Merchants Building Improvement Co. v. Chicago Exchange Building Co.

Mr. Justice Ricks delivered the opinion of the court: At the close of plaintiff’s evidence, and at the close of all the evidence, the defendant (plaintiff in error) asked a peremptory instruction to find for the defendant, and the first question presented is whether there is evidence tending to support the material allegations in plaintiff’s declaration. Plaintiff in error contends that the peremptory instruction should have been given upon numerous grounds, which will be examined in the order they are presented. It is said the subscription agreement was limited and restricted by the receipt given by Clarence I. Peck at the time of the delivery of the subscription to him; that both constituted contemporaneous writings forming part of the same contract, are to be read together, and that the receipt agreement, which plaintiff in error terms “the subscription condition,” was not complied with. We think some confusion has arisen by the use of the term “Peck estate,” so frequently mentioned and forcefully dwelt upon by plaintiff in error and often used by the witnesses in testifying in this case. It appears that long prior to any of the agreements involved in this suit P. F. W. Peck died owning a large estate, which passed to his four sons, Walter L., Clarence I., Ferdinand W. and Harold S. Peck; 'that they took the property as tenants in common and that it remained undivided; that after the death of the father the son Harold S. died, leaving his widow, Anna, who was his sole devisee and executrix of his will, and that at the time of the inception of the matters out of which this suit arises, the three sons, and Anna, the daughter-in-law, widow of Harold S., were the owners of the property termed the “Peck estate.” It also appears that the sons, who operated and managed their property interests largely together, had an office in the Auditorium building, and that Anna Peck, the one-fourth owner of the property one hundred feet square at the corner of Washington and LaSalle streets, had her separate office on Madison street, and that Charles H. Gould was her representative; that as relates to this case, the Peck estate means the tenants in common of the last named tract. Aside from the lands held 'in common by the four persons above named, there seem to have been matters properly pertaining to the estate of P. F. W. Peck which were transacted by the Peck brothers at the Auditorium. The Peck brothers were active in obtaining the subscription from plaintiff in error and from other persons. There is no evidence tending to show that Ferdinand W., Walter L. or Anna Peck, or the defendant in error, had any knowledge of the receipt agreement, or “subscription condition,” as it is termed, until after the erection of the defendant in error’s' building and its occupancy by the Chicago Stock Exchange, other than what would be imputed to them or it or implied from the knowledge of Clarence I. Peck, who executed said subscription condition, purporting to act as the attorney for the Peck estate and who became the president of defendant in error at its organization. There is no evidence in the record tending to show that the Peck estate, as such, was authorized, by will or other form of trust, to engage in undertakings such as are here involved, or that Clarence I. Peck was its attorney or authorized in any manner to bind it. The subscription was not to the Peck estate, but was to any person or corporation that could give satisfactory evidence of ownership of the premises where the Chicago Stock Exchange,—not the Stock Exchange building,—should be located. The subscription receipt or subscription condition was not delivered or put in circulation with and as a part of th$ subscription, and was not to be delivered with and as a part of the subscription, but purports on its face to be a private agreement made between the plaintiff in error and the Peck estate, through Clarence I. Peck, under the designation of its attorney, and held by plaintiff in error, and if binding at all it would be upon the Peck estate. The subscription is not of that class of agreements that requires a particular or formal delivery. It is not necessary that the acceptor, or person who performs the act or does the thing for or toward which the subscription is to go, shall be in esse at the time the subscription, is made. (Cross v. Pinckneyville Mill Co. 17 Ill. 54; Johnston v. Ewing Female University, 35 id. 518; Richelieu Hotel Co. v. Military Encampment Co. 140 id. 248.) By placing it in the hands of Clarence I. Peck, the plaintiff in error made him its agent to deliver or communicate it to the world, or to any person or corporation that would comply with it. It made or contained on its face no reference i;o any condition or requirement other than those expressed therein. When the defendant in error corporation was organized this subscription paper was turned over to it, and it had no knowledge of the supposed subscription condition until the building was completed, occupied by the Chicago Stock Exchange, and a demand made upon plaintiff in error for one of the installments of subscription. The contention that the subscription was a contract between the Peck estate and plaintiff in error cannot be admitted. Plaintiff in error assumes this false premise, and then argues that the contract being to the Peck estate, defendant in error took it cum onere. The contract was