City of Chicago v. Peck

• Decision Date: 16 April 1902
• Parties: CITY OF CHICAGO v. PECK.
• Court: Illinois Supreme Court

196 Ill. 260

63 N.E. 711

CITY OF CHICAGO

v.PECK.

Supreme Court of Illinois.

April 16, 1902.

Appeal from appellate court, First district.

Action by Henry Peck against the city of Chicago. From a judgment of the appellate court (98 Ill. App. 434) affirming a judgment for plaintiff, defendant appeals. Affirmed.Charles M. Walker, Corp. Counsel, and William H. Fitzgerald (Fitzgerald & Orr, of counsel), for appellant.

Churan & Sabath and E. V. Fliehmann, for appellee.

CARTWRIGHT, J.

The appellate court affirmed a judgment against appellant recovered by appellee in the circuit court of Cook county for rent according to the terms of a lease by which appellee leased to appellant certain property, which it took possession of and used for purposes of a smallpox hospital.

The first point made in the argument in behalf of appellant is that the trial court erred in admitting the lease in evidence. The execution of the lease was averred in each of the three special counts of the declaration, and a copy of it was annexed to, and filed with, the declaration. The only plea was the general issue, and it was not verified. Under the provisions of section 34 of the practice act, the defendant could not be permitted to deny on the trial the execution of the lease. Hurd's Rev. St. 1899, p. 1288. The statute establishes a rule of evidence, and embraces in its terms all persons, natural and artificial. No exception is therein made in favor of municipal corporations, and, under the rule enacted for the construction of statutes, the word ‘person’ extends to bodies politic and corporate, as well as individuals, where such construction is not inconsistent with the manifest intent of the legislature, or repugnant to the context of the same statute. Id. p. 1649. The legislature has nowhere manifested an intention that municipal corporationsshall not be governed by the same rules of evidence as other litigants, and the construction which includes them within the rule is not repugnant to any provision of the practice act. The lease was alleged to have been executed by the defendant, and it purported on its face to be the instrument of the defendant. It recited that it was made ‘between Henry Peck, of the city of Chicago, county of Cook, and state of Illinois, party of the first part, and the city of Chicago, in Cook county, and state of Illinois, party of the second part.’ By its terms, the party of the first part, Henry Peck, leased the premises therein described to the party of the second part; and the party of the second part, in consideration of such leasing, agreed to pay the rent therein stipulated, and, upon the expiration of the term, to remove all the buildings and other improvements placed thereon by it, and to put the premises in the same condition as at the time it took possession. It recited that it was signed and sealed by the parties, and it bore the signatures and seals of Henry Peck and John P. Hopkins, mayor, and was approved by M. B. Madden, chairman of the finance committee. It did not purport to be a lease to the mayor, nor an agreement on his part to pay the rent and restore the premises to their former condition. The only construction that can be put upon the lease is that it is the instrument of the defendant, executed in its behalf by the mayor. Where an instrument purports to be executed by an agent, the authority of the agent is a material part of the execution, and to admit the execution is to admit all the essentials to the execution. To require proof of the execution is to require proof of the authority to execute the instrument, and, if the execution is denied by a verified plea, the authority of the agent constitutes an essential part of the plaintiff's proof. A corporation necessarily acts by its agents, and, if the execution of the instrument is not denied by verified plea, it is not necessary to prove the authority of the agent. Delahay v. Clement, 2 Scam. 575. The failure to deny the execution of the lease by verified plea was an admission that it was executed by the city, necessarily including the fact that the mayor, acting for the city, had authority to execute it. It was not error to admit the lease in evidence without proof of its execution, or of the authority of the mayor to execute it.

It is further insisted that the lease could not be admitted in evidence until the plaintiff had proved: First, a previous appropriation for the expense involved in the leasing by an ordinance duly passed by a vote taken by yeas and nays during the first quarter of the fiscal year, or, if for a casualty during the year, by a two-thirds vote taken in the same manner; second, an ordinance authorizing the making of the contract; third, that the proposed contract was duly advertised; fourth, that bids were received, and that plaintiff was the lowest bidder. It is not denied that the defendant had power to...