text:
    Harvey, Wolff & Co. v. Elisha Miles.
    1. Instructions. — Where there is a conflict in the evidence, the instructions should be accurate, clear and perspicuous.
    2. Agency — Instructions.—An agent may make himself liable to his principal for an act done in excess of his authority, and yet the principal be responsible to third persons for the act, if done within the scope of the agent’s apparent authority. As the instructions given proceeded upon the theory that in order to charge the principal with the acti of the agent the agent must have had express authority from his principal to do the act, they were erroneous.
    Appeal from the Circuit Court of Bock Island; the Hon. George Pleasants, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. John C. Pepper, for appellant;
    as to authority of an agent, cited Ill. Cent. R. R. Co. v. Morrison, 19 Ill. 140; W. & C. R. R. Co. v. Dalby, Ibid. 855; M. S. & N. I. R. R. Co. v. Day, 20 Ill. 378; St. L. & M. P. R. R. Co. v. Parker, 59 Ill. 23; AEtna Ins. Co. v. Maguire, 51 Ill. 349; McGregor v. McDevitt, 64 Ill. 261; Singer Mfg. Co. v. Holdfodt, 86 Ill. 459; Thurber v. Anderson, 88 Ill. 167; Hurd v. Marple, 10 Bradwell, 418; Tanner et al. v. Hastings, 2 Bradwell, 283; Hurd v. Marple, 2 Bradwell, 403; Stevens v. Meers, 11 Bradwell, 138; Meister et al. v. The Cleveland Dryer Co., 11 Bradwell, 227; Union Mutual Ins. Co. v. Slee, 109 Ill. 37; National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 428.
    Messrs. Bassett & Wharton, for appellee;
    that an agent to collect has no implied authority to release the debt without payment, to exchange for other property, or to extend the time or compound the debt, cited Padfield v. Green, 85 Ill. 529; Reynolds v. Ferree, 86 Ill. 570; Melvin v. Lamar Ins. Co., 80 Ill. 447; Doubleday v. Kress, 50 N. Y. 410; Central Law Journal, Vol. 18, Feb., ’84, page 166; Paley’s Agency, 290; Lewis v. Garnage, 1 Pickering, 347; Lawrence v. Johnson, 64 Ill. 352; Gerrish v. Maher, 70 Ill. 470; Ryhiner v. Feickert, 92 Ill. 313.
   Welch, J.

Appellee owned a farm near Aledo, in Mercer county, and rented the same to James II. Gibson in 1876, and went to Nebraska; Gibson was also his tenant in 1877 and 1878. Appellants purchased from Gibson the oats and corn raised on the farm in the year 1878, and paid him the money therefor; and this action is brought to recover the price and value of the crop of oats and corn of 1878 raiséd by James H. Gibson, as tenant of appellee, and sold to appellants. There is no controversy as to the grain being raised on appellee’s land, nor to his having the usual lien thereon as landlord up to a certain time. But it is insisted by appellants that the appellee is estopped by the action of McOlintock, the son-in-law of appellee, who, as is claimed by appellants, was the general agent of appellee to transact his business, look after his farm and tenant, and collect the rents; that they purchased the corn and oats from Gibson and paid him the money with the consent of McClintock. There are two questions of fact in the case; first, was McClincoclc the agent of appellee to look after the farm and to collect the rent? Second, if he was, did he consent that appellants might purchase the oats and com of Gibson, the tenant, and pay him therefor? These questions of fact were submitted to the jury, and verdict and judgment for appellee; from which verdict and judgment this appeal is taken. There being a conflict in the evidence “ It was necessary that the instructions should not only be accurate, but also clear and perspicuous. They should aid the jury in arriving at a correct conclusion, and should not be calculated to mislead or leave them in doubt as to the law-arising upon the evidence.” Leonard W. Volk v. James A. Roche, 70 Ill. 297. There was manifest error in the 1st, 2d, 3d, 4th, 5th, 6th and 7th of appellee’s instructions, also in the modifications of appellants’ instructions. We shall notice each, but not in their order, and as this cause will have to be submitted to another jury we will not further refer to the facts.

The second of appellee’s instructions was erroneous. It informed the jury that appellee should recover unless “he has conveyed or released his lien in some mode known to the law as hereinafter pointed out in other instructions. A jury might have some idea of conveyance and release, but they would have never understood from this instruction that the lien could be waived or lost by estoppel. The defense of the appellants was based on the idea of an estoppel — that Mc-Clintock was the agent of appellee to look after the farm and collect the rents, and that they purchased and paid for the oats and corn with his consent to Gibson. If that claim was true then appellee was estopped. Doan et al. v. Duncan, 17 Ill. 274; Noble v. Nugent, 89 Ill. 524; Goeing et al. v. Outhouse et al., 95 Ill. 346.

The 5th instruction is of like character and is erroneous. It informed the jury “in order to bind the appellee by anything McClintock did or said it was incumbent on appellants to show by the evidence that appellee authorized McOlintock to waive or release appellee’s lien.” . This instruction says to the jury, that it is not enough that the proof shows that Mc-Olintock was the general agent of appellee to attend to his business and collect these rents; even if yon believe that, you must further find from the evidence that appellee specifically authorized him to waive or release the lien. This instruction virtually swept away the whole theory of the defense of estoppel. Whether the principal gave specific authority to his agent to do or say anything or not that would estop him from collecting his rent, he would still be bound by the acts of his agent within the apparent scope of his agency. In the case of Goeing et ah v. Outhouse et al., supra, King, the agent, had no specific authority to tell the falsehood he did; but it was held the principal was estopped, although the statements and action of the agent were a falsehood and a fraud as to him.

By the last clause of the sixth instruction, McOlintock’s own testimony in this case is proper and legitimate evidence, but not the declarations made on other occasions in the absence of the plaintiff.” The jury were in effect told to disregard every statement made by McOlintock out of the hearinz of appellee, no matter if he was the agent of appellee and made the statement, and in relation to the same while acting as such agent, when engaged in and about appellee’s business; thus excluding from the jury the statements of McOlintock to the appellants in regard to the purchase from Gibson and payment to him of the money for the oats and corn; although the jury might have believed from the evidence that McOlintock was the agent of appellee to look after the farm and the rents. This was manifest error.

The seventh instruction tells the jury “ and even if the jury find from the evidence that McOlintock was 'authorized to collect the rents of 1878, this would not constitute McOlintock the agent with power to waive the lien of plaintiff or to permit the sale of the grain without the payment of the rents. In order to constitute him an agent for that purpose, he must have had special authority to give the permission or waive the lien, or general authority, express or implied, broad enough to include it.” This instruction in this respect ignored the distinction between cases where the question at issue concerned the relative rights and liabilities of the principal and agent only, and those which concerned the principal and third parties. An agent may make himself liable to his principal for an act done in excess of his authority, and yet the principal be responsible to third persons for the act if done within the scope of the agent’s apparent authority. This objection applies equally to the 1st, 2d, 4th, and 5th of appellee’s instructions; they each ignore this distinction. They all proceed upon the theory that in order to charge the principal with the acts of the agent, the agent must have had express authority from his principal to do the act. This is not the law as held in Doan et al. v. Duncan and Goeing et al. v. Outhouse et al. supra.

The same objection applies to the modification of defendants’ 2d, 3d, 4th, 5th, 6th, 7th and 8th instructions. The modification should not have been made, and the 1st, 2d, 4th, 5th, 6th and 7th of appellee’s instructions should have been refused-For the errors indicated the cause is reversed and remanded.


source: Caselaw Access Project

author: Welch, J.

license: Public Domain

text:
    Levi Meiers v. A. W. H. Reen.
    Assumpsit. — As there was no evidence of payment or set-off suffi lent to defeat plaintiff’s right of recovery it was error in the court not to instruct the jury to find for the plaintiff the amount due.
    Error to the County County of Peoria county; the Hon. L. W. James, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. W. G. Randall and Mr. I. J. Levinson, for plaintiff in error;
    cited Wallace v. Rappleye, 103 Ill. 253.
    Mr. John B. Stevens and Mr. Nicholas Ulrich, for defendant in error.
   Welch, J.

This was an action of assumpsit brought before a j ustice of the peace by appellant against appellee and appealed to the Peoria County Court, to recover a balance of nine dollars and fifty cents due him on a sale to defendant of a watch and chain valued at nineteen dollars and fifty cents on which defendant had paid ten dollars in cash, and sought to show payment of the balance of nine dollars and fifty cents, with a bill he held against the son of appellant. On the trial in the Peoria County Court a verdict was rendered in favor of appellee; motion for new trial; motion overruled, and judgment in favor of the appellee for costs; from which judgment this appeal is prosecuted.

There is no dispute that defendant purchased from the plaintiff’s clerk at plaintiff’s store in the absence of plaintiff the goods mentioned; that the price was nineteen dollars and fifty cents, and that he paid on the account ten dollars, leaving a balance due on the goods of nine dollars and fifty cents. Has this balance ever been paid? To show payment the defendant claims that plaintiff’s son, Gabriel, owed him a debt contracted in 1878 or 1879, of which the son paid a part leaving a balance of some nine dollars and seventy cents. That in a conversation with the plaintiff about this indebtedness of the son and while the son was the owner of the store, the plaintiff said to the defendant, “ Why don’t you come to the store and take it out?” Some one or two years after this conversation, and after the son had parted with his interest in the business, he went to the plaintiff’s store and in his absence purchased and received from plaintiff’s clerk'the goods, for the balance due on which this suit is brought. Nothing was said by the defendant at the time of the purchase in regard to the claim he held against the son or that the same was to be taken in part payment of the goods. The goods were charged by the clerk to the defendant, and when the bill was presented to him by the clerk for payment he paid ten dollars and claimed that the amount due to him on the son’s account should be credited as a payment for the balance due on the plaintiff’s account against him. The clerk did as requested by the defendant and gave him a receipt for the account. On reporting his action to the plaintiff, the plaintiff immediately disaffirmed the action of the clerk, of which the defendant was immediately notified by the clerk and he surrendered to the clerk the receipt.

