This was an action brought July 17, 1895, by McCormick against the Market National Bank of Chicago, Ill., in the superior court of Cook county, in the state of Illinois, and was submitted by the parties, waiving a trial by jury, to that court, upon an agreed statement of facts, in substance as follows:
On January 31, 1893, articles of association were signed, and an organization certificate was signed and acknowledged, by nine citizens of Illinois, before a notary public, and both were transmitted to the comptroller of the currency, as required by title 62 of the Revised Statutes of the United States (the material parts of which are copied in the margin ), for the purpose of making them a national banking association at Chicago by the aforesaid name; and were on February 3, 1893, recorded, and afterwards carefully preserved, in the comptroller's office.
On January 31, 1893, at a meeting of the directors of the bank, chasen by the stockholders, and named in the articles of association, a president and a cashier were duly elected, and the directors caused a seal to be made for the bank. On February 9, 1893, the president, pursuant to a resolution of the directors, signed and sealed with the corporate seal a lease in writing from the plaintiff to the bank of certain offices in Chicago, 'to be used and occupied by said Market National Bank as a banking office, and for no other purpose,' for the term of five years from May 1, 1893, at a yearly rent of $13,000, payable in equal monthly installments. By an agreement made part of the lease, the plaintiff was to make certain alterations and repairs at his own expense; either party might cancel the lease on May 1st of any year by giving 90 days' notice in writing; and no rent was to be charged until the bank took possession. On April 12, 1893, the parties made a supplemental agreement, by which the plaintiff was to make further alterations, the bank paying half the cost thereof. All the alterations and repairs were made by the plaintiff as agreed; the cost, paid by him, of the alterations made under the agreement of April 12, 1893, being $2,475.
Upon the completion of the alterations, on June 22, 1893, the president and cashier, in the name of the bank, took possession of the demised premises, and put in the fixtures and furniture, blank books and stationery, necessary to carry on a banking business, and they were not removed until April 30, 1895.
Of the whole capital stock of $1,000,000, provided for in the articles of association, no more than the sum of $331,594 was ever paid in; and the bank was never authorized by the comptraller of the currency to commence, and never did commence, the business of banking.
The officers of the bank, from time to time, corresponded with the plaintiff, using letter heads with the name, location, and place of business of the bank and the names of its officers printed thereon, and signing in their official capacity.
The plaintiff, at the times of the negotiations for the lease, and of its execution, and of the taking possession of the demised premises by the officers of the bank, understood and believed that it was legally organized as a national bank, and as such was ready to do banking business, and had the power to enter into the lease and agreements aforesaid; and had no knowledge or information to the contrary until August 15, 1893, when the officers of the bank informed him that the bank had never been authorized by the comptroller of the currency to commence the business of banking, and had no power to enter into the lease, and had abandoned all further proceedings for carrying on the banking business, and offered to surrender the lease, but he refused to accept the surrender. On September 20, 1893, the president of the bank caused the key of the office to be left on the desk of the plaintiff's agent, he refusing to accept it.
On July 15, 1893, the nine persons who had signed the aforesaid articles of association and organization certificate signed and transmitted to the comptroller of the currency a certificate revoking them, and he placed it on file in his office. On the same day, five of those persons and seven others signed and acknowledged, and forwarded to the comptroller, other articles of association and organization certificate, for the purpose of making them a national bank by the same name, with a capital of $500,000, and they were forthwith recorded in the comptroller's office. On July 25, 1893, the persons signing the latter articles of association and organization eertificate abandoned all further proceedings with regard to the organization of the bank as therein provided, and with regard to its commencing the business of banking.