Carr v. Miner

• Decision Date: 30 April 1866
• Citation: 1866 WL 4664,42 Ill. 179
• Parties: JAMES H. CARRv.SIMEON K. MINER.
• Court: Illinois Supreme Court

42 Ill. 179

1866 WL 4664 (Ill.)

JAMES H. CARR

v.SIMEON K. MINER.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

This was an action of assumpsit, brought in the court below by James H. Carr against Simeon K. Miner. The declaration contains three special counts upon a letter written by the defendant to the plaintiff, in which the former admitted he had received the sum of $1,800 belonging to the latter. The common counts, also, were added. The defendant pleaded, first, the general issue; second, a plea of set-off for services rendered by the defendant as agent for the plaintiff, and for money lent, money had and received and for goods sold and delivered; third, a plea setting up a judgment recovered by the defendant against the plaintiff for $532.57, and relying upon the same as a bar to so much of the plaintiff's demand, and, fourth, a plea to which a demurrer was sustained. To the first special plea the plaintiff replied a former recovery, as an estoppel. To the second special plea, nul tiel record. Subsequently, the defendant withdrew his plea of set-off, and amended his second special plea so as to make it a plea of set-off of the amount of the judgment. The plaintiff replied to this amended plea, that the judgment therein sought to be set off was obtained by fraud.

Upon these issues the cause proceeded to trial. The plaintiff gave in evidence the following letter:

“WARREN, Dec. 12, 1859.

FRIEND CARR:

I have taken $1,800 on your Tisdal matter. I looked the matter all over, and I thought it best to take the money Champ thought you would have trouble with them. Tisdal has given up. There is a good many judgments against them for that property, that he took off. I looked the matter all over in all its bearings. I can tell you all about it when you come. Tisdal and Meyers is willing to pay your interest up to the first of Nov. I have not settled every thing, but just taken the $1,800. I have loaned a part on short time, and can loan the balance; but I could do better to loan on a longer time. Let me hear from you soon.

+-------------------------+
                ¦        ¦Yours in haste, ¦
                +--------+----------------¦
                ¦(Signed)¦S. K. MINER.”   ¦
                +-------------------------+
                

Here the plaintiff rested his case.

The defendant then introduced in evidence the record of a judgment obtained at the March Term, 1864, of the Jo Daviess Circuit Court, by him against the plaintiff, being the same set up in the second special plea.

Daniel Sinclair, testified on behalf of the defendant as follows: I know the parties to this suit, and heard the letter offered in evidence, by the plaintiff, read; knew about the settlement of the claim of Carr against Tisdal, made by the defendant; was present when the settlement was made; had been and was acting as Tisdal's agent; the claim of Carr was settled by Miner for $1,800, $1,100 of which was to be paid in cash, and $700 in the note of Charles Cole; was present till the settlement was made; I think this was some time in the month of December, 1859.

Cross-examined: I know nothing at all about the letter read in evidence; I never saw it before; there were no persons present when the settlement was made but N. W. Meyers, S. K. Miner and myself; I was the agent for Mr. Tisdal and felt an interest in the matter and was glad to get it settled; I do not know that there was ever one dollar in money paid; I did not read the note, but saw Cole's name signed to it in a large hand; Meyers said it was a note on Charles Cole for $700; I knew his signature; I saw the note in N. W. Meyers' hands; I went away when the contract was made; this was the only claim that Carr had, of that kind, against Tisdal, to my knowledge; Tisdal had borrowed other sums of money from Carr, at different times; he borrowed $100 and $200, and at one time he got $600, and at another time he got $500; the five hundred was secured by a deed of trust on other property, near Warren; I know that the above sums of money were all the money Tisdal borrowed of Carr, because I kept Tisdal's books, and Tisdal always had whatever money he borrowed, put down.

Re-examined: The money was secured by a deed of trust from Tisdal to Carr, and covered the Tisdal Stone Hotel in Warren; Meyers had bought the property and was to pay this note and deed of trust for Tisdal; this was the only claim Carr had against Tisdal, secured on the Stone Hotel across the street.

The defendant then proposed to prove by parol the contents of the bill and answer in a suit in chancery in the Circuit Court, instituted by N. W. Meyers against James H. Carr and one Payne, and, to lay the foundation therefor, introduced the following testimony to prove the loss of the papers in that suit.

