Protection Life Insurance v. Osgood

Mr. Justice Craig delivered the opinion of the Court:

This was an action on the case, brought by William O. Osgood against The Protection Life Insurance Company, to recover a certain sum in damages for the refusal of the company to transfer on its books eighty shares of its capital stock which bad been purchased by the plaintiff.

The first question presented by the record is, whether the court erred in rejecting the offered evidence of the defendant, to the effect that when Chesbrough and Williams subscribed to the capital stock of the Protection Life Insurance Company checks were given by the parties for the amount of stock, which the company agreed to hold until the State Treasurer should accept certain notes secured by mortgage, which were given in payment for the stock; and after the Treasurer had passed upon and accepted the securities and filed them as a part of the guaranteed fund, the checks which had in the first place been given were returned; that subsequently the securities were discovered to be of little or no value, and upon notice being given to Williams he gave other securities, which also in the end turned out to be of no value.

If the stock which the company issued to Chesbrough and Williams which was purchased by the plaintiff was absolutely void, it is apparent that an action could not be maintained against plaintiff in error for a failure to transfer the stock upon its books. Was the offered evidence sufficient, had it been admitted by the court, to establish the fact that the stock was void? We think not. Had the stock been fictitious, or issued without any consideration whatever, it might have been regarded as void, and so treated by the company; but such was not the case. Concede it to be true that Chesbrough and Williams, when the stock was issued to them, gave the company their respective checks for the amount of stock so issued, and that these checks were held under an arrangement until certain notes secured by mortgage on lands in Wisner’s subdivision in Cook county, which had been delivered to plantiff in error, could be passed upon and accepted by the State Treasurer as a part of the $100,000 required to be deposited as a basis of commencing business, and that the checks were returned after the securities were approved, and that these securities afterwards turned out to be of little or no value, it by no means follows that the stock was fictitious or void. If the checks given in the first instance were not to be regarded as a payment for the stock by the parties, the notes secured by mortgages which were accepted by the company as payment, as between the company and Chesbrough and Williams would constitute a good consideration for the stock. Chetlain v. The Republic Life Ins. Co, 86 Ill. 220 , is an authority in point, where it was held that promissory notes given by a stockholder in an incorporated company for the payment of the first twenty per cent of his subscription to the capital stock are founded on a sufficient consideration to support them.

But it is said the stock was procured from the company by fraud; that the Auditor of Public Accounts subsequently discovered that the lands mortgaged to secure the notes which were received for the stock were of little or no value, and the securities were rejected by the Auditor as not being of the value required by law. However this may have been, it does not appear from the offered evidence that Chesbrough and Williams practiced any fraud upon plaintiff in error. It nowhere appears that they intended to cheat or defraud the company. It does not appear that they, knowing the securities to be valueless, represented them to be good—that they resorted to any means whatever to mislead, deceive or defraud the company.

If the lands embraced in the mortgage were covered by water, and were of no practical value, that fact might have been ascertained by the company by making inquiry where the lands were located, and as no means were resorted to by Chesbrough and Williams to prevent the company from making the investigation, it would seem to have been its duty to do so. But the conduct of Chesbrough and Williams when the securities were rejected by the Auditor is inconsistent with the theory that they had acted in bad faith. As soon as they were called upon for additional security Williams turned out a note for $20,000, the aggregate amount of the subscription, secured by a deed of trust on certain property in the village of Jefferson. This1 note was executed by one Henry Sloan, and made payable to the president of the company. The'note and deed of trust, as well as the other notes and mortgages, have been, and still are, held by the company as security for the stock.

How, while it may appear, from the offered evidence, that the property embraced in the several mortgages was not valuable, and perhaps was not good security for the payment of the amounts secured thereby, still we perceive nothing in the conduct of Chesbrough and Williams which could be regarded as fraudulent. They seem to have acted with fairness and without the slightest motive to defraud. And had the offered evidence gone to the jury the result could not have been otherwise or different from what it was.

The plaintiff asked no instructions to the jury, and none were given in his behalf; but after the jury had retired to consider of their verdict they made application to the court for further instructions. In response to their inquiry the court instructed them in writing that the question whether Osgood stands in the place of Williams is not before them, nor is the question whether Osgood is an innocent purchaser; also, that the jury had no right to consider the evidence offered which the court had rejected. The giving of these instructions is relied upon as error.

We perceive nothing wrong in the instructions. If the court was right in the rejection of the offered evidence, the direction to the jury in the instructions would follow as a matter of course. The judgment will be affirmed.

Judgment affirmed.