author: Mr. Justice Mulkey

text:
    Sjoerd Tunesma v. Peter Schuttler.

      Filed at Ottawa May 15, 1885.

    1. Chancery—jurisdiction to enforce legal rights, as distinguished from, those which are merely equitable. It does not follow that because rights are legal ones they are not cognizable in a court of equity. If there are any equitable conditions authorizing that court to act at all, it will, if necessary to do complete justice, enforce legal as freely as equitable rights. In exercising its jurisdiction when it has once attached, it is wholly immaterial whether the rights to be enforced are purely legal or are merely equitable in their character.
    2. Same—stockholders’ liability—enforcement in chancery—to the ex~ elusion of the remedy at law. A bill filed by certain creditors of an insolvent banking corporation, on their behalf and for all other creditors, against the several stockholders in the same, alleged the insolvency of the bank, a, deficiency in assets to pay its creditors, the personal liability of stockholders, under the charter, to the depositors and creditors, the existence of some nine hundred unpaid depositors, some of -whom were seeking, by separate suits at, law, to get an advantage over the others, and that such separate litigation would waste and exhaust the proceeds of this liability of stockholders, the only fund to which depositors could look for payment, and asking to have an account taken of all the liabilities of the bank, and establish the amount for which the various stockholders were liable personally, and to have the amount of the debts proven apportioned among the stockholders: Held, that the bill clearly showed a case for equitable relief, and gave the court jurisdiction of the subject matter. ;
    3. The fundamental principle upon w'hich bills of this kind are maintained, is, equality of benefit and burden among a numerous class of persons similarly situated, in respect to a particular fund. The principle that equality is equity, is one of the most fruitful sources of equity jurisdiction.

      4. Same—conclusive'!less of decree in such a case, both as to persons and remedies. A decree of a court of equity fully adjudicating and settling the extent of the personal liability of all the stockholders of an insolvent corporation, upon a proper bill filed for that purpose by certain creditors, for themselves and all other creditors who might come in and prove their demands, is binding and conclusive upon all creditors making themselves parties to the suit, no matter if it may be erroneous, in all collateral suits and proceedings.
    5. So in this case, a bill was filed by certain creditors of an insolvent bank, in behalf of themselves and all other creditors, seeking the appointment of a receiver, etc., under which one was appointed, and an order or decree was rendered therein directing the receiver to pay to the creditors seventy per cent of the par value of their claims. After this, an amended and supplemental bill was filed, making the bank and all its stockholders parties, and asking for a decree to compel the stockholders to pay a sum sufficient to discharge the balance of the debts, and the receiver filed a similar petition. During the pendency of the three last bills, a creditor of the bank, not a party to the bill by name, came in and received his dividend of seventy per cent from the receiver. The court then referred the case to the master, who, after having given notice to all persons to prove their claims, found the amount of the same, and the amount of the deficiency of the assets coming to the receiver,—which finding was approved, and the stockholders decreed to pay a certain amount which was required to satisfy all the debts in full, which was done, and the stockholders discharged from further liability: Held, that the final decree was binding upon such creditor who came in and received his dividend, the same as if he had been a party by name, and that such decree was a bar to any suit at law by him against a stockholder who had paid his share under the decree.
    Appeal from the Appellate Court for the First District;— . heard in the court on appeal from the Circuit Court of Cook county; the Hon. John G. Roobbs, Judge, presiding.
    This was an action brought by the appellant, in the circuit court of Cook county, against the appellee, as a stockholder of the late German Savings Bank of Chicago, to recover a balance of $2624.88 due him as a depositor of said bank. The action is founded on the 9th section of the charter of the bank, which is as follows: “When default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsible for an amount equal to the amount of the stock held by them, respectively; and such liability shall continue until six months after an assignment of the stock, and publication of a notice thereof in a newspaper published in the city of Chicago.”
    To the declaration, which showed a prima facie right of recovery, the defendant filed,- among others, the following plea, which is designated in the record as the fourth amended plea :
    “And for a further plea in this behalf, the defendant says, that the plaintiff ought not to have his aforesaid action against, him, the defendant, because he says that heretofore, to-wit, on the 7th day of December, 1877, the said German Savings Bank ceased to do business, and thereupon, on said day, in the Superior Court aforesaid, one Herman G. Berls and other-creditors of said bank, on behalf of themselves and of all other creditors of said bank, filed their certain bill of complaint, on the chancery side of said court, against said company, praying that a receiver of the assets and property of said bank be appointed, and that said bank be declared in-, solvent, and its affairs wound up, its assets collected and its-debts paid under the direction of said court; that thereupon such proceedings were had in said court that on the 8th day of December, 1877, said bank was by said court declared to be insolvent, and one Oliver H. Horton was by the order of said court appointed receiver of said bank, of all its property and assets, and empowered to collect and dispose of the-same for the purposes as prayed in said bill; that thereupon such proceedings were had in said court that by an order therein entered on the 27th day of June, 1882, said receiver was authorized ' and directed, out of the moneys then in his hands, to pay unto the creditors of said bank a dividend of seventy per cent upon the par value of their respective claims; that afterwards, to-wit, on the 3d day of July, 1882, the said complainant, Berls, and others, for themselves and all other-creditors of the said bank, filed in said cause, in the court. aforesaid, their amended and supplemental hill, making the said bank, and all stockholders thereof at che time of its insolvency aforesaid, including this defendant, Peter Schuttler, parties defendant thereto, and alleging the incorporation of said bank, and the acceptance of its charter, the insolvency of the said bank, the insufficiency of its assets then in the hands-of the said receiver to pay its debts, and setting up the liability of said stockholders for the deficiency thus arising, as the said plaintiff has in his above declaration u set out, and praying that the said defendant stockholders might be required to pay such deficiency by reason of such liability; that thereupon, on the 5th day of July, 1882, the said receiver filed his petition in said cause, setting forth, substantially, the same facts-in said amended supplemental bill set forth, to which petition said stockholders, including this defendant, Peter Schuttler, were made parties defendant, and praying that any decree upon said amended and supplemental bill be made payable to him, the said receiver, for the benefit of all the creditors of the said German Savings Bank, and praying for the instruction of the court in the premises; that thereupon such proceedings were had, on the-day of July, 1882, the said creditors of said bank, who had also brought suits at law against the individual stockholders, as above set out, were, by preliminary injunction of said court, restrained from further prosecution of said suits until the final hearing of said cause; that during the pendency of said supplemental and amended bill, to-wit, on the 21st day of July, 1882, the said plaintiff asked for and received from the receiver in the said cause the sum of $3062.34, as and for his dividend of seventy per cent upon its par value upon his said claim against the said bank, which said dividend was then paid by said receiver out of the assets of the said bank itself; that afterwards issues-were joined upon said amended and supplemental bill and petition, and such proceedings were had by the said court-that on the 27th day of January, 1883, upon the hearing of said cause upon said amended and supplemental bill and the petition of said receiver, the court found the facts to be as set out in said amended and supplemental bill, and it was theretofore decreed by the said court that the said defendant stockholders, including this defendant, Peter Sehuttler, were liable for the debts and liabilities of said bank to its creditors, as set forth in said amended and supplemental bill and peti- . tion, and as said plaintiff has in his said declaration above set out, and that the said Peter Sehuttler was liable in the sum of $5000. It was further decreed by the court, before entering the final decree in said cause, that the same be referred to Benjamin D. Magruder, master in chancery in said court, to ascertain the amount due the creditors of said bank, and the amount necessary to defray the expenses of closing up said proceedings, and the amount necessary to pay such claims as might be proven against said bank. And it was further ordered, as followsThat said master shall give notice, by publication in the ‘Chicago Daily News,’ and the < Illinois. Staats Zeitung,’ to all the creditors of the German Savings Bank to appear before him on or before a certain day, not less than twenty days from the date of such notice, to be by him fixed, and prove and establish their claims and the amount due them, and the 'said master shall thereupon report to this court his conclusions, together with the evidence taken by him touching the same; that thereupon the said master gave the notice in the manner and form required by the said decree, beginning on February 1, 1883, and fixed the 24th day of February, 1883, and all intervening days, as the time, and his office in Chicago as the place, for the creditors of said bank to prove their claims against the same; that afterwards, by an order of said Superior Court in said . cause,- the time for proving such claims was extended until March 16, 1883; that on May 5, 1883, the said master duly filed in. said Superior Court his report of said claims, etc., as required by said decree of January 27, 1883, and setting forth the notice given by him in pursuance thereof, as aforesaid ; and.thereupon such proceedings were had in said cause that on the 27th day of May, 1883, it was decreed by said Superior Court in said cause, that said report be approved, and that the assets of said bank were insufficient to pay the claims of said bank so proven and allowed; that the said Oliver H. Horton, the said receiver, for the use of all the creditors of said bank, have and recover from the stockholders of said German Savings Bank who were defendants in said cause, and including this defendant, Peter Schuttler, the sum of four thousand six hundred and four dollars and seventy-five cents ($4604.75,)—the amount of such deficiency; and that upon payment thereof to him, the said Horton should satisfy the said judgment against all of said stockholders, including this defendant, Peter Schuttler, as a final release of the liability of the said stockholders.. And it was further-ordered, that if any stockholder shall pay more than his pro rata share according to the amount of said stock held by him, he should be entitled to contribution from the other of said stockholders, and may apply to this court and have relief in this cause; that afterwards, to-wit, on the 14th day of July, 1883, the said Horton, as such receiver, received payment of said sum of '$4604.75 from said stockholders, including this defendant, and entered due and full satisfaction of said judgment and decree upon the records of said Superior Court in said cause, and acknowdedged therein that he had received payment thereof from the said stockholders, including this defendant, Peter Schuttler, and that such payment was in full of all such liability of such stockholders and this defendant, Schuttler, as by the record thereof still remaining in the said Superior Court, and by a duly certified copy of said amended and supplemental bill, the two decrees of said court therein, and the receipt of said Horton hereto attached, marked ‘Exhibit A,’ and made part hereof, moré fully appears, which said judgment and record still remains in full force,—and this the defendant is ready to verify by the said record, whereof he prays judgment if the plaintiff ought to have his aforesaid action,” etc.
    To this plea the plaintiff replied that “he had no knowledge-of the proceedings had under and in pursuance of said supplemental bill and receiver’s petition mentioned in said plea, and was nót a party thereto, and received none of the benefits-arising therefrom, and that said court of chancery had no-jurisdiction of this plaintiff nor of the subject matter constituting the plaintiff’s cause of action herein, ” etc.
    The court sustained a demurrer to the replication, and the plaintiff declining to make any other or further answer to the-plea, judgment was thereupon entered against him for costs, which having been affirmed by the Appellate Court for the First District, the plaintiff appealed to this court.
    Mr. John W. Lanehart, and Mr. John P. Altg-eld, for the-appellant:
    The doctrine that where there are many parties interested in a common fund, any one may commence an action on. behalf of himself and all others without naming them, and that the chancellor in such a case may require all to establish, their claims within a specified time, failing in which they will be barred, is not new. It is discussed and clearly stated in. Hallett v. Hallett, 2 Paige’s Ch. 16. This, in fact, is the leading case on this subject, and is the authority relied on by Barbour in his work on Parties, as well as by other writers. But the court there distinctly says that in all this class of cases the proceedings are in rem,—i. e., are against a fund in the hands of the court, as, for example, the assets of the-bank in the hands of the receiver. But in the present case-the liability of the stockholders did not constitute a fund in the hands of the court, and under the control of the receiver, for the receiver represented the bank. He could sue for and collect any money due the bank, but the liability of the stockholders did not run to the bank, and the bank never could enforce it; and if the bank could not, the receiver could not, for he represented only the bank. He could not act in a dual capacity, and represent both the bank and its creditors.
    Mr. Eugene E. Prussing, for the appellee:
    The circuit court, in chancery, had jurisdiction of the person of appellant, although he was not a party by name. Story’s Eq. Pl. secs. 97, 99; Barbour on Parties to Action, 553; Freeman on Judgments, sec. 157; Ryan v. Lynch, 68 Ill. 160.
    That court had jurisdiction of the subject matter of the proceedings under the amended and supplemental bill. Wincock v. Turpin, 96 Ill. 135; Eames v. Doris, 102 id. 350.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The decision of this case depends entirely upon the sufficiency of the fourth amended plea, for if it does not present a defence to the action, the demurrer should have been sustained to it, and not to the replication, as was done. On the other hand, if the plea is good, it is quite clear the replication affords no answer to it. Its sufficiency, of course, depends upon the validity of the proceedings under the original bill and supplemental bill, mentioned in the plea,—or, differently expressed, upon whether the court had jurisdiction of the person and subject matter of the suit in those proceedings.

