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Opinion of the Court.

upon the

if ever of any force, is to be regarded as having been merged in, and superseded by, the subsequent lease and option contract of May 4th, 1867, and that it was thenceforth inoperative and of no force.

As before remarked, the lease contains no agreement, on the part of the lessor, to pay insurance.

On May 31, 1872, Edward Ely addressed a letter to D. J. Ely, informing him that he proposed to build

premises, giving a general description of the character of the building he intended to erect; that to do it, he required the insurance money, and requesting D. J. Ely to send on the money at once. Edward Ely immediately commenced rebuilding upon this and the adjoining lot of one Martin Andrews, and completed the buildings in the winter following. The appellant, while admitting that D. J. Ely always denied any liability to pay him the insurance money, testifies that, in August, 1872, D. J. Ely promised to pay over the insurance money as the building progressed, requiring, as the only condition to the payment, the execution of appellant's personal bond against mechanic's liens. D. J. Ely testifies, that while stating to appellant that he did not admit, but denied all claim of appellant to have from him any portion of the insurance money, he did consent to furnish a sum of money equal to the insurance money collected, only upon the condition, that his architect, in Chicago, Wadskier, should be employed to make the plans and specifications, and superintend the erection of the building, that the plans and specifications should meet his approval, the money to be advanced, pro rata, as the work proceeded, and that the new building should be superior, to the amount of that sum, to the building he was required to build under the lease. Wadsiker was not employed, by appellant, as the architect, but some other architect was employed. D. J. Ely testifies, that appellant never consulted with him with regard to the character of the building erected, that the architect's plans and specifications were never submitted to him, and that he never approved any plans or specifications. The building erected by appellant was four stories

Opinion of the Court.

and a basement, the walls of the basement and first floor being sixteen inches, and above that, twelve inches. It appears, from the evidence, that the walls are too slight for a building of that kind. The testimony of the architect, Wadskier, is, that the walls ought to be twenty inches in the basement, and sixteen inches in the first, second and third stories, and twelve inches in the fourth story, and that nothing less would answer for heavy business.

It appears, too, that there is no front entrance to the building, above the first story, except a centre entrance, for both buildings, which would be unadapted to the separate occupancy of the buildings, to remedy which would involve very extensive alterations of the interior of the buildings.

The promise to furnish any money toward rebuilding, without adverting to whether it was supported by a sufficient consideration, was accompanied with material conditions, according to the testimony of D. J. Ely, which were not complied with, and for that reason there was warrant for the decree, finding there was no liability on the score of such an express promise. It is not sufficient to say that the cor.ditions were substantially complied with, in that the new building is more valuable than the old one, by the amount of the insurance money.

The conditions were important, in many respects, as concerned D. J. Ely, and he is entitled to claim exemption from liability otherwise than according to the terms of his promise.

We do not find, then, that the claim of the complainant to this insurance money has the support of a promise to pay the insurance, or of any express promise, to rest upon.

The further position which is taken, that, irrespective of any contract whatever, the insurance was for the benefit of the party who was bound to rebuild, we know no ground of principle upon which it is to be maintained. The erection of the new building, by the lessee, was not done at the instance, or by the procurement, of the lessor. It was the voluntary act of the lessee, done in the performance of his own covenants in the lease. He was not entitled to the contribution, by the lessor, of any money toward the rebuilding. Had there been no

Opinion of the Court.

insurance, there could be no pretense of a legal claim against the lessor for any portion of the cost of rebuilding. Whence the claim to this insurance money? It belongs to the assured, the owner of the building. The title to it was purchased with her money, not that of the lessee. She had an insurable interest in the premises, and so had the lessee. Either might have insured his or her own interest. She chose to insure her interest; appellant did not see fit to insure. The owner might have insured for the benefit of appellant, but did not do so. She insured in her own name, paid the premiums, and the insurance was for her benefit. There

There is nothing looking toward the benefit of appellant in the matter, any more than his having been requested to pay the premiums for insurance, which he absolutely refused to do. He might have done so, and had ground of claim to the insurance money. He did not do so, and is not entitled to the benefit of what he would not pay for. He was not charged, or chargeable, with the premiums. The building, to be sure, upon the expiration of the lease, if it then remains, will belong to the owner of the premises. But that was an advantage she secured by force of the covenants in the lease. Appellant saw fit to enter into covenants to keep the building in repair, at his own expense, and to deliver it up, at the end of his term, in as good order and condition as when he received it, without making any exception of loss by fire.

The legal effect of such covenants is well settled, and appellant must abide by them, as he made them. It is the province of courts to enforce the contracts which parties themselves make, not to make contracts for them.

Because it may seem a hardship for the appellant that he should sustain the whole cost of rebuilding, while the owner of the premises will enjoy the ultimate benefit thereof, should the building remain, a court of equity can not, for such reason, impose upon the owner payment of part of such cost. This insurance money is as much the money of Mrs. Ely, as that derived from any other source.

The case is analogous to that of mortgagor and mortgagee,


who have each an insurable interest. Where the mortgagee insures, the mortgagor, having had no connection with the insurance, can not claim its benefit. The mortgagee may enjoy the insurance money received, and still collect the whole mortgage debt from the mortgagor. Honore v. Lamar Fire Ins. Co. 51 Ill. 409; King v. The State Mutual Fire Ins. Co. 7 Cush. 10

In Leeds v. Cheetham, 1 Sim. Ch., it was held that a tenant has no equity to compel his landlord to expend money received from an insurance office, on the dernised premises being burned down, in rebuilding the premises, or to restrain the landlord from suing for the rent until the premises are rebuilt.

We do not find that the court below committed any error in dismissing the bill.

Decree affirmed.



80 541 123 86 23a 528 80 541 129 55 30a 492 30a 493 80 541 61a 323


1. ESTOPPEL-equitable. Where an act is done or a statement made by a party, which can not be contradicted or contravened without fraud on his part and injury to others whose conduct has been influenced by the act or statement, the character of an estoppel will attach to what would otherwise be mere matter of evidence, and the party will be concluded from denying or disproving it.

2. SAME-to show that notes secured by trust deed were paid. Where a party purchased land upon which there was a deed of trust to secure the payment of two notes of $5000 each, the payment of which he assumed, and which he did pay, and obtained a release from the trustee, and afterwards procured a loan of $5000 of a bank, giving these notes as collateral security, the bank having no notice of their payment or of the release, and such loan was procured by his and others' acts and representations leading to the belief that the notes were unpaid, and the deed of trust still a valid and subsisting lien: Held, that the borrower and those co-operating with him to create such belief and cause the loan, were, in equity, estopped from showing and insisting upon the fact of the payment of the notes, and the release, and that the bank was entitled to a foreclosure of the trust deed, to

Opinion of the Court.

the extent of the sum due on such loan, but not for other indebtedness of the borrower.

3. PAYMENT---notice. Where a note secured by deed of trust on land, when offered as collateral security for a loan, had stamped upon it, “ Cook County National Bank, Chicago-Paid June 16"-which words were erased by a pen having been drawn through them, and this it was insisted was notice of its payment, it was held, that being erased, the reasonable inference would be, that these words had been placed there by mistake, and the procuring of the written consent of two other parties interested indorsed on the note, consenting that the time of its payment might be extended for one year, was also held to be inconsistent with the fact of its payment, and was a guaranty it was not paid.

4. ESTOPPEL-applies to assignee of one bound by notice. Where a party purchases notes, secured by deed of trust, of a bank, whose officers are estopped from showing the release of a prior deed of trust and payment of the indebtedness secured, against another bank loaning money on the faith of the prior trust deed being valid, such purchaser, in equity, will stand in no better position than the bank of whom he purchased.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

This was a bill in chancery, by the International Bank of Chicago, against James H. Bowen, Ira Holmes and others, to foreclose a deed of trust. The material facts of the case are stated in the opinion of the court.

Messrs. ROSENTHAL & PENCE, for the appellant.

Mr. Jonas HUTCHINSON, for part of the appellees.

Mr. GEO. W. Smith, and Mr. CHARLES W. THOMAS, for appellee Pieper.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The purpose of this appeal is, to procure the reversal of a decree of the court below refusing to foreclose a certain deed of trust, and dismissing the bill at the complainant's costs.

The instrument, of which foreclosure is prayed, was executed by James H. Bowen to Henry M. Ketchum, as trustee, on the west 533 acres (or one-third) of the north-west quarter

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