James v. Morey

• Decision Date: 30 April 1867
• Citation: 44 Ill. 352,1867 WL 5164
• Parties: JOSIAH L. JAMESv.HENRY C. MOREY.
• Court: Illinois Supreme Court

44 Ill. 352

1867 WL 5164 (Ill.)

JOSIAH L. JAMES

v.HENRY C. MOREY.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Mr. GEORGE W. THOMPSON, for the appellant.

Mr. JOSHUA C. KNICKERBOCKER and Messrs. RUNYAN & AVERY, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought by James against Morey, for rent. The defendant was in the employment of plaintiff as clerk, and the plaintiff promised him, if he would marry within a year, to give him one thousand dollars. He did marry, and the plaintiff gave his wife a lot worth five hundred dollars. He allowed the rent to run until the sum of $637.50 had accrued, and then credited himself on the books of plaintiff with $500, as the balance of the one thousand. Both parties testified, and it is at this point that the substantial difference between them begins. The defendant swore that this credit of $500 was talked over between the plaintiff and himself in the office, and the plaintiff assented to the credit. This is denied by the plaintiff, who testifies there was no such conversation, and that he did not know of the entry for more than a year after it was made. On this point the jury seem to have given credence to the defendant, and the matter was within their exclusive province.

It is urged, however, that this promise to pay the thousand dollars was within the statute of frauds. The only mode in which the plaintiff sought to raise this question was by a motion to exclude all the evidence upon that subject. This motion was properly refused, because, even if the promise had been within the statute, its complete performance, if the testimony of the defendant was true, made the statute inapplicable. The testimony of the defendant as to the express authority given him by the plaintiff to enter the credit of $500 may have been true or false, but the court had no right to determine it was false, as it would have done by allowing the plaintiff's motion to suppress all testimony relating to the promise. If this testimony of defendant was true, the statute of frauds had nothing to do with the case. The thousand dollars, according to this evidence, had been voluntarily paid, and could not be recovered back, whether the promise was originally within the statute or not. In order to present this question, the...