Gambar halaman

to Allen and three to Evelyn A. Frake, and they were to be secured by the trust deed to James Frake. In accordance with the provisions of the contract Lane designated Herbert L. Bailey as the person to receive the deed, and the notes and trust deed were made in Bailey's name. It was stipulated in the contract that the trust deed should contain the following provision, which was accordingly inserted therein: "It is provided and agreed herein on the part of the parties in interest herein, that said above described premises may be subdivided, and that on payment of $500 or more, at any time or times, on the indebtedness secured hereby, a part or parts of said premises shall be released therefrom, the amount to be so released to be determined as follows, to-wit:" Then followed the manner of determining the amount at certain rates per front foot therein stated, provided there should not be less than 2400 feet of frontage, but otherwise the amount to be released on a payment was to be determined by the trustee, James Frake. Bailey conveyed the premises, at the request of Lane, who was the real party in interest, to Alfred B. Church. A subdivision of the premises was made with a frontage of more than 2400 feet, block 1 having forty-nine lots and block 2 containing fifty-two lots. Church conveyed to Lane, and Lane to A. J. Vesey, who secured part of the purchase money by a junior incumbrance on the lots sought to be released by the cross-bill. Vesey conveyed to Andrew A. Brock, subject to the incumbrances, and when the cross-bill was filed Lane held the junior incumbrance, and sought a release of lots 1 to 10 inclusive, in each of said blocks 1 and 2, from the trust deed, out of the way of his incumbrance, in accordance with said stipulation. He had paid to the trustee $591.30 June 27, 1892, and $3332.90 August 19, 1892, on the indebtedness secured by the trust deed, and had repeatedly made demands of the trustee for such release, tendering a release to be executed together with $3 as a fee for its execution, but

the trustee on each occasion had refused to execute such release.

The subdivision was made in July, 1893, and the refusal to release is attempted to be justified on the ground that such subdivision of the premises must precede the payment in order to entitle the party paying to a partial release. The provision, however, will not bear such a construction. The right to a release depended upon the payment of money, and the only connection that a subdivision had with such right was to furnish a basis for determining what proportion of the premises should be released. A rate per front foot was fixed for corner lots and for property on the Elston road, and a different rate for other lots. The subdivision was only mentioned in connection with the release as fixing the right to the quantity of land to be released. The provision could not be operative unless there should be a subdivision, so that the quantity to be released could be determined, but whether the subdivision was before or after the payment was immaterial. Some evidence was introduced on the part of the defendants, before the master, that in the negotiations it was said that the lots to be released were to be sold to bona fide purchasers after a subdivision. But this evidence was disregarded by the master, and this was right. There was no such condition contained in the contract or trust deed, and the contract could not be varied by evidence of the conversations during the negotiations.

It is suggested by counsel that he who demands equity must do equity, and that Lane should have paid up the whole indebtedness, and not asked to have that released upon which he had paid without paying, the rest. It was agreed by the trust deed that partial releases should be executed upon partial payments being made, and it is admitted that such payments were made. The agreement for partial releases did not depend, in any degree, upon a complete payment, but the sole object of the

partial release clause was to have a release of a portion of the premises on partial payment and without a full payment. It cannot be said that it would be inequitable to compel the parties to carry out their contract, unless relief is barred under some rule of equity. There is no claim nor any evidence that Lane has done anything that could estop him from insisting upon his contract. The bill in this case was filed immediately after the maturity of the last note, and it was not shown that the parties had suffered in any manner or delayed enforcing their rights, relying upon the security upon the whole tract, as was the case in the only authority cited by appellees on this question, where the parties delayed foreclosure for a year and a half, during which they thought, and had a right to think, the mortgage covered the whole land.

It is said that Lane chose the best lots in demanding a release. It would be singular if he did not make such a selection; but the demand was in accordance with the agreement, which fixed different rates for lots according to their location. The fact that he exercised his right to make such a selection cannot affect his claim. The taxes on the premises had not been paid, and Lane paid to the trustee $30 for the tax on that portion which he asked to have released. This portion constituted onefifth of the premises, and the amount tendered was more than one-third of the whole tax. This part was undoubtedly more valuable in proportion to frontage than some other parts of the subdivision, but it appears that the amount paid was equal to the proportionate share of the tax chargeable to this part of the premises.

