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been held that the term "owner," in similar statutes, does not mean the owner of the fee, but may mean the lessee in actual possession and control of the building; but we are not aware that any court has held sueh laws invalid because of their failure to definitely designate who should be liable. We think it clear that under this statute the owner is primarily liable for a failure to perform the duty.
Several of the counts in this declaration aver that the defendants, upon and for a long time prior to March 16, 1898, were owners of a certain seven-story brick building, etc.; that said building was used for manufacturing purposes; that by reason of the statute approved May 27, 1897, in force July 1, 1897, it became their duty to provide such building with such fire-escapes, the number, location, material and construction of such escapes to be subject to the approval of the inspector of factories, but that the defendants have never filed in the office of said inspector of factories a written application for a permit to erect or construct such fire-escapes; that by reason of the statute it became their duty to apply for such permit, and that they failed and neglected to comply with the requirements of the statute in providing fire-escapes. The demurrer, of course, admits these allegations to be true, and we are of the opinion that such counts, under the provisions of the statute, sufficiently fix the liability upon defendants.
A considerable portion of the argument is devoted to the discussion of the question whether or not the statute should receive a strict construction. We think it is well settled that at common law there was no liability imposed upon the owner of a building to provide the same with fire-escapes or other means of exit in case of fire, as a general rule, and that for this reason, as well as because of the penal character of the act, it must be strictly construed, -that is, that it cannot be extended to persons or to requirements not fairly within the provisions of the act. The rule in such case is, that courts cannot properly
give force to statutes beyond what is expressed by its words or is necessarily implied from what is expressed. Our construction of this act in no way violates that rule.
The judgment of the superior court will be reversed, and the cause will be remanded to that court for further proceedings not inconsistent with the views here expressed.
Reversed and remanded.
JOHN W. DOANE
Opinion filed October 24, 1901— Rehearing denied December 4, 1901.
INJUNCTION—when bill to enjoin suit on appeal bond cannot be maintained. The holder of notes given to him in payment for his stock in a corporation, to secure which the stock was accepted by him as collateral security under an agreement that the purchaser should procure a personal loan and pay the existing debts of the corporation, which agreement was known and consented to by the lender, cannot maintain a bill to enjoin the lender from prosecuting a suit on an appeal bond, voluntarily signed by complainant on appeal from a judgment by confession entered on a note which the lender procured to be executed in the name of the corporation for the amount due on the loan, where the bill does not allege that the purchaser of the stock is insolvent or that he is unable or unwilling to pay the notes held by complainant.
Doane v. Fuller, 88 Ill. App. 515, affirmed.
APPEAL from the Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. S. TUTHILL, Judge, presiding.
This was a bill in chancery exhibited in the circuit court of Cook county, but which was held obnoxious to a demurrer and dismissed. The Branch Appellate Court for the First District affirmed the decree dismissing the bill, and a further appeal has brought the record into this court.
The only question arising is whether it was correctly ruled the bill was obnoxious to demurrer.