With respect to the proceedings and orders made under the original bill, up to the time of filing the supplemental bill, their regularity and validity do not seem to be questioned. The controversy relates entirely to what was done under the supplemental bill, the contention of appellant being that the rights of depositors, under the 9th section of the charter, are purely legal, and enforcible only in a court of law. It may be conceded that the rights in question are purely legal, as contradistinguished from equitable, rights, but it does not necessarily follow that they are cognizable in a court of law only, for when equitable conditions are present authorizing a court of equity to act at all, it will, if necessary to do complete justice, enforce legal as freely as equitable rights. In exercising its jurisdiction, when it has once attached, it is wholly immaterial whether the rights to be enforced are legal or equitable.

Wincock v. Turpin, 96 Ill. 135, is cited as an authority against the jurisdiction of a court of equity to enforce the rights of depositors under a charter provision similar to the one now under consideration. It is true the bill in that case was for the purpose of enforcing a liability of the same kind .as that now under consideration, and that the right to relief, under the bill as framed in that case, was denied; but the ■case does not decide that a bill will not lie in any case to enforce this liability. The very contrary is, in effect, admitted. Thus it is said: “It may be a state of facts might exist which would authorize a court of equity to bring before it all the stockholders and depositors, and determine their rights and adjust equities, marshal the fund, and distribute it pro rata,- but no such case is made by this bill, and until such a case shall be made we must leave the depositors to pursue their remedies under the law.” That case was disposed of in the court below upon a demurrer to the bill. The chancellor being of opinion sufficient was shown to warrant the relief prayed, a decree was entered accordingly. On appeal to this court the decree was reversed, this court being of opinion that the case made by the bill was not sufficient to warrant the court to interfere with the depositors in pursuing their legal remedies, and this is all that is really decided by that case. It is there distinctly said: “This bill is singularly indefinite as to the .manner or the grounds of liability of the stockholders. It is not alleged that they are liable for the unpaid balance of their stock, or under the clause in the charter which renders shareholders liable to the depositors to the amount of the shares of stock held, by them, or that their liability was not incurred in some other manner. The bill is too indefinite, vague and uncertain to sustain a decree granting the relief sought. ” Thus it will be seen the decision itself is confined within very narrow limits, and that it was concurred in by a bare majority of the court. It is true the argument of the court, as is most always the case, takes a somewhat wider range; but it is well understood, and hardly necessary to be repeated, that the general expressions in an opinion not necessary to a decision of the case, are always to be limited by the facts directly in issue.

With the language of the opinion in that ease thus limited, we see nothing in it to justify the conclusion that a bill of this kind will not lie under any circumstances, but, as already stated, the very contrary is conceded. All doubt on this question, however, is completely removed by the later case of Eames v. Doris, 102 Ill. 350, which expressly holds that a bill of this kind will lie, so that the only question now is, so far as the present inquiry is concerned, do the facts stated in the bill under consideration bring the case within the general principle or rule established by that case? We have no hesitancy in saying they do. The insolvency of the bank, deficiency in assets to pay creditors, the personal liability of stockholders to the depositors, the existence of some nine hundred unpaid depositors, some of whom were trying, by separate suits at law, to get an advantage over the others, and that such separate litigation would waste and exhaust the proceeds of this liability of the stockholders, the only fund to which depositors could look for payment, is all clearly stated in the bill. This was sufficient. The fundamental principle upon which bills of this kind are maintained, is equality of benefit and burden among a numerous class of persons similarly situated, in respect to a particular fund. The principle that equality is equity, has its foundations deeply laid in equity law, and is one of the most fruitful sources of equity jurisdiction.