The allegations of the cross-bill were sustained by the proof. The judgment of the Appellate Court and the decree of the Superior Court of Cook county are reversed, and the cause is remanded to the latter court, with directions to enter a decree in accordance with the prayer of the cross-bill.

Reversed and remanded.

431:34 LRA336n




Filed at Ottawa May 12, 1896-Rehearing denied October 9, 1896.

1. RES JUDICATA-effect of judgment of Appellate Court reversing and remanding. A judgment of the Appellate Court reversing the judgment of the lower court and remanding the cause is not final, and does not conclude parties in the Supreme Court upon a subsequent appeal from a later judgment of such lower court, as no appeal could be taken from such former judgment of the Appellate Court.

2. Board of TRADE-of Chicago—is a voluntary association. The Chicago board of trade, although incorporated, is a merely voluntary association.

3. SAME-effect of termination of membership on property rights. The value of the right to pursue a business, as a member of the Chicago board of trade, in the hall of the building devoted to that purpose, is incidental to the membership, and the determination of such membership destroys the rights under it.

4. SAME--courts will not control in the enforcement of by-laws. The courts will not interfere to control the enforcement of by-laws of a board of trade, but the board will be left to enforce its rules and regulations by such means as it may adopt for its government.

5. SAME-member bound by all by-laws within the corporate authority. One who becomes a member of a board of trade voluntarily submits himself to the operation of all laws enacted for its government, and agrees to be bound by them so far as within the corporate authority.

6. SAME-validity of by-law making breach of business contract cause for expulsion. A by-law of a board of trade that if a member fails to comply with a business contract with another member he shall be expelled, is valid.

7. SAME-judgment of tribunal of, cannot be reviewed by the courts. The judgment of a tribunal of a board of trade suspending a member according to the rules to which such member assented when he became a member, upon due notice of the proceedings, cannot be collaterally reviewed by the courts.

8. SAME-strict rules of criminal pleading not applied to proceedings of A charge against a member of a board of trade of bad faith and dishonorable conduct in not carrying out an agreement, having attached a copy of such agreement, is not to be tested by the strict rules of criminal pleading, but is sufficient where the accused is notified of what the bad faith and dishonorable conduct consisted.

[blocks in formation]

9. SAME-courts cannot inquire into sufficiency of evidence on which directors of board acted. The courts cannot inquire whether the evidence before the directors of a board of trade was sufficient to authorize its finding that a member was guilty of dishonorable conduct, upon which he was suspended.

10. SAME-Chicago board may suspend member for dishonorable conduct. The enactment of a by-law providing for the suspension of a member for dishonorable conduct is within the powers of the Chicago board of trade.

11. CORPORATIONS-presumption that president of corporation is authorized to carry out its contracts. The president of a corporation is its chief officer, and is presumed to be authorized to carry out its lawful contracts.

12. SAME-when a corporation may expel member for dishonorable conduct. A corporation authorized by its charter to admit or expel members, and to make such rules, regulations and by-laws as the members think proper for the government of the corporation, may enact a by-law suspending a member for dishonorable conduct.

Board of Trade v. Nelson, 62 Ill. App. 541, reversed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. HENRY V. FREEMAN, Judge, presiding.

GREEN, ROBBINS & HONORE, (A. W. GREEN, of counsel,) for appellants:

Mandamus will not lie against the board of trade to review the action of the directors in the exercise of the disciplinary power over its members. People v. Board of Trade, 80 Ill. 134; People v. Board of Trade, 45 id. 112; Robinson v. Yates, 86 id. 598; Sturges v. Board of Trade, 86 id. 441; Baxter v. Board of Trade, 83 id. 146; Fisher v. Board of Trade, 80 id. 85; Pitcher v. Board of Trade, 121 id. 412.

GEORGE W. SMITH, for appellee:

No appeal to this court from the first judgment of the Appellate Court was prayed, and the opinion became and is of binding authority in this case. Rev. Stat. chap. 37, sec. 31; Railway Co. v. Peterson, 115 Ill. 597.

« SebelumnyaLanjutkan »