cormick, 24 id. 455; 1 Wood on Insurance, (2d ed.) p. 154; Grant v. Insurance Co. 5 Hill, 10; Billings v. Insurance Co. 20 Conn. 139; Townsend v. Insurance Co. 18 N. Y. 168; Insurance Co. v. Insurance Co. 1 Handy, (Ohio,) 181.
    At the time the policy in question was issued, express permission was granted to the plaintiffs to make all necessary repairs and requisite alterations. But whether this would extend to the plaintiff’s lessee is immaterial, for the reason that this privilege is presumed to have been contemplated by the underwriter when the policy was written. Whitney v. Insurance Co. 72 N. Y. 117; Townsend v. Insurance Co. 18 id. 168; May on Insurance, (2d ed.) sec. 230, p. 281.
   Mr. Justice Scott

delivered the opinion of the Court:

In the policy upon which this suit was brought, division 3, entitled “prohibitions and conditions under which this policy becomes null and void,” contains provisions which it is alleged assured has suffered to be violated, and hence the insurance contract has ceased to be obligatory upon the company. It is on the alleged violations of these provisions of the contract defendant bases its defense.

Concerning many of the principal facts no controversy exists. The property covered by the policy is a four-story and basement brick cotton-mill building, and the usual plant necessary to running such a mill. After the policy was written, plaintiff leased the mill to certain parties, who continued to operate and control it until its destruction by fire, on the 16th of July, 1885. Such leasing was made by the consent of the company, and no complaint is made on that ground. The lessees had operated the mill, under the lease, up to July 8, just before the destruction of the property. On that day most of the hands employed about the mill were discharged until their services should be again needed when the lessees should be ready to resume work again in all the departments. There is evidence tending to show the employes understood the suspension of work was to be for only a short time. It was conceded by counsel for defendant, at the trial, the lessees “did at some time expect to start up again.” For that purpose they were getting in coal, and doing other things indicating an intention to resume business. The evidence tends to show the date it was expected labor would be resumed was about the 1st of August next after the destruction of the property in July. , So far as other principal facts may be thought to be necessary to an understanding of the decision to be rendered, they will be stated, otherwise not.

One condition of the insurance contract is, if the assured “shall allow the building herein covered to become vacant and unoccupied, the policy shall become null and void.” There is no ground for the insistence there was a breach of this condition of the policy. It is undeniable a number of employes were retained in the service of the lessees, and were actually engaged in and about their usual work in the mill, up to and on the day the fire occurred. All the plant and much valuable material, and some manufactured goods, were in the building. One of the lessees was either in or at the building when the fire was discovered, and came there with money to pay persons engaged as laborers about the mill. A night and day watchman were retained, and performed their usual duties. It is so plain it needs no discussion, the property was at no time before the fire “vacant and unoccupied,” in the sense those terms are used in the policy.

Another condition of the policy is, “if it be a manufacturing establishment, running in whole or in part over or extra time, or running at night, or if it shall cease to be operated, without special agreement indorsed hereon, all insurance by this policy shall thereupon cease.” It is said the mill had “ceased to he operated” by the lessees, and, as a consequence, there was such a breach of this condition as rendered the policy inoperative, and no longer binding upon defendant. It will be noted, this provision is contained' among the printed conditions annexed to the policy. But there was indorsed upon the policy at the time the description of the property was written, the following: “Other insurance permitted without notice, and permission granted to set up and operate machinery, and to make such repairs and alterations as may be necessary to keep the premises in good order during the term of this policy, without prejudice thereto,” which, of course, became a part of the insurance contract. The original condition and this permission are to be construed together, as constituting the contract between the parties. When this is done, it is evident it was understood there might be temporary suspension in the operating of the mill. In the very nature of things, the setting up of machinery and making repairs and alterations would require the temporary suspension of some or all work about the factory,—perhaps not all in every instance, but that portion that would he interfered with in making needed repairs. It is therefore within the plain meaning of the contract, there might be temporary suspensions of a portion or of all of the work, for certain reasons, without prejudice to the contract, and among the causes is, to “make such repairs and alterations as may be necessary to keep the premises in good order.” There is some evidence that one object of the suspension of the general work of the mill was, that needed repairs might he made. The trial court may have found such was the case, and the finding of the Appellate Court, by the affirmance of its judgment the same way, would, of course, be conclusive on this court. Conceding such fact was well found, the temporary suspension of a large portion of the work at the mill, as was' done, was rightful, as being within the express terms of the contract.