The proceedings set forth in the plea seem to have been conducted with special reference to those in the Eames-Doris. case, supra, which have received the approval of this court, and we are fully satisfied with all that was said in that case. That the liability of the stockholders of the German Savings Bank, under the 9th section of its charter, was adjudicated and settled by the final decree in the proceedings under consideration, is not to be denied, and it must be conceded, if the court had power and jurisdiction, as against the appellant, to render it, it is wholly immaterial whether the decree is erroneous or not, for until reversed or otherwise annulled and set aside, it is just as binding in the one case as the other.

Having reached the conclusion that the matter set up in the supplemental bill was equally cognizable in a court of equity with that disclosed by the original bill, it follows there is no ground for the claim of appellant, so far as it is based' upon the difference in the subject matter of the two bills, that he may be bound by what was done under the one, and yet not be bound by what was done under the other. Upon filing the supplemental bill July 3, Í882, the two bills in effect became one bill, as much so as if the new matter had been engrafted upon the original bill by way of amendment.' (Gillet v. Hall, 13 Conn. 426; Hill v. Hill, 10 Ala. 527.) After this, to-wit, on the 27th of the same month, appellant came in and accepted of the receiver his pro rata share of the money then in the receiver’s hands for distribution, under an interlocutory order in the cause. While his name was not mentioned in the bill, either as plaintiff or defendant, yet the suit was commenced on his behalf as much as it was on behalf of the complainants expressly named, and by coming in and proving his interests he was entitled to the same benefits of the litigation, in proportion to the amount of his claim, as they were. This right appellant exercised under the first order of distribution, and if he subsequently neglected his interests, as he appears to have done, he must abide the consequences. By coining in and availing himself of. part of the fruits of the litigation he took the position of a complainant in the bill, and in doing so he is conclusively presumed to have had notice of all steps taken in the case up to that time, and having taken the position of a complainant, he can not be heard to set up his ignorance of what occurred in it afterwards.

For the reasons stated, we are of opinion the judgment of the trial court was in conformity with the law, and that consequently it was properly affirmed by the Appellate Court.

Judgment affirmed,.


source: Caselaw Access Project

author: Mr. Chief Justice Scholfield

license: Public Domain

text:
    Lillie Williams v. George H. Forbes, Admr.

      Filed at Ottawa May 15, 1885.

    1. Appeal—reviewing facts—ichen found by the Appellate Court. The ■statute makes it the duty of the Appellate Court, where its judgment is the result of its finding the facts differently from that of the trial court, to state, in its final judgment or decree, the facts as found by it; and when that court does so recite its finding, its decision as to the facts found is conclusive, and ■can not be reviewed by this court.
    2. Gift—revocable until executed—and when considered as executed. A gift is always revocable until it is executed, and a promissory note, intended purely as a gift, is but a promise to make a gift in the future. In such case the gift is not executed until the note is paid.
    3. Consideration of a promissory note intended as a gift. A promissory note, executed without any other consideration than that of natural affection, or one without any valuable consideration, intended as a mere gift, can not form the ground of a recovery in an action at law.
    Appeal from the Appellate Court for the Second District; —'heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. John Y. Eustace, Judge, presiding.

      Mr. M. D. Brown, and Mr. Jacob Fawcett, for the appellant :
    It is enough that the consideration of the note is a good one, although it is not adequate. Any obligation entered into voluntarily, and for a good consideration, is valid at common, law, and binds the parties. Wolf v. McClure, 79 Ill. 564.
    Where the object of a contract is lawful, and is founded on a good consideration, and is entered into by parties capable of contracting, it creates a legal obligation, and can be enforced according to its terms. Railroad Co. v. McNeely, 21 Ill. 71.
    Considerations are good, as, when they are for natural love and affection, or valuable, when some benefit arises to the party by whom they are made, or inconvenience to the party making them. Viner’s Abridg. consideration “B;” Phillips v. Preston, 5 How. 278; Shirly v. Harris, 3 McLean, 330; Clark v. Sigowney, 17 Conn. 511.
    The court can not inquire into the adequacy or inadequacy of the consideration; only, is it good or valuable. 2 Leading Cases in Eq. 1685.
    A note given for value received, and “his kindness to me," would be good, the first part of the sentence denoting an adequate consideration. Woodbridge v. Spooner, 3 B. & A. 235 ; Daniells on Neg. Instr. 142.
    Numerous authorities may be cited to show that the consideration need not be equal in dollars and cents, or in actual value, to the amount of the money expressed on the face of the note, and reference for that purpose is had, besides those already given; to the following: Baker v. Walker, 14 M. & W. 465; 1 Parsons on Contracts, 361; 2 Parsons on Bills, 524; Johnson v. Titus, 2 Hill, 606; Oakley v. Boorman, 21 Wend. 588; Robinson v. Raynor, 28 N. Y. 494; Parish v. Stone, 14 Pick. 198; Bucklin v. Bucklin, 1 Keys, 141; Lobdell v. Lobdell, 36 N. Y. 327; 1 Domat, (Cushing’s ed.) 4Q1; Freeman v. Freeman, 51 Barb. 306; St. Mary’s Church v. Cogger, 6 id. 876; 1 Greenleaf on Evidence, sec. 189.

      A note made, delivered and accepted in the lifetime of the maker, payable at or after his death, is not in any sense a testamentary disposition. (Worth v. Case, 42 N. Y. 362; Jackson v. Culpepper, 3 Kelly, 569; Cummings v. Cummings, id. 460.) And it is irrevocable. Bristol v. Warner, 19 Conn. 7; 10 Mass. 177; Conn v. Thornton, 46 Ala. 587.
    Messrs. D. & T. J. Sheean, and Mr. Robebt D. Kussell, for the appellee:
    The finding of the facts by the Appellate Court, is, by statute, made conclusive upon this court. Hayward v. Merrill, 94 Ill. 350; Thomas v. Insurance Co. 108 id. 91; Pulsifer v. Winterhoff, 102 id. 400; Village of Genoa v. Van Alstine, 108 id. 555; Furnace Co. v. Magill, id. 656; Moore v. People, id. 484.
    Natural affection does not constitute a valid consideration for a promissory note, and one can not make a gift of his own promise. Kirkpatrick v. Taylor, 43 Ill. 207; Blanchard v. Williams, 70 id. 647; Arnold v. Franklin, 3 Bradw. 141; Forbes v. Williams, 13 id. 280.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Lillie Williams brought suit in the county court of Jo Daviess county, against George H. Forbes, as administrator of the estate of Delilah Deeds, deceased, on the following instrument:

“Pleasant Valley, III., Oct. 25, 1875.
“Whereas my niece, Lillie Williams, has performed for me personal service for a long period of time, for which I desire she shall receive ample compensation from my estate, and not feeling able, at present, to fully compensate her, I therefore and hereby acknowledge myself indebted to her in sum of $2500, with interest, but not to be due until my death, unless at my option. Delilah Deeds. ”

On trial in that court, judgment was rendered for the defendant. The plaintiff appealed to the circuit court of Jo Daviess county, and on trial in the circuit court, before a jury, the plaintiff recovered judgment for $3708.75. The defendant then appealed to the Appellate Court for the Second District, and that court, on hearing, reversed the judgment of the circuit court, and refused to remand the cause. In the order of the Appellate Court reversing the judgment of the circuit court, occurs the 'following: “The judgment of this court being in consequence of finding the facts differently from that found by- the court below, this court finds the facts to be, that the note sued on, and which is the foundation of the claim of appellee in this case, was given by Delilah Deeds, deceased, without any consideration whatever; that it was a mere gift, intended by Delilah Deeds, deceased, to be given to appellee in the nature of a testamentary bequest; and that there is no other cause of action, or supposed cause of action, save the note, claimed by appellee in this suit.” The present appeal is from that judgment.

