Ewen v. Wilbor

• Decision Date: 20 April 1904
• Citation: 208 Ill. 492,70 N.E. 575
• Parties: EWEN v. WILBOR.
• Court: Illinois Supreme Court

208 Ill. 492

70 N.E. 575

EWEN

v.WILBOR.

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, First District.

Action by Albert G. Wilbor, Jr., against John M. Ewen. From a judgment of the Appellate Court (99 Ill. App. 132), affirming a judgment for plaintiff, defendant appeals. Affirmed.

Magruder, J., dissenting.Henry Schofield and Geo. M. Wilson, for appellant.

Charles M. Walker and Charles M. Sherman (J. N. Swarts, of counsel), for appellee.

This appeal is from a judgment of the Appellate against appellant, for $1,250. The declaration was filed on March 9, 1894, and consisted of two special counts and the consolidated common counts. The first special count alleged that on June 7, 1893, Warren Ewen, Jr., at Chicago, executed and delivered to the plaintiff his promissory note, in and by which he promised to pay, ‘on demand, after six months after the date of said note, to the order of said Albert G. Wilbor, Jr., $1,250, at the office of said Warren Ewen, Jr., in Chicago, for value received’; that the defendant, John M. Ewen, on June 7, 1893, at the same time and place of the execution of said note, and as part of the same transaction, guarantied the prompt payment of said note by the following writing on the back of said note, to wit:

‘For value received, I hereby guarantee the payment of the within note at maturity, or at any time thereafter.

‘John M. Ewen.’

The count then alleges presentment of the note and demand for payment thereof after maturity, according to the tenor of the same, but that neither the said Warren Ewen, Jr., nor the said John M. Ewen, nor any one on their behalf, did or would pay the same, by means whereof defendant became liable, etc. The second special count alleged that on the same day and year Warren Ewen, Jr., was indebted to the plaintiff in the sum of $2,000; and in consideration that the plaintiff ‘would forbear and give time to the said Warren Ewen, Jr.,’ for the payment of said indebtedness ‘until he, the said plaintiff, should make payment thereof after six months thereafter, he, the said defendant, undertook and then and there in writing faithfully promised the said plaintiff to pay him the said last-named sum of $2,000, for value received’; that defendant, relying on said promise, did forbear and give time, etc., but Warren Ewen, Jr., did not and has not paid the same, of all of which the defendant had notice, whereby defendant became liable, etc. The promissory note declared on in the first count was a renewal of a note in the same words and figures, dated November 15, 1892, which was also guarantied by the defendant.

To the plaintiff's declaration the defendant, John M. Ewen, filed a plea of the general issue and seven special pleas, all based, in whole or in part, upon the following contemporaneous agreement entered into between the plaintiff and Warren Ewen, the maker of the note described in the declaration, as follows:

‘This agreement, made this 15th day of November, A. D. 1892, by and between Warren Ewen, Jr., party of the first part, and Albert G. Wilbor, Jr., party of the second part, both of the city of Chicago, Illinois, witnesseth: That whereas the said party of the first part is the owner of the rights in certain territory of the United States for certain patents known as the ‘multicolor dry process,’ and has applied for certain other letters patent for improved process of making blue prints, and is about to apply for others, and is likely to improve upon the same, and to use, invent, and to own other patent processes for copying; and whereas, said party of the first part believes and represents unto the said party of the second part that by reason of the superiority of said processes over all others he can procure the same, some or all of them, to be adopted by the United States government for general use in the making of plats, prints, and drawings used by the government architects in and about all United States government architectural work: Now, therefore, in consideration of the premises and of the further sum of one ($1.00) dollar in hand paid by the said party of the second part to said party of the first part, and of other good and valuable considerations, the receipt of which is hereby acknowledged, the said parties of the first and second parts, respectively, do hereby mutually covenant, promise, and agree, each with the other, as follows:

‘First. The said party of the first part hereby agrees to use his best endeavors to procure the adoption by the said government of said processes for use in all government architectural work, and in the event of being successful in procuring the same, or any of them, to be so adopted, all profits and other benefits arising therefrom are to be shared by the parties hereto in equal proportions. Whatever contract, agreement, or arrangement that shall or may be made with said United States government regarding said processes, or any of them, shall be made between said government on the one hand and Warren Ewen, Jr., and Albert G. Wilbor, Jr., on the other hand; the intention being that each of the parties hereto shall take in his own name and own an undivided onehalf interest in any and all contracts, agreements, or arrangements that may or shall hereafter be made with the United States government respecting the use of said processes, or any of them.

