Adams v. Funk

• Decision Date: 31 January 1870
• Parties: JESSE ADAMSv.JAMES FUNK.
• Court: Illinois Supreme Court

53 Ill. 219

1870 WL 6177 (Ill.)

JESSE ADAMS

v.JAMES FUNK.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. JOHN M. SCOTT, Judge, presiding.

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

Mr. W. H. HANNA, for the appellant.

There is no rule of law better settled than that partners can not sue each other at law for any matter relating to the partnership concerns, unless there has been a final settlement between them, a balance ascertained, and an express promise to pay it. Davenport v. Gear, 2 Scam. 495; Frink et al. v. Ryan, 3 ib. 323; Chadsey v. Harrison, 11 Ill. 156.

In this case, the matters settled were the partnership matters of plaintiff and defendant and Cragin & Co. Cragin & Co. did not concur in the settlement, and it, therefore, could not be a final settlement. Chadsey v. Harrison, 11 Ill. 156. There can be no pretense that the settlement testified to between the parties was a final settlement, because, by the express terms of the settlement, the very item in dispute was left unsettled. There was not an express promise to pay that item, but a conditional promise.

There is, in fact, no real difference between this case and the case of a settlement between partners, in which they agree to rectify all errors, and I think the law in such a case is, that in order to rectify any error or fraud in the settlement, the only remedy is by bill in equity, and not by action at law. Frink et al. v. Ryan, 3 Scam. 323.

Messrs. TIPTON & BENJAMIN, also for the appellant.

Mr. JAMES S. EWING, Mr. HUDSON BURR, and Mr. L. WELDON, for the appellee. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, brought to the McLean circuit court by James Funk against Jesse Adams, declaring on the common counts only.

The defendant pleaded the general issue, and gave notice of a set-off. There was a verdict and judgment for the plaintiff to reverse which the defendant appeals to this court.

The ground of objection to the recovery, most zealously pressed by appellant, is, that these parties were partners, and unless there has been a final settlement between them, and a balance ascertained, accompanied by an express promise to pay it, an action of assumpsit will not lie.

It appears, in 1864, an arrangement existed between Cragin & Co., of Chicago, and the parties to this suit, by which Cragin & Co. were to furnish money, and Funk and Adams were to buy cattle with it for the Chicago market. Cragin & Co. were to be returned their capital, with five per cent interest thereon, together with one-half the profits on the sale of the cattle. This arrangement existed up to September of that year, when Cragin & Co. were repaid their advances, their five per cent, and their share of the profits. Adams and Funk, for their labor and services in buying the cattle, taking them to market, and selling them, were to retain, as compensation therefor, the other half of the profits. The settlement was made by Adams with Cragin & Co., in the fall of 1864, and they do not appear to have any interest whatever in this matter of controversy.

So far as these parties to this record are concerned, they had no settlement of their matters involved in this arrangement, until about March, 1867, when Funk filed a bill in chancery in the McLean circuit court, against Adams, claiming from him some twelve hundred dollars or more, growing out of this transaction. An agreement was made at this March term to arbitrate the suit, but was not carried out, for the reason that the parties settled themselves. In their efforts at settlement, Adams produced a book, in which he said he kept the accounts between himself, Funk and Cragin & Co., and in it was an item of two thousand dollars charged against Funk, under no date. An explanation being demanded of Adams, he said it was money he had paid for Funk to one Orendorff, and then promised Funk, if Orendorff did not pay the two thousand dollars to him, he, Adams, would.

This assurance satisfied Funk, and they made a final settlement, he, Funk, being charged with this two thousand dollars, and a balance being shown against him, which Adams agreed was five hundred dollars, Funk gave his note for that...