Archibald v. Argall
| Decision Date | 31 January 1870 |
| Parties | ALEXANDER ARCHIBALDv.THOMAS M. ARGALL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Ford county; the Hon. A. J. GALLAGHER, Judge, presiding.
This was an action of assumpsit, brought by Thomas M. Argall against Alexander Archibald and William Stevenson, partners, to recover for goods, wares and merchandise sold and delivered by the plaintiff to the defendants. A trial resulted in a verdict and judgment for the plaintiff, from which the defendant, Archibald, appealed. The opinion of the court contains a statement of the grounds upon which error is assigned. Messrs. ROFF & DOYLE, for the appellant.
Messrs. BLADES & KAY, for the appellee.
It is urged that the court below erred in sustaining the demurrer to appellant's second special plea. It avers that after the goods were purchased by Alexander Archibald and Stevenson, the former dissolved his connection with the firm, and his brother William took his place and agreed to take his interest in the goods, and pay Alexander's share of the firm debts, all of which the plaintiff knew, and after such knowledge, took from William the notes described in the first special plea, against the new firm, which notes plaintiff received as collateral to the account, and plaintiff then agreed to extend the time for the payment of the account until all the notes became due, and avers the notes are not due.
The ground relied upon as a defense in this plea is, that by a binding agreement, time for payment had been extended, and had not elapsed when the suit was brought. The matter stated in the plea is in abatement, and not in bar of the action. It is said in Chitty on Pleading, vol. 1 p. 453, that “pleas in abatement to the action of the writ, are, that the action is misconceived, as that it is in case when it ought to have been in trespass, or that it was prematurely brought; but as these matters are the ground of demurrer, or non-suit, it is now very unusual to plead them in abatement.” A number of authorities are referred to in support of the rule, and the analogies of the law are clearly in its favor. And as the plea does not deny or confess and avoid the indebtedness, but simply avers the debt is not due under the agreement set forth, it could only be a plea in abatement, and according to familiar rules of pleading, it comes too late. Such a plea can not be interposed after a plea in bar, and such is the fact in this case. Again, there is no consideration stated in the plea to sustain the promise, and to render it binding. It does not aver that time was extended in consideration that William Archibald should sign the note, or that anything was paid. It was, therefore, not error to sustain the demurrer to this plea.
We fail to find, from the evidence, that there was any agreement or understanding that time should be extended to Alexander Archibald. The only question fairly presented by the evidence in the case is, whether the notes were received in satisfaction of the account of the old firm. William Archibald and Stevenson swear that they were, while Hubbard, the agent of appellee, swears they were not so taken. That William proposed to give the notes of the new firm for the old account, which he declined. That William then proposed to give such a note with his father, or some other good security. That he then drew the notes and...
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