Holmes v. Standard Oil Co. of Indiana , 183 Ill. 70 ( 1899 )

Mr. Justice Boggs

delivered the opiniqn of the court:

Whether the appellee company had failed to comply with the requirements of the act relating to foreign corporations, approved May 26, 1897, (Hurd’s Stat. 1897, chap. 32, pars. 67, b, c, d, e,) and for that reason was without standing to maintain an action in the courts of this State, was not raised at the hearing. It does not appear any-ruling was sought or obtained in the trial court as to the question. There is therefore nothing upon which to base an assignment of error in that regard in a court of review.

In Hageman v. Holmes, 179 Ill. 275, we construed a bond given by the same obligors to a purchaser of other premises similarly affected by the opening and extension of the same avenue, to create liability on the part of the obligors to pay only such assessments as should be levied and confirmed in the special assessment proceeding- which was pending when the bond was executed, and that as that proceeding was abandoned and no assessment made in the course thereof, no recovery could be had on the bond. It is urged the bond on which the present claim is based should have the like construction. The conditions of the two bonds are essentially different. That of the bond here under consideration is to pay “all the assessments, liens, judgments and demands, of every kind and nature, that may at any time be levied or come against said premises so as aforesaid purchased by said Alfred D. Eddy, by reason of the opening of said proposed street.” The liability of the obligors is plainly and clearly expressed. It is not restricted to such assessments as should be levied under the proceeding which was then pending, but is expressly extended to any assessment which might at any time be levied against the premises to defray the cost of opening the avenue. There is no reason the obligation should not be given effect according to the clear and unambiguous meaning of the words the parties chose to employ in framing it. We need not repeat the language of the condition of the bond in the case of Hageman v. Holmes, supra. It contained no express undertaking to pay any assessment other than that to be levied in the proceeding to open and extend the avenue, which was then pending.

Conceding, without deciding, the appellant’s testatrix should be regarded as a surety, the general rule the liability of a surety on a penal bond cannot be extended beyond the amount specified as the penalty of the bond was not infringed in this instance by the rendition of judgment in an amount, by way of interest, in excess of the penalty of the bond. The bond was executed by appellant’s intestate and her husband as joint principals. It created liability on the part of the makers thereof, and each of them, to pay the assessments levied on the premises belonging to the appellee company. Though having notice thereof they failed to make such payment, and the assessment ripened into a lien on the premises. The appellee company, in order to avoid the sale of its property, paid the assessment, as it was fully authorized to do. The amount so paid largely exceeded the penalty of the bond. The Appellate Court restricted her liability to the sum named as the penalty of the bond. The liability to pay that amount accrued against her on the 22d day of November, 1895, — the date of the pay- . ment by the appellee company of the amount of the assessment. Section 2 of chapter 74, entitled “Interest,” (Hurd’s Stat. 1897, p. 973,) provides that creditors shall be allowed to receive interest at the rate of five per centum per annum for all moneys after they become due, on any bond, etc. The Appellate Court, in recognition of the general rule as to the extent of the liability on a penal bond, held the appellee company could not recover the full amount it had paid to remove the lien of the assessment, for the reason the amount paid exceeded the. penalty of the bond. The rule cannot be further invoked to relieve against the payment of interest awarded by the statute as compensation for de.lay in making payment of the amount so reduced under the operation of. the rule. (1 Brandt on Suretyship and Guaranty, secs. 112, 113.)

The judgment of the Appellate Court is affirmed.

Judgment affirmed.