259 Ill. 274 | Ill. | 1913
Plaintiff in error (hereafter called plaintiff) brought this action of assumpsit in the municipal court of the city of Chicago against defendant in error (hereafter referred to as defendant) for the recovery of $10,000 alleged to be due plaintiff from defendant. Plaintiff is a corporation organized under the laws of Illinois "to manufacture and sell all kinds of beer, ale and porter, to buy and sell all kinds of brewer's materials and supplies, and to carry on a general brewer's business in all its branches." Defendant is a corporation organized "to quarry stone, sand, clay, earth and gravel; to manufacture and deal in stone, brick, lime and cement, and deal also in sand, clay, earth, gravel, sewer and water pipe, stucco, lumber and building materials of all kinds, coal and ice, and to contract for, make and construct public and private improvements in which any such materials are employed, including roads and bridges." Defendant's quarries were near the village of Gary, (or Hodgkins,) in Lyons township, Cook county, about fifteen miles from the business district of the city of Chicago. The village is situated on the Atchison, Topeka and Santa Fe railroad and is about three-quarters of a mile from the quarries. In 1905 there were but few houses in the neighborhood where employees of defendant could live and the transportation facilities for conveying workmen to and from *276 the quarries were inadequate and inconvenient. Defendant employed between one hundred and two hundred workmen, and in 1905 it employed an architect and caused plans to be prepared for a building it proposed to erect for a boarding house to accommodate its employees. Before any work was done by defendant on the building, negotiations were entered into by it with plaintiff for the construction of the building by plaintiff. These negotiations resulted in an agreement being reached by which plaintiff was to erect the building, part of it to be used as a saloon. On November 5, 1905, defendant leased to plaintiff, for a term commencing January 1, 1906, and ending December 31, 1930, a tract of land described, one hundred feet wide by two hundred feet deep, upon which plaintiff agreed to erect at its own expense and maintain for the term of the lease, unless sooner terminated under the provisions thereof, "a certain building, and to use and operate the same continuously for the entire term aforesaid, as a saloon and boarding house, said building to cost the sum of $6700." Plans and drawings for the building were made part of the agreement. Plaintiff erected an L-building twenty-four feet wide by one hundred and seventy-seven feet long, and an addition twenty feet by thirty feet. The portion of the building devoted to use for boarding house purposes consisted of a kitchen, twenty-four feet by twenty-four feet; a dining room, twenty-four feet by eighty feet; forty-three double bed-rooms, and an apartment for the tenant. The part of the building devoted to saloon purposes was twenty-four feet by thirty feet. The lease contained provisions concerning its termination by defendant upon notice, and for the appointment of appraisers to value the building and make an award for the payment therefor by defendant if it elected to terminate the lease before its expiration, but those provisions are not here involved. The lease provided that "should the district within which the premises herein demised are located become a prohibition or local option district, so that on account *277 thereof it shall be necessary to suspend the saloon business on said premises within three years from the date of this contract, then no such appraisement shall be made, but said first party [defendant] shall pay to the said second party [plaintiff] the cost price of the building and improvements on said premises, such cost price not to exceed, however, the sum of $10,000." The lease authorized plaintiff to sublet the building, and after its completion plaintiff leased it at a monthly rental of $200, with a provision that if the lessee or his assigns purchased from plaintiff all beer sold on the premises, a deduction or rebate would be allowed of $120 on each month's rent. The building was conducted as a boarding house and saloon from the time of its completion. At the township election held April 7, 1908, the township of Lyons became prohibition or anti-saloon territory, and on April 9 plaintiff notified defendant, in writing, of that fact, demanded the payment of $10,000, and offered to surrender the building immediately upon payment. Defendant did not make the payment and appears to have ignored the demand. This suit was begun for the recovery of $10,000 on August 4, 1908. The declaration consisted of a special count on the contract and the common counts. Defendant pleaded the general issue and a special plea that the contract declared on in the special count wasultra vires. The cause was by agreement heard before the court without a jury. The court found the issues for the plaintiff, assessed its damages at $8490.12 and rendered judgment therefor. Defendant prosecuted an appeal to the Appellate Court for the First District, and that court reversed the judgment of the municipal court. The Appellate Court was of opinion the contract was ultra vires the plaintiff corporation; that there could be no recovery upon the common counts, under the evidence, upon an implied contract, and the cause was therefore not remanded. A writ of certiorari was granted by this court. *278
The view of the municipal court, as indicated by propositions of law held and refused, was that the contract was ultra vires but that plaintiff was entitled to recover the reasonable value of the building under an implied contract. While plaintiff insists it is entitled to recover upon an implied contract if the written contract is ultra vires, it contends that said written contract was not ultra vires, and this appears to have been the principal theory upon which the case was tried in the municipal court. We agree with the municipal and Appellate Courts that it was beyond the power of plaintiff to make the contract and that the contract is void.
