Page images
PDF
EPUB
[blocks in formation]

9. Construed. An agreement by one erecting a building, that the owner of the adjoining lot may use one-half of the wall on the line at any time he may choose to build, in consideration of his permitting onehalf of the wall to be built on his side of the line, does not obligate the one building, and his grantces, to rebuild such wall at his own expense, in case the same is destroyed by fire or otherwise. Huck v. Flentye, 258.

WHEN NOT COMPLETED IN TIME.

10. Party not responsible for delay caused by other party. If a party contracting to furnish and deliver cut stone for a building is ready and willing to deliver as required, but the other party is not then ready to receive the same, and after the delivery is commenced he is delayed in consequence of mistakes in the drawings and specifications furnished, by which he has to do a portion of the work a second time, he can not be held liable in damages for delay in completing the building, without his fault. Sperry v. Fanning et al. 371.

11. When damages given for delay. If a party agreeing to furnish the cut stone for a building is guilty of a delay in supplying the same within the time required, whereby the builder claims that he was deprived of rents in the spring, the usual time for leasing rooms, he must show that the building would have been completed by the time for renting had it not been for the delay in delivering the stone, if he wishes to recoup damages in a suit for the price of the stone. Ibid. 371. RECOVERY WITHOUT FULL PERFORMANCE.

12. When a party may abandon, and sue for what has been done under it. Where one party fails to perform his part of a special contract, which prevents the other from performing his part, the latter may abandon the contract and bring assumpsit for what he has done under it, if that action would lie but for the special agreement. Wilson v. Bauman et al. 493.

13. And if one party has performed the contract substantially, or has performed part, and the balance is waived, or prevented by the other party, and the part performed has been accepted and appropriated, the party so performing may sue upon the contract and recover for what he has done, according to the contract price; but where the suit is not brought on the contract for work done in conformity with its terms and accepted, the recovery can only be for the value of the services rendered, without reference to the contract. Ibid. 493.

WHEN PERSONALLY BINDING ON PARTY.

14. Signing as guardian, etc. If a person makes a contract, describ ing himself as guardian or trustee for another, and so signs the same, he will be personally liable, in the absence of an express provision showing clearly that both parties agreed to act upon the responsibility

CONTRACTS. WHEN PERSONALLY BINDING ON PARTY.

Continued.

of the funds in his hands alone, or upon some other responsibility, or there appears some other circumstance clearly indicating another party who is bound by the contract, and upon whose credit alone it is made. Sperry v. Fanning et al. 371.

15. The use of the name trustee, or other name of office or employ. ment, by a promisor or contracting party, will not discharge him. Some one must be bound by the contract, and if he does not bind some other he binds himself, and the official name is then only regarded as describing and designating him. Ibid. 371.

OF EXTRA WORK DONE.

16. Where a contractor to rebuild a burnt court house employed a mason to do all the mason work necessary to make the walls as good as they were before the fire, according to plans and specifications to be furnished, and the specifications showed a certain line to which the brick walls should be taken down and rebuilt, and when such line was reached the contractor required the mason to take down more wall to reach solid masonry, which was done: Held, that the contractor was liable to the mason for the reasonable worth of such extra work, caused by taking down more of the walls. Donlin v. Daegling et al. 608.

DECLARATION OF FORFEITURE.

17. What will amount to. Where the payment of money within a specified time is of the essence of any contract for the purchase of land, the non-compliance with such condition is a sufficient ground for a denial of any claim of right in the land under the contract; and if any declaration of forfeiture is necessary in such case, a sale of the land to another party after the expiration of the time for payment is sufficient evidence of such forfeiture. Bostwick et al. v. Hess et al. 138.

RESCISSION FOR FRAUD. See CHANCERY, 10, 11.

CONVEYANCES.

DESCRIPTION OF GRANTEES.

1. A deed to "the heirs at law of A B, late of, etc., deceased," will completely vest the legal title of the grantor in the heirs of A B, without naming them, leaving them, however, to establish their identity when questioned. Low et al. v. Graff et al. 360.

DESCRIPTION OF LAND.

2. By the use of initials. See DESCRIPTION, 3.

ACKNOWLEDGMENTS OF DEEDS. See that title.

COOK COUNTY.

UNDER TOWNSHIP ORGANIZATION. See TAXES AND TAXATION, 10.

CORPORATIONS.

IN WHAT NAME TO SUE.

1. Where there are two statutes in force, under which a religious corporation can exist, and under one of which it can sue in its own name, it will be presumed that a suit is rightfully brought in the name adopted by such corporation, until that fact is put in issue by a proper plea for that purpose. Fireman's Fund Insurance Co. v. Congregation Rodeph Sholom, 558.

PRIVATE CORPORATIONS-THEIR POWERS.

2. Power to mortgage. The power to mortgage, when not expressly given or denied to a corporation, will be regarded as an incident to the power to acquire and hold real estate and to make contracts. Aurora Agricultural and Horticultural Society v. Paddock, 263,

3. Power to alien property. All private corporations have an inci. dental right to alien or dispose of their lands and personal property without limitation as to objects, unless restrained by the act under which they are organized, or by statute. Ibid. 263.

4. Power of directors to mortgage. Even if the directors of a private corporation have no authority to borrow money and mortgage its real estate for its repayment, yet, if the stockholders ratify their action by approving the minutes of their proceedings before the loan is effected, and afterwards receive the benefit of the loan and pay interest thereon, the stockholders will be estopped from questioning the authority of the directors on bill to foreclose the mortgage. Ibid. 263. INSURANCE COMPANIES.