The claim of the defendant was clearly within the first section of chapter 59, Bevised Statutes. If the plaintiff ever made the promise as claimed by the defendant no legal liability was created thereby. It can not be said in this case that the promise has been executed. All the evidence negatives any such execution. There was no evidence of payment or of set-off sufficient to defeat plaintiff’s right of recovery for the balance due on his account, and the circuit court erred in not excluding from the jury all of the evidence offered by the defendant, and in not instructing the jury to find for the plaintiff the amount of his account less the sum of ten dollars cash paid, and in not granting a new trial. For these reasons the cause is reversed. In the view we take of this case, the defendant presenting no valid defense to the plaintiff’s claim, the appellant was entitled to a judgment for the sum of nine dollars and fifty cents and costs. A judgment for that sum is ordered to be entered in this court in favor of the appellant and for the costs of tills court and for the costs in the county court and justice’s court.


text:
    Robert Scott v. Sylvester Fleming.
    1. Assault and battery. — Words spoken are no justification for an assault and battery.

      2. Words spoken — mitigation op damages. — An instruction that “while it is true that words alone and threats will not justify an assault and battery, still they may be properly considered in mitigation of damages.” Held, erroneous. To allow the words spoken in effect to mitigate actual damages would be virtually to allow them to be used as a defense.
    Appeal from the Circuit Court of Mercer county; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. B. C. Tallaferro, for appellant.

      Mr. John C. Pepper, for appellee.
   Welch, J.

This was an action of trespass brought by appellant against the appellee for an assault and battery committed upon his person. General issue pleaded; there was a trial and the jury found a verdict for the appellee; motion for a new tidal; motion overruled and judgment for appellee for costs, from which judgment this appeal is prosecuted.

The appellant and appellee had known each other for some twenty years. Appellant had boarded with appellee one year, eight months and five days. He quit boarding with appellee on the 13th day of December, 1882. Appellee went to the residence of appellant to settle with him, and, as claimed by appellee, a controversy arose between them in regard to the price to be charged for board. Appellant insisted that the price was two dollars per week and appellee claimed that it was three dollars and twentj’-five cents. Appellant claimed that the agreement with the wife of appellee was two dollars per week. Appellee denied any such agreement, and, as claimed by appellee, appellant called the wife of appellee a God-damned liar, when appellee struck appellant a severe blow, causing the blood to flow from the wound. The blow, as claimed by appellee, was inflicted for the insulting words spoken in regard to his wife. The law is that words spoken are no justification for an assault and batterjn Sorgenfrei v. Schroeder, 75 Ill. 397; Abt v. Burgheim, 80 Ill. 92; Donnelly v. Harris et al., 41 Ill. 126. The court, at the instance of appellee, gave to the jury the following instruction, Ho. 3: The jury is instructed that while it is true that while words alone and threats will not justify an assault and battery, still they may be properly considered in mitigation of damages. And if the jury believe from the evidence that just before the assault complained of the plaintiff used words of insult, and such as were calculated to provoke a breach of the peace, and misused the defendant and threatened him and abused his wife, and used insulting language of and concerning her, then such facts and circumstances are proper to be taken into consideration by the jury in mitigation of damages, in case the jury find the defendant guilty. In Donnelly v. Harris et al., 41 Ill. 126, a sirpilar instruction was condemned. In that case an instruction in the following words, “ The jury are instructed that words spoken are no justification for blows, and that the words proven to have been spoken are no justification for the arrest and imprisonment of the plaintiff,” the court modified by adding the words, “but they may be considered by the jury in mitigation of damages.” The Supreme Court say: “Had the modification been limited to exemplary damages it would have been correct, but it might well have been considered by the jury as applying to actual damages and would have been misleading. To allow them in effect to mitigate actual damages would be virtually to allow them to be used as a defense. To say they constitute no defense, and then say they mitigate all but nominal damages, would, we think, be doing by indirection what has been prohibited from being done directly. To give words this effect would be to abrogate in effect one of the most firmly established rules of the law.” Under this authority the instruction given above for appellee was clearly erroneous and should not liave been given.

It is also insisted by appellant’s counsel that instructions number one and two, given for appellee, should not have been given. Under the pleadings in this case — there being no plea of justification — these instructions were unauthorized upon any issue presented. But the second instruction given upon the part of the plaintiff is drawn upon the same theory of the right to self-defense as those of appellee, of which he now complains. He is estopped from making the objection.

Under the evidence in this case, appellant was entitled to recover actual damages. The court erred in giving the third instruction for appellee and in overruling appellant’s motion for a new trial and entering judgment.

For the errors indicated the judgment will be reversed and the cause remanded.


author: Welch J.

text:
    Town of Kankakee v. Kankakee & Indiana R. R. Co.
    Officer of town bringing suit — Statute.—The provisions of ihe statute (Ch. 189, § 3, par. 3 and 4), that the electors at the annual town meeting shall have power to provide for the institution, defense or disposition of suits at law or in equity in all controversies between the town and any other town, or any individual or corporation in which the town is interested, is a restriction on the right to bring suits, and no person or officer of the town can, without their authority, bring suit.
    Appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. Stephen R. Moore, for appellant;
    cited Cooper v. Town of Delavan, 61 Ill. 96.
    Mr. Thomas P. Bonfield, for appellee;
    cited Fry v. Calhoun Co., 14 Ill. 132.
   Welch J.

This was a bill filed in the name of appellant by Stephen R. Moore as solicitor. The bill states that the complainant is a municipal township. That under authority of law the township became a subscriber to the capital stock of the Kankakee and Indiana Railroad Company to the amount of $30,000 on November 1, 1871, and paid for the same by township bonds. That the total capital stock was $92,400. That Aroma township took $36,500 thereof and that the remaining $25,900 was never taken and paid for, but $900 thereof was taken by certain named individuals to hold and control the organization. That the road was built from Kankakee to St. Anne at a cost of $65,800. That it was built in November and December, 1871. That the---- and Chicago Railroad Company was organized March 1,1872, by act of the legislature, to build a railroad from St. Anne eastward to Iroquois county. That there was an attempt to consolidate these tsvo roads prior to 1873, and that it is claimed that they were consolidated, charges a fraudulent combination to cheat and defraud the complainant and prays for an accounting to be made, and that complainant’s stock be awarded its proportionate share of the earnings. Summons issued and served July 24, 1884. On September 25, 1884, amotion was made by the defendant to dismiss the suit because it had been instituted by Stephen B. Moore by direction and authority of the supervisor of the town, and that neither Moore nor the supervisor nor any other person liad any authority from the electors of the town of Kankakee to institute such suit. Motion supported by affidavit. On the hearing of the motion to dismiss, the affidavit of Solon Knight, the supervisor of the town, was read. He states that acting as he believed for the best interests of the town, he employed Stephen B. Moore for the town, to file the bill and reported to the board of town auditors all his acts and the acts of Stephen B. Moore in the premises, and that they were all approved by the board of town auditors. The motion to dismiss was sustained and the bill dismissed; from which order sustaining the motion and dismissing the bill this appeal is taken. Had the supervisor of the town of Kankakee the right- to institute this suit without authority of the electors of the town? Whatever authority the supervisor has is given him by the statute. Section 3, article 11, chapter 139, “Township Organization,” provides that “he shall prosecute in the name of his town, or otherwise as may be necessary, for all penalties or forfeitures given by law to such town, or for its use, and for which no other officer is specially directed to prosecute, except as may be otherwise directed by the town meeting.” This is all the power given to the supervisor to bring suits, and it is limited to penalties and forfeitures except as may otherwise be directed by the town meeting. Under this section no power is conferred upon the supervisor to institute this suit. Section 4, Art. 13, Chap. 139, supra, provides for the auditing and examining of the accounts of the supervisor, overseers of the poor and the commissioners of highways, for all moneys received or disbursed by them, and for auditing all claims against the town and the compensation of all town officers. Ho power is here given to the supervisor to bring suit nor to the board of auditors to authorize him to bring suit. Clause 4 of paragraph or subsection 3 of section 3 of chapter 139, supra, provides that “ the electors present at the annual town meeting shall have power * * * to direct the raising of money by taxation for the following purposes: "" * * for. the prosecution or defense of suits by or against the town, or in which it is interested.” Subsection 4 of section 3 of the same article and chapter is in the following language: To provide for the institution, defense or disposition of suits at law or in equity, in all controversies between the town and any other town, or any indi vidual or corporation, in which the town is interested.” Under these provisions the electors of the town have the power at the annual towm meeting to direct the raising of money by taxation for the prosecution of suits by and against the town, and to provide for the institution and defense or disposition of all suits.