The argument addressed to us by counsel for appellant, is one that should have been addressed to the Appellate Court, upon petition for rehearing. It is purely a discussion of facts to establish that the Appellate Court erred in finding the facts differently from what they were found to be by the circuit court. No ruling on any question of law was excepted to, which is now pressed as ground of error. Indeed, the only question of law which, on the finding of facts by the Appellate Court, it is possible now to raise, is whether, on those facts, the law authorizes or precludes a recovery. Section 87 of the Practice act, as amended by the act of June 2, 1877, in force July 1, 1877, (Pub. Laws of 1877, p. 153,) provides: “If any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the finding •of the court from which such cause was brought by appeal or writ of error, it shall be the dut)r of such Appellate Court to 'recite in its final order, judgment or decree the facts as found; and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause.” This language needs no interpretation, and it is impossible, by •construction, to import a meaning into it not apparent upon .its face. We can add no words to make its meaning more intelligible. The decision of the Appellate Court, in such •cases, being conclusive as to all matters of fact, we can not review them. Whether the finding of that court is right or wrong, that is the end of it,—and so we have expressly held in Harzfeld v. Converse, 105 Ill. 534. See, also, to like effect, Hayward v. Merrill, 94 Ill. 350; Thomas v. Fame Ins. Co. 108 id. 91; Tenney v. Foote, 95 id. 99; Missouri Furnace Co. v. Abend, 107 id. 44.

It is not an open question, in this court, what is the law, ■on the facts as found by the Appellate Court. A note executed without any other consideration than that of natural affection, or one without any valuable consideration, intended ■as a mere gift, can not form the ground of recovery in an action at law. A gift is always revocable until it is executed, .and a promissory note, intended purely as a gift, is but a promise to make a gift in the future. The gift is not executed -until the note is paid. (Kirkpatrick v. Taylor, 43 Ill. 207; Blanchard v. Williamson, 70 id. 647; Pratt, Admx. v. Trustees, 93 id. 475.) It is not pertinent for us, here, to inquire how slight a valuable consideration would support this promise, for the Appellate Court finds, as a matter of fact, that it is supported by no valuable consideration,—that the promise is to make a gift, only.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    F. M. Bradshaw v. The Standard Oil Company.
    Filed at Ottawa May 15, 1885.

    1. Appeal and error—whether action is one sounding in damages. An action of assumpsit to recover damages for the breach of a contract, whereby the plaintiff alleges he has lost the good will of an established business, though in form an action ex contractu, is an action sounding in damages, within the meaning of section 8 of the Appellate Court act, and no appeal or writ of error lies to review the judgment of the Appellate Court affirming a judgment in such a case for less than $1000.
    2. An action sounding in damages, within the meaning of the statute relating to appeals and writs of error from or to the Appellate Court, is one where the damages can not be determined in dollars and cents by witnesses, but certain facts are proven, and from those facts the jury determine the amount of damages, as in slander, and the like. The words, “sounding in damages,” were intended to include all cases, whether the action is ex contractu or ex delicto, when the damages are not susceptible of direct proof.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Millard B. Powers, for the plaintiff in error.
    Messrs. Fairchild & Blackman, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by Bradshaw, in the Superior Court of Cook county, against the Standard Oil Company, to recover, in an action of assumpsit, damages for an alleged breach of a contract, whereby he, as is alleged, lost the good will of a certain established business. On the trial, which was had before the court, without a jury, the plaintiff, Bradshaw, recovered a judgment for one cent. This judgment was affirmed in the Appellate Court, and the plaintiff in the action sued out this writ of error.

The defendant in error has entered a motion to dismiss the writ of error, upon the alleged ground that the action is one sounding in damages, and the judgment being for a less sum than $1000, under the statute the decision of the Appellate Court affirming the judgment of the Superior Court is final. The language of the 8th section of the Appellate Court act, which has a direct bearing on the question involved, is as follows: “In all cases determined in said Appellate Courts, in actions ex contractu, wherein the amount involved is less than $1000, exclusive of costs, and in all cases sounding in damages wherein the judgment of the court below is less than $1000, exclusive of costs, and the judgment is affirmed or otherwise finally disposed of in the Appellate Court, the judgment * * * of the Appellate Court shall be final, and no appeal shall lie or writ of error be prosecuted therefrom. ” The record discloses the fact that the judgment recovered in' the Superior Court was for a less sum than $1000, and that it was affirmed in the Appellate Court. If, then, the action was one sounding in damages, it is apparent, under the terms of the statute, that a writ of error will not lie. Whether the action is one sounding in damages, within the meaning of the statute, we think there can be no doubt. Nothing was claimed to be due for property sold, or for services. The only claim interposed, as appears from the bill of exceptions, was “damages for loss of good will. ” An action sounding in damages is one where the damages can not be estimated in dollars and cents by witnesses, but certain facts are proven, and from these facts the jury determine the amount of damages,—for instance, an action of slander, assault and battery, malicious prosecution, false imprisonment, and other like cases. Here the claim was loss of good will, and what that might be worth would have to be estimated by the court or jury after the testimony had all been heard. In such a case no witness could give an opinion of the probable value of the loss which plaintiff had sustained, any more than could be given in an action for slander. The legislature doubtless intended, by the use of the words, “sounding in damages,” to include all cases, whether the action might be ex contractu or ex clelicto, where the damages are riot susceptible of direct proof. Such is this case. The writ of error will be dismissed.

Writ'of error dismissed.


author: Mr. Justice Sheldon

text:
    Patrick J. Sexton v. The County of Cook.

      Filed at Ottawa May 15, 1885.

    1. Contract with a county—of the mode—by whom—delegation of authority by county board—as to work done outside of contract—ratification by payment. The county board of Cook county, in July, 1877, passed this resolution: “Resolved, that the contractor on the new court house, P. J. Sexton, be and he is hereby instructed to build as much of the foundation of the dome, under the supervision of the architect, as is necessary to inclose the building, subject to the architect’s valuation of the same:” Held, that, this resolution, when accepted by Sexton, constituted a contract for the building of a portion of the foundation of the dome.
    2. The county board alone has power by law to bind a county by contract. There is no such power in an architect, or a committee appointed by the' board, unless it has been bestowed by the county board. But the authorized body of a municipal corporation may, by a resolution or vote, clothe its officers, or agents, or committees, with power to act for it.
    3. Where a county board, by resolution, directed a party to build so much, of the dome of a court house being erected as was necessary to inclose the building, under the architect’s supervision, and subject to his valuation of the same, it was held, that the architect, under such resolution, had authority only to supervise the work directed to be done, and make a schedule of prices for the same, and that any order of the architect for work outside of the terms of the resolution was not binding on the county.
    4. A county board, by resolution, employed a contractor to build so much of the foundation of a dome for a court house as was necessary to inclose the building, the foundation being regarded the part below the ground, and the joint committee, and architect employed to supervise, afterward ordered the contractor to fill in the wall up to the main water-table or level of the first story floor, which was done, and the work paid for, and the architect and committee then directed him to complete the work as far as the roof line of the building, a part of which was done, when further work was ordered by the board to be stopped, and payment was made for all the work which had been done under such orders: Held, that the payment for the work done under the orders of the committee and architect, outside of that required in the resolution, was not such a ratification of the subsequent orders made by them as to bind the county, and that the county was not liable to the person doing the work for the profits he might have made if he had not been ordered to discontinue it.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McRobebts, Judge, presiding.
    On July 30, 1877, the board of county commissioners of Cook county passed the following resolution:

      “Resolved, That the contractor on the new court house, P. J. Sexton, be and he is hereby instructed to build as much of the foundation of the dome, under the supervision of tlie architect, as is necessary to inclose the building, subject to the architect’s valuation of the same.”
    The architect made a schedule of prices, as follows:

      “August S, 1877.

    “Dressed ashlar masonry and dressed dimension masonry, throughout, at eighty cents per cubic feet; concrete, in Pliinney’s cement, at $16 per cubic yard; excavation, $1.60 per cubic yard; cutting and trimming pile-heads, thirty cents each; brick laid in cement and lime, half and half, and grouted, each course best selected brick, to full satisfaction of architect, $12 per thousand. Pile-heads to be measured in concrete, and excavation to pay for expense of scooping out between pile-heads. Cut stone arches and skewbacks to be built on estimated values. All walls measured solid. All work to be in strict accordance with specifications. I fix prices for dome work at the above schedule.
    J. J. Egan.”

