Standard Brewery v. Kelly

Mr. Justice Waterman delivered the opinion of the Court. The charter of appellant contains the following: “ Second. The object for which it is formed is to carry on the business of manufacturing, buying and selling, both at wholesale and retail, of malted beer and fermented liquors, and all kinds of brewers’ materials and supplies, and to carry on a general malting and brewing business in all its branches.” It is contended that the guaranty of appellant upon the lease made to Mr. Stone was ultra vires. The business of appellant was to manufacture and sell, at wholesale and retail, malted beer and fermented liquors, etc. Whatever was necessarily or naturally and properly incidental to such business, appellant had power to do. To sell beer at retail, it would be necessary to have a place in which to so vend; this place appellant might purchase or rent; it might also, in consideration that a saloon keeper would sell its beer, only, provide him a place or guarantee his lease. Field v. Burr Brewing Co., 18 N. Y. S. 456; Richelieu Hotel Co. v. Mil. Enc. Co., 140 Ill. 248; B. S. Green Co. v. Blodgett, 55 Ill. App. 556; Temple St. Cable Car Co. v. Hellman, 103 Cal. 634; National Brewing Co. v. Ahlgren, 63 Ill. App. 475; Selected Corporation Cases, June 15, 1896. Appellant in the present case having received the benefit-of the contract and appellee suffered the detriment, the defense of ultra vires can not now be made by appellant. Kadish v. Garden City E. L. & B. A., 151 Ill. 531; Benefit, Ass’n v. Blue, 120 Ill. 121; Heims Brewery v. Flannery, 137 Ill. 309. Appellant insists that the guaranteed lease was canceled by the agreement made November 13, 1893. It was agreed that this should be done by the making of a new lease in place thereof. A neiv lease was drawn, signed by appellee, and submitted to appellant, whose officers refused to execute the same, saying that it was not in accordance with the agreement. Notwithstanding this refusal appellee offered to carry out the agreement for the reduction of the rent, and only refused to make the reduction because the future rent was not paid promptly as it became due. The agreement to reduce the rent, or rather to that extent to absolve appellant from its guaranty, was one that could not be made by parol, the guaranty being under seal. The terms of a sealed instrument can not be varied by parol. Pike v. Leiter, 25 Ill. App. 531-557; Leavitt v. Stern, 55 Ill. App. 416; Sauber v. Collins, 40 Ill. App. 426. A settlement for the past due rent was made November 13, 1893; but the court has found in accordance with appellee’s contention, that this settlement was to be void if the future accruing rent was not promptly paid. Appellant was bound only by its guaranty, and not by the proposed lease it refused to execute. The eleventh and thirteenth propositions of law tendered by appellant should have been held. We do not think that otherwise the record is free from error in respect to propositions of law held and refused. The finding and judgment were proper, and is sustained by the preponderance of the evidence, except as to the rent tha,t accrued subsequent to the bringing of this suit, which error, not being here urged by appellant, is waived. In the brief herein filed, it is not urged that the judgment should be set aside because of, or that there should be deducted therefrom, the rent which accrued after the beginning of this suit. The judgment of the Circuit Court is therefore affirmed.