Bartalott v. the Int'l Bank.

• Decision Date: 31 October 1883
• Citation: 14 Bradw. 158,14 Ill.App. 158
• Parties: GEORGE BARTALOTTv.THE INTERNATIONAL BANK.
• Court: United States Appellate Court of Illinois

14 Ill.App. 158

14 Bradw. 158

GEORGE BARTALOTT

v.THE INTERNATIONAL BANK.

Appellate Court of Illinois, First District.

October Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ROLLIN S. WILLIAMSON, Judge, presiding. Opinion filed February 12, 1884.

Messrs. LEAMING & THOMPSON, for appellant; that the fraud and deceit which enable the offender to do the wrong may precede its perpetration; the length of time is not material, provided there is the relation of design and its consummation, cited Martin v. Smith, 1 Dillon, 95; Carr v. Hilton, 1 Curt. C. C. R. 230; Campbell v. Vining, 23 Ill. 525; Way v. Cutting, 20 N. H. 187; Bowman v. Sanborn, 18 N. H. 205; First Mass., etc., Co., v. Field, 3 Mass. 201; Atlantic Nat. Bk. v. Harris, 118 Mass. 152; Mayne v. Griswold, 3 Sandf. 463; Jones v. Conoway, 4 Yeates, 109; Mitchell v. Buffington, 15 Lancaster Bar, No. 16.

Messrs. ROSENTHAL & PENCE, for appellee; as to the elements of an equitable estoppel, cited Bigelow on Estoppel, 432; Smith v. Newton, 38 Ill. 230; International Bk. v. Bowen, 80 Ill. 541; Wood v. Carpenter, 101 U. S. 135; Kerr on Fraud, Am. ed., 73.

The destruction or cancellation of the evidence of a debt does not release the debt: Heartt v. Rhodes, 66 Ill. 351.

The payment of part of a debt in satisfaction of the whole will not satisfy the whole, and can not be pleaded in bar: Chitty on Contracts, 10th Am. ed., 821.

An agreement to abandon a claim, unless there be a consideration shown, is a mere nudum pactum:Wilson v. Keller, 9 Bradwell, 348; Addison on Contracts, 7th ed., 267; Chitty on Contracts, 10th Am. ed., 841.

Unless appellant was free from laches, or if he intended to waive all inquiry into the truth of the bank's claim, he can not recover: International Bk. v. Bartalott, 11 Bradwell, 620; Chitty on Contracts, 10th Am. ed., 694; Marriott v. Hampton, 2 Smith's Leading Cases, *400, 1; Milnes v. Duncan, 6 B. & C. 671; Kelly v. Solari, 9 M. & W. 54.

As to what will constitute a fraudulent concealment of the cause of action so as to take it out of the bar of the Statute of Limitations: Wood v. Carpenter, 101 U. S. 135; Nudd v. Hamblin, 8 Allen, 132; International Bk. v. Bartalott, 11 Bradwell, 620.

BAILEY, J.

This cause was before this court at the October term, 1882, at which time a judgment in favor of the plaintiff was reversed. International Bank v. Bartalott, 11 Bradwell, 620. The action was assumpsit for money had and received, and was brought by the appellant against the appellee. The defendant pleaded non-assumpsit and the Statute of Limitations. To the first of these pleas, the plaintiff added a similiter, and to the second he pleaded a special replication, alleging the fraudulent concealment from him by the defendant of his said cause of action, until within less than five years next prior to the commencement of the suit. Since the decision of the former appeal, the plaintiff has amended his replication, and a demurrer thereto having been sustained by the court, and the plaintiff having elected to abide by his replication, judgment was rendered against him for costs. From that judgment this appeal is prosecuted, and the only question now presented is as to the sufficiency of the amended replication.

The plaintiff, by said replication, seeks to avail himself of the provisions of the twenty-second section of the Statute of Limitations, which is as follows: “If a person liable to an action, fraudulently conceals the cause of action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same, discovers that he has such cause of action, and not afterward.” The grounds of demurrer to the replication engaged by counsel for the defendant, are the following:

First. The facts alleged in the replication do not show any defense to the deed of trust at the time the plaintiff paid for its release.

Second. The facts alleged do not show that the plaintiff was free from laches, or that he did not intend to waive all inquiry into the truth of the matter of the amount actually due the defendant at the time of such payment, and,

Third. The replication does not contain any allegation of facts sufficient to constitute fraudulent concealment of the cause of action, or to show diligence on the part of the plaintiff in discovering it.

