Roper v. the Trustees of Sangamon Lodge No. 6

• Decision Date: 31 January 1879
• Citation: 1879 WL 8437,33 Am.Rep. 60,91 Ill. 518
• Parties: JOSEPH D. ROPER et al.v.THE TRUSTEES OF SANGAMON LODGE NO. 6, I. O. O. F.
• Court: Illinois Supreme Court

91 Ill. 518

1879 WL 8437 (Ill.)

33 Am.Rep. 60

JOSEPH D. ROPER et al.

v.THE TRUSTEES OF SANGAMON LODGE NO. 6, I. O. O. F.

Supreme Court of Illinois.

January Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. ROBINSON, KNAPP & SHUTT, for the appellants.

Messrs. PALMER, PALMER & ROSS, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that John A. Hughes was elected treasurer of appellees' lodge. He so acted from the first day of January, 1875, until the 30th of June following. It is agreed by the parties that at the commencement of this term of office he reported to the lodge that he had the sum of $436, money of the lodge; that on the 30th of June, the end of his term, he should have had in his hands $561, which he had received and failed to pay over to his successor. The suit was on the bond given by Hughes, as such treasurer, and service was had on the sureties but not on Hughes.

The sureties pleaded non est factum, and a special plea, that for two terms preceding the term commencing on the 1st of January, 1875, Hughes, the principal, was treasurer, and, at that time, was a defaulter to the lodge for moneys previously received and misapplied; that it was then known to the officers and members of the lodge that he was a defaulter, and the sureties were ignorant of the fact; that the lodge is a secret organization, of which defendants were not members, and were ignorant of its business; that it was the duty of the officers and members of the lodge, when the bond was executed, to inform defendants that Hughes was a defaulter, and defendants were misled by the lodge having re-elected him, and thereby induced them to believe he had acted faithfully, but the officers or members gave to defendants no such notice. The plea concludes by insisting the bond is void. The court sustained a demurrer to this plea, and that decision is assigned for error.

It is also urged, that the court erred in refusing to permit appellants to prove that the default accrued and the mis-appropriation of the money was during the term previous to this election on the first of January, 1875, when other persons were his sureties, for the purpose of fixing the liability for the default on the sureties on the bond covering the previous term.

It is urged that the special plea presented a complete defence to the action; that the officers and members of the lodge, knowing of the defalcation, and re-electing Hughes treasurer, operated as a recommendation of his honesty to all persons not members of the lodge; that such conduct on the part of the lodge was calculated to and did mislead appellants and operated as a fraud upon them, and the concealment by the officers and members of the fact that Hughes was a defaulter when they signed his bond, was a positive fraud.

There is a class of cases in which it is held that it is fraud to fail to disclose defects on the sale of property, and silently stand by and permit another to act upon the supposition that he is purchasing a good title, when the person claiming an adverse title or interest, knowing the fact and having the opportunity, fails to assert his claim. So, of many other transactions it is held to be a fraud to fail to disclose facts that would prevent the other party from acting. But the rule does not apply when the defect or important information is as accessible to one person as the other. One person is not required to act as the agent of another...