      This paper was indorsed approved by the joint committee on public buildings and public service.
    On October 27, 1877, the architect gave the following order to Sexton-:
    “In compliance with the instruction of joint committee on buildings and service, you will please proceed to prepare and set the cut stone work of county’s half of the dome of Cook county court house, up to the top of the main water-table, in accordance with the plans and details of the same, herewith submitted, at a cost of $15,375.
    Respectfully, J. J. Egan.”
    The “main water-table” above referred to was at the top of the basement story, or first story above the ground. This paper was also marked approved by the above named committee.
    On November 3, 1877, the architect-gave to Sexton the following further paper:

      “November 8, 1877.

    “P. J. Sexton—You will please extend the work -of the dome so as to-comprise the full half of the entire, up to the level of the first ór main floor, including the cut stone work of the basement of the county’s half of the dome, and thence continue the main internal piers complete up to the roof, subject to the schedule of prices dated August 2, 1877, and signed by me. All cut stone to be subject to special contracts, and to be submitted to the joint committee for approval before being executed. J. J. Egan.”
    The same committee indorsed this with their approval.
    Sexton made preparation for doing the work, and proceeded therewith until he.had constructed about forty-four feet in height of one side of the dome, when, on March 11, 1878, the work was stopped, under a resolution of the county board ordering a suspension of all work on the court house dome until the question of building the dome was settled between the county and the city. Sexton brought suit against the county, claiming that the several papers above, with his action thereunder, constituted a contract between him and the county for building the dome wall from the basement to the roof of the building, a height of one hundred and twenty-eight feet, and that he was entitled to recover according to the contract price for the work he did do, and the profits for the work that he was ready and willing to do, but did not do because of the stopping of the work. The recovery, by the judgment of the circuit court, was only for the work done. This judgment was affirmed by the Appellate Court for the Second District, and Sexton appeals to this court.
    Messrs. Sweet, Haskell & Grosscup, for the appellant.
    Mr. William Law, Jr., and Mr. E. R. Bliss, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The errors assigned are, the refusing of an instruction asked by the plaintiff, and the giving of two asked by the defendant. The refused instruction asked by plaintiff was:

“If the jury believe, from the evidence in reference to the dome contract, that the board of county commissioners of Cook county passed a resolution authorizing and instructing P. J. Sexton to build as much of the foundation of the dome, under the supervision of the architect, as is necessary to inclose the building, subject to the architect’s valuation of the same, and the jury further believe that one of the walls of the foundation of said dome formed also a portion of the west wall of the court house, and said building could not be inclosed without running up said wall, and that thereafter the plaintiff took said order to James J. Egan, the architect of the court house, and said architect in one order fixed the prices of said work, and in another order defined the manner of construction of said dome, and the extent and limits thereof, and the said Sexton thereupon proceeded and did a portion of the work, and- was stopped by the defendant, and on his part was prepared and ready and willing to do all of said work, then Sexton is entitled to recover the value of the work done under the contract, and the value of the contract for work not done,— or, in other words, he is entitled to the value of the work which he has done, and the profits on the work which remained to he-o done and toas not done.”

So much of the instruction as is printed in italics the court-struck out, and gave the residue of the instruction to the jury.. The two instructions given for the defendant were:

“That the resolution of the county board of Cook county adopted July 30, 1877, only authorized the building by Sexton of as much of the foundation of the dome as was necessary to inclose the building, and if the jury believe, from the evidence, that the foundation of the dome did not extend above the level of the basement floor of the court house, then such resolution, when acted upon by Sexton, did not constitute a contract between him and the county of Cook for the building of such dome above such foundations, nor above the level of such basement floor, and the architect, under such resolution, had no power or authority, by virtue of such resolution, to-make a valuation of work done by Sexton above such foundation, and bind the county of Cook thereby.
“That notwithstanding the resolution of the county board adopted July 30, 1877, requesting Sexton to build as much of the foundation of the dome, under the supervision of the architect, as was necessary to inclose the building, subject to-the architect’s valuation of the same, the county board had a right to direct that work on the dome above the foundation be stopped or suspended, and by so doing incur no liability to Sexton for profits on work not done, and the jury will reject all claim in this case for profits on work not done on said dome above the foundation thereof. ”

In the language of appellant’s brief herein, “the design was to erect, upon the public square in the city of Chicago, a joint building, one-half to be erected by the county, and to be used for county purposes, and the other half by the city,' and for city purposes, and the intention was that each building should be complete in itself, and that the two buildings should be connected together by an octagonal dome, which, commencing at the ground, should run up about three hundred and sixty-six feet. This dome was so designed that a portion of the east wall of it should constitute (a portion of) the west wall of the court house, and a portion of the west wall should constitute (a portion of) the east wall of the city building. A space of about forty-four feet was left in the building, to be occupied by this dome wall, and when the dome should be erected, it (with the other work contracted to be done) would constitute the entire four walls of the county part of the building. ”

The resolution of the county board, of July 30, 1877, when accepted by Sexton, constituted a contract for the building of a portion of the foundation of the dome, and we are of opinion that was all the contract that existed between the county and Sexton upon the subject. It is the county board, only, which has authority, by law, to bind the county by a contract. There is no such power in an architect, or a committee, unless it has been bestowed by the county board. We find no such power to have been given here. “The authorized body of a municipal corporation may, * * * by a resolution or vote, clothe its officers, agents or committees with power to act for it.”' (Dillon on Mun. Corp. sec. 450.) And see Rice v. Plymouth County, 43 Iowa, 136; Bouton v. McDonough County, 84 Ill. 384. The architect had authority, under the resolution, only to supervise the work it directed to be done,—not to order the doing of any other work. The architect’s orders of October 27 and November 3 were for work which was outside of the terms of the resolution of July 30, and were not binding upon the county. That resolution, a.t the most, only authorized work which was necessary “to inclose the building. ” These orders directed work to be done on the entire county half of the 'dome,—the four sides of the octagon,—the resolution having reference to no more than work on one side of it.

So far, then, as regards prospective profits on work not done, under an alleged contract with the county, we are to look to the resolution of July 30, to see what the contract was. The direction under that resolution was, to build a portion of the foundation of the dome. Under the evidence in the case we think the court was justified in finding that the word “foundation, ” as used in the resolution, meant the part below the ground. It is objected to this that both parties, by their conduct, gave the contract a different construction. The acts of the architect, and of the joint committee on public buildings and public service, were their individual acts, and are not to be regarded as the acts of the county board. The county board appear to have begun with a contract for the foundation. Subsequently, Sexton was ordered by the joint committee to fill in the wall up to the main water-table, or level of the first story floor. This order was not binding upon the county, but the work was done and paid for. This does not necessarily imply any more than that the work having been done for the county, it was willing to pay for the same. And so of the subsequent direction to complete the work as far as the roof line of the building, .so far as payment was made for that work.

As the resolution uses the language, “as much of the foundation of the dome as is necessary to inclose the building, ” it is urged that the use of the italicized words shows an intention on the part of the county board to provide, by that resolution, for the closing up of the entire gap in the west wall of the building to the roof line. Defendant’s view and explanation of that language is this : That the dome had not been determined upon when the resolution of July 30 was passed. It was necessary that the city should cooperate with the county, in order that the dome should be built, and this the city had not done, and subsequently refused to do; that a very much heavier and more expensive wall was necessary if the dome was to be built than if it was not to be erected, and it would have been quite imprudent for the county, pending the settlement of the question as to whether there was to be any dome or not, to contract for the filling up the gap in the west wall to the roof line on the basis that the dome was to be built, and hence that the county board determined to contract for the work piecemeal, until the dome question was settled; that the foundation of the dome was octagonal, as was the dome itself, and only one of the eight sides of the foundation was determined to be built. The county board therefore directed Sexton to build one-eighth of the foundation, or so much of it as was necessary to render the inclosing of the building possible. This would seem to be a more reasonable interpretation of the meaning of the word “foundation,” than that which the plaintiff urges. To inclose the building might have been, as argued by plaintiff’s counsel, a prime object of the contract, and yet it not have been the purpose of this resolution to provide by it for closing up the entire gap in the west wall.