We are referred to the case of Cooper et al. v. Town of Delavan, 61 Ill. 96. In that case Cooper and Moss were employed by the supervisor of Delavan to bring a suit for an injunction to stay the collection of certain taxes. They sued the town for their fees. Tiie town defended upon the ground that they were employed by the supervisor, and that lie had no legal authority to do so. The town was held liable. That case was decided in 1871. Since then the statute has been changed. The section that provides that the electors at the annual town meeting shall have power to provide for the institution, defense or disposition of suits at law or in equity in all controversies between the town and any other town or any individual or corporation in which the town is interested, has been added to the statute, and was manifestly intended to be a restriction on the right to bring suits. The power being expressly given to the electors of the town to make provision for bringing suit, no person or-officer of the town could, without their authority, bring suit. Ho authority havina: been shown in this case from them, there was no error in dismissing the bill. Frye v. County of Calhoun, 14 Ill. 132,

Decree affirmed.


text:
    Hannah K. Eads v. Mary Mason et al.
    1. Administration — Insolvent estate — Equity.—Under our statute an execution can not issue on a judgment against; an administrator, but, the judgment is to be pa d in due course of administration as all other claims against the estate. Wnere the estate is insolvent the complainant can not obtain payment in the latter mode and his only remedy is to proceed in equity.
    2. Administrator — Gift—Fraud.—An administrator can not avoid a voluntary deed of his intestate, nor can he take advantage of a fraudulent conveyance made by his intestate. Where a gift of bank stock by the intestate to his wife was fraudulent as to pre-existing creditors, they alone can reach it.
    8. Partnership — Creditor proceeding against estate. — The creditor has the right to proceed against the estate at any time before the Statute of Limitations has run, and a failure to pursue the partnership assets can not be relied upon as a defense when suit is brought against the estate.
    3- Fraudulent gift — Decree.—The court is of opinion that the transfer of the bank stock to plaintiff in error was a gift from her husband, and as such fraudulent as to his creditors at the time of said gift. But the stock having been sold and in the hands of an innocent holder without notice,it cannot be decreed to be surrendered up, andapersonal decree should be rendered against plaintiff in error for the amount realized by her on the sale of the stock, with interest only from the date of the decree, and not from the date of the receipt of the money.
    Error to the Circuit Court of Knox county; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. McKenzie & Calkins, for plaintiff in error;
    that a creditor’s bill can not be maintained against a living creditor until execution has been returned nulla bona, cited C., D. & V. R. R. Co. v. Town of St. Anna, 101 Ill. 151; Bowen v. Parkhurst, 24 Ill. 257; Newman v. Willetts, 52 Ill. 98; Moshier v. Meek, 80 Ill. 79; Greenway v. Thomas, 14 Ill. 271; Goembel v. Arnett, 100 Ill. 34.
    Messrs. Sanford & Carnet and Messrs. Williams & Lawrence, for defendants in error;
    that the suit was not prematurely brought, cited McDowell v. Cochran, 11 Ill. 33; Bay v. Cook, 31 Ill. 348; Mugge v. Ewing, 54 Ill. 236; Mitchell v. Mayo, 16 Ill. 83; Propst v. Meadows, 13 Ill. 157; Doggett v. Dill, 108 Ill. 560; Choteau v. Jones, 11 Ill. 319.
   Welch, J.

This was a bill in chancery, filed by the defendants in error,"to set aside as fraudulent the conveyance by John Eads, deceased, of $2,000 worth of bank stock to his wife, the plaintiff in error. The defendants in error are unsatisfied creditors of the firm of J. & E. T. Eads, of which firm John Eads, deceased, was a member. John Eads, on September 1, 1879, gave to his wife, plaintiff in error, ten shares of the capital stock of the First National Bank of Knoxville, Illinois, and on that day transferred the same to her on the stock books of the bank. On the 18th day of September, 1879, he departed this life intestate. On the 27th day of October, 1879, plaintiff in error sold and transferred the said ten shares of stock to Charles N. Leffingwell, for $2,000, cash, which she then received. Leffingwell had no notice of the insolvency of John Eads’ estate. At the time of his death John Eads was a member of the mercantile firm of J. & E. T. Eads, composed of John Eads and his son, Elisha T. Eads. The property of the firm consisted of a stock of dry goods and the notes and accounts due it, but no real estate. Immediately after the death of John Eads, Elisha T. Eads, surviving partner, proceeded to settle up the partnership business, as required by statute. December 3, 1879, J. S. Simpson was appointed administrator of the estate of John Eads, by the County Court of Knox county. On the same day appraisers were appointed, and on the 12th day of January, 1880, the administrator filed in' the county court an inventory of the property, real and personal, of the estate, which was approved by the court February 16,1880, there was allowed individual claims against the estate amounting to $4,367.15, and firm claims amounting to $11,928.91. In April, 1830, the surviving partner paid on the firm claims allowed, not including interest, twenty-five per cent. And in April, 1881, he paid 4.66 (nearly five) per cent, of same allowances, which fully exhausted the partnership assets. The surviving partner had no individual property except such as was exempt from execution. The administrator sold all the undivided property of the deceased, and reported the sale to the county court, and it was approved. On July 28, 1880, said administrator reported to the court the condition of the estate, and was ordered to pay all of the individual indebtedness, which he did. And in pursuance of an order of the county court, he paid on the partnership claims allowed against the estate, January 25, 1881, twenty-five per cent., and on February 27, 1881, twenty-five and one fourth per cent, of the same indebtedness, which payments, together with the widow’s specific allowance, costs and expenses of the settlement of the estate, exhausted all the assets of the estate.

There has been paid on the partnership claims allowed 29.66 per cent, by the surviving partner, and 50.25 per cent, by the administrator, leaving unpaid 20.09 per cent thereof, together with accumulated interest on said allowance since February 16, 1880; after exhausting all of the individual assets, February 27, 1882, the estate was declared insolvent by the county court. On the hearing of this cause in the circuit court upon bill, answer, replication and proof, the court found the transfer of this stock fraudulent, and decreed that plaintiff in error should pay over to the master in chancery, for the use of the partnership creditors, the $2,000 and six per cent, interest from the time of its receipt. From which decree this writ of error is prosecuted.

It is insisted that section 48, chapter 22, Revised Stat., requires that before such a bill could be filed an execution should have been returned nulla iona, in whole or in part, and that no such execution having been issued, the bill was prematurely filed. This position is not tenable. In McDowell v. Cochran, 11 Ill. 33, Justice Treat says: “ Ordinarily an execution must issue on the judgment and be returned unsatisfied, before a court of equity will entertain a bill to reach real estate in which the judgment debtor has not such an interest as can be sold on execution. But the present case is an exception to that rule. The complainant has already exhausted his legal remedies without success. Under our statute an execution can not issue on a judgment against an administrator, but the judgment is to be paid in due course of administration, as all other claims against the estate. The estate being insolvent, the complainant can not obtain payment in the latter mode. His only remedy, therefore, is to proceed in equity against the land, and to that on the showing of the bill he is clearly entitled.” The allowance of a claim against an estate by the county court is a judgment. Propst v. Meadows, 13 Ill. 157; Mitchell v. Mayo, 16 Ill. 84. If the gift of this bank stock was fraudulent as to pre-existing creditors, they alone can reach it. An administrator can not avoid a voluntary deed of his intestate, nor can he take advantage of a fraudulent conveyance made by his intestate. Choteau v. Jones, 11 Ill. 300.

It is further insisted by the plaintiff in error that the partnership claims could not be proved against the estate until the partnership assets had been exhausted. Justice Craig, in Silverman v. Chase, Ex’r, 90 Ill. 41, says: “We do not regard the position tenable. A partnership debt is joint and several, and the creditor has the right to elect whether he will proceed against the assets in the hand of the surviving partner or against the estate of the deceased partner, as held by this court in Mason v. Tiffany, 45 Ill. 392. The creditor has the right to proceed against the estate at any time before the Statute of Limitation has run, and the failure to pursue the partnership assets can not be relied upon as a defense when suit is brought against the estate.” The same rule is announced in Doggett, Ex’r, v. Dill, 108 Ill. 560. These authorities fully establish the right of defendant in error to commence this suit when they did. They were creditors of the firm, and as such, creditors of John Eads September 1, 1879, when the bank stock was given plaintiff in error. Their claims were allowed against the estate of John Eads, February 16, 1381. The firm was insolvent, paying only 29.66 per cent, of the partnership debts allowed, and the surviving partner having no property liable to execution, except his interest in the partnership effects. John Eads’ estate was insolvent to such an extent that after paying his individual indebtedness, the balance of the assets of the estate, together with all of the partnership assets, paid only 79.91 per cent. These facts were all shown on the hearing.

It was further insisted that defendants in error had no right to file their bill till after the settlement of the estate and the deficit had been thus definitely determined. Their right to sue depended upon the insolvency of Eads at the time of the gift. It might have been more difficult to furnish the proof of such insolvency before than after the settlement, but the settlement in this case having been made before the hear!no-, conclusively established that fact. Plaintiff in error, during the hearing of the cause, amended her answer, setting up that at the time of her marriage with Eads she was guardian of her three children, and as such had in her hands over two thousand dollars of her wards’ money,which she then turned over to Eads, and that he, thereafter, had the exclusive control and management of the said funds, and that he had never paid the same over to said wards or to her, unless the same be regarded as paid by means of the transfer of the bank stock in controversy. .That she and her three wards were the owners in fee of the south 13 feet of the north 65 feet of lot 6, in block 7, in Knoxville; that the jmarly rental thereof was $100; that for said money she was responsible to her wards; that all of said rent was received and retained by John Eads, and that in 1869 the lot was sold for §450, and the money received and retained by Eads; that she is responsible to said wards for said money, and that she had the right to receive all of said money from John Eads at the time of the transfer of the bank stock to her.

It is shown by the evidence in this case that the plaintiff in error was married to John Eads in 1854. That on March 20, 1851, she made a report to the County Court of Knox county as guardian for said wards, in which she charged herself with $2,282.90, their distributive share in the personal estate of their father. On the 30th of November, 1861, she tiled her report as guardian with said county court and settled in full with two of her wards, Elizabetli P. Craig and Henrietta C. Harvey, and there was, at that time, an order of the county court approving such report, and discharging her from further service as guardian for them. On the 22d day of March, 1871, she filed a further report as to her other ward, C. K. Harvey, with said county court, together with his receipt for $850 in full of moneys in her hands as guardian; which report was approved, and an order made by the county court that said guardianship be, and is, hereby declared settled, and that said guardian be, and is, hereby discharged from further service or liability herein.

