Independent Brewing Ass'n v. Powers

Mr. Justice Adams delivered the opinion of the court. This is an appeal from an order overruling a motion to set aside a judgment by confession for rent due by the terms of a lease. The lease contained a power of attorney to confess judgment. The signatures to the lease were as follows: “ James Gf. Powers. [Seal.] “ Independent Brewing Assn. [Seal.] “ J. Henry Zitt, Sec’y.” Appellant’s counsel, in their argument, say: “ The appeal in this case presents but one question, and that is, whether an officer of a corporation has power to execute a warrant to confess judgment against such corporation, without warrant given him by the board of directors so to do.” The lease was of date December 23, 1892, and the term created by it ivas from January 1,1893, until April 30,1898. That appellee was the proper person to sue on the lease is not questioned. Appellant, in support of its motion to vacate the judgment, read the affidavits of Leo Ernst, Fred W. Boldenweck and Paul Frickow. Ernst deposed that several months after he became appellant’s president, he learned of the lease, and ascertaining that its execution had not been authorized by appellant, he caused the rent, up to and including February, 1897, to be paid and the keys to be surrendered to John Powers, and notified him that appellant would not pay any more rent; that appellant’s president has no authority to execute any contract unless thereto authorized by the board of directors; that the execution of the lease by Zitt has never been ratified by the board of directors; that appellant vacated the leased premises February 28,1897, on the ground of non-liability, and that appellant has a good and valid defense. Boldenweck deposed that he had been appellant’s secretary since September 12, 1896; that he had carefully examined the minute book of the meetings of the board of directors from January 1, 1892, to and including the last meeting, February 10, 1898, and that there was no entry of any authority to the president or secretary of appellant to rent the premises described in the lease, or to execute the ■lease, or any warrant of attorney to confess judgment. Frickow deposed, in substance, that one Frazier was a tenant in possession of the premises for about two months prior to February 1, 1897, and was compelled to vacate and did vacate the same prior to February 16, 1897, on . account of the roof being leaky and the bursting of water pipes, etc. Appellee read the counter-affidavit of James Gr. Powers, the appellee, in opposition to the motion, who deposed, in substance, that subsequent to the execution of the lease, and in the second week of February, 1893, he was in need of money, and went to Zitt, then appellant’s secretary, and proposed to him that if appellant would pay one year’s rent in advance, he, Powers, would allow a discount; that Zitt informed him that he, Zitt, could not pass on the proposition, but would submit it to the board of directors; that February 12,1893, he went to appellant’s office and there met Zitt and Lange, who was then appellant’s president,. and that Zitt told him, in Lange’s presence, that payment of one year’s rent had been allowed by the board of directors, and thereupon the appellant’s treasurer gave affiant a check for one year's rent, less the discount allowed by affiant. These affidavits conclusively show that from January 1, 1893, to and including February 28,1897, four years and one month,the appellant was in the possession and enjoyment of the premises, and the uncontradicted affidavit of Powers shows that appellant’s board of directors authorized and appellant paid a year’s rent of the premises, in advance, after the execution of the lease. It is not stated positively, in any of the affidavits in support of the motion, that the board of directors did not authorize the execution of the- lease, including the warrant of attorney to confess judgment, but merely that the minutes of the meetings of the board do not so show. The affidavits in support of the motion must be construed most strongly against appellant. Chi. Fire Proof Co. v. Park Nat. Bank, 145 Ill. 481. But whether there was prior authority to Zitt to execute the lease, is not important in view of the facts showing rati-fication, which is equivalent, in law, to prior authority. Martin v. Judd, 60 Ill. 78. A ratification may be implied from appellant’s acts in the premises. The Louisville, N. A. & C. Ry. Co. v. Carson, 151 Ill. 444; Nat. Brewing Co. v. Ahlgren, 63 Ill. App. 475; Greer v. Sellers, 64 Ill. App. 505. No facts are alleged in the affidavits showing a meritorious defense, nor does any equitable reason appear for setting aside the judgment. Crossman v. Wohlleben, 90 Ill. 542; Packer v. Roberts, 140 Ill. 9. The lease recites that the lessee received the premises in good condition; it contains no covenant by the landlord to repair and he was not bound to repair. The order overruling the motion to set aside the judgment will be affirmed.