domain and of taxation, may be, and constantly are, exercised by such corporations de facto, and their right cannot. even be questioned. Ward v. Railroad Co. 119 Ill. 287; Railroad Co. v. Railroad Co. 75 id. 113; Railroad Co. v. Railway Co. 158 id. 390; People v. Newberry, 87 id. 41; Trumbo v. People, 75 id. 561; Blake v. People, 109 id. 504; Osborn v. People, 103 id. 224.

Relief by way of specific performance is granted as a matter of right and not of favor. The discretion of the court is not arbitrary, and the granting of specific performance of a contract to convey land, which is valid and unobjectionable, is as much a matter of course in a court of equity as a judgment for damages at law. McClure v. Otrich, 118 Ill. 320; Evans v. Gerry, 174 id. 595; Allen v. Woodruff, 96 id. 11.

A stipulation that time shall be of the essence of the contract is waived where both parties ignore it and proceed to carry out the contract after the lapse of the stipulated time. Watson v. White, 152 Ill. 364.

H. A. NEAL, for appellee:

The right to a specific performance is not absolute, like the right to recover damages in the action at law. Whether the court will compel a party to do the particular thing he has agreed to do is a matter of sound judicial discretion, depending upon the circumstances of the particular case. Although a contract may be legal and enforceable, it must be perfectly fair, equal and just, and such as a court of equity will commend, or it will not be specifically enforced. Phelps v. Railroad Co. 63 Ill. 468; Canal Comrs. v. Sanitary District, 191 id. 326; Espert v. Wilson, 190 id. 629; Railway Co. v. East St. Louis, 182 id. 438.

Where there has been no legal incorporation the members are individually liable, as partners, for all the debts of the organization. Cook on Stock and Stockholders, (1st ed.) par. 233; Page on Private Corp. par. 162.

Where time is of the essence of the contract such a provision cannot be dispensed with, and if one party claims a waiver he must show such waiver by clear and conclusive evidence. Phelps v. Railroad Co. 63 Ill. 468; Heckard v. Sayre, 34 id. 142; Kemp v. Humphrey, 13 id. 573; Stow v. Russell, 36 id. 18.

A contract to be specifically enforced by the court must be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the par. ties against the other. Whenever, therefore, the contract is incapable of being enforced against one party that party is equally incapable of enforcing it against the other. Gage v. Cummings, 209 Ill. 120; Cowan v. Curran, 216 id. 598; Tryce v. Dittus, 199 id. 189.

Mr. JUSTICE CARTER delivered the opinion of the court:

The main question in this case is whether, under the terms of the contract, appellant, directly or by implication, warranted that the Marshall Warehouse Company was a corporation de jure. Appellant contends that under the contract in question he gave no direct or implied warranty that the capital stock that he was selling was that of a corporation de jure; that the seller of negotiable securities of this kind only warrants that they belong to him and that they are not forgeries. He also contends that the Marshall Warehouse Company was a de facto corporation, and that the appellee is not in any way injured by the failure to have the certificate of incorporation recorded.

This court has held that to create a de facto corporation there must be a law under which said corporation may be created, together with user under the law. (American Trust Co. v. Minnesota and Northwestern Railroad Co. 157 Ill. 641.) We have also held that where there was an honest attempt of the corporators to organize a corporation under the laws of the State, and all the necessary steps had been

taken except that the final certificate had not been recorded by the recorder of deeds, and that thereafter the necessary officers had been elected, who had proceeded to the transaction of business as a corporate body, these facts would establish a corporation de facto. (Bushnell v. Consolidated Ice Machine Co. 138 Ill. 67.) A corporation is a de facto one where the law authorizes such corporation and where the company has made an effort to organize under that law and is transacting business in the corporate name. (1 Cook on Stock and Stockholders and Corporation Law,—3d ed. -sec. 234; 8 Am. & Eng. Ency. of Law,—2d ed.—p. 747.) The Marshall Warehouse Company had obtained a certificate from the Secretary of State, in due form, on May 8, 1900. From that time it had done business as an incorporated company, carrying on a general storage business, mostly as to broom corn. It issued warehouse certificates signed by the president and secretary, and procured and used a seal. Its officers received from the Secretary of State the customary notice as to the affidavit concerning trusts, in September, and the customary notice as to the annual report to be filed, in February, each year after the certificate was issued, which documents were apparently filled out and returned in due course, with the required fee. Its officers also made out, and sent in the name of the company, a statement, as required by law, to the State Board of Equaliza, tion. So far as the record discloses, everything had been done by the company that the law required from the time the certificate had been received by the Secretary of State except the recording of the certificate, as required by section 4 of chapter 32. (Hurd's Stat. 1905, p. 497.) Manifestly, from this record the Marshall Warehouse Company was a de facto corporation.