Plaintiff in error also claims in her answer that she had a homestead in a four-acre tract, and had the right to the rents and profits exclusively; that her husband from the time of their marriage, in 1854, to his death, used and occupied the premises, and that she had a just and equitable claim against him of at least $5,000 for such use and occupancy, and that he was influenced to make the transfer of said bank stock upon the consideration of such indebtedness. There were two children born to her after her marriage to Eads prior to 1861. Hnder the law Eads was entitled in his own right, to the possession, use and occupation, rents and profits of whatever interest she had in the premises. There is no evidence in this record that anything was ever said by Eads or plaintiff in error as to any indebtedness on his part to her for the use and occupation of the premises. We are of the opinion that there is no foundation in fact, in law, or in equity, for the claim set up in her answer as furnishing a consideration for the transfer of this bank stock to her. In our opinion the evidence conclusively shows that the transfer of the bank stock to her was a gift from Eads, and as such frandulent as to the defendants in error, who were his creditors at the time of said gift. This stock having been sold, and in the hands of an innocent holder without notice, can not be decz’eed to be suz’Z'endered up. It having been converted into money by the plaintiff in eiTOZ, a personal deez’ee should have been rendered against her for the suzn of $2,000, the amount realized by her on the sale of the stock, with intei’est only from the date of the decree and not from the date of the receipt of the money. Her right to this money was never deterznined against her until the rendition of the decree. The gift was valid and binding as to Eads and his heirs and only fraudulent as to creditors, and the amount of the gift without interest is ail that the cz-editors have a right to receive. The decree, in so far as it allows interest from the tizne the money was i'eceived to the date of the decree, was erroneous.

For this error the cause is reversed and remanded, with directions to modify the decree in conforznity with this opinion.


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    Henrietta Breese v. Thomas Poole et al.
    Highways — Failure of supervisor to file final order. — Where, after the filing of the final order, establishing a road, by the highway commissioners with the town clerk, an appeal was taken to three supervisors of the county, and they met and signed and left with a justice of the peace what purported to be a final order establishing the road, and he filed the same in his office. Held, that the failure on the part of the supervisors within ten days to file a final order establishing the road, with the town clerk, as required by statute, operates as an abandonment of the proceeding.
    Appeal from the Circuit Court of La Salle county; the Hon, George W. Stipp, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. Richolson & Gentleman, for appellant;
    cited Allison v. Com'rs, 54 Ill. 172,

      When an appeal has been taken from the order of the commissioners to three supervisors of the county, the record of the proceedings of the supervisors and their final order properly certified determine as to whether or not a legal highway exists: Frizell v. Rogers, 82 Ill. 109; Hankins v. Calloway, 88 Ill. 155; Commissioners v. Barry, 66 Ill. 499; McIntyre v. Storey, 80 Ill. 131; Owens et al. v. Crossett, 105 Ill. 354; Wood v. Commissioners, 62 Ill. 395; Commissioners v. Durham, 43 Ill. 90; Hyslop v. Finch, 99 Ill. 183; Commissioners v. Harper, 38 Ill. 103; Keech v. People, 22 Ill. 482; Corley v. Kennedy, 28 Ill. 149; Tower v. Pitstick, 55 Ill. 117.
    Mr. M. T. Moloney, for appellee.
   Welch, J.

This was a bill for an injunction filed by appellant against the appellees. A temporary writ of injunction was awarded. The bill states that appellant was the owner in fee of forty acres of land; that she resided upon it, and the same was her homestead; that the appellees, on the 2d day of August, 18S2, served her with a written notice signed by them as highway commissioners of Serena township, La Salle county, requiring her"to remove her fences on the west side of said land, so as to open, as claimed by them, a public highway across her land; that the same be done on or before the 2d day of October, 1882, and threatening that if it was not done by her they would enter her close and tear down and destroy her fences on said west side of her land, thereby exposing her grain and growing crops to destruction. The bill further states that there had been no order legally establishing any highway upon said land, and that the claim of appellees of the right to enter the close of appellant and to tear down and destroy her fences for the purpose of opening a public highway, was a mere pretense having no foundation in fact or in law. The appellees answered the bill admitting the threatened injury complained of and justifying their threatened invasion of appellant’s private property, by alleging that they were commissioners of highways of the town of Serena, and that by the records of said town it would appear that the locus in quo was a public highway, duly laid out and established according to law; which highway they were proceeding to open as they lawfully might do in the discharge of an official duty.

The cause was heard on bill, answer, replication and proofs, and the court found the issue for the appellees and dismissed the bill, continuing the injunction in force during the pend-ency of the appeal. The important question of issue between the parties to .this cause is as to the existence of a public highway upon the locus in quo. On this issue the burden of proof was upon the appellees. McIntyre et al. v. Storey, 80 Ill. 129.

To the proceedings seeking to establish this as a public highway various exceptions were taken by appellant. We shall not undertake to pass upon them seriatim. There was one exception that we consider decisive. The record of the proceedings to establish the proposed highway discloses the fact that after the filing of the final order by the highway commissioners with the town clerk, an appeal was taken to three supervisors of the county; that the supervisors met on the 25th day of August, 18S2, examined the route and heard reasons for and against the laying out of said road, and then separated; and that on the 13th day of September they met and signed and left with Thomas Ladkin, a justice of the peace, what purports to be a final order establishing the road and he filed the same in his office. No final order has been filed with the town clerk. Section 38 of the road law of 1879 provides that the final order, signed by the commissioners, shall, within ten days from the date of such order, he deposited and filed with the town clerk. In Town v. The Town of Blackberry, 29 Ill. 137, Allison v. Commissioners of Highways. 54 Ill. 170, and Commissioners, etc., v. Barry, 66 Ill. 499, it was held that the order should he filed within a reasonable time, and that a failure in this respect would be an abandonment of the proceeding. No specified time was required by the statute within which to file the order of the commissioners establishing the road, in the office of the town merit, when the above decisions were rendered. Yet it was held that the order must be filed within a reasonable time, and a failure to do so was an abandonment of the proceeding. The statute under which these proceedings were instituted limits the time to ten days from its date, within which the commissioners shall deposit and file with the town clerk their final order. A failure on their part to deposit and file with the town clerk their final order within ten days from its date, would be an abandonment of the proceeding. “By the appeal the supervisors became vested with jurisdiction to hear and decide. It became a new case.” Allison v. Commissioners, 54 Ill. 170. When an appeal has been taken from an order of the highway commissioners, to three supervisors of the county, the record of the proceedings of the supervisors and their final order, properly certified, determines as to whether or not a legal highway exists. The supervisors, on an appeal, are clothed with the same powers and are charged with the same duties as the highway commissioners, in establishing a road, (sections 99 and 100, act of 1870); they are required, like the commissioners, within ten days after the date of their final order, to deposit and file it,with the town clerk, and a failure on their part to do so would be the same as that of the highway commissioners — would be an abandonment of proceedings. In this case the supervisors failed to file their final order within ten days from its date with the town clerk; the filing of a copy was not a compliance with the statute. A. J. Alexander et al. v. Rubensam, 12 Bradwell, 121; Supervisors v. Magoon, 109 Ill. 142. No final order has ever been filed with the town clerk by the supervisors.

Appellees alleged the existence of a highway over the locus in quo as a justification of their threatened interference with the possession of appellant. In our view of this case appellees have wholly failed to show the existence of a highway, no valid order of the supervisors having been made establishing it. In our opinion the circuit court erred .in finding the issues against appellant, and in dismissing her bill, and in not entering a decree awarding a perpetual injunction in conformity with the prayer of the bill. The decree is reversed and the cause remanded with directions that an order be made making the injunction perpetual.


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    Erasmus D. Hartshorn et al. v. Thomas B. Kinsman.
    Unliquidated damages— Set-obb. — Unliquidated damages which do not arise out of the contract or cause of action sued on, are not a proper subject of set-off.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. Kay & Euans, for appellants;
    as to set-off, cited Hawks v. Lands, 3 Gilm. 232; Edwards v. Todd, 1 Scam. 462; Nichols v. Ruckells, 3 Scam. 298; McEwen v. Kerfoot, 37 Ill. 530; Springdale, C. A. v. Smith, 32 Ill. 253; King v. Bradley, 44 Ill. 342; Derby v. Gage, 38 Ill. 30; Freibroth v. Mann, 70 Ill. 526; Zuckerman v. Solomon, 73 Ill. 130.
    Messrs. Doyle, Morris & Pierson, for appellee;
    as to set-off, cited Sanger v. Fincher, 27 Ill. 346; Babcock v. Trice, 18 Ill. 422; Waterman v. Clark, 76 Ill. 430; Hawks v. Lands, 3 Gil. 232; Sargeant v. Kellogg et al., 5 Gil. 280; Bush v. Kindred, 20 Ill. 95; Evans v. Hughey, 76 Ill. 115.
   Welch, J.

On 8th day of January, 1884, appellants sued appellee before a justice ot" the peace, upon a promissory note and account. The note was given in part for an account and for the interest that had accrued upon a note, and which was all that remained unpaid upon a note executed by appellee to appellants for the purchase of a self-binding harvester. While this suit was pending, appellee sued the appellants for a breach of the warranty made by appellants on the purchase of the self-binding harvester. Sammons was served on the appellee in the suit brought by appellants against him, and he failed to appear, but made default, and judgment was rendered in that suit in favor of appellants for the sum of fifty-one dollars and ninety-three cents. A credit of seventeen dollars and seven cents was allowed by appellants on their claim against appellee for damages on breach of warranty. Appellee was not present when it was done. It is insisted by appellants that under section 49 of chapter 74, Revised Statutes, it was the duty of the appellee to bring forward in this suit against him his claim for damages, arising out of any breach of the warranty of. the harvester, and that he having failed to do so, is debarred from suing thereon. If this position of appellants is tenable, it is decisive of this case. We have given to the authorities referred to in the briefs of appellants and appellee a careful consideration, and we find that there is an apparent conflict in the decisions of our Supreme Court upon the subject. We are, however, of the opinion that this conflict is more apparent than real, and that it arises from some unguarded expressions where the distinction between set-off and recoupment seems to have been ignored and the terms used synonymously. The Supreme Court say, in Hawks v. Lands, 3 Gilman, 227, that “ the cases of Elwards v. Todd, 1 Scammon, 462 and Nichols v. Ruckells, 3 Scammon, 298, have only gone the length of deciding that damages arising out of the contract on which the suit is brought are properly the subject-matter of set-off in such suit.” And it is held in the same case that unliquidated damages arising out of covenants, contracts or torts, totally disconnected with the subject-matter of the plaintiff’s claim, are not such “claims or demands” as constitute the subject-matter of set-off under our act of assembly. “In case of Surgeant v. Kellogg et al., 5 Gil. 273, it was held, that under the statute of this State unliquidated dama -es arising out of contracts, express or implied, may be set off in actions ex eontraetto. This can not be done where the claim for unliquidated damages is totally disconnected with the plaintiff’s cause of action. The same question that is made in this case was before the Supreme Court in Bush v. Kindred, 20 Ill. 93. The declaration in that case contained special counts for damages-claiined as growing out of a breach of contract, and the common counts in the usual form, to which the defendant filed several ¡deas. The fifth plea was that the defendant, before this suit was instituted, had sued the plaintiff before a justice of the peace and recovered a judgment against him, and that the cause of action in this case then existed, and could have been set off in that trial, and failing to do so, that that judgment was a bar to this action.