No doubt it is true, as counsel contend, the principal reason for the suspension of work, for the time being, was the difficulty of securing that quality of cotton at such prices as could be manufactured at a profit, and the contention is, it was a breach of the contract to close down the factory, as was done, for any such cause. The argument on this branch of the case assumes for its support that which does not exist in fact, viz., that there was á total suspension of work in the factory. Without this erroneous assumption, the position of counsel has little, if anything, to sustain it. What is the meaning to the words, “cease to he operated,” as used in the policy? The operation of a large manufacturing establishment means doing everything necessary for its successful and profitable management. It would necessarily be the work of many hands, and the operation would be multiplied many fold. The duties of the many employes would be quite dissimilar and entirely independent of each other, but all necessary to either the profitable or successful operation of the factory. It would be the duty of some to buy the raw material to be manufactured, of others to run the engines to drive the spindles, of others to control and manage the carding and spinning, of others to put up and label the goods for the market, of others to make sales and take orders for goods as fast as manufactured, of others to deliver or ship goods when sold, and of others to perform such duties as may be necessary to be done, and which it would be needless to enumerate. The ceasing to perform any one thing, for the time being, of the many required to be done, would certainly not be to cease to operate the factory. Any one might be temporarily suspended and yet the factory be said to be in successful operation. “Carding and spinning” is not all that is included in a “cotton factory.” There must be the engine to drive the machinery, and fuel to make steam. The goods, when manufactured, must be put up and labeled, and when so prepared for the market, must be sold and shipped or delivered, and the doing of any one of these many things is a part, and even an essential part, of the operation of a large factory. Nor is the ceasing to do any one of them for a shorter or longer period ceasing to operate the factory. “Carding and spinning” is no more all of the operation of a great factory than the sale of the fabrics when produced. Many, very many, things are included in the operations of a factory, the doing of which is necessary to its successful management. The operating of an extensive factory does not mean it shall be kept employed in all its various departments every day,—that is, all the time. It would be unreasonable to construe the contract in this policy, that it means the factory, in all its departments, shall be kept in ceaseless motion. No one supposes it means that. It may properly be closed down over Sundays and all legal holidays, or for any cause that a prudent manager of such an establishment would deem prudent and best for the interests of the owners. On the same principle, one department may be kept in operation and others cease temporarily. It might be the fabrics manufactured might be in excess of the sales or the demands of trade, and for that reason a prudent superintendent might deem it best to stop the spindles and the looms for a season, or sales might be in excess of the supplies, and for that reason no goods would be contracted for a time. Would any one say that such partial stoppages would be a violation of the contract of insurance contained in the policy in suit ? So narrow a construction would make the contract of no value to the assured, and to observe it would render the usual and ordinary management of such an establishment impracticable. A rule of construction to all contracts shall be so interpreted that they may be capable of performance, if it can be done consistently with the intention of the parties. In this case the evidence shows some of the hands were retained in the service of the lessees, and continued to perform their usual duties up to the day the fire occurred. The trial court might have found the mill had not “ceased to be operated.” That was one of the controverted questions of fact in the ease not subject to review in this court, and as to which the finding of the Appellate Court, affirming the judgment of the trial court, is conclusive. This view leads to an affirmance of the judgment of the Appellate Court, without reference to other questions discussed.

But conceding there was a suspension of all work at the mill, and that the sole cause of such stoppage was the difficulty in procuring cotton of the quality that could be worked up at a profit, still it was but a temporary suspension, and the law is, a mere temporary suspension of business at such an establishment, for want of a supply of materials, is not ceasing to operate the factory, in the sense the words, “ceased to be operated,” are used in the policy in suit. The rule in this respect is a reasonable one, and has many authorities in its support. It may be, and doubtless is, true, there are cases that sustain a different construction; but it is thought the rule here adopted has more and better considerations in its support than any other.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.