Zirkel v. the Joliet Opera House Co..

• Decision Date: 30 September 1875
• Parties: FERDINAND ZIRKELv.THE JOLIET OPERA HOUSE COMPANY.
• Court: Illinois Supreme Court

79 Ill. 334

1875 WL 8630 (Ill.)

FERDINAND ZIRKEL

v.THE JOLIET OPERA HOUSE COMPANY.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. G. D. A. PARKS, for the appellant.

Mr. R. E. BARBER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The corporation of the Joliet Opera House Company was organized by subscription for shares in the stock. Appellant became a subscriber for ten shares, of $100 each, payable in instalments, of not more than 20 per cent, as the work should progress, within 20 days after called for by the proper officers. The declaration contains an averment that the opera house was built, and the required calls were made, and the subscription remained due and unpaid. The general issue was filed, and a plea that the corporation released and discharged the defendant from his liability on the subscription, by resolution of the board of directors, before the commencement of the work on the building; also, that, after the release, no calls were made on defendant for the successive instalments of his subscription.

To this plea a demurrer was filed, which was sustained by the court, and defendant abided by his plea. By consent of the parties, a jury was waived, and a trial had by the court, and. after hearing the evidence, the court found for the plaintiff, and rendered a judgment against defendant for $1000, and he appeals.

It is urged, as a ground of reversal, that the court erred in sustaining the demurrer to the second of defendant's pleas. The first question presented is, whether the plea showed a valid release. The majority of the court think it is fatally defective in not averring that there was a consideration to support the resolution called the release. Had it been under seal, it would have imported a consideration, according to the doctrine of the books; but this is simply a resolution spread on the record of the proceedings of the directors of the company. The resolution, as it is recited, does not show or refer to any consideration to sustain the release, nor is any consideration averred. Without a consideration, expressed, or implied from a seal to the instrument relied on as a release, the party will not be discharged. This is a rule that pervades the law, and is familiar to the entire profession, and requires the citation of no authority in its support. The plea was vicious for this reason.

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