Jones & Dommersnas Co. v. Crary

Mr. Chill Justicl Hand delivered the opinion of the court: It is first contended that the contract between appellant and appellee being in writing and under seal, it could not be changed or any of its provisions waived by parol. The law is well settled in this State that an executory contract under seal cannot be modified or changed by an agreement not under seal. If, however, a sealed contract, as modified, has been executed, the rule above announced does not apply, and the contract, as executed, will not be disturbed. Snow v. Griesheimer, 220 Ill. 106. It is next contended that Dommersnas, the president of the appellant, was without power to waive the provision of the contract with appellee that he should malee sworn reports of the business he did quarterly under said license, or to receive royalties upon said contract in advance. The general rule is, a corporation acts through its president and through him executes its contracts and agreements, and in the absence of proof to the contrary he will be presumed to have authority to represent the corporation. Mitchell v. Deeds, 49 Ill. 416; Union Mutual Life Ins. Co. v. White, 106 id. 67; Anderson Transfer Co. v. Fuller, 174 id. 221; Domestic Building Ass. v. Guadiano, 195 id. 222; Traders’ Mutual Life Ins. Co. v. Johnson, 200 id. 359. It is also contended that the evidence shows that the appellee was largely indebted to the appellant January 1, 1904. The master found, as a fact, that the appellee was not indebted to the appellant on that date. The appellant did not except to that finding of fact, and it is bound thereby and cannot have that finding reviewed in this court. Jewell v. Rock River Paper Co. 101 Ill. 57; Cheltenham Improvement Co. v. Whitehead, 128 id. 279; Ennesser v. Hudek, 169 id. 494; Marble v. Thomas, 178 id. 540. The only question open for review in this court, therefore, is, was the superior court justified in forfeiting said license on the ground that the appellee had failed to make sworn reports quarterly, in accordance with the terms of said contract ? The law does not favor forfeitures. A clear case, appealing to the principles of justice, must therefore be made out before a court of equity will enforce a forfeiture. (Voris v. Renshaw, 49 Ill. 425; Palmer v. Ford, 70 id. 369; King v. Radeke, 175 id. 72.) The- former president of the appellant had never enforced the part of the contract requiring that the reports of the appellee be sworn to, and the royalty under the contract had all been paid to January 1, 1904. We think, therefore, that the appellant should not have been permitted, under the circumstances disclosed by this record, to forfeit appellee’s license to manufacture and sell the saws mentioned in said contract at the time the bill was filed. The right to forfeit said contract upon thirty days’ notice was largely a means provided to enforce the payment of the royalty reserved under said contract, and as there could be nothing due or to report under the contract until April 1, 1904, the notice of forfeiture served on February 13, 1904, was premature. The judgment of the Appellate Court will be affirmed. Judgment affirmed.