5. Liability of stockholders. The stockholders in all insurance com. panies subject to the General Insurance Law of 1869, are liable for the debts of their company to the full amount of their respective shares of stock, where the full amount subscribed has not been paid in. Butler v. Walker, 345.

6. A stockholder is not relieved from this liability by payment of the sum subscribed by him. Until the full capital stock is paid in, and a certificate of the fact made and recorded, he is liable to be sued for the debts of the company to the amount of his stock. Ibid. 345.

7. Effect of law of 1869 on special charters. The 19th section of the General Insurance Law of 1869 is broad and comprehensive, and brings all insurance companies organized before and doing business in this State at the time of its passage, under all its provisions as fully as if it had enumerated them by name, and its effect is to amend such charters so as to make them conform to its provisions. Ibid. 345. MUNICIPAL CORPORATIONS.

Where the act

8. Liability for illegal acts of its officers and servants. done is within the corporate power, and might have been lawfully accomplished, had the municipal authorities proceeded according to law, the corporation will be liable for the acts of its officers and servants,

CORPORATIONS. MUNICIPAL CORPORATIONS.

Continued.

proceeding contrary to law, or in an irregular manner. City of Chicago v. Turner, 419.

9. But where the act complained of lies wholly outside of the general or special powers of the corporation, it can, in no event, be liable, whether it directly commanded the performance of the act, or whether it be done by its officers without its express command. Ibid. 419.

10. Where a declaration shows an injury resulting from the acts of city officers in attempting to enforce an ordinance which was ultra vires and void, it will fail to show any right of action against the city. Ibid. 419.

11. Power to levy taxes, etc., strictly construed. With quasi corporations, such as commissioners of highways, the rule obtains that their power to impose taxes or incur indebtedness will be strictly construed. Municipal corporations have no inherent power to levy taxes, and the grant of power must be plain and unmistakable. Commissioners of Highways v. Newell et al. 587.

12. Adopting act of 1872. See ELECTIONS, 1 to 5.

COSTS.

ON BILL FOR AN ACCOUNT.

1. Where two partners deny the proper construction to be given to articles of partnership, and refuse to settle upon the proper basis, so that the other partner is compelled to file a bill to have the contract construed and for an account under such construction, there is no error in requiring the defendants to pay all the costs. Taft et al. v. Schwamb,

289.

ON CONTEST OF WILL.

2. Liability of executor. See WILLS, 4.

MOTION FOR SECURITY.

3. Overruled by ordering trial. See PRACTICE, 9.

COUNTY COURTS.

JURISDICTION AND GRADE.

1. Not courts of inferior or special jurisdiction. County courts, although of limited, are not, strictly speaking, of inferior, and certainly are not courts of special jurisdiction, and when adjudicating upon the class of questions over which they have general jurisdiction, as liberal intendments will be granted in their favor as would be extended to the proceedings of the circuit courts. Bostwick et al. v. Skinner et al. 147.

2. Presumption in favor of their finding, on petition by administrator to sell real estate. Where a petition is filed in the county court by one claiming to be an administrator, for leave to sell real estate to pay debts of the deceased, one of the questions presented for the adjudica

COUNTY COURTS. JURISDICTION AND GRADE.

Continued.

tion of the court is, whether the petitioner is administrator, and if the court decrees in accordance with the prayer of the petition, the presumption is that the proof was sufficient. Bostwick et al. v. Skinner et al. 147.

3. When and how jurisdiction of sale of land of deceased parties to pay debts acquired. County courts acquire jurisdiction in a proceeding by an administrator to sell lands to pay debts, from the death of the party seized of the real estate, the grant of letters of administration, and his indebtedness, and filing a petition showing these facts; and the recitals of the record can not, in a collateral proceeding, be contradicted by parol or other evidence outside of the record. Ibid. 147.

4. County courts having jurisdiction over estates in general, the question as to whether a particular county court has jurisdiction of a particular estate is a question of fact to be determined by that court, and when once determined, the judgment is conclusive, and can not be questioned in a collateral proceeding. Ibid. 147.

COURTS.

SUPERIOR, OF COOK COUNTY.

Branch, may be held by circuit judge. See SUPERIOR COURT OF COOK COUNTY, 1.

CREDITOR'S BILL. See CHANCERY, 7, 8, 9.

CRIMINAL LAW.

OF THE JUDGMENT OR SENTENCE.

1. On conviction under several counts. Where a defendant is found guilty under several different counts of an indictment for selling liquor without a license, it is error to sentence generally to a single term of imprisonment. He should be sentenced for a specified term under each count, the time under the second to commence when the first ends, and so on to the last. Stack v. The People, 32.

CUSTOM AND USAGE.

REQUISITES.

1. To affect contract. A custom or usage, to affect a contract, must not be in opposition to any principle of general policy, nor inconsistent with the terms of the agreement between the parties, or against the established principles of the law. Besides this, it must be generally known and established, and so well settled and so uniformly acted upon as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to it and in conformity with it. Wilson v. Bauman et al. 493.

2. Must be ancient and notorious. An instruction informing the jury that if there was a custom among architects in a city at that time (the time of making a contract), that it entered into the contract, etc., is

« PreviousContinue »