Plaintiff relies upon the rule announced in a number of cases that it is within the power of a corporation to adopt any proper and convenient means tending directly to accomplish the purposes for which it was organized, not amounting to the transaction of a separate, unauthorized business. Among other similar cases, reliance is placed upon Heims Brewing Co. v. Flannery,
We do not think the above cases, and others relied upon, sustain plaintiff's contention. It is probably true that the boarding house would be of benefit to the saloon because of increased patronage at the bar, but because a corporation like plaintiff might do some things under its implied powers to promote its business, it does not follow that it may engage in any line of business or occupation not authorized by its charter powers because such business or occupation would promote the business for which the corporation was organized. It would be rather a far stretch of corporate powers to say that a corporation organized to manufacture and sell beer, ale and porter and carry on a general brewer's business in all its branches, could establish and operate boarding houses for the purpose of increasing the sale of its beer. This court said inFritze v. Equitable Building and Loan Society,
In National Home Building Ass'n v. Home Savings Bank,
In Leigh v. American Brake-Beam Co.
Under the rule above announced, which is well supported by authority, we are of opinion the plaintiff was entitled to recover under the common counts the reasonable worth of the building. Pullman Palace Car Co. v. Central TransportationCo.
The contract was not immoral nor contrary to public policy because it might be determined by the result of an election. At the time it was made there was no law authorizing a township to vote upon the question of becoming anti-saloon territory, and no election was held upon that question for two and a half years after the contract was entered into. It was not, therefore, made in view of a pending election, but was merely a precautionary provision for the protection of plaintiff in the event of its being made *283 unlawful, within three years, in Lyons township, to sell intoxicating liquors.
It is also insisted by defendant that there can be no recovery because it is not in possession of the building, or was not at the time of the trial, but that the tenant of plaintiff continued in possession thereof. When plaintiff elected to determine the lease because the township had become anti-saloon territory and demanded payment of $10,000 it tendered defendant the building upon the payment of the money. Defendant neither paid nor took possession of the building, and at the time of the trial it was still occupied by the tenant to whom plaintiff had rented it. He testified he had never paid plaintiff any rent after its notice to and demand upon defendant but that he was instructed by plaintiff to deposit the rent money in the bank at LaGrange. We do not think defendant could defeat its liability to plaintiff by refusing to take possession of the building. So far as this record shows, defendant was receiving, all the time since April, 1908, the benefits for which it leased the ground to plaintiff and upon which the building was erected.
On the trial of the case in the municipal court no proof was offered of the reasonable value of the building. Plaintiff insisted upon its right to recover the cost price of the building, not to exceed the sum of $10,000, and only offered proof as to the cost of the improvement. The trial court disallowed the cost of constructing out-buildings, amounting to $1025, the cost of a hot-air pump, and some other items, reducing the amount of the judgment as rendered to $8490.12. The items disallowed by the court were disallowed for the reason that the court was of opinion they were not contemplated by the parties when the lease was made. The judgment, as we understand it, is for the cost of what the court understood to be the building proper, and was not for its reasonable value at the time of the *284 termination of the contract. The cost and the reasonable value are not necessarily the same. There was no basis in the proof for a judgment for the reasonable value of the improvement, and the court erred in rendering judgment for the amount the improvement cost.
We think the Appellate Court properly reversed the judgment, but in our opinion the case should have been remanded to the municipal court for another trial. The judgments of the Appellate and municipal courts are reversed and the cause remanded to the municipal court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
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