The Bd. of Educ. of State v. Sons

• Decision Date: 30 April 1864
• Citation: 39 Ill. 609,1864 WL 3163
• Court: Illinois Supreme Court
• Parties: THE BOARD OF EDUCATION OF THE STATE OF ILLINOISv.GREENEBAUM & SONS.

39 Ill. 609

1864 WL 3163 (Ill.)

THE BOARD OF EDUCATION OF THE STATE OF ILLINOIS

v.GREENEBAUM & SONS.

Supreme Court of Illinois.

April Term, 1864.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of McLean county.

This was a proceeding instituted by Greenebaum & Sons in the court below, to the September Term, 1861, against the Board of Education of the State of Illinois, to enforce a mechanic's lien.

It is stated in the petition that on the third day of March, 1860, the plaintiffs entered into a written contract with the defendants, by the name and style of “The State Board of Education of Illinois,” and “that the said contract was executed on the part of said board of education by C. B. Denio, J. S. Post, C. E. Hovey and S. W. Moulton, the building committee of said board, who had full power to make said contract.”

It is further alleged that the said board of education was the equitable owner of certain lands and buildings, and that the plaintiffs, under said contract, were to do the plastering and plumber's work on the Normal University building by the 1st day of July, 1860. That by the terms of the contract the plaintiffs were to be paid for plastering, 28 6/10 cents per yard, and for plumber's work, $2,800, all of which was to be paid on the 1st of March, 1861.

The plaintiffs allege that they performed the work according to contract, and have not been paid, and they pray for a mechanic's lien, and that the property be sold, etc.

At the December Term, 1861, the defendant filed a demurrer to the petition, alleging in support thereof,

1. That it does not appear by said petition that the persons who signed the contract were authorized by the said board of education to sign the same.

2. That it does not appear from the petition that the persons who signed the contract were the agents of the said board of education and authorized under the seal of said board to act for them.

3. That the said board of education cannot act by an agent.

The court overruled the demurrer and the defendants answered, denying all the allegations in the petition. The cause was heard by the court, and a decree was rendered in favor of the petitioners, finding the facts substantially as alleged in the petition. The court decreed that the board of education was indebted to the petitioners in the sum of $8,293.10; that they have a mechanic's lien on the property, and that in default of payment by a day named, the property be sold, etc. Thereupon the defendants sued out this writ of error. The questions arising in the case are fully presented in the opinion of the court.

Mr. PERKINS BASS, for the plaintiffs in error.

Mr. W. C. GOUDY, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

Several objections are taken to the decree in this case, which we will notice in the order in which they are presented; and,

1. Overruling the demurrer to the petition. The plaintiffs in error urge in support of the demurrer, that it does not appear by the petition that the persons who signed the contract were authorized to sign it. This objection is answerd by reference to the petition, in which it is alleged that “the contract was executed, on the part of the said board of education, by C. B. Denio, J. S. Post, C. E. Hovey and S. W. Moulton, the building committee of said board, who had full power to make said contract.”

2. It does not appear by the petition that the persons who signed the contract were the agents of the board, and authorized under the seal of the board of education to act for it, and that the board cannot appoint or act by an agent. In other words, the board has no power to appoint an agent, and if it has, such appointment must be under the seal of the board.

As was remarked by this court in the case of the Chicago, Burlington and Quincy R. R. Co. et al. v. Coleman et al., 18 Ill. 299, the old doctrine that corporations can only be bound by acts under their corporate seal has been long exploded, and as said by the Supreme Court of the United States in the case of The Bank of the United States v. Dandridge, 12 Wheaton, 68, cannot now, as a general proposition, be supported. In general, throughout the United States, it is entirely exploded, and it is well settled that the acts of a corporation evidenced by vote, written or unwritten, are as completely binding upon it, and are as complete authority to its agents, as the most solemn acts done under the corporate seal; that it may as well be bound by express promises through its authorized agents as by deed; and that promises might as well be implied from its acts and the acts of its agents, as if it had been an individual. Angel and Ames on Corporations, 212, and the cases referred to in note.