The court say, “ It was urged that this cause of action was barred by the plaintiff having failed to set off the damages claimed in the suit between the same parties before the justice of the peace. The claim is for unliquidated damages growing out of a breach of contract between the parties; that suit was upon claims apparently totally disconnected with this contract, and if the damages claimed in this action were proper as a set-off before the justice, there can be no case in which unliquidated damages growing out of a breach of covenant, contract or tort, could not be set off. It is manifest the legislature never intended to confer such jurisdiction upon justices of the peace.” In Sanger, Camp et al. v. Fincher, adm’x, etc., 27 Ill. 346, Justice Walker in his opinion says, “ But it is, however, urged that these damages were unliquidated. Our statute seems to make no distinction, as it allows a set-off of claims or demands. It has not limited the right to liquidated claims or demands. That the claim or demand should relate to the transaction out of which the controversy has grown, where the damages are unliquidated, seems to be the construction placed upon the act.” In Springdale Cemetery Association v. Smith et al., 32 Ill. 258, it was announced that if damages sustained by the defendant by reason of noncompliance with the contract on the part of the plaintiff, exceed the amount which the plaintiff would otherwise be entitled to recover, the defendant may recover such excess in the same action. In De Forrest v. Oder, 42 Ill. 500, it was held that unliquidated damages which do not grow out of the contract or cause of action sued upon are not a proper subject of set-off. To authorize such damages to be recouped or set off, they must grow out of the transaction upon which the suit is brought. In East v. Crow, 70 Ill. 91, the set-off was for work and labor done, goods sold and delivered, money lent, etc., and not for unliquidated damages.

From the foregoing' authorities we deduce the rule that unliquidated damages which do not arise out of the contract or cause of action sued on, are not a proper subject of set-off; they must arise out of the transaction upon which the suit is brought.

Applying the rule to this case, the plaintiff was not required to bring forward his claim for damages in the suit brought by the appellants against him, and is not, therefore, barred from bringing this suit, the appellee’s claim not arising out of the contract or cause of action upon which he was sued by the appellants.

It is further insisted that the judgment is for too much. The verdict was rendered the 26th day of November, 1881, for the sum of one hundred and fiity dollars. Motion for new trial, which was not disposed of until March 11, 1835, and judgment entered on that day for one hundred and tiftvtwo dollars and sixty-two cents, which was the amount of the verdict, with six per cent, interest thereon from the time it was rendered. This was clearly authorized by section 3, chapter 74, Revised Statutes. “ When judgment is entered upon any award, report or verdict, interest shall be computed at the rate of six per cent, from the time when made or rendered to the time of rendering judgment on the same and made a' part thereof.”

Finding no substantial error in this case it is affirmed.


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    William G. Canon et al. v. Silas Grisby.
    1. Negotiable instrument — Alteration.—Where anote was given to a party with a blank space left after the word “at,” where the place of payment is usually mentioned, and at such party’s direction, “ Blandinsville, III.” was inserted after the word “ at,” by the payees. Held, that this was not a material alteration of the note.
    2. Ratificati in. — If one with full knowledge of the facts accepts the avails of an unauthorized treaty made in his behalf by another, he thereby ratifies such treaty and is bound by its terms and stipulations as he would be had he negotiated it himself. As to the change in the rate of interest that the notes bore, appellant has ratified the same by retaining the property after having full notice of the change.
    Appeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. James I. Neff and Mr. J. H. Stearns, for appellant.
    Mr. E. P. Barton, Mr. H. M. Barnum and Mr. H. C. Hyde, for appellees;
    as to filling blank in note, cited 2 Parsons on Bills and Notes, 566; Kitchen v. Place, 41 Barb. (N. Y.) 465; Redlich v. Doll, 54 N. Y. 234; McGrath v. Clark, 56 N. Y. 34; Angle v. N. W. Mut. Life Ins. Co., 92 U. S. 330; Elliott v. Levings, 54 Ill. 213.
    As to ratification: Dunlap’s Paley on Agency, 171; Brigham v. Peters, 1 Gray (Mass.), 117; 1 Parsons on Contracts, 50; Strasser v. Conklin, 54 Wis. 102; Hall v. Harper, 17 Ill. 82; 2 Kent’s Com. 615.
   Welch, J.

This was a suit brought by appellees upon two promissory notes, each for the sum of five hundred dollars, against the appellants. An affidavit of merits was filed with the declaration. On September 3, 1884, the defendants filed their affidavits that they verily believed that they had a good defense upon the merits to the whole of appellees’ demand in said suit. On the 5th day of the same month the appellants filed the general issue to the declaration, and on December 5th they filed a joint and several plea of non est factum, verified by their several affidavits. Trial, verdict and judgment for the appellees for the sum of eleven hundred and thirty-seven dollars and forty-seven cents; from which judgment this appeal is taken.

The evidence discloses that in March, 1883, John and Charles Huston, the payees in the notes, were large importers from France and Scotland of" Clydesdale and Perdieron stallions. Their place of business was Blandinsville, McDonough county, Illinois. The appellants reside at Davis, Stephenson county, Illinois, and they wished to purchase a Clydesdale stallion. Wooding went to Blandinsville and examined the horses the Hustons then had. He was pleased with one known as Young Banker. He was informed that the price was $1,300. A. B. McClaren, the clerk of the Hustons, states that Wooding told him that he was in the horse business at Davis, Illinois, in partnership with Canon and proposed to trade a light horse they had to apply on the purchase of Young Banker. He refused to trade but offered to sell the horse on a year’s time. Wooding said he would go home and consult Canon. The last of March, 1883, the appellants went to the office of W. Z. Tunics, a justice of the peace in Davis, and had him draw up two notes which they then signed. Each note when signed read as follows:

$500. April 1st, 1883.

One year after date I promise to pay J. and C. Huston, or order live hundred dollars, at value received,

with interest at six per cent.

W. G. Canon.

Uriah Wooding.

Appellants also had Tunics draw up a bill of sale from the Hustons to appellants of Young Banker, which included a warranty of the horse, and stated the receipt by the Hus-tons, in full payment for the horse, of the notes of appellants for $1,000, due in one year from April 1, 1883, with interest at six per cent, per annum. These papers were delivered to Wooding, who took them and went to Blandinsville. He there found McClaren, and on learning that Young Banker had not been sold desired to see him again. He and McClaren went to the farm and saw the horse. McClaren agreed to sell the horse for $1,000 to Wooding and Canon on one year’s time, and that the horse should be brought to Blandinsville next morning for shipment. The next morning John Huston was informed by Mc-Claren that he had sold Young B inker to Wooding and Canon for the sum of $1,000 on one year’s time. Huston told him to go with Wooding and fix np the papers. Ho papers np to this time had been shown by Wooding. Wooding produced the two notes and bill of sale. McOlaren states that he informed him that they could not sell the horse on such papers; that they had to pay cash for their horses, and when they sold on time they had to get money from the bank on the notes taken by them, and that as they had to pay eight per cent, they could not take six per cent, notes, and that notes must be payable at Blandinsville, and that they could not sign such a warranty as Tunica had prepared, for purchasers would use the horse for the season, and then return him claiming that the horse failed to be as warranted, and that there would have to be a clause that if the horse failed to fill the warranty they would furnish a horse of equal value. Huston states that he informed Wooding the same as stated by McOlaren. Huston and McOlaren both state that Wooding agreed that the notes should run at seven per cent, and should be payable at Blandinsville, and that the bill of sale shoul 1 be changed to correspond with the notes, and that a clause should be added to the bill of sale as demanded by McOlaren and Huston; that Wooding directed McOlaren to make the change in the notes and bill of sale, and when asked if it would be all right with Canon, said it would; that whatever he did would be satisfactory to Canon; that they were buying the horse together. McOlaren then made the change in the note and bill of sale, and signed the bill of sale, and then handed them to Wooding, who read them and handed back the notes, stated they were satisfactory and put the bill of sale in his pocket. The horse was then delivered and taken by Wooding to Davis. Immediately on his arrival there he handed the bill of sale to Canon, who states that he read it and knew what was in it. Wooding and Canon have kept the horse ever since. Wooding denies that he authorized the changes in the notes and bill of sale and that he ever told them that he was a partner of Canon. He states that he did not know that any changes of any kind had been made until after he delivered the bill of sale to Canon.

