Baxter v. Barber

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: Baxter v. Barber, 35 Ill. 158, 1864 WL 3036 (Ill. 1864)
• Decision Date: 30 April 1864
• Parties: WEBSTER & BAXTERv.PIERCE & BARBER.

35 Ill. 158

1864 WL 3036 (Ill.)

WEBSTER & BAXTER

v.PIERCE & BARBER.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Superior Court of Chicago.

Assumpsit by appellees against appellants.

Declaration upon the common counts. Plea, the general issue.

The plaintiffs introduced in evidence an account rendered them by defendants, dated April 30, 1861, which, after giving sundry items on both sides of the account, stated the balance in favor of plaintiffs as follows: “Balance to your credit, in currency, $316.68.” Plaintiffs also introduced testimony tending to show a presentation of said account to defendants for payment, an offer by defendants of payment in “stumptail,” or depreciated currency, and refusal to make payment otherwise.

It also appeared from evidence, introduced by defendants, that the dealings between the plaintiffs and defendants consisted principally of sales of gold and drafts for currency, which was deposited by defendants with their banker upon their own bank account. Defendants also introduced evidence tending to show that such currency was so deposited by them upon their own bank account with the plaintiffs' knowledge; also evidence tending to show that the plaintiffs were informed by defendants that, if the currency was held by defendants, it must be at plaintiffs' risk of loss from depreciation, and that the money was left in defendants' hands.

The jury found for the plaintiffs, with $295.08 damages.

The instruction given by the court for the plaintiffs (which is fully stated in the opinion) and the overruling of defendants' motion for a new trial were assigned for error.

Gallup & Hitchcock, for appellants.Knox & Reed, for appellees.

BREESE, J.

The law of this case, on the facts appearing in the record, is so well expressed in the instruction given by the court for the plaintiffs that we deem any other argument unnecessary: If the plaintiffs sent gold and drafts to the defendants to be sold for currency, and defendants sold the same and rendered an account stating that there was any sum due to the plaintiffs in currency, that is prima facie evidence that there was so much or such sum due to the plaintiffs in current funds, and, to excuse the defendants from liability, the defendants must show that they paid over the same, or offered to do so. An offer to pay in “stump-tail” or depreciated currency on demand, would not excuse the defendants from their liability. If they rely upon a tender, they must show they had the currency and offered...