It is manifest, we think, that the first and second of these propositions are untenable, except so far as they are included in the third. The plaintiff's claim is, that he paid the money in controversy to the defendant, to obtain the release of a certain deed of trust on land which he had recently purchased, in ignorance of the fact that it had already been paid to the defendant and satisfied in full, and that the fact of such previous payment was fraudulently concealed from him by the defendant at the time the money in question was paid, and since, by reason of which he remained in ignorance of such fact and of his right to recover said money back, until a short time prior to the commencement of this suit. The first point urged, viz., that the replication fails to show that there was any defense to the trust deed, is only saying in another form that the replication fails to show that the plaintiff has a good cause of action. If there was no defense to the trust deed, or, in other words, if at the time the plaintiff paid said money and obtained the release, the trust deed was a valid and subsisting lien on his land, then clearly the payment was made upon a sufficient consideration, and under no mistake as to any material fact, and the money paid can not be recovered back. But is it necessary for the plaintiff to show by his replication that he has a good cause of action? The plea of the Statute of Limitations is a plea in confession and avoidance. It confesses the plaintiff's cause of action, but seeks to avoid a recovery, by invoking the bar of the statute. So far then as any issue on that plea is concerned, the plaintiff's cause of action stands admitted, and there is no occasion for re-stating it in the replication. The case is not one calling for a new assignment, but the only office of the replication is to avoid the bar set up in the plea by bringing the case within the exception provided in the twenty-second section of the statute. It was doubtless proper for the pleader to set out in his replication the circumstances of the transaction out of which the cause of action arose, so far as necessary in order to a sufficient averment of the fraudulent concealment complained of, but this is not for the purpose of re-stating the cause of action as such, but of giving in detail the facts which constituted the fraudulent concealment.

Substantially, the same answer may be given to the second point made in support of the demurrer. Laches on the part of the plaintiff in omitting to avail himself, at the time he paid the money, of the means of knowledge within his reach, or an intention on his part to waive all inquiry into the truth of the matter of the amount actually due the defendant, would be a bar to his right to recover the money back. This rule is recognized in our opinion in this case, on the former appeal, and such is the doctrine of the authorities referred to by counsel for the defendant, in support of this branch of their argument. Such facts would doubtless constitute a defense available under the plea of non-assumpsit, but the plaintiff in his replication to a plea, setting up the bar of the statute, is called upon to meet and avoid that defense, and none other. Doubtless laches, or an intention to waive inquiry as to the amount due, if affirmatively shown, would tend to rebut the charge of fraud, but laches, as a defense, was not within the issue tendered by the plea replied to.

Recurring then to the third proposition urged, it seems to be well settled by the authorities that a replication to a plea of the Statute of Limitations, setting up a fraudulent concealment by the defendant of the cause of action, must set out the facts and circumstances constituting the fraud. It must further show that there has been no want of reasonable diligence on the part of the plaintiff in discovering the cause of action, and must also disclose the time when and circumstances under which the discovery was made. But it is not essential that the acts constituting the fraudulent concealment should be subsequent to the accruing of the cause of action. They may be coincident with or even prior to it, provided there is the relation of design and its consummation. Way v. Cutting, 20 N. H. 187; Bowman v. Sanborn, 18 Id. 205; Wood v. Carpenter, 101 U. S. 135; Boyd v. Boyd, 27 Ind. 429; Campbell v. Vining, 23 Ill. 525.

The facts alleged in the replication when stripped somewhat of their verbiage, are as follows: On or about October 12, 1870, the plaintiff purchased certain land in Cook county, of Samuel J. Walker, and paid him therefor $48,000, Walker procuring a conveyance of the land to the plaintiff from Henry H. Walker, and assuring plaintiff that it was free from all incumbrances, and promising to furnish him an abstract of title. Walker failing to furnish the abstract, the plaintiff, about January 1, 1874, obtained one for himself, and on examining it, ascertained that there appeared of record a deed of trust on said land, bearing date July 22, 1869, executed by Henry H. Walker to one Francis A. Hoffman, to secure two promissory notes for $15,000 each, payable to the order of Samuel J. Walker. Plaintiff, at the time he purchased the land did not purchase subject to said trust deed or assume its payment, and did not know of its existence. Said notes had been deposited by Samuel J. Walker with the defendant, as collateral security to certain other notes amounting to $20,000, and on the 11th of September, 1873, Walker paid the defendant $20,000 and canceled the principal notes, and also the two $15,000 notes,...