Was the insertion of the words “ Blandinsville, Illinois,” in the notes a material alteration? In Kitchen v. Place, 41st Barb. N. Y. S. C. 465, it was held that where a blank space was left after the word, “ at ” where the place of payment is usually mentioned, the holder of the note is authorized by an implied authority to fill the blank; that the word “at” implies that the blank space which succeeds it may be filled before the note is delivered, with a designated place of payment. Redlick v. Doll, 54 N. Y. 234, is a suit on a note: “ Three months after date I promise to pay to the order of myself six hundred and seventy-nine dollars and twenty cents at value received.” After the note was delivered the holder'inserted between the words “ at ” and “ value received,” “The Bull’s Head Bank of New York,” and negotiated it. Earl, Justice, says “ I am well satisfied upon a long line of authorities that the insertion of a place of payment in this note did not avoid it in the hands of a bona fide holder for value. The defendant made his note perfect in form except the place of payment and intrusted it to Istel for a special purpose. If the word “ at” had not been inserted in the note it would have been a complete note without the insertion of the other words. But with this word in, preceding a blank, it carried upon its face an implied authority for any bona fide holder to insert the place of payment. Wooding was intrusted by Canon with the notes signed by himself and Canon, with the blank after “ at.” As held in Redlick v. Doll, supra, if the word “ at” had not been inserted in the note it would have been a complete note without the insertion of the other words. With that word in, preceding a blank, the face of the paper gave an implied authority to complete the same by filling in the blank. In Angel v. North Western Mutual Life Ins. Co., 92 U. S. 380, it was held that persons dealing with an agentare entitled to the same protection as if dealing with the principal, to the extent that the agent acts within the scope of his authority. Pursuant to this rule it is the settled law that when a party to a negotiable instrument intrusts it to another for use as such, with blank not filled up, such instrument so delivered carines on its face an implied authority to complete the same by filling up the blanks, but would not authorize the person intrusted with the instrument to vary or alter the terms of the instrument by erasing what was written or printed. Justice Lawrence, in Elliott v. Levings & Co., 54 Ill. 213, says, “ The plea also alleges that the note, when delivered, was left in blank as to the time of payment, and the blank was afterward improperly filled by the payee. This defense is not available against an innocent assignee.

Under the facts in this case and the authorities cited, the insertion of “Blandinsville, Illinois,” after “at” was not a material alteration of the note.

Was the change in the note from six to seven per cent, in the rate of interest made with the consent of appellants, or was it ratified after the change was made? Huston and Mc-Claren state that the change in the notes and contract of sale was made by the direction of Wooding, and that after the change he read the notes and delivered them to Huston, and placed the contract of sale in his pocket, which contract as changed read as follows: “ We, J. Huston and C. Huston, have this day sold to W. G. Canon and Uriah Wooding a horse known as Young Banker, Humber 918, which we warrant to be a good coverer and sure foal getter, and we guarantee the horse sound and right in every way, for which we have received their notes for one thousand dollars, due in one year from the first day of April, A. JD. 1883, with interest at the rate of 7 six per cent, per annum from date, in full payment for the horse. Dated March 29, 1883. If such horse should not lie a reasonable sure foal getter, lie is to be returned to J. and C. Huston, and another stallion of equal value taken in his place. This contract is null and void on and after March 29, 1884. J. and C. Huston.” On Wooding’s return to Davis he delivered to Canon the above contract of sale. Canon says, “ I read the warranty soon after Wooding got back. 1 knew what was in it. 1 saw the contract which states that the notes were at 7 six per cent when Wooding first got back.” The horse has been kept by Canon and Wooding since the purchase. Canon has received, accepted and holds, with Wooding, the proceeds of this contract. He is estopped from denying an original authority to make the change in the notes and contract, he having ratified the same with a full knowledge thereof. In Strasser v. Conklin, 54 Wis. 102, the court say: “Mo rule of law is more firmly established than the rule that if one, with full knowledge of the facts, accepts the avails of an unauthorized treaty made in his behalf by another, he thereby ratifies such treaty, and is bound by its terms and stipulations as he would be had he negotiated it himself;” and in Martin v. Judd, 60 Ill. 84, the court say: “The reasonable rule is to regard such ratification as equivalent to precedent authority, and as relating back to the date of the execution of the power.”

In the view we take of this case it makes no difference whether Canon and Wooding were or were not partners, the change having been made in the notes and contract by Wooding’s direction, and the blank as to the place of payment having been left when Canon signed them. Wooding had authority to direct the blank to be filled. And as to the change in the rate of interest that the notes bore, Canon has ratified the same by retaining the property after having full notice of the change.

In our view there is no substantial error. Justice has been done and the judgment is affirmed.

Judgment affirmed.


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    H. H. Williamson et al. v. George F. Adams.
    1. Partnership assets. — The right to have the partnership assets applied to the payment of the partnership indebtedness is for the benefit of the partners. The creditors of the firm have no such right except through the partners. The members of the firm during its existence may consent to the appropriation of the firm assets to the payment of the individual creditors of each member of the firm, or to the individual creditors of one member.
    2. Sam to cop arts be. — A sale by one partner of his interest in the firm to his copartner, upon his assuming and agreeing to pay the d«bts of the firm, is a personal obligation to pay, and the right to sell and dispose of the assets is vested by the sale in the copartner, free from any lien on the assets for the payment of the firm indebtedness.
    3. When no sale — Where there has been no sale by one party to his copartner of his interest in the partnership properly, but the same is left with the copartner to sell and dispose of, and pay the debts, the right of the retiring partner to have the assets so applied still exists.
    Appeal from the Circuit Court of'Winnebago county; the Hon. William Brown, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. J. C. Garver, for appellant;
    that a promise by the purchasing partner to pay the firm debts creates only a personal obligation and not a lieu, and does not prevent such partner from using the goods in payment of his individual debts, cited Rankin v. Jones, 2 Jones, Eq. R. (N. C.) 169; Hapgood v. Cornwal, ex parte Williams, 11 Ves. 3; Goembel v. Arnett, 100 Ill. 34; Parker v. Merritt, 105 Ill. 293.
    Mr. C. M. Brazes, for appellee;
    that partnership assets"are first applicable to the payment of partnership debts and liabilities, without any special agreement, cited 1 Parsons on Contracts, 174; Rainey v. Nance, 54 Ill. 29; Wilde v. Chapman, 4 Edwards’ Ch. 697; Parsons on Partnership, pp. 256, 365, 520.
   Welch, J.

This was a bill in equity filed by the appellee against William B. Shaut and F. I). Williamson, and II. H. Williamson and Amasa Hutchins, to reach certain'goods in the possession of said Hutchins, levied upon by him as sheriff, under an execution that issued upon a judgment in favor of F. D. Williamson and H. H. Williamson, partners, doing business under the firm name of F. D. Williamson and son, against William B. Shaut, and to have them applied in the payment of the firm debt of Shaut and Adams. The bill alleges that in September, 1883, the complainant and the defendant William B. Shaut, were partners in the merchant tailoring business in the city of Rjckford, Illinois. That oil September 22,1883, said partnership was dissolved, the complainant retiring and the defendant Shaut continuing the business. That he made the sale of his interest in said partnership upon the consideration that Shaut would pay to him $250 in goods, assume and pay all of the firm indebtedness of Shaut and Adams, out of the assets of said firm. That the assets of the firm were more than sufficient to pay off and discharge the indebtedness of the firm. Tli it the defendants, William B. Shaut, F. D. Williamson and EL. H. Williamson, combined and confederated together to cheat and defraud him out of his just rights in and to the stock of goods aforesaid, and that said Shaut, in pursuance of said fraudulent purpose, purchased his interest in said stock of goods and business and gave his note for $250 therefor, payable in six months, and that in pursuance of said plan to cheat, wrong and defraud him and the creditors of the firm of Shaut and Adams, and to defraud him of all his rights in said stock of goods, the said Shaut, without any consideration whatever, on the 23d day of October, 1883, made, executed and acknowledged a judgment note of $1,750, to the said F. D. and Ií. H. Williamson. That said note was given for the fraudulent purpose of appropriating said stock of goods to his own use and benefit, and that judgment was, on the 19th day of November, 1833, taken on said note by the said Williamsons for the sum of $1,790 and costs, and execution was issued thereon on the same day, and placel in the hands of the defendant Amasa Hutchins, as sheriff, to levy, and that said execution was, on the said 19th day of November, levied upon the said stock of goods by said sheriff. And prays for an injunction restraining them from in any manner attempting to enforce said judgment, execution or levy, or from in any manner proceeding or attempting to proceed to sell said stock of goods under or by virtue of the execution or the levy thereunder, and from removing, selling or incumbering said goods or'any part thereof, etc. The defendant William B. Shaut, files his answer and admits that the partnership was dissolved; that Adams sold and conveyed to him all of his interest in said copartnership, its assets, notes, stock, accounts, good will and lease of place of business, and that he assumed and agreed to pay the debts of the firm. He expressly denies that he ever agreed, or that it was the intention of either party that said stock, or any part of it, was to be set apart and closed out to pay debts. He denies all fraud in the purchase of said stock, and denies that he and the William-sons combined or confederated to cheat or defraud him, but states that the note was given for the consideration as shown in the note. The defendants Williamson file their joint answer denying all fraud, or notice of any claim or lien of said complainant upon the stock, and deny that said note was without consideration, but state that the consideration named in said note was the consideration furnished by them to said Shaut.

The defendant Hutchins files his separate answer, admitting the levy of the execution, and that he had advertised the property for sale, and states that he has no knowledge of, or interest in any of the other matters alleged in the bill. lieplication filed and cause heard on bill, answers, replication and proofs. Decree in favor of appellee. The court found that said Shaut received said goods as trustee, burdened with the trust of paying the partnership debts, and that they should be so applied. From which decree this appeal is taken. The question presented in this record for our consideration is: Did Adams sell his entire interest to his copartner Shaut, Shaut assuming and agreeing to discharge allot' the liabilities? The contract of dissolution made the 23d day of September, 1833, was as follows: “Articles of agreement made and entered into by and between W. B. Shaut and Gfeo. F. Adams, copartners, under firm name and style of Shaut and Adams. It is mutually agreed by and between said parties, that said copartnership be, and the same is hereby dissolved; said Shaut pays to said Adams, the receipt of which is hereby acknowledged, out of goods of stock in trade, §250, in full of his right, title and interest in said firm, in its stock in trade, good will, asse s, notes or accounts. Said Adams hereby sells and delivers all his interest in said copartnership, its assets, stock, notes, accounts, good will and lease of place of business to said ghaut; said ghaut also hereby assumes to pay all the indebtedness and liability of said firm of every kind, and agrees to pay the same in consideration of the title and interest hereby sold to him; said gliaut is to have immediate possession of the interest bought, and of the place of business. The stock to the value of $250 is to be taken by Adams at its first cost, to be agreed upon by parties. To which said parties bind themselves, their executors, administrators and assigns each to the other. In witness whereof we have hereunto set our hands and seals this 23d day of September, 1883.