T. R. Bird, called by the defendant, testified: I am deputy and acting clerk of this court, and have the charge of all the records and papers of the same; at the last term of this court I carefully examined in my office for the papers in the case of Meyers v. Carr and Payne, and I could not find the same; since this trial commenced I have again carefully examined among the papers in my office for the papers in said case, but could not find them.

Cross-examined: I have not looked among all the papers in my office; I have only looked in the tin boxes in which the papers for the term, at which the said decree was obtained, were put away; I do not think the papers are in my office.

J. K. Haynes testified: I am also a deputy clerk of this court, and since this trial commenced, I have carefully examined the tin boxes in which the papers of the term at which the decree in the case of N. W. Meyers v. Carr and Payne was obtained, but could not find them.

Cross-examined: I did not examine anywhere else only in the tin boxes where the papers of the term were put away.

Defendant recalled T. R. Bird: I keep a receipt book in which parties taking papers out of my office give receipts for the same; which receipts are usually canceled when the papers are returned. Witness then produced the said receipt book and referred to a receipt for said papers, by E. A. Small, dated on the third day of October, A. D. 1861, which was uncanceled.

E. A. Small testified: I got the papers in the case of N. W. Meyers v. Carr and Payne, at the date of said receipt; I was then the attorney for James H. Carr; I afterward turned said papers over to T. A. Green, when he became Mr. Carr's attorney; Mr. Green came to my office and got said papers; I have searched in my office for said papers, but cannot find them; I have not got them; did not return them to the clerk's office; I have made the search in my office since this trial commenced, and since I was called as a witness.

T. A. Green testified for plaintiff: I have never, at any time, seen the papers in the chancery case of N. W. Meyers v. Carr and Payne; they never came into my hands in any way. It was the papers in the case of S. K. Miner v. J. H. Carr that Mr. Small turned over to me. I went to Mr. Small's office and got the papers in the last mentioned case, soon after I became Mr. Carr's attorney; but I never got the papers in the case of Meyers v. Carr and Payne, from Mr. Small, or any one else, and have never seen said papers in my life. Mr. Carr has been urging me to get said papers in the chancery case of Meyers v. Carr and Payne, ever since I have been his attorney; and I looked in the clerk's office, about three months ago, but did not find them. Mr. Carr considered them of great importance to him in the present case, as the deposition of S. K. Miner, defendant in this case, was taken in that case, and explained this whole transaction; and Mr. Carr wanted me to get said deposition for evidence, in this case.

James H. Carr testified for plaintiff: I have been urging Mr. Green to get the papers in the chancery case of Meyers v. Carr and Payne, ever since he has been my attorney, but he has been unable to get said papers. I considered the papers in that case of great importance to me, on account of the deposition of Miner, which is among them. His deposition explains the whole matter of this case, and I wanted it to offer as evidence in this case. I have not got said papers in my possession, nor seen them, since Mr. Green has been my attorney. Upon the above testimony, as to the loss of said papers, the court allowed defendant to give verbal evidence of the contents of the same; and thereupon, M. Y. Johnson testified: I was the attorney for N. W. Meyers in the chancery case of Meyers v. Carr and Payne. The bill in said suit set out that Carr had loaned Tisdal money, and as security therefor had taken a deed of trust on the stone hotel, in Warren, and the stone stable connected therewith. Payne was the trustee. Meyers had purchased the property subject to this incumbrance. This suit was to enjoin Carr and Payne from selling the property under said deed of trust. Meyers alleged that he had paid the whole amount due on the same to Miner as the agent of Carr; and Carr denied that Miner had ever been his agent at all; and claimed in his answer in the case, that there was due him on the same $2,200, or $2,300. Meyers alleged that he had paid Miner $1,800; $1,100 in money, and $700 in notes. There was one note for $308 on Charles Cole, and the rest of the $700 was in other notes. Meyers relied on Miner's receipt for proof that he had paid $1,800; $1,100 was paid to Miner in money, and the rest in notes. The decree in the case states what order was made, as to the $700 in notes. The $700 mentioned above was paid to Meyers, by Miner, afterward, in my presence.

To the admission of the above verbal evidence, as to the contents of the papers in the chancery case of N. W. Meyers v. Carr and Payne, the said plaintiff then and there objected, and, the court overruling the said objection and allowing said testimony to go to the jury, the said plaintiff then and there...