There are, really, but two questions presented in this record. The first is, was the subscription binding upon the defendant below, being made before the charter of the university was obtained ? And second, if binding upon him, was it evidence ?
Upon the first point, it has been often decided, and may be now considered as settled, that such a subscription enures to the benefit of the corporation thereafter created. English and American cases to this point, are collected and referred to by this court in the case of Cross v. Pinckneyville Mill Co., 17 Ill. 58. It is unnecessary to go over the argument of these cases. As to the other question, the record shows that the suit was brought upon an instrument in writing purporting to be a subscription paper, with the name of the defendant thereon, as a subscriber to the amount of six hundred dollars.
This paper was offered in evidence on the trial, and was the only evidence of the contract.
It was .objected to because: 1, There is no such corporation as the plaintiff; 2, No assessment proved; 3, It is not payable to the plaintiff; 4, No payee mentioned in the instrument; 5, No consideration for the agreement; 6, The instrument not appearing to be signed by the defendant, and appearing on its face to have been altered since signed. This last reason seems to be feto de se.
The suit having originated before a justice of the peace, and brought into the Circuit Court by appeal, there were no pleadings in writing, but the plaintiff will be presumed to have averred in the verbal statement of his case, that the writing was signed by the defendant, and that the suit was brought upon it. The law in such cases is plain and positive. No person shall be permitted to deny on trial, the execution of any instrument in writing, whether sealed or not, upon which any action may have been brought, or which shall be pleaded, or set up by way of defense or set-off, unless the person so denying the same, shall, if defendant, verify his plea by affidavit, (chap. 85, Scates’ Comp. 254); whether this was a copy of a copy, or the original, makes no difference. The suit was brought upon it, and its execution not being denied, it was evidence.
The act of the General Assembly, incorporating the plaintiffs under the name of the Peoria University, was produced without objection. The proof shows that the university was under the synod of Illinois, and if that corporation incurred liabilities on the strength of the defendant’s subscription, as well as that of others, a suit as for money paid, laid out and expended, would lie against them. They had a right to become the payees and sue as such. This was decided by this court, at the last term at Springfield, in the case of Prior t. Kane, in conformity with the current of decisions on that point. In such cases, the contemplated company or college under the synod of Illinois, to be located at Peoria, is a proper promisee, and the promise of the subscriber is good to them as a third person, who, on the faith of it, had incurred expense and liabilities; and there is mutuality also, in the stock, dividends and general interests of the company to which the subscriber became entitled. Hamilton and Deansville Plank Road Co. v. Rice, 7 Barbour, 157.
Though this subscription was to be paid as the money should be required, to meet the expenditures incurred in putting in operation the college, there is abundant evidence to show, that this money was required to meet liabilities. The defendant cheerfully paid one-half, being three hundred dollars of his subscription, but the building having been blown down, he refused to pay the other half. It is in proof, that besides this subscription of six hundred dollars, the defendant had subscribed originally for but three hundred dollars, and for six or seven scholarships, valued at three hundred dollars each. The defendant was released from his scholarships, on his raising his subscription to six hundred dollars, and though no assessments were made, this release is a waiver of assessments, and is a good consideration for the remaining three hundred dollars, for which the plaintiffs obtained judgment.
It is evident the plaintiffs have incurred large liabilities on the faith, in part, of defendant’s subscription, and he ought in all justice to pay it.
We see no error in the instructions of the court. Those refused, which were asked by the defendant, the court could not well give without stultifying itself. The judgment of the court is affirmed.
Judgment affirmed.