W. B. SliAUT, [seal.]

Geo. F. A dams, [seal.]”

¡Notice of dissolution was immediately published, stating that Adams had retired, and that Sliaut continues the business, assumes the liabilities of the firm, and is the owner, and is entitled to collect all indebtedness due the firm; which notice was seen by Williamson on the day it was published. A note was taken for the $250, to be taken in goods by Adams, payable in six months. It is claimed by appellee that Sliaut took the goods under an agreement that they should be applied to the payment of the firm debts, and to nothing else. Adams states that his understanding on the dissolution was that Sliaut should continue the business and dispose of the goods, and out of the proceeds pay the firm debts. Perry and Snyder and Lange state that they understood from Sliaut that he had assumed and agreed to pay the firm indebtedness, and that the goods should be appropriated for that purpose. Sliaut denies that he ever agreed to dispose of the goods and out of the proceeds to pay the firm indebtedness, or that the goods should be appropriated for that purpose. Williamson denies any notice of any claim of Adams on the goods for the payment of firm debts. In Ladd v. Griswold et ak, 4 Gil. 36, Justice Trent says: “ Each partner has a concurrent title to the -whole of the partnership property, and he is individually liable for all the partnership obligations. He has the specific right to have the partnership property faithfully applied to the payment of the joint debts; and after the joint debts are satisfied lie is entitled to a share of the surplus. This rule is for the benefit and protection of the partners themselves. The equity of the creditor is of a dependent and subordinate character, and is to be enforced through the medium of the equities of the partners.

. “The partners may part with this right to have the joint property applied to the payment of the joint demands, and when they do so the equity of the creditors is at an end. This is done where one partner sells out his entire interest in the concern to his copartner. In such case the purchasing partner takes the property fully discharged from the lien of his copartner, and the equity of the creditors being subordinate to the lien of the partners, the property is wholly freed from the claims of the joint creditors. What before was joint property now becomes the separate property of one of the partners.” In Hapgood et al. v. Cornwell et al., 48 Ill. 65, Justice Lawrence says: “The first question in this case is, was Hapgood practicing a fraud ora wrong upon the creditors of the firm, by suggesting that Amory Bigelow should buy the interest of his partners and secure the debt to him with the firm assets? It would undoubtedly have been a wrong if the law recognized the firm creditors as having a superior equity to that of individual creditors, for payment from the partnership assets. But it does not. It recognizes the members of the partnership as having a superior lien on the partnership property for. the payment of the firm debts, and allows the creditors to avail themselves of this lien to the exclusion of individual creditors, when it has not been surrendered by the partners. Thus, if all the members of the firm agree to the appropriation of firm property in payment of an individual debt, due from one member of the firm, the creditor would take the property discharged of any claim in equity of the partnership creditors, and this because the members of the firm have parted with their lien, and the creditors have none except through the partners. The same result follows from a sale to one partner by another. It also necessarily follows if the law holds such a transaction legal, and acknowledges no inherent claim to priority on the part of firm creditors, that an individual creditor is guilty of neither wrong nor fraud in requesting his debtor to procure the consent of his copartners, either by purchase or otherwise, to a surrender of partnership property in payment of the individual debt. These principles were fully recognized by this court in Ladd v. Griswold, 4 Gil. 36, and are the settled law.” The same rule was announced in Rainey et al. v. Fiance, 54 Ill. 29, and in Goembel et al. v. Arnett et al., 100 Ill. 34. It is held that the promise of one partner to the other upon a purchase of the entire stock of goods of the firm to pay the partnership debts, will not create any lien on the goods sold. It creates a personal obligation on the part of the purchaser, and will not of itself prevent the latter from subsequently selling the goods for the payment of his individual debts. In the case of Parker v. Merrill, 105 Ill. 293, it was held that when, on the dissolution of a partnership, the articles of dissolution provided that an invoice of the goods and schedule of the firm debts should be made, and that the surplus of the assets above the indebtednessshonld be divided, and that one partner should retain a sufficient amount of the goods from which he agreed to pay such debts within a given time, and as rapidly as such assets could be realized for that purpose, the partner so retaining the goods continued the business, and a creditor of such partner, having notice of the facts, levied his execution upon the goods, it was held in that case, that the retiring partner could maintain a bill in equity to enjoin the sale on the execution, and have the proceeds of the goods applied in payment of the firm debts, and that the interest of the retiring partner did not pass by the articles, there being no sale thereof.

From the foregoing authorities we deduce the following well recognized principles: That the right to have the partnership assets applied to the payment of partnership indebtedness is for the benefit of the partners. That the creditors of the firm have no such right except through the partners. That the members of the firm, during its existence, may consent to the appropriation of the firm assets to the payment of the individual creditors of each member of the firm, or to the individual creditors of one member. That a sale by one partner of his interest in the firm to his copartner, upon his assuming and agreeing to pay the debts of the firm, is a personal obligation to pay, and the right to sell and dispose of the assets is vested by the sale in the copartner, free from any lien on the assets for the payment of the firm indebtedness. That when there has been no sale by one partner to his co-partner of his interest in the partnership property, but the same is left with the copartner to sell and dispose of and pay the debts, the right of the retiring party to have the assets so applied still exists, no sale of his interest having been made. The evidence in this case shows that there was a sale of the interest of Adams to his copartner, Shaut, of his entire interest in the firm, Shaut assuming to pay the firm indebtedness. This is all the written contract and notice show. There is nothing in either to indicate that the goods were left with bhn in trust to be sold, and the proceeds to be applied in the payment of the firm indebtedness. The written contract can not be changed in its terms by parol. The only notice to the Williamsons was the published notice. Whatever rights Adams had previous to this sale were surrendered by him on his sale, and the firm creditors had no rights except through him. He having surrendered his, they can have none. This case does not come within the rule of Parker v. Merrill, supra. We are of opinion this stock of goods was subject to this levy and sale under this execution, and the court erred in setting aside the levy and perpetually enjoining the sale, in directing the sheriff to turn the goods over to the master in chancery to be by him applied in the payment of the partnership indebtedness of Shaut and Adams, and in not dissolving the injunction and dismissing the bill. For the errors herein indicated this cause is reversed and remanded with directions to enter a decree dissolving the injunction and dismissing the bill.


text:
    Elisha Essley et al. v. John C. Sloan et al.
    Defense of usury. — The right of the grantor to interpose the defense of usury is denied for the same reason as found in Flanders v. Doyle, ante, p. 508.
    Appeal from the Circuit Court of Mercer county; the Hon. George W. Pleasants, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. Bassett & Wharton, for appellants.
    Mr. John C. Pepper, for appellee.
   Welch, J.

This cause was before this court at the December term, 1884. Appellants came into court asking the right to redeem from a trust deed after the property was advertised for sale. They propose and offer in their bill to bring into court such sum as the court should find they should be equitably bound to pay for the right to redeem. This appeal is taken from the decree fixing the amount they were required to pay to redeem. The principal error assigned was the refusal to allow the defense of usury. This question was passed upon by this court when this case was before it at the December term, 1884, when the right to interpose this defense was denied. We perceive no reason for changing our opinion in relation thereto. On the contrary, upon further examination and more mature reflection, that opinion lias been strengthened.

Elisha Essley, on the 15th day of January, 1872, applied to John McKinney tor a loan of $2,000 and received it on the agreement to pay two per cent, interest in advance and ten per cent, at the end of the year, and gave his note for $2,000 payable one year after date; and to secure the same he and his wife executed a trust deed to certain real estate to Isaac M. Bassett as trustee. The interest was paid by Essley for several years and on the 8th day of February, 1878, Essley sold and conveyed the land to William Drury subject to this trust deed. The amount of this trust deed was thereby assumed to be paid by Drury and the money for that purpose left in his hands by Essley. On the 25th day of February, 1878, Drury sold and conveyed the lands to Bigelow. The consideration expressed in the deed is $7,300, subject to certain incumbrances, naming them, and among them the trust deed in controversy. This deed gives the description of each incumbrance, the amount thereof, and when recorded. Bigelow paid the interest on this debt from 1878 to 1881. On the 21th day of March, 1881, Bigelow conveyed to Cyrus A. Ballard, by quitclaim deed, for the consideration of one thousand dollars, the lands as described in the deed; its consideration and the amount of the incumbrance shown in Drury’s deed to be on the land, show that the incumbrances were deducted from the purchase money, and that the thousand dollars was what Ballard was to pay Bigelow in money. The bill alleges that McKinney received usurious interest, and that Essley paid the same without complaint; there is no pretense that he disclosed it to Drury or any one else, nor that Drury, Bigelow or Ballard had any knowledge of any usury in the note or trust deed, when they bought respectively. Essley had voluntarily made an appropriation of property to pay this debt and interest, and no right that he liad before he deeded to Drury can now be asserted with or without his consent Essley’s rights were carefully guarded by the decree which provided that the holder of the note and trust deed should have no personal claim on him. This same question of the rights of a grantor to interpose the defense of usury has been before us at this term in Flanders v. Doyle and Wilkinson v. Doyle. In each of those cases the right was denied. We refer to the reasons given and authorities cited in those opinions in support of our opinion in this case. We find no error in the amount found by the court to be due, nor in the rate at wdiich interest was to be computed. There was no merger of the note in the decree. Appellee was asking no relief, nor do we find any error in the court in refusing to allow credit for the sum of §36.81, appellants having no right to have any benefit therefor; nor do we find any error in the time fixed in which payment was to be made.

