Parker v. Enslow

• Decision Date: 28 March 1882
• Parties: WILLIAM B. PARKERv.JOHN B. ENSLOW.
• Court: Illinois Supreme Court

102 Ill. 272

1882 WL 10222 (Ill.)

40 Am.Rep. 588

WILLIAM B. PARKER

v.JOHN B. ENSLOW.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Greene county; the Hon. ALBERT G. BURR, Judge, presiding.

Mr. JAMES R. WARD, for the appellant:

To support an agreement for the avoidance of a suit on a compromise, the promisee must have had an honest belief that he had a good cause of action. It is not sufficient to believe he had a cause of action. Mulholland v. Bartlett, 74 Ill. 62; Miller et al. v. Hawker, 66 Id. 187; McKinley v. Watkins, 13 Id. 144; Wade v. Simeon, 2 C. B. 548; Edwards v. Baugh, 11 Mees. & Wels. 641.

The instruction on that subject was erroneous. Evans v. George, 80 Ill. 51; Cushman v. Cogswell, 86 Id. 62; Chesney v. Meadows, 90 Id. 430; Moore v. Wright, 90 Id. 470; Peoria Life Ins. Co. v. Dill, 91 Id. 174.

Under the circumstances of this case appellant was not liable. The law regards the negligence of the visitor or customer, and his intrusion upon the private business of another, the cause of the injury, and provides no remedy. Murray v. McLean, 57 Ill. 378; Zoebish v. Tarbell, 10 Allen, 385; McKee v. Bidwell,74 Pa. St. 218; Victory v. Baker, 67 N. Y. 366; Pierce v. Whitcomb, 48 Vt. 127; Southcote v. Stanley, 1 Hurl. & N. 247.

That the court should have required the plaintiff to submit to an examination of his eyes by competent persons, see 1 Greenleaf on Evidence, secs. 37, 82; Wade v. Sayre, 52 How. 334; Mehado v. Brooklyn City R. R. Co. 30 N. Y. 370; Coxe's Criminal Cases, 297; Coke's Lit. 8; Cro. Eliz. 227; 9 Co. Rep. 30; 2 Rolle's Abr. 573, 578; 2 Peere. Wms. 591; State v. Garrett et al. 71 N. C. 87.

Mr. W. M. JACKSON, and Messrs. ORENDORFF & CREIGHTON, for the appellee:

A settlement of a claim or demand, made without fraud or oppression, is binding and conclusive on the parties. Heaps v. Dunham, 95 Ill. 588; 3 Addison on Contracts, sec. 1279.

There was no error in refusing to allow Dr. Crow to examine the eyes of the plaintiff, if for no other reason than that Dr. Crow testified he was not an expert in such matters.

Fault is found with the second instruction, because the word “good” was not in it. It was the law as given, and was not calculated to mislead; besides, the word “good” was in defendant's first and second instructions.

Fault is also found with the word “supposed,” in the same instruction. This word is used by this court in the same sense in McKinley v. Watkins, 13 Ill. 144. This word is synonymous with the word “believed.” Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This case comes before us for review by appeal from a judgment of the Appellate Court for the Third District, affirming a judgment of the circuit court of Greene county. The action was assumpsit, upon a promissory note for $1000, executed by appellant to appellee, and the defence interposed was, that the note was executed without any consideration.

The evidence on behalf of appellee tended to establish that appellee, for a number of years, had been engaged in the retail grocery trade, including therein the sale of tobacco, in a building owned by him at Kane, in Greene county; that he sold out and transferred his stock and business, and rented his store-room to appellant, who thereupon succeeded him in such trade; that, for about twelve years before and up to the time of such sale and transfer, it had been the custom to keep a box of smoking tobacco on the counter for the use of the public, and this custom was known to appellant, and continued by him after such sale and transfer; that it was the habit of appellee to pass into appellant's store-room and fill his pipe from this box, when convenient, and that pursuant thereto, at the time of the occurrence here involved, he passed into the store-room and filled his pipe with tobacco from the box, but, without his knowledge, powder had been mixed with the tobacco, and so, when he applied a match to light his pipe, an explosion was caused, which seriously and permanently injured appellee's eyes. When, subsequently, appellee reproached appellant for having put the powder by which the explosion was caused, in the tobacco, appellant admitted that he had done so, but sought to mitigate his conduct by saying that he had only done it for a joke. Appellee threatened, and was intending, to sue appellant for damages in consequence of the injury thus caused to his eyes, and as a compromise and settlement of that cause of action this promissory note was executed. It is not important that there may have been other evidence in some respects contradictory of this, for since we are not allowed to investigate controverted questions of fact in this class of cases, we must assume that the evidence established all that there was evidence tending to establish.

The second instruction given at the instance of appellee is as follows:

“The court also instructs the jury, for the plaintiff, that if they believe, from the evidence, that the plaintiff, in the month of November, 1878, in good faith supposed he had a cause of action against the defendant, on account of personal injuries which he believed resulted from the conduct of the defendant, and thereupon threatened to sue the defendant on account thereof, and thereupon the difference between them was compromised, and the defendant executed the note sued on in consideration that the plaintiff would not sue him for such injuries, and the plaintiff accepted the note in settlement of such claim, such compromise and settlement is a good and lawful consideration for such note.”

Three objections are urged against this instruction, and they will be noticed in the order of their presentation by counsel for appellant:

First--It is contended it is not sufficient that plaintiff supposed “he had a cause of action.” He must have supposed “he had a good cause of action,”--or, in other words, the omission of the word “good,” before the word “cause,” is fatal. This in untenable. “By this phrase [cause of action] is understood the right to bring an action, which implies that there is some person in existence who can assert, and also a person who can lawfully be sued. * * * There is no cause of action till the claimant can legally sue.” * * * Bouvier's Dictionary, title, “Cause of Action.” If, therefore, a person have a legal right to sue, he must necessarily have a “good” (using that word, as it obviously is always used in this connection, in the sense of “legally sufficient,”) “cause of action.” If he have no legal right to sue, he has not merely a bad cause of action, but no cause of action. So, “good cause of action” can mean no more than “cause of action,” and the word “good,” in that connection, is hence clearly superfluous.

Second--But it is also objected that the use of the word “supposed,” in this connection, is fatal--that the word should have been “believed.” We think, used in the connection in which “supposed” is here used, they mean substantially the same thing, or, at all events, so nearly so that a jury could not be misled by the use of “supposed” instead of “believed.” The second definition of ““supposed,” as given by Webster in his Unabridged Dictionary, is, “imagine, to believe, to receive as true.” And the same authority gives as the second definition of “believe,” “to think, to suppose.” And, in substance, Richardson's definitions are the same. Moreover, in Stapleton v. Stapleton, 1 Atkyns, 12, Lord HARDWICKE says: “In the case of Cann v. Cann, it was laid down by Lord MACCLESFIELD, that an agreement entered into upon a supposition of a right, or of a doubtful right, though it often comes out that the right was on the other side, shall be binding,” etc. And in McKinley v. Watkins, 13 Ill. 143, ...