Mosher v. Rogers

Decision Date31 December 1878
Citation3 Ill.App. 577,3 Bradw. 577
PartiesB. R. MOSHER ET AL.v.STEPHEN ROGERS.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of La Salle county; the Hon. JOSIAH MCROBERTS, Judge, presiding. Opinion filed May 2, 1879.

Mr. E. F. BULL and Mr. A. W. HARD, for appellants; in support of the sufficiency of defendant's plea, cited Stricklin v. Cunningham, 58 Ill. 293; Gridley v. Bane, 57 Ill. 529; Young v. Ward, 21 Ill. 223; Easter v. Minard, 26 Ill. 494.

The evidence offered tended to support the issues formed under the pleadings, and should have been admitted: Davis v. Hoxey, 1 Scam. 406; Phelps v. Jenkins, 4 Scam. 48; Reese v. Henck, 14 Ill. 482; Smith v. Gillett, 50 Ill. 290; Seeley v. Porter, 53 Ill. 102; Crowley v. Crowley, 80 Ill. 469; Hugh v. Cook County Land Co. 73 Ill. 23.

Mr. G. S. ELDREDGE, for appellee; argued that the plea presented no defense to the note, and cited Neely v. Lewis, 5 Gilm. 31; Moss v. Riddle, 2 Pet. 277; Warrell v. Munn, 1 Seld. 229; Walker v. Crawford, 56 Ill. 445; Wimple v. Kesoph, 15 Minn. 440; Lane v. Sharpe, 3 Scam. 565; Wood v. Price, 46 Ill. 435; Emory v. Mohler, 69 Ill. 221; Merchants' Ins. Co. v. Morrison, 62 Ill. 242; Foy v. Blackstone, 31 Ill. 538; Snyder v. Griswold, 37 Ill. 216; Jones v. Albee, 70 Ill. 34; Conwell v. S. & N.W. R. R. Co. 81 Ill. 232; Mason v. Burton, 54 Ill. 350; Cease v. Cockle, 76 Ill. 484.

The Association had no authority to lay out and plat an addition to the village of Millington; it was ultra vires, and all executory contracts founded upon it necessarily void, and the plat was properly excluded: Carroll v. City of East St. Louis, 67 Ill. 568; Cin. Mut. Ins. Co. v. Rosenthal, 55 Ill. 85; Starkweather v. Am. Bible Soc. 72 Ill. 50; Bank of U. S. v. Owen, 2 Pet. 538.

If a part of the consideration be illegal, the entire contract is void: Henderson v. Palmer, 71 Ill. 579; Craft v. McConnoughy, 79 Ill. 346; Winston v. McFarland, 22 Ill. 38.

The statute limits the power of corporations; they can take nothing by implication: Charles River B. Co. v. Warner B. Co. 11 Pet. 543; Newhall v. Galena R. R. Co. 14 Ill. 273; Petersburgh v. Metzker, 21 Ill. 205; Penn. R. R. Co. v. Canal Com'rs, 21 Pa. St. 9; President, etc. v. McConnell, 12 Ill. 138; Caldwell v. City of Alton, 33 Ill. 416; Mix v. Ross, 57 Ill. 121.

All contracts to promote the exercise of unauthorized powers are void, as being against public policy: Miller v. Goodwin, 70 Ill. 659; City of Alton v. Ins. Co. 75 Ill. 566; People v. Dupuyt, 71 Ill. 651; Metropolitan Bank v. Godfrey, 23 Ill. 604; People v. Board of Trade, 45 Ill. 112; East Anglian R'y Co. v. Eastern Counties R'y Co. 7 Eng. L. 505; B. & O. R. R. Co. v. Wheeling, 13 Gratt. 75; Clark v. Farrington, 11 Wis. 323; Barret v. A. & S. R. R. Co. 13 Ill. 512; Bissell v. Mich. S. R. R. Co. 22 N. Y. 265; Bank of Peru v. Farnsworth, 18 Ill. 563.

SIBLEY, J.

This suit was brought by Stephen Rogers against the appellants, upon a promissory note, as follows:

+-----------------------------------------+
                ¦“$2,000.¦MILLINGTON, ILL., Dec. 13, 1875.¦
                +-----------------------------------------+
                

One year aft?? date, for value received, we promise to pay Stephen Rogers, or order, two thousand dollars, with interest at ten per cent. It is further agreed, that should the payee so elect, he may at any time within six months from date, by the delivery of this note, receive twenty shares of the stock of the Enameling Company of Chicago, now held by the Citizens' Improvement Association of Millington, together with one lot with each share as now given by said Association, said lots to be selected from the lots in said Association's addition to Millington, not now selected by other subscribers to stock.

B. R. MOSHER,

L. C. CARLOW,

BIDDULPH & MCMATH,

S. POTTER,

JOSEPH JACKSON,

W. M. SWEETLAND,

JOHN JONES.”

The defendants in the court below filed several pleas. Demurrers were sustained to pleas two and three, and the defendants abided by them. To plea four the plaintiff replied severally, upon which issues were joined and a trial had that resulted in a verdict for the plaintiff, and damages assessed at $2,512.21. From the judgment rendered upon that verdict, the defendants appealed to this court. No error having been assigned to the decision of the court sustaining the demurrers to pleas two and three, their sufficiency, therefore, cannot now be considered.

The refusal of the court to allow the defendants on the trial to refile the plea of general issue, after having been once withdrawn, even if assigned for error, was a matter of discretion, in the exercise of which no reason is perceived for interfering.

The remaining errors complained of (except that of overruling the motion for a new trial) relate to the refusal of the court to admit competent evidence offered by the defendants, and the final exclusion of all that had been admitted for them.

The fourth plea sets up that the only cause of action was the note described in the declaration. That the money for which the note was given was paid to and used by the Enameling Company, of Chicago, located at Millington, in the county of LaSalle, and no part of it received by, or appropriated for the benefit of the defendants, or either of them. That after the execution of the note the plaintiff agreed with the defendants, that if they would secure to him a situation in the Enameling Company at a salary of $1,500 a year, when the works of the company were completed, he would then take $2,000 in the capital stock of that company held by the Citizens' Improvement Association, of Millington, and one lot with each share of stock of $100 in the Association's addition to the town of Millington, in full satisfaction and discharge of the note declared on. That the defendants, acting upon this agreement, did afterward secure to the plaintiff the situation he desired; and when the works of the Enameling Company were finished, the plaintiff, pursuant to the arrangement, entered into the employment of the company at a salary fixed at $1,500 per year, and selected the lots in the addition laid off by the Improvement Association to the town of Millington, and agreed to surrender the note sued on, and take the stock in the Enameling Company. That the lots so selected had been held by the Improvement Association of Millington, for the plaintiff, together with $2,000 worth of stock in the Enameling Company, subject exclusively to his order and control, and by means of which arrangement the defendants were entitled to have their note surrendered and canceled.

There were quite a number of replications filed to this plea, and it is proper here to remark, that if the plea was defective, as appellee now...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT