CONTRACTS.

CONTRACTS CONSTRUED.

Continued.

14. Contract for the sale of an edition of books. A publisher of a
book entered into a contract with a bookseller, by the terms of which
the latter was to advertise the book in his circulars and lists, for which,
and for his commissions on all sales made by him, he was to receive 20
per cent of the gross receipts, to be deducted month by month, at
which times he was to account and pay over to the publisher the residue.
It was also agreed that the bookseller should sell the entire edition,
the publisher reserving "the privilege of selling at retail what few
copies might be demanded through him, without commissions to the
bookseller." It was held, that while it was for the jury to say, from the
number of the edition and all the circumstances of the case, what num-
ber should be regarded as a “few copies," which might be sold by the
publisher without commissions to the bookseller, it could not have been
intended to embrace in the reservation so large a proportion of the
edition as to exceed one-third thereof. Myers v. Gross et al. 436.

15. Nor had the publisher the right, under the contract, to adver-
tise the book and solicit orders for its sale,-that was clearly prohibit-
ed by the spirit, if not by the letter of the contract. Ibid. 436.

16. Should the publisher, in such case, sell at retail more books than
he was authorized to sell under the agreement, the bookseller would
be entitled to his commissions on the residue the same as if he had
sold the books himself. Ibid. 436.

17. It seems, after the making of this contract, by an understand-
ing between the parties, a bill was introduced in the legislature, pro-
viding for the purchase, by the State, of a certain number of copies of
the book. The bill, as originally drawn, provided that the books should
be purchased from the bookseller, who agreed with the publisher to
accept half commission on the books to be sold to the State. Subse-
quently the publisher procured the bill to be so amended that the books
should be purchased directly from him: Held, this change in the law
did not operate to deprive the bookseller of his right to his commis-
sions on the sale to the State, as it did not matter, under their agree-
ment, by which of the parties the books were furnished. Ibid. 436.
RESCISSION OF CONTRACTS.

18. By one party, for non-performance. A party to a contract who
is himself first in default, can not declare the contract at an end by
reason of non-performance by the other party. Ibid. 436.

19. So, in this case, the publisher violated the contract by refusing
to account to the bookseller for his commissions on books sold beyond
the number the former was authorized to sell under the contract, and
thereby the bookseller was justified in refusing to pay the drafts of
the publisher for proceeds of sales he had made himself, without for-
feiting his right to have the contract fully executed. Ibid. 436.

CONTRACTS. RESCISSION OF CONTRACTS.

Continued.

20. Rescission of contracts in chancery. See CHANCERY, 7, 8, 9.

WHEN A PROMISSORY NOTE BECOMES DUE.

21. Construction of a note in that regard. See PLEADING AND
EVIDENCE, 6, 7, 8.

CONVENING ORDER.

NECESSITY THEREOF.

When a record is presented to this court on error, it should have a
placita, that it may appear that the record presents the proceedings of
a court. Rich et al. v. City of Chicago, 286.

CONVEYANCES.

ESCROW.

1. Where a deed intended as an escrow is put upon record without the
knowledge or consent of the grantor. Where a vendor of land executed
a deed and left it in the hands of the officer taking the acknowledg
ment, to be by him delivered to a third person who was to hold it as an
escrow until the purchase money should be paid, but, without ever hav-
ing come to the hands of him who was to hold it as an escrow, the deed
was placed upon record, without the knowledge or consent of the
grantor, it was held, the agreement between the parties that the deed
was not to be delivered or recorded until the purchase money should
be paid, continued until changed by the consent of the vendor, and a
subsequent purchaser from his vendee, with notice, would hold sub-
ject to the rights and equities of the first vendor, arising from such
agreement. Illinois Central Railroad Co. v. McCullough, 166. /
DELIVERY OF A DEED.

2. What constitutes. In case of a sale of the land by the first ven-
dee, and the acceptance by his vendor of the notes of the second pur-
chaser for the unpaid purchase money due the former, together with
a mortgage from the latter on the same premises, to secure such notes,
which were taken in lieu of the notes given by the first purchaser, a
recognition by the original vendor, of title in the mortgagor, would
be implied thereby, and his assent to the delivery of his deed to his
vendee. Ibid. 166.

3. But such a transaction would not, of itself, import that the as-
sent of the original vendor, to the delivery of the deed, was given at
any time prior to the acceptance of the notes and mortgage of the sec-
ond purchaser, nor would it necessarily imply a ratification of the ob-
taining possession of the deed and putting it on record, contrary to
the agreement in respect thereto. The legal intendment could be no
more than that the first vendor consented to a change in the form of
his security, and assented to the delivery of the deed to his vendee, on

CONVEYANCES. DELIVERY OF A DEED.

Continued.

the condition that he should, at the same time, receive back a mort-
gage of the lands to secure the payment of what remained due to him.
Illinois Central Railroad Co. v. McCullough, 166.

4. And herein of an intervening incumbrance. The assent by the
original vendor to the delivery of the deed to his vendee, and his ac-
ceptance of the mortgage from the second purchaser, being simulta-
neous acts, and the title resting but for an instant in either vendee, a
deed of trust executed by the first vendee to a third person prior to
that transaction, would not attach as a lien upon the land, to the pre-
judice of the subsequent mortgage, merely by reason of the title re-
maining in the maker of the deed of trust or the subsequent mortga-
gor for the brief interval necessary to the consummation of the trans-
action, as would have been the case if it had so remained for any time.
Ibid. 166.

CORPORATION.

FRAUDULENT ORGANIZATION.

1. A number of persons organized a telegraph company, and one
of the number subscribed for nearly all of the stock and transferred
it to another person to hold as trustee, and to represent and sell the
same, but no money was to be paid by those organizing the company,
and such subscriber, by contract with the company, undertook to build
two thousand miles of line, but the agreed price was largely above the
cost of construction; an election was held, where a large number of
well-known business men, not stockholders, or consenting thereto,
were elected directors; a circular was issued referring to the objects
and prospects of the company, and the names of these persons were
given as directors, and in the same circular persons were solicited to
subscribe for stock, and it was stated that on the payment of forty per
cent on the share, a certificate of stock would be issued, and no further
call would be made thereon. It was also provided, by a by-law, that
no general meeting of the stockholders, or election of directors, should`
be held until the two thousand miles of line should be built and
equipped, or until the persons holding a majority of the stock should
petition the president to call a meeting. Many persons became sub-
scribers and paid forty per cent on their stock, and four hundred and
seventeen and one-half miles of line was constructed at a cost of $126,-
550.90, and $25,000 had been paid on work not completed: Held, that
the scheme was fraudulent, intended to enrich the contractor, and the
plan so devised that the bona fide stockholders should not have any
control of the affairs of the company, by electing directors, until two
thousand miles of the line should be completed. Terwilliger v. The
Great Western Telegraph Co. et al. 250.

CORPORATION. FRAUDULENT ORGANIZATION.

Continued.

2. It was further held, that the bona fide stockholders should have
relief, and that the lines constructed belonged to the subsequent sub-
scribers whose money built them, and that the contracts should all be
set aside; the amount of money paid by the subscribers ascertained,
and certificates of stock to be issued to them so far as paid for, at forty
per cent. An election was directed to be called for a new board of di
rectors by such stockholders, at which election only actual holders of
stock subscribed and paid for should be allowed to vote, and if a set-
tlement should not be made by the new directors with the contractor,
satisfactory to the court, the cost of constructing the lines already
built, as nearly as possible, to be ascertained, and the contractor to be
allowed the cost and a reasonable compensation for his time and labor,
and the court was directed to render a decree against him for any ex-
cess, to be paid to the treasurer appointed by the new board. The
president and secretary were required to produce all books and papers
that might be necessary in the adjustment, and if the company, as now
organized, interpose any obstacles in the way of carrying the orders of
the court below into execution, a receiver to be appointed to take charge
of the entire affairs of the company. Terwilliger v. The Great Western
Telegraph Co. et al. 250.

MUNICIPAL CORPORATIONS.

3. How far subject to judicial control, and herein of the general char-
acter of their powers and duties. A court of equity may grant relief
against a municipal corporation as well as against a natural person, in
most cases. But there are acts which a corporation may do within the
limits of its charter, without being subject to the supervision of any
court; such acts are those done under its legislative and discretionary
powers. Sherlock et al. v. Village of Winnetka et al. 389.

4. In respect to the property of the corporation. A municipal corpor-
ation, in reference to its property, stands on the same footing as other
corporations. Its corporate property is held in trust for the benefit of
its constituents, and it is bound to administer such property faithfully,
honestly and justly, and if guilty of a breach of trust by disposing of
valuable property without any, or for a nominal, consideration, it will
be regarded in the light of the representative of a private individual or
private corporation. The fact that the forms of legislation are used in
committing such a breach of trust, will not change the character of the
act. Such is not the exercise of political power, delegated for public
purposes, and exemption from judicial interference terminates where
legislative action ends. Ibid. 389.

5. Issuing corporate bonds, only for corporate purposes. The com-
mon council has no authority to purchase lands, erect buildings, and

CORPORATION.

MUNICIPAL CORPORATIONS. Continued.

issue bonds pledging the corporate property and the faith of the cor-
poration, for any but municipal purposes. Where the design in pur-
chasing the land, erecting the buildings and issuing the bonds, is for
private, to the exclusion of corporate purposes, and for private gain, it
is a gross breach of trust, a fraud upon the law and the tax payers of
the municipality, and a court of equity will take cognizance of such a
Sherlock et al. v. Village of Winnetka et al. 389.

case.

6. Sale of municipal bonds—to whom allowable. See PURCHASERS,
4, 5, 6.

COSTS.

AGAINST AN ESTATE.

1. Estates are not answerable for costs on claims filed after the term
of the probate court appointed by the administrator for adjustment.
Russell v. Hubbard et al. 335.

AGAINST AN ADMINISTRATOR PERSONALLY.

2. An administrator can never be made personally liable for costs
except upon proof of mala fides or gross negligence on his part. Ibid.
335.

ATTORNEY'S FEES AS COSTS.

3. Construction of act of 1869. The act of 1869, being construed
as intending the taxation of counsel fees in partition suits only in cases
where the proceedings are amicable, does not apply to a suit begun as
an amicable one but which afterwards develops into the ordinary case
of adverse parties, at least so far as regards the services rendered after
the suit partakes of such nature. Lilly et al. v. Shaw et al. 72.

COUNTY TREASURER.

SURETY ON HIS BOND.

Of increasing the liability after the execution of the bond.
SURETY, 4, 5.

COVENANTS.

WHERE COVENANTEE VOLUNTARILY YIELDS.

See

Whether he may have his action on the covenant. The owner of a lot
of ground contemplating the erection of a frame building thereon, the
owner of a brick house situated on the line of an adjacent lot proposed
to him that if he would build of brick he might use the brick wall of
the house for the purpose of attaching thereto the proposed new build-
ing. The proposition was accepted, and the new house was built of
brick and attached to the wall of the other building as proposed: Held,
where the party to whom the license was given, and who had executed
its purpose, subsequently conveyed with covenant to his grantee