between plaintiff in error and defendant in error if defendant in error performed according to the terms of the subscription, and the performance was the acceptance, and the only acceptance by it, that was necessary. When apprised of the subscription, if defendant in error performed it the minds of the parties did meet as a matter of law. These subscription contracts are favored in law, and are calculated to foster and encourage public and quasi public enterprises, and have, as to the matter of delivery, acceptance and performance, been looked upon and construed upon the same principle as rewards for the arrest of criminals, and other similar matters made by proclamation or by newspaper advertisement, and performance is the only notice of acceptance required. Actual notice to defendant in error of the supposed condition was a question of fact, with which we are not to deal. We are not disposed to hold, as a matter of law, that the knowledge that Clarence I. Peck, purporting to act for the Peck estate in a matter that did not pertain to that estate, had agreed to a condition that, as to the Peck estate, would affect the subscription in question, before defendant in error had any existence, and, so far as is shown by the evidence, was not at the time in contemplation, was such notice to the defendant in error, at its incorporation and entering upon the performance of the subscription contract, as bound it by the condition. The subscription paper does not state that it was to be performed by or ran to the Peck estate, or was relative to lands that could be denominated as of the Peck estate, but shows on its face that it was for a building upon land nearly half of which was other than that of the Peck estate, and was to the owner of the premises in which the Chicago Stock Exchange should be quartered. The particular respects in which plaintiff in error claims that defendant in error has not complied with the alleged subscription condition are, that defendant in error did not make a binding lease with the Chicago Stock Exchange requiring that the latter should occupy the Stock Exchange building for fifteen years, and did not notify plaintiff in error thereof before May 1', 1893. The evidence shows that on January 16, 1893, the three Peck brothers and Anna Peck made a contract, in writing, with the board of managers of the Chicago Stock Exchange, by which the former agreed to organize a corporation to take leases of the ground and erect a modern fire-proof office building on the site where the building was actually built, and attached to the agreement a plan of the building showing the particular space-.to be occupied by the said stock exchange, being more than six thousand square feet of floor space, and said stock exchange agreed that when said corporation was organized and could transact business, a lease should be executed, setting out the terms and conditions, for a term of fifteen. years from May 1, 1894; that the corporation was organized April 27, 1893, and a formal lease between defendant in error and said stock exchange was duly executed on May 1, 1893, providing that said stock exchange should occupy said building for the term of fifteen years from May 1, 1894; that the building was completed and the stock exchange began to occupy the space allotted to it May 1, 1894, and has ever since so occupied the same; that plaintiff in error’s secretary, Mr. Heckman, who signed the subscription, between December, 1892, and May 1, 1893, was active in co-operating with the Peck brothers in soliciting" and getting other subscriptions to the same enterprise and was fully conversant with the progress and steps of the plan, and the evidence tends to show that plaintiff in error, through both its president and secretary, had notice and knowledge of all the matters that it could have had by formal notice, and if the subscription condition were a part of the contract we could not, as a matter of law, say defendant in error failed in that regard. We are unable to adopt the view that either the subscription agreement or subscription condition required the defendant in error to make a lease with the Chicago Stock Exchange that should be binding for fifteen years. The subscription is, that plaintiff in error will pay, annually, the sum set opposite its name for and during the term the Chicago Stock Exchange shall actually occupy the entire six thousand feet on the first or second floor, or both, of said proposed building, said occupation to be continuous and free of rent and said payment not to continue beyond the period of fifteen years. The fifteen years specified in the subscription is a limitation as to time of plaintiff, in error’s liability, but is not a requirement to be performed by obtaining a lease for fifteen years. The payments were to- be quarterly, and whenever the stock exchange ceased to occupy the building and space plaintiff in error’s liability to pay ceased, and if the stock exchange continued to occupy over fifteen years plaintiff in error’s liability ceased at the end of fifteen years. If the subscription were upon the terms claimed, we regard the lease made by the Chicago Stock Exchange as binding upon it for the period named in the lease; and though the lease provides for an annual rental of one dollar, the evidence shows that defendant in error refused to receive any rent when tendered, and that the stock exchange has all of said time occupied the building free of rent. We do not regard