‘Second. The said party of the second part has, upon the ensealing and delivery of these presents, deposited with the said party of the first part, as a special deposit and earnest of good faith herein, the sum of twelve hundred and fifty ($1,250) dollars, the receipt of which is hereby acknowledged by said first party. Said sum of twelve hundred and fifty ($1,250) dollars shall be held by said party of the first part as a special deposit; but it shall, immediately upon the receipt of said second party of a duly executed agreement or contract between the United States government and the parties hereto, providing for the adoption for general use in government work of any of said processes, become the property of the said party of the first part, to compensate him in full for his servicesand the sale to the said party of the second part of said one-half interest in said contract or agreement, and in all other such contracts, agreements, and arrangements as shall hereafter be made with the United States government respecting the use of the said processes, or any of them, as above mentioned: Provided, however, that unless said contract or agreement with the said government is consummated on or before May 15, A. D. 1893, said sum of twelve hundred and fifty ($1,250) dollars shall, at the option of said party of the second part, be then returned by said first party to said second party, and then and in that case this agreement shall be ended and from thenceforth absolutely null and void. Should said second party, however, not elect to have said sum of twelve hundred and fifty ($1,250) dollars returned to him, as aforesaid, it shall continue to be held by said first party as such special deposit aforesaid until said government contract or agreement shall be made, or until demanded by said party of the second part, when it shall be at once due and payable to him. In order to better secure the repayment of said sum of twelve hundred and fifty ($1,250) dollars in the event that repayment thereof should be demanded, the said party of the first part has made, executed, and delivered his note of hand for said sum, of even date herewith, payable on demand after six months after date, to the order of said party of the second part, at the office of said first party, Chicago, Illinois, and has procured said obligation to be guarantied by John M. Ewin, of Chicago, Illinois.

‘Warren Ewen, Jr. [Seal.]

‘Albert G. Wilbor, Jr. [Seal.]’

The first and second special pleas alleged that the $1,250 mentioned in the above agreement was not deposited as alleged. Replications to these two pleas were filed, which took issue that the deposit was not made, and the evidence showed that appellee drew in favor of the maker of the note two checks, one for $1,000 and one for $250. Five other special pleas were filed, setting up other transactions between the plaintiff and the maker of the note, in the third of which it was averred that the $1,250 mentioned in the contemporaneous agreement was afterwards, by and with the consent of the plaintiff, and without the knowledge of the defendant guarantor, applied to the payment of expenses of a joint venture and agreement entered into by the plaintiff and the maker of the note, by reason whereof the defendant, as guarantor, was discharged from all liability for the return of the special deposit mentioned in said contemporaneous agreement. The fourth additional plea averred that the plaintiff never demanded of the maker of the note the return of the special deposit. The fifth additional plea alleged that plaintiff had in his hands the sum of $3,000, which was the property of the maker of the note, and, with knowledge of the insolvency of the maker, fraudulently contriving and intending to injure the defendant and fix his liability as a surety for the return of the special deposit mentioned in the contemporaneous agreement, procured the maker of the note to execute and deliver to the plaintiff, without any good and valuable consideration, a release and discharge from all claims which the maker of the note had against the payee thereof, by reason of which the defendant, as guarantor, was discharged from all liability. The sixth additional plea averred certain contracts were entered into between the payee of the note and the maker thereof, by which the payee was desirous of raising the sum of $1,250, and the maker of the note made certain representstions to the defendant guarantor to induce the latter to guaranty the note as accommodation paper, to enable the payee to raise the sum of $1,250, and that the note in suit was a renwal...