Some citations from works on architecture are made, with a view to show that the foundation of this dome extended to. the spring of the arch or cupola. It may be admitted that a dome proper is an arched roof, but it does not follow that all below this arched roof is the foundation of the dome proper.

It is insisted that at least there was some evidence tending to show that the foundation of the dome extended to the roof line, and that therefore the court’s ruling upon the instructions was wrong,—that the construction of the contract was a question of fact, dependent upon the intention of the parties and the condition of the building, and should have been submitted to the jury for its decision, and not have been determined by the court. We do not find anything in the evidence in the case going to show that the foundation of the dome extended to the roof line. There seems to be nothing more in that respect than the unwarrantable inference which counsel would draw from the contract, the situation, and the acts and doings, which have been referred to, of the architect, and building committee, and defendant. We perceive no ambiguity with respect to the meaning of the term, “foundation, ” which should require submission -to a jury to find such meaning, and take from the court its prerogative to interpret the meaning of a contract in writing.

It is admitted that the jury awarded to the plaintiff the full sum due for all work done.

Finding no error in the record, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Alanson G. Freeman et al. v. The Ottawa Building, Homestead and Savings Association.

      Filed at Ottawa May 15, 1885.

    1. Building and loan association—usury—validity of act of 1872. The decision of this court in Holmes et al. v. Smythe et al. 100 Ill. 413, that the act for the incorporation of loan associations is not unconstitutional, and that loans made according to its provisions are not usurious, is adhered to and followed.
    2. Same—forfeiture of stock for non-payment—notice. Where the charter of a loan association authorizes the forfeiture of a member’s stock for a failure to pay the prescribed assessments on his stock and the interest on a note given by him for money loaned him, together with the premium bid by him, the courts will not relieve him from a forfeiture for a willful neglect to make such payment; and a forfeiture may be declared in such case without notice to him, and the full amount due on his note collected.

      Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of La Salle county; the Hon. Josiah McRoberts, Judge, presiding.
    Messrs. Bull', Strawn & Ruger, for the plaintiffs in error.
    Mr. Lorenzo Leland, for the defendant in error.
   Per Curiam :

This case differs, in principle, in no respect from Holmes et al. v. Smythe et al. 100 Ill. 413. We do not regard the questions decided there as now open to discussion, because, first, we can here only review the decision of the Appellate Court, and the validity of the statute authorizing the creation of corporations of the character of this defendant in error could not have been passed upon by that court; and second, Holmes et al. v. Smythe et al. was very carefully and thoroughly considered by this court. An opinion, on the first argument of the case, was filed, holding the statute unconstitutional and the transaction usurious. A rehearing was afterwards ordered, and the cause was then very elaborately argued, both orally and in printed briefs; and thereupon the opinion, as reported, was adopted and filed.

The fact that there Smythe was a stockholder • before he ■obtained his loan, while here Freeman became a stockholder at the time he obtained his loan, we regard as of no consequence. When Freeman obtained his loan he was a stockholder, and since it is not pretended he was under such duress when he became a stockholder as would avoid his contract, he thenceforth was just as much a part of the corporation,— was just as effectually under the obligations of a stockholder to the corporation, and just as much entitled to the benefits to be derived from it,—as was the president of the company ■or any other stockholder; and inasmuch as he was bound by his contract to pay interest upon the amount he bid, and the monthly installments upon his shares of stock, until they reached their par value, when they were to be accepted in payment of the loan, and he would be entitled to any excess after that payment, it follows that if, when he made his bid, several installments had already been paid upon his stock, he would only have had that much less to pay until his shares of stock reached their par value; but, in any event, the obligation is, to pay until that value is reached,—and, of course, whether the payments be some before and some after the bid for the money is made, or all after it is made, is immaterial. It may be, in Holmes et al. v. Smythe et al. we were in error in calling the transaction a sale of stock. The name is unimportant. The transaction there and here is precisely the same. The money in both cases was advanced to a stockholder, on his bid.. The premium bid, as well as the interest and installments upon dues paid by the party obtaining the money, went to increase the value, of his shares of stock, in common with- the value of all the other shares of stock, and when the shares of stock reached their par value, the borrower was entitled to have his note canceled and his mortgage satisfied, and also to have paid to him any excess left after deducting the amount of his bid from the par value of his-stock. It is an advancement of money in anticipation of the par value of his stock, or, if it be more agreeable to so call it, a loan to be paid by stock at its par value, with covenants to-make such payments of interest and installments of dues on stock, etc., as shall eventually bring such shares to their par value.

The statute authorizes the declaration of forfeiture, and the default of the party being willful, and with full knowledge of the consequences, he was entitled to no notice. He had notice by the fact of his default. Having lost his rights as-a stockholder, loss of money paid on that account follows as an incident.

The decree is affirmed.

Decree affirmed.


author: Mr. Jijstice Mulkey

text:
    Michael Gormley v. John L. Day.

      Filed at Ottawa May 15, 1885.

    1. Mandamus—whether it will he awarded—where the ground of action has ceased to exist. A court will not award a peremptory writ of mandamus when the right sought to be enforced is or has become a mere abstract right, the enforcement of which, by reason of some change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner.
    2. So where an ordinance of a village vacating a street was repealed before it went into effect, but after the filing of a petition for a madamus to compel the village clerk to post copies of the same or give the relator copies thereof, the court will not award the writ, as to do so would subserve no beneficial purpose.
    3. Same—whether action is premature. Where a village clerk, by the charter of the village, is given thirty days after the passage of all ordinances within which to post up copies thereof, a proceeding by mandamus, commenced before the expiration of that time, to compel him to post an ordinance, must fail, the clerk not being in default when the suit was brought.
    4. Same—of the petition. And in such case, if the relator desires to rely on a standing resolution of the village council requiring the clerk to post notices and ordinances within five days after their passage, unless otherwise directed, he should set it up in his petition, and by proper averments negative the fact of his having been otherwise directed. A party can not make one case by his pleading and a different one by his proof, and recover.
    5. Ordinance—when it vests rights—right to repeal. Where a village charter provides that ordinances shall not take effect until ten days after three copies thereof shall have been posted by the clerk, and that such posting shall be within thirty days after their adoption, no rights can be acquired under an ordinance vacating certain streets until such posting has taken place, and until ten days thereafter; and until this takes place, the ordinance may be repealed without depriving any one of any vested right.
    6. Judicial notice—of charter of village. The courts will take judicial notice of the provisions of a special charter of a village in this State, when such charter is declared to be a public act.
    Writ or Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      Mr. Morton Culver, for the plaintiff in error:
    Section 6, article 4, of the village charter, gives- the council power to vacate streets. See, also, Rev. Stat. 1874, chap. 145, sec. 1, and chap. 109, sec. 9.
    The better rule is to require the clerk to perform his duty by posting an ordinance when passed, and if repealed, to post that also, leaving the courts to decide whether the repeal is valid. Dillon on Mun. Corp. (3d ed.) sec. 327.
    So far as the clerk was concerned, it was his duty to the council to post the ordinance within five days after its passage. It was a rule of the council in prescribing the duties of the clerk. Dillon on Mun. Corp. (3d ed.) secs. 866, 867; Chicago v. Sansuvi, 87 Ill. 182; Matthewson v. Cook County, id. 590.
    In order to put the ordinance in force it was necessary that it be posted as required by the charter. Elizabethtown v. Lefler, 23 Ill. 90; Railroad Co. v. Engle, 76 id. 317; Barnett v. Newark, 28 id. 62; Dillon on Mun. Corp. sec. 331.
    It is probably true that the council might reconsider the ordinance, provided the rights of a third party had not intervened or vested or attached. Dillon on Mun. Corp. sec. 290 ; State v. Hoyt, 2 Ore. 246; People v. Rochester, 5 Lans. 11; Red v. Augusta, 25 Ga. 386; State v. Foster, 2 Halst. 101; Bigelow v. Hillman, 37 Maine, 52; Reiff v. Conner, 10 Ark. 241; Stoddard v. Gilman, 22 Vt. 568 ; New Orleans v. Wardens, 11 La. 244; State v. Miller, 31 N. J. L. 521; State v. Jersey City, 27 id. 536; Pond v. Negus, 3 Mass. 230; People v. Board of Supervisors, 47 Ill. 256.
    Gormley not having sold or incumbered the streets, upon the passage of the ordinance theTee to the lands in the streets reverted to him. St. John v. Quitzow, 72 Ill. 334.
    At the first special meeting at which it "was attempted, the councilmen were not notified as required .by the by-laws of the council, and all acts were therefore void. Dillon on Mun. Corp. secs. 262-269.

