85 Ill. App. 369 | Ill. App. Ct. | 1899
delivered the opinion of the court.
Counsel for plaintiff in error assumes in his argument that the intervening petition of defendant in error is in substance a bill for specific performance, and much of his argument is based on this assumption. The intervening petition is merely a creditor’s claim against an insolvent whose estate has been properly brought within the jurisdiction of a court of equity, and is solely for money alleged to be due on a contract. In such case a bill for specific performance will not lie. Pierce et al. v. Plumb, 74 Ill. 326; Barton v. De Wolf, 108 Ib. 195.
The claim of defendant in error, although filed in a suit in equity, is a legal claim, and not merely one of which only a court of equity could entertain jurisdiction. The master finds:
“ It is contended by the Columbia Casino Company that, pending the negotiations for the concessions prior to the date of said contract, August 12, 1892, the World’s Columbian Exposition, through its representatives, promised the Casino Company, that it should have a concession for the exclusive right to furnish hot meals and liquors during the continuanee of the Exposition, to all visitors to the grounds, and that such monopoly constituted the real consideration for the contract of August 12, 1892, on the part of the objector; that a clause should be inserted in said ‘ Exhibit A’ to that effect; that the omission of such clause was a fraud on this objector.
“ I find from the evidence such promises were made prior to the execution of said contract, and that upon the draft of the contract, without such restrictive clause having been submitted to the Casino Company prior to its execution, said Casino Company applied to the Exposition to have such clause inserted in said contract, and was met with a refusal on the part of such Exposition to allow such restriction; that after such refusal by said Exposition said contract was executed by said Casino Company; that said contract expressed the final agreement between the World’s Columbian Exposition and the Columbia Casino Company, that all prior talks and negotiations were settled by and merged in said written contract. .
“ I find that from the evidence no damages are proved for excessive charges on the part of the World’s Columbian Exposition for the construction of the Casino building; that all other matters were adjusted and settled.”
The findings of fact are fully sustained by the evidence.
Ernst Saddler, who was president of the Casino Company, before and at the time the contract was signed, testifying in regard to the alleged representations of defendant in error that plaintiff in error would have an exclusive right or monopoly, says: “ These representations were made before we made the first payment.” Kirton, attorney for plaintiff in error, of whom Mr. Saddler testified, “ The negotiations were left principally in his hands,” testified : “ The signing of the contract and the payment of the $20,000 were contemporaneous.” The $20,000 was the first payment.
Kirton’s evidence also shows that all talk of exclusive right in plaintiff in error occurred prior to the execution of the contract, and also that when the contract was submitted to plaintiff in error no objection was made that it omitted to provide for such exclusive right. Kirton testified that two or three weeks before the first payment was made it was “ submitted to us ” unsigned; that he would not say that during that time all the officers of plaintiff in error considered it, but that some of them did ; that he, Kirton, during that time had the contract at his office; that he was dissatisfied with it, and expressed his dissatisfaction to Mr. Carlisle, the attorney for the Exposition Company, but the company refused to alter it. Subsequently, on being recalled, he testified that in his interviews with Mr. Carlisle the question of an agreement that plaintiff in error was to have an exclusive right was not discussed.
The following occurred in the examination of Mr. Saddler :
Q. “Did you personally examine the concession in writing executed by the Exposition Company at the time of the payment of the $20,000 ? ” A. “ I read the contract, but Mr. Kirton was appointed a committee to attend to those things, and of course I left the whole thing to him, he being the attorney for the company.”
The president of plaintiff in error read the contract before signing it, the payment of the $20,000, which was the first payment, and the signing, being contemporaneous. Kirton, the attorney for plaintiff in error and the committee having charge of the matter, had it in his possession for weeks before it was signed, and evidently read it, because he says he expressed dissatisfaction with it, and he knew that defendant in error refused to alter it. Under these circumstances, which completely exclude the idea of mutual mistake, or of fraud on the defendant in error, the contract was executed by plaintiff in error. That it can not now be varied by oral testimony materially affecting its terms, is a proposition too thoroughly settled to admit of serious discussion.
“ Where parties have deliberately put their contract into writing, the rule doubtless is, that the written instrument is the exclusive evidence of what the contract is.” Memory v. Niepert, 131 Ill. 628, 630. And in such case extrinsic evidence is inadmissible. Weaver v. Fries, 85 Ill. 356; Wabash Ry. Co. v. McKittrick, 36 Ill. App. 83.
We agree with the master’s finding, that no damages were proved on account of construction, which wa.s the only matter omitted from the settlement of J uly 1,1893. There was no proof of the allegation in the objections of plaintiff in error that Mr. Kochersperger, its president, was not aware of the negotiations antecedent to the execution of the con. tract, and the allegation that he was powerless to make the settlement, we do not think sustained. President Kochersperger testified : “I know at the meeting, I think both of the directors and'Stockholders, there was a committee appointed, of whom I was one, to adjust the matters in regard to the concession of percentage between the Casino Company and the World’s Fair people.” He further testified: “The matter that they intended to adjust was the matter of the twenty-five per cent,” etc.
How, the power to adjust the percentage necessarily included the power to adjust and determine the amount, if anything, which the Casino Company should pay to the Exposition Company, and in determining that, if it appeared that the former company had any just claim against the latter, such claim was a proper matter for consideration and settlement, because, on the amount of such claim being ascertained, it was proper to deduct it from the total amount of the percentage found due to the Exposition Company. It appears from the agreement of settlement that this was done as to all claims of plaintiff in error for damages, except its claim on account of construction matters, in respect to which no evidence was produced before the master. The agreement of July 1, 1893, being signed in the name of plaintiff in error, and by the proper officers, the authority to execute it will be presumed in the absence of evidence to the contrary. Cook on Stock and Stockholders, etc., Sec. 723.
The affixing the corporate seal to the agreement was not necessary to bind the corporation. Ib., Sec. 721. All damage in respect to which evidence was given, occurred prior to June 20, 1893, and must therefore be presumed to have been included in the settlement of July 1, 1893.
As has been stated, a condition of the permission granted to plaintiff in error to file objections was, that the testimony taken on a former reference upon objecting creditors to claims of W orld’s Columbian Exposition might be read by either party. This' condition was agreed to by the parties in open court. The only evidence in the record is the testimony produced before the master by plaintiff in error in support of its objections. The master says in his report: “ I have taken the depositions of sundry witnesses, together with sundry files and documents, and from the evidence submitted I find,” etc. The decree recites, “And thereupon said cause coming on for final hearing upon the petition of the intervention of the World’s Columbian Exposition and the answer thereto, and upon the reports of Jeremiah Learning, one of the masters of this court, filed herein on the'6th day of July, 1894, and on July 3, 1893, respectively, and upon the testimony, proofs and exhibits taken by the respective parties before said master, and returned by him with and as a part of his report,” etc.
It is manifest from the foregoing that evidence was submitted to and considered by the master and also by the court, in addition to the testimony of the witnesses produced by plaintiff in error before the master. The court, in its decree, not only confirmed the master’s report, thus finding, as we think, the facts as did the master, but found specifically that the sum of $25,000 was due from the Columbia Casino Company to the World’s Columbian Exposition. In such case it must be presumed that the evidence omitted from the transcript of the record justified the decree. Allen v. LeMoyne, 102 Ill. 25. The decree will be affirmed.