Did the letters "inc.," placed in parenthesis in the contract in question, warrant that the stock was that of a corporation de jure, or was such warranty implied from the rest of the contract? The exact question here raised has

never been decided by this court, although the powers and responsibilities of a de facto corporation, as well as the liabilities of the officers of such corporation, have frequently been discussed. A de facto corporation, as long as it exists, is a reality. It has a substantial legal existence. (Society v. Cleveland, 43 Ohio St. 481; 8 Am. & Eng. Ency. of Law,-2d ed.-p. 748, and cases there cited.) This court has stated that it is the settled law that neither the eligibility of the directors of a de facto corporation nor the rightfulness of its existence could be inquired into collaterally. (Cincinnati, Lafayette and Chicago Railroad Co. v. Danville and Vincennes Railway Co. 75 Ill. 113, and cases there cited; see, also, Chicago Telephone Co. v. Northwestern Telephone Co. 199 Ill. 324; People v. Pederson, 220 id. 554.) It has been held by this court that proof of the existence of a corporation de facto is sufficient on a plea of nul tiel corporation. (Cozzens v. Chicago Brick Co. 166 Ill. 213; Mitchell v. Deeds, 49 id. 416.) The introduction of the charter of a corporation, with the proof of the exercise under it of the franchises and powers thereby granted, is sufficient to establish the existence of a corporation de facto. (St. Louis, Alton and Terre Haute Railroad Co. v. Belleville City Railway Co. 158 Ill. 390.) The directors and officers of the de facto corporation are not relieved from the liability imposed by section 18 of said chapter 32, on corporations. "There must be a corporation de jure in order to escape that liability.” (Butler Paper Co. v. Cleveland, 220 Ill. 128; Loverin v. McLaughlin, 161 id. 417.) It was held in Gade v. Forest Glen Brick and Tile Co. 165 Ill. 367, that the capital stock of a corporation might be reduced before recording the final certificate in the recorder's office, and that creditors, after notice of the reduction of such capital stock, would be confined to the reduced capital, as they did not become creditors until after the certificate was recorded and the notice of the reduction published as required by law. This court has discussed various phases and duties of de facto corporations in

Curtis v. Tracy, 169 Ill. 233; McCormick v. Market Nat. Bank, 162 id. 100; Edwards v. Armour Packing Co. 190 id. 467; Gunderson v. Illinois Trust and Savings Bank, 199 id. 422; Gay v. Kohlsaat, 223 id. 260; Hudson v. Green Hill Seminary, 113 id. 618.

The Supreme Court of Indiana, in the case of Herter v. Elteroth, 111 Ind. 159, had before it the identical question here under discussion, and there said that there was no implied warranty on the part of the vendor of certificates of stock that the corporation issuing them was a corporation de jure; that if the corporation was a de facto one that was sufficient to relieve the vendor from liability as to any implied warranty as to the existence of the corporation. To the same effect is 26 Am. & Eng. Ency. of Law,-2d ed.— p. 258. The Indiana court cited in support of its holding, Otis v. Cullum, 92 U. S. 447, where, in a case involving the sale of municipal bonds issued without statutory authority, in passing on the question of implied warranty the United States Supreme Court held: "The seller is liable ex delicto for bad faith, and ex contractu there is an implied warranty on his part that they belong to him and that they are not forgeries. Where there is no express stipulation there is no liability beyond this." The Supreme Court of Indiana, after this quotation from the Otis case, supra, said: “A less liberal rule, clearly, cannot be applied to the sale and transfer of certificates of stock." This court in Hinkley v. Champaign Nat. Bank, 216 Ill. 559, held that the assignment of a judgment carries an implied warranty that the judgment is genuine, that it was entered in due form of law, but that there is no implied warranty that the judgment was impregnable to attack, and we there quoted with approval from the Otis case, supra, the following: "If the buyer desires special protection he must take a guaranty. He can dictate its terms and refuse to buy unless it is given. If not taken he cannot occupy the vantage ground upon which it would have placed him.” In Higgins v. Illinois Trust and Savings