      The second special meeting was held after the beginning of this suit. At the first special meeting there were ayes 4, ■(including the president,) nays 1, and at the second special meeting there were ayes 3, nays 1, (the president not voting.) 'The council consists of five eouncilmen and one president.
    The president is not an integral part of the council. Dillon on Mun. Corp. secs. 271, 272, 274.
    The president has only a casting vote in case of a tie. See section 12, of article 2, of charter.
    Under the statute already cited, it required the affirmative votes of at least four eouncilmen to vacate a street.
    Messrs. McCoy, Pope & McCoy, for the defendant in error:
    The party applying for a mandamus must show a clear legal right to have the thing sought by it done, and the thing sought to be coerced must be effectual as a remedy. People v. Hatch, 33 Ill. 9; People v. Dubois, id. 140; People v. Forquer, Breese, 104; Commissioners v. People, 66 Ill. 339; People v. Village of Crotty, 93 id. 187.

      Mandamus will not lie when no benefit can accrue to the relator, nor will the writ command the performance of an official act or duty in advance of the time when it is actually required by law. High on Extraordinary Legal Bemedies, secs. 10, 33, 96.
    The ordinance of January 3, 1882, has not been posted, and it is conceded it has no effect till posted. Charter, article 7, sec. 3; Newlon v. President, 14 Ill. 364; Elizabethtown v. Lefler, 23 id. 90; Railroad Co. v. Engle, 76 id. 317; Barnette. Newark, 28 id. 62; Schott v. People, 89 id. 195; Dillon on Mun. Corp. (3d ed.) sec. 331.
    Moreover, till posted ten days, by its own terms such ordinance was not to go into effect.
    Any right that Gormley may have had was but inchoate, at best, till after the posting of the ordinance of January 3, 1882.

      An ordinance, it is well settled, has the effect of a statute. Dillon on Mun. Corp. (3d ed.) sec. 308.
    By the repeal of a statute or ordinance before it is executed, and before any vested rights are acquired, the rights it gives, fall with it, unless expressly saved. Butler v. Palmer, 1 Hill,. 324; Ray v. Goodwin, 4 M. & P. 341; Van Imuagen v. City, 61 Ill. 34; Wilson v. Railway Co. 64 id. 542; Dwarris on Statutes, 676.
    By the plat the title to the streets was vested in the village in trust for the use of the public. The action by the council was void as a breach of trust, and such attempted action could have been enjoined. City of Alton v. Transportation Co. 12 Ill. 38; Carter v. Chicago, 57 id. 283; Jacksonville v. Railroad Co. 67 id. 540; Jackson v. Norris, 72 id. 364; Quincy v. Jones, 76 id. 231; Kreigh v. Chicago, 86 id. 407.
   Mr. Jijstice Mulkey

delivered the opinion of the Court:

This was a petition for a mandamus, brought by Michael' Gormley, in the Superior Court of Cook county, against John L. Day, as clerk of the village of Glencoe, to compel him to. post copies of an ordinance passed by said village on the third day of January, 1882, vacating certain streets and parts of streets in Gormley’s addition to said village, and also to compel the said Day to give to petitioner a certified copy of said ordinance. Upon the hearing, the Superior Court refused the writ, and entered an order dismissing the petition, which, was affirmed by the Appellate Court, whence the case is brought to this court.

The record shows that the lands or lots abutting on the-streets and parts of streets embraced in the ordinance in question, including the streets and parts of streets themselves, formerly belonged to the petitioner, but that previous, to the date of the ordinance he had conveyed the abutting property to others, who were chiefly interested in keeping the streets open. The evidence also tends to show that the •adoption of the ordinance was secured mainly through representations made by Gormley, which led the village council to suppose that he alone was interested in the abutting property, whereas, in truth, it belonged to one Clark, who would have been seriously damaged by the action of the council if the ordinance had been carried into effect.

Gormley seems to have proceeded upon the theory that as he had never disposed of the land occupied by the streets, upon the adoption of the ordinance vacating them he would at once have the right to appropriate it to his own use, however seriously it might injure the abutting owner. Be this as it may, it is clear the village council, shortly after passing the ordinance, became dissatisfied with its action, and thereupon called a special meeting of the council, to be holden on the 12th of the same month, for the purpose of reconsidering what had been done, at which meeting a resolution was adopted repealing the ordinance in question. Some doubt having been raised as to the sufficiency of the repealing resolution, or rather as to the regularity of the meeting and vote by which it was adopted, another meeting of the council was called on the 24th of the same month, when an additional repealing resolution was adopted, of the validity of which there can be no reasonable doubt. Such being the case, it is unnecessary to inquire whether the resolution of the 12th of January was valid or not, for as the ordinance was clearly repealed before the mandamus proceeding was brought to a hearing, it is just as fatal to the right of the petitioner as if the repealing resolution had been adopted before such proceeding was commenced. It is a well recognized principle that courts, in exercising their jurisdiction in mandamus, will not award the peremptory writ where the right sought to be enforced is or has become a mere abstract right, the enforcement of which, by reason of some change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner. Ray v. Goodwin, 4 M. & P. 341; The People v. Chicago and Alton Railroad Co. 55 Ill. 95; The People v. Cline, 63 id. 394; Cristman v. Peck, 90 id. 150; The People v. Lieb, 85 id. 484; The People v. Trustees of Schools, 86 id. 613.

It is clear, that inasmuch as the ordinance was repealed before it went into effect, the posting or delivering of copies of it after its repeal would be an idle and fruitless ceremony of no possible benefit to the relator, something which the law never requires to be done.

Counsel for the relator seems to have proceeded upon the theory that upon the affirmative vote of the council adopting-the ordinance, the relator thereby acquired certain vested interests in the streets sought to be vacated which he did not enjoy before in common with the public. This is an entire misapprehension. For the purposes of the argument it may be conceded if the ordinance had gone into effect before its repeal he would have acquired special rights under it, but as it did not, his rights remained precisely the same as if the-vote of the council adopting it had never occurred. Before the so-called ordinance could have any legal effect, as such, two things, in addition to the affirmative vote adopting it, were necessary: First, printed or written copies of the ordinance had to be posted, within thirty days after its passage, in three of the most public places in the village; and second, the lapse of ten days after such posting. From its passage until the full period of ten days after posting had expired, it existed, so to speak, as an ordinance in embryo, merely. Until the final condition essential to give it effect as a law was performed, no rights, inchoate or otherwise, could arise under it, either to the relator or to any other person. See-village charter, sec. 3,—Private acts, 1869.

The right of the village council to rescind or repeal the resolution adopting the ordinance, at any time before it took effect, is too clear to admit of discussion or doubt. The council have exercised this right, and we have no disposition to interpose, even if we had the power to do so, which we clearly have not.