3. The answer, it is said, denies the allegations of the petition, and the proofs preserved in the record are insufficient to sustain them, or the decree.

The allegations of the petition are clear and distinct as to the contract, and as to the facts on which a decree is sought. The evidence is found in the certificate of the judge who tried the cause, and proves, substantially, all the material facts alleged. The appointment of the plaintiffs in error, as a building committee, was proved by the production of the proceedings of the board, and their authority to make the contract, fully established. The records of the board were also introduced, wherein it was stated that the building was substantially completed, and claimed to be “the very best building of the kind in America, and perhaps in the world,” and that the execution of the work, in accordance with the plans of the architect, has been most faithfully performed and in the very best and most workmanlike manner. Though it may not be stated in so many words, that the matters and things stated in the decree as found by the court were proved as facts on the trial, yet it is stated in the clearest terms in the decree, that the court found the facts stated in it. The decree is very formal, and contains the various findings of the court, and which fully establish the complainants' case, and in no essential particular variant from the evidence preserved in the certificate of the judge.

4. The next objection is that the contract is alleged in the petition to have been entered into by the plaintiffs in error by the name and style of “The State Board of Education of Illinois,” whereas, by the act incorporating this board, the name given to it is “The Board of Education of the State of Illinois,” and provides that, “by that name and style shall have power to contract and be contracted with.”

The proper name of this corporation is “The Board of Education of the State of Illinois.” Scates' Comp. 425. In the contract words are transposed, but the name and style remain substantially the same. The same words are embraced in both names. It is a settled principle that the transposition, interpolation, omission or alteration of some of the words going to make up the name of a corporation, is not material, if it makes no essential difference in their sense. Angel & Ames on Corp. 77. In New Hampshire it was held, when a promissory note was given to the president, directors and company of, instead of to the Newport Mechanics' Manufacturing Company, which was the true name of the corporation to which the note was designed to be given, that the variance was not such as to preclude a recovery in the name of the corporation. Newport Mec. Manf. Co. v. Starbird, 10 N. H. 123; 1 Kyd on Corp. 237; Bac. Abr. title Corporation, C. 2. So this court held in Chadsey v. McCreery, 27 Ill. 253, that the transposition, alteration or omission of some words in the name of a corporation consisting of several words, was immaterial, if it was evident what corporation was intended.

The suit is brought against the corporation by its true name, with an averment that the contract was executed by the name used in it. This is the usual and formal mode of declaring on such contracts. It is a familiar principle, when a deed is made to a corporation, by a name varying from the true name, the plaintiffs may sue in their true name, and aver in the declaration that the defendants made the deed to them, by the name mentioned in the deed. African Society v. Varick, 13 Johns. 38. The contract in this case purports to have been entered into by the corporation by its agents, and their authority is abundantly shown by the acceptance of the work done under it, and pronounced by the plaintiffs in error as “the best building of the kind in America, and perhaps in the world.” As to the objection in regard to certain evidence introduced by the complainant, it is sufficient to say no objection was made to it at the hearing, and it is now too late to make one here for the first time. No exceptions appear to have been taken to any of the rulings of the court on the evidence, and therefore they cannot now be assigned as error. Gibbons v. Johnson, 3 Scam. 63; Pottle v. Mc Worter, 13 Ill. 455; Gillespie v. Smith et al., 29 Ill. 478, referring to Conway v. Case, 22 Id. 139; and Sergeant v. Kellogg, 3 Gilm. 281; Swift et al. v. Whitney et al., 20 Ill. 144, and Buntain v. Bailey, 27 Id. 410.

The objections might have been removed had they been specifically alleged. Not having been alleged, they must be considered as waived.

The principal objection to the recovery in this case, and the one most pressed, is, that the board of education is a corporation founded by the State, and supported by the funds of the State, and that its property is the property of the State, and therefore not subject to a mechanic's lien.

To determine the force of this objection, the act of 1857 must be considered, and the additional act of 1861.

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