Chesnut v. Pennell

• Decision Date: 31 January 1879
• Citation: 92 Ill. 55,1879 WL 8478
• Parties: JOHN A. CHESNUTv.WILLIAM A. PENNELL.
• Court: Illinois Supreme Court

92 Ill. 55

1879 WL 8478 (Ill.)

JOHN A. CHESNUT

v.WILLIAM A. PENNELL.

Supreme Court of Illinois.

January Term, 1879.

APPEAL from the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding. The first count of the declaration, as amended, is as follows, omitting the caption:

“William A. Pennell, who sues for the use of Albert H. Barber, plaintiff in this suit, by W. S. Coy and Frank J. Crawford, his attorneys, complains of John A. Chesnut, the defendant in this suit, who has been summoned, etc., of a plea that he render to the plaintiff the sum of $1000, which he owes to and unjustly detains from him.

For that, whereas, prior to and on the first day of April, 1871, the Lamar Insurance Company of Chicago was a corporate body, created and existing for the purpose, and engaged in the business, among other things, of insuring houses, furniture, goods, buildings, and all other legal objects of insurance, against loss or damage by fire; that said corporation was created and organized under and by virtue of an act of the General Assembly of the State of Illinois, approved February 16, A. D. 1865, and entitled ‘An act to incorporate the Lamar Insurance Company of Chicago, Illinois,’ which act is hereby made a part of this declaration; that afterwards, by an act of the General Assembly of the State of Illinois, approved March 29, A. D. 1869, and entitled ‘An act to amend an act entitled an act to incorporate the Lamar Insurance Company, Chicago, Illinois,’ (which act is hereby referred to and made part of this declaration,) the charter of said corporation was amended, and new rights and privileges were thereby granted to said corporation, as will in said act appear; that said corporation, at said times and thereafter, continuously, until on or about the first day of May, 1871, accepted, exercised and enjoyed the various powers and privileges granted to said corporation by the said act of incorporation, and by the said act amendatory thereof, aforesaid, and held its principal office in the city of Chicago, in the State of Illinois, and continued to issue policies of insurance upon property, as aforesaid, in accordance with and by virtue of the said several acts; that upon the first day of April, A. D. 1871, the said corporation, for a valuable consideration received from said plaintiff, duly issued and delivered to said plaintiff a policy of insurance, dated that day, numbered 9770, wherein and whereby the said corporation, by its president, who signed, and the secretary, who attested, said policy, did insure against loss or damage by fire to the amount of $2500, as follows, to-wit: $2500 on his four-story frame metal roof hotel building, then situated on lots 12 and 13, in block 12, of the original town of Normal, McLean county, Illinois, for one year.

And the said corporation did, among other things in said policy, agree to make good to said plaintiff, his heirs, executors, administrators or assigns, all such immediate loss or damage, not exceeding the amount of $2500, for the interest of this plaintiff in the said property, as should happen to the said property by fire from the first day of April, A. D. 1871, at noon, to the first day of April, A. D. 1872, at noon, the amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid sixty days after due notice and proof of loss should be made by the assured, unless the property injured or destroyed should be replaced, or the company should give notice of their intention to rebuild or repair the damaged premises; that afterwards, on the 14th day of February, A. D. 1872, and while said policy of insurance was in full force, the said property described therein was totally destroyed by fire, and said loss or damage was not caused or occasioned by any of the causes or circumstances excepted against in said policy, nor by the act, procurement or fault of the plaintiff; that at the time of destruction of said property by fire, aforesaid, said plaintiff was the sole and exclusive owner thereof, and that said property was worth, in actual cash value, more than $2500; that immediately after said fire plaintiff caused the said company to be notified of said loss, and as soon thereafter as possible did file with said company proper proof thereof, according to the requirements contained in said policy of insurance; that the said corporation was, immediately after the 9th day of October, A. D. 1871, insolvent, and was wholly unable to pay its creditors, and it was, on the 23d day of November, A. D. 1872, placed in the hands of a receiver, appointed by the Superior Court of Cook county, at the suit of judgment creditors of said company, upon a creditor's bill, and is still insolvent and in the hands of said receiver.

And afterwards, such proceedings were had by virtue of said policy of insurance and said loss by fire, that a decree against said corporation and in favor of said plaintiff was rendered by the Superior Court of Cook county, Illinois, on the 25th day of November, A. D. 1876, for the sum of $3185, which said decree remains wholly due and unpaid and in full force; that there is now justly due and unpaid this plaintiff, upon said claim, in decree as aforesaid, the sum of, to-wit, $3185, with interest upon the unpaid balance of said decree from the date thereof, to-wit, from the 25th day of November, A. D. 1876; that the capital stock of said corporation was $5,000,000; that the whole amount of the capital of said corporation has never been paid in, and no certificate of such payment has been given or recorded, as required by the statute of Illinois, but, on the contrary, not more than twenty per cent of said capital stock subscribed has even been paid into said company; that on and after the day of said loss of plaintiff by fire, as aforesaid, and at the time of the accruing of plaintiff's said claim, and at the time of the insolvency of said company, and at the time of the recovery of said decree by this plaintiff, the defendant was, and still is, a corporator and stockholder in said corporation, and had subscribed for and owned ten shares of the capital stock thereof, at the price named, of $100 for each share, amounting to the sum of $1000.

"And the plaintiff avers, that a large portion of the purchase price of said shares of stock so bought and subscribed for by said defendant of said corporation, still remains due and unpaid from said defendant to said corporation, to-wit, the sum of $1000; that by virtue of the premises herein set forth, and in accordance with the statutes of the State of Illinois, the said defendant is individually liable to this plaintiff for the said debt of the said corporation to this plaintiff, to an amount equal to the said amount of stock in said corporation owned and subscribed for by said defendant, to-wit, the amount $1000.”

The second count varies slightly from the first, but no point is involved in that variation.

The defendant pleaded nil debet, nul tiel record, and the Statute of Limitation of five years, and a number of special pleas, to which demurrers were sustained.

The cause was submitted to the court without the...