In substance the bill alleged that on the 13th day of June, 1894, the appellant (complainant in the bill) was the owner of 148 shares of the capital stock of the Anderson Transfer Company; that the capital stock of the company consisted of 150 shares of the par value of $100 each, of which appellant owned all but two shares; that said company then had assets of the value of $35,000 and was substantially free of debt, except an indebtedness of $6200 due to appellant's firm, and had $1200 cash in its treasury; that on said date appellant and one Frank S. Rolfe entered into a contract, whereby the appellant agreed to sell and said Rolfe agreed to buy the said 148 shares of said stock at $28,584.93; that said sum was to be paid in eleven semi-annual payments of $2598.63 each, evidenced by notes of Rolfe and to be secured by the pledge of the stock as collateral, on the express condition that Rolfe should raise $5000 and appropriate it toward the payment of the debts of the company, which sum, together with the $1200 in the treasury of the company, would discharge the indebtedness of the company and leave the same free from debt; that the appellee, Fuller, was fully advised of all the terms of the contract and expressly agreed to and with the appellant to loan Rolfe $5000 as a personal loan to Rolfe, to be used by Rolfe, as Fuller well knew and expressly agreed should be done, in the payment of the debts of the transfer company, in order that the assets of the company should be free from liability for such debts, so that appellant could accept the stock as collateral security; that appellee, Fuller, furnished the $5000 to Rolfe as a personal loan to Rolfe, and that that sum and the sum of $1200 was applied to the payment of the debts of the company and the same discharged, and that appellant sold his stock to Rolfe, taking Rolfe's notes therefor, holding the stock as collateral security for the notes; that on the 13th day
of June, 1896, for the purpose of attempting to bind the transfer company to pay the indebtedness of Rolfe to Fuller, and for the further purpose of defrauding appellant, said Rolfe and the appellee procured a note of the said transfer company, signed by Rolfe, as its president and treasurer, to be executed to the appellee, purporting to bind the company to pay the appellee $5600 thirty days after date, and which contained a power of attorney authorizing the confession of a judgment on the note; that Rolfe paid to appellant the principal of three of the notes given by Rolfe to appellant, aggregating the sum of $7795.89; that afterwards, on the 12th day of February, 1897, a judgment by confession was caused to be entered on the note in the superior court of Cook county; that afterwards the judgment was opened and the transfer company allowed to defend to the action, but that the judgment by confession was ratified and confirmed by the said superior court and on appeal was affirmed in the Appellate Court and again affirmed on a further appeal to the Supreme Court; that appellant became surety on the appeal bonds given by the transfer company to perfect appeals to the Appellate and Supreme Courts, and induced one George M. Pullman to sign said appeal bond to the Supreme Court as surety by expressly agreeing to indemnify and keep harmless the said Pullman; that all of the property of the transfer company has been seized and sold, wrecked and sacrificed, under executions in this and other judgments against the company, and that appellee has received from such sales and sacrifices the sum of $4993.43 as payments on said judgment, and the stock held by appellant as collateral security rendered valueless and worthless; that appellee claims there remains unpaid on said judgment by confession the sum of $1351.74, and has instituted an action in debt in the circuit court of Cook county on the appeal bond, against the appellant, to recover that amount, and has filed a claim against the estate of the said George M. Pullman,
now deceased, for the same amount; that the said judg. ment against the transfer company was and is fraudulent, inequitable and unjust as against the rights and interests of the appellant, and that, by reason of his express agreement with the appellant that he would look to Rolfe personally for the payment of the said sum of money claimed to be represented by the judgment, on the faith of which agreement the appellant was induced to accept the stock of the company as collateral security for the debt of Rolfe, the appellee ought to be decreed estopped and debarred from asserting any right, as against appellant, to seize any property of the transfer company under an execution on said judgment, and from prosecuting said action at law to recover against appellant on said appeal bond and from prosecuting the claim against the estate of George M. Pullman, deceased. The bill further alleged that on the 13th day of June, 1894, and the 12th day of February, 1897, the appellant advanced and loaned to said transfer company, in cash, the sum of $8500; that the said money was advanced by appellant upon the faith of said transaction between appellant and said Rolfe and Fuller, appellee, on the 13th day of June, 1894, and upon the further assurances of the said Rolfe and upon the statements of said Rolfe as president for said company, in none of which did it appear that said transfer company was indebted in any manner or form to the appellee.
The bill prayed for an accounting, and that Fuller and Rolfe be decreed to pay complainant whatever might thereby appear to be due him by reason of these alleged illegal, wrongful and fraudulent acts; that appellee be restrained and enjoined from proceeding further in the action in debt commenced against appellant in the supe. rior court of Cook county on said appeal bond, and also from prosecuting the claim filed against the estate of said Pullman, deceased, by reason of the surety of said Pullman on said appeal bond, and for general relief.