But outside of all'these considerations, we are clearly of opinion the relator has wholly failed to make out a caso against the respondent. By section 3 of the special charter-under which the village of Glencoe is incorporated, just referred to, the clerk is given thirty days in which to post copies of ordinances, and this action was commenced on the 17th of January,—only fourteen days after the adoption of the ordinance. As the charter is declared a public act, we will take judicial notice of its provisions. It follows, therefore, the respondent was not in default at the time of the commencement of the suit, and hence the suit must fail. The only answer made to this position is, that there was a standing resolution of the village council requiring the clerk “to post notices and ordinances within five days of their passage, unless otherwise directed.” Waiving the question of the power of the council to change the time, as fixed by the charter, within which to post ordinances, it is sufficient to say that in order to overcome the presumption that the clerk performed his duty with respect to the posting of the ordinance, the relator-should have set up this resolution in his petition, and by proper averments have negatived the hypothesis that the village council had in this particular instance otherwise directed. This he did not do'. For aught that appears, the clerk may, in the language of the resolution, have been “otherwise directed," so far as this ordinance is concerned. Moreover, the petition on its face shows and charges that the “clerk is required to post three copies of- all ordinances passed, within thirty days after-passage, ” while it contains no reference whatever to the resolution in question. This is but another instance of the many to be met with, of a party’s making one case by his pleadings and another by his proofs. In such case the law does not permit a recovery.

In respect to the clerk’s refusal to deliver a certified copy of the ordinance, we regard that as subordinate to his supposed rights under it, which we have already seen amounted to nothing, and under all the circumstances it does not appear that he wanted it for any proper purpose, but rather the contrary. Such being the case, this court, in the exercise of that legal discretion with which the law has clothed it in this class of eases, must withhold its assistance.

Finally, in any view to be taken of this case we have been unable to discover any merits in it.

The judgment will be affirmed.

Judgment affirmed.


text:
    John Parker et al. v. James S. Shannon.

      Filed at Ottawa May 15, 1885.

    1. Allegations and decree should correspond. It is error to render a decree against the wife of the defendant, granting a perpetual injunction against her and her husband, where there is no allegation- in the bill upon which to base any decree against her.
    2. Chancery—;jurisdiction to try legal titles. Where the defendant is in the possession of land, a court of equity will not take jurisdiction of a bill to try the legal title of the complainant to the same. A court of law is the proper forum for the trial of legal titles to land.
    3. Where the main object of a bill in chancery is the recovery of possession from a judgment debtor, of lots which had been sold upon execution against him, and to have it found that title to the property was acquired under the execution sale, a court of equity will not be invested with jurisdiction to pass upon the legal title, merely from the fact that the bill also seeks to obtain an injunction to prevent the commission of waste or irreparable injury to the property. In such case the court should only stay, temporarily, the doing of any irreparable injury, until the further order of the court and a trial of the question of title in a court of law.

      Writ of Error to t'he Circúit Court of Du Page county; the Hon. Charles Kellum, Judge, presiding.
    Mr. Robert Hervey, for the plaintiffs in error:
    The bill fails to show any ground for the interference of a court of equity. The bill shows that complainant is out of possession, and does not show the premises were vacant and unoccupied. A legal title is set up, upon which the law affords a complete and perfect remedy.
    The decree is erroneous in granting a perpetual injunction, especially against Mrs. Parker, against whom no charge whatever is made in the bill.
    In support of the foregoing points, reference is made to Wing v. Sherrer, 77 Ill. 200; Victor Scale Co. v. Shurtleff, 81 id. 313; Hardin v. Jones, 86 id. 313; Wells v. Lanxmey, 88 id. 174; Whiting v. Stevens, 97 id. 482; Hacker v. Barton, 84 id. 313.
    Messrs. Gary, Cody & Gary, for the defendant in error:
    If the decree is too broad, this court will, of course, modify it.- The jurisdiction of courts of equity in such, a case has been frequently declared. Barm v. Bragg, 70 Ill. 697; Hart v. Mayor, 3 Paige, 213; Atchison v. Peterson, 20 Wall. 515; Lake Co. v. Worster, 29 N. H. 413; Sword v. Allen, 25 Kan. 67; Berry v. Boss, 5 Col. 295; Scudder v. Trenton, 1 Saxt. (N. J.) 694; Musselvian v. Margins, 1 Bush, 463; Hopkins v. Caddick, 18 L. T. 236.
    The court having acquired jurisdiction of said cause for one purpose, very properly retained it for all purposes necessary to do complete justice between the parties, although it may have required matters to be passed on which, alone, would not be cognizable in a court of equity. Pool v. Docker, 92 Ill. 501; Conklin v. Foster, 57 id. 105; Sherlock v. Village, 59 id. 389; Gage v. Parker, 103 id. 534; Haworth v. Taylor, 108 id. 287.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The bill in chancery in this case, brought in the circuit court of Du Page county, by James S. Shannon, against John Parker, and Caroline M. B. Parker, his wife, sets forth that Shannon was the owner, and entitled to the exclusive possession, of four certain lots in the town of Hinsdale, in said county; that said John Parker was the former owner of the lots, and they,were sold under execution upon a judgment against Parker, and no redemption having been made from the sale, that a sheriff’s deed for the lots was duly executed to one Dunne, the purchaser at the execution sale, and that through mesne conveyances from and under Dunne, the title to the lots became vested in the complainant, subject to a possible right of dower in Parker’s wife in two of the lots; that Parker and his wife conveyed, by deed, to one Munson, their right to two of the lots, subject to said execution sale, and that Munson afterward conveyed his interest in these two lots to the complainant; that in this mode the complainant derived his title to the four lots; that in consequence of his ownership, so derived, he is entitled to the possession of the lots, exclusively, and that no one else has any right to possession. The bill alleges that Parker claims to be the owner of or interested in the premises, claims that he has the right of possession, and has attempted to exercise acts of ownership, and has taken, or attempted to take, possession of the premises; that he has uprooted and broken down some of the shade-trees planted by complainant around and on the premises; that Parker is pecuniarily irresponsible, and the injuries about to be committed by him to the premises will be irreparable. The bill prays for an injunction, and that upon final hearing the complainant -may be decreed to be the owner in fee simple of the premises, that the defendants be perpetually enjoined from going upon, interfering with or exercising any acts of ownership over the premises, and that a writ of possession be awarded to the complainant. A temporary injunction was awarded. The defendants demurred to the bill. The court overruled the demurrer, and ordered the defendants to plead or answer instanter, and no plea or answer being filed, the defendants were defaulted, and the bill taken for confessed against them, and the court entered a decree finding that the complainant ivas the owner in fee simple of the premises, and that no other persons had any interest or right therein, and ordering that the complainant have exclusive possession and control of the premises, and perpetually enjoining the defendants from going upon, interfering with or exercising any acts of ownership over, or making any claim to, the premises.

It was evidently erroneous to make any decree against Caroline M. B. Parker, the wife of John Parker. There was no allegation in the bill upon which to found any decree against her. This proceeding would seem to be, in reality, an equitable suit of ejectment. The bill asks that the complainant be decreed to be the owner of the lands in fee simple, and that -he have a writ of possession for the same. A court of equity is not the proper forum for the trial of legal titles to land. A court of layv is the proper place of resort for such purpose. Alton Marine and Fire Ins. Co. v. Buckmaster, 13 Ill. 201; Kennedy v. Northup, 15 id. 153.

But it is said that a court of equity will entertain jurisdiction to prevent the commission, by one who is insolvent, of an irreparable injury to premises; that such ivas the purpose of the present bill, and that the court having acquired jurisdiction for that purpose, might properly retain it for all purposes necessary to do complete justice between the parties, and thus determine upon a matter which, alone, would not be cognizable in a court of equity. Although the latter be the general rule, we do not think it should apply in a case like the present, to subject the legal title to real estate to trial in a court of chancery. The prevention of the doing of an irreparable injury to the premises appears here to be a rather subordinate purpose. The main object would seem to be the recovery of possession from a judgment debtor of property which had been sold upon execution against him, and to have it found that title to the property was acquired under the execution sale. By the decree entered, the proceeding was made to subserve all the purpose of an action of ejectment. We are of opinion the decree went too far in this respect,— that it should not have passed upon the legal title, but have left that to be determined upon in a court of law, and that it should not have gone further than to stay, temporarily, the doing of any irreparable injury, until the further order of the court, and a trial and determination, in a court of law, of the question of title.

The decree will be reversed, and, the cause remanded for further proceedings consistent with this opinion.

Decree reversed.