The decree is affirmed.


author: Baker, J.

text:
    James Boyd et al. v. Fraternity Hall Association.
    1. Landlord and tenant — Covenants—How construed. — Covenants against assignment or underletting are not favorably regarded by the courts, and are construed liberally in favor of the lessees, and so as to prevent the restriction from extending beyond the express stipulations.
    2. Lease jointly to two — Covenant not to sublet. — Where a lease is jointly to two, and by an arrangement between them, each occupies a several portion of the premises, such several uses cannot justly be regarded as breaches of a covenant not to underlet.
    3. Taking person into partnership. — When a tenant, without a license from the landlord, takes a third person into copartnership with him, and lets such person into joint possession of the premises, it is not a breach of a condition in the lease against subletting.
    4. Partnership to avoid forfeiture of lease. — The fact that the desire of avoiding a forfeiture of the lease was instrumental in determining the parties to form a partnership rather than assume the relation of landlord and tenant was no fraud upon the rights of appellee.
    Appeal from the Circuit Court of Knox county; the Hon. J. J. Glenn, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. S. F. Murphy, for appellants;
    that covenants not to sublet are construed liberally in favor of the lessees, cited Taylor on Landlord and Tenant, § 403; Smith on Landlord and Tenant, 115.
    The fact of taking a partner in the business did not work a forfeiture of the lease: 2 Platt on Leases, 260; Roosevelt v. Hopkins, 33 N. Y. 81; Hoffman v. Ins. Co., 32 N. Y. 405; Wood on Landlord and Tenant, 535; Taylor on Landlord and Tenant, § 405.

      Messrs. Willoughby & Dougherty, for appellees;
    cited Roe v. Sales, 1 M. & S. 297; Greenslade v. Tapscolt, 1 C. M. & R. 55; 2 Platt on Leases, 263.
   Baker, J.

On the 1st of September, 1832. one Esther E. Robinson leased to appellants the Commercial Hotel, in Gales-burg, for a term of three i^ars, and they were to pay therefor, as rent, the sum of §2,700, payable in monthly installments of $75 each. The lease contained a provision for the extension of the term, at the option of appellants, for a further period of two years. On the first of May, 1883, a supplemental agreement was made between the parties, whereby, in consideration of $100 per annum additional rent, the privilege of opening a saloon on the premises was granted. On the 28th of March, 1834, the Fraternity Hall Association, appellee, purchased the hotel property from said Robinson, and received from her a conveyance of the same. Thereupon appellants attorned to appellee, and paid the rents under the lease to the association.

From the first of May, 1833, to the first of May, 1834, James Boyd, one of the appellants, with the knowledge of his wife, Mary Boyd, the other appellant, carried on a saloon business in one of the rooms of the hotel building. The saloon was then closed for a short time, but on the 14th day of June following, James Boyd entered into a copartnership with one Dominick Morley, for the purpose of prosecuting a saloon business in said room. By the terms of the agreement, Morley was to furnish all the capital and give the business his personal attention, and it was to be conducted in his name; and James Boyd was to be a silent partner, and was to furnish the room, and aid in carrying on the business. Morley was to receive 80 per cent, of the profits and bear 80 per cent, of the losses, and James Boyd was to receive 20 per cent, of the profits, arid bear 20 per cent, of the losses. In conformity with the provisions of this contract, Morley removed his sa1 ion from Prairie street to the Commercial Hotel, and had his license transferred, so as to cover the business at the latter place. On the 26th of June the saloon at the hotel was reopened, under the new arrangement.

Tliis suit was forcible detainer by appellee against appellants to recover the possession of the Commercial Hotel, it being claimed by appellee that, under the facts, and by virtue of the conditions of the lease, there was a forfeiture of all the rights of appellants in and to the premises.

The lease contains the following clause: “It is further agreed by the party of the second part, that neither they nor their legal representatives will underlet said premises or any part thereof, or assign this lease, without the written assent of the party of the first part first had thereto;” and the lease also makes provisions for a re-entry in case default be made in any of the covenants to be kept by the lessees.

Covenants against assignment or underletting are not favorably regarded by the courts, and are construed liberally in favor of the lessees, and so as to prevent the restriction from extending beyond the express stipulations. Wood’s Landlord and Tenant, Sec. 324; Taylor’s Landlord and Tenant, Secs. 402 and 403.

Forfeitures are not favored in law, and conditions are taken strictly, because they divest estates. The lease was to James Boyd and Mary Boyd, jointly. A saloon business was carried on in the room in question, by James Boyd, one of the lessees, for a year; and although he had exclusive possession during that time of the room, for the purpose of such business, yet we think it clear that such occupancy by him, with the knowledge and implied assent of his co-lessee, was no breach of the covenant against subletting. Where a lease is jointly to two, and by an arrangement between them each occupies a several portion of the premises, such several uses can not justly be regarded as breaches of a covenant not to underlet.

We also understand it to be the rule, that where a tenant, without license from the landlord, takes a third person into copartnership with him, and lets such person into joint possession of the premises, it is not a breach of a condition in the lease against subletting. Roe v. Sales, 1 Maule and Selwyn, 297; Roosevelt v. Hopkins, 33 N. Y. 81; Margrave v. King, 5 Ired. Eq. 430.

In the case before us, if the sole occupancy by James Boyd, of the saloon room, was not a breach of the covenant not to underlet, then it would seem to follow from the rule above stated and authorities cited, that the fact he afterward associated Morley with him'-in the possession of said room, and that they carried on therein a partnership business, was no such breach of said covenant as worked a forfeiture of the estate.

From the testimonj we think it probable, that had it not been for the condition in the lease against subletting, appellants would have rented the room, to Morley for a saloon. As their covenants precluded them from so doing, and it was desirable the room should not remain unoccupied, it was agreed between Morley and James Boyd that they would form a partnership for the purpose of transacting business therein. This, we think, they had a legal right to do. The fact that the desire of avoiding a forfeiture of the lease was instrumental in determining the parties to form a partnership, rather than assume the relation of landlord and tenant, was no fraud upon the rights of appellee.

We are of opinion the law of the case is with appellants, and that under the evidence the finding and judgment of the court should have been in favor of appellants and against appellee.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Lacey, P. J.

text:
    John H. Gordon, Adm’r, etc., v. Mary A. Adams et al.
    The court is of opinion that this is a stale claim and unsupported by any evidence sufficient to warrant a decree in favor of the plaintiff in error.
    Error to the Circuit Court of Knox county; the Hon. A. A. Smith, Judge, pr siding.
    Opinion filed August 7, 1885.

      This suit was a bill in equity tiled by the plaintiff in error against the defendant in error to recover the amount of two promissory notes for five thousand dollars each, given by James A. Bundy, deceased, in his lifetime, dated Aug. 23, 18)8, du3 in ten years from date, one payable to Martin, and one to Marion Bundy, praying that a lien be'declared against all the property of J. A. Bundy, deceased, in the bands of the widow or assignees or heirs, for the payment of the notes. Milton J. Bandy having died June 23, 1878, and Marion, June —, 1873, the plaintiff in error is the administrator of both Milton J. and Marion Bundy. The defendants in error were the heirs at law and widow of James A. Bundy, deceased. A cross-bill was filed by Mary A. and Frank Adams, F. H. Rearick, C. W. Bvadstreet, and Benjamin Lombard. Full answers were filed to both the original and cross-bill and replications. Upon a final hearing the court decreed that the equities were in favor of the respondents in the original bill; .that the complainant’s bill be dismissed at his costs and paid in due course of administration. The court further found that the issues in the cross-bill be found in favor of the complainants therein. That neither of" the notes was a legal claim against James A. Bundy in his lifetime, nor against his estate after his decease, and that the notes were never delivered by the said James A. Bandy in his lifetime to the payees, or either of them. The court further decreed that the notes be forever held as being of no force and effect as against the estate of James A. Bundy, deceased, or the assignees or holders of any part of said estate.
    Messrs. Lanphere & Brown, for plaintiff in error.
    Messrs. McKenzie & Calkins, for defendants in error.
   Lacey, P. J.

The main question in dispute upon the hearing was as to the delivery of the notes by James A. Bundy in his lifetime. Both sons of James A. Bundy and James A. himself were deceased before the notes were found. Neither of the payees of the notes knew of their existence. John A.Gordon testifies he saw the notes in J. R. Gordon’s house in Galesburg in the fall of 1873. The latter and his wife were present.

Mrs. Gordon, who was the daughter of J. A. Bundy, showed him the notes. Mrs. Gordon was in Missouri when Marion died and brought baek’his body. After his return lie saw the notes. But the testimony of J. R. Gordon seems to throw great doubt upon the testimony; for he fails to testify in corroboration of such statements, but testifies that some time after his wife’s death he found the notes among her effects. We have examined the evidence in the case with a good deal of care, and are well convinced that all the evidence and circumstances taken together concerning the dealings of the two sons, Marion and Milton, and their father, and their life and conduct after the date of the notes, fully rebut any presumption of the delivery of the notes by James A. to Mrs. Gordon, or any one else, for the benefit of the sons. It is not necessary to account for the manner in which Mrs. Gordon obtained the notes or for what purpose. But it is enough if it is shown by facts and circumstances that she did not obtain them to hold for the benefit of Milton and Marion. It appears quite evident from the testimony that Milton and Marion, at the time the notes were given, were in very moderate circumstances, and even that Marion was a minor under the age of twenty-one years. They remained poor during their lives, were dependent to a considerable extent on the bounty of their father for their support, never claimed to be entitled to notes in question from their father though at times given detailed statements of their effects, and we think were entirely' ignorant of the existence of such notes. It is claimed by plaintiff in error that tlie two hoys, some time prior to the time the two notes were dated, had a claim on their father on account of an interest in apiece of land sold by their father to one Reynolds, and that there was considerable disturbance in the family by the boys on account of the sale of the land without protecting their interests, and that about the date of these notes the disturbance ceased and the boy's were satisfied; and the theory is advanced by counsel for plaintiff in error, that the notes were executed and delivered to some one for the beneiit of the boys, and that they, knowing this, became reconciled. But we think, under the light of the evidence that they never knew of the existence of these notes, such theory or claim is without force. Ho evidence shows that they ever claimed that their father ever owed them anything on account of any settlement.

This appears to us to be a stale claim and unsupported by any evidence sufficient to warrant a decree in favor of the plaintiff in error.

We do not deem it necessary to consider the evidence further in detail, but rest the case upon the conclusion we have arrived at upon a full review of the evidence.

The decree of the court below is therefore affirmed.