Kinsley v. International Military Encampment Co. ( 1891 )

Gaby, J.

We deem it unnecessary to go through the instructions given and refused in- this case, but on the undisputed facts will affirm the judgment.

The appellees were incorporated in April, 1887. About the same time, but whether in fact before or after the incorporation was completed, we deem unimportant (Hudson v. Green Hill Seminary, 113 Ill. 618), a subscription 'paper was circulated by representatives of the company, and signed as follows:

“Whereas, in pursuance of the wishes of a large number of the prominent citizens of Chicago, an association (of which Ex-Gov. John L. Beveridge is president) has been formed for the purpose of inaugurating and carrying out an International Military Encampment, on a large scale, in ornear Chicago, in September or October, 1887, which is the semi-centennial year of the city; and

“Whereas, the successful carrying out of the said encampment and celebration is expected to be of great benefit to the city and its business, and can only be properly and creditably accomplished by the expenditure of large sums of money.

■“How, therefore, we, the undersigned, do hereby subscribe the sums set opposite our respective names, and agree to pay the same to the treasurer of the c International Military Encampment Company, of Chicago, Illinois,’ upon the call of the directors of the said company, the sums so subscribed and paid to be used at the discretion of the said directors in carrying out the said encampment and celebration, and in the event of the amount of money so subscribed, being deemed by the directors to be insufficient for carrying out said encampment in all its details, the subscriptions hereto made shall not be binding upon the subscribers.”

NAMES.

AMOUNTS.

Palmer House (two thousand)..........

§2,000 00

The Richelieu Hotel Co., H. V. Bemis, President ...........................

1,000 00

McCoy’s Hotel, William McCoy........

500 00

Leland Hotel, Warren F. Lei and........

1,000 00

Briggs House, Frank Murran..........

3,000 00

Commercial Hotel, C. W. Dabb & Co....

500 00

Drake, Parker & Co...................

1,500 00

H. M. Kinsley........................

500 00

Thompson's Restaurant, A. Cummings....

500 00

Willoughby, Hill & Co................

500 00

Charles Kern........................

300 00

H. H. Kohlsaat......................

500 00

Rector’s Oyster House.................

150 00

W m. Werner & Co....................

200 00

E. B. Smith...........................

200 00

Lansing & Siclder.....................

200 00

Race Bros.............................

150 00

A. Booth & Son......................

100 00

Sturckow & Kedish (Vienna Bakery)....

100 00

A. B. Young, Anna House..............

50 00

E. A. Baclielder, Southern Hotel........

200 00

J. W. Boardman & Co., Hotel Woodruff

200 00

Albaugli House, Albaugh & Carr........

$150 00

Hotel Brevoort, Field & Hubbard.......

200 00

J. M. Haslett & Co., Deming Hotel......

100 00

C. Pirrung, Massasoit Hotel............

100 00

Baggio Bros., St. Charles Hotel.........

100 00

E. Pliilbrick & Son, Clarendon House...

100 00

RESTAURANTS.

Batchelder’sBestaurant................

150 00

HOTELS.

Gault House, Boders & Welch...........

200 00

City Hotel, W. F. Orcutt..............

100 00

Columbus Hotel, S. S. Buckley..........

100 00

Washington Hotel, M. J. Henderson (if there)..............................

100 00

Farwell House, E. S. Piniiey.............

100 00

Hotel Boyal, B. E. Gallup...............

100 00

Mrs. M. J. Spiking (pay in Sept.)........

100 00

D. A. Darley..........................

100 00

Thos. A. Dean (conditionally on being in business)...........................

100 00

Thos. S. Brown, pay in July and August

100 00

H. D. Laughlin, Laughlin’s European Hotel

100 00

Garden City, George E. Macschane......

100 00

RESTAURANTS.

Brockway & Milan.....................

150 00

J. D. Fanning, Bevere'House...........

100 00

W. J. Kuhns & Son....................

100 00

The company expended large sums of money, and incurred liabilities yet unpaid, in the enterprise. The total expenses, including prize's offered, exceeded the capital stock, subscriptions and gate receipts. There is some evidence of representations by the person procuring the appellant’s subscription as to what would be done, but no bad faith nor misrepresentation of existing facts is charged.

In the nature of things such an enterprise is based upon sanguine expectations of pleasing results.

He paid $200, refused to pay the residue of his subscription, and they sued him in assumpsit, and recovered.

On the trial, the appellant objected to the subscription paper, on the ground of variance, the signatures of all the other subscribers being unnoticed in the declaration. The court overruled the objection and the appellant excepted. The paper was then read, and the appellees took leave to amend by adding the names, but it does not appear that they ever did it, nor was it necessary. 1 Greenl, on Ev., Sec. 67.

More was proved than alleged, which is no variance, if it does not contradict what is alleged.

When the appellees rested their case, the appellant asked the court to instruct the jury to find for him, and now argues that there is nothing to show that the 500 he subscribed was dollars. It does not appear that he thought of that in the court below; in fact the record say “it is admitted that there is a credit of $200 upon the subscription of $500.”

Perhaps, however, that is to be understood as admitted only by the appellees. As the appellant went into evidence afterward, his exception to the refusal of that instruction is waived. Joliet, etc., Ry. v. Velie, 26 N. E. R. 1086.

nevertheless the question is in the case, in another way, and must be considered.

Referring to the subscription paper, it is seen that the preamble speaks of “ the expenditure of large sums of money,” and therefore the subscribers “ subscribe the sums set opposite ” their names, and another place speaks of “ the amount of money subscribed,” and the column of figures is headed “amounts.” It is clear that by the judicial, as well as business, mind, those amounts should be considered money. In the United States of America, the dollar is the unit of money; cents are the hundredths of that unit; and sums of money are expressed in dollars and cents only, pointed off as here, to separate the whole numbers from the hundredths. Hunt v. Smith, 9 Kans. 137.

Contracts of parties are to be enforced as they intended them, and no one can doubt what the intention was, and that the parties subscribing meant dollars. The serious difficulty in the case, which has always troubled courts in like cases, is to find, consistently with rules of law, a consideration to support the promise of the appellant.

It is probable that the nations did not encamp to the extent hoped for, and that the hungry hordes he expected to feed did not come, so that he has not realized the benefit he promised himself, and it is hard to pay for a dead horse; but the authorities are that the consideration which supports the promise is, as in this case, expenditure by the promisee on the faith of the subscription. Hudson v. Green Hill Seminary, 113 Ill. 618.

The contingency “of the amount of money so subscribed being deemed insufficient,” is a condition subsequent, and of it there is no evidence.

Judgment affirmed.