the provision for the payment of one dollar per annum as a violation of the terms of the subscription, where the evidence tends to show the rental value of the space occupied to be $30,000 per annum. Defendant in error was entitled to have a lease requiring the stock exchange to preserve the property and observe the rules of a paying tenant, although rent should not be exacted. It is said defendant in error failed to prove performance of the proviso to the subscription, which is: “Provided'one of the main entrances to said stock exchange room shall be from Washington street.” By the subscription the stock exchange might be located on the “first or second floor, or both.” It was located on the second floor. • There was an entrance from Washington^ street, easy of access and leading through spacious balls to the stairways to the stock exchange room; also one from LaSalle street. Whether the entrance from Washington street was such a main entrance as was required by the subscription was a question of fact, and not of law, and the trial court, under proper instructions, found against the contention of the plaintiff in error as to it, and the Appellate Court affirmed the finding. Plaintiff in error insists that defendant in error, having but a leasehold interest in the land on which defendant in error’s building is situated, is not an owner of the premises and does not come within the language of the subscription, and therefore is not-entitled to perform the conditions of the subscription and insist upon payment by plaintiff in error. The language of the subscription is, “to be paid in equal quarter-yearly installments to the owner or owners of the premises where said stock exchange shall be located.” Plaintiff in error seems to ignore the language of the contract, and proceeds with its argument upon the theory that the contract is such that the defendant in error should be the owner of the premises upon which the building is located. Such is not the language, but it is, that the defendant in error shall be the owner of “the premises where said stock exchange shall be located.” The stock exchange is located in the building owned by defendant in error, and the only question of law presented is whether the term “premises” applies only to land, or whether it may be properly held to apply to the building occupied by the stock exchange and covered by its lease. By the lease defendant in error demises to the stock exchange “the premises situated in the city of Chicago, county of Cook, as follows: That certain space on the main floor, being the first above the street floor and on the second floor of the building to be erected by the said party of the first part on the southwest corner of LaSalle and Washington streets, in the city of Chicago, and which space, being about seventy feet by one hundred and one feet, including walls, as indicated upon the plans hereto attached and made a part hereof, as space for the Chicago Stock Exchange, and so marked, said space to include a gallery for spectators, and partitions, as shown on said plans, dividing said space so as to provide room or rooms therein for the secretary, and for other purposes in connection with the business of the said party of the second part.” Under this lease and under the subscription agreement it was not necessary that defendant in error should be the owner of the lot upon which the building was located, but it is sufficient that it was the owner of the building and the space occupied by the Chicago Stock Exchange. The term “premises” may or may not include land, but may be held to mean only the right, title or interest conveyed, and its exact meaning, when found in contracts and conveyances, must be determined according to the intention of the parties as ascertained from the contract and the facts and circumstances attending its making. (22 Am. &Eng. Ency. of Law,—2d ed.-—1175, and authorities cited in note 2, p. 1176; Holbrook v. Debo, 99 Ill. 372.) Defendant in error was the owner and in control of the building and the space leased to the Chicago Stock Exchange, and for all practical purposes, as related to tenants and occupancy, was the owner of the premises. We deem it unnecessary to enter into a discussion of the contention that the subscription contract and its performance were ultra vires the charters of plaintiff in error and defendant in error. Defendant in error was organized “to render aid in the formation and maintenance of organizations in the city of Chicago for the transaction of public business in public exchanges,” and plaintiff in error was by its charter authorized to improve, re-construct, etc., the office building where it was conducting business, for its own exclusive benefit, “and to do all things incident to the conducting of such business.” We' think that the matters here involved were within the charter powers of the parties. Richelieu Hotel Co. v. Military Encampment Co. supra; Central Lumber Co. v. Kelter, 201 Ill. 507. Complaint is made of the admission of evidence and the giving and refusing of instructions, but as the case was tried, the evidence taken and the jury instructed upon the theory of the case which accords with the views of this court as expressed in this opinion, we deem it unnecessary to extend this opinion by a discussion of the several matters. Prom our view of the record there is no such error as calls for a reversal, and the judgment of the Appellate Court is affirmed. Judgment affirmed.