Cole v. Joliet Opera House Co. , 79 Ill. 96 ( 1875 )

Mr. Justice Walker

delivered the opinion of the Court:

At the June term, 1874, appellee brought an action in the Will circuit court against appellant, to recover the balance of a subscription for capital stock in the Joliet Opera House Company. The declaration contained two special counts, to which defendant filed the plea of the general issue, and a plea that the signature of defendant was obtained to the subscription by fraud and circumvention. To the latter of these pleas plaintiff demurred, and the court sustained the demurrer, whereupon a trial was had by the court and a jury, under the general issue, resulting in a verdict in favor of plaintiff for §1477. Defendant entered a motion for a new trial, which was overruled by the court, and judgment was entered on the verdict; and defendant brings the record to this court on appeal, and assigns error.

It is first objected, that the court erred in sustaining the demurrer to the plea of fraud. It avers "that the said Opera House Company fraudulently obtained the signature of the defendant to the subscription for stock ip said company by fraudulent representations, and that said company got fraudulent possession of said subscription of the said defendant, and that said company knowingly committed such fraudulent acts.” The ground of demurrer urged against the plea is, that it fails to aver what false and fraudulent representations were made, or in what the fraud and circumvention consisted. It has been held that in a court of law, fraud may be given in evidence to avoid a deed, under the plea of non estfactum; but it must be a fraud that relates to the giving of the instrument, as, if it was misread to the maker, or his signature was obtained to an instrument he did not intend to sign. Taylor v. King, 6 Munf. 358; Dorr v. Munsell, 13 Johns. R. 430; Franchot v. Leach, 5 Cow. 506.

The statute has likewise permitted the maker of a note to plead that it was obtained by fraud or circumvention, whether in the hands of the payee or an assignee, but the manner in which the plea is to be framed is left to be determined by the common law rules of pleading.

In Hopkins v. Woodward, 75 Ill. 62, a general plea of fraud of this character was held to be bad on general demurrer, because it failed to aver the facts constituting the fraud. It, then, follows that this plea w'as bad, and the court below committed no error in sustaining the demurrer.

It is next urged, that the evidence fails to show a cause of action when the suit was brought. The subscription contained a clause, that persons subscribing for stock should pay $100 for each share taken, in installments of not more than 20 per cent, as the work progressed, and within twenty days after call by properly authorized agents, for the purpose of erecting the opera house. The calls were all properly made, and required to be paid within twenty days from the date of each of the several calls.

It is urged that the proof fails to show that notice was given to appellant twenty days after each call was made, and the same time before suit was brought, and hence there is nothing to show that appellee was entitled to sue when it did. All parties seem to concede that appellant was not bound to pay until he had twenty days’ notice that the several calls had been made, and appellee, in pursuance to this requirement, proved by the secretary of the company that he gave notice to appellant. He testified that “ notice of the several calls was sent to defendant in every case; the notices were sent to him in every case; the secretary issued the notices of the calls of installments.” This is all the evidence we find in reference to giving notice of the several calls; and what the witness says does not, in the slightest degree, indicate when, or for what length of time, the notices were given. For aught that appears, the secretary may have sent appellant a notice of each call less than twenty days before the suit was brought. Even if he had sent the notices but the day previous, his testimony would be literally true; and appellant, being entitled by his contract to twenty days’ notice before he could be called upon for payment, appellee should have proved that'the notice had been given for at least that length of time. From the testimony, even if it can be inferred that appellant received the notices, the language of the witness would have to be tortured beyond its meaning to hold that he stated that appellant had received twenty days’ notice before the suit was brought. It will bear no such construction, nor can any such inference be reasonably drawn from the language.

For the want of the necessary proof of notice in time, the court below should have granted a new trial, and for that error the judgment must be reversed and the cause remanded.

Judgment reversed.