Ball v. Benjamin
| Decision Date | 30 September 1874 |
| Citation | 1874 WL 8918,73 Ill. 39 |
| Parties | RICHARD BALL et al.v.JOHN BENJAMIN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Whiteside county; the Hon. WILLIAM W. HEATON, Judge, presiding. Messrs. KILGOUR & MANAHAN, for the appellants.
Messrs. SACKETT & BENNETT, for the appellee.
This was an action, brought by appellants, against John Benjamin, in the circuit court of Whiteside county, to recover the value of a double saw-bench which was sold by them to one Daniel H. Call.
A trial was had before a jury, which resulted in a verdict and judgment against appellants.
When Call purchased the double saw-bench, he was engaged in the planing, sash and door business, and the machine was bought to be used in the planing mill. Upon making the purchase, he gave appellants his note for the machine. Before it arrived, Benjamin purchased of Call a half interest in his business. The inventory taken did not, however, include the machine. While the two were in partnership, the machine arrived, and was taken to the mill. Subsequently, Call sold out to Benjamin.
Upon making the sale, Call took of Benjamin a bond, which, among other things, contained a clause as follows: “The condition of said obligation is such that, whereas, the said Call has this day sold unto the said Benjamin his interest in the property owned by them, under the firm name of Call & Benjamin; by the terms of which sale the said Benjamin is to pay all the indebtedness of the said firm of Call & Benjamin, and all debts due for material used in the construction of the planing mill and building now occupied by them.”
The declaration in this case contained one special count, together with the common counts. It is averred in the special count that, on November 10, 1868, in consideration of having bought out the business of Call, and that Call had delivered to the defendant the double saw-bench, defendant promised Call to pay said note to the plaintiffs.
The real question for the jury to determine was, whether Benjamin, in buying out Call, assumed the payment of appellants' debt, as averred in the special count of the declaration. In order to establish this fact, appellants read in evidence the bond which contained the contract that fixed the liability of appellee, if liable at all.
After the bond was read in evidence, which contained these words, “and all debts due for material used in the construction of the planing mill and building now occupied by them,” it was then a